author: THOMPSON, J. PETERSON, J., TORPY, J.,

text:
    Donald TAYLOR, Jr., Appellant, v. Terrie E. BONSALL, f/k/a Terrie E. Taylor, Appellee.
    No. 5D02-3046.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Steven J. Guardiano, Daytona Beach, and Eric K. Neitzke of Eric K. Neitzke, P.A., Daytona Beach, for Appellant.

      Gary E. Massey of Gary E. Massey, P.A., Altamonte Springs, for Appellee.
   THOMPSON, J.

Donald Taylor, Jr. (“father”) appeals an order granting Terrie Bonsall’s (“mother”) motion for modification of the parties’ final judgment of dissolution by extending his obligation to pay child support past their daughter’s eighteenth birthday. The father argues that under a stipulation between himself and the mother, he would be responsible for extended child support only if the court entered such an order prior to the child’s reaching age eighteen. No order extending the father’s obligation was entered before the child’s eighteenth birthday. Therefore, he concludes the mother and daughter must file a separate legal action for support. We agree.

FACTS

The mother and father were married on 29 December 1979, and had two children: Sterling Taylor, born on 4 July 1982, and Devon Taylor, born on 28 September 1983. The final judgment of dissolution, which was rendered on 24 April 1989, approved and incorporated the parties’ marital settlement agreement. In the settlement agreement, the mother was given primary residential custody of the two children, and the father was required to pay child support in the amount of $260 per month per child. This amount was approximately $120 per month over the guidelines amount, and the father also agreed to pay up to $50 per month for Devon’s medications. The settlement agreement provided that the father’s child support obligation would end “as each child attains the age of eighteen (18), marries, becomes self-supporting, enters the military service or departs this life, whichever event shall occur first.” Neither the settlement agreement nor the final judgment contained any reference to Devon’s mental or physical incapacity, although the parties knew she had limited physical and mental abilities.

The final judgment was amended by stipulation in 1995. In the stipulation, the parties agreed to increase the father’s child support to $750 per month total for both children. The stipulation was approved and incorporated in an amended final judgment rendered on 8 August 1995. The stipulation included the following paragraph:

7. This child support obligation shall cease upon the eighteenth birthday of the minor children (on July 4, 2000, with regard to Sterling Brittany Taylor, and on September 28, 2001 with regard to Devon O’Neal Taylor), unless Petitioner shall obtain an order of the court prior to those dates to extend the child support obligation, or upon the children’s marriage, death, entrance into military service, or becoming self-supporting, whichever comes first.

(Emphasis supplied.)

At the time of the 1989 final judgment of dissolution and the 1995 stipulation, both parties were aware that Devon was suffering an irreversible impairment of her brain function. The damage was caused when she suffered a seizure at about the age of sixteen or eighteen months. Devon is not totally incapacitated: testimony indicates that she dresses herself, brushes her teeth, and writes well enough to communicate. She is also talented at needlepoint. While the parties expect Devon to improve to a degree, they do not expect her to lead a normal, independent life. There has been no material change in Devon’s condition since the amended final judgment.

Before Devon turned age eighteen, the mother petitioned for modification of Devon’s child support, asking the court to extend it beyond her majority. However, the trial court did not render its order granting the mother’s petition for modification until nearly a year after Devon turned eighteen, missing the cut-off date of 28 September 2001, which was specified in the stipulation. The trial court found that a literal reading of paragraph seven of the stipulation would result in a forfeiture of Devon’s right to claim support as a dependent adult under section 743.07, Florida Statutes, because no order of extension was entered prior to Devon’s eighteenth birthday. The court ruled that the order related back to the date the mother filed the petition for modification of Devon’s child support. Thus, the court found that paragraph seven did not preclude the extension of child support, citing Ruiz v. Ruiz, 783 So.2d 361 (Fla. 5th DCA 2001) and distinguishing Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998). The court ordered the father “to continue to contribute support” for Devon after her eighteenth birthday pursuant to section 743.07, Florida Statutes. Because neither party had presented either evidence or argument as to the amount of support the father should pay, the court ordered the parties to attempt to resolve the amount amicably and failing that, to schedule a hearing for that purpose. In the interim, the father’s obligation would remain the same as that stated in the stipulation. The court reserved jurisdiction to determine any ar-rearage owed by the father and to rule on the mother’s attorney’s fee request.

ANALYSIS

Before beginning discussion of the issue in this case, perhaps it is best to discuss what this case is not about. First, both parents testified to their continuing commitment to support Devon. Each recognized Devon’s limited abilities and their obligation to support her. The father testified that he had agreed to pay more than the child support guidelines amount to support Devon because he knew she had special needs. He also testified that he attempted to help Devon create a needlepoint business to allow her to generate income, but that the mother would not cooperate. The father had also tried to establish a trust for Devon, but again, the mother would not cooperate. The mother, through counsel, agreed that she had a moral and a legal obligation to continue to support Devon. Thus, we are not concerned with parents who are attempting to avoid their obligation to support their child. The issue is whether the court presiding over the dissolution could enforce the stipulation of the parties, which required that an order modifying the final judgment to support Devon be entered before her eighteenth birthday, or whether an independent action must be filed.

First, both parents have a legal obligation to support Devon past her eighteenth birthday because she is dependent and will remain so. Section 743.07(2), Florida Statutes, provides that a court of competent jurisdiction can require parents to support a dependent child past the age of eighteen. The father argues that the trial court did not have jurisdiction to modify the final judgment because once Devon turned eighteen, an independent action was required to be filed, separate from the dissolution action, to determine the parents’ support obligations for their dependent adult child. See Perla v. Perla 58 So.2d 689 (Fla.1952) (“Generally, the obligation of a parent to support a child ceases when the child reaches majority, but an exception arises when the child is, from physical or mental deficiencies, unable to support himself’); Hastings v. Hastings, 841 So.2d 484 (Fla. 3d DCA 2003) (same). Further, he argues that since both parties have a legal obligation to support the child, simply modifying the final judgment to enlarge the time he has to support Devon does not adjudicate the mother’s responsibility. More important, he argues, the trial court could not adequately determine the father’s financial obligation without considering the mother’s finances and ability to pay child support.

The father relies upon this court’s opinion in Brown to support his contention. In Brown this court stated:

Where, as here, the father has fulfilled his child support obligation as adjudicated in the divorce decree, an independent action must be brought to adjudicate the father’s support obligation for an adult dependent child.

Id. at 477. The father argues that he fulfilled his previously adjudicated child support obligation because the amended judgment ordered support “until the minor children reach the age of eighteen, marry, die or become self-supporting.” The father acknowledges that in footnote two of the Brown decision, we stated that the dissolution court would be the proper forum to enforce or modify a child support order for an adult dependent child under certain circumstances. Brown, 714 So.2d at 477, n. 2. He points out, however, that this occurs only “where the dissolution court, in the original divorce decree, adjudicated support for the child to extend beyond the age of majority.” Id. The father concludes that since no judgment requiring continued support was entered before Devon became eighteen, the order modifying the final judgment was improvidently entered.

We find Brown persuasive. In Brown, the judgment incorporated the parties’ separation and property settlement agreement, which provided that the father pay support for the minor child until her twenty-first birthday, the age of majority at that time. The mother petitioned for modification, alleging that the child was mentally handicapped, having been diagnosed with cerebral palsy and mental retardation prior to the entry of the divorce decree. At the time of the mother’s petition, the child was twenty-six years old. This court affirmed the trial court’s dismissal of the petition stating the trial court’s jurisdiction to modify the father’s support ended when the child turned twenty-one, as stated in the divorce decree. We noted, however, that the adult dependent child still could file an independent action for support. In the instant case, the trial court found that Brown had no application because the petition to extend child support in Brown was not filed until after the dependent child’s majority, unlike the situation in this case where the petition was filed before the child reached eighteen.

The trial court’s attempt to distinguish the facts in Brown does not consider all of the facts in the case. It was not just the fact that the petition was filed after the child reached the age of majority that led to the dismissal in Brown. Pursuant to the specific terms of the divorce decree, the father’s support obligation, “as adjudicated in the divorce decree,” ended before the filing of the petition. Brown, 714 So.2d at 477. More particularly, in Brown, the following facts led to the conclusion that the father had fulfilled his child support obligations: (1) the original decree did not adjudicate support for the child beyond the age of majority, (2) the parties’ settlement agreement, which had been incorporated into the final decree, specifically stated that the support obligation would terminate when the child reached twenty-one, and (3) no petition for modification or extension was filed prior to the child’s reaching majority. Similarly, in this case: (1) the original decree did not adjudicate support for Devon beyond the age of majority, (2) the parties’ 1995 stipulation, which was adopted by the court, specifically stated that father’s support obligation would end on Devon’s eighteenth birthday, unless an order of extension was obtained before that date, and (3) no order of extension was obtained prior to Devon’s eighteenth birthday. The parties’ stipulation required an actual order extending support before Devon’s eighteenth birthday. But for the stipulation, the trial court would have had jurisdiction to extend Devon’s support beyond her eighteenth birthday because the petition was filed prior to that date.

