text:
    Marchello JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2059.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2004.
    Marchello Jackson, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Henyard v. State, 883 So.2d 753, 2004 WL 1171354 (Fla. May 27, 2004).

SHARP, W., THOMPSON and PALMER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rex MIRES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2990.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and PALMER, JJ., concur.


text:
    ANHEUSER-BUSCH, INC., Petitioner, v. MARIS DISTRIBUTING COMPANY, Respondent.
    No. 1D03-4215.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Rehearing Denied Sept. 10, 2004.
    Barry Richard of Greenberg Traurig, P.A., Tallahassee; Peter E. Moll and Brian D. Wallach of Howrey Simon Arnold & White, LLP, WA; Elliot H. Scherker and Brenda K. Supple of Greenberg Traurig, P. A., Miami, for Petitioner.
    Willie E. Gary, Madison McClellan, Robert Parenti and C.K. Hoffler of Gary, Williams, Parenti, Finney, Lewis, Mc-Manus, Watson & Sperando, Stuart; and Manuel Soeias, Orlando, for Respondent.
   PER CURIAM.

The petitioner has failed to show any irreparable harm which could not be remedied by appeal after final judgment, and the petition for a writ of certiorari is therefore denied.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Lino ALONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-14.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Rehearing Denied Sept. 15, 2004.

      Lino Alonso, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Defendant’s writ for habeas corpus is denied. See State v. Guzman, 697 So.2d 1263, 1265 n. 1 (Fla. 3d DCA 1997). See also Alonso v. State, 879 So.2d 80, 2004 WL 1737310 (Case No. 3D04-517, filed on August 4, 2004).


author: KLEIN, J.

text:
    Donna MELZER and Martin County Conservation Alliance, Inc., a Florida not-for-profit corporation, Appellants, v. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Martin County, Martin County School Board, and The City of Stuart, Appellees.
    No. 4D03-4109.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Rehearing Denied Sept. 30, 2004.

      Donna Sutter Melzer, Palm City, pro se.
    Richard Grosso, Ft. Lauderdale, for appellant Martin County Conservation Alliance, Inc.
    Karen A. Brodeen and Linda Loomis Shelley of Fowler White Boggs Banker, P.A., Tallahassee, for appellee Martin County and Martin County School Board.
    Shaw P. Stiller, Tallahassee, for appellee Department of Community Affairs.
   KLEIN, J.

This is an appeal from a final order of the Florida Department of Community Affairs, which accepted the recommended order of an administrative law judge allowing amendments to Martin County’s Comprehensive Growth Management Plan. We dismiss the appeal because, although appellants, as residents, had standing to participate at the administrative level, they have failed to demonstrate that they are adversely affected, which is necessary for standing to appeal the order.

The comprehensive plan, prior to amendment, had stringent requirements for the protection of wetlands and other natural resources. The amendments give the county more flexibility in locating schools and other public facilities near those areas.

On the standing issue, this case is indistinguishable from O’Connell v. Florida Department of Community Affairs, 874 So.2d 673 (Fla. 4th DCA 2004), in which we held that Melzer and the Alliance did not have standing to appeal different amendments to the same plan. Although our opinion did not reflect it, the record in O’Connell shows that the amendments determined that more land was necessary for commercial use throughout the county and adopted new methods for making decisions in the future to allow commercial use.

The facts as to standing in this case, as well as in O’Connell, are that Melzer and the members of the Alliance are residents of Martin County. This was enough to give Melzer and the Alliance standing to participate below. Under the Local Government Comprehensive Planning and Land Development Regulation Act, any “affected person” may file a petition to initiate an administrative hearing. § 163.3184(9), Fla. Stat. (2002). The definition of “affected person” includes “persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review.” § 163.3184(l)(a), Fla. Stat. (2002). Melzer and the members of the Alliance, as residents, had standing to seek the administrative hearing.

The standing to appeal an administrative agency order, however, is determined by the Administrative Procedure Act, which requires that the appellant be “adversely affected by the final agency action.” § 120.68(1), Fla. Stat. (2002).

As we explained in O’Connell, the standing to appeal under section 120.68(1) is more narrow than the standing to participate at the administrative level. LEAF v. Clark, 668 So.2d 982 (Fla.1996); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); Daniels v. Fla. Parole & Probation Comm’n, 401 So.2d 1351 (Fla. 1st DCA 1981).

In LEAF the party attempting to appeal the administrative agency order was a public interest advocacy organization located in Tallahassee, which had been permitted to intervene as a party in the administrative proceeding. Our supreme court held, however, that LEAF did not have standing to appeal under section 120.68(1). The court explained that LEAF’S interest in protecting its members’ use and enjoyment of natural resources, which could be affected by new power plants, was insufficient to demonstrate that LEAF’S members were adversely affected.

Appellants rely heavily on Matter of Surface Water Management Permit No. 50-0H20-S, Challancin v. Florida Land & Water Adjudicatory Commission, 515 So.2d 1288, 1293 (Fla. 4th DCA 1987), in which we held that the Audubon Society, which owned land within the water management district, had standing to appeal. The agency action in Challancin involved the construction of a development on an island in Lake Okeechobee, which posed a “clear and imminent threat to flood control in the district.” Challancin would only support appellant’s position on standing if our holding in Challancin was that property located anywhere in the water management district would be adversely affected. Such an interpretation is unrealistic because the South Florida Water Management District encompasses all or part of sixteen counties. The only reasonable interpretation of Challancin is that the property was sufficiently close to Lake Okeechobee to be adversely affected if the development were allowed. A broader interpretation would be contrary to LEAF, which, as a decision of our supreme court, is controlling.

Appellants argue in the alternative that the appellees, by stipulating to their standing at the administrative level, were either stipulating to standing to appeal or waived the issue. Our reading of the transcript, however, leads us to conclude that the defendants were only stipulating to standing at the trial level. In the discussion, counsel for appellants referred to the standing as being under Chapter 163, and opposing counsel agreed there was standing “for this venue.”

Accordingly, as we did in O’Connell, we dismiss the appeal.

SHAHOOD, J., and EMAS, KEVIN M„ Associate Judge, concur.


author: PLEUS, J.

text:
    Raleigh WILSON, Sr., et al., Appellants, v. COUNTY OF ORANGE, Appellee.
    No. 5D03-4065.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    Clarification Denied Sept. 17, 2004.

      Charlie S. Martin of McLeod, McLeod, McLeod, P.A., Apopka, for Appellants.
    Gretchen R.H. Vose and Wade C. Vose, Vose Law Firm, LLC, Winter Park, for Appellee.
   PLEUS, J.

The Wilsons appeal the dismissal with prejudice of their five-count Second Amended Complaint (“complaint”). They argue that the lower court erred in dismissing Count I because the allegations were sufficient to establish a claim under 42 U.S.C. § 1983. They also argue that the lower, court improperly dismissed the remaining counts, for declaratory relief, in which they challenged the facial constitutionality of certain statutes and ordinances dealing with code violation procedures. We agree and reverse as to all five counts.

Factual Allegations in the Complaint

According to the allegations in the complaint, the Wilsons owned a trailer park in Orange County. In 1996, the Wilsons began evicting a tenant for unpaid rent. A county code inspector, whom they had seen coming and going from the same tenant’s trailer, argued with the Wilsons and told them if they moved forward with the eviction, he would “cause them many problems.” Immediately thereafter, the Wilsons found red tags on every trailer in the park. The tags informed each tenant they had 48 hours to move out because the trailers were unsafe and uninhabitable.

In January, 1997, the code inspector conducted warrantless searches of three trailers in the park, purported to find code violations and issued citations to the Wil-sons giving them 45 days to correct the violations. In August, code inspectors prepared statements of violation and requests for hearing for the three trailers. In September, the Wilsons received a notice of hearing advising that a hearing would be held before the Code Enforcement Board (“CEB”) regarding the violations on the three trailers.

On October 15, the CEB held a hearing and found the violations existed on the properties. The violation orders gave the Wilsons 30 days to correct the violations and established what work needed to be done. The orders also provided that fines of $100 per residence would be imposed for each day the violations remained uncorrected after November 15,1997.

The Wilsons allege they timely completed the work required. Nevertheless, in March 1998, a code inspector filed affidavits of noncompliance with the October 15 orders. Relying solely on the affidavit of noncompliance and without conducting any further hearing, the CEB entered three orders imposing fines of $800 per day until the properties were brought into compliance. In June 1997, the orders were recorded in the public records as a hen against the Wilsons’ real and personal property.

