author: STEVENSON, J.

text:
    Jody R. YOUNG, Appellant, v. Melinda TAUBMAN, Appellee.
    No. 4D02-1457.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 15, 2003.

      Jody R. Young, Wellington, pro se.
    Richard G. Bartmon of the Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellee.
   STEVENSON, J.

The parties to this appeal, Jody Robert Young and Melinda Taubman, were divorced in 1994. Commencing April 2000, Taubman sought to both enforce and modify the terms of the final judgment of dissolution. Ultimately, the trial court entered an order that (1) gave the former wife authority to make decisions regarding their daughter’s acting/modeling career, (2) directed the former husband to comply with the provision in the marital settlement agreement, wherein he agreed to obtain a “get” (a divorce under Jewish law), (3) directed the former husband to reimburse the former wife for camp, day care expenses and certain medical bills and (4) increased the former husband’s child support obligation. Thereafter, the court entered a second order, requiring the former husband to pay some $95,000 in attorney’s fees and costs incurred by the former wife. The former husband has appealed and challenges virtually every aspect of both orders. We write to address only two issues — the upward modification of child support and the attorney’s fees and costs award. As to all other issues, we find no error and affirm without further discussion.

Child Support

The former husband challenges the upward modification of his child support obligation on a number of grounds. We find merit in his claim that the trial judge erred in failing to impute income to the former wife and reverse the upward modification of the former husband’s child support obligation on this basis.

With respect to the former wife’s income and ability to earn, the evidence before the lower court was that Melinda Taubman holds a bachelor’s degree in sociology and was employed as a social worker briefly while residing in New York in 1984. According to the former wife, without a master’s degree she is not qualified to do social work in Florida. Since residing in Florida, the former wife has held a number of jobs, most of which were part-time: she was a partner in a modeling agency; she obtained a real estate license; she worked at her daughter’s school; and she worked as a marketing representative with the Boca Raton Museum of Cartoon Art. As for her current income, the former wife testified that she was employed part-time. According to the former wife, part-time employment is necessitated by the demands of their daughter’s career. The former wife’s financial affidavit reflects that she is employed by American Greeting Cards, earns $7.05 per hour, and has gross monthly earnings of $240.00. Additionally, since the former wife and the child were residing with the former wife’s parents, she also included $1200 in income to represent the rent and utilities paid on their behalf. On this evidence, the trial court refused to impute income to the former wife.

Section 61.30(2)(b), Florida Statutes, governs the imputation of income to an unemployed or underemployed spouse and requires imputation of income to a voluntarily unemployed or underemployed parent unless the parent suffers from a “physical or mental incapacity or other circumstance over which the parent has no control” or the court finds that it is necessary for the primary residential parent to stay home with the child. See also Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999); Stebbins v. Stebbins, 754 So.2d 903, 905 (Fla. 1st DCA 2000). As to the first of the exceptions to the imputation of income, there was no evidence that the former wife is incapacitated in any way. As to the latter, the trial court never made any finding that it was necessary for the former wife to stay home with the child. Moreover, even if the court had determined that the former wife could not work full-time due to the child’s modeling/acting career, certainly she could work more than thirty-four hours per month or an average of 8.5 hours per week ($240.00 divided by $7.05 per hour) since the record established that the child was attending school. Accordingly, we reverse the child support award and remand so that the trial court may recalculate the amount of support owed by each parent after imputing additional income to the former wife.

Attorney’s Fees and Costs

Following entry of its order modifying the terms of the final judgment of dissolution, the court rendered a second order, requiring the former husband to pay $95,000 in attorney’s fees and costs incurred by the former wife. The fee award finds only that the fees charged “were both reasonable and necessary” and that the hourly rates were reasonable.

The former husband has sought review of the fee award, arguing, among other things, that reversal is required due to the trial court’s failure to make specific findings as to the number of hours expended and the amount of a reasonable hourly rate. The judge is indeed required to make these specific findings. See, e.g., Saporito v. Saporito, 831 So.2d 697 (Fla. 5th DCA 2002). Moreover, a review of the transcript of the fee hearing reflects that, here, there was insufficient evidence on which the court could have predicated such a finding. While there was evidence as to the number of hours logged by the former wife’s attorneys and the rate each attorney charged, there was no evidence as to how these hours were spent.

Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.

Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) (citations omitted). As the instant ease falls into this latter category, we reverse the fee award and remand for further proceedings.

AFFIRMED in part, REVERSED in part and REMANDED.

WARNER and HAZOURI, JJ., concur.

      . Our conclusion in this regard will also require recalculation of the amount of the daycare and camp expenses that the former husband is required to reimburse the former wife as the parties' respective obligations are based upon their income.

      . Effective October 1, 1993, the legislature amended section 61.16(1), Florida Statutes, to provide that ''[a]n application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter.” Ch. 93-188, §§ 6, 9, at 1696-97, Laws of Fla. Nevertheless, the addition of this language "did not alter the burden of the party seeking fees to prove with evidence [the] reasonableness and necessity of the fees sought.” Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GREAT AMERICAN INSURANCE COMPANIES, Appellant, v. Peter R. SOUZA, individually and as Personal Representative of the Estate of Daley W. Souza for the benefit of Margo Souza and Ariel Souza, as surviving minor daughters, and Peter R. Souza, as surviving spouse, and the Estate of Daley W. Souza, Melbourne Airport Authority, Melbourne Airport Shuttle and Taxi, Inc., and Rebecca Lee Dorsey, Appellees.
    No. 4D02-1414.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.

      Holly S. Harvey and Mark D. Bohm of Thornton, Davis & Fein, P.A., Miami, for appellant.
    Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellee Melbourne Airport Authority.
   APPELLEE CITY OF MELBOURNE AIRPORT AUTHORITY’S MOTION FOR REHEARING EN BANC, CLARIFICATION, OR CERTIFICATION AND APPELLANT’S MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

We deny appellee City of Melbourne Airport Authority’s Motion for Rehearing En Banc, Clarification, or Certification. We grant appellant’s Motion for Rehearing or Clarification, and as a result, withdraw our previous opinion and substitute this new opinion in its place for the purpose of clarification.

Great American Insurance Company (“Great American”) issued a liability policy to the Melbourne International Airport Authority (“the Authority”). Daley Souza landed in Melbourne and hired a car operated by Melbourne Shuttle, which has a facility in the airport terminal. Souza was killed when a dump truck collided with the car approximately thirty-five miles from the airport.

Souza’s estate sued the driver of the car, Melbourne Shuttle, and the Authority. The allegations against the Authority rest on the theory that Melbourne Shuttle and its employees were apparent agents of the Authority. Great American sought a declaratory judgment that it had no duty to defend the Authority in the wrongful death suit on the basis of an exclusion contained in its policy with the Authority. The exclusion relied on states that the policy does not cover bodily injury or property damage caused by or arising out of:

[a]ny auto owned or operated by or on behalf of an insured while off the airport unless responding to any aircraft or aviation emergency.

Both parties filed motions for summary judgment. We review an order granting the Authority’s motion for summary judgment. We reverse and remand for entry of summary judgment in favor of Great American.

This case turns on the interpretation of the phrase “on behalf of.” The trial court held that the phrase was ambiguous because it was not defined. Because it was ambiguous, the court concluded, it must be construed to provide the broadest coverage. See Stonewall Ins. Co. v. Heter, 438 So.2d 950 (Fla. 4th DCA 1983); see also Meister v. Utica Mut. Ins. Co., 573 So.2d 128 (Fla. 4th DCA 1991). We disagree.

The failure to define a term does not in itself mean that the term is ambiguous. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998) (“The lack of a definition of an operative term in a policy does not necessarily render the term ambiguous and in need of interpretation by the courts.”) (citing Container Corp. of Am. v. Md. Cas. Co., 707 So.2d 733, 736 (Fla.1998); Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998)). Regarding the rules of construction the trial court applied, this court has written:

[c]ourts should resort to complex rules of construction to determine coverage or the applicability of exclusions only when the language used in the policy is ambiguous or otherwise susceptible of more than one meaning. Absent such factors courts should apply the plain meaning of words and phrases used in a policy of insurance.

Southeastern Fire Ins. Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984).

The plain meaning of the phrase “on behalf of’ is “as the agent of, on the part of.” American Heritage Dictionary of the English Language (4th ed.2000). Thus, operating the vehicle “on behalf of’ the Authority encompasses the alleged agency theory, and the exclusion bars coverage in this case. .

Additionally, because this opinion results in the reversal of the summary judgment in favor of the Authority, it can no longer be considered a prevailing party entitled to recover attorney’s fees from Great American. Therefore, the Judgment for Attorney’s Fees and Costs in the Authority’s favor is also reversed.

REVERSED and REMANDED for entry of summary judgment in favor of Great American.

GUNTHER, STONE and STEVENSON, JJ., concur.


author: PALMER, J.

text:
    HARTFORD INSURANCE COMPANY OF THE MIDWEST, Petitioner, v. Dorothy O’CONNOR, Respondent.
    No. 5D03-657.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.

      Richard A. Sherman, Sr., of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and James D. Fuller of Pine & Bergier, Maitland, for Petitioner.
    Roy D. Wasson, Miami and David J. Gorewitz, Melbourne, for Respondent.
   PALMER, J.

Hartford Insurance Company has filed a petition seeking certiorari review of an appellate decision issued by the Brevard County circuit court. The circuit court’s decision reverses a final summary judgment which had been entered by the county court in Hartford’s favor. Concluding that Hartford has failed to demonstrate that the circuit court departed from the essential requirements of law, we deny the petition.

Respondent Dorothy O’Connor was injured in an automobile accident. At the time of the accident, O’Connor owned an insurance policy issued by Hartford which provided her with Personal Injury Protection (PIP) coverage. As a part of her treatment for her injuries, O’Connor underwent an MRI test at the Neuro Imaging Institute. Neuro submitted a bill to Hartford for the MRI, but the request for payment was denied on the basis that the MRI was neither reasonable nor necessary.

O’Connor executed an assignment agreement with Neuro which authorized Hartford to remit payment directly to Neuro for sums owing for O’Connor’s treatment. However, two months later O’Connor filed suit against Hartford in the county court seeking payment of Neuro’s bill, as well as attorney’s fees. Hartford quickly responded by paying Neuro for O’Connor’s MRI, but Hartford did not pay any of O’Connor’s attorney’s fees. Hartford then moved to dismiss O’Connor’s complaint on the basis that she lacked standing to bring the lawsuit because she had assigned her rights to receive payment from Hartford to Neuro. The county court granted the motion and dismissed O’Connor’s complaint without prejudice.

O’Connor filed an amended complaint against Hartford adding allegations that Neuro was a third-party beneficiary under her PIP policy and that Neuro had authorized her to file a lawsuit against Hartford regarding payment for the MRI services. The complaint farther alleged, in the alternative, that the assignment agreement between O’Connor and Neuro had been revoked. Hartford responded by filing a motion for summary judgment, alleging that O’Connor lacked standing to file suit against Hartford because O’Connor had assigned her rights to the cause of action to Neuro. The county court granted the motion and entered a summary judgment in favor of Hartford.

O’Connor appealed the summary judgment to the circuit court. The circuit court, sitting in its appellate capacity, reversed the summary judgment entered by the county court and granted O’Connor’s motion for appellate attorney’s fees. Hartford seeks certiorari review of the circuit court’s order.

District court review of a decision issued by a circuit court, sitting in its appellate capacity, is limited to a determination of whether the circuit court afforded the parties procedural due process and whether the essential requirements of the law were observed. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); State Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163 (Fla. 5th DCA 2003). While Hartford does not contend that it was denied procedural due process, Hartford does claim that the circuit court’s order constitutes a departure from the essential requirements of the law. We disagree.

Although the undisputed facts show that O’Connor executed an assignment agreement with Neuro regarding her right to receive PIP payments from Hartford, a material issue of fact exists as to whether that agreement was subsequently rescinded by the mutual agreement of the parties.

An assignment is like any other contract which can be revoked by the mutual agreement of the parties thereto. Hartford argues that the parties’ assignment was irrevocable, and cites to numerous cases in which the courts have held that an insured lacks standing to maintain a direct action against an insurer when the insured assigns his rights under the insured’s contract to a medical provider. See Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001). However, none of the cases cited by Hartford address the issue raised in this case relating to the effect of a claimed mutual revocation of an assignment agreement. Instead, the cases cited by Hartford deal with situations where one party to the contract attempts to unilaterally rescind the assignment. In Livingston v. State Farm Mut. Auto. Ins. Co., 174 So.2d 716 (Fla. 2d DCA 2000) the Second District noted:

The Fifth District has held that an unqualified assignment transfers to the as-signee all the interest of the assignor under the assigned contract, and that the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee.

774 So.2d at 718 (emphasis added).

Since the record reflects that a material issue of fact exists as to whether the parties mutually rescinded the assignment contract, the summary judgment was improperly granted by the county court. As such, the circuit court properly reversed said order.

PETITION DENIED.

GRIFFIN and THOMPSON, JJ., concur.

      . We note in passing that this motion should not have been granted by the county court. In granting the motion to dismiss, Hartford relied upon the assignment, a document which was beyond the four corners of the complaint. The issue of standing and the effect of the assignment were matters to be raised by Hartford as affirmative defenses, not in a motion to dismiss the complaint.


text:
    Christopher PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2240.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Christopher Phillips, Crestview, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Christopher Phillips appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Phillips was convicted of trafficking in cocaine, and, as part of his sentence, the court imposed the three-year minimum mandatory term required by section 893.135(l)(b)l.a., Florida Statutes (1999). Phillips argues that because Chapter 99-188, Laws of Florida, which amended section 893.135(l)(b)l.a. to add the minimum mandatory term, was enacted in violation of the single subject rule, the court should not have imposed the three-year minimum mandatory term. He further claims that a later effort by the Legislature to correct the problem did not cure the constitutional defect.

In Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), the court held that chapter 99-188 violated the single subject rule. In response to Taylor, the Legislature enacted Chapters 02-208, 02-209, 02-210, 01-211, and 02-212, Laws of Florida, which reenacted the provisions of Chapter 99-188. The 2002 chapter laws provide that the corrective statutes were to be applied retroactively, to the extent permitted by the federal and state constitutions.

In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), we held that the 2002 chapter laws could be applied retroactively without violating constitutional principles. See also Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002). However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), the Second District Court held that retroactive application of chapter 02-212 would violate the ex post facto clauses of the United States and Florida Constitutions.

Based on Hersey, we affirm the order denying Phillips’s motion, but we certify conflict with Green.

AFFIRMED.

SHARP, W., ORFINGER and MONACO, JJ., concur.

      . Article III, section 6, of the Florida Constitution provides, in part, that "[e]veiy law shall embrace but one subject and matter properly connected therewith....”


author: GRIFFIN, J.

text:
    Roger Lee FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1362.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Roger Lee Ferguson, Raiford, pro se.

      No Appearance for Appellee.
   ON MOTION FOR REHEARING

GRIFFIN, J.

Appellant, Roger Lee Ferguson [“Ferguson”], seeks rehearing of our per curiam affirmance of the summary denial of his second rule 3.850 motion. We grant the motion for rehearing, withdraw our previous decision, and reverse the appealed order.

Ferguson was charged with aggravated assault with a deadly weapon, battery and aggravated assault. Ferguson was tried, convicted and sentenced as an habitual offender. Ferguson appealed his sentence, but the appeal was dismissed.

Ferguson then filed a rule 3.800(a) motion, claiming that his sentences violated double jeopardy because the same prior felony convictions were used as predicate offenses to qualify Ferguson for habituali-zation and were also scored on the guidelines scoresheet. The trial court ruled that this claim would have to be filed as a rule 3.850 motion because an evidentiary hearing was required, and accordingly denied Ferguson’s rule 3.800(a) motion, without prejudice. Ferguson complied by filing a rule 3.850 motion, raising this same claim. The trial court then reconsidered its earlier decision that an evidentiary hearing was required and summarily denied the motion. The denial was per cu-riam affirmed without opinion in Ferguson v. State, 826 So.2d 316 (Fla. 5th DCA 2002).

Ferguson later filed a second rule 3.850 motion, raising ineffective assistance of counsel claims. The trial court denied this motion as successive, attaching a copy of the prior rule 3.850 motion and order. In his motion for rehearing, Ferguson claims that the prior motion only addressed sentencing issues and, although labeled a rule 3.850 motion, was actually a motion to correct sentence.

In Reid v. State, 724 So.2d 127 (Fla. 1st DCA 1998), relied on by Ferguson, the appellate court reversed the trial court’s denial of a rule 3.850 motion as successive. The court held that where the defendant’s prior motions had been filed pursuant to rule 3.800, addressing only sentencing issues, and the trial court had sua sponte construed those motions as rule 3.850 motions, Ferguson’s second rule 3.850 motion should not be deemed successive. The case before us is slightly different from Reid. In this case, Ferguson complied with the court’s order that his claim was not proper under rule 3.800 by refiling his motion as a rule 3.850 motion, rather than appeal the trial court’s decision.

Also similar is Ramirez v. State, 822 So.2d 593 (Fla. 2d DCA 2002). In Ramirez, the court reversed the denial of a second rule 3.850 motion as successive, finding that the first motion had raised only sentencing errors and the new motion raised claims of ineffective assistance. The district court held that in determining whether the second motion was successive, the trial court should have considered the substance of the first motion, not its title. See also Kelly v. State, 712 So.2d 780 (Fla. 2d DCA 1998)(although defendant’s first motion was labeled a rule 3.850 motion, it was in fact a rule 3.800(a) motion asserting an illegal sentence, so second rule 3.850 motion attacking voluntariness of plea was not successive).

We think that because the trial court refused to hear the sentencing issue raised in Ferguson’s rule 3.800 motion unless it was recast as a rule 3.850 motion and then later acknowledged that it was, after all, reviewable under 3.800, it would not be fair to count the first 3.850 motion against Ferguson for purposes of successiveness. We accordingly reverse and remand to the trial court to consider the current 3.850 motion on the merits, if any.

MOTION GRANTED; ORDER REVERSED.

SHARP, W., and PALMER, JJ., concur.


author: WOLF, C.J.

text:
    ALACHUA COUNTY, Florida and the Labor Party Just Health Care Committee, through its Chairman Mark Piotrowski and the Alachua County Labor Party, through its Co-chairs, Jennifer Brown and Mark Piotrowski, and Beverly Hill, the Supervisor of Elections, for Alachua County, Florida, Appellants, v. Howard J. SCHARPS, Appellee.
    No. 1D02-3240.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.

