author: KLEIN, J.

text:
    COMMUNITY HEALTHCARE CENTERONE, INC. (“CHC”) n/k/a Aids Project Florida, Commcare Pharmacy, Inc. (“Commcare”), and Patients 1 Through 32, Appellants, v. STATE of Florida, Appellee.
    Nos. 4D03-67, 4D03-670.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Rehearing Denied Sept. 3, 2003.

      Faith E. Gay, David Draigh and Carlos F. Gonzalez of White & Case, LLP, Miami, for appellant Community Healthcare Cen-terOne, Inc., (“CHC”) n/k/a AIDS Project Florida.
    Marc S. Nurik, Stephen H. Siegel and Todd I. Stone of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant Commcare Pharmacy, Inc., (“Commcare”).
    Emilio Benitez and Norman Kent, Fort Lauderdale, and Jonathan Givner, Pro Hac Vice, Lambda Legal Defense and Education Fund, New York, NY, for appellants Patients 1 through 32.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   KLEIN, J.

Petitioner Community Healthcare Cen-terone, Inc. (CHC) is a medical clinic in Fort Lauderdale which provides medical treatment to patients suffering from HIV and AIDS. Commcare Pharmacy, Inc. (Commcare) is a pharmacy which fills prescriptions primarily for patients being treated for HIV or AIDS and related conditions. In August 2002, the Office of Statewide Prosecutor executed search warrants charging criminal Medicaid fraud and seized the medical and pharmaceutical records of 134 patients from CHC and Commcare.

CHC, Commcare, and thirty-two patients appeal an order following a privacy hearing in which the court found that the state had demonstrated a compelling need, which outweighed the privacy interests of the patients, to review the records. CHC and Commcare also appeal an order denying a motion to quash a subpoena duces tecum. Both orders are reviewable as final orders. Transcall Am., Inc. v. Butterworth, 604 So.2d 1253 (Fla. 1st DCA 1992) and cases cited.

The appellants raise a number of issues which we need not address, because we conclude that neither a hearing nor a court order was necessary in order for the prosecutor to obtain access to these records.

The hearing was conducted under our HIV testing statute, section 381.004(3)(e), Florida Statutes (2002), which provides that, before anyone is allowed access to HIV test results, a court must find a compelling need after notice and an opportunity to be heard by the person tested. An “HIV test result” is defined very narrowly as a laboratory report or notation of such in a medical record. § 381.004(2)(b). The statute, if applicable, would cover few, if any, of these records. If a patient tells a health care provider the result of the test, it is not protected by the statute. Id.

Medicaid fraud, which was the subject of this criminal investigation, is addressed in Chapter 409, Florida Statutes. There are no provisions in Chapter 409 requiring a hearing before the state can review these medical records. The only authority cited for reading the requirement of our HIV testing statute into a Medicaid fraud investigation is Butterworth v. “X Hospital”, 763 So.2d 467 (Fla. 4th DCA 2000). That decision, we conclude, has been superseded by statutory changes.

“X Hospital” involved a Medicaid fraud investigative subpoena for patients’ records of a hospital providing mental health services. The issue was whether the attorney general could obtain mental health treatment records without a court order. Another statute, section 394.4615(2)(c), provided for release of mental health records only if a court found that the need for the records outweighed the possible harm of disclosure to the patient. We held that section 394.4615(2)(c) did apply to a Medicaid fraud investigation.

The 2000 legislature, however, made a number of statutory changes, providing specific provisions for accessing Medicaid patients’ records in order to investigate fraud. These changes became effective around the same time that this court issued its opinion in ‘X Hospital"; however, “X Hospital” was based on statutes in their 1997 form.

Chapter 2000-163, § 6, at 953, Laws of Florida, added the phrase “including medical records relating to Medicaid recipients” to section 409.920(8)(b). As a result, the statute addressed in its prior form in ‘X Hospital” now reads as follows:

(8) In carrying out the duties and responsibilities under this section, the Attorney General may:
(b) Subpoena witnesses or materials, including medical records relating to Medicaid recipients, within or outside the state ... and, through any duly designated employee, administer oaths and affirmations and collect evidence for possible use in either civil or criminal judicial proceedings, (emphasis supplied.)

Chapter 2000-163, § 1, at 952, Laws of Florida, added subsection (6) to section 394.4615, so that it now includes:

(6) Clinical records relating to a Medicaid recipient shall be furnished to the Medicaid Fraud Control Unit in the Department of Legal Affairs, upon request.

Chapter 2000-163, § 2, at 952, Laws of Florida, added subsection (4)(k) to section 395.3025, which we construed in ‘X Hospital”. It now reads:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to:
(k) The Medicaid Fraud Control Unit in the Department of Legal Affairs pursuant to s. 409.920.

Section 409.907(3)(e), entitled “Medicaid provider agreements,” requires Medicaid providers to permit the federal and state government and their agents to have access to all Medicaid related information including patient records. This provision did exist when we decided ‘X Hospital”, but it was not addressed.

There are no provisions in Chapter 409 requiring that a court order is necessary for the government to obtain access to a Medicaid recipient’s records in order to investigate Medicaid fraud. In light of the 2000 statutory changes, we conclude that a hearing is not required before a prosecutor can review these records for purposes of investigating Medicaid fraud. X Hospital has been superseded by the 2000 amendments.

Although it is unnecessary to our conclusion, we would add that we can discern no purpose to be served by requiring a court to hear from every patient before allowing these records to be reviewed in a Medicaid fraud investigation. It is well established that a criminal investigation is a compelling need to invade the right to privacy. Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). Nor would the patients need a court order to protect the confidentiality of records obtained by the state, because the state is required to prevent their use for any reason beyond the “specific investigation for fraud,” unless the patient consents. § 409.920(7)(f).

The only other issue we find it necessary to address is appellants’ argument that the Office of Statewide Prosecutor does not have jurisdiction to investigate. They rely on Article IV, section 4(b) of the Florida Constitution and section 16.56(l)(a), Florida Statutes, which give the statewide prosecutor power, generally speaking, only when more than one judicial circuit is involved in the crime. Appellants argue that they operate only in Broward County.

Section 409.920(7), Florida Statutes (2002), entitled “Medicaid provider fraud,” authorizes the attorney general to investigate Medicaid fraud and to refer violations to the statewide prosecutor. Although appellants may be correct in their assertion that the statewide prosecutor will only have the power to prosecute if more than one judicial circuit is involved, they have cited no authority which would support an inquiry into the prosecutor’s power at the investigative stage. Permitting such an inquiry could compromise the effectiveness of the investigation.

The subpoena, we note, seeks information as to transactions between appellants and other entities, which are not necessarily located in the same county as the appellants. And, as appellants acknowledge, they seek reimbursement in Leon County. Because there is no way to know, until the investigation is concluded and charges are filed, who will be prosecuted, or if crimes are alleged to have occurred in two or more judicial circuits, we affirm this issue without prejudice to appellants raising it if charges ensue.

We therefore affirm as to all issues raised by appellants but, in light of our conclusion that no hearing was necessary, remand for further proceedings consistent with this opinion.

WARNER, and SHAHOOD, JJ., concur.

      . The State has cited section 409.902, Florida Statutes, which provides:

        As a condition of Medicaid eligibility, subject to federal approval, the Agency for Health Care Administration and the Department of Children and Family Services shall ensure that each recipient of Medicaid consents to the release of her or his medical records to the Agency for Health Care Administration and the Medicaid Fraud Control Unjt of the Department of Legal Affairs.
      We have not relied on this provision because it did not become effective until January 2003, Ch.2002-400, § 15, Laws of Florida.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnathan SAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2993.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.

      James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 645 So.2d 386 (Fla.1994).

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


text:
    Marvin A. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-386.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Kohler, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Eric T. MULLINIX, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-437.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.
    Eric T. Mullinix, Greenwood, Indiana, Pro Se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Scholastic Book Fairs, Inc., Great Am. Div. v. Unemployment Appeals Comm’n., 671 So.2d 287 (Fla. 5th DCA 1996).

AFFIRMED.

THOMPSON, GRIFFIN, and MONACO, JJ., concur.


text:
    Webster Jean MACIUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2168.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.
    Webster Jean Macius, Mayo, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Edwards v. State, 830 So.2d 141 (Fla. 5th DCA 2002); Simpkins v. State, 784 So.2d 1203 (Fla. 2d DCA 2001).

AFFIRMED.

PALMER, MONACO and TORPY, JJ„ concur.


text:
    Jon STUMPF, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2371.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.
    Jon Stumpf, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Stumpf v. State, 677 So.2d 1298 (Fla. 5th DCA), cause dismissed, 684 So.2d 1352 (Fla.1996); Fla. R.Crim. P. 3.850(f).

SHARP, W., PLEUS and TORPY, JJ„ concur.


text:
    Bernard NAVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2597.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Bernard Nava, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Bernard Nava challenges the trial court’s denial of his rule 3.850 motion which was premised on newly discovered evidence. The trial court denied the motion as successive.

Nava’s previous motion did not present the same issue. Nava v. State, 801 So.2d 945 (Fla. 4th DCA 2001). Compare Wright v. State, - So.2d -, 2003 WL 21511313 (Fla. July 3, 2003). We affirm however because Nava’s motion is legally insufficient. Jones v. State, 591 So.2d 911, 916 (Fla.1991).

