author: PER CURIAM. WELLS, J., LEWIS, J.,

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, v. ARMADILLO PARTNERS, INC., Respondent.
    No. SC01-1014.
    Supreme Court of Florida.
    April 24, 2003.
    Rehearing Denied June 26, 2003.

      Charles J. Crist, Jr., Attorney General and Robert I. Scanlan, Assistant Attorney General, Tallahassee; and Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for Petitioner.
    Geoffrey L. Jones of Jeek, Harris, & Jones, LLP, Jupiter, for Respondent.
    Mark R. Leavitt of Wilson, Leavitt & Small, P.A., Orlando; and Alan E. DeSer-io, Brandon, for Manheim Remarketing Limited Partnership, d/b/a Florida Auto Auction of Orlando and Florida Auto Auction of Orlando, Inc., Amicus Curiae.
   PER CURIAM.

We have for review the decision in Armadillo Partners, Inc. v. State Department of Transportation, 780 So.2d 234 (Fla. 4th DCA 2001), on the basis of conflict with the decisions in Rochelle v. State Road Department, 196 So.2d 477 (Fla. 2d DCA 1967), and State Road Department v. Falcon, Inc., 157 So.2d 563 (Fla. 2d DCA 1963). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the Fourth District’s decision rejecting the admission of an eminent domain expert’s opinion testimony as to the value of the remaining property after a partial taking.

FACTUAL BACKGROUND

In 1997, the Department of Transportation (“DOT”) initiated eminent domain proceedings to acquire approximately a nine-foot-wide strip of land bordering Davie Road and a forty-six-foot-wide strip of land along Griffin Road for purposes of a road widening and improvements project in Broward County. At that time, Armadillo Partners, Inc., owned a shopping center, known as Armadillo Square, located at the intersection of Davie Road and Griffin Road. At the time of the taking, the shopping center contained two buildings with 26,013 square feet of retail, office, and restaurant space and a total of 140 parking spaces, 119 spaces in front and 21 spaces in the rear. As a result of the DOT project, a portion of the shopping center’s parking lot was taken, resulting in a reduction of usable parking spaces.

In the court proceedings Armadillo sought severance damages in addition to compensation for the property actually taken. At trial, appraisers for both parties testified that the shopping center could not continue to operate if no action was undertaken to renovate the property after the taking. Both appraisers agreed that if no action was taken the value of the remaining property would be limited to the value of the raw land, less the cost of demolition. However, both parties submitted proposals and expert opinion testimony in support thereof as to ways the remaining property could be improved to minimize the effect of the partial taking on the value of the remaining property. These proposals for improvement are also referred to as “cures” to the damage inflicted by the partial taking.

DOT’s proposed cure, which reconfigured the shopping center’s parking lot to increase the available parking to 97 spaces, involved shifting the front parking lot closer to the north-south building by approximately nine feet. Under this proposed cure, an existing improved area approximately nine feet by 180 feet at the front of the north-south building, consisting of a sidewalk with brick pavers, planted areas, an irrigation system, grass and two wooden arbor structures, would be eliminated. According to the opinion testimony of DOT’s expert appraiser, the severance damages incurred as a result of the project would be $808,400, plus an additional $102,300 for the cost to cure under its proposal.

On the other hand, Armadillo’s proposed cure as outlined by its expert appraiser entailed removing over 7000 square feet from the north end of the north-south building, closing one of the driveways on Griffin Road, and reconfiguring the parking lot to accommodate 99 parking spaces. Under this so-called “cut and reface” cure, the sidewalk and related amenities eliminated by the DOT plan would be left intact. Armadillo’s appraiser concluded that the severance damages would be $493,000, and the cost to cure under its proposal would be $425,000. DOT’s and Armadillo’s appraisers estimated total compensation for the entire taking and its effects, including the taking of the forty-six foot strip, at $637,600 and $1,235,000, respectively.

The jury returned a verdict awarding total compensation in the amount of $817,450, including $308,400 in severance damages and $318,750 for the cost to cure. The trial court entered a final judgment pursuant to the jury verdict and Armadillo appealed.

On appeal, the Fourth District reversed the final judgment. See Armadillo Partners, 780 So.2d at 237. Relying on a line of cases from the First District, the district court concluded that DOT’s appraiser did not properly consider all of the factors necessary for an evaluation of severance damages, and thus his testimony should have been excluded. See 780 So.2d at 236. Specifically, the district court stated that no provision was made in the appraiser’s valuation as to severance damages and the cost to cure, for the loss of the shopping center’s existing arbor area. See id. In addition, the district court concluded the trial court erred in admitting testimony regarding DOT’s proposed cure because it was inconsistent with DOT’s existing construction plans for the adjacent roadways. See id. at 236-37.

ANALYSIS

This Court has recognized that “[t]he central policy of eminent domain is that owners of property taken by a governmental entity must receive full and fair compensation.” Broward County v. Patel, 641 So.2d 40, 42 (Fla.1994) (citing art. X, § 6, Fla. Const.). When less than the entire property is being appropriated, “full compensation for the taking of private property by eminent domain includes both the value of the portion being appropriated and any damage to the remainder caused by the taking.” Division of Admin, v. Frenchman, Inc., 476 So.2d 224, 226 (Fla. 4th DCA 1985); see also Kendry v. Division of Admin., 366 So.2d 391, 393 (Fla.1978); § 73.071(3)(a)-(b), Fla. Stat. (2001). The damage to the remainder caused by the taking is also referred to as severance damages, damage caused by severing a part from the whole. In calculating the damage to the remaining property, Florida courts have adhered to a “before and after” rule under which severance damages are calculated as the difference between the value of the property before and after the taking. See Canney v. City of St. Petersburg, 466 So.2d 1193, 1195 (Fla. 2d DCA 1985).

Valuation of the “Arbor Area”

It is the calculation of severance damages that is at issue here. As noted above, the Fourth District concluded that the DOT expert’s calculation of severance damages did not sufficiently include the loss of the arbor area as contemplated in its cure, and as a result, the court held that the testimony was improperly admitted into evidence. The Fourth District relied on a series of cases from the First District. See State Dep’t of Transp. v. Murray, 670 So.2d 977 (Fla. 1st DCA 1996), quashed on other grounds, 687 So.2d 825 (Fla.1997); Williams v. State Dep’t of Transp., 579 So.2d 226 (Fla. 1st DCA 1991), disapproved in part by Broward County v. Patel, 641 So.2d 40 (Fla.1994); State Dep’t of Transp. v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971), disapproved in part by Broward County v. Patel, 641 So.2d 40 (Fla.1994).

In Byrd, as part of a road-widening project, DOT condemned a strip of land that was used by a motel for parking. On appeal, DOT argued that the trial court erred in refusing to admit testimony of the department’s appraiser that the taking would not result in severance damages because the lost parking spaces could be relocated on a portion of the motel’s property where a shuffleboard court was located. The district court, however, concluded that the trial court properly excluded the appraiser’s testimony because it was based upon a misconception of the law of severance damages and failed to take into account the loss of use of the shuffleboard court area. See id. at 837. The district court explained, “The expert’s opinion ignores the reality of the missing shuffleboard court or if the same were to be rebuilt on yet another portion of appellees’ property, the expert ignores the reduction in value of a motel with smaller grounds for its guests to enjoy or perhaps lesser area for expansion.” Id. at 836-37.

Similarly, in Williams the First District held that DOT’s expert’s testimony was based on a misconception of the law. At trial, the expert first testified that the taking would result in severance damages of $177,000 if nothing was done to correct the loss of parking. However, the expert stated that a rear parking area could be constructed on the remaining property at a cost of approximately $24,000. The expert opined that the value of the remainder property converted to parking was $48,000. Thus, the expert concluded that all of the damages and effects to the remainder could be cured by the payment of $72,000. Relying on Byrd, the district court concluded that the expert’s testimony was based on a misconception of the law and should not have been admitted. See 579 So.2d at 229. Specifically, the court stated that the expert’s opinion ignored the fact that the new parking area would not provide as much space for parking as existed before the taking and that the new parking area would intrude into the service area, and ignored the impact that rear parking for customers might have on the value of the property as a business site, as well as the fact that the new parking area would prevent further expansion of the business. See id.

In State Dep’t of Transp. v. Murray, 670 So.2d 977 (Fla. 1st DCA 1996), quashed on other grounds, 687 So.2d 825 (Fla.1997), the First District reaffirmed its previous holdings in Byrd and Williams. In Murray, DOT condemned a portion of a restaurant’s parking lot for the expansion of a state road. At trial, DOT proffered expert testimony that thirteen spaces would be taken, but a complete cure was available that effectively negated severance damages. Specifically, five spaces could be added to the end of the existing parking bays, and eight spaces could be created by striping a paved area on the east side of the restaurant that was used for overflow parking during peak business periods. The trial court disallowed that part of the cure testimony relating to the striping and use of the paved area for.eight parking spaces.

On appeal, the First District approved the trial court’s action, relying on Byrd and Williams: “[T]he Department ignores the fact that the area it proposes to stripe as replacement for spaces taken already is used for overflow parking. As a result, the expert’s opinion ignores the reduction in value of the restaurant business with a smaller parking area available for customer use or a lesser area for parking expansion in the unstriped parking area.” See Murray, 670 So.2d at 979.

We subsequently quashed the First District’s decision in Murray on other grounds. See Murray v. Dep’t of Transp., 687 So.2d 825 (Fla.1997). In so doing, we limited our review to consideration of the certified questions not directly related to the pending issues, and expressly declined to address that portion of the district court’s opinion regarding whether the trial court erred by excluding testimony concerning DOT’s cost-to-cure proposal. See id. at 826.

Severance Damages

In the instant case, the parties differ as to how the value of the arbor area should be treated. Armadillo asserts that the appropriation of the arbor area in effect constitutes a separate element of damages, as if the arbor area is actually a second taking, and that DOT’s appraiser is obligated to value this area before his opinion evidence would be admissible. On the other hand, DOT contends that the district court erred in holding that the expert’s testimony was improperly admitted because the proposed cure did not include specific compensation for the appropriation of the arbor area, and the holding is in conflict with this Court’s decision in Broward County v. Patel, 641 So.2d 40 (Fla. 1994). DOT asserts that under Patel, an appraiser’s testimony concerning a proposed cure is permissible so long as the expert takes into account the cost of the cure and the appropriation or effect of the proposed cure on other areas of the property in assessing the fair market value of the remaining property on the day of the taking.

Patel

Importantly, this Court in Patel stressed that the availability of a future “cure” is “relevant only to the extent it may have an impact upon fair market value [of the remaining property] as of the moment of the taking, and not otherwise.” Patel, 641 So.2d at 43. Relatedly, this Court recognized that “any loss to [the condemnees] by virtue of the appropriation of other areas of their property ... should be taken into account in determining fair market value on the day of the taking, along with associated reasonable costs.” Id. at 44 n. 8. We cautioned, however, that “[w]hen admitting evidence of future contingencies ... the trial court must ensure that the finder of fact does not mistakenly assume that their cost or value can be considered apart from the effect on market value.” Id. at 43 n. 7.

Thus, we held in Patel that in a partial taking case, evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable damages to the remainder parcel. In effect, the “cost to cure” is the cost of an attempt to ameliorate the damage to value sustained by the property as a result of the partial taking by the government. The theory is that it is more economical to spend additional money on a “cure” to restore value to the remaining property because the “cure” will restore more lost value than its “cost.”

However, as our opinion in Patel makes clear, while the cost to cure may be relevant evidence on the issue of damages, it is not a measure of damages to be separately assessed without reference to the reduction in fair market value of the remaining property. As noted in Patel:

[A] knowledgeable buyer would offer less value for property that may require significant future expenses and more value for property with minimal future expenses. Likewise, the value of future improvements that may be probable also will factor into the equation when a knowledgeable buyer determines fair-market price.

Id. at 43. Indeed, as a leading authority in the field of eminent domain has cautioned, “costs to cure while admissible for the purpose of establishing just compensation do not create individual rights to damage, but are merely evidence of the effect of the taking upon the market value and therefore upon diminution in value of the remainder.” 4A Julius L. Sackman, Nichols’ The Law of Eminent Domain, § 14A.04[2], at 14A-99 (rev.3d ed.2001). Thus, “cost to cure and other elements resultant from the taking are only admissible on the issue of just compensation if they are tied to their effect upon fair market value.” Id. § 14A.04[2][a], at 14A-101.

We agree with this explanation of severance damages and the use of cost to cure proposals in determining the fair market value of the remaining property after a partial taking. In doing so, we reject any suggestion that a property owner is entitled to additional compensation as a taking when the government’s cure proposal includes a change in use of a portion of the remaining property. Of course, there is no actual additional taking and the change in use is simply an economic proposal to maintain or improve the value of the remaining property.

EXPERT OPINION TESTIMONY

Initially, we conclude that the district court erred in its application of the principles discussed in Patel to exclude the testimony of DOT’s appraiser. DOT’s appraiser largely based his opinions as to value on the property’s rental value compared to other similar properties. The expert initially indicated that the reduction in the property’s rental value was primarily a result of the reduced parking and that he did not believe there would be any severance damages, other than the cost to cure, if rental income for the property remained the same after implementing DOT’s cure. Upon additional cross-examination, however, he further explained his valuation process and considerations, including a consideration of the loss of the arbor area. Hence, we conclude that the opinion evidence of DOT’s appraiser was properly admitted as evidence of the value of the property remaining, assuming the improvements made to the property were accomplished pursuant to the appraiser’s plan to cure.

Rochelle and Falcon, Inc.

We also find the district court’s opinion in conflict with a persuasive line of cases from the Second District which have held that the method of evaluation applied by an appraiser should ordinarily be treated as an issue of weight, not admissibility, of the challenged testimony.

In Rochelle v. State Road Department, 196 So.2d 477 (Fla. 2d DCA 1967), the Second District held that the trial court had erred in striking the testimony of an expert appraiser. The opinion explained that an appraiser-expert’s evaluation method is not a matter that relates to the competency of his testimony “unless the method used by the witness is so totally inadequate or improper that adoption of the method would require departing from all common sense and reason or would require adoption of an entirely new and totally unauthenticated formula in the field of appraising.” Id. at 479. The opinion further held that the method of evaluation and the consideration of the comparable properties utilized to determine the assessment should be considered as matters going to the weight and not the competency of his testimony. Id.

Similarly, in State Road Department v. Falcon, Inc., 157 So.2d 563 (Fla. 2d DCA 1963), the Second District held that the trial court erred by ordering a new trial based on the erroneous admission of an expert appraiser’s testimony. See id. at 566. In that case, the expert -witnesses testified that they had not considered a particular real estate transaction in determining the value of the condemned property. See id. at 564. The court identified two factors as relevant in determining whether the expert’s testimony was properly excluded: (1) prejudice to the appel-lee’s case and (2) the overall competence of the expert’s testimony as a result of the failure to consider one transaction. See id. at 566. With respect to prejudice, the court said, “Obviously, the mere fact that the testimony depreciated the recovery sought by the appellees was not a sufficient ground for excluding the testimony if it was competent, relevant and material.” Id. at 566.

In determining competency of the expert’s testimony in Falcon, the opinion explained:

Upon examination of relevant authority, both in the cases and the texts, the conclusion is inescapable that the failure of an otherwise competent expert witness to consider one of numerous factors involved in assessing compensation goes not to his competency or the competency of the testimony but only to the weight of the testimony. 1 Orgel, Valuation Under Eminent Domain §§ 132-133 (1953); 5 Nichols, Eminent Domain §§ 18.4[4], 18.42[1] and 18.46 (Rev. 3rd ed.1962). See e.g., Hubbard v. Harris County Flood Control Dist., Tex.Civ. App., 1956, 286 S.W.2d 285.

See Falcon, 157 So.2d at 566. The Second District reversed and remanded the new trial order for a judgment consistent with the jury verdict, see id. at 566-67, because the trial court failed to make the finding that the jury “was deceived as to the probative force or weight of the testimony,” and because the testimony at trial “was competent and susceptible of consideration.” Id. at 566.

We find the reasoning of these Second District opinions to be correct and their application persuasive here, and we conclude that DOT’S expert appraiser’s testimony was properly admitted insofar as it was relevant to determining damages and material to DOT’s case. Furthermore, with respect to the overall competence of the testimony, we find that it was competent. As the Rochelle opinion makes clear, an appraiser’s opinion may be subject to impeachment or to having its weight reduced because of its failure to properly consider one of the many factors that may influence an opinion as to value, but that failure should not prevent the opinion’s admission, nor cause its complete exclusion from the jury’s consideration. See City of Vero Beach v. Schwey, 308 So.2d 178 (Fla. 4th DCA 1975) (holding that differing features of a comparable sale of real property were not a sufficient basis to reject expert testimony in an eminent domain proceeding, instead the differences went to the amount of weight to be afforded by the jury); see also White v. Westlund, 624 So.2d 1148, 1151 (Fla. 4th DCA 1993) (holding that qualifications placed on a medical expert’s opinion are matters of weight, not admissibility); Lombard v. Executive Elevator Service, Inc., 545 So.2d 453, 455 (Fla. 3d DCA 1989) (holding that summary judgment was improper where trial court excluded expert testimony due to expert’s inability to testify as to exact cause of elevator malfunction, as the deficiency in the expert’s testimony related to weight, not admissibility); H.K. Corp. v. Estate of Miller, 405 So.2d 218, 219 (Fla. 3d DCA 1981) (holding that the testimony of plaintiffs’s expert witness was properly admitted into evidence on the basis that the sufficiency of the facts required to form an opinion must normally be decided by the expert himself and any deficiency relates to the weight rather than the admissibility of the expert’s opinion); Rimmer v. Tesla, 201 So.2d 573, 577 (Fla. 1st DCA 1967) (determining that argument that medical doctor’s testimony regarding precise time of death was insufficiently thorough was an issue of weight, not of competency or credibility).

These holdings are also consistent with provisions of the Florida Evidence Code, §§ 90.702, .705, Fla. Stat. (2002), which provide as follows concerning the admission of expert opinion testimony:

90.702 Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
90.705 Disclosure of facts or data underlying expert opinion.—
(1) Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give his reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.

Therefore, in the instant case, even had DOT’S expert failed to include the arbor area in his valuation of severance damages, we conclude that this exclusion would have gone to the weight, not the admissibility of his testimony. Further, as contemplated by the Evidence Code, and, as actually occurred here, the predicate for the expert’s opinion was a proper subject of cross-examination.

Proposed Driveways

DOT also asserts that the district court erred in concluding that testimony regarding the department’s proposed cure should have been excluded because it was inconsistent with the construction plans admitted in evidence in that the driveways for the proposed cure could not be constructed within the temporary construction easement set out in those plans. DOT contends that the district court’s opinion requires the condemnor to change its construction plans to partially implement a proposed cure before the cure plan may even be admitted into evidence and considered by the appraiser or jury in assessing the fair market value of the remainder. Accordingly, DOT maintains that the district court’s decision could lead to the exact unfair scenario this Court noted in Patel, i.e., that the future contingency would not be considered by the jury, thereby increasing the severance damages and potential jury award, but also resulting in a windfall at taxpayers’ expense if the owner should implement the cure in the future. See Patel, 641 So.2d at 44.

In concluding that the trial court erred in admitting testimony concerning DOT’s proposed cure, the district court relied on Belvedere Development Carp. v. Department of Transportation, 476 So.2d 649 (Fla.1985), wherein this Court stated:

The second point raised by the petitioners is whether the state should have been permitted at trial to make certain promissory representations that they would or would not do certain things in the future which were not in the pleadings or construction plans offered in evidence. The petitioners assert that the damages caused by a project as contemplated by the construction plans in existence on the date of valuation and the pleadings govern the evidence of valuation and that representations of a purely promissory or speculative nature should not affect either the character or the extent of the damages the condemnor must pay as full compensation. We agree. When evidence in the form of plans and specifications is properly admitted for the purpose of providing a declaration of the manner in which the condemned property will be utilized, the Department should be bound by this evidence.

Id. at 653. Despite DOT’s argument that the evidence was only offered to show a potential cure which does not have to be a part of its construction plans, the district court stated that DOT “cannot be permitted to rely on a cure inconsistent with its own plans and whose implementation may be speculative at best and would require the use and appropriation of property to effect the cure different from that taken under the plans.” Armadillo Partners, Inc., 780 So.2d at 237.

In the instant case, we conclude the district court erroneously held that the trial court erred in admitting testimony regarding DOT’s proposed cure. The issue in this case is not whether DOT is bound by its construction plans insofar as how the condemned property will ultimately be utilized. In fact, DOT acknowledges that it is bound by such plans. Rather, the issue is whether a cure proposed by DOT, which admittedly may or may not be implemented by the property owner, must be consistent with the department’s current construction plans for the roadway project. See Patel, 641 So.2d at 43 n. 6 (noting that a “duty to cure” is something of a misnomer since “neither party has an obligation to cure or mitigate anything”).

As noted above, neither party has an absolute duty to implement a particular cure. Rather, a “cure” is in effect an alternative proposal that a prospective buyer may implement or undertake to restore value to the remainder. The district court’s opinion, however, in essence placed the entire risk to implement the cure on DOT and misapprehended the fact that any so-called “cures” will only be constructed by the landowner on the remainder parcel if the landowner determines they should be constructed at all.

Moreover, the district court’s opinion also overlooks the fact that DOT offered binding testimony from Douglas Green, a DOT engineer, that the department would permit the driveways as depicted in DOT’s cure plan should the property owner choose to implement the cure. Cf. Division of Admin. v. St. Regis Paper Co., 402 So.2d 1207 (Fla. 1st DCA 1981) (finding trial court did not err in denying admission of disputed evidence where there was no binding witness authorized to make commitments for DOT on the details of the proposed connections or specific plans). We find Mr. Green’s testimony sufficient to bind DOT and permit the introduction of DOT’s proposed cure notwithstanding DOT’s failure to include its proposed revisions in those plans. Cf. Belvedere Development Corp., 476 So.2d at 653.

CONCLUSION

For the reasons stated above, we quash the decision below and disapprove of the decisions in Byrd, Williams and Murray, to the extent they may be inconsistent with this opinion and approve the decisions in Rochelle and Falcon, Inc.

It is so ordered.

ANSTEAD, C.J., QUINCE and CANTERO, JJ., and HARDING, Senior Justice, concur.

WELLS, J., dissents with an opinion, in which LEWIS, J., and SHAW, Senior Justice, concur.

LEWIS, J., dissents with an opinion, in which WELLS, J., and SHAW, Senior Justice, concur.

PARIENTE, J., recused.

WELLS, J.,

dissenting.

I dissent from quashing the district court’s opinion on the first issue in respect to the exclusion of the appraiser’s testimony, which failed to account for the value of the loss of the trees. This area had value and was lost.,

I would also approve the district court’s decision on the second issue.

LEWIS, J., and SHAW, Senior Justice, concur.

LEWIS, J.,

dissenting.

Although I concur with the dissenting opinion of Justice Wells, I write separately to express my concern that the standard for the admissibility of expert opinion testimony propounded by the majority eviscerates the long-standing and broadly applicable rule that specifically excludes expert testimony when it contravenes established law. The decision to cast off this important evidentiary control will, in my view, foster misleading, as opposed to illuminating, expert testimony to the detriment of the justice system. The potential derogatory impact of the majority’s decision cannot be understated given the ever-increasing number of cases that involve veritable seas of dense, sometimes arcane, and often conflicting expert testimony. Because I believe that the majority has erred, and that the error will have serious and far-reaching implications, I must dissent.

It is beyond dispute that expert opinion testimony has heightened — and at times even perhaps undue — influence on the minds of the jurors. See Kruse v. State, 483 So.2d 1383, 1386 (Fla. 4th DCA 1986) (“We are aware ... of the danger that the trier of fact may place undue emphasis on evidence offered by an expert, simply because of the special gloss placed on that evidence by reason of the witness’ status as an expert.”). Indeed, expert testimony is impactful by design as it is permitted only “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.” § 90.702, Fla. Stat. (2002).

Because of its heightened degree of influence, and the concomitant potential for deleterious effects on our justice system, statutory and common law safeguards have arisen to govern the admissibility of expert opinion testimony. For instance, Florida law protects against the usurpation of the factfinder’s role by limiting expert opinion testimony to matters beyond the understanding of the average lay person. See Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980). Additionally, rules adhered to by Florida courts ensure that purported experts are properly qualified, see Brooks v. State, 762 So.2d 879, 892 (Fla.2000), and that their testimony is limited to matters within the ambit of their expertise. See Hall v. State, 568 So.2d 882, 884 (Fla.1990). Other protections impact the content of the expert’s opinion and its underlying basis. Experts are not permitted to opine on questions of substantive law, see In re Estate of Williams, 771 So.2d 7, 8 (Fla. 2d DCA 2000), and an expert’s opinion will be inadmissible if based on insufficient data. See Brito v. County of Palm Beach, 753 So.2d 109, 114 (Fla. 4th DCA 1998).

Another protection, firmly rooted in Florida jurisprudence prior to the Court’s decision in the instant case, is that expert opinion testimony is properly excluded when it runs contrary to established law. Indeed, it is difficult to conceive of evidence fraught with more potential to mislead factfinders than legally erroneous expert testimony. There is ample articulation of this rule in the arena of government takings. In a trio of cases decided by the First District Court of Appeal, the testimony of expert property appraisers was excluded because it misconstrued the law of severance damages by failing to account for the totality of lost value resulting from the respective takings. See State Dep’t of Transp. v. Murray, 670 So.2d 977, 980 (Fla. 1st DCA 1996), quashed on other grounds, 687 So.2d 825 (Fla.1997); Williams v. State Dep’t of Transp., 579 So.2d 226, 229 (Fla. 1st DCA 1991), disapproved in part by, Broward County v. Patel, 641 So.2d 40 (Fla.1994); State Dep’t of Transp. v. Byrd, 254 So.2d 836, 837 (Fla. 1st DCA 1971), disapproved in part by, Broward County v. Patel, 641 So.2d 40 (Fla.1994). The Second District has applied the same reasoning in striking expert opinion testimony pertaining to business damages in condemnation cases. See Mulkey v. State Div. of Admin., 448 So.2d 1062, 1067 (Fla. 2d DCA 1984) (determining that testimony regarding owner’s ability to mitigate business damages should have been stricken as it was based on the misconception of law that owner could relocate parking onto a separate, vacant lot).

The rule prohibiting the admission of legally erroneous opinion evidence is by no means limited, however, to the law of eminent domain. The principle has been applied by Florida courts in numerous contexts. For example, in Federated Department Stores, Inc. v. Doe, 454 So.2d 10 (Fla. 3d DCA 1984), a shopper who was accosted in a department store parking garage brought an action for damages against Burdines department store and Equity Properties (the shopping center’s property manager), asserting negligent security planning. See id. at 11. In support of her position, the plaintiff introduced the testimony of an expert who opined that Burdines and Equity were each responsible for security outside of the store’s premises. See id. Burdines objected to the testimony and moved for a directed verdict, asserting that as a lessee of the shopping center, it had no duty to maintain the security of common areas. See id.

