author: PLEUS, J.

text:
    Donald J. SEGUI and St. Joseph’s etc., Appellants, v. David MARGRILL, Appellee.
    No. 5D02-3398.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Larry T. Griggs, Attorney at Law, P.A., St. Augustine, for Appellants.
    Andrea Bateman, of Counsel Aaronson, Austin, P.A., Winter Park, for Appellee.
   PLEUS, J.

Margrill sued Segui for repayment of a loan and prevailed. We affirm the final judgment in .all respects except the award of attorneys fees. The lower court erred in awarding attorneys fees because the final judgment was not 25% greater than the offer of settlement, as required under section 768.79(1), Florida Statutes. That subsection states in pertinent part:

If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25% greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.

The offer of settlement was for $31,000. Because the final judgment was for $36,513.87, exclusive of attorney’s fees, the judgment was insufficient to award attorney’s fees pursuant to the offer of settlement.

Margrill argues that the final judgment did exceed 25% of the offer of settlement when the attorney’s fees are considered as part of the final judgment. He cites two cases for the proposition that when considering the threshold amount or “judgment” under the statute, the amount should include costs, prejudgment interest, and attorney’s fees accrued at the time of the offer of settlement. See White v. Steak and Ale of Florida, Inc., 816 So.2d 546 (Fla.2002); Stephenson v. Holiday Rambler Corp., 709 So.2d 139 (Fla. 4th DCA), rev. denied, 719 So.2d 893 (Fla.1998). In White, the supreme court concluded that the words “judgment attained,” in section 768.79, include the “net judgment for damages and any attorney’s fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer.”

These cases do not support the award of attorney’s fees in the instant case because no attorney’s fees had accrued as of the date of the offer of settlement. Margrill’s claim for attorney’s fees was based solely upon the offer of settlement, not on any contract or other statute. Thus, if the lower court had awarded a final judgment as of the date of the offer of settlement, that award would not have included any attorney’s fees. Accordingly, the $7,500 award of attorney’s fees should not have been included in calculating the amount of the judgment obtained for purposes of determining whether to award attorney’s fees. The attorney fee award is reversed.

Because we reverse the fee award, we do not need to address the remaining arguments regarding attorney’s fees. We also reject Segui’s argument that the trial court erred by not allowing him to cross-examine Margrill. This error was not preserved below and was not fundamental under the circumstances of this case. See Poole v. Unemployment Appeals Com’n, 719 So.2d 974 (Fla. 5th DCA 1998).

AFFIRMED IN PART, REVERSED IN PART.

GRIFFIN and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    COMCAST SCH HOLDINGS, INC., Appellant, v. ROLLING GREENS MHP, L.P., Appellee.
    No. 5D03-90.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Rehearing Denied Feb. 5, 2004.

      William H. Phelan, Jr. of Bond, Arnett, Phelan, Smith & Craggs, P. A., Ocala, for Appellant.
    Garry D. Adel of Blanchard, Merriam,-Adel & Kirkland, P. A., Ocala, and Lee Baylin, Towson, Maryland, for Appellee.
   ORFINGER, J.

Comcast SCH Holdings, Inc. (Comcast), appeals an order granting Rolling Greens MHP, L.P.’s (Rolling Greens) Amended Motion to Strike and the entry of a final judgment in favor of Rolling Greens. Comcast contends that the trial court abused its discretion by striking its complaint, denying it an opportunity to amend its pleadings, and entering judgment in favor of Rolling Greens. We agree and reverse.

Comcast filed a verified complaint for damages and injunctive relief against Rolling Greens. The complaint named Com-cast SCH Holdings, Inc., a Florida corporation, as the plaintiff. Rolling Greens denied the claims and interposed various defenses. After the parties filed competing motions for summary judgment, and two days before the scheduled summary judgment hearing, Comcast filed a motion to substitute parties, alleging that “Com-cast SCH Holdings, Inc.,” the originally named plaintiff, had been merged with “Comcast SCH Holdings, LLC” (LLC), the surviving entity. The motion asked the trial court to substitute LLC as the plaintiff.

At the rescheduled summary .judgment hearing held several months later, the trial court learned that the Comcast/LLC merger had actually occurred more than a year before Comcast’s verified complaint had been filed. It also learned that LLC had not qualified to do business in Florida until the day Comcast filed its motion to substitute party. Based on this information, the court concluded that Comcast’s pleadings and motions constituted a fraud on the court and were a shám. After striking Comcast’s pleadings and motions, the court entered judgment in favor of Rolling Greens.

We conclude that the trial court abused its discretion in granting Rolling Greens’ motion to strike and its subsequent entry of final judgment adverse to Comcast. See Pacheco v. Wasserman, 701 So.2d 104, 106 (Fla. 3d DCA 1997). While the trial court was correctly concerned that the documents filed by Comcast were, at least, inaccurate, and, perhaps, misleading, there is nothing in the record that suggests that the complaint or the subsequent motion was palpably false or obviously known to be untrue. Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934). To the extent that Comcast, and, perhaps, its counsel, should be penalized for the erroneous documents it filed and the results flowing therefrom, section 57.105, Florida Statutes (2003), provides an adequate and appropriate remedy. Accordingly, we reverse and remand the matter for further proceedings consistent herewith.

REVERSED AND REMANDED.

GRIFFIN and PLEUS, JJ., concur.

      . Comcast’s attorney on appeal did not represent it in the trial court.


author: THOMPSON, J.

text:
    John Richard ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2397.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    John Richard Rogers, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

John Richard Rogers appeals the summary denial of his Rule 3.850 motion for post conviction relief. We reverse.

Rogers was convicted of robbery, a second-degree felony, and was sentenced in 1991 to four years of incarceration followed by two years of probation. On 19 March 2003, Rogers was arrested for violating the terms of his probation. Pursuant to an agreement with the state, Rogers entered a plea of nolo contendere to the violation of probation charge with the understanding that he would spend 13.9 months in prison. The trial court crafted the sentence to reflect that agreement: The court imposed a sentence of 61.95 months of incarceration with 48 months and 91 days of credit for time spent in prison and jail.

Subsequently, Rogers filed his 3.850 motion alleging that his plea was not knowingly or voluntarily entered. Rogers alleged that at the time of the plea, he was not told that prison officials would forfeit eight months of his prior gain time and only give him credit for three years and four months of the initial four-year sentence. Rogers alleged that he learned of the forfeiture after he was transferred to state prison. He contended that had he known a portion of his gain time would be forfeited, he would not have entered the plea, but would have gone to the final hearing on the violation of probation charge. The trial court denied relief on a procedural basis: It ruled that the only involuntary plea claim that can be raised in a 3.850 motion is one claiming ineffective assistance of counsel and that Rogers’s involuntary plea claim should have been raised in a motion to withdraw the plea within thirty days after sentencing.

Before 1997, a motion to withdraw plea had to be filed prior to sentencing. However, effective 1 January 1997, Florida Rule of Criminal Procedure 3.170 was amended, and now a motion to withdraw plea can be filed before sentencing, or thirty days after sentencing. See Fla. R.Crim. P. 3.170(f) and (l). Rule 3.170(0 states that a defendant may file a post-sentencing motion to withdraw plea, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e). A post-sentencing motion to withdraw plea may allege a violation of the plea agreement or an involuntary plea.

This court has stated that if a defendant does not file a post-sentencing motion to withdraw plea, all issues are waived concerning the plea proceedings, and a 3.850 motion alleging an involuntary plea must be based on the collateral claim of ineffective assistance of counsel. Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002); Jackson v. State, 801 So.2d 1024 (Fla. 5th DCA 2001). This general rule does not apply in all situations. For example, the supreme court has held that if a trial court does not advise a defendant that he may be deported as a result of his guilty or nolo contendere plea, the two-year period of limitation does not begin to run until defendant realizes that he is facing possible deportation. Peart v. State, 756 So.2d 42 (Fla.2000). The insufficient plea colloquy in those cases was not known at the time of sentencing, but became apparent at the time of subsequent deportation proceedings. Likewise, there is no prejudice resulting from the insufficient plea colloquy until the defendant is faced with the threat of deportation. In the instant case, it was not until defendant learned from the Department of Corrections that his gain time would be forfeited that he realized his length of sentence was greater than that agreed to and anticipated by the parties at the plea hearing. The mutual mistake of all involved in the plea agreement concerning the length of sentence was not known at sentencing. Therefore, we hold the thirty day limitation of Rule 3.170(Z) should not apply to bar Rogers’s 3.850 motion.

We conclude that the trial court improperly applied the language in Barnhill and Jackson to the facts of this case. In Jackson, the trial court ratified a sentencing recommendation at the plea hearing, but imposed a greater sentence due to a score-sheet revision. The 3.850 motion based on an involuntary plea in Jackson was held to be legally sufficient because the defendant alleged that counsel was ineffective for not timely advising him that he had the right to withdraw his plea. Neither Barnhill or Jackson addressed a mutual mistake concerning the length of a sentence which was discovered after sentencing. Before Barn-hill and Jackson, this court held that 3.850 relief is available when a judge tells a defendant that he will receive prison credit, and such credit is not forthcoming. See Jones v. State, 782 So.2d 552 (Fla. 5th DCA 2001) (reversing the trial court’s denial of post-conviction motion “to enforce plea agreement,” which alleged that plea was involuntary because the trial court had indicated that the defendant would receive full prison credit following a nolo plea to violation of probation). After the issuance of Jackson, this court continued to hold that 3.850 relief is available when the trial court promises full prison credit, but the Department of Corrections subsequently forfeits gain time. Martin v. State, 816 So.2d 1213 (Fla. 5th DCA 2002). Therefore, the procedural denial of Roger’s 3.850 motion is reversed, and the case is remanded for the trial court to consider the involuntary plea claim on the merits.