In January 1999, a code inspector filed an affidavit of compliance regarding the three trailers. Based on the dates involved, the county imposed fines of $117,100. In May 2000, the CEB entered an amended order reducing the fines by 80% to $23,420, which the Wilsons promptly paid.

In Count I of the complaint, the Wilsons sought damages pursuant to 42 U.S.C. § 1983, alleging that the County (1) violated their Fifth Amendment right to procedural due process by imposing fines and a hen on their property without notice and an opportunity to be heard; (2) violated their Fifth Amendment right to substantive due process by imposing fines and a iten against their property based solely upon a one-sided affidavit of noncompliance; and (3) violated their Eighth Amendment right against excessive fines.

In Counts II through V, the Wilsons sought declaratory relief, challenging the facial constitutionality of various code enforcement statutes and ordinances. Specifically, Count II alleged that section 162.09(1), Florida Statutes and section ll-37(a), Orange County Code, were facially unconstitutional for authorizing imposition of fines and liens against property without providing for notice and an opportunity to be heard. Count III alleged that sections 162.07 and 162.09(1), Florida Statutes, and sections 11-35 and ll-37(a), Orange County Code, were facially unconstitutional for authorizing the imposition of fines and liens based solely upon the affidavit of a code inspector. Count TV alleged that section 162.09(1), Florida Statutes, and section ll-37(a), Orange County Code, were facially unconstitutional for authorizing imposition of excessive fines. Count V alleged that section 28-41, Orange County Code, was facially unconstitutional for authorizing warrantless searches of property without any guidelines or standards.

The County filed a motion to dismiss alleging that the complaint failed to state sufficient ultimate facts to support its causes of action and the constitutional challenges were barred by the failure to exhaust administrative remedies and res judicata. Without explanation in this record, the lower court dismissed the complaint with prejudice.

No person shall oppose, obstruct or resist and code inspector or any person authorized by the code inspector in the discharge of his duties as provided in this article.

Standard of Review

The standard of review of an order granting a motion to dismiss is de novo; Pondella Hall For Hire, Inc. v. Lamar, 866 So.2d 719, 721 (Fla. 5th DCA 2004). Examination must be limited to the four corners of the complaint and the allegations in the complaint must be taken as true and in the light most favorable to the pleader. Id. Dismissal should not be granted on the basis of an affirmative defense, except when the face of the complaint is sufficient to "demonstrate the existence of that defense. Scovell v. Delco Oil Co., 798 So.2d 844, 846 (Fla. 5th DCA 2001).

Count I: The 42 U.S.C. § 1983 Claim

The Wilsons argue that the lower court erred in dismissing Count I because they sufficiently alleged a cause of action under 42 U.S.C. § 1983. That section states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other .person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In Rankin v. Colman, 476 So.2d 234 (Fla. 5th DCA 1985), this Court stated that “[t]o adequately state a cause of action under this statute, the plaintiff must allege only that a person acting under color of state law deprived him of rights protected by the United States Constitution or federal statutes.” Id. at 236. The complaint must contain ultimate facts supporting each element of . the cause of action. Id.

Orange County argues that the Wilsons’ allegations are insufficient to meet the requirements of Rankin because they do not allege ultimate facts supporting each element of the' cause of action. Instead, the County characterizes the allegations as “bald statements” without a factual basis. We disagree.

The Wilsons sued Orange County, not the individual code inspectors. A county falls within the definition of “person” under 42 U.S.C. § 1983 and may therefore be sued for monetary, declaratory or injunctive relief. Southern Alliance Corp. v. City of Winter Haven, 505 So.2d 489 (Fla. 2d DCA 1987); Elder v. Highlands County Bd. of County Com’rs, 497 So.2d 1334, 1336 (Fla. 2d DCA 1986).

The complaint alleged that all actions of Orange County “were taken pursuant to Florida state statutes, § 162.01, Fla. Stat., et. seq., and Orange County, Florida ordinances, Chapter 11, Orange County Code ... and therefore under color of state law.” More specifically, it alleged that pursuant to these statutory and code sections, the County (1) procured the “entry and recordation of CEB orders imposing fines and liens ... without a hearing”; (2) imposed fines and a lien based solely upon an affidavit; (3) imposed excessive fines; (4) conducted warrantless searches; (5) failed and refused with deliberate and reckless indifference to “cause its code inspectors and the CEB to desist from their actions which led to the deprivation of [the Wilson’s], constitutional rights”; and (6) failed with deliberate and reckless indifference “to put in place a policy that would have required all inspectors ... to have received training,in the code enforcement scheme and the limitations posed by the requirements of the Constitution of the United States.” The complaint explains in detailed terms the statutory scheme as well as the specific actions taken by the code inspectors and the CEB.

On the deprivation element, the Wilsons alleged that these actions violated their constitutional rights (1) not to be deprived of property without sufficient .notice and opportunity to be heard prior to such deprivation, in violation of procedural due process under the Fifth Amendment; (2) not to be deprived of property based upon an irrebuttable presumption without proof, in violation of substantive due process under the Fifth Amendment; and (3) not to be subjected to excessive fines, in violation of the Eighth Amendment.

The Mathews Test

Orange County argues that the allegations in Count I are belied by the exhibits attached to the complaint. They argue that the exhibits to the complaint demonstrate as a matter of law that sufficient notice and an opportunity to be heard was given to the Wilsons under the test stated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335.

Orange County concedes that imposing a lien on someone’s property “may be sufficient to merit due process protection.” However, the County attempts to minimize the significance of this interest by arguing that: (1) there is no automatic procedure for collecting the fine; (2) the Wilsons have “ample opportunity” to challenge the imposition, validity and amount of the fine assessed; and (3) the fine may be vacated or reduced should the Wilsons succeed in challenging it. The County argues that the risk of an erroneous deprivation is low because the code inspectors are skilled professionals who are trained to determine complex and technical code violations. They also contend that the government’s interest in protecting the public through code enforcement is high and the administrative burden of requiring additional hearings would be great.

We do not believe these arguments can be decided by a motion to dismiss, but are more properly decided after a jury has had the benefit of hearing evidence and argument from both parties on these issues. Accordingly, we conclude that the Wilsons’ allegations sufficiently alleged a cause of action under 42 U.S.C. § 1983.

Counts II through V: The Constitutional Challenges

The Wilsons argue that the lower court erred in dismissing Counts II through V because those counts attacked the facial constitutionality of statutes and ordinances. Orange County argues that the trial court properly dismissed these counts because (1) the counts fail to allege sufficient ultimate facts to support a cause of action; (2) the Wilsons failed to exhaust all of their administrative remedies; and (3) these constitutional challenges could have been raised in an appeal of the CEB final order and are therefore barred by res judicata.

Sufficiency of the Pleadings

Generally speaking, individuals may challenge the validity of a statute in a declaratory judgment action. Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991).

The test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all. Platt v. General Dev. Corp., 122 So.2d 48 (Fla. 2d DCA 1960), cert. dismissed, 129 So.2d 143 (Fla.1961). Thus, to activate jurisdiction the party seeking a declaration must show that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed. Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So.2d 1020 (Fla. 2d DCA 1979); Hialeah Race Course[, Inc. v. Gulfstream Park Racing Ass’n, 210 So.2d 750 [Fla. 4th DCA 1968)]. In this regard, the plaintiff must show a bona fide, actual, present, and practical need for the declaration. Platt, 122 So.2d at 50, citing May v. Holley, 59 So.2d 636 (Fla.1952).

X Corp. v. Y Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993).

We conclude the allegations were sufficient to invoke the circuit’s jurisdiction to determine the constitutionality of the challenged statutes and ordinances. The Wil-sons alleged an “immediate, substantial and actual justiciable controversy” between themselves and Orange County. The factual allegations support this assertion. Acting pursuant to the challenged statutes and ordinances, the County imposed thousands of dollars in fines and caused the Wilsons to lose significant rental income. These allegations were sufficient to demonstrate a “bona fide, actual, present, and practical need” for a declaration of their rights, vis-a-vis the challenged statutes and ordinances.

Failure to Exhaust Administrative Remedies

Orange County argues that these challenges were properly dismissed because of the Wilsons’ failure to exhaust administrative remedies. Specifically,' the County alleges that the Wilsons failed to appeal the CEB’s final order imposing fines and a lien. This argument fails for several reasons. First, failure to exhaust administrative remedies is an affirmative defense that is not apparent on the face of the complaint. Thus, it cannot be a valid basis for dismissal. Scovell. Second, failure to file an appeal to the circuit court pursuant to section 162.11, Florida Statutes, is not technically an administrative remedy. Third, even if this defense was applicable and apparent on the face of the complaint, it would not preclude a facial challenge to the constitutionality of the statute or ordinance being implemented. It is well established that the facial constitutionality of a statute may not be raised in an administrative proceeding. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Imp. Trust Fund,. 427 So.2d 153, 157 (Fla.1982), superseded by statute on other grounds as noted in Bowen v. Florida Dep’t of Envtl. Regulation, 448 So.2d 566 (Fla. 2d DCA 1984); Florida Public Employees Council 79, AFSCME v. Department of Children and Families, 745 So.2d 487 (Fla. 1st DCA 1999). For these reasons, we conclude that the Wilsons’ facial constitutional challenges cannot be barred by failure to exhaust administrative remedies.

