author: KELLY, Judge. KELLY, Judge.

text:
    NEW WORLD COMMUNICATIONS OF TAMPA, INC., d/b/a WTVT-TV, Appellant, v. Jane AKRE, Appellee.
    No. 2D01-529.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
    Order Granting Rehearing and Clarification and Denying Rehearing En Banc and Certification Denied Feb. 25, 2004.

      William E. McDaniels and Thomas G. Hentoff of Williams & • Connolly LLP, Washington, DC, Patricia Fields Anderson, P.A., St. Petersburg, and Gary D. Roberts and Theodore A. Russell of Fox Group Legal Department, Los Ange-les, CA, for Appellant.
    Michael S. Finch, St. Petersburg, and Stuart C. Markman, Robert W. Ritsch, and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Ap-pellee.
    Roy C. Young of Young, vanAssenderp, Varnadoe & Anderson, P.A., Tallahassee, for Amicus Curiae The Florida Chamber of Commerce.
    Robert Corn-Revere and Brad C. Deutsch of Hogan & Hartson, LLP, Washington, DC, for Amicus Curiae Belo Corp., Cox Television, Inc., Gannett Co., Inc., Media General Operations, Inc., and Post-News week Stations, Inc.
   KELLY, Judge.

New World Communications of Tampa, Inc., d/b/a WTVT-TV, a subsidiary of Fox Television, challenges a judgment entered against it for violating Florida’s private sector whistle-blower’s statute, section 448.102, Florida Statutes (Supp.1998). We reverse.

In December 1996, WTVT hired the ap-pellee, Jane Akre, and her husband, Steve Wilson, as a husband-and-wife investigative reporting team. Shortly after Akre and Wilson arrived at WTVT, they began working on a story about the use of synthetic bovine growth hormone (“BGH”) in Florida dairy cattle. Their work on this story led to what could be characterized as an eight-month tug-of-war between the reporters and WTVT’s management and lawyers over the content of the story. Each time the station asked Wilson and Akre to provide supporting documentation for statements in the story or to make change's in the content of the story, the reporters accused the station of attempting to distort the story to favor the manufacturer of BGH.

In September 1997, WTVT notified Akre and Wilson that it was exercising its option to terminate their employment contracts without cause. Akre and Wilson responded in writing to WTVT threatening to file a complaint with the Federal Communications Commission (“FCG”) alleging that the station had “illegally” edited the still unfinished BGH report in violation of an FCC policy .against federally licensed broadcasters deliberately distorting the news. The parties never resolved their differences regarding the content of the story, and consequently, the story never aired.

In April 1998, Akre and Wilson sued WTVT alleging, among other things, claims under the whistle-blower’s statute. Those claims alleged that their terminations had been in retaliation for their resisting WTVT’s attempts to distort or suppress the BGH story and for threatening to report the alleged news distortion to the FCC. Akre also brought claims for declaratory relief and for breach of contract. After a four-week trial, a jury found against Wilson on all of his claims. The trial court directed a verdict against Akre on her breach of contract claim, Akre abandoned her claim for declaratory relief, and the trial court let her whistle-blower claims go to the jury. The jury rejected all of Akre’s claims except her claim that WTVT retaliated against her in response to her threat to disclose the alleged news distortion to the FCC. The jury awarded Akre $425,000 in damages.

While WTVT has raised a number of challenges to the judgment obtained by Akre, we need not address each challenge because we find as a threshold matter that Akre failed to state a claim under the whistle-blower’s statute. The portion of the whistle-blower’s statute pertinent to this appeal prohibits retaliation against employees who have “[disclosed, or threatened to disclose,” employer conduct that “is in violation of’ a law, rule, or regulation. § 448.102(1)(3). The statute defines a “law, rule or regulation” as “in-cludfing] any statute or ... any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4), Fla. Stat. (1997). We agree with WTVT that the FCC’s policy against the intentional falsification of the news — which the FCC has called its “news distortion policy” — does not qualify as the required “law, rule, or regulation” under section 448.102. .

The FCC has never published its news distortion policy as a regulation with definitive elements and defenses. Instead, the FCC has developed the policy through the adjudicatory process in decisions resolving challenges to broadcasters’ licenses. The policy’s roots can be traced to 1949 'when the FCC first expressed its concern regarding deceptive news in very general terms stating that “[a] licensee would be abusing his position as a public trustee of these important means of mass communications were he to withhold from expression over his facilities relevant news of facts concerning a controversy or to slant or distort the news.” See Chad Raphael, The FCC’s Broadcast News Distortion Rules: Regulation by Drooping Eyelid, 6 Comm. L. & Policy 485, 494 (2001) (quoting Editorializing by Broadcast Licensees, 13 F.C.C. 1246,1246 (1949)).

The policy did not begin to take shape, however, until 1969 when the FCC was called upon to investigate complaints regarding news distortion. Raphael at 494. Notably, the FCC did not take the initiative to investigate these complaints, but rather acted only after Congress referred complaints it had received to the FCC. In a series of opinions issued in licensing proceedings between 1969 and 1973, the FCC stated that when considering the status of a broadcaster’s license, it would take into consideration proven instances of “deliberate news distortion,” also called “intentional falsification of the news” or “rigging or slanting the news.” In re CBS Program “H%mger in America”, 20 F.C.C.2d 143, 150-51 (1969). This series of FCC opinions has come to be known as the FCC’s news distortion policy.

Akre argues that the FCC’s policy is a rule as defined by section 120.52(15), Florida Statutes (1997), which provides:

“Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.

Even if we agreed with Akre that the FCC’s news distortion policy was a “rule” as defined by section 120.52(15), her argument overlooks the fact that the whistle-blower’s statute specifically limits the definition of “rule” to an “adopted” rule. § 448.101(4). “This limitation to ‘adopted’ material only appears deliberate, and well serves the public by hinging civil liability upon matters of which due notice, actual or imputed, has been conveyed.” Forrester v. John B. Phipps, Inc., 643 So.2d 1109 (Fla. 1st DCA 1994). We find the legislature’s use of the word “adopted” in the statute to be a limitation on the scope of conduct that will subject an employer to liability under the statute.

It is undisputed that the FCC’s news distortion policy has never been “adopted” as defined by section 120.54, Florida Statutes (1997). In that regard, Akre notes that federal agencies may announce general policies and interpretive principles through the adjudicative process and argues that the fact that “the FCC adopted the news distortion policy through-an adjudicative process does not affect its validity or enforceability as a matter of federal law.” This argument is flawed in two respects. First, federal law recognizes a dichotomy between rulemaking and adjudication; it does not equate the two. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring). Second, while federal agencies may have discretion to formulate policy through the adjudicative process, the same is not true under Florida law. The Florida Legislature has limited state agencies’ discretion to formulate policy through the adjudicative process by requiring agencies to formally adopt each agency statement that fits the definition of a “rule” under section 120.52. See § 120.54. As noted above, the legislature’s use of the word “adopted” in the whistle-blower’s statute was deliberate and was intended to limit the scope of conduct that will subject an employer to liability. This limitation is consistent with the legislature’s requirement that agency statements that fit the definition of a “rule” be formally adopted. Recognizing an uncodi-fied agency policy developed through the adjudicative process as the equivalent of a formally adopted rule is not consistent with this policy, and it would expand the scope of conduct that could subject an employer to liability beyond what Florida’s Legislature could have contemplated when it enacted the whistle-blower’s statute.

Because the FCC’s news distortion policy is not a “law, rule, or regulation” under section 448.102, Akre has failed to state a claim under the whistle-blower’s statute. Accordingly, we reverse the judgment in her favor and remand for entry of a judgment in favor of WTVT.

Reversed and remanded.

CASANUEVA, J., and GREEN, OLIVER L., Senior Judge, Concur.

ORDER ON APPELLEES MOTION FOR REHEARING, MOTION FOR CLARIFICATION, MOTION FOR REHEARING EN BANC, AND MOTION FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE.

KELLY, Judge.

This court entered an order granting appellate attorney’s fees to the appellant, New World Communications of Tampa, Inc., d/b/a WTVT-TV, a subsidiary of Fox Television. Thereafter, the appellee, Jane Akre, sought rehearing, clarification, rehearing en banc, and certification of a question of great public importance. We grant Akre’s requests for rehearing and clarification and deny her requests for rehearing en banc and certification.

WTVT appealed a final judgment entered against it for violating Florida’s private sector whistle-blower’s statute, section 448.102, Florida Statutes (1997). The final judgment was entered pursuant to a jury verdict awarding Akre $425,000 in damages. We reversed after concluding that Akre had failed to state a claim under the whistle-blower’s statute. We also granted WTVT’s motion for appellate attorney’s fees under section 448.104, Florida Statutes (1997), which states, “[a] court may award reasonable attorney’s fees, court costs, and expenses to the prevailing party.”

In her motion for rehearing, Akre argues that because section 448.104 authorizes an award of attorney’s fees to prevailing defendants as well as to prevailing plaintiffs, this court should apply the standard articulated in Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). In Christiansburg, the Court had to determine the proper standard for an award of attorney’s fees to a prevailing defendant in an action brought under Title VII of the Civil Rights Act of 1964. Title VII gives courts discretion to award fees to the prevailing party, as does section 448.104, but it does not give any indication of when a court should award fees to a prevailing plaintiff or a prevailing defendant.

The Christiansburg Court concluded that equitable considerations embodied in Title VII justified applying different standards depending on whether the prevailing party was a plaintiff or a defendant. The Court found that while fees should be awarded to every prevailing plaintiff unless special circumstances would make such an award unjust, fees should only be awarded to a prevailing defendant when the plaintiffs action was “frivolous, unreasonable, or without foundation.” Christiansburg, 434 U.S. at 420.

We do not agree with Akre’s contention that this same standard should apply to an action brought under Florida’s whistle-blower’s statute. We are not persuaded that the reasons cited by the Christians-burg Court for applying different standards to prevailing plaintiffs and defendants apply to cases brought under section 448.103. To the extent that this question has been addressed by other courts, they have likewise concluded that the Chris-tiansburg standard is not applicable to fee awards under section 448.104. See Gamb v. Hilton Hotels Corp., No. 95-466-CIV-ORL-19, 1997 WL 893874 (M.D.Fla. Sept.26, 1997), aff'd, 132 F.3d 46 (11th Cir.1997); McGregor v. Bd. of County Comm’rs, 130 F.R.D. 464 (S.D.Fla.1990), aff'd, 956 F.2d 1017 (11th Cir.1992).

Nevertheless, because section 448.104 is not mandatory, we must consider whether to exercise our discretion and make such an award in this case. Under the circumstances of this appeal, we conclude that WTVT is not entitled to appellate attorney’s fees. Akre came to this court as an appellee defending a final judgment entered in her favor at the conclusion of a jury trial. We do not believe that it is either realistic or good policy to require an appellee who has obtained a favorable jury verdict to abandon it on appeal or risk an award of attorney’s fees if it is reversed.

We reach this conclusion even though the whistle-blower aspect of Akre’s case was without legal merit from its inception. This court has held that because all final judgments have a presumption of correctness, attempting to uphold one is not frivolous. Cf. Dep’t of Highway Safety & Motor Vehicles v. Salter, 710 So.2d 1039 (Fla. 2d DCA 1998). Accordingly, even the lack of legal merit in Akre’s position does not convince us that we should exercise our discretion to award appellate attorney’s fees to WTVT.

We emphasize that we are only considering the issue of a proper exercise of discretion for an award of appellate attorney’s fees. On remand, the trial court will have to make its own determination regarding whether to award trial court attorney’s fees to WTVT as the prevailing party. To be entitled to such an award, however, WTVT does not have to demonstrate that Akre’s suit was frivolous.

No further motions for rehearing will be entertained.

CASANUEVA, J., and GREEN, OLIVER L., SENIOR JUDGE, Concur.

      . We are aware of the Fourth District’s decision in Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002). We have concluded that it is not pertinent to our decision because Salter still represents this district’s position regarding whether defense of a judgment on appeal can ever be considered frivolous. Additionally, we find nothing in Forum that expressly repudiates that principle, which was the law in the Fourth District when Forum was decided. See Coral Springs Roofing Co. v. Campagna, 528 So.2d 557 (Fla. 4th DCA 1988). Rather, the holding in Forum is directed to the proper construction of a 1999 amendment to section 57.105, Florida Statutes, that the Fourth District concluded broadened the circumstances under which a fee award could be made under that statute.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Scott ELLIS, etc., et al., Appellants, v. Kay BURK, Melton E. Broom, et al., Appellees.
    No. 5D03-371.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Rehearing Denied Feb. 27, 2004.

      Richard E. Stadler of Stadler & Harris, P.A., Titusville, and Joseph C. Mellichamp of Carlton Fields, P.A., Tallahassee, for Appellant, Scott Ellis, as Clerk.
    Jerry L. Jester of Burrows & Jester, P.A., Merritt Island, for Appellants, Albert C. Notary and Gene Sterling.
    Jack A. Kirschenbaum of Gray, Harris & Robinson, P.A., Melbourne, for Appel-lees.
    Joe Teague Caruso of Law Offices of Caruso & Swerbilow, P.A., Merritt Island, for Amicus, Jim Ford, Brevard County Property Appraiser.
   PLEUS, J.

This is an appeal from a final judgment entered pursuant to a summary judgment which declares section 5.4 of the Brevard County Home Rule Charter to be inconsistent with Chapters 129 and 200, Florida Statutes, and therefore violative of Article VIII, section 1(g) of the Florida Constitution.

The appeal presents a purely legal question, whether the tax cap provision contained in section 5.4 is inconsistent with Florida law governing the annual consideration and adoption of budgets and millage rates by county commissions. Our review is de novo. See Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126 (Fla.2000).

Under our state constitution and statutory scheme, the power to limit a county commission’s ability to raise revenue for the county’s operating needs by way of ad valorem taxation is effectively and exclusively lodged in the legislature. The trial court correctly concluded that section 5.4 of the Brevard County Charter is unconstitutional as being in conflict with Chapters 129 and 200, Florida Statutes, which set forth the statutory framework by which counties are to establish budgets and millage rates. The able trial judge correctly analyzed this matter in entering summary judgment for the plaintiffs below and we adopt, in pertinent part, his order:

Plaintiffs contend that Section 5.4 of the Brevard County Home Rule Charter conflicts with general law and is therefore unconstitutional. Section 5.4 provides, in relevant part:
Brevard County shall not increase its ad valorem tax revenue for operating funds (exclusive of revenues from new construction and improvements) in any one year by more than three percent (3%) or the percentage change in the Consumer Price Index for the previous year, whichever is less, over the ad valorem revenues in the previous year, without approval of a majority of the electors of the County voting thereon at a general election or special election called for purposes of such approval
This Court finds that its decision is controlled by the decision reached by the Second District Court of Appeal in Charlotte County Board of County Commissioners v. Taylor, 650 So .2d 146 (Fla. 2d DCA 1995).

In Charlotte County, the Second District Court of Appeal found a similar charter provision to conflict with general law and therefore to be unconstitutional. Like Brevard County, Charlotte County is a home rule charter county. In 1992, the voters approved an amendment to the Charlotte County Charter which provided:

The Board of County Commissioners shall not adopt any millage rate which would result in more than three percent (3%) increase in total revenue generated from ad valorem taxes for any year over the total ad valorem taxes for the previous year, nor shall the Board of County Commissioners fail to reduce the millage rate should such action be necessary to ensure that this three percent (3%) limitation takes effect.

Although the wording between the Charlotte County provision and the Bre-vard County provision is not identical, the intent of the two provisions is almost the same.

In finding the Charlotte County provision to be unconstitutional, the Second District Court of Appeal first noted that Article VIII, Section 1(g) of the Florida Constitution provides that counties operating under county charters shall have all powers of local self-government not inconsistent with general law. The Second District Court of Appeal then found that the Charlotte County Charter amendment was inconsistent with Chapters 129 and 200 of the Florida Statutes. Chapter 129, as adopted by the Florida Legislature, establishes a budget system for each county and sets forth how the budget will be prepared, approved, and adopted. It is the county commission which is given the authority to prepare and approve the budget. Chapter 200 provides for the determination and levy of the tax millage. Again, it is the county commission which is given the authority to set the millage rate.

The Second District Court of Appeal found that Chapters 129 and 200 set forth the exclusive statutory scheme for establishing the budget and the resulting millage rate. A charter provision attempting to limit the statutory authority given by the legislature to county commissions in establishing budget and millage rates was therefore found to be unconstitutional as being inconsistent with general law. In striking down the disputed Charlotte County charter provision, the Second District Court of Appeal acknowledged that the county’s voters had approved the amendment. But that Court also noted that a majority of Florida’s voters had voted to approve the Florida Constitution and Charlotte County’s charter was subject to the provisions of the Florida Constitution.

The Plaintiffs’ position is also supported by two other cases and a recent Attorney General’s opinion. In Board of County Commissioners of Dade County v. Wilson, 386 So.2d 556 (Fla.1980), the Florida Supreme Court held that a proposed voter initiative to set a county millage rate for Dade County for the 1980 — 1981 fiscal year at four mills was unconstitutional as being inconsistent with general law. The Court noted that Chapter 200 granted authority to a county’s governing body to set millage rates. Therefore, a county provision which would set the millage rate through an initiative petition process would be inconsistent with Chapter 200 and, accordingly, violative of the Florida constitution. Most significantly, the Supreme Court found that Chapter 200 set forth the exclusive manner by which to set countywide millage rates.

In Board of County Commissioners of Marion County v. McKeever, 436 So.2d 299, (Fla. 5th DCA 1983), the Fifth District Court of Appeal struck down a Marion County ordinance which purported to establish a cap of .25 mills of ad valorem taxes for the county transportation fund for a period of ten (10) years. The Fifth District Court of Appeal found that Chapters 129 and 200 contemplated the annual preparation and adoption of the budget and the setting of millage rates by a county commission. Therefore, one commission could not adopt an ordinance which would limit the authority of a successor commission with respect to the exercise of its taxing power. The Court further stated that such provision would fail even if approved by the voters because it would still conflict with general law and therefore would be unconstitutional. Finally, in Attorney General Opinion 2001-04, the Florida Attorney General’s Office advised the Hillsborough County Board of County Commissioners that it was the Attorney General’s opinion that a county could not “amend its charter to place a cap on the annual increase in the county’s operating budget with the provision that the cap may be waived by an affirmative vote of at least six of the seven members of the board of county commissioners.” After citing to the above-referenced Charlotte County, Dade County, and Marion County cases, the Attorney General’s office stated:

The cases discussed above recognize that the Legislature has specified the manner in which county budgets are to be established and provided the exclusive manner by which countywide millage rates are to be set. Nothing in Chapter 129, Florida Statutes, regarding the establishment of a budget, or in Chapter 200, Florida Statutes, regarding the establishment of a millage rate, provides for a cap on the budget that may be overridden by a super-majority vote of county commissioners. To impose such a cap would appear to be contrary to the scheme established by the Legislature in Chapters 129 and 200 Florida Statutes, which places the discretion and decision-making authority in the board of county commissioners.

We would only add that the provision in section 5.4, providing for a referendum to override the ad valorem revenue cap in the event additional ad valorem revenues are deemed necessary by the county commission, directly violates section 125.01 (l)(r), Florida Statutes, which provides, inter alia, “There shall be no referendum required for the levy by a county of ad valorem taxes.... ”

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . In Florida, a trial court is obligated to follow a decision by an appellate court absent a conflicting decision by the Florida Supreme Court or another appellate court. Pardo v. State, 596 So.2d 665 (Fla.1992). In the present case, there are no Florida supreme court or appellate court decisions which conflict with the Charlotte County decision.


author: PER CURIAM.

text:
    Patrick R. STAVELEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3604.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.
    Rehearing Denied Feb. 25, 2004.
    Steven G. Mason, of Law Offices of Steven G. Mason, Orlando.
    No Appearance for Appellee.
   PER CURIAM.

Defendant, Patrick Staveley [“Stave-ley”], has appealed an order denying his rule 3.800(c) motion to mitigate sentence on the basis that the motion was untimely. An order denying a rule 3.800(c) motion usually is not an appealable order, because the trial court’s ruling is purely discretionary; however, an order denying a rule 3.800(c) motion on the basis of lack of jurisdiction is reviewable by certiorari. Because the trial- court denied Staveley’s motion as untimely, the order is reviewable by ■ certiorari. We accordingly treat Staveley’s appeal as a petition for writ.of certiorari. On the merits, we deny the petition for writ of certiorari because the motion to mitigate was untimely filed.

WRIT DENIED.

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

      . See, e.g., Rector v. State, 852 So.2d 910 (Fla. 1st DCA 2003); Wilson v. State, 846 So.2d 1220 (Fla. 5th DCA 2003); McDonald v. State, 840 So.2d 371 (Fla. 1st DCA 2003); Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

      . See Ward v. State, 854 So.2d 260 (Fla. 1st DCA 2003); Haber v. State, 849 So.2d 1148 (Fla. 5th DCA 20Ó3); Pitts v. State, 837 So.2d 518 (Fla. 1st DCA 2003); Lancaster v. State, 821 So.2d 416 (Fla. 2d DCA 2002).


text:
    Roy CARVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1877.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Rehearing Denied March 1, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Therrien v. State, 859 So,2d 585 (Fla. 1st DCA 2003).

ALLEN, WEBSTER and BENTON, JJ., concur.


author: THOMPSON, J.

text:
    Barry ALVELO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3455.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied Feb. 27, 2004.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

We affirm the convictions for attempted trafficking in heroin, possession of marijuana, and possession of drug paraphernalia.

We agree that the court should not have allowed a police officer to testify that he received a tip that Alvelo was processing and dealing in heroin from his home. The only non-hearsay relevance of this testimony was to explain why the police had focused their attention on Alvelo. In such a case “the better practice is to allow the officer to state that he acted upon a ‘tip’ or ‘information received,’ without going into the details of the accusatory information.” State v. Baird, 572 So.2d 904, 908 (Fla.1990). Nevertheless, based on Alvelo’s admissions to a police officer, his knowledge that the “material” was hidden under the insoles of his visitor’s shoes, and the evidence of drug dealing in the home, we conclude that the error was harmless because it could not have affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

AFFIRMED.

GRIFFIN, J., concurs.

TORPY, J., concurs specially, without opinion.


author: GRIFFIN, J.

text:
    SEMINOLE ENTERTAINMENT, INC., Appellant, v. CITY OF CASSELBERRY, Florida, Appellee.
    No. 5D02-3605.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.
    Rehearing Denied March 11, 2004.
    See also 813 So.2d 186, review denied, 835 So.2d 269, and cert. denied, 123 S.Ct. 2276, 156 L.Ed.2d 130.

      Steven G. Mason, of Law Office of Steven G. Mason, Orlando, and Victor L. Chapman and R. Steven Ruta, of Barrett, Chapman & Ruta, P.A., Orlando, for Appellant.
    Usher L. Brown, Anthony A. Garganese, Erin J. O’Leary, of Brown, Salzman, Weiss & Garganese, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Appellant, Seminole Entertainment, Inc. d/b/a Rachel’s [“Rachel’s”], appeals the summary final judgment entered in favor of the City of Casselberry [“the City”] in its suit for declaratory and injunctive relief attacking the constitutionality of various provisions of ordinances within the code of the City. We affirm in part and reverse in part.

Rachel’s has operated as an adult entertainment establishment within the corporate limits of the City since approximately March 1990. The Seminole County Sheriffs Office with the cooperation of the Orlando Police Department, the Casselberry Police Department, the Metropolitan Bureau of Investigation, and the Orange County Sheriffs Department initiated an undercover investigation of Rachel’s on January 19, 2000. On November 10, 2000, the City issued Rachel’s a notice of revocation of its adult entertainment license alleging that Rachel’s had knowingly violated section 14-92 of the Casselberry Adult Entertainment Code by allowing (1) the use and sale of drugs on its premises, (2) prostitution on its premises, and (3) sexual activity on its premises. Rachel’s filed a challenge to the revocation and requested a hearing. The City held a hearing on the revocation of Rachel’s license, and on January 31, 2001, the City issued to Rachel’s a final notice of revocation of its adult entertainment license for two years. The City allowed Rachel’s to continue to operate its bar and restaurant.

Rachel’s filed a complaint in the circuit court for declaratory judgment and permanent injunction (case # 01-CA-246-16-P) on February 1, 2001. In Count 1, Rachel’s sought a declaratory judgment declaring sections 14-92 and 14-93 (“Adult Entertainment Code”) unconstitutional under Article I, sections 2, 4, and 9 of the Florida Constitution. In count 2, Rachel’s sought an injunction enjoining the City from enforcing the Code or its revocation order against Rachel’s, and directing the City to vacate its order revoking Rachel’s adult entertainment license. In connection with that case, Rachel’s filed a motion for a temporary injunction and sought to have the court (1) require the City to set aside its order revoking Rachel’s adult entertainment license, (2) prohibit the City from enforcing its license revocation order, and (3) forbid the City from enforcing the Adult Entertainment Code against Rachel’s. The trial court denied the motion.

After filing its complaint for declaratory judgment, Rachel’s filed a petition for writ of certiorari in the circuit court seeking to have the court vacate or require the City to vacate its order revoking Rachel’s adult entertainment license. Principally, Rachel’s argued that (1) the City denied Rachel’s its right to a neutral, unbiased fact finder; (2) sections 14-92 and 14-93 and the hearing process denied it substantive and procedural due process; (3) the City unlawfully revoked its license because there was no evidence that the ownership had actual knowledge of, or was culpably negligent in failing to deter, any illegal activity; (4) the City Code, including sections 14-92 and 14-93, constituted an unconstitutional prior restraint because it gave the' City Commission unbridled discretion to revoke a license; (5) 'the City relied upon the wrong standard of review and improperly shifted the burden to Rachel’s to establish that its adult entertainment license should not be permanently revoked; and (6) the Adult Entertainment Code does not provide for prompt judicial review if the City revokes a license, nor does it provide for a stay of the revocation until review by a court.

Rachel’s appealed the trial court’s denial of the temporary injunction to this court. This court reversed because it concluded that Rachel’s had been denied due process. Seminole Entertainment, Inc. v. City of Casselberry, 811 So.2d 693 (Fla. 5th DCA 2001) (“Rachel’s I”). This court concluded, however, that the temporary injunction would only remain in effect until the cer-tiorari' was heard.

On July 17, 2001, the circuit court judge denied Rachel’s petition for writ of certio-rari and affirmed the City Commission’s revocation of Rachel’s license. The court concluded that Rachel’s had failed to demonstrate that (1) the City had denied it procedural due process, (2) the City had not followed the essential requirements of the law, or (3) the findings were not supported by substantial, competent evidence. Rachel’s sought certiorari review of the circuit court’s opinion in this court. On March 22, 2002, this court affirmed the circuit court’s denial of Rachel’s petition in Seminole Entertainment, Inc. v. City of Casselberry, 813 So.2d 186 (Fla. 5th DCA) (“Rachel’s II”), review denied, 835 So.2d 269 (Fla.2002), and cert. denied, 539 U.S. 915, 123 S.Ct. 2276, 156 L.Ed.2d 130 (2003).

On July 2, 2002, Rachel’s filed a motion for final summary judgment in the declaratory judgment action asserting:

1) the Adult Entertainment Code violated due process and constituted an unconstitutional prior restraint;
2) the Adult Entertainment Code constituted an unconstitutional prior restraint because it did not provide for prompt judicial review;
3) the Adult Entertainment Code constituted a prior restraint and violated due process because it prohibited the presentation of protected entertainment and punished the club’s ownership without establishing actual or constructive knowledge;
4) the Adult Entertainment Code violated Article I, section 4 and 9 of the Florida Constitution in that it does not provide the licensee an opportunity to curb or remedy any unlawful activity prior to revoking its license;
5) the hearing process violated substantive and procedural due process because it did not provide any mechanism to apprise the plaintiff of the specific evidence and witnesses used to support revocation;
6) the Adult Entertainment Code did not further a substantial government interest and did not constitute the least-restrictive means to further the City’s interest;
7) the revocation process violated the Florida Constitution in that the burden of proof was by preponderance of the evidence and not clear and convincing evidence;
8) the revocation process did not provide for basic due process and for a fair hearing because the City Commission is the jury and appoints the City Manager who is the prosecutor;
9) the definition of “violation” in the Code does not require a criminal conviction, court process, or adjudication in order for the City to revoke an adult entertainment license.

The City also filed a motion for summary judgment contending that, under this court’s decision in Rachel’s II, the doctrine of res judicata barred Rachel’s from raising issues as to the constitutionality of the Adult Entertainment Code. Further, the City maintained that Rachel’s remedy at law was through a petition for cerbiora'ti, not a declaratory judgment. The trial court agreed and entered a summary final judgment in favor of the City.

In a real sense, the adverse judgment suffered by Rachel’s is a self-inflicted wound. By filing parallel proceedings and raising every conceivable constitutional issue in both cases without discriminating between them, Rachel’s has invited the conclusion that all issues were raised or could have been raised in Rachel’s II. Nevertheless, when an aggrieved party asserts a constitutional challenge to the facial validity of an ordinance, an original declaratory judgment or injunction action in the circuit court is the proper vehicle. Because Rachel’s is attacking the constitutionality of the Adult Entertainment Code, its declaratory judgment action in the circuit court was appropriate. See e.g., First Baptist Church v. Miami-Dade County, 768 So.2d 1114, 1115 n. 1 (Fla. 3d DCA 2000); Nostimo, Inc. v. City of Cleanwater, 594 So.2d 779, 782 (Fla. 2d DCA 1992); Hirt v. Polk County Bd. of County Comm’rs, 578 So.2d 415, 417 (Fla. 2d DCA 1991); City of Melbourne v. Hess Realty Corp., 575 So.2d 774, 775 (Fla. 5th DCA 1991). That Rachel’s could have raised, but did not raise, a given constitutional claim in the certiorari proceeding is not fatal to its entitlement to raise it in its declaratory judgment action.

We agree with the City, however, that Rachel’s may not relitigate in this proceeding the constitutional attacks on the City’s ordinances that it chose to raise and actually did pursue in its appeal of the license revocation decision. These have all been examined and rejected in Rachel’s II and cannot be raised again. These constitutional claims raised by Rachel’s were well within the scope of this court’s analysis of whether the trial court applied the correct law.

On the other hand, among the myriad constitutional complaints Rachel’s has asserted in the action below, there are a few that it chose not to assert in Rachel’s II. Based on our review, this appears to include the claims in paragraphs 29-32 and 40 of the complaint. Accordingly, these constitutional claims are not barred by the prior litigation and to that extent, the trial court erred in entering a summary judgment on them. We express no opinion as to their merit, or lack of merit, however.

AFFIRMED in part; REVERSED in part; and REMANDED.

PLEUS and ORFINGER, JJ., concur.

      . The trial court's reliance on footnote one in the Rachel’s II opinion to conclude otherwise was misplaced. In fact, the footnote observed the distinction between use of certiorari to contest the license revocation and the use of an injunction to prevent enforcement of an (unconstitutional) ordinance. Seminole Entertainment, Inc. v. City of Casselberry, 813 So.2d at 188-89, n. 1.


text:
    Juan Ignacio RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-177.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Juan Ignacio Ramirez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    UNION PLANTERS BANK, Appellant, v. GUARDIANSHIP OF Jean HEFT, Appellee.
    No. 5D03-2330.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.
    Rehearing Denied March 10, 2004.
    John M. Strickland, of Livingston, Patterson & Strickland, P.A., Sarasota, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Union Planters Bank [“the Bank”], appeals an order modifying a trust and appointing co-successor trustees. The Bank urges that the petition on which the order was based was not properly served upon it and, therefore, the court lacked jurisdiction to enter the order. The trial court denied the Bank’s motion to vacate the order on the stated basis that the Bank had submitted itself to jurisdiction, raised no objection to the order, and did not appeal the order once entered.

We have pored over the papers in the Bank’s appendix and simply cannot tell from what we have been given whether this ruling was erroneous. The petition alleges service was made. The Bank’s brief oddly does not directly address the court’s reasoning that the formal notice was waived. There are no affidavits in the record.

However strong our hunch that the Bank may be correct, the burden of demonstrating error is on the appellant, and error has not been demonstrated.

AFFIRMED.

SHARP, W., and MONACO, JJ., concur.

      . Our hunch is reinforced by the fact that no appellee filed a brief.


text:
    Carlton B. HILLARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-33.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    Carlton B. Hillard, Bowling Green, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002).

PETERSON and GRIFFIN, JJ., concur.

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


text:
    Colandro PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3507.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Colandro Peters, Raiford, pro se.
    No appearance for appellee.
   PER CURIAM.

We treat this appeal as a final appeal, and summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a).

GUNTHER, STONE and POLEN, JJ., concur.


text:
    Eddie GRAHAM a/k/a Christa Graham, Appellant, v. Edward BIELUCH, Sheriff of Palm Beach County, Appellee.
    No. 4D04-73.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Eddie Graham a/k/a Christa Graham, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Solomos v. Jenne, 776 So.2d 953 (Fla. 4th DCA 2000).

FARMER, C.J., HAZOURI and MAY, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. V.R., A Child, Appellee.
    No. 4D02-2759.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, J.

The State appeals an order granting the defendant’s motion for discharge. It argues that the trial court misapplied Florida Rule of Juvenile Procedure 8.090 (the juvenile speedy trial rule) to the facts of this case. Based upon this court’s recent en banc decision in C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004), we agree and reverse for reinstatement of the charges against V.R.

REVERSED.

FARMER, C.J., and SHAHOOD, J., concur.

      . We are aware that at the time of the ruling, this court had not issued its opinion in C.D., which receded from case law relied upon by the trial court.


author: PER CURIAM. FARMER, C.J.,

text:
    Lewis V. SWEZY, Petitioner, v. Beverly BART-SWEZY, Respondent.
    No. 4D03-3715.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Michele K. Cummings and Robyn L. Vines of Ruden, McClosky, Smith, Schus-ter & Russell, P.A., Ft. Lauderdale, for petitioner.
    David J. Schottenfeld of David J. Schot-tenfeld, P.A., Plantation, for respondent.
   PER CURIAM.

Lewis Swezy filed a petition for writ of prohibition requesting this court reverse the trial court’s order of referral to a general master. We grant his request.

Lewis Swezy (Husband) and Beverly Bart^Swezy (Wife) were married on August 5, 2001. Wife gave birth to a son two days later. Before they were married, Wife was artificially inseminated. Husband denies that he consented to the artificial insemination and further denies paternity.

Wife filed for dissolution of marriage. In the petition she sought temporary and permanent child support, alleging the child was born “as issue of the marriage.” She then moved for temporary custody and temporary child support. The trial court referred the motions to a general master for a hearing pursuant to Florida Family Law Rule of Procedure 12.490. Husband denied paternity and objected to referring the matter to a general master. The motion for temporary support was set for hearing before a general master. Husband moved to strike the notice of hearing, objecting that paternity has not been established. The trial court denied Husband’s motion and as of yet the trial court has not determined paternity.

Husband argues that a general master has no authority to determine matters objected to by him, and in particular, no authority to determine temporary child support since the trial court has not determined paternity.

A referral to the general master requires the consent of all parties. Rule 12.490(b) provides in part:

(1) No matter shall be heard by a general master without an appropriate order of reference and the consent to the referral of all parties. Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.
(A) A written objection to the referral to a general master must be filed within 10 days of the service of the order of referral.

Prohibition is the proper remedy when the trial court refers a matter to a general master without both parties’ consent. See Taylor v. Taylor, 569 So.2d 1389 (Fla. 4th DCA 1990). In Taylor, the trial court overruled a timely objection to an order referring a motion to compel to a general master. This court treated the appeal as a petition for writ of prohibition and mandamus. This court noted that a party’s consent is required before a hearing can be referred to a general master, granted the petition, and reversed the order of referral. See also Lunger v. Hinck- ley, 572 So.2d 1042 (Fla. 4th DCA 1991) (following Taylor); Novartis Pharm. Corp. v. Carnoto, 798 So.2d 22 (Fla. 4th DCA 2001) (citing Taylor and observing, “[mjandamus lies to compel a trial court to resolve issues without a special master when the trial court has referred such issues to resolution by special master without the consent of both sides to a dispute”).

In the instant case, Husband filed a timely objection to the referral order and as a result, the trial court could not refer this issue to a general master. Husband’s petition for a writ of prohibition is granted.

POLEN and HAZOURI, JJ., concur.

FARMER, C. J., concurs specially with opinion.

FARMER, C.J.,

concurring.

Although I agree with the outcome, I write to emphasize that the title of the official to whom the case is referred is not dispositive as to whether an assignment can be made at all over the objection of a party. It hardly matters whether that official is called “General Master,” “Support Enforcement Officer,” “Über Richter” or any other title the inventive minds of lawyers, Judges or court administrators may divine. The rule is that no assignment of the judicial function can be made without the consent of all parties. On this basis I join in granting the writ.


text:
    Nathan WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1374.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Nathan Watson, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to move for postconviction relief under rule 3.850 based on the clarification of law provided in State v. Wise, 762 So.2d 523 (Fla.2000).

FARMER, C.J., KLEIN and TAYLOR, JJ., concur.


text:
    Maurice TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2711.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Maurice Turner, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of postconviction relief is affirmed because the motion is facially insufficient. The motion failed to allege with sufficient specificity the substance of the witnesses’ testimony or explain how the omission of the evidence prejudiced the trial. See Catis v. State, 741 So.2d 1140, 1142 (Fla. 4th DCA 1998); Fla. R.Crim. P. 3.850(c)(6). Our affirmance is without prejudice to appellant filing, within 30 days of the issuance of the mandate, a motion that complies with the requirements of Catis.

STEVENSON, GROSS and MAY, JJ., concur.


text:
    Shannetta M. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4826.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Shannetta M. Davis, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Davis’s rule 3.850 motion for post-conviction relief.

Davis’s primary claim is that counsel was ineffective for conceding her guilt during opening and closing statements. Davis cites to the following opening comments by her attorney:

Just the fact that Shannetta had alcohol in her system and was involved in an accident does not mean she is guilty of DUI manslaughter. It does make her guilty of DUI.
You will find Shannetta guilty of DUI and you will find Shannetta guilty of giving a false name but we’re confident that you will find her not guilty of DUI manslaughter.

Davis’s attorney also stated, “we are not contesting that Shannetta Davis had alcohol in her system on that early morning. We are not contesting that she gave a false name. What we are contesting is that she is at fault for that accident and you as jurors have a very difficult job to do [determining causation].”

Similarly, in closing arguments, Davis’s attorney gave statements again, making a strong pitch for a not guilty verdict on DUI manslaughter based on the lack of causation or blame for the accident.

The supreme court has recently addressed the issue of ineffective assistance of counsel when an attorney makes admissions of guilt during opening or closing. See Harvey v. State, 28 Fla. L. Weekly S513, - So.2d -, 2003 WL 21511339 (Fla. July 3, 2003). There, the court noted that the first step is to “decide whether [defendant’s] trial counsel ‘entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.’ ” Id. (quoting in part United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (Fla.1984)). In Harvey, the attorney admitted to the murders as well as to planning the murders, effectively conceding first-degree murder and rendering Harvey’s “not guilty plea a nullity.” Id.

Here, Davis admitted having several drinks prior to the accident and giving a false name after the accident. As such, her attorney did not concede DUI manslaughter, but simply acknowledged various undisputed acts of the accused. Thus, these admissions did not render Davis’s not guilty plea to DUI manslaughter a nullity so as to give a presumption of ineffective assistance of counsel, as required by Haney.

The admissions by Davis’s attorney are more analogous to those made where defense counsel concedes guilt on a lesser-included offense, rather than the charged offense. See, e.g., State v. Williams, 797 So.2d 1235, 1240 (Fla.2001)(explaining “in the present case, counsel did not concede his client’s guilt to the crime charged. Rather, counsel in effect told the jury, ‘If you believe my client’s version of events, then you must find him not guilty; if you do not believe him, then he is still not guilty of first-degree murder, but only of a lesser-included offense.’ ”). In recognizing this distinction, the Williams court relied on our decision in Harris v. State, 768 So.2d 1179 (Fla. 4th DCA 2000).

In Harris, we recognized that the Strickland standard precludes relief for failure to demonstrate prejudice where counsel admits only to a lesser-included offense and the overwhelming evidence, which supported the facts, results in a determination that “it is not reasonably likely that the result of appellant’s trial would have been any different.” Id. at 1183; see also Thompson v. State, 839 So.2d 847, 849 (Fla. 4th DCA 2003)(ex-plaining “[h]ere, the trial attorney did no more than admit the conduct to which her client testified and confessed. This was not tantamount to a plea of guilty.”). Accordingly, we conclude that Davis is not entitled to relief on her claim.

As to the sentencing issue raised, we also find no error.

STONE, POLEN and STEVENSON, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Elizabeth JOHNSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4547.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Elizabeth Johnston, Fort Lauderdale, joro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice to appellant filing a legally sufficient Florida Rule of Criminal Procedure 3.800(a) motion addressing any alleged entitlement to additional jail credit. See Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998)(citing State v. Mancino, 714 So.2d 429, 433 (Fla.1998)).

FARMER, C.J., STEVENSON and MAY, JJ., concur.


text:
    Bradley WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4700.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    John H. Lipinski of the Law Offices of J.H. Lipinski, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed 821 So.2d 302 (Fla.2002).

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


text:
    S.P., Mother of S.M. and R.M., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2181.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Rehearing Denied March 11, 2004.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellee.
   THOMPSON, J.

S.P., the mother (“mother”), appeals an order adjudicating her children, S.M. and R.M., dependent. We affirm.

On 20 March 2003, the Department of Children and Families (“department”) received a telephone call about S.M. stating, “Today, [S.M.] had 7 welt marks on one arm and 5 welt marks on her other arm. It is not known who did this to her or why, or what was used to mark her up.” The next day, a department investigator visited the mother and children, and on 27 March 2003, a shelter petition was filed. The petition alleged that both children had marks on their bodies, and that S.M. had sixteen fresh bruises and marks. The petition stated that when the department asked how S.M. received the marks, the mother replied that she was outside with her roommate when she heard screams. The mother alleged that upon returning inside the residence, she found the brother, R.M., who was only four years old, with a coat hanger.

On appeal, the mother argues that the order should be reversed because there was no evidence that she inflicted injuries upon S.M. and R.M. An order of dependency will be upheld if it is supported by competent, substantial evidence. V.G. v. Department of Children and Families, 813 So.2d 298 (Fla. 5th DCA 2002). In the instant case, the trial court’s finding that the abuse could not have occurred without the mother’s knowledge and that the children’s physical, mental, and emotional health were in danger either by acts of abuse by the mother or by her failing to protect the children was supported by competent, substantial evidence.

At the dependency hearing, child protection team nurse Debbie Scott testified that the injuries inflicted upon S.M. were caused by a sharp narrow instrument, and that S.M.’s brother, R.M. could not have caused the injuries. Scott also testified that she observed burns, apparently from a motorcycle, on R.M’s legs. The fact that the children were injured does not necessarily mean that the mother inflicted the injuries, but it is sufficient that the injuries occurred while in her care. Compare In Interest of D.E.N., 504 So.2d 514 (Fla. 5th DCA 1987) (holding that it was not necessary for trial court to determine who broke the child’s bones and that it was enough that the bones were broken repeatedly while in the mother’s care).

The order of dependency is AFFIRMED.

PETERSON and ORFINGER, JJ„ concur.

      . Aside from observing injuries on the children, protective investigator Foster testified at the dependency hearing that the mother lived in a dirty, one-bedroom home, with a kitchen that appeared to not have been used in a long time, since there were no dishes or food. Foster stated that she observed this from the living room, but she was not allowed to look at the remainder of the house. The mother told Foster that she was living in this one bedroom house with an uncle, his girlfriend, and their one-year old daughter. Foster testified that the mother left that residence that evening, stayed with a girlfriend for a couple days, and was "floating” from place to place.


author: VAN NORTWICK, J.

text:
    Lisa Marie FALCO, Petitioner, v. NORTH SHORE LABORATORIES CORPORATION, a foreign corporation, Respondent.
    No. 1D03-3005.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Julie H. tittky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for Petitioner.
    W. Cleveland Aeree, II, and Daniel A. Tressler, II, of Unger, Aeree, Weinstein, Marcus, Merrill, East & Metz, P.L., Orlando, for Respondent North Shore Laboratories Corporation.
   VAN NORTWICK, J.

Lisa Marie Falco seeks certiorari review of an order granting the unsworn motion of respondent, North Shore Laboratories Corporation (North Shore), to compel discovery of certain videotapes in Falco’s possession which were prepared subsequent to the automobile accident in which she was injured and which constituted her work product prepared in anticipation of litigation or trial. North Shore, which was alleged to have manufactured defective tire plugs placed in the tires of the Ford Bronco that overturned causing injury to Falco, argues that Falco allowed the Bronco and tires to deteriorate after the photographs and videotapes were taken and that North Shore could not, without undue hardship, recreate the condition of the Bronco at the time of the accident without the needed videotapes. Falco argues that she has produced all the photographs which are necessary to allow North Shore to obtain the equivalent evidence and that the trial court erroneously denied her work product immunity based on North Shore’s “bare assertions” that this discovery was necessary. We agree and grant the petition.