      David Wagner, County Attorney, Gainesville; Robert L. Nabors, of Nabors, Giblin & Nickerson, P.A., Tallahassee; Andrea Costello and Alice K. Nelson, of Southern Legal Counsel, Inc., Gainesville, for Appellants.
    Joseph W. Little, Gainesville, for Appel-lee.
   WOLF, C.J.

Appellant, Alachua County Board of County Commissioners (the County), was the defendant in an injunctive and declaratory action brought by appellee, Howard J. Seharps. The County challenges a final judgment invalidating a resolution passed by the County which directed that a referendum be placed on the general election ballot. Appellant raises a number of issues, including whether appellee had taxpayer standing to challenge the County’s authorization of the referendum. We find that appellee lacks standing; therefore, we reverse the decision of the trial court on this basis and decline to address the other issues raised by the County.

On July 11, 2000, the County adopted Resolution 00-55 (the resolution), and directed that the following non-binding question be placed on the November 8, 2000, Alachua County general election ballot:

UNIVERSAL HEALTH CARE AND HEALTH INSURANCE TRUST FUND
Do you favor legislation to create a system of universal health care in Florida that provides all residents with comprehensive health care coverage (including the freedom to choose doctors and other health care professionals, facilities and services) and eliminates the role of health insurance companies in health care by creating a publicly administered health insurance trust fund? The trust fund would receive the funds presently going to the numerous health insurance companies throughout the state.

On September 29, 2000, Seharps filed a second amended complaint (the complaint) for declaratory judgment and injunctive relief pursuant to Article V, Section 4 of the Florida Constitution and chapters 26 and 86 of the Florida Statutes. Regarding his standing, Seharps alleged the following:

3. Howard Seharps is resident, citizen and taxpayers [sic] of Alachua County, Florida and has been all times material hereto.
46. Plaintiff Seharps opposes the substance of the matter stated in the nonbinding referendum and objects on First Amendment and Florida Declaration of Rights grounds to Board’s employment of the power and resources [sic] to the County and the State of Florida to promote one political point of view in the guise of a nonbinding referendum that does not pertain to the functions and powers of county government[.]

In count I of the complaint, Seharps sought a declaratory judgment that the resolution was invalid because the County had no power under section 125.01, Florida Statutes (2000), or Article III of the Florida Constitution, to conduct a referendum to determine elector sentiment on the issue of universal health care. In count II of the complaint, Seharps alleged violations of the First and Fourteenth Amendments to the United States Constitution and the Declaration of Rights in Article I of the Florida Constitution. Seharps sought in-junctive relief to either keep the referendum off the November 2000 ballot or, alternatively, to seal the results of such a ballot.

The County asserted numerous defenses, including that Seharps did not have standing to bring the declaratory action against the County. On November 7, 2000, the eve of the election, the trial court rendered an order denying injunctive relief and reserving judgment on declaratory relief, finding that Seharps failed to meet the burden of persuasion that his own injury would outweigh the complications necessary to comply with any injunctive relief. Specifically, the court held,

Plaintiff does not allege personal or financial injury as a result of the tabulating and releasing the votes on the nonbinding referendum. Rather, Plaintiff alleges an inability on the part of the Board of County Commissioners to exercise any discretion as to potential future proposed referenda....

Apparently the referendum was held on November 8, 2000.

On March 12, 2002, the trial court entered the final judgment declaring the resolution invalid, finding that the County improperly placed a non-binding referendum regarding universal health care on the November 2000 election ballot. The judgment did not address or explicitly rule on the standing issue. The County filed a timely motion for rehearing, arguing in part that the issue of Scharps’ standing was not addressed by the court. The trial court denied the motion for rehearing, and this appeal ensued.

Standard of Review

Determining whether a party has standing is a pure question of law to be reviewed de novo. See Edgewater Beach Owners Ass’n, Inc. v. Walton County, 833 So.2d 215, 219 (Fla. 1st DCA 2002). The trial court failed to explicitly address the arguments as to Scharps’ standing to bring this action. The trial court, however, implicitly found there was standing by addressing the merits of appellee’s complaint. When standing is raised as an issue, the trial court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. See Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). The trial court should have addressed the standing issue. See Jones v. Dep’t of Revenue, 523 So.2d 1211, 1214 (Fla. 1st DCA 1988) (“Before reaching the merits of appellant’s challenge, however, it is first necessary to determine whether appellant had standing to challenge the constitutionality of the statute.”).

Appellant admits he suffered no special injury, but he alleged in his complaint, asserted at the trial level, and argues on appeal that he is exempt from the special injury rule because he has “taxpayer standing” and constitutional standing. We find he has neither.

Taxpayer Standing

Generally, in order to have standing to bring an action the plaintiff must allege that he has suffered or will suffer a special injury. See Rickman v. Whitehurst, 73 Fla. 152, 157, 74 So. 205, 207 (1917); Godheim v. City of Tampa, 426 So.2d 1084, 1086-88 (Fla. 2d DCA 1983). The special injury requirement, or the “Rickman rule,” has an exception “[w]here there is an attack upon constitutional grounds based directly upon the Legislature’s taxing and spending power.” N. Broward Hosp. Dist. v. Fornes, 476 So.2d 154, 155 (Fla.1985) (emphasis in original) (quoting Dep’t of Admin. v. Horne, 269 So.2d 659, 663 (Fla.1972)). When such constitutional grounds exist “there is standing to sue without the Rickman requirement of special injury.” Id. (quoting Horne, 269 So.2d at 663). The supreme court refused to depart from this special injury rule or expand this exception. Fornes, 476 So.2d at 155; see also Sch. Bd. of Volusia County v. Clayton, 691 So.2d 1066 (Fla.1997) (reaffirming long-established precedent that taxpayer standing requires special injury on constitutional challenge); Dep’t of Revenue v. Markham, 396 So.2d 1120 (Fla.1981) (noting that absent a constitutional challenge, a taxpayer can only have standing upon a showing of special injury which is distinct from that suffered by other taxpayers in the taxing district). Thus, taxpayer standing is available if the taxpayer can show that a government taxing measure or expenditure violates specific constitutional limitations on the taxing and spending power. See Martin v. City of Gainesville, 800 So.2d 687, 688-689 (Fla. 1st DCA 2001); Paul v. Blake, 376 So.2d 256, 259 (Fla. 3d DCA 1979) (“A taxpayer may institute such a suit without a showing of special injury if he attacks ... taxing or spending authority on the ground that it exceeds specific limitations imposed on the ... taxing or spending power by the ... Florida Constitution.”). Here, appellee generally asserts that the County employed the “powers and resources of the State of Florida or of Alachua County” outside the scope of section 125.01(l)(y), but he does not assert that the County violated a specific taxing and spending power under the state or federal constitution.

The case of Martin v. Gainesville, 800 So.2d at 687, is instructive on this issue. The plaintiff in Martin filed a complaint for a declaratory judgment and injunctive relief as did Scharps in the instant case. There the plaintiff sought to prevent expenditures for a policy with which he disagreed, claiming that these expenditures were in violation of Article VIII, Section 2(b) of the Florida Constitution, which gives municipalities governmental, corporate, and proprietary powers for municipal purposes “except otherwise provided by law.” Id. at 688. In Martin this court affirmed the trial court’s dismissal for lack of standing, finding that the plaintiff had failed to show that the defendant “violated the specific limitations imposed upon a city in taxing or spending by the Florida Constitution.... [M]ere statutory violations did not constitute ‘violations of specific provisions of the Florida Constitution.’ ” Id. at 688 (quoting Fredericks v. Blake, 382 So.2d 368, 370 (Fla. 3d DCA 1980)). Similarly in City of Atlantic Beach v. Bull, 476 So.2d 158 (Fla.1985), the plaintiff relied on the same theory of standing which appellee argues here: he is a citizen, resident and taxpayer, and the local government’s action was outside the general powers granted under the Florida Constitution. In Bull, however, the supreme court rejected that standing theory. See also City of Sarasota v. Windom, 736 So.2d 741, 742 (Fla. 2d DCA 1999) (finding no standing where the plaintiffs challenged the city’s authority to expend funds for the installation of a specific type of traffic control device); Sch. Bd. of Volusia County v. Clayton, 691 So.2d at 1066 (Fla.1997) (finding taxpayer did not have standing to challenge school board’s purchase of real property pursuant to eminent domain proceeding on ground that school board did not obtain statutorily required extraordinary vote to approve purchase).

As in Fornes, Martin, and Bull, the appellee’s general claims of expenditures beyond statutory authority fall short of the requirement that a taxpayer allege violations of specific constitutional limitations on taxing or spending powers in order to avoid the necessity of demonstrating special injury or as a prerequisite for taxpayer standing.

First Amendment Standing

Appellee relies on Falzone v. State, 500 So.2d 1337 (Fla.1987), to support his claim that he also has constitutional standing because he has alleged violations of free speech under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Florida Constitution. In Falzone, appellants had been indicted for allegedly failing to file a statement of organization as a political committee as required by certain sections of Florida’s Campaign Finance Law. Unlike Scharps, the appellants there had made an explicit facial challenge alleging that the statutes were vague and over-broad. There, the court explained that there is a relaxed standing requirement in overbreadth cases because of the potential chilling effect on First Amendment freedoms. Id. at 1389. In this case, however, no potential chilling effect is implicated.

