author: KELLY, Judge. SILBERMAN, Judge,

text:
    Frederick L. ROCK and Terri L. Rock, husband and wife, Appellants, v. PRAIRIE BUILDING SOLUTIONS, INC., a Florida corporation, Appellee.
    No. 2D02-1375.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2003.

      Daniel P. Rock, New Port Richey, for Appellants.
    No appearance for Appellee.
   KELLY, Judge.

Frederick and Terri Rock appeal the final judgment confirming an arbitration award and awarding attorney’s fees and costs. We affirm in part and reverse in part.

The Rocks entered into a contract with Prairie Building Solutions, Inc. (the Contractor) for the remodeling and expansion of a residence. The Rocks ultimately brought a breach of contract action against the Contractor. The Contractor then filed a contractor’s hen action against the Rocks. Pursuant to the contract, the parties proceeded to arbitration to resolve the dispute. After a hearing, the arbitrator concluded that the Rocks prevailed both on their contract action and on the contractor’s hen action.

Thereafter, the Rocks moved to confirm the arbitration award and to determine attorney’s fees and costs. The Rocks requested that the lien recorded on the property by the Contractor be released, that they be awarded attorney’s fees and litigation costs for defending the lien foreclosure action and the contract action, and that they be awarded prejudgment interest on the award of damages and attorney’s fees and costs from the date of the final arbitration award. Following the trial court’s order which awarded interest from the date of the final judgment confirming the arbitration award, the Rocks timely appealed the trial court’s failure to award certain attorney’s fees, interest, attorney expert witness fees, and other litigation costs.

The Rocks first argue that the trial court erred in failing to award them the $2500 in attorney’s fees paid to attorney William Carlson, who represented them in their breach of contract action before the Contractor filed its lien foreclosure action. We find no merit in this argument and affirm without discussion the trial court’s decision.

The Rocks next contend that the trial court erred in failing to award them prejudgment interest on the arbitration and attorney’s fee award. We agree. Interest on attorney’s fee awards begins to accrue on the date entitlement to attorney’s fees is fixed through agreement, arbitration award, or court determination even though the amount of the award has not yet been determined. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla.1996). The parties agreed that the arbitrator would determine entitlement to attorney’s fees and costs. When the arbitrator found that the Rocks prevailed, their entitlement to attorney’s fees was fixed. Thus, interest should have been awarded on the arbitration award from October 24, 2001, the date of the final arbitration award.

Next, the Rocks argue that the trial court erred in failing to award them the court reporter’s per diem attendance fees for the arbitration and evidentiary hearing on attorney’s fees and costs ($830 and $75 respectively). We agree. Section 57.071, Florida Statutes (2000), provides in part:

(1) If costs are awarded to any party, the following shall also be allowed:
(b) The expense of the court reporter for per diem, transcribing proceedings and depositions, including opening statements and arguments by counsel.

Because the trial court awarded costs to the Rocks, it should have included the court reporter’s per diem in the award.

The trial court’s failure to award the Rocks the fee paid to attorney Richard Pettit who testified at the hearing in order to establish the reasonableness of the Rocks’ attorney’s fees was also error. Mr. Pettit testified as an expert regarding the time preparing for and testifying at the hearing on the attorney’s fee and costs awards. His testimony addressed the reasonableness of the number of hours expended by the Rocks’ two attorneys (Carlson and Rock) on the breach of contract and contractual lien issues. Expert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony. Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). Because Mr. Pettit had such an expectation, the trial court should have awarded him the $1000 fee for his testimony.

The Rocks also contend that the trial court’s failure to award them one-half of the arbitrator’s fee was error. We disagree. Section 682.11, Florida Statutes (2000), provides:

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

Nothing in the contract between the parties controls the payment of arbitration costs. Accordingly, the arbitrator’s conclusion regarding payment of his fee is presumptively valid. See Davidson v. Lucas, 579 So.2d 886 (Fla. 2d DCA 1991). We conclude that the trial court did not err in failing to modify the arbitrator’s award regarding the equal division of payment between the parties of the arbitrator’s fees because the Rocks did not establish any grounds that would have enabled the trial court to modify the award. See id. at 887.

Finally, the Rocks contend that the trial court erred in failing to award them attorney’s fees incurred after the arbitration as a result of the Contractor’s failure to execute a release of hen on the property following the arbitration award. We agree. Because the Rocks were found to be the prevailing party in the hen action, they are entitled to recover their attorney’s fees pursuant to section 713.29, Florida Statutes (2000). On remand, the trial court is directed to determine the reasonable fees incurred by the Rocks for services rendered subsequent to arbitration.

Affirmed in part; reversed in part; remanded with directions.

WHATLEY, J.-, concurs.

SILBERMAN, J., concurs specially with opinion.

SILBERMAN, Judge,

Concurring speciahy.

I fully concur with the majority opinion but write concerning the trial court’s failure to tax as costs the fee charged by Mr. Pettit, who testified as an expert on attorney’s fees.

As to the taxation of costs, the majority cites Stokus v. Phillips, 651 So.2d 1244, 1246 (Fla. 2d DCA 1995), which states that the award of a fee charged by a lawyer who testifies as an expert is not discretionary if the attorney expects to be compensated for the testimony provided in the proceedings. Stokus rehed on an earlier decision of this court, Straus v. Morton F. Plant Hospital Foundation, Inc., 478 So.2d 472 (Fla. 2d DCA 1985). In Straus, this court interpreted the Florida Supreme Court decision of Travieso v. Travieso, 474 So.2d 1184 (Fla.1985), and stated that Tra-vieso made “the award of such expert fees discretionary only where the testifying attorney expert does not expect to be compensated for that testimony.” Straus, 478 So.2d at 473.

In Travieso, the supreme court stated the following:

We hold that pursuant to section 92.231, expert witness fees, at the discretion of the trial court, may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney’s fees. We do not hold that such expert witness fees must be awarded in all cases. Generally, lawyers are willing to testify gratuitously for other lawyers on the issue of reasonable attorney’s fees. This traditionally has been a matter of professional courtesy. An attorney is an officer of the court and should be willing to give the expert testimony necessary to ensure that the trial court has the requisite competent evidence to determine reasonable fees. Only in the exceptional case where the time required for preparation and testifying is burdensome, should the attorney expect compensation.

Travieso, 474 So.2d at 1186.

By concluding that the supreme court eliminated the trial court’s discretion when an expert expects to be compensated, Sto-kus and Straus appear to have read Tra-vieso more broadly than is warranted by its language. Rather than eliminating the trial court’s discretion, Travieso suggested what a trial court might consider in exercising its discretion. See B&H Constr. & Supply Co. v. Dist. Bd. of Trustees, 542 So.2d 382, 391-92 (Fla. 1st DCA 1989). However, in light of this court’s decisions in Stokus and Straus, and in the absence of anything in the record reflecting why an award was not made, I agree that the trial court erred by not taxing as a cost the fee charged by Mr. Pettit.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Cornelius JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-176.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Rehearing Denied Oct. 10, 2003.
    Cornelius Johnson, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Affirmed. See Hayes v. State, No. 4D03-591, 855 So.2d 144, 2003 WL 21920878 (Fla. 4th DCA Aug. 13, 2003) (en banc).

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


author: COVINGTON, Judge. VILLANTI, J.,

text:
    Gabriel VARRO, Appellant, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellee.
    No. 2D02-5573.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.

      Ted Starr of Starr Law Offices, Pinellas Park, for Appellant.
    Robert Santa Lucia of Santa Lucia & Thomas, P.A., Clearwater, for Appellee.
   COVINGTON, Judge.

Gabriel Varro appeals the order granting summary judgment in favor of Federated Mutual Insurance Company (Federated). The issue before the trial court was whether Varro was entitled to receive uninsured motorist (UM) coverage as a passenger in an automobile insured under a business automobile insurance policy. The policy attempts to provide UM coverage to the named insured and its corporate officers while excluding coverage for other insureds. We conclude that section 627.727, Florida Statutes (1999), does not authorize this type of limitation on UM coverage. Because the trial court erred in finding that Varro had been validly excluded from the policy, we reverse and remand.