The language in Ruiz relied upon by the trial court is inapplicable given the circumstances of this case. In Ruiz, the parties’ settlement agreement expressly recognized that the minor child was handicapped and “totally non-communicative.” Before the child reached the age of majority, the custodial father petitioned for continued support of the child beyond the age of majority. The order was not granted until after the child turned eighteen and based on Brown, the mother argued that the court lacked jurisdiction to enter the order. This court held that the trial court properly granted post-majority support, holding that this child, unlike the child in Brown, had been “effectively adjudicated dependent” prior to reaching age eighteen.

In conclusion, we hold Brown is applicable and that a separate action must be filed by the child joined by her mother. These parties bargained for the stipulation and both were represented by counsel and understood the import of that language. The father testified that had the mother obtained an order extending support before Devon’s eighteenth birthday, he could have set up a trust for her that would have been advantageous for him. The father testified, without contradiction, that he approached the mother with options, and the mother either told him not to make the arrangements or that she would get back to him arid never did. This is sufficient consideration for the stipulation which required that an order modifying child support be entered before the child reachéd eighteen. We do not find that it is viola-tive of public policy to require the parties to honor their stipulation. See DePoorter v. DePoorter, 509 So.2d 1141, 1144 (Fla. 1st DCA 1987). Further, we recognize that the right to support for an adult dependent child belongs to the child and not the parent. Thus, the child and the mother can file a separate action for support through her mother. Brown, 714 So.2d at 477.

REVERSED.

PETERSON, J., concurs in part with opinion.

TORPY, J., dissents with opinion.

PETERSON, J.,

concurring in part.

I agree with the result reached by Judge Thompson and his recognition that the right to support belongs to the child and not the mother. Once Devon reached eighteen years of age, she or a guardian, appointed pursuant to chapter 744, Florida Statutes (2002), were the only individuals authorized to seek support under section 743.07, Florida Statutes (2002). The mother had no continuing right to directly receive Devon’s section 743.07 payments for support without the safeguards of, and accountability required by the guardianship statutes.

I acknowledge that my stance is not consistent with Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980), cited in the dissent for the proposition that Devon’s mother has standing to make the claim on her behalf. Fagan required the father to make payments to the mother of a dependent child who had reached majority, stating that the mother was the proper party to bring an enforcement suit when payments were not made. No authority for the pronouncement was cited, but a footnote indicates that section 61.13(1), Florida Statutes (1978), was available as a remedy if any doubt or problem arose concerning the use of funds for the dependent’s benefit or should the dependent no longer reside with the mother. Section 61.13(1)(a) makes reference to the continuing jurisdiction for modification found necessary when a child reaches majority and provides that a court has continuing jurisdiction after initially entering a child support order to require an obligee to account. However, nothing in section 61.13(1)(a) dispenses with the necessity of an appointment of a guardian for an [sic] adult entitled to receive support. I am of the opinion that section 61.13(1)(a) merely enables the court ordering support to maintain jurisdiction to modify support and to require either the adult obligee or guardian of the incapacitated adult obligee to account to the court for the support ordered by it. Section 61.13(1)(a) does not enable either parent to receive support on behalf of the “obligee” as that term is used in the subsection and a term that I interpret to mean the adult dependent child entitled to receive support or the court-appointed guardian for that adult child.

Unless a guardian is appointed for a person eighteen years of age or older, it becomes awkward for a representative of that person to deal in the business community., For example, is the father required to make checks payable to the mother for Devon’s support or directly to Devon? If the checks are made to Devon, what authority does the mother have to negotiate the checks? How are bank accounts or property interests to be titled?

Finally, section 744.301, Florida Statutes (2002), provides that parents are natural guardians of their children during minority. It is my view that the mother lost all authority to represent Devon’s interest or enforce any section 743.07 support when Devon reached majority. Only Devon or a guardian appointed pursuant to chapter 744, Florida Statutes, has the right to seek section 743.07 support against either or both the mother and father after majority was attained. The suggestion that the mother may be entitled to bring the action pursuant to Florida Rule of Civil Procedure 1.210(b) as Devon’s next friend is noted but not reflected in the record. The motion has simply requested continued payments for child support as well as for the mother’s attorney’s fees. Nothing in the final judgment suggests accountability by the mother as a fiduciary for Devon. I find this troubling as all funds collected should be totally for Devon. Avenues are available to the mother to act on behalf of the child, and this court should not lose sight of the fact that they were not taken and should not be supplied after the fact.

TORPY, J.,

dissenting.

I disagree with the result reached by the majority and, therefore, respectfully dissent. Clearly, Devon has a substantive right under common law (preserved by section 743.07(2), Florida Statutes (2001)) to continued support beyond the age of majority. Perla v. Perla, 58 So.2d 689 (Fla.1952); Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998). No challenge has been made to the lower court’s jurisdiction over the subject matter or over the parties. Appellant further concedes that Ap-pellee had standing to petition the court for support for Devon. Thus, the only argument available to Appellant, and the one with which my esteemed brother Judge Thompson agrees, is that the mother’s agreement creates a procedural bar that prevents the court from entering judgment in the original divorce action. I am not persuaded by this argument for several reasons.

First, as no one disputes, the substantive right to continued support belongs to Devon, not her mother. Although Devon’s mother initiated the claim, it was made on behalf of Devon. Thus, I fail to see how Devon’s mother’s signature on the stipulation can affect Devon’s right to collect support. Certainly, Devon’s mother could not barter away Devon’s substantive right to support. See Serio v. Serio, 830 So.2d 278, 280 (Fla. 2d DCA 2002) (parents may not waive child support by agreement because the right belongs to the child). It logically follows, then, that Devon’s mother has no authority to waive her procedural remedy.

Second, even if the stipulation is otherwise binding and applicable, the order was “obtained” prior to Devon’s eighteenth birthday because the order relates back to the date on which the petition was filed. Ruiz v. Ruiz, 783 So.2d 361 (Fla. 5th DCA 2001). If this were not the rule, the court’s power to grant a petition to modify might be vitiated by pretrial delays or a crowded court calendar, even when the petition is filed well in advance of the child’s eighteenth birthday.

Finally, the stipulation relates only to extensions of child support. The support to which Devon is entitled as a disabled adult is not “child support,” because Devon is no longer a child. At the very least the stipulation is ambiguous and should be construed in Devon’s favor because public policy favors that she receive her support without delay.

Judge Thompson’s reliance upon Brown is misplaced in my view, and the trial court was correct in distinguishing that case. In Brown, the petition to modify was filed after the child reached the age of eighteen. That was the only relevant fact leading the court to conclude that the lower court lacked jurisdiction. Here, Appellant concedes that the trial court retained jurisdiction to enter the challenged order, and even absent his concession, this conclusion is mandated by our decision in Ruiz. Brown, therefore, is inapposite.

Although Judge Thompson makes much of the fact that Appellant professes to acknowledge his obligation of support, I fail to see the relevance of this discussion to the legal issue here. Even if relevant, however, I don’t interpret this record in the same way as does my colleague. Judge Thompson says that we are “not concerned [here] with parents who are attempting to vitiate their obligation to support their child.” That is exactly what concerns me in this case. While these parents are mired in the typical accusations and recriminations that are too frequently associated with post-divorce fallout, it is Devon who continues to suffer. Under these circumstances, it is hard for me to express even the slightest praise for either parent, but I am especially skeptical of Appellant’s seemingly disingenuous assertion that he is acting in Devon’s best interest, while he maintains a hyper-technical procedural argument, for some apparent tactical reason, with the result being that Devon’s acknowledged right to support has been delayed by many months.

As to the concurring opinion of my learned colleague Judge Peterson, although I am initially somewhat drawn to the logic in what he argues, in my view, his position is not properly advanced here because, as he readily admits, it contravenes a prior precedent of this court and is therefore more appropriately addressed by the full court. Moreover, Appellant concedes that Devon’s mother had standing under Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980), and Appellant himself has not urged that Fagan was wrongly decided.

Even if Judge Peterson’s position is properly advanced, however, I fail to see a good reason why we should put Devon through the added procedural hoop, and concomitant expense and delays, of a formal guardianship proceeding merely to obtain an order that the support, which everyone appears to acknowledge is due, be continued. I find nothing in the guardianship law that negates the right of a parent as next friend of a mentally disadvantaged adult to advance a right on behalf of the disadvantaged adult. Indeed, Florida Rule of Civil Procedure 1.210(b) expressly authorizes this and further provides a mechanism through which the trial judge may protect the incompetent person:

An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

Fla. R. Civ. P. 1.210(b) (emphasis added). Thus, our rules of procedure specifically address Judge Peterson’s accountability concerns.

