author: SHAW, Judge.

text:
    Kenneth Wayne AUSTIN v. STATE of Alabama.
    CR-01-2020.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.
    Opinion on Return to Remand Feb. 28, 2003.

      Kenneth Wayne Austin, pro se.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   SHAW, Judge.

Kenneth Wayne Austin appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked the sentence he received for his March 7, 2001, guilty-plea conviction for the unlawful distribution of a controlled substance. Austin was sentenced on April 4, 2001, to 10 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to § 13A-12-250, Ala.Code 1975, and 'an additional 5 years’ imprisonment pursuant to § 13A-12-270, Ala.Code 1975. The trial court suspended the 10-year base sentence and placed Austin on 2 years’ probation. Austin was ordered to serve the 10-year enhanced portion of his sentence in prison. He did not appeal.

Austin filed the present Rule 32 petition on April 23, 2002. In his petition, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Austin alleged that the trial court lacked jurisdiction to enhance his sentence pursuant to §§ 13A-12-250 and 13A-12-270, because, he said, those enhancements were not charged in the indictment or proven to a jury beyond a reasonable doubt. On June 25, 2002, after receiving a response from the State, the circuit court summarily denied Austin’s petition.

As the circuit court correctly noted in its order denying Austin’s petition, this Court has held that Apprendi does not require that the enhancement provisions in §§ 13A-12-250 and 13A-12-270 be chárged in the indictment. See Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001). See also Hale v. State, 848 So.2d 224 (Ala.2002). In addition, by pleading guilty Austin waived his right to a jury trial. However, even if he had not pleaded guilty, because he was convicted after Apprendi was decided, Austin could have raised his Apprendi claim in the trial court and on appeal and, therefore, the claim would be barred by Rules 32.2(a)(3) and (5), Ala. R.Crim.P. Therefore, the circuit court properly denied Austin’s Rule 32 petition.

Although we find that summary denial of Austin’s Rule 32 claim was proper, we also find that the execution of Austin’s sentence was illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). As noted above, Austin was sentenced to 10 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to § 13A-12-250, and an additional 5 years’ imprisonment pursuant to § 13A-12-270. The trial court then suspended the 10-year base sentence and placed Austin on probation for 2 years; Austin was ordered to serve the 10-year enhanced portion of his sentence in confinement. In effect, the trial court split Austin’s 20-year aggregate sentence and ordered him to serve 10 years in confinement. See, e.g., State v. Corley, 831 So.2d 59, 60 (Ala.Crim.App.2001)(“This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.”).

The trial court, however, did not have jurisdiction pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, to split Austin’s sentence as it did and order him to serve 10 years in confinement. Section 15-18-8, as amended effective May 25, 2000, provides, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the ease is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in eases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best.”

(Emphasis added.) Under § 15-18-8, the trial court could only order Austin to serve a maximum of 5 years in confinement.

We note that the 20-year sentence itself, i.e., 10 years’ imprisonment enhanced by an additional 10 years’ imprisonment pursuant to §§ 13A-12-250 and 13A-12-270, was within the statutory sentencing range for the Class B felony of unlawful distribution of a controlled substance and was, therefore, a valid sentence. See § 13A-12 — 211(b) and § 13A-5-6(a)(2), Ala.Code 1975. Only the manner in which the trial court split the sentence is illegal. See, e.g., Madden v. State, 864 So.2d 395 (Ala.Crim.App.2002); Havis v. State, 710 So.2d 527 (Ala.Crim.App.1997); Berry v. State, 698 So.2d 225 (Ala.Crim.App.1996); and Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992)(all recognizing that although a sentence may be valid, i.e., within the statutory sentencing range, the manner in which the sentence is ordered to be executed under § 15-18-8, Ala.Code 1975, may be invalid).

Therefore, we must remand this case for the circuit court to conduct another sentencing hearing and to reconsider the execution of Austin’s 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it. See Wood, supra. However, the court may either split the sentence in compliance with § 15-18-8, i.e., with no more than 5 years in confinement, see, e.g., Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001)(holding that “the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements” despite the prohibition against probation in §§ 13A-12-250 and 13A-12-270), or, if it determines that splitting the sentence is no longer appropriate, it may reinstate the full 20-year sentence.

We note, however, that the record in this case does not indicate whether Austin’s original sentence was part of a plea agreement with the State or whether it was a blind plea. A transcript of the guilty-plea colloquy is not in the record, Austin did not allege in his petition whether his guilty plea was pursuant to an agreement with the State, and neither the State’s response to Austin’s petition nor the circuit court’s order denying the petition indicate whether the plea was part of an agreement. Therefore, it is impossible for this Court to determine whether resen-tencing Austin will affect the voluntariness of his plea. As we noted in Calloway v. State, 860 So.2d 900 (Ala.Crim.App.2003) (opinion on return to remand and on second application for rehearing), an opinion released today:

“Rule 14.3(c)(2)(iv), Ala.R.Crim.P., provides that if a trial court rejects a plea agreement, it must ‘[ajfford the defendant the opportunity to withdraw the defendant’s offer to plead guilty.’ ‘The law is clear: if a trial court refuses to abide by the terms of a plea agreement, it must grant the defendant’s timely motion to withdraw the plea.’ Taylor v. State, 677 So.2d 1284, 1285 (Ala.Crim.App.1996). See also Ex parte Otinger, 493 So.2d 1362 (Ala.1986); Nelson v. State, 866 So.2d 594 (Ala.Crim.App.2002); Moore v. State, 719 So.2d 269 (Ala.Crim.App.1998); Clark v. State, 655 So.2d 50 (Ala.Crim.App.1995); and Brown v. State, 495 So.2d 729 (Ala.Crim.App.1986). The reasoning behind this is that ‘when a plea rests in any significant degree on a promise or agreement of the prosecutor ... so that it can be said to be part of the inducement or consideration, such promise or agreement must be fulfilled.’ Ex parte Otinger, 493 So.2d at 1364, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (emphasis omitted [in Calloway]).
“In this case, the trial court actually accepted the plea agreement and sentenced Calloway in accordance with that agreement. However, the sentence was illegal under § 15-18-8, which prohibits splitting a sentence in excess of 20 years. A trial court cannot accept a plea agreement that calls for an illegal sentence. This Court noticed the illegal sentence and remanded for resentenc-ing. That resentencing was, in effect, a rejection of the plea agreement. It is clear from the transcript of the guilty-plea colloquy that the splitting of the 20-year base sentence in Calloway’s original sentence was a ‘part of the inducement or consideration’ for Calloway’s plea and that when he was resentenced in accordance with this Court’s instructions without the sentence being split, he did not receive what he had been promised. Therefore, based on the authority cited above, Calloway should now be allowed to withdraw his plea.”

860 So.2d at 906. If the circuit court determines on resentencing that splitting Austin’s sentence is no longer appropriate and that Austin should serve the full 20-year term, and if the original splitting of Austin’s sentence was a part of a plea agreement with the State, then resentenc-ing would, in effect, be a rejection of the plea agreement. If that is indeed the case, then the circuit court should allow Austin to withdraw his guilty plea if he requests to do so.

Based on the foregoing, the circuit court did not err in summarily denying Austin’s Rule 32 claim; however, this case is remanded to the circuit court for resentenc-ing. Due return should be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the proceedings conducted on remand as well as a transcript of the guilty-plea colloquy.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

On Return to Remand

SHAW, Judge.

In an opinion issued on January 7, 2003, this Court unanimously affirmed the circuit court’s summary denial of Kenneth Wayne Austin’s Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked the sentence he received for his March 7, 2001, guilty-plea conviction for the unlawful distribution of a controlled substance. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003). Austin had been sentenced to 10 years’ imprisonment, enhanced by an additional 10 years’ imprisonment pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. The trial court suspended the 10-year base sentence and placed Austin on 2 years’ probation; however, Austin was ordered to serve the 10-year enhanced portion of his sentence in prison.

Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Austin argued in his petition that his sentence had been improperly enhanced because, he said, the enhancements had not been charged in his indictment or proven to a jury beyond a reasonable doubt. We held that the circuit court properly denied Austin’s petition because the enhancements did not have to be charged in the indictment; because Austin had waived his right to a jury trial by pleading guilty; and because Austin, who was sentenced after the United States Supreme Court issued its decision in Appren-di, could have raised the Apprendi claim at trial and on appeal, but had not done so.

Although we affirmed the circuit court’s summary denial of. Austin’s petition, we noticed that the execution of Austin’s sentence — 20 years split to serve 10 years in prison — was invalid under § 15-18-8, Ala.Code 1975. The 20-year sentence itself was valid and could not be changed; however, we remanded this case for the circuit court “to conduct another sentencing hearing and to reconsider the execution of Austin’s 20-year sentence.” 864 So.2d at 1118. On January 16, 2003, the circuit court conducted another sentencing hearing and again split Austin’s 20-year sentence, this time ordering that he serve 26 months in confinement, followed' by 3 years on probation. This sentence, however, is also not in compliance with § 15-18-8, Ala.Code 1975, which provides, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best.”

(Emphasis added.) Under § 15-18-8, Austin must serve a minimum of 3 years, but no more than 5 years, in confinement. The circuit court, therefore, did not have jurisdiction to order that Austin serve only 26 months in confinement.

Accordingly, we must again remand this case for the circuit court to conduct another sentencing hearing and to again reconsider the execution of Austin’s 20-year sentence. As we stated in our original opinion:

“Because the 20-year sentence was valid, the circuit court may not change it. See Wood[ v. State, 602 So.2d 1195 (Ala.Crim.App.1992)]. However, the court may either split the sentence in compliance with § 15-18-8, i.e., with no more than 5 years in confinement [and no less than 3 years in confinement], see, e.g., Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001)(holding that ‘the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements’ despite the prohibition against probation in §§ 13A-12-250 and 13A-12-270), or, if it determines that splitting the sentence is no longer appropriate, it may reinstate the full 20-year sentence.
“... If the circuit court determines on resentencing that splitting Austin’s sentence is no longer appropriate and that Austin should serve the full 20-year term, and if the original splitting of Austin’s sentence was a part of a plea agreement with the State, then resentencing would, in effect, be a rejection of the plea agreement. If that is indeed the case, then the circuit court should allow Austin to withdraw his guilty plea if he requests to do so.”

864 So.2d at 1118-19.

Based on the foregoing, we remand this case to the circuit court for resentencing. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J„ and COBB, BASCHAB, and WISE, JJ., concur.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Frank A. McCLUNG, Jr., etc., et al., Appellants, v. Glenn McCLUNG, et al., Appellees.
    No. 5D02-2328.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Rehearing Denied Feb. 11, 2004.
    Frank A. McClung, North Miami, pro se.
    Marian E. Tellman McClung, North Miami, pro se.
    Patricia Fields Anderson of Patricia Fields Anderson, P.A., St. Petersburg, for Appellees.
   PLEUS, J.

We have examined the points raised by the appellants and conclude that, given that all payments due under the parties’ settlement agreement have been made in accordance with said agreement, the stipulated final judgment adopting and enforcing the terms of the settlement agreement should be affirmed. See Paulucci v. General Dynamics Corp., 842 So.2d 797 (Fla.2003); Nagymihaly v. Zipes, 353 So.2d 943 (Fla. 3d DCA 1978).

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Pamela WILSON, Individually and as Parent and next friend of Gloriann Wilson, minor child, Appellant, v. Eva J. SALAMON, M.D., and Bond Clinic, P.A., Appellees.
    No. 2D02-5773.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.

      Wayne Johnson of DeCiccio & Johnson, Winter Park, for Appellants.
    Robert A. Hannah and Robin D. Black of Hannah, Estes & Ingram, P.A., Orlando, for Appellees.
   ALTENBERND, Chief Judge.

Pamela Wilson, individually and as parent and next friend of Gloriann Wilson, appeals the trial court’s order dismissing her medical malpractice action for failure to prosecute. We affirm the order, but certify a question to the Supreme Court of Florida.

Ms. Wilson filed her complaint on March 15, 2001, alleging that her daughter sustained personal injuries at the time of her birth on March 17, 1999, as the result of the negligence of Eva J. Salomon, M.D., and Bond Clinic, P.A. (the defendants). The defendants filed a timely answer. On June 25, 2001, an attorney from Massachusetts, Kenneth Levine, filed a motion to appear pro hac vice as co-counsel for Ms. Wilson. Our record does not establish that an order was ever entered on this motion. Following some discovery, the defendants objected to certain interrogatories and filed responses to requests for production on October 29, 2001. Thereafter, there was no record activity in this file until Vivian Sparacio, Mr. Levine’s partner, filed a comparable motion to appear pro hac vice as co-counsel for Ms. Wilson. This motion was granted by an order filed on April 4, 2002. Following this order, no activity occurred in the record until the defendants moved to dismiss the action on November 4, 2002.

The dispositive issue on appeal is whether an order permitting a foreign attorney to appear as co-counsel pursuant to the procedures contained in Florida Rule of Judicial Procedure 2.061 constitutes record activity for purposes of Florida Rule of Civil Procedure 1.420(e). Under existing case law, an order substituting counsel is a “passive” document that the supreme court does not regard as record activity. See Gulf Appliance Distribs., Inc. v. Long, 53 So.2d 706 (Fla.1951); Eastern Elevator, Inc. v. Page, 263 So.2d 218, 220 (Fla.1972); cf. Buss Aluminum Prods. v. Crown Window Co., 651 So.2d 694 (Fla. 2d DCA 1995) (holding unauthorized and tardy “reply” is not record activity). Because we cannot distinguish an order permitting the appearance of out-of-state counsel from the order substituting counsel in Gulf Appliance, we affirm the dismissal.

Despite our reliance on Gulf Appliance, we note that the rule announced in Gulf Appliance was established as an interpretation of a statute requiring “action,” as compared to rule 1.420, which requires “activity.” See § 45.19, Fla. Stat. (1949). It is not entirely clear that the legislature’s intent when enacting section 45.19 was the same as the supreme court’s intent when adopting rule 1.420(e). Rule 1.420(e) has never contained an express exception for “passive” court orders. In the fifty years since Gulf Appliance was decided, the courts have never managed to establish a workable, predictable definition that distinguishes “passive” activity from “active” activity. See generally Abaddon, Inc. v. Schindler, 826 So.2d 436 (Fla. 4th DCA 2002); Nat’l Enter., Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001). Under the current rule it is arguable that any action taken in good faith by attorneys in a trial court that necessitates a court order should be treated as record activity sufficient to preclude dismissal for failure to prosecute.

Two supreme court cases decided after Gulf Appliance present differing views of “record activity” and cause this court to question whether court orders, especially court orders that are correctly entered to resolve motions properly filed in good faith pursuant to the rules of procedure, are “passive” activity. In 1991, the supreme court clarified the process used to determine whether documents prepared and filed by counsel are sufficient activity to avoid a dismissal for failure to prosecute under rule 1.420(e). See Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991). The supreme court described a two-step process that requires an initial check to determine whether there has been record activity. If there has been no such activity, as a second step, the plaintiff is given an opportunity to establish good cause why the action should not be dismissed. In Del Duca, the court stated that it was establishing rules to determine the existence of record activity under step one, which would apply to discovery documents actually filed in the record. 587 So.2d at 1309. Thus, the rules announced in Del Duca do not apply to the court order entered in this case. If those rules did apply, an order entered in good faith by the trial court to resolve a proper motion would clearly be “active” record activity.

In Metropolitan Dade County v. Hall, 784 So.2d 1087 (Fla.2001), the supreme court considered a case involving nonrec-ord discovery items and an unfiled offer of judgment. It found that this activity was sufficient under the second step described in Del Duca. However, in so ruling, the court stated that its analysis in Del Duca was not for use in the first step, but rather in the second step. 784 So.2d at 1090. As to the first step, the court stated:

Rule 1.420(e) plainly states that actions “shall” be dismissed if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not.

784 So.2d at 1090 (footnotes omitted). This language in Hall suggests that the supreme court may be retreating from the earlier cases that analyze the first step to determine whether the activity on the face of the record is either passive activity or active activity.

We are well aware that the supreme court does not overrule itself by implication. F.B. v. State, 852 So.2d 226 (Fla.2003); Puryear v. State, 810 So.2d 901 (Fla.2002). Uncertainty in this area, however, is undesirable because a mistake by a plaintiffs attorney in assessing the vitality of a court order is likely to result in either the permanent loss of the plaintiffs claim or a new claim for legal malpractice. Accordingly, we certify the following question as a matter of great public importance:

AFTER THE DECISION IN METROPOLITAN DADE COUNTY V. HALL, 784 So.2d 1087 (Fla.2001), ARE TRIAL COURT ORDERS THAT ARE ENTERED AND FILED TO RESOLVE MOTIONS THAT HAVE BEEN PROPERLY FILED IN GOOD FAITH UNDER THE RULES OF PROCEDURE AUTOMATICALLY TREATED AS ACTIVITY, OR MUST THE TRIAL COURT CONTINUE TO ASSESS ITS OWN ORDERS TO DETERMINE WHETHER THEY ARE PASSIVE ENTRIES IN THE COURT RECORD?

Affirmed.

SILBERMAN and KELLY, JJ„ Concur.

      . These documents are not in our record, but are reflected on the trial court's progress docket.


author: SILBERMAN, Judge.

text:
    Howard B. HALE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1118.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
   SILBERMAN, Judge.

Howard B. Hale challenges the summary denial of his motion for post-conviction relief alleging ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Hale was convicted of possession of cocaine, delivery of cocaine within 1000 feet of a school or child care facility, and obstructing or opposing an officer without violence. This court affirmed his direct appeal without a written opinion. See Hale v. State, 798 So.2d 733 (Fla. 2d DCA 2001). In his post-conviction motion, Hale raised four issues, two of which require reversal.