Federated issued a commercial package policy to KW Electric, Inc., in effect from December 20, 1999, to December 20, 2000. The policy provided business automobile coverage for four scheduled vehicles including a 1996 Mercedes 320SL. Apparently, the Mercedes was actually owned by Julian Weiss, the president and sole shareholder of K W Electric, Inc. There is no dispute that this personal auto was properly insured under the business auto policy, even though the Mercedes was not extensively used in the electrical business. There is also no dispute that this policy provided UM coverage for Mr. Weiss.

On April 12, 2000, Varro was a passenger in the Mercedes when an underinsured motorist’s vehicle collided with it. Varro sought UM coverage from Federated, which took the position that it provided no UM coverage for passengers in the vehicle who were not family members of Mr. Weiss. Varro filed an action to determine this issue, and Federated moved for summary judgment. Federated’s argument centered on its claim that Varro was excluded by the UM portion of the policy.

The insurance policy contained an endorsement entitled “Florida Uninsured Motorists Coverage — Non-Stacked,” which defined an “insured” as follows:

1. You.
2. If you are an individual, any “family member.” '
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”

Another special endorsement entitled “Uninsured and Underinsured Motorists Limit of Insurance” allowed UM coverage for “any director, officer, partner or owner of the named insured and his or her ‘family member’ who qualify as an ‘insured.’ ” However, this endorsement excluded coverage for “any other person qualifying as an ‘insured.’ ”

A distinction has long been recognized in the law of UM coverage between class I and class II insureds. See Travelers Ins. Co. v. Warren, 678 So.2d 324, 326 n. 2 (Fla.1996). In a family auto policy, class I includes the named insured and family members, who receive UM coverage both as occupants of an insured vehicle and in other circumstances. Class II insureds include all other passengers in the vehicle, who are covered only by virtue of the fact that they occupy the covered vehicle. In a business auto policy, the people included within class I are not so easily determined. When the named insured is a corporation, it obviously can never have a bodily injury or a UM claim as well as claims for coverage for family members. The entire risk in such a situation arises from class II insureds.

It is common for small incorporated businesses to insure autos that are also used partially as family autos. As a result, there is a need to provide UM coverage to the owners of such businesses and their families. This effectively provides the sole stockholder the same type of UM coverage that he or she would receive from a family auto policy. There is little question that an insurer issuing a family auto policy could not include an exclusion for class II claimants. Thus, the question in this case is whether a business auto policy can be written to include the sole stockholder and his family within the UM coverage while excluding all other class II insureds. We conclude that Florida law does not permit such limitations on coverage.

Section 627.727(1), Florida Statutes (1999), requires UM coverage unless “an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.” It is undisputed that K W Electric did not make a written rejection of UM coverage. Section 627.727(9), Florida Statutes (1999), lists five limitations that insurance companies may place on UM coverage. These five limitations do not include a provision that allows an exclusion of particular individuals from UM coverage. See § 627.727(9)(a)-(e), Fla. Stat. (1999). An insurance policy may contain other general conditions affecting coverage or exclusions on coverage as long as the limitations are unambiguous and “consistent with the purposes of the UM statute.” Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002).

The limitation in this case was unambiguous, and so the issue is whether the limitation runs contrary to the purposes of the UM statute. The UM statute is intended to protect injured people and is not intended to benefit insurance companies or motorists who cause damage to other people. Id. at 744-45. This statutory protection is not to be “ ‘whittled away’ by exclusions and exceptions.” Id. at 745 (quoting Young v. Progressive S.E. Ins. Co., 753 So.2d 80, 83 (Fla.2000)). Under section 627.727(1), an insured may reject UM coverage “on behalf of all insureds under the policy,” but the statute does not allow rejection of UM coverage on behalf of only some insureds under the policy. Therefore, Florida has an express statutory policy prohibiting this type of discrimination between insureds. Those statutes prevent Federated from issuing UM coverage that benefits only corporate officers and their families.

Accordingly, the trial court erred in finding that the UM limitation did not violate the purpose of the UM statute. Summary judgment should not have been granted in favor of Federated. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT, J„ Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, J.,

Concurring.

I reluctantly concur in the majority’s opinion because it is unequivocally mandated by the clear language of section 627.727(1), Florida Statutes (1999). However, like the trial judge, I do not believe that the legislature intended the result that section 627.727(1) mandates on these facts, i.e., to abrogate a commercial insured’s freedom to contract by requiring it to purchase UM coverage that not only duplicates coverage available to employees under K W Electric’s worker’s compensation policy but also extends UM coverage to both invited and uninvited passengers, including carjackers. I urge the legislature to address the availability of more limited UM coverage, particularly for those commercial insureds that are seeking to coordinate their policies to provide full coverage in the most cost effective manner.

      . This special endorsement is an Insurance Services Office standard form, which is identified as CA-F-93 (10-94).


author: SALCINES, Judge.

text:
    Henry H. BLANTON, as Trustee for Caroline Investments, Inc. Profit Sharing Plan, Appellant, v. CITY OF PINELLAS PARK, Florida; Yale Mosk & Co.; and Yale Mosk, an individual, Appellees.
    No. 2D02-1307.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.

      Steven L. Brannoek and Sarah C. Wein-zierl of Holland & Knight LLP, Tampa, for Appellant.
    Edward D. Foreman of Law Offices of Edward D. Foreman, P.A., St. Petersburg, for Appellee City of Pinellas Park, Florida.
    James A. Helinger, Jr., of James A. Helinger, Jr., P.A., Clearwater, and Amy S. Farrior and Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa, for Appellees Yale Mosk & Co. and Yale Mosk, individually.
   SALCINES, Judge.

Henry H. Blanton, in his capacity as trustee of a profit-sharing plan, timely appeals a final order dismissing his second amended complaint with prejudice. We affirm but write in order to certify a question of great public importance.

On December 28, 1910, Pinellas Groves, Inc., conveyed a ten-acre parcel to Blan-ton’s predecessor in title. The sale landlocked the property. After the conveyance, the only reasonable and practical access to the landlocked property was through Pinellas Groves’ land. Blanton purchased the landlocked ten acres in 1975.

In 1997, Blanton filed suit against the then-current owners of Pinellas Groves’ land, Yale Mosk and Co. (“Mosk”), against Yale Mosk individually, and against the City of Pinellas Park to force them to allow access to his land. Blanton based his right to access his property through Mosk’s property on two theories.

Under one theory, Blanton claimed entitlement to access his property through Mosk’s property as a third-party beneficiary to an annexation agreement between the City and Mosk, and a subsequent rep-lat requested by Mosk and approved by the City. Both the annexation agreement and the replat reserved an access easement for City purposes on Mosk’s property.

Under the other theory, Blanton claimed entitlement to a statutory way of necessity pursuant to section 704.01(2), Florida Statutes (1997), so long as he paid a reasonable fee for his use of Mosk’s property. The complaint alleged that Blanton had to cross Mosk’s property to access the nearest practicable road and that the replat had effectively eliminated the historical means of access from his property to the public road. It also alleged that Mosk had conveyed interests to certain lots surrounding the property, and in the warranty deeds reflecting those conveyances, Mosk had prohibited the grantees from allowing ingress or egress to Blanton’s property without first obtaining the consent of Yale Mosk or his heirs. Blanton alleged that he had attempted to negotiate access with Mosk, but Mosk had demanded in excess of 1.15 million dollars for access over the strip of land which, in 1997, had an assessed value, for property tax purposes, of $18,100.

The trial court found that the annexation agreement and the subsequent replat did not give Blanton third-party beneficiary status and the right to enforce the provisions of the annexation agreement or the replat. The trial court also found that Blanton’s claim for a statutory way of necessity was barred by Florida’s Marketable Record Title to Real Property Act, chapter 712, Florida Statutes, because the right was not timely asserted.

We affirm the trial court’s finding concerning Blanton’s third-party beneficiary status without discussion. We also affirm the trial court’s finding that Blan-ton’s claim to a statutory way of necessity was time-barred in light of the Florida Supreme Court’s holding that “statutory or common law ways of necessity are subject to the provisions of the Marketable Record Title to Real Property Act (‘MRTA’).” H & F Land, Inc. v. Panama City-Bay County Airport & Indus. Dist, 736 So.2d 1167, 1170 (Fla.1999). However, because H & F arose in the context of a common law way of necessity and the supreme court’s reference to statutory ways of necessity appears only in the stated holding, we certify the following question to be of great public importance:

DOES THE MARKETABLE RECORD TITLE TO REAL PROPERTY ACT, CHAPTER 712, FLORIDA STATUTES, OPERATE TO EXTINGUISH AN OTHERWISE VALID CLAIM OF A STATUTORY WAY OF NECESSITY WHEN SUCH CLAIM WAS NOT TIMELY ASSERTED UNDER THE PROVISIONS OF THAT ACT? Affirmed.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.

      . Initially, the property was purchased by Blawar Investments, Inc., of which Blanton was president. Blawar subsequently sold the property to Blanton as trustee for Caroline Investments, Inc. Profit Sharing Plan.

      . The record presented to this court did not suggest an alternative mode of access to the landlocked property. Indeed, in his second amended complaint, Blanton alleged that the only viable, reasonable, and practical means of access to his property was through a particular tract of land on Mosk's property. At the oral argument, counsel for the appellees suggested that, in fact, another mode of access to the property existed. We stress that our review is limited to the propriety of the dismissal order on the pleadings presented to the trial court.


author: NORTHCUTT, Judge.

text:
    GTE FLORIDA, INC., Appellant, v. Jim TODORA, as Property Appraiser of Sarasota County; Barbara Ford-Coates, as Tax Collector of Sarasota County; and Jim Zingale, as Executive Director of the Florida Department of Revenue, Appellees.
    No. 2D01-1035.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.

      Stacy D. Blank and Robert E.V. Kelley, Jr. of Holland & Knight, LLP, Tampa, for Appellant.
    Sherri L. Johnson and John C. Dent, Jr., of Dent & Cook, Sarasota, for Appel-lees.
   NORTHCUTT, Judge.

The circuit court rejected the claim by GTE Florida, Inc. that the Sarasota County Property Appraiser had improperly valued its tangible personal property in that county for ad valorem tax purposes by, among other things, including the value of nontaxable intangible property. We conclude that the appraisal did improperly include the value of intangible property.

The proceedings below produced an extensive record, which we have studied carefully. In sum, it reflects that GTE owns tangible personal property in Sarasota County consisting mostly of telephone access lines it uses to provide telephone service. For ad valorem tax purposes, in 1997 the property appraiser valued this tangible personal property at $250 million. In 1998 he valued it at $271 million. GTE’s expert witness testified below that these assets were worth $192.5 million in 1997 and just over $213 million in 1998. After a four-day nonjury trial, the circuit court upheld the property appraiser’s valuations.

GTE challenges the ruling on three general grounds. It argues, first, that the property appraiser’s valuation method improperly included the value of intangible assets, which are not taxable by local governments. GTE also contends that in two respects the property appraiser failed to properly consider the valuation criteria set forth in section 193.011, Florida Statutes (1997), as required by that statute. Finally, GTE complains that the circuit court erred in permitting the introduction of evidence regarding GTE’s sales of access lines in other parts of the country.

The first issue centers on the property appraiser’s use of the income method of valuation, which he employed with minor variations in both years. The property appraiser’s approach was to determine a total value for the entire GTE business enterprise, then to allocate a portion of the total to Sarasota County. When valuing the GTE enterprise, the property appraiser employed two methods, the income approach and the cost approach. Under the former, the property appraiser found the value of the company by dividing its income by a capitalization rate. From this he deducted several items of property he concluded were either nontaxable or separately assessed and taxed, such as motor vehicles, licensed trailers, and computer software. He did not adjust for any other intangibles. Under the cost approach, the property appraiser took the original cost incurred by GTE to acquire its tangible personal properties, then depreciated it based on the properties’ economic lives. After calculating values under the two methods, the property appraiser weighted them to establish a final value. In 1997, he weighted his income valuation at sixty percent and his cost valuation at forty percent. In 1998, he weighted the two approaches equally.

After determining an overall value of GTE’s tangible personal property, the property appraiser allocated a portion of the value to Sarasota County using two allocation methods. First, he determined the ratio of GTE’s access lines located in Sarasota County to its total number of access lines. He also calculated the ratio of the original cost of GTE’s property located in Sarasota County to the original cost of GTE’s total property. The property appraiser then used the average of these two figures to allocate a portion of the value of GTE’s total tangible personal property to Sarasota County.

This method was consistent with that employed by the property appraiser when valuing GTE’s tangible personal property in previous years. But GTE contends that legislation enacted in 1996 had the effect of rendering the property appraiser’s use of the income approach improper. Under prior law, telephone companies were subject to “rate-based regulation,” that is, they were permitted to earn a prescribed rate of return on their investments in facilities and equipment. Because rate-based regulation tied a telephone company’s income directly to the value of its tangible assets, the property appraiser could use the income approach to value the company’s tangible personal property without improperly including intangible assets in the assessment.

In 1996 Congress enacted the Telecommunications Act of 1996, see 47 U.S.C. §§ 251-615b, and Florida enacted companion legislation, see ch. 95-408, Laws of Fla. These laws substantially deregulated the telephone industry and provided for competition. The new scheme also abandoned rate-based regulation in favor of price cap regulation, under which telephone companies may not charge consumers prices in excess of a specified cap. So long as telephone companies do not exceed the price cap, their incomes are unregulated.

GTE maintains that, because its income after 1996 was and is subject to competitive forces, the income approach to valuing its tangible personal property necessarily incorporates the value of intangible assets that affect the income, such as goodwill, workforce in place, and managerial skills. Under the Florida Constitution, only the State may levy ad valorem taxes on intangible personal property. Art. VII, §§ 1(a), 2, 9(a), Fla. Const. Therefore, GTE argues, the Sarasota County Property Appraiser’s valuation based on the income approach was unconstitutional. We agree.

In Havill v. Scripps Howard Cable Co., 742 So.2d 210 (Fla.1998), the supreme court addressed this issue as it related to tangible personal property owned by a cable television company. In that case the property appraiser had valued Scripps Howard’s tangible personal property using the income approach, from which he deducted twenty percent in an attempt to eliminate values attributable to real property, intangible personal property, or other nontaxable assets. However, the property appraiser conceded that the deduction was not directed specifically to such intangible assets as goodwill, workforce in place, or managerial skills, and he could not provide a basis for the twenty percent allocation. The supreme court observed that the appraisal demonstrated that “the valuation of a cable television company’s tangible personal property by the income approach is constitutionally infirm.”

From the single value arrived at by the income approach, it is virtually impossible to segregate specific items and identify their values. Thus, it is unlikely that the value of intangible assets and other nontaxable items can be subtracted in a nonarbitrary fashion to reveal the just valuation of the tangible personal property.

Id. at 213.

The court went on to quote the Florida Department of Revenue’s Manual of Instructions for Property Tax Administration, which stated that the income approach to valuation lends itself to personal property that is leased by the owner to others, such that the income stream is directly identified with the property itself, and to situations in which the property owner’s income is regulated by state or federal agencies. Otherwise, however,

[t]he capitalization of earnings generated by a business through the use of tangible personal property such as equipment, machinery, etc., is not recommended as an accurate approach to value in that the earnings are based not only upon the intrinsic value of the personal property used but also depend upon labor skills, management techniques, etc., which are intangible factors unrelated to the value of the personal property.

Scripps Howard, 742 So.2d at 214 (quoting Manual of Instructions for Property Tax Administration at 3). The supreme court concluded: “We hold as a matter of law that insofar as the income method of valuation taxes intangible property, it is an unconstitutional method for use with cable television companies.” Id.

The property appraiser maintains that the Scripps Howard case does not control here. He parses the above-quoted holding in two ways. First, he points out that the supreme court held that the income valuation method is unconstitutional “for use with cable television companies.” But he offers no reason why the principles underlying that holding do not apply equally as well to a similarly situated taxpayer such as GTE, and we can fathom none.

Second, the property appraiser emphasizes that the supreme court held the income valuation method unconstitutional only “insofar as [it] taxes intangible property.” From this premise he argues that, as the taxpayer contesting the valuation, GTE was obliged to prove the extent to which the valuation improperly included intangible property. The circuit court, too, held this view, and it found that GTE had failed to meet its burden.

We reject this application of the supreme court’s holding. As the court acknowledged by virtue of its quotation from the Manual of Instructions, there are limited circumstances in which the income method can be employed without the risk that it will include the value of nontaxable intangible property. But the court recognized that, outside those circumstances, the inclusion of intangible value is inherent in the income method, that it is “virtually impossible” to segregate and quantify the values of the intangibles in order to subtract them, and that for those reasons the use of the income method for the ad valo-rem taxation of tangible personal property is unconstitutional. The court made no mention of any evidence offered by the taxpayer to prove how much intangible value had been included in the valuation.