In the final analysis, although the majority might take solace that this procedural hair-splitting will not adversely affect Devon because her right to support will be recognized in another forum, I am not likewise comforted, because, for Devon, this is clearly a case of justice delayed being justice denied.

I would affirm.

      . During a turbulent period in the mother’s life, Devon lived with the father and subsequently returned to live with the mother.

      . 743.07 Rights, privileges, and obligations of persons 18 years of age or older.
      (1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older, except as otherwise excluded by the State Constitution immediately preceding the effective date of this section and except as otherwise provided in the Beverage Law.
      (2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority.. ..

      . This court also stated, however, "[m]ore-over, the instant petition by the father was filed before that time. The court's order in respect to that petition relates back to the date of filing the petition.” Ruiz, 783 So.2d at 362. This statement appears to be dictum in the Ruiz case. Nonetheless, while it is true that the relief granted in the order “relates back” to the filing of the petition, it is not clear how the "date” of the order would "relate back” to the filing of the petition such that it could be said that the order was "obtained” on the date the petition was filed.

      . Rule 1.210(b) was made applicable to family cases through Florida Family Law Rule of Procedure 12.020.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Michael A. RENEMAN, Appellant, v. Mary JARVIS n/k/a Mary Perkins, Appellee.
    No. 2D03-698.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.
    William S. Chambers, IV, of McKinley & Chambers, P.A., Bartow, for Appellant.
    Jean Marie Henne, Winter Haven, for Appellee.
   CASANUEVA, Judge.

Michael A. Reneman, who was found in arrears in his child support payments, appeals an order that (1) imposed a second purge amount after he had purged himself of a prior finding of indirect civil contempt and (2) ordered him to pay $3000 towards his former wife’s fees and costs. We affirm in part and reverse in part.

Mr. Reneman’s marriage to Mary Jarvis was dissolved in 1991. Primary residential custody of their minor son was granted to Ms. Jarvis and Mr. Reneman was ordered to pay child support. Over several months spanning late 2001 and early 2002, the trial judge conducted proceedings to resolve Mr. Reneman’s supplemental petition to modify child custody and Ms. Jarvis’s motion for contempt for failure to pay child support. The judge found that Mr. Rene-man was in indirect civil contempt by reason of his willful failure to pay in excess of $50,000 in past due child support, that he had the ability to purge the contempt by paying an amount equivalent to the child support due for a specified period of time, and that he could purge himself of the contempt by paying the specified amount to the court depository no later than April 30, 2002. The order also stated that the judge believed Mr. Reneman and his current wife were deliberately structuring their financial situation with the intention of concealing available assets, in an apparent attempt to make Mr. Reneman judgment-proof. The judge reserved jurisdiction to determine the manner in which the balance of the arrearage was to be paid as well as Ms. Jarvis’s request for fees and costs. Mr. Reneman paid the required purge amount by the date the court set.

A successor judge later commenced a second hearing on the two reserved issues. Following this second evidentiary hearing, an order was entered that required Mr. Reneman to purge his indirect civil contempt by paying $10,000 toward the child support arrearage within sixty days and to pay $3000 of Ms. Jarvis’s fees and costs. No new act of contempt was litigated in the second proceeding. The judge found that Mr. Reneman had an ability to pay this $13,000 total based on his share of the appreciated value of his present wife’s home. The current Mrs. Reneman had acquired the down payment for the home during her marriage to Mr. Reneman, but that down payment came from separate funds she alone had received as a gift from her father, and the home had appreciated in value during their marriage. Because of Mr. Reneman’s past history and the fact that Mrs. Reneman had children from a prior marriage, his present wife claimed that she acceded to her father’s wishes that the home be titled in her name alone. The judge concluded that the appreciation of value of the home, about $40,000, was a marital asset.

Mr. Reneman contends in this appeal that the reservation of jurisdiction from the first hearing did not permit the successor judge to order a second purge amount for the same act of contempt and, alternatively, that the evidence failed to establish that he had the present ability to pay the purge amount. He claims that the only evidence of his ability to pay was based on the marital appreciation of value in Mrs. Reneman’s solely owned home and the fact that his net income was about $240 a week.

In support of his first contention, Mr. Reneman initially asserts that the Double Jeopardy Clause of the federal and state constitutions prohibits the imposition of a second purge amount. We disagree. “It is axiomatic that double jeopardy attaches only to criminal offenses.” In re Tierney, 328 So.2d 40, 45 (Fla. 4th DCA 1976). Therefore, the constitutional protection afforded by the Double Jeopardy Clause does not bar multiple punishment for a civil contempt. Id. at 46; see also Featherstone v. Montana, 684 So.2d 233, 235 (Fla. 3d DCA 1996) (holding that the Double Jeopardy Clause does not bar an indirect criminal contempt proceeding, even though there had previously been a civil contempt adjudication based on the same noncompliance with the order of the court).

We do agree, however, with Mr. Reneman’s contention that the successor judge exceeded the limited jurisdiction reserved to him when he ordered a second purge amount. The initial order reserved jurisdiction, in part, to “determine how the Former Husband’s child support arrearage shall be paid.” The order on appeal resulting from that reserved jurisdiction did not, for example, establish a repayment schedule by increasing the weekly child support payment or require Mr. Reneman to liquidate any assets to pay a part of that arrearage. Instead, it set a second purge amount for previously purged contumacious conduct. The first judge did not retain jurisdiction to force compliance on an already compliant party, yet the successor judge’s order effectively found Mr. Reneman again in contempt for that same conduct of being in arrears. Cf. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957) (“[T]he prosecution cannot multiply contempts by repeated questioning on the same subject of inquiry within which a recalcitrant witness already has refused answers.”).

Based on the fact that Mr. Reneman had previously been found in contempt by the first judge, it is possible that the successor judge meant to indicate that the $10,000 “purge amount” was to be merely the first payment in satisfaction of the outstanding arrearage. After all, Mr. Reneman did find the means to pay a sizeable and proper purge amount soon after the conclusion of the first hearing despite his ostensibly limited assets, giving credence to the first judge’s statement that the Renemans were being less than forthcoming about their financial wherewithal. Therefore, upon the filing of a new motion pursuant to Florida Family Law Rule of Procedure 12.615 (Civil Contempt in Support Matters) and sufficient proof of ability to pay, Mr. Reneman could again be adjudged in contempt.

Having determined that it was procedurally inappropriate to impose a second purge amount, we find Mr. Reneman’s alternative contention that the evidence did not establish his present ability to pay now moot. However, the finding that Mr. Reneman has the present ability to pay a purge amount based on his share of the appreciation of value in a home not titled in his name raises serious issues should this matter be litigated again. Among the possible issues requiring judicial determination would be whether the definition of a marital asset as set forth in chapter 61 of the Florida Statutes is applicable in a non-dissolution proceeding involving a purge amount for contempt and whether such an order is consistent with homestead property protection established by the Florida Constitution.

We reverse that part of the final judgment that ordered Mr. Reneman to' pay a second purge amount from his share of the marital appreciation in his current wife’s home and remand for further proceedings to carry out the reservation of jurisdiction as stated in the prior order. In all other respects, we affirm.

SALCINES and SILBERMAN, JJ„ Concur.

      . We note, however, that there is no indication how Mr. Reneman could access this marital asset as there is no pending action for dissolution of marriage so that this asset could be equitably distributed. We further note that an action for partition is also likely to be unavailable because Mr. Reneman's name is not on the title.


author: CANADY, Judge.

text:
    In the Interest of J.P., G.P., and J.P., children. G.P., Appellant, v. Family Continuity Program, Appellee.
    No. 2D03-5878.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.

      Carlos A. Ramirez and Victoria L. Bloomer of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Bernie McCabe, State Attorney, and Anne M. Villanueva, Assistant State Attorney, Clearwater, for Appellee.
   CANADY, Judge.

G.P. petitions for certiorari review of a shelter review order on the ground that he was denied the statutorily afforded opportunity to be heard and to present evidence at the shelter hearing. We treat G.P.’s petition as an appeal pursuant to Florida Rule of Appellate Procedure 9.146. Because we conclude that G.P.’s challenge to the shelter order is well founded, we reverse the order.

I. BACKGROUND

On November 21, 2003, a representative of the Pasco County Sheriffs Office filed an affidavit and petition for placement in shelter with respect to three children of G.P., the father, and E.P., the mother. The parents and children were all listed as residing at the same address.

