author: SAWAYA, C.J.

text:
    PROMONTORY ENTERPRISES, INC., et al., Appellants, v. SOUTHERN ENGINEERING & CONTRACTING, INC., Appellee.
    No. 5D03-495.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Matthew Triggs, David J. George, Joelle C. Sharman and Stephanie Reed Traband of Proskauer Rose LLP, Boca Raton, for Appellants.
    Robert Hoofman and Charles R. George, III of Rush, Marshall, Jones & Kelly, P.A. and L. Bruce Stout, Roswell, Georgia, for Appellee.
   SAWAYA, C.J.

Promontory Enterprises, Inc. and the surety, Highlands Insurance Company, (collectively referred to as Promontory) appeal the order denying their Emergency Motion to Stay Arbitration with the plaintiff, Southern Engineering & Contracting, Inc. The motion emanated from Southern’s breach of contract action involving a construction contract entered into at a time when Southern allegedly did not have a contractor’s license. The construction contract, and thus the arbitration clause therein, are unenforceable, Promontory contends, because Southern did not have a license at the time it entered into the contract.

Southern argues that the 2003 amendments to section 489.128, Florida Statutes, should be retroactively applied to the instant case and that under that statute, it was licensed and it may therefore enforce the contract and the arbitration provision contained therein. Promontory argues that the 2000 version of section 489.128 applies and that under that statute, the contract containing the arbitration clause is unenforceable. Hence the issue we must resolve is which version of section 489.128 applies. In order to resolve this issue, we will discuss the factual background of the instant case and the general principles of retroactivity, and then we will apply those principles to both versions of section 489.128 to reach a conclusion.

Factual Background

Promontory, an operator of a bookstore, entered into a contract, complete with arbitration clause, with Southern on June 20, 2000, that required Southern to construct a new bookstore for Promontory. Although Southern obtained a permit, it never actually began construction. Consequently, Promontory terminated the contract and hired another contractor. On May 8, 2001, Southern filed a breach of contract action. Shortly before what was to have been the final hearing in the arbitration process, Promontory discovered that Southern was not a licensed general contractor at the time it entered into the contract. Promontory filed the stay motion asking the trial court to stay the final arbitration until such time as the court could determine whether the contract was enforceable.

At the hearing on the stay motion, which predated the 2003 amendment to section 489.128, the central issue argued to the trial court was whether the 1999 or 2000 version of section 489.128, Florida Statutes, applied. The 1999 version of the statute provided:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply.

§ 489.128, Fla. Stat. (1999). Effective July 1, 2000, the statute was amended to delete the last sentence and eliminate the cure provisions contained therein. Ch. 00-372, §§ 35, 48, at 3143, 3147, Laws of Fla.

Promontory argued that the 2000 amendment should be applied retroactively and the fact that Southern belatedly obtained its license does not matter. This argument is premised on the deletion of the cure provision in the 2000 version of section 489.128. Without the cure provision, the contract was unenforceable at the time it was entered into and remained so even after Southern obtained its license.

Southern’s argument centered on the applicability of the cure provision in the 1999 statute. Because it had the right to cure its unlicensed status and thereby render the contract enforceable, the arbitration clause contained therein is like the contract as a whole — enforceable. Southern contended that the 2000 version cannot be retroactively applied because it had a vested right to cure at the time it entered into the contract. To apply the 2000 version would abrogate its vested right, argued Southern, and therefore the 1999 version, not the 2000 version, applied.

During the pendency of this appeal, the Legislature enacted the 2003 version of section 489.128. The 2003 amendment provides in pertinent part:

As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.

§ 489.128(1), Fla. Stat. (2003). The Legislature also included other provisions not previously included in the prior versions of the statute. For example, the 2003 version of the statute provides that “[a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.” § 489.128(l)(a), Fla. Stat. (2003). The statute also notably provides that “an individual or business organization shall not be considered unlicensed for failing to have an occupational license certificate issued under the authority of chapter 205” and that “[a] business organization shall not be considered unlicensed for failing to have a certificate of authority as required by ss. 489.119 and 489.127.” § 489.128(l)(b), Fla. Stat. (2003).

The enactment of the 2003 version of section 489.128 was not unanticipated by Southern. In the Appendix to its brief, Southern had included a copy of the bill containing the 2003 statute that was pending in the Legislature at the time this appeal was instituted. Moreover, Southern, in its Answer Brief, had argued the provisions of the then pending bill containing the 2003 statute. When the 2003 version was enacted into law, Southern filed a notice of supplemental authority bringing this fact to our attention. This court then ordered that each party provide supplemental briefs regarding the issue of the retroactive application of the 2003 version of section 489.128 to the instant case.

At first blush, it would seem ironic that Southern would seek application of the 2003 version of the statute to the instant case given the fact that it does not contain a cure provision, until it is realized that the new provisions contained in the 2003 statute actually benefit Southern. Specifically, the facts below established that Southern was unlicensed because it did not have a certificate of authority. However, section 489.128(l)(b), Florida Statutes (2003), provides that a business organization is not considered unlicensed if it does not have the certificate of authority required under sections 489.119 and 489.127. Therefore, if the 2003 version of section 489.128 is applicable to the instant case, Southern would be considered a licensed contractor and may seek enforcement of the contract. In order to resolve which version of section 489.128 is applicable, we must first discuss the general principles of retroactivity that apply to legislative enactments.

General Principles of Retroactivity

It is firmly established that a statute may be retroactively applied if: 1) there is clear evidence that the Legislature intended to apply the statute retroactively; and 2) retroactive application is constitutionally permissible. Campus Communications, Inc. v. Earnhardt, 821 So.2d 388, 395 (Fla. 5th DCA 2002) (citing Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494 (Fla.1999)), review denied, 848 So.2d 1153 (Fla.), and cert. denied, — U.S. --, 124 S.Ct. 821, 157 L.Ed.2d 698 (2003); see also Romine v. Florida Birth Related Neurological Injury Comp. Ass’n, 842 So.2d 148 (Fla. 5th DCA), review denied, 857 So.2d 195 (Fla.2003). In Earnhardt, this court explained the first inquiry:

The first inquiry poses a question of statutory construction and requires application of a legal presumption which provides that statutes, in the absence of clear legislative intent to the contrary, should apply prospectively. Legislative intent must be determined primarily from the language of the statute and “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157 (1931)); see also Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000); Chase Federal, 737 So.2d at 500 (“Of course, where the language of a statute contains an express command that the statute is retroactive, there is no need to resort to these canons of statutory construction.”) (citations omitted); Modder v. American Nat’l Life Ins. Co., 688 So.2d 330, 333 (Fla.1997).

Earnhardt, 821 So.2d at 395.

Generally, unless the Legislature clearly expresses its intention to the contrary, substantive statutes are presumed to apply prospectively while remedial statutes are presumed to apply retrospectively. Earnhardt; Kerr Const., Inc. v. Peters Contracting, Inc., 767 So.2d 610 (Fla. 5th DCA 2000). Regardless of the nature of the statute, once the legislative intent is determined, the second inquiry must be addressed to determine whether retroactive application of the statute is constitutionally permissible. Romine; Earnhardt. “In instances where the Legislature clearly expresses the intent that a statute is to be given retrospective application, as in the instant case, the courts will refuse to apply the statute retroactively ‘if the statute impairs vested rights, creates new obligations, or imposes new penalties.’ ” Earnhardt, 821 So.2d at 396 (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995) (citations omitted)); see also Romine.

Having explained these general principles of retroactivity, we will proceed to apply them to the 2000 and 2003 versions of section 489.128.

The 2000 Version of Section 489.128

Application of the first inquiry to the 2000 version of section 489.128 leads to the inescapable conclusion that there is no clear evidence that the Legislature intended the statute to be applied retroactively. Promontory’s reliance on the preamble statement found in section 489.101, Florida Statutes (2000), is misplaced. Promontory contends that the legislative declaration that it was “necessary in the interest of the public health, safety, and welfare to regulate the construction industry” is evidence of legislative intent that the 2000 amendment to section 489.128 be applied retroactively. § 489.101, Fla. Stat. (2000). We disagree. This same provision also appears in section 489.128 of the 1999 statutes, and the 1999 version clearly allows an unlicensed contractor to cure his or her status. The Legislature knew the meaning of the clear and unambiguous language that establishes the cure provision of the statute. We therefore find this argument unavailing.

We find Promontory’s argument that the 2000 version of the statute is an interpretation or clarification of the 1999 statute equally unconvincing. This argument would have appeal if the 1999 statute was unclear and its meaning in doubt, but as we have indicated, the cure provision in the 1999 statute is clear and unambiguous. See Foreman v. Russo, 624 So.2d 333 (Fla. 4th DCA 1993), review denied, 637 So.2d 234 (Fla.1994). This court and others have concluded that the 2000 version of section 489.128 is a substantive change that may not be applied retroactively. Mivan, Inc. v. Metric Constructors, Inc., 857 So.2d 901 (Fla. 5th DCA 2003). We adhere to that conclusion. Although substantive statutes may be applied retroactively if that is what the Legislature clearly intended, the following analysis dispels that application in this case.

When the Legislature amended section 489.128 in July 2000 to delete the cure provision, rather than include a statement of retroactivity, the Legislature specifically provided that the amendment would take effect July 1, 2000. This indicates to us that the Legislature did not intend the 2000 version of the statute to be applied retroactively. See State, Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353, 358 (Fla.1977) (“The 1977 Legislature’s inclusion of an effective date of July 1, 1977, in Ch. 77-281 effectively rebuts any argument that retroactive application of the law was intended.”); Foreman; Middlebrooks v. Department of State, Div. of Licensing, 565 So.2d 727 (Fla. 1st DCA 1990). If the Legislature intended to make the statute retroactive it could easily have said so, as it did when it enacted the 2003 version of section 489.128. It is not our function to divine legislative intent of retroactivity with guess or assumption. If there is not clear evidence that the Legislature intended to apply the statute retroactively, and there is not with regard to the 2000 version of section 489.128, we must answer the first inquiry in favor on non-retroactivity. See Mivan (holding that the 2000 version of section 489.128 may not be retroactively applied). Hence, our inquiry as to the retroactive application of the 2000 version of section 489.128 shall proceed no further.

The 2003 Version of Section 489.128

When it enacted the 2003 version of section 489.128 in chapter 03-257, section 1, Laws of Florida, the Legislature stated in clear, unmistakable and unequivocal terms that the statute was to be retroactively applied:

Sections 1, 2, 3, and 4 are intended to be remedial in nature and to clarify existing law. Sections 1, 2, 3, and 4 shall apply retroactively to all actions, including any action on a lien or bond claim, initiated on or after, or pending as of, the effective date of this act. If the retroactivity of any provision of section 1, section 2, section 3, or section 4, or its retroactive application to any person or circumstance, is held invalid, the invalidity does not affect the retroactivity or retroactive application of other provisions of sections 1, 2, 3, and 4.

Ch. 03-257, § 8, Laws of Fla. Absent a savings clause, statutes affecting remedial or procedural changes where vested rights are not abrogated may be applied to any pending action, including an appeal. See Tejada v. In re Forfeiture of The Follow ing Described Property, $406,626.11 In U.S. Currency, 820 So.2d 385 (Fla. 3d DCA 2002); Fallschase Dev. Corp. v. Blakey, 696 So.2d 833 (Fla. 1st DCA 1997); Rothermel v. Florida Parole & Prob. Comm’n, 441 So.2d 663 (Fla. 1st DCA 1983); see also Lockheed Space Operations v. Pham, 600 So.2d 1261 (Fla. 1st DCA 1992) (Ervin, J., concurring). The Legislature did not provide a savings clause when it enacted the 2003 version of section 489.128.

It is clear that the Legislature intended the 2003 version of section 489.128 to be remedial and to clarify existing law. Even if the statute is substantive in nature, the Legislature certainly intended that it be retroactively applied. Therefore, regardless of whether the statute is substantive or remedial, it may be retroactively applied if that is constitutionally permissible. Hence we proceed to the second inquiry.

Retroactive application is constitutionally permissible if it does not violate due process by abrogating a vested right. Earnhardt, 821 So.2d at 396; see also Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494 (Fla.1999). “A vested right has been defined as ‘an immediate, fixed right of present or future enjoyment’ and also as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.” City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514-15 (1935); see also Romine; Earnhardt.

Contracts entered into in violation of section 489.128 are declared by the Legislature to be against public policy and, therefore, unenforceable. The courts consider such contracts to be illegal. See Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19, 25 (1908) (“Contracts ... that violate the principles designed for the public welfare are illegal and will not in general be enforced by the courts.... ”); John Hancock-Gannon Joint Venture II v. McNully, 800 So.2d 294 (Fla. 3rd DCA 2001); Castro v. Sangles, 637 So.2d 989, 990 (Fla. 3d DCA 1994). Regardless whether a contract entered into by an unlicensed contractor is unenforceable, illegal, or both, such a contract cannot give the contractor a vested right that may be impaired by retroactive application of section 489.128, Florida Statutes (2003). Accordingly, we conclude that retroactive application of the 2003 version of section 489.128 does not impair a vested right in the contract. We also do not believe that there is a vested right in the statutory cure provisions.

The 1999 version of section 489.128 provided a cure provision that allowed the contractor to subsequently obtain its license and thereby render the contract enforceable. The courts have consistently held, however, that “ ‘to be vested a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand,....”’ Division of Workers’ Comp., Bureau of Crimes Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982) (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.1975)); see also Lamb v. Volkswagenwerk Aktiengesellschaft, 631 F.Supp. 1144, 1149 (S.D.Fla.1986); Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla.1987), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988); Earnhardt; In re Will of Martell, 457 So.2d 1064, 1068 (Fla. 2d DCA 1984) (“To be vested, a right must be more than a mere expectation based on anticipation of the continuance of an existing law ....”) (citation omitted). The cure provision in the 1999 version of section 489.128 merely provides the contractor with a possibility to make the contract enforceable if the contractor obtains a license in the future. Possibilities based on what may or may not occur in the future do not create vested rights because possibilities are not immediate and fixed rights of present or future enjoyment. Moreover, in the event the statute is abrogated prior to the contractor obtaining a license, the possibility created by the statute vanishes and the contract remains unenforceable and illegal. Therefore, the statute does not create a legal or equitable title to the present or future enforcement of a demand. Hence, the statutory cure provision is nothing more that an expectation based on the anticipated continuance of the statute that creates the possibility to cure, and once that statute is abrogated, the possibility for cure is completely lost.

Conclusion

We conclude that the 2003 version of section 489.128 should be retroactively applied to the instant case. Promontory asserted in the trial court and in these proceedings that Southern was not properly licensed because it did not obtain a certificate of authority until after the contract was executed. However, the Legislature has declared that a business organization’s failure to obtain a certificate of authority does not necessarily mean that the business organization is unlicensed under section 489.128. See § 489.128(l)(b), Fla. Stat. (2003) (“A business organization shall not be considered unlicensed for failing to have a certificate of authority as required by ss. 489.119 and 489.127.”). We therefore affirm the order denying Promontory’s Emergency Motion to Stay Arbitration.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    B.C., Father of S.C. and D.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-1680.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      R. Mitchell Prugh of Middleton & Prugh, P. A., Melrose, for Appellant.
    John H. Traphofner of Department of Children and Families, Palatka, for Appel-lee.
   ORFINGER, J.

B.C., the biological father of S.C. and D.C., appeals an order adjudicating S.C. and D.C. dependent. B.C. argues that the trial court’s written order of dependency did not conform to the court’s oral pronouncement. He also contends that the adjudication of dependency was erroneous because he was willing and able to care for the children and was a non-offending parent. We reverse and remand the matter for further proceedings.

S.C. and D.C., both under the age of four, resided solely with their mother, M.N., until they were taken into State custody. The dependency case was initiated when the Department of Children and Families (“the Department”) filed an Affidavit and Petition for Placement in Shelter, requesting that the court shelter S.C. and D.C. The petition alleged that the mother had a history of abusing drugs and alcohol, resulting in S.C.’s removal in the past, and that the mother had relapsed, placing the children at imminent risk. In addition, the Department alleged that B.C., the father, had a history of violence and involvement with illegal drugs. The shelter order found probable cause to believe that the children were at risk from both the mother and the father and ordered that the children be placed in the temporary custody of the Department. Thereafter, the Department filed a petition for dependency. However, the dependency petition made no allegations as to B.C., as the Department dropped all allegations against him.

B.C., through counsel, denied the petition for dependency, while the mother consented to the petition. At the arraignment, the following exchange occurred:

MR. PRUGH [Father’s counsel]: The Father would enter a denial.
THE COURT: Okay.
MR. BRADLEY [Mother’s counsel]: Your Honor, although my client won’t deny the allegations, she will consent to the case plan that (inaudible)
THE COURT: I’ll have to do one for the mother in this case, (inaudible)
MR. PRUGH: Yes, Your Honor.
I do not believe the children are dependent, so we would ask that an adjudication of dependency not be entered at this point until at least — a future hearing, because we believe we have an actual Father who is fit and able to take custody of the children but for the allegations against him.
MR. TRAPHOFNER [Department’s Counsel]: Your Honor, may I?
I think Mr. Prugh and I continue the longstanding debate. He doesn’t like the statute, he doesn’t believe the statute is Constitutional, doesn’t think a child can be found dependent based upon allegations against a single parent alone, which, of course, the statute provides for.
However, an adjudication would not be entered until the time of dependency disposition.
So I would ask the Court to find at this time that the — based upon the Mother’s consent — that the child is dependent, withhold adjudication until the disposition hearing, at which time, if Mr. Prugh’s client [the father] is — has no allegations against him, has a positive home study, there’s not going to be an issue there.
If he doesn’t, then there may very well be an issue that will be discussed.
MR. PRUGH: We have no objection, Your Honor, to that procedure, other than the home study requirement, but we can address that later.
THE COURT: Okay. All right.
I’ll accept the Mother’s consent, the Father’s denial, and withhold adjudication of dependency.

(Emphasis added). A disposition date, acceptable to all the parties, was then set. In the interim, B.C. filed a motion for temporary and permanent custody of his children.

A week prior to the disposition hearing, the trial court entered a written order from the earlier arraignment hearing. The written order stated that “[b]ased on the mother’s consent, the Court finds the child(ren) to be dependent within the intent and meaning of Chapter 39.01(14)(a), Florida Statutes.” Thus, the written order did not withhold adjudication of dependency, as had been agreed at the arraignment hearing. Where there is a difference between the court’s oral pronouncement and its written order, the oral pronouncement controls. See D.F., Jr. v. State, 650 So.2d 1097 (Fla. 2d DCA 1995). The Department concedes that the scrivener’s error should be corrected to reflect the agreement of the parties and the court’s oral pronouncement. To the extent that the order needs clarification, we remand the matter to the trial court. See Y.G. v. Dep’t of Children & Families, 830 So.2d 212 (Fla. 5th DCA 2002).

Of more significance, B.C. argues that section 39.01(14)(a) was not intended to allow children to be found dependent when the allegations are against only one parent and there exists another fit non-offending parent willing to assume custody-

Section 39.01(14), Florida Statutes (2003), provides the following definition:

(14) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abtised, or neglected by the child’s parent or parents or legal custodians;
* * *
(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.

(Emphasis added). Based on the inclusion of “parent or parents” in section 39.01(14), the Legislature’s intent to permit a finding of dependency based on allegations against only one parent is clear and unambiguous. When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent. City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993).

In Department of Health and Rehabilitative Services v. P.H., 659 So.2d 1375, 1377 (Fla. 1st DCA 1995), the first district court addressed the issue of legislative intent in determining whether a chapter 39 finding of dependency required findings against both parents, holding:

We construe the legislature’s use of the disjunctive “or” to designate a single parent or parents, and the inclusion of custodians as persons whose conduct may result in a finding that a child is dependent, as indicative of legislative intent that a finding of dependency can be predicated upon the neglect of one parent, both parents, or the custodians of a minor child, depending upon the circumstances of the particular case. Case law on this subject has applied dependency provisions in this manner. See, e.g., C.F. v. Department of Health and Rehabilitative Services, 649 So.2d 295 (Fla. 1st DCA 1995); In the Interest of J.J. and J.J., 570 So.2d 1078, 1079 (Fla. 1st DCA 1990); In the Interest of L.S., 592 So.2d 802 (Fla. 4th DCA 1992).

The court further observed that, in addition, the 1994 amendments to section 39.404(3)(c) state in part: “The petition need not contain allegations of acts or omissions by both parents.” Id. The statute now in effect, section 39.501, Florida Statutes (2003), contains the same language. See also J.V. v. Dep’t of Health & Rehabilitative Servs., 661 So.2d 1263, 1265 n. 2 (Fla. 1st DCA 1995).

This court has also recognized the application of chapter 39 dependency to “non-offending” parents. In J.P. v. Department of Children and Families, 855 So.2d 175 (Fla. 5th DCA 2003), this court rejected the argument that a non-offending father could not be required to participate in a case plan. This court determined that the trial court had the authority to order the father to submit to a psychological evaluation as an element of the case plan after the child was adjudicated dependent as to the mother and removed from her custody, even though child was not adjudicated dependent as to the father.

Lastly, section 39.521, Florida Statutes (2003), provides the procedure to be followed for placement of a dependent child:

(3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
* * *
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. If the court places the child with such parent, it may do either of the following:
1. Order that the parent assume sole custodial responsibilities for the child.
2. Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters.

(Emphasis added).

When read together, sections 39.01(14)(a) and 39.521, Florida Statutes (2003), provide a comprehensive framework supporting the Department’s position for finding children dependent as to one parent only. Nevertheless, if there is a fit and able non-offending parent willing to take custody, “the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.” See § 39.521, Fla. Stat. (2003); Roberts v. Fla. Dep’t of Children & Families, 687 So.2d 51, 51 (Fla. 3d DCA 1997) (finding that because there was no evidence nor any finding that the placement “would endanger the safety and well-being of the child,” the mandatory terms of section 39.41(1), Florida Statutes (1995), required that the father be given custody; statute does not permit an independent judicial consideration of the “best interests” of the child).

B.C. also argues that section 39.01(14)(a) is unconstitutional in that permitting an adjudication of dependency, when there is a non-offending parent willing and able to take immediate custody, violates Florida and federal due process and privacy rights. A distinction is drawn between challenges to the facial unconstitutionality of a statute and the unconstitutionally of the application of the statute to the facts of a particular case. The former may be raised for the first time on appeal; the latter must first have been raised at the trial level. Thus, application of an unconstitutional statute constitutes fundamental error, whereas unconstitutional application of an otherwise constitutional statute does not. Alexander v. State, 450 So.2d 1212, 1216 (Fla. 4th DCA 1984).

B.C. did not specifically challenge the constitutionality of chapter 39 to the court below, but clearly indicated his intent to do so. Given that the court advised the parties that it was withholding adjudication, B.C. was not on notice that the statute would be applied to him until the written order, adjudicating the children dependent, was rendered. On remand, B.C. should be given the opportunity to challenge the constitutionality of the statute, as it applies to him.

Under the current statutory scheme, if an adjudication of dependency were entered, B.C., as a non-offending parent, would be entitled to custody of the children unless the placement was shown to endanger the children. See § 39.521, Fla. Stat. (2003). The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests. See Roberts, 687 So.2d at 51.

At the disposition hearing, all parties are permitted to present evidence and argument. § 39.501(3)(b), Fla. Stat. (2003). In the case of a non-offending parent seeking custody, the statute is designed to recognize the State’s compelling interest in the safety of children by the least restrictive means possible. The statute protects the interests of the child by requiring that, at a minimum, a home study be conducted and made available to the court prior to placement. This procedure is not an unconstitutional imposition on a non-offending parent, but an appropriate and narrowly designed effort to ensure that placement with the “non-offending” parent will not endanger the child.

We remand this matter with instructions to conform the written order to the court’s oral pronouncement. B.C.’s constitutional arguments are, at this point, premature. On remand, B.C. is free to question the constitutionality of the of the statute, as applied to him. As a non-offending parent, B.C. would be entitled to placement at disposition unless the placement was shown to endanger the children. See § 39.521, Fla. Stat. (2003).

REVERSED AND REMANDED.

PETERSON and PLEUS, JJ., concur.

      . Section 39.404 was renumbered as section 39.501, and amended by chapter 98-403, section 62, Laws of Florida 1998, effective Oct. 1, 1998.

      . 39.501. Petition for dependency
      (1) All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by an attorney for the department, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.
      (2) The purpose of a petition seeking the adjudication of a child as a dependent child is the protection of the child and not the punishment of the person creating the condition of dependency.

        (3)(a) The petition shall be in writing, shall identify and list all parents, if known, and all current legal custodians of the child, and shall be signed by the petitioner under oath stating the petitioner’s good faith in filing the petition. When the petition is filed by the department, it shall be signed by an attorney for the department.
      (b) The form of the petition and its contents shall be determined by rules of juvenile procedure adopted by the Supreme Court.
      (c) The petition must specifically set forth the acts or omissions upon which the petition is based and the identity of the person or persons alleged to have committed the acts or omissions, if known. The petition need not contain allegations of acts or omissions by both parents.

      (Emphasis added).

      . Section 39.41 was renumbered as section 39.508 and amended chapter 98-403, section 69, Laws of Florida 1998, effective Oct. 1, 1998. Section 39.508 was renumbered as section 39.521 and amended by chapter 2000-139, section 23, effective July 1, 2000.

      . Once a court has legal custody of a child, the court should not relinquish that child to the non-custodial parent without some indication that the parent is able to care for the child appropriately. See Dep't of Children & Families v. Benway, 745 So.2d 437, 439 (Fla. 5th DCA 1999).


author: THOMPSON, J.

text:
    Thomas B. WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2769.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Thomas B. Wheeler appeals his sentence and the denial of his motion to withdraw plea.

We find no abuse of discretion in the denial of the motion to withdraw plea and affirm the order.

We agree with Wheeler, however, that his sentences for burglary are illegal. Wheeler pleaded guilty to five counts of burglary of a dwelling, among other crimes, in exchange for the state’s recommendation that Wheeler be sentenced to between 25 and 35 years in prison. The court sentenced him to 25 years for each of the burglaries. Burglary of a dwelling is a second-degree felony under section 810.02(3), Florida Statutes (1999), and is punishable by a maximum term of 15 years under section 775.083(3)(e), Florida Statutes (1999). A sentence can exceed the statutory maximum, but only if the lowest permissible sentence under the sentencing code exceeds the statutory maximum. Rule 3.704(d)(25), Fla. R.Crim. P.; § 921.0024, Fla. Stat. (1999). The lowest permissible sentence for each of the burglaries was 165.6 months, or 13.80 years. Because the lowest permissible sentence was 13.80 years, the maximum permissible sentence was 15 years.

A sentence which exceeds the statutory maximum is an illegal sentence, compare Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), and an illegal sentence cannot be imposed even as part of a negotiated plea agreement, Wright v. State, 743 So.2d 103 (Fla. 1st DCA 1999). The state argues that the sentences were not illegal because the court could have achieved an overall sentence of 25 years by ordering five-year sentences, which Wheeler also received, to run consecutive to the burglary sentences. We do not agree because the fact that the court could have imposed consecutive sentences does not cure the illegality of the sentences actually imposed. Similarly, the fact that the court may order consecutive sentences on remand does not cure the illegality of the sentences. Compare Leonard v. State, 760 So.2d 114, n. 4 (Fla.2000) (holding that illegal sentence should not remain uncorrected merely because it was to be served concurrent to another sentence). Accordingly, we vacate the sentences for burglary of a dwelling imposed in case numbers CR99-17100, CR99-17101, CR00-569, CR00-368, and CR00-730. However, because the sentences were the result of a plea agreement with the state, the state should be given the option on remand “of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while making the judgment stand and allowing the defendant to be resentenced.” Jolly v. State, 392 So.2d 54, 56 (Fla. 5th DCA 1981).

AFFIRMED in part; VACATED in part; and REMANDED with instructions.

PETERSON and TORPY, JJ., concur.


author: POLEN, J.

text:
    Dennis FISHER, Jr., Appellant, v. JOHN CARTER AND ASSOCIATES, INC., a Florida corporation, and T. Edward Hanner, individually, Appellees.
    No. 4D02-3992.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.

      Debra D. Duckett, Boca Raton, for appellant.
    Richard J. Sarafan of Genovese, Joblove & Battista, P.A., Miami, for appellees.
   POLEN, J.

This appeal arises out of a disputed award of attorneys’ fees. Fisher filed a five-count complaint against Carter & Associates for (I) breach of contract, (II) shareholder’s derivative suit, (III) accounting, (IV) wrongful termination under the Whistle-Blowers Act, and (V) breach of fiduciary duty. The trial court bifurcated the trial to first adjudicate Count I and Count IV. After the one-day trial, the court granted Carter’s motion for involuntary dismissal as to Count I (breach of contract) and Count IV (the Whistle-Blower claim), dismissed the remaining counts, and entered final judgment on August 8, 2001, expressly reserving jurisdiction to award fees in favor of Carter. That judgment on the merits has since been affirmed.

Carter moved for attorneys’ fees under section 57.105, Florida Statutes, on November 19, 2001, more than three months after the August 8, 2001, final judgment was entered. The motion alleged that there was no justiciable issue of fact or law and that Fisher knew of the lack of evidence. The motion was set for hearing on February 4, 2002. At the hearing, Fisher made essentially two arguments in opposition to the awarding of fees. First, Fisher incorrectly argued that Florida black letter law required claims for fees to be specifically pled. Second, Fisher argued Florida Rule of Civil Procedure 1.525 absolutely barred any application for attorneys’ fees not filed within thirty days of final judgment, and that the thirty-day deadline could not be extended.

The trial court rejected Fisher’s second argument, finding Florida Rule of Civil Procedure 1.525 to be non-jurisdictional, but denied Carter’s motion for fees “based on an absence of pleaded prayer therefor.” After the hearing, Carter filed a motion for rehearing based upon the trial court’s reliance on Fisher’s incorrect statement of law. Fisher filed a memorandum in response, arguing the issues of timeliness and entitlement. The rehearing took place on March 26, 2002. Both parties presented their arguments to the court. Fisher claims that the court cut short his argument on entitlement by clarifying that the only issue being addressed was whether Carter had properly pled for fees. Though the court did express words to that effect, it quickly explained that timeliness was the only issue upon which it had not reached a conclusion. Notwithstanding, Fisher proceeded to present in full his argument on the merits of entitlement. The court thereafter entered an order adjudicating Carter’s entitlement to an award of fees and costs with the amount thereof to be quantified either by agreement of the parties or at a later evidentia-ry hearing. Eventually the parties reached an agreement as to the appropriate amount of fees and costs to be awarded, and a final judgment for those agreed amounts was accordingly entered. It is from that final judgment which Fisher now appeals. For the reasons stated below, we affirm the award of attorneys’ fees.

Fisher’s first argument on appeal is that Carter’s motion for section 57.105 fees was untimely under Florida Rule of Civil Procedure 1.525, or otherwise untimely because more than three months expired from the entry of final judgment before the motion was filed. Florida Rule of Civil Procedure 1.525 provides that “any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment .... ” Actions that were still pending when Florida Rule of Civil Procedure 1.525 became effective are subject to the rule. See Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002) (holding that the rule requiring a party seeking attorneys’ fees and costs to serve a motion within thirty days after filing of the judgment applied to action that was pending when rule became effective, and thus, vendor’s motion for attorneys’ fees and costs, which was filed seventy-seven days after judgment, was untimely). As such, this action is subject to rule 1.525 because the case was still pending after the effective date of January 1, 2001. Final judgment was entered on August 8, 2001. Carter reframes the issue on appeal as whether the trial court had discretion to extend the thirty-day deadline under rule 1.525. Carter alleges that the thirty-day deadline is subject to being extended by the trial court in accordance with Florida Rule of Civil Procedure 1.090(b) (authorizing a trial court to enlarge the time for performing acts “allowed to be done at or within a specified time ..., by these rules”).

Former section 768.79, Florida Statutes (1991) (offer of judgment and demand for judgment) and section 45.061(2), Florida Statutes (1987) (offers of settlement), required a motion for attorneys’ fees to be filed within thirty days after the entry of final judgment. The third district believed the express language of the Florida Statutes § 768.79 required the motion for attorneys’ fees to be filed within thirty days after the entry of judgment regardless of whether the trial court reserved jurisdiction to award attorneys’ fees. Bodek v. Gulliver Academy, Inc., 659 So.2d 354 (Fla. 3d DCA 1995). On the contrary, the first district interpreted the thirty-day time limit in section 45.061(2), Florida Statutes, as non-jurisdictional or rather that a reservation of jurisdiction to award attorneys’ fees operated as an enlargement of time for the filing of a motion for attorneys’ fees under Florida Rule of Civil Procedure 1.090(b). Gilbert v. K-Mart Corp., 664 So.2d 335 (Fla. 1st DCA 1995).

In Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997), the Florida Supreme Court resolved the split and adopted the first district’s view by recognizing that Florida Rule of Civil Procedure 1.090(b) applies to both statutes. The Supreme Court held that

when the trial court entered final judgment, the court reserved jurisdiction to entertain a motion for attorney fees and costs. This reservation of jurisdiction allowed the trial court to consider further proceedings on the issue of attorney fees even though the motion for fees was filed more than thirty days after the entry of judgment. We find that a reservation of jurisdiction in a final judgment is procedurally an enlargement of time under rule 1.090(b), which may allow a party to file late a motion for attorney fees. Any other interpretation would make the trial court’s reservation in the final judgment not only a nullity but a procedural trap.

Id.

Consequently, we read Gulliver as supporting by way of analogy that the reservation of jurisdiction extends the time for filing a motion for attorneys’ fees. Furthermore, the Supreme Court announced in Gulliver that no finding of excusable neglect was required to extend the time for filing a motion for attorney fees through reservation of jurisdiction in the final judgment; excusable neglect would only be a necessary finding if the reservation of jurisdiction occurred after the thirty-day time requirement. Id. In the instant case, the trial court expressly reserved jurisdiction to award attorneys’ fees in the final judgment, thus dispensing with the need to show that the failure to act within the time period was the product of excusable neglect in order to enlarge the time period under the rule. Though Gulliver was decided before Florida Rule of Civil Procedure 1.525 was adopted, the pertinent time provisions of the two statutes are so closely analogous to the rule that we can find no reason not to extend its holding.

We are unsure whether we are in conflict with Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003). In Wentworth, the fifth district rejected an argument that a reservation of jurisdiction in a final judgment entitles a party to an automatic extension of the thirty-day time limit to file a motion for fees.

A request for fees and costs contained within a complaint or answer simply puts one’s adversary on notice that a claim for fees and costs will be sought at the conclusion of the case. It is neither self-effectuating, nor sufficient in itself to comply with Rule 1.525. Diaz, 832 So.2d at 201. A separate motion must be filed in order to comply with this rule.

Wentworth, 845 So.2d at 298-99. Notwithstanding, the fifth district held that rule 1.090(b) does apply to rule 1.525, so that a trial court can enlarge the thirty-day time requirement upon a showing of excusable neglect. Id. at 298-300. To the extent we are in conflict with Wentworth, we note that conflict.

Fisher also raises two additional issues on appeal. First, Fisher argues that the trial court erred in determining entitlement to fees without giving him notice that entitlement was being considered, and without giving him the opportunity to be heard on that issue. “Due process in a court proceeding demands that the defendant be given fair notice and a reasonable opportunity to be heard before a judgment is rendered.” Hinton v. Gold, 813 So.2d 1057, 1060 (Fla. 4th DCA 2002). Fisher’s due process claim is without merit for the reasons that follow.

Addressing Fisher’s first allegation of lack of notice, it should be noted that there were two hearings which form the basis for this issue on appeal. The first hearing was on February 4, 2002, and concerned the Motion for Attorneys’ Fees. The second was a rehearing for the same issue on March 26, 2002. Both hearings were duly and properly noticed. Fisher notes that the trial court specifically stated that the only issue before the court on the rehearing was whether Carter’s Motion for Fees was timely. Thus, Fisher claims that awarding fees at the rehearing without giving him notice that the entitlement issue was before the court is a due process violation. Fisher’s argument is disingenuous because he takes the court’s statement out of context, thus failing to accurately portray the court’s comments in their entirety. Though the court did in fact utter similar words to the effect that the only issue was the timeliness of the motion, the court went on to further explain itself by saying “believe me, it’s the only issue for me.” When taken in the context of the entire rehearing, the court made clear that a determination had already been made concerning entitlement, and that only the issue of timeliness remained to be resolved. Furthermore, despite Fisher’s alleged lack of notice, he filed a memorandum of law before the rehearing detailing all of the arguments in opposition to any award of attorneys’ fees and he addressed similar arguments during both hearings. Such added circumstances clearly indicate that Fisher in fact had sufficient notice, and negate- Fisher’s second due process argument, the lack of an opportunity to be heard.

Fisher’s next argument is that he was not given a chance to present his argument before the court on the issue of fee entitlement. Contrary to Fisher’s claim, he was given ample opportunity in the first hearing to discuss the issue, but chose to lead the court astray by incorrectly stating the black letter law of Florida. Fisher’s error, which the court relied upon in its February 4 order, created the need for the rehearing. Before the rehearing took place, Fisher again presented the court with its argument on fee entitlement in a memorandum entitled Plaintiffs Reply to Defendant’s Motion for Rehearing Regarding Order of February 4, 2002. Then again at the rehearing on March 26, 2002, Fisher once more presented the court with his same argument on the merits of fee entitlement, namely that the complaint was not completely lacking any justiciable issues of law or fact. The record completely contradicts both of Fisher’s claims, and therefore we can find no due process violation.

Fisher’s final issue on appeal is that the trial court erred in impliedly finding a complete lack of a justiciable issue, as required for fees under section 57.105. When reviewing this issue, this court must look to see if the trial court abused its discretion in finding no justiciable issues of fact or law. See Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002). “In order to demonstrate a complete absence of justiciable issues, the claim or defense must be so clearly devoid of merit both on the facts and the law when presented as to be completely untenable.” Arenas v. City of Coleman, 791 So.2d 1234, 1235 (Fla. 5th DCA 2001) (citation omitted). Fisher fails to meet his burden of proving that there was a justiciable issue, and consequently, we find no error on the part of the trial court and affirm the trial court’s order as to this issue.

The complaint in this case initially involved five counts. The trial court bifurcated the trial to first adjudicate Count I and Count IV, and upon involuntarily dismissing those counts the trial court also dismissed the remaining three counts. Fisher’s first argument on this issue is that the arguments in his plenary appeal, if successful, will raise justiciable issues of fact or law concerning the remaining three counts which were never tried on their merits. However, this argument need not be addressed because this court affirmed that judgment on June 11, 2002, thus rendering such an argument moot.

Fisher then contends that there was sufficient record evidence of the remaining two counts to create a justiciable issue of fact or law. First with regard to the Whistle-Blower count, Fisher explains that such allegations are very difficult to prove and then leads this court to believe that the trial court simply placed greater weight on Carter’s evidence than that of Fisher. Fisher, however, never provided any references to the record to support this conclusion. In opposition, Carter contends that this conclusion is incorrect, claiming that Fisher failed to advance any testimony or evidence to support his allegation that he was fired in retaliation for his Whistle-Blower conduct, or that there was any Whistle-Blower conduct to begin with. Fisher in fact testified that he never gave written notice of intent to report the company to the IRS, as was claimed in his complaint and required by the Florida Whistle-Blowers Act. Furthermore, Carter had a valid reason for terminating him. Fisher testified that he intentionally violated management’s express instructions and had been insubordinate. Additionally, Fisher acknowledged that the alleged issues in question were already brought to the attention of the IRS, and that the “issue was over.” Such evidence as pointed out by Carter when taken in conjunction with Fisher’s failure to pinpoint any conflicting evidence leads us to conclude that the Whistle-Blower count was frivolous.

The remaining count which Fisher contends constitutes a justiciable issue of fact or law involves a breach of contract action. Fisher claimed that Carter breached his contract by failing to pay commissions that were due. Once again however, Fisher fails to point out any documentary or testimonial evidence supporting this claim either. Notwithstanding, Carter again points to multiple record citations refuting this claim and indicating no justiciable issues of law or fact. In light of the ample record evidence suggesting that these claims were frivolous and the discretion given to the trial court in concluding as such, we conclude that the trial court did not err and thus affirm the award of attorneys’ fees under section 57.105, subject to a finding of excusable neglect at the hearing on remand.

AFFIRMED.

STEVENSON and SHAHOOD, JJ., concur.

      . Fisher v. John Carter & Assocs., Inc., 848 So.2d 332 (Table) (Fla. 4th DCA 2003).


author: SHAHOOD, J.

text:
    Szyja SZNIATKIEWICZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Herco Holding Corporation, Appellees.
    No. 4D03-62.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.

      Szyja Szniatkiewicz, Fort Lauderdale, pro se.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   SHAHOOD, J.

We reverse the Unemployment Appeals Commission’s (UAC) decision to disqualify appellant from receiving unemployment compensation benefits and remand with directions to have his benefits reinstated.

On July 21, 2002, a claims adjudicator determined that appellant quit his job at Gibbys Steaks and Seafood Restaurant to provide care for a family member and that the reason for quitting was not attributable to the employer, thereby disqualifying him from receiving benefits. Appellant appealed that determination and a hearing was held before an appeals referee. At the hearing, appellant was the only witness who testified.

The appeals referee made the following findings of fact:

The claimant began working for the employer in March 2001, as a waiter, and remained in that position until April 11, 2002, when he quit the job. The claimant received information from his family that his father had suffered a massive heart attack, and was in intensive care in Germany. The claimant informed his employer that his father was in the hospital, and he needed approximately two weeks to go to Germany. The claimant’s manager told the claimant that if he left he had no job when he returned. The claimant was one of the employer’s longest servers, as many workers quit during the claimant’s employment. The claimant left the job and went to Germany. Upon the claimant’s return from Germany, he did not return to the employer, as he believed he had been discharged.

The appeals referee then made the following conclusions of law:

In the instant case, the evidence presented indicates that the claimant was separated from the job when the employer failed to allow him time off to visit with his sick father in Germany. The employer witness at the hearing provided no competent testimony, as he was not present, during the claimant’s conversation with the manager that denied his time off. The employer witness was informed that the claimant did not report to work, and the reason for the claimant’s failure to report was unknown. This notion is rejected as the evidence indicates that the claimant was one of the employer’s longest servers, and the employer’s testimony was based on hearsay....
The employer witness provided no direct testimony at the hearing. The evidence presented shows that the claimant did not quit his job, but was advised that he would not have a job if he left. The claimant was separated from the job when he decided to respond to a legitimate family emergency. The evidence presented shows the claimant had no intentions of quitting the job.
In the instant case, the employer has not met the burden of proof in showing misconduct. The court has previously held that, an unapproved temporary absence of an employee, with proper notice to the employer, for the purpose of responding to a legitimate family emergency does not constitute misconduct connected with work. Howlett v. South Broward Hospital Tax District, 451 So.2d [976] (Fla. 4th DCA 1984).
In this case, the employer did not approve the temporary absence of the claimant for purposes of responding to a legitimate family emergency. Consequently, it is held that the claimant was separated for reasons other than misconduct connected with the work.

The employer appealed to the UAC arguing that appellant voluntarily quit his employment with no reason given and was never heard from again. The employer disputed the appeals referee’s findings of fact, and requested that its rebuttal witness be allowed to testify at a new hearing. This request was denied because the UAC’s review is limited to those matters which were presented to the referee and are contained in the official record.

The UAC adopted the appeal’s referee’s findings, but rejected his conclusions of law and substituted the following:

Based upon the above findings, the referee held that the claimant was discharged for reasons other than misconduct connected with work. Upon review of the record and the arguments on appeal, the Commission concludes that the referee’s decision is not in accord with the law; accordingly it is reversed.
The claimant was separated from his employment after he requested two weeks off to go to Germany because his father had a heart attack. The referee held that the claimant was discharged when he was advised that he would not have a job if he left and that the discharge was for reasons other than misconduct because the claimant was responding to a legitimate family emergency. The record, however, reflects that the claimant initiated the separation when he chose to leave work.
To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment....
The applicable standards are the standards of reasonableness as applied to the average man or woman, and not to the supersensitive.

Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827, 829 (Fla. 4th DCA 1973).

While it is clear that the claimant was responding to a family emergency, the claimant did not take reasonable steps to preserve his employment prior to leaving. The claimant admitted that he did not fill out a leave request form and that he did not speak with anyone above the shift manager regarding his request for time off. The claimant also admitted that he had filled out five previous request forms for time off and that all of them had been granted.
The claimant also did not attempt to salvage his employment by speaking to the employer when he returned from Germany. Although the claimant might have been upset because of his father’s condition, he should have made additional efforts to preserve his employment. Because the claimant failed to do so, the Commission concludes that he voluntarily left work without good cause attributable to the employer within the meaning of the law.

An appeal referee’s findings are to be accorded a presumption of correctness. See Berthe v. George G., 698 So.2d 1386 (Fla. 2d DCA 1997). The UAC’s standard of review of the appeals referee’s decision is whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law. See Maynard v. Florida Unemployment Appeals Comm’n, 609 So.2d 143, 144-45 (Fla. 4th DCA 1992). The basis for this is that the hearing officer or appeals referee in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence. See San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93, 95 (Fla. 4th DCA 1998). The UAC cannot reweigh the evidence and substitute its findings for those of the referee. See Grossman v. Jewish Community Ctr. of Greater Fort Lauderdale, Inc., 704 So.2d 714, 716 (Fla. 4th DCA 1998). In reviewing whether the record contains competent, substantial evidence to support the appeals referee’s findings, the District Court of Appeal cannot make determinations as to credibility or substitute "its judgment for that of the referee. See San Roman, 711 So.2d at 95. Thus, the appeals referee’s decision must be upheld where there is competent substantial evidence to support it. See id.

While an agency may reject conclusions of law without limitation, neither the administrative agency nor the reviewing court may reject the administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record. See Maynard, 609 So.2d at 145. The UAC may not modify the facts to reach a different legal conclusion nor may the UAC rely on facts that were not established at the hearing or rely on a theory not advanced by one party or anticipated by the other. See Eulo v. Florida Unemployment Appeal Comm’n, 724 So.2d 636, 638 (Fla. 2d DCA 1999). A legal conclusion of the UAC may therefore be overturned if it is clearly erroneous. See id. In reviewing a substituted conclusion by the UAC, this court must assure that the correct rules of law were applied. See Grossman, 704 So.2d at 716.

In this case, the appeals referee concluded that the claimant was separated from the job when the employer failed to allow him time off to visit his sick father in Germany. The evidence presented shows that the claimant did not quit his job, but was advised that he would not have a job if he left. Accordingly, the appeals referee concluded that appellant was separated from the job when he decided to respond to a legitimate family emergency. The evidence presented shows the claimant had no intention of quitting the job and that responding to a legitimate family emergency did not constitute misconduct connected with work.

While the UAC acknowledges that appellant did have a valid personal reason for traveling to Germany to see his father, it nevertheless concluded that such reason did not constitute good cause for leaving his employment. In so holding, the UAC ignored the “family emergency exception.”

Cases hold that even though an illness is not factually attributable to one’s employer, the law permits an “illness or disability of the individual requiring separation from his [or her] work” to be a good cause for voluntarily leaving a job. See Lewis v. Lakeland Health Care Ctr., Inc., 685 So.2d 876, 879 (Fla. 2d DCA 1996); § 443.101(1)(a)(1), Fla. Stat. (2002). Courts have extended this statute to authorize a “family emergency” in the nature of an illness or disability to be good cause for leaving a job in some circumstances. See, e.g., Lewis, 685 So.2d at 876 (claimant was fired when she failed to return to work as scheduled because she had to care for her son who had a stroke, and could not arrange alternative care); see also Foote v. Unemployment Appeals Comm’n, 659 So.2d 1232 (Fla. 5th DCA 1995)(claimant’s three-day absence from work when he cared for his wife and children following wife’s emergency surgery did not constitute misconduct); Gadsden v. Florida Unemployment Appeals Comm’n, 616 So.2d 1196 (Fla. 2d DCA 1993)(claimant left her position with good cause to care for her father who had brain tumor); Dean v. Florida Unemployment Appeals Comm’n, 598 So.2d 100 (Fla. 2d DCA), review denied, 605 So.2d 1268 (Fla.1992)(claimant who was unable to arrange supervision for her child with chicken pox left for good cause); Howlett v. South Broward Hosp. Tax Dist., 451 So.2d 976 (Fla. 4th DCA 1984)(Florida courts have repeatedly held that the unapproved temporary absence of an employee for the purpose of responding to a legitimate family emergency does not constitute willful and wanton disregard for the employer’s interest such as to justify denial to the employee of unemployment compensation). Compare Hall v. Fla. Unemployment Appeals Comm’n, 697 So.2d 541 (Fla. 1st DCA 1997)(elaimant who resigned from her job and left the state to protect herself and her children from an abusive husband left her employment voluntarily; leaving to avoid a family member is different from leaving work to care for an ill or disabled family member, thereby declining to carve out further extension to the family-emergency exception to statutory definition of good cause).

In this case, the evidence was uncontro-verted that appellant clearly had a valid reason to leave his employment and to travel overseas to tend to his ailing father. We accordingly reverse and remand with directions to the UAC to reinstate appellant’s unemployment compensation benefits.

REVERSED AND REMANDED.

STEVENSON, J., and GEIGER, DWIGHT L., Associate Judge, concur.


author: GROSS, J.

text:
    Dwayne GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-510.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Rehearing Denied Feb. 12, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Dwayne Grant was arrested with 28 zip-lock bags of marijuana in his pants pocket. The total weight of the marijuana was 27.3 grams. The probable cause affidavit indicated that Grant was arrested for possession of over 20 grams of cannabis. See § 893.13(6)(a), Fla. Stat. (2001).

The state filed an information charging Grant with possession of cannabis with intent to sell, contrary to section 893.13(l)(a)2. At the same time, the state filed an announcement of change of charges, indicating that it had filed possession of cannabis with intent to sell instead of the charge indicated on the probable cause affidavit.

The case went to a jury trial. Defense counsel requested the jury instruction for possession of over 20 grams of cannabis as a lesser included offense. Neither the defense nor the state requested any other lesser included offense. Both possession of cannabis with intent to sell and possession of over 20 grams of cannabis are third degree felonies. See § 893.13(l)(a)2.

During his closing argument, defense counsel first contended that the evidence was insufficient to prove that Grant had possessed marijuana. As a fail-back position, defense counsel argued that if the jury believed the arresting officer, then “the only thing that the prosecutor” proved was that “Grant committed the crime of possession of over 20 grams. Not the intent to deliver, just possession of marijuana.”

The trial judge instructed the jury that possession of over 20 grams of cannabis was a lesser included offense of possession of cannabis with intent to sell. The judge did not charge the jury concerning any other lesser included offense, such as possession of 20 grams or less of cannabis, a first degree misdemeanor. See § 893.13(6)(b). Defense counsel did not object to the jury instructions given. The jury found Grant guilty of possession of over 20 grams of cannabis.

Grant’s primary argument on appeal is that it was ineffective assistance of counsel on the face of the record for defense counsel to request a jury instruction for possession of more than 20 grams of cannabis as a lesser included offense of possession of cannabis with intent to sell or deliver, because the former crime was not a proper lesser included offense.

As Grant argues, “possession of twenty grams of [cannabis] is not necessarily included' within the offense of possession of cannabis with intent to sell, since it contains an element (that the cannabis weigh more than 20 grams), which is not included within the other offense.” This was not a case where the charging document alleged that the weight of the cannabis was over 20 grams, so the charge might properly have been a permissive lesser included offense. See Lane v. State, 861 So.2d 451, 453 (Fla. 4th DCA 2003).

Generally, an allegation of ineffective assistance of counsel should be raised in a motion for postconviction relief, rather than on direct appeal. See Grey v. State, 727 So.2d 1063, 1065-66 (Fla. 4th DCA 1999); Dennis v. State, 696 So.2d 1280, 1282 (Fla. 4th DCA 1997). A post-conviction relief motion in the trial court allows full development of the issues of counsel’s incompetence and the effect of counsel’s performance on the proceedings. See Dennis, 696 So.2d at 1282. An exception to the general rule exists where both counsel’s deficient performance and the prejudice to the defendant are apparent on the face of the record. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); Burgess v. State, 776 So.2d 1035 (Fla. 4th DCA 2001).

We cannot conceive of any strategic or tactical reason for counsel’s decision to request the lesser offense that he did. However, we do not find that the prejudice to Grant appears on the face of the record. To obtain relief due to the ineffective assistance of his counsel, Grant must “prove that he was prejudiced by the ineffective representation, such that there is a reasonable probability that the outcome would have been different absent the ineffectiveness.” Johnson v. State, 796 So.2d 1227, 1228 (Fla. 4th DCA 2001); see also Jenkins v. State, 824 So.2d 977, 982 (Fla. 4th DCA 2002).

From this record, we do not agree with Grant’s contention that he would “unquestionably” have been convicted of misdemeanor possession of cannabis had the jury been properly charged. Grant was arrested on the street with 27.3 grams of marijuana individually packaged in 28 zip-lock bags. Such evidence would have supported the main charge of possession with intent to sell. Faced with a choice between the main charge and a lesser included offense of possession of not more than 20 grams of cannabis, we cannot say that the jury would have chosen to convict on the lesser charges. The issue of prejudice is best handled in a postconviction relief motion. See Gonzalez v. State, 841 So.2d 650, 652 (Fla. 3d DCA 2003) (holding that issue of improper lesser included offense was not “cognizable on this direct appeal,” but could be pursued by way of postconviction relief).

We therefore affirm the conviction without prejudice to a motion for postconviction relief.

WARNER and HAZOURI, JJ., concur.

      . Appellant is precluded from arguing that it was fundamental error for the court to have given the lesser included offense of possession of over 20 grams of cannabis, because defense counsel both requested the charge and relied upon it in his argument to the jury. See Ray v. State, 403 So.2d 956, 961 (Fla.1981); Lane v. State, 861 So.2d 451, 453 (Fla. 4th DCA 2003).


author: STEVENSON, J.

text:
    Darius SAINTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1521.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Darius Sainte was tried by jury and found guilty of robbery with a firearm of a beauty supply store. Sainte appeals his conviction, arguing (1) that the trial court should have granted his mid-trial motion for continuance and afforded him the opportunity to secure the attendance of an alibi witness and (2) that the trial court should have granted his motion to strike the entire venire as a consequence of remarks made by a prospective juror. We affirm Sainte’s conviction and write to briefly address the motion for continuance.

When seeking a motion for continuance due to the absence of a witness, a defendant is required to demonstrate

(1) prior due diligence to obtain the witness’ [sic] presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify!;] and (4) that the denial of the continuance [would] cause[ ] material prejudice.

Smith v. State, 762 So.2d 929, 981 (Fla. 4th DCA 2000), review denied, 786 So.2d 1188 (Fla.2001).

In this case, defense counsel’s only attempt at satisfying this four-part test was the following statement:

I spoke to [Ms. Seanant] yesterday, she said that she was going to be here today at 1:00 o’clock. I know it’s now 2:00 o’clock, but based upon the severity of the case, and the fact I know there are defense witnesses out there, I seek to just have our witness list, for whatever reason, I’m requesting a defense continuance on behalf of Mr. Sainte.

No attempt was made to indicate or proffer the nature of the missing witness’s testimony nor did counsel suggest that such testimony would be any different than that of Mr. Pierre — an alibi witness who was present and ready to testify. Under these circumstances, we find no abuse of discretion in the trial court’s denial of the motion for continuance. See Collins v. State, 839 So.2d 862, 864 (Fla. 4th DCA 2003)(holding that trial court’s denial of motion for continuance should not be reversed absent an abuse of discretion).

AFFIRMED.

WARNER and GROSS, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. HOLMES DIRT SERVICE, INC., and William H. Holmes, Appellees.
    No. 1D03-1125.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Lisa G. London, Senior Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellant.

      Frank T. Gaylord, Eustis, for Appellee.
   PER CURIAM.

The Florida Department of Environmental Protection has appealed a Final Order of the Division of Administrative Hearings, which reduced penalties assessed against Holmes Dirt Service, Inc. and William J. Holmes by more than fifty percent of the statutory schedule. We affirm.

Section 403.121(10), Florida Statutes (2002), allows an ALJ to reduce up to fifty percent for mitigating circumstances and upon an affirmative finding that the “violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent’s due diligence, the administrative law judge may further reduce the penalty.”

The ALJ had before it competent, substantial evidence that the violations were beyond Appellees’ control; accordingly, we affirm the ALJ’s decision to mitigate damages. See § 120.68(10), Fla. Stat. (2002).

AFFIRMED.

BOOTH and LEWIS, JJ., CONCUR; BENTON, J. DISSENTS WITH WRITTEN OPINION.

BENTON, J.,

dissenting.

Circumstances beyond appellees’ reasonable control which they could not have prevented by due diligence were not proven here, in my opinion. The final order finds, inter alia, that appellees, who are the “owners and operators of the Holmes Fill Dirt Landfill Facility,” failed to control objectionable odors, failed to control access to the facility, and did not provide required groundwater monitoring reports, all in violation of departmental rules.

Particularly in light of the additional finding that appellees failed to comply with other rules that required them to update their bond, or otherwise to give adequate financial assurance that they would comply with departmental rules, section 403.121(10), Florida Statutes (2002), should not be read to authorize reducing administrative fines more than fifty percent (from $9,000 to $3,000) for the sole stated reason that appellees “apparently do not have” enough money to comply.

Concluding that “the reasons given by the trial court to support a downward departure are insufficient,” State v. Hinson, 855 So.2d 119, 122 (Fla. 1st DCA 2003), inasmuch as financial responsibility is itself a requirement for operating a facility of this kind, I respectfully dissent.


author: PER CURIAM.

text:
    CITY OF MIAMI, Appellant, v. Frank AROSTEGUI and Department of Financial Affairs, Division of Workers’ Compensation Administration Trust Fund, Appellees.
    No. 1D03-1222.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Rehearing Denied Feb. 5, 2004.

      Alejandro Vilarello, City Attorney and Mimi V. Turin, Assistant City Attorney, City of Miami, Miami, for appellant.
    Mark L. Zientz of Law Office of Mark L. Zientz, P. A., Miami, for Appellee Aros-tegui.
    Cynthia A. Shaw, Division of Workers’ Compensation Administration Trust Fund for appellee Department of Financial Affairs, Division of Workers’ Compensation Administration Trust Fund, Tallahassee.
   PER CURIAM.

In this workers’ compensation case, we reverse the order of the judge of compensation claims directing the employer to pay permanent total disability supplemental benefits, together with interest and penalties thereon. At the time of the agreement between the parties regarding continued payment of permanent total disability benefits, the Workmen’s Compensation Trust Fund, not the employer, was responsible for the payment of supplemental benefits. See § 440.15(l)(e), Fla. Stat. (1975); Platt v. R.C. Prop., 574 So.2d 176 (Fla. 1st DCA 1991). Unlike the situation in Platt, in this case the parties’ agreement contains nothing that might fairly be read as an election by the employer to pay such benefits directly to the claimant. In addition, there is nothing in the subsequent dealings between the parties or in the order entered by the judge of compensation claims in 1990 which would permit such a conclusion. Moreover, it is apparent that this claim for supplemental benefits was mature and ripe for adjudication in 1990. Because the claimant failed to litigate the issue of his right to those benefits in the 1990 proceeding, the claim is considered waived, and the doctrine of res judicata precludes him from now raising it. Boynton Landscape v. Dickinson, 752 So.2d 1236 (Fla. 1st DCA 2000).

REVERSED.

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: MONACO, J.

text:
    Gary Brian BOWHEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3120.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Gary B. Bowhey appeals the judgment and sentence imposed as a result of his convictions for resisting a law enforcement officer with violence, attempting to deprive an officer of protection and/or communication, two counts of battery on a law enforcement officer, and violation of an injunction. He was acquitted of a charge of abusing a disabled adult. He asserts, first, that the trial court conducted an improper Nelson inquiry when he sought to dismiss his counsel, and, second, that the court erroneously allowed Williams rule evidence to come before the jury. We affirm.

Under the particular facts of this case a more extensive Nelson inquiry was not necessary. Mr. Bowhey’s written complaints about his appointed attorney were contained on a printed form, and were non-specific in their character. The form listed such things as “irreparable differences,” and “lack of communication” as grounds for the motion. The trial judge conducted an inquiry in an attempt to understand the particular nature of the concerns Mr. Bowhey expressed in writing, but he was largely unsuccessful. The Supreme Court has consistently held that a Nelson hearing is unnecessary when a defendant presents general complaints about defense counsel’s trial strategy, and no formal allegations of incompetence are made. See, e.g., Morrison v. State, 818 So.2d 432 (Fla.), cert. denied, 537 U.S. 957, 123 S.Ct. 406, 154 L.Ed.2d 308 (2002); Davis v. State, 703 So.2d 1055 (Fla.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2327, 141 L.Ed.2d 701 (1998); Branch v. State, 685 So.2d 1250 (Fla.1996), cert. denied, 520 U.S. 1218, 117 S.Ct. 1709, 137 L.Ed.2d 833 (1997). Similarly, a lack of communication between the defendant and counsel is not a ground for a claim of incompetency. See Morrison; Watts v. State, 593 So.2d 198 (Fla.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3006, 120 L.Ed.2d 881 (1992). Thus, for the most part, Mr. Bowhey’s written reasons for dissatisfaction with his counsel did not trigger the need for a Nelson inquiry.

The judge through his questioning did learn that Mr. Bowhey wanted a transcript of a 911 tape, but that his counsel had provided a copy of the actual 911 tape to him. Mr. Bowhey seems to have believed that the tape was altered. He later acknowledged, however, that he did not know whether or not the tape had been tampered with. Mr. Bowhey also orally expressed some vague and generalized concern to the effect that he thought his counsel might not like representing a person who was accused of fighting with the police. The court inquired of appointed counsel if he had any cases in which he was required to cross-examine police officers and to “go after” them on the witness stand, and counsel pointed out that he had defended “hundreds” of cases, and that nearly all required confrontation of police witnesses. It appears to us that the trial judge addressed both issues, made the necessary inquiries, and properly concluded that the concerns voiced by Mr. Bow-hey did not reflect a reasonable cause to believe that his counsel was not rendering effective assistance. See Watts.

Beyond these allegations, Mr. Bowhey just appeared to be basically unhappy with the attorney assigned to him; in his words, he was “very uncomfortable with him.” As the Supreme Court has observed, “a judge’s inquiry into a defendant’s complaints of incompetence of counsel can only be as specific and meaningful as the defendant’s complaint.” Lowe v. State, 650 So.2d 969 (Fla.1994), cert. denied, 516 U.S. 887, 116 S.Ct. 230, 133 L.Ed.2d 159 (1995). Mr. Bowhey’s discomfort does not amount to a particularized allegation of incompetence, and his more specific concerns are insufficient to require appointment of new counsel. Under the circumstances, we conclude that an adequate inquiry was conducted by the court.

As to the second point on appeal, we have concluded that any Williams’ rule violation was harmless beyond a reasonable doubt. See Williams v. State, 863 So.2d 1189 (Fla.2003). We note that the contested evidence involved the count charging abuse of a disabled adult, and the jury found Mr. Bowhey not guilty of that charge. The evidence regarding the charges of violence against law enforcement officers was overwhelming. See Franklin v. State, 825 So.2d 487 (Fla. 5th DCA 2002).

AFFIRMED.

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

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . Although, not required, we have reviewed the transcript of the trial, and found that appointed counsel presented a competent, spirited and effective defense, and gained an acquittal of one of the counts against the appellant.


text:
    Dwaine WOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-71.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      James B. Gibson, Public Defender, and A.S. Rogers, 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.
   SAWAYA, C.J.

Dwaine Woodson appeals his conviction and the sentence imposed as a result of the trial court’s order revoking his sex offender probation. Woodson contends that the trial court abused its discretion in finding that he willfully and substantially violated his probation by failing to actively participate in the court-ordered sex offender treatment program and by failing to relay the results of his HIV test to the victim. Woodson bases his contention on the following: 1) the order of probation did not specify time parameters for him to successfully complete the treatment program and the HIV testing; 2) the court order did not specify the number of attempts he would have to comply with these requirements; and 3) he expressed a willingness to undertake another attempt at compliance. We affirm.

Woodson was originally charged with lewd and lascivious battery and lewd and lascivious conduct in violation of section 800.04, Florida Statutes. A third count of the information also charged Woodson with contributing to the delinquency of a minor in violation of section 817.04, Florida Statutes. Pursuant to a plea agreement, Woodson entered a plea of nolo contendere to the charge of lewd and lascivious battery in exchange for dismissal of the other two charges and a downward departure sentence of 51 weeks of incarceration followed by three years of supervised sex offender probation, pursuant to section 948.03(5), Florida Statutes. Specifically, Woodson was ordered to comply with the following conditions, which closely parrot the provisions of sections 948.03(5)(a)3. and 948.03(5)(b)4., Florida Statutes (2000):

You will actively participate in and successfully complete a sex offender treatment program with therapists specifically trained to treat sex offenders, at your own expense. If a specially trained therapist is not available within a 50 mile radius of your residence, you will participate in other appropriate therapy. If there was sexual contact, you will submit, at your own expense, to an HIV test with the results to be released to the victim and/or the victim’s parent(s) or guardian(s).

Although Woodson was also charged with violating other conditions of his sex offender probation, we will confine our discussion to Woodson’s violation of the two mentioned above because they are sufficient to warrant revocation of his probation and imposition of his subsequent sentence. We will now explain why we have arrived at that conclusion.

The state has the burden of proving by the greater weight of the evidence that the defendant committed a willful and substantial violation of a term of probation. State v. Carter, 835 So.2d 259 (Fla.2002); Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000). The trial court has broad discretion to determine whether there has been a willful and substantial violation and whether the state has met its burden of proof. Carter. Therefore, in reviewing a trial court’s order revoking probation, we must apply the abuse of discretion standard of review. Carter, Thomas. “That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the] violation was both willful and substantial.” Carter, 835 So.2d at 262 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). Application of this standard is premised on the generally accepted notion that the defendant’s motive, intent, and attitude are best identified by the trial court when determining whether the violation is both willful and substantial. Carter.

Here, the trial court found that Woodson willfully and substantially failed to actively participate in the sex offender program. We believe that this is a sufficient ground to revoke Woodson’s probation. See Arias v. State, 751 So.2d 184, 187 (Fla. 3d DCA 2000) (“We likewise conclude in this case that the trial court did not abuse its discretion in revoking Arias’ probation based upon his willful failure to participate in good faith with the MDSO program.”), review denied, 767 So.2d 453 (Fla.2000); Edgerton v. State, 703 So.2d 1249, 1250 (Fla. 5th DCA 1998) (“The state argues, however, that Edgerton’s discharge from the program was a direct result of his ‘utter unwillingness’ to comply with the requirements of the program despite numerous accommodations made by staff on his behalf. We affirm.”). The trial court also found that Woodson willfully and substantially violated the condition that he submit to HIV testing and supply the results of the test to the victim by simply refusing to do so. This too is a sufficient ground to revoke Woodson’s probation. Based on our review of the record, we conclude that the trial court did not abuse its discretion in revoking Woodson’s probation because the greater weight of the evidence supports this decision.

Woodson argues that his failure to comply is excusable because no time parameters were established by the trial court for compliance; no limits were set for the number of attempts at compliance; and after his first failure at compliance, he expressed a willingness to try again. We reject Woodson’s arguments based on our analysis of the provisions of section 948.03(5) and the goals to be accomplished through the imposition of the various conditions of sex offender probation mandated by that statute.

We begin our analysis by noting that the cases cited by Woodson are distinguishable from the instant case because they involve imposition of special conditions of probation not mandated by the Legislature, which are imposed based on the discretion of the trial court. For example, the cases cited by Woodson involve successful completion of a drug rehabilitation, anger management, or mental health program, each of which is a special condition of probation not required to be imposed by the Legislature. Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000), involved the condition that the defendant obtain his GED, while O’Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001), and Mitchell v. State, 717 So.2d 609 (Fla. 4th DCA 1998), involved imposition of the batterer’s intervention program. In contrast, in a case involving sex offender probation, the trial court must impose certain legislatively mandated conditions; the statute does not allow for judicial discretion. § 948.03(5), Fla. Stat. (2000). Moreover, imposition of these mandatory conditions requires no oral pronouncement at sentencing. Id. This distinction is important because we must look to the provisions of the statute that require imposition of these mandatory sex offender conditions and consider the goals to be achieved in order to determine whether the Legislature intended to make compliance dependent on time parameters or limitations on the number of attempts at compliance established by the trial court.

Probation, with its panoply of conditions, has been described as the representation of “an enlightened approach to the solution of the problem of providing adequate punishment for criminal offenders.” State ex rel. Roberts v. Cochran, 140 So.2d 597, 599 (Fla.1962). The focus of this enlightened approach shifted somewhat from punishment of the offender to identification of the causal factors of the offender’s deviant behavior and intervention by the state so that the offender could reform his or her conduct and avoid further contact with the criminal justice system. See Grubbs v. State, 373 So.2d 905 (Fla.1979). The evolution of this approach has led the courts to recognize that the primary goals of probation are to impose on the offender conditions that must be complied with so that: 1) the offender will be rehabilitated and more likely to conform his or her behavior to societal standards in the future; 2) society will be protected from further criminal conduct by the offender; and 3) the rights of the crime victim will be protected.

In order to achieve these goals in certain cases involving sex offenders, the Legislature enacted section 948.03(5). Our careful analysis of the provisions of this statute leads us to conclude that the primary goals of probation will be achieved only if the offender is required to undertake immediate compliance with the mandatory conditions. Additionally, we conclude that the Legislature never intended for the trial court to have to expressly define the number of attempts or establish time parameters for compliance.

While the Legislature has clearly indicated that the emphasis of sex offender probation is treatment of the offender, the concomitant goals of rehabilitation and protection of society once the sex offender is released on supervision may only be accomplished if the offender undertakes immediate treatment, as required by section 948.03(5)(a)3. It makes no sense to release the offender into society on a lengthy term of probation only to allow the offender the discretion tó undertake treatment several years later toward the end of the probationary period. Releasing a sex offender, untreated, does not alleviate the concern that he or she will reoffend and affords no protection to society. Moreover, a requirement that provides additional chances for treatment in the future before expiration of the probationary period after willful failure to actively participate in and complete a sex offender treatment program, simply because the offender expresses a willingness to comply at a later date, opens the door to mischievous manipulation by the offender and thwarts all of the goals of probation.

The same rationale applies to the requirement that the offender give the results of a mandatory HIV test to the victim pursuant to section 948.03(5)(b)4. The victim is entitled to have the HIV test results as soon as practicable so that he or she may seek testing or treatment. Certainly the Legislature did not intend that the results be given to the victim several years later toward the end of the probationary period. The only way the victim’s rights will be protected is to require immediate compliance with this condition. Ordering a time limit for compliance should not be necessary.

Our conclusion that the Legislature intended immediate compliance, without specification of time or number of attempts by the trial court, is strongly supported by an analysis of the other mandatory conditions required under section 948.03(5). For example, this statute requires imposition of a mandatory curfew; prohibition on working for or living within 1,000 feet of a school, day care center, park, playground, or other places where children congregate; prohibition on any contact with the victim; and submission of two specimens of blood to be registered with the DNA blood bank by the Department of Law Enforcement. The victim and society will not be protected by imposition of these conditions unless the defendant is required to comply immediately after being released on probation.

Accordingly, we conclude that if the trial court does not announce time parameters for compliance with sex offender conditions of probation at sentencing, the defendant is not at liberty to pick the time of compliance within the probationary period. Rather, the defendant must undertake compliance with each condition as soon as he or she is placed on probation. Consequently, willful failure to actively participate in or complete sex offender treatment, or provide test results to the victim, does not necessarily preclude revocation simply because the number of attempts at compliance were not specified or because the defendant is willing to undertake another attempt at compliance within the probationary period. If immediate initial attempts are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be left to the sound discretion of the trial court.

We believe that affording the trial court discretion in determining whether a violation of sex offender probation is willful and substantial, and the penalty to be imposed for a violation, provides the court with flexibility in imposing just punishments for probation violatiohs, comports with legislative intent and fosters the goal of imposing probation as a criminal sanction. Indeed, the contrary result would be irrational in that it would require the court to do little or nothing to enforce the terms of the defendant’s sex offender probation, thus diminishing the utility of sex offender probation as a viable alternative to incarceration. Accordingly, Woodson’s conviction and sentence are affirmed. We certify that our decision conflicts with Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990), and note possible conflict with Lawson v. State, 845 So.2d 349 (Fla. 2d DCA 2003), and Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002).

AFFIRM.

PLEUS and ORFINGER, JJ., concur.

      . The scoresheet indicates that Woodson scored a minimum of 144.4 months' incarceration in the Department of Corrections and that he had a prior conviction for sexual assault in 1990 in the state of New Jersey. He also had prior convictions for burglary, trafficking in stolen property, and battery.

      . The record contains an exhibit, signed by Woodson, specifically listing these conditions and all of the sex offender conditions required under section 948.03. This exhibit also contains a signature, apparently affixed by a clerk or other court personnel, indicating that Woodson was "instructed” on these conditions.

      .See Palma v. State, 830 So.2d 201 (Fla. 5th DCA 2002); O’Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001); Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000); Jones v. State, 744 So.2d 537 (Fla. 2d DCA 1999); Gamble v. State, 737 So.2d 1160 (Fla. 1st DCA 1999); Mitchell v. State, 717 So.2d 609 (Fla. 4th DCA 1998); Edgerton v. State, 703 So.2d 1249 (Fla. 5th DCA 1998); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995); Melecio v. State, 662 So.2d 408 (Fla. 1st DCA 1995); Gibbs v. State, 609 So.2d 76 (Fla. 1st DCA 1992).

      . Palma; Jones; Edgerton; Salzano; Gibbs.

      . Gamble; Melecio.

        . Palma.

      . Section 948.001(7), Florida Statutes (2000), provides, in pertinent part, that the emphasis of sex offender probation is treatment of the sex offender:
      "Sex offender probation” or "sex offender community control” means a form of intensive supervision, with or without electronic monitoring, which emphasizes treatment and supervision of a sex offender in accordance with an individualized treatment plan administered by an officer who has a restricted caseload and specialized training.

      . § 948.03(5)(a)l., Fla. Stat. (2000).

      . §§ 948.03(5)(a)2. & 6., Fla. Stat. (2000).

      . § 948.03(5)(a)4., Fla. Stat. (2000)

      . § 948.03(5)(a)8., Fla. Stat. (2000).