The assessment of a tax that is not authorized by law is void. Lewis State Bank v. Bridges, 115 Fla. 784, 156 So. 144 (1934). Under Scripps Howard, it is- the fact that an income-based valuation includes nontaxable intangible personal property, not proof of the value of the intangibles, that renders the property appraisal invalid.

Finally on this point, the property appraiser argues that even if his valuation method was improper, it did not result in an excessive valuation of GTE’s property. He contends this was demonstrated by the prices GTE received in various sales of access lines in other parts of the country. These sales were not employed in the property appraiser’s valuation, but were discovered during the litigation. See Bys-trom v. Equitable Life Assurance Soc’y of the United States, 416 So.2d 1133, 1138 (Fla. 3d DCA 1982) (observing that a property appraiser may defend his assessment with information acquired afterward). The circuit court allowed the property appraiser to introduce evidence of these sales over GTE’s relevancy objection.

The evidentiary dispute aside, the “comparable sales” evidence simply did not demonstrate that the property appraiser’s valuation did not exceed just value. His position in this regard was based on the fact that his valuations amounted to $1050.39 per access line in 1997 and $1060.96 per access line in 1998, whereas in various transactions around the country GTE sold access lines for $1060 to $3064 per line from 1993 to 1996, and for $2460 to $3947 per line in 1999 and 2000. Acknowledging GTE’s contention that these numbers were meaningless without evidence of net sales prices after deducting intangible values, the property appraiser proposes to attribute thirty percent of the sales prices to intangibles. This yields a price range for the comparable sales of $742 to $2763.

There are two problems with the property appraiser’s argument. First, the “comparable” sales varied widely in price. If the Sarasota County access lines were most like the most expensive of those sold by GTE, the property appraiser substantially undervalued them even after reducing the sales price by thirty percent to account for intangibles. On the other hand, if the Sarasota County access lines were most comparable to the least expensive of those sold by GTE, and again assuming that thirty percent of the sales price was attributable to intangibles, the property appraiser overvalued GTE’s access lines by over forty-one percent. Testimony at trial made the obvious point that a variety of factors could affect the sales prices of access lines. But, except in the broadest of terms, the record contains scant information from which a fact finder could discern what factors caused the differential in the specific cases introduced at trial, or how those factors may or may not apply to GTE’s access lines in Sarasota County. In other words, the so-called comparable sales manifestly were not strictly comparable with each other, and a fact finder could only speculate as to which of them were most indicative of the worth of GTE’s Sarasota County access lines.

The second flaw in the property appraiser’s argument is the premise that thirty percent of the prices realized in all the comparable sales were attributable to intangibles. He derived this figure from an appraisal GTE commissioned relative to the sales of several groups of access lines. The evidence reflected that GTE had employed this figure in some other sales for which it had not obtained appraisals. But the evidence also showed that in many other sales the parties had allocated far different portions of the prices to intangibles, often far exceeding thirty percent. Again, the evidence did not furnish the fact finder any basis for concluding that a thirty percent intangible factor should be applied to all the comparable sales for purposes of comparing them to GTE’s Sarasota County access lines.

Section 194.301, Florida Statutes (1999), provides that if in a judicial proceeding the property appraiser’s assessment “is determined to be erroneous,” the court can establish the assessment if the record contains competent, substantial evidence that cumulatively meets the valuation criteria set forth in section 193.011. Otherwise, the court must remand the matter to the property appraiser with appropriate directions. Here, we have determined that the property appraiser’s valuation method improperly included nontaxable intangible assets in the valuation of GTE’s Sarasota County tangible property, and we have carefully examined and rejected the property appraiser’s assertion that, nevertheless, his evidence of GTE’s sales of access lines in other instances supported his determination of just value. Therefore, we conclude that the circuit court should have determined that the assessment was erroneous and proceeded to either establish the assessment based on the record or remand the matter to the property appraiser. We reverse and remand for that purpose.

With that in mind, we consider GTE’s assertion that the property appraiser failed to properly consider the criteria set forth in section 193.011. Under section 194.301, the property appraiser’s assessment must be accorded a presumption of correctness unless the taxpayer proves by a preponderance of the evidence that the property appraiser did not consider properly the criteria in section 193.011. If the presumption is defeated, the taxpayer’s burden is to prove by a preponderance of the evidence that the assessment exceeds just value. If the presumption is not defeated, the taxpayer’s burden of proof on that issue is by clear and convincing evidence.

GTE argues that the property appraiser failed to properly consider the statutory valuation criteria on two grounds. The first is that the property appraiser’s income-based valuation was flawed because he erroneously used a capitalization rate derived from the interest rate on financing that GTE had in place. GTE contends he should have based the capitalization rate on interest rates in the market. This issue has been rendered moot by our conclusion that the property appraiser should not have employed the income valuation method.

GTE also takes issue with the property appraiser’s cost approach to valuation because he failed to deduct sales taxes as a “cost of sale” associated with GTE’s acquisition of the tangible personal property. The supreme court has concluded that there is no legal impediment to this approach. Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85 (Fla.2002).

Finally, because we have determined that the property appraiser’s evidence of comparable sales failed to support its valuation of GTE’s tangible personal property in Sarasota County, we need not address GTE’s evidentiary objection.

Reversed and remanded with instructions.

SILBERMAN and KELLY, JJ„ Concur.

      . A property appraiser is required under section 193.011 to consider the following factors when determining just valuation: (1) the present cash value of the property; (2) the highest and best use to which the property can be expected to be put in the immediate future and the present use of the property; (3) the location of the property; (4) the quantity or size of the property; (5) the cost of the property and the replacement value of improvements on the property; (6) the condition of the property; (7) the income from the property; and (8) the net proceeds from the sale of the property. The property appraiser's obligation is to consider, but not necessarily to apply, each of the factors. Scripps Howard, 742 So.2d at 212.


author: SILBERMAN, Judge.

text:
    Wayne Anthony OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1799.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Wayne Owens appeals his judgment and sentence for possession of cannabis and contends that the trial court erred in denying his motion to suppress. We agree and reverse.

At the suppression hearing in this case, Officer Seal testified that on August 12, 2001, he received information from a confidential informant (C.I.), not an anonymous tipster, that a black man named Wayne was standing in front of 1537 Green Street. The C.I. described Wayne as “five foot five, wearing no shirt and a pair of shorts” and said that Wayne “had marijuana in his pocket and in the front of his pants.” Officer Seal went to the location, and Owens was the only person in the area “that was even close to that description.” No testimony indicates how long after receiving the tip that Officer Seal located Owens.

Owens was standing in front of the apartments at 1537 Green Street when Officer Seal approached him, said he needed to talk to him about narcotics, and did a pat-down for weapons. Officer Seal felt what appeared to be “ring baggies” of marijuana in Owens’ left front pocket. He manipulated Owens’ pocket and then retrieved twelve ring baggies of marijuana from the pocket. Officer Seal admitted that he approached Owens based solely on the tip from the C.I.

The State contends that Officer Seal had probable cause to search Owens and seize the marijuana because the information came from a reliable C.I. and the officer’s observations confirmed the information, except for the final detail of the possession of marijuana. “To determine whether information from a confidential informant gives rise to probable cause a court must look at the totality of the circumstances.” Everette v. State, 736 So.2d 726, 727 (Fla. 2d DCA 1999) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and State v. Butler, 655 So.2d 1123 (Fla.1995)). This court explained in Everette that under the totality of the circumstances test, “the court must measure the confidential informant’s veracity as well as the basis of the C.I.’s knowledge. Veracity can be established by proof that the C.I. has provided reliable information in the past or has provided detailed and verifiable information on the occasion in question.” Id.

Here, Officer Seal gave general testimony that he had used this C.I. in previous cases and that the C.I.’s information was consistent with observations the officer had made. Based on his observations and training with this C.I., Officer Seal considered him to be reliable. No detail was provided as to the number of times the C.I. had given information in the past or whether the information resulted in arrests.