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


text:
    Abel TRAVIESO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4326.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Reversed and remanded.
    Abel Travieso, Talledega, AL, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant seeks review of an order striking his motion for post conviction relief and motion for rehearing filed in connection with pleas he entered in 1987 and 1996 cases. Noting their exact similarity to some twenty-four motions filed by seven other defendants incarcerated at the same federal correctional institution, the trial court determined both motions were fraudulent and struck them. We' find no authority under the Florida Rules of Criminal Procedure authorizing a court to strike a motion for post conviction relief as a sham pleading. We reverse for the reasons discussed in Mullins v. State, 850 So.2d 676 (Fla. 4th DCA 2003). On remand, the trial court shall rule on the motions.

FARMER, C.J., WARNER, and POLEN, JJ., concur.


text:
    Ekon AIRALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1925.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Ekon Airall, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ekon Airall seeks review of an order that dismissed his rule 3.850 as lacking a proper oath, and form. We accept the state’s concession and reverse and remand for the trial court to consider Airall’s properly filed motion. See Fla. R.Crim. P. 3.987.

GUNTHER, SHAHOOD and MAY, JJ., concur.


text:
    Jason HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2034.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Jason Hamilton, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Jason Hamilton appeals an order summarily denying his motion for post-conviction relief as untimely. Florida Rule of Criminal Procedure 3.850(b), provides that such motion must be filed within “two years after the judgment and sentence become final.” Appellant’s judgment and sentence became final upon issuance of this court’s April 16, 2001, mandate from the second appeal. Therefore, the motion filed in March 2003, was timely. Bostic v. State, 683 So.2d 1167 (Fla. 4th DCA 1996); Jones v. State, 602 So.2d 606 (Fla. 1st DCA 1992).

We reverse the order and remand the cause for further proceedings.

POLEN, TAYLOR and HAZOURI, JJ., concur.


author: VILLANTI, Judge.

text:
    Steven N. BROCKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1712.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Steven Brockman challenges his conviction for felony battery, asserting that the trial court failed to comply with the requirements of Florida Rule of Criminal Procedure 3.210(b) by not holding a proper competency hearing before trial. Because the record reflects that a hearing was required but not held, we reverse and remand for further proceedings.

On December 21, 2000, the State charged Brockman with felony battery based on an incident that occurred when he was a resident of a mental hospital. In January 2001 and June 2001, at Brock-man’s request, the trial court appointed experts to evaluate Brockman’s sanity at the time of the offense and his competency to stand trial. While these experts apparently memorialized their findings in reports, the experts’ reports were never filed or otherwise made available to the trial court.

On January 15, 2002, the first morning of trial, Brockman’s counsel raised the issue of Brockman’s competency to stand trial. Brockman’s counsel stated:

Your Honor, there was an issue as to competency and insanity. Three evaluations were done. One was completed on September 10th. Dr. Croll (phonetic spelling) indicated sane and competent. One in February by Dr. Kling indicated competent but insane. One done by Dr. Cowin in February who said sane and possibly incompetent to stand trial. So we have two competent, one incompetent and insane and two sanes.

Brockman’s counsel then told the trial court that he had been unable to “elicit enough from my client yesterday at the jail to go with any kind of a plea offer.” Based on his contact with Brockman the previous day, counsel told the trial court, “I am in a position where I do not feel that [Brockman] is competent to enter a plea in my opinion, but I’m not a doctor.”

Also in the courtroom at that time was Allison Kemper, Brockman’s licensed mental health counselor. She told the court that she had had weekly contact with Brockman for the past four months. She told the trial court that Brockman had been “refusing his psychotropic medication at the jail. So he has been un-medicated for quite some time.” She also told the court that Brockman “has indicated to me that he feels that his attorney is someone that he has met previously in a coffee shop in Missouri and that [defense counsel] has discussed with him some mind-reading experiments that [were] done in Roswell, New Mexico, things of that nature.” Kem-per further told the court that in her opinion, the experts’ reports concerning Brock-man’s competency were outdated and no longer reliable.

Rather than stopping the proceedings and scheduling a competency hearing, the trial court then engaged in a colloquy of sorts with Brockman:

THE COURT: Well, we can have a trial if I feel satisfied that you are competent to have a trial.
THE DEFENDANT: I think that, you know, I have said some things. I’m a writer, and I was misdiagnosed 24 years ago. I’ve got a seizure condition, and it’s quite common for someone to be diagnosed with a mental illness.
I have paperwork from Indiana showing that I was allergic with permanent long term dyschonatia (phonetic spelling) to the medication they were giving me at the Ruth Cooper Center.
I’ve been in custody for over almost 14 months, and I never should have been in the Ruth Cooper Center. So I’m here, thought I was here for a trial, and I really don’t have anything further to say.
THE COURT: Well, let’s talk about your competence for a minute. Do you feel like you know where you are today and what this is all about?
THE DEFENDANT: Yes, I know where I am, and I know what it’s about.
THE COURT: You’re charged with felony battery on a nurse at the Ruth Cooper Center, do you recognize the name of that charge?
THE DEFENDANT: Yes.
THE COURT: Do you feel that you’re satisfactorily capable of assisting this attorney in representing you in the course of a trial today?
THE DEFENDANT: Yes. I’m not sure I’m prepared. I haven’t been given an opportunity to prepare my case or to work with him. I mean, I was told I was going to be taken before a Judge for a competency hearing, and then I got a letter saying I was going to trial on January the 7th, and that was postponed until now.
I mean, I’m competent and I’m not guilty, and I just don’t know why I can’t get out of jail after almost 14 months.
THE COURT: Okay. Do you feel like you’re competent to assist Counsel here?
THE DEFENDANT: Yes, sir.

Immediately following this exchange, the trial court proceeded with jury selection, apparently having ruled sub silentio that Brockman was competent to stand trial. The jury found Brockman guilty as charged, and the trial court sentenced him to two years’ imprisonment followed by three years’ probation. Brockman now appeals his conviction and sentence.

Holding criminal proceedings when a defendant is mentally incompetent denies that defendant his constitutional right to a fair trial. Hill v. State, 473 So.2d 1253, 1259 (Fla.1985). The test used to determine a defendant’s competency to stand trial is whether the defendant has a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 1257 (emphasis omitted) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Once the issue of the defendant’s competency is raised, the question for the trial court to consider is “whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent.” Tingle v. State, 536 So.2d 202, 203 (Fla.1988) (quoting Scott v. State, 420 So.2d 595, 597 (Fla.1982)). If the trial court is presented with reasonable grounds to believe that the defendant may not have the sufficient present ability to consult with his attorney and aid in the preparation and presentation of his defense, the trial court must order a hearing and examination. See Hill, 473 So.2d at 1259; Fla. R.Crim. P. 3.210(b). A trial court’s independent investigation into the defendant’s competency is not sufficient to ensure that the defendant is not deprived of his due process right not to be tried while incompetent. Tingle, 536 So.2d at 203; Warren v. State, 543 So.2d 315 (Fla. 5th DCA 1989).

In this case, an objective evaluation of the facts presented to the trial court establishes that the trial court had more than reasonable grounds to believe that Brockman may have been incompetent to stand trial. The trial court was aware that Brockman had a twenty-year history of mental problems. In fact, the crime for which Brockman was being tried occurred while he was a patient in a mental facility. Brockman’s trial counsel questioned Brockman’s competency based on his interactions with Brockman at the jail the day before. In addition, Brockman’s licensed mental health counselor raised specific concerns about Brockman’s current competency in light of his refusal to take his medications. These facts and concerns raised reasonable grounds to believe that Brockman might have been incompetent. While we recognize that there are no “fixed or immutable signs that always” require a competency hearing, see Calloway v. State, 651 So.2d 752, 754 (Fla. 1st DCA 1995), under these circumstances, the trial court abused its discretion in not continuing the trial, scheduling a competency hearing, and ordering updated examinations of Brockman.

The State argues that the trial court’s colloquy with Brockman was- sufficient to establish that Brockman was competent and that the trial court was merely resolving disputed issues of fact as to Brock-man’s competence. We perceive three problems with this argument. First, while we agree that it is the trial court’s responsibility to resolve disputed fact issues when there is conflicting expert evidence on competency, see Mora v. State, 814 So.2d 322, 327 (Fla.2002), no conflicting evidence was presented in this case. From the record before this court, it does not appear that the experts’ reports were ever filed with the trial court or otherwise presented to it. Because these reports were not before the trial court, they cannot constitute either evidence or conflicting testimony. A trial court cannot resolve conflicts in the evidence when there is, in fact, no evidence before it.

Second, even if the experts’ reports were in evidence, they were simply too old to be relevant to a determination of Brockman’s competency to stand trial. The question of competence is whether the defendant has a sufficient present ability to consult with his attorney and whether the defendant has a present rational and factual understanding of the proceedings against him. Mora, 814 So.2d at 327 (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Even if a defendant has previously been declared competent, the trial court must hold another competency proceeding if a bona fide doubt is raised as to the defendant’s continued competence. Hunter v. State, 660 So.2d 244, 248 (Fla.1995); Martinez v. State, 712 So.2d 818, 821 (Fla. 2d DCA 1998).

In this case, from the limited references in the record, it appears that two experts evaluated Brockman’s competency to stand trial in February 2001. A third expert evaluated his competency in September 2001. However, Brockman’s trial did not begin until January 15, 2002. The reports from February 2001 and September 2001 did not speak to Brockman’s competence in January 2002. Moreover, even if the reports had some relevance, the information provided to the trial court by both defense counsel and Brockman’s licensed mental health counselor raised a bona fide doubt as to Brockman’s current competence, particularly in light of his refusal to take his medications. Because the experts’ reports, even if they were in evidence, would not have addressed this recent potential change in competence, the reports could not have overcome the necessity of a competency hearing prior to trial.