REVERSED and REMANDED, with directions.

PETERSON and PALMER, JJ., concur.

      . (A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
      (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
      a.the lower tribunal’s lack of subject matter jurisdiction;
      b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
      c. an involuntary plea, if preserved by a motion to withdraw plea;
      d. a sentencing error, if preserved; or
      e. as otherwise provided by law.


author: MONACO, J.

text:
    Denis Patrick POWER, etc., Appellant, v. Caitlin Barry POWER, Appellee.
    No. 5D03-888.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Michael J. Appleton, Orlando, and Brendan F. Linnane, Orlando, for Appellant.
    Mary Ann Etzler and Hugo H. deBeau-bien of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Ap-pellee.
   MONACO, J.

Denis Patrick Power (“Personal Representative”), who is the personal representative of the Estate of Niall Power, appeals a nonfinal order modifying a final judgment of dissolution of marriage between Mr. Power and his former wife, Caitlin Barry Power. We have jurisdiction pursuant to Rule 9.130(a)(4), Florida Rules of Appellate Procedure. Because we conclude that the trial court erroneously modified a vested interest of Mr. Power’s estate, we reverse.

When the trial court rendered a final judgment dissolving the marriage between Mr. and Ms. Power, it required that the marital residence be sold. The judgment, however, provided that Mr. Power was to have a “right of first refusal” with respect to purchasing the property, which he was required to exercise in writing within seven days of the entry of the final judgment. If he failed to exercise this right, Ms. Power was to have a seven day “right of second refusal.” The price for the residence was to be established in accordance with a procedure requiring each party to appoint an MAI appraiser.

Mr. Power properly exercised his right of first refusal by sending the written notice required by the judgment, and by obtaining an MAI appraisal. Unfortunately, Mr. Power died prior to the closing of the transaction. Probate proceedings were subsequently initiated, and the Personal Representative was appointed.

Ms. Power then filed a motion requesting the court to allow her to purchase the marital residence, because her former husband was deceased, and her brother owned the property next door. The Personal Representative objected and indicated that the right to purchase the property now belonged to Mr. Power’s estate, and that the estate fully intended to complete the purchase. The lower' tribunal found that Mr. Power had indeed exercised his right of first refusal in a timely fashion, but then awarded the right to purchase the property to Ms. Power without explaining his reasoning. The Personal Representative appeals.

A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. See Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla. 3d DCA 1970). That right is clearly an executory right. A right of first refusal “ripens into an option once an owner manifests a willingness to accept a good offer.” See Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360, 363 (Fla. 3d DCA), review denied, 480 So.2d 1295 (Fla.1985)(quoting Coastal Bay Golf, 231 So.2d at 857); Anderson v. Draddy, 458 So.2d 803, 804-05 (Fla. 4th DCA 1984), review denied, 467 So.2d 999 (Fla.1985). When there is an exercise of the option, a mutually binding and enforceable contract to purchase is created. Id.

Here, there was no third party seller, and accordingly, the right given initially to Mr. Power was not a true “right of first refusal,” as the term is used commonly. Rather, the judgment created an option. When Mr. Power indicated a willingness to buy the residence in the manner and under the conditions set by the court, he unquestionably exercised the option granted to him in the final judgment, and an enforceable contract right resulted.

Once having concluded that Mr. Power obtained an enforceable contract right, we must now examine whether the trial court had the authority to modify the judgment upon which that right was based. In Kuhnke v. Kuhnke, 556 So.2d 1121 (Fla. 3d DCA 1989), the Third District considered whether a property settlement agreement that was incorporated by the trial court into a final judgment of dissolution of marriage, and which pertained to the sale of a marital home, created property rights that were not subject to modification. In that case the parties entered into an agreement essentially giving the husband and wife the same purchase options that were engrafted by the court into the final judgment in the present case. The Kuhnke court held that unless the agreement contained provisions that suggested that the purchase option was related to custody or support, or unless the agreement resulted from fraud, duress, deceit, coercion, or overreaching, it could not be modified by the trial court because the option had become a vested property right. See also Campbell v. Campbell, 615 So.2d 879 (Fla. 5th DCA 1993); Draper v. Draper, 604 So.2d 946 (Fla. 2d DCA 1992); Forte v. Forte, 478 So.2d 460 (Fla. 3d DCA 1985), review denied, 488 So.2d 830 (Fla.1986). Thus, in the case before us if the option granted by the final judgment (as opposed to a property settlement agreement), and exercised by Mr. Powers became a vested property right, the trial court could not modify it absent the conditions outlined in Kuhnke.

A “vested right” has been defined as “an immediate fixed right of present or future enjoyment ... an immediate right of present enjoyment, or a present, fixed right of future enjoyment.” City of Sanford v, McClelland, 121 Fla. 253, 163 So. 513, 514-15 (1935). Said somewhat differently, it is “an immediate right of present enjoyment, or a present fixed right of future enjoyment.” Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla.1987), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988), (quoting In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984)). Once exercised, the option to purchase contained in the final judgment quite clearly gave Mr. Power a fixed present right of future enjoyment. We see no reason to distinguish this right vested by the judgment from a right vested by a property settlement agreement that is incorporated into a judgment.

Because of the disposition we make of the issue concerning the option, we find no need to address the other issues raised by the parties.

REVERSED.

THOMPSON and PALMER, JJ., concur.


text:
    Carl D. TOMENGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-312.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Daniel D. Mazar of Mead & Mazar, Winter Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Carl D. Tomengo appeals his conviction of sexual battery. He contends that the trial court erred when it excluded a late-disclosed exculpatory defense witness and limited his cross-examination of the victim. We agree and reverse for a new trial.

On the day before Tomengo’s trial was set to begin, Tomengo’s court-appointed counsel filed a supplemental witness list, naming Ronnie Shealy as a defense witness for the first time. The State immediately moved to exclude Shealy because of his late disclosure. The next day, immediately prior to jury selection, the court conducted a Richardson hearing. Tomengo’s attorney, while conceding that Shealy had been disclosed late, advised the court that Shealy had been made available to the State the previous day, but the State had declined the opportunity to talk with him. Tomengo’s attorney also informed the court that she had experienced difficulty contacting Shealy in the course of her trial preparation and had not determined until the day before jury selection that Shealy would be a useful defense witness. The State argued that the late disclosure prejudiced the State and asked the court to exclude the witness. Without making any of the findings required by Richardson, or exploring options other than exclusion, the court excluded Shealy’s testimony.

We find that Shealy’s testimony was potentially exculpatory as it offered support for Tomengo’s defense. Tomengo, the victim’s uncle, lived with the victim in her home at the time of the alleged incident. The victim alleged that Tomengo sexually battered her. From the outset, Tomengo contended that no sexual contact had taken place; rather, he alleged that the victim fabricated the allegations because she wanted him out of her house. The victim was the designated payee of Tomengo’s social security disability payments, and Tomengo alleges that a financial dispute ensued when he asked for more spending money. Tomengo contends that the victim refused to give him more of his money because she said she needed it to “straighten up her mortgage.”

At trial, Shealy’s testimony was proffered to the court. Shealy testified that he met the victim through Tomengo. When Shealy went to the victim’s house to pick up Tomengo, the victim told him that she had Tomengo arrested. Specifically, Shealy testified to the following exchange:

A. I said, “Well, what are you having him arrested for?” And then she made the statement, she said, “Well, I had him arrested for rape.” I said, “For rape?” She said, “Yeah, that’s the only way I could get him out of my house was to have him arrested for rape.”
Q. And what was your response to that?
A. I told her, you know, that’s not right to do somebody like that.
Q. Her response?
A. She is, “Well, that’s the only way I could get him out of my house.”

Shealy also testified that the victim told Tomengo she was sorry, and wanted to drop the “whole thing,” but couldn’t drop the case because “they” would then have to charge her.

Rulings on discovery and evidentiary issues are generally left to the discretion of the trial court and are reviewable under the abuse of discretion standard. See, e.g., State v. Tascarella, 580 So.2d 154 (Fla.1991). An alleged abuse of discretion is judged by the general standard of reasonableness; in other words, if reasonable people could differ as to the propriety of an action taken by the trial court, the action is not unreasonable. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983).

Although a trial court may have the discretion to exclude the testimony of a witness as a sanction for violating Florida Rule of Criminal Procedure 3.220, such discretion cannot be properly exercised without a court inquiry into the circumstances surrounding the discovery violation. See Zeigler v. State, 402 So.2d 365, 372 (Fla.1981). The trial court must make an adequate inquiry into all of the surrounding circumstances which “‘without ... [limiting] the nature and scope of such inquiry ... would undoubtedly cover at least such questions as whether the ... [offending party’s] violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability ... [of the opposing party] to prepare for trial.’ ” Richardson v. State, 246 So.2d 771, 775 (Fla.1971) (quoting Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970)). A Richardson inquiry is designed to “ferret out procedural prejudice occasioned by a party’s discovery violation.” Smith v. State, 372 So.2d 86, 88 (Fla.1979). “First, the judge must decide whether the discovery violation prevented the aggrieved party from properly preparing for trial. Second, the judge must determine the appropriate sanction to invoke for the violation.” Id.

The failure of a party to timely disclose a witness in discovery is not, in and of itself, a sufficient ground to exclude that witness. See Lucas v. State, 376 So.2d 1149, 1151 (Fla.1979); Bradford v. State, 278 So.2d 624, 626 (Fla.1973). Late disclosures are disruptive, and, are, at times, unprofessional, if caused by counsel’s dilatory trial preparation. Whether the exclusion of the witness is the appropriate remedy depends on the totality of the circumstances, including the factors indicated in Richardson, most importantly, whether it has prejudiced the opposition’s ability to prepare for trial. See Richardson, 246 So.2d at 775.