In contrast, in State v. Butler, 655 So.2d 1123 (Fla.1995), the officer had used information from the informant at least twenty times in the past, and sixty to seventy percent of the tips had resulted in felony arrests. Although the informant’s tip did not include the precise basis of his knowledge, it contained abundant details rather than innocent facts that a passerby could observe. In addition to describing Butler’s height, race, type of clothing, and location, the informant stated that Butler was selling cocaine, it was in his pants pocket, and he delivered it in rolled-up one-dollar bills. The supreme court affirmed the trial court’s finding of probable cause based on the established credibility and reliability of the informant, together with the officer’s corroboration of the detailed tip within minutes of receiving the tip, save for the ultimate information that Butler possessed cocaine. We note, however, that the Butler court cautioned that “in many instances a tip from an informant, standing alone, will not justify a finding of probable cause for an arrest or search.” Id. at 1131.

In Everette, the detective stated that he had used the informant “numerous times,” but this court noted that the State failed to establish the informant’s reliability because there was no evidence that any officer had corroborated the information or that it was otherwise accurate. Everette, 736 So.2d at 727. In addition, there was no evidence as to the informant’s basis of knowledge regarding the possession of large quantities of marijuana, and the officers only verified that a dark-colored Ford Probe with an orange stripe was involved. Thus, the court concluded that “[without specific details not easily accessible to the general public, the confidential informant’s reliability can not be established.” Id. at 728.

In Mitchell v. State, 787 So.2d 224 (Fla. 2d DCA 2001), this court held that a confidential informant’s tip did not give probable cause to arrest Mitchell. The State failed to prove the informant’s reliability when the officer testified that the informant had provided him with information on five prior occasions, but revealed on cross-examination that in those previous cases the informant had acted as an agent in a controlled buy. Thus, Mitchell’s case was apparently the first time the informant had supplied a tip. The court determined that the trial court erred as a matter of law in finding the informant reliable without record evidence identifying “past information provided by this C.I., its nature, its value, or the manner in which it was verified.” Id. at 227. The court explained, however, that when the State has not established the reliability of the C.I.,

the State may alternatively prove veracity by showing that the information leading to the arrest in the current case was both sufficiently detailed and verifiable. Everette, 736 So.2d at 727. Here, the C.I.’s information lacked sufficient detail. Missing were such facts as the source of the information, the means or methods by which the alleged narcotic transactions were made, and the type of illegal drug being sold. The only verifiable information was the subject’s location and clothing, which was readily available because the two subjects were in an open, public place.
As in Everette, the C.I.’s tip lacked specific details not easily accessible to the general public.

Id. at 227-28.

Here, Officer Seal’s testimony provides a minimal threshold of reliability in his generalized statement that the C.I. had provided information in other cases, which he corroborated, and that he considered the C.I. rehable. Although this is more information regarding reliability than provided in Everette and Mitchell, it is far less specific than the testimony in Butler regarding the informant’s reliability.

In addition, the record provides no evidence as to the C.I.’s basis of knowledge, a relevant factor under the totality of the circumstances test. See Butler, 655 So.2d at 1128. Furthermore, another relevant factor, the temporal proximity between the tip and the officer locating the suspect, was not established in our record. See Highsmith v. State, 843 So.2d 369, 371 (Fla. 2d DCA 2003) (stating that “the important temporal connection between the significant events was missing” when the deputies stopped the defendant’s car nine hours after the first tip and three hours after the last tip).

Moreover, the only details that Officer Seal corroborated were innocent details that were easily accessible to the general public. Upon arriving at 1537 Green Street, the officer observed a person standing outside the apartments matching the race, gender, and height described in the tip. The man was wearing shorts and no shirt, as the informant described. The tip did not describe any predicted future activity that the officer could corroborate. The corroboration of innocent details is insufficient, considering the totality of circumstances here, to support a search of Owens.

Based on the minimal testimony regarding reliability, along with the other relevant factors such as no evidence of the C.I.’s basis of knowledge, no evidence of the temporal proximity of the events, and no corroborated facts that would not be known to the general public, we conclude that Officer Seal did not have probable cause based on the C.I.’s tip to search Owens and seize the baggies from his pocket.

The State also contends that Officer Seal properly did a pat-down for weapons and that seizure of the baggies was justified under the “plain feel” doctrine. The officer’s testimony, however, does not support a pat-down for officer safety. A pat-down for weapons is permissible only when the officer has a reasonable suspicion that the defendant is armed and dangerous. Everette, 736 So.2d at 728. Officer Seal candidly admitted that he had no information that Owens was armed. The record also fails to indicate that Officer Seal had a particularized suspicion that Owens was armed; thus, the pat-down for weapons was illegal, as was the subsequent seizure of the marijuana.

Therefore, we reverse Owens’ judgment and sentence for possession of cannabis and remand with directions to discharge Owens.

Reversed and remanded.

WHATLEY and STRINGER, JJ„ Concur.


author: NICHOLS, A. W„ Associate Judge.

text:
    Siroos PIRZADEH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3244.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Rehearing Denied Sept. 24, 2003.

      Michael J. Snure and William R. Ponall of Kirkconnell, Lindsey, Snure and Yates, P. A., Winter Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   NICHOLS, A. W„ Associate Judge.

Siroos Pirzadeh was charged and brought to trial on four counts of trafficking in opium in various amounts. Following a jury trial, Pirzadeh was found guilty of three lesser included counts of possession of opium. He was sentenced to five years’ imprisonment on each count with each count to run consecutively to the other. Pirzadeh raises eight points of appeal. We reverse on the first issue and find the remaining issues moot.

Prior to trial, Pirzadeh moved to suppress a written statement he made to Detective Andrew Burke of the Orange County Sheriffs Office on the basis that the statement was obtained in violation of his right to counsel under the Florida and United States Constitutions. The statement was made as follows:

I told the agent that I want to write the statement, I am writing this in my own free will, the agent promises nothing, I had 220 grams of opium in my store, I paid $6,000 and bought that six days ago, I am not an opium trafficker, I use that for my own, this 220 grams of opium should last me about one year, I buy the opium from the friend I know, when I bought that, the opium comes in candy wrapper, I have back problems and I use it to remedy pain, I own the gas station at 4316 Curryford Road, Orlando, Florida 32806, another agent read my rights and I chose to write the statement anyway.

During the suppression hearing, both sides stipulated that Pirzadeh was placed under arrest, advised of his Miranda rights, and invoked his right to counsel prior to being transported to the Orange County Jail. While being booked at the jail, Detective Burke approached Pirzadeh and explained to him what crimes he was being charged with and what the sentencing guidelines for those crimes were. Detective Burke also told Pirzadeh that he was not going to give Pirzadeh a bond at that time because he considered Pirzadeh a flight risk. At that time, Detective Burke did not ask Pirzadeh any questions or make any promises to him. Once Pirza-deh was advised of the charges and the no-bond status, Pirzadeh said he wanted to cooperate because he wanted a bond. Burke told Pirzadeh he still was not going to give him a bond and that he should get an attorney and seek a hearing.

This back and forth dialogue continued between Detective Burke and Pirzadeh with Pirzadeh claiming he would cooperate and wanted a bond, and the detective stating he would not get a bond. During this continuing exchange, the detective testified he told Pirzadeh that Pirzadeh could cooperate, but he was not going to recommend a bond. Pirzadeh told Detective Burke that he still wanted to cooperate and that he wanted a bond. The detective told Pirzadeh that if Pirzadeh wanted to cooperate, that would be fine, but the detective would not give him any assistance and would continue to recommend no bond. The trial court denied Pirzadeh’s motion to suppress and Pirzadeh’s written statement was read into evidence and a blown-up copy published to the jury.

The issue in this case is whether the trial court erred in denying Pirzadeh’s motion to suppress his written statement. As it was stipulated that Pirzadeh was in custody at the time he spoke with Detective Burke and that Detective Burke initiated the contact, the only issue is whether Detective Burke’s actions constituted an improper custodial interrogation.

In the constitutional sense, an interrogation can be either the direct asking of questions or its “functional equivalent.” The functional equivalent of interrogation includes any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Larson v. State, 753 So.2d 733 (Fla. 2d DCA 2000), the Second District Court of Appeal found that an officer who held a conversation with a defendant about the crimes for which he was charged, and told the defendant that he was facing a twenty-five-year sentence, was conducting an interrogation of the defendant because those statements were reasonably likely to elicit an incriminating response from the defendant.

The current case goes beyond Larson. Not only did the detective inform Pirzadeh of the crimes with which he was charged and the possible sentence, but also told Pirzadeh he would not be given a bond. Whether or not Pirzadeh believed that the detective had any control over the bond is immaterial. Once the detective told Pirza-deh about the nature of the charges against him, he should have terminated the confrontation as it became clear that continuing the conversation would lead to an incriminating response.