The petition seeking removal of the children alleged that on several occasions, the last being on February 3, 2003, G.P. threatened and assaulted E.P. The petition further alleged that following the February 3 assault and after a prior alleged assault in October 2002 and a pattern of assaults prior to June 2002 E.P. had filed petitions for injunction for protection against domestic violence. Copies of these prior petitions for injunction for protection against domestic violence were attached to the affidavit and petition for placement in shelter, as was a statement of the deputy sheriff who responded to the February 3, 2003, incident. The deputy stated that the dispute between E.P. and G.P. began when G.P. complained about the conduct of one of their sons. The son told the deputy that his father spanked him for not feeding their birds on time. In the October 2002 petition for an injunction against domestic violence, E.P. stated that G.P. assaulted her in the presence of the son. The petition seeking a shelter review order stated that the son told the investigator filing the petition that he witnessed numerous incidents of domestic violence and had tried to protect his mother.

The petition seeking a shelter review order also indicated that after the February 2003 incident, which resulted in G.P.’s arrest, an injunction for protection against domestic violence was issued against him and he was ordered to have no contact with the family. E.P. informed the investigator that despite that order G.P. returned to the family home. The same petition further indicated that the parents did not cooperate with counseling and did not cooperate with an attempt to provide preventative services.

The petition seeking a shelter review order stated that G.P. had prior convictions on drug charges, that he was on methadone, and that he may be using heroin again. The petition also indicated that G.P. was barred from possessing firearms, but after his aforementioned arrest, E.P. called the sheriffs department back to the house to take G.P.’s guns away from the home.

The Shelter Hearing

On December 2, 2003, a hearing was held before the circuit court. Each parent was represented by separate counsel. Counsel for E.P. suggested that the matter be referred back to mediation. The circuit court judge then stated, “I am finding, based on this affidavit, probable cause to continue the children in shelter.” When counsel for E.P. said, “We would like to be heard before that determination” and “We have a point to present,” the court stated:

We are here for a shelter hearing. They feel that there is probable cause for the children, or they would not have filed.
This is over a week old and we are here for a shelter hearing, and because we are here, I am finding probable cause, based on this sworn affidavit that has been filed by Mr. Broekhouse of the Pasco County Sheriffs Office.
The Department always has the discretion to, if they feel that the danger is gone, bring that right back and take care of it. They have the discretion to dismiss. They do it often.

Counsel for E.P. again stated that section 39.402, Florida Statutes (2003), required an opportunity to present evidence and for the parents to be heard, and the circuit court judge responded:

The parents have the right to be heard, but this can be probable cause, based on the four corners of the affidavit, and that’s discretionary with the Court, and I am finding that we do not do three-hour shelter hearings. We never have, and I am not going to start.

Counsel for G.P. then stated to the court that section 39.402 required a full eviden-tiary hearing and that case law established that the denial thereof was a violation of due process, particularly if the removal of the children was ordered. The judge replied:

We don’t do full evidentiary hearings in murder. You do probable cause, and this is — I understand this isn’t crime, but this is still a probable cause hearing, and probable cause can be found on the four corners of the affidavit.
I understand you are preserving the record. It is preserved.

The assistant state attorney then indicated that the objective of the application was to have G.P. leave the residence because of the high risk of violence if he remained in the home. Counsel for G.P. then stated that G.P. was willing to temporarily leave the home until the issue was resolved so that the children could remain in the home with E.P. and not suffer further disruption of their lives. The court entered an order removing G.P. from the home and provided supervised visitation for G.P. The matter was adjourned to March 17, 2003, for full adjudicatory hearing.

II. ANALYSIS

Section 39.402 sets forth the procedure for conducting shelter hearings after the removal of a child. Section 39.402(5)(b)(l) provides: “The parents or- legal custodians shall be given written notice that ... [tjhey will be given an opportunity to be heard and to present evidence at the shelter hearing.” Florida Rule of Juvenile Procedure 8.305(b)(4) provides: “At the [shelter] hearing all interested persons present shall have an opportunity to be heard and present evidence on the criteria for placement as provided by law.” The applicable criteria in this case are that “there is probable cause to believe that ... [tjhe child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” § 39.402(l)(a).

Rule 8.305(b)(2) provides that in shelter proceedings “[tjhe court shall conduct an informal hearing.” Rule 8.305(b)(3) states that “[tjhe issue of probable cause shall be determined in a nonadversary manner, applying the standard of proof necessary for an arrest warrant.” Under rule 8.305(b)(5), “[tjhe court may base its determination on sworn complaint, testimony, or affidavit and may hear all relevant and material evidence, including oral and written reports, to the extent of its probative value even though it would not be competent at an adjudicatory hearing.”

G.P. correctly contends that he was denied the opportunity provided by statute and rule to be heard and to present evidence at the shelter hearing. Both parents appeared with individual counsel and each requested the opportunity to be heard, but at four separate points in the proceeding the circuit court judge refused to permit them to be heard because the court concluded that the written submissions by the sheriffs department established probable cause. The court’s approach simply read out of the applicable statute and rule the requirement that a parent have an opportunity to be heard and to present evidence. The court focused only on the rule provisions that probable cause must be established at an informal hearing, conducted in a nonad-versary manner, at which the court may base its determination on sworn complaint, testimony, or affidavit and can consider reports which would be inadmissible at adjudicatory hearing. The possibility that under rule 8.305(b)(3) and (5) the State could possibly meet its burden of establishing probable cause for shelter of a child solely through a written submission does not mean that if the presenting agency does so the parents are barred from responding at all and that no further hearing need be conducted. Had that been the intent of the rule it would provide that shelter of a child could be ordered without a hearing if the written submission established probable cause for shelter of the child.

III. CONCLUSION

Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State’s temporary removal of children from the home. In this case, the circuit court erred by disregarding the statutory and rule provisions affording the parents a right to be heard and to present evidence at the shelter hearing.

Reversed.

ALTENBERND, C.J., and WHATLEY, J., Concur.

      . Although the proceedings before the circuit court have reached a stage where no purpose would be served by providing an adequate shelter hearing, the merits of G.P.’s appeal will be considered because G.P. alleges due process violations of a type which are likely to recur and which, because of the short time frames of child protective proceedings, if recurrent, are likely to evade review. See Evergreen v. Charlotte County Bd. of Comm’rs, 810 So.2d 526, 528 (Fla. 2d DCA 2002); Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001); Blalock v. Rice, 707 So.2d 738, 739 (Fla. 2d DCA 1997).


author: DAVIS, J.

text:
    Raymond CARRIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2084.
    District Court of Appeal of Florida, First District.
    June 7, 2004.

      James C. Banks of Law Office of Banks & Morris, P.A., Special Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

The appellant was charged with, inter alia, the attempted second degree murder of a police officer whom the appellant nearly ran over with his car while attempting to evade arrest. At trial, over defense objection, the jury was instructed on the lesser included offense of aggravated assault on a law enforcement officer. Although aggravated assault on a law enforcement officer requires proof of the element of “putting in fear,” an element which was neither pled nor proven, the jury found the appellant guilty of aggravated assault on a law enforcement officer, and the appellant was sentenced to seven years’ imprisonment followed by five years’ probation.

On appeal, the appellant claims entitlement to a new trial. The state concedes that the evidence was insufficient to support a conviction for aggravated assault on a law enforcement officer and that this conviction must be reversed. However, the state argues that a new trial is not necessary. We agree with the state.

In addition to being instructed on aggravated assault on a law enforcement officer, the jury was also instructed on the lesser included offense of culpable negligence. To prove culpable negligence, the state was obliged to show that the appellant exposed the officers to personal injury and that the appellant did so through culpable negligence. See § 784.05, Fla. Stat. (2001).

Culpable negligence consists of: more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety.and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

Logan v. State, 592 So.2d 295, 298 (Fla. 5th DCA 1991).

At trial, the testimony of the victim officers established that a warrant for the appellant’s arrest was discovered after the appellant had been pulled over for a routine traffic stop. When one of the officers asked the appellant to step out of his vehicle, the appellant tried to roll his window up. The officer grabbed the window and ordered the appellant out of the car, but the appellant merely put the car into reverse and quickly began backing away, indifferent to the fact that the officer who was holding onto the window lost his footing and was dragged by the car for 15 to 20 feet, suffering injury. The other officer had to leap to safety not once but twice to avoid being hit by the appellant’s car. Once out in traffic, the appellant led many officers on a high-speed chase that resulted in the appellant crashing his car. These facts are sufficient to support a conviction for culpable negligence. See, e.g., Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989), quashed on other grounds, 561 So.2d 576 (Fla.1990).

Section 924.34, Florida Statutes (2001), states:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

Further, “section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses.” Coicou v. State, 867 So.2d 409, 412 (Fla. 3d DCA 2003), citing I.T. v. State, 694 So.2d 720 (Fla.1997).