In reviewing the trial court’s denial of Burdines’ motion, the district court held:

The trial court erred in not granting Burdines’ motion for directed verdict. ... The trial court also erred in allowing into evidence testimony of the plaintiffs expert to the effect that Bur-dines and Equity each had a duty to keep the parking area safe. “It is elementary that the conclusion or opinion of an expert witness based on facts and inferences not supported by the evidence in a cause has no evidential value.” Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957). An expert’s opinion, if based upon an erroneous concept of law, is equally devoid of competency. See Stubbs v. State Department of Transportation, 332 So.2d 155 (Fla. 1st DCA 1976).
The jury in the instant case should not have received the incompetent testimony of the plaintiffs expert....

Id. at 12. Other courts have made similar determinations in wrongful death actions, see Rodriguez v. Pino, 634 So.2d 681, 686-87 & n. 7 (Fla. 3d DCA 1994) (determining that expert testimony should have been excluded where it was based on the legally erroneous conclusion that patient’s extubation constituted a medical emergency allowing intubation without a competency assessment), worker’s compensation cases, see Estate of Jenkins v. Recchi America, 658 So.2d 157 (Fla. 1st DCA 1995) (determining that an expert opinion founded on a factor not determinative of causation under Florida worker compensation law was incompetent evidence), and wrongful discharge actions, see Tenbroeck v. Castor, 640 So.2d 164, 168 (Fla. 1st DCA 1994) (concluding that expert opinion that teacher was impaired due to the notoriety created by a lawful marriage was contrary to established law and did not constitute competent evidence supporting dismissal).

The majority fails to heed this well-accepted principle in deeming admissible the testimony of the Department of Transportation’s expert in the face of record evidence clearly establishing he did not consider the value of the shopping center’s arbor area in calculating the severance damages. The majority acknowledges that the expert based his opinion regarding the post-taking reduction in property value primarily on the loss of parking spaces. See majority op. at 286. Ample record evidence shows, however, that the entirety of the expert’s rent reduction calculation was based on the lost parking, that he assigned no value to the arbor area, and that he did not factor into his calculation the loss of the property owner’s ability to make other uses of that area. I am unpersuaded by the majority’s reference to the appraiser’s statement upon cross-examination that he accounted for the loss of the arbor area by using comparable neighborhood properties (i. e., buildings abutting the street with no landscaping or up-front parking) to determine the rental value of the property after the taking. In my view, the record on this point is clear — the department’s expert entirely failed to account for the value of the arbor area in reaching his conclusions regarding severance damages.

By eliminating the loss of the arbor area as an element of damages, the expert’s opinion contravenes the law of severance damages, which provides that “full compensation” for a taking includes “both the value of the portion being appropriated and any damage to the remainder caused by the taking.” Div. of Admin, v. Frenchman, Inc., 476 So.2d 224, 226 (Fla. 4th DCA 1986); see also § 73.071(3)(a)-(b), Fla. Stat. (2001). The majority does not purport to alter this rule of law, yet vitiates it by allowing an expert — with the heightened influence his position engenders — to pick and choose among compen-sable elements of recovery and present his assessment as “full compensation.” The result in the instant case is the uncompensated loss of real property.

While this case serves as a prime example of the impact of admitting legally erroneous expert testimony and incomplete damage assessments in the field of eminent domain, I must underscore the harm that may ensue should such a rule leach out into other bodies of law. Contrary to assisting the trier of fact, such testimony will mislead factfinders, resulting in erroneous and inequitable jury verdicts. In my view, the majority’s decision constitutes an unjustified and unwise break with controlling precedent that will serve to undermine the interests of justice in this state. Accordingly, I dissent.

WELLS, J., and SHAW, Senior Justice, concur.

      . DOT also acquired a 3899-square-foot temporary construction easement along the property in order to tie-in and harmonize the existing driveways and to allow room for DOT to build a retaining wall.

      . At the time of trial, Armadillo apparently had already started to actually implement its proposed cure.

      . See State Dep’t of Transp. v. Murray, 670 So.2d 977 (Fla. 1st DCA 1996), quashed on other grounds, 687 So.2d 825 (Fla.1997); Williams v. State Dep’t of Transp., 579 So.2d 226 (Fla. 1st DCA 1991), disapproved in part by Broward County v. Patel, 641 So.2d 40 (Fla.1994); State Dep’t of Transp. v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971), disapproved in part by Broward County v. Patel, 641 So.2d 40 (Fla.1994).

      . While our opinion in Patel is somewhat relevant to the present controversy, the actual issue resolved there is not the same. In Patel, a question was certified to this Court for resolution:
      May the government submit evidence that the severance damages of a condemnee may be cured or lessened by alterations to the condemee's property when those alterations require the grant of a variance from the appropriate governmental entity having jurisdiction over the property?

        Id. at 41. We answered the certified question in the affirmative, holding that such evidence is admissible where it can be shown that there is a reasonable probability of the variance being granted. See id. at 42-43.

      . We conclude that the following testimony reflects that DOT’s expert did account for the appropriation of the arbor area in his calculations:
      [Q]: ... In connection with the shift of the parking lot by seven feet [sic] to the east in cutting off that seven feet [sic] you've referenced ... you valued that property in no way other than the effect that it has on rental in the building; is that right?
      [A]: That's correct, that’s true.

      [Q]: Isn’t it correct that in your opinion of value you have not provided any compensation to the owner for the loss of those trees [in the arbor area]?
      [A]: Well, I think I showed you some pictures of my comparable sales after and rent counts after and there were no trees, so I think it's been accounted for.
      [Q]: It’s been accounted for solely in connection with the effect on rental, correct?
      [A]: Absolutely.

      [Q]: ... In connection with the removal of the arbor, removal of the irrigation, removal of the planter area, removal of the nine foot by hundred and eighty foot stretch of property, you have not taken that into consideration in arriving at your compensation to be paid to property owner in this section, correct?
      [A]: I certainly have and I would demonstrate.
      [Q]: You have taken it into account in connection with reduced rental only; isn’t that correct? [A]: I would demonstrate my answer to that, by showing a picture of the rent comps in the immediate neighborhood that rent for twelve dollars a square foot with no landscaping, right on the street, no parking in front, no arbors, none of that and that was how I concluded the rent of eleven and a half dollars for this property, which will no longer have an arbor, no longer have the brick pavers or those landscaping strips, I believe on that basis, I have compensated for the loss of that in the proposed cure.
      [Q]: Mr. Gallion, isn't it correct that the aesthetic or the appearance of a properly is a factor that can be appraised?
      [A]: That's right, the more attractive as to a limit, the more rent. As I said, I compared this property to the properties — look at the pictures, they’re not very attractive and that’s how I judge the rent for this property and these are neighborhood properties.
      [Q]: And isn't it correct as well, Mr. Gal-lion, that the function of an arbor as a waiting area or additional seating area, that is a factor in connection with a piece of property that be appraised as well?
      [A]: I'm not so sure that does that, I think, part of one thing is the aesthetic thing, it doesn’t provide any protection. If you were dining in the evening, there’s no protection of it, with regards to this is a waiting area, waiting to have a drink and go inside or whatever, I'm not sure; and if there is some value to it, I would say it would be business value, which is not a part of the real estate.

      . This Court subsequently reiterated this principle in Trailer Ranch, Inc. v. City of Pompano Beach, 500 So.2d 503 (Fla.1986):
      [I]t is settled law in this state that once plans and specifications are properly admitted for the purpose of showing the manner in which the condemned property will be utilized, the condemnor is bound by this evidence. See Belvedere Development Corp. v. Department of Transportation, 476 So.2d 649, 653 (Fla.1985), and cases cited therein. If, after damages are awarded for the taking, the condemnor fails to adhere to the binding plans, specifications and testimony as established at trial, the condemnee has a cause of action against the condemnor for additional damages.

        Id. at 506.

      . DOT entered into evidence a resolution authorizing Mr. Green to bind the department "on those issues regarding design and construction of the project, including the road and driveway connections.” This resolution and Mr. Green's testimony would serve as an estoppel against DOT should the property owner subsequently decide to implement DOT’s proposed cure.

      . The majority attempts to innoculate the expert’s testimony by reasoning that his method for calculating damages involved the comparison of rental values for similar properties, and that methods of evaluation should be treated as issues of weight, not admissibility. See majority op. at 286-87 (discussing with approval Rochelle v. State Road Dep’t, 196 So.2d 477 (Fla. 2d DCA 1967), and State Road Dep’t v. Falcon, Inc., 157 So.2d 563 (Fla. 2d DCA 1963)). This analysis ignores the fact that legal error — regardless of whether it occurs in the creation or application of the methodology employed — remains legal error. I do not share the majority's confidence that jurors unfamiliar with the intricacies of condemnation proceedings will be equipped to perceive an expert's failure to account for all damage elements and discount his opinion accordingly.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMENDMENTS TO THE FLORIDA SMALL CLAIMS RULES (2-YEAR CYCLE RULES).
    No. SC03-159.
    Supreme Court of Florida.
    June 19, 2003.
    Honorable Sharon Zeller, Chair, Small Claims Rules Committee, Hollywood, FL; and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration the biennial report of The Florida Bar Small Claims Rules Committee (Committee) proposing amendments to the Florida Small Claims Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also Fla. R. Jud. Admin. 2.130(c).

The Committee proposes minor amendments to rule 7.050(a)(2), form 7.322, and rule 7.090(b) of the Florida Small Claims Rules. The proposed amendment to rule 7.050(a)(2) requires a nonlawyer employee of a corporation to be authorized in writing to represent the corporation at any stage of the trial proceedings. The proposed amendment to form 7.332, the form summons used in small claims cases, provides notice of the written authorization requirement. The proposed amendment to rule 7.090(b) extends the time for the clerk of court to set the pretrial conference in small claims cases from thirty-five days to fifty days from the date of filing the action.