Third, the salient question in this appeal is not whether there was competent, substantial evidence from which the trial court could conclude that Brockman was competent to stand trial. See Rothman v. State, 442 So.2d 357, 359 (Fla. 1st DCA 1983). Rather, the question is whether the trial court had information that created reasonable grounds to believe that Brockman might be incompetent. Here, the statements of Brockman’s counsel and mental health counselor, combined with Brockman’s documented history of mental health issues, provided reasonable grounds to believe that Brockman might not be competent. Once reasonable grounds existed, the trial court was obligated to hold a competency hearing.

Had Brockman’s counsel simply made vague allegations of incompetence or provided the trial court with no support for his statements, we believe that the trial court could have properly conducted a colloquy with Brockman to determine whether reasonable grounds existed to believe that Brockman might not be competent. See Tingle, 536 So.2d at 204 n. 1 (noting that when an issue of competency is raised, the trial court may conduct its own investigation to determine whether reasonable grounds exist to believe that the defendant may be incompetent and whether the safeguards of rule 3.210 are warranted). However, when the information offered by defense counsel is sufficient. in and of itself to raise reasonable grounds to believe that the defendant may be incompetent, the trial court’s questioning may not substitute for the competency hearing required by rule 3.210. Id. Because in this case the information offered by Brock-man’s counsel was sufficient to raise reasonable grounds to believe that Brockman might be incompetent, the trial court’s colloquy did not discharge its obligations under rule 3.210.

Under the circumstances of this case, the trial court had an obligation to continue the trial, order an updated examination of Brockman, and schedule a competency hearing. The trial court’s failure to do so constituted an abuse of discretion. Because Brockman’s competence may not be determined retroactively, see Tingle, 536 So.2d at 204, we reverse his conviction and remand for a new trial contingent upon a determination that he is competent to stand trial.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


author: PLEUS, J.

text:
    Willie Homer KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3123.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    Joseph N. D’Achille, Jr., Titusville, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sean F. Callaghan Assistant Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Kimbrough appeals an order granting the state’s retardation involuntary admission petition. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

Kimbrough argues that the lower court erred by admitting into evidence his behavioral records under the business records exception to the hearsay rule. The state contends that the records were properly admitted under the public records exception. Our review of the hearing transcript leads us to conclude that the records were not properly admitted under either exception because the state’s predicate failed to establish that the records were generated by a person who had personally observed or had personal knowledge of the events depicted in the records. See §§ 90.803(6) and (8), Fla. Stat. (2002); Charles W. Ehrhardt, Florida Evidence § 803.8 (2002 ed.); King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991).

Despite the erroneous admission of the central records, the lower court’s order may still be upheld if the error was harmless. Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So.2d 1369 (Fla. 1st DCA 1993). “Only when it appears that such errors injuriously affect the substantial rights of the complaining party will a judgment be reversed.” Id. at 1372. The appellant must not only demonstrate error, but also prejudice from such admission. Id. In Forester, the appellate court found that improperly admitted hearsay reports were prejudicial because they conflicted with other evidence on a disputed issue in the case.

In the instant case, the evidence did not conflict. Although the state witnesses relied on the improperly admitted records, two defense witnesses also concluded that Kimbrough qualified for involuntary admission without relying on those records. Instead, they relied on several competency reports, which contained essentially the same factual information contained in the improperly admitted records. Consequently, Kimbrough has failed to establish he was prejudiced by the improperly admitted records because he elicited the same information and opinions through his own expert witnesses.

For the same reasons, we also reject Kimbrough’s argument that the involuntary admission order was not based on substantial competent evidence. Although the state’s evidence may have been insufficient due to its reliance on the improperly admitted central records, Kimbrough’s witnesses offered the same opinions and factual basis without relying on improperly admitted records. Instead, they relied on a series of competency reports in forming their opinion. One of these reports, dated November 12, 2001, recites not only the violent acts alleged against Kimbrough in this case, but also his history of fighting in school and jail, and his violent conduct in the competency program. One of Kim-brough’s experts testified that an earlier November, 2000 competency report “specifically comments on Mr. Kimbrough being a major behavioral problem, having attacked staff and clients, exhibiting inappropriate sexual behavior, threatening staff and clients and being noncompliant with direction.”

This evidence included essentially the same factual information testified to by the state’s witnesses and relied on by the lower court. It paints a clear picture of Kim-brough’s longstanding violent behavior toward others and his lack of rehabilitation. We conclude it was sufficient to sustain the lower court’s order.

We reject Kimbrough’s analogy to Baker Act proceedings. He cites several cases dealing with proceedings under section 394.467 Florida Statutes, not section 393.11. These cases are not controlling because these statutes have different elements of proof. Section 394.467(l)(a)2.b. requires evidence proving a “substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm. ” (Emphasis added). Section 393.11(8)(b)3.b., on the other hand, only requires proof that the person is “likely to physically injure others if allowed to remain at liberty.” (Emphasis added).

Further, unlike many of the cases cited by Kimbrough, (e.g., In re Beverly, 342 So.2d 481 (Fla.1977); Smith v. State, 508 So.2d 1292 (Fla. 1st DCA 1987)), there were no conflicting opinions or evidence presented regarding Kimbrough’s qualification for involuntary admission. All of the state and defense experts relied on essentially the same factual information, as well as personal observations, and all concluded that Kimbrough should be involuntarily admitted. The lack of conflicting evidence certainly made the case against Kimbrough more compelling.

While the lower court erred in admitting Kimbrough’s central records, we find the error to be harmless. Accordingly, we affirm.

AFFIRMED.

SHARP, W. and PALMER, JJ„ concur.


author: SALCINES, Judge.

text:
    Diane KLARIDES, Appellant, v. Haydee V. MAHER, Appellee.
    No. 2D02-562.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
    Troy J. Iannucci of Latour & Associates, P.A., Tarpon Springs, for Appellant.
    Nina M. Hanson of Law Offices of Howard W. Weber, Tampa, for Appellee.
   SALCINES, Judge.

Diane Klarides brought an action against Haydee V. Maher for negligent operation and control of a motor vehicle arising out of a rear-end collision. The trial court entered a final summary judgment in favor of Ms. Maher on the issue of liability. We reverse.

Ms. Klarides was traveling north on South MacDill Avenue as she approached the intersection of South MacDill and Bay-to-Bay Boulevard. At that intersection there was a three-lane division of South MacDill controlled by a traffic light. The signage at this intersection indicated that the left lane was designated as a left turn lane, the center lane was designated as a straight-through lane, and the right lane was a right turn only lane. As Ms. Klar-ides approached the intersection, she proceeded to the center lane behind Ms. Maher. The traffic light was red, and Ms. Maher’s vehicle was already stopped ahead of Ms. Klarides. The left turn indicator on Ms. Maher’s vehicle was blinking.

The traffic light changed to green and a green arrow was activated for the left turn lane. Ms. Maher moved some distance forward into the intersection of South MacDill and Bay -to-Bay and waited for the traffic in the designated left turn lane to clear the intersection so she could turn left. Ms. Klarides waited for Ms. Maher to make way so she could continue straight through the intersection. Ms. Klarides’ vehicle was then hit from behind by a third vehicle which propelled Ms. Klarides’ vehicle into Ms. Maher’s vehicle.

There is a presumption in Florida law that when a vehicle has been hit from the rear, the driver of the rear vehicle was negligent. If the driver of the rear vehicle can provide a “substantial and reasonable explanation” as to why he or she was not negligent, the presumption vanishes. Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla.2001) (quoting Jefferies v. Amery Leasing, Inc., 698 So .2d 368, 370-71 (Fla. 5th DCA 1997)).

In the present case, Ms. Klarides provided the court with a substantial and reasonable explanation which negated the presumption of negligence on her part. Testimony was presented demonstrating that Ms. Maher was in the process of making an illegal left turn when Ms. Klar-ides’ vehicle was hit from behind and pushed into Ms. Maher’s vehicle. See § 316.151(l)(b), Fla. Stat. (1999).

On appeal, this court conducts a de novo review of a trial court’s determination that there were no genuine issues of material fact and its entry of a final summary judgment. Menendez v. The Palms W. Condo. Assoc., 736 So.2d 58, 60-61 (Fla. 1st DCA 1999). Because Ms. Klarides rebutted the presumption that she was negligent when her vehicle hit the rear of Ms. Maher’s vehicle, the question of negligence became a disputed issue of material fact and the trial court erred when it entered an order determining that Ms. Maher, as defendant, was entitled to a summary judgment as a matter of law. Accordingly, we reverse the trial court’s final summary judgment and remand this case for further proceedings.

Reversed and remanded.

KELLY and CANADY, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Joseph WALLENT, Appellant, v. FLORIDA POWER CORPORATION; Dunedin Electric Co., Inc.; and Serendipity Mobile Homeowners, Inc., Appellees.
    No. 2D01-4336.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2003.
    Hendrik Uiterwyk of Abrahamson & Ui-terwyk, Tampa; and Ralph O. Anderson and Gary A. Magnarini of Hicks, Anderson & Kneale, P.A., Miami, for Appellant.
    Richard J. McCrory, St. Petersburg; and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellee Florida Power Corporation.
    No appearance for Appellees Dunedin Electric Co., Inc., and Serendipity Mobile Homeowners, Inc.
   ALTENBERND, Chief Judge.

Joseph Wallent appeals a judgment entered in his favor in a personal injury action against Florida Power Corporation. Mr. Wallent argues that he was entitled to a directed verdict on the issue of comparative negligence and that the jury was required to return a larger award for future medical expenses. After a full review of the record, we reject his second argument. However, we find merit in his claim that the trial court improperly submitted the issue of comparative negligence to the jury. We reverse the judgment and require entry of judgment on the verdict without a reduction for comparative negligence.

