text:
    B.S., Mother of L.M., S.S., T.S., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-251.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Jodi Abramowitz, Orlando, for Appellee.
   THOMPSON, J.

B.S. (“mother”) appeals the trial court’s order terminating her parental rights to two of her four children, L.M. and S. S. We affirm.

The mother contends that the trial court’s failure to rule within a reasonable time resulted in a violation of her liberty and due process interests. See Lewis v. Department of Health and Rehabilitative Services, 670 So.2d 1191, 1194 (Fla. 5th DCA 1996). Although Rule 2.050(f), Florida Rules of Judicial Administration, imposes a duty on every judge to rule upon and announce an order or judgment within a reasonable time, there is no bright-line demarcation of what is a reasonable time. Tunnage v. Bostic, 641 So .2d 499 (Fla. 4th DCA 1994). When addressing delays in rulings, it must be determined whether there is any conflict or inconsistency between the court’s findings at the time of trial and the ultimate judgment, and whether the court’s findings are supported by trial evidence. See Florida Air Academy v. McKinley, 688 So.2d 359 (Fla. 5th DCA 1997) (holding that employer was not entitled to new trial where there was a 15-month delay between trial and the entry of judgment, and there was no conflict or inconsistency between judge’s statements and later findings). In the instant case, there was no conflict between the findings at trial and the findings in the judgment. Furthermore, the delay in rendition of the judgment in the instant case was due to numerous stipulations and appeals, rather than neglect by the trial court. Given the procedural history of this case, we conclude that the trial court resolved this case in a reasonably timely manner.

The mother also contends that the department failed to prove that termination was in the children’s manifest best interests because the children have special needs, making them unlikely to be adopted. The trial court found that it was unlikely that the children would remain in long-term foster care, a conclusion that is supported by the evidence. Emily Garten, S.S.’s former therapist, testified that she did not see any reason why S.S. would not be adopted. Family Services counselor Hortensia Ocasio also testified that S.S. and L.M. could be adopted. There was no evidence that the children would not be adopted because they have special needs. The trial court also found that the children had demonstrated the ability to form bonds with substitute care givers and would have a stable and permanent family relationship as a result of termination of parental rights. Although there was testimony that S.S. and L.M. suffered from severe emotional and behavioral problems, there was also testimony that they had improved while in their respective placements. Garten testified that S.S. had asserted that she wanted to live in a home with a “mommy and daddy.” Moreover, Garten testified that S.S.’s progress showed she would be able to form a healthy relationship with a new family. Behavioral analyst Laura Mann testified that L.M. required placement in a two-parent home in which one parent would be able to stay home and care for L.M. Additionally, the trial court noted that the guardian ad litem recommended that parental rights be terminated.

Finally, the mother contends that termination was not the least restrictive means of protecting the children because there were two relatives willing and able to take the children in a long-term placement situation. See Department of Health and Rehabilitative Services v. M.B., 701 So.2d 1155, 1163 (Fla.1997) (holding that the department must also prove by clear and convincing evidence that termination is the least restrictive means of protecting the child from serious harm). One of the relatives the mother suggested never contacted the department, and no home study was conducted on that relative’s home. The other relative, Latasha Brown, did not receive a positive home study by the department. Foster care counselor Vanessa Velez testified that Brown’s home study was negative in part because there were ambiguities about who resided in the home. Velez testified that Brown, only 23 years old, lived in a cluttered, three-bedroom home. Two children slept in a bedroom that had mattresses on the floor and broken dressers. A baby slept in Brown’s room, and a cousin slept in the third bedroom. Velez testified that there was a half-filled swimming pool in the yard with no fence surrounding it. At the time of the home study, Brown, who had a lengthy arrest record, was unemployed. Velez testified that Brown had been arrested for aggravated battery on a pregnant female, aggravated battery, assault with a deadly weapon with an intent to kill, battery on a law enforcement, larceny, and probation violations. Furthermore, Brown admitted that her own children had been removed by the department at one time, but subsequently were returned. Brown testified that she wanted custody of L.M. and S.S. because she loved them. Brown stated that she had taken care of the children before they went into state’s custody, but was incarcerated at the time the department took custody of the children. Although a negative home study may not necessarily preclude a trial court from placing a child in that home, see Department of Children and Families v. T.L., 854 So.2d 819 (Fla. 4th DCA 2003), we conclude that there was clear and convincing evidence that Brown’s residence was not a suitable placement for the children.

AFFIRMED.

PETERSON and TORPY, JJ., concur.

      . On 14 November 2002, the mother filed a motion to relinquish jurisdiction as to the appeal regarding her two children, T.S. and R.S. so that they may be adopted. An adoption hearing for T.S. and R.S. is set for mid-December. The mother wishes to proceed on the appeal regarding the termination of parental rights for the two children with special needs, S.S. and L.M.

      . S.S.'s former therapist testified that S.S. had multiple problems in school, including defiance, acting out sexually, and urinating on the floor. Garten testified that S.S's behavior had improved since her last placement. There was testimony that L.M. exhibited troublesome behaviors in the school environment, but not at home. L.M., who continued to have angry outbursts, had been expelled from two day camps and had attempted to stab two residents and a staff member.


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    Arthur L. COWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2164.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Arthur L. Cowart appeals an order sentencing him after a probation violation. We reverse.

Cowart was convicted of possession of cocaine and battery on a law enforcement officer. The factual basis for Cowart’s plea was that a police officer approached Cowart and asked him what he was doing. When the officer mentioned that Cowart was parked in front of a Firestone store, Cowart, agitated and shouting, replied; “Don’t fire, don’t kill me,” and tackled the officer. In a separate case, an officer saw Cowart making unusual movements in his car: “Hitting the dash, et cetera.” When Cowart emerged from the vehicle, the officer observed cocaine in plain view on the passenger seat. During the plea colloquy, Cowart told the court that he was guilty of the possession charge, but that he did not think he was guilty of battery because he had not been “aware of the circumstances of what I was doing.” Defense counsel explained that Cowart was entering the plea in his best interests, but wanted the court to know that “he wasn’t in his right mind at the time that he committed the offenses.” Cowart, who said he had a 20-year drug problem, was sentenced to five years of incarceration suspended on the condition that he complete 54 months of drug offender probation, which was to commence in a long-term, residential drug rehabilitation facility.

Although the order provided that Co-wart was to be released by the jail only to Phoenix House, and despite the efforts of the court and defense counsel to insure that Cowart remained in jail until there was space for him in a rehabilitation facility, Cowart apparently was simply released from jail. Eventually, Cowart was alleged to have violated probation by fleeing a police officer, testing positive for cocaine, and failing to report to his probation officer. Defense counsel asked the successor judge to order Cowart into jail until he could be admitted to a residential drug program and complete the probation. Instead, the court revoked the probation and imposed the five-year prison sentence.

In rejecting defense counsel’s request, the court told Cowart:

You did a lot of things wrong. And I wish we had drug treatment to give you because I think you clearly need it. But the things you did wrong are still your fault, they’re not somebody else’s fault, And the things you did wrong here violated your probation.
When Judge Smith saw you she said you can’t violate your probation or you will go to prison for five years. That’s harsh, but that’s what she said.
You have violated your probation. It’s willful, substantial, intentional. It’s a commission of new offenses. And my only recourse here is to enforce the sentence that Judge Smith ordered previously, which is five years in the Department of Corrections, each case concurrent, credit for 118 days time served on each case.
I will recommend that the Department of Corrections assign you to any substance abuse treatment that may be available to the Department of Corrections.

(emphasis added).

It is evident that the court misunderstood its options. The court did not have only one recourse, but was authorized to “revoke, modify, or continue the probation or community control or place the probationer into a community control program.” § 948.06(1), Fla. Stat. (2002); Griffin v. State, 783 So.2d 337 (Fla. 5th DCA 2001). Furthermore, on electing to revoke probation and impose a sentence, a court is authorized to impose a sentence less than the original sentence. See Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002). Because the court appears to have thought it was bound to sentence Cowart to five years of incarceration, we reverse and remand for reconsideration.

Upon remand, the judge who originally imposed sentence will preside unless it is “necessary” that another judge preside. See Fla. R.Crim. P. 3.700(c); Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979) (“convenience does not justify a practice that departs from the well recognized assumption that sentencing is an individualized procedure”); Lester v. State, 446 So.2d 1088 (Fla. 2d DCA 1984) (applying rule 3.700(c) in context of revocation of probation proceeding); Lusskin v. State, 717 So.2d 1076 (Fla. 4th DCA 1998) (applying rule 3.700(c) in context of motion to mitigate sentence); Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002) (applying rule 3.700(c) in context of resentencing after appeal). The successor judge, if any, may receive a proffer or statement of proceedings deemed relevant by the parties provided that the court also reviews any presentence investigation report and so much of the file as may be pertinent. See Spencer v. State, 611 So.2d 16 (Fla. 3d DCA 1992).

REVERSED.

MONACO, J., concur.

SAWAYA, C.J., dissents, without opinion.


author: ORFINGER, J.

text:
    Jonathan GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3129.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Pamela H. Izakowitz of Backhus & Iza-kowitz, P.A., Tampa, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

Jonathan Gutierrez appeals the summary denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Gutierrez was tried and convicted of attempted second-degree murder and aggravated battery causing great bodily harm. His convictions and sentences were affirmed. See Gutierrez v. State, 785 So.2d 498 (Fla. 5th DCA 2001), review dismissed, 807 So.2d 653 (Fla.2002). We affirm.

Gutierrez’s amended Rule 3.850 motion asserts six grounds for relief, the first three alleging ineffective assistance of trial counsel. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable performance. See Lawrence v. State, 831 So.2d 121 (Fla.2002), cert. denied, 538 U.S. 926, 123 S.Ct. 1575, 155 L.Ed.2d 319 (2003). To prevail on a claim of ineffective assistance, a defendant must first show that counsel’s performance was deficient, in that his or her representation fell below the objective standard of reasonableness based on prevailing norms. Second, the defendant must demonstrate prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different. See Jones v. State, 845 So.2d 55, 65 (Fla.2003).

A defendant is only entitled to an evidentiary hearing when he or she alleges specific facts which are not conclusively rebutted by the record, and, which demonstrate a deficiency in performance which prejudiced the defense. Mere conclusory allegations are insufficient. Id. However, a defendant’s factual allegations must be presumed true when reviewing a summary denial. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002).

In his first claim, Gutierrez alleges that his counsel was ineffective for failing to fully investigate and develop evidence of his mental health problems, including a severe drug problem, depression, and a history of suicide attempts, despite being made aware of these matters. Gutierrez claims that if counsel had investigated these matters, “other alternatives besides self-defense could have been available to the judge and jury.”

Gutierrez admits that his counsel deposed three witnesses who detailed his drug problems as well as his mental and emotional difficulties. Another witness testified that he, the victim and Gutierrez had been smoking mariguana the night of the incident, but that the victim had not been aggressive. Gutierrez testified at trial that he had used marijuana the day of the incident and had a drug problem. He also testified that the victim attacked him and that he acted in self-defense.

Gutierrez also details his history of mental health problems and treatment. He claims that counsel should have presented evidence regarding his mental health and should have argued that as a result of paranoia, he perceived the need to defend himself. He further contends that his counsel should have raised his mental problems at sentencing for purposes of mitigation. However, he admits that the sentencing judge knew of his drug problems and had received numerous letters supporting him.

As the trial court correctly observed in its order denying relief, Gutierrez did not claim that he was insane at the time of the crimes. Consequently, evidence of his mental health history was inadmissible with respect to the issue of his guilt. See Spencer v. State, 842 So.2d 52, 63 (Fla.2003) (stating that evidence of most mental conditions is too misleading to be allowed in the guilt phase, so counsel’s failure to present such evidence was not ineffective); Chestnut v. State, 538 So.2d 820, 825 (Fla.1989) (stating that evidence of impaired mental condition, which does not rise to definition of insanity, is not admissible to show defendant could not form necessary specific intent). Evidence of an abnormal mental condition not constituting legal insanity is inadmissible to negate specific intent.

The trial court also correctly noted that, effective October 1, 1999, the defense of voluntary intoxication was abolished. See § 775.051, Fla. Stat. (2000). Gutierrez’s crimes occurred in February, 2000, after the defense was eliminated. Therefore, Gutierrez’s drug use was not available as a defense, so counsel was not ineffective for failing to present evidence regarding Gutierrez’s drug use.

Gutierrez’s second claim of ineffective assistance is similar to his first claim. He alleges that his counsel was ineffective for failing to obtain a mental health evaluation. However, Gutierrez does not allege that he was insane at the time of the crime or that he told counsel he was insane. Consequently, there was no basis to request such an evaluation. See also Mills v. State, 603 So.2d 482, 486 (Fla.1992) (competency is not an issue in every case); cf. Patton v. State, 784 So.2d 380, 387-88 (Fla.2000) (finding that hearing required on claim of ineffectiveness for failing to pursue insanity defense where there was ample evidence to suggest defendant was insane when he committed murder, including fact he had previously been adjudicated insane).

In his third ineffective assistance claim, Gutierrez argues that his counsel was ineffective for failing to object to a violation of his double jeopardy rights. Gutierrez was charged with attempted first-degree murder with a weapon and aggravated battery causing great bodily harm but was convicted of attempted second-degree murder and aggravated battery. Gutierrez argues that his counsel should have objected to the fact that he was convicted of two offenses arising from a single act. Gutierrez relies on Gresham v. State, 725 So.2d 419 (Fla. 4th DCA 1999), in which the defendant was similarly charged and convicted, and the court held that under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the two convictions were prohibited because the information and the evidence established that the battery was a lesser included offense of the attempted murder. See also Florida v. State, 855 So.2d 109 (Fla. 4th DCA 2003).

In denying Gutierrez relief, the trial court properly recognized that it was bound by the contrary precedent from this court. In Schirmer v. State, 837 So.2d 587 (Fla. 5th DCA 2003), the defendant was convicted of attempted second-degree murder with a weapon and aggravated battery with a deadly weapon or causing great harm. Both convictions were based on the defendant stabbing the victim with a knife. In concluding that no double jeopardy violation occurred, this court held that the elements of the two crimes were different because attempted murder requires proof of an act that could have resulted in death, which is not an element required for aggravated battery. See also McKowen v. State, 792 So.2d 1251 (Fla. 5th DCA 2001) (holding that convictions for battery on a police officer and attempted second-degree murder based on attack with knife did not violate double jeopardy).

Gutierrez’s other claims were properly denied because they are procedurally barred or lack merit. See generally Johnson v. State, 769 So.2d 990, 1005 (Fla.2000).

The order denying Gutierrez’s amended motion for postconviction relief is affirmed.

AFFIRMED.

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

      . Because Gutierrez's rule 3.850 motion was denied without an evidentiary hearing, his brief was required to be filed within fifteen days of the filing of the notice of appeal. See Fla. R.App. P. 9.141(b)(1)(C). Although Gutierrez's brief was untimely, we have considered it carefully.


author: PLEUS, J.

text:
    Jody McKAY, f/k/a Jody Pate, Appellant, v. Jason HAIKEY, Appellee.
    No. 5D03-1208.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Nancy Y. Smith of Brinson, Smith & Smith, P.A., Kissimmee, for Appellant.

      No appearance for Appellee.
   PLEUS, J.

In this paternity action, the mother, McKay, appeals a final judgment changing the child’s surname from McKay to that of the father, Haikey. She argues that the trial court violated her procedural due process rights by allowing more than one hearing on the name change issue. On the merits, she argues that the trial court abused its discretion in changing the child’s surname without finding that the change was in the child’s best interest. Haikey did not make an appearance in this appeal. We reverse because the father failed to prove the name change was in the child’s best interest.

Jody McKay and Jason Haikey, an unmarried couple, conceived a child, Kase Gregory McKay. When Kase was born, his parents were no longer dating or speaking to each other. McKay did not inform Haikey about the birth. Immediately upon giving birth, McKay named her son Kase Gregory McKay and completed the necessary paperwork for his birth certificate. Haikey learned of his son’s birth the following day. Haikey visited the hospital but questioned whether he was the father and asked for a paternity test.

About two weeks later, Haikey filed a petition to determine paternity in which he admitted being Kase’s father and also asked that Kase’s surname be changed to Haikey. At a hearing on September 27, 2002, the trial court orally ruled that the child’s name would not be changed.

On October 9, 2002, Haikey filed a motion to supplement the testimony, alleging that he was pro se at the first hearing and did not adequately present sufficient evidence. Now represented, Haikey wished to present additional testimony on the name change issue. On October 22, 2002, the court denied Haikey’s motion to supplement the testimony. The court reasoned that neither in the prior hearing nor in the motion to supplement the testimony had Haikey demonstrated why the child’s name was detrimental and why changing it would be in the child’s best interest. However, the court granted Haikey 20 days to file a new motion with “legally sufficient testimony.”

Twenty-one days later, Haikey filed a Verified Response to Order Regarding Rehearing. He argued that the name change would be in the child’s best interest because the mother used her former married name, Pate, instead of her legally-restored name, McKay. Consequently, Haikey argued that:

If the Mother goes by the surname “Pate” and/or remarries and takes her new Husband’s name, then the minor child of these parties will not be known by either parent’s surname. Hence the child’s surname would be different from both parents’.

The court granted rehearing on the name change issue. At the second hearing, McKay’s attorney objected to the need for another hearing, arguing that the court had correctly decided the issue on October 22, 2002, and that Haikey had failed to timely move for rehearing. The court overruled the objection.

Haikey testified that he believed changing the child’s surname was in the child’s best interest for the following reasons:

My grandfather only had two kids, one guy and one girl and it’s up to me and my brother to carry on the name. And I think that he — it would be in his best interest to carry on my name.
Because that way I know what my last name and he would know his last name. He doesn’t know it now. He has no recollection of it, but Ms. McKay — she just recently changed her name and she will probably remarry and then her name will change again.

The trial court granted the name change, ruling as follows:

The Court is convinced that the name of the child was done by the Mother in anger towards the father or disagreement and not necessarily in the best interest of the child. The Father was ready and willing to go to the hospital if he had been informed of the Mother going to give birth. However he had to learn himself about the birth of the child and then went to the hospital and unfortunate comments were made by one or both parents which led to naming the child by the Mother’s maiden name and lack of contact by the Father.

On appeal, McKay argues that the procedure employed by the trial court violated her procedural due process rights by giving Haikey repeated chances to raise the name change issue. The record shows that the court orally denied a name change on September 22, 2002. Twelve days later, Haikey filed a motion to supplement the testimony. The court again denied this motion, but gave Haikey 20 days to file a new motion with a more specific proffer of evidence. Twenty-one days later, Haikey filed a new motion which resulted in a new hearing and an order changing the child’s name.

We are sympathetic to McKay’s due process argument. At some point, due process demands that the court make a decision. Allowing the issue to be repeatedly reopened results in unnecessary expense and uncertainty for litigants. However, we cannot say the court went so far in this case as to constitute an abuse of discretion. Neither the court’s oral pronouncement on September 22, nor its written order of October 22, constituted a final judgment of paternity. We therefore conclude that the trial court acted within its discretion in granting a rehearing on the name change issue prior to entering a final judgment of paternity.

On the merits, McKay argues that the trial court abused its discretion by granting the name change because Haikey faded to meet his burden of proving that the name change was in the child’s best interest. We agree. The law on this issue is succinctly stated in Bardin v. State, Dep’t of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998), as follows:

This court, in Collinsworth v. O’Connell, 508 So.2d 744 (Fla. 1st DCA 1987), held that the change of a child’s surname to that of the father, based only on a finding of paternity, is error. The Collins-worth court explained that a child’s surname may be modified “ ‘only where the record affirmatively shows that such change is required for the welfare of the minor.’ This standard, emphasizing best interests of the child rather than parents, would accord effect to the same factors governing custody.” Collinsworth, 508 So.2d at 747 (citations omitted). Section 382.013(3), Florida Statutes (1997), does not permit a change of surname based only on a finding of paternity. The Collinsworth court explained that the discretion of the trial judge in these cases must “be exercised on the basis of some evidence other than the parties’ conclusory assertions.... ” The Collinsworth court further explained that in the absence of sufficient evidence to show that the name change would be in the best interest of the child, “the issue should ordinarily be resolved against the party having the burden of proof, the proponent of change.” Collinsworth, 508 So.2d at 747.
Bailey, as the party seeking to change the child’s surname, bore the burden of proof to show that the change would be in the child’s best interest. Bailey, however, offered no evidence that a change in the child’s surname would be in the best interest of the child. Accordingly, this portion of the order is reversed with instructions to reinstate the child’s original surname. See also, Levine v. Best, 595 So.2d 278 (Fla. 3d DCA 1992) (holding, in an adjudication of paternity, that the standard to be applied in determining whether to change a child’s surname is the best interest standard); Durham v. McNair, 659 So.2d 1291, 1292-93 (Fla. 5th DCA 1995) (holding, in a paternity action, that “[t]he selection and change of the child’s surname from the name chosen by the mother must be based on the trial court’s determination that renaming is in the child’s best interests, and the record must affirmatively show such a name change is required for the welfare of the minor child.”); Jones v. Roberts, 559 So.2d 429 (Fla. 4th DCA 1990) (holding that the trial court did not abuse its discretion in changing the surname of the child where the court made factual findings that the name change would be in the best interest of the child); Girten v. Andreu, 698 So.2d 886, 888 (Fla. 3d DCA 1997) (holding that the trial court abused its discretion in changing the surname of the child, and explaining that “[t]he mere fact that paternity has been established does not automatically entitle the father to insist the child be given his surname.”); Lazow v. Lazow, 147 So.2d 12, 14 (Fla. 3d DCA 1962) (holding that a minor’s surname may be changed “only where the record affirmatively shows that such change is required for the welfare of the minor.”).

(Footnote omitted).

In the instant case, its was Haikey’s burden to prove that changing the child’s name was in the child’s best interest. At the hearing, he gave two reasons why he thought the name change was in the child’s best interest. First, he wanted to carry on his family name. But Haikey did not explain how carrying on the father’s family name is in the child’s best interest. This reason was insufficient under Girten, which held that changing the child’s name solely because it was “customary to use the father’s surname,” could not sustain a name change. Second, Haikey wanted his child to know his last name. He feared that McKay would probably remarry and change her name again. While concern that a child may not have the same surname as either parent appears to be valid best interest factor, Daniel v. Moats, 718 So.2d 949 (Fla. 5th DCA 1998), the father’s concern in the instant case was merely speculative. Thus, both reasons given by Haikey were insufficient to prove that the name change was in the child’s best interest.

The reason given by the trial court was also insufficient. The trial court was “convinced that the name of the child was done by the mother in anger towards the father or disagreement and not necessarily in the best interest of the child.” The court further explained that “unfortunate comments were made by one or both parents which led to naming the child by the mother’s maiden name and lack of contact by the father.” The court’s reasoning is flawed for three reasons. First, the judge’s finding is not supported by the evidence. The words exchanged between Haikey and McKay at the hospital the day after the their son was born did not lead to the naming of the child in anger. McKay had already named the child on the day of his birth. Second, McKay was entitled to name the child at birth pursuant to section 382.013(3)(e), Florida Statutes, which states, “If the mother is not married at the time of birth, the parent who will have custody of the child shall select the child’s given name and surname.” Clearly, the mother had custody and was entitled to select the child’s name at birth. Third, the issue was not whether naming the child was in his best interest, but whether changing his name was in his best interest. In short, neither Haikey’s reasons nor the trial court’s reasons were sufficient to demonstrate that the name change was in the child’s best interest.

Accordingly, we reverse. Remand for a new hearing is not warranted. In Bardin, the appellate court reversed a trial court order changing a child’s name but declined to remand for a new evidentiary hearing, stating:

when a cause is reversed for lack of evidence, a new trial cannot be awarded on the theory that some additional evidence might have been available at the former trial and will be presented on retrial, or that some such evidence may be found and will be presented on retrial, and that in either event there may be a different result upon the retrial. As in very limited exceptions which do not appear in this case, we indulge a conclusive presumption that the litigants have presented all available, competent and material evidence supporting their cause; and failure to do so is at their election and risk. Any other rule would only lead to chaos.

Bardin, quoting Apalachicola Northern R. Co. v. Tyus, 114 So.2d 33, 38-39 (Fla. 1st DCA 1959). Instead, we remand for entry of an order restoring the child's given name, Kase Gregory McKay.

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ., concur.


author: TORPY, J.

text:
    STATE FARM MUTUAL AUTOMOBILE, etc., Petitioner, v. Lisa GIBBONS, Respondent.
    No. 5D03-2270.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Gregory W. Herbert, of Greenberg Traurig, P.A., Orlando, and David L. Ross and Elliot H. Scherker, of Greenberg Traurig, P.A., Miami, for Petitioner.
    Gilbert S. Goshorn, Jr., and Shannon McLin Carlyle, of The Carlyle Appellant Law Firm, The Villages, and Gregory S. Stark, of McKeever, Albert & Barth, Winter Park, for Respondent, Lisa Gibbons.
   TORPY, J.

Respondent, Lisa Gibbons, sued her insurer, Petitioner, State Farm, alleging that State Farm had not complied with section 627.0651(12), Florida Statutes (2002), which prohibits insurance companies from including in their rate base monies paid on bad faith and punitive damages claims and related attorney’s fees and taxable costs. She alleged that she tried administrative action, but that the Department of Insurance (DOI) basically ignored her, resulting in her filing this suit in the circuit court.

State Farm moved for a judgment on the pleadings on the basis that the only way to challenge approved rates is in an administrative proceeding in the Office of Insurance Regulation (“OIR”), the former Florida Department of Insurance. Rather than dismissing the claim, the trial court stayed the proceedings to allow Gibbons to institute an administrative action. Thereafter, Gibbons instituted an administrative proceeding, but expressly told the OIR that she wished to have her claim rejected so that she could return to the circuit court and resume her action against State Farm.

When the OIR granted Gibbons’ wish, determining that, based on the information that she had presented, there was no relief that could be afforded to her, Gibbons returned to the circuit court and asked it to lift the stay so that she could go forward with her action. The circuit court agreed, and State Farm timely sought certiorari review. We have jurisdiction. Art. V, section 4(b), Fla. Const.; Department of Children and Families v. L.D., 840 So.2d 432, 434 (Fla. 5th DCA 2003). We grant the petition.

Contrary to the position taken by Gibbons, the exclusive remedy for asserting a claim based on a purported violation of section 627.0651, is to seek administrative review pursuant to section 627.371, Florida Statutes (2002). Furthermore, once administrative review is completed, the exclusive jurisdiction for judicial review is in the District Court of Appeal. § 120.68(2)(a), Fla. Stat. (2002). Section 624.155, Florida Statutes (2002), which provides for a civil remedy against insurers who knowingly charge excessive rates, does not apply to Gibbons’ challenge to the rate-making process.

Because Gibbons failed to pursue and exhaust her administrative remedy and failed to seek judicial review in the correct court, her complaint in the circuit court should be dismissed. See Florida Welding & Erection Serv., Inc. v. American Mut. Ins. Co. of Boston, 285 So.2d 386, 389 (Fla.1973).

The petition is granted, and this cause is remanded with instructions that the complaint be dismissed.

PETITION GRANTED; REMANDED.

PALMER and MONACO, JJ., concur.


author: MONACO, J.

text:
    Adam DIRESTA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2927.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Adam Diresta, Zephyrhills, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

Adam Diresta petitions for a writ of habeas corpus seeking a belated appeal with respect to two orders of the trial court disposing of his post-conviction motions. We conclude that he is entitled to a belated appeal on one, but not the other.

Mr. Diresta was convicted after jury trial of three violent crimes and received a lengthy prison sentence as a consequence. His direct appeal resulted in a per curiam affirmance, and a mandate was issued with respect to it on August 25, 2000. His subsequent Rule 3.850 Motion for Post-Conviction Relief was denied by the trial court on June 25, 2001, apparently because “it lacked oath of verification.” Mr. Dires-ta asserts, however, that he did not receive a copy of the trial court’s order denying his Rule 3.850 motion, and he initially petitions for permission to pursue a belated appeal to review this order.

After waiting well in excess of two years after issuance of our mandate in the plenary appeal, Mr. Diresta in 2003, filed a “Motion for Leave To Amend the Original Motion for Postconviction Relief,” on the asserted basis that he believed his original 3.850 motion was still pending. He attempted in this motion to add “one substantive issue.” The trial court denied his motion to amend because of its late filing. Mr. Diresta posits that he re-executed his motions only to comply with the oath requirement, and now seeks a belated appeal from the orders denying each motion.

With respect to the initial motion for post-conviction relief, the State with admirable candor has pointed out that the prison mail supervisor confirmed that Mr. Diresta, in fact, received no legal mail in June, July or August 2001, thus supporting his claim that he did not receive the contested order. In Simpkins v. State, 807 So.2d 826 (Fla. 5th DCA 2002), we held that a criminal defendant is entitled to a belated appeal when the State’s investigation of prison mail logs confirms that the defendant received no legal mail during the relevant 2 months. Accordingly, Mr. Diresta is entitled to a belated appeal of the denial of his initial 2001 Rule 3.850 motion, and his petition in this regard is granted.

Mr. Diresta’s attempt to bootstrap an additional ground for belated appeal based on his “Motion for Leave To Amend the Original Motion for Postconviction Relief’ is, on the other hand, not well-founded. Mr. Diresta failed to file a timely notice of appeal from the order denying his motion to amend. In addition, his motion to amend is untimely since the judgment and sentence became final with the issuance of our mandate more than two years prior to the filing of the motion. His motion was thus time barred by virtue of Rule 3.850(b), Florida Rules of Criminal Procedure.

This is not a situation in which a defendant files a timely 3.850 motion and then files a timely motion to amend his original motion. See Gaskin v. State, 737 So.2d 509 (Fla.1999) (if the original 3.850 motion was timely and an amendment is filed before the trial court ruled on original motion, and the amendment is filed within the time limit, a court errs in failing to rule on the amendment and denying it as successive); Ramirez v. State, 854 So.2d 805 (Fla. 2d DCA 2003) (trial court should consider the merits of defendant’s pro se amended motion for postconviction relief, where the trial court had not yet made a final determination on the merits of the remaining claim, and the supplemental motion was filed within the statutory time limit). Here, the amendment was filed more than two years from the issuance of the mandate, and falls outside the requirements of the rule. Thus, Mr. Diresta’s petition regarding any issues raised in the amendment is denied.

GRANTED, in part, DENIED in part.

SHARP, W„ and GRIFFIN, JJ., concur.

      . Diresta v. State, 766 So.2d 1059 (Fla. 5th DCA 2000).


text:
    Eric S. WALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3339.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Eric S. Wallen, Clermont, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Eric S. Wallen appeals the summary denial of his Rule 3.800(a) motion to correct an illegal sentence. Because the motion was facially sufficient, and the trial court failed to attach record support for the denial, we conclude that a reversal is necessary.

Mr. Wallen entered into a plea agreement to six counts charging a variety of crimes. He argues that a fifteen (15) year sentence imposed for aggravated assault while armed with a firearm exceeds the statutory maximum for a third degree felony, and that the reclassification of this offense to a second degree felony because of the use of a firearm was improper. He argues, as well, that the reclassification of the second degree felony of aggravated battery with a firearm was likewise improper for the same reason. He asserts that these reclassifications were inappropriate because use of a firearm was an essential element of each crime. The trial court denied his motion without any supporting attachments, finding that the claims were successive, and that the sentences were the result of a plea and were lawful. The order does not elaborate on the basis for these holdings, and a review of Mr. Wallen’s prior appellate history reveals only two appeals, both of which were related to denials of Rule 3.850 motions on different grounds than are raised here. The motion is sufficient enough, however, to require the attachment of parts of the record to refute Mr. Wallen’s claims. See Gause v. State, 739 So.2d 1170 (Fla. 2d DCA 1999); cf., Smith v. State, 729 So.2d 496 (Fla. 5th DCA 1999).

In response, the State properly acknowledges that the order is insufficient because the trial court failed to attach portions of the record to refute the defendant’s claims. See Martin v. State, 799 So.2d 343 (Fla. 5th DCA 2001).

Accordingly, we reverse and remand for the trial court either to attach portions of the record to support denial of the motion or to grant the relief requested.

REVERSED and REMANDED.

GRIFFIN and TORPY, JJ„ concur.


author: SHARP, W., J.

text:
    Carl GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3416.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Carl Green, Avon Park, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Green appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He seeks to challenge his conviction and sentence in 1996 for armed burglary, aggravated assault, obstructing an officer with violence and carrying a concealed firearm, on the basis that his plea of guilty in that case was involuntary because he was not represented by counsel. Green alleges the trial court failed to advise him of his right to counsel, although he had been declared indigent, and he alleges he did not waive the right to counsel. He also alleges the court failed to advise him of the possibility that his conviction in that case could be used to enhance a criminal sentence he might receive in the future. We affirm.

The trial court correctly ruled that this motion is untimely. Green was sentenced on October 3, 1996, and took no appeal. That was the definitive date from which the time limits stated in rule 3.850 commenced to run in this case. Green filed this motion on September 15, 2003, well beyond the two year time limit set forth in the rule, and he failed to allege that he qualified for any of the exceptions to that two year time limit. Rule 3.850 provides exceptions to the two year time limit when the facts alleged in the motion as the basis for the motion are newly discovered, and could not have been ascertained by due diligence or if they constitute a new fundamental constitutional right which applies retroactively, or if retained counsel failed to file a timely motion, as agreed to and promised. It is difficult to see how Green could make such allegations in this case because he was aware that he was not represented at the time of his plea, and he does not allege he was unaware of that right or could not have ascertained his right to counsel within two years of the plea.

In addition, there is no requirement that a trial court advise a defendant that his conviction resulting from a plea could be used in the future to enhance future criminal sentences. See Major v. State, 814 So.2d 424 (Fla.2002). See also McKowen v. State, 831 So.2d 794 (Fla. 5th DCA 2002); Jerry v. State, 816 So.2d 1247 (Fla. 5th DCA), rev. denied, 837 So.2d 410 (Fla.2003).

AFFIRMED.

MONACO and TORPY, JJ., concur.

      . The fact that Green was placed on probation and that his probation was later revoked because he committed subsequent crimes, does not extend the time period under rule 3.850 for him to seek to withdraw his plea, or to bring other collateral attacks on his convictions in this case. See Green v. State, 828 So.2d 462 (Fla. 5th DCA 2002), rev. denied, 842 So.2d 844 (Fla.2003) (appealing new conviction and revocation of probation).


author: PER CURIAM.

text:
    George GOULD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3395.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

George Gould was convicted of aggravated battery-reclassified pursuant to section 784.045, Florida Statutes (2001), and was sentenced to state prison as a habitual offender and prison releasee reoffender. His appeal of his judgment and sentence attacks, first the verdict form used by the jury, and next the constitutionality of the prison releasee reoffender statute, section 775.082(9)(d), Florida Statutes (2001). We affirm.

With regard to the verdict form used, while we continue to stress that separate jury findings for enhancements and reclas-sifications are by far the clearest means to convey the jury’s intention, we are unable to say that the form used in the present case violates the requirements of State v. Hargrove, 694 So.2d 729 (Fla.1997). See also Bass v. State, 739 So.2d 1243 (Fla. 5th DCA 1999). Mr. Gould’s constitutional attack on section 775.082(9)(d) is without merit in view of the supreme court’s decision in State v. Cotton, 769 So.2d 345 (Fla.2000). See also Rollinson v. State, 778 So.2d 971 (Fla.2001) (rejecting constitutional challenges to prison releasee reof-fender act); Grant v. State, 770 So.2d 655 (Fla.2000) (rejecting ex post facto challenge to the act, and holding that the act violates neither the single subject rule for legislation nor principals of equal protection); McKnight v. State, 769 So.2d 1039 (Fla.2000) (rejecting McKnight’s due process challenge to prison releasee reoffen-der act); Ellis v. State, 762 So.2d 912 (Fla.2000) (prison releasee reoffender act does not violate separation of powers).

AFFIRMED.

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


text:
    John Christopher STABILE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3901.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    John Christopher Stabile, Raiford, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order denying his motion for post-conviction relief made pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm the order without comment on all issues except one — whether the trial court erred in summarily denying ground three of Appellant’s motion. On this issue, we reverse and remand with instructions that a hearing be conducted or that the trial court attach to any summary order denying relief those portions of the record that conclusively refute the claim. Oliver v. State, 691 So.2d 1126 (Fla. 1st DCA 1997).

AFFIRMED in part; REVERSED in part; REMANDED.

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


text:
    Tyrone DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1952.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Tyrone Davis, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Tyrone Davis appeals from the summary denial of his rule 3.850 motion in which he raised nine alleged grounds of ineffective assistance of counsel. We have determined that eight of the grounds are without merit. One, however, in which Mr. Davis alleges that his counsel was ineffective for failing to assure that he was fairly sentenced by objecting to a purportedly vindictive sentence imposed by the trial court, requires reversal and a new sentencing.

Mr. Davis was accused of robbery with a firearm while wearing a mask and of third degree grand theft. Immediately prior to his trial, and while a jury was waiting to be seated, the following colloquy occurred between the appellant, the trial judge (who was not the same judge who denied the rule 3.850 motion), the prosecutor and defense counsel:

Defense Counsel: Your Honor, Mr. Davis wants a trial.
The Court: Trial? All right.
Defense Counsel: Could you just put on the record before he leaves what you offered?
The Court: Yes, sir.... Mr. Davis, I understand that you do want to go forward with a trial in this case.
Defendant: Yes, sir.
The Court: I want to make sure you understand that you are facing the possibility of 30 years in state prison. You have a confession in this case, as I understand it, admitting to your involvement in this robbery.
There is a very real possibility of being sentenced to 30 years in state prison, if you are convicted. Are you—
Prosecutor: Judge, this is a life felony.
Defense Counsel: It is.
The Court: It is punishable by life?
Defense Counsel: Yes, sir.
The Court: So you do face the very real possibility of being sentenced to the rest of your life in state prison, if you are, in fact, convicted at trial on this crime that you’ve apparently already admitted to being involved with.
If you wish to have a trial, of course, that’s your right; and we’ll schedule you for trial.
Your counsel wants me to place on the record, so that it does not come back against him later, that your were, in fact, offered a four-and-one-half-year state prison sentence and that you declined that in favor of a trial. Is that true?
Defendant: Yes, sir.
The Court: All right. We will go to trial on your case.
* * *
This offer is no longer oyen, Mr. Davis. After today, this offer is behind you. You are looking at life in prison upon conviction.
That’s all.

Mr. Davis was convicted of both robbery and grand theft, and was sentenced to serve fifteen years in state prison. The only reasons given by the trial judge for imposing the substantially harsher sentence than was offered in exchange for a guilty plea was that the defendant had “thwarted the efforts of the State,” apparently by giving inconsistent statements. This court affirmed the robbery conviction, but reversed the grand theft conviction on double jeopardy grounds. Mr. Davis was subsequently resentenced by the same judge to serve fifteen years in state prison for the robbery alone. We affirmed the amended judgment and sentencing. The issue of whether Mr. Davis was the subject of a vindictive sentence, however, has not been previously considered by this court.

In State v. Warner, 762 So.2d 507 (Fla.2000), the supreme court authorized certain judicial participation in the plea bargaining process within rather confined limits. The first restriction placed on trial judges is that they may not initiate the plea dialogue. The second is that the judge may neither state nor imply “alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Warner, 762 So.2d at 513-514. That is to say, judges must not state or imply that the sentence might vary depending on whether the defendant chooses to exercise his or her right to trial by jury. See also Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003). Additionally, the supreme court required that all plea negotiations involving the trial judge be recorded.

The high court readdressed the issue in Wilson v. State, 845 So.2d 142 (Fla.2003). The supreme court there declined to adopt a presumption of vindictiveness to be applied in all cases in which a judge participates in plea negotiations, and instead concluded that a “totality of circumstances” review is more appropriate to determine if a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations with the court. Wilson, 845 So.2d at 156. See also Vondervor v. State, 847 So.2d 610 (Fla. 5th DCA 2003). The Wilson court held, further, that:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. (Citation omitted). The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Wilson, 845 So.2d at 156.

Upon consideration of the factors outlined in Wilson, we have concluded after considering the totality of the circumstances that Mr. Davis is entitled to be resentenced by a different judge. It is clear that the 15 year sentence imposed is far greater than the year plea offer. We note that the trial judge appears to have initiated the original plea discussion because the parties refer to the offer as emanating from the judge, and the judge personally withdrew the offer after it was not accepted. It appears, as well, that the judge was threatening a far harsher sentence should the defendant exercise his right to a jury trial and be convicted. Finally, the comments of the judge in justification of the increased sentence do not convince us that the sentence was imposed free of the underlying threat to punish the defendant for going to trial.

Accordingly, we reverse for a new sentencing hearing before a different trial judge. The new judge may well determine that fifteen years in state prison is a fair sentence for Mr. Davis, given the eircum-stances of the crime, Mr. Davis’s criminal history, and all other factors normally considered during sentencing. Without a new sentencing, however, we cannot be assured that Mr. Davis has been accorded his due process rights.

REVERSED.

PLEUS and PALMER, JJ., concur.

      . Davis v. State, 775 So.2d 427 (Fla. 5th DCA 2001).

      . Davis v. State, 806 So.2d 518 (Fla. 5th DCA 2001).


text:
    George Lee VON WALDNER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2909.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Hal Uhrig, The Defense Group, Alta-monte Springs, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, J.

George Lee Von Waldner (“defendant”), claiming that his right to a speedy trial was violated, seeks a writ prohibiting the trial court from proceeding with his criminal trial. We grant the writ and direct the trial court to discharge the defendant.

On March 21, 2002, the defendant was arrested on a charge of aggravated assault with a firearm. Pursuant to Florida Rule Criminal Procedure 3.191(a), absent a waiver or an extension of speedy trial, the defendant should have been brought to trial no later than September 12, 2002, one hundred seventy-five days after his arrest. After the State filed an information, the defendant’s attorney filed a written plea of not guilty and a notice of intent to participate in discovery on June 4, 2002. As a result, the State was obliged to serve its written discovery response no later than June 19, 2002. See Fla. R.Crim. P. 3.220(b). Inexplicably, the State’s response to the defendant’s discovery request was not served until September 13, 2002, one day after the expiration of the speedy trial period. At a pretrial conference on September 17, 2002, defense counsel advised the court of the speedy trial issue and the delay in obtaining discovery from the State. Because of the late discovery, the defendant moved to continue the trial, but asked the court to “charge” the continuance to the State. The court agreed to continue the case, but withheld ruling on who to charge the continuance to until it conducted a Richardson hearing at a later date.

On September 30, 2002, the defendant’s attorney filed a notice of expiration of speedy trial pursuant to Rule 3.191(h), and, as required, the court conducted a hearing on October 4, 2002. At that hearing, the court set the case for trial on October 14, 2002, the last day of the ten-day recapture window under Rule 3.191(p)(3). At the same time, the court conducted a Richardson hearing, and concluded that the State had committed a discovery violation, albeit inadvertently, and that the State’s discovery violation had caused substantial procedural prejudice to the defendant’s ability to prepare for trial. In an effort to salvage the State’s rapidly sinking ship, the court then said:

All right. Well, this is what my ruling is. Although the State ordinarily doesn’t have an obligation to get witnesses in for deposition, Mr. Uhrig (defense counsel), go ahead and schedule depositions between now and the trial date. If you can’t get a room for depositions or if you can’t get the witnesses in for deposition, then you ask me for a continuance of the trial. And you should assume that unless I hear something pretty astonishing, I’m going to grant the continuance and charge it to the State of Florida. And we won’t — at which point, we will not have gotten the case to trial within the direction — the requirements of the Rule, at that point I’ll dismiss it for — discharge him on speedy trial. But I’m going to give them one last gasp.

The defendant’s counsel immediately undertook to depose all five of the category “A” witnesses listed by the State. Despite defense counsel’s best efforts, only one of the five witnesses appeared for deposition prior to the scheduled trial date. When the matter came up for trial on October 14, 2002, the court agreed to the defendant’s request to continue the case, but refused to “charge” it to the State, despite its earlier views to the contrary.

On proper demand, the State must furnish discovery to a defendant within sufficient time to allow the defendant to prepare for trial without forfeiting his right to a speedy trial. “If material discovery is not furnished in sufficient time for the defendant to prepare for trial before the speedy trial time expires, the court may continue the case and charge it to the state even if it results in a later dismissal for violation of the speedy trial rule.” Staveley v. State, 744 So.2d 1051, 1053 (Fla. 5th DCA 1999). Ordinarily, a defendant is not entitled to a discharge under the speedy trial rule even though the defendant is not tried within the relevant trial period, if, at any time during the period, he or she moves for a continuance of the trial date and the motion is granted. Stridiron v. State, 672 So.2d 871, 872 (Fla. 3d DCA 1996). But here, the defendant moved for a continuance only after the speedy trial period had already run, not before. The general rule does not apply when, as here, the defendant is not ready for trial because of substantial discovery violations by the State which materially impede the defense’s preparation. Colby v. McNeill, 595 So.2d 115, 117 (Fla. 3d DCA 1992).

Here, the State’s substantial discovery violation resulted in cognizable prejudice to the defendant, which was uncorrectable within the speedy trial time. The State’s late disclosure, after the speedy trial time had run, was both procedurally deficient and inherently prejudicial. Because the trial was not held within the requisite period, through no fault of the defendant, the defendant is entitled to a discharge. See Alvarez v. State, 729 So.2d 472, 473 (Fla. 3d DCA 1999).

Accordingly, the petition for writ of prohibition is granted, and the trial court is directed to discharge the defendant.

PLEUS and MONACO, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Elvis HARTLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3526.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Elvis Hartley, Sanderson, pro se.
    No Appearance for Respondent.
   ORFINGER, J.

Elvis Hartley, although petitioning for a writ of habeas corpus, actually seeks permission to file a belated motion for post-conviction relief pursuant to Florida Rule Criminal Procedure 3.850. Hartley’s underlying conviction was affirmed in 1996, see Hartley v. State, 679 So.2d 787 (Fla. 5th DCA 1996), and the time to file a timely Rule 3.850 motion has long passed. See Fla. R.Crim. P. 3.850(b).

To obtain permission to file a belated motion for postconviction relief, Hartley should file a Rule 3.850 motion in the trial court, arguing whatever grounds he believes may be available to avoid the two-year time limitation. If his motion is denied as untimely, he can then appeal that decision to this court. Habeas corpus cannot provide the relief Hartley requests.

Accordingly, we deny Hartley’s petition for a writ of habeas corpus without prejudice to seek appropriate relief in the trial court.

PETITION DENIED.

SHARP, W. and PLEUS, JJ„ concur.


text:
    Leonel BAYAS, Petitioner, v. SOUTH FLORIDA PLASTERING OF DADE COUNTY and Aries Insurance Company, Respondents.
    No. 1D03-3308.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    William F. Souza, North Miami, Attorney for Petitioner.
    Rand S. Lieber of Perez, Goran & Rodriguez, P.A., Coral Gables, Attorney for Respondents.
   PER CURIAM.

Petition for writ of certiorari is hereby DENIED.

BOOTH, BENTON and LEWIS, JJ„ concur.


author: VAN NORTWICK, J.

text:
    WHITE CONSTRUCTION COMPANY, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D02-2267.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.

      Susan S. Oosting and R. Thomas Roberts, Jacksonville, for Appellant.
    Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for Appellee.
   CORRECTED OPINION

VAN NORTWICK, J.

White Construction Company (White) appeals a final order of the State Arbitration Board (the Board) denying White’s request to arbitrate a dispute with the Florida Department of Transportation (DOT) on the grounds that the Board lacked jurisdiction because White faded to file its request for arbitration within 820 days after acceptance of the work as required by the terms of the contract between White and the DOT. We agree that under the terms of contract and DOT specifications incorporated therein the 820-day filing requirement is a condition precedent to arbitration and, thus, we affirm.

Statutory Framework

Section 337.185(1), Florida Statutes (1999), creates the Board and establishes a structure for the resolution of claims arising out of construction contracts with the DOT. Under this statute, the appropriate jurisdiction for the claim is dependent upon the amount of the claim. Contractual claims in an amount up to $250,000 per contract are required to be arbitrated by the Board. Contractual claims greater than $250,000 per contract may be adjudicated either in circuit court or before the Board. Claims up to $500,000 per contract may be arbitrated by the Board at the option of the claimant, while claims up to $1 million per contract may be arbitrated by the Board upon the agreement of the parties. Further, either DOT or the contractor may request that the claim be submitted to “binding private arbitration.” “A court of law may not consider the settlement of such a claim until the process established by this section has been exhausted.” Id. The 2002 Legislature amended section 337.185, adding a sentence to subsection (3) which requires arbitration requests to be made to the Board within 820 days after final acceptance of the work. Ch.2002-20, § 13 at 504-05, Laws of Fla.

Section 337.185 is silent as to whether the circuit court retains jurisdiction when, as here, an action is filed in circuit court for a claim in excess of $250,000, but the damages claimed are later reduced to an amount less than $250,000. White argues, and we agree, that, if the original jurisdictional amount of the claim is determined to have been filed in good faith, the circuit court will retain jurisdiction even when the actual damages are later shown to be less than $250,000. See Becker v. Re/Max Horizons Realty, Inc., 819 So.2d 887 (Fla. 1st DCA 2002); Crown Bank v. U.S. Mortgage Network Corp., 705 So.2d 100 (Fla. 5th DCA 1998); Norris v. Southern Bell Telephone and Telegraph Co., 324 So.2d 108 (Fla. 3d DCA 1975); Castellano v. Bader Bros. Van Lines, Inc., 208 So.2d 842 (Fla. 3d DCA 1968); Spencer v. Florida-Georgia Tractor Co., 114 So.2d 466 (Fla. 3d DCA 1959). To hold otherwise would require prudent parties to file a claim with good faith damages in excess of $250,000 both in the circuit court and before the Board, if there was a risk that the damages may be reduced to an amount less than $250,000. We cannot read section 337.185 to intend such a costly and inefficient dual procedure. See, e.g., National Neighbors, Inc. v. United States, 839 F.2d 1539 (D.C.Cir.1988)(Contractor filed complaint in Claims Court while identical claim was pending in the Board of Contract Appeals. The Claims Court dismissed the complaint as premature, but the Court of Appeals held that the dismissal was premature, because the Board had not determined whether the contractor’s appeal was timely filed and, accordingly, whether it had jurisdiction, and, therefore, the Claims Court proceeding was not ripe for dismissal).

With respect to actions in court, section 337.19 provides, in pertinent part:

(1) Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement....
(2) Suits by and against the department under this section shall be commenced within 820 days of the final acceptance of the work.

Background

White and DOT entered into a contract for improvements to State Road 10 in Oka-loosa County. The parties agree that the contract incorporated by reference various standard DOT specifications. These specifications included Supplemental Specifications to Section 9-9(a) of the 1991 Standard Specifications for Road and Bridge Construction (1994) which provides, in pertinent part, that requests for arbitration “be commenced within 820 calendar days from and after the date of final acceptance of the work done and that failure to file a formal claim within this period constitutes full acceptance.”

Final acceptance of the project by DOT was issued on April 29, 1999. On July 16, 2001, White filed suit against DOT in Leon County Circuit Court for breach of contract claiming damages of $2,065,387.81. Several months later, White determined that the damages on this project were substantially less, and reduced its claim to $201,946.58. White moved the trial court to stay the court proceedings and to transfer the action to the Board. The trial court stayed the proceeding before it to allow White to request arbitration, but did not order the action to be transferred. White filed its request for arbitration with the Board on March 21, 2002.

DOT opposed the arbitration request arguing that the claim was barred because it was filed beyond the 820-day time limitation in section 337.19, Florida Statutes (1999). In denying arbitration, however, the Board relied upon neither section 337.185(1) nor section 337.19. Instead, the Board relied upon the specifications incorporated into the parties’ contract. The Board explained that the contract was:

administered under The Standard Specifications for Road and Bridge Construction. Section 9-9 of those specifications states claims submitted to the State Arbitration Board must be filed within 820 days after acceptance of the work. In no way does this specification suggest the claim may be submitted to another jurisdiction and then returned to the Arbitration Board at a time after the 820 days.

White then filed this appeal seeking review of the Board’s decision.

Analysis

Many of the issues raised here by the DOT have been addressed and resolved by this court’s recent opinion in Hypower, Inc. v. State Department of Transportation, 839 So.2d 856 (Fla. 1st DCA 2003). The Hypower court rejected DOT’s contention that the 2002 amendments to section 337.185 applied retroactively to bar Hypower’s arbitration request, because to give such a retroactive application to the statute would impair Hypower’s vested rights. Id. at 857. In addition, the Hypower court rejected DOT’S argument that section 337.19 precludes any arbitration action against DOT filed after the 820-day period provided for in section 337.19(2). This court explained in Hypower:

[S]ection 337.19 is not applicable to the instant case, because it relates only to lawsuits and is completely unrelated to section 337.185, Florida Statutes, which sets forth the entire arbitration scheme and establishes the Board.

Id.

Similarly, we reject DOT’s argument that, because the state only agreed to waive sovereign immunity on the condition precedent that suit be brought within 820 days, section 337.19 should be interpreted as a limited sovereign immunity statute. See Department of Transportation v. White Construction Company, Inc., 452 So.2d 33 (Fla. 1st DCA 1984). While such an interpretation may have been correct before the decision in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4 (Fla.1984), the argument no longer has any continuing validity. Under Pan-Am, the state has been deemed to waive sovereign immunity for suits alleging breach of an express contract with the state. The waiver applies to DOT. The time limit in section 337.19(2) is solely a limitations period. See Hypower, 839 So.2d at 857.