The proposed amendments were submitted to the Board of Governors of The Florida Bar, and the Board unanimously recommended their acceptance. The proposed amendments were also published in the February 15, 2003 edition of The Florida Bar News, and interested parties were invited to comment. No comments were received.

Upon consideration, we adopt the Committee’s proposals and amend the Florida Small Claims Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deleted language is indicated by overstriking. The amendments shall become effective January 1, 2004, at 12:01 a.m.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT OF CLAIM

(a)Commencement.

(1) Statement of Claim. Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant of the basis and the amount of the claim. If the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim.

(2) Party Not Represented by Attorney to Sign. A party, individual, or corporation who or which has no attorney handling such cause shall sign that party’s statement of claim or other paper and state that party’s address and telephone number, including area code. However, if the trial court in its discretion determines that the plaintiff is engaged in the business of collecting claims and holds such claim being sued upon by purchase, assignment, or management arrangement in the operation of such business, the court may require that corporation to provide counsel in the prosecution of the cause. A corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation.

(b) Parties. The names, addresses, and telephone numbers, including area code, of all parties or their attorneys, if any, must be stated on the statement of claim. Additionally, attorneys shall include their Florida Bar number on all papers filed with the court.

(c) Clerk’s Duties. The clerk shall assist in the preparation of a statement of claim and other papers to be filed in the action at the request of any litigant. The clerk shall not be required to prepare papers on constructive service, substituted service, proceedings supplementary to execution, or discovery procedures.

(d) Memorandum on Hearing Date. The court shall furnish all parties with a memorandum of the day and hour set for the hearing.

(e) Replevin. In those replevin cases to which these rules are applicable, the clerk of the county court shall set the hearing required by section 78.065(2)(a), Florida Statutes (prejudgment replevin order to show cause hearings) and rule 7.050(d) (pretrial conferences) at the same time.

Committee Notes

1988 Amendment. Subdivision (a)(2): To clarify who may appear and represent a corporation in a small claims case.

Subdivision (b): First sentence is to conform Florida Small Claims Rules with Florida Rules of Judicial Administration 2.060(d) and 2.060(e). Second sentence is to conform to proposed amendment to rules of judicial administration.

Subdivision (e): Require that the order to show cause hearing required in small claims replevin cases and the pretrial conference required by the small claims rules be held at the same time to save time and avoid confusion.

Court Commentary

1972 Amendment. The statement of claim need not be verified.

Subdivision (c) is amended so as to provide that the clerk shall not be required to prepare papers on substituted service.

RULE 7.090. APPEARANCE; DEFENSIVE PLEADINGS; TRIAL DATE

(a) Appearance. On the date and time appointed in the notice to appear, the plaintiff and defendant shall appear personally or by counsel.

(b) Notice to Appear; Pretrial Conference. The summons/notice to appear shall specify that the initial appearance shall be for a pretrial conference. The initial pretrial conference shall be set by the clerk not more than 8550 days from the date of the filing of the action. At the pretrial conference, all of the following matters shall be considered:

(1)The simplification of issues.
(2) The necessity or desirability of amendments to the pleadings.
(3) The possibility of obtaining admissions of fact and of documents that avoid unnecessary proof.
(4) The limitations on the number of witnesses.
(5) The possibilities of settlement.
(6) Such other matters as the court in its discretion deems necessary.

Form 7.322 shall and form 7.323 may be used in conjunction with this rule.

(c) Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the personal appearance of a party or attorney on the initial appearance date (pretrial conference).

(d) Trial Date. The court shall set the case for trial not more than 60 days from the date of the pretrial conference. At least 10 days’ notice of the time of trial shall be given. The parties may stipulate to a shorter or longer time for setting trial with the approval of the court. This rule does not apply to actions to which chapter 51, Florida Statutes, applies.

(e) Waiver of Appearance at Pretrial Conference. Where all parties are represented by an attorney, counsel may agree to waive personal appearance at the initial pretrial conference, if a written agreement of waiver signed by all attorneys is presented to the court prior to or at the pretrial conference. The agreement shall contain a short statement of the disputed issues of fact and law, the number of witnesses expected to testify, an estimate of the time needed to try the case, and any stipulations of fact. The court shall forthwith set the case for trial within the time prescribed by these rules.

(f) Appearance at Mediation. In small claims actions, an attorney may appear on behalf of a party at mediation if the attorney has full authority to settle without further consultation. Unless otherwise ordered by the court, a nonlawyer representative may appear on behalf of a party to a small claims mediation if the representative has the party’s signed written authority to appear and has full authority to settle without further consultation. In either event, the party need not appear in person.

(g) Agreement. Any agreements reached as a result of small claims mediation shall be written in the form of a stipulation. The stipulation may be entered as an order of the court.

Committee Notes

1972 Amendment. Rule 7.120 is incorporated in subdivision (c). It is slightly expanded to provide for a computation period from service by mail and to give the parties the right to stipulate to a shorter time for the trial.

1984 Amendment. This change requires the use of a pretrial procedure and requires both parties to attend the pretrial conference which can be used to resolve pretrial motions. The use of a pretrial previously varied from county to county.

1988 Amendment, (b) 1st sentence— Chair’s clarification.

2nd sentence — Require the clerk to set the initial pretrial conference within a reasonable time after filing of the action taking into consideration the fact that the time standards guideline for small claims cases is 95 days.

3rd sentence — State within the small claims rules what matters shall be considered at the pretrial conference rather than by reference to Florida Rule of Civil Procedure 1.220(a), which has been amended several times and is generally not applicable to small claims cases.

4th sentence — Direct that new form 7.322 shall and that new form 7.323 may be used statewide.

(c) Clarifies that a personal appearance is required at the pretrial conference when a defense motion is filed.

(e) Adds a provision for waiving counsel’s appearance at the pretrial conference where all parties are represented by counsel.

FORM 7.322. SUMMONS/NOTICE TO APPEAR FOR PRETRIAL CONFERENCE

(CAPTION)

STATE OF FLORIDA — NOTICE TO PLAINTIFF(S) AND DEFENDANT(S)

YOU ARE HEREBY NOTIFIED that you are required to appear in person or by attorney at the_in Courtroom #_, located at __, on _(date)_, at _m., for a PRETRIAL CONFERENCE before a judge of this court.

IMPORTANT — READ CAREFULLY

THE CASE WILL NOT BE TRIED AT THAT TIME.

DO NOT BRING WITNESSES— APPEAR IN PERSON OR BY ATTORNEY

The defendant(s) must appear in court on the date specified in order to avoid a default judgment. The plaintiffis) must appear to avoid having the case dismissed for lack of prosecution. A written MOTION or ANSWER to the court by the plaintiffs) or the defendant(s) shall not excuse the personal appearance of a party or its attorney in the PRETRIAL CONFERENCE. The date and time of the pretrial conference CANNOT be rescheduled without good cause and prior court approval.

A corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation. Written authorization must be brought to the Pretrial Conference.

The purpose of the pretrial conference is to record your appearance, to determine if you admit all or part of the claim, to enable the court to determine the nature of the case, and to set the case for trial if the case cannot be resolved at the pretrial conference. You or your attorney should be prepared to confer with the court and to explain briefly the nature of your dispute, state what efforts have been made to settle the dispute, exhibit any documents necessary to prove the ease, state the names and addresses of your witnesses, stipulate to the facts that will require no proof and will expedite the trial, and estimate how long it will take to try the case.

If you admit the claim, but desire additional time to pay, you must come and state the circumstances to the court. The court may or may not approve a payment plan and withhold judgment or execution or levy.

RIGHT TO VENUE. The law gives the person or company who has sued you the right to file in any one of several places as listed below. However, if you have been sued in any place other than one of these places, you, as the defendant(s), have the right to request that the case be moved to a proper location or venue. A proper location or venue may be one of the following: (1) where the contract was entered into; (2) if the suit is on an unsecured promissory note, where the note is signed or where the maker resides; (3) if the suit is to recover property or to foreclose a lien, where the property is located; (4) where the event giving rise to the suit occurred; (5) where any one or more of the defendants sued reside; (6) any location agreed to in a contract; (7) in an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made.

If you, as the defendant(s), believe the plaintiffs) has/have not sued in one of these correct places, you must appear on your court date and orally request a transfer, or you must file a WRITTEN request for transfer in affidavit form (sworn to under oath) with the court 7 days prior to your first court date and send a copy to the plaintiffs) or plaintiff s(s’) attorney, if any.

A copy of the statement of claim shall be served with this summons.

DATED at _, Florida, on _(date)_

As Clerk of the County Court


author: SHARP, WINIFRED, J., Associate Judge.

text:
    Mitchell D. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1653.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.
    Rehearing Denied June 27, 2003.
    Laura Griffin, Ponte Vedra Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   SHARP, WINIFRED, J., Associate Judge.