Res Judicata

We do not mean to imply that the Wilsons could not have raised their facial challenges in an appeal to the circuit court of the order imposing fines. Section 162.11, Florida Statutes, provides for an appeal of CEB final orders, which has been held to be the proper forum to address constitutional claims. See Holiday Isle Resort & Marina Associates v. Monroe County, 582 So.2d 721, 721 (Fla. 3d DCA 1991) (holding that appeal under section 162.11 was proper forum to raise both facial and as applied constitutional challenges to code enforcement procedure). Accordingly, the Wilsons could have raised their constitutional challenges on appeal to the circuit court.

Because this option was available, Orange County argues that their constitutional challenges are barred by the doctrine of res judicata. We disagree. Res judicata is also an affirmative defense not apparent on the face of the complaint, and therefore, not cognizable on a motion to dismiss.

Even if it was apparent on the face of the complaint, res judicata would not bar these challenges. Orange County correctly argues that res judicata applies not only to matters previously raised, but also to matters which could have been raised, citing AGB Oil Co. v. Crystal Exploration and Production Co., 406 So.2d 1165, 1167 (Fla. 3d DCA 1981). However, as the supreme court in Albrecht v. State, 444 So.2d 8 (Fla.1984), superceded by statute on other grounds as noted in Bowen v. Florida Dept. of Environmental Regulation, 448 So.2d 566 (Fla. 2d DCA 1984), noted:

[T]his principle only applies when the elements of res judicata are present and the doctrine is properly applied. Where the second suit is upon the same cause of action and between the same parties as the first, res judicata applies. The first judgment is conclusive as to all matters which were or could have been determined. It has been well settled by this Court that several conditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the claim is made. It is also a settled rule that when the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it. Therefore, if the cause of action is not the same there will be no estoppel as to those issues which could have been litigated in the previous action. The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.

Albrecht, 444 So.2d at 11-12 (citations omitted). In the instant case, there is no identity of the causes of action. The original action was a code enforcement proceeding against the Wilsons. In the second action, the Wilsons sued Orange County for deprivation of rights under 42 U.S.C. § 1983 and also challenged the facial constitutionality of the applicable statutes and ordinances. These are different actions and the facts necessary to support them are different. In the first action, the county must present facts to prove that a code violation exists and later, must file an affidavit alleging facts showing that the violation has not been corrected. In the second action, the Wilsons must present evidence in Count I showing that they have been deprived of their rights by a person acting under color of state law. In Counts II through V, the Wilsons must present evidence showing that the applicable statutes and ordinances, on their face, work a deprivation of certain due process rights. The evidence of a code violation and failure to cure the violation in the first action is not essential to the second action. Thus, the actions are not the same and one of the threshold elements of res judicata has not been met.

Two other cases provide additional support for this conclusion. In Seminole Entertainment, Inc. v. City of Casselberry, 866 So.2d 1242 (Fla. 5th DCA 2004), this Court held that res judicata may bar challenges to the facial constitutionality of a statute or ordinance if they were previously litigated, but it does not bar facial challenges that could have been raised. Instead, raising such claims by a separate declaratory judgment action in the circuit court is appropriate. Id. at 1244. Likewise, in Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Imp. Trust Fund, 427 So.2d 153 (Fla. 1983), superseded by statute on other grounds as noted in Bowen v. Florida Dept. of Environmental Regulation, 448 So.2d 566 (Fla. 2d DCA 1984), the supreme court held that a party aggrieved by agency action may attack the facial constitutionality of the statute being implemented by the agency in two ways. It may exhaust its administrative remedies and then raise the constitutional challenges in its appeal to the district court of the agency action. Or, it may bypass the administra^ tive remedies and raise the constitutional challenge in a separate proceeding in the circuit court. Id. at 157.

Therefore, we conclude that although the Wilsons could have raised their facial challenges in an appeal of the fines, they can also raise them in a separate declaratory action. Accordingly, we reverse the dismissal with prejudice as to all five counts of the complaint and remand for further proceedings.

REVERSED and REMANDED.

MONACO, J., and DAVIDSON, L., Associate Judge, concur.

      . Section 162.09(1), Florida Statutes (1997) provided in pertinent part:
      An enforcement board, upon notification by the code inspector that an order of the enforcement board has not been complied with by the set time ... may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the enforcement board for compliance.... If a finding of a violation ... has been made as provided in this part, a hearing shall not be necessary for issuance of the order imposing the fine.
      Section ll-37(a), Orange County Code (1997), was virtually identical to the above statute.

      . Section 28-41, Orange County Code (1997) provided:

      . We note that the Wilson’s allegations, if proven, are strikingly similar to the facts in Massey v. Charlotte County, 842 So.2d 142 (Fla. 2d DCA 2003). In his well reasoned opinion for the court in Massey, Chief Judge Altenbernd analyzed the Mathews factors and concluded that the property owners' procedural due process rights were violated.

      . We note that on appeal, the Wilsons conceded they failed to appeal the order imposing fines.


author: TORPY, J.

text:
    Jennifer GRZELKA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2041.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    Rehearing Denied Sept. 17, 2004.

      Mitchell B. Krause, Longwood, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

In this DUI case, the question presented is whether the trial court abused its discretion in admitting evidence that Appellant refused to submit to a breath test. Finding that the lower court did not abuse its discretion, we affirm.

When asked to submit to a breath test, Appellant was warned that her refusal would result in the suspension of her driver’s license, but she was not informed that, if her license previously had been suspended for a prior refusal, her refusal would constitute a misdemeanor, as is required by section 316.1932(l)(a)l.a., Florida Statutes (2003). Appellant contends that the failure of the police to give the complete warning, as required, necessitates that the evidence of her refusal be excluded. We disagree.

Although section 316.1932(l)(a)l.a. provides that the refusal to submit to a breath test “upon the request of a law enforcement officer as provided in this section is admissible into evidence ...,” nothing in the statute requires exclusion when the statutory warning is not complete. Moreover, this statute, which is primarily intended to regulate the privilege of driving, does not provide the sole basis for admission of evidence related to breath testing. Pardo v. State, 429 So.2d 1313, 1315 (Fla. 5th DCA 1983). Thus, we must look to the general rules of evidence to determine if the trial court abused its discretion in admitting this evidence.

Generally, all relevant evidence is admissible unless excluded by law. § 90.402, Fla. Stat. (2003). Relevant evidence is that which tends to prove or disprove a material fact. § 90.401, Fla. Stat. (2003). Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence.

AFFIRMED.

THOMPSON and ORFINGER, JJ., concur.


text:
    Christopher NOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1019.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    Rehearing Denied Sept. 15, 2004.
    Christopher Nolan, Cross City, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of grounds 1, 3 and 4 of Christopher Nolan’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We remand the matter to the trial court for further consideration of ground 2 of Nolan’s postconviction motion in light of the supreme court’s opinion in Grosvenor v. State, 874 So.2d 1176 (Fla.2004), which had not been published at the time of the trial court’s order.

AFFIRMED IN PART AND REMANDED.

SHARP, W. and ORFINGER, JJ., concur.

GRIFFIN, J., dissents without opinion.


text:
    Ralph Edward CROMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1097.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Rehearing Denied Sept. 15, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of May 24, 2004, this appeal is hereby dismissed for lack of jurisdiction. See Patterson v. State, 868 So.2d 583 (Fla. 4th DCA 2004). Appellant’s motion to treat this appeal as a petition for writ of mandamus is DENIED. See Madden v. State, 780 So.2d 247 (Fla. 2d DCA 2001).