This case is controlled by our recent decision in Florida East Coast Railway L.L.C. v. Jones, 847 So.2d 1118 (Fla. 1st DCA 2003) in which we explained:

After the Railway objected to Jones’ request for photographs, measurements, and a diagram, prepared by it after the accident, the respondent filed a motion to compel. No sworn testimony was taken at the hearing, nor did respondent submit any affidavits or other evidence. The trial court stated at the hearing on the motion to compel, and again in its order, that Jones was not required to show by affidavit his need or inability to obtain the substantial equivalent of the requested materials. This was a departure from the essential requirements of Florida law. Before a party can obtain discovery of work product material, it must show that it “has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3). The bare assertions of counsel are clearly inadequate to show the “need” and “undue hardship” required for production of work product documents. See Procter & Gamble Co., 462 So.2d at 1195 (Fla. 1st DCA 1985); CSX Transp., Inc. v. Carpenter, 725 So.2d 434 (Fla. 2d DCA 1999).

Id. at 1119.

A party’s work product is discoverable only where the party seeking discovery shows that it has need of the materials to prepare its case and it is unable to obtain, without undue hardship, the substantial equivalent of the materials by other means. Fla. R. Civ. P. 1.280(b)(3). Jones holds that the “need” and “undue hardship” required for production of work product documents cannot be demonstrated solely by the bare assertions of counsel, but must be demonstrated by affidavit or sworn testimony. 847 So.2d at 1119. Even if the Bronco has deteriorated, as counsel for North Shore asserts, nothing in the record explains why North Shore cannot recreate, without undue hardship, the condition of the Bronco and the tire at the time of the accident by use of the photographs produced by Falco. See Procter & Gamble Co. v. Swilley, 462 So.2d 1188, 1194 (Fla. 1st DCA 1985).

As in Jones, upon remand the trial court must conduct an evidentiary hearing, including, if necessary, conducting an in camera review of the respective materials. Jones, 847 So.2d at 1119.

Petition for Writ GRANTED; Order QUASHED; REMANDED for further proceedings.

KAHN and WEBSTER, JJ., Concur.

      . The order on appeal also compelled discovery of certain photographs which have already been produced and are therefore not in dispute.


author: PADOVANO, J.

text:
    Thomas F. CROW, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3404.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

This is an appeal from an order summarily denying a motion for postconviction DNA testing. We conclude that the motion is sufficient on its face to establish a right to testing under rule 3.853 of the Florida Rules of Criminal Procedure and that the rule is a valid exercise of judicial authority under the Florida Constitution. For these reasons, we reverse for a hearing on the motion.

The defendant, Thomas Crow, was convicted of first-degree murder in 1985, and his conviction was affirmed on appeal. See Crow v. State, 503 So.2d 420 (Fla. 1st DCA 1987). On December 26, 2002, he filed a motion for postconviction DNA testing alleging that the test results would prove that he was not the source of the semen found in the victim’s rectum. According to the motion, the state’s theory of the case was that the crime was a “homosexual murder” in which the defendant allegedly murdered the victim and then committed an act of anal intercourse with the corpse. The defendant admitted that he stabbed the victim, but denied that he committed the alleged anal intercourse. He claimed that the victim was making forcible sexual advances and that he killed him in self defense.

The state used the evidence that the victim had semen in his rectum to support its theory of premeditation and to refute the defendant’s claim of self defense. At the time of the trial, the semen could not be positively identified as that of the defendant, but the state argued that if it could have been matched to the defendant then it would be “conclusive proof’ that he committed the murder.

In response to the motion, the state argued that the defendant was not entitled to a DNA test because he had not shown that he was innocent of the crime. The state did not claim that the allegations of the motion were untrue. Nor did the state refute the defendant’s contention that the evidence of the unidentified semen was used as a critical link in the proof against the defendant at trial. Rather, the state argued that the defendant was not entitled to a DNA test because he admitted that he stabbed the victim to death.

The trial court agreed with the state and denied the motion without setting it for a hearing under the procedure in rule 3.853(c). In the order summarily denying relief, the trial court stated that DNA testing would serve no purpose given the defendant’s admission that he had killed the victim. The order goes on to explain that testing is not available because “identification was not in issue.” This order is the subject of the present appeal.

We have jurisdiction. An order on a motion for postconviction DNA testing is in the same class as an order on a motion to vacate a conviction or to correct an illegal sentence. Rule 9.140(b)(1)(D) of the Florida Rules of Appellate Procedure states that in criminal cases a defendant may appeal “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853.” See also Fla. R.Crim. P. 3.853(f).

The state contends that the order summarily denying the motion for DNA testing should be affirmed because .the motion fails to establish that the defendant has a right to testing under section 925.11, Florida Statutes (2003). The state does not deny that the defendant’s motion is sufficient under rule 3.853, but contends that the rule violates the separation of powers provision of Article II, section 3 of the Florida Constitution. Specifically, the state argues that the statute must prevail over the rule on the issue of eligibility for postconviction DNA testing because that is a matter of substantive law.

We begin our analysis by acknowledging that the statute is more restrictive than the rule. The statute states in material part:

(2) Method for seeking postsentencing DNA testing.—
(a) The petition for postsentencing DNA testing must be made under oath by the sentenced defendant1 and must include the following:
1. A statement of the facts relied on in support of the petition, including a description of the physical evidence containing DNA to be tested and, if known, the present location or the last known location of the evidence and how it was originally obtained;
2. A statement that the evidence was not previously tested for DNA or a statement that the results of any previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques would likely produce a definitive result;
3. A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime;
4. A statement that identification of the defendant is a genuinely disputed issue in the case, and why it is an issue;
5. Any other facts relevant to the petition; and
6. A certificate that a copy of the petition has been served on the prosecuting authority.

§ 925.11(2)(a), Fla. Stat. (2003) (emphasis added). By the terms of the statute, post-conviction DNA testing is available only to resolve a claim of mistaken identity. A defendant who admits that he committed the act but asserts an affirmative defense to criminal liability would not be entitled to a DNA test, even if the test would conclusively prove the defense.

In contrast, the rule does not limit ways in which scientific evidence might be used to prove that a person is innocent. Rule 3.853 states in relevant part:

Contents of Motion. The motion for postconviction DNA testing must be under oath and must include the following:
(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the mov-ant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and-why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other fact relevant to the motion; and
(6) a certifícate that a copy of the motion has been served on the prosecuting authority.

Fla. R.Crim. P. 8.853(b) (emphasis added). It is apparent from this language that testing may be available even if the defendant does not deny commission of the act alleged to be a crime. The pertinent part of the rule makes testing available if the result would show that the defendant was misidentified or if the result would otherwise exonerate the defendant.

In the present case, the defendant qualifies for testing under the rule but not under the more restrictive terms of the statute. This brings us to the heart of the issue: whether the right to obtain scientific evidence to show that a person was wrongfully convicted is a matter for the courts or for the Legislature.

The state contends that eligibility for postconviction DNA testing is a matter of substantive law and therefore that the statute prevails over contrary provisions in the rule. This argument would be more appealing if we were to consider only the text of the statute and rule and not the underlying authority to define the rights at issue. Some separation of powers issues cannot be resolved merely by characterizing the nature of the regulation as substantive or procedural.

The distinction between procedural law and substantive law is controlling if the only source of authority for a rule or statute is the general power conferred by the state constitution, but this distinction is immaterial if the rule or statute is based on a specific grant of constitutional power. If a statute purports to regulate a matter that is within the exclusive control of the judiciary under a specific grant of constitutional authority, then it makes no difference whether the right created by the statute is characterized as substantive or procedural. In neither case could the statute prevail over conflicting provisions of a court rule implementing the constitutional authority in question.

Article II, section 3 of the Florida Constitution states, “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” One of the powers assigned to the judicial branch under the Constitution is the power to issue writs of habeas corpus. This power exists on three levels of the Florida court system. See Art. V, § 3(b)(9), Fla. Const, (authorizing the supreme court or justices of the supreme court to issue writs of habeas corpus); Art. V, § 4(b)(3), Fla. Const, (conferring jurisdiction on the district courts of appeal and judges of the district courts to issue writs of habeas corpus); Art. Y, § 5(b), Fla. Const, (providing that judges of the circuit courts have authority to issue writs of habeas corpus).

The Legislature could not define the circumstances in which a writ of habeas corpus could be issued because that would violate the separation of powers provision in Article II, section 3. The analysis of the problem is no different for posteonviction remedies available under the rules of procedure because they merely replace the remedies that were once available by habe-as corpus. See State v. Bolyea, 520 So.2d 562 (Fla.1988); Roy v. Wainwright, 151 So.2d 825 (Fla.1963). If a prisoner files a petition for writ of habeas corpus to assert a collateral challenge to Ms conviction, the petition will be denied with leave to file a motion under the comprehensive procedure in rule 3.850. See Fla. R.Crim. P. 3.850(h); Geiger v. State, 861 So.2d 93 (Fla. 1st DCA 2003); Spratling v. State, 851 So.2d 228 (Fla. 1st DCA 2003). Because a postconviction motion under rule 3.850 is the functional equivalent of a petition for writ of habeas corpus, the Legislature lacks the authority to define the circumstances in which it may be granted.

This point is illustrated by Allen v. Butterworth, 756 So.2d 52 (Fla.2000), a case in which the supreme court declared unconstitutional a portion of section 924.055, Florida Statutes (2000), the Death Penalty Reform Act. Among other things, the Act set a time limit for filing a postconviction motion in a capital case. The court concluded that the Legislature lacked authority to place time limits on postconviction relief because the right to relief is the equivalent of the right to file a petition for writ of habeas corpus.