Mr. Wallent sued both Florida Power and Serendipity Mobile Homeowners, Inc. (Serendipity), the owner of a mobile home park, for injuries he sustained when electric wires in an outdoor main circuit breaker box shorted as he was attempting to open the door to the box. He was opening the box to reset the main circuit breaker in order to restore power to his friend’s mobile home. He maintained that the accident happened as a result of a bad splice in the power line inside the circuit breaker box. He claimed that either one or both defendants were responsible for the defective splice.

Florida Power raised the defense of comparative negligence. At the close of the case, the trial court reserved ruling on Mr. Wallent’s motion for a directed verdict on this issue. The jury found in favor of Serendipity. It found against Florida Power, which, as an electrical utility, had the highest duty of care commensurate with the circumstances. See Fla. Power & Light Co. v. Brinson, 67 So.2d 407, 410-11 (Fla.1953); Fla. Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 915 (1938). The jury awarded total damages of $80,466.60, including $18,399.00 for future medical expenses to cover a six-year period. However, the jury found that Mr. Wallent was ninety percent comparatively negligent. Ultimately, after denying post-trial motions, the trial court entered judgment against Florida Power on this verdict for a total award to Mr. Wallent of approximately $8,000.00.

At trial, Florida Power presented no witnesses during its case and introduced only a few photographs of the electrical circuitry and mobile home. To establish comparative negligence, it relied primarily on cross-examination. Florida Power argued that Mr. Wallent was negligent either because he had pulled too hard on the box when he attempted to open it or because he was elderly and inexperienced and should not have opened the door to a standard circuit breaker box in order to flip the switch on the circuit breaker. It is noteworthy that the expert hired by Serendipity admitted that Mr. Wallent had not done anything improper and that the electrical short could have been caused by a very slight movement of the pedestal. Florida Power bore the burden of proof on this affirmative defense, see Hough v. Menses, 95 So.2d 410 (Fla.1957), and we conclude that it failed in that proof.

The evidence that relates to the issue of comparative negligence can be explained in greater detail as follows: In December 1997, Mr. Wallent was seventy-nine years old and lived in a rented mobile home in the Serendipity Mobile Home Park in Clearwater, Florida. His good friend, Johanna Downs, lived in another rented mobile home a few blocks away in the same park. On December 30, the night before the incident, Mr. Wallent and Ms. Downs were watching television in her mobile home at approximately 8 p.m. when the power went out.

Mr. Wallent and Ms. Downs did not know how to restore power to the mobile home, so Ms. Downs called Florida Power Corporation. Ms. Downs testified that a representative of Florida Power told her to check the main circuit breaker inside the mobile home. They checked this breaker, but it had not tripped and was still in the on position. Ms. Downs reported this information to the Florida Power representative, who suggested that Ms. Downs go outside and cheek the main circuit breaker. Ms. Downs explained that she was elderly and asked for help. Although Florida Power was not contractually obligated to send someone to reset the outside circuit breaker, the representative made arrangements for someone to go to the mobile home.

A few minutes later, a Florida Power employee arrived in a truck. He went to a “pedestal” outside the mobile home. The pedestal was described as a grounded rectangular metal box with an interior that is divided in half from front to back. One half, the “supply side,” was closed and protected and, as its name implies, received electrical supply from Florida Power through insulated underground wires. The other half of the pedestal, the “load side,” contained an electrical meter above the main electrical circuit breaker for each mobile home. The main circuit breaker on the load side was accessible by an unlocked small metal door that opened upward. The door featured a small metal catch at the bottom that allowed the door to stay closed when not locked. Once the door was opened, this side of the cabinet contained a typical switch to control a main circuit breaker. The Florida Power employee opened this door and restored power to the mobile home. Mr. Wallent was unable to see what the Florida Power employee did to the circuit breaker. . Mr. Wallent then inquired what to do if this should happen again, and the employee told him to use a pair of pliers to open the door and simply reset the switch.

On the next night, which was New Year’s Eve, the two elderly people were again watching television when the lights went out. Mr. Wallent put on some gardening gloves and went out to the pedestal to reset the switch. As he was pulling on the pedestal door to lift it open and before it opened, electrical wires in the supply side of the box shorted to ground. Mr. Wallent was not shocked, but the electrical explosion from the short caused him to fall or be thrown backward. Unfortunately, he broke his wrist and hip, requiring him to undergo hip replacement surgery.

Examinations of the pedestal following this accident established that a defective splice in the electrical wire enclosed in the supply side of the pedestal was responsible for the incident. The wires became hot at the splice and essentially melted the insulation in that area. Eventually the wire insulation deteriorated, exposed the wires, and caused a short circuit. There was considerable dispute at trial as to whether this defect was the fault of a Florida Power employee or some other electrician. However, no one suggested that Mr. Wal-lent knew or had any reason to know that the wire in the secured and protected supply side of this pedestal was defective. These wires and the splice were not visible to Mr. Wallent and would not have been visible even if he had successfully opened the door.

It was undisputed that this elderly man must have triggered the accident by moving or wiggling the pedestal while attempting to open the door. No one, however, testified that the pedestal was loose after the incident or that it appeared to have been damaged by Mr. Wallent. The Florida Power employee who repaired the splice on January 1, 1998, testified diming Mr. Wallent’s case. He did not testify that the pedestal had been misused by Mr. Wallent. Mr. Wallent’s age and health would not support a theory that he had applied excessive force in attempting to open the pedestal door. As stated earlier, Serendipity’s expert admitted that Mr. Wallent had not done anything improper and that the electrical short could have been caused by a very slight movement of the pedestal. Mr. Wallent’s expert concurred in that opinion. Florida Power simply presented no evidence that Mr. Wallent abused this pedestal or used anything other than normal force to open the door.

Concerning Florida Power’s suggestion that an elderly person inexperienced with electricity is negligent if he attempts to open the door to a circuit breaker box, it is important to understand that Mr. Wallent was not trying to open the Florida Power supply side of the pedestal. He was attempting to open the load side door containing the switch designed to allow residents to turn on, off, or reset the main circuit breaker for the mobile home. This circuit breaker box is similar to the electrical box on the outside of most homes or, for that matter, the circuit breaker box located inside most homes. There are no warnings on the load side of the circuit box stating that it should be opened only by electricians. It is not a restricted portion of the electrical circuit, but a grounded box with a switch that is designed to be safe for homeowners to use for the intended purpose of controlling the main circuit breaker. Thus, there was no evidence that Mr. Wallent breached any standard of care when he attempted to open this box to reset the circuit breaker.

We are cognizant of the dangers inherent in electricity. However, we see no justification for a rule in negligence law that would require homeowners, especially retired people, to hire an electrician every time they needed to reset or turn on or off a main circuit breaker. Florida Power presented no evidence that would support the creation of such a legal standard of care. Nothing in the evidence supports a theory that Mr. Wallent knew or should have known of any danger associated with his effort to open the door to the circuit breaker box.

A motion for directed verdict should be granted when there is no evidence or reasonable inferences upon which a jury could legally predicate a verdict in favor of the nonmoving party. See Whiteaker v. Gilreath, 734 So.2d 1105 (Fla. 2d DCA 1999); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978); see also Fla. Ass’n of Workers for the Blind, Inc. v. Guillaume, 618 So.2d 275, 276 (Fla. 3d DCA 1993). This was a case in which a directed verdict was required, and the trial court should reenter judgment in favor of Mr. Wallent without a reduction for comparative negligence. See Guillaume, 618 So.2d at 276; Borenstein v. Raskin, 401 So.2d 884, 886 (Fla. 3d DCA 1981); see also Ramos v. Ambu-Car of Dade County, Inc., 627 So.2d 1255 (Fla. 3d DCA 1993).

Mr. Wallent also argues that the jury was compelled to award a larger award of future medical damages and that he was entitled to a directed verdict on this element of damage. Although the cost of a second hip replacement was not disputed, the jury was free to determine that Mr. Wallent would not require such additional future medical treatment during his six-year life expectancy. Accordingly, we find no error in the trial court’s decision to deny a directed verdict on this element of damage.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and DAVIS, JJ., Concur.

      . The outside circuit breaker is on the customer’s side of the electric meter. If the circuit breaker needed repair, Florida Power would not be responsible for that repair.

      . The identity of this employee was never discovered, and he did not testify. Florida Power, however, did not dispute that one of their employees did restore power on the first evening.

      . There was also considerable cross-examination about whether Mr. Wallent used pliers when opening the box. No one testified, however, that the use of pliers played any role in this accident.


author: BROWNING, J. KAHN, J.,

text:
    Paula Marie GAETANI-SLADE, Appellant, v. Michael Stephen SLADE, Appellee.
    No. 1D02-2958.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.

      Pamela A. Schneider, of Wershow and Schneider, P.A., Gainesville, for Appellant.
    No Appearance, for Appellee.
   BROWNING, J.

Paula Marie Gaetani-Slade (Appellant) appeals portions of an amended final judgment dissolving her marriage to Michael Stephen Slade (Appellee). Appellant contends that the trial court erred in fading to acknowledge and value Appellee’s retirement benefits in its decree and abused its discretion in several material respects relating also to Appellee’s non-marital real estate, to the denial of attorney’s fees and costs, and to the classification and distribution of certain tangible personal property, including an award to her of $5,000.00 in furniture and furnishings that she, in fact, did not have. Those portions of the amended final judgment dissolving the parties’ marriage, designating Appellant as the primary residential parent, and awarding child support and related items are affirmed. However, concluding that the amended final judgment lacks sufficient factual findings, as required by section 61.075(3), Florida Statutes (2000), to allow meaningful appellate review of the issues raised by Appellant, we reverse the equitable distribution scheme and the denial of attorney’s fees and costs and remand with instructions to the trial court to set out findings of fact to support its rulings. The trial court may receive any additional evidence deemed necessary for the proper resolution of the issues.