Jackson appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850.. He was convicted of four counts of sexual battery, one count of kidnapping, and one count of aggravated battery. He appealed and his convictions and sentences were affirmed. See Jackson v. State, 567 So.2d 438 (Fla. 2d DCA 1990). In 1993, he filed a prior motion pursuant to Florida Rule of Criminal Procedure 3.850, which after an evidentiary hearing, was denied. On appeal, the denial was affirmed. See Jackson v. State, 653 So.2d 1037 (Fla. 2d DCA 1995).

We affirm for two reasons:

1) Jackson’s convictions and sentences were affirmed in 1990, and became final after an appeal. Pursuant to rule 3.850(b), he had only two years from that date in which to file a motion, absent various exceptions which are not alleged in this cause. Thus his motion is untimely.

2) Jackson’s motion is also improper because it is successive. See Jones v. State, 591 So.2d 911 (Fla.1991). In his initial rule 3.850 motion, Jackson asserted his trial counsel was ineffective because he failed to object when the trial court neglected to administer the jury oath to the prospective jurors. The trial court rejected this claim on procedural and substantive grounds, and the denial order was affirmed.

We reject Jackson’s argument that this issue should be reconsidered in light of Fernandez v. State, 758 So.2d 1199 (Fla. 4th DCA 2000), which holds that a defendant’s rule 3.850 claim that his trial counsel was ineffective because he did not object when the trial court faded to place prospective jurors under oath, was legally sufficient. A retroactive change in the law must be announced by the Florida Supreme Court or the United States Supreme Court to warrant post-conviction relief, not a sister intermediate court of appeal. See Witt v. State, 387 So.2d 922 (Fla.1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Card v. Dugger, 512 So.2d 829 (Fla.1987).

The balance of Jackson’s arguments lack merit or constitute claims which should have been raised on direct appeal or in the prior rule 3.850 motion.

AFFIRMED.

PALMER, WILLIAM D., Associate Judge, and HARRIS, CHARLES C., Senior Associate Judge, concur.

      . § 794.011(3), Fla. Stat.

      . § 787.01(l)(a)(3), Fla. Stat.

      .§ 784.045, Fla. Stat.


text:
    William D. HELM, Petitioner, v. HILLSBOROUGH COUNTY, Florida, Respondent. William D. Helm, Appellant, v. Hillsborough County, Florida, Appellee. William D. Helm, Appellant, v. Hillsborough County Animal Services, Appellee.
    Nos. 2D03-640, 2D03-641, 2D03-642, 2D03-643, 2D03-644, 2D03-645.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.

      William D. Helm, pro se, Petitioner/Appellant.
    No appearance for Respondent/Appel-lees.
   PER CURIAM.

On January 3, 2003, this court dismissed eight appeals filed by William D. Helm. In the order of dismissal we recited that in those proceedings, as in others he had previously filed in this court, Helm failed to follow any of this court’s orders and had taken, literally, no action following the filing of largely unintelligible notices of appeal. In that same order we directed Helm to show cause why he should not be barred from pursuing further pro se appeals or original proceedings in this court against Hillsborough County or any of its political subdivisions, based upon a history of abuse of process that included twenty-seven such filings since 1999, all of which were dismissed. See State v. Spencer, 751 So.2d 47 (Fla.1999) (requiring that litigants be provided notice and opportunity to respond before restricting their access to courts). Helm has failed to respond to that order to show cause issued in the following consolidated cases: 2D02-5170, 2D02-5171, 2D02-5172, 2D02-5173, 2D02-5190, 2D02-5191, 2D02-5192, and 2D02-5200.

Helm has filed six new proceedings, which have been assigned case numbers 2D03-640 through 2D03-645, and it is within these actions that we now undertake to consider whether his access to this court should be curtailed. We conclude that Helm’s access must be restricted to prevent him from continuing to flood this court with unintelligible litigation that utilizes court resources that are better devoted to serving appellate disputes of parties who agree to follow the appellate rules and to respond to this court’s orders. At the same time we appreciate our obligation to tailor a remedy that both serves that objective and also allows access to this court in areas in which Helm has not abused the process.

We have examined the five notices of appeal and one petition in Helm’s most recently filed proceedings, which are not included in the count of twenty-seven above, but which share the common denominator with all the earlier cases: Hills-borough County, or a political subdivision of it, is the appellee or the respondent in each of them. We consolidate the six new proceedings and observe that each suffers one or more of the same deficiencies identified in the earlier appeals and original proceedings that were dismissed: In the appeals, the notices fail to identify the order appealed by date and nature; or a copy of the subject order is not appended to the notice of appeal; or no order of insolvency or filing fee accompanies the filing; or there is no certificate of service on the notice of appeal; or, more commonly, they suffer from more than one of these deficiencies. The one original proceeding now before the court, largely illegible, has no certificate of service, is not accompanied by a filing fee or an affidavit of insolvency, and is facially insufficient.

In all the prior appeals that Helm has filed, we issued orders directing him to correct procedural deficiencies. He ignored each of those orders. We have no reason to suspect that he is either willing or capable of correcting procedural shortcomings in these latest appeals and one original proceeding; as such, we forego issuing routine orders addressing these procedural inadequacies, which we believe would constitute acts of futility. There is nothing in the notices of appeal or the petition presently before the court that suggests that this court’s jurisdiction has been properly invoked. As such, we dismiss these proceedings for lack of jurisdiction.

William D. Helm is hereafter barred from pursuing pro se civil remedies in this court against Hillsborough County or any of its political subdivisions, either by appeal or resort to original proceeding. As such, we direct the clerk of this court, upon receipt of any qualifying notice of appeal or petition filed by Helm pro se, to place the notice or petition in an inactive file and to notify Helm and the circuit court clerk that the matter will not be assigned a case number and that no action will be undertaken upon it.

These consolidated appeals and original proceeding are dismissed.

FULMER, DAVIS, and COVINGTON, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Joseph PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-5283.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Petitioner.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, Tampa, for Respondent.
   ALTENBERND, Chief Judge.

Joseph Perry petitions for a writ of mandamus to compel the trial court to consider his motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We deny the petition for writ of mandamus because a defendant is not entitled to file a rule 3.800(b)(2) motion during the appeal of an order denying postconviction relief. A defendant is only entitled to file a rule 3.800(b)(2) motion during the direct appeal of a sentence.

In 1994 a jury found Mr. Perry guilty of attempted first-degree murder with a firearm. The court sentenced him to thirty years in prison as a habitual felony offender. This court affirmed the judgment and sentence. Perry v. State, 678 So.2d 1293 (Fla. 2d DCA 1996). Mr. Perry then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which was summarily denied by the trial court. On appeal this court reversed, in part, the trial court’s order denying relief and ordered an evidentiary hearing on remand. Perry v. State, 787 So.2d 67 (Fla. 2d DCA 2001). After holding an evidentiary hearing, the trial court again denied Mr. Perry’s motion. Mr. Perry’s appeal of the denial is currently pending before this court as case number 2D01-4349.

On November 15, 2002, Mr. Perry filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court denied the motion, stating that rule 3.800(b)(2) allows a court to correct a sentencing error only during the pendency of a direct appeal of a sentence. Mr. Perry then filed this petition for writ of mandamus to compel the trial court to consider his motion.

Mandamus may be used to test the correctness of a determination of no jurisdiction by a court of lesser jurisdiction. See Pino v. Dist. Court of Appeal, Third Dist., 604 So.2d 1232 (Fla.1992) (citing State ex rel. Gaines Constr. Co. v. Pearson, 154 So.2d 833 (Fla.1963)). Mr. Perry argues that the trial court should have considered the motion because his appeal of the denial of the rule 3.850 motion is currently pending before this court, and rule 3.800(b)(2) does not limit the type of appeal during which a rule 3.800(b)(2) motion may be filed. We disagree because rule 3.800(b), as a whole, is structured to apply only to a direct appeal of a sentence.

Rule 3.800(b)(1) is entitled “Motion Before Appeal” and states: “During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.” Subsection (b)(2) is entitled “Motion Pending Appeal” and states: “If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error.” Thus, rule 3.800(b) applies only to a direct “appeal of a sentence.” Subsection (b)(2) merely expands the period in which a motion to correct sentencing error can be filed in the trial court so that a defendant can file a motion after he or she has already filed a notice of appeal of a sentence. See Amendments to Rules of Criminal Procedure 3.111(e) & 3.800(b) and Florida Rules of Appellate Procedure 9.020(h), 9.1)0, & 9.600, 761 So.2d 1015,1018 (Fla.1999). Although rule 3.800(b) could apply to a new sentence imposed as the result of an order granting postconviction relief, it does not apply to an appeal of an order denying postconviction relief. Therefore, the trial court correctly refused to consider Mr. Perry’s motion to correct sentencing error.

Petition for writ of mandamus denied.

CASANUEVA and STRINGER, JJ., Concur.


author: FULMER, Judge.

text:
    Luis “Flavio” CUERO, Appellant, v. The RYLAND GROUP, INC. d/b/a Ryland Homes; Ryland Homes of Florida Realty Corporation; Sunfish Framing & Construction, Inc., Carlos Maldonado and Diego Gallego, Appellees.
    No. 2D01-4138.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    Rehearing Denied April 30, 2003.
    George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa and Mark H. Pere-nich of Perenich, Carrod, Perenich, Avrd & Caulfield, P.A., Clearwater, co-counsel for Appellant.
    Valeria Hendricks, Cody Fowler Davis, and Steve Parker of Davis & Harmon, P.A., Tampa, for Appedees, The Ryland Group d/b/a Ryland Homes and Ryland Homes of Florida Realty Corp.
    Robert J. Grace, Jr., of Stdes, Taylor & Grace, P.A., Tampa, for Appedee, Sunfish Framing & Construction, Inc.
   FULMER, Judge.