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    ESTATE OF Anthony MARTINEZ, Deceased, by and Through Co-Personal Representatives, Paul COWAN and Sheldon Rosenthal and Andres Martinez, Sr. and Jessica Hernandez, Appellants, v. POST BUCKLEY SCHUH JERNIGAN, INC., Grossman Holdings Limited, Bleeman Holdings Limited, and Homestead Properties, Appellees.
    No. 3D03-2407.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Feiler, Leach McCarron and Michael B. Feiler, Coral Gables; and Martin Leach, Miami, for appellants.
    Patrick C. Barthet, Miami, and Alexander E. Barthet; Thornton, Davis & Fein and Holly S. Harvey, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

On this appeal from the dismissal of an amended complaint in a child drowning-wrongful death case for failure to state a cause of action, the order under review is vacated and the cause remanded for a determination by the trial court as to whether the building permit and other pertinent documents relating to the construction and maintenance of the lake in which the child drowned create a mandatory slope requirement (which the plaintiffs allege the appellees violated). If the court so finds, or if a jury question is presented on the issue, the complaint should not be dismissed. See Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029 (Fla. 4th DCA 1993), review denied, 639 So.2d 979 (Fla.1994). If, as a matter of law, there is no such mandatory requirement, the motion to dismiss the complaint should again be granted. See Longmore v. Saga Bay Property Owners Ass’n, 868 So.2d 1268 (Fla. 3d DCA 2004); Kaweblum v. Thorn-hill Estates Homeowners Ass’n, Inc., 801 So.2d 1015 (Fla. 4th DCA 2001).

Vacated, remanded with directions.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Ramon J. MAYTIN, Appellee.
    Nos. 3D03-2235, 3D03-2765.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.

      Richard A. Sherman, Fort Lauderdale; Timothy W. Harrington, Miami, and Nancy St. Pierre, for appellant.
    Manuel Vega, Jr., Coral Gables; Lauri Waldman Ross, Miami, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

This is an appeal and cross-appeal of a judgment entered after a jury trial in an uninsured motorist case. We affirm in part and reverse in part.

Plaintiff-appellee Ramon J. Maytin recovered judgment against defendant-appellant Allstate Insurance Company, his uninsured motorist carrier. The trial court awarded attorney’s fees to the plaintiff on account of a proposal for settlement which was not accepted by Allstate. The trial court granted a 1.5 multiplier in making the award.

Subsequently the Florida Supreme Court announced Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla.2003), which prohibited the use of a multiplier in awarding attorney’s fees under section 768.79, Florida Statutes or Florida Rule of Civil Procedure 1.442. 863 So.2d at 223. The plaintiff confesses error on this point, conceding that the Sarkis decision applies to this case and requires elimination of the multiplier. We therefore reverse the attorney’s fee judgment and remand it for recalculation without the multiplier.

We affirm as to all remaining issues. We reject the defendant’s claim that the verdict regarding future pain and suffering is against the manifest weight of the evidence. See Kmart Corp. v. Bracho, 776 So.2d 342, 343 (Fla. 3d DCA 2001); Delva v. Value Rent-A-Car, 693 So.2d 574, 577 (Fla. 3d DCA 1997).

On the cross-appeal, we conclude that the trial court correctly limited the amount of the judgment to the policy limits. That being so, we reject the defendant’s remaining point on appeal as moot.

Affirmed in part, reversed in part, and remanded for reduction of attorney’s fee judgment.


text:
    The STATE of Florida, Appellant, v. Kirk Douglas BILLIE, Appellee.
    No. 3D04-1213.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Sept. 15, 2004.

      Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellant.
    Scott A. Srebnick, Miami, and Gary Rosenberg, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

The State has appealed two pretrial orders in a pending homicide case. We treat the appeal as a petition for writ of certio-rari. We conclude that the state’s position is well taken.

I.

In a previous appeal, this court reversed the second degree murder conviction of defendant-respondent Kirk Douglas Billie and remanded for a new trial. See Billie v. State, 863 So.2d 323 (Fla. 3d DCA 2003). The retrial is scheduled to commence in the near future.

At the original trial, the defendant testified in his own defense. The State moved for a pretrial ruling that the State be allowed to introduce at the retrial the defendant’s testimony from the first trial. This was with the proviso that State would redact the defendant’s testimony relating to Williams Rule evidence which was introduced at the original trial but which, on appeal, this court held inadmissible. See Billie, 863 So.2d at 325-32.

The trial court ruled that the defendant’s prior testimony could not be introduced as part of the State’s case-in-chief. However, the court ordered that if the defendant takes the stand and testifies on his own behalf, the State can use the redacted version of his previous trial testimony for impeachment and rebuttal purposes. The State has appealed.

From the standpoint of the Evidence Code, the defendant’s prior testimony is admissible against the defendant at the retrial, as an admission. See § 90.803(18), Fla. Stat., (2003). The parties are in agreement on this point.

The trial court excluded such testimony from the State’s case in chief, however, on the theory that the defendant’s privilege against self incrimination precluded it. For this proposition the trial court relied on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). Respectfully, the court misinterpreted that case.

As a general rule, “a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” 392 U.S. at 222, 88 S.Ct. 2008 (footnote omitted); Pendleton v. State, 348 So.2d 1206, 1208 (Fla. 4th DCA 1977).

The Harrison case created an exception to the general rule. In Harrison, the government introduced illegally obtained confessions of the defendant. Because of this, the defendant took the stand (when he otherwise would not have testified) to rebut the confessions. 392 U.S. at 222-26, 88 S.Ct. 2008. Because the court was satisfied that the defendant took the stand for that reason and no other, the court ruled that the defendant’s trial testimony could not be used in his retrial. “[T]he same principle that prohibits the use of confessions so [illegally] procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor.” Id. at 222, 88 S.Ct. 2008. The Harrison decision thus creates a special rule applicable solely to the circumstance in which an illegally obtained confession has been introduced, the defendant takes the stand to reply to the illegally obtained confession, and the court is satisfied that the defendant took the stand for that reason and no other. See id. at 222-26, 88 S.Ct. 2008; Rogers v. State, 844 So.2d 728, 733-34 (Fla. 5th DCA 2003).

In the present case there was no confession, much less any illegally obtained confession. Thus the rule in Harrison does not apply.

The defense suggests that in the first trial the defendant took the stand to reply to the Williams Rule evidence which had been introduced against him. On the first appeal, this court held that much of that evidence should have been excluded, and ordered a new trial. 863 So.2d at 332. The defendant argues that the Harrison should be extended to apply to his situation. That argument is without merit. The Harrison Rule is inapplicable outside the context of an illegally obtained confession. See Rogers, 844 So.2d at 734.

II.

The defense argues alternatively that the testimony is inadmissible at the new trial under Florida Rule of Criminal Procedure 3.640, entitled “Effect of Granting New Trial.” Rule 3.640(b) provides:

(b) Witnesses and Former Testimony at New Trial. The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the state, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the evidence must show due diligence in attempting to procure the attendance of witnesses at the trial and must show that the witness is not absent by consent or connivance of that party.

The defendant contends that the Rule applies to him and precludes the State from introducing his prior testimony. We disagree.

By both its terms and its logic, Rule 3.640(b) applies to testimony of witnesses, not the testimony of the defendant. The point of the rule is to require live witness testimony where possible, instead of having the new trial consist of a reading of the transcript of the previous trial.

Stated differently, it is illogical to believe that the Florida Supreme Court adopted this rule so as to place a burden on the State to call the defendant to the stand in the event of a criminal retrial, when in reality, the State has no ability to place the defendant on the stand. It would likewise be illogical to read this rule as erasing the hearsay exceptions contained in section 90.803, Florida Statutes. We conclude that Rule 3.640(b) does not apply to the prior testimony of a criminal defendant, and that the defendant’s prior testimony is admissible under subsection 90.803(18), Florida Statutes.

III.

The State also claims error in another pretrial ruling whereby a certain testimony of Rebecca Smith was excluded. At the previous trial, there was testimony by Sheila Tiger, the defendant’s ex-girlfriend and the mother of the couple’s three children. She “described an incident in November of 1994 where Billie held a hammer over the head of one of the victims, who was sleeping at the time (‘hammer incident’). Ms. Tiger admitted that she was scared and that she put herself between the child and the hammer.” 863 So.2d at 326. In the prior appeal, this court held that testimony regarding this incident is admissible. Id.

Ms. Tiger told Ms. Smith about the “hammer incident.” Ms. Smith asked the defendant about this. At the original trial, Ms. Smith’s testimony was:

Q: And what did he do or say?
A: Well, I asked him if what Sheila told me was true, and he nodded his head.
Q: You are nodding your head up and down, affirming?
A: Yeah. And then he said that he was going to have to take care of Sheila, because Sheila talked about things that she shouldn’t have talked about?

On the defendant’s motion, the trial court ruled that the testimony regarding the nod was admissible, while the verbal comments are not admissible. The State concedes that the defendant’s statement “that he was going to have to take care of Sheila” was properly excluded as unfairly prejudicial.