After living together for about two years, the parties were married in July 1993. One child, a daughter, was born in February 1997. At approximately the same time as the parties’ separation in June 2000, Appellant petitioned to dissolve the marriage. She sought, inter alia, alimony, primary residential custody of the child, child support, an equitable distribution of assets and liabilities, attorney’s fees and costs, and certain of her own non-marital assets. Appellee answered and counter-petitioned seeking, inter alia, child custody and support, certain personal and real property (including the marital residence) alleged to be non-marital, and an equitable distribution of assets and liabilities.

The amended final judgment designated Appellant as the primary residential parent and awarded frequent and liberal visitation to Appellee. The court designated 11-1/2 acres of real property (including the marital residence and a barn) as nonmari-tal, with a $175,000.00 value, and awarded it to Appellee, subject to a $60,000.00 mortgage. The division of marital assets and liabilities (furniture/furnishings from the marital home, two motor vehicles, a stock trailer, a tractor, livestock, a VALIC loan, Sears debt, and Appellant’s personal family property) was admittedly unequal, with the court noting that Appellee is responsible for “significant net debt.” Alimony was denied based on the relatively short duration (8 years) of the marriage and the finding that Appellant is able to maintain the standard of living established during the marriage. Under the child-support guidelines, the parties’ respective net monthly incomes were found to be $2,678.00 (Appellee) and $1,383.00 (Appellant). Appellee was ordered to pay child support in the amount of $550.00 monthly beginning July 1, 2002. He was ordered to maintain health insurance coverage for the parties’ child and to pay her medical, dental, and prescription drug costs without any contribution from Appellant. The parties were ordered to pay his or her own attorney’s fees and costs.

Appellee’s Retirement Benefits

At the dissolution trial, Appellee testified that for the duration of his employment there, he had had a retirement plan at Shands, where he worked as a construction foreman. Section 61.075(5)(a)4., Florida Statutes (2000), defines “marital assets and liabilities” to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.” Such vested and nonvested benefits, rights, and funds accrued during the marriage in retirement and other such plans and programs “are marital assets subject to equitable distribution.” § 61.076(1), Fla. Stat. (2000); Crockett v. Crockett, 708 So.2d 329 (Fla. 1st DCA 1998). Appellant sought one-half of that portion of Appellee’s retirement that was accumulated during the marriage.

The parties in a dissolution of marriage action have an obligation “to present evidence of the existence and value of marital assets and the existence and balances due of marital debts in order for the court to include them in the final judgment.” Mobley v. Mobley, 724 So.2d 697, 697 (Fla. 5th DCA 1999). Toward that end, Florida Family Law Rule of Procedure 12.285(d)(10) states, in pertinent part:

(d) Parties’ Disclosure Requirements for Initial or Supplemental Proceedings. A party shall serve the following documents in any proceeding for an initial or supplemental request for permanent financial relief, including, but not limited to, a request for ... equitable distribution of assets or debts ...:
(10) The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan ... in which the party is a participant or alternate payee and the summary plan description for any retirement, profit sharing, or pension plan in which the party is a participant or an alternate payee. (The summary plan description must be furnished to the party on request by the plan administrator as required by 29 U.S.C. § 1024(b)(4).)

“The burden of proof is on the spouse who wishes to show that an asset or liability acquired during the marriage is not a marital asset.” Deas v. Deas, 592 So.2d 1221, 1222 (Fla. 1st DCA 1992). At the trial, Appellant’s attorney noted that Appellee would have to provide sufficient information about Appellee’s retirement plan to allow the trial court to valúate it. Appel-lee’s October 19, 2000, affidavit, filed on November 13, 2000, did not include his retirement plan as an asset. Nothing in the record before us indicates that Appel-lee complied with the disclosure requirements of Rule 12.285(d)(10). Appellant contends that the trial court reversibly erred in failing to identify Appellee’s retirement benefits as a marital or non-marital asset, to valúate the retirement, and to account for it in any manner in the equitable distribution scheme. We agree that this omission compels reversal. § 61.075(3), Fla. Stat. (2000) (providing, in any contested dissolution action where no stipulation and agreement has been entered and filed, that any distribution of marital assets or marital liabilities must be supported by factual findings based on competent substantial evidence referring to enumerated factors in statutory subsection (1)); Moon v. Moon, 594 So.2d 819 (Fla. 1st DCA 1992). Statutory sub-subsections (3)(a) and (b) provide that “[t]he distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific factual findings” regarding “[c]lear identification of nonmari-tal assets and ownership interests” and “[identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset.” The trial court is instructed on remand to make these required findings regarding Appellee’s retirement benefits and to explain the distribution thereof in accordance with the statutory requirements and the guidelines set forth in Moon, 594 So.2d at 821.

Marital Enhancement of Appellee’s Nonmarital Real Estate

Next, Appellant asserts that the trial court abused its discretion by finding there was no marital enhancement of Ap-pellee’s nonmarital real estate, rendering the property not subject to equitable distribution. § 61.075(1), Fla. Stat. (2000). Section 61.075(5)(a)2., Florida Statutes (2000), defines “marital assets and liabilities” to include “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” See Pleas v. Pleas, 652 So.2d 435 (Fla. 1st DCA 1995). Before the parties’ marriage, Appellee owned about 11-1/2 acres, including a house and a barn. He testified that the house became the marital residence. There was conflicting evidence concerning when the house, an eight-stall barn, and fencing were completed; to what extent renovations, additions, and other improvements were made to the property; and how much of whose money was used to complete the projects. At the very least, the testimony of Appellee and his witnesses established that extensive renovations of the home occurred during the marriage. Appellant testified that she had contributed “some monies” to the building projects when she first moved in, before the marriage; and that $20,000.00 received from her family after the parties married was put in the bank and used to improve the marital home. On the other hand, Appellee testified that the house and barn were completely built and the fencing installed by the time he and Appellant began living together before their marriage. The appraised value of the house and acreage was $47,500.00 when the parties married. Assuming that figure represented about 80% of the actual value, Appellant argued that the real value of the entire property then was about $60,000.00. The parties agreed that as of the petition filing date, the property was worth $175,000.00. In 1993, the parties obligated themselves to pay a home mortgage in the amount of $73,733.77, the balance of which was $60,000.00 by the time the petition for dissolution was filed.

Marital funds used to pay down the mortgage and to enhance the value of non-marital property create a marital interest in the property that is subject to equitable distribution. Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001); Dyson v. Dyson, 597 So.2d 320, 324 (Fla. 1st DCA 1992). Appellee testified that the money used to make mortgage payments during the marriage came from his salary and overtime earnings, not from wedding gifts or other sources. In contrast, Appellant testified that she had contributed some monies, about $1,200.00, toward payment of the mortgage before the marriage. She testified also that she had taken out a $3,500.00 loan against the VALIC account to put into the marital residence.

In its amended final judgment, the trial court found there was “no evidence presented” from which it could determine whether any appreciation in the property’s value occurred and, if so, whether it was due to Appellant’s contributions. Appellant contends that the diminution in the mortgage balance, along with the significant home and barn improvements, are competent substantial evidence that the value of Appellee’s nonmarital real estate was enhanced by the expenditure of man-tal funds, marital labor, and her nonmari-tal funds. She asserts also that the amount of that enhancement from other sources cannot be ascertained. Citing Jahnke v. Jahnke, 804 So.2d 518 (Fla. 3d DCA 2001), Appellant notes that once a non-owner spouse establishes that marital labor or funds were used to improve a home that was nonmarital, the owner-spouse has the burden to show which parts are exempt. See Adkins v. Adkins, 650 So.2d 61, 68 (Fla. 3d DCA 1994) (on reh’g). If the trial court intended to reject Appellant’s testimony regarding her alleged contributions to the improvement of the real property or to the mortgage payments, then it must make sufficient findings of fact to satisfy the equitable distribution statute and to permit meaningful appellate review. Otherwise, Appellant’s testimony constituted competent substantial evidence, so as to shift the burden to Appel-lee, according to Jahnke and Adkins, to show the amount of the enhanced value attributable to passive appreciation. Ap-pellee failed to assume that burden. Under either scenario, additional findings are needed, and the trial may consider any additional evidence that will allow it to render such findings.

Attorney’s Fees and Costs

In her petition for dissolution, Appellant requested attorney’s fees and costs. In pertinent part, section 61.16, Florida Statutes (2000), states that “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter.” “[A] trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay fees and the other spouse’s need to have fees paid.” Perrin, 795 So.2d at 1024; Hammond v. Hammond, 801 So.2d 988 (Fla. 1st DCA 2001).

In a November 2000 order for temporary relief, a different trial judge ordered Appellee to pay a portion ($563.05) of Appellant’s attorney’s fees and costs. In the amended final judgment, without making any supporting factual findings regarding the parties’ respective financial need and ability to pay attorney’s fees and costs, the trial court held each party responsible for payment of his or her own attorney’s fees and costs. Appellant contends that given the significant disparity in the parties’ incomes, the denial of fees and costs without findings of fact constitutes reversible error. See id. at 989.