In grounds one and two of his motion, concerning the conviction under section 893.13(l)(c), Florida Statutes (1999), for delivery of cocaine within 1000 feet of a school or child care facility, Hale alleged that his trial counsel was ineffective because he failed to establish, as a defense to the charge, that a sign had not been posted identifying the facility as a child care facility. Section 893.13(l)(c) makes it unlawful for any person to deliver a controlled substance within 1000 feet of real property comprising a child care facility or elementary, middle, or secondary school between 6 a.m. and 12 a.m. Section 893.13(l)(c) also contains an exception that provides as follows:

This paragraph does not apply to a child care facility unless the owner or operator of the facility posts a sign that is not less than 2 square feet in size with a word legend identifying the facility as a licensed child care facility and that is posted on the property of the child care facility in a conspicuous place where the sign is reasonably visible to the public.

Hale claimed that trial counsel should have investigated and interviewed listed witnesses and presented testimony and other evidence to establish the defense.

The trial court summarily denied relief, stating that grounds one and two of the post-conviction motion had been raised on direct appeal. However, as this court stated in Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002), “unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a post-conviction motion.” Here, the direct appeal was affirmed without a written opinion.

On direct appeal, Hale argued, in part, that the State failed to prove that a sign was posted identifying the facility as a day care facility. The State, citing State v. Robarge, 450 So.2d 855 (Fla.1984), and Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), responded that the absence of a sign was an affirmative defense that Hale had to prove at trial. The State also argued that Hale had not raised or preserved this issue at trial and that the record contained no proof that a sign was not present.

Thus, the direct appeal did not resolve the issues in grounds one and two of Hale’s rule 3.850 motion that trial counsel was ineffective in failing to establish the defense that no sign was posted identifying the facility as a child care facility. Because the trial court denied relief on the post-conviction motion based on its erroneous conclusion that the issue had been resolved on direct appeal, we reverse the order denying relief as to grounds one and two. On remand, the trial court may again summarily deny relief if it can attach portions of the record that conclusively refute Hale’s claims. To the extent that the claims are not conclusively refuted by the record, the trial court must conduct an evidentiary hearing to resolve them. Finally, we find no error in the trial court’s denial of Hale’s other claims and affirm the denial of those claims without discussion.

Affirmed in part, reversed in part, and remanded.

STRINGER and VILLANTI, JJ„ Concur.


author: VILLANTI, Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., successor to Reliance Insurance Co., Appellant, v. ALL THE WAY WITH BILL VERNAY, INC., and North American Van Lines, Inc., Appellees.
    Nos. 2D03-563, 2D03-1763.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.

      Rebecca O’Dell Townsend of Haas, Dut-ton, Blackburn, Lewis & Longley, P.L., Tampa, for Appellant.
    Jerome A. Pivnik of Pivnik & Nitsche, P.A., Miami, for Appellees.
   VILLANTI, Judge.

Florida Insurance Guaranty Association, Inc. (FIGA), challenges two judgments awarding attorney’s fees and costs against it and in favor of All the Way with Bill Vernay, Inc., and North American Van Lines, Inc. (collectively “Vernay”). FIGA raises numerous reasons why these judgments are improper; however, we need address only one. Because the fee awards do not qualify as “covered claims” under chapter 631, Florida Statutes (2002), we reverse.

On April 28, 2000, Michael Linkous sued Vernay for breach of contract, civil theft, and “insect infestation” arising out of Ver-nay’s storage of Linkous’s personal property (“the underlying action”). Vernay, in turn, demanded that its insurer, Reliance Insurance Company, defend the underlying action and indemnify Vernay for any judgment against it. Reliance denied coverage and refused to defend Vernay. Ver-nay then retained its own counsel to defend the underlying action.

Shortly thereafter, Vernay filed a declaratory judgment action against Reliance seeking a judicial determination as to whether Vernay’s policies with Reliance provided coverage for Linkous’s claims and whether Reliance had a duty to defend Vernay in the underlying action. In the declaratory judgment action, Vernay alleged that it was entitled to both coverage and a defense in the underlying action and that Reliance had breached the terms of its insurance policies by refusing to defend Vernay.

While both actions were pending, Reliance was declared insolvent, and FIGA was substituted as its successor in the declaratory judgment action pursuant to section 631.58, Florida Statutes (2002). When FIGA was substituted, the trial court imposed a stay of litigation pursuant to section 631.67 in the declaratory judgment action. Despite the provisions of section 631.67, no such stay was imposed in the underlying action.

While the proceedings were stayed in the declaratory judgment action, Vernay and Linkous proceeded to arbitration in the underlying action as required by the terms of the storage contract between them. Ultimately, the arbitrator ruled in favor of Vernay on procedural grounds, and the trial court subsequently confirmed the arbitration award. As a result, no judgment was entered against Vernay in the underlying action. However, Vernay incurred substantial attorney’s fees and costs in obtaining this favorable ruling in the underlying action.

After the underlying action was concluded, Vernay filed a motion for summary judgment in the declaratory judgment action, seeking a ruling that Reliance’s failure to defend Vernay in the underlying action constituted a breach of its insurance policies. After a hearing, the trial court held that Reliance had a duty to defend Vernay in the underlying action and had breached that duty. However, the trial court deferred a decision concerning the remedy for the breach and whether FIGA, as successor to Reliance, was legally responsible for any remedy ordered.

On December 16, 2002, the trial court held a hearing regarding Vernay’s assertion that Reliance was obligated to pay Vernay’s attorney’s fees and costs incurred in defending the underlying action as damages for Reliance’s breach of contract. Vernay pointed out that the trial court had already determined that Reliance had a contractual obligation to defend Vernay and that, because of Reliance’s breach of that obligation, Vernay had been forced to pay for its own defense. Thus, the measure of Vernay’s damages for Reliance’s breach of contract was Vernay’s attorney’s fees and costs incurred in the underlying action. Vernay also argued that FIGA, as Reliance’s statutory successor, stepped into Reliance’s shoes and thus was responsible to pay the damages Reliance would otherwise owe.

In response, FIGA argued that it was not responsible for paying the attorney’s fees Reliance would have owed as damages because those fees did not constitute a covered claim under the FIGA statute. After considering these arguments, the trial court awarded Vernay $15,427 in attorney’s fees and costs against FIGA as damages for Reliance’s breach of its insurance policies. FIGA appealed this judgment for fees and costs in case number 2D03-563.

Shortly after that ruling, Vernay filed a motion seeking an award of its attorney’s fees and costs in prosecuting the declaratory judgment action. Vernay asserted that because FIGA had affirmatively denied coverage for both the claim and the attorney’s fees in the underlying action and because the trial court had found that there was, in fact, coverage, Vernay was entitled to an award of attorney’s fees for prosecuting the declaratory judgment action pursuant to sections 631.70 and 627.428, Florida Statutes (2002). FIGA argued that it did not affirmatively deny coverage for Linkous’s claim and, in fact, could not have denied coverage since the underlying action was fully resolved before the mandatory stay elapsed. FIGA also argued that its efforts to contest responsibility for the damages for Reliance’s breach of contract could not be considered an affirmative denial of a covered claim. At the close of the hearing, the trial court awarded Vernay an additional $3000 in attorney’s fees for prosecuting the declaratory judgment action. FIGA appealed this judgment for fees and costs in case number 2D03-1763. This court consolidated these appeals, and we now reverse both judgments.

As an initial matter, we agree with Vernay that Reliance was legally responsible for the attorney’s fees and costs Vernay incurred in defending the underlying action. The law is well established that when an insurer unjustifiably refuses to defend its insured, the insurer is liable to the insured for the reasonable attorney’s fees and other expenses incurred in defending the action brought by the third party as damages for the breach of contract. Thomas v. W. World Ins. Co., 343 So.2d 1298, 1303 n. 3 (Fla. 2d DCA 1977) (holding that when an insurer’s refusal to defend is unjustified, the insurer is liable for attorney’s fees and other costs incurred in the underlying action); Preuss v. United States Fire Ins. Co., 414 So.2d 249, 250 (Fla. 4th DCA 1982) (“Attorneys fees constitute an element of damage recoverable by an indemnitee when his insurance company wrongfully fails to defend.”); see also Cont’l Cas. Co. v. City of S. Daytona, 807 So.2d 91, 93 (Fla. 5th DCA 2002) (holding that Continental’s failure to defend its insured entitled the insured to recover reasonable attorney’s fees incurred in the defense of the claim); MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So.2d 1114, 1116 (Fla. 3d DCA 1997) (holding that if an insurance company breaches its contractual duty to defend, the insured is entitled to the damages that flow from that breach, including attorney’s fees and costs incurred in defending the underlying action); Seitlin & Co. v. Phoenix Ins. Co., 650 So.2d 624, 626 (Fla. 3d DCA 1994) (same).

In this case, the trial court found that Reliance had breached its duty to defend Vernay in the underlying action. Accordingly, Vernay was entitled to recover the damages reasonably flowing from this breach against Reliance, which, in this case, were the attorney’s fees and costs incurred in defending the underlying action. However, in this case, Vernay did not seek a judgment against Reliance for those damages. Rather, Vernay sought and obtained a judgment against FIGA for the damages. Thus, the question in this appeal is whether FIGA, as the successor to Reliance, is responsible for attorney’s fees and costs awarded as damages for an insurer’s breach of contract when that breach occurred long before FIGA was involved in the case.