The trial judge must determine whether a discovery violation has hindered or prevented an aggrieved party from properly preparing its case for trial, and only if the judge finds that there has been such prejudice, may he impose a remedy. See Dorry v. State, 389 So.2d 1184, 1186 (Fla. 4th DCA 1980). Once prejudice is determined, the court may fashion an appropriate remedy, but “relevant evidence should not be excluded from the jury unless no other remedy suffices.” Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976). A court should not exclude a witness except under the most compelling of circumstances. In a criminal case, exclusion of a defense witness because of a discovery violation implicates the defendant’s sixth amendment right to present witnesses as well as the fundamental right to due process. See Taylor v. Illinois, 484 U.S. 400, 414, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

Under rule 3.220, the defense in a criminal case is required to disclose the names and addresses of the witnesses that it expects to call at trial within fifteen days following receipt of the State’s discovery disclosures. Excluding a defense witness because the defense failed to disclose the witness, or to timely disclose the witness, is a “severe sanction” that “should be a last resort reserved for extreme or aggravated circumstances.” Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998). The decision of the trial court to exclude a defense witness because of a discovery violation should balance “the propositions that the reciprocal rules of discovery should be followed so long as the defendant is not denied his fundamental right to defend himself.” Woody v. State, 423 So.2d 971 (Fla. 4th DCA 1982).

We conclude that the Richardson hearing conducted here was inadequate because the court failed to make the findings required by Richardson and failed to consider alternatives other than exclusion of the witness, such as sanctioning counsel, continuing the trial, or both. An inadequately conducted Richardson inquiry will generally result in reversible error when a relevant witness is excluded from testifying. See, e.g., M.N. v. State, 724 So.2d 122 (Fla. 4th DCA 1998). The exclusion of a witness is such an extreme remedy that this court has said:

Although it is within the judge’s discretion to exclude witnesses that most extreme sanction should never be imposed except in the most extreme cases, such as when [the violation is] purposeful, prejudicial and with intent to thwart justice.

O’Brien v. State, 454 So.2d 675, 677 (Fla. 5th DCA 1984); see Patterson v. State, 419 So.2d 1120, 1122 (Fla. 4th DCA 1982) (holding that “exclusion is a severe remedy that raises very serious questions concerning the fairness of the judicial process.”)

In Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985), the first district court stated:

Relevant evidence should not be excluded from the jury unless no other remedy suffices, and it is incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice.
In this case, the trial court did not adequately explore other avenues to rectify the prejudice to the state, such as ordering a recess or continuance, although specifically requested by the defense. The assistant state attorney’s argument that a recess to enable him to depose the witness would not solve the prejudice since he would still be deprived of the possibility of obtaining impeachment evidence concerning ... [the defense witnesses] is unavailing since this is always the case when one whose name was not on the witness list is permitted to testify-

(Citations omitted).

Nothing in the circumstances of this case suggests that the discovery violation was purposeful, prejudicial and with intent to thwart justice. We conclude that it was error to exclude Ronnie Shealy’s testimony. His testimony would have been a direct challenge to the credibility of the victim as it cast doubt about her motive for having Tomengo arrested. Shealy’s testimony clearly supports the inference that falsely claiming to have been “raped” was, in the victim’s mind, the only way she could get Tomengo out of her house. Exposing a motivation for a witness to testify untruthfully at trial is “the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In addition, the trial court excluded cross-examination of the victim regarding a gun being fired in her house, and a stolen car in her yard. Tomengo alleged that he had argued with the victim because a stolen automobile had been brought into her yard by her godbrother who also fired a gun in the house. Defense counsel argued that these incidents were relevant to show an atmosphere of tension or animosity between Tomengo and the victim. Tomengo’s defenses centered on his contention that the victim pursued sexual battery charges against him as a way of getting back at him.

That a defendant has the right to fully cross-examine an adverse witness to reveal any bias, prejudice, or improper motive the witness may have in testifying against the defendant is a fundamental tenant of due process. See Yolman v. State, 469 So.2d 842, 843 (Fla. 2d DCA 1985). The right to a full cross-examination is especially necessary when the witness being cross-examined is the key witness on whose credibility the State’s case relies. Id.

Evidence of bias, prejudice or interest is admissible as long as it tends to establish that a witness is appearing for any reason other than just to tell the truth. See Hannah v. State, 432 So.2d 631 (Fla. 3d DCA 1983). A defendant, as a matter of right, may cross-examine a State witness with respect to his motive, interest, or animus, which is connected to the cause or to the parties to the cause. See Sweet v. State, 235 So.2d 40, 42 (Fla. 2d DCA 1970). The trial court does not have the discretion to exclude questions which touch upon interest, motive, or animus. See Purcell v. State, 735 So.2d 579, 580 (Fla. 4th DCA 1999).

Tomengo’s attorney tried to introduce evidence through cross-examination tending to show that there was hostility between Tomengo and the victim. Such evidence would have supported Tomengo’s contention that the victim wanted him out of the house for reasons other than the alleged sexual battery. Thus, the evidence tended to show the victim’s bias, motive, interest, or animus, and should have been admitted.

REVERSED.

GRIFFIN and PLEUS, JJ., concur.

      . Tomengo's appellate counsel did not represent him at trial.

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


author: PER CURIAM.

text:
    Eugene DUMAS, Jr., Petitioner, v. Theodore MARRERO, Jr., Respondent.
    No. 5D03-2303.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Eugene Dumas, Jr., Bristol, Pro se.
    No appearance for Respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

Eugene Dumas, Jr., seeks a writ of mandamus to compel his appointed private attorney, Theodore Marrero, Jr., Esquire, to return various records, files and documents retained by Mr. Marrero at the conclusion of Mr. Dumas’ criminal case. We originally denied relief in this case by order because mandamus does not lie to compel a private citizen to perform a ministerial duty. See Donahue v. Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998). See also Puckett v. Gentry, 577 So.2d 965 (Fla. 5th DCA), review denied 591 So.2d 183 (Fla. 1991). Mr. Marrero, however, as we learned for the first time in the petition of Mr. Dumas for rehearing, was a specially appointed public defender for Mr. Dumas. That fact makes a big difference.

As we explained in Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999), private counsel who is appointed to act as a special public defender is an agent of the state and is required to turn over to his client depositions and other documents produced at public expense. See also Ramos v. State, 757 So.2d 616 (Fla. 3d DCA 2000). Thus, it appears that Mr. Dumas may be entitled to some relief.

We are unfortunately unable to tell whether Mr. Dumas should be granted relief. First, he is entitled to have disclosed by his special public defender only such documents (transcripts, for example), as were prepared at public expense. See Donahue. He is not entitled by mandamus to that part of his attorney’s file related to the performance of professional services, as those documents are the property of the attorney, not the client. See Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984). By the present petition Mr. Dumas is seeking “records, files, and or documents” related to his case and held by Mr. Marrero. His request is too vague for us to act upon. Moreover, for the reasons explained in Donahue, he is not necessarily entitled to receive copies of any of the documents free of charge.

An appellate court is not an appropriate forum to consider the issues raised by this petition because we do not conduct evidentiary or fact-finding hearings. Accordingly, we grant the petition for rehearing and withdraw the earlier order denying relief, but transfer this case to the Circuit Court for the Ninth Circuit, in and for Orange County, Florida, for consideration of the merits of the petition.

Finally, we note that Mr. Marrero failed to respond to our order to show cause why sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410 for his failure to comply with the September 3, 2003, order of this court to file a response to the Motion For Rehearing. We, accordingly, impose a fine of $250.00, to be paid to the Clerk of this court, within 30 days from the date hereof.

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


text:
    Merced ROSADO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2327.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Merced Rosado, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   THOMPSON, J.

Merced Rosado seeks a writ of habeas corpus for a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Rosado alleges that when the court denied his Rule 3.850 motion, he timely requested that his attorney appeal the trial court’s order, but the attorney did not do because he was not paid. The state contends that Rosado’s attorney contradicts the assertions in his petition, thus creating disputed facts which warrant the appointment of a commissioner to conduct an evidentiary hearing. We disagree and grant the petition.

Rosado alleges that he is indigent and that his daughter had hired counsel to represent him with regard to his Rule 3.850 motion. He further alleges that when the trial court denied the Rule 3.850 motion, Rosado timely requested that the court’s order be appealed. According to Rosado, counsel then wrote him a letter advising him that his daughter would be contacted to discuss the required fee for representing him on appeal. Despite Ro-sado’s request, a notice of appeal was never filed by counsel.

The state contends in its response to this court that it contacted defense counsel, who acknowledged that Rosado “did request that he file a notice of appeal.” The state also alleges that counsel stated the necessary documents for initiating an appeal were prepared and a notice of appeal would have been filed “as soon as the filing fee was paid by petitioner or petitioner’s family.” The state concludes that in light of counsel’s representations, there are disputed facts warranting the appointment of a commissioner to determine the facts and make a recommendation regarding Rosado’s right to a belated appeal.

We do not agree that it is necessary to appoint a commissioner. First, Rosado’s counsel acknowledged to the state that Rosado did in fact request that a notice of appeal be filed, so there is no dispute that Rosado made a timely request for an appeal. Second, no filing fee is required for a Rule 3.850 appeal to this court. Finally, because there is no dispute that counsel was representing Rosado at the time Rosado requested that a notice of appeal be filed, counsel was obligated to file the notice of appeal to preserve Rosado’s right to appellate review. See, e.g., Springer v. State, 770 So.2d 217 (Fla. 1st DCA 2000).