In his October 2000 financial affidavit, Appellee listed his 1999 gross income as $42,500.00. He reported his monthly income as $2,597.24 (gross) and $1,807.85 (net). He listed total monthly expenses as $2,732.00, resulting in a $924.15 monthly deficit. He listed total net worth as $123,750.00 ($200,000.00 in assets minus $76,250.00 in liabilities). Appellant’s May 2002 amended financial affidavit listed her occupation as a broker with Bankers Life & Casualty and reported her annual income as $25,000.00. She reported monthly income as $2,083.33 (gross) and $1,576.70 (net). She listed total monthly expenses as $1,850.00, resulting in a $273.30 monthly deficit. She listed total net worth of $135,445.00 ($217,125.00 in assets minus $81,680.00 in liabilities). Because the basis for denying Appellant’s request for attorney’s fees and costs is not self-evident from the record, we reverse the denial of fees and costs and direct the trial court to make findings to explain its ruling. Hyatt v. Hyatt, 672 So.2d 74 (Fla. 1st DCA 1996); Hammond, 801 So.2d at 989.

Classification and Distribution of Certain Nonmarital Tangible Personal Property

Section 61.075(1), Florida Statutes (2000), requires a trial court to “set apart to each spouse that spouse’s nonmarital assets and liabilities.” Pridgeon v. Pridgeon, 632 So.2d 257, 260 (Fla. 1st DCA 1994). Appellant testified without contradiction that when she left the marital residence, she took none of Appellee’s things and only the nonmarital antique furniture and jewelry she had inherited from her grandmother, plus certain marital items (including an entertainment center) worth a total of approximately $2,000.00. She presented unrefuted testimony that what she had left in the marital home were marital items (including a bedroom set) worth $4,000.00-$5,000.00. Appellant testified that she had asked for, but left at the residence, certain other personal belongings of hers, including her wedding dress, some Disney figurines, and her grandmother’s heirloom mirror. Appellee testified he had no problem giving Appellant these personal items. The amended final judgment designated “miscellaneous” items, including the wedding dress, figurines, and mirror, as “marital assets” and placed an “X” in Appellant’s column of distributed items but did not give them a value. The court also gave a $10,000.00 value to unnamed “furniture and furnishings” from the marital residence purportedly already in Appellant’s or Appellee’s possession, and a 50-50 division was made. To the extent that the trial court considered Appellant’s nonmarital tangible personal property as marital assets subject to an equitable distribution, it erred. Id. at 259. Also, the attribution of $5,000.00 of marital assets to Appellant in the form of furniture and furnishings supposedly already in her possession is unsupported by competent substantial evidence and constitutes an abuse of discretion. Because the errors set forth herein affect the entire distribution plan, we reverse the entire property distribution scheme. Moon, 594 So.2d at 823.

We AFFIRM the dissolution of the parties’ marriage, the designation of Appellant as the primary residential parent, and the award of child support and related items, REVERSE the equitable distribution scheme and the denial of attorney’s fees and costs, and REMAND with directions to the trial court to make appropriate findings of fact to explain its rulings.

VAN NORTWICK, J., CONCURS; KAHN, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

KAHN, J.,

concurring in part and dissenting in part.

I agree with and concur in the majority’s decision to return this matter to the trial court for further proceedings with regard to an appropriate equitable distribution of marital assets. More than likely, as a result of our remand, appellant will gain entitlement to a share of appellee’s retirement plan because, not only did the trial court fail to distribute the marital portion of this plan, it failed to even identify any portion of the plan as a marital asset. I am unpersuaded, however, that the trial court abused its discretion by requiring the parties to bear their own expenses for attorney’s fees. According, I respectfully dissent from that portion of the opinion that reverses and remands for further proceedings on the appellant’s entitlement to attorney’s fees.


text:
    Derrick CHARLESTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-48.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.

      Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Gibson v. State, 721 So.2d 363 (Fla. 2d DCA 1998).

ERVIN, BARFIELD and ALLEN, JJ., concur.


text:
    ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., and Manasota-88, Inc., Appellants, v. STATE of Florida, and David Struhs, Secretary, Department of Environmental Protection, Appellees.
    No. 1D03-1302.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    David G. Guest and Aliki Moncrief, Tallahassee, for appellants.
    David A. Ludder of Legal Environmental Assistance Foundation, Inc., Tallahassee; Dan Hendrickson, Tallahassee; Curt Levine of Mutch & Levine, P.A., Gaines-ville, for amici curiae Sierra Club, Inc., et al.
    Thomas M. Beason, Chief Deputy General Counsel, Department of Environmental Protection, for appellee David Struhs.
    Stephen H. Grimes and Lawrence E. Sellers, Jr., of Holland & Knight, LLP, Tallahassee for amicus curiae Florida Home Builders Association.
   PER CURIAM.

Appellants seek review of an order of the circuit court dismissing their complaint for declaratory and injunctive relief, in which they alleged that chapter 2002-261, Laws of Florida, violates the single subject requirement of the Florida Constitution. We conclude that as argued by appellee Struhs, the appeal has been rendered moot by the enactment of chapter 2003-25, Laws of Florida, which took effect on July 1, 2003, and reenacted the provisions of chapter 2002-261 as part of the legislature’s biennial readoption of the Florida Statutes. See generally Tormey v. Moore, 824 So.2d 137 (Fla.2002)(stating general rule that a single subject violation is cured upon biennial readoption of the Florida Statutes).

Appellants argue that dismissal on this basis would be premature because under section 1 of chapter 2003-25, reenactment “shall take effect immediately upon publication” of the 2003 version of Florida Statutes, and such publication has not yet occurred. However, that same language has been used in prior reenactment acts, and those acts have been construed to make reenactment effective as of the date on which the act became law. See, e.g., Trapp v. State, 760 So.2d 924 (Fla.2000); Tormey v. Moore, supra; State v. Johnson, 616 So.2d 1 (Fla.1993). Consistent with these decisions, we hold that the reenactment of chapter 2002-261 took effect on July 1, 2003, thereby curing any single subject defect. Moreover, while it is true that appellants initiated their challenge during the window period for raising a single subject claim, they have failed to articulate any practical purpose that would be served by allowing this appeal from the denial of declaratory and injunctive relief to continue now that the window period has closed. Accordingly, we conclude that this appeal is moot, and dismiss it on that basis.

APPEAL DISMISSED.

ALLEN, KAHN and DAVIS, JJ., concur.


text:
    Eugene Gottfried MEIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0219.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Eugene G. Meier, petitioner, pro se.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Upon consideration of the special master’s second amended report and recommendation, the petition seeking a belated appeal of the judgment and sentence imposed on August 12, 2002, in Okaloosa County Circuit Court case numbers 2002-CF-506 and 2002-CF-685, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(e)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ALLEN, KAHN and DAVIS, JJ., concur.


text:
    Kristy JOHNSON, Appellant, v. STATE of Florida, Commission on Ethics, Appellee.
    No. 1D02-2841.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Appellant, pro se, of Carlton Fields, P.A., Tallahassee.
    Peter D. Ostreich, Staff Attorney, and Philip C. Claypool, General Counsel, Commission on Ethics, Tallahassee, for Appel-lee.
   PER CURIAM.

We decline to reach the merits of Kristy Johnson’s appeal from an advisory opinion of the Florida Commission on Ethics, because we conclude that her challenge, based upon application of the two-year representation bar of section 112.313(9)(a)4, Florida Statutes (2001), is now moot. Without prejudice to Johnson’s right to appeal later from an order of the Commission upon an adequate showing of injury, we DISMISS this appeal as moot.

ERVIN, BARFIELD and ALLEN, JJ., concur.


author: PER CURIAM. WOLF, C.J.,

text:
    Duane E. OWEN and Brandy B. Jennings, Appellants, v. Michael MOORE, Secretary of Florida Department of corrections, and State of Florida, Appellees.
    No. 1D01-3006.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Duane E. Owen, pro se; and Brandy B. Jennings, pro se.
    Charlie Crist, Attorney General; Robert P. Elson, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

We reverse the dismissal of appellants’ complaint. Pursuant to our ruling in Osterback v. Turner, 837 So.2d 604 (Fla. 1st DCA 2003), the trial court erred in dismissing the complaint prior to adjudicating the inmate to be indigent.

ERVIN and BENTON, JJ., Concur; WOLF, C.J., Dissents with opinion.

WOLF, C.J.,

Dissents.

While the trial court did not follow the law, any error was harmless. Pursuant to § 59.041, Fla. Stat. (2002), no judgment shall be set aside or reversed for any error as to any matter of pleading or procedure, unless it appears that such errors injuriously affect the substantial rights of the complaining party or results in a miscarriage of justice. See also Mathers v. Botsford, 86 Fla. 40, 43, 97 So. 282, 283 (1923).

There is nothing to be gained by sending this ludicrous case back to the trial court. Whether or not these death row inmates are indigent, they have no substantial rights to, nor will they ever be entitled to, pornography in their prison cells. The alleged First Amendment violation will never be actionable. We are wasting the trial court’s time and resources by requiring it to deal further with this case.


text:
    Hiram BEAMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1792.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Aan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court in this criminal case imposed victim injury points for sexual contact after the jury returned a verdict of guilty of attempted lewd or lascivious battery. As the appellant argues and the state acknowledges, these victim injury points should not have been scored. See Grant v. State, 783 So.2d 1120 (Fla. 1st DCA 2001).. Accordingly, the appellant’s sentence is vacated and this case is remanded for resentencing under a corrected scoresheet.