The exact nature of appellee’s first amendment challenge is unclear. However, it seems to be, “[The] board is left in a dilemma: it must either violate the First Amendment by picking and choosing among petitions, or it must grant all petitions and thereby abdicate its power as the constitutionally prescribed exclusive governing body for the county.” There is nothing in the record reflecting that the County has picked among petitions or granted all petitions. There is also no indication that appellee was denied access to the referenda process or sought to have a referendum placed on the ballot. In Florida National Organization for Women, Inc. v. State, 832 So.2d 911 (Fla. 1st DCA 2002), the court held that appellants did not have standing to allege a violation of first amendment rights where the facts alleged did not show that appellants’ own first amendment rights had not been violated:

Appellants allege that their right to free speech has been violated by the mere existence of the Choose Life plate. As the trial court explained in dismissing Count II, “the facts alleged do not show that any of the plaintiffs have attempted any expression and been denied access to the alleged forum for speech, or that the statutes at issue have hindered or curtailed any plaintiffs speech in any way.” Because Appellants have not applied for, and been denied, a pro-choice plate, and have stated their intention not to do so, they cannot amend the count to state a viable claim as they lack standing to do so.

Id. at 915. Because the appellee here is only claiming that there is potential for violating someone’s (not even his own) freedom to speech, he does not have standing. Id.; see also Sieniarecki v. State, 756 So.2d 68, 76 (Fla.2000) (denying standing on the ground that a statute may “conceivably” be applied unconstitutionally). Furthermore, appellee has not established that his expression has been chilled or that he has been denied access to the referenda process as set forth by section 125.01. Thus, he has no First Amendment standing.

Equal Protection Standing

Appellee’s equal protection argument is premised on the argument that “[b]ecause Board’s discretion to pick and choose among petitions for referenda has not been circumscribed by adequate guidelines, general equal protection principles would render [section] 125.01(l)(y) unconstitutional in application.” However, because Scharps did not attempt to get an alternative petition placed on the ballot or offer his own ballot for submission, he cannot show that he suffered any discrimination under section 125.01(l)(y). It is not enough that others may be discriminated against in the future.

In Sancho v. Smith, 830 So.2d 856 (Fla. 1st DCA 2002), election supervisors brought a declaratory judgment and in-junctive action attacking a statute limiting a ballot summary for a proposed constitutional amendment to 75 words, but exempting summaries submitted by joint resolution of legislature from the brevity requirement. As Scharps does here, the complaint brought an equal protection challenge under the Fourteenth Amendment of the United States Constitution, claiming the statute created an unconstitutional burden on those in the future who would submit a proposed amendment by citizen initiative. This court held that the election supervisors had no standing to bring the equal protection claim because “constitutional rights are personal:”

A party who is not adversely affected by a statute generally has no standing to argue that the statute is invalid. We acknowledge that courts have made an exception to this rule if the party asserting the claim is protecting the rights of non-parties who are unable to challenge the statute on their own. However, the exception does not apply here. Citizens who are adversely affected by the exemption in section 101.161(1), Florida Statutes (2000), can make the argument for themselves.

Id. at 864 (citations omitted); see also Sieniarecki, 756 So.2d at 76 (“[C]onstitu-tional rights are personal in nature and generally may not be asserted vicariously.”).

Similarly, in Shands Teaching Hospital and Clinics, Inc. v. Smith, 480 So.2d 1366 (Fla. 1st DCA 1985), approved, 497 So.2d 644 (Fla.1986), this court held that a hospital lacked standing to assert an equal protection challenge to a statute that made a man liable for medical bills incurred by his wife, but did not also make a woman liable for medical bills incurred by her husband. Although the court agreed that the hospital had a general interest in collecting its debts, the court found that the hospital had no real interest in the argument that the statute unfairly discriminates against men. The equal protection problems at issue in Smith were best raised by men who were affected by the discrepancy or addressed by the legislature. Smith, 480 So.2d at 1367 (Barfield, J., concurring). Because Scharps cannot assert that he personally has suffered discrimination, and citizens who are denied the right to place their non-binding referenda on ballots can make the argument for themselves, Scharps has no standing.

For the reasons expressed herein, we reverse the decision of the trial court and direct that appellee’s complaint be dismissed.

BENTON and LEWIS, JJ., CONCUR.

      . Such complications would include changing the already printed ballots, reprogramming the memoiy cards at the voting stations, and reconfiguring the computer databases.

      . At oral argument the parties reported that a majority of voters voted "yes.” However, neither an actual ballot nor the November 2000 election results are included in the record on appeal.

      . Appellee relies on Combs v. City of Naples, 834 So.2d 194 (Fla. 2d DCA 2002). There the court found that one of the plaintiffs did have taxpayer standing for the constitutional challenge because the complaint alleged that the city was violating the taxing and spending powers under the Florida Constitution. The opinion, however, is silent as to the exact nature of the challenge. We, therefore, fail to see how it supports appellee’s position and are unable to determine whether it is in conflict with this opinion or any cases cited herein.

      . Appellee relies on the First (freedom of speech and expression) and Fourteenth (equal protection) Amendments to the United States Constitution; Article I, Section 4 (freedom of speech and press) and Article III (legislature) of the Florida Constitution; chapter 86, Florida Statutes (the declaratory judgment statute); and section 125.01(l)(y), Florida Statutes (Fla.2000). None of appel-lee's assertions, however, constitute a constitutional challenge to the taxing or spending power of the County.


text:
    Virgel NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3935.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Virgel Nelson, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant’s refiling his mandamus petition in the Twelfth Judicial Circuit in and for DeSoto County, naming as the respondent the State of Florida Department of Corrections.

FARMER, C.J., STONE and POLEN, JJ., concur.


author: BROWNING, J.

text:
    Anthony SCIPPIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3691.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    Nancy A. Daniels, Public Defender and Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant pled guilty to sale of cocaine within 1,000 feet of a school and possession of cocaine with intent to sell within 1,000 feet of a school, and was sentenced in accordance with his agreement to serve 14 years of incarceration as a habitual offender. Appellant now alleges that the trial court erred in sentencing him as a habitual offender as to the second count, and that the trial court erred in denying his motion to withdraw his plea. We reverse.

The state concedes the first issue, and correctly so, because a habitual offender sentence on possession of a controlled substance with intent to sell is illegal. See, e.g., § 775.084(1)(a)3, Fla. Stat. (2000); Peterson v. State, 743 So.2d 1134, 1135 (Fla. 1st DCA 1999). Appellant is entitled to relief despite the fact that he agreed to habitualization as part of his plea. See Bover v. State, 797 So.2d 1246 (Fla.2001).

Appellant’s second issue also requires reversal. Appellant had the right to conflict-free counsel to argue his motion to withdraw plea. See Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002). Here, it is clear from the record that Appellant had a conflict with his counsel insofar as his motion to withdraw plea was concerned; thus, the trial court erred in failing to appoint conflict-free counsel to represent Appellant. See Bullard v. State, — So.2d -, 2003 WL 22002696 (Fla. 1st DCA Aug.26, 2003); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002).

Accordingly, we REVERSE the sentence and the order denying the motion to withdraw the plea, and REMAND for re-sentencing. Should the state not agree to resentencing, Appellant may withdraw his plea and the matter, including all charges filed against Appellant, shall proceed to trial. Should the state agree to resentenc-ing, Appellant may, after appointment of conflict-iree counsel, present his motion for withdrawal of plea for disposition. See Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000).

BENTON and PADOVANO, JJ., CONCUR.


text:
    Ed A. CRAPO, as Property Appraiser of Alachua County, Florida, Von Fraser, as Tax Collector for Alachua County, Florida, and Jim Zingale, as Director of the Florida Department of Revenue, Petitioners, v. CITY OF GAINESVILLE, Florida, Respondent.
    No. 1D03-2030.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    Sherri L. Johnson and John C. Dent, Jr., of Dent & Associates, P.A., Sarasota, for petitioner Ed A. Crapo.
    William E. Harlan, Jr., Gainesville, for petitioner Von Fraser.
    Charlie Crist, Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for petitioner Jim Zingale.
    Marion J. Radson, Elizabeth A. Wara-tuke, and Raymond O. Manasco, Jr., Gainesville, for respondent.
   PER CURIAM.

Petitioners sought to dismiss the City of Gainesville’s complaint below, asserting that it constituted a challenge to a tax assessment, but that the trial court lacked subject matter jurisdiction because the complaint had not been filed within the 60 day statute of nonclaim set forth in section 194.171(2), Florida Statutes (2001). The trial court declined to dismiss the complaint, finding that it was a challenge to the property appraiser’s tax classification of the property at issue, rather than to a tax assessment, and that section 194.171(2) was thus inapplicable. We conclude that the trial court erred in so holding. See Ward v. Brown, — So.2d -, 28 Fla. L. Weekly D731, 2003 WL 1088219 (Fla. 1st DCA Mar.13, 2003), review granted, 848 So.2d 1157 (Fla. July 14, 2003). Accordingly, the petition for writ of prohibition is granted, the order denying the motions to dismiss is quashed, and the matter is remanded to the trial court with directions to dismiss the City’s complaint.

PETITION FOR WRIT OF PROHIBITION GRANTED.

WEBSTER, DAVIS and BROWNING, JJ., concur.


author: WEBSTER, J.

text:
    William A. FLOYD, Jr., as personal representative of the Estate of Ciara Floyd, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, State of Florida, Appellee.
    No. 1D02-4282.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    C. Valentine Bates of Bates & Brown, P.A., Gainesville, for Appellant.
    Charlie Crist, Attorney General; Denis Dean, Special Counsel, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant, as personal representative of the estate of Ciara Floyd, seeks review of a summary final judgment entered against it, and in favor of appellee, in a wrongful death action. Because our review of the record satisfies us that genuine issues exist as to material facts, and that appellee has failed to demonstrate that it is entitled to a judgment as a matter of law, we reverse.