In support of the trial court’s judgments, Vernay argues that FIGA simply steps into the shoes of the insolvent insurer and is obligated to the same extent as that insurer would be. Thus, according to Vernay, FIGA simply steps into Reliance’s shoes and is responsible for the damages flowing from Reliance’s breach of contract. However, this argument misinterprets the extent of FIGA’s obligations.

FIGA is strictly a creature of statute. See § 631.55 (creating FIGA as a nonprofit corporation that shall have the powers and duties defined by section 631.57). Therefore, the statutory language defines the extent of FIGA’s obligations. FIGA is not responsible for claims against an insurer that do not fall within FIGA’s statutory obligations.

Under section 631.57(l)(a), FIGA is obligated “to the extent of the covered claims existing” prior to adjudication of insolvency and within a specified period after insolvency. In addition, under section 631.57(l)(b), FIGA shah “[b]e deemed the insurer to the extent of its obligation on the covered claims.” Thus, FIGA is responsible for the damages otherwise owed by Reliance only if those damages constitute a covered claim as defined by chapter 631.

Section 631.54(3) defines covered claim:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1970, and the claimant or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state.

(Emphasis added.) Under the plain language of the statute, to be a covered claim, the claim must both “arise out of’ the insurance policy and be “within the coverage of’ the insurance policy.

In this case, there is no dispute that the attorney’s fees and costs constituting the damages award for Reliance’s breach of its own duty to defend “arise out of’ the insurance policy. However, this damages award is not “within the coverage of’ the policy. The only possible source of coverage is the “supplemental payments” provisions of Vernay’s policies with Reliance. The supplemental payments provisions of both Vernay’s commercial general liability policy and its inland marine policy state that Reliance will pay all expenses that it incurs in defending actions. In addition, the provisions provide that Reliance will pay all reasonable expenses incurred by the insured at Reliance’s request. This court has held that this latter portion of the supplementary payments provision means that the insurer will pay for “expenses that it had authorized and over which it had control.” Steele v. Kinsey, 801 So.2d 297, 299 (Fla. 2d DCA 2001). Thus, if the insurer has not expressly authorized the insured to incur the expense, the expense is not covered under the policy. Id. “The words at issue here, ‘reasonable expenses incurred at our request,’ can only mean that the insurer must request the product or service that incurs the expense.” Id. at 300.

In this case, there is no question that Rebanee itself did not incur Vernay’s attorney’s fees and costs in the underlying action. Further, it is clear that Vernay did not incur its attorney’s fees and costs in defending the underlying action at the request of either Reliance or FIGA. Therefore, under the plain language of Vernay’s policies and the holding of Steele, the attorney’s fees and costs incurred by Vernay in defending the underlying action are not “within the coverage of’ the insurance policies. Because a claim must both “arise out of’ and be “within the coverage of’ the policy before it constitutes a covered claim for which FIGA is responsible, the fact that Vernay’s damages are not “within the coverage of’ the policy means that FIGA cannot be held responsible for those damages. Moreover, because the damages award is not a covered claim as defined, FIGA did not affirmatively deny a covered claim and thus is not responsible for the attorney’s fees and costs Vernay incurred in prosecuting the declaratory judgment action.

Because of the procedural posture of this case, our holding is very narrow. We do not hold that FIGA is not responsible for attorney’s fees incurred in defending the insured of an insolvent insurer. We believe that in most instances FIGA is responsible for such fees. However, in this case, Vernay is not seeking an award of attorney’s fees. Rather, Vernay is seeking to hold FIGA responsible for a monetary judgment for breach of contract that should have been entered against Reliance. In this limited circumstance, Verna/s only recourse for collecting on this judgment is against Reliance in bankruptcy court.

While we agree with Vernay that this result may seem unfair, we are powerless to rewrite either chapter 631 or the insurance policy provisions to provide reimbursement for these breach of contract damages. Because section 631.54(3) and the provisions of the insurance policies make it clear that Vernay’s damages do not constitute a covered claim, we reverse both judgments for attorney’s fees and costs against FIGA. The resolution of this issue renders FIGA’s other arguments moot.

Reversed.

DAVIS and KELLY, JJ., Concur.


author: SALCINES, Judge.

text:
    Jose C. MARRERO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-2006.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    Jose C. Marrero, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr., Assistant Attorney General, Tampa, for Respondent.
   SALCINES, Judge.

Jose C. Marrero, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raised two claims of ineffective assistance of appellate counsel. In his first claim, Marrero alleged that appellate counsel was ineffective for failing to argue that the sentencing judge convicted Marrero of “attempted conspiracy to traffic in heroin,” which is a nonexistent crime. Because Marrero was convicted of attempted trafficking in heroin and not attempted conspiracy to traffic, his claim is without merit, and we deem it unnecessary to discuss it further. However, we grant the petition as it relates to Marrero’s second claim, in which he alleged that appellate counsel was ineffective in failing to argue that his habitual felony offender (HFO) sentence was illegal. Because Marrero’s HFO sentence would have required reversal had the issue been raised on direct appeal, we reverse his sentence and remand for resentencing.

After a bench trial, Marrero was found guilty of attempted trafficking in heroin and possession of heroin with intent to sell or deliver. He was sentenced as a habitual felony offender to thirty years in prison for count one and to a guidelines sentence of fifteen years in prison for count two, both terms to run concurrent. His judgments and sentences were affirmed on appeal. See Marrero v. State, 840 So.2d 238 (Fla. 2d DCA 2003).

At sentencing, defense counsel objected to Marrero’s being sentenced as a HFO for attempted trafficking in heroin. The sentencing judge erroneously consulted a 2001 Florida Statutes book and determined that Marrero was eligible for a HFO sentence. However, Marrero’s offenses were committed on January 5, 2000. Section 893.135 had been amended between the 1999 statute, which should have been used to sentence Marrero, and the 2001 statute, which was actually used to sentence him. Under the 1999 statute, Marrero would not have been eligible for a HFO sentence. See § 893.135(l)(b)(l)(c), Fla. Stat. (1999); Fortner v. State, 779 So.2d 462 (Fla. 2d DCA 2000); Dillard v. State, 820 So.2d 994 (Fla. 4th DCA 2002); Tippins v. State, 780 So.2d 147 (Fla. 5th DCA 2000).

Because defense counsel preserved this issue at the sentencing hearing and because we would have reversed Marrero’s HFO sentence had the issue been raised on direct appeal, we grant Marrero’s petition. We reverse his HFO sentence and remand for resentencing.

Petition alleging ineffective assistance of appellate counsel granted.

SILBERMAN and VILLANTI, JJ., Concur.


author:
PER CURIAM.
      ERVIN, J.,

text:
    Gary C. JAMES, Sr., Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC. and Specialty Risk Services, Inc., Appellees.
    No. 1D02-2340.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Rehearing Denied Jan. 30, 2004.

      John L. Myrick, Pensacola, for Appellant.
    Roderic G. Magie, Pensacola, for Appel-lees.
   PER CURIAM.

The appellant, Gary C. James, Sr., appeals from an order of the Judge of Compensation Claims (JCC) which denied his request for an upward adjustment of the average weekly wage. We affirm.

The appellant was hired by the employer, Armstrong World Industries, Inc., in 1967 and worked until April 18, 2000. The appellant suffered a job-related injury on March 9, 1982. The appellant recalled missing work for approximately one month due to the injury, but he did not undergo surgery. He then returned to work in 1982 and continued working for the employer until April 17, 2000. On April 18, 2000, the appellant underwent lower back surgery related to the 1982 job .injury. The appellant has not returned to work since the surgery, and the parties agree the claimant is permanently and totally disabled.

The issue before the JCC was whether the appellant’s average weekly wage (AWW) should be calculated using the 13 weeks prior to the 1982 date of accident (which results in an AWW of $305,243, with a compensation rate of $203.49), or the 13 weeks prior to the surgery in 2000 (which results in an AWW of $638.73, with a compensation rate of $426.03). The JCC concluded the appropriate AWW was based on the 13 weeks prior to the appellant’s accident in 1982.

Section 440.14, Florida Statutes (1982), provides in relevant part:

(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:
(a) If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks....
(b) If the injured employee has not worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph.
(c) If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediately preceding the injury, the calendar year or the 52 weeks immediately preceding the injury....
(d) If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in paragraph (e) or paragraph (f).

(Emphasis added). “Injury” means “personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury.” § 440.02(6), Fla. Stat. (1981).