Turning to the central issue presented here, whether the parties’ contract barred an arbitration claim after 820 days, as a threshold matter we hold that it was the Board’s prerogative to decide this issue. See Department of Transportation v. MacAsphalt, Inc., 429 So.2d 1281, 1283 (Fla. 1st DCA 1983)(ruling that the Arbitration Board has the authority to determine the proper interpretation and application of contract provisions); CED Construction, Inc. v. Kaiser-Taulbee As-socs., Inc., .816. So.2d 813, 814 (Fla. 5th DCA 2002)(“The issue of whether the demand for arbitration was timely is a question of fact to be decided by arbitration, not the trial court.”); compare Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002)(holding interpretation of NASD arbitration time limit rule was a matter presumptively for the arbitrator). On the merits of this issue, while this particular question has not been decided in Florida, courts in other jurisdictions have held that, where the parties have a contract which provides a specific time limit for requesting arbitration, compliance with that contract provision is required prior to pursuing a claim for arbitration. See Platt Pacific, Inc. v. Andelson, 6 Cal.4th 307, 24 Cal.Rptr.2d 597, 862 P.2d 158 (1993); Broadway-Fortieth St. Corp. v. President and Directors of Manhattan Co., 296 N.Y. 165, 71 N.E.2d 451 (1947); Application of Trimount Clothing Co., Inc., 112 N.Y.S.2d 814 (1952); Dickens v. Pennsylvania Turnpike Commission, 351 Pa. 252, 40 A.2d 421 (1945); see also E.L. Kellett, Annot., Delay in Asserting Contractual Right to Arbitration as Precluding Enforcement Thereof, 25 A.L.R. 3d 1171 (1969). As the California Supreme Court explained in Andelson:

[A] contractual requirement that a party’s demand for arbitration, must be made within a certain time is a condition precedent to the right to arbitration. In the absence of a legal excuse or subsequent modification of the parties’ agreement, the failure to submit the dispute to arbitration within the agreed time precludes judicial enforcement of the right to arbitrate.

Andelson, 24 Cal.Rptr.2d 597, 862 P.2d at 167. We agree with the reasoning of the Andelson court and affirm the Board’s ruling that appellant’s request for arbitration is time-barred because it was filed beyond the 820 days provided for in the parties’ contract.

Further, we reject White’s arguments that the 820-day limitation period should be deemed tolled or estopped under the circumstances of this case. First, White submits that the concept of equitable tolling should apply and that, as a result, this court should remand to the Board for a determination of its factual applicability. In Machules v. Department of Administration, 523 So.2d 1132, 1134 (Fla.1988), the Florida Supreme Court explained that equitable tolling “has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” White has not alleged that it has been misled or prevented from asserting its rights and has cited no authority for the proposition that, absent fraudulent or misleading conduct by another party to the contract, the concept of equitable tolling applies to a contractual provision setting forth a time period within which a claim for arbitration must be filed. Compare Ohio Co. v. Nemecek, 98 F.3d 234 (6th Cir.1996)(holding that six-year period for commencing arbitration proceeding, set forth in New York Stock Exchange rule 603, was not subject to equitable tolling); see also Peggy Rose Revocable Trust v. Eppich, 640 N.W.2d 601 (Minn.2002)(declining to disturb court of appeals decision that equitable tolling did not apply to contract’s arbitration provision, but holding that 18-month limitations period for requesting arbitration in real estate contract was not reasonable as to the buyers’ claim of fraud).

Next, White argues that the case on appeal is governed by Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001), a decision applying the doctrine of equitable estoppel to an action filed outside of the applicable statute of limitations. However, equitable estoppel does not apply here, because White’s failure to timely request arbitration is not attributable to DOT’S wrongdoing. Id. at 1076-77; Florida Department of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla.2002).

Finally, White contends that its timely filed lawsuit in circuit court can be transferred by the trial court to the Board, because its timely filed claim subsequently came within the monetary limits of section 337.185(1). Of course, Florida Rule of Civil Procedure 1.060 allows the circuit court to transfer a case within the state court system to any court in the same county that has jurisdiction, or, in some circumstances, to a court in another county. This rule does not address, however, whether the circuit court has the authority to transfer a case to a board or agency such as the State Arbitration Board. Nonetheless, we do not decide this issue, because the only order on appeal is the ruling of the Board, not any order of the circuit court.

In conclusion, because White did not timely file its claim for arbitration under the terms of its contract with DOT, the Board’s final order is AFFIRMED. The parties will now return to circuit court where White will have the opportunity to demonstrate that, when it sought jurisdiction in the circuit court, the jurisdictional amount claimed was put into controversy in good faith.

POLSTON, J. and SMITH, LARRY G„ Senior Judge, concur.


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    Theresa Candy SLUDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1776.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Nancy A. Daniels, Public Defender, and Fred Parker Bingham, II, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003).

BARFIELD, ALLEN and DAVIS, JJ., concur.


author: KAHN, J.

text:
    Glenn Christopher GRIFFITH, Appellant, v. Patricia Y. GRIFFITH, Appellee.
    No. 1D02-3229.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.

      Crystal Collins Spencer of Emanuel, Sheppard & Condon, Pensacola, for Appellant.
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   KAHN, J.

In this case, the former husband, Glenn Griffith, seeks review of a final judgment of dissolution entered by the trial court that denied the husband’s motion to enforce a separation and property settlement agreement and went on to forge new child support provisions contrary to those included by the parties in their earlier agreement. The court also set aside the alimony provisions agreed upon by the parties. Because the order on review fails to set forth any sufficient cause to abrogate the parties’ separation agreement, we must reverse and instruct the trial court to approve the agreement.

Although the relative financial situations of this husband and wife are important, the exact details are not. Appellee, Patricia Griffith, a successful medical doctor, earned an average salary in the three years before the dissolution of over twenty times that earned by the former husband. Over the course of their twelve-year marriage, the parties enjoyed a very comfortable lifestyle, commensurate with Dr. Griffith’s professional success. Early in the marriage, the parties agreed that the husband would attend to the care and needs of the children rather than advancing his own earning ability.

Dr. Griffith filed a petition for dissolution in early 2000. During a second mediation session in January 2001, the parties reached an agreement as to alimony, child support, and custody. Again, although the exact numbers are not material, we note that the total financial obligations payable by Dr. Griffith to Mr. Griffith under the agreement are substantial. The parties agreed to joint custody of their three children, with neither designated a primary custodial parent. Dr. Griffith’s attorney drafted a written document entitled “Separation and Property Settlement Agreement” to memorialize the settlement. Following execution by both parties, the lawyers filed the agreement with the court.

The matter then came on for an uncontested final hearing. At that hearing, Dr. Griffith apparently told the judge she was not sure if she could comply with the settlement agreement. The court declined to grant final judgment, prompting the husband to seek temporary support and also to file the motion to enforce the settlement agreement. When these matters came on for hearing, the trial court granted temporary support to Mr. Griffith, but again refused to enter a final judgment, concluding that an evidentiary hearing would be necessary to determine if the agreement was in the best interest of the minor children. The court then conducted a series of evidentiary hearings during the summer of 2002, after which it entered the order on appeal.

In the final judgment the trial court modified the parties’ agreed-upon, provisions for child support and rehabilitative alimony. The trial judge reasoned, “the court has' not only the discretion and the prerogative, but a duty to scrutinize whether those provisions are in the best interest of the minor children.” Based upon Dr. Griffith’s testimony, the trial court determined that Dr. Griffith’s previous income had resulted from her working in excess of forty hours a week and that Dr. Griffith would prefer to limit her professional week to forty hours to allow her time with the children. The court also focused upon a lawsuit pending against the wife’s medical practice, acknowledging that although Dr. Griffith knew about the suit at the time she signed the agreement, she could not “knowingly perceive the outcome of the conclusion of the lawsuit.” The court then refashioned Dr. Griffith’s financial obligations based upon an exhibit presented by Dr. Griffith’s office manager, projecting her income for the rest of 2003, as opposed to the average earnings from the years previous to the settlement agreement, which the court characterized as “aberrations.” Despite the determination that the wife’s previous earnings had been an aberration, the court refused to allow the husband to present information gleaned from the wife’s payroll records concerning her actual 2002 income. The court made no findings as to the wife’s actual earnings as of the date of the last hearing.

On appeal, Mr. Griffith challenges several rulings of the trial court. We take, as the primary challenges, the trial court’s refusal to uphold the child support and alimony provisions of the settlement agreement. Because we reverse on these issues, we do not reach the two issues raised by Mr. Griffith concerning the trial court’s failure to allow evidence of Dr. Griffith’s current income and the trial court’s admission of certain business records purporting to project Dr. Griffith’s future income. Finally,- because the effect of our order will be to reinstate the settlement agreement which provided that each party would assume his or her attorney’s fees and costs, we do not disturb the trial court’s failure to require the wife to be responsible for the husband’s attorney’s fees and costs.

In analyzing the trial court’s refusal to enforce the child support and alimony provisions of the agreement, we must look first to the judge’s conclusion that he had an obligation to scrutinize whether those provisions were in the best interest of the minor children. Apparently, and in short, the trial judge concluded that the minor children will be better served if then-mother operated under a more abbreviated work schedule. This led the trial court to come up with a projected income figure for Dr. Griffith from which he reduced her child support obligation. The court also revisited the agreed-upon payments of rehabilitative- alimony to Mr. Griffith.

Appellant does not contest the general rule in Florida that settlement provisions concerning child support, custody, and visitation must be reviewed and approved by the trial court as being in the best interest of the children. See Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996). This rule is based upon the concern that parents should not be allowed to bargain away valuable rights of minor children for reasons unrelated to the best interest of the children. Nevertheless, Florida respects the rights of parties to a dissolution to make their own agreement. As this court stated some years ago:

Separation agreements executed by husband and wife prior to divorce usually provide for payment to the wife of support or alimony; for support and custody of children; and for settlement of property rights existing between the parties. When such agreements are fairly entered into and are not tainted by fraud, overreaching or concealment, they will be respected by the courts.

Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958).