Three-year-old Ciara was murdered by her mother’s boyfriend while in the custody of her mother, with whom the boyfriend resided. The complaint alleged that, in the six months preceding her death, two reports had been made to appellee that Ciara appeared to have bruises and other indications of abuse; that the individual assigned by appellee to investigate the matter was told that the boyfriend had a history of abuse; that, after investigating the matter, the investigator returned Ciara to her mother, knowing that the boyfriend was still living there; and that, within weeks, Ciara was murdered by the boyfriend, who ultimately pled guilty to the crime. According to the complaint, appel-lee was negligent when it returned Ciara to her mother’s household, knowing of the boyfriend’s past history of abuse, and that negligence was the proximate cause of Ciara’s death. Appellee denied the material allegations of the complaint, and raised several affirmative defenses. Following discovery, appellee filed a motion for summary judgment, which the trial court granted by an order which provides no insight into the thought process by which it arrived at its decision. This appeal follows.

Our standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Our task is to determine whether any genuine issue of material fact exists and whether the trial court has correctly applied the law to the facts, after having drawn every possible inference in favor of appellant (as the party against whom the summary judgment was rendered). E.g., Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); Thompson v. Gallo, 680 So.2d 441, 443 (Fla. 1st DCA 1996). “A summary judgment is appropriate only when ‘the facts are so crystalized that nothing remains but questions of law and there is not the ‘slightest doubt’ as to any issue of material fact.” Aloff v. Neff-Harmon, Inc., 463 So.2d 291, 294 (Fla. 1st DCA 1984). “[I]f the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the ... summary judgment must be [reversed].” Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991). Moreover, “[sjummary judgments should be cautiously granted in negligence ... suits.” Moore, 475 So.2d at 668.

Our review of the record satisfies us that genuine issues exist as to facts material to the question of whether appellee was negligent. Appellee argues that the summary judgment should, nevertheless, be affirmed because the facts demonstrate that it is immune from suit pursuant to either section 768.28 or section 415.511, Florida Statutes (1995). We disagree.

In Department of Health & Rehabilitative Services v. Yamuni, 529 So.2d 258 (Fla.1988), a case involving substantively indistinguishable facts from this one, the court held that the Department’s investigator’s actions were operational-level, rather than planning-level, activities and that, therefore, the Department was not entitled to immunity pursuant to section 768.28. Applying the case-by-case analysis mandated by Yamuni, we conclude that Yamuni controls here, and requires the further conclusion that appellee is not entitled to section 768.28 immunity.

Appellee also claims that summary judgment was appropriate because it had statutory immunity pursuant to section 39.203, Florida Statutes. However, the cause of action accrued in 1996, and section 39.203 did not come into being until 1998, when it replaced section 415.511. Ch. 98-403, § 33, Laws of Fla. Accordingly, the applicable version of the statute is section 415.511, Florida Statutes (1995), which provides in pertinent part:

(l)(a) Any person, official, or institution participating in good faith in any act authorized or required by ss. 415.502-415.514, or reporting in good faith any instance of child abuse to any law enforcement agency, shall be immune from any civil or criminal liability which might otherwise result by reason of such action.

Section 415.502 states that the legislative intent behind sections 415.502 to 415.514 “is to provide for comprehensive protective services for abused or neglected children ... by requiring that reports of each abused or neglected child be made to the Department of Health and Rehabilitative Services [appellee’s predecessor] in an effort to prevent further harm to the child or any other children living in the home.... ” Appellee relies on Department of Health & Rehabilitative Services v. Dougherty, 700 So.2d 77 (Fla. 2d DCA 1997), which held that the Department was immune pursuant to section 415.511(l)(a) in an action brought by parents alleging that their children had been improperly removed from their home due to the negligent investigation of a child abuse complaint. Appellant correctly responds that Dougherty is inapplicable.

Citing Yamuni, the court in Dougherty said that section 415.511(l)(a) protected the Department when “carrying out its statutory duties on behalf of the protected class, i.e., the allegedly abused child.” Id. at 79. However, it also said that “Sovereign immunity [would] not apply ... to persons or institutions that fail to carry out the protective measures.” Id. As Dougherty clearly demonstrates, section 415.511(l)(a) was intended to protect those who might be overzealous in protecting children from potential abuse; it was not intended to protect those who fail to fulfill their duty to protect children. Because appellant alleged that appellee failed to fulfill its duty to carry out protective measures, appellee is not immune from liability pursuant to section 415.511(l)(a). Appel-lee’s interpretation of section 415.511(l)(a) would turn the statutory scheme on its head by protecting the entity charged with protecting children (appellee) from actions by (or on behalf of) children alleging failure to fulfill that duty. See Yamuni, 529 So.2d at 262 (rejecting the same argument made regarding section 827.07(7), the predecessor to section 415.511(1)(a)).

We conclude that the record demonstrates that genuine issues exist as to material facts, and that it does not demonstrate that appellee is entitled to a judgment as a matter of law. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

KAHN and POLSTON, JJ., CONCUR.


text:
    Melvin BURKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0813.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant filed a Rule 3.850 motion for postconviction relief, asserting five grounds. The trial court summarily denied the motion, holding that all claims were either procedurally barred or conclusively refuted by the record. We affirm as to all but one of the grounds raised. The attachments to the trial court’s order do not conclusively refute appellant’s claim that his trial counsel was ineffective for failing to file a notice of expiration of speedy trial time. Therefore, we reverse as to that issue, and remand to the trial court with directions either to attach portions of the record conclusively showing that appellant is not entitled to relief or to hold an evidentiary hearing.

Appellant alleged that his trial counsel failed to file a notice of expiration of speedy trial time, and that his trial occurred well after the 175-day period prescribed by Florida Rule of Criminal Procedure 3.191. He also addressed the issue of prejudice by alleging that his counsel’s inaction: (1) precluded his discharge; (2) allowed the state additional time to prepare its ease, which resulted in a key witness changing her story to appellant’s detriment; and (3) precluded the speedy trial issue from being raised on direct appeal. By alleging deficient performance of counsel and a reasonable probability of a different outcome in the absence of the deficient performance, appellant has stated a facially valid claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To summarily deny appellant’s facially sufficient claim, the trial court was required to attach to its order copies of the files or records conclusively showing that appellant was not entitled to relief. Fla. R.Crim. P. 3.850(d). The trial court attached only a “Progress of Case” sheet. This was insufficient for two reasons. First, the document appears to be clerk’s notes, rather than a portion of the record. See Collins v. State, 835 So.2d 373, 373 (Fla. 1st DCA 2003), citing Mayo v. State, 825 So.2d 1006, 1006 (Fla. 4th DCA 2002)(noting that “the records attached to the trial court’s order denying relief appear to be nothing more than clerk’s notes and do not conclusively refute the claim”). Second, nothing in the document conclusively shows either that the delay was attributable to any action on the part of appellant or that appellant was otherwise not entitled to discharge under Rule 3.191. Thus, the trial court’s summary denial of relief on the first ground was improper. See Johnson v. State, 840 So.2d 369, 370 (Fla. 1st DCA 2003); Brown v. State, 829 So.2d 975, 976 (Fla. 1st DCA 2002).

As to all grounds raised except the first, the trial court’s order is affirmed. As to the first ground, the order is reversed, and remanded with directions either to attach portions of the record conclusively refuting appellant’s entitlement to relief or to hold an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BARFIELD, WEBSTER and BROWNING, JJ., concur.


author: WARNER, J.

text:
    Zolinda KIRIAKIDIS, Appellant, v. Kiriakos KIRIAKIDIS, Appellee.
    No. 4D02-1584.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.

      Steven L. Berzner of Steven L. Berzner, P.A., Fort Lauderdale, and Lynn G. Wax-man of Lynn G. Waxman, P.A., West Palm Beach, for appellant.
    Leon Margules of Entin, Margules & Della Fera, P.A., Fort Lauderdale, for ap-pellee.
   WARNER, J.

The wife appeals a final judgment of dissolution of marriage alleging that she was deprived of her right to counsel by the trial court’s order imposing a charging hen and requiring her to pay her withdrawing attorney his fee before substitute counsel could appear. She further alleges the court abused its discretion in denying her an extension of time to file an amended counterclaim while she was without counsel. We hold that where the wife’s first attorney withdrew, it was error for the court to condition her right to obtain substitute counsel on payment of the attorney’s bill, which had not been agreed to by the appellant. The court then erred in failing to grant an extension of time to allow the wife to file her amended pleading. The combination of these two errors requires reversal.

The husband petitioned for dissolution of marriage, and the wife filed a counter petition for annulment of the parties’ five-year marriage. She claimed that the husband fraudulently entered into the marriage to obtain legal immigration status in the United States. As a result of the marriage, the wife sacrificed her widow’s pension and social security benefits. The husband moved to dismiss the counter petition and, although the motion was argued in June 2001, it was not ruled on at that time. The wife’s attorney moved to withdraw from representation, citing irreconcilable differences with his client and the fact that he could not in good faith continue to represent her because she failed to complete a financial affidavit as required by the Family Court Rules. A hearing was held on the motion to withdraw on November 6, 2001, although the wife was not present. The court granted the motion, a copy of which was sent to the wife. In the order, the court stated: “The movant’s charging lien is acknowledged. Arrangements for payment of same shall be accomplished before substitution of another attorney for the Respondent is allowed pursuant to [Florida Rule of Judicial Administration] 2.060.” On the same date, the court granted the motion to dismiss the wife’s counter petition and gave her twenty days to amend. The order does not reflect service on the wife but, rather, on the withdrawing attorney.