The State argues, however, that the remainder of the statement, “Sheila talked about things that she shouldn’t have talked about,” is admissible and not unfairly prejudicial. The State argues that standing alone, the nod might be construed as being ambiguous, while the defendant’s verbal response tends to remove any ambiguity. We concur with the State and quash this part of the pretrial order as well.

For the stated reasons, we grant certio-rari and quash the indicated portions of the two pretrial orders.

Certiorari granted.

      . Williams v. State, 110 So,2d 654 (Fla.1959), codified as § 90.404, Fla. Stat. (2003).

      . The court urges the Florida Supreme Court and the Criminal Procedure Rules Committee to revisit Rule 3.640(b) with a view toward repealing or revising it. It was adopted in 1968 (based on even earlier statutes), and appears to have become largely or totally unnecessaiy after the more recent adoption of the Florida Evidence Code. The potential for conflict between Rule 3.640(b) and the Evidence Code has been noted. See Happ v. Moore, 784 So.2d 1091, 1102 (Fla.2001).


text:
    Willie RIVERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2681.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2004.
    Rehearing Denied Sept. 10, 2004.
    Willie Rivers, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

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

ERVIN, ALLEN and HAWKES, JJ., concur.


author: GRIFFIN, J.

text:
    Edward R. COX, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 5D03-3553.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      Sam Baxter Bardwell, of Sam Baxter Bardwell, P.A., Titusville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Fort Lauderdale, for Appellee.
   GRIFFIN, J.

Edward W. Cox [“Cox”] appeals an order dismissing a forfeiture action with prejudice.

On October 31, 2002, Michelle Lee Vil-lanti [‘Villanti”], while driving a 2000 Ford F150 truck owned by Cox, was involved in a crash. Villanti failed the roadside sobriety tests. In addition, the officer determined that Villanti’s license had been suspended for a prior DUI and had never been reinstated. Villanti was arrested, and Cox’s truck was seized.

The Florida Department of Highway Safety and Motor Vehicles [“DHSMV”] filed a complaint seeking forfeiture of Cox’s vehicle pursuant to the “Florida Contraband Forfeiture Act,” sections 932.701-932.707, Florida Statutes, and section 322.34(9), Florida Statutes (2001). Attached to the complaint was a verified affidavit from the arresting officer, which included a statement, made by Villanti shortly after the crash, that Cox knew that her license had been suspended for DUI “a long time ago,” but Cox still “gives her the keys.”

Cox exercised his right to an adversarial preliminary hearing, but no transcript of the hearing is contained in the record on appeal. In the order issued on November 18, 2002, the court found, based on the court’s review of the complaint and the attached supporting affidavit, that the seizure was supported by probable cause.

Following entry of the order finding probable cause, Cox was granted leave to file an amended answer and counterclaim. As affirmative defenses, he asserted that the DHSMV had failed to act in “good faith” and had engaged in a “gross abuse” of its discretion. He also counterclaimed for damages, alleging that the DHSMV knew or should have known it had no “admissible evidence” to support its forfeiture complaint because an investigation would have revealed that Villanti had taken Cox’s truck without his knowledge or permission. It further alleged that Cox had little or no equity in the truck at the time of the seizure due to a lien in favor of Citrus Bank. Based on these allegations, Cox asserted that he was entitled to recover:

damages including, but not limited to the fair rental value of his vehicle since the date of seizure, the diminution in market value caused by the passage of time during the seizure and retention of his vehicle, damages relating to any deterioration or damage to the vehicle while being seized and retained by the FLORIDA DEPARTMENT OF MOTOR VEHICLES & HIGHWAY SAFETY, costs of this action, and attorney’s fees, pursuant to Section 57.105 and Section 932.704, Florida Statutes.

The DHSMV filed a motion to dismiss the counterclaim. The court entered an order dismissing Cox’s counterclaim, explaining:

1. That any action for damages is premature until the merits of the forfeiture action are decided.
2. On authority of Wheeler v. Corbin, 546 So.2d 723 (Fla.1989), damages are not recoverable for loss of use as a consequence of seizure by a government agency.
3. The Respondent’s Counterclaim is not a compulsory Counterclaim.

(Emphasis added).

Nine days later, the DHSMV dismissed the main forfeiture action with prejudice. Cox objected to the dismissal and, at a hearing on Cox’s objection, the court seemingly agreed that Florida Rule of Civil Procedure 1.420(b) required the court to approve the dismissal. The DHSMV argued that the case should be dismissed because the truck had been returned to the lienholder, which had issued an affidavit of repossession under section 319.28, Florida Statutes (2002). Cox replied that returning the truck to the lienholder was not an option under the forfeiture statute, which required the DHSMV to either return the truck to him or retain the truck and pay off the lienholder. He claimed that he had “paid every nickel that is due” and had kept the truck insured. He contended that he was entitled to “a day in court” to show the repossession was wrongful and that discovery was necessary to show that the seizing agency had proceeded in bad faith or had grossly abused its discretion. In granting the motion to dismiss with prejudice, the trial court seemingly relied on the counterclaim being permissive.

Cox first argues that the complaint and verified affidavit were insufficient to support the preliminary finding that there was probable cause for the seizure. We reject this claim because the affidavit was sufficient. The question of whether probable cause exists “involves the question of whether the information relied upon by the state is adequate and sufficiently rehable to warrant the belief by a reasonable person that a violation had occurred.” Medians v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988) (quoting Lobo v. Metro-Dade Police Dep’t, 505 So.2d 621, 623 (Fla. 3d DCA 1987)). Here, according to the affidavit, Villanti had admitted to the seizing officer shortly after the crash that Cox knew that her license had been suspended for DUI “a long time ago,” but Cox still “gives her the keys.” Allowing Villanti to drive his truck knowing she had no license is a misdemeanor of the second degree. See § 322.36, Fla. Stat (1991).

Cox next urges that the trial court erred by dismissing his counterclaim for damages. He asserts that the counterclaim was compulsory under section 932.704(9), Florida Statutes (2001). He further asserts that his damage claim is not precluded by Wheeler v. Corbin,, 546 So.2d 723 (Fla.1989), which indicated that loss of use damages are not available in tort actions involving a forfeiture.

The right to damages in a case involving wrongful forfeiture is controlled by section 932.704, Florida Statutes (2001):

(9)(a) When the claimant prevails at the conclusion of the forfeiture proceeding, if the seizing agency decides not to appeal, the seized property shall be released immediately to the person entitled to possession of the property as determined by the court. Under such circumstances, the seizing agency shall not assess any towing charges, storage fees, administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.
(b) When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency, or his or her designee. The trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process. The trial court shall also require the seizing agency to pay to the claimant any loss of income directly attributed to the continued seizure of income-producing property during the trial or appellate process. If the claimant prevails on appeal, the seizing agency shall immediately release the seized property to the person entitled to possession of the property as determined by the court, pay any cost as assessed by the court, and may not assess any towing charges, storage fees,
administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.
(10) The court shall award reasonable attorney’s fees and costs, up to a limit of $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law.

Id. (emphasis added). This court has previously held that an action for damages under this statute must be brought within the original forfeiture proceeding or the claim is waived. See, e.g., Pondella Hall for Hire v. Croft, 844 So.2d 696 (Fla. 5th DCA 2003) (claimant forfeited right to damages under Chapter 932 when it failed to avail itself of mechanism provided for in statute during pendency of action).

The counterclaim filed by Cox was based on the contention that the DHSMV knew or should have known it had no “admissible evidence” to support its forfeiture complaint, because an investigation would have revealed that Villanti had taken Cox’s truck without his knowledge or permission. It further alleged that Cox had little or no equity in the truck at the time of the seizure due to a lien in favor of Citrus Bank. The “counterclaim” sought as damages:

the fair rental value of his vehicle since the date of seizure, the diminution in market value caused by the passage of time during the seizure and retention of his vehicle, damages relating to any deterioration or damage to the vehicle while being seized and retained by the FLORIDA DEPARTMENT OF MOTOR VEHICLES •& HIGHWAY SAFETY, costs of this action, and attorney’s fees, pursuant to Section 57.105 and Section 932.704, Florida Statutes.

Insofar as Cox seeks to recover the “fair rental value” of his vehicle since the date of seizure, the recovery of these damages is not authorized by chapter 932. Such damages also appear to be the equivalent of the “loss of use” damages which the court found could not be recovered by a claimant in a forfeiture action in Wheeler. In Wheeler, the claimant sought damages against the mayor and police chief for the wrongful seizure of her vehicle, once that seizure was determined to be wrongful on appeal. The trial court dismissed her claim for loss of use and the supreme court affirmed. The court explained that:

Wheeler’s claim [for loss of use damages during the impoundment] is analogous to a cause of action for malicious prosecution. To prevail in an action for malicious prosecution, the claimant must prove that there was an absence of probable cause to initiate proceedings. Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1218 (Fla.1986). Here, Wheeler conceded that respondents had probable cause to seize her car as contraband under section 932.703.