In this appeal, we are asked to determine whether the owner/developer of the Bayshore Townhomes project, The Ryland Group, Inc. (Ryland), is entitled to immunity from tort liability in an action filed by an injured employee of one of the subcontractors working on the project. We conclude that Ryland is not the injured worker’s statutory employer under section 440.10(l)(b), Florida Statutes (1999), and therefore, is not entitled to the immunity provided by section 440.11. Because the trial court reached a contrary conclusion, we reverse the final summary judgment entered in this case.

Bayshore Townhomes is a ten building, sixty-eight unit townhome complex. Ry-land was both the owner/developer of the complex and the general contractor. Ry-land entered into a contract with Sunfish Framing and Construction, Inc. (Sunfish), to do framing work on the project. Under this contract, Sunfish was required to maintain workers’ compensation coverage for its employees. Sunfish subcontracted a portion of its work to Carlos Maldonado who in turn contracted with Diego Gallego to complete the application of the plywood sheathing on the roof. Gallego hired Luis Cuero to assist him.

On January 26, 2000, Cuero suffered personal injuries and resulting quadriplegia when he fell from the roof of building one and landed on the ground between units ten and eleven of that building. The day after the accident, Cuero’s relatives went to the job site and inquired about the availability of benefits for Cuero’s injuries. They were advised to speak to Ron Fish, the owner of Sunfish. Neither Gallego nor Maldonado had any type of worker’s compensation insurance, and Sunfish had insurance for listed employees only, which did not include Cuero.

On March 20, 2000, Cuero initiated the underlying negligence action against Ry-land, Sunfish, Carlos Maldonado, and Diego Gallego. In October 2000, Ryland submitted a notice of accident to its workers’ compensation carrier, which accepted the accident as compensable and began making workers’ compensation payments to Cuero. Cuero filed a second-amended complaint on January 5, 2001. Ryland and Sunfish both answered, raising as an affirmative defense their immunity from tort liability under section 440.11. Cuero denied the affirmative defense and maintained that he was not a statutory employee of the defendants, that the defendants had failed to secure or provide worker’s compensation benefits, or that the defendants were estopped or had waived the assertion of the defense.

Cuero, Ryland, and Sunfish each moved for summary judgment on the worker’s compensation immunity and waiver and estoppel issues. The trial court concluded that Ryland was a contractor and statutory employer entitled to the protection afforded by section 440.11 and that since Ryland had secured worker’s compensation insurance and made it available to Cuero, Sunfish, too, was protected from tort liability. The trial court rejected Cuero’s waiver and estoppel arguments.

It is the obligation to secure workers’ compensation that gives the employer immunity from suit as a third-party tort-feasor. Jones v. Fla. Power Corp., 72 So.2d 285, 287 (Fla.1954). This immunity from suit is commensurate with the duty to secure compensation. Id. Pursuant to the provisions of section 440.10(1)(a), Ry-land had a statutory obligation to secure workers’ compensation for its own employees. However, Ryland had a statutory liability to secure workers’ compensation for Gallego’s employee, Cuero, only if Ry-land was a “contractor” as that term is used in section 440.10(1)(b), which provides:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

Addressing the definition of a “contractor” within the meaning of this section, the Jones court stated:

[T]he clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. To “sublet” means to “underlet”, Webster’s New International Dictionary; in the context in which it is used here, the effect of subletting is to pass on to another an obligation under a contract for which the person so “subletting” is primarily obligated.

72 So.2d at 289. In Jones, the court concluded that Florida Power was not operating under a primary obligation under a contract which it was passing on to another, and as such, was not a contractor within the meaning of the act. Thus, the question that must be examined is whether Ryland was subletting to Sunfish a portion of a primary obligation it had assumed under a contract with a third party. Because one does not become a contractor under section 440.10 merely by entering into a contract with a subcontractor, we must examine the nature of the contractual undertakings by Ryland and its subcontractor to determine whether a true contractor and subcontractor relationship exists under section 440.10(l)(b).

All parties rely on the existence and content of the townhome purchase agreements for units ten and eleven to support their respective arguments. Ry-land argues that it had a primary obligation to construct the townhomes under these agreements, a portion of which it sublet to Sunfísh. Cuero argues that the agreements are real estate sales agreements, not construction contracts, and that Ryland’s primary obligation to construct the townhomes arose from Ryland’s status as the owner/developer of the project and not from the agreements with potential purchasers of the townhome units.

The following undisputed facts compel our conclusion that Ryland had no primary obligation under a contract that it was passing on to Sunfísh or any other subcontractor. Ryland was the fee owner of the property upon which it was developing the Bayshore Townhomes to sell for profit. The building permit for the townhomes lists Ryland as both the general contractor and the owner of the building from which Cuero fell. The townhomes were marketed by a Ryland employee acting as a seller’s agent. Generally, the decision to construct a building was made prior to the time the sales agents were given authorization to start selling the units. Under the purchase agreement, title to the property did not pass from Ryland to the purchaser until delivery of the deed, which occurred after the building was complete and a certificate of occupancy had been issued for the unit. The buildings would have been constructed even if all of the units had not been sold.

These facts reveal that Ryland was constructing the townhomes as a commercial business venture for itself and not as a result of individual contractual obligations to third parties. As noted, the decision to construct a building was not dependent upon sales agreements having been executed for the individual units. Furthermore, if the sales agreement for an individual unit failed for some reason, such as denial of the buyer’s mortgage application, the unit would still be constructed for speculative sale. More important, prior to closing, Ryland retained full ownership of and assumed all risk of loss or damage to the property.

These facts make clear that Ryland’s primary obligation to construct the town-homes in the Bayshore Townhome project did not derive from the sales agreements ultimately executed with individual prospective purchasers. Ryland undertook to develop its own property acting as its own general contractor. It entered into subcontracts to build all the buildings and units, whether presold or not. It did not enter into subcontracts on a unit-by-unit basis for the purpose of passing on a construction obligation with a potential purchaser for a particular unit. Thus, the only privity of contract or obligation of Sunfísh to perform work on the Bayshore Townhomes project was with Ryland, the owner of the project. Furthermore, the sales agreements upon which Ryland relies are not construction contracts nor do they give rise to the contractor relationship required by section 440.10(l)(b). To construe them as such would result in the illogical and untenable conclusion that Ry-land was the statutory employer of persons working on units for which a sales agreement had been executed but was not the statutory employer of persons working on the remaining units. Under this view, Ryland’s status as a contractor and statutory employer would have to be examined on a unit-by-unit basis. And, Ryland’s status would be subject to change during the course of construction on an individual unit from day to day or hour to hour as agreements were executed or defaulted.

Our conclusion that Ryland and, in turn, Sunfísh are not entitled to immunity is consistent with cases construing the provisions of sections 440.10 and 440.11. See Allison Devs., Inc. v. Rudasill, 202 So.2d 752 (Fla.1967); Miami-Dade County v. Acosta, 757 So.2d 539 (Fla. 3d DCA 2000); Cadillac Fairview of Fla., Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA 1985); S. Seas Plantation, Ltd. v. Acevedo, 387 So.2d 1035 (Fla. 1st DCA 1980).

For the reasons stated, it was error for the trial court to enter summary judgment in favor of Ryland and Sunfísh. Accordingly, the final summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . Of the several defendants in the underlying litigation, The Ryland Group, Inc., and Sunfish Framing and Construction, Inc., are the only participants in this appeal.

      . Section 440.11(1) provides in pertinent part:
      The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.

      . Cuero conceded that if Ryland was entitled to immunity, Sunfish would likewise be entitled to immunity.

      . Because we are reversing the trial court’s immunity determination, we do not address the waiver and estoppel issues.

      . Section 440.10(l)(a) provides:
      Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for, and shall secure, the payment to his or her employees, or any physician, surgeon, or pharmacist providing services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.15, and 440.16. Any contractor or subcontractor who engages in any public or private construction in this state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38.

      . In June and September 1999, Ryland entered into purchase agreements for units ten and eleven in building one. The agreements provided in part:

        PURCHASE: You agree to purchase and We agree to sell the [home site and the home that we will construct] for the Purchase Price as determined and revised by the Customer Selection Sheet and any Amendments.

        CONSTRUCTION OF HOME: We will begin construction within a reasonable time after all land development work is complete on the Property and We have (a) all necessary governmental and private approvals, (b) all payments due to Us prior to start of construction and (c) proof, satisfactory to Us, of your ability to pay the balance of the Purchase Price at Settlement.

        TITLE TO PROPERTY: Neither legal nor equitable title shall pass until delivery of the deed.


text:
    GE LIFE AND ANNUITY ASSURANCE COMPANY, Petitioner, v. Joy D. VOGEL and Gregory F. Vogel, Respondents.
    No. 2D02-3928.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    Michael A. Schlanger of Sonnenschein Nath & Rosenthal, Washington, DC, and Lewis F. Collins, Jr.; Anthony J. Russo; and Marjorie Salem Hensel of Butler Bur-nette Pappas, Tampa for Petitioner.
    Robert V. Williams and Mary B. Thomas of Williams Schifino Mangione & Steady, P.A., Tampa, for Respondents.
   PER CURIAM.