Prior to the expiration of the twenty-day time period to amend her complaint, the wife filed a pro se motion for extension of time to file her amended counter petition. She alleged that she did not receive notice of her attorney’s withdrawal or the order dismissing her counter petition until five days before the time specified in the order for compliance. The wife also filed a motion for rehearing of the order allowing her attorney to withdraw, in which she alleged that she did not receive notice of the motion. She disputed the amount of fees and costs that her attorney alleged was due to him in his motion to withdraw. A hearing was held on her motions on January 8, 2002. The court denied the motion for rehearing as untimely and denied the motion for extension of time because the wife had yet to file a proposed amended counter petition or the missing financial affidavit. It also noted in its order of denial that although this was a dissolution of a five-year marriage with no children or property, the case had dragged on for nearly a year.

Through newly retained counsel, the wife filed a motion to vacate or modify the trial court’s order. Counsel was allowed to argue these motions to the court. At the hearing, counsel contended that the court had misapplied Florida Rule of Judicial Administration 2.060. The wife’s counsel also claimed that former counsel had failed to provide the wife with an invoice for his services, so she was unable to pay him and obtain substitute counsel. The court denied the motions and proceeded to a final hearing on the husband’s petition for dissolution. Counsel for the wife did not participate in these proceedings because the trial court’s order precluding substitution of counsel until payment of the prior attorney’s fees was still in effect.

While the wife claims that the court erred in imposing a charging lien, the “acknowledgment” of a lien does not constitute the imposition of a lien. “A charging lien is the right of an attorney to have the expenses and compensation due him for his services in a suit secured to him in the judgment, decree or award for his client. The lien attaches to the judgment but relates back and takes effect from the time of the commencement of the services rendered in the action.” Miles v. Katz, 405 So.2d 750, 752 (Fla. 4th DCA 1981) (citations omitted). Because there was no final judgment at the time that the attorney withdrew, there was nothing for a charging lien to attach to. Instead, we believe that the court merely acknowledged the attorney’s right to claim a lien should the wife ultimately secure an award in a final judgment of dissolution. In fact, the ordering of a charging lien on judgment proceedings is an acceptable method of securing payment of a fee to a withdrawing attorney. See Kurzweil v. Simon, 204 So.2d 254, 256 (Fla. 3d DCA 1967).

However, the court did err in ordering the wife to pay her withdrawing attorney’s fees prior to new counsel appearing in the action and in doing so misapplied rule 2.060(h). That rule provides:

Attorneys for a party may be substituted at any time by order of court. No substitute attorney shall be permitted to appear in the absence of an order. The court may condition substitution upon payment of or security for the substituted attorney’s fee and expenses, or upon such other terms as may be just. The client shall be notified in advance of the proposed substitution and shall consent in writing to the substitution. The written consent shall be filed with the court.

Fla. R. Jud. Admin. 2.060(h) (emphasis added). The rule applies where a party seeks to discharge counsel and substitute new counsel. It was originally included in the Rules of Civil Procedure in 1967 to set out the existing procedure for the substitution of attorneys as set forth in Diem v. Diem, 136 Fla. 824, 187 So. 669 (1939). See In re Fla. Rules of Civil Procedure 1967 Revision, 187 So.2d 598, 637 (Fla.1966). In Diem, the supreme court found the wife in a divorce proceeding had “a legal right to substitute counsel if she so desires, but in so doing it is her duty as well as that of counsel to procure the entry of an order allowing the withdrawal of some counsel and the substitution of other counsel.” 187 So. at 570. The court cited with approval the following language from the dissenting opinion of Justice Davis in Vosges Syndicate, Ltd. v. Everglades Club Co., 122 Fla. 267, 164 So. 881, 886 (1935):

While a party has a right to change his attorney at will, at any point in a suit, or on appeal, and without establishing or assigning any cause therefor, upon making application in a proper manner for the substitution yet the general rule is subject to the equally well-recognized exception that the attorney’s fees earned for services already rendered must be paid or secured by the client, where the applicantion [sic] of the client for a change of attorneys assigns no cause therefor.

Diem, 187 So. at 570 (emphasis added).

Even where a client discharges his or her attorney, an attorney is not entitled to payment prior to substitution where the amount of the fee has not been agreed to. In Cypen, Salmon & Cypen v. Chaackou, 130 So.2d 885, 885 (Fla.1961), the court explained that “the rule that payment (as distinguished from merely securing payment) of the fee of an attorney retiring from a pending case is necessary as a condition precedent to substitution only when the amount of the fee has been fixed by contract, and there is no dispute as to the right of the attorney to receive a definite portion of the fee which is due and unpaid.” Where the amount of the fee is undetermined, then the dispute between client and attorney should be decided in a separate action, and the trial court should not condition substitution of attorneys on payment but should protect the attorney’s right to payment through other means, such as bond. See Chaackou v. Chaackou, 122 So.2d 24, 27 (Fla. 3d DCA 1960).

Where the client is not seeking to discharge the lawyer, but the lawyer is seeking to withdraw for other reasons, the rule does not apply in the same way. In Riley v. Gustinger, 235 So.2d 364, 364 (Fla. 3d DCA 1970), an attorney withdrew from representation on the ground that “he could no longer represent” his client. The client and attorney had not agreed as to the amount of the attorney’s fee, yet the trial court conditioned the client’s ability to substitute counsel on payment of the fee to the withdrawing attorney. The third district reversed the fee judgment entered in favor of the attorney. Id. at 366. Because the attorney voluntarily withdrew, the determination of compensation should have been made in a separate action, not in a summary proceeding in the middle of the pending case. Id. at 365. The court further stated:

Where a litigant’s employed attorney withdraws, the litigant is free to employ other counsel to represent him in the remainder of the cause. There is no more reason to impose a condition on that right than there would be to impose a condition on the right of a litigant to employ an attorney to represent him at the outset of a case.

Id. at 365-66.

Here, the attorney withdrew. He was not discharged by the wife. The court ordered the wife to pay his fee, even though there had been no determination as to how much was owed. Yet the wife was precluded from obtaining new counsel because she could not pay the fee to her prior counsel. The court abused its discretion in entering an order compelling payment of the former attorney’s fees pri- or to appearance of new counsel for the wife.

We conclude that despite the fact that the right to counsel is not absolute in a civil proceeding, see Onett v. Ahola, 780 So.2d 979, 980 (Fla. 5th DCA 2001) (citing State v. Weeks, 166 So.2d 892 (Fla.1964)), the court’s order precluding the wife from obtaining new counsel prior to paying her former attorney’s fees, combined with its refusal to grant the wife additional time in which to amend her pleadings, was an abuse of discretion. The wife did not receive the order allowing her prior counsel to withdraw or the order dismissing her counter petition and giving her twenty days to amend the pleading until five days prior to the expiration of that twenty-day period. The court did not grant any stay of the proceedings in order for the wife to secure new counsel after her attorney’s withdrawal. The wife immediately moved for an extension of time in which to file an amended complaint. Even though she had not filed a proposed amended complaint by the time of the hearing held a month and a half after the motion to amend was filed, the wife had no counsel and was not voluntarily proceeding without counsel.

In denying the motion for extension of time, the court noted that the case had been pending for a considerable period of time. A good part of that period of delay, however, was attributable to the failure of the trial court to enter an order on the motion to dismiss.

The effect of the court’s two orders was to deny the wife’s ability to amend her counter petition, although she had not abused the privilege. See Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996) (holding “leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”). The wife was also required to go to trial without the services of an attorney. We conclude that the actions of the trial court deprived the appellant of a fair proceeding and constituted an abuse of discretion. We therefore reverse and remand for further proceedings. So as not to create any further delays, we direct that the wife shall have twenty days from the issuance of the mandate in this case to serve her amended counter petition.

POLEN and GROSS, JJ., concur.


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    Phyllis MONTVILLE and Maxine Starnes, Appellants, v. MOBILE MEDICAL INDUSTRIES, INC., a Delaware corporation, f/k/a Mobile Medical Industries, LLC, Appellee.
    No. 4D02-5014.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.

      Daniel S. Rosenbaum and Laurie Stil-well Cohen of Becker & Poliakoff, P.A., West Palm Beach, for appellants.
    Ronald M. Gaché and Jeremy E. Slush-er of Broad & Cassel, West Palm Beach, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

Appellants, former employees of appel-lee corporation, were temporarily enjoined from competing with appellee for a period of time pursuant to provisions of their respective employment agreements. On this non-final appeal from the injunction, appellants’ sole issue is the alleged inadequacy of the bond required of appellee. Appellee’s cross-appeal asserts error in limiting the duration of the injunction, as to appellant Starnes, to a period of time less than that required by her written employment agreement. We affirm as to both the appeal and the cross-appeal but limit our discussion to the former.

Appellant Phyllis Montville was President, and appellant Maxine Starnes was Regional Administrator, of the home health care division of appellee corporation. Both Montville and Starnes signed non-competition, non-solicitation agreements with appellee in October 2001. The agreements provided that after employment was terminated, unless termination was without cause, the employee would neither compete with appellee, nor solicit appellee’s personnel or referral sources, for a period of twelve months after termination. In July 2002, Starnes voluntarily resigned. The following month Montville was fired, allegedly for cause.