Because the evidence does not prove the offense for which the appellant was found ■guilty but does establish the lesser offense of culpable negligence, we reverse the appellant’s conviction for aggravated assault on a law enforcement officer and remand this cause to the trial court with directions to enter judgment for culpable negligence. See § 924.34, Fla. Stat. (2001); see also Coicou, 867 So.2d at 412. We further direct the trial court to re-sentence the appellant in accordance with this opinion.

Although we have directed the trial court to impose judgment and sentence for the permissive lesser included offense of culpable negligence as required by I.T., we have determined that it is appropriate to certify a question of great public importance to the supreme court. The question is certified because of our difficulty in reconciling I.T.’s construction of section 924.34, Florida Statutes, with decisions such as United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).

In I.T., the supreme court held that the statutory term “lesser offense necessarily included in the offense charged” includes permissive lesser included offenses. Therefore, when the evidence in a case reviewed on appeal is insufficient to prove the crime for which the defendant has been found guilty but would be sufficient to support a verdict of guilty of a permissive lesser included offense, the appellate court is obligated to direct the trial court upon remand to enter judgment and sentence for the permissive lesser included offense.

A permissive lesser included offense has at least one statutory element not included in the greater offense. See, e.g., Nurse v. State, 658 So.2d 1074, 1077 (Fla. 3d DCA 1995)(“As to the second category, a permissive lesser included offense is, in the purest form, the same as a necessarily included offense except that it contains one or more statutory elements which the charged offense does not contain.”). See also State v. Wimberly, 498 So.2d 929 (Fla.1986); Brown v. State, 206 So.2d 377 (Fla.1968). Accordingly, a section 924.34 remand with directions for the trial court to impose judgment and sentence for a permissive lesser included offense requires entry of judgment and sentence for a crime which includes at least one element never addressed by the verdict of a jury.

Such directions therefore seem to us irreconcilable with decisions such as United States v. Gaudin, in which the court wrote:

The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without “due process of law”; and the Sixth, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” We have held that these provisions require criminal convictions to rest upon a jury determination that a defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 2770278, 113 S.Ct. 2078, 2080-2082, 124 L.Ed.2d 182 (1993).

Id. at 509, 115 S.Ct. 2310. Because the procedure prescribed in I.T. authorizes judges to make the sole determination as to whether one or more of the elements of a crime have been proven, and because even this determination need not be made beyond a reasonable doubt, it seems to us that the I.T. procedure violates the directives of the federal constitution as explicated in cases such as Gaudin and Sullivan. Accordingly, we certify to the supreme court the following question of great public importance:

Does the procedure prescribed in I.T. v. State deny defendants their federal constitutional rights to trial by jury and proof beyond a reasonable doubt?

REVERSED AND REMANDED WITH INSTRUCTIONS, AND QUESTION CERTIFIED.

KAHN and PADOVANO, JJ., concur.


author: PER CURIAM.

text:
    David POWELL, Appellant, v. PROFESSIONAL MANAGEMENT MIAMI DADE COUNTY, etc., Appellee.
    No. 1D04-1316.
    District Court of Appeal of Florida, First District.
    June 7, 2004.

      David Powell, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. Appellant’s pending motions are denied as moot.

DISMISSED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Ralph J. JODICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-622.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2004.
    James B. Gibson, Public Defender, and Thomas K. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002).

AFFIRMED.

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    Melvin Bobby MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2325.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2004.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public,Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 844 So.2d 745 (Fla. 5th DCA 2003).

SAWAYA, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Larry RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2767.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2004.
    Frank J. Bankowitz of Frank J. Ban-kowitz, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Archer v. State, 613 So.2d 446 (Fla.1993); Collier v. State, 681 So.2d 856 (Fla. 5th DCA 1996); Coe v. State, 633 So.2d 68, 69 (Fla. 5th DCA 1994).

SAWAYA, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Henry L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2896.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Grubbs v. State, 373 So.2d 905 (Fla.1979).

SAWAYA, C.J., THOMPSON and MONACO, JJ., concur.


text:
    Carisa DINEEN a/k/a Carissa Dineen, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3659.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


author: VILLANTI, Judge.

text:
    Charles BIRDSONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4968.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
   VILLANTI, Judge.

Charles Birdsong appeals the denial of his motions for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Birdsong is a county prisoner, and he filed a motion for jail credit in the circuit court seeking “trusty” status in order to earn gain time to be applied to his county jail sentence. The trial court denied the motion, stating that Birdsong must address this issue with the Department of Corrections (DOC) because the DOC has the exclusive authority to regulate gain time. Birdsong then filed another motion for jail credit raising the same claim and arguing that he is in the custody of Polk County, and the trial court denied the motion as successive.

We affirm the trial court orders denying Birdsong’s motions because such a claim is not properly raised in a rule 3.800(a) motion and should be addressed through any available administrative avenues. See Swain v. State, 795 So.2d 1031 (Fla. 2d DCA 2001). However, the trial court erred in concluding that the DOC has exclusive authority to award gain time because Birdsong is not in the DOC’s custody. We note, without commenting on the merits of Birdsong’s claim for gain time, that Birdsong is a county prisoner and the local board of county commissioners has authority to commute gain time for good behavior for county prisoners. See § 951.21, Fla. Stat. (2002).

Affirmed.

SALCINES and SILBERMAN, JJ., Concur.


text:
    Jeremy Billy VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-194.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
   PER CURIAM.

Jeremy Billy Vargas challenges the order of the trial court denying as facially insufficient his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm without prejudice to any right Vargas might have to file a timely, facially sufficient 3.853 motion in accordance with the time limitations outlined in that rule, or within sixty days from the date of the issuance of the mandate in this case should this be the later date. See Saffold v. State, 850 So.2d 574 (Fla. 2d DCA 2003) (holding that a rule 3.853 motion that does not contain at least some information as to the primary evidence against the movant and any defense employed at trial, does not provide a facially sufficient statement to meet the requirements of subsections (b)(3) and (b)(4) of the rule).

Affirmed.

CASANUEVA, SALCINES, and SILBERMAN, JJ., Concur.


text:
    Kenneth PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4085.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Kenneth Pierce, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pierce appeals the trial court’s order denying his post-conviction motion as untimely. We reverse and remand for the trial court to consider the merits of the motion. The trial court was of the view that our opinion in Lindsay v. State, 842 So.2d 1057 (Fla. 4th DCA 2003), requires denial of post-conviction relief. The trial court interpreted Lindsay as holding that the two-year period for filing a rule 3.850 motion commences from the date a conviction became final, rather than from the date that both conviction and sentence became final.

The appellate history of this case is extensive. This court, on direct appeal, reversed Pierce’s conviction and remanded for a new trial. Pierce v. State, 671 So.2d 186, 191 (Fla. 4th DCA 1996). Thereafter, the supreme court disagreed with this court. State v. Pierce, 686 So.2d 572 (Fla.1996). This court then affirmed in part and reversed in part, remanding for a new sentencing hearing. Pierce v. State, 718 So.2d 806 (Fla. 4th DCA 1997). After the trial court imposed a new sentence, this court affirmed the convictions in counts I, IV, and V; however, we overturned the convictions in counts II and III based on double jeopardy violations and a mandate issued on November 19, 1999. Pierce v. State, 744 So.2d 1193, 1196 (Fla. 4th DCA 1999).

Subsequently, the lower court imposed a sentence that included a habitual offender enhancement. Pierce filed a rule 3.800(b) motion to correct this sentence, contending the enhancement due to his habitual status was illegal. The lower court denied relief, and Pierce appealed the new sentence to this court, which was affirmed without opinion. Pierce v. State, 795 So.2d 74 (Fla. 4th DCA 2001). The mandate for this decision was issued on October 1, 2001.

The instant rule 3.850 motion was filed on August 28, 2002, in which Pierce alleged nine (9) instances of ineffective assistance of trial counsel, all relating to his convictions. The trial court concluded Pierce’s convictions were final when this court upheld the convictions to counts I, IV, and V in November 1999, thus, rendering his motion untimely.

Pursuant to rule 3.850, a defendant has only two years from the date his conviction and sentence become final to file a collateral attack. Rule 3.850(b) states that, “[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... ”

We have considered Lindsay and deem it inapposite, notwithstanding its statement that “the time for filing a timely rule 3.850 motion from the original conviction and from the sentencing prior to the revocation [of probation] has now expired.” 842 So.2d at 1058 (relying upon Zeigler v. State, 632 So.2d 48, 50 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994)). This court, in a parenthetical to the Zeigler citation, stated that Zeigler stood for the proposition that “the two-year time limit for challenging a conviction commences when the conviction alone became final and not when the conviction and sentence both became final.” Lindsay, 842 So.2d at 1058-59.