In State v. Trowell, 739 So.2d 77, 81 (Fla.1999), the Florida Supreme Court ruled that, “the appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so.” In this case, the state acknowledges that a timely request was made to prosecute the appeal. Trowell also held that an eviden-tiary hearing may be held if the state has a “good faith basis” to dispute the defendant’s claim. Id.; see also Oliver v. State, 834 So.2d 910 (Fla. 5th DCA 2003). Had the state presented a good faith basis to controvert the facts in Rosado’s petition, we would appoint a commissioner to conduct an evidentiary hearing. After reviewing the petition and the state’s response, we find the state has no “good faith basis” to request an evidentiary hearing. We grant Rosado’s petition for belated appeal and upon issuance of the mandate in this case, a copy of the opinion will be provided to the clerk of the circuit court to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

Accordingly, the petition for writ of ha-beas corpus for a belated appeal is GRANTED.

PETERSON and P.LEUS, JJ., concur.

      . Of course, counsel would have been later free to file a motion to withdraw. Fla. R.App. P. 9.140(d)(1).


author: THOMPSON, J. ORFINGER, J., PLEUS, J.,

text:
    In re GUARDIANSHIP OF J.D.S. Jennifer Wixtrom, Appellant, v. Department of Children and Families, Appellee.
    No. 5D03-1921.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Clermont, for Appellant.
    . Rod Taylor of Rod Taylor, P.A., Gotha, for J.D.S.
    Charles J. Crist, Jr., Attorney General, George Waas, Senior Attorney General, and Lynn C. Hearn, Deputy Solicitor General, Tallahassee, for the State of Florida.
    Randall C. Marshall for American Civil Liberties Union of Florida, Miami, Amicus Curiae.
    Bebe J. Anderson for Center of Reproductive Rights, New York, Amicus Curiae.
    Julie Sternberg, Diana Kasdan and Jaya Ramji for ACLU Reproductive Freedom Project, New York, Amicus Curiae.
    Susan A. England for Florida NOW, Inc., Fern Park, Amicus Curiae.
    Mathew D. Staver, Erik W. Stanley and Anita L. Staver for Right To Life, Inc., Longwood, Amicus Curiae.
    Laura L. Whiteside, for Advocacy Center for Persons with Disabilities, Inc., Tampa, Amicus Curiae.
    Susan Frietsche and David S. Cohen, for Women’s Law Project, Pittsburgh, PA, Amicus Curiae.
   THOMPSON, J.

INTRODUCTION

Jennifer Wixtrom appeals an order denying her petition to be appointed guardian of the fetus of J.D.S., an incapacitated female. We conclude that the- trial court correctly denied the petition and affirm.

FACTS AND PROCEDURAL HISTORY

On 6 May 2003, pursuant to section 415.1051(2), Florida Statutes, the Department of Children and Family Services (“Department”) filed a petition seeking an order authorizing emergency adult protective services for J.D.S. In its petition, the Department alleged that J.D.S. was in need of temporary emergency protective services because it had received a report that J.D.S. was pregnant as a result of a sexual battery, which occurred while she was residing in a group home. The petition stated that J.D.S. was a 22-year old woman suffering from severe mental retardation, cerebral palsy, autism, and seizure disorder and that she was unable to adequately provide for her own care and protection. The petition also stated that J.D.S. was nonverbal, unable to make decisions, and unable to comprehend her own mental, physical, or environmental limitations. The petition alleged that J.D.S. was taking numerous medications, which could be detrimental to the fetus. The petition requested appointment of a guardian for J.D.S. and protective supervision for J.D.S. On 13 May 2003, the Department filed an amended petition seeking appointment of a guardian for J.D.S. and a separate guardian for the fetus. The Department alleged that J.D.S.’s interests and needs were potentially adverse to those of the fetus. The Department stated that J.D.S.’s guardian was required to avoid conflicts of interest, but that a conflict of interest was likely because J.D.S.’s medications could be detrimental to the fetus.

On 14 May 2003, the trial court ordered protective services for J.D.S. because she was a vulnerable adult who had been abused. On the same day, Emelia Belford, a professional guardian, instituted a separate proceeding under Chapter 744, which governs guardianships. Belford petitioned the court to determine whether J.D.S. was incapacitated and petitioned to be appointed plenary guardian of J.D.S. Responding to Belford’s petition, the trial court appointed an attorney for J.D.S. and appointed a committee to determine if J.D.S. was incapacitated. Belford also filed a petition to be appointed emergency temporary guardian for J.D.S., but the court denied Belford’s petition stating that J.D.S. was not then in danger.

Upon entry of the order denying Bel-ford’s petition to be appointed temporary guardian of J.D.S., Jennifer Wixtrom filed a petition to be appointed guardian of J.D.S.’s fetus. Wixtrom alleged that the appointment was essential because J.D.S. lacked the mental capacity to provide proper prenatal care and to make necessary decisions for the protection and enhancement of the fetus during its formative months. Citing In re T.W., 551 So.2d 1186, 1190 (Fla.1989), the trial court ruled that it is error to appoint a guardian ad litem for a fetus. The trial court also cited several cases which held that a fetus is not a “person” within the meaning of certain statutes. Furthermore, the court noted that Chapter 744, Florida Statutes, does not provide for the appointment of a guardian for a fetus. Finally, the court denied the petition because Wixtrom neglected to provide her home address on her guardianship application and because she did not certify notice to all parties.

On 2 June 2003, Wixtrom filed a motion for rehearing with a corrected certificate of service. On the same day, the trial court heard testimony regarding J.D.S.’s capacity. The trial court found that J.D.S. was totally incapacitated and ordered the appointment of a plenary guardian for J.D.S. The trial court denied a motion to intervene filed by the Department and the Attorney General. After Wixtrom’s motion for rehearing was denied, Wixtrom filed a notice of appeal. Thereafter, the trial court entered an order stating that J.D.S.’s guardian had created a plan for J.D.S. which stated that an abortion would not be performed on J.D.S.

JURISDICTION

In her petition seeking appointment as guardian, Wixtrom alleged that J.D.S.’s guardian owed a fiduciary duty to J.D.S. and that in fulfilling that duty, the guardian might elect to have the fetus aborted or fail to consider that several medications being taken by J.D.S. would have an adverse effect on the fetus. After oral argument, this court was informed that J.D.S. delivered a child. We have elected to decide this case on the merits, notwithstanding its mootness, because we consider this issue to be of great public importance and capable of recurring. Enterprise Leasing Co. v. Jones, 789 So.2d 964 (Fla.2001); In re T.W.; Holly v. Auld, 450 So.2d 217 (Fla.1984); In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993).

STANDARD OF REVIEW

The issue before this court is whether the trial court had the authority to appoint a fetal guardian pursuant to Florida’s guardianship statutes. Because this case involves the application of statutory law, and is a pure question of law, the standard of review is de novo. Walter v. Walter, 464 So.2d 538, 539-540 (Fla.1985); First Union Nat’l Bank v. Turney, 839 So.2d 774 (Fla. 1st DCA 2003); Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000).

ANALYSIS

On its face, Chapter 744, which governs guardianships, does not provide for the appointment of a guardian for a fetus. Section 744.102, the definitions section of Chapter 744, defines the terms, “guardian,” “ward,” and other terms used within the chapter, but it does not define or use the term, “fetus.” Furthermore, the term, “fetus” is not used in Chapter 744, and no section of Chapter 744 entitles a fetus or unborn child to a guardian. “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly, 450 So.2d at 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). We conclude that the absence of a provision for fetuses means that the protection of the statute does not extend to fetuses. Compare State v. Gonzalez, 467 So.2d 723, 726 (Fla. 3d DCA 1985) (stating that the Florida legislature is capable of distinguishing between an unborn child and a person born alive since it has enacted legislation acknowledging the distinction). The legislature has, in other contexts, explicitly provided protection for fetuses. See, e.g., § 782.071, Fla. Stat. (“ ‘vehicular homicide’ is the killing of a human being, or the killing of a viable fetus” by operation of a motor vehicle); § 782.09, Fla. Stat. (willful killing of an unborn child by injury to mother shall be deemed manslaughter). Had the legislature decided that a fetus was entitled to the protection of the guardianship statutes, it would have so legislated. See Davis v. Simpson, 313 So.2d 796 (Fla. 1st DCA 1975) (holding that “person” under wrongful death statute does not include full-term, viable, but stillborn fetus and stating that changing the statute to include an unborn fetus would require legislative action rather than judicial legislation). Finding no mention of the term, “fetus” in Chapter 744 and no Florida case interpreting the chapter to include fetuses, we conclude that the provisions of Chapter 744 do not apply to a fetus.

Furthermore, section 744.102(8), Florida Statutes, defines a “guardian” as “a person who has been appointed by the court to act on behalf of a ward’s person or property or both.” A “ ‘ward’ means a person for whom a guardian has been appointed.” § 744.102(19), Fla. Stat. (emphasis added). It follows that a fetus must be considered a “person” to be appointed a guardian. We find no Florida statute or case law that has determined a fetus to be a person. Rather, the opposite is true. For instance, the Florida Supreme Court declined to rule that a fetus is a “person” within the meaning of the Florida Wrongful Death Act, Young v. St. Vincent’s Medical Center, Inc., 673 So.2d 482, 483 (Fla.1996), and the Fourth District declined to apply a child abuse statute in a case involving a fetus, State v. Gethers, 585 So.2d 1140 (Fla. 4th DCA 1991). See also Roe v. Wade, 410 U.S. 113, 158, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (“the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn”). Also persuasive are holdings from other jurisdictions which have concluded that a fetus is not a “person” and not subject to guardianship. See Matter of D.K., 204 N.J.Super. 205, 497 A.2d 1298, 1302 (Ch. Div.1985) (holding that appointment of guardian for a fetus prior to viability was improper and pointing out that there is no reference to fetuses in guardianship rules and that the use of the term “person” in the rules was significant because a fetus is not a person); see also Roe v. Casey, 464 F.Supp. 483, 487 (D.C.Pa.1978) (“[W]e hold that unborn children (fetuses, embryos) are not persons with a legally protectable interest within the meaning of [Federal Rules of Civil Procedure] and, thus, appointment of guardian [a]d litem is neither warranted nor required”); In re Fetus Brown, 294 Ill.App.3d 159, 228 Ill.Dec. 525, 689 N.E.2d 397 (1997) (holding trial court erred in appointing guardian for fetus in case involving mother’s right to refuse medical treatment versus state’s interest in the viable fetus). But see 66 Federal Credit Union v. Tucker, 853 So.2d 104 (Miss.2003) (holding that a fetus which had “quickened” was a person for purpose of prosecuting a wrongful death action).