Id. 546 So.2d at 725. In this case, although Cox does not concede it, we have determined that the seizure was in fact supported by probable cause.

Nonetheless, at least some of Cox’s remaining claims do appear to be authorized by section 932.704(9)(b), Florida Statutes (2001). Under the statute, Cox may be considered a “prevailing party” even though the seizing agency dismissed the action. Gay v. Beary, 758 So.2d 1242 (Fla. 5th DCA 2000). The statute permits the recovery of “the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process.” § 932.704(9)(b), Fla. Stat.

The DHSMV contends that Cox has waived his right to recover damages and fees under Chapter 932 by taking inconsistent positions regarding his right to maintain an independent action for wrongful seizure. This argument is based on a statement made by the trial court at the hearing on Cox’s objections to dismissal that Cox had previously stated that the counterclaim was permissive. We do not have this statement in the record, but assuming this was said, confusion on this issue is understandable because of uncertain case law concerning the availability of an independent action. In any event, our Pondella Hall for Hire case clarified the status of a section 932.704 claim.

The DHSMV also argues that Cox’s claim for fees and damages is moot because Cox’s truck has been repossessed by the lender. The fact may limit damages but does not necessarily eliminate them.

Here, the court gave approval for the DHSMV to voluntarily dismiss the forfeiture action, but it was error to dismiss the entire action with prejudice. Cox should have an opportunity to replead to try to state a cause of action under section 932.704, Florida Statutes (2001).

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ., concur.

      . Section 322.34(9), Florida Statutes (2001), states:
      (9) (a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person's driver's license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.

      . We also note that no transcript of the adversarial hearing was provided in the record on appeal.

      . Still pending was a claim for damages for negligent storage.


author: ERVIN, J.

text:
    ORIX CAPITAL MARKETS, LLC, Appellant, v. PARK AVENUE ASSOCIATES, LTD., Grand Lagoon Associates, Ltd, and Governor’s Square Associates, Ltd., Texas limited partnership, Appellees. Park Avenue Associates, Ltd., Grand Lagoon Associates, Ltd, and Governor’s Square Associates, Ltd., Texas limited partnership, Appellants, v. Orix Capital Markets, LLC, Appellee.
    Nos. 1D03-2103, 1D03-2592.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Rehearing Denied Sept. 15, 2004.

      Lee D. Mackson and Geoffrey L. Travis of Shutts & Bowen LLP, Miami, for Appellant.
    Richard M. Zabak, Michael E. Riley, and Chanta G. Combs of Gray, Harris & Robinson, P.A., Tallahassee, for Appellees.
   ERVIN, J.

In these two cases, consolidated for the purpose of this opinion, Orix Capital Markets, LLC (lender), appeals from a final summary judgment in which the lower court ruled that Park Avenue Associates, et al. (borrowers), could recover late charges they paid on the unpaid principal balances of certain promissory notes, concluding that the notes required such charge only on each late monthly installment, and not on the substantial outstanding balances due at maturity. The borrowers separately appeal from the trial court’s order denying their motion for costs and attorney fees, which they sought following the entry of summary judgment in their favor, challenging the lower court’s determination that they could not be considered the prevailing parties in the litigation. We affirm the summary judgment, and reverse the order denying the motion for costs and fees, and remand the latter case with directions.

Each of the three disputed notes required the borrowers to pay the sums advanced to them “in consecutive monthly installments” in the same specified monthly amounts over the term of nearly seven years, “until the entire indebtedness evidenced hereby is fully paid, except that any remaining balance, if not sooner paid, shall be due and payable on January 1, 2002.” A subsequent paragraph of each note provided that “[i]f any installment under this Note is received by the holder ... within ten (10) calendar days after the installment is due, the undersigned shall pay to the holder ... a late charge of five (5) percent of such installment.” (Emphasis added.)

After the borrowers had defaulted on the final payment of each note, the lender commenced a mortgage foreclosure suit, which was settled by the borrowers paying off the outstanding sums in full, including the controverted late charges, as well as the lender’s costs and attorney fees, while reserving their right to challenge the lender’s entitlement to the charges on the principal balances. Orix then voluntarily dismissed the foreclosure suit with prejudice on May 6, 2002, and the borrowers, with the agreement of the lender, continued the litigation only as to the controversy over the service charges. The borrowers first raised the service-charge issue in an amended counterclaim, resulting in the entry of summary final judgment in their favor on April 22, 2003, a year after dismissal of the mortgage foreclosure suit. Based upon this recovery, the borrowers moved for costs and fees, which, as stated, were denied on the theory they were not the prevailing parties.

I. The Appeal from the Summary Judgment

The lender’s primary contention is that by allowing the borrowers to recover on their late-charge claim, the trial court erred in ignoring the plain meaning of the words “any installment” in the notes, by construing the term to apply only to the consecutive, monthly installments. We cannot agree with this argument. In granting the borrowers’ motion for summary judgment, the lower court made the following pertinent findings:

The late charge provisions of the subject notes expressly apply only to “installments” which plainly consist of the installments referenced in the opening paragraph of each note and not to the substantial balances due at maturity. See In re Brunswick Apartments of Trumbull County, Ltd., 169 F.3d 333, 335 (6th Cir.1999). That case involved a note which, like the notes in this case, provided for a 5% charge on unpaid “installments.” The Sixth Circuit Court of Appeals found that it was “obvious that the note contemplates a service charge only on unpaid monthly installments.” In addition, the notes in this case do not contain any references to the balances due at maturity as “installments” or as “final installments.” Furthermore, although the lender could have included language imposing the late charges on any unpaid balance due at the maturity of the notes or on “any payment” not timely made, it did not do so.

In our judgment, the court’s conclusion is affirmable, either on the theory explicitly stated by it that the language used in the notes clearly and unmistakably applies late charges only as to the consecutive monthly installments, which were payable in equal, specified amounts, or, if the terms employed were ambiguous, the ambiguity is required to be construed against the drafter of the instrument, who, in this case, was the lender’s predecessor in interest. See Seifert v. U.S. Home Corp., 750 So.2d 633, 641 (Fla.1999).

II. The Appeal from the Order Denying Costs and Fees

In denying the motion for attorney’s fees on the ground that the borrowers were not the prevailing parties in the litigation, the trial court implicitly applied the “net judgment” rule. In “net judgment” cases the test for determining who is the prevailing party for purposes of an award of attorney’s fees in a contract action turns on which of the parties recovered a judgment. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). In a later case, Prosperi v. Code, Inc., 626 So.2d 1360 (Fla.1993), the Florida Supreme Court cautioned against an inflexible application of the rule, and refined it further by making the following observations:

The fact that the claimant obtains a net judgment is a significant factor but it need not always control the determination of who should be considered the prevailing party. We hold that in considering whether to apply the net judgment rule, the trial judge must have the discretion to consider the equities and determine which party has in fact prevailed on the significant issues.

Id. at 1363.

By using the term “significant issues,” the court must have contemplated its earlier rule authorizing an award of fees in regard to a separate and independent claim. In a case involving a multicount malpractice complaint involving separate claims, the court stated that “where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim.” See Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986). Another factor to consider in assessing the separate character of a claim, in cases where both parties prevail on a portion of the claims in litigation, is that a determination should be made “ ‘whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims.’ ” Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1986).

Although Folta was a malpractice action, the rule there announced has been applied in other types of actions, including those for breach of contract. See Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). Based on our review of pertinent case law, we conclude that the resolution of the issue of whether the borrowers can be considered the prevailing parties on the late-charge claim turns on whether it can be deemed an independent action, and not an alternative theory of liability for the same wrong. If separate and distinct, the prevailing party on such claim is entitled to an award of attorney’s fees.

In our judgment, a thorough analysis of this issue requires both a determination of whether the counterclaim asserting reimbursement of the late-charge payment is compulsory or permissive, and of the effect of the parties’ stipulation on the counterclaim. If compulsory, meaning “it [is one] aris[ing] out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” Florida Rule of Civil Procedure 1.170(a), the counterclaim cannot, in our judgment, be considered a claim independent from the suit in mortgage foreclosure. A primary consequence of a party’s failure to assert a compulsory counterclaim is that such failure “constitutes a waiver of the [party’s] right to recover on it.” See Fla. R. Civ. P. 1.170(a), Author’s Comment— 1967. Moreover, the purpose behind the rigid application of the compulsory counterclaim rule should not be overlooked: “[T]o promote judicial efficiency by requiring defendants to raise claims arising from the same ‘transaction or occurrence’ as the plaintiffs claim.” Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla.1992). On the other hand, a permissive counterclaim, one “not arising out of the transaction or occurrence,” may either be asserted in the same action as a counterclaim, or by “separate action” on the claim. Id., Author’s Comment — 1967. In our judgment, if the borrowers’ counterclaim can be deemed permissive, it must then be considered a separate and distinct claim that would support an award of attorney’s fees.

As stated, the borrowers sought repayment of late charge expenses which was, in effect, a claim for recoupment, defined, among other things, as “[t]he recovery or regaining of something, esp. expenses.” Black’s Law Dictionary 1280 (7th ed.1999). In modern practice, the recoupment claim has been replaced by the compulsory counterclaim. In Maynard v. Household Finance Corp. III, 861 So.2d 1204 (Fla. 2d DCA 2003), a mortgage foreclosure suit was answered by a counterclaim, which the court characterized as a claim for fraud in the inducement or for breach of contract. The court considered that the counterclaim was essentially one for recoupment, stating: “A recoupment seeks to diminish or exceed the damages sought by the plaintiff.” Id. at 1207. The court continued with the following observation: “Viewed as a breach of contract claim, the Mortgagor’s counterclaim was necessarily a compulsory counterclaim to HFC’s foreclosure action based upon breach of the promissory note.” Id.

The Florida Supreme Court has adopted the following test to determine whether a counterclaim can be deemed compulsory:

“[A] claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts- as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.”

Londono, 609 So.2d at 20 (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA1981)).

In our case, the borrowers’ counterclaim, seeking recoupment of one of the items the lender had claimed in its suit— the late charge — clearly had a logical relationship to the original claim in that the same aggregate facts, i.e., the borrowers’ default, served as the basis for the assertion of both claims. We therefore conclude that the counterclaim, if it had been brought as an independent action in the absence of the stipulation, would have been subject to dismissal, in that it obviously falls into the category of a compulsory counterclaim.

This conclusion does not, however, end our inquiry. As stated, in exchange for the borrowers’ full satisfaction of all claims demanded by the lender, the parties agreed that the lender would dismiss its suit with prejudice and that the borrowers could pursue their rights “to contest the propriety of and seek recovery of the late charges.” As a result of this agreement, the rules pertinent to compulsory counterclaims no longer applied, because any attempt by the lender to dismiss the later filed counterclaim on the ground that it was compulsory would have been subject to denial. See Landers v. Smith, 379 S.W.2d 884 (Mo.Ct.App.1964) (holding that the failure to assert a compulsory counterclaim in a prior action between the same parties does not preclude a compulsory counterclaim in a later action if the prior action was dismissed on a stipulation reserving the claim).

By the parties’ agreements, the counterclaim effectively became permissive, or a distinct and separate claim. Indeed, by agreeing that the borrowers could subsequently file their late-charge claim, the parties’ stipulation also obviated the necessity for bringing a compulsory counterclaim in the same action as that of the opposing party, the purpose of which is to avoid a multiplicity of lawsuits arising from the same transaction or occurrence. Finally, the investigation and prosecution of the counterclaim, filed only after the voluntary dismissal of the plaintiffs suit, was entirely separate from the initial claim. Therefore, because the borrowers prevailed on their action for recoupment, they were entitled to an award of attorney fees.

The summary judgment in case no. 1D03-2103 is AFFIRMED, and the order denying costs and attorney’s fees in case no. 1D03-2592 is REVERSED, and the case is REMANDED for further consistent proceedings.

WOLF, C.J., and VAN NORTWICK, J., concur.

      . The borrowers predicated their motion for attorney's fees and costs on the notes and on the reciprocal attorney's fee provision set forth in section 57.105(6), Florida Statutes (2002). The notes provide in pertinent part:
      In the event of any default in the payment of this Note, and if the same is referred to an attorney at law for collection or any action at law or in equity is brought with respect hereto, the undersigned shall pay the holder hereof all expenses and costs, including but not limited to, attorney’s fees.
      Section 57.105(6), states in pertinent part:
      If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that other party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

      . In making such determination, the trial court apparently accepted the lender's argument, now advanced on appeal, that the borrowers could not be considered the substantially prevailing parties in the litigation because their recovery on the late-charge claim was less than five percent of the total sum which the lender recovered in its suit for mortgage foreclosure.

      . The rule has long since been established that once a plaintiff's cause of action is dismissed, the counterclaim effectively becomes the original pleading in the case. See Fred Howland, Inc. v. Gore, 152 Fla. 781, 13 So.2d 303 (1942).


text:
    James A. McCLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3743.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    James A. McClinton, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

James A. McClinton [“McClinton”] appeals pro se the denial of his motion for post-conviction relief. In 2001, McClinton had been charged by amended information with second-degree murder with a weapon. After a jury found him guilty as charged, he was sentenced to life imprisonment. We find no merit in any of the several post-conviction issues he has raised.

The trial court did not abuse its discretion in denying McClinton’s motion for appointment of counsel for the post-conviction evidentiary hearing. There is no right to counsel in post-conviction proceedings and the issues involved did not require the help of counsel to develop.

McClinton did not demonstrate deficient performance of trial counsel for failure to call a witness, Tony Frazier. Counsel testified that Tony Frazier repeatedly denied being present during the incident. Nor did the trial court err in summarily denying the claims in the motion asserting that counsel was ineffective for failure to impeach the medical examiner’s testimony or for failure to introduce evidence regarding the victim’s alleged intoxication as she reported to multiple persons who came to her aid that McClinton had hit her with a “two-by-four.” These claims were conclusively refuted by the record. Finally, the trial court correctly summarily denied McClinton’s claim that counsel was ineffective for failing to challenge the State’s peremptory strike of an African-American juror. This claim was both facially insufficient and conclusively refuted by the record.

AFFIRMED.

THOMPSON and ORFINGER, JJ., concur.


author: POLSTON, J.

text:
    Monica DAVID, Chairman, Florida Parole Commission, Petitioner, v. Hershel B. MEADOWS, a/k/a Hector Bige Meadows, a/k/a Jasson Lloyd Cordey, a/k/a David Adams, Respondent.
    No. 1D03-4479.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Rehearing Denied Sept. 15, 2004.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Petitioner.
    Bernard F. Daley, Jr., Law Office of Bernard F. Daley, Jr., Tallahassee, for Respondent.
   POLSTON, J.

Petitioner Monica David, Chairman of the Florida Parole Commission, seeks review of the trial court’s order granting Respondent Hershel Meadows’ petition for writ of prohibition. The trial court’s order states:

On August 27, 1999, [Meadows] reached the Tentative Release Date on his criminal sentences for two counts of Attempted Sexual Battery and pursuant to Section 947.1405, Florida Statutes, was placed on Conditional Release supervision by the Florida Parole Commission. [Meadows] however was not released from confinement and into the community but instead was detained pursuant to the civil commitment procedures in the Jimmy Ryce Act and held within a secure Florida Department of Children and Families facility. See Sections 394.91 to 394.931, Florida Statutes.
On April 10, 2003, the Florida Parole Commission issued the Warrant for Retaking Conditional Releasee, which charged [Meadows] with violating his Conditional Release supervision by not participating in a sex offender treatment program.
The instant dispute revolves around the intent of the Florida Legislature in their adoption of Fla. Stat. § 947.1405 (“Conditional Release Program Act”) and whether in the adoption of this Conditional Release supervision scheme there was an intent on the part of the Florida Legislature to allow the Respondent to subject offenders who are civilly committed to the conditions included within the Conditional Release Program Act (CRPA). As is pointed out by Respondents in their response; “No provision is made in the Conditional Release statute or in the Commission’s rules for instances where the releasee may be detained either pursuant to a detainer from another jurisdiction or as in this case a civil commitment.” This undisputed fact as well as Petitioner’s arguments which cast substantial doubt on the actual intent of the Florida Legislature in regards to their drafting of the CRPA leads to this Court’s determination that good cause exists to issue the present order prohibiting the Respondent from subjecting the Petitioner to the requirements of Fla. Stat. § 947.1405 while he is civilly committed within the custody of the Florida Department of Children and Families. Nothing within this order however prevents the Respondent from tolling the Petitioner’s statutorily required term of Conditional Release supervision until such time that Petitioner is actually released into the community.

Emphasis and footnotes added.

In short, the trial court ruled as a matter of law that offenders cannot simultaneously be on conditional release and civilly committed under the Jimmy Ryce Act and that the terms of conditional release may be tolled during the period of civil commitment. We disagree.