Rule 3.853 affords a different kind of postconviction remedy, but in this context, it is no different from rule 3.850 or rule 3.800. Although the rule deals with a modern scientific subject, it affords the same kind of remedy that would have been available by habeas corpus. If we had .no statute or rule authorizing postconviction DNA testing, the court would still have the power to hear a petition for writ of habeas corpus, and the court would still have the right to decide what evidence is to be produced and admitted at the hearing on the petition.

The outcome of this case is controlled by a specific grant of constitutional power to issue writs of habeas corpus, but even if that were not the case, we would likely reach the same result. Whether a judgment of guilt should be overturned on the ground that it was in error is essentially a judicial-function. - It follows that the courts have judicial authority under the general grant of judicial power in Article Y of the Florida Constitution to determine the circumstances in which a conviction should be vacated.

This point is illustrated by the supreme court’s decision in Goodwin v. State, 751 So.2d 537 (Fla.2000), a case involving the harmless error standard in criminal appeals. Section 924.051(7), Florida Statutes, states that “the party challenging the judgment or order of the trial court has the burden of demonstrating that prejudicial error occurred in the trial court,” but the rule applied in appellate courts is just the opposite. In State v. DiGuilio, 491 So.2d 1129 (Fla.1986), the court held that if the defendant demonstrates, that an error occurred at trial, the burden is on the state to show beyond a reasonable doubt that the error was harmless. The court reaffirmed this rule in Goodwin, despite the language to the contrary in . section 924.051(7). As the .court explained, “the Legislature cannot relieve the appellate courts of their independent and inherent obligation to assess the effect of the error on the verdict.” Id. at 544, 545.

Whether a conviction is vacated on a postconviction motion or reversed on direct appeal, the result is the same. The only difference is that the action is taken by a different court. In a postconviction hearing, as in a direct appeal, the court is reviewing earlier judicial proceedings to determine whether an error was committed. The review process is no less a judicial function because it is performed in a trial court as opposed to an appellate court. In either case, the process is essentially a judicial function. •

The same principle could be applied to any proceeding that is designed to test the validity of a conviction. For example, the decision to grant a new trial in a criminal case is one that is unquestionably within the province of the courts. The grounds for a new trial are set forth in rule 3.600 of the Florida Rules of Criminal Procedure, and there is no comparable statute on the subject. The Legislature has not attempted to define the circumstances in which it would be proper to grant a new trial in a criminal case, and the absence of legislation is an apparent recognition of the fact that the issue is one for the courts.

For these reasons, we conclude that rule 3.853 of the Florida Rules of Criminal Procedure is a proper exercise of judicial power and that it does not violate the separation of powers provision of the Florida Constitution. Because the defendant’s motion was sufficient on its face to meet the requirements of the rule, the order summarily denying the motion must be reversed. On remand, the trial court may take any action authorized by 3.853(c) to determine whether the allegations of the defendant’s motion are true and, if so, whether he is entitled to DNA testing.

Reversed and remanded.

BOOTH and BROWNING, JJ., Concur.

      . Florida once had a statute setting forth the grounds for obtaining a new trial in a criminal case, but it was repealed in 1970, shortly after the adoption of the Florida Rules of Criminal Procedure. See Ch. 70-339, § 180, Laws of Fla. (repealing Chapter 920). Although there is still a statute pertaining to release on bail after the denial of a motion for new trial, it does not address the grounds for new trial. See § 924.065, Fla. Stat. (2003).


author: STONE, J.

text:
    Michael S. GROSS, Appellant, v. Jill E. GROSS, Appellee.
    No. 4D03-1687.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.

      Michael S. Gross, Pompano Beach, pro se.
    Richard F. Hussey of Richard F. Hussy, P.A., Fort Lauderdale, for appellee.
   STONE, J.

The former husband appeals an order on his supplemental petition for modification of child support and abatement of alimony, and on the former wife’s motion for contempt and enforcement of a final judgment of dissolution of marriage. Of the multiple issues raised, we reverse as to one.

The trial court was asked to resolve an issue arising out of the former husband’s pending bankruptcy proceeding concerning whether certain obligations were in the nature of support and, as such, not subject to discharge in bankruptcy. Before the trial court, the former wife sought enforcement of payment of a lump sum of $8,500.00 owed to the former wife and an outstanding medical bill balance of $721.00 owed directly to the doctor. Under the parties’ marital settlement agreement, these sums are due. The settlement agreement, in relevant part, provides:

VI. K. Wife shall receive $11,000 in consideration for waiving any interest in Husband’s accounts, future earnings and real property. The parties’ 1999 and 2000 tax refund in the amount of $5,000.00 shall be paid directly to the Wife and $2,500.00 of that sum shall be used as a set-off against the $11,000.00 property settlement sum. The remaining $8,500.00 shall be paid directly to the Wife within six (6) months of the Final Judgment.
* * *
VI. I. Additionally, Husband shall assume the remaining balance of the medical bills for Kendra Gross as of October 4, 2001, which sum shall not exceed $1,000.00.

The former wife receives child support and alimony by separate provisions in the agreement.

The trial court found that the lump sum payment of $8,500.00 owed to the former wife and the payment of the outstanding medical bill of $721.00 owed to the doctor were in the nature of “support.”

Generally, the division of marital assets and debts is not in the nature of support. See, e.g., De Lapouyade v. De Lapouyade, 711 So.2d 1202 (Fla. 2d DCA 1998). The former wife testified concerning the $8,500.00 lump sum payment obligation that when “Mike got his money, I was going to get mine,” and later asserted, “We were dividing our money. He got his money, I was to get mine.” There was no evidence that either of the outstanding lump sum obligations are in the nature of support. In the settlement agreement, both obligations are distributed as part of their equitable distribution.

We conclude that the record does not support the trial court’s finding as to the $8,500 and $721.00 obligations and reverse. In all other respects, the final judgment on the petition for modification and for enforcement of the amended final judgment is affirmed, except that we have not considered any issue as to liability for attorney’s fees, which may be raised again in any appeal subsequent to a trial court award of fees. We remand for modification accordingly.

WARNER and STEVENSON, JJ., concur.


author: KLEIN, J.

text:
    KENNEDY CONTRACTING, INC., Appellant, v. The TRAVELER’S INSURANCE COMPANY, Appellee.
    No. 4D03-1623.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    J. Layne Smith of Smith, Brooks & Masterson, P.L., Tallahassee, for appellant.
    Mark Hicks of Hicks & Kneale, P.A., Miami, for appellee.
   KLEIN, J.

The issue presented by this appeal is when does a cause of action accrue for purposes of applying the statute of limitations on an insurer’s claim for a final premium based on an audit. We affirm a judgment holding that it is not until the amount is liquidated.

Traveler’s Insurance Company issued Kennedy Contracting, Inc. a worker’s compensation and employer’s liability policy for the period from November 1992 to November 1993. The policy provided that the premium shown was only an estimate and that the final premium would be determined by an audit to be performed three years after the policy ended.

In August, 1994, Traveler’s became aware, through a worker’s compensation claim, that Kennedy may have been classifying its employees as subcontractors, which would have lowered the premium. Traveler’s notified Kennedy in September, 1994 that it wished to audit Kennedy’s books to determine the premium, but Kennedy refused. Traveler’s then estimated a premium of $500,000 and billed Kennedy this amount. Kennedy appealed that premium amount administratively, and Traveler’s appealed Kennedy’s refusal to submit to an audit. Ultimately Kennedy was ordered to submit to the audit, and after conducting the audit, Traveler’s concluded it was owed an additional premium of $250,000. Kennedy challenged this amount administratively which resulted in a ruling in April, 1998 that the additional premium would be $90,595.

After Kennedy refused to pay, Traveler’s filed this suit and Kennedy raised the five year statute of limitations for breach of written contract, section 95.11(2)(b), Florida Statutes.

Kennedy argues that the cause of action accrued in August, 1994 when Traveler’s became aware that Kennedy was classifying employees as subcontractors, but cites no authority which would support its position. Traveler’s relies on State ex rel. Department of Insurance v. Countryside Health Services, 719 So.2d 1006 (Fla. 5th DCA 1998), in which members contributed, under a pooling arrangement, for protection against liability for worker’s compensation claims. The members initially contributed an estimated amount, agreeing to indemnify the fund after the year was over and an assessment was made based on actual claims paid. The fifth district held that the fund’s cause of action against a member did not accrue until the amount of the liability for the years of membership became liquidated. We agree with that decision. Applying it, we conclude that Traveler’s suit in this case was timely and affirm.

MAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.


author: STEVENSON, J.

text:
    Greg HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4068.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Sean Biggins, Vero Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Following a bench trial, Greg Howard was convicted of possession of cocaine with intent to sell within 1,000 feet of a convenience business. On appeal, Howard challenges the denial of his motion to suppress cocaine found on his person and the denial of his motion for judgment of acquittal. We affirm and write only to address Howard’s appellate claim that there was no evidence tending to show he possessed the cocaine with intent to sell it within 1,000 feet of -a convenience business.