Section 440.14(l)(d) is a “fall-back provision where none of the prior subsections apply.” Expicare Nursing Services v. Eudaley, 596 So.2d 126, 129 (Fla. 1st DCA 1992). See also Taylor v. Certified Poultry & Egg Co., 651 So.2d 1262 (Fla. 1st DCA 1995). In Wal-Mart Stores v. Campbell, 714 So.2d 436 (Fla.1998), the claimant had worked at Wal-Mart for the 13 weeks immediately preceding the com-pensable accident, and had also worked part-time for another employer for six weeks immediately preceding the accident. The JCC calculated the AWW by dividing the total amount earned at Wal-Mart during the 13 weeks preceding the accident by 13. The JCC then modified the AWW by dividing the total amount the claimant earned at the part-time job by six and adding that figure to the original AWW. Wal-Mart argued the AWW should be calculated under section 440.14(l)(a) by dividing by 13 the total amount earned at both jobs during the 13-week period preceding the accident. On appeal, a panel of this Court affirmed the JCC’s order, finding that the method of calculation urged by Wal-Mart “would result in an AWW which would not fairly approximate the claimant’s pre-injury earning capacity and use of which would therefore not properly reflect his probable future earning loss.” Wal-Mart Stores v. Campbell, 694 So.2d 136, 142 (Fla. 1st DCA 1997). The panel concluded the JCC properly exercised his discretion in calculating the AWW. A majority of the supreme court quashed the decision of this Court, determining that “section 440.14(l)(a), Florida Statutes, set forth the proper formula for use of a judge of compensation claims (JCC) in determining AWW in all cases where a claimant has worked in one employment for substantially the whole of 13 weeks prior to an industrial accident” and has worked in a concurrent employment for only a portion of the 13-week period. Wal-Mart Stores, 714 So.2d at 437. The majority stated:

We understand the concern the district court expressed in referring in its opinion to the statement in the Larson treatise that “the calculation of AWW ‘is not intended to be automatic and rigidly arbitrary,’ ” id. at 138-39 (quoting 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 60.11(d), at 10-638 (1997)). We agree that the goal of the calculation of the AWW is to determine a fair and reasonable AWW. Id. at 142. However, we also recognize the benefit of having a fixed method of calculation to apply in recurring situations so that employers, employees, and insurers can readily make the calculation without having to resort to a decision by a JCC. We believe that the legislature intended to provide such a fixed method of calculation for these concurrent employment situations and that the method provided determines a fair and reasonable AWW.

Id. at 438.

In the present case, the appellant had worked for the employer during substantially the whole of the 13-week period preceding the injury in 1982. That use of some other period would result in a higher compensation rate for a claimant does not compel a finding that the method in section 440.14(l)(a) cannot fairly and reasonably be applied.

In asserting that his “date of accident” should be April 18, 2000, because it is the date he became “disabled,” the appellant relies on Hillsborough County School Board v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001). The relevant portion of the decision in Christopher is as follows:

On cross-appeal, claimant argues that the JCC erred by directing that her PTD benefits be calculated based upon her average weekly wage (AWW) in effect on July 25, 1988, when she suffered her back injury, rather than on April 20, 1995, when she became disabled because her condition had deteriorated to the point that she could no longer work. We agree. See Cote v. Combustion Eng’g, Inc., 502 So.2d 500 (Fla. 1st DCA 1987) (the commencement of disability is the pertinent time for AWW determination); Reynolds v. Neisner Bros., Inc., 436 So.2d 1070 (Fla. 1st DCA 1983) (JCC erroneously calculated AWW at time of 1977 accident, rather than at time of disability inl981). We therefore reverse and remand for recalculation of claimant’s PTD benefits based upon the stipulated 1995 AWW.

The underlying facts in Christopher are not disclosed in the opinion. As the JCC below correctly noted in rejecting the appellant’s argument, however, the statutory authority for computation of the AWW at a date after the accident is not stated in the decision and the panel relied on decisions involving repetitive trauma or occupational disease. As the JCC observed:

It is clear that in cases of occupational disease as defined in FS 440.151, the AWW is properly calculated using the “date of disability” as the “date of accident.” The authority for this conclusion is found in the language of FS 440.151, as explained in Cote. The convergence of the analysis of occupational disease and repetitive trauma accidents is explained in Festa .... Each of these theories has separate and distinct burdens of proof for the parties, and each has potentially different results as between responsible employer/earriers. [citation omitted] However, the theories are similar to each other in the sense that the “injury” cause may be the result of repetitive trivial trauma or exposure. In that way, the development of repetitive trivial trauma has evolved from the exposure analysis.

Accordingly, the JCC correctly distinguished the present situation from that in Christopher. Although Judge Ervin in his dissenting opinion now discloses for the first time the facts involved in Christopher, Christopher recites the applicable method for computing AWW in occupational disease or repetitive trauma cases and nothing on the face of the Christopher decision clearly indicates that neither occupational disease nor repetitive trauma was involved.

AFFIRMED.

BARFIELD and ALLEN, JJ., concur; ERVIN, J., dissents with written opinion.

ERVIN, J.,

dissenting.

This workers’ compensation case presents the question of whether the claimant’s average weekly wage (AWW) should be calculated based on his wages at the time of his back injury on March 9, 1982, or at the significantly greater AWW in effect at the time claimant ultimately became disabled on April 18, 2000, due to the back condition. The majority, in affirming the order, approves use of claimant’s 1982 wages and calculation of his AWW under section 440.14(l)(a), Florida Statutes (1981), and rejects claimant’s argument that his AWW should have been calculated pursuant to section 440.14(l)(d). I cannot agree.

I am cognizant that section 440.14(l)(a) is generally the preferred method for calculating a claimant’s AWW in a situation where the claimant worked during the 13 weeks immediately preceding the injury. See Wal-Mart Stores v. Campbell, 714 So.2d 436 (Fla.1998); Prestressed Decking Corp. v. Medrano, 556 So.2d 406 (Fla. 1st DCA 1989). I am also aware that section 440.14(l)(d) is most often used in AWW calculations when an injured worker has not worked substantially all of the 13 weeks preceding the injury and there is no similar employee to permit calculation under section 440.14(l)(b). See, e.g., Thomas-Johnston v. Publix Supermarkets, Inc., 721 So.2d 1235 (Fla. 1st DCA 1998); City of Hialeah v. Jimenez, 521 So.2d 936 (Fla. 1st DCA 1988). I cannot conceive, however, how anyone can logically conclude that it is reasonable and fair to compute claimant’s AWW by utilizing his 1982 wages under subsection 440.14(l)(a).

As explained by the Florida Supreme Court, “the workmen’s compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served.” Port Everglades Terminal Co. v. Canty, 120 So.2d 596, 602 (Fla.1960). Workers’ compensation acts were “designed to remove from the workman himself the burden of his own injury and disability and place it on the industry which he served.” Dennis v. Brown, 93 So.2d 584, 588 (Fla.1957). The act “was originally passed as administrative legislation to be simple, expeditious, and inexpensive so that the injured employee, his family, or society generally, would be relieved of the economic stress resulting from work-connected injuries, and place the burden on the industry which caused the injury.” Lee Eng’g & Constr. Co. v. Fellows, 209 So.2d 454, 456 (Fla.1968). “[T]he law was designed to protect workers and their dependents against the hardships that arise from the workers’ injury or death arising out of employment and occurring during employment, and to prevent those who depend on the workers’ wages from becoming charges on the community. The law operates to place the burden for such misfortunes upon industry.” McCoy v. Florida Power & Light Co., 87 So.2d 809, 810 (Fla.1956).

In determining an injured worker’s AWW for compensation purposes, this court has frequently cited the following excerpt from Professor Larson’s treatise:

“The entire objective of wage calculation is to arrive at a fair approximation of claimant’s probable future earning capacity. His disability reaches into the future, not the past; his loss as a result of injury must be thought of in terms of its impact on probable future earnings, perhaps for the rest of his life. This may sound like belaboring the obvious; but unless the elementary guiding principle is kept constantly in mind while dealing with wage calculation, there may be a temptation to lapse into the fallacy of supposing that compensation theory is necessarily satisfied when a mechanical representation of this claimant’s own earnings in some arbitrary past period has been used as a wage basis.”

Vegas v. Globe Sec., 627 So.2d 76, 82 (Fla. 1st DCA 1993) (en banc) (quoting 2 Larson, The Law of Workmen’s Compensation, § 60.11(d), at 10-564 (1986)). See also Witzky v. W. Coast Duplicating, 503 So.2d 1327, 1329 n. 1 (Fla. 1st DCA 1987). And see Wal-Mart Stores v. Campbell, 714 So.2d 436, 438 (Fla.1998) (agreeing “that the goal of the calculation of the AWW is to determine a fair and reasonable AWW”).

What has occurred in this case is, as Professor Larson warned, the mechanical application of section 440.14(l)(a) in calculating claimant’s AWW without any attempt to arrive at a fair approximation of his probable future earning capacity as a result of his disability. By accepting its use, the majority fails to recognize the purpose for which the Workers’ Compensation Law was designed: to protect the worker and his or her family against hardships that arise from the compensable injury. Indeed, it frustrates as well the goal of protecting the worker and the worker’s family from becoming charges on the community by placing the cost and burden associated with the injury on industry. Moreover, its application ignores 18 years of continued toil by claimant, which benefited his employer, and reduces claimant’s standard of living simply because he had the dedication and determination to continue to work despite the injury.