In Lindsay, we held that the trial court had jurisdiction to consider a claim under rule 3.850, challenging the defendant’s initial conviction, notwithstanding a pending appeal from a subsequent violation of probation. Id. Zeigler, however, does not stand for this proposition. In Zeigler, the appellant was originally convicted and sentenced in 1976, and had his convictions and death sentence (along with other sentences) affirmed on appeal in 1982. 632 So.2d at 49. However, after a few rule 3.850motions, the supreme court vacated the death sentences and remanded for new sentencing in 1988. Id. at 50. Upon the re-sentencing, the appellant was again sentenced to death, which the supreme court eventually affirmed in 1991. Id. Zeigler then filed, in 1992, another rule 3.850 motion which was procedurally barred. Id. at 50. The supreme court stated:

Motions pursuant to rule 3.850 will not be considered “if filed more than 2 years after the judgment and sentence become final.”
* * *
Even if the information on which Zeigler based his first two claims was not disclosed by the State in 1982, the information was provided pursuant to Zeigler’s public Records request in April 1987. The Public Records Act was available to Zeigler prior to January 1, 1987, the cutoff date for postconviction relief in this case insofar as guilt is concerned.

Id. at 50 (emphasis added).

Patently, the highlighted language, which the court in Lindsay noted, does not support the contention, in the instant case, that Pierce was required to file his rule 3.850motion within two years of the mandate, which upheld his convictions but vacated his sentences.

There, we stated:

[Appellant’s conviction based on his original plea became final in September 2000, thirty days after his original sentencing; with respect to some claims asserted in his motion, the sentence became final thirty days after his resen-tencing in November 2000.... Therefore, the time for filing a timely rule 3.850motion from the original conviction and from the sentencing prior to the revocation [of probation in the subsequent case] has now expired.

Lindsay, 842 So.2d at 1058 (emphasis added).

The Second District considered the clear language of rule 3.850(b) in Snipes v. State, 843 So.2d 1043 (Fla. 2d DCA 2003). There, the defendant was convicted and sentenced to death, but the supreme court affirmed the conviction and vacated the sentence in May 1999. Id. at 1043-44. The trial court re-sentenced the defendant to life imprisonment, as directed by the supreme court, and the defendant appealed the new sentence. Id. at 1044. The Snipes court affirmed the sentence on January 16, 2001. Id. The defendant filed his rule 3.850 motion, challenging the initial conviction on January 4, 2002. Id. The trial court determined the motion to be untimely since it considered the conviction “final” in May 1999, and not in January 2001 when the new sentence was affirmed. Id. In Snipes, the Second District looked to the “unequivocal language of rule 3.850(b)” to reject the trial court’s determination of finality. Id. As its reasoning, the court noted that in the rare situations, when a sentence is still pending on appeal, the conviction cannot be final (for purposes of rule 3.850) because, during the pen-dency of the sentencing appeal, the trial court is without jurisdiction to hear a rule 3.850 motion. Id.

The Snipes court reasoned that if the trial court correctly found that a conviction can be final before the appeal process is complete, an absurd result could occur. Id. Namely, since the defendant cannot pursue a rule 3.850 motion while his sentence is being appealed, his two-year window to contest his conviction would run out before he is even allowed to file. Id.

We agree with the reasoning in Snipes and conclude that the two-year window commences when both the conviction and sentence are final.

STONE, WARNER and MAY, JJ., concur.

      . Noteworthy, this case involves re-sentencing on direct appeal, unlike cases such as Mitchell v. State, 846 So.2d 559 (Fla. 4th DCA 2003), which was an appeal from a re-sentencing following a post-conviction motion. See also Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003)(holding that the two-year time frame within which to file a rule 3.850 motion "is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.”).


author: GROSS, J.

text:
    E-Z MARINE SUPPLY, INC., a Florida corporation, and Marvin J. Griesan, Appellants, v. WACHOVIA COMMERCIAL MORTGAGE, INC., Appellee.
    No. 4D04-850.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    William M. Winkel, West Palm Beach, for appellants.
    Howard S. Toland of Haley, Sinagra, Paul & Toland, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

GROSS, J.

Appellants, E-Z Marine Supply, Inc., and Marvin J. Griesan, move for rehearing of our April 5, 2004 order dismissing this appeal as being untimely filed.

The appeal involves a non-final order entered on November 21, 2003; the notice of appeal was filed on March 3, 2004. Appellants argue that a motion for rehearing tolled the time for filing the notice of appeal. However, because the motion for rehearing was unauthorized, it did not toll the time for filing the notice of appeal.

This is a non-final appeal of an order compelling a commercial mortgagor to make payments and obtain insurance on property pending foreclosure. Within ten days of the order, appellants filed a motion for rehearing. However, as we wrote in Remington v. Remington, 705 So.2d 920, 922 (Fla. 4th DCA 1997),

[o]nly a motion for rehearing authorized by the Rules of Civil Procedure will suspend rendition of an order under the appellate rules. Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla.1972). As the supreme court explained:
[A] timely and proper motion for rehearing, permitted by the Civil Rules, will operate to suspend ‘rendition’ during its pendency. An unauthorized motion not permitted by the Rules, such as respondent’s motion for rehearing in this case, would have no effect on rendition and would thus have no effect on the time for filing notice of appeal.
Id. at 3. Wagner held that because the civil rules did not authorize a motion for rehearing of an interlocutory order denying summary judgment, the filing of such a motion did not toll the time for filing a notice of appeal.

We find no provision in the Florida Rules of Civil Procedure that authorizes a motion for rehearing directed at the type of order appealed in this case. Florida Rule of Civil Procedure 1.530(b) permits the filing of a motion for rehearing within ten days after the “filing of the judgment in a non-jury action.” “Rule 1.530 has been consistently construed to authorize rehearings only of orders and judgments which are final in nature.” Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001).

The interlocutory order in this case, which provided for payments during the pendency of the underlying lawsuit, was not “final in nature.” The motion for rehearing did not toll the time for filing of the notice of appeal. Deal, 783 So.2d at 321; Hoffman v. Dickerson, 692 So.2d 316 (Fla. 5th DCA 1997). The notice of appeal was not filed within thirty days of rendition of the order to be reviewed. See Fla. R.App. P. 9.130(b). The previously entered dismissal was therefore proper.

The motion for rehearing is denied.

STEVENSON and TAYLOR, JJ., concur.


text:
    Joseph A. NOSEK, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, Respondent.
    No. 1D04-0853.
    District Court of Appeal of Florida, First District.
    June 10, 2004.

      Joseph A. Nosek, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    Donald Amiee TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4312.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

We affirm Donald Turner’s judgment and sentence but remand for the trial court to correct a sentencing error conceded by the State. The trial court orally declared Turner a violent career criminal (VCC) and sentenced him to concurrent terms of life imprisonment on three counts of robbery with a handgun under section 775.084(4)(d), Florida Statutes (1999). The written sentence, however, imposed a habitual violent felony offender sentence and added a minimum mandatory sentence of life imprisonment under section 775.084(4)(b). We therefore reverse and remand for the trial court to correct the sentence to comport with the orally pronounced VCC sentence. See Williams v. State, 744 So.2d 1156 (Fla. 2d DCA 1999). On remand, the court must strike the minimum mandatory life sentence because the VCC statute does not provide a minimum mandatory in the case of a first-degree felony. See Tullis v. State, 779 So.2d 278, 279 (Fla. 2d DCA 1998). Turner need not be present.

Affirmed in part; remanded with instructions to the trial court to sentence Turner consistent with its oral pronouncement and strike the minimum mandatory sentence.

WHATLEY and COVINGTON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Terry FREEZE, Petitioner, v. STATE of Florida; The Florida Civil Commitment Center; Robert Broidy, Director, Florida Civil Commitment Center; Department of Children and Family Services; and Jerry Regier, Secretary, Department of Children and Family Services, Respondents.
    No. 2D03-1615.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.

      Julianne M. Holt, Public Defender, and Jeanine Cohen, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Respondents.
   SILBERMAN, Judge.

Terry Freeze, a committed person under part V of chapter 394,' Florida Statutes (2000), entitled “Involuntary Civil Commitment of Sexually Violent Predators” (the Act), seeks a writ of habeas corpus ordering his immediate release from confinement. Alternatively, he seeks a writ of mandamus ordering the trial court to comply with section 394.918(3) of the Act.

This case is governed by our holding in Allen v. State, 873 So.2d 576 (Fla. 2d DCA 2004). Accordingly, we deny the petition for writ of habeas corpus and grant the petition for writ of mandamus. We direct the circuit court to hold a limited probable cause hearing pursuant to section 394.918(3), with counsel representing Mr. Freeze as mandated, unless Mr. Freeze has been afforded such a hearing in the last calendar year.