‘Narcotics detective John Budensiek testified that, in February 2002, he and Detective Grose were conducting surveillance on Howard, who was residing at the Heritage Inn motel on U.S. 1 in Hobe Sound. Through a confidential informant, police had been' able to make controlled buys from Howard and, as a result, had developed sufficient probable cause for a warrant to search Howard’s room. Thé warrant was issued on February 20, 2002. On February 21, 2002, Detective Budensiek again planned to have the informant make a controlled buy from Howard. In the hour before this controlled buy, Detective Grose observed two white males ■ and two white females approach Howard’s room. Some of the visitors were met at the door and the longest anyone stayed was about a minute and a half.

Budensiek then sent the informant to make' the controlled buy, providing him with a $20 bill and documenting the serial number. Detective Grose, stationed about sixty yards from the motel, observed the informant enter Howard’s room. According to Grose, the informant was in the room for less than a minute and, shortly after the informant left, he was notified by Budensiek that the informant was with him. Budensiek testified that the informant returned with a crack rock and information that Howard had crack in his shirt pocket. With this information, police planned to execute the warrant for the motel room. ■

Before they could do so, Howard left the room and got in his car. Budensiek sent a radio message to Deputy Humphrey, a member of the narcotics tactical unit, that Howard was in a white, older-model Ford Escort and had crack cocaine in his shirt pocket, instructing Humphrey to stop the vehicle. Deputy Humphrey testified that he eventually stopped Howard’s car as Howard pulled back into the parking lot of the Heritage Inn motel. As for whether Howard’s vehicle was stopped within 1,000 feet of a convenience business, both Humphrey and Budensiek testified that Cumberland Farms was directly across the street. Both officers admitted that they had not used any instrumentation to measure the distance. Detective Budensiek did testify, however, that Howard was stopped in the “inlet” to the parking lot of the motel and that the only thing' that separated that “inlet” from the Cumberland Farms is a two-lane road and the Cumberland Farms’ parking lot. Buden-siek estimated the road to be approximately fifteen feet across and the Cumberland Farms’ parking lot to be seventy-five feet, making the Cumberland Farms store well within 1,000 feet of the stop.

After Howard exited the vehicle, Deputy Humphrey searched his person, finding a “cookie” of crack cocaine, one individual rock, and approximately $405 in his shirt pocket. The marked $20 was among the bills. Further, the officers ultimately searched Howard’s room, discovering a marijuana cigarette, spoons with cocaine residue and a can that had been used as a smoking device.

Detective Grose testified that a “cookie” is approximately one ounce of cocaine and generally looks like a two and a half to three inch sugar cookie. Grose testified that it was his experience that cookies were used for the sale of cocaine and small pieces, dimes or twenties, were chipped off and sold. A two to three inch, one ounce cookie would produce approximately 10Ó “twenties” or $2,000. For his part, Detective Budensiek testified that the cocaine found on Howard’s person had a street value of approximately $400.

After the State rested, defense counsel moved for a judgment of acquittal, arguing that there was insufficient evidence that Howard had the intent to sell, pointing specifically to the absence of any evidence as to the weight and amount of cocaine found on Howard’s person. The State countered that the $405 and the “cookie” form of the cocaine were sufficient to make the matter an issue for the trier-of-fact. The trial court denied the motion for judgment of acquittal. After defense counsel rested, the court gave both parties the opportunity for additional argument. At this juncture, defense counsel made the additional argument that the State had failed to present sufficient evidence that Howard was stopped “within 1,000 feet of a school [sic].” The trial court found Howard guilty as charged.

On appeal, Howard argues that since the location of his stop was “pure coincidence,” the State failed to prove the requisite “intent.” Howard goes on to argue in his appellate brief that “the evidence offered by the state tended to show intent to operate from the hotel room, negating defendant’s intent to sell elsewhere.” By making this point, Howard raises the argument that in order to prove possession with intent to sell an unauthorized controlled substance within 1,000 of a convenience store pursuant to section 893.13(l)(e), Florida Statutes (2002), the State must prove that the defendant intended that the sale take place within that parameter.

The initial difficulty for Howard is that he failed to advance this argument below. Thus, even if we accept his contention that intent to make or consummate the sale within 1,000 feet of the convenience business is an element of the crime, he is entitled to relief only if the State utterly failed to present evidence of such intent. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003)(holding that defendant will be entitled to relief on appeal- despite his failure to preserve sufficiency of the evidence claim only where “the evidence is insufficient to show that a crime was committed at all”).

The testimony in the record is that the police stopped Howard as he pulled into the “inlet” to the motel parking lot, which was about ninety feet from the Cumberland Farms convenience store. A controlled buy had been made from Howard’s motel room earlier in the day and one detective had observed people going to Howard’s room and staying only minutes. Also, as previously noted, a cocaine “cookie,” commonly used as a format for resale of,,the drug, was found on Howard’s person. Thus, there was ample evidence of Howard’s possession of cocaine with intent to sell from his motel room. Although there was no testimony as to the actual distance from the motel to the convenience store, the motel’s parking lot would have had to be slightly over three football fields long (over 300 yards) for it to have been outside of 1,000 feet. Accordingly, we believe it-to be a fair enough inference from the evidence in the record that Howard possessed cocaine with the intent to sell within 1,000 feet of a convenience business.

We have reviewed the other issues raised on appeal and find no error. Accordingly, the conviction and sentence on review are affirmed.

AFFIRMED.

WARNER and GROSS, JJ., concur.

      . The second difficulty for Howard is that in Prescott v. State, 753 So.2d 568 (Fla. 4th DCA 1998), disagreed with on other grounds in Luis v. State, 851 So.2d 773 (Fla. 2d DCA 2003), a case involving section 893.13(l)(c), Florida Statutes (1995), which prohibits possession of drugs with intent to sell within 1,000 feet of a school, this court rejected an argument identical to that advanced by Howard.

      . Thus, even if this court were to recede from the holding in Prescott, Howard would not be entitled to relief. Consequently, we decline to further address the issue.


author: PALMER, J.

text:
    Elbert BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-990.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Elbert Brinson (defendant) appeals the final order entered by the trial court sentencing him to a term of five years imprisonment for violating his probation. Concluding that the trial court erred by failing to issue a written order setting forth specific findings as to which conditions of the defendant’s probation had been violated, we vacate the sentencing order and remand for entry of a proper adjudication order.

The State filed an affidavit charging the defendant with violating his probation in several different ways. A hearing was held and testimony was presented as to each of those alleged violations. At the conclusion of the testimony, the trial court issued a ruling from the bench finding that the defendant had violated his probation but not stating which of the conditions of probation had been violated. Defense counsel requested a specific finding of the conditions which had been violated; however, the court responded: “My order stands for itself.”

The trial court apparently failed to issue a written judgment of guilt since no adjudication order is contained in the record. However, a copy of the court minutes, signed by the trial court and indicating that the court had found the defendant guilty of violating his probation, is contained in the record. Defendant contends that the trial court reversibly erred in failing to issue a written order setting forth specific findings as to which conditions of his probation had been violated. We agree.

The supreme court has recently ruled that court minutes do not constitute ap-pealable orders. See State v. Wagner, 863 So.2d 1224 (Fla.2004). In addition, our court has consistently ruled that an order revoking probation must state in writing the probationary conditions which the trial court found to have been violated. Barta v. State, 678 So.2d 923 (Fla. 5th DCA 1996); Forget v. State, 675 So.2d 259 (Fla. 5th DCA 1996). Accordingly, the trial court’s sentencing order is vacated and this matter is remanded for entry of a proper adjudication order.

Sentencing order VACATED and case REMANDED for entry of a proper adjudication order.

PLEUS and TORPY, JJ., concur.


author: TORPY, J.

text:
    Tyron L. MORRIS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-959.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    Tyron L. Morris, Orlando, Pro se.
    John D. Maher, Tallahassee, for Appel-lee, Unemployment Appeals Commission.
   TORPY, J.

Tyron Morris (“Appellant”) asserts that the Unemployment Appeals Commission (the “UAC”) erred in reversing the appeals referee’s finding that Appellant was eligible for unemployment benefits. The referee concluded that Appellant was entitled to benefits because he was discharged from his employment for reasons other than misconduct. The UAC, in denying benefits, found that Appellant had not been discharged, but instead, had quit his job voluntarily.

We agree with the UAC that the referee’s finding on this point was erroneous. However, it is apparent from the record that Appellant’s alternative ground supporting an award of unemployment benefits, that he voluntarily terminated his employment due to disability, was not sufficiently developed because the referee concluded that Appellant had been discharged. We, therefore, reverse the UAC’s order with instructions that this cause be remanded to the referee to determine whether Appellant had “good cause” for quitting his employment due to physical disability. § 443.101(l)(a)l., Fla. Stat. (2001). See Lewis v. Lakeland Health Care Center, Inc., 685 So.2d 876, 879 (Fla. 2d DCA 1996).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SHARP, W., and MONACO, JJ., concur.


text:
    George M. STILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3699.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    George M. Still, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The denial of the defendant’s Florida Rule of Criminal Procedure 3.800(a) motion is affirmed except as to the issue of appropriate prison time credit due the defendant. ■ Because this issue was not considered by the trial court, the order is reversed as to this issue and remanded for the trial court to address the prison time credit issue and either attach portions of the record to show the defendant received all the credit he is due or award the proper credit.

AFFIRMED in part, REVERSED in part, and REMANDED.

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