GE Life and Annuity Assurance Company petitions for a writ of certiorari concerning a nonfinal order denying a stay sought by GE and finding that GE had waived its right to compel arbitration. GE’s petition has now been rendered moot by an order entered in federal court compelling arbitration. Although we decline to reach the merits of this moot petition, subsequent developments in decisional law call into question the continued viability of this court’s opinion in Donald & Co. Securities, Inc. v. Mid-Florida Community Services, Inc., 620 So.2d 192 (Fla. 2d DCA 1993). See Lane v. Sarfati, 691 So.2d 5, 6 n. 1 (Fla. 3d DCA 1997) (certifying conflict).

Petition denied.

ALTENBERND, C.J., and SALCINES and COVINGTON, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    James A. ELDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-1956.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.
    Rehearing Denied April 24, 2003.
   NORTHCUTT, Judge.

James Elders appeals an order denying his motion for access to records of the Department of Children and Family Services beyond that granted by the circuit court in response to our opinion in Elders v. State, 805 So.2d 925 (Fla. 2d DCA 2001). We treat this appeal as a petition for writ of certiorari and deny it.

Elders was convicted of committing lewd and lascivious acts on children in two cases. In motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, Elders alleged that the department possessed investigative reports containing exculpatory information, authored by department investigator Shirley Williams. Elders filed a motion in his rule 3.850 proceeding seeking access to these reports, but his motion was denied by the circuit court.

We treated Elders’ prior appeal as a certiorari proceeding and quashed the denial order. In our opinion we noted that “it appears that Elders has a clear right to obtain any report by Williams, see § 39.202(2)(e), Fla. Stat. (2000), and that the trial court has the authority to conduct an in camera inspection to determine the postconvietion issues pending before it, see § 39.202(2)(f)[.]” We directed the circuit court “to conduct an in camera inspection of the pertinent reports.” Elders, 805 So.2d at 925.

Elders now complains of the circuit court’s refusal, following our prior decision, to expand its inquiry to all materials held by the department relative to Elders’s case. We write to clarify the scope of our earlier decision.

Section 39.202(1), Florida Statutes (2002), generally provides that “all records held by the department concerning reports of child abandonment, abuse, or neglect” are confidential and exempt from the public records laws, and that such records are not to be disclosed except as authorized by chapter 39. Subsection (2) of that statute contains a list of persons, officials and agencies who may have access to some or all of the mentioned records.

Two of these provisions are pertinent here. First, section 39.202(2)(e) provides that such records shall be released to “[a]ny person alleged in the report as having caused the abuse, abandonment, or neglect of a child.” Access to such records is somewhat qualified:

This access shall be made available no later than 30 days after the department receives the initial report of abuse, abandonment, or neglect and, when the alleged perpetrator is not a parent, shall be limited to information involving the protective investigation only and shall not include any information relating to subsequent dependency proceedings. However, any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

§ 39.202(2)(e), Fla. Stat. (2002).

Second, section 39.202(2)(f) provides that such records shall be released to a court

upon its finding that access to such records may be necessary for the determination of an issue before the court; however, such access shall be limited to inspection in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

As can be seen, the right of access under section 39.202(2)(e) is unfettered by any restriction on the purpose of the request, but the scope of the access is limited by restrictions on content. In contrast, the access granted to a court under section 39.202(2)(f) is unrestricted as to content, but limited in purpose; it may be employed only when the records may be necessary for the determination of an issue before the court.

In our prior decision in this case, it was clear to us that the report or reports authored by Shirley Williams were necessary to the determination of Elders’s motions under rule 3.850, and we directed the circuit court to proceed accordingly. However, we did not mean to imply that a litigant in a judicial proceeding, whether under rule 3.850 or otherwise, could gain access to department records by having the court engage in a general search of all of the department’s records in a matter, absent a finding that such a broad inquiry is necessary to the determination of an issue before the court.

Section 39.202(2)(e) may well grant Elders access to additional records in the hands of the department. He may pursue that access directly by submitting a request to the department and, if necessary, by taking appropriate legal action to enforce his statutory right. But under the circumstances presented so far in Elders’s rule 3.850 proceeding, the circuit court did not abuse its discretion, let alone depart from the essential requirements of law, by declining to inspect records other than as previously directed by this court.

Petition for writ of certiorari denied.

FULMER and COVINGTON, JJ. concur.


text:
    William G. ATHEY, Appellant/Cross-Appellee, v. Jeanne ATHEY, Appellee/Cross-Appellant.
    No. 2D01-1583.
    District Court of Appeal of Florida, Second District.
    March 21, 2003.
    Rehearing Denied April 28 and May 6, 2003.
    Wesley Pardue of Knox & Givens, P.A., Tampa, for Appellant/Cross-Appellee.
    Ralph P. Mangione of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Ap-pellee/Cross-Appellant.
   ALTENBERND, Chief Judge.

William G. Athey and Jeanne Athey both appeal the final judgment of dissolution of marriage in this case. We affirm that final judgment in all respects except for two minor issues.

First, for approximately seven months prior to the entry of the final judgment, the husband was the primary residential parent of the couple’s two children. For this period, June 10, 2000, to January 23, 2001, the husband requested an award of child support. It appears that the trial court reserved ruling on this request in a pretrial order entered on September 5, 2000. The issue simply was not addressed in the final judgment. The husband filed a timely motion for rehearing that raised numerous issues. He renewed his request for a decision as to this award of child support. The trial court denied the motion for rehearing without any explanation. On remand, the trial court shall determine whether the husband is entitled to an award of child support from the wife for this period and, if so, the amount of that award.

Second, the final judgment awarded the wife bridge-the-gap alimony. See Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999). The judgment requires the husband to make thirty-six monthly payments of $800. We conclude that the evidence in this case supports an award of such alimony. On the other hand, the trial court’s order does not characterize this award as permanent lump sum alimony, payable in installments. The order uses ambiguous language that seems to award bridge-the-gap alimony as either unauthorized rehabilitative alimony or unauthorized nonpermanent periodic alimony. The bridge-the-gap alimony recognized in Borchard, is lump sum alimony. For reasons both legal and practical, we continue to require that bridge-the-gap alimony be awarded as a form of permanent lump sum alimony that does not terminate upon the death of the payor or the remarriage of the payee. On remand, the trial court shall amend the award of alimony to specify that it is an award of $28,800 payable in thirty-six monthly payments of $800.

Affirmed in part, reversed in part, and remanded.

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


author: COVINGTON, Judge.

text:
    Gary SULT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5230.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
   COVINGTON, Judge.

Gary Suit challenges the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied the motion, finding that it was untimely filed. We agree with the trial court that Suit’s motion was untimely. However, Suit also raised a sentencing error that the trial court should have addressed as a motion to correct illegal sentence under rule 3.800(a).

Suit’s sentencing documents indicate that he was convicted of armed burglary, a first-degree felony. See § 810.02(2), Fla. Stat. (1991). For this conviction, he received a thirty-year sentence as a habitual felony offender. Suit alleges that the jury specifically found that he was unarmed when he committed the burglary. He also alleges that the trial court orally sentenced him on second-degree burglary of a dwelling, not on first-degree armed burglary. If Suit’s allegations are correct, his thirty-year sentence is illegal. See § § 810.02(3) and 775.084, Fla. Stat. (1991).

The trial court should have considered this claim under rule 3.800(a). See Barron v. State, 827 So.2d 1063, 1064 (Fla. 2d DCA 2002). This claim is timely since rule 3.800(a) has no time limitation for filing a motion to correct illegal sentence. Therefore, we reverse and remand for the trial court to consider this claim. We affirm the denial of Suit’s remaining claims.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., concur.


text:
    Terrance LESTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2549.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles = J- Crist, Jr., Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Terrance Lester appeals from the revocation of his community control in four cases, challenging the sufficiency of the evidence and the sentences imposed. We affirm the revocation but reverse and remand for resentencing.

After filing his notice of appeal, Lester filed a motion for correction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), challenging the constitutionality of the 1995 sentencing guidelines and requesting the trial court to strike the prison sentences erroneously imposed for two misdemeanor counts. Lester had previously served jail sentences on the misdemeanor counts and those counts should not have been at issue during the revocation of community control proceedings. The trial court denied the motion. In so doing, the court noted that the misdemeanor sentences were corrected when Lester was resentenced on August 28, 2001.

We reverse the trial court’s order denying the rule 3.800(b)(2) motion. The State concedes that the trial court was without jurisdictional authority to conduct a resen-tencing hearing on August 28, 2001, which was after the notice of appeal was filed but before the rule 3.800(b)(2) motion was filed. The August 28, 2001, sentencing documents, which the trial court attached to its order, are a nullity.

Because Lester’s felony offenses occurred on April 1 and 5, 1996, Lester may be entitled to relief under Heggs v. State, 759 So.2d 620 (Fla.2000), if the sentences imposed for his felony offenses would be departure sentences under the 1994 guidelines. We direct the trial court on remand to reconsider Lester’s sentence^ in accordance with Heggs. See Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000). We also direct the trial court to strike the sentences imposed for the misdemeanor offenses.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND, C.J., and KELLY, J„ Concur.