author: FLETCHER, Judge.

text:
    A.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-746.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.

      Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   FLETCHER, Judge.

A.T., a juvenile, appeals from an order ■withholding adjudication of delinquency and final disposition. We affirm.

The arresting officer testified that he observed A.T., a fifteen-year-old boy, hanging out on a corner with two others for about an hour. There earlier had been a report of a stolen car, and the officer testified that he believed one of the persons on the corner may have gotten out of the stolen vehicle.

The officers drove up in their unmarked car, got out of their vehicle and identified themselves as police officers. The arresting officer testified that as he approached, he saw A.T. put a plastic “Ziploc” baggie containing a green substance into his pocket. The officer proceeded to pat down A.T., reached into A.T.’s pocket and pulled out the Ziploc bag containing marijuana. He then arrested A.T., who was charged with unlawful possession of misdemeanor quantity of marijuana.

A.T. moved to suppress the evidence on the ground that it had been obtained by an unlawful search and seizure, arguing that the officer had no reasonable suspicion that the baggie contained marijuana until he searched A.T. and retrieved the bag from his person. The parties agreed that the motion to suppress was dispositive, and on the trial court’s denial of the motion A.T. changed his plea to nolo conten-dere. The trial court withheld adjudication and sentenced A.T. to four years of probation.

A search incident to an arrest may precede the formal arrest as long as probable cause existed prior to the search. See State v. In the Interest of M.A.D., 721 So.2d 412 (Fla. 3d DCA 1998); State v. Joseph, 593 So.2d 594 (Fla. 3d DCA 1992). “A finding of probable cause does not require absolute certitude.” Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000). “The test for probable cause is whether the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been committed.” Id. at 374. The officer’s long experience in recognizing marijuana coupled with the circumstances surrounding A.T.’s behavior gave him probable cause to believe that AT. was in possession of an illegal substance. Id. (“[The officer’s] belief that what he visualized was crack cocaine is sufficient for probable cause even though he concedes that the substance could have been something else.”). We conclude that there was probable cause to search A.T., and the seizure was valid as being incident to a lawful arrest. We affirm the trial court’s denial of the motion to suppress and affirm the disposition.

Affirmed.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Martin J. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1870.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.

      Bennett H. Brummer, Public Defender, and Harvey L Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA JJ.
   LAGOA, J.

The defendant, Martin Smith, appeals from an order of restitution entered against him after he pled guilty to second-degree murder with a deadly weapon. We reverse and remand for a new restitution hearing because the State’s evidence was improperly based on hearsay.

FACTS

In 1999, Martin Smith was charged by indictment with the first-degree murder of Stephen Burke after Smith cut Burke’s throat with a knife. Six years later, on April 25, 2005, Smith pled guilty to the lesser charge of second-degree murder, and was sentenced to forty years in prison. At the sentencing hearing, the trial court reserved jurisdiction in order to impose restitution to the victim’s family for funeral expenses.

On June 1, 2005, the trial court held a hearing to establish a restitution amount. At the hearing, the State explained that because the victim’s mother died during the six-year interim between her son’s death and the defendant’s sentencing, expense receipts for the victim’s funeral, which occurred in England, could not be located. The State estimated that the cost of transporting the victim’s body to England and the cost of the funeral was between eight and ten thousand dollars. Defense counsel objected to the lack of documentation to support this estimate. The trial court reset the hearing for thirty days in order to give the State time to obtain notarized cost estimates from the airline and from the funeral home.

On July 1, 2005, a second hearing was held and the State presented an affidavit from the victim’s brother stating that the funeral expenses were $9,200. Defense counsel objected to the affidavit as hearsay. Specifically, defense counsel argued that the affidavit was simply a blanket statement of total costs and did not indicate that the brother had personal knowledge of the funeral expenses. Based upon the affidavit, the trial court imposed an order of restitution' requiring the defendant to pay $9,200 to the victim’s brother.

PURPOSE OF RESTITUTION

“Unlike civil damages, restitution is a criminal sanction. The purpose of restitution is not only to compensate the victim, but also to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.” Spivey v. State, 531 So.2d 965, 967 (Fla.1988). Pursuant to section 775.089, Florida Statutes (2005), a defendant shall be ordered to make restitution to the victim for damage or loss caused directly or indirectly by the defendant’s offense. In a case such as this one, where the defendant’s crime resulted in the victim’s death, section 775.089(2)(a)4, Florida Statutes (2005), provides that the defendant shall “pay an amount equal to the cost of necessary funeral and related services.”

Pursuant to section 775.089(7), Florida Statutes (2005), when there is a dispute as to the amount of restitution, the State has the burden of establishing by a preponderance of the evidence the proper amount of the loss. In proving the amount of the loss, the State may not rely on hearsay testimony when the defense properly objects to its introduction. J.D. v. State, 693 So.2d 146 (Fla. 3d DCA 1997); J.L. v. State, 684 So.2d 883 (Fla. 3d DCA 1996); Louis v. State, 654 So.2d 1290 (Fla. 3d DCA 1995); Delks v. State, 622 So.2d 624 (Fla. 2d DCA 1993).

ANALYSIS

In this case, there is no question or dispute that actual costs were incurred— the victim’s body was returned to and funeral expenses were incurred in England. The State understandably was unable to produce receipts because the victim’s mother, who possessed the receipts, died during the six-year interim between her son’s death and the defendant’s sentencing. The trial court therefore instructed the State to produce documentation from the airline and from the funeral home regarding transportation and funeral costs. The State instead presented an affidavit from the victim’s brother regarding the expenses.

Because the State’s presentation was based solely on hearsay to which the defendant objected, we reverse and remand for the trial court to conduct a new restitution hearing. Given the time that has elapsed since the death of the victim and the time of sentencing, the State at the hearing may introduce affidavits from an airline and a funeral home establishing the estimated costs for transportation and funeral services in 1999 and it need not provide documentation or receipts showing actual costs.

Reversed and remanded.

      . The affidavit was not made a part of the record before this Court.


author: WELLS, Judge. CORTINAS, Judge

text:
    Alain MURGA, Individually and on behalf of all other similarly situated Plaintiffs, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D05-2295.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Mary E. Kestenbaum and David J. Pet-tinato, Tampa, for appellant.
    James C. Kelley, Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   WELLS, Judge.

Alain Murga appeals from an order dismissing his class action complaint against insurer United Property & Casualty Insurance Company. Rule 1.220 of the Florida Rules of Civil Procedure governing pleadings in class action cases requires the plaintiff to allege the existence of a class; to define the alleged class; to specify the approximate number of class members; and to “demonstrate that the four prerequisites specified in rule 1.220(a) are satisfied and that the action meets the criteria for one of the three types of class actions defined in rule 1.220(b).” Bobinger v. Deltona Corp., 563 So.2d 739, 742 (Fla. 2d DCA 1990). Murga’s complaint demonstrates that his claim cannot satisfy the criteria of any of the three types of actions defined in Rule 1.220(b). Because amendment in this case would be futile, the action was properly dismissed. See Kay’s Custom Drapes, Inc. v. Garrote, 920 So.2d 1168, 1171 (Fla. 3d DCA 2006)(quoting Kimball v. Publix Super Mkts., Inc., 901 So.2d 293, 296 (Fla. 2d DCA 2005), observing that “[r]efusaJ to allow an amendment is an abuse of the trial court’s discretion ‘unless it clearly appears ... amendment would be futile.’ State Farm Fire & Cas. Co. v. Fleet Fin. Corