text:
    James RITTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1731.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      James Ritter, petitioner, pro se.
    Charles J. Crist, Jr., Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By timely petition, James Ritter asserts that he was denied the effective assistance of counsel on appeal as a consequence of counsel’s failure to address a sentencing issue apparent from the face of the record. We agree and grant the petition.

The transcript of Ritter’s sentencing hearing reflects that his sentencing guidelines scoresheet yielded a sentencing range of 81 to 135 months imprisonment. Defense counsel argued for a sentence at the bottom of the guidelines range with a portion thereof suspended, while the state requested that Ritter be sentenced to a term of 96 months imprisonment, to be followed by 5 years of sex offender probation. In thereafter announcing sentence, the trial judge stated the following:

Mr. Ritter, you have been found guilty of one count of lewd and lascivious or indecent act upon a child by a jury on September 14, 2000.
The court is terribly disturbed that I think you still maintain you did not do anything. This jury has in fact determined to the contrary and I am accepting the jury’s verdict having heard the testimony.
I have not seen any indication of remorse in this matter. I understand a lot of pain and suffering has been caused to a lot of people, but I have not seen any indication of admission that something was done wrong on your part or remorse on your part for something having been done as opposed to the terrible tragedy you have inflicted on the entire family.
Based upon that, sir, the court hereby sentences you to a term of 120 months in the Department of Corrections to be followed by a three year term of sex offender probation.

Ritter asserts that it is clear from these comments that the trial judge considered and gave weight to the fact that he continued to maintain his innocence and failed to show remorse, and on that basis imposed a sentence of incarceration in excess of that sought by the state. We find Ritter’s argument in this regard to be meritorious. While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. See, e.g., Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999); Peters v. State, 485 So.2d 30 (Fla. 3d DCA 1986); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984). Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. See KN.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). Reliance on these impermissible factors violates the defendant’s due process rights. See Holton v. State, 573 So.2d 284 (Fla.1990); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); K.N.M. v. State, supra.

The state argues that appellate counsel can nonetheless not be faulted for failing to pursue this issue because it would not have been cognizable on appeal. In support of this proposition, the state cites to Melton v. State, 678 So.2d 434 (Fla. 1st DCA 1996), in which we held, pursuant to the version of section 924.06(l)(e) then in effect, that a trial court’s decision to impose a sentence within the applicable guidelines range (as opposed to departing therefrom) is not a proper basis for appeal. Because Ritter’s appeal from his sentence would not have been based upon a claim that the trial court had erred by declining to impose a sentence below the applicable guidelines range, our decision in Melton would not have precluded his appeal. Rit-ter’s appeal would instead have been based upon his claim that the trial court had imposed a sentence based upon Ritter’s refusal to admit guilt and express remorse. Thus, unlike the issue presented in Melton, the issue in the present case was cognizable on appeal under section 924.06(l)(d), Florida Statutes (2001), and should have been identified and addressed by appellate counsel. See Fla. R. Crim P. 3.800(b)(2).

On the basis of the foregoing, we grant Ritter’s petition, vacate his sentence, and remand for resentencing before a different judge.

ALLEN, VAN NORTWICK and BROWNING, JJ., concur.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Eric GEARHART, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4043.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.

      James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant appeals from orders revoking his probation and imposing a five year prison sentence. He asserts that the trial court erred in revoking his probation and sentencing him to five years imprisonment after extending his initial probationary term of three years without jurisdiction or proper notice.

A trial court may enhance or extend probation during the probationary period following a hearing and upon proof of a violation. However, in the absence of a noticed hearing and such proof, an extension of the probationary term violates the double jeopardy prohibition against multiple punishments for the same offense. Double jeopardy rights may be waived but no waiver occurred here. Accordingly, we reverse.

Pursuant to a plea agreement, the defendant pled no contest to the charge of lewd and lascivious act on a child under the age of 16 and on May 26, 2000, was sentenced to three years of sex offender probation. Condition 26 of his sex offender mandatory conditions required him to participate and successfully complete a sex offender treatment program.

On March 20, 2003, or approximately two months before the probation was to expire, the Department of Corrections advised the trial court by letter that the defendant had been discharged from a treatment program prior to completion due to excessive absences. The DOC asked that the defendant’s probation be extended for two years to allow for completion of the sex offender treatment program.

According to the author of the letter (who testified at the subsequent revocation hearing) the matter had been discussed with the defendant who was happy about the extension in lieu of revocation proceedings. The author of the letter admitted that a copy had not been furnished to the defendant nor was the defendant furnished with notice of the hearing set on the request.

The trial court treated the letter as a motion to extend probation and the hearing was conducted on April 10, 2003 on the request to extend probation for two years. The defendant was not present. An order granting the motion was entered. Thereafter, a separate “Order of Modification” of sex offender probation was entered on June 9, 2003, modifying the sex offender probation to provide that probation “will terminate upon successful completion of sex offender treatment.” Neither order contains any finding that the defendant was in violation of his probation.

On September 4, 2003, the defendant’s probation officer filed an affidavit alleging violation of sex offender probation on three grounds. The defendant filed a motion to dismiss. Following a hearing, the court found the defendant violated his probation and he was thereafter sentenced to five years imprisonment.

Probation is a creature of statute and courts are limited to the authority set out in the applicable statutes. See Lynn v. State, 398 So.2d 977 (Fla. 1th DCA), rev. denied, 411 So.2d 383 (Fla.1981). Chapter 948, Florida Statutes, governs terms and conditions of probation and provides in part at subsection (6) that “the court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer or offender in community control.”

Case law recognizes that a trial court may, pursuant to section 948.03(6), Florida Statutes, at any time during the probationary period, modify any probation conditions with the caveat that the court cannot enhance the penalty or add new conditions without proof of a violation. Lippman v. State, 633 So.2d 1061 (Fla.1994); Clark v. State, 579 So.2d 109 (Fla.1991); Garvison v. State, 775 So.2d 340 (Fla. 2d DCA 2000); Casterline v. State, 703 So.2d 1071 (Fla. 2d DCA 1997). An enhancement of probation where there is no proof of a violation of probation contravenes “the double jeopardy prohibition against multiple punishments for the same offense.” Lippman, 633 So.2d at 1064; see also Cole v. State, 745 So.2d 1001, 1002 (Fla. 2d DCA 1999).

In Clark, the supreme court held that before the probationary term can be extended, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06, Florida Statutes. 579 So.2d at 110-11.

In the instant case, the trial court entered an “Order of Modification,” extending the probationary term from three years to “upon successful completion of sex offender treatment.” This was an enhancement of the probationary term without any formal proof or finding by the court of a violation of probation. A double jeopardy violation occurred under these circumstances. Furthermore, the defendant was not served with a copy of the DOC letter which was apparently employed in lieu of a formal affidavit alleging violation of probation, nor was the defendant provided with notice of the April 10, 2003, hearing.

The State argues that despite these defects, reversible error was not committed because the defendant verbally agreed with the DOC to an extension of the probationary term in lieu of revocation. The State relies on testimony of the author of the DOC correspondence to the effect that she discussed the extension with the defendant who was happy with the extension and with the fact that his probation was not being violated. The State recognizes that in Lippman, the supreme court declined to find a waiver by the defendant of his double jeopardy rights where the trial court unilaterally modified the conditions of probation without agreement by or benefit to the defendant. However, the State maintains that here the evidence is that the defendant accepted the benefit of the extension and avoided revocation of his probation thereby effectively waiving any double jeopardy claim.

In Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001), the Second District found a waiver of a double jeopardy claim arising out of an improper enhancement of the original conditions of probation. In that case, the trial court improperly enhanced the original condition of probation that Blair not use intoxicants to excess by prohibiting Blair from consuming or possessing any alcoholic beverages (special condition two) without any finding that Blair had violated his probation. The appellate court, in concluding that Blair could not complain of this enhancement, explained:

While special condition two was not the basis of the charged violation, the plea in March 1999 was given in exchange for an agreed continuation of probation. The trial judge noted that the State was seeking a prison term for Blair due to his violation of probation. Nevertheless, the trial judge continued Blair’s probation and specified that Blair must complete the previously imposed conditions of probation.
In State v. Johnson, 483 So.2d 420, 421 (Fla.1986), the supreme court noted, “[Tjhere may be limited instances in which a defendant may be found to have knowingly waived his double jeopardy rights.” Where a guilty plea is bargained for, double jeopardy claims as to the conviction and sentence are waived. Novaton v. State, 634 So.2d 607, 609 (Fl.1994); see also Melvin v. State, 645 So.2d 448, 449 (Fla.1994).
Blair should have appealed the addition of special condition two when it was originally imposed in 1998. See Baxter v. State, 596 So.2d 460 (Fla. 2d DCA 1991). He did not do so, and in March 1999, Blair accepted the benefit of the continuation of his probation. See id. We also note that prior to pleading guilty to the violation of probation in March 1999, Blair was aware of special condition two. In February 1999, Blair was instructed by his probation officer regarding that condition, and Blair acknowledged the condition in writing. Because of Blair’s knowledge of the conditions of his probation, his repeated failure to raise the issue of the illegal enhancement in the trial court or in any prior appeal, and his plea of guilty to a violation of probation in exchange for the continuation of his probation, we conclude that Blair waived his double jeopardy claim....

805 So.2d at 878.

In the instant case, however, the defendant never received formal notice of the purported violation of probation, nor of the hearing on the request of DOC to extend probation. The absence of a noticed hearing on the request for extension at the very least distinguishes this case from Blair. Additionally, neither order extending probation reflects service upon the defendant.

State v. Schafer, 583 So.2d 374 (Fla. 4th DCA 1991), involved an illegal extension of probation. The Fourth District explained that a probationer’s agreement to extend the term of his probation to complete a condition thereof was a nullity where it was accomplished through informal discussions, without a hearing or the advice of counsel.

The extension of probation here was improper. Accordingly, the revocation of probation, based on an affidavit filed after expiration of the original three year probationary term, was invalid. See Belt v. State, 748 So.2d 386 (Fla. 5th DCA 2000); Rodriguez v. State, 511 So.2d 444 (Fla. 2d DCA 1987) (trial court lacks jurisdiction to revoke probation when affidavit of violation is not filed until after term of probation has expired). We order the defendant’s immediate release from custody.

REVERSED.

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


author: PER CURIAM.

text:
    Damien FRYE, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0559.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2004.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Damien Frye appeals an order revoking his probation. We reverse, because the trial court’s order is based on charges contained in an amended affidavit filed after Appellant’s probationary period ended.

Appellant was sentenced to probation in 2000. Effective July 1, 2001, section 948.06(1), Florida Statutes, was amended to provide in part:

Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period. The probation officer is permitted to continue to supervise any offender who remains available to the officer for supervision until the supervision expires pursuant to the order of probation or community control or until the court revokes or terminates the probation or community control, whichever comes first.

Ch.2001-109, Laws of Florida. On September 24, 2001, an affidavit was filed alleging Appellant violated conditions of his probation by failing to perform 50 hours of community service and by failing to receive substance abuse evaluation, counseling and treatment. The warrant for violation of probation was executed on October 20, 2001. An amended affidavit for violation of probation was filed on June 5, 2002, with the added allegation that appellant violated probation by forging two checks between May 16, 2000, and May 31, 2000, and by failing to appear before the court on March 28, 2002. A second amended affidavit was filed on June 26, 2003, alleging appellant violated probation by unlawfully possessing a controlled substance without prescription and by providing false identification to a law enforcement officer on June 13, 2002.

Appellant moved to dismiss the second amended affidavit on the ground of lack of jurisdiction. Appellant argued his probationary term expired prior to the filing of the second amended affidavit and that the amended version of section 948.06 was not applicable. The trial judge denied the motion to dismiss. Appellant then entered a plea of no contest to allegation three of the second amended affidavit of violation of probation (regarding the May 2000 check charges), reserving his right to appeal the denial of his motion to dismiss.

Appellant’s underlying offenses were committed on October 29, 1999. Retroactive application of the amendments to section 948.06 enacted in chapter 2001-109 violates constitutional ex post facto principles. As the United States Supreme Court has observed:

The presumption against the retroactive application of new laws is an essential thread in the mantle of protection that the law affords the individual citizen. That presumption “is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). This doctrine finds expression in several provisions of our Constitution. The specific prohibition on ex post facto laws is only one aspect of the broader constitutional protection against arbitrary changes in the law. In both the civil and the criminal context, the Constitution places limits on the sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects. The basic principle is one that protects not only the rich and the powerful, United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), but also the indigent defendant engaged in negotiations that may lead to an acknowledgment of guilt and a suitable punishment.

Lynce v. Mathis, 519 U.S. 433, 439-440, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)(foot-note omitted). “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

The 2001 amendment to section 948.06 clearly disadvantaged Appellant. The amended affidavits of violation of probation would have been deemed untimely under the previous version of section 948.06. Cf. Weaver v. Graham, 450 U.S. at 32, 101 S.Ct. 960 (citations omitted) (“First, we need not determine whether the prospect of the gain time was in some technical sense part of the sentence to conclude that it in fact is one determinant of petitioner’s prison term-and that his effective sentence is altered once this determinant is changed. We have previously recognized that a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed.”).

Based on the record, we are unable to determine whether the trial court would have revoked Appellant’s probation based solely on the allegations contained in the original affidavit. Therefore, we reverse the order revoking probation, and remand to the trial court for further proceedings.

REVERSED and REMANDED.

WOLF, C.J., BARFIELD, and WEBSTER, JJ., Concur.

      . At a subsequent hearing, the prosecutor and defense counsel agreed that the charge was actually worthless checks rather than forgery.


author: HAWKES, J.

text:
    Anna M. COWINS, Appellant, v. LANDMARK LEARNING CENTER, et al., Appellee.
    No. 1D03-2865.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2004.

      Joseph Hackney, Jr., Miami, for Appellant.
    Jack R. Reiter, Sylvia A. Krainin, Joelle C. Sharman; Adorno & Yoss, P. A., Miami, for Appellee.
   HAWKES, J.

In this workers’ compensation appeal, the Claimant presents four grounds upon which she argues reversal is required. We conclude only one has merit, and reverse. We affirm as to the remaining grounds without discussion.

The Claimant was injured on December 4, 1992. Thus, her substantive rights are fixed by the 1992 version of the Florida Statutes, the law in effect at the time of her accident. See e.g., Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1st DCA 1995). At the final hearing, the Claimant sought to introduce the deposition testimony of Dr. Burak, a chiropractor with whom she had been treating for a number of years. The employer/carrier (E/C) objected, arguing that, because Dr. Burak was not a medical advisor appointed by the Judge of Compensation Claims, an independent medical examiner, nor an authorized treating physician, section 440.13(5)(e), Florida Statutes (Supp.1994) barred the admission of his testimony. The E/C further argued this statutory provision was procedural, and could be applied to the Claimant’s date of accident. The JCC accepted both arguments and excluded this testimony. In so doing, the JCC erred.

Section 440.13(5)(e), Florida Statutes (Supp.1994), is substantive in nature and cannot be applied retroactively. See Southern Bakeries, 659 So.2d at 340. Because this statute was not in effect at the time of Claimant’s accident, she is not bound by its restrictions on the admission of medical testimony. See id. at 341. On appeal, the E/C acknowledge the JCC erred by excluding this testimony. However, they argue the exclusion was harmless, because the opinion contained in the excluded testimony was presented through the testimony of an administrative assistant for the employer, who testified Dr. Burak “was the one that put her out on total incapacitated.” We cannot agree.

The Claimant’s proffer of Dr. Burak’s deposition testimony indicates she treated with Dr. Burak from August 1995, through November 1, 1995, and as needed through November 9, 1997. Dr. Burak prepared narrative notes on the course of his treatment and, from a chiropractic standpoint, he did not believe she was capable of working during the period in which she was treated. Dr. Burak opined the Claimant had a 12 to 14 percent permanent impairment rating, and gave a detailed recitation of the Claimant’s injuries and the evidence upon which he based his medical opinion. Clearly, the detail expressed in Dr. Burak’s deposition testimony and narrative notes was not adequately presented through testimony that Dr. Burak was “the one that put her out on total incapacitated.” Because Dr. Burak’s testimony indicated Claimant was incapable of working during the course of his treatment, and this testimony was not cumulative, its exclusion was not harmless. The final order is REVERSED, and the case remanded for the JCC to consider Dr. Burak’s testimony.

DAVIS and BROWNING, JJ., concur.


author: SAWAYA, C.J.

text:
    Emilio CIRELLI, Jean L. Benson, etc., et al., Appellants, v. Hilda McDonald ENT, T. Murray McDonald, et al., Appellees.
    No. 5D03-1493.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2004.

      Stephen P. Sapienza, Bunnell, for Appellants.
    Kim C. Booker of Booker & Associates, P.A., Orange City, for Appellees Kennedy.
    Michael S. Orñnger of Smith, Hood, Perkins, Loucks, Stout & Orfínger, P.A., Daytona Beach, for Appellees McDonald.
    Michael A. Van Houten of Van Houten & Ponder, P.A., Daytona Beach, for Appel-lees Ava & Rufus, Inc. and Whispering Creek Subdivision Homeowners Association, Inc.
    Richard Prospect of Richard Prospect, P.A., Port Orange, for Appellees Cochrane.
    No Appearance for other Appellees.
   SAWAYA, C.J.

Appellants appeal from two partial summary final judgments — one in favor of the McDonalds and the other in favor of Ava & Rufus, Inc., Whispering Creek Subdivision Homeowners Association, Inc., the Kennedys, and the Cochranes. Appellants, owners of landlocked property west of Port Orange, sued the adjoining property owners to establish a statutory way of necessity as defined in section 704.01(2), Florida Statutes, and lost when the trial court concluded that the Marketable Record Titles to Real Property Act (MRTA), Chapter 712, precluded their action.

The issue we must resolve is whether MRTA applies to statutory ways of necessity under section 704.01(2), Florida Statutes (2002). We do not believe that the decision in H & F Land, Inc. v. Panama City-Bay County Airport & Industrial District, 736 So.2d 1167 (Fla.1999), which held that MRTA applies to common law ways of necessity, resolves the issue. We conclude that MRTA does not apply to statutory ways of necessity, and to explain why we have come to this conclusion, we will discuss in the following order 1) the factual and procedural background of the instant case; 2) the decision in H & F Land and the differences between statutory and common law ways of necessity; 3) the public policy underlying the establishment of a statutory way of necessity; and 4) the requirements necessary to establish a statutory way of necessity under section 704.01(2), which clearly indicate that a statutory way of necessity is not the sort of claim MRTA is intended to extinguish.

Factual And Procedural Background

The McDonalds own the property to the east (Parcel A), south (Parcel B), and west (Parcel C) of Appellants’ property. It appears to have been established below that the McDonalds also previously owned the property to the north of Appellants’ property, but sold that land in the 1990’s to Ava & Rufus, Inc., which developed that land into the Whispering Creek subdivision and sold lots to the Cochranes, the Kennedys, and others.

In their Second Amended Complaint, Appellants sought access to State Road 415 (Tomoka Farms Road) to the east of their landlocked property either by going directly across the McDonalds’ property to the east or, alternatively, by crossing north over land in the Whispering Creek subdivision to access the subdivision roads, which lead to State Road 415.

In response to the complaint, the Mc-Donalds filed the affidavit of William Ak-ers, III, a thirty-year real estate attorney. Akers reviewed the complaint and the title search report relating to the McDonalds’ property, explained how Parcels A, B, and C were deraigned, and concluded that the McDonalds or their predecessors had owned their property more than thirty years as of the time of the conveyance of the property to Appellants and that nowhere in the title to the McDonalds’ property was there a recordation of any notice of the assertion of a statutory way of necessity or any other interest by any predecessors in interest of Appellants’ land.

Based on Akers’ affidavit and the deeds, the McDonalds moved for summary judgment, arguing that MRTA applied and precluded Appellants’ action against the McDonalds’ property. Under section 712.02, Florida Statutes, “when a person or his predecessors in title has been vested with any estate in land of record for 30 years or more, he shall have a marketable record title to such estate free and clear of all claims with the exceptions set forth in section 712.03.” Holland v. Hattaway, 438 So.2d 456, 463 (Fla. 5th DCA 1983). Specifically, section 712.02, “Marketable record title; suspension of applicability,” states:

Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1)" The person claiming such estate; or
(2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

The McDonalds explained that Appellants took title to the landlocked property on October 24, 2000. The McDonalds then asserted the root of title to their own three parcels. The root of title, defined as “the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined,” section 712.01(2), Florida Statutes, to the Mc-Donalds’ Parcel A was March 22, 1950; to Parcel B was April 28, 1944; and to Parcel C was April 28,1944. Under MRTA, then, the McDonalds had marketable record title unless a statutory exception to MRTA, as provided in section 712.03, applied.

It is undisputed that no notice, pursuant to section 712.03(2), Florida Statutes (2002), was filed by Appellants or any of their predecessors in title at any time. In fact, Appellants adopted Akers’ affidavit and deeds, stipulated that their land had been landlocked since 1916 (the original grant out of the state), agreed that there was no dispute about the root of title to the McDonalds’ property, and expressly disavowed any claim of any exception under MRTA. Appellants’ entire argument centers on their contention that MRTA is simply inapplicable to statutory ways of necessity. They acknowledge that H & F Land contains the statement that “we ... hold that statutory or common law ways of necessity are subject to the provisions of the Marketable Record Title[s] to Real Property Act (‘MRTA’).” H & F Land, 736 So.2d at 1170. They contend, however, that this was essentially dicta in that the remainder of the opinion addresses solely common law ways of necessity, which was the issue presented by the facts in that case.

We agree with Appellants that the reference to statutory ways of necessity in the opinion in H & F Land is dicta and therefore not binding precedent on this court. We will next proceed to discuss the decision in H & F Land and explain why we have come to that conclusion and why that decision is not applicable to the instant case.

H & F Land, Inc. v. Panama City-Bay County Airport & Industrial District

In H & F Land, the supreme court stated, “For the reasons that follow, we answer the certified question in the affirmative and hold that statutory or common law ways of necessity are subject to the provisions of the Marketable Record Title[s] to Real Property Act (‘MRTA’).” Id. at 1170. However, we believe that the reference to statutory ways of necessity is dicta for the following reasons: the certified question concerned only common law ways of necessity; the only issue raised by the parties concerned common law ways of necessity; the facts and legal analysis discussed in the opinion concerned only common law ways of necessity; and beyond the reference in the quoted sentence, statutory ways of necessity are never mentioned anywhere else in the opinion. Accordingly, the inclusion of statutory ways of necessity in the quoted statement is unnecessary to the resolution of the issue before the court and is therefore dicta and not controlling judicial precedent. The holding in H & F Land is inapplicable to the instant case because of the distinct differences between common law and statutory ways of necessity.

A common law way of necessity rests upon a legal fiction created to prevent property from being landlocked. This was explained by the court in Stein v. Darby, 126 So.2d 313 (Fla. 2d DCA), cert. denied, 134 So.2d 232 (Fla.1961):

The common law implication of the way of necessity contemplated a common source of title between the dominant and servient tenements and is predicated on the theory that when one deeds to another a parcel of land which is cut off by other lands of the grantor or by lands of strangers from all access to public thoroughfares, the grantee is entitled to an easement of ingress and egress over the lands retained by his grantor. The way is said to arise from the presumed intention of the parties. The theory of the common law easement of a way of necessity appears to emanate from the rule that he who grants a thing to someone else is understood to grant that without which the thing could not be or exist.

Id. at 317 (footnotes omitted). Hence, a common law way of necessity provided for in section 704.01(1) “ ‘arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor’s other land or land of a stranger.’ ” Reyes v. Perez, 284 So.2d 493, 495-96 (Fla. 4th DCA 1973) (quoting 2 Thompson on Real Property § 362, pp. 413-15 (1961)). Therefore, because a common law way of necessity may arise prior to the root of title, a right to such an interest may be extinguished by MRTA. See H & F Land.

Because a common law way of necessity required a common source of title between the dominant and servient parcels, it became obvious that this requirement could not be met in all instances and many parcels of property would remain landlocked. Therefore, the Legislature enacted section 704.01(2) to provide relief in those instances where a common law way of necessity could not be obtained. A statutory way of necessity does not require a common source of title and is dependant upon the existence of numerous factors that are not necessary to the creation of a common law way of necessity. Moreover, public policy rather than legal fiction is the basic foundation for statutory ways of necessity under section 704.01(2).

Accordingly, we conclude that the decision in H & F Land is inapplicable to the instant case. We will next discuss the public policy upon which statutory ways of necessity are founded to explain our conclusion that MRTA does not apply to extinguish statutory ways of necessity created under section 704.01(2).

Public Policy

The Legislature’s provision for statutory ways of necessity is rooted in public policy. Section 704.01(2), Florida Statutes (2002), provides in pertinent part:

STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT. — Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land or portion thereof outside any municipality which is being' used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road.

Unlike the common law way of necessity codified in section 704.01(1), Florida Statutes (2002), section 704.01(2) makes provision for the owner of the servient property to be compensated for the statutory way of necessity established across his or her property. This was not the case with the predecessor to section 704.01(2), and the courts therefore held the former version of the statute constitutionally invalid because it allowed the taking of private property without just compensation. See Stein. The statute was subsequently amended to include the requirement that the owner of the servient property be fairly compensated for a statutory way of necessity, and this cleared the way for the court’s constitutional approval of the amended statute now found in section 704.01(2). The discussion of the constitutional issues raised in the decisions that analyzed the amended version of section 704.01(2) is significant because it explains that the courts considered the establishment of a statutory way of necessity to be based on public policy and the need to fulfill a public purpose rather than a legal fiction similar to that which underpins a common law way of necessity.

In Stein, the court analyzed the amended version of section 704.01(2) to determine whether it violated the provisions of the Florida and federal constitutions that prohibited private property from being taken unless for a public purpose and for just compensation. The court held that “[a] careful analysis of the statute compels the conclusion that the result contemplated thereby serves a public purpose as distinguished from a public benefit; that it provides a lawful means by which to accomplish full utilization of the state’s natural resources, their development in the ordinary channels of commerce and industry.” Stein, 126 So.2d at 316. The court explained that in order to accomplish this public purpose, the Legislature, in enacting section 704.01(2), provided for eminent domain proceedings that allowed the landlocked property owner the right to acquire a way of necessity over the servient property for just compensation:

Chapter 704, F.S.A. is devoted entirely to the subject of ways of necessity. A casual reading produces the inescapable conclusion that the legislature was not only cognizant of the common law rule governing the subject, which it specifically preserved, but also set about to implement the common law rule with a statutory proceeding in eminent domain by which to attain the desired public purpose in those situations where a common law way of necessity is not available.
F.S. Chapter 704, F.S.A. contemplates that a proceeding in eminent domain may be maintained for condemnation of an easement of necessity. As an incident to such proceedings the trial court unquestionably has the power, before submitting the cause to a jury for the purpose of awarding compensation, to require the production of such evidence as will enable it to determine whether the right of condemnation exists under the particular circumstances, and if so, the extent, location and other incidents of the easement essential to the function of the jury, or to the court where no jury is requested, in making the award of compensation.

Id. at 317, 321 (emphases added).

In Deseret Ranches, the court was confronted with an attempt by the plaintiff in the trial proceedings to acquire a statutory way of necessity pursuant to section 704.01(2). Specifically, the court addressed the issue whether the statute is unconstitutional because it violates article X, section 6(a) of the Florida Constitution, which provides in pertinent part that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner.... ” In holding the statute constitutional, the court stated:

The argument is that in contravention of the foregoing provision no purpose which is predominantly public is served by the taking of easements through operation of the statute. Although it is conceded that the statute provides a public benefit, it is argued that the benefit is incidental to a purpose which is predominantly private, that purpose being to provide a private land owner with conventional access to the outside world.
In 1961, before the adoption of the Florida Constitution of 1968, there was advanced in Stein v. Darby a similar argument against the statute, cast in terms of unconstitutionality under both the Florida Constitution of 1885 and the Fourteenth Amendment to the United States Constitution. After an excellent review of the common law history of the doctrine of ways of necessity, the Court concluded that the doctrine is grounded in the public policy against the loss of the use of landlocked property. As to the statutes’ provision for ways of necessity, Stein stated,
“... we find no logic in the argument that the statute in question, which aids to render the earth from which all sustenance flows available to the uses of man, is unconstitutional as serving something other than a public purpose.” 126 So.2d at 320.
Appellant contends that the intervening adoption of the 1968 Florida Constitution, including Article X, Section 6(a) and its “public purpose” requirement, mandates a different result from that reached in Stein and, Article X, Section 6(a) aside, that Stein was wrongly decided.
We agree with the reasoning in Stein and hold the statute constitutional under the present Constitution. The inverse of appellant’s contention is true: the statute’s purpose is predominantly public and the benefit to the private landholder is incidental to the public purpose.

Deseret Ranches, 349 So.2d at 156 (footnote omitted). The court then explained the theoretical moorings of the public policy in which a statutory way of necessity is rooted:

[S]ensible utilization of land continues to be one of our most important goals. We take notice that Florida grows in population at one of the fastest rates of any state in the nation. Useful land becomes more scarce in proportion to population increase, and the problem in this state becomes greater as tourism, commerce and the need for housing and agricultural goods grow. By its application to shut-off lands to be used for housing, agriculture, timber production and stockraising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they might be utilized in the enumerated ways.

Id. at 156-57.

Hence, section 704.01(2) serves the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural products. Moreover, turning fallow land into productive property promotes development and, as courts in other jurisdictions have observed, increases tax revenues. It is beyond any doubt that there is a vital public purpose served in granting access to individual property owners to the road and highway system of the county or state so that the property may be utilized and developed as a resource for the common good, whether residential, agricultural or otherwise. Failing to grant access to landlocked property that the owner needs or desires to use for the purposes stated in the statute may leave the landlocked owner at the mercy of the adjoining landowners who will then have the final say whether access will be granted. Unless these adjoining landowners are fair-minded individuals who will not request exorbitant compensation or simply deny access over their property, the property may be condemned to being forever landlocked and useless. This would be very bad public policy because it would do nothing to promote any beneficial public purpose and it is just what the Legislature intended to prevent when it enacted section 704.01(2).

The emphasis on public policy as the basis for the constitutional validity of the amended version of section 704.01(2) clearly reveals that the Legislature never intended that MRTA, whose foundational underpinning is the extinguishment of old and stale claims that adversely affect the marketability of title to the subject property, apply to extinguish the right to seek a statutory way of necessity. To hold otherwise would subvert the salutary public purpose section 704.01(2) was intended to promote.

Moreover, as will be discussed in the following section, analysis of the requirements necessary to establish a statutory way of necessity clearly indicates that such a claim is not the sort of claim MRTA is intended to extinguish. This argument is buttressed by the fact that the courts in Stein and Deseret Ranches reasoned that statutory ways of necessity are analogous to eminent domain proceedings.

The Requirements Necessary To Establish A Statutory Way Of Necessity Clearly Indicate That It Is Not The Sort Of Claim MRTA Is Intended to Extinyuish

When the provisions of MRTA and the purpose for its enactment are considered in light of the requirements necessary to establish a statutory way of necessity, it becomes obvious that MRTA was never intended to extinguish such a claim. The Legislature clearly expressed that MRTA should be liberally construed and applied “to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03.” § 712.10, Fla. Stat. (2002). In ITT Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla.1977), the court explained how the expressed purpose of MRTA is effectuated:

First, it gives to a person marketable title when public records disclose a title transaction, of record for at least thirty years, which purports to create the estate either in that person or in someone else from whom the estate has passed to that person. Second, subject to six exceptions, it extinguishes all interests in the estate which predate the “root of title.”

Id. at 1008-09 (footnotes omitted). Section 712.04, Florida Statutes, provides in pertinent part:

Subject to the matters stated in s. 712.03, such marketable record title shall be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.

§ 712.04, Fla. Stat. (2002) (emphasis added). Hence, the Legislature has clearly stated its intent that MRTA only extinguish interests in real property that existed prior to the root of title. The root of title is defined as “any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least thirty years prior to the time when the marketability is being determined.” § 712.01(2), Fla. Stat. (2002).

The courts that have interpreted and applied section 712.04 have consistently held, in accordance with the expressed legislative intent, that MRTA only applies to interests or claims that existed prior to the root of title. In Conservatory-City of Refuge, Inc. v. Kinney, 514 So.2d 377 (Fla. 2d DCA 1987), for example, the court held:

The MRTA extinguishes “all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.” § 712.04, Fla. Stat. (1985). [emphasis added][.] ... The deed the trial court found to be the root of title was recorded in 1956. Only interests in existence prior to 1956 could be extinguished by the MRTA.

Id at 378; see also Holland v. Hattaway, 438 So.2d 456, 466 (Fla. 5th DCA 1983).

Pursuant to section 704.01(2), a statutory way of necessity comes into existence when the following are established: 1) the claimant’s property is landlocked by property belonging to others; 2) there is no practicable route of ingress or egress to the nearest public or private road; 3) there is no right to a common law way of necessity under section 704.01(1) because there is no unity of title between the dominant (landlocked) and servient (adjoining) tracts; 4) the landlocked property is situated outside a municipality; 5) the landlocked property is being used or the owner desires to use the property as a dwelling or for agricultural, timber raising or cutting, or stockraising purposes; and 6) the statutory way of necessity sought over the adjoining parcel is the “nearest practicable route” of access. Section 704.01(2) further provides that when these factors come into existence, “a statutory way of necessity exclusive of any common-law right exists....” § 704.01(2), Fla. Stat. (2003) (emphasis added). In other words, a statutory way of necessity comes into existence when these factors coalesce. §§ 704.01(2), .04, Fla. Stat. (2002); Parham v. Reddick, 537 So.2d 132 (Fla. 1st DCA 1988); Sapp v. General Dev. Corp., 472 So.2d 544 (Fla. 2d DCA 1985). If the owner of the servient property does not agree that a statutory way of necessity exists over his or her property or refuses to allow the landlocked owner to use it, the appropriate recourse available to either party is to seek a judicial determination of the existence of the claimed statutory way of necessity and the amount of compensation the landlocked owner owes for its use. § 704.04, Fla. Stat. (2002); Parham; Sapp. Once the way of necessity is established, either through agreement or judicial decree, the owner of the servient property may not arbitrarily block the use of the statutory way of necessity. Parham; Sapp. If the easement is awarded by the court and the amount of compensation is judicially determined, “[t]he easement shall date from the time the award is paid.” § 704.04, Fla. Stat. (2002).

We believe that the right to a statutory way of necessity is a present right that comes into existence when the necessary factors exist. Therefore, because it is a present right, it is not a right, claim, or interest that would predate the root of title to the servient parcel of property and thereby be extinguishable by MRTA. In H & F Land, the court stated that the provisions of MRTA are intended to accomplish the objective of “stabilizing property law by clearing old defects from land titles, limiting the period of record search, and clearly defining marketability by extinguishing old interests of record not specifically claimed or reserved.” Id. at 1171. In City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla.1978), the court.said that “[t]he Marketable Record Title Act is a comprehensive plan for reform in conveyancing procedures. It is a curative act in that it may operate to correct certain defects which have arisen in the execution of instruments in the chain of title.” Id. at 442. The court quoted one treatise’s description of the nature of MRTA as follows:

The chief purpose of the act is to extinguish stale claims and ancient defects against the title to real property, and, accordingly, limit the period of search.... The act also goes beyond a curative act. Curative legislation only corrects certain minor or technical defects through the passage of time, whereas under the Marketable Record Title Act, most defects or clouds on title beyond the period of 30 years are removed and the purchaser is made secure in his transaction.

Id. at 443 (quoting Catsman, The Marketable Record Title Act and Uniform Title Standards, § 6.2, in III Florida Real Property Practice (1965)) (emphases added). In these and many other decisions, the Florida courts have clearly held that MRTA applies to old, stale and ancient claims or interests that predate the root of title, not to present interests or claims such as a statutory way of necessity.

Moreover, the factors necessary to establish a statutory way of necessity have nothing to do with the title to the landlocked or servient property; rather, they come into existence through myriad circumstances brought about by any number of reasons, and it is often difficult to predict when these factors will occur. In some instances, when they do occur, circumstances may change that may alter or vitiate one or more of the factors, thus affecting the entitlement to a statutory way of necessity over a particular tract of servient property. In other words, these factors have nothing to do with a title-based claim to a right of access that can generally be determined by a search or examination of the title to the affected property and because there is no fixed time when the factors may come into existence, it may be impossible for the owners of the landlocked and servient parcels to know when an entitlement to a statutory way of necessity may come into existence. It then becomes difficult or impossible to know when the time limitation provided in MRTA will begin to run.

Appellants argue that a statutory way of necessity is analogous to eminent domain proceedings where the state is allowed, based on need and public policy, to take private property for just compensation at any time. While there are distinct differences between the sovereign’s right to exercise its eminent domain powers and the right of a private citizen to acquire a statutory way of necessity over another’s property, the latter is clearly analogous to the former. What is more important is the fact that the courts in Stein and Deseret Ranches have made the analogy. We also note that courts in other jurisdictions hold, based on the provisions of the pertinent statutory provisions dealing with ways of necessity, that obtaining a way of necessity over another’s property is a form of eminent domain premised on public policy. The analogy is significant because eminent domain is a present right that the sovereign may exercise without time constraints imposed by a statute of limitations. Therefore, it is a claim or right that cannot predate the root of title to the property subject to the proceedings and it may not be extinguished by time limitations. These are the characteristics of proceedings to establish a statutory way of necessity under section 704.01(2). Because the analogous right to acquire property by eminent domain proceedings cannot be extinguished by MRTA, the right to acquire access to landlocked property via section 704.01(2) should likewise not be extinguished by MRTA.

Conclusion

For the reasons discussed, we conclude that the decision in H & F Land does not apply to the instant case. We also conclude that MRTA is not applicable to statutory ways of necessity. Therefore, we reverse the judgments under review and remand for further proceedings. We express conflict with the decision in Blanton v. City of Pinellas Park, 854 So.2d 729 (Fla. 2d DCA 2003), review granted, 870 So.2d 820 (Fla.2004). We also certify to the Florida Supreme Court, as a matter of great public importance, the same question certified in Blanton:

DOES THE MARKETABLE RECORD TITLES TO REAL PROPERTY ACT, CHAPTER 712, FLORIDA STATUTES, OPERATE TO EXTINGUISH AN OTHERWISE VALID CLAIM OF A STATUTORY WAY OF NECESSITY WHEN SUCH CLAIM WAS NOT TIMELY ASSERTED UNDER THE PROVISIONS OF THAT ACT?

REVERSED and REMANDED.

SHARP, W. and TORPY, JJ„ concur.

      . The McDonalds’ motion for summary judgment was heard before the remaining appel-lees' motion was heard. Subsequently, a different trial judge entered summary judgment in favor of the remaining appellees. It should be noted that several parties named in the Second Amended Complaint, i.e., Volusia County, the St. Johns River Water Management District, and the Wheelers were not named in either partial final summary judgment.

      . There are two "ways of necessity” recognized in section 704.01: the common law way of necessity described in section 704.01(1), otherwise known as the "implied grant of way of necessity,” and the statutory way of necessity described in section 704.01(2). The statutory way of necessity is available only to landowners who do not qualify for a common law way of necessity. Boyd v. Walker, 776 So.2d 370 (Fla. 5th DCA 2001). Appellants do not attempt to assert a common law way of necessity and do not appear to qualify for one.

      . Specifically, the defendant argued that the "statute violates Section 1, Declaration of Rights, F.S.A., and Section 29, Article XVI, of the Florida Constitution, F.S.A." Stein, 126 So.2d at 315. As Justice Sundberg noted in his dissent in Deseret Ranches of Florida, Inc. v. Bowman, 349 So.2d 155 (Fla.1977):
      Article X, Section 6(a), is a brief restatement of Article XVI, Section 29, and the Declaration of Rights, Section 12, Florida Constitution of 1885. See commentary to Article X, Section 6, 26A Florida Statutes Ann. 479. The conditions of both the former and current constitutional mandates are the same. No private property shall be taken "except (i) for a public purpose (ii) and with full compensation therefor paid to each owner.”

        Id. at 157. Therefore, when the court in Deseret Ranches approved the reasoning in Stein, it did so by evaluating the pertinent constitutional provisions of the Florida Constitution of 1968, which have remained unchanged.

      . Marinclin v. Urling, 262 F.Supp. 733 (W.D.Pa.), aff'd, 384 F.2d 872 (3d Cir.1967); Pratt v. Allen, 116 Misc.2d 244, 455 N.Y.S.2d 904 (N.Y.Sup.Ct.1982). In Marinclin, the court gave further reasons why granting access to landlocked property promotes the public purpose:
      In addition, the use of a road laid out as a way of necessity could very well be deemed a public use since it is for the public benefit that every citizen should have the means of discharging his public duties, such as voting or attending court as a juror or witness, and because it affords higher assessments upon the landlocked property for municipal tax purposes. Also, it is in the public interest that police, firemen, and representatives of other public health, welfare and municipal agencies have access to the dwelling.

        Marinclin, 262 F.Supp. at 736.

      . Faison v. Smith, 510 So.2d 928 (Fla. 5th DCA 1987); see also Bell v. Cox, 642 So.2d 1381 (Fla. 5th DCA 1994), review denied, 654 So.2d 918 (Fla.1995).

      . Faison; see also Bell.

      . Boyd v. Walker, 776 So.2d 370, 370 (Fla. 5th DCA 2001) (“A landowner who has a common-law way of necessity under section 704.01(1) is ineligible for a statutory way of necessity under section 704.01(2).”) (citing Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973)); Hancock v. Tipton, 732 So.2d 369, 373 (Fla. 2d DCA 1999) ("To establish a statutory way of necessity, the owner of the landlocked parcel must show that the property is not served by a common law easement.”) (citing Bell, 642 So.2d at 1384 ("Cox presented evidence and the record supports a finding that no common-law easement existed. There was no unity of title between the dominant and servient estate.”)).

        . Blue Water Corp. v. Hechavarria, 516 So.2d 17 (Fla. 3d DCA 1987).

      . Blue Water; Hunt v. Smith, 137 So.2d 232, 233-34 (Fla. 2d DCA 1962) ("Thus, it may be seen from the language of the statute that the statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute.”).

      . § 704.01(2), Fla. Stat. (2002); see also Hoffman v. Laffitte, 564 So.2d 170 (Fla. 1st DCA 1990).

      . See, e.g., Holland v. Hattaway, 438 So.2d 456, 466 (Fla. 5th DCA 1983) ("It has been said that the chief purpose of MRTA is to extinguish stale claims and ancient defects against the title to real property and accordingly, limit the period of title searches.'') (footnote omitted); Travick v. Parker, 436 So.2d 957, 958 (Fla. 5th DCA 1983) ("MRTA 'operates to correct defects in title by creating a marketable record title when the public records disclose a record title transaction affecting the title to the land which has been of record for not less than thirty years.' ") (quoting Allen v. St. Petersburg Bank & Trust Co., 383 So.2d 1171 (Fla. 2d DCA 1980)).

      . Ex parte Cater, 772 So.2d 1117 (Ala.2000); Tobias v. Dailey, 196 Ariz. 418, 998 P.2d 1091 (Ct.App.2000); Bear Creek Dev. Corp. v. Genesee Found., 919 P.2d 948, 951 (Colo.Ct.App.1996) (applying Colorado’s state constitution, art. II, section 14, which provides that "[p]ri-vate property shall not be taken for private use unless by consent of the owner, except for private ways of necessity....”); Moore v. Dooley, 240 Ga. 472, 241 S.E.2d 232 (1978); MacCaskill v. Ebbert, 112 Idaho 1115, 739 P.2d 414 (Ct.App.1987); Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890 (1961); Blankenship v. Bone, 530 P.2d 578 (Okla.Ct.App.1974); Hellberg v. Coffin Sheep Co., 66 Wash.2d 664, 404 P.2d 770 (1965); Kennedy v. Martin, 115 Wash.App. 866, 63 P.3d 866 (2003); Coronado Oil Co. v. Grieves, 603 P.2d 406 (Wyo.1979). Some courts in other jurisdictions also hold that defenses such as laches and statute of limitations do not apply to preclude a landlocked landowner from obtaining a way of necessity based on public policy preventing property from being landlocked in perpetuity. See Childers v. Quartz Creek Land Co., 946 P.2d 534 (Colo.App.Ct.1997), cert. denied, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999).

      . In Blanton, the Second District Court affirmed a trial court's finding that a plaintiff's claim to a statutory way of necessity was time-barred in light of the holding in H & F Land. The court noted the fact that H & F Land stemmed from a claim of a common law way of necessity and the fact that the supreme court’s reference to statutory ways of necessity appears only in the stated holding and, because of those facts, certified the question whether MRTA operates "to extinguish an otherwise valid claim of a statutory way of necessity when such claim was not timely asserted under the provisions of that Act?” Blanton, 854 So.2d at 731.


author: CANADY, Judge.

text:
    GEM ESTATES MOBILE HOME VILLAGE ASSOCIATION, INC., Appellant, v. Vicki BLUHM, Appellee.
    No. 2D03-5605.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.

      Charles D. Waller of the Law Office of Charles D. Waller, P.A., Dade City, for Appellant.
    Larry S. Herseh of Hersch & Kelly, P.A., Dade City, for Appellee.
   CANADY, Judge.

Gem Estates Mobile Home Village Association (the Association), a not-for-profit association of owners of mobile home lots in the Gem Estates mobile home park (Gem Estates), appeals the denial of in-junctive relief with respect to an alleged violation of the setback requirements in a recorded restrictive covenant. Because we conclude the trial court misinterpreted the pertinent setback provision, we reverse.

Background

The Association sought injunctive relief with respect to appellee Vicki Bluhm’s addition to her mobile home of an attached, enclosed screen porch. The Association contended that the addition was a violation of a recorded restriction applicable to each mobile home in Gem Estates. The restriction at issue states, in pertinent part, that “each mobile home shall be set back fifty (50) feet from the center line of the street which it faces.” The parties stipulated that the addition of the porch caused Bluhm’s structure to be thirty-seven feet from the center line of the street. The restrictions also provide that “[a]ll mobile homes and utility buildings shall be approved by the Board of Directors before being placed on any lot.” It was uncontro-verted that Bluhm did not seek approval for the porch. Bluhm also admitted that she was aware of the fifty-foot setback requirement when she caused the porch to be added to her mobile home. An additional provision of the restrictions contains standards for materials used in constructing and a ninety-day time limit to complete construction of “[a]ll detached rooms, porches, utility buildings placed on any parcel and all additions to each mobile home.” The provision further provides that “[a]ny detached buildings shall be constructed or placed no closer than six (6) feet to the back parcel line.”

After a brief evidentiary hearing, the circuit court judge placed an oral decision on the record denying relief to the Association. In justifying its ruling, the court cited the definition of mobile home in section 723.003(3), Florida Statutes (2003):

The term “mobile home” means a residential structure, transportable in one or more sections, which is 8 body feet or more in width, over 35 body feet in length with the hitch, built on an integral chassis, designed to be used as a dwelling when connected to the required utilities, and not originally sold as a recreational vehicle, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein.

According to the circuit court, the porch, which was affixed to Bluhm’s mobile home at the roof, was not a mobile home because the porch had no wheels or chassis. The porch was completely attached to the ground and was not transportable. The court stated that because the porch was not a mobile home it was not subject to the fifty-foot setback requirement in the restrictions. The court also stated that since the restrictions specifically mentioned the construction of porches, it was contemplated that the mobile home owners might add to a mobile home a porch or other structures subject to the construction material requirements and the ninety-day construction time limit in the restrictions. The court also concluded that the six-foot setback provision with respect to “detached buildings” was inapplicable to the porch since it was attached to the mobile home. The court also reasoned that the porch was neither a mobile home nor a utility building and therefore was not subject to preapproval by the board. Having concluded that the porch did not have to comply with the fifty-foot setback requirement and that approval of the board was not required for addition of the porch to the mobile home, the circuit court denied the application for injunctive relief.

Analysis

The trial court’s ruling regarding the meaning of the restrictive covenant provisions is subject to de novo review. See Klak v. Eagles’ Reserve Homeowners’ Ass’n, 862 So.2d 947, 954 (Fla. 2d DCA 2004); see also Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001) (“Because interpretation of a contract is a question of law, we apply a de novo standard of review.”). In interpreting restrictive covenant provisions, a court should give effect to the commonly understood meaning of the words of the pertinent provisions. See Klak, 862 So.2d at 954 (holding that the trial court erred in interpreting a provision of homeowners’ association declaration because court “neglected to give effect to the commonly understood meaning” of pertinent terms); see also Interfirst Fed. Sav. Bank v. Burke, 672 So.2d 90, 92 (Fla. 2d DCA 1996) (“Contract language must be given its plain meaning.”); Schechtman v. Grobbel, 226 So.2d 1, 3 (Fla. 2d DCA 1969) (“[Cjlearly written provisions of contracts entered into by ordinary men should be construed in the light of common understanding.”); Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999) (stating principle of contract interpretation that words must be “given their plain and ordinary meaning”).

In ruling that the porch could be added to the mobile home, with the resulting structure within thirty-seven feet of the center line of the street, the circuit court failed to give effect to the plain meaning of the fifty-foot setback requirement. The trial court’s error arose from its failure to recognize that when a porch is added to the structure of a mobile home (or manufactured housing unit) that porch becomes a part of the mobile home. The term “mobile home” is commonly understood to encompass any building structures that are attached to or built onto the manufactured housing unit. The porch of a mobile home is as much a part of the mobile home as the porch of a brick home is a part of the brick home.

Under the circuit court’s interpretation, any mobile home owner in Gem Estates ■ could totally subvert and nullify the effect of the front setback requirement and build to the street simply by making an addition to a mobile home. While “restrictive covenants should be narrowly construed, ‘they should never be construed in a manner that would defeat the plain and obvious purpose and intent of the restriction.’ ” McMillan v. Oaks of Spring Hill Homeowner’s Ass’n, 754 So.2d 160, 162 (Fla. 5th DCA 2000) (quoting Brower v. Hubbard, 643 So.2d 28, 29 (Fla. 4th DCA 1994)); accord Prisco v. Forest Villas Condo. Apartments, Inc., 847 So.2d 1012, 1015 (Fla. 4th DCA 2003). The general rule is

that a reasonable, unambiguous restriction will be enforced according to the intent of the parties, as expressed by the clear and ordinary meaning of its terms. If it is necessary to construe a somewhat ambiguous term, the intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative.

Eastpointe Prop. Owners’ Ass’n v. Cohen, 505 So.2d 518, 519 (Fla. 4th DCA 1987); see also Imperial Golf Club, Inc. v. Monaco, 752 So.2d 653, 654 (Fla. 2d DCA 2000) (holding that restriction that no fences, hedges, or other obstructions be constructed around or near the boundaries of property was designed to provide homeowners with a clear view of the golf course and construction of a shelter and restroom facility near an owner’s property violated the restriction, reasonably construed, taking into account its intent); Pelican Island Prop. Owners Ass’n v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1990) (stating that the court would enforce construction standards in a restriction with respect to a noncompliant carport, the restriction having been established “ ‘with a view to preserve the symmetry, beauty, and general good of all interested in the scheme of development’ ”) (quoting Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927) (concerning a setback restriction)).

Our interpretation of the Gem Estates front setback requirement is simply an application of the general rule that when an addition to a home that is originally within a setback requirement of a restrictive covenant causes the structure to violate the setback requirement, the setback requirement contained in a restrictive covenant can be enforced with respect to the structure which became noncompliant as a result of the addition. See Watson v. Buchanan, 344 So.2d 644 (Fla. 2d DCA 1977) (holding that setback requirement could be enforced with respect to added swimming pool enclosure); Daniel v. May, 143 So.2d 536 (Fla. 2d DCA 1962) (holding that setback was enforceable with regard to carport addition).

The circuit court attempted to distinguish the porch from the mobile home on the ground that the porch was permanently affixed to the site and because the porch itself was not a mobile home under the statutory definition in section 723.003(3). The trial court’s reliance on the statutory definition — which is found in the Florida Mobile Home Act — is entirely misplaced. The sole function of that definition is to demarcate — together with other pertinent provisions of chapter 723— the type of properties to which the protections of the Mobile Home Act are applicable. The definition has no application outside the context of chapter 723. See § 723.003 (“Definitions — As used in this chapter, the following words and terms have the following meanings -”) (emphasis supplied). The statutory definition thus has no relevance to the interpretation of the Gem Estate restrictions. Moreover, there is nothing in the definition itself which is inconsistent with the common understanding that additions to mobile homes become a part of the mobile home.

The trial court’s attempt to distinguish between the porch as something permanently located and the mobile home as something not permanently located is also unavailing. The court apparently reasoned that to be a mobile home a structure must be mobile and that the porch did not fall within the scope of the fifty-foot setback because it was not mobile. The fallacy involved here is apparent when we consider that a mobile home structure to which a porch is attached thereby loses whatever mobility it previously possessed. In its altered condition, the manufactured housing unit owned by Bluhm was no more mobile than the porch to which it was attached. But under the restrictions, the absence of mobility does not transform the manufactured housing unit into something other than a mobile home. Nor does the absence of mobility prevent the porch from being considered part of the mobile home.

The provision of the restrictions pertaining to the construction of porches, cited by the circuit court, does not provide any basis to exclude Bluhm’s mobile home with the attached porch from the scope of the fifty-foot setback requirement. Part of the cited provision contains a ninety-day construction time limitation and construction material standards for porches and other enumerated structures. The six-foot setback mentioned therein pertains only to “detached buildings,” which the porch is not. In addition, the six-foot setback requirement concerns distance from the side of the parcel, not from the structure to the center line of the street which the structure faces. The fifty-foot front setback requirement which is at issue here is not affected by the six-foot side setback requirement for “detached buildings.” There is nothing in the provision pertaining to the construction of porches which indicates that the resulting structures are not subject to the fifty-foot front setback requirement. The restrictions contemplate the construction of porches, but the restrictions also contemplate compliance of the resulting structure with the applicable setback requirements.

The circuit court correctly noted that the provision of the restrictions requiring that “all mobile homes and utility buildings shall be approved by the Board of Directors before being placed on any lot” does not specifically provide that an addition to a mobile home be preapproved by the board. The Association argued that any permanent addition to a mobile home requires preapproval by the board. In view of the fact that our interpretation of the fifty-foot setback requirement is dis-positive, we need not address the issue of whether preapproval was required. In any event, we note that the restrictions do not appear to contemplate the approval by the board of structures that violate the applicable setback requirements.

Conclusion

Because the circuit court erred in its interpretation of the pertinent setback provision, the judgment of the circuit court is reversed and the matter is remanded to the circuit court with directions for entry of a judgment in favor of the Association, including a declaration that the addition of the porch violated the setback restriction, an injunction directing removal of the addition, and an award of attorneys’ fees to the Association for fees incurred before the circuit court, as provided in the recorded bylaws of the Association.

Reversed and remanded with instructions.

WHATLEY and DAVIS, JJ., Concur.


author: STRINGER, Judge.

text:
    Barbara J. WILLICK, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Micro Snap Inc., Appellees.
    No. 2D03-4830.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.

      Barbara J. Williek, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Micro Snap Inc.
   STRINGER, Judge.

Barbara Williek seeks review of the final order of the Unemployment Appeals Commission (UAC) affirming the appeals referee’s decision that denied her unemployment compensation. Because the appeals referee erred in placing the burden on the claimant to prove she did not voluntarily end her employment, we reverse and remand with directions to award benefits.

Williek was the only witness at the appeals hearing conducted in this case; the employer did not appear. Williek testified, and the appeals referee found, that while working as a sales representative, she asked another employee to assist her by making a call to obtain some information regarding a sale Williek was pursuing. Willick’s manager approached and asked what they were doing, and she and the manager went outside to speak. The manager became upset and told Williek to leave the property. Williek also testified that the manager told her he would call the police if she did not leave the property.

Williek convinced the manager to let her back inside to get her purse, at which time she stopped to speak to the president of the company and tried to explain what occurred with the manager. Williek asked the president, “Is this it?,” and the president responded that it depended on the manager. Williek did not ask the manager if she was fired or if she could return to work the next day, and she left the job site and did not return. Williek testified that the manager again told her to get off the property while she was speaking with the president, and she believed she was fired from her job. No evidence of misconduct was presented.

The issue before the appeals referee was whether the claimant was discharged for misconduct connected with work or voluntarily left without good cause. The appeals referee concluded that the claimant voluntarily separated from employment on the assumption that a discharge had or would take place. Further, because the claimant made no attempt to ask the manager whether she was still employed, she had failed to exercise her right to have allegations of misconduct determined, supporting the appeals referee’s conclusion that she voluntarily left the job without good cause.

To successfully challenge any finding of the appeals referee, an appellant must show that the finding is not supported by competent, substantial evidence in the record. See § 120.57(1)(Z), Fla. Stat. (2002); Studor Inc. v. Duren, 635 So.2d 141 (Fla. 2d DCA 1994). A reviewing court cannot overturn an agency’s interpretation or application of its organic laws unless the agency’s interpretation is clearly erroneous. See Dep’t of Ins. v. Southeast Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983).

The employer has the initial burden to establish that the employee voluntarily left employment. Lewis v. Fla. Unemployment Appeals Comm’n, 685 So.2d 876, 878 (Fla. 2d DCA 1996). If the employer meets this burden, then the employee must present evidence to prove that he or she left the employment for good cause attributable to the employer. Id.

A claimant who leaves his or her employment voluntarily without good cause is disqualified from receiving unemployment benefits. See § 443.101(l)(a), Fla. Stat. (2002). “[W]henever feasible, an individual is expected to expend reasonable efforts to preserve his employment,” Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89 (Fla. 3d DCA 1987), and failure to utilize an available grievance procedure to challenge allegations of misconduct supports a finding that the employee voluntarily left his or her job without good cause. Bd. of County Comm’rs, Citrus County v. Fla. Dep’t of Commerce, 370 So.2d 1209, 1211 (Fla. 2d DCA 1979); Klesh v. Unemployment Appeals Comm’n, 441 So.2d 1126 (Fla. 1st DCA 1983).

Applying these standards to the facts of this case, we must conclude that the statements upon which the referee relied do not provide prima facie evidence to support the finding that Willick quit. Because the employer failed to appear or otherwise present any testimony, and Wil-lick provided no testimony that could support a finding that she quit, the employer failed to meet its initial burden of proving that she voluntarily left her employment. This conclusion alone supports a reversal of the decision denying her unemployment benefits.

The appeals referee’s conclusion based on Board of County Commissioners, 370 So.2d 1209, and Glenn, 516 So.2d 88, is also error. Unlike this case, the appeals referee in those cases considered evidence presented by the employer and employee involving formal written notices of dismissal for documented allegations of misconduct. Obviously, the purpose of a grievance procedure is to attempt to rectify documented employment issues short of termination. Where, as in this case, any misconduct or disciplinary problem is not documented or otherwise proven, the existence of a grievance procedure is unnecessary.

While employees are expected to expend reasonable efforts to preserve their employment, courts have applied a feasibility component to this requirement such that claimants will not be disqualified for leaving employment voluntarily when the available grievance procedure provided no real possibility that the claimant could have preserved his or her employment. See Schenck v. State, Unemployment Appeals Comm’n, 868 So.2d 1239 (Fla. 4th DCA 2004) (holding no competent, substantial evidence supported finding that appellant left job voluntarily when there was no evidence of any possibility that appellant could have preserved job through grievance hearing); Grossman v. Jewish Cmty. Ctr. of Greater Fort Lauderdale Inc., 704 So.2d 714 (Fla. 4th DCA 1998) (reversing and remanding for award of benefits because unutilized grievance procedure was not feasible because it would have required the employee to air her complaints to same supervisors who verbally abused her in evaluation).

In this case, the appeals referee found that Willick voluntarily left her employment because she was presented with and refused an opportunity to remedy the situation when she asked the president, “Is this it?” and he responded that it was up to the manager. Willick was not confronted with clear allegations of misconduct, nor were there any established grievance procedures presented to her as a means of challenging her termination. Rather, she was presented with the opportunity to speak with the same manager who had become upset and hostile toward her when she previously discussed the situation with him, and had threatened to call the police if she did not leave the property. In fact, while Willick was trying to discuss the situation with the president, the manager again ordered her off the property. There is no evidence to suggest that Willick could have preserved her job by again attempting to speak with the manager.

Based on these facts, Willick was not presented with a feasible grievance procedure through which there was a reasonable possibility for her to preserve her employment. Because an employee is only required to expend reasonable efforts to preserve employment when feasible, Wil-lick’s failure to pursue the frivolous step of speaking again with her manager does not provide competent, substantial evidence that Willick voluntarily left her employment without good cause. Accordingly, we reverse the UAC’s order and remand with directions to award Willick unemployment benefits.

Reversed and remanded with directions.

ALTENBERND, C.J., and FULMER, J., Concur.


author: MAY, J.

text:
    Liluisk JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1034.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order denying his motion to withdraw his plea of no contest for the sale or delivery of cocaine within 1000 feet of a church for which he was sentenced as a habitual felony offender. He raises three issues. We affirm in all respects. We write to address his habitual felony offender sentence.

The defendant entered into a negotiated plea agreement that included a sentence of sixty-three months as a habitual felony offender. In fact, during the plea colloquy, he specifically inquired whether the prison time was doubled because he was going to be sentenced as a habitual felony offender. The court assured him the total time was sixty-three months. The defendant acknowledged the actual time he would serve might be affected by his habitual status. When the State read the prior felony offenses into the record, it relied upon two possession of cocaine charges. The defendant stipulated to those convictions.

The defendant now argues the two possession charges fail to qualify him for the habitual felony offender sentence. We agree that section 775.084(1), Florida Statutes (2002), 'requires, among other things, that “one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.” Thus, the State erred in relying on these two charges to substantiate the habitual felony offender sentence. However, the defendant’s score sheet reflects numerous prior felony convictions, including burglary of a dwelling, aggravated assault with a weapon, battery on a law enforcement officer, robbery, and vehicular homicide. “Under the applicable version of the habitual offender statute, any two felonies would be sufficient to qualify the defendant as a habitual offender.” Robinson v. State, 832 So.2d 806, 807 (Fla. 3d DCA 2002) (emphasis added).

As this court stated in Spriggs v. State, 615 So.2d 828 (Fla. 4th DCA 1993) (en banc), “remanding for the trial court to make a mechanical recitation of the section 775.084 findings would be an empty gesture, not to mention a waste of judicial resources.” Id. at 832. We therefore affirm.

POLEN and TAYLOR, JJ., concur.


text:
    Rene WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2962.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Rene Woodard, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This court previously affirmed without prejudice the trial court’s summary denial of Woodard’s prior petition for writ of mandamus, seeking to compel the state attorney and the clerk of the circuit court to comply with his requests for copies of all their records pertaining to his three criminal cases. The prior petition did not attach any documentation substantiating his record requests, and this court’s affir-mance was without prejudice to Woodard’s re-filing his petition within thirty days to include copies of substantiating correspondence and entitlement to the records. Woodard v. State, 840 So.2d 355 (Fla. 4th DCA 2003).

Woodard timely re-filed his petition in April 2003, this time including correspondence substantiating a request dated February 20, 2002, to each official for their records concerning his cases, specifically including any depositions, arrest reports, and psychological evaluations. In connection with his request to the clerk of the court, he also attached a copy of a document request dated June 27, 2002, specifically requesting certain documents for each case: the information, written plea agreement, arrest report, criminal history and disposition. Within the document request addressed to the clerk of the court, he asked to be advised of the cost of the copies requested. He alleged again in his new petition that he again received no response.

The appellee concedes that mandamus is the proper vehicle for an individual to compel compliance with a request for public records, whether made pursuant to section 119.07 or Florida Rule of Judicial Administration 2.051, but takes the position the new petition, too, was facially insufficient in not including sufficient copies of his purported requests and was not sufficiently specific concerning the documents requested.

It is the obligation of the custodian of public records to respond to mailed requests for information as to copying costs and to furnish copies of records when the person requesting them identifies the portions of the record with sufficient specificity to permit the custodian to identify the record and forwards the fee. See Wootton v. Cook, 590 So.2d 1039 (Fla. 1st DCA 1991). With respect to the document request addressed to the clerk of the circuit court, Woodard requested specific documents and requested information about the costs of copying them. Under Woot-ton, the clerk of the court had a duty to respond to the request for information as to copying costs.

With regard to the state attorney, we affirm because Appellant failed to identify with sufficient specificity the records requested. Accordingly, we affirm in part, as to the request to the state attorney. We reverse in part, as to the request to the clerk of the circuit court, and remand for the circuit court for further proceedings, including the issuance of an alternative writ of mandamus to the clerk of the circuit court to show cause why the requested relief should not be granted.

STONE, TAYLOR and MAY, JJ., concur.

      . According to the initial brief, after issuance of the order on appeal, the clerk of the circuit court sent Woodard a document, informing him that the fee schedule in use in that office was $ 1 per page. He notes that this information is not helpful, as he needs to know the total cost of the requested records.


text:
    Charles HICKMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4258.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2004.
    Charles Hickman, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Michael Keith EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3681.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2004.
    Michael Keith Edwards, pro se, petitioner.
    Charlie Crist, General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Windsor COOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3523.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2004.
    Windsor Cooks, pro se, petitioner.
    Charlie Crist, General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Terry M. DIX, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2192.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    Terry M. Dix, Raiford, pro se.
    No Appearance for Appellee.
   SAWAYA, C.J.

Defendant Terry Maurice Dix, a/k/a Ji-haad Abdullah Qawi, shot the victim in the chest in 1996. The jury found him guilty of aggravated battery while in possession of a firearm. He was sentenced as a habitual offender to eighteen years in the Department of Corrections, followed by five years of probation. He appealed, and this court affirmed. Dix v. State, 747 So.2d 950 (Fla. 5th DCA 1999).

Now, Defendant appeals the denial of what is at least his fifth rule 3.800(a) motion, which is his eleventh postconviction filing here overall. This court issued a show cause order directing Defendant to demonstrate why he should not be prohibited from filing any further pro se appeals, petitions, pleadings or motions pertaining to this case. See State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). Finding no merit in his response, we conclude that his successive challenges to his judgment and sentence constitute an abuse of the judicial system. See, e.g., United States v. Robinson, 251 F.3d 594 (7th Cir.2001) (finding that incessant, repetitive filings of frivolous motions burden court’s staff); Baker v. State, 878 So.2d 1236 (Fla.2004) (explaining that a limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve our strained postcon-viction judicial resources, we prohibit Defendant from filing any additional pro se appeals, pleadings, motions or petitions relating to his convictions and sentence in the underlying case. We do not take this action lightly, but “[ejnough is enough.” Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995); see Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004); Proctor v. State, 869 So.2d 752 (Fla. 5th DCA 2004). Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Defendant seeking relief from the convictions and sentence rendered in Brevard County, Eighteenth Judicial Circuit Court Case No. 05-1996-CF-26965.

AFFIRMED.

PALMER and TORPY, JJ., concur.


author: PETERSON, J.

text:
    Gregory J. LeBRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1681.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.

      Gregory J. LeBron, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Gregory J. LeBron appeals the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850, which raised twenty-one grounds for relief. The primary basis of the denial was that the motion was not filed within the two-year period prescribed by the rule.

LeBron’s direct appeal of his conviction and sentence became final when the mandate affirming them was issued by this court on October 12, 2001. LeBron, who is incarcerated, certified that he delivered his motion to prison officials on October 10, 2003, although the trial court found that it was untimely filed on October 20, 2003. Application of the mailbox rule deems the motion to have been filed when delivered to prison officials for mailing and unless the trial court finds that the motion was not delivered to the prison officials within that two-year period, the motion should be entertained.

Because we are unsure as to whether the trial court appropriately considered the twenty-one grounds for relief set forth in the motion in view of the finding of untimeliness, we remand for further proceedings. We specifically direct the trial court’s attention to ground number VIII which alleged that trial counsel was ineffective for failing to strike a juror who allegedly stated that LeBron “must be guilty of something, if the State accused him of a crime” and that “a defendant is presumed guilty, and should have to prove his innocence.”

In Walker v. State, 765 So.2d 854 (Fla. 5th DCA 2000), which involved analogous facts, this court determined that the defendant’s claim was facially sufficient when it alleged that trial counsel failed to challenge a juror who allegedly knew the state’s key witness. The alleged facts in the instant case appear to us stronger than those in Walker. See also Austing v. State, 804 So.2d 603 (Fla. 5th DCA 2002); Thomas v. State, 700 So.2d 407 (Fla. 4th DCA 1997).

Accordingly, we vacate the order denying relief and remand for further review of LeBron’s motion to include the issue of timeliness of filing of the motion under the mailbox rule and to determine the sufficiency of the motion if found to be timely filed.

ORDER VACATED AND REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.