The State argues that Pirzadeh reinitiated the conversation after invoking the right to counsel. The United States Supreme Court has held that when an accused has invoked his right to counsel, all interrogation must cease immediately until counsel is made available, unless the accused reinitiates further communication with law enforcement. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The State relies on Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Francis v. State, 808 So.2d 110 (Fla.2001), and Hill v. State, 772 So.2d 19 (Fla. 2d DCA), review denied, 790 So.2d 1104 (Fla.2001), for the proposition that Pirzadeh reinitiated the conversation. The State’s reliance is misplaced. In Bradshaw, the defendant asked the police officers, “Well, what is going to happen to me now?” In Francis, the defendant knocked on the door of the interrogation room and asked what was going on after being inside for three and one-half hours. And, in Hill, the defendant requested a meeting with a detective after a visit from his probation officer.

There is no question that it was Detective Burke, and not Pirzadeh, who initiated the contact after Pirzadeh invoked his right to counsel. All Pirzadeh did was respond to the renewed contact by continuing to express his interest in cooperating and in getting a bond. The law concerning Miranda warnings and the right to counsel establishes a policy whose purpose is to prevent what happened in this case. The trial court should have granted Pirzadeh’s motion to suppress the written statement — the result of the improper initiation of conversation after invocation of the right to counsel.

REVERSED AND REMANDED.

GRIFFIN and MONACO, JJ„ concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PLEUS, J.

text:
    Bliss M. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1905.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Rehearing Denied Sept. 24, 2003.
    Bliss M. Thomas, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

We have for review an order which denies a Rule 3.800(a) motion to correct an illegal sentence. The trial court failed to attach portions of the record to support the denial of jail time credit. Once a prima facie claim is asserted that the record shows an entitlement to jail time credit, the burden is on the trial court to attach portions of the record to refute the claim. See Martin v. State, 799 So.2d 343 (Fla. 5th DCA 2001); Abney v. State, 661 So.2d 139 (Fla. 5th DCA 1995). The state’s attempt to provide such documentation to this court in response to this court’s order to show cause does not cure the defect. See Worthington v. State, 667 So.2d 1023 (Fla. 5th DCA 1996).

The order denying the defendant, Bliss M. Thomas’, Rule 3.800(a) motion to correct an illegal sentence is reversed and remanded for the trial court to either attach portions of the record to support the denial of jail time credit or to award the proper credit.

REVERSED AND REMANDED.

SAWAYA, C.J., and PETERSON, J., concur.

      . We are concerned about the state’s response which appears to misstate the facts presented in their own attachments and apparently recognizes that their attachments reflect two different jail time credit periods and yet fails to point this fact out to the court or concede error.


text:
    Charvester ANTHONY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2758.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Charvester Anthony appeals the order revoking his community control in case numbers 99-3828 and 00-13441 and the order summarily denying his motion to correct sentence in case number 99-3828. We conclude that the trial court erred in finding that Anthony violated conditions 1, 5, and 77 of his community control and in summarily denying ground 1 of Anthony’s motion to correct sentence. We find no error in the trial court’s finding that Anthony violated condition 12 of his community control, and we affirm without discussion the denial of the other grounds raised in Anthony’s motion to correct sentence.

On October 12, 2000, Anthony pleaded guilty to four counts of lewd and lascivious acts in case number 99-3828. Three of the counts originally alleged sexual battery on a child under twelve; however, the State reduced the charges to lewd and lascivious acts as part of the plea agreement. The parties agreed that Anthony would be sentenced to twenty-four months’ community control followed by thirteen years’ probation.

Condition 77 of the community control order provided for “[ejlectronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.” (Emphasis added). At the plea hearing, the trial court and the parties acknowledged that electronic monitoring would not be implemented without court approval. Shortly after the plea hearing, and without either a hearing or court approval, the Department of Corrections initiated electronic monitoring of Anthony.

On October 30, 2000, in case number GO-13441, Anthony pleaded guilty to possession of cannabis. The trial court sentenced Anthony to twenty-four months’ community control followed by three years’ probation. The sentence was to be concurrent with the sentence in case number 99-3828. There was no provision for electronic monitoring in the order entered in case number 00-13441.

On February 1, 2001, Anthony’s community control officer filed affidavits of violation of community control in both cases, alleging that Anthony had twice violated condition 12 of each of the community control orders by failing to remain confined at his residence or at an approved activity, as evidenced by information obtained from electronic monitoring. The affidavit in case number 99-3828 further alleged that Anthony violated condition 77 of his community control on three separate occasions by failing to submit to electronic monitoring. Amended affidavits of violation were filed in case number 99-3828, alleging that Anthony committed two additional violations of condition 12 by failing to remain confined at his residence or at an approved activity. The amended affidavits also alleged violations of condition 1 for failing to make a full and truthful monthly report to his community control officer and condition 5 for committing a new law offense.

On April 30, 2001, the trial court held an evidentiary hearing on the alleged violations in both cases. However, because the amended affidavit alleging the violations of conditions 1 and 5 had been filed just prior to the hearing, the trial court agreed to postpone consideration of those allegations.

During its case, the State presented testimony from a probation officer that she had explained to Anthony the terms and conditions of electronic monitoring and his obligations regarding the monitoring. She indicated that Anthony understood his obligations. She and other probation officers testified as to information received from the electronic monitoring and their efforts to verify that violations had occurred.

One of the officers first discovered that Anthony had violated condition 12 when she checked the records generated by the electronic monitoring. She spoke with Anthony, and he gave three different accounts of why he had been in an unauthorized location. On a second occasion, she learned of a violation when Anthony failed to respond to messages left at his residence and his whereabouts were unknown. Anthony failed to give a satisfactory explanation when he was finally contacted. A third violation was discovered when the probation officer learned that Anthony had gotten married after he had been told that he did not have permission to go to the courthouse to get married. The officer verified that Anthony should have been completing community service hours during the pertinent time period and that he had gone to an unauthorized location.

Anthony presented testimony from several witnesses and also testified at the hearing. His defense was primarily that he would occasionally forget to take his tracking device with him and that the violations were not willful.

In a written order, the trial court concluded that Anthony had committed three violations of condition 12, three violations of condition 77, a violation of condition 1, and a violation of condition 5. As a result, the court revoked Anthony’s community control.

Anthony argues that reversal of the revocation is required because the electronic monitoring was improperly imposed and any evidence obtained or flowing from the monitoring should have been excluded by the trial court. He acknowledges that he did not object to the admission of the State’s evidence, but he argues that the trial court committed fundamental error in allowing the evidence. We conclude that the trial court erred to the extent that it revoked Anthony’s community control based on the finding of violations of conditions 1, 5, and 77; however, the trial court did not err in allowing the evidence or in determining that Anthony had violated condition 12.

In deciding whether to revoke a defendant’s community control, the trial court must determine whether the facts and circumstances of the case demonstrate a willful and substantial violation that is supported by the greater weight of the evidence. State v. Carter, 835 So.2d 259, 261 (Fla.2002). The trial court has broad discretion to determine whether a willful and substantial violation occurred, and on appeal, the standard of review is whether the trial court abused its discretion. Id. at 262.

During the revocation hearing, the trial court indicated that it would not consider the alleged violation of conditions 1 and 5, and no competent, substantial evidence was presented to establish any violation of those conditions. Accordingly, the trial court abused its discretion by finding that Anthony violated conditions 1 and 5 of his community control.

Concerning the alleged violations of condition 77 for failure to submit to electronic monitoring, section 948.03(3)(a)(l), Florida Statutes (2000), provides that “[t]he Department of Corrections may, at its discretion, electronically monitor an offender sentenced to community control.” However, this provision does not give the Department the authority to impose electronic monitoring as a condition of community control. Carson v. State, 531 So.2d 1069, 1070 (Fla. 4th DCA 1988). Additionally, the community control order in the lewd acts case indicates that electronic monitoring may be imposed when recommended by the Department and ordered by the court. Because the trial court never ordered electronic monitoring, it did not become a condition of Anthony’s community control. Therefore, his failure to continually submit to electronic monitoring was not a basis to revoke his community control. See id. at 1069-70.

As to the violations of condition 12 for failing to remain confined to his residence or at an approved activity, the record contains competent, substantial evidence that Anthony violated that condition on three occasions. Anthony suggests that the trial court’s admission of evidence gathered as a result of electronic monitoring was fundamental error. We disagree.

By failing to object at the revocation hearing, Anthony failed to preserve the issue and he waived his right to claim on appeal that the evidence was erroneously admitted. See Green v. State, 711 So.2d 69, 70 (Fla. 4th DCA 1998); Newman v. State, 676 So.2d 40, 41 (Fla. 3d DCA 1996). Additionally, based on all of the evidence contained in the record, any error does not rise to the level of fundamental error. See Newman, 676 So.2d at 41.

Because it is unclear from the record whether the trial court would have revoked Anthony’s community control based solely upon the three violations of condition 12, we reverse the order revoking Anthony’s community control. We remand this matter so that the trial court may reconsider whether to revoke Anthony’s community control based upon the violations of condition 12 and, if so, the sentences to be imposed. See Blair v. State, 805 So.2d 873, 878 (Fla. 2d DCA 2001).

Turning to Anthony’s motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b) in case number 99-3828, Anthony argued in ground 1 that there was an insufficient factual basis to support the assessment of 138 sexual penetration and sexual contact points on his sentencing guidelines score-sheet. He claimed that the improper assessment of the points increased his sentence.

The sentencing scoresheet includes 120 points for counts 1, 2, and 3 for sexual penetration and 18 points for count 4 for sexual contact. However, at the time that Anthony pleaded guilty to the four counts of lewd and lascivious acts, he objected to the scoring of 120 points for sexual penetration.

At the plea hearing, the State provided the following factual basis in support of the plea:

Between May the 24th of 1994 and March the 4th of 1994[sic] with regards to Counts 1, 2, and 3, the defendant engaged in penis to vagina sex with the listed victim in this case.
With regard to Count 4 between May 24th of 1994 and March the 4th of 1999, the defendant forced the victim — the listed victim in this case to touch and/or fondle his penis. At the time that this occurred, the victim was under the age of 16.

We find no error as to the scoring of 18 points for sexual contact as to count 4. However, Anthony is correct that the statement that there was “penis to vagina sex” could be interpreted as either penetration of or union with the victim’s vagina.

Penetration and union are not synonymous terms. See Wright v. State, 739 So.2d 1230, 1234 (Fla. 1st DCA 1999). As this court has stated, “[u]nion permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some entry into the relevant part, however slight.” Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999). Because the factual basis is equivocal and Anthony challenged the scoring for penetration, we conclude that the trial court erred in summarily denying ground 1 of his motion to correct sentence. If, on remand, the trial court again revokes Anthony’s community control, then the State must establish sexual penetration in order for those points to be included on the sentencing scoresheet; otherwise, points shall only be included for sexual contact. See Kiser v. State, 810 So.2d 1038, 1039 (Fla. 2d DCA 2002).

Affirmed in part, reversed in part, and remanded.

CASANUEVA and CANADY, JJ., Concur.


text:
    Jeffrey William ROSS a/k/a Jeffery William Ross, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3826.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Jeffrey Ross appeals the trial court’s judgment and sentence for trespass on a construction site and grand theft. He argues that the trial court erred in denying his motion for judgment of acquittal as to the trespass charge because the State failed to prove that he was not authorized to be on the construction site. We agree.

The crime of trespass on a construction site is set forth in section 810.09, Florida Statutes (2001). To prove that Ross trespassed on a construction site, the State had to establish that (1) Ross, without being authorized, licensed, or invited, willfully entered upon or remained in the property, and (2) the property was a construction site “legally posted and identified in substantially the following manner: ‘THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.’ ” § 810.09(l)(a), (d).

A key issue at trial as to the trespass charge was whether Ross was authorized to work at the construction site on the Saturday that he was observed removing materials from the site in his truck. While he normally worked at the site on weekdays, none of the State’s witnesses established that Ross did not have permission to be at the site on the Saturday in question. Because there was no competent, substantial evidence that Ross trespassed on a construction site, the judgment for that crime must be reversed.

Accordingly, we reverse the judgment for trespass on a construction site, affirm the judgment for grand theft, and remand for entry of a corrected judgment and for resentencing on the grand theft.

Affirmed in part, reversed in part, and remanded.

WHATLEY and STRINGER, JJ„ Concur.


author: PER CURIAM.

text:
    Jay RUSSO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2594.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Pubic Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm the judgment and sentence imposed upon Appellant but remand for entry of a written sentence and order of probation as directed by the trial court when it granted Appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b).

FULMER, CASANUEVA, and SILBERMAN, JJ„ Concur.


text:
    William MADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2004.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
    Frank D.L. Winstead of Law Offices of Frank D.L. Winstead, New Port Richey, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm but remand for the trial court to enter a written sentence that conforms to the orally pronounced sentence of thirty-six months in prison, see Ayers v. State, 651 So.2d 1226 (Fla. 2d DCA 1995), and to enter a written order setting forth the conditions that Mr. Madden admitted to violating, see Donley v. State, 557 So.2d 943 (Fla. 2d DCA 1990).

Affirmed and remanded.

FULMER, CASANUEVA, and SILBERMAN, JJ., Concur.


author: STRINGER, Judge.

text:
    Ronnie Edward EDMONDSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-179.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
   STRINGER, Judge.

Ronnie Edward Edmondson appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court treated as a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order of denial because the record indicates that Edmondson is not entitled to the jail credit he requested. However, Edmondson may have a meritorious claim of ineffective assistance of counsel. See Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002). Therefore, we affirm without prejudice to any right Edmondson may have to file a timely, facially sufficient motion for postconviction relief raising such a claim. See id.; Hill v. State, 821 So.2d 1173 (Fla. 2d DCA 2002).

Affirmed.

WHATLEY and CANADY, JJ., Concur.


author: WARNER, J.

text:
    Jeffery HARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3933.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Rehearing Denied Oct. 9, 2003.

      Jeffery Harley, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the trial court’s order denying appellant’s second and successive motion for postconviction relief. The court held that it was not based on “newly discovered” evidence and was an abuse of process.

Appellant was convicted of burglary of a dwelling while armed with a firearm and aggravated battery with a firearm. His defense was misidentification. Briefly, the evidence at trial demonstrated that on August 9, 1996, victim William Bailey (“Bailey”) was at home with his girlfriend and a friend. Bailey had been drinking. At some point during the evening, Bailey heard a knock on his door. He testified that it was appellant. Appellant produced a firearm from his waistband and demanded money owed to him by Bailey. A struggle ensued between appellant, Bailey, and Bailey’s friend. Shots were fired by appellant and Bailey returned fire. Bailey was shot in the hip. The jury found appellant guilty as charged'and the trial court sentenced appellant to life in prison as a habitual violent felony offender.

In 1999, appellant filed a motion for postconviction relief alleging ineffective assistance of counsel. While the trial court denied relief, we reversed for an evidentia-ry hearing. See Harley v. State, 753 So.2d 693, 694 (Fla. 4th DCA 2000). At the evidentiary hearing on the issue of whether defense counsel was ineffective for not pursuing a voluntary intoxication defense, appellant’s counsel presented the testimony and affidavit of Clister Winston (‘Winston”), Bailey’s girlfriend. Winston testified that she was in the bedroom of the home on the date of the incident, watching television with Bailey and his friend. She heard a knock on the door. In her affidavit, she attested that a few minutes later, Bailey came running into the bedroom for a gun and headed toward the back door. She was in view of the door and knew that no one, including appellant, entered the house. Winston concluded by saying, “I would have came forward a long time ago, but the state told me that they didn’t need my testimony.” Winston testified at the evidentiary hearing that she did not actually witness the shootings and did not know appellant prior to the incident. She also testified that what she witnessed was Bailey firing out of the door.

After the evidentiary hearing on May 26, 2000, the trial court took further testimony and argument before ultimately denying the postconviction motion on August 30, 2000. Not until November 2001 did appellant file a second motion for post-conviction relief alleging that Winston’s testimony was Brady evidence that the state failed to disclose and would have constituted impeachment evidence to Bailey’s testimony that appellant entered the home and shot Bailey, thus discrediting the burglary charge.

We agree with the trial court that the motion was untimely and an abuse of process. Winston was known to be a witness to these proceedings before the trial commenced, and defense counsel could have discovered the substance of her testimony within the time period for bringing a Rule 3.850 motion. Moreover, Winston’s affidavit and testimony were presented at the prior proceeding. Appellant could have amended his motion for postconviction relief to allege the information put forth by Winston before the court ruled and within the time limitation of a rule 3.850 motion, yet he failed to do so. In Foster v. State, 614 So.2d 455, 458 (Fla.1992), the court held:

A successive motion may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process. Fla. R.Crim. P. 3.850. To overcome this bar, a movant must allege that the grounds asserted were not known and could .not have been known to him at the time of the earlier motion. Christopher v. State, 489 So.2d 22, 24 (Fla.1986). The movant must show justification for the failure to raise the issues in the prior motions. Id.

(Emphasis added). Here, as in Foster, the evidence upon which appellant now relies in his successive motion was not only known, it was introduced during the evi-dentiary hearing on his first motion. As such, appellant is procedurally barred from bringing this second, successive motion. See Jones v. State, 591 So.2d 911, 916 n. 2 (Fla.1991). The trial court correctly denied relief.

Affirmed.

POLEN and SHAHOOD, JJ„ concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The following are the three components of a true Brady violation: "[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Way v. State, 760 So.2d 903, 910 (Fla.2000) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). "[T]he defendant must show that 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Rose v. State, 774 So.2d 629, 634 (Fla.2000) (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).


text:
    Joseph M. GONNELLA, Appellant, v. Chantelle A. GONNELLA and Department of Revenue, Appellees.
    No. 2D02-3026.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2003.
    Joseph M. Gonnella, pro se.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellees.
   NORTHCUTT, Judge.

Joseph Gonnella challenges the order denying his petition to modify his child support obligation. He claimed an inability to pay based upon his incarceration in state prison.

We reverse with instructions to hold the petition in abeyance on the inactive calendar for the term of Gonnella’s incarceration until a time when a thorough evaluation of his ability to pay may be conducted and a farsighted plan for payment may be established. See Dep’t of Revenue v. Jackson, 846 So.2d 486 (Fla.2003).

Reversed and remanded.

DAVIS and COVINGTON, JJ„ Concur.


text:
    David BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-940.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2003.
   SALCINES, Judge.

David Burgess appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion stated a claim for correction of an illegal sentence as related to one count of possession with intent to sell a controlled substance and, in a second claim, challenged his convictions. We reverse the trial court’s denial as to the correction of illegal sentence and remand the cause for further proceedings. However, we affirm the trial court’s denial of relief as to the convictions as such a challenge is not proper under rule 3.800(a).

Pursuant to a plea of no contest, Burgess was sentenced as a habitual offender to twenty years’ Florida State Prison for one count of possession of cocaine with intent to sell and two counts of sale of cocaine. In his motion, Burgess pointed out that a habitual offender sentence is not allowed for possession of a controlled substance with intent to sell. § 775.084(l)(a)3, Fla. Stat. (1999); Brown v. State, 744 So.2d 1184 (Fla. 2d DCA1999). We agree.

As such, it is apparent from the face of the record that this portion of Burgess’ sentence is illegal. See Williams v. State, 500 So.2d 501, 503 (Fla.1986) (holding that a court cannot impose an illegal sentence pursuant to a plea bargain, nor may a defendant agree to an illegal sentence as part of that bargain). Therefore, we reverse the order of the trial court as to the possession count and remand for the trial court to delete the habitual felony offender designation. We affirm the trial court’s denial of relief as to the convictions.

Affirmed in part; reversed in part; and remanded.

DAVIS and KELLY, JJ., Concur.


author: FULMER, Judge.

text:
    MALCO INDUSTRIES, INC., Appellant, v. FEATHEROCK HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D02-3476.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2003.

      J. Allen Bobo and Mary R. Hawk of Lutz, Webb, Bobo & Eastman, Sarasota, for Appellant.
    A. Dennis Pelaez, Tampa, for Appellee.
   FULMER, Judge.

This appeal arises from a dispute over the interpretation of a mediation agreement. Featherock Homeowners Association, Inc. (“the Association”), sought a declaratory judgment, on behalf of all homeowners occupying rental spaces at Featherock Mobile Home Park (“Feather-ock”), against the owner of the park, Mal-eo Industries, Inc. (“the Owner”). Both sides filed motions for summary judgment. The trial court construed the mediation agreement in the manner urged by the Association and, therefore, denied the Owner’s motion for summary judgment and granted the Association’s motion. We reverse the trial court’s order and remand with directions to enter judgment for the Owner because the Association lacked standing to bring the action.

Residents in Featherock own their mobile homes and lease lots from the Owner pursuant to annual lot rental agreements, which begin on January 1 and end on December 31 of each year. The landlord/tenant relationship is governed by chapter 723, Florida Statutes, the Florida Mobile Home Act. For the year 2001, the Owner increased the lot rent in Feather-ock and sent the homeowners statutory notice of the increase. Many of the homeowners objected to the increase. The dispute was resolved through a mediation proceeding conducted pursuant to section 723.038, Florida Statutes (2000). The homeowners were represented by a five-member committee that was designated by a majority of the homeowners in accordance with section 723.037(4)(a), Florida Statutes (2000).

The committee and the Owner executed a mediation agreement on January 3, 2001, in which the parties agreed upon the amount that lot rent would increase for existing homeowners each year for the years 2001, 2002, and 2003. Paragraph 3 of the agreement provided: “The rent limitations expressed herein are personal to existing residents and may not be assumed by resale purchasers except as provided in section 723.059(3) F.S.” In relevant part, section 723.059(3), Florida Statutes (2000), provides:

The purchaser of a mobile home who becomes a resident of the mobile home park in accordance with this section has the right to assume the remainder of the term of any rental agreement then in effect between the mobile home park owner and the seller.

The dispute below turned on the construction of paragraph 3 and the manner in which it applied to resale purchasers. The Owner argued that the mediation agreement specifically excluded resale purchasers from the benefits of the agreement except as to the resale purchaser’s statutory right under section 723.059(3) to assume the remainder of the seller’s rental agreement until its year end on December 31. The Owner also argued that the Association lacked standing to bring the action because the Association did not comply with the statutory prerequisite, set forth in section 723.037(1), Florida Statutes (2001), to obtain consent from a majority of the affected homeowners.

The Association argued that the mediation agreement was itself a rental agreement and that resale purchasers were permitted to assume the rent limitations for the remainder of the three-year period specified in the agreement. With respect to standing, the Association argued that as a duly formed mobile homeowners’ association, it has standing to “institute ... actions ... in its name on behalf of all homeowners concerning matters of common interest,” pursuant to Florida Rule of Civil Procedure 1.222.

In granting summary judgment for the Association, the trial court rejected the Owner’s standing argument and ruled “[t]hat this was a matter of ‘common interest’ and therefore the Plaintiff, under the Florida Rules of Civil Procedure, was entitled to bring this action.” We agree that the Owner’s standing argument founded on section 723.037 has no merit. However, we reverse the trial court’s ruling on standing because we also reject the trial court’s conclusion that the dispute concerned “a matter of common interest” sufficient to confer standing on the Association pursuant to rule 1.222.

Section 723.037, Florida Statutes (2001), addresses challenges to lot rental increases and provides in pertinent part in subsection one: “The homeowners’ association shall have no standing to challenge the increase in lot rental amount, reduction in services or utilities, or change of rules and regulations unless a majority of the affected homeowners agree, in -writing, to such representation.” The dispute below was not a challenge to “the increase in lot rental amount.” The homeowners resolved their challenge to the amount of the rent increases by entering into the mediation agreement. Therefore, section 723.037(1) does not control our resolution of the standing issue.

The Association’s standing is governed by rule 1.222, which provides, in part:

A mobile homeowners’ association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners concerning matters of common interest, including, but not limited to: the common property; structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving the park property; and protests of ad valorem taxes on commonly used facilities.

Only the homeowners who intended to sell their homes during the relevant three-year period had an interest in the controversy. Therefore, the dispute is of limited interest to all homeowners in the park and, as such, the Association is not the proper party to bring the action. And, to the extent that potential purchasers are affected, they cannot be represented by the Association. Accordingly, we reverse and remand for the trial court to enter summary judgment for the Owner.

Reversed and remanded with directions.

ALTENBERND, C.J., and CASANUEVA, J., Concur.

      . We decline to address the remaining issues raised by the Owner although it appears they may have merit.