ERVIN, BARFIELD and ALLEN, JJ., Concur.


text:
    William E. MORRIS and Barbara J. Morris, Appellant, v. PAINEWEBBER INCORPORATED and Arthur D. Dobosiewicz, Appellee.
    No. 1D03-0881.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Robert Dyer, of Alen, Dyer, Doppelt, Milbrath & Gilchrist, Orlando, for Appellant.
    Richard L. Martens and Ronald E. Crescenzo of Boose, Casey, Ciklin and Lu-titz, West Palm Beach, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s motion to dismiss and the appellants’ response thereto, as well as the appellants’ response to the Court’s order of May 19, 2003, the Court has determined that the order on appeal is not final. Specifically, because the lower tribunal’s Final Judgment Confirming Arbitration Award indicates that the appellants’ cross-claim to the Motion to Confirm Arbitration Award remains pending, judicial labor remains, and the appeal is consequently premature. See generally Carlton v. Wal-Mart Stores, 621 So.2d 451, 452 (Fla. 1st DCA 1993)(observing that “a final decree marks the end of judicial labor,” and applying finality test: “whether the case is disposed of by the order and whether a question remains open for judicial determination”). Accordingly, the motion is granted and the appeal is dismissed for lack of jurisdiction.

ERVIN, KAHN and HAWKES, JJ„ CONCUR.


author: PETERSON, J.

text:
    FASTFUNDING THE COMPANY, INC., Appellant, v. Wendy BETTS, Appellee.
    No. 5D02-1482.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    John A. Boudet and Lisa Harris of Greenberg Traurig, P.A., Orlando and Susan Verbonitz (Pro Hac Vice) of Weir & Partners, LLP, Philadelphia, PA, for Appellant.
    E. Clayton Yates of Law Office of E. Clayton Yates, P.A., Fort Pierce and Christopher C. Casper of James, Hoyer, Newcomer, & Smiljanich, P.A., Tampa, for Appellee.
   PETERSON, J.

FastFunding The Company, Inc., appeals an order of the trial court finding that its sales of payment instruments pursuant to Part II of Chapter 560, Florida Statutes, were loans that incurred usurious interest rates in violation of Florida’s usury laws.

This is the parties’ second appearance before this court. In their first appearance, FastFunding appealed the trial court’s order denying its motion to compel arbitration or, alternatively, to dismiss the complaint filed by Wendy Betts. FastFunding The Company, Inc. v. Betts, 758 So.2d 1143 (Fla. 5th DCA 2000) (FastFunding I). The FastFunding I court found the trial court’s analysis to be consistent with this court’s opinion in Party Yards, Inc. v. Templeton, 751 So.2d 121 (Fla. 5th DCA 2000). In Party Yards, Inc., this court held that where a party alleges and offers colorable evidence that a contract violates Florida’s usury laws, the trial court must determine the usury question before ordering the parties to arbitration because only trial courts can determine a contract’s legality. The Fast-Funding I court then opined that “[i]f Ms. Betts is correct in her complaint that the contract violates the usury laws, then the contract is illegal and an arbitrator could not require Ms. Betts to perform under the contract.” FastFunding interpreted this to mean that on remand the trial court should hold a hearing for the purpose of determining whether the deferred presentment transactions in question constituted loans, and if the transactions did constitute loans, whether they violated Florida’s usury laws. On remand, the lower court found that the transactions in question constituted loans, and that FastFunding’s charges were usurious. Accordingly, the lower court once again denied FastFunding’s motion to compel arbitration.

While this case was on remand, Betts was involved in another case which also came before this court. Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002) (hereinafter “Ace Cash Express”). In Ace Cash Express, Betts appealed an order dismissing with prejudice her amended class action complaint against Ace Cash Express, Inc., et. al. Betts contended that the trial court erred by finding that the deferred presentment transactions were legally permitted as a check cashing activity authorized by section 560.309(4)(c), Florida Statutes, and that the transactions did not violate Florida’s usury laws. The Ace Cash Express court determined that the deferred presentment transactions allowed by Florida Statute Chapter 560 constituted transactions and were not loans that violated Florida’s usury laws. Id. at 297.

The trial court in the instant case did not have the benefit of this court’s opinion in Ace Cash Express when it rendered its order. FastFunding contends that the trial court should be reversed in light of the Ace Cash Express decision. Betts agrees that FastFunding’s transactions complied with the requirements of Chapter 560, but contends that the transactions are still vio-lative of Florida’s usury laws.

The transactions in this case differed slightly from those in Ace Cash Express. After the initial transaction in which three $125 checks were exchanged for three FastFunding checks in the amount of $100.00 each, Betts’ checks were actually deposited before the new transaction (characterized by Betts as rollovers) were entered. The relationship between the parties began May 27, 1998 and ended November 16, 1998 when Betts stopped payment on her checks and paid only $75 on the $375 debt. During the relationship, she alleges to have paid $900 in fees, but the $300 remaining unpaid and unpursued by FastFunding would have placed her net cash outlay at $600.

The rationale in the Ace Cash Express opinion is equally applicable and disposi-tive of the usury issue raised by Betts in the instant case. We also note that before FastFunding engaged in business in Florida, it directed a written inquiry to the Florida Department of Banking and Finance in which it described in detail its method of operations and asked whether the transactions would be permissible under Florida law. The Department responded by indicating that the activity would require a payment instrument seller registration as detailed in Chapter 560 and, after obtaining more details about the transactions, issued a certificate allowing FastFunding to operate in this state. A few months later, the Department examined FastFunding’s records for compliance with Chapter 560 and found no violations.

The transactions may be found to be usurious if only the usury statutes are considered during the examination of the transactions. But, the scope of examination cannot be limited to the usury statutes. Chapter 560 must also be applied to determine whether the legislature carved the transactions described in Chapter 560 out of the usury statutes. The usury statutes were in existence at the time Chapter 560 was created and the legislature must be presumed to have been aware of them when it enacted legislation allowing the transactions to take place. Because Fast Funding’s transactions comply with Chapter 560, Florida Statutes, it must follow that they should not be deemed to be in violation of Florida’s usury laws.

We next consider whether the arbitration clause of the contracts between FastFunding and Betts are enforceable. FastFunding I indicated that if the contracts were illegal because the transactions were usurious loans, the matter could not be determined by an arbitrator. No determination was made in that opinion about arbitration if the contract was found to be legal.

In Buckeye Check Cashing, Inc. v. Cardegna, 824 So.2d 228 (Fla. 4th DCA 2002) rev. granted, the Fourth District Court of Appeal considered an identical arbitration clause to the one used in the contracts in the instant case. The Fourth District found the arbitration clause to be enforceable, but the Florida Supreme Court has granted review, Cardegna v. Buckeye Check Cashing, Inc., SC02-2161, 844 So.2d 645 (Fla. April 25, 2003). We agree with the reasoning of the Fourth District that the arbitration agreement is enforceable, but certify the following question as one of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(2):

Is an arbitration agreement enforceable when it is included as a requirement of a payment instrument sale executed pursuant to Florida Statute Chapter 560, Part II, and the arbitration is to be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16?

The trial court’s order is reversed and we remand with instructions to grant Fast-Funding’s motion to compel arbitration.

REVERSED and REMANDED.

THOMPSON and TORPY, JJ., concur.

      . Betts also has yet another case pending in this court styled Betts v. Ace Cash Express, Inc., 5D03-825.


author: SAWAYA, C.J.

text:
    Terry DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2630.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Terry Davis seeks review in this court of an order denying his motion to modify his sentence. In his motion, Davis asked the trial court to modify his sentence to effectuate the sentence originally contemplated. The trial court instead gave Davis the option of withdrawing his plea and going to trial, prompting Davis to attempt to appeal. Because we lack jurisdiction, we must dismiss the appeal, but we do so without prejudice to Davis to file a Florida Rule of Criminal Procedure 3.850(b) motion for postconviction relief.

While serving a sentence in federal prison, Davis was transported to Orange County where he pled guilty to two counts of grand theft of a motor vehicle. The trial court imposed a five-year prison sentence to be served concurrently with the federal sentence Davis was presently serving, explaining to Davis that he was “getting a free crime” because he would be “serving both sentences at the same time, which is a benefit to you.” After sentencing, Davis was placed in the state prison system, where he was apprised by officials that the only way he could get credit towards his federal sentence would be for him to serve that time in a federal prison. Davis timely filed a motion to modify his sentence, alleging that he would serve his entire five-year state sentence in Florida and only then be transported to a federal institution to serve his two-year federal sentence, resulting in a total incarceration time of seven years instead of the five-year total sentence contemplated at sentencing.

A hearing was held on Davis’s motion. Because Davis was not getting the bargain he had made at the time he was sentenced, the trial court decided that it would allow Davis to withdraw his pleas and go to trial on the two charges. Defense counsel objected on the basis that Davis did not want to withdraw his pleas; rather, Davis wanted the sentence modified so that it comport with the sentence originally contemplated. The court refused to modify the sentence, stating that it would only allow Davis the opportunity to withdraw the pleas and go to trial before a judge unfamiliar with the case.

The sentence originally imposed was the result of a trilateral mistake: the prosecutor, defense counsel and the sentencing judge all thought that the state sentence could be imposed to run concurrently with the federal sentence and that the sentence imposed would be binding on the federal authorities. Although trial courts have the statutory authority to impose a sentence that is to be served concurrently with a sentence imposed by another state or federal court, the Department of Corrections has discretionary authority regarding the placement of an inmate sentenced to serve multiple sentences. § 921.16(2), Fla. Stat. (2002). Herein lies the problem: if the Department of Corrections decides to place such an inmate in a Florida prison first, like it did with Davis, the Florida sentence will be served before the inmate is transferred to serve the federal sentence in a federal prison where the order of concurrent sentence imposed by the state court is not binding on the federal correctional authorities or courts. Hence, an order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation. Doyle v. State, 615 So.2d 278 (Fla. 3d DCA), review denied, 629 So.2d 132 (Fla.1993), and cert. denied, 511 U.S. 1007, 114 S.Ct. 1376, 128 L.Ed.2d 52 (1994).