Wixtrom is concerned that J.D.S.’s guardian could have authorized an abortion of the fetus. Florida law provides safeguards to insure that a guardian does not act capriciously or cavalierly when considering the health of the incapacitated mother and fetus. For example, sections 390.0111(1) and (3), Florida Statutes, state that no abortion can be performed on a ward unless two physicians certify in writing that “to a reasonable degree of medical probability, the termination of pregnancy is necessary to save the life or preserve the health of the pregnant woman,” and the guardian must also consent to the medical procedure. Further, before the guardian can consent to an abortion, the guardian must receive specific authority from the court. And, before the court can grant that extraordinary authority, it must appoint an attorney to represent the ward, receive independent evidence from experts, and find by clear and convincing evidence that the incapacitated person cannot make the decision and that the requested extraordinary authority is in the best interest of the incapacitated person. The court may also appoint a court monitor to conduct an investigation, collect evidence, and report its findings to the court.

CONCLUSION

Having concluded that Chapter 744 does not provide for the appointment of a guardian for a fetus, explicitly or implicitly, we find that the trial court correctly denied Wixtrom’s petition to be appointed guardian of J.D.S.’s fetus.

AFFIRMED.

ORFINGER, J, concurs and concurs specially, with opinion.

PLEUS, J., dissents with opinion.

ORFINGER, J.,

concurring and concurring specially.

The unfortunate facts of this case compel us to confront a difficult question: is a fetus a “person” under Florida law? “One can find no consensus on the issue among physicians, politicians, theologians, academics or judges.” Few topics in American law have generated as much impassioned debate as the status and rights, if any, of the unborn. “[W]hen there is a “potential life” at stake, the relationship between the right to decide and the right of government to intrude becomes far more emotional and complex.... Depending on one’s religious or philosophic views, life may begin anywhere from conception to ... birth.”

The fetal rights debate began in earnest when the United States Supreme Court declared in Roe v. Wade, 410 U.S. 113, 157-58, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that a fetus is not a person for the purposes of the Fourteenth Amendment of the United States Constitution. Florida, like most states, has followed the common law “born alive” rule when determining the rights, if any, of the unborn. Under that rule, the unborn generally have no legally recognized rights until, and unless, a live birth occurs. See generally State v. Ashley, 701 So.2d 338 (Fla.1997); Hernandez v. Garwood, 390 So.2d 357 (Fla.1980). American courts have also generally held that the words “person” or “human being,” as used in most statutes, do not include the unborn. To some extent, that view has changed slightly in Florida. For example, the Florida Legislature has addressed the killing of an unborn child by enacting section 782.09, Florida Statutes (1988), which makes the willful killing of an “unborn quick child” unlawful. But with few exceptions, Florida statutes and case law have consistently maintained that there is no “person” with any rights, standing or entitlement until there is a live birth.

As the majority opinion correctly observes, through the enactment of numerous statutes, the Florida Legislature has distinguished between the unborn and persons born alive. Consequently, although the State has a legitimate interest in protecting the “potentiality of human life,” an interest that becomes compelling once the unborn achieves viability, if the Legislature intends to depart from the traditional interpretation of the words “minor,” “person,” or “human being,” as those terms are used in the guardianship or other Florida Statutes, it must do so expressly, as such words generally apply to human life only postnatally. Roe, 410 U.S. at 157, 93 S.Ct. 705.

The Legislature is the appropriate forum to debate the proper balance between the State’s compelling interest in protecting the unborn and the mother’s constitutional right to privacy and personal bodily integrity, assuming that such a balance can be achieved. While the debate is typically framed in the context of the State’s right to interfere with a woman’s decision regarding an abortion, taking control of a woman’s body and supervising her conduct or lifestyle during pregnancy or forcing her to undergo medical treatment in order to protect the health of the fetus creates its own universe of troubling questions. Should the State have the authority to prohibit a pregnant woman from smoking cigarettes or drinking alcohol, both legal activities with recognized health risks to the unborn? Could the Legislature do so constitutionally given our supreme court’s broad interpretation of Florida’s constitutional right of privacy and the limitations placed on the State’s ability to act by Roe?

While Wixtrom and the amici curiae supporting her position would limit this court’s ruling to situations involving a legally incompetent mother pregnant with a viable fetus, viewing' the problem through that narrow a lens distorts the real issue of the scope, if any, of fetal rights. If a fetus has rights, then all fetuses have rights. And, if a fetus is a person, then all fetuses are people, not just those residing in the womb of an incompetent mother. If we recognize a fetus as a person, we must accept that the unborn would have the rights guaranteed persons under the Constitutions of the United States and the State of Florida. While it is inviting to view this case as narrowly as Wixtrom suggests, it would be dangerous to do so when the potential for state intrusion into the lives of women is so significant. The Legislature, as the people’s elected representatives, must consider and weigh that delicate balance, consistent with constitutional limitations on the State’s ability to interfere with a pregnant woman’s right of privacy and bodily integrity.

Consistent with the holding in Roe v. Wade, the State has the authority to protect potential human life in the absence of a countervailing fundamental right or a more compelling state interest. At the same time, Roe recognized that the State’s compelling interest may be sacrificed to protect the life or health of the mother. Roe, 410 U.S. at 163-64, 93 S.Ct. 705. State regulation of fundamental rights is justified only by a compelling state interest. Id. at 156, 93 S.Ct. 705. Balancing the interests of the mother and the unborn is problematic, and, at least in the context of Florida guardianship law, has not yet been addressed by the Legislature. Whether the State can confer previously unrecognized rights on the unborn under Florida law is a question that we must leave to another day. Our conclusion here is simply that the Legislature has not yet done so, at least in the context of Florida guardianship law.

Our opinion should not be read to suggest that we believe that the Legislature can constitutionally grant rights to the unborn that might be in conflict with the mother’s right of privacy. Nor do we conclude that a viable fetus is not alive; rather, we hold that in the context of Florida guardianship law, the Legislature has not yet addressed the rights, if any, of the unborn, and when, if at all, a fetus acquires personhood, entitling it to the full protections of the law. Whether the Legislature can confer rights on the unborn will be decided by the courts only if, and when, the Legislature enacts such legislation. But in doing so, the Legislature must consider the mother’s paramount right to privacy and bodily integrity. .

“Protecting the health "and welfare of potential life is both an important and altruistic enterprise; one that states can and, for the sake of humanitarianism, should undertake. However, in creating laws that advance fetal protections, states should take caution to ensure preservation of our society’s most sacred, and fundamental interests: privacy, personal liberty, and bodily integrity.”

PLEUS, J.,

dissenting.

Jennifer Wixtrom is appealing an order which denied her petition for appointment as plenary guardian of the unborn child of J.D.S. The issue in this appeal is whether a court has legislative authority to appoint a plenary guardian for the unborn child of a mentally incompetent mother to ensure compliance with statutory requirements and advance the State’s interest in protecting the life of the unborn baby.

J.D.S. was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families (DCF) in a group home. She was 22 but had the mental capacity of a four- or five-year-old.

DCF filed an “Amended Petition for Emergency Adult Protective Services Intervention” along with a request for appointment of plenary guardians for both J.D.S. and her unborn baby.

DCF alleged that:

Since the guardian that will be appointed for the Respondent [J.D.S.] will have a fiduciary relationship with the Respondent [J.D.S.], in that the guardian is required to act in good faith and with due regard to the needs of the vulnerable adult, these needs are potentially adverse to the interests and needs of the unborn child. The guardian for the Respondent [J.D.S.] would be prohibited from exercising this same fiduciary duty on behalf of the Respondent’s [J.D.S.] unborn child. Section 415.102(10), F.S. (2003). Additionally, a guardian must avoid a conflict of interest and must be independent and impartial. Section 744.446, F.S. (2003).
Decisions will have to be made regarding the medical care, medical testing, and medications prescribed to the Respondent [J.D.S.] that are necessary to meet the needs of both the Respondent [J.D.S.] and the Respondent’s [J.D.S.] unborn child and conflicts will likely arise as to these decisions. There is a possibility that the medications that the Respondent [J.D.S.] is currently taking may be detrimental to the unborn child and therefore a conflict is likely. These types of conflicts must be avoided pursuant to Chapter 415 and Chapter 744. (Id., Para. 4d)

(Emphasis added).

The trial court initially found J.D.S. to be a “vulnerable adult” in need of protective services. Upon entry of the court’s order, Emelia Belford, a professional guardian, petitioned to be appointed plenary guardian for J.D.S. In response to Belford’s petition, the court initiated proceedings pursuant to section 744.331, Florida Statutes, to determine the competence of J.D.S. It also ruled that other persons could petition to be the guardian of J.D.S. As a result of that invitation, Patti Jerrell also filed a petition to be appointed the plenary guardian of J.D.S.