Workers’ compensation law has long recognized that inequities may exist in AWW calculations. Observe, for example, the evolvement of the law in regard to the calculation of a worker’s AWW when his or her income is derived from concurrent earnings. Initially, only concurrent earnings in similar employments could be considered; thereafter, all concurrent earnings, regardless of the similarity of the employment, were included in the calculation to achieve a fair approximation of claimant’s probable future earning capacity. See J.J. Murphy & Son., Inc. v. Gibbs, 137 So.2d 553 (Fla.1962); American Uniform & Rental Serv. v. Trainer, 262 So.2d 193 (Fla.1972). The purpose of the act, after all, “is to compensate for loss of wage earning capacity due to work-connected injury. It is the capacity of the ‘whole man’ ... that is involved.” Trainer, 262 So.2d at 194.

The above goal has similarly been recognized in repetitive trauma and exposure cases, which permit the date of disablement to be determined as the date of injury. See Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348 (Fla. 1st DCA 1992); Food Machinery Corp. v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983); Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). Moreover, in occupational disease cases, AWW calculations are based on the date of “disablement,” which is statutorily defined as the date of injury. See § 440.151(l)(a), Fla. Stat. (2002). And see Cote v. Combustion Eng’g, Inc. 502 So.2d 500 (Fla. 1st DCA 1987); Reynolds v. Neisner Bros., Inc., 436 So.2d 1070 (Fla. 1st DCA 1983). By thus defining the date of disablement in repetitive trauma and occupational disease cases, the law has ensured that a claimant’s AWW will not be calculated unreasonably or unfairly by arbitrarily assigning the date of the first exposure or accident that gave rise to an injury, which may have occurred years before the claimant was even aware that he or she had suffered a disabling injury.

In my judgment, the same theory should apply in instances such as this, where a claimant is injured, but does not become disabled as a result of that injury until years later, and his or her earnings have significantly increased between the time of injury and disability. Applying section 440.14(l)(d) in such cases is not only consistent with the purpose of the Workers’ Compensation Law, but it is also consistent with the E/C’s statutory duty to provide coverage. As stated in section 440.09(1), Florida Statutes (1981), “Compensation shall be payable under this chapter in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment.” (Emphasis added.) It is, after all, disability, i.e., the incapacity because of injury to earn wages, that is compensated under the Workers’ Compensation Law through indemnity benefits. In fact, Hillsborough County School Board v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001), which, like this case, involved an injury date occurring years before the resultant date of disability, is a prime example of how section 440.14(l)(d) should be employed to ensure that a claimant receives a fair and reasonable approximation of his or her AWW.

Applying section 440.14(l)(d) in cases where the injury and resultant disability occur years apart and the claimant’s earnings have significantly increased is not contrary to the legislative intent to have a standard method of computing AWW under subsection (l)(a). It simply recognizes and gives effect to the language in subsection (l)(d), which states that the employee’s full-time weekly wages shall be used “[i]f any of the foregoing methods cannot reasonably and fairly be applied.” The application of subsection (l)(d) is also a recognition of the ravages of inflation on the buying power of the dollar over an 18-year span. For example, the same goods and services purchased in 1982 with claimant’s AWW of $305.24 required the expenditure of $544.69 in 2000. Thus, if claimant’s AWW is not adjusted to account for the effects of a declining dollar during such period, his earning capacity will have become substantially diminished. Consequently, because section 440.14(l)(a) does not produce an accurate approximation of claimant’s probable future earning capacity, the fairness and reasonableness standard of section 440.14(l)(d) is not satis-fíed. See 5 Arthur Larson, Larson’s Workers’ Compensation Law § 93.01[l][e], at 93-11 (2003) (stating that the test for fairness and reasonableness is plain: “Does it produce an honest approximation of claimant’s probable future earning capacity?”).

I therefore conclude that the JCC abused his discretion in determining claimant’s AWW under section 440.14(l)(a) by using his 1982 wages, and would reverse and remand with directions to compute claimant’s AWW under section 440.14(l)(d), based upon his 2000 wages.

      . Compare Edwards v. Caulfield, 560 So.2d 364, 374 n. 6 (Fla. 1st DCA 1990) (noting that the JCC could consider the claimant's status as a full-time worker in determining her AWW, because to do otherwise "would result in an AWW determination which is not truly representative of claimant's pre-injury earning capacity, and would violate the underlying purpose of the Act”).

      . It is also consistent with the legislative intent as currently stated in section 440.015, Florida Statutes (2002), which is "to assure the quick and efficient delivery of disability and medical benefits to an injured worker.” (Emphasis added.)

      . This court's records in Christopher, which this court may judicially notice, show that Christopher, who was employed as a janitor, injured her back in a compensable accident that occurred on July 25, 1988. Despite continuing pain, Christopher continued to work. Her condition, however, deteriorated and worsened over the succeeding seven years until April 25, 1995, when she could no longer work. Although Christopher had suffered a second industrial injury in 1995, which was manifested as carpal tunnel syndrome, the JCC found that Christopher was disabled in 1995 solely as a result of her 1988 back condition. This court agreed with Christopher’s argument that her 1995 wages, which were significantly greater than her 1988 wages, should have been employed as the means of calculating her AWW.

      .Federal Reserve Bank of Minnesota, Economic Research & Data, U.S. Consumer Price Index, at http://minneapolisfed.org/re-search/data/us/calc (Aug. 28, 2003).

      . Although the JCC also found claimant to be disabled in 1982, there is no competent, substantial evidence to support such a finding. "Disability” is the "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(9), Fla. Stat. (1981). While claimant may have had temporary periods of disability, the undisputed facts are that he continued to work for nearly 18 years after his 1982 injury and he made more in wages than he had previously earned. Thus, it cannot be said claimant was disabled from 1982.


author: ALLEN, J.

text:
    Fred MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3087.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.

      Clyde M. Taylor, Jr., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant in this direct criminal appeal challenges his convictions for trafficking in cocaine and possession of cocaine, arguing that the trial court erred in denying his motion to suppress evidence. Because the search leading to the discovery of the cocaine occurred after a traffic stop had been completed, and because a factual finding of the trial court precludes a determination that the search grew out of a voluntary citizen encounter following the traffic stop, we reverse the appellant’s convictions and remand this case to the trial court with directions that the appellant be discharged.

Considering the testimony presented at the suppression hearing in the light most favorable to the prosecution and consistent with the trial court’s findings, the material facts in this case are as follows: The appellant was driving his automobile when he was pulled over by Deputy Cheshire for crossing over a solid line and onto the shoulder of the road. After the deputy had the appellant step out of his vehicle, he asked the appellant some questions. Having received satisfactory answers to his inquiries, the deputy issued the appellant a warning citation for failure to maintain a single lane. At that time, the deputy considered the traffic stop and his investigation to be complete.

While the appellant was being handed his citation, however, Deputy McDaniel arrived at the scene with a dog trained to conduct drug searches. After the appellant had already received his citation, Deputy McDaniel initiated further questioning of the appellant. The two deputies thereafter conferred and determined that there was an inconsistency in the appellant’s answers to questions. Deputy McDaniel then walked to his vehicle, retrieved the dog, and led the dog to the appellant’s automobile where the dog performed an external sniff of the automobile and alerted. This ultimately led to the discovery of cocaine inside the automobile and to the appellant’s arrest.

The trial court found that a reasonable person in the appellant’s position would not have considered himself free to leave after the warning citation was issued. But the court nonetheless concluded that the continued detention of the appellant beyond the issuance of the citation was appropriate because the relevant events taking place between the delivery of the citation and the dog’s alerting beside the appellant’s automobile all occurred “at almost the same instant.”

Absent additional evidence of criminal activity, a person who has been stopped for a traffic violation may not be detained for a period longer than is necessary to write the traffic citation. Cresswell v. State, 564 So.2d 480 (Fla.1990). Although the deputies in the present case had no basis for suspecting criminal activity when the citation was delivered to the appellant, he was detained for an additional period of time. Nevertheless, the trial court found that the detention did not violate the Cresswell principle because all the events from the delivery of the citation to the appellant through the dog alerting beside the appellant’s automobile took place “at almost the same instant.”

A trial court’s factual findings in conjunction with a motion to suppress will be accepted on appeal if supported by competent, substantial evidence. Slaughter v. State, 830 So.2d 955 (Fla. 1st DCA 2002). The trial court’s finding in the present case that all relevant events occurred “at almost the same instant” is not supported by competent, substantial evidence. The only direct testimony as to the amount of time required for the critical events to play out was Deputy McDaniel’s estimate that the events transpired over a period of approximately ten minutes, and no other evidence in the case suggests that they occurred in a substantially shorter period of time. Indeed, it would have been physically impossible for the events to have occurred “at almost the same instant.” The continued detention of the appellant beyond the point at which the citation was delivered to him was therefore illegal.

The appellee argues that even if the trial court was in error in concluding that the deputies’ extended detention of the appellant was appropriate, the search could still be upheld as the product of a consensual encounter between the appellant and the deputies. Although a person is not subjected to a Fourth Amendment seizure merely because an officer approaches him and asks a few questions, an encounter of this sort will be considered consensual only so long as a reasonable person would feel free to disregard the police and go about his business. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The events following the delivery of the citation in the present case did not amount to a consensual encounter because the trial court found that a reasonable person in the appellant’s position would not have considered himself free to leave once the citation was delivered to him.