Unescapable here is the fact that the trial court reduced Dr. Griffith’s child support obligation upon the premise that, by working less, Dr. Griffith could spend more time with the children. The record, however, contains absolutely no evidence that Dr. Griffith has neglected her children or has failed to spend appropriate time with them. The action of the court was based upon facts the parties certainly knew, or should have known, at the time of the settlement agreement, and therefore amounted to an unjustified revisiting of the parties’ contract. Although we recognize the trial court’s discretion to approve matters involving custody, visitation, and support, our scrutiny of the present matter does not suggest the existence of any sufficient evidence to support the trial court’s order disdaining the settlement and reducing Dr. Griffith’s child support obligation.

We must also disapprove the trial court’s failure to enforce the provisions concerning rehabilitative alimony. The agreement in question here provides, in part, with our emphasis supplied:

WHEREAS, in view of the parties’ intentions to live separate and apart from each other permanently, the parties having reached an agreement through mediation with certified family law mediator Gary Work, the parties desire to settle equitably all matters of child custody, child support, alimony, division of property, and all other claims each may have against the other arising from the marital relationship; and
WHEREAS, the parties hereto have been fully, separately, and independently apprised and advised of their respective legal rights, remedies, privileges, and obligations arising out of the marriage relation and otherwise, and each having, in addition thereto, made independent inquiry and investigation with respect to all of the same, and each having been fully informed of the other’s assets, property, holdings, income and prospects; and
WHEREAS, the parties hereto each warrant and represent to the other that they, and each of them, fully understand all of the terms, covenants, conditions, provisions and obligations incumbent upon each of them by virtue of this Agreement to be performed or contemplated by each of them hereunder, and each believes the same to be fair, reasonable, and to his or her respective individual best interest.
20. The parties acknowledge that they are entering into this agreement freely and voluntarily; that they have read each page of the agreement carefully before signing same; that they have ascertained and weighed all the facts and circumstances likely to influence their judgment herein; that they have sought and obtained legal advice independently of each other; that they have been duly apprised of their respective legal rights; that all the provisions hereof, as well as all questions are clearly understood and both parties assent to all provisions herein.

One could hardly overstate the definitive quality of these acknowledgments, particularly between very well-informed persons such as these parties, and particularly in the context of a mediation settlement agreement reached under the auspices of a certified family law mediator and reduced to writing by appellant’s attorney.

Florida courts do not take lightly agreements made by husband and wife concerning spousal support. “A marital settlement agreement as to alimony or property rights which is entered before the dissolution of marriage is binding upon the parties.” Dowie v. Dowie, 668 So.2d 290, 292 (Fla. 1st DCA 1996). The present order sets aside the alimony provisions without any indication that such provisions were involuntary or the product of fraud. Such an action is at odds with the well-established policy in Florida that settlement agreements are highly favored in the law. See Dorson v. Dotson, 393 So.2d 632, 633 (Fla. 4th DCA 1981). As with the child support provisions, we can find no sufficient reason to uphold the trial court’s action in setting aside the alimony provisions.

As the trial judge apparently felt he had a virtually free hand to set aside the settlement agreement because the parties had minor children, we review briefly the law concerning marital settlement agreements. First, the construction of such settlement agreements is subject to the same rules of law as any other contract. See Zern v. Zern, 737 So.2d 631, 633 (Fla. 1st DCA 1999). Next, a trial court should follow the stipulations entered into by the parties, which are generally binding on the parties and the court. See Rhoden v. Rhoden, 538 So.2d 1274, 1275 (Fla. 1st DCA 1988). Finally, mediation and settlement of family law disputes is highly favored in Florida law. The Florida Family Law Rules of Procedure provide for mediation of all contested family matters, except as provided by law, and also provide for expedited mediation of family issues. See Fla. Fam. L.R.P. 12.740(b). Moreover, once a mediation agreement is reduced to writing, as was the case here, “[ajbsent a timely written objection, the agreement is presumed to be approved by counsel.... ” Fla. Fam. L.R.P. 12.740(f)(1). The standard for disregarding a settlement agreement between the parties is high. As the Florida Supreme Court has held:

[T]he fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement. The critical test in determining the validity of marital agreements is whether there was fraud or overreaching on one side, or, assuming unreasonableness, whether the challenging spouse did not have adequate knowledge of the marital property and income of the parties at the time the agreement was reached.... If an agreement that is unreasonable is freely entered into, it is enforceable.

Casto v. Casto, 508 So.2d 330, 334 (Fla.1987).

Of note here, the sole reason relied upon by the trial court for disregarding the settlement agreement was Dr. Griffith’s claim of wanting to reduce her professional hours. Although Dr. Griffith initially brought up a law suit pending against her practice, by the time the dissolution was finalized, this other legal matter had been resolved favorably to Dr. Griffith. Apprised of these facts, the trial court failed to follow the law concerning enforcement of marital settlement agreements.

As we have previously observed, no valid reason related to the best interest of the children was ever raised to avoid the force and effect of the agreement. Accordingly, the court should have applied the general rule: “The inquiry on a motion to set aside an agreement reached through mediation is limited to whether there was fraud, misrepresentation in discovery, or coercion.” Crupi v. Crupi, 784 So.2d 611, 612 (Fla. 5th DCA 2001). No claim has ever been made in the present case that either side lacked complete and accurate information concerning the personal situation and finances of the other spouse, and the agreement recites the contrary. Once husband and wife “are involved in full fledged litigation over dissolution property and support rights, they are necessarily dealing at arm’s length and without the special fiduciary relationship of unes-tranged marital parties.... [T]here can be no question of the adequacy of knowledge when an adversarial party has had the opportunity of financial discovery under the applicable rules of procedure.” Petracca v. Petracca, 706 So.2d 904, 911-12 (Fla. 4th DCA 1998).

No legal cause exists to support the trial court’s action in disregarding the parties’ settlement agreement concerning spousal and child support. Should either spouse desire relief from this agreement, that spouse would be constrained by the law regarding modification and be held to the requisite showing of substantially changed circumstances. No such showing was ever attempted here and, accordingly, we conclude the settlement agreement must be enforced by the trial court. We therefore REVERSE the order on appeal and REMAND with instructions that the trial court enforce the marital settlement agreement.

WEBSTER and POLSTON, JJ., concur.


text:
    Willie F. JONES, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D03-2262.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Willie F. Jones, pro se, appellant.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, for appellee.
   PER CURIAM.

Willie Jones seeks review of the circuit court’s order denying his petition for writ of habeas corpus, in which he challenged the revocation of his parole. We conclude that the petition contained claims which, if true, might entitle Jones to relief. Accordingly, we conclude, further, that the trial court erred in denying the petition without issuing an order to show cause. Therefore, we reverse the order denying the petition for writ of habeas corpus, and remand to the circuit court for the issuance of an order to show cause directing the Florida Parole Commission to file a response. Following the filing of a response and a reply thereto, the circuit court shall consider the merits of the claims raised by Jones.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER and BROWNING, JJ, concur.


text:
    Richard MARLOWE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-1857.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

These are further proceedings in Marlowe v. State, 797 So.2d 647 (Fla. 3d DCA 2001). When the appeal was initially brought, defendant-appellant Marlowe was represented by counsel who filed an appearance. However, counsel never filed a brief. As this was an appeal from the summary denial of a motion for postconviction relief, the matter was submitted to the panel without briefs. Fla. RApp. P. 9.141(b)(2). This court then issued an af-firmance. 797 So.2d at 647.

Several months thereafter, the defendant requested a belated appeal. He alleged that his counsel had failed to file a brief and had not advised the defendant of this, so that the defendant could file a pro se brief. Further, he alleged that he was not informed of the outcome of the appeal until long after the time for rehearing had run. The State did not dispute these assertions. Accordingly we granted a belated appeal under Rule 9.141(c). The defendant submitted a pro se brief. This court appointed the public defender to address two issues, and the State has filed a response.

After carefully considering the able submissions of the parties, we adhere to the views expressed in our earlier opinion, and again conclude that the denial of the motion for postconviction relief (asserting claims of newly discovered evidence) was correctly denied.

Affirmed.


text:
    Anthony W. DOBSON, Appellants, v. The STATE of Florida, Appellee.
    No. 3D02-2959.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.

      Anthony W. Dobson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

The decision of whether to appoint counsel in a post-conviction proceeding is subject to review under an abuse of discretion standard, see Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979), and finding no such abuse in this case, we affirm.


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    Jorge BARREIRO and Dalia L. Solaya, his wife, Appellants, v. HO'S ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 3D02-3063.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Ginsberg & Schwartz, and Arnold R. Ginsberg, Miami; David J. Halberg, Miami, for appellants.
    Seipp Flick & Kissane, and Surama Suarez, Miami, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

We reverse the summary judgment entered below finding genuine issues of material fact exist regarding improvements to the leased premises and the lessor’s responsibility for those improvements. See Moore v. Morris, 475 So.2d 666 (Fla.1985); Williams v. Florida Realty & Mgmt. Co., 272 So.2d 176 (Fla. 3d DCA1973).

Reversed.


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    Bobbie HOOD, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-856.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Bobbie Hood, Jr., in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

The State properly concedes that the trial court erred by dismissing the defendant’s motion for post-conviction relief based on its finding that it lacked jurisdiction. Therefore, we reverse the order under review and remand to the trial court so that it may review the merits of the defendant’s motion.

Reversed and remanded.