The court in Taylor v. State, 710 So.2d 636 (Fla. 3d DCA 1998), formulated the appropriate remedy to resolve this problem when it held that the trial court should “forthwith vacate the sentence already imposed and provide instead either that the sentence be suspended ... or, at the [defendant’s] option, to enter a sentence of ‘time served’ or simply permit him to withdraw his plea.” Id. at 637 (citations omitted) (footnotes omitted); see also Hutchinson v. State, 845 So.2d 1019 (Fla. 3d DCA 2003); Glenn v. State, 776 So.2d 330 (Fla. 4th DCA 2001). Accordingly, the trial court’s “take it or leave it” offer to allow Davis to withdraw his plea and go to trial or be stuck with what are essentially consecutive sentences was not the correct solution to the problem.

Unfortunately, we are unable to grant Davis the relief that he apparently deserves because an order denying a motion to modify sentence is not an appeal-able order. See Pace v. State, 776 So.2d 1035 (Fla. 4th DCA 2001) (citing Adams v. State, 487 So.2d 1209 (Fla. 4th DCA 1986)). Therefore, although we are constrained to dismiss this appeal, we do so without prejudice to Davis to file an appropriate motion for postconviction relief seeking an appropriate remedy pursuant to Taylor. See Ahedo v. State, 837 So.2d 613 (Fla. 5th DCA 2003).

DISMISSED.

PLEUS and TORPY, JJ., concur.

      . See United States v. Smith, 972 F.2d 243 (8th Cir.1992), cert. denied, 507 U.S. 936, 113 S.Ct. 1326, 122 L.Ed.2d 711 (1993); see also Taylor v. Sawyer, 284 F.3d 1143 (9th Cir.2002), cert. denied, 537 U.S. 1119, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003).


author: TORPY, J.

text:
    CITY OF COCOA BEACH, Appellant, v. VACATION BEACH, INC., et al., Appellee.
    No. 5D02-2722.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Mary L. Sneed and James A. Fowler, of Fowler and O’Quinn, P.A., Orlando, for Appellant, City of Cocoa Beach.
    William H. Cantwell, II, and Michael R. Riemenschneider, of O’Brien Riemen-schneider, P.A., Melbourne, for Appellee.
   TORPY, J.

Appellant (“City”) challenges a summary judgment that invalidated two amendments to its charter concerning density and height restrictions on development. We reverse.

In August of 2001, pursuant to section 166.031, Florida Statutes (2001), citizens of City initiated petitions to amend its charter in two respects. The first proposed amendment, to Section 6.01 of the charter, would limit residential density to ten (10) dwelling units per acre and transient lodging (hotels and motels) to twenty-eight (28) units per acre. This amendment, exclusive of provisions allowing for variances under specified conditions, is as follows:

Sec. 6.01. Residential Density Limits.
No part of the City of Cocoa Beach shall be zoned to a residential density greater than ten (10) dwelling units per acre for permanent occupancy dwellings, or twenty-eight (28) units per acre for transient lodging establishments (hotels and motels). Buildings in existence, or with an approved construction permit on or before July 19, 2001, may be repaired or rebuilt to a habitable density equivalent to the previously existing density.
* * *
Those parts of any ordinances in conflict with this section are hereby repealed.

(Emphasis added).

The second proposed amendment,- to section 6.04, would establish building height limits of forty-five (45) feet. Its material provisions are as follows:

Sec. 6.04. Building Height Limit.
No structure, no part of any structure, and no attachment to any structure shall be erected to a height greater than forty-five (45) feet above the grade of the building site. Buildings in existence, or with approved construction permit on or before July 19, 2001, may be repaired or rebuilt to a height not to exceed the previously existing habitable height.
Those parts of any ordinances in conflict with this section are hereby repealed.

(Emphasis added).

After the procedures were followed, the two proposals were placed on the ballot, and they passed by a substantial margin. Prior to the election, however, Appellee initiated this action seeking to enjoin the enforcement of the proposed amendments. On November 1, 2001, five days before the election, the lower court issued a temporary injunction allowing the election to proceed but enjoining enforcement of the amendments until further order of the court. Thereafter, cross-motions for summary judgment were filed and the lower court granted Appellee’s motion and denied City’s motion.

The sole issue presented in this appeal is whether the charter amendments comply with the provisions of Florida’s Growth Management Act, specifically section 163.3194(2), Florida Statutes (2001), which provides in pertinent part as follows:

163.3194. Legal status of comprehensive plan.
(2) After a comprehensive plan for the area, or element or portion thereof, is adopted by the governing body, no land development regulation, land development code, or amendment thereto shall be adopted by the governing body until such regulation, code or amendment has been referred either to the local planning agency or to a separate land devel opment regulation commission created pursuant to local ordinance, or to both, for review and recommendation as to the relationship of such proposal to the adopted comprehensive plan, or element or portion thereof. Said recommendation shall be made within a reasonable time, but no later than within 2 months after the time of reference. If a recommendation is not made within the time provided, then the governing body may act on the adoption.

(Emphasis added).

Appellee argues that, before these charter amendments could be placed on the ballot, City was required to submit them to the local planning agency for review and, if they were determined to be inconsistent with the comprehensive plan, the plan had to be amended before the charter could be amended. City acknowledges that the amendments were not submitted to the local planning agency for review, but urges that, because the amendments are to the charter, and not to any “land development regulation,” they are not subject to section 168.3194(2). Alternatively, City argues that because the charter amendments were not “adopted by the governing body,” the statute is not implicated.

City is correct that neither charter amendment is a “land development regulation,” which is defined as “an ordinance enacted by a local governing body .... ” § 163.3213(2)(b), Fla. Stat. (2001). An “ordinance” is legislative action of the governing body. § 166.041(l)(a), Fla. Stat. (2001); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942). “Governing body” in this case is the city council. § 163.3164(9), Fla. Stat. (2001).

Our inquiry does not end here, however, because section 163.3194(2) also applies to amendments to land development regulations. Here, both charter amendments state as follows: “Those parts of any ordinances in conflict with this section are hereby repealed.” (emphasis added). The effect of this sentence is that it immediately repeals zoning ordinances that permit greater heights and densities. These affected ordinances are by definition “land development regulations.” By “repealing” the ordinances, the revised charter “amends” them. See Wilson v. Crews, 160 Fla. 169, 34 So.2d 114 (1948) (“amendment” of constitution repeals or modifies provisions in the constitution that are inconsistent with the amendment). Having so concluded, we must next address City’s alternative argument, that the charter amendments were not “adopted by the governing body.”

Appellee acknowledges that the phrase “governing body” refers to the city council. § 163.3164(9), Fla. Stat. (2001). Appellee urges, nevertheless, that because the city code provides that any charter amendment, whether initiated by the voters or the council, must be “adopted” by the council, the enactment of the amendments through referendum is tantamount to “adoption” by the council. We disagree that the city code should be construed in this manner. City code section 9.01(c), provides as follows:

Results ofreferendum. If a majority of the qualified voters voting in a referendum on a proposed charter amendment vote in its favor, it shall be considered adopted upon certification of the election results and shall be treated in all respects in the same manner as other sections of the charter.

(italics in original; underline added). This code provision does nothing other than acknowledge what section 166.031(2) already provides—that adoption of the proposed amendments is achieved through a certified, majority vote of the people. The council’s function at that point, under both the statute and city code, is purely ministerial. Indeed, to suggest that the council’s involvement is tantamount to “adoption” ignores the fact that section 166.031(1) reserves to the people the right to amend City’s charter without approval of — and even in the face of vehement objection from — the governing body. Thus, we conclude that, because these amendments to the land development regulations were not “adopted by the governing body,” the lower court erred in concluding that section 163.3194(2) had been violated.

We emphasize that our decision today addresses a very specific issue. We hold that the charter amendments are not invalid under section 163.3194(2). Our holding should not be construed as a declaration that these charter amendments are valid. Arguments advanced below attacking their validity on various grounds were not addressed by the lower court, nor argued on appeal; therefore, we leave their resolution to the trial court on remand.

REVERSED and REMANDED.

PALMER, J., concurs.

THOMPSON, J., concurs in result only.

      . For example, we have not addressed the validity of the charter amendments under section 163.3194(l)(b) of the Growth Management Act, which prohibits amendments to "land development regulations,” if such amendments are inconsistent with the comprehensive plan. We note parenthetically that this subsection seems to apply irrespective of by whom the amendments are adopted.


text:
    James GOONAN, Appellant, v. Karen HENSLEY f/k/a Karen Goonan, Appellee.
    No. 5D02-3651.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    James J. Goonan, Clermont, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

The appellant, James Goonan, appeals a final judgment and order rendered by the trial court concerning his supplemental petition for modification, motion for contempt and objection to order concerning a modification of child support, as well as his former wife’s motion for contempt or to enforce final judgment. The record before this court contains no transcript of the proceedings below. We ordered the appellant to supplement the record with either a transcript or a statement of the evidence or proceedings pursuant to Florida Rules of Appellate Procedure 9.200(b)(4). We received only the clerk’s notes of the proceedings which reflected that there was no court reporter present, and that the evi-dentiary hearing consumed about six hours.

In the absence of a transcript, we are unable to evaluate the sufficiency of the evidence considered by the trial court in support of its extensive factual findings. Instead, we must presume that such findings are correct. Hirsch v. Hirsch, 642 So.2d 20, 21 (Fla. 5th DCA 1994); accord Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Accordingly, we affirm the final judgment and order.

AFFIRMED.

THOMPSON, GRIFFIN and MONACO, JJ., concur.