Appellee filed this lawsuit in October 2002, seeking injunctive relief and damages based on its assertions that both Montville and Starnes had assisted a competitor in forming a new, competing home health care business in Palm Beach County and, on behalf of the competitor, had solicited, and was continuing to solicit, ap-pellee’s personnel and its referral sources, contrary to the terms of their respective agreements. The court held an evidentia-ry hearing. Relevant to this appeal, Mont-ville testified that although she had earned approximately $800,000 per year while working for appellee, she had not worked since being fired three months previously but was continuing to receive her base salary from appellee. Starnes testified that she was earning $75,000 per year in her new position as Administrator for the competitor concern. The court entered temporary injunction, conditioned upon ap-pellee posting bond in the amount of $50,000, enjoining Starnes from competing with appellee for a period of three months, and from soliciting appellee’s personnel or referral sources for a period of six months, to run from the date of the order.

Appellants acknowledge that the trial court is generally afforded discretion in setting the amount of bond for a temporary injunction entered pursuant to Rule 1.610(b), Fla R. Civ. P, and that abuse of discretion is the standard of review of the grant or denial of a temporary injunction. See Net First Nat'l Bank v. First Telebanc Corp., 834 So.2d 944 (Fla. 4th DCA 2003); Banyan Lakes Home Owners Assn. v. Sch. Dist. of Palm Beach County, Florida, 823 So.2d 247 (Fla. 1st DCA 2002). They argue, however, that the statutory language of section 542.335(l)(j), Florida Statutes (2002), which specifically relates to enforcement of covenants restricting competition, removes the court’s discretion in setting bond for a temporary injunction enforcing a restrictive covenant. That is so, appellants argue, because the rule requires bond in an amount the court deems proper, whereas the statute requires a proper bond. While ingenuity in practicing the art of advocacy should not be discouraged, we must certainly give this argument a failing grade. The language of the rule is substantively indistinguishable from the language of the statute. Both simply require a proper bond, set by the court in the exercise of its sound judicial discretion. We hold that the standard of review of an order granting a temporary injunction under the statute is precisely the same as the standard of review of the grant or denial of any temporary injunction.

Without question, the purpose of the bond required as a condition to issuance of a temporary injunction is to provide a sufficient fund to cover the adverse party’s costs and damages if the injunction is wrongfully issued. Richard v. Behavorial Healthcare Options, Inc. 647 So.2d 976 (Fla. 2d DCA 1994). Damages include attorney’s fees and court costs. Town of Davie v. Sloan, 566 So.2d 938 (Fla. 4th DCA 1990). Since the damages recoverable for a wrongfully issued injunction are ordinarily limited to the bond, Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018 (Fla.1989), the bond initially set by the court constitutes the court’s determination of the foreseeable damages based on the good faith representations that are before it. Id, at 1021. Appellants contend their foreseeable damages, including their combined loss of salary and attorney’s fees and costs, having been shown to be at least $400,000, the court abused its discretion in setting bond in the amount of $50,000.

We conclude no clear abuse of discretion has been demonstrated. Appellants’ argument in reference to the amount of their foreseeable salary loss fails to take into account such mitigating factors as the payments of base salary appellee continued to make to Montville, the reduced time restraints placed on Starnes, the possibilities of employment opportunities in non-competitive areas, and so on. Additionally, while foreseeable damages are considered a major factor in setting temporary injunction bond, the court is permitted to consider factors other than the anticipated damages and costs, including the adverse party’s chances of overturning the temporary injunction. See Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047 (Fla. 2d DCA 1993). Here, although the court did not explicitly so state, it appears likely that the court properly took into consideration the unlikelihood of appellants’ overturning the temporary injunction. Finally, and weighing heavily in according deference to the trial court’s discretion in these matters, is the recognition that the trial court’s initial determination is often necessarily based upon speculative matters and should subsequent events prove the bond amount to be either insufficient or excessive, an affected party is free to move for modification. See Parker, 544 So.2d at 1021.

AFFIRMED.

STONE and HAZOURI, JJ., concur.

      . Montville was similarly enjoined, but for a period of twelve months. The cross-appeal does not involve the duration of the restraint on her.

      . Appellee cites Spradley v. Old Harmony Baptist Church, 721 So.2d 735 (Fla. 1st DCA 1998) for the proposition that because appellants directly appealed the injunction order without first bringing before the trial court a motion to dissolve under Rule 1.610(d), the appellate court is precluded from inquiry into factual matters presented at the evidentiary hearing. An examination of the cases recognizing such limitation on appellate review, which can be traced back to Hotel-Motel, Restaurant Employees & Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc., 290 So.2d 479 (Fla.1974), discloses that each involved a temporary injunction entered without notice and the defendant elected to forego the opportunity to present evidence before the trial court by failing to file a motion to dissolve. Thus, in those cases the only matters to be considered on direct appeal were the legal sufficiency of the pleadings and the supporting affidavits, and whether the lower court complied with the requirements of law. However, in cases such as the one now before us, where there has been a full evidentiary hearing after notice (and a timely filed motion for rehearing, as well), the Black Angus proposition has no applicability.


text:
    Reinaldo CAPIRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2066.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Reinaldo Capiro, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).


text:
    Felix CORDOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2208.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.

      Felix Cordova, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Felix Cordova appeals an order denying his motion for additional credit for time served. Based on the information presented in the motion, we find no error in the calculation of the credit for jail time served prior to sentencing. Defendant-appellant Cordova is entitled to credit only for the time incarcerated prior to sentencing, not (as he incorrectly argues) credit for time free on bond prior to sentencing. See § 921.161(1), Fla. Stat. (2001).

Regarding the question of credit for time served subsequent to sentencing, we affirm the order without prejudice to the defendant to exhaust his administrative remedies within the Department of Corrections. See Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003); Lucio v. State, 673 So.2d 195 (Fla. 3d DCA 1996).

To the extent that defendant may be claiming to have exhausted his administrative remedies, we affirm without prejudice to defendant filing a petition for mandamus and attaching thereto documentation from the Department of Corrections reflecting the postsentencing credit awarded and the Department’s ruling on his inmate grievance. Lucio.

The defendant argues that he is entitled to credit for the entire time period between sentencing and his delivery to the Department of Corrections, including time he was free on postjudgment release. He derives that interpretation from the wording of subsection 921.161(2), Florida Statutes (2001), which requires the jailer to certify several postjudgment time periods, including any periods after sentence that the prisoner was at liberty on bond. Id. § 921.161(2)(b); see State v. Peters, 526 So.2d 747 (Fla. 1st DCA 1988).

In reality, “time spent” under subsection 921.161(2) refers back to a similar phrase used in subsection 921.161(1) and means time spent in custody. See id. § 921.161(1) (“time she or he spent in the county jañ”). The jailer is required to certify the dates that the defendant was at liberty on bond or otherwise, id. § 921.161(2)(b), (c), so that these periods can be subtracted from the total time period between sentencing and delivery to the Department of Corrections. The defendant is only entitled to credit for the time incarcerated between sentencing and delivery to the Department of Corrections.

Affirmed.

       Subsection 921.161(2), Florida Statutes, states:
      (2) In addition to other credits, a person sentenced to imprisonment in custody of the Department of Corrections shall receive credit on her or his sentence for all time spent between sentencing and being placed in custody of the department. When delivering a prisoner to the department, the custodian of the local jail shall certify to it in writing:
      (a)The date the sentence was imposed and the date the prisoner was delivered to the department.
      (b) The dates of any periods after sentence the prisoner was at liberty on bond.
      (c) The dates and reasons for any other times the prisoner was at liberty after sentence.
      (d) The offender-based transaction system number or numbers from the uniform arrest report or reports established pursuant to s. 943.05(2).
      The certificate shall be prima facie evidence of the facts certified.


author: TORPY, J. GRIFFIN, J.,

text:
    Jama Jamar JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2366.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

Appellant was convicted of possession of a firearm by a convicted felon and sentenced to fifteen years in prison, three years of which were designated a minimum mandatory sentence. Appellant raises numerous issues on appeal, only two of which merit discussion: his competency to proceed to sentencing after trial and the propriety of the minimum mandatory portion of his sentence. On both of these issues we determine that the lower court erred. We therefore reverse and remand for re-sentencing.

On August 8, 2000, a jury convicted Appellant of possession of a firearm by a convicted felon. Sentencing was deferred. Sixteen days after trial, counsel for Appellant filed a motion to determine competency. The court appointed experts who examined Appellant and concluded that he was incompetent to proceed further. In June of 2001, the court adjudged him incompetent and ordered him placed in the custody of the Department of Children and Families (“DCF”) for purposes of treatment to restore his competency, pursuant to rule 8.212(c)(3), Florida Rules of Criminal Procedure.

Three months after Appellant was committed, DCF informed the court by letter that Appellant’s competency had been restored. He was returned to the county jail approximately thirty days later. After numerous continuances due to three changes in counsel, Appellant was scheduled for sentencing on July 8, 2002. In the meantime, however, in April of 2002, the court had appointed one of the original examining doctors to re-examine Appellant to determine his competency to proceed to trial on other charges that were part of the same information as the possession of firearm charge, but which had been previously severed.