The trial court ruled that offenders cannot be on conditional release while committed under the Jimmy Ryce Act because the applicable statutes do not permit it. This ruling was in error because there are no restrictions found in the Conditional Release Program Act and the Jimmy Ryce Act that prohibit simultaneous compliance. In Bolden v. Florida Department of Corrections, 865 So.2d 1 (Fla. 1st DCA 2003) (granting petition for writ of certiorari to review an order denying a petition for mandamus), this court held that Bolden’s conditional release supervision should not be tolled even though he was continuing to serve the incarcerative sentences for other convictions. The court in Bolden stated that tolling was not appropriate because “there is no windfall to Bolden in that he was not given the benefit of freedom, albeit subject to supervision, as a result of the additional gain time earned on the shotgun offense, because he remained incarcerated on the related assault and battery offenses.” Id. at 4. The same rationale applies to Meadows because he was not given the benefit of freedom, subject to supervision. If a defendant may complete his conditional release supervision while in prison, he should be permitted to complete it while civilly committed. Cf. State v. Harris, 2004 WL 1064790, 881 So.2d 1079, 1080-84, 1085 n. 4 (Fla. May 13, 2004) (accepting the State’s representation that the defendant was serving the probationary portion of his sentence while civilly committed under the Jimmy Ryce Act; “involuntary civil commitments are civil in nature, not criminal”). See also Mayes v. Moore, 827 So.2d 967, 972 (Fla.2002) (the Parole Commission has broad authority to establish the terms and conditions of conditional release under the applicable statutes and the Florida Constitution, art. IV, § 8(c), Fla. Const.).

Meadows asserts that he was prohibited from complying with the terms of his release program because of his Jimmy Ryce Act confinement. The Commission argues that Meadows refused to comply with the terms of the program and should therefore be found in violation of his conditional release supervision. These disputed contentions are factual determinations that must be sorted out by the trial court on remand. In the event that Meadows is found unable to comply with his release program because of his civil confinement, he should not be found in violation and should receive credit for the time during commitment. See Copeland v. State, 864 So.2d 1197, 1199 (Fla. 1st DCA 2004) (reversing probation revocation because the State did not sufficiently prove that the violations of probation were willful); Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001) (stating that “illness can render technical violations of probation not substantial or willful because a mental or physical illness can be debilitating to the point that a probationer cannot comply with the terms of probation”); Tal-Mason v. State, 515 So.2d 738 (Fla.1987) (holding that defendant was entitled to credit for detention in a mental institution for incompetence to stand trial); Haveard v..State, 520 So.2d 636 (Fla. 1st DCA 1988) (holding that the defendant was entitled to credit for the period of involuntary hospitalization). If, on the. other hand, Meadows is found in violation of the terms and conditions of release, the Commission has broad authority to either grant or deny him credit for time spent on conditional release when that release is revoked. See Rivera v. Singletary, 707 So.2d 326 (Fla.1998).

Therefore, we grant the petition for writ of certiorari, quash the trial court’s order, and remand for further proceedings with instructions.

WEBSTER and VAN NORTWICK, JJ., concur. .

      . See generally Mayes v. Moore, 827 So.2d 967 (Fla.2002) (discussing the Conditional Release program and holding that the program does not violate various constitutional challenges); Duncan v. Moore, 754 So.2d 708 (Fla.2000) (same).

      . On November 26, 2003, a jury in Palm Beach County determined that Meadows should not be committed to the custody of DCF under the Jimmy Ryce Act and he was discharged from custody.


author: RAMIREZ, J.

text:
    Hansel CLARKE, Petitioner, v. Jerry REGIER, Secretary of Department of Children and Families and Diane Funston, Administrator of South Florida State Hospital/Atlantic Shores Healthcare, Inc., Respondents.
    No. 3D04-1604.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 2004.
    Levine & Finger, and Jay L. Levine, Miami, for petitioner.
    Mary Ellen McDonald, Chief District Legal Counsel for Department of Children and Families, District 11; Katherine Fernandez Rundle, State Attorney Office, and Monica Gordo, Assistant State Attorney; and Larry Davis, Counsel for South Florida State Hospital/Atlantic Shores Healthcare, Inc., and Diane Funston, Administrator of South Florida State Hospital/Atlantic Shores Healthcare, Inc.; and Jerry Regier, Secretary of Department of Children and Families, for respondents.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

Petitioner, Hansel Clarke, petitioned this court for a writ of habeas corpus directed to the respondents, Jerry Regier, as Secretary of the Department of Children and Families and Diane Funston, Administrator of the South Florida State Hospital/Atlantic Shores Healthcare, Inc. We hereby treat the petition as one for a belated appeal and reverse the order of the trial court because it had no authority to continue the involuntary commitment of petitioner in light of the uncontroverted expert testimony.

Petitioner argues that habeas corpus is the proper remedy to obtain a person’s release from an order of involuntary commitment to the custody of the Department of Children and Families. MacNeil v. State, 586 So.2d 98 (Fla. 5th DCA 1991); Thurston v. Navarro, 546 So.2d 448 (Fla. 4th DCA 1989). Petitioner was committed to the custody of the Department following his acquittal by reason of insanity for a homicide he committed in 1978. Many years later, he was granted conditional release. In 1992, petitioner pled guilty to Attempted Second Degree Murder in Pi-nellas County and received probation, which was transferred to Dade County. Three years later, the court found that petitioner had violated his conditional release and, because he met the criteria for involuntary hospitalization, he was recommitted to the Department. Petitioner was confined to the Florida State Hospital in Chattahoochee, Florida. . On December 20th, 2000, he was transferred to South Florida State Hospital. A year later, Dr. Debra Kirsch, Clinical Director of Atlantic Shores Healthcare, Inc., advised the court by letter that petitioner no longer met the criteria for involuntary hospitalization.

In December 2001, the hospital filed with the Court a conditional discharge plan. The plan provided that the petitioner live in an assisted living facility and receive outpatient substance abuse and psychiatric treatment. Case Management was to be provided by Bayview Center for Mental Health. The State objected to the discharge. The State also requested that Dr. Jane Ainsley, Dr. Sanford Jacobson, and Dr. Leonard Haber, be appointed to examine petitioner. The three doctors agreed that petitioner did not satisfy the criteria for involuntary hospitalization.

A lengthy hearing was held, after which the court approved petitioner’s release to the assisted living facility. The court later revoked the order when Bayview Center for Mental Health withdrew its participation in the plan. The Center refused to explain the reason for abandoning the plan that they helped draft.

A year and a half elapsed. Dr. Robert Braswell submitted a report that recommended transfer to a secure facility like Passageways. The State requested that Drs.. Ainsley, Jacobson, and Haber be reappointed. All of the three doctors agreed that they preferred that petitioner be admitted to a secure, residential, non-time limited program. All of them further agreed, as they had opined a year and a half earlier, that petitioner did not satisfy the criteria for involuntary hospitalization. The State, however, continued to oppose petitioner’s release to any place other than a secure residential non-time limited facility.

On October 8th, 2003, the trial court held an evidentiary hearing to determine petitioner’s placement. Months later, on May 3rd, 2004, the court entered a written order in which the court found that, notwithstanding the unrebutted, stipulated report of all the court appointed experts, petitioner satisfied the criteria for involuntary hospitalization. The court recommitted petitioner to the custody of the Florida Department of Children and Families. No appeal was taken from the May 3rd order. Instead, a petition for a writ of habeas corpus was filed on June 25th, 2004.

This court ordered respondents to answer the allegations in the Petition. Instead of addressing the merits, respondents asserted that the petition should be denied because the proper remedy was direct appeal and not habeas corpus. The respondent relied on Sneed v. Mayo, 66 So.2d 865 (Fla.1953) and State ex rel. Risatti v. Eaton, 161 So.2d 549 (Fla. 2d DCA 1964).

We agree with petitioner that “[hjabeas corpus is the traditional remedy used to obtain a person’s release from an illegal order of involuntary commitment.” MacNeil v. State, 586 So.2d 98, 99 (Fla. 5th DCA 1991). We also agree that the uncontroverted expert testimony offered in this case was that the petitioner did not meet the criteria for involuntary commitment. Equally relevant, however, was their testimony that the petitioner should remain in a secure, residential, non-time limited program.

We reverse because the trial court did not have the authority to ignore the unanimous opinions of the experts where the petitioner did not meet the criteria for involuntary hospitalization. The case is remanded with directions to provide the petitioner with an appropriate facility. Should the Department be unable to provide a secure, residential, non-time limited program, habeas corpus may be the only other alternative remedy.

Reversed and remanded with directions.