The court did not rule initially on the portion of the DCF petition which asked for appointment of a plenary guardian for the unborn baby of J.D.S., but in the meantime, the appellant, Jennifer Wix-trom, filed her own verified petition to be appointed plenary guardian of J.D.S.’s baby. Her petition re-alleged the concerns initially raised by DCF over the inherent conflict that would arise if the court did not appoint a guardian for the unborn child. Wixtrom stated that a guardian for the unborn child was “essential for the protection of the unborn child as J.D.S. lacks the mental capacity to provide proper pre-natal care and make the necessary decisions for the protection and enhancement of the unborn child during its formative months.”

Before the court could appoint a guardian for J.D.S., DCF and the State of Florida filed a motion to intervene. They based their motion on the “constitutionally recognized interest” and the statutory responsibilities which warranted intervention. This motion was erroneously denied as “moot.” The motion should have been granted, but the error was not preserved or appealed.

In the order which denied Wixtrom’s petition, Judge Kirkwood noted that Wix-trom did not provide her residence address, and then opined that “appointment of a guardian ad litem for a fetus is clear error.” (Emphasis added).

Further, for unexplained reasons, the court noted that Chapter 390 addresses the termination of pregnancies and provides that:

“Viability” means that stage of fetal development when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb. Notwithstanding the provisions of this subsection, the woman’s life and health shall constitute an overriding and superior consideration to the concern for the life and health of the fetus when such concerns are in conflict.

§ 390.0111(4), Fla. Stat. (2003). The only plausible explanation for why the court would mention Chapter 390 is that an abortion was contemplated.

The order under appeal unrealistically reasoned that the guardian for J.D.S. could resolve any “dilemma” between the interests of J.D.S. and the unborn child. On the other hand, it was silent as to who would be charged with representing the best interests of the unborn baby.

Wixtrom’s petition was for her appointment as a plenary guardian under Chapter 744, and not a guardian ad litem. It is important to note the difference between a guardian ad litem and a plenary guardian appointed pursuant to Chapter 744. Under section 744.3021, any person interested in the welfare of a minor may be appointed guardian of the minor without the necessity to adjudicate the minor incompetent as set forth in section 744.331. A guardian appointed for a minor, whether of the person or property, has the authority of a plenary guardian. On the other hand, under section 39.820, a guardian ad litem is a person appointed to represent an incompetent party in civil litigation. A guardian ad litem has none of the powers of a plenary guardian and totally different responsibilities. A guardian ad litem is simply an advocate for the best interest of the child.

Upon receipt of the denial order, Wix-trom asked for a rehearing. At a hearing being held on Jerrell’s and Belford’s petitions to be appointed guardian of J.D.S., the trial judge announced: “The issue raised by the Executive Branch has been ruled upon and will not be part of this hearing.” In his written order, the judge stated:

Because the Verified Petition for Appointment of Guardian Over Unborn Child has already been denied, the stated reason for the State of Florida’s and the Department of Children and Families’ Motion to Intervene is moot.

The court then considered the competency petition of Patti Jerrell and Emilia Belsford. Jerrell was appointed plenary guardian of J.D.S. over Belford. Wix-trom’s motion for rehearing was summarily denied without a hearing. The order was silent as to how the health and welfare of the baby would be protected.

The standard of review in this appeal is de novo because it involves a question of statutory interpretation. Casalla v. Canaveral Port Auth., 827 So.2d 308 (Fla. 5th DCA 2002).

This case is not about the choice of a mother to terminate a pregnancy, but it well could have been. J.D.S. is incapable of exercising the choice of life or death for her unborn baby. Because the baby is viable, the only question in the context of abortion would be whether the termination of the pregnancy is medically necessary to protect the life or health of J.D.S. On the other hand, as explained later, future cases may involve the termination of human life. The majority opinion would allow no voice for the unborn child in such cases.

Two preliminary issues in this tragic case merit discussion. ...

Mootness Issue

The question has arisen of whether the issue in this case has become moot. Baby S, a girl, was born to J.D.S. on August 30, 2003. Wixtrom and all amici agree that this case should be decided because of the likelihood of reoccurrence. Mootness does not destroy an appellate court’s jurisdiction when the questions raised are of great public importance or are likely to recur. Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984). The instant' case meets both of these requirements. The issue of whether a court should appoint a guardian to represent the interests of an unborn child whose mother is incompetent to make decisions on' behalf of the child is certainly one of great public importance. For example, the mootness issue was addressed in In re T.W., 551 So.2d 1186 (Fla.1989). In re T.W. held that an action testing the constitutionality of the parental consent statute was one of great public importance and thus, was not mooted by the teenageFs abortion. A similar point was addressed in In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993), which held that the issue of whether to appoint independent counsel for a ward at the outset of the proceedings was one of great public interest, and thus, was not mooted by ward’s death.

The potential conflict raised by the appointment of Wixtrom is also likely to recur, as evidenced by the fact that the'same issue arose in the context of a proposed abortion in In re Z.M.H., No. 03-1088 (Fla. 11th Cir.Ct. May 23, 2003). In that case, the circuit court appointed a guardian to represent an incompetent woman who was raped and became pregnant. After the guardian sought court authorization to terminate the pregnancy, the Liberty Counsel filed motions to intervene and to appoint a .guardian ad litem to represent the unborn child. The circuit court deniéd these motions. The court then authorized an abortion. No guardian was there to advocate the interests of the unborn child. On the other side, in Lefebvre v. North Broward Hospital District, 566 So.2d 568 (Fla. 4th DCA 1990), the lower court appointed a guardian ad litem to represent an unborn child of an incompetent mother in proceedings to terminate her pregnancy.

Accordingly, the birth of Baby S in the instant case does not destroy this court’s jurisdiction to decide an issue of great public importance that is likely to recur.

The In re T.W. Issues

A second preliminary issue in this case is whether the outcome is controlled by In re T.W., 551 So.2d 1186 (Fla.1989). In that decision, Justice Shaw makes the statement: “We find the appointment of a guardian ad litem for the fetus was clearly improper.” Id. at 1190. (Emphasis added). He went on to state that the attorney general alone has standing to pursue this appeal. Id. at 1190.

A fair reading of In re T.W. does not support the conclusion that appointment of a guardian for an unborn child is “clearly improper” in all cases. In In re T.W., a guardian ad litem (not a plenary guardian) was appointed for the sole purpose of challenging the constitutionality of certain portions of the parental consent statute. The Florida Supreme Court noted that the attorney general was the proper party to defend the parental consent law.

Nothing in Justice Shaw’s statement indicates that the appointment of a guardian for an unborn child is always improper. Such an interpretation is overbroad and totally unwarranted.

While In re T.W. stands for the proposition that a guardian ad litem should not be appointed for the purpose of litigating a constitutional challenge, it does not stand for the proposition that a plenary guardian should not be appointed for the viable unborn child of a mother who has been adjudicated incompetent with no capacity to formulate or communicate thoughts regarding her circumstances.

The Main Issue

At the outset it should be emphasized that the issue in this case is not about the right of a mother to choose to kill her unborn baby. J.D.S. is incapable of exercising this “choice.” In the context of abortion, the only issue would be whether the termination of life for the baby is medically necessary, and that is not an issue in this case. It well could have been.

According to the majority, the issue in this case is whether Florida law allows the appointment of a plenary “fetal” guardian in cases such as this one. I would define the issue in terms of an unborn child. In other words, does the court have the power to appoint a plenary guardian for an unborn child? The majority feels the main issue is whether a “fetus” is a “person” under Florida law.

I believe that under Chapter 744, a trial court has full authority to appoint a plenary guardian for an unborn child because the child is a “minor” as the term is used in the statute.

A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh or absurd consequences. State v. Atkinson, 831 So.2d 172 (Fla.2002). Indeed, as Judge Sawaya of this court noted in Meeks v. Florida Power & Light Co., 816 So.2d 1125 (Fla. 5th DCA 2002), it is the intent of the Legislature which is the polestar that guides our inquiry and requires us to interpret statutes in order to avoid an unreasonable or absurd result.

All sides to this case concede that the State has a compelling interest in the health, welfare and life of the unborn child. Appointment of a guardian for the unborn baby is not an undue burden and is the only means to ensure that the State’s compelling interest in the health, welfare and life of an unborn child is protected. The United States Supreme Court has ruled that a state has a legitimate interest at the outset of a pregnancy in protecting the health of a woman and the life of a fetus that may become a child. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). This legitimate interest becomes a compelling interest after the unborn child is a viable life. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). At all times material to the decision of the trial court, Baby S was viable.

The Casey court reaffirmed Roe’s definition of “viability” to be “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb so that independent existence of second life can in reason and in all fairness be the object of State protection that now overrides the rights of women.” Casey, 505 U.S. at 870, 112 S.Ct. 2791. In other words, upon viability, the State has a compelling interest in “promoting the life or potential life of the unborn.” To protect the health and welfare of the unborn child, states may take action to restrict a woman’s liberties by any means that does not create an “undue burden.” In defining what is not an undue burden, the United States Supreme Court has ruled that regulations which do no more than create a structural mechanism by which the state, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted.

Because the State has a compelling interest in a preservation of life upon viability, the trial court was obligated to determine if the appointment of a guardian over the unborn child constituted “an undue burden.” In fact, there is no indication that the trial court even considered or applied the undue burden test.

The appointment of a guardian for the unborn child of a totally incapacitated ward does not constitute an undue burden. The appointment of a guardian will greatly assist the court in exercising its responsibilities of preserving the State’s compelling interest in the life of the unborn child. Without the appointment of a guardian for the unborn child, there will be an inherent conflict of interest in the protection of the ward and the unborn child.

Judge Kirkwood’s denial of a guardian for the baby nullified the only effective mechanism and non-burdensome method by which the State can fulfill its duty of asserting its compelling interest in preserving the health and welfare of the unborn.