Because the search in this case was the product of an illegal detention of the appellant, the trial court erred in denying the appellant’s motion to suppress the evidence. The appellant’s convictions are accordingly reversed, and this case is remanded to the trial court with directions that the appellant be discharged.

BARFIELD and DAVIS, JJ., CONCUR.


author: HAWKES, J.

text:
    Shomari N. MINTER-SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4045.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.

      Nancy A. Daniels, Public Defender and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Sherri T. Rollison, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Police entered the defendant’s home upon their belief that illegal dog fighting was occurring in the back yard. After entering the home, a protective sweep and subsequent search resulted in the seizure of dog fighting paraphernalia, drug paraphernalia, a firearm and cannabis residue. Since no warrant was obtained before police entered the home, an exception to the warrant requirement must exist before the items obtained can be introduced as evidence. The State argues two exceptions to the warrant requirement: 1) the officers obtained valid consent to search the defendant’s home; and alternatively, 2) the dog fighting paraphernalia was in plain view during the initial protective sweep, thus the police would have been able to obtain a search warrant and, consequently, the other evidence would have been inevitably discovered. We disagree with both arguments and reverse.

Fort Walton Beach Police were dispatched to the defendant’s home in response to a complaint that dogs were fighting, and male voices were heard encouraging the dogs to continue fighting. As officers arrived at the scene, they positioned themselves at various locations around the home. While looking over a fence, one officer, although observing no illegal activity, heard noises she interpreted as consistent with people conducting a dog fight in the backyard. After several patrol cars responded to the scene, officers entered through the unlocked front door of the home without permission, and one officer entered the back yard by going over the fence. Once inside, the officers handcuffed the defendant and four other individuals, and performed a protective sweep where they observed a broomstick with bite marks and an exacto knife with a heavily taped handle. The officers testified they were not able to identify these items as dog fighting paraphernalia until assistance was received from a non-police officer advisor. It is interesting to note that not only were the broomstick and exacto knife not immediately recognizable as evidence, but no other evidence of dog fighting was discovered, even after a full search of the home. The officer who testified she looked over the fence did not even report seeing any illegal activity.

While the suspects were being removed, a young woman arrived who the police believed lived at the home. The State maintains the woman consented to a search of the home after she was told “we need[ ] to treat the house as a crime scene and we need[ ] to look in the house for evidence.” This statement does not request consent. Rather it is a statement that police planned to “look in the house for evidence.”

A consent to search is valid when the consent is freely and voluntarily given and the search is conducted within the scope of the consent. See Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998). Here, the young woman’s response to the officer’s statement is no more than acquiescence to authority, not consent. See Gonzalez v. State, 578 So.2d 729 (Fla. 3rd DCA 1991) (holding where a search was conducted after officers surrounded a home and asked the resident if they could “look around,” the resident acquiesced to their authority, and consent therefore was involuntary). Because no consent to search was given, this exception to the warrant requirement fails.

The State alternatively argues, using two exceptions to the warrant requirement in tandem, that all of the evidence is admissible. The State maintains the plain view doctrine allowed them to seize the dog fighting paraphernalia, and that paraphernalia would have provided them with the requisite probable cause to obtain a search warrant. Had they obtained a warrant, the additional evidence would have been inevitably discovered and thus admissible.

The plain view doctrine allows police to seize contraband in plain view when 1) the seizing officer is in a location he has a legal right to be, 2) the incriminating character of the evidence is immediately apparent, and 3) the seizing officer has a lawful right of access to the object. See Pagan v. State, 830 So.2d 792 (Fla.2002). In examining whether the seizing officer was where he had a right to be, we note all of the alleged illegal activity was taking place in the back yard. One officer even entered the backyard by going over the fence. Thus, entry into the home appears unnecessary to respond to the alleged dog fighting.

However, even assuming the police had a right to be in the home, the State cannot meet the second prong of the plain view doctrine. It is well settled that when closer examination of an item observed in plain view is necessary to confirm its incriminating nature, its nature is not considered “immediately apparent.” See Callan v. State, 531 So.2d 88 (Fla.1988). Here, because they were later informed of the items’ significance by “someone else’s expertise,” the nature of the broomstick and the exacto knife were not “immediately apparent” to the police. Thus, the officers were precluded from lawfully seizing these items.

The next step of the State’s argument is that the drug paraphernalia, firearm, and cannabis residue would be admissible under the doctrine of inevitable discovery. The inevitable discovery doctrine allows evidence obtained as a result of an unconstitutional police search to be admitted if the evidence would ultimately have been discovered by legal means. See Jeffries v. State, 797 So.2d 573 (Fla.2001). To apply this doctrine, there must be only a reasonable probability of discovery, not an absolute certainty. See State v. Ruiz, 502 So.2d 87 (Fla. 4th DCA 1987). This doctrine can provide relief to the State only if the plain view exception applies. Since the plain view exception fails, the State had no evidence to establish probable cause to obtain a search warrant. Since they could not have obtained a warrant, no lawful search would have taken place. Therefore, the drug paraphernalia, firearm, and cannabis residue would not have been inevitably discovered. See id. Accordingly, the trial court’s denial of the defendant’s motion to suppress is

REVERSED, the defendant’s sentence VACATED, and the cause REMANDED.

VAN NORTWICK and PADOVANO, JJ., CONCUR.

      . It is questionable whether a broom stick and exacto knife, without additional incriminating evidence, would be sufficient to establish probable cause to constitute dog fighting paraphernalia. The bite marks on the broomstick do not indicate the broomstick’s use in dog fighting any more than it indicates the perfectly innocent use as a toy used to play with a dog.


author: PER CURIAM.

text:
    Maria SAULS, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-0915.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 6, 2004.
    Maria Sauls, pro se, appellant.
    Josefina Tomayo, General Counsel, and John R. Perry, Assistant District Legal Counsel, Department of Children and Families, Tallahassee, for appellee.
   PER CURIAM.

We elect to treat appellee’s motion to remand as a confession of error. The final order is hereby reversed and the cause is remanded to the lower tribunal to conduct further proceedings to determine whether the sanction imposed upon appellant was for a first or second non-compliance with the requirements of the Cash Assistance Program and the exact duration of the sanction.

REVERSED and REMANDED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    CERTAIN INTERESTED UNDERWRITERS AT LLOYD’S LONDON SUBSCRIBING TO CERTIFICATE NUMBER TPCLDP217477, as subrogee of Myria Major, Appellant, v. CITY OF ST. PETERSBURG, a municipality of the State of Florida, Appellee.
    Nos. 2D03-1616, 2D03-1916.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.

      Matthew L. Litsky, Stanley L. Martin, and Andrew W. Rosin of Phelps Dunbar, LLP, Tampa, for Appellant.
    John C. Wolfe, City Attorney, and John Wallace Hamilton, Assistant City Attorney, St. Petersburg, for Appellee.
   VILLANTI, Judge.

This case presents an issue of first impression in Florida concerning whether an innocent property owner can state a cause of action under the takings clause of either the Florida Constitution or the United States Constitution when the police destroy private property while executing a valid search warrant. The trial court held that neither constitution would support a cause of action for a taking under these facts. While we disagree with some of the trial court’s reasoning, we agree that no cause of action for a taking exists under the facts in this case. Therefore, we affirm.

The facts in this case are essentially undisputed. Certain Interested Underwriters at Lloyd’s London (“Lloyd’s”) insured a residence in the city of St. Peters-burg (“the City”) owned by Myria Major. Major lived in another state and rented the residence to tenants. While the City’s police officers were executing a valid search warrant on Major’s tenants, they threw “flash-bang” grenades into the lower level of the residence in an effort to startle the occupants into giving up. These grenades were designed to simply make a loud noise and cause a brilliant flash of light. However, in this case, the lower level had insulating foam installed on the walls and ceilings to muffle the sounds of the tenants’ recording studio, and the grenades started a fire. This fire spread very rapidly, and the residence was entirely destroyed. There is no evidence, nor does the City contend, that Major knew about any of the alleged illegal activity giving rise to the search warrant.

Major sued the City for her losses under Florida’s Tort Claims Act, section 768.28(9), Florida Statutes (2002), alleging negligence in the use of the grenades. After Lloyd’s paid Major her policy limits under her insurance policy, the trial court permitted Lloyd’s to intervene as Major’s subrogee in her action against the City. Lloyd’s then filed a two-count complaint alleging an unconstitutional taking without just compensation under article X, section 6(a), of the Florida Constitution in count one and negligence under the Tort Claims Act in count two. The City moved to dismiss the takings count, arguing that no such cause of action existed as a matter of law under these facts. The trial court agreed and dismissed that count with prejudice. The trial court also denied Lloyd’s motion for leave to amend its complaint to state a cause of action for an unconstitutional taking under Article V of the United States Constitution. Lloyd’s now appeals both orders.