At the July 8, 2002, sentencing hearing, Appellant’s counsel requested a continuance until the competency evaluation could be completed. Counsel told the court that the court-appointed psychologist had called him five days earlier and had expressed “concern,” but had not yet evaluated Appellant. Apparently the doctor had attempted to see Appellant at the jail, but did not know that Appellant had been released on bond. Counsel further informed the court that the psychologist was on vacation until July 15th. The State countered that there had been a substantial delay in resolving the matter and noted that the evaluation could have been done earlier. It further urged the court to proceed with sentencing expressing concern that Appellant was out on bond. The court thereafter inquired as to Appellant’s current status. Counsel for the State indicated that Appellant’s current status was one of competency. The record is unclear as to defense counsel’s response to the court’s inquiry. The court thereupon denied the continuance and sentenced Appellant. Immediately prior to the pronouncement of sentence, however, defense counsel again objected stating that his client “still feels competency should be an issue before proceeding to sentencing.”

Appellant claims that the court erred by not granting his continuance. The State, citing Hunter v. State, 660 So.2d 244 (Fla.1995), counters that no bona fide challenge to Appellant’s competence was raised. We do not find either argument to be dispositive. We do find, however, that the lower court should not have sentenced Appellant before having first adjudged him competent to proceed, and accordingly, vacate Appellant’s sentence.

Rules 3.212(c)(6) and (7), Florida Rules of Criminal Procedure, provide that within 30 days of receiving notice that a defendant has regained competence, a court shall hold a hearing to determine if a defendant is competent to proceed. If the court so determines, it must adjudicate the defendant competent to proceed. Here, the record reveals that no such hearing was held, no such adjudication was made, and defendant’s legal status at the time of sentencing was still one of incompetence. While the State asserted Appellant was competent to proceed, the State, in so asserting, appears to have been relying only on DCF’s letter and not on any prior adjudication of competency by the court. Without such an adjudication, it was error to proceed to sentencing.

Appellant also challenges the propriety of a three-year minimum mandatory sentence imposed pursuant to section 775.087(2)(a)l., Florida Statutes (2002), for possession of a firearm during the commission of the underlying offense. We conclude that an ambiguity in that statute requires that we resolve this issue in Appellant’s favor under lenity principles embodied in section 775.021(1), Florida Statutes (2002).

Section 775.087(2)(a)l., Florida Statutes, provides in pertinent part as follows:

Any person who is convicted of a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated assault;
g. Aggravated battery;
h. Kidnapping;
i. Escape;
j. Aircraft piracy;
k. Aggravated child abuse;
l. Aggravated abuse of an elderly person or disabled adult;
m. Unlawful throwing, placing, or discharging of a destructive device or bomb;
n. Carjacking;
o. Home-invasion robbery;
p. Aggravated stalking;
q. Trafficking in [various, listed controlled substances] ...; or
r. Possession of a firearm by a felon and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” ... shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense.

(emphasis supplied). The ambiguity is created by the use of the word “actually” to modify “possessed” in the first portion of the statute and by its omission in the latter part of the statute. Two potential constructions are urged: The State contends that the legislature, by its plain use of the language, intended that the ten-year minimum applies when the felon “actually” possesses a firearm but that the three-year minimum applies for certain offenses when possession is something other than “actual.” The trial judge accepted this argument and found Appellant’s conviction demonstrated possession of a firearm sufficient to impose the three-year minimum. An alternative construction, and one which was adopted by the Second District Court in Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002), is that the legislature intended that the three excepted crimes bear a three-year minimum sentence, rather than a ten-year minimum sentence, provided that “actual” possession is proven. In other words, the word “possessed” in the latter portion of the statute should be construed as “actual possession.” We do not think either construction is clearly manifested and, therefore, find the statute to be ambiguous in this regard.

In concluding that an ambiguity exists, we start by noting that the word “possession,” in the context of the prior version of section 775.087, was determined long ago to be ambiguous itself. Earnest v. State, 351 So.2d 957 (Fla.1977). The word could refer to ownership without physical control, physical control without ownership, constructive control, or even control that is imputed under an agency or principal theory. Id.; Webster’s New World College Dictionary, 4th ed. Here, however, the legislature has attempted to limit the ambiguity by providing a specific definition of “possession,” as follows:

For purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.

§ 775.087(4), Fla. Stat. (2002). Unfortunately, the statute provides no definition for the word “actually” or the phrase “actually possessed,” yet the phrase is interjected in some places but omitted in others, without consistency. For example, in subsection (2)(d), the legislature expresses its intent that “offenders who actually possess ... firearms ... be punished to the fullest extent of the law.” Subsection (3)(d), conversely, expresses the legislative intent regarding semiautomatic firearms using the exact same phrase except it omits the word “actually.” The same omission occurs in subsection (3)(a)l. Given the inconsistent use of the phrase, we are afforded little guidance as to what is meant by this language.

The State’s proposed interpretation of “actually possessed” is that the firearm is carried on the person. Appellant does not quarrel with this meaning. Thus, “actually” is a word of limitation because the statutory definition of “possessed” includes both physical possession and constructive possession. To accept the State’s interpretation of subsection (2)(a)l., however, would require that we interpret the word “possessed” in the latter part of this subsection as only referring to “constructive possession” even though no words of limitation are used that would alert us that we should not employ the statutory definition of “possessed.” Otherwise, a ten-year minimum would apply to “actual possession,” and a three-year minimum would apply to either “actual” or constructive possession, an obvious contradiction.

We conclude, therefore, that an ambiguity exists that must be resolved in Appellant’s favor. § 775.021, Fla. Stat. (2002). We accept the construction urged by Appellant and approved in Bund/rage. The ten-year minimum mandatory does not apply to this particular offense. The three-year minimum mandatory applies, but only if it is shown that Appellant “actually possessed” the firearm, which we construe to mean carried on his person. Having construed the statute in this manner, we must consider whether the trial court properly imposed the three-year minimum sentence here. Because the question of whether Appellant “actually possessed” the firearm was not determined by the jury, however, we hold that the court erred in imposing the sentence on Appellant.

Appellant was charged by information that tracked the language of section 790.23, Florida Statutes, and provided as follows: “[Appellant] ... did, having been convicted of a felony, unlawfully own or have in his care, custody, possession or control, a certain firearm_” No interrogatories were submitted to the jury. The verdict simply found Appellant guilty of “Possession of a Firearm by a Convicted Felon, as charged in the information.” The jury’s verdict failed to specify whether the finding of guilt was predicated upon ownership, custody, control, constructive possession, imputed possession or actual possession, nor was the evidence conclusive on this issue. Absent a jury finding of actual possession, the imposition of the minimum mandatory sentence was error. State v. Overfelt, 457 So.2d 1385 (Fla.1984); Bundrage, 814 So.2d at 1135. Upon resentencing, therefore, the minimum mandatory shall not be imposed.

In all other respects, the judgment is affirmed.

AFFIRMED in part; REVERSED in part and REMANDED.

THOMPSON, J., concurs.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

A word in support of the trial judge. He saw that the legislature had purposefully included “possession of a firearm by a felon” as subsection (r) in the list of offenses for which a ten-year , minimum mandatory is required in section 775.087(2)(a)l, Florida Statutes. He also saw that in the same sentence “possession of a firearm by a felon” was made subject to a three-year minimum mandatory. The only apparent difference was that a ten-year minimum mandatory applied to a person who “actually possessed” a firearm, but the three-year minimum mandatory applied to a person who merely “possessed” a firearm. Concluding that it would make no sense to interpret this statute, which expressly included this offense in the list of ten-year minimum mandatory crimes, in such a way as to make it impossible that the ten-year minimum mandatory could ever apply to this offense, the trial judge applied time-honored and battle-tested principles of statutory construction to conclude that the difference between “actually possessed” and “possessed” had significance. But he was wrong.

In my time, I have seen some odd statute drafting, but what section 775.087 does with “possession” of a firearm, in general, and “possession of a firearm by a felon”, in particular, should get a prize. Indeed, a ten-year minimum mandatory sentence for this offense is not available and there is no significance to the difference in terms between “actually possessed” and “possessed” as applied to “possession of a firearm by a felon.” The legislature simply intended a three-year minimum mandatory sentence for this crime that is expressly enumerated among the ones for which a ten-year minimum mandatory is required. The legislative history makes this clear.

In order to figure out what the legislature had in mind to qualify as “possession” for purposes of the three-year minimum mandatory, subsection (4) of section 775.087 is controlling:

For purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.

§ 775.087(4), Fla. Stat. (2002). As the majority opinion says, no finding that meets the statutory definition of “possession” for minimum mandatory sentencing purposes was made by the jury, and such a finding is required before the three-year minimum mandatory may be imposed. This is an instance where finding the defendant guilty “as charged in the information” is not enough.

      . In common parlance, "actually” means "really,” which adds little as a modifier when used in this context. Because both parties seem to be happy with the State's definition, however, we will accept it for the purpose of our analysis.

      . Staff of Fla. H. Comm, on Crime and Punishment, CS/CS/HB 113 (1999), Final Analysis (Mar. 24, 1999), Ch. 99-12, Laws of Florida.
      "The bill also requires a 3 year minimum mandatory for committing the crime of possession of a firearm by a felon.” Final Analysis 1.

        “Mandatory Sentencing

      The bill adds possession of a firearm to the list of enumerated offenses and makes this offense subject to a three year minimum sentence.” Final Analysis 6.

        "Felons Possessing Firearms

      The bill requires that a felony [sic] who is convicted of possessing a firearm receive a minimum of 3 years in prison.” Final Analysis 7.