Certainly the appointment of a guardian for the unborn child is no more burdensome than appointing a guardian for J.D.S. If a guardian for the baby is not appointed, the State will be left with no method of protecting the interests of the unborn child. Refusing to appoint a guardian will also place the State of Florida, by its court-appointed guardian of J.D.S., in the untenable position of deciding the fate of the unborn child in absentia, a decision which may result in the death of the unborn baby. Without the mechanism of a guardian for the unborn child, the court will have abrogated its responsibility to protect the potential life of the unborn child.

Section 744.3215(4), Florida Statutes, states in pertinent part:

Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:
* * *
(e) Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.

Section 744.3725, Florida Statutes, states in pertinent part:

Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must:
* * *
(5) Be persuaded by clear and convincing evidence that the authority being requested is in the best interests of the incapacitated person; ...
The provisions of this section and s. 744.3515(4) are procedural and do not establish any new or independent right to or authority over the termination of parental rights, dissolution of marriage, sterilization, abortion, or the termination of life support systems.

(Emphasis added).

By enacting these subsections, it is abundantly clear that the Legislature intended to protect the rights of the unborn child in situations where the mother is determined to be incapacitated. It is also quite clear that these provisions require an adversarial evidentiary hearing with the presentation of evidence and a judicial determination based upon clear and convincing evidence. Inherent in these requirements is the necessity of an adversarial hearing in which not only interests of the mother are represented, but also the interests of the unborn child. This is best achieved by requiring that upon petition of the guardian of the mother for authority to abort the mother’s child, a guardian for the unborn child be appointed to represent the unborn child’s interest at the hearing. To construe the statute otherwise would render the requirement of a judicial determination based on clear and convincing evidence meaningless and lead to the absurdity of trying to obtain clear and convincing evidence when that evidence is ex parte and uncontested. Thus, a guardian can and should be appointed for the unborn baby to ensure compliance with Florida law should abortion be considered.

There are other reasons why a guardian should be appointed. Section 744.446, Florida Statutes, creates a “fiduciary” relationship between the ward and the guardian by requiring that in the management of the guardianship, the guardian be independent and impartial. The guardian of the mother owes a complete non-compromising fiduciary relationship to the mother and the guardian is prohibited from compromising his or her duties owed to the ward by taking actions on behalf of the unborn child. This means the court-appointed guardian is placed in a “dilemma” when issues of the ward conflict with the welfare or health of the unborn child. Without a guardian for the baby, the court places the baby at the mercy of the decisions made by the court-appointed guardian. The record in this case, for example, indicates that J.D.S. is taking psychotropic medications which may jeopardize the welfare of the baby. In addition, future medical procedures such as tests and medication will be required which may detrimentally affect the baby’s welfare. Matters such as whether to obtain a sonogram, use of anesthesia for medical procedures, the type of vitamins, choice of delivery, medications or other prenatal “dilemmas” will have a profound impact on the well-being of the unborn child. These issues alone create a conflict of interest that a court-appointed guardian over J.D.S. may not be able to resolve, inasmuch as the guardian owes a primary duty to J.D.S. and not to the baby. Hence, the guardian of J.D.S. is placed in an obvious conflict of interest which must be avoided.

To resolve this “dilemma” and avoid an unreasonable or absurd result, the court must have authority to appoint a plenary guardian for the unborn child because the appointment of a guardian is the only-structural mechanism that can watch over the unborn child’s interests without creating an undue burden. It is well-established that states may regulate and even proscribe third trimester abortions except when necessary to preserve the health and life of the mother. Consistent with well-established federal and Florida law, Chapter 390 provides that “no termination of pregnancy shall be performed on any human being in the third trimester of pregnancy” unless certain conditions are met. In recognition of its interests in the life of the unborn child, Florida has chosen to prohibit abortions after the 24th week of pregnancy except where medically necessary to protect the life or health of the mother. § 390.0111, Fla. Stat. (2003).

The appointment of a guardian for the baby will do nothing more than create a “structural mechanism” by which the State can express its profound respect for the life of the unborn child.

The mechanism to advance that interest in the context of a case like this is the appointment of a guardian on behalf of the unborn child. The Florida Supreme Court has recognized that the judge cannot play the dual role of decision-maker and advocate. Accordingly, someone needs to represent the State’s interest, and the most appropriate someone is a guardian on behalf of the unborn baby.

In this case, a guardian would be in a position to conduct his or her own analysis and review the expert’s analysis as to the proper care of the unborn child which would then be presented to the trial court at the time J.D.S.’s guardian offers her report. Such a mechanism for protection would not cause a delay or in any way prejudice J.D.S. The existence of a potential inconvenience is no reason to deny the appointment of a guardian for the baby. Absent a guardian, the unborn child’s voice will remain squelched, which result is contrary to the holdings and intent of Casey.

The appointment of a guardian for an unborn baby of a woman in her third trimester is consistent with Roe and Casey. The appointment of a guardian on behalf of the unborn child advances the State’s interest in the life of the unborn by (a) insuring compliance with all statutory requirements and (b) appointing a zealous advocate to cross-examine witnesses offering medical testimony thereby representing the State’s interest in preserving the life of the unborn child. In this case, the only interests at stake are the State’s interest in preserving the life of the unborn child and the guardian’s interest in determining whether it is medically necessary to terminate the pregnancy in order to preserve the life or health of the mother. Absent clear and convincing evidence that the mother’s life or health is at risk due to the continued pregnancy, the scale tips in favor of the State and the life of the unborn baby must be preserved. A guardian on behalf of the unborn baby would act as an advocate for the State’s interest in that unborn life.

Because the majority concludes that an unborn, viable child is not a “person” or a “minor” unless the Legislature says so, I would urge the Legislature to overturn this decision and affirm the fact that an unborn child is a person. Such action would be a clear and unambiguous acknowledgment of human life.

I would submit further that defining “person” by using terms such as “embryo” or “fetus” is confusing, outdated and meaningless. Such terms cloud the issue of when human life begins. The better view would be for the Legislature to adopt a bright line point in time, and that point in time must be the moment of conception.

Sooner or later, as happened when Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) overturned Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), Roe’s unrestricted abortions will be overturned, and the rights of the unborn will be extended to the moment of conception.

My concern with the ramifications of the majority opinion compels me to write the following. I have a new grandson. His name is Nicholas. His heart started beating a short time after conception and during the first trimester. At the end of the first trimester, or early in the second trimester, we were able to view a sonogram and determine that Nicholas was a boy. We have pictures of sonograms taken when Nicholas was only fourteen weeks old. You can see his head, his eyes, his hands and feet. You could tell he was alive because he moved his arms and legs. He was so strong you could watch him move his mother’s pregnant belly. Before he was born, his parents placed a sign over his future crib. It read simply: “NICHOLAS.” Nicholas now lives outside his mother’s womb, but from the moment of his conception, Nicholas was a human life.

If all the judges in the world and all justices on the supreme court decided that Nicholas was not a person and merely a “fetus” until his birth, I would know them blind to reality. Before his birth, Nicholas was alive. Nicholas had identity. Nicholas was a person. Nicholas has been a person since conception. Our rule of law can no longer remain blind to the realities of human life.

We now know the baby of J.D.S. is a girl. She is called Baby S. She was born through Caesarean section. Ironically, within a short time after her birth, a guardian was appointed for Baby S. It makes no sense to me that Baby S could have a guardian after the Caesarean but not before. Was Baby S any less human before the surgery?

For the reasons expressed above, the issue in this case can be resolved on the basis of legislative intent. I believe the Legislature intended the reality that Baby S was a minor under the age of 18 both before and after the Caesarean operation on her mother. As a minor under the age of 18, prior to her birth, Baby S was eligible for a plenary guardian under the statute. Such a ruling would not amount to judicial legislation. Holding that an unborn child is a minor under the age of 18, within the context of the overall purpose of Chapter 744, is simply judicial interpretation, with a view to reality, in order to avoid an unreasonable and absurd result.

      . The State of Florida and the Department of Children and Family Services filed a joint amicus brief in support of Wixtrom. Right To Life, Inc., also filed an amicus brief in support of Wixtrom. The Center for Persons with Disabilities, the American Association of Disabled People, the American Civil Liberties Union, the American Civil Liberties Union of Florida, the Florida National Organization for Women, Inc., and the Center for Reproductive Rights filed amicus briefs in opposition to Wixtrom.

      . In re T.W., 551 So.2d 1186, 1190 (Fla.1989); Hernandez v. Garwood, 390 So.2d 357, 358 (Fla.1980); Duncan v. Flynn, 358 So.2d 178, 178 (Fla. 1978); Stern v. Miller, 348 So.2d 303, 308 (Fla. 1977); Love v. State, 450 So.2d 1191, 1193 (Fla. 4th DCA 1984); and Styles v. Y.D. Taxi Corp., Inc., 426 So.2d 1144, 1145 (Fla. 3d DCA 1983).

      .The trial court found:
      1) The nature and scope of the Ward’s inca-pacities are: severe mental retardation, cerebral palsy with a history of autism.
      2) The following facts demonstrate that the Ward is totally without capacity to care for the Ward's person or property: The ward may respond to verbal or visual stimuli or follow commands. She is unable to communicate and unable to make her needs known. She requires assistance with ambulation and requires total assistance with all activities of daily living. She cannot hold a pen, cannot write, doesn’t know her name or very basic information. She is unable to follow simple commands [sic] and is unable to express basic needs. Her intellectual deficit and inability to make her needs known significantly impairs her ability to make informed decisions in all areas of her life.
      3) The Ward lacks total capacity to make informed decisions about care and treatment or to meet the essential requirements for the Ward’s physical or mental health or safety; is subject to total legal disability; is incapable of exercising any rights; and a guardian must exercise all delegable rights of the Ward and have full powers and duties with respect to the Ward and the Ward’s person and property....