Article X, section 6(a), of the Florida Constitution states that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Article V of the United States Constitution states, in pertinent part, “nor shall private property be taken for public use, without just compensation.” Historically, these provisions required the government to pay for property that it seized through an exercise of its eminent domain power. The takings clause of the United States Constitution was “intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practiced during the revolutionary war, without any compensation whatever.” 1 Henry St. George Tucker, Blackstone’s Commentaries app. at 305-06 (Philadelphia, Birch & Small 1803). Thus, the guiding principle of takings law as gleaned from original intent is to prohibit the government from simply appropriating private property for public use without compensating the owner.

The Florida courts have adopted this understanding of the intent of the takings clause and have prohibited the government from appropriating private property for public purposes without just compensation. See Joint Ventures, Inc. v. Dep’t of Transp., 563 So.2d 622, 624 (Fla.1990). Under Florida law, a per se taking occurs when the government “requires the landowner to submit to the physical occupation of his land.” Fla. Game & Fresh Water Fish Comm’n v. Flotilla, Inc., 636 So.2d 761, 764 (Fla. 2d DCA 1994) (quoting Yee v. City of Escondido, 508 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992)). The required “physical occupation” arises when the government “permanently deprives the owner of his ‘bundle’ of private property rights, including the right to possess and dispose, as well as the right to prevent the government from using the occupied area.” Flotilla, Inc., 636 So.2d at 764 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)); see also Joint Ventures, Inc., 563 So.2d at 624 (holding that the state must pay property owners when it confiscates private property for common use under its eminent domain power).

In addition to actual physical takings, both the Florida and federal courts have held that a taking can occur when the government enacts a regulation or imposes a condition that interferes with private property rights. Flotilla, Inc., 636 So.2d at 764. However, because many regulations or conditions will interfere with private property rights to some extent, a compensable taking occurs only when the regulation deprives the landowner of substantially all beneficial use of all or a distinct portion of the property or if the regulation or condition is not reasonably necessary to effectuate a substantial government purpose. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 388, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (holding that a condition that the property owner dedicate ten percent of her property as a pedestrian/bicycle path in order to obtain requested building permits constituted a taking); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (finding a compensable taking under the United States Constitution because the regulation at issue denied the property owner all economically beneficial use of his property in the name of common good); Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”); Joint Ventures, Inc., 563 So.2d at 624 (holding that the state must pay property owners when it regulates private property in such a way as to deprive the property owner of all economically viable use of the property); Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So.2d 101 (Fla.1988) (holding that a taking occurs when the effects of a regulation are so complete as to deprive the owner of all or most of his interest in the property).

The case before this court clearly does not involve a regulatory or conditional taking; however, neither does it involve a classic per se taking. Lloyd’s does not, and in fact cannot, contend that the City has required Major to submit to the physical occupation of her property. Further, it is clear that the City has not deprived Major of her right to use or dispose of her property, nor has the City deprived Major of her right to prevent the government from using the occupied area. Rather, Major’s complaint springs from the destruction of a residence on her property that resulted from the City’s admittedly legal actions on her property. This type of destruction has not historically constituted a compensable taking under article X, section 6(a), of the Florida Constitution, and we decline to extend the takings clause to apply to such destruction.

In 1947, the Florida Supreme Court held that certain damage to private property simply has no remedy at law.

Any injury or damage which is occasioned by the doing of a lawful act or the exercise of a legal right, or by doing a thing, authorized by law, in the authorized way, is damnum absque injuria. Damage resulting from such an act, to be actionable, must be coupled with some negligence or misconduct, or the act must have been done at a time, or in a manner, or under circumstances, which render the actor chargeable with want of proper regard for the rights of others. In doing a lawful thing in a lawful way no legal right is invaded, although the act may result in damage to another.
... Nor can an action be maintained for damages resulting to individuals from acts done by persons in the execution of a public trust and for the public benefit, acting with due skill and caution and within the scope of their authority.

Paty v. Town of Palm Beach, 158 Fla. 575, 29 So.2d 363, 363 (1947). In applying this rationale to takings claims, Florida courts have held that when government actors cause damage to property as a result of their lawful actions performed without negligence, no compensable taking has occurred under the Florida Constitution. See, e.g., Div. of Admin. v. Frenchman, Inc., 476 So.2d 224, 229 (Fla. 4th DCA 1985); Div. of Admin. v. Hillsboro Ass’n, 286 So.2d 578, 579 (Fla. 4th DCA 1973). Only if government actors cause damage as a result of their negligence or misconduct will the property owner have redress through a tort action or a legislative claims bill. Frenchman, Inc., 476 So.2d at 229; Hillsboro Ass’n, 286 So.2d at 579.

In addressing this issue under the United States Constitution, the United States Supreme Court has made the identical distinction. Damage or destruction that occurs as an unintended, incidental consequence of lawful activity by. government actors does not constitute a compensable taking. Cf. Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) (distinguishing compensable takings actions from noncompensable incidental or consequential damage); United States v. Cent. Eureka Mining Co., 357 U.S. 155, 169, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958). Rather, any redress for incidental damage caused by government actors must sound in tort. See Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed.Cir.2003) (holding that the line between torts and takings depends on whether the damage at issue is the inevitable result of the government’s intentional act and that incidental damage is compensable, if at all, only in tort).

In this case, Major has suffered the destruction of her property as a consequence of the lawful actions of the City’s employees who were performing their lawful duties. Under both Florida and federal law, any damage resulting from these lawful activities does not constitute a taking. If Lloyd’s can allege that the City’s employees were negligent in performing their duties, the proper cause of action is under the Tort Claims Act. Otherwise, the damages are simply damnum absque inju-ria.

In arguing for reversal, Lloyd’s relies on two out-of-state cases for the proposition that the damages Major suffered give rise to a takings claim: Steele v. City of Houston, 603 S.W.2d 786 (Tex.1980), and Wegner v. Milwaukee Mutual Insurance Co., 479 N.W.2d 38 (Minn.1991). While both of those cases involved factual situations similar to this case, both applied state constitutional provisions very different from Florida’s, and neither addressed the takings clause of the United States Constitution, thus rendering their holdings irrelevant to the resolution of this case.

The Texas Constitution, applied in Steele, provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.... ” Tex. Const, art. I, § 17. Similarly, the Minnesota Constitution, applied in Wegner, provides that “[pjrivate property shall not be taken, destroyed or damaged for public use without just compensation, first paid or secured.” Minn. Const, art. I, § 13. Both courts held that their constitutional provisions concerning damage or destruction of property for public use created a cause of action under their respective state constitutions for damage caused by police during the lawful execution of their duties. Neither case, however, addressed the issue of whether the property owners could state a cause of action for a “taking” of their property. Moreover, neither case addressed whether a takings claim existed under the United States Constitution on the facts presented. Because neither the Florida nor the United States Constitution contains provisions concerning compensation for damage or destruction of private property for public use, our decision cannot be guided by Steele or Wegner.

Instead, we, like the trial court, are persuaded by the reasoning of the California Supreme Court in Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41 Cal.Rptr.2d 658, 895 P.2d 900 (1995). As with Steele and Wegner, the facts in Customer Co. are similar to those presented here. In Customer Co., a fugitive took refuge inside Customer Company’s convenience-type store. Customer Co., 41 Cal.Rptr.2d 658, 895 P.2d at 903. After a lengthy stand-off, the police threw tear gas into the store. This action not only broke windows and damaged mirrors and ceiling tiles, but it also contaminated the store’s entire inventory. Id. at 904. Customer Company sought $275,000 in damages under the takings clause of the California Constitution, contending that the damage to the store and inventory constituted a taking of that property for public use.

The California constitutional provision at issue provided, “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” Cal. Const, art. I, § 19. In affirming a judgment on the pleadings in favor of the City of Sacramento, the California Supreme Court noted that Customer Company’s property was, in fact, damaged for a public purpose. However, the court then noted that the takings clause “never has been applied in a literal manner, without regard to the history or intent of the provision.” Id. at 906. The court pointed out that the only historically settled application of the takings clause was to require the government to pay for property it seized through an exercise of eminent domain. Id. The court recognized that the takings clause had been expanded to allow for recovery when property that was not physically taken by the government was damaged by government actions on adjoining property. Id. at 907. However, the court held that there was no indication that the takings clause was ever intended to require payment for damage caused by the government’s efforts to enforce criminal laws. Id. “[Djamage caused by the negligent conduct of public employees or a public entity does not fall within the aegis of section 19” Id. at 908 (citing Miller v. City of Palo Alto, 208 Cal. 74, 280 P. 108 (1929)).

Relying on both Florida precedent and the reasoning in Customer Co., we agree with the trial court that no takings claim can exist based on the facts presented by this case. Lloyd’s claim is compensable, if at all, as a tort rather than a taking. Thus, the trial court properly dismissed the Florida constitutional claim in Lloyd’s complaint and properly denied Lloyd’s leave to amend to add a claim under the United States Constitution. Accordingly, we affirm.

Affirmed.

WHATLEY, J„ and BARTON, JAMES M., II, Associate Judge, Concur.