Petition for writ of habeas corpus denied; petition for writ of mandamus granted.

SALCINES and STRINGER, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    Johnny HAGIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4859.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
   NORTHCUTT, Judge.

Johnny Hagin appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of Hagin’s first claim without discussion. As for his second claim, in which he alleged that the circuit court failed to award him proper prison credit pursuant to the holding in Tripp v. State, 622 So.2d 941 (Fla.1993), we affirm because the record indicates that the circuit court did in fact award such credit. If the Department of Corrections has erred in the computation and application of such credit, Hagin should seek relief through the administrative remedies available within the Department and then by way of petition for writ of mandamus in the appropriate circuit court. See Battles v. State, 799 So.2d 1098 (Fla. 2d DCA 2001).

Affirmed.

SALCINES and SILBERMAN, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Rodney SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5616.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
    Rodney Sheffield, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Rodney Sheffield appeals an order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Sheffield was convicted of attempted trafficking in heroin and sentenced to a fifteen-year term of imprisonment as a habitual offender for an offense that occurred in May 2000. He claims that his habitual offender designation is illegal because the applicable statutes mandated a Criminal Punishment Code sentence and did not permit a habitual offender sentence.

A cursory reading of our opinion in Fortner v. State, 779 So.2d 462 (Fla. 2d DCA 2000), and the Fourth District’s opinion in Dillard v. State, 820 So.2d 994 (Fla. 4th DCA 2002), would seem to support Mr. Sheffield’s claim. See also Bryant v. State, 760 So.2d 1034 (Fla. 5th DCA 2000); Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000); Wright v. State, 743 So.2d 103 (Fla. 1st DCA 1999); Stanford v. State, 706 So.2d 900 (Fla. 1st DCA 1998). Those cases might seem to suggest that any defendant convicted of trafficking was required to be sentenced under the Criminal Punishment Code and not as a habitual offender as a result of specific language in section 893.135, Florida Statutes (1999). However, on closer examination, those cases involved defendants who were charged with trafficking in small quantities of illegal drugs. The defendant in Dillard, for example, was charged with trafficking in an amount of cocaine between 28 and 200 grams. Section 893.135(l)(b)(l)(a), Florida Statutes (1997), required that such a person be sentenced “pursuant to the sentencing guidelines” in 1997.

Mr. Sheffield was charged with attempted trafficking in a quantity of heroin that was 28 grams or more, but less than 30 kilograms. At all times relevant to this case, trafficking in this quantity of heroin was governed by section 893.135(1)(c)(1)(c), Florida Statutes (1999), which categorized the offense as a first-degree felony and required a mandatory minimum term of twenty-five years’ imprisonment. Unlike section 893.135(1)(b)(1)(a), section 893.135(1)(c)(1)(c) did not include language requiring a sentence under either the sentencing guidelines or the Criminal Punishment Code. Accordingly, a habitual offender sentence could be lawfully imposed for trafficking in this quantity of heroin and, pursuant to section 777.04(4)(c), Florida Statutes (1999), for the related crime of attempted trafficking in the same amount of heroin.

Accordingly, we affirm the order denying this postconviction motion.

WHATLEY and CASANUEVA, JJ., Concur.

      . The 1999 version of the Florida Statutes applies to this case. Chapter 99-188 amended certain aspects of section 893.135, not including subsection (1)(c)(1)(c). Subsection (1)(c)(1)(c) was the same in 1997 as it was in 1999. Thus, our decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), does not affect this case.


text:
    Warren ALLEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5912.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
   PER CURIAM.

Warren Allen, Jr., challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, one of the two grounds for relief Allen raised in his motion, but reverse and remand for further proceedings on the second ground.

Allen was convicted after jury trial of sexual battery. In his motion Allen alleged that trial counsel was ineffective in failing to challenge certain prospective jurors for cause. The basis of the claim is that individual prospective jurors, during voir dire, indicated, inter alia, that they would draw a negative conclusion if Allen did not testify and that they were likely to believe the testimony of the child victim. The failure of trial counsel to challenge a juror for cause is a cognizable rule 3.850 claim. See Thompson v. State, 796 So.2d 511 (Fla.2001); Chattin v. State, 800 So.2d 665 (Fla. 2d DCA 2001).

In the present case, the trial court denied Allen’s claim, finding that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the claim did not satisfy the prejudice prong of Strickland because Allen’s “arguments lack merit and would not have changed the outcome of the trial.” The supreme court in Thompson concluded that prejudice can be established upon a “showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 796 So.2d at 515. In Thompson, the trial court denied Thompson’s claim that trial counsel was ineffective in failing to challenge a juror for cause on the basis that the evidence was more than sufficient to support the convictions. The supreme court stated: “The issue is not whether the evidence was sufficient to support the convictions; the real issue is whether, as a result of counsel’s performance, the panel which made the ultimate determination was composed of jurors who held the fact that Thompson exercised a fundamental constitutional right against him.” 796 So.2d at 517. In the present case, the trial court found that Allen was not prejudiced because he would not have been acquitted had trial counsel challenged certain jurors for cause. Such a finding would appear to be based on the strength of the evidence presented by the State at trial. As noted in Thompson, this is the wrong standard for determining Allen’s claim. Clearly, if any jurors indicated that they would prejudge the case based on the age of the victim, or that they would hold it against Allen if he did not testify, then Allen was deprived of a fair trial.

We reverse the trial court’s denial of this ground, and remand to the trial court to consider Allen’s claim under the standard enunciated in Thompson.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY, CASANUEVA, and SALCINES, JJ., concur.

      . In fact, the members of the venire Allen alleges that trial counsel should have chai-lenged for cause all served on the jury in this case.


text:
    Anthony HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4969.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
   PER CURIAM.

Anthony Harris, Jr., challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Harris raised three grounds for relief in his motion. In affirming the order of the trial court, we find it necessary to discuss only one of the grounds raised in the motion.

Harris was convicted, after jury trial, of second-degree murder, robbery, and grand theft auto. He was sentenced consecutively on each count as a habitual violent felony offender. In his 3.800(a) motion, Harris alleged that his consecutive habitual violent felony offender sentences are illegal because they are in violation of Hale v. State, 630 So.2d 521 (Fla.1993). The trial court denied this claim finding that it can only be raised pursuant to Florida Rule of Criminal Procedure 3.850. The trial court is incorrect.

Harris raised a Hale claim in a prior rule 3.800(a) motion. See Harris v. State, 845 So.2d 250 (Fla. 2d DCA 2003). This court held that the claim was facially insufficient because Harris did not allege that his crimes occurred in “a single criminal episode or that his claim can be determined without resort to extra-record facts.” 845 So.2d at 250. We affirmed the denial of the claim without prejudice to any right Harris might have to file a facially sufficient Hale claim under rule 3.800(a). The trial court had the benefit of this court’s opinion in Harris when it found that a Hale claim could not be raised pursuant to rule 3.800(a). In fact, Harris filed his present motion in response to our prior opinion.

In his present motion, Harris alleged that the offenses occurred in a single criminal episode and that this could be determined from the face of the charging document. Prior to his filing this motion, Harris did not have the benefit of this court’s opinion in Wachter v. State, 868 So.2d 629 (Fla. 2d DCA 2004). In Wachter, this court stated:

[I]n Burgess v. State, 831 So.2d 137, 141 (Fla.2002), the supreme court held that a trial court cannot rely on hearsay documentation contained in the trial record, such as a police report, to determine a 3.800(a) Hale claim. The trial court may rely on any portion of the trial record that is not hearsay, such as a trial transcript.

The charging document clearly is not an evidentiary portion of the trial record. Thus, Harris has again presented a facially insufficient claim. Harris appealed the original judgment and sentences. There should therefore be a transcript of the trial testimony available to the trial court.

We affirm that portion of the trial court’s order denying Harris’s Hale claim. However, our affirmance is without prejudice to any right Harris might have to file a facially sufficient claim in which he alleges that his habitual violent felony offender sentences were consecutively imposed when they were part of a single criminal episode and in which he identifies with particularity the nonhearsay record documents, such as the trial transcript, upon which he relies in seeking a determination of his claim.

Affirmed.

WHATLEY, CASANUEVA, and CANADY, JJ., concur.


author: FULMER, Judge.

text:
    In re COMMITMENT OF Charles RODGERS. Charles Rodgers, Appellant, v. State of Florida, Appellee.
    No. 2D01-1106.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.

      James Marion Moorman, Public Defender, and Deborah K. Brueekheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   FULMER, Judge.

Charles Rodgers appeals an order adjudging him to be a sexually violent predator and committing him to a secure facility pursuant to the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2000). He raises numerous issues on appeal. We conclude that these issues do not require reversal; however, we certify a question of great public importance to the Florida Supreme Court.

Rodgers argues that to prove his future dangerousness the State presented unreliable expert testimony that failed the Frye test. At the commitment hearing, the State presented the expert witness testimony of Dr. Jensen, a psychologist who employed three actuarial instruments in determining Rodgers’ likelihood of recidivism: the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), the Violence Risk Appraisal Guide (VRAG), and the Minnesota Sex Offender Screening Tool — Revised (MnSOST-R). Dr. Jensen also used a psychological test, the Psychopathy Checklist — Revised (PCL-R). This court has previously rejected a Frye challenge and allowed the use of these instruments and the psychological test in Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), appeal docketed, SC03-1608 (Fla. Sept. 8, 2003). Lee compels us to conclude that the trial court did not err in allowing Dr. Jensen’s testimony.

Rodgers argues that he was forced to testify against himself in violation of due process and equal protection principles. At trial Rodgers raised only an equal protection challenge to the issue of being forced to testify against himself. Furthermore, he failed to pose specific objections to particular questions. Therefore, Rodgers failed to establish a basis for assertion of the privilege against self-incrimination. See In re Commitment of Smith, 827 So.2d 1026, 1029 (Fla. 2d DCA 2002).

To advance his equal protection claim on appeal, he argues that the Florida courts have recognized a prohibition against compelled testimony for defendants in other types of civil proceedings, such as the civil commitment for mental health treatment under the Baker Act, section 394.451, Florida Statutes (1991). “The constitutional right to equal protection mandates that similarly situated persons be treated alike.” Level 3 Communications, LLC v. Jacobs, 841 So.2d 447, 454 (Fla.2003) (citing Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000)). Rodgers has not demonstrated that he is similarly situated to defendants or respondents in other types of civil proceedings, and therefore, he is not entitled to claim like treatment under an equal protection analysis. See Level 3, 841 So.2d at 454.

Rodgers argues that the trial court erred in allowing the State to present evidence of his prior convictions, resulting from his nolo contendere pleas, pursuant to section 90.410, Florida Statutes (2000), which prohibits evidence of nolo contende-re pleas to be used in any civil or criminal proceeding. The State responds that Rodgers has not preserved this issue for review, and, alternatively, that the Ryce Act allows such evidence of prior convictions. At trial, Rodgers’ counsel argued that the State should be prohibited from introducing evidence of uncounseled pleas; however, it does not appear that counsel made the specific objection to the evidence that is advanced on appeal. Therefore, we agree with the State that the argument has not been preserved.

Rodgers also contends that evidence of his prior convictions that were nonsexual in nature and his prison disciplinary reports was inadmissible because the evidence was not similar to the qualifying crimes used to initiate the commitment proceedings, was not relevant to the issues, and even if the collateral bad acts were relevant, the prejudice to him outweighed the probative value of the evidence. We reject these arguments based on our opinion in Lee, 854 So.2d at 714.

Rodgers argues that the trial court erred in allowing the extensive use of hearsay by the State’s expert, who relied on Rodgers’ prior bad acts and criminal offenses to form his opinion. Rodgers asserts that the prejudicial effect of the expert’s opinion outweighed its probative value. He also contends that the hearsay exception under the Act, section 394.9155(5), Florida Statutes (1999), is unconstitutional. We conclude that the trial court did not abuse its discretion in allowing the admission of hearsay evidence. Further, as we did in Lee, 854 So.2d at 713, we reject the constitutional challenge to the hearsay provision in the Act.

Rodgers argues that the trial court erred in allowing the prejudicial use of the term “sexually violent predator” to refer to Rodgers in both voir dire and the jury instructions. He also contends that the trial court erred in allowing the prosecutor to present specifics as to the nature and number of prior convictions and in rejecting Rodgers’ offer to stipulate to the eonvicted-felon element of the Act. He further argues that the trial court erred in not granting a mistrial when the State made prejudicial comments in closing argument, first misstating the law and second using an improper message-to-the-community argument. We reject these arguments and conclude that the trial court did not err in allowing use of the term sexually violent predator, see Standard Jury Instructions—Criminal Cases, 777 So.2d 366, 367 (Fla.2000), that evidence of the prior convictions was relevant and admissible, see Lee, 854 So.2d at 714, and that the prosecutor’s remarks during closing argument did not constitute reversible error.

Rodgers argues that the Ryce Act, on its face and as applied, violates equal protection because the State failed to create administrative rules to implement the Act as required by section 394.930, Florida Statutes (2000), before Rodgers’ trial took place in January 2001. The State responds that the Department of Children and Families promulgated administrative rules pursuant to section 394.930 and those rules became effective on October 7, 2001, citing Florida Administrative Code Chapter 65E-25. It asserts that Rodgers’ argument concerning a failure to promulgate the required rules is barred here because Rodgers has not exhausted his administrative remedies prior to bringing the claim, as required by Key Haven Associated Enterprises, Inc. v. Board of Trustees, 427 So.2d 153 (Fla.1982), superseded on other grounds as noted in Bowen v. Florida Department of Environmental Regulation, 448 So.2d 566, 568-69 (Fla. 2d DCA 1984), approved, 472 So.2d 460 (Fla.1985). Moreover, the State argues that even if administrative remedies were exhausted, Rodgers could not raise the issue of the Department of Children and Families’ failure to promulgate rules in the commitment action because the Department is not a party to the commitment action. We decline to adopt the arguments advanced by the State, but nevertheless affirm. Rodgers fails to identify how he, in particular, was denied equal protection by the absence of administrative rules and he also fails to demonstrate how the failure of the Department of Children and Families to promulgate rules, in and of itself, renders the Act violative of equal protection on its face.

Rodgers argues that the State violated the terms of a plea agreement when it initiated the civil commitment proceeding. He contends that he entered into a plea agreement with the State in 1994 for twelve years of imprisonment followed by thirty years of probation, which included a requirement for sex offender treatment. When the State initiated the civil commitment proceeding, Rodgers was about to be released from the prison portion of his sentence. We reject this argument based on the supreme court’s decisions in Murray v. Regier, 872 So.2d 217 (Fla.2002), and State v. Harris, 29 Fla. L. Weekly S230, 2004 WL 1064790, — So.2d - (Fla. May 13, 2004).

Rodgers argues that the jury was not properly instructed on the issue of volitional control, as required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and that the instruction given constitutes fundamental error. Therefore, as we did in.Lee, 854 So.2d at 719, we certify the following question to the Florida Supreme Court as one of great public importance:

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

Rodgers makes a number of additional arguments that we do not discuss here except to note that our rejection of them is based on the Florida Supreme Court’s decision in Westerheide v. State, 831 So.2d 93 (Fla.2002).

Affirmed; question certified.

SALCINES and WALLACE, JJ., Concur.

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).


text:
    SPECIALTY RISK SERVICES and Albertson’s, Appellants, v. Judy FLEMING, Appellee.
    No. 1D03-1030.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Mark S. Spangler of The Law Offices of Mark S. Spangler, P.A., Maitland, for Appellants.
    0. John Alpizar, Palm Bay and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

The employer and carrier appeal an order that authorizes evaluation and treatment with a family practice physician. The appellants contend, among other things, that the order erroneously awards prescriptions for massage therapy and certain medications, since these benefits were not properly before the Judge of Compensation Claims. We agree with this argument.

Due process precludes a ruling on matters which have not been placed at issue, as the parties are entitled to notice in order to fairly present their case. See Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 915 (Fla. 1st DCA 1999); Lakeside Baptist Church v. Jones, 714 So.2d 1188, 1190 (Fla. 1st DCA 1998). If the Judge of Compensation Claims awards benefits that are not requested or otherwise clearly placed at issue, the award must be reversed. LaPointe, 723 So.2d at 915.

In the present case, massage therapy and prescription benefits were not requested in the April 24, 2002, and May 29, 2002, petitions for benefits. They were not listed on the pretrial stipulation, nor were they clearly placed at issue during the hearing or tried by consent. Therefore, the portion of the order that awards these benefits is reversed.

The order is affirmed in all other respects.

Affirmed in part; reversed in part.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    David KEEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1292.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2004.
    David Keen, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Rickman v. State, 871 So.2d 310 (Fla. 5th DCA 2004).

SAWAYA, C. J., SHARP, W., and PALMER, JJ., concur.


text:
    Fabian T. PADILLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1555.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2004.
    Diego Handel of Glasser and Handel, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gordon v. State, 863 So.2d 1215 (Fla.2003); State v. Coney, 845 So.2d 120, 137 (Fla.2003).

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


text:
    Marcell D. CORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1455.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2004.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 689 So.2d 1147 (Fla. 4th DCA 1997).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.