      . The Department and the Attorney General did not appeal the trial court's order denying intervention, thereby waiving the right to contest the court’s ruling on intervention.

      . The attorney representing J.D.S. filed a Suggestion of Birth with this court on 12 September 2003:
      1. That on Saturday, August 30, 2003 at 10:00 o’clock a.m. in Orange County, Florida, J.D.S. gave birth by cesarean section to a baby girl known as Baby S.
      2. Baby S weighed 6 pounds, 7 ounces and her length was 21íá inches.

      . § 744.102(8), Fla. Stat. (2003).

      . § 744.102(19), Fla. Stat. (2003).

      . § 768.19, Fla. Stat. (1993).

      . § 827.04(1), Fla. Stat. (1987).

      . § 744.3215(4)(e), Fla. Stat. (2003).

      . § 744.3725, Fla. Stat. (2003).

      . § 744.107, Fla. Stat. (2003).

      . The terms "human being” and “person” are used herein interchangeably, as are the terms "unborn child” and "fetus.”

      . William E. Buelow III, To Be And Not To Be: Inconsistencies in the Law Regarding the Legal Status of the Unborn Fetus, 71 Temp. L.Rev. 963, 963 (Winter 1998).

      . Charlene Carres, Legislative Efforts to Limit State Reproductive Privacy Rights, 25 Fla. St. U.L.Rev. 273, 273 (Winter 1998).

      . Aaron Wagner, Texas Two-Step: Serving Up Fetal Rights By Side-Stepping Roe v. Wade Has Set the Table for Another Showdown on Fetal Personhood in Texas and Beyond, 32 Tex. Tech L.Rev. 1085, 1090 (2001).

      . Alan S. Wasserstrom, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (1998).

      . Charlene Carres, Legislative Efforts to Limit State Reproductive Privacy Rights, 25 Fla. St. U.L.Rev. 273, 274 (Winter 1998).

      . I do not suggest that in considering the welfare of an incapacitated pregnant woman, the guardianship court should ignore the well-being of the fetus. To the contrary, I believe the guardianship court has the authority and obligation to consider the fetus’s well-being, although the mother's life and health must trump concern for the welfare of the fetus, if those interests are irreconcilable. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

      . Amy Kay Boatright, State Control Over the Bodies of Pregnant Women, 11 J. Contemp. Legal Issues 903, 903 (2001).

      .§ 415.1051(2), Fla. Stat. (2003).

      . § 744.1085, Fla. Stat. (2003).

      . Under section 744.3021, such a procedure is not required in cases involving persons under 18 years of age.

      . The reason Wixtrom did not give her address was explained in her motion for rehearing by the fact that, under Florida law, she is not required to do so as the spouse of a state attorney.

      . This statement is an obvious reference to a statement made by Justice Shaw in In re T.W., 551 So.2d 1186 (Fla.1989).

      . This holding lends support to the State's motion to intervene.


author: SHAHOOD, J.

text:
    Ellen CAIN, Appellant, v. Paul SWIDERSKI, Appellee.
    No. 4D02-4677.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.

      Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    James D. Tittle and Mark D. Kairalla of Tittle & Kairalla, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

Ellen Cain appeals from an Order on Parties’ Petitions for Modification; she raises two'issues- on appeal. We affirm the second issue, holding that the trial court did not err in terminating appellant’s exclusive use and occupancy of the former marital home due to her marriage in 1994.

We reverse, however, as to the first issue raised. We hold that the trial court erred when it ruled that the parties’ settlement agreement was not an agreement because it was subject to being reduced to writing.

The parties’ marriage was dissolved by final judgment dated June 4, 1993, which incorporated the parties’ marital settlement agreement. The settlement agreement provided for shared parental responsibility of the parties’ three children, two of whom were still minors, with the wife being the primary residential parent. The wife was awarded the right to exclusive occupancy of the marital home until such time as she vacated the home, sold it by agreement with the husband, or died, remarried or cohabitated with another person other than the children. In October 1994, the wife remarried, but she did not vacate the home.

Five years later, on April 21, 1999, the husband filed a petition to modify child support and enforce the final judgment regarding sale of the marital home. He sought a downward modification of his child support obligation as well as an order directing the wife to immediately vacate the home and authorize the parties to sell it. The wife answered the petition asserting that due to the husband’s failure to pay child support during the previous five years, resulting in an arrearage totaling thousands of dollars, she was unable' to maintain the home and had to borrow money to keep the mortgage current.

In December 1999, the parties reached an agreement whereby the husband agreed to transfer the marital residence to the wife in exchange for his child support being current through May 2005. This agreement was referenced and incorporated in the report of the Domestic Relations Commissioner, dated January 27, 2000, and accepted by the trial court’s agreed order filed on January 28, 2000.

By September 2001, the petitions for modification still had not been set for hearing. As a result, the trial court entered an Order to Move Case and Order of Dismissal notifying the parties that the case would be dismissed if the husband did not move the case forward within thirty days. Thereafter, the husband set the case for a non-jury trial, which ultimately took place on August 27, 2002, three and one half years after the filing of the initial pleading.

Prior to trial, the husband filed a Supplemental Petition for Modification of Child Support and Enforcement of Final Judgment re: Sale of Marital Home. He sought a downward departure of his child support obligation due to the fact that he was on permanent disability. He again sought to have the wife vacate the home and have it sold due to her marriage to her husband. The wife responded that the husband was in arrears with his child support and had unclean hands.

At the hearing before a commissioner, the wife’s counsel argued that the parties had previously reached an agreement which rendered further proceedings on the pending motions unnecessary. The husband’s counsel argued that any alleged agreement was outside the scope of the pleadings, and objected to entry of evidence of an agreement. The husband testified that he was not aware of an agreement reached in December 1999, and stated that he had refused to sign papers that had been sent to him, finding them to be unfair.

The commissioner would not allow the wife’s attorney to question the husband about an $8,000 credit in child support arrears that had been granted to him by the clerk’s office, pursuant to the purported agreement. The commissioner said that the agreed order of January 28, 2000, and the judgment of delinquency that the clerk’s office rescinded in March 2000 were of no effect because they referenced an agreement that did not exist. The commissioner said that “any arrears that were not resolved by an agreement that never happened would still be owed,” and suggested that the wife’s counsel ask the clerk’s office to reinstate the judgment of delinquency.

At the conclusion of the hearing, the commissioner allowed the wife’s counsel to proffer evidence of a December 1999 agreement between the parties. He proffered evidence that the husband actually accepted the benefit of the agreement by having his driver’s license reinstated and, in fact, relied upon the two agreed orders to get the hearing on his driver’s license suspension cancelled. Again, in March 2000, the husband relied upon the agreement in accepting an $8,000 credit toward retroactive child support. At no time did the husband ever contest the agreement or seek to rescind it.

Upon receipt of the commissioner’s report, the trial court entered an order accepting the commissioner’s recommendations and denying both the husband’s petition for modification as well as the wife’s counter petition for modification. The court did, however, grant the husband’s petition for enforcement of the final judgment and sale of the home, and ordered the parties to follow the procedure set forth in the marital settlement agreement for the sale of the marital residence.

On review the evidence clearly shows that the parties reached a settlement in December 1999 and that the settlement was incorporated in both the commissioner’s report and the trial court’s order adopting the commissioner’s recommendation. Moreover, in the three years following the entry of the orders, both parties accepted the benefit of the agreement. For the husband’s part, he did not dispute the court clerk’s decision to dismiss the judgment of child support delinquency or the state’s decision to reinstate his driver’s license, which had been suspended because of the back child support owed. Further, he made no effort in three years to set his petition for modification for hearing until the trial court noticed that it would be sua sponte dismissed. The husband’s argument that there was no agreement because it was not reduced to writing is unpersuasive.

Under similar facts, this court has.rejected the same argument. See Cohen v. Cohen, 629 So.2d 909 (Fla. 4th DCA 1993); see also Farrell v. Farrell, 661 So.2d 1257, 1259 (Fla. 3d DCA 1995); Loss v. Loss, 608 So.2d 39, 43 (Fla. 4th DCA 1992); Roskind v. Roskind, 552 So.2d 1155, 1156 (Fla. 3d DCA 1989) (holding that “[a] stipulation properly entered into the record, where there is a clear understanding of the finality of that agreement, is an effective and enforceable settlement notwithstanding that it is subject to reduction to a written document”); Silva v. Silva, 467 So.2d 1065 (Fla. 3d DCA 1985) (property settlement agreement announced at pretrial status conference was required to be enforced, although provisions were not dictated into the record at that time, where trial judge concluded on disputed, but substantial, evidence that parties had orally agreed to terms of a settlement).

In this case, the commissioner refused to hear the wife’s evidence of a settlement agreement, stating- that it was irrelevant because there was no written agreement. The wife was allowed only to proffer .such evidence at the conclusion of the hearing. With at least two court orders mentioning the agreement as well as reference to such an- agreement in various other pleadings, the trial court committed error in refusing to admit the evidence. The commissioner should have given deference to the two prior court orders which approved the agreement, and heard evidence to determine the exact terms of the agreement since those issues appeared to have been disputed. See, e.g., Eaton v. Eaton, 238 So.2d 166, 168 (Fla. 4th DCA 1970) (holdr ing that once the parties’ separation agreement was approved by the court and, by reference, expressly made a part of the final decree of divorce,, the provisions of the agreement were “no longer merely in the status of an agreement of the parties, but bec[a]me elevated to the dignity and effect of a court decree”).

Based on the foregoing we reverse and remand for a hearing for the court to determine the terms of the agreement and to enter an order enforcing those terms.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

POLEN and STEVENSON, JJ., concur.