author: CASANUEVA, Judge.

text:
    Larry GORDON, Petitioner, v. Jerry REGIER, Secretary, Department of Children and Family Services, Respondent.
    No. 2D02-3733.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
    Rehearing Denied March 25, 2003.

      Bob Dillinger, Public Defender, and Joy K Goodyear, Assistant Public Defender, Clearwater, for Petitioner.
    Charlie Crist, Attorney General, Tallahassee, and Deena Degenova, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Judge.

Larry Gordon petitions this court for a writ of prohibition directing the trial court to enter an order dismissing the State’s petition for involuntary civil commitment in which the State alleges that Mr. Gordon is a sexually violent predator. Because Mr. Gordon was not in custody at the time that he was seized pursuant to a seventy-two-hour hold authorized by section 394.9135, Florida Statutes (2000), but instead had been released from the custody of the Department of Corrections (DOC) and was in the civilian population, we hold that the Jimmy Ryce Involuntary Civil Commitment of Sexually Violent Predators’ Treatment and Care Act (the Act), sections 394.910-.931, Florida Statutes (2000), is not applicable to him at this time and the state attorney and the trial court do not have jurisdiction to proceed with the civil commitment. We therefore grant the petition, issue the writ, and direct the trial court to dismiss the sexually violent predator petition.

The facts of the case are undisputed. In January 1992, Mr. Gordon was convicted of a lewd and lascivious act in the presence of a child under the age of sixteen and was sentenced to fifteen years in prison. In 1998, when the DOC released him from prison on conditional release supervision, they put him on a Greyhound bus to return to his home. Mr. Gordon violated his supervision and was returned to the custody of the DOC. On April 6, 2000, the Florida Parole Commission reinstated Mr. Gordon’s conditional release, and Mr. Gordon was released from the DOC’s custody on April 6, 2000, at some time prior to 3 p.m. On Friday, April 7, 2000, the DOC’s administrator for the Act reviewed Mr. Gordon’s file and determined that Mr. Gordon could possibly be subject to the Act. The administrator contacted the Department of Children and Family Services (DCF) and advised that Mr. Gordon had been released. The DCF then sent a seventy-two-hour hold letter, and pursuant to the letter, the DOC issued a warrant for Mr. Gordon’s arrest. On April 8, 2000, two days after Mr. Gordon’s release from custody, he was arrested on the warrant and held in the county jail. On that day, Mr. Gordon was transported from the county jail to Martin Treatment Center for diagnosis. On April 10, 2000, the multidisciplinary team, pursuant to section 394.9135, recommended to the State that it proceed with civil commitment under the Act. An order determining probable cause was entered on April 12, 2000.

In September 2000, Mr. Gordon filed a motion to dismiss the State’s petition for involuntary civil commitment because Mr. Gordon was not in custody for purposes of the Act at the time the petition for involuntary commitment was filed. In October 2000, the trial court denied Mr. Gordon’s motion to dismiss. Mr. Gordon subsequently filed another motion to dismiss the petition for involuntary commitment on the same grounds alleged above. The trial court denied the motion to dismiss, finding that its previously rendered order was the law of the case. Mr. Gordon then filed the present petition for writ of prohibition, seeking to have the involuntary commitment proceedings dismissed.

The Act, by its terms, applies to persons who committed the predicate sexually violent offense prior to the effective date of the Act. Section 394.925 is entitled “Applicability of act” and states: “This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.” Thus, section 394.925 contemplates that, in order for the Act to apply, the person must be in custody or in “total confinement.”

“Total confinement” means that the person is currently being held in any physically secure facility being operated or contractually operated for the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services. A person shall also be deemed to be in total confinement ... if the person is serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason.

§ 394.912(11).

I

In reviewing the statutory construction of the Act, we apply the de novo standard. See State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001). We point out that there is no statutory definition of “custody.” In the legal arena, the term “custody” is a term of art referring to the government’s seizure of a person as well as the person’s continued detention in a local jail or state or federal prison. We note:

The general rule is that where the legislature has not defined words or phrases used in a statute, they must be “construed in accordance with [their] common and ordinary meaning.” Donato v. American Tel. & Tel. Co., 767 So.2d 1146 (Fla.2000). “[T]he plain and ordinary meaning of [a] word can be ascertained by reference to a dictionary.” Green v. State, 604 So.2d 471 (Fla.1992).

Southwest Fla. Water Mgmt. Dist. v. Charlotte County, 774 So.2d 903, 915 (Fla. 2d DCA 2001).

The case of State v. Siddal, 772 So.2d 555 (Fla. 3d DCA 2000), held that a person on probation was not in “custody” for the purposes of the Act. Siddal cited to the American Heritage Dictionary of the English Language 357 (2d college ed.1982), which defines custody as: “1. The act or right of guarding, esp. such a right granted by a court. 2. The state of being detained or held under guard, esp. by the police.” Furthermore, our supreme court has recently stated:

[B]ased on our review of the Ryce Act and the available evidence of legislative intent discussed above, we conclude that the Legislature intended that ordinarily the review process of potential sexual predators would be concluded while the person was still in prison. The initial ex parte probable cause determination described in section 394.915(1) applies primarily to respondents who are still in prison, and a finding of probable cause under this provision simply requires that a respondent be transferred immediately to a secure facility upon the expiration of the sentence.

State v. Goode, 830 So.2d 817, 825 (Fla.2002) (footnote omitted). Finally, we also noted in Southwest Florida Water Management, that a “statutory phrase should also be viewed not only in its internal context within the section, but in harmony with interlocking statutes.” 774 So.2d at 916 (quoting WFTV, Inc. v. Wilken, 675 So.2d 674, 679 (Fla. 4th DCA 1996)). Accordingly, in regard to the Act, we determine that the word “custody” is synonymous with “total confinement” and means that the person in question is being held at a secure facility.

II

The Act contemplates that the agency with custody over an adult convicted of a sexually violent offense shall, within 365 days of the anticipated release, give written notice of the release to the state attorney and to a multidisciplinary team appointed by the DCF. § 394.913(1). In the case of a person who is returned to total confinement for no more than ninety days, “written notice must be given as soon as practicable following the person’s return to confinement.” § 394.913(l)(a). Within ninety days after the written notice is received, the DCF is to provide to the state attorney a written recommendation as to whether the person meets the definition of a sexually violent predator. § 394.913(3)(e). The report is to include the written assessment of the multidisciplinary team.

Following receipt of the written assessment and recommendation, the state attorney may file a petition with the circuit court alleging that the person is a sexually violent predator. § 394.914. Prior to the expiration of the incarcerative sentence, the circuit court is to determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the circuit court determines the existence of probable cause, it is to order that the person remain in custody and be transferred to an appropriate secure facility upon expiration of the incarcerative sentence. § 394.915(1). Thus, the Act contemplates that the circuit court make a determination prior to the expiration of the incarcerative sentence as to whether probable cause exists to hold the person as a sexually violent predator. This is consistent with our legal historical precedents requiring a probable cause determination prior to a person’s seizure.

However, the Act contains a safety valve for a situation where “the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate.” § 394.9135(1). In such a situation, the agency with jurisdiction “shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.” Id. At this point, the person is being held without probable cause, and the time period for filing the petition is significantly shortened. The constitutionality of this type of seizure has yet to be resolved and is not presently before us.

In the present case, Mr. Gordon was not transferred to the custody of the DCF upon his immediate release from total confinement as required by section 394.9135(1), but was instead released into civilian society by way of a Greyhound bus. Mr. Gordon was released on conditional release, which is a program that “requires that certain inmates will complete their sentences outside of prison, but still under a degree of supervision.” Mayes v. Moore, 827 So.2d 967, 971 (Fla.2002). Thus, Mr. Gordon may have been under the supervision of the DOC, but he was not being held in total confinement by the DOC at the time he was taken into custody pursuant to the DCF’s warrant.

There is no provision in the Act for commencing proceedings against a person under the Act where he or she is not in custody and is, in fact, living in society. Rather, the Act contemplates that pursuant to section 394.9135(1), when the release from total confinement becomes immediate, the person will be, at that time, transferred to the custody of the DCF to be held in a secure facility. Clearly, that person would be securely guarded during the transfer to the secure facility. Under section 394.9135(1), a person against whom involuntary civil commitment proceedings are appropriately commenced will always be in custody immediately prior to the commencement of the proceedings. Accordingly, we hold that section 394.925, which states that the Act applies to all persons “currently in custody” or “sentenced to total confinement in the future,” in conjunction with the other provisions in the Act, provides that involuntary civil commitment proceedings may be brought only against those persons in custody at the moment the proceedings are commenced; there is no provision in the Act for proceeding against those persons who are on supervision but no longer in custody. See Siddal, 772 So.2d 555.

Mr. Gordon argued in his motion to dismiss the petition for involuntary commitment in the trial court that he was not in custody for purposes of the Act at the time the petition was filed, even though he was in the custody of the DCF at the time of the filing of the petition for involuntary commitment. However, neither the state attorney nor the DCF had jurisdiction to proceed against him because the Act is not applicable to a person who has been released into society but thereafter has been recaptured.

The State argues that it may proceed against Mr. Gordon under the Act even though he was not in custody at the time proceedings commenced. In support of this argument, the State cites to subsection 394.9135(4), which states:

The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case, and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.

Subsection (3) of section 394.9135 states that, in the “safety valve” situation, if a petition is not filed within forty-eight hours after the written assessment, the person shall be immediately released. Subsection (4) clarifies that in such a situation, the failure to comply with the time periods is not fatal to the proceedings. We do not interpret subsection (4) to mean that the state attorney or the DCF may start proceedings against a person who is not in custody, since, as stated, that person would not be subject to the provisions of the Act. As in Goode, 830 So.2d 817, we conclude that the legislature intended that the time period is critical to the validity of the statutory scheme.

Based on the foregoing, we grant the petition, issue the writ of prohibition, and direct the trial court to dismiss the sexually violent predator petition and to order that Mr. Gordon be released from the custody of the DCF.

WHATLEY and NORTHCUTT, JJ., Concur.

      . The Act could be applicable to Mr. Gordon in the future should he ever be sentenced to total confinement. See § 394.925.

      . There is no requirement in the Florida Rules of Appellate Procedure that a petition for writ of prohibition be filed within a certain time period of the order to be reviewed. We may therefore review both the trial court's first order and its second order denying Mr. Gordon's motion to dismiss the petition for involuntary civil commitment.

      . The effective date of the Involuntary Civil Commitment of Sexually Violent Predators Act was January 1, 1999. Atkinson v. State, 791 So.2d 537 (Fla. 2d DCA 2001), aff’d, 831 So.2d 172 (Fla.2002).

      . In State v. Atkinson, 831 So.2d 172 (Fla.2002), our supreme court held that the custody requirement imposed by section 394.925, Florida Statutes (2001), must be read to require that the custody was lawful. Mr. Gordon's untimely seizure was, in fact, unlawful.

      . The "agency with jurisdiction” is either the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services. See § 394.912(1).


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    In re ESTATE OF Robert C. TENSFELDT, Deceased. Robert William Tensfeldt, John Tensfeldt, and Christine Tensfeldt, Appellants, v. Constance M. Tensfeldt, Appellee. Robert William Tensfeldt, John Tensfeldt, and Christine Tensfeldt, Appellants, v. Constance M. Tensfeldt, Appellee.
    Nos. 2D01-5675, 2D01-5679.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
    Rehearing Denied March 20, 2003.

      Tracy S. Carlin of Foley & Lardner, Jacksonville; and Mark J. Wolfson, Tampa, for Appellants.
    Jeffrey D. Fridkin and D. Keith Wicken-den of Grant, Fridkin, Pearson, Athan & Crown, P.A., Naples, for Appellee.
   ALTENBERND, Judge.

In these consolidated appeals, Robert William Tensfeldt (William), John Tens-feldt (John), and Christine Tensfeldt (Christine), the children of the decedent, Robert C. Tensfeldt (Robert), appeal two orders. The first order dismissed an adversary proceeding by the children that alleged Robert C. Tensfeldt had breached a contract to make a will. The second order awarded Constance M. Tensfeldt (Constance), the surviving spouse of Robert C. Tensfeldt, an elective share of the probate estate. We reverse the order dismissing the adversary proceeding except to the extent that it dismissed count II seeking enforcement of a foreign judgment. Although that count was barred by the statute of limitations, the children’s action as third-party beneficiaries for breach of a contract to make a will was not barred by the statute of limitations or any doctrine of merger. We affirm the order awarding Constance Tensfeldt an elective share because she made a timely election pursuant to section 782.212, Florida Statutes (1997). We also conclude that the amount of the elective share is unaffected by, and takes precedence over, the children’s claim for breach of contract to make a will, and therefore the order properly calculated the disbursement of the elective share.

Robert and Ruth Tensfeldt were married for more than thirty years. They had three children: William, John, and Christine. Robert and Ruth Tensfeldt divorced in Wisconsin in 1974. The judgment of dissolution incorporated a settlement agreement in which Robert agreed to provide for his three adult children in his will. The settlement agreement stated that Robert “shall execute and shall hereafter keep in effect, a will leaving not less than two-thirds (2/3) of his net estate outright to the three adult children of the parties.” The agreement defined the “net estate” as the “gross estate passing under his Will (or otherwise, upon the occasion of his death) less funeral and burial expenses, administration fees and expenses, debts and claims against the estate, and Federal and State taxes.” The children were not parties to the Wisconsin divorce proceeding and did not sign the settlement agreement. They were, however, expressly identified as third-party beneficiaries in this agreement. See Lowry v. Lowry, 463 So.2d 540 (Fla. 2d DCA 1985) (holding children were third-party beneficiaries of stipulation in divorce decree which required father to maintain life insurance policies for benefit of his first children).

In 1975, Robert married Constance Tensfeldt. There are apparently no children from this marriage. Robert and Constance moved to Florida in 1985. In 1992, Robert executed a new will in Florida that did not comply with the 1974 settlement agreement. The new will did not disinherit his children, but it gave them lesser immediate bequests and provided for substantial assets to be placed into a marital trust for the benefit of Constance during her lifetime. It is not clear from our record whether the children knew pri- or to Robert’s death that he had executed this will.

Robert died on April 22, 2000. In June 2000, his 1992 will was submitted for probate, and, as directed by that will, Constance and William were appointed co-personal representatives. Notice of administration was published for the first time on August 30, 2000. In November 2000, the co-personal representatives petitioned the court for an extension of time to file the inventory, and the probate court extended the time until January 31, 2001.

On November 20, 2000, William, John and Christine, and their mother, Ruth, filed a claim for the amounts owed under the settlement agreement in the divorce. On December 5, 2000, Constance, as co-personal representative of the estate, filed an objection to this claim. As a result, the three children and their mother filed a timely complaint to resolve the dispute on January 3, 2001. During the pendency of that adversary proceeding, Ruth Tensfeldt died. She is no longer a party to the action or to this appeal.

In the adversary proceeding, the children alleged that Robert and Constance had placed approximately $8,000,000 of Robert’s property into joint ownership that gave Constance a right of survivor-ship. In addition, they alleged that the estate contained another $6,000,000. According to the children, all of these assets should be included in the “net estate” of Robert as defined in the divorce agreement, thus entitling them to two-thirds of the total or $6,000,000. In contrast, they estimate that they will receive approximately $1,000,000 outright under the 1992 will. Count I of the complaint alleged breach of contract because Robert did not have the appropriate will in effect on the date of his death, count II sought enforcement of the Wisconsin judgment, and count III sought a constructive trust because the children anticipated that Constance would file a request for an elective share and they maintained that their $6,000,000 claim had priority over the elective share.

Constance filed a motion for summary judgment in the adversary proceeding. She argued that the children’s cause of action accrued when Robert breached the divorce agreement by executing the nonconforming will in 1992. Because this occurred more than five years before the filing of the adversary proceeding, she claimed the action was barred by the statute of limitations set forth in section 95.11(2)(b), Florida Statutes (Supp.1992). In the alternative, she argued that the contract had actually merged into the 1974 Wisconsin judgment. Thus, any action under the contract was barred by the judgment, and any action on the twenty-six-year-old judgment was barred by the statute of limitations. See § 95.11(2), Fla. Stat. (1973). Without explaining its reasoning, the probate court granted this motion for summary judgment and dismissed the adversary proceeding.

In the probate proceeding, Constance filed an election to take elective share on February 7, 2001, while the adversary proceeding was pending. Initially, neither the estate nor the children objected to the timeliness of this election. William, as co-personal representative of the estate, did file a partial objection to the election. This partial objection stated, “The undersigned do not object to the Election in its form and to Mrs. Tensfeldt’s right to make such an election.” Rather, the partial objection related to Constance’s stated intent to obtain an elective share and to seek her interest as a beneficiary of the marital trust, and the determination of whether the children’s claim to two-thirds of Robert’s “net estate” had priority over the elective share. In June 2001, however, the children filed a brief in support of the objection to elective share, arguing that the election was untimely.

The probate court ultimately determined that the election of elective share was timely under section 732.212, Florida Statutes (1997), because the adversary proceeding based upon the children’s claim was a matter affecting the extent of the estate subject to election and extended the time for the filing of the election. The probate court entered an order authorizing a disbursement of $1,600,000 to Constance as a partial distribution of elective share. Because the adversary proceeding had been dismissed, this disbursement was calculated without reference to the children’s potential claim and the probate court did not consider whether the children’s claim was in the nature of a creditor’s claim that would take preference over the elective share. The children then appealed both the order dismissing the adversary proceeding and the order authorizing disbursement of the elective share.

I. THE ADVERSARY PROCEEDING IS NOT BARRED BY A STATUTE OF LIMITATIONS

In the adversary proceeding, the children maintained that Robert breached his written agreement to provide for them in his will. The statute of limitations on such a claim runs from the date the cause of action accrues. See § 95.031, Fla. Stat. (1999). Constance argued that the cause of action accrued in 1992, when Robert executed the nonconforming will. The children asserted that the cause of action did not accrue until Robert died without a conforming will in place. We conclude the cause of action accrued only upon Robert’s death.

In Briggs v. Fitzpatrick, 79 So.2d 848 (Fla.1955), the supreme court held that a similar claim did not accrue until the death of the promisor. Briggs involved an oral agreement for nursing services in exchange for a future payment from the promisor’s estate. The supreme court reasoned that the “payment” under the agreement was not due until the promisor’s death, and therefore the breach occurred only upon the death. Id. at 851.

The majority rule throughout other jurisdictions appears to be that a cause of action for breach of a contract to make a will accrues at the death of the promisor if the conforming will is not in place at that time. See Battuello v. Battuello, 64 Cal.App.4th 842, 75 Cal.Rptr.2d 548 (1998); Alvarez v. Coleman, 642 So.2d 361, 375 (Miss.1994); Catching v. Lashway, 84 Or.App. 602, 735 P.2d 13, 16 (1987); Estate of Carroll, 436 N.E.2d 864, 866 (Ind.Ct.App.1982); Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737, 749 (1975). In line with the supreme court precedent and the majority rule, we hold that a cause of action for breach of a contract requiring the promi-sor make a will devising a percentage of his or her estate does not accrue until the death of the promisor.

This holding also conforms to this court’s precedent regarding the somewhat related claim of tortious interference with an expectancy. This court has ruled that a beneficiary does not have a vested claim for tortious interference with an expectancy until the testator’s death. See Claveloux v. Bacotti, 778 So.2d 399 (Fla. 2d DCA 2001); Whalen v. Prosser, 719 So.2d 2 (Fla. 2d DCA 1998). Thus, in that context, no cause of action accrues until the testator’s death. Although an expectancy in that context is not typically based upon a written agreement, many of the same principles underlying Claveloux and Whalen support our ruling here. As a practical matter, a testator has broad power to revise and replace a will at any time. An injunctive action prior to death ordering the testator not to change his or her will would be difficult to enforce and the relief would be difficult to craft. In this case, for example, no action seeking damages could have been brought against Robert during his lifetime because nothing in the agreement prohibited him from alienating his property prior to his death. Therefore, no damages could be calculated until his death resulted in the creation of an estate.

Constance also argues that the divorce agreement was “merged” into the final judgment of dissolution in Wisconsin. She asserts the children cannot bring any action to enforce the contract; they can only seek to enforce the judgment. We reject this argument. First, the children were not parties to any action in Wisconsin, and therefore any merger does not affect their interests as third-party beneficiaries of the divorce agreement. Cf. Diamond R. Fertilizer Co., Inc. v. Lake Packing P’ship, 743 So.2d 547 (Fla. 5th DCA 1999) (holding, in related doctrine of merger of cause of action into judgment, that merger did not apply when parties were not the same). Second, the divorce agreement specifically stated the parties’ intent that the contract would not merge into the final judgment, but would survive any judgment or decree. See Alati v. Alati 591 So.2d 679 (Fla. 4th DCA 1992) (holding similar language in settlement agreement prevented merger and therefore action for support pursuant to agreement was not barred). The divorce decree in Wisconsin may give greater recognition to the rights the children received in their parents’ stipulation, but the existence of that judgment does not bar any action for breach of this written promise by the children.

We note, however, that count II of the children’s complaint in the adversary proceeding was properly dismissed. This count perfunctorily sought “enforcement” of the Wisconsin judgment. Because the Wisconsin decree is a foreign decree, never domesticated in Florida, the statute of limitations barred any action to enforce the decree in this state. See § 95.11(2), Fla. Stat. (1973); Winland v. Winland, 416 So.2d 520 (Fla. 2d DCA 1982). Therefore, we affirm the dismissal of the adversary proceeding only as it relates to count II of the complaint for enforcement of the Wisconsin divorce decree. Because counts I and III of the adversary proceeding are not barred by the statute of limitations or any doctrine of merger, we remand for further proceedings on those counts.

II. THE ELECTION OF ELECTIVE SHARE WAS TIMELY

In the second of these consolidated appeals, the children assert that Constance is not entitled to claim an elective share of Robert’s estate because her election to take elective share was untimely. At the outset of our analysis, we note that the statutes regulating the timing of this election have been substantially revised since Robert’s death. This case is controlled by section 732.212, Florida Statutes (1997). In 1999, before Robert’s death, the legislature substantially amended provisions regarding the elective share. See ch. 99-343, Laws of Fla. Those amendments replaced section 732.212 with section 732.2135, Florida Statutes (2001). However, the legislature specified that those amendments applied only to proceedings involving deaths after October 1, 2001. Ch. 99-343, § 13, Laws of Fla. If the new statute were applicable, the election in this case would be timely.

Section 732.212 provides:

The election shall be filed within 4 months from the date of the first publication of notice of administration, but, if a.proceeding occurs involving the construction, admission to probate, or validity of the will or on any other matter affecting the estate whereby the complete extent of the estate subject to the elective share may be in doubt, the surviving spouse shall have 40 days from the date of termination of all the proceedings in which to elect.

The election in this case was filed more than four months after the first publication of the notice of administration. Thus, it is timely only if the period is extended by a “proceeding ... on any matter affecting the estate whereby the complete extent of the estate subject to the elective share may be in doubt.” The statute does not define “proceeding” nor specify when a proceeding “occurs.”

Certainly, the children’s claim for two-thirds of the estate and their position that this claim has priority over the elective share is a claim affecting the estate for purposes of this statute. The children argue that the election is untimely because they did not formally file the complaint in the adversary proceeding until January 3, 2001, a few days after the expiration of the four-month period for claiming an elective share commenced by the notice of administration. Thus, the children’s argument is predicated on the fact that they delayed their own action until the final days of the period in which to file an adversary proceeding.

The children cite Loewy v. Green (In re Estate of Loewy), 638 So.2d 144 (Fla. 4th DCA 1994), in support of their argument that the election was untimely. In Loewy, the surviving spouse filed a “petition for construction of the will” after the expiration of the four-month period. Although that petition was dismissed as legally insufficient, the spouse asserted it “reopened” the time period for seeking an elective share. The Fourth District disagreed, holding, “[W]e cannot read the statute to reach such an absurd result that would effectively nullify the legislative effort to impose finality on proceedings.” Id. at 145.

Loewy is distinguishable. In this case, the children, not the surviving spouse, placed in controversy the extent of the estate subject to the elective share. Moreover, that controversy commenced when the children filed a statement of claim, within the four-month period during which an election could be made. Given the amounts in controversy, it was clear that the children were proceeding with their claim, and the children’s adversary proceeding reflected their assumption that Constance would seek an elective share.

The specific question in this case is when a “proceeding occurs” under section 732.212. We have found no case squarely addressing this issue and we recognize that the amendments to the statutes will limit any precedential effect of this case. We conclude, however, that the probate court had the authority in this case to decide that the proceeding had “occurred” by the time the estate filed an objection to the children’s claim. Such an interpretation of the statute appears consistent with the intent of the statutory provision allowing extensions when the extent of the estate is in question and is also consistent with Florida’s strong public policy favoring protection of the surviving spouse. See Via v. Putnam, 656 So.2d 460, 464 (Fla.1995).

Although we reverse the summary judgment in the adversary proceeding, thus permitting the children to pursue their action for breach of contract, and remand for further proceedings, this decision does not require reversal of the order distributing $1,600,000 to Constance. The children’s breach-of-contract action seeks a remedy equivalent to that which they would have received if they were beneficiaries to the will and entitled to receive two-thirds of the net estate. Although the children seek to describe their claim as a creditor’s claim that would take precedence over the elective share, see § 733.707, Fla. Stat. (2000), the Florida Supreme Court has held otherwise. Via, 656 So.2d 460. Had the children been properly listed as beneficiaries in the will, Constance’s elective share would have taken precedence over their bequest. The children are not entitled to receive, as creditors, a remedy superior to that which they would have received if their father had complied with the 1974 agreement.

Accordingly, we affirm the orders on appeal in the probate proceeding that relate to the elective share. We reverse the order dismissing the adversary proceeding, except to the extent that it dismisses count II of that proceeding, and we remand the adversary proceeding for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

FULMER and COVINGTON, JJ., Concur.

      . The co-personal representatives obviously are making conflicting claims against the estate in their personal capacities. This created some difficulties for the attorney representing the estate. The parties have apparently resolved this conflict, and it creates no issue on appeal.

      . The exact value of the children's inheritance under the will is difficult to calculate because, in addition to their outright distributions upon Robert's death, they are the beneficiaries of a substantial portion of the marital trust after Constance’s death. The value of that bequest will depend upon how long Constance lives, the amount of income she receives from the trust during her lifetime, and whether she is permitted to take any principal distributions.

      . See Bravo v. Sauter, 727 So.2d 1103 (Fla. 4th DCA 1999) (holding surviving spouse’s election to take elective share did not negate her right to income from remaining assets of estate which poured over into inter vivos trust).

      . There are cases in other jurisdictions permitting an action for breach of a contract to make a testamentary devise during the lifetime of the promisor, or holding that such a cause of action accrued during the promisor’s lifetime. However, those cases often involve a promise to'devise a specific piece of property and a clear repudiation of that promise when the specific piece of property is conveyed to a third party, making performance by the promisor impossible. See, e.g., Somerville v. Epps, 36 Conn.Supp. 323, 419 A.2d 909, 911 (1980); Engelbrecht v. Herrington, 101 Kan. 720, 172 P. 715 (1917). That is not the issue presented here, where Robert instead agreed to devise a percentage of his net estate.

      . See also Reed v. Fain, 122 So.2d 322 (Fla. 2d DCA 1960), aff'd on other grounds, 145 So.2d 858 (Fla.1961) (noting that daughter's expectancy in her father's homestead did not become vested until father died).

      . We have some question as to whether the principles applied to traditional money judgments to bar enforcement due to a statute of limitations also apply to judgments with exec-utory provisions. This is not a traditional money judgment. In this case, the judgment required future performance of certain obligations. It seems odd that a statute of limitations could bar enforcement of such executory provisions even before the date on which performance was required. However, Winland v. Winland, 416 So.2d 520 (Fla. 2d DCA 1982), involved a similar judgment and we are bound by its holding.


author: STRINGER, Judge. ALTENBERND, Judge,

text:
    WINN-DIXIE STORES, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION; and Nathan Benderson, Ronald Benderson, and David H. Baudauf, as Trustees, Appellees.
    No. 2D01-4222.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    Rehearing Denied March 7, 2003.

      Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa; and Paul D. Bain of Gaylord, Merlin, Ludovici, Diaz & Bain, Tampa, for Appellant.
    Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellee Department of Transportation.
    Jack P. Brandon of Peterson & Myers, P.A., Lake Wales; and Andrea Teves Smith and Deborah A. Ruster of Peterson & Myers, P.A., Lakeland, for Appellees Nathan Benderson, Ronald Benderson, and David H. Baudauf, as Trustees.
   STRINGER, Judge.

The Department of Transportation (DOT) initiated a condemnation action for the taking of a portion of property in a Lakeland shopping center. A substantial amount of the condemned property was used for parking. Appellees, Nathan Benderson, Ronald Benderson, and David H. Baudauf (collectively Benderson), are trustees of the trust that owns the shopping center; and Appellant, Winn-Dixie Stores, Inc. (Winn-Dixie), leases space in the shopping center. The DOT and Bend-erson entered into a settlement agreement for $2,640,000, which was escrowed. Winn-Dixie was not a party to the settlement agreement, and the trial court entered an order establishing that Winn-Dixie was, at its option, entitled to pursue a separate claim for the taking of its leasehold interest in the condemned property.

Benderson moved the trial eourt to release the escrowed funds contending that Winn-Dixie was not entitled to apportionment. Winn-Dixie opposed the motion based upon its rights under the lease. The trial court entered a final order releasing the escrowed funds to Benderson and holding that Winn-Dixie was not entitled to apportionment of the proceeds for its leasehold interest. We reverse because the trial court erred in interpreting the lease as precluding Winn-Dixie from sharing in the condemnation proceeds.

Benderson agrees that it is well-settled law in Florida that “a valid lease for a term of years is a conveyance of an interest in land” which is protected by the constitutional guarantee against an eminent domain taking without just compensation. Trump Enters., Inc. v. Publix Supermarkets, Inc., 682 So.2d 168, 169 (Fla. 4th DCA 1996). Rather, Benderson contends that Winn-Dixie contracted away its rights in the lease. The law in Florida is equally clear that the contract language of a lease cannot extinguish the lessee’s right to just compensation for the taking of its leasehold interest unless that language expressly states that the lessee will not share in the eminent domain award in the event of a taking. Trump, 682 So.2d at 170; Elmore v. Broward County, 507 So.2d 1220, 1222 (Fla. 4th DCA 1987). Furthermore, case law from this district indicates that a lessee is entitled to recover damages in eminent domain proceedings when its access to parking is diminished by a taking. See K-Mart Corp. v. Dep’t of Transp., 686 So.2d 131 (Fla. 2d DCA 1994).

In K-Mart, this court held that K-Mart was entitled to compensation based on its leasehold interest. The taking in that case resulted in loss of direct access to a main artery (U.S. Highway 19) as well as driveways and parking areas. Id. at 132. As Winn-Dixie has in the present case, K-Mart asserted severance damages and business damages. The applicable language in the K-Mart lease provided that “the tenant’s right to receive compensation or damages or to share in any award shall not be affected in any manner hereby if said compensation damages or award is made by reason of expropriation of the land.” Id. at 132. Noting that “the diminution of a leasehold interest by governmental taking is compensable,” this court reasoned that because the taking involved “land,” K-Mart was entitled to compensation. Id. As in K-Mart, for reasons discussed below, the Winn-Dixie lease contemplates an interest in the surrounding land. The condemnation clause in Winn-Dixie’s lease provides:

If any part of the demised premises or more than twenty per cent (20%) of the buildings, exclusive of Tenant’s building, within the shopping center, be taken for any public or quasi-public use, under any statute or by right of eminent domain, or private purchase in lieu thereof, the Tenant shall be entitled to termination of this lease at its option, and any unearned rent or other charges paid in advance shall be refunded to the Tenant. In the event the Tenant does not elect to terminate this lease ..., the Landlord shall immediately commence and diligently prosecute to completion the repair and restoration of the improvements, ... to a condition comparable to their condition at the time of the taking ..., but Tenant shall be entitled to such division of proceeds and abatement of rent and other adjustments as shall be just and equitable under all circumstances.
In the event that any portion of the common areas (including parking area and access thereto) ... be taken ..., so as to materially or substantially interfere with the conduct of Tenant’s business in the demised premises, or so as to reduce the required parking area by an amount in excess of ten per cent ... or reduce the number of cars which may be conveniently parked to less than 558, the Tenant may, at its opinion, terminate this lease....

Benderson advances two primary arguments as to why Winn-Dixie cannot recover for the taking in this case.

Benderson first argues that Winn-Dixie’s leasehold interest did not include the parking area. The lease describes the leased or “demised premises” as “that certain store building ... and the land on which the same shall stand ... which store building and related improvements are to be constructed ... according to plans and specifications to be approved by the parties as herein provided.” (Emphasis added.) Based on this description, Benderson argues that Winn-Dixie’s leasehold interest did not include the parking area. We reject this argument. The lease, taken as a whole, contemplates a leasehold interest in the common areas of the shopping center. First, the lease refers to the leased premises as the “store building and related improvements.” “Related improvements” include the specifications for the parking area which require a minimum ratio of 4.85 parking spaces per 1000 square feet of building area. Second, the terms of the lease indicate that its continuation or termination was contingent upon the availability of adequate parking. Third, Winn-Dixie paid separate consideration (“additional rent”) for the monthly maintenance and repair of the parking area. The lease required Winn-Dixie to pay ten cents per square foot “as additional rent” to assist the landlord in maintaining and repairing the common areas, including “general repair and maintenance of all paved surfaces [and] repainting of parking area striping.” Therefore, when read as a whole, the express terms of the lease indicate that Winn-Dixie bargained for an interest in the parking area of the shopping center.

In its final argument, Benderson maintains that the absence of apportionment language in the second paragraph of the condemnation clause of the lease operates to bar apportionment for a taking of the common areas. We likewise reject this argument. While parties to a lease are free to contract away the tenant’s right to be compensated for a taking, the lease must express this intent in clear terms. Trump, 682 So.2d at 170 (holding that the law looks with disfavor on clauses forfeiting a lessee’s interest in condemnation proceeds, and therefore lease covenants will be construed against forfeiture if their language in the circumstances possibly permit).

Reversed and remanded with instructions for the trial court to proceed with apportionment of the deposited proceeds.

SILBERMAN, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Concurring.

I am not completely comfortable with one of the legal assumptions made by all of the parties in this case, but I join in the court’s opinion because the parties are comfortable with this assumption. The demised premises governed by the lease in this case include only the land under the Winn-Dixie Store. Winn-Dixie, and apparently many other tenants of this mall, possess mutual, nonexclusive rights to the common parking area. Winn-Dixie pays to maintain the parking lot, and we do not know whether this distinguishes it from other tenants.

Because the parking spaces that were taken by eminent domain are not a portion of the demised premises under the lease and because the easement that Winn-Dixie has over this land is mutual and nonexclusive to other parties, I am not entirely convinced that Winn-Dixie has a separate claim against DOT. Winn-Dixie may have a claim to a portion of the proceeds against its landlord under the terms of the lease, and this opinion effectively enforces such a claim, but I am troubled by the idea that DOT must pursue an eminent domain proceeding against every tenant in a huge shopping mall whenever it takes a few parking spaces.

The parties to this action all seem to believe that the law gives rights to tenants in this situation, which the tenant must expressly waive in the lease. Under that assumption, our opinion is a correct application of the law.

      . Among other claims pleaded in its answer to the DOT's petition, Winn-Dixie asserted severance damages, damages for the loss of value to the remaining property, and special damages for diminished access to the property.


author: PER CURIAM.

text:
    Eddie FRANKLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2713.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Rehearing and/or Rehearing En Banc Denied March 7, 2003.
    Eddie Franklin, in proper person.
    Charlie Crist, Attorney General, for ap-pellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

Because the record does not conclusively refute the appellant’s claim of affirmative misadvice of counsel regarding the length of sentence, we reverse and remand for an evidentiary hearing. State v. Leroux, 689 So.2d 235, 236 (Fla.1996); Bell v. State, 746 So.2d 515 (Fla. 3d DCA 1999); Rensoli v. State, 718 So.2d 1278 (Fla. 3d DCA 1998).

Reversed and remanded.


text:
    DCC CONSTRUCTORS, INC., Appellant, v. YACHT CLUB SOUTHEASTERN, INC. and General Accident Insurance Company of America, Appellees.
    No. 3D01-3125.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Rehearing and Certification Denied March 7, 2003.

      Holland & Knight, and Jim McCrae, Orlando, and Heather Pinder Rodriguez (Orlando), for appellant.
    Welbaum, Guernsey, Hingston, Green-leaf & Gregory, and W. Frank Greenleaf, Coral Gables; Greenberg Traurig, and Alan T. Dimond, Miami, for appellees.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

DCC Constructors, Inc. (“DCC”) appeals a final judgment denying its claim for attorneys’ fees under Section 713.29, Florida Statutes (1999). Yacht Club Southeastern Inc. (‘TCS”) and General Accident Insurance Company of America (“insurance company”) cross-appeal the trial court’s finding that a payment in the form of a personal check was not valid to satisfy a partial judgment which would toll interest on the judgment.

We reverse on the main appeal, finding DCC prevailed in its enforcement of a lien and is thus entitled to attorneys’ fees under Section 713.29. We affirm on the cross-appeal because a personal check is not the equivalent of cash or certified funds.

DCC and YCS entered into a contract for the construction of a condominium. After several disputes arose over the building’s construction, DCC recorded a claim of hen on the property. YCS and the insurance company transferred the lien to surety bonds pursuant to Section 713.24, Florida Statutes (1999). DCC then filed a demand for arbitration with the American Arbitration Association. Two months later, DCC filed a complaint against YCS, seeking relief under Section 713.24, and also seeking to compel arbitration.

Thereafter, the parties voluntarily agreed to submit the matter to arbitration. An arbitration panel awarded $1,875,893.00 to DCC, subject to a $355,676.00 set-off awarded to YCS on YCS’s non-appealed counterclaim. The net award to DCC totaled $1,520,217.00.

The trial court subsequently entered an order confirming the arbitration award, and granting a partial judgment against YCS based solely upon the arbitration panel’s decision. This partial judgment included a provision withholding execution and reserved jurisdiction on DCC’s pending claims against the lien transfer bond. The trial court denied DCC’s motion for summary judgment on YCS’s and the insurance company’s counterclaim and affirmative defenses of fraudulent lien under Section 713.31, Florida Statutes (1999).

Several months later, YCS and the insurance company tendered a personal check to DCC in the amount of $1,637,748.93, as satisfaction of the partial judgment and interest owed. Since the tender was made by personal check and DCC disputed the interest calculation, DCC filed a motion requesting that the funds be deposited in the court registry. The trial court granted the motion to place the funds into the court registry. The trial court further held the personal check was not a valid tender, and thus was legally insufficient to stop the running of interest on the partial judgment.

Thereafter, the trial court, sua sponte, ordered the parties to non-binding arbitration on the remaining issues. At the commencement of this non-binding arbitration, YCS and the insurance company again tendered to DCC a check, this time in the form of a cashier’s check in the amount of $1,665,574.76. DCC accepted the cashier’s check as partial satisfaction of judgment.

YCS’s fraudulent hen claim, and DCC’s claim for attorney’s fees, were then submitted to non-binding arbitration. The arbitration award found DCC’s claim of lien was not fraudulent and that DCC was entitled to attorney’s fees for time spent enforcing its claim against the lien transfer bond in circuit court, but not for the time spent in arbitration.

DCC moved for a trial de novo on the issue of its entitlement to attorneys’ fees. The trial court found that DCC was not entitled to attorneys’ fees under Section 713.29, because DCC was not the prevailing party in an action to enforce a lien transfer bond. We disagree.

DCC was the claimant in an action to recover under a construction hen (formerly referred to as a “mechanic’s lien”). As this court has previously noted: “When a claimant in a mechanic’s hen action recovers a judgment in any amount, a trial court errs in not finding the lienor the ‘prevailing party’ and awarding attorney’s fees pursuant to Section 713.29 of the Florida Statutes.” Hub Cap Heaven, Inc. v. Goodman, 431 So.2d 323 (Fla. 3d DCA 1983)(footnote omitted). Since DCC received a net award after arbitration on its sole cause of action, and also successfully defeated all of the defendants’ affirmative defenses and counterclaims, it was entitled to attorney’s fees as the prevailing party under Section 713.29. See Hollub Const. Co. v. Narula, 704 So.2d 689 (Fla. 3d DCA 1997).

Turning to YCS’s and the insurance company’s cross-appeal, a judgment creditor has the right to refuse a personal check in satisfaction of a judgment and to insist on payment by cash or certified funds. See In re Estate of Woodruff, 647 So.2d (Fla. 4th DCA 1994); Hudgins v. Florida Federal Sav. and Loan Ass’n, 399 So.2d 990 (Fla. 5th DCA 1981).

Unlike a certified check, a personal check does not offer any guarantees that it will be honored and thus “the proffer of a personal check is not the equivalent of cash or a certified check.” Keanie v. Goldy, 698 So.2d 1264, 1267 (Fla. 5th DCA 1997); see also Warren Finance, Inc. v. Barnett Bank of Jacksonville, N.A., etc., 552 So.2d 194 (Fla.1989) (bank has duty to honor a certified check). Furthermore, if a judgment creditor exercises its right to payment by cash or certified check, then interest on the debt continues to accrue until such payment is made by the debtor. See Enriquillo Export & Import, Inc. v. M.B.R. Industries, Inc., 733 So.2d 1124 (Fla. 4th DCA 1999); Keanie v. Goldy, 698 So.2d 1264 (Fla. 5th DCA 1997); In re Estate of Woodruff, 647 So.2d at 1045.

Accordingly, we affirm the trial court’s ruling that a personal check is invalid to satisfy a partial judgment and does not toll interest. DCC had the right to refuse a personal check to satisfy the judgment, and interest continued to accrue until the defendants tendered proper payment. See Enriquillo Export & Import, Inc. v. M.B.R. Indust., Inc., 733 So.2d at 1124.

Affirmed in part; reversed in part and remanded for a determination of an attorneys’ fees award under Section 713.29, Florida Statutes (1999).

      . Section 713.29 provides:
      In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

      . A certified check is an obligation of a bank. When a bank certifies a check, it warrants that it has sufficient funds to pay the check and is liable to do so. See Black's Law Dictionary 207 (5th ed.1979).


author: KLEIN, J. PER CURIAM.

text:
    Damien DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-236.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Order Denying Rehearing March 19, 2003.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant argues that the trial court committed fundamental error in failing to give a guilty knowledge jury instruction under Chicone v. State, 684 So.2d 736 (Fla.1996). We affirm.

Appellant was convicted of possession and delivery of cocaine within 1,000 feet of a school based on the testimony of a confidential informant. The informant testified that, while he was driving, the appellant waved him over. The informant got out of his car and went onto appellant’s porch, where appellant sold him cocaine.

Chicone requires that, where a defendant requests it, the jury must be instructed that the defendant have knowledge that the substance is illegal. In this case the instruction was not requested, but defendant argues that it was fundamental error not to give it.

Because guilty knowledge was not an issue in this case, in that the only position taken by the defendant was that he was not the person who sold the cocaine to the informant, any error in not giving a guilty knowledge instruction would not rise to the level of fundamental error. State v. Delva, 575 So.2d 643 (Fla.1991). We therefore affirm.

WARNER and STEVENSON, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant has moved for rehearing asserting that the error in his case was fundamental based on Scott v. State, 808 So.2d 166 (Fla.2002). He suggests that there is a conflict between Scott and State v. Delva, 575 So.2d 643 (Fla.1991), as to what is necessary for an element of a crime to be in dispute, in order for the omission of the element from a jury instruction to constitute fundamental error.

We do not agree with appellant that there is a conflict between Scott and Delva because in Scott the error was preserved. Accordingly, the language in Scott relied on by appellant is not relevant when analyzing whether an error is fundamental.

In order for a jury instruction which omits a crime element to be fundamental error under Delva, there must be an actual dispute about that element raised by the evidence or argument. As the court noted in Delva, there was “no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained.” Id. at 645. In a decision after Scott, Reed v. State, 837 So.2d 366 (Fla.2002), our supreme court reiterated that Delva is the controlling law on this issue.

In the same vein, appellant argues that our opinion in this case conflicts with Thompson v. State, 814 So.2d 1103 (Fla. 4th DCA 2002), which involved the issue of whether the trial court’s failure to instruct the jury on an element of attempted felony murder was fundamental error. In Thompson, however, as is obvious from the opinion, instructing the jury on attempted felony murder is far more complicated than instructing on possession of drugs, the crime in the present case. In Thompson, we concluded that the jury instruction given was confusing and misleading and that the “confusion requires reversal.” Id. at 1107. Accordingly we do not agree with appellant that a mistaken identity defense puts all elements of a crime in dispute so as to allow the failure to instruct on an element to be raised for the first time on appeal. Such an interpretation of Thompson would conflict with Del-va.

We therefore deny the motion for rehearing.

WARNER, KLEIN and STEVENSON, JJ., concur.

      . That language is:
      Scott’s argument that he did not possess the drugs and had no knowledge of the drug's presence in his locker encompasses the argument that he was unaware of the illicit nature of the substance. With this kind of argument and defense, each element of the offense is a disputed element on which the jury must be instructed. Moreover, the requirement that an instruction must be given does not depend on the defense espoused. Because knowledge of the illicit nature is an element of the crime and the jury must be instructed on each element of the crime, an instruction must be given even when the defendant simply requires the State to prove its case and offers nothing by way of an affirmative defense.

        Scott, 808 So.2d at 171.


text:
    James P. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3067.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    Rehearing Denied March 17, 2003.
    Appellant, pro se.

      Robert A. Butterworth, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his rule 8.800(a) motion, in which he alleged that the trial court erred in sentencing him to drug offender probation when he was not convicted of violating a drug related offense. We reverse.

Section 948.034, Florida Statutes (2001), sets forth the terms and conditions of probation in a community residential drug punishment center for offenders committing specifically enumerated drug offenses in chapter 898, Florida Statutes (2001). A defendant must be convicted of one of the enumerated chapter 893 offenses in order to qualify for a drug offender probation sentence pursuant to section 948.034. See Ellis v. State, 816 So.2d 759, 760 (Fla. 4th DCA 2002). In the present case, the appellant alleges that he was convicted only of grand theft pursuant to section 812.014(2)(a), Florida Statutes (2001). Because grand theft is not one of the enumerated chapter 893 drug offenses, the appellant’s drug offender probation was imposed in violation of section 948.034. See Ellis, 816 So.2d at 762.

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct his illegal sentence and remand for the trial court to attach record portions that conclusively refute the appellant’s claim, or to resentence the appellant without the drug offender probation.

REVERSED and REMANDED.

BARFIELD, KAHN and PADOVANO, JJ., concur.


author: DAVIS, Judge.

text:
    Bruce LINDSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2357.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied March 10, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Bruce Lindsey challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Lindsey argues that his sentence as a prison releasee reoffender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed by 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional since it was enacted in violation of the single subject rule. The effective date of the Prison Releasee Reoffender Punishment Act is May 30, 1997. Jefferson v. State, 777 So.2d 1082 (Fla. 2d DCA 2001). Chapter 99-188 broadened the definition of a prison releasee reoffender to include a defendant who commits a listed offense while serving a prison sentence or is on escape status. See ch. 99-188, § 2, at 1041, Laws of Fla. Since Lindsey has not alleged that he was affected by the amendments to the Act and that he could not have been sentenced as a prison releasee reoffender pursuant to the statute in existence prior to the passage of chapter 99-188, his claim is facially insufficient. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes in effect prior to the enactment of chapter 99-188 control sentencing).

Accordingly, we affirm the order of the trial court.

ALTENBERND and CASANUEVA, JJ., concur.

      . Ch. 97-239, Laws of Fla.


text:
    Elijah SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-691.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Rehearing or Rehearing En Banc Denied March 12, 2003.
    Bennett H. Brummer, Public Defender and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal from a final judgment of conviction for first-degree murder with a firearm and unlawful possession of a firearm during the commission of a felony (the murder).

The State concedes, and we agree, that the defendant’s conviction and sentence, for unlawful possession of a firearm during the commission of a felony, constitutes a violation of the defendant’s double jeopardy rights. See Henton v. State, 789 So.2d 524 (Fla. 3d DCA 2001). See also Cleveland v. State, 587 So.2d 1145 (Fla.1991).

Accordingly, finding no other meritorious point on appeal, we vacate the defendant’s judgment with regard to the unlawful possession of a firearm conviction, and remand for resentencing.

Affirmed in part, reversed in part and remanded.


author: TAYLOR, J.

text:
    Alexander BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1568.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Rehearing Denied March 19, 2003.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant pled no contest to trafficking in cocaine over 28 grams, reserving the right to appeal the denial of his motion to suppress the evidence. We affirm.

At the suppression hearing, Deputy Robert Kohl, a K-9 road patrol officer, testified that he received a call that a vehicle had broken down near the 1-95 and 714 interchange in Palm City. He responded to the location and saw two disabled vehicles parked one behind the other off the side of the highway. The deputy spoke to the occupants of the first car. The driver told him that he and his passengers were returning from a water theme park in West Palm Beach when their car overheated. The deputy suggested that they use rainwater from a nearby ditch for the radiator. The driver, however, preferred to use clean water and asked the deputy to go into town to get some for him. The deputy declined and, instead, allowed the driver to use his cell phone to call friends for fresh water.

The deputy then approached the second car. Appellant and another man were standing outside the disabled vehicle. Appellant told the officer that he had run out of gas and called 911 for assistance. He told the officer that he and his passenger had left Miami and were returning to Jacksonville. The officer offered to go into town for gas. Appellant handed the officer an empty gas can but then told the officer that he did not want him to come back; he said he would rather use a tow truck. The officer asked appellant if he had any money, and appellant responded that he had $1000. The deputy became suspicious when appellant said he would rather call a tow truck than have the deputy return with gas. At that point, he asked for identification from appellant and his passenger. The deputy ran a criminal check through dispatch and discovered that appellant had prior drug charges.

The deputy separated the two men and questioned them individually. Appellant said that he was a mason and had been in Miami that weekend looking for work laying block. The passenger said that they had been in Miami just visiting relatives. Because the deputy’s suspicions were heightened by the conflicting stories, he asked for permission to search the vehicle for weapons and drugs. Appellant consented. The deputy searched the vehicle’s interior and found nothing. He then asked appellant for the keys to search the trunk. At first, appellant denied having the keys. Then, after locating the keys, he told the deputy that he did not want him to search the trunk. This further raised the deputy’s suspicions, so he called for backup assistance.

In less than ten minutes backup arrived. According to the deputy, appellant was free to leave during the time he waited for backup officers. He “guessed” that appellant did not leave because his ear was out of gas. Appellant testified, however, that the deputy ordered the two men to sit on the ground in front of appellant’s car while the deputy called and waited for backup.

When backup arrived, Deputy Kohl took his drug detection dog out of the back of his patrol vehicle and led him around appellant’s car. The dog alerted to the trunk area of the car. After the alert, the deputy placed appellant and his passenger in separate police cars. During a patdown of appellant, the deputy found $1,000. The deputy retrieved the keys to the car, unlocked the trunk, and searched it. His search revealed over 177 grams of powdered cocaine inside a black rubber boot.

At the hearing on appellant’s motion to suppress, appellant conceded that the initial contact between appellant and the officer was consensual and that the consensual nature of the encounter remained through the consensual search of the car’s interior. He argued, however, that he was unlawfully detained or arrested, without reasonable suspicion or probable cause, when he was patted down and placed in the back of the patrol car. On this basis, denial of appellant’s motion to suppress was proper. The evidence showed that appellant was not patted down and placed in the patrol car until after the drug dog alerted to the trunk of his disabled vehicle. Once the dog alerted to the presence of illegal drugs, the deputy had probable cause for the search that led to discovery of the cocaine. See State v. Hill, 770 So.2d 280, 282 (Fla. 5th DCA 2000)(holding that police officers had probable cause to believe that suspect’s vehicle contained drugs after drug-sniffing dog alerted officers to vehicle); State v. Robinson, 756 So.2d 249 (Fla. 5th DCA 2000) (holding that an alert by a trained police dog provides probable cause for a search).

The exclusionary rule requires the suppression of evidence obtained as a result of an unlawful seizure. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Here, where appellant did not argue below that he was unlawfully detained or arrested prior to the drug dog alert on his vehicle, the trial court correctly found that no unlawful search occurred. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)(concluding that a dog sniff that discloses only the presence or absence of narcotics “does not constitute a search within the meaning of the Fourth Amendment”); see also City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)(discussing that a sniff by a dog that simply walks around a ear is much less intrusive than a typical search); Cardwell v. State, 482 So.2d 512 (Fla. 1st DCA 1986)(“Just as no police officer need close his eyes to contraband in plain view, no police officer armed with a sniff dog need ignore the olfactory essence of illegality.”).

On appeal, appellant argues for the first time that the evidence should have been suppressed because he was unlawfully detained when he refused permission to search the trunk of his car and was ordered to sit on the ground to wait for backup police. We do not reach the merits of this argument because it was not raised below. See State v. Klein, 736 So.2d 9 (Fla. 4th DCA 1998)(holding that state failed to preserve claim that search was within the scope of lawful search incident to arrest of passenger by not making that argument to the trial court). In Klein, Judge Klein explained that:

Under section 924.051, Florida Statutes (1997), a criminal appeal may not be taken unless an error has been properly preserved or is fundamental. “Preserved” means that the legal argument presented to the trial court was “sufficiently precise” to fairly apprise the trial court of the argument being made on appeal.

Id. at 10.

Here, had the trial court been “fairly apprised” of appellant’s detention argument presented on appeal, it could have weighed appellant’s testimony that he was ordered to remain on the scene against the deputy’s testimony that appellant was “free to leave” during the time he waited for backup officers. In addition, the trial court could have examined other circumstances which appellant now claims demonstrated an unlawful detention and could have made factual findings concerning them. Because appellant did not assert below that he was unlawfully detained by any police conduct before the dog sniff search, we do not consider this argument on appeal and affirm the denial of his motion to suppress.

AFFIRMED.

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

      . Appellant argues for the first time on appeal that the consensual encounter escalated into a detention at the point where he refused permission to search the trunk of his car because: (1) his driver’s license had been taken by the deputy; (2) his car had been searched; (3) he was pressured to turn over the key to his trunk; (4) he was separated from his companion when questioned; and (5) he was made to sit on the ground to await more police.


author: MAY, J.

text:
    Laura PARSONS, Appellant, v. HARBOR SPECIALTY INSURANCE COMPANY, Appellee.
    No. 4D02-1320.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Rehearing Denied March 17, 2003.
    Sharon C. Degnan and Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellant.
    Mark A. Greenberg and Steven C. Tee-bagy of Powers, McNalis, & Moody, Lake Worth, for appellee.
   MAY, J.

The application of section 627.7283, Florida Statutes (2001), to a claim for interest on an unearned insurance premium is challenged in this appeal. The plaintiff appeals an order, which dismissed her first amended complaint with prejudice. We affirm.

The plaintiff purchased an automobile insurance policy from the defendant, effective February 25,1997. On April 29,1997, the defendant sent the plaintiff a notice of cancellation, advising her that the policy would terminate on May 9, 1997. Within thirty (30) days of the notice, the defendant issued a check to the plaintiff in the amount of $37.12, representing her unearned policy premium.

The plaintiff filed suit against the defendant in February, 2001. She alleged a claim for interest on the unearned premium, which accrued within the first thirty days following the notice of cancellation. The first amended complaint alleged a count for declaratory relief, a count for breach of contract, and a count for money had and received.

The defendant moved to dismiss. It argued that section 627.728S, Florida Statutes (2001), exclusively controls an insurer’s obligation to pay interest on the refund of an unearned premium. The plaintiff argued that the statute did not expressly abrogate the common law and therefore could not prevent a common law right of action for interest on monies owed. Secondarily, the plaintiff argued that if the statute did abrogate the common law, then it violated her constitutional right of access to the courts.

The trial court determined that the legislature had the authority to and had dictated an insurance company’s obligation to pay the insured interest on an unearned premium. Relying on the literal reading of the statute, the trial court dismissed the plaintiffs first amended complaint with prejudice.

Section 627.7283, provides:

(1)If the insured or insurer cancels a policy of motor vehicle insurance, the insurer must return the unearned portion of any premium paid within 30 days after issuance or receipt by the insurer of notice of cancellation. If the unearned premium is not returned within the 30-day period, the insurer must pay 8 percent interest on the amount due. If the unearned premium is not returned within 45 days after receipt of the notice, the insured may bring an action against the insurer pursuant to s. 624.155.

We acknowledge that section 627.7283, does not contain the magic language that it “abrogates the common law.” Nevertheless, the statute clearly articulates the legislature’s intent that an insurer be given thirty (30) days within which to return an unearned premium. It further clearly states that interest will begin to accrue at the rate of 8% if the refund is not made within that thirty (30) day grace period. Such clarity cannot be overlooked. Modder v. Am. Nat'l Life Ins. Co. of Texas, 688 So.2d 330, 333 (Fla.1997).

We can find no case which expressly states that a right to interest on an unearned premium for car insurance existed at common law. Indeed, to support its position, the plaintiff relies on the general principle that “[a] person to whom a debt is owed is entitled not only to the payment of the principal of the debt but also to interest at the lawful rate.” Chelsea Title & Guar. Co. v. Turner, 389 So.2d 691, 692 (Fla. 4th DCA 1980). See also Gallo v. Dep’t of Banking & Fin., 749 So.2d 582 (Fla. 5th DCA 2000); M.L. Cooper v. Alford, 477 So.2d 31 (Fla. 1st DCA 1985). We have no quarrel with the principle, but finds its application lost in the context of section 627.7283.

The plaintiff entered into a contract with the defendant for a policy of insurance. The defendant cancelled the policy and returned the unearned premium within thirty days as required by statute. No interest accrued during that time. The trial court properly applied the statute and dismissed the plaintiffs first amended complaint for failure to state a cause of action.

We further hold that section 627.7283, does not deny the plaintiff access to the courts. It does not abolish the insured’s right to sue an insurer for the refund of an unearned premium. It does not abolish an insured’s right to sue for interest on an unearned premium if not refunded within thirty (30) days. The statute imposes a reasonable restriction on the filing of a claim for interest. See State Farm Mut. Auto. Ins. v. Warren, 805 So.2d 1074 (Fla. 5th DCA 2002).

AFFIRMED.

TAYLOR and HAZOURI, JJ., concur.

      . The case was filed as a class action suit, but the class has not yet been certified.


author: GROSS, J.

text:
    Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D02-470.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Rehearing Denied March 20, 2003.
    Richard W. Glenn, West Palm Beach, for appellant.
    Scott L. Pestcoe and Michael S. Cha-drow of Bakalar, Brough & Chadrow, P.A., Plantation, for appellee.
   GROSS, J.

In light of the supreme court’s decision in Caufield v. Cantele, 837 So.2d 371, 377-78 (Fla.2002), we withdrew our prior opinion in this case. We now substitute the following.

The county court judge in this case denied a motion for attorney’s fees and certified a question as being of great public importance concerning the application of section 718.303(1), Florida Statutes (2001). We rephrase the question:

In a suit by a condominium association AGAINST A UNIT OWNER FOR UNPAID ASSESSMENTS, IS THE UNIT OWNER THE “PREVAILING PARTY” WITHIN THE MEANING OF SECTION 718.303(1), Florida Statutes (2001), WHERE THE OWNER PAYS SUBSTANTIALLY ALL THAT IS SOUGHT BY THE ASSOCIATION, AND THE ASSOCIATION THEREAFTER FILES A VOLUNTARY DISMISSAL WITHOUT PREJUDICE?

For the reasons stated below, we answer the certified question in the negative and affirm the order of the county court.

Appellant, Walter D. Padow, M.D., P.A. (“Padow”), owns a condominium and is a member of the appellee, Knollwood Club Association, Inc. (“Association”).

In July, 1999, the association filed a complaint against Padow based on the failure to pay maintenance assessments. Pa-dova’s answer denied any delinquency. In June, 2000, the association filed a motion for summary judgment. In July, 2000, Padow sent the association a $2,000 check. The association acknowledged receipt of the check and indicated that it would apply the payment pursuant to section 718.116(3), Florida Statutes (2000). The association took the position that, after allocating the payment under the statute, Padow still owed it money.

The trial court denied the association’s motion for summary judgment. The judge ruled that “all the past due assessments, including interest and late fees [had] been paid by tender of the amount due when Padow tendered $2,000” to the association.

Almost seven months later, the association voluntarily dismissed its complaint without prejudice pursuant to Florida Rule of Civil Procedure 1.420(a)(1). Two weeks later, Padow filed his motion to tax costs and attorney’s fees, asserting that he was the prevailing party. At the hearing, the association explained that it had taken a voluntary dismissal “because it had gotten most of what it had sought when filing its suit and ... it did not believe that it was worth while for a small [condominium [association to continue to litigate indefinitely under those circumstances.”

The trial court denied Padow’s motion, devoting much of its thoughtful order to the issue of whether Padow was the “prevailing party” within the meaning of section 718.303(1). The judge reasoned that: (1) Padow had “paid the claim, or a very good part of it,” (2) the association “got most of what it sought,” (3) “almost anyone, not hindered by a law degree, would believe that the time for fighting or litigating had passed,” and (4) to find that Padow was the prevailing party under these circumstances would require a plaintiff to fight every case to judgment, even though it “achieved all of the legitimate goals of [its] suit,” which was not a goal of the legislature in passing the statute.

The test for determining the “prevailing party” under section 718.303(1) is “whether the party ‘succeeded] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Munao, Munao, Munao & Munao v. Homeowners Ass’n of La Buona Vita Mobile Home Park, Inc., 740 So.2d 73, 78 (Fla. 4th DCA 1999) (construing § 723.068, Fla. Stat. (1989) and quoting Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 809-10 (Fla.1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983))). Here, the association succeeded on the primary issue in the litigation, recovering most of the unpaid assessments that it sought.

Padow argues that a court “cannot look past a voluntary dismissal to determine whether a party is a ‘substantially’ prevailing party.” He cites the general rule that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Thornber v. City of Ft. Walton Beach, 568 So.2d 914, 919 (Fla.1990). As the supreme court explained:

A determination on the merits is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the prevailing party. Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), review denied, 486 So.2d 597 (Fla.1986).

Thomber, 568 So.2d at 919 (Fla.1990).

This case presents an exception to the general rule stated in Thomber. Thomber contemplates that after a voluntary dismissal a trial court must “determine whether the party requesting fees has prevailed.” Id. (emphasis added). This language indicates that a defendant is not automatically the prevailing party for the purpose of an attorney’s fee statute when a plaintiff takes a voluntary dismissal. Here, Padow cannot be a “prevailing party” within the meaning of section 718.303(1) because he paid the substantial part of the association’s claim for delinquent assessments prior to the voluntary dismissal.

Padow relies on Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So.2d 959 (Fla. 4th DCA 1998), abrogated on other grounds by Caufield, 837 So.2d at 373-74; Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640 (Fla. 4th DCA 1997), and Griffin v. Berkley South Condominium Ass’n, 661 So.2d 135 (Fla. 4th DCA 1995). However, in none of these cases did the plaintiffs voluntary dismissal follow the defendant’s payment of substantially all of the plaintiffs claim.

For example, in Griffin, an association filed suit against a unit owner to foreclose a lien for delinquent assessments. Id. at 135. After discovering that it had been improperly charging the owner late fees, the association “acknowledged that [the unit owner] actually had a credit balance and voluntarily dismissed the case.” Id. At the hearing on attorney’s fees, the association put on testimony that it was mistaken about the unit owner’s credit balance; the owner still owed a small amount, “which would not have been enough to warrant the filing of the suit.” Id. This court held that the unit owner was the prevailing party entitled to attorney’s fees under section 718.303. Id. Significantly, in Griffin, the unit owner paid no money toward the claim prior to the association’s voluntary dismissal.

We agree with the county court that to declare Padow the prevailing party in this case would be contrary to a goal of the statute, which is to discourage needless litigation by encouraging settlement. The judge found that “to continue the lawsuit [ ] would have been a waste of resources .... ” Consistent with the intent of the statute, the association took the expeditious course of unilaterally dismissing the case to put an end to the litigation, foregoing its colorable claim for attorney’s fees.

AFFIRMED.

KLEIN and TAYLOR, JJ., concur.


text:
    Hershel MEADOWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4092.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Rehearing Denied March 18, 2003.
    Kelly V. Landers of Kelly V. Landers, P.A., West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Sue Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002).

WARNER, FARMER and TAYLOR, JJ., concur.


text:
    Wavernita HUBBARD, Appellant, v. CITY OF BOCA RATON and Joseph Cogley, Appellees.
    No. 4D01-4956.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Rehearing Denied March 27, 2003.

      Nathaniel E. Green of Nathaniel E. Green, P.A., Fort Lauderdale, for appellant.
    Robert L. Teitler and Amy L. Smith of Walton Lantaff Schroeder & Carson, Miami, for appellee City of Boca Raton.
   PER CURIAM.

Wavernita Hubbard, the appellant, sued her former employer, the City of Boca Raton, alleging that her employment had been terminated in retaliation for filing workers’ compensation claims, in violation of section 440.205, Florida Statutes. The trial court entered summary judgment in favor of the employer. We reverse as the employer failed to conclusively demonstrate that Hubbard’s workers’ compensation claims were not a substantial factor in the employer’s termination decision. See Rivera v. Saffold, 606 So.2d 1249 (Fla. 2d DCA 1992)(reversing summary judgment in favor of employer where the record raised a question as to the employer’s motivation for firing employee); see also Fine Arts Museums Found, v. First Nat'l in Palm Beach, 633 So.2d 1179, 1181 (Fla. 4th DCA 1994)(“If the record raises the slightest doubt that an issue might exist, then summary judgment is improper.”)(citing Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)).

REVERSED and REMANDED.

KLEIN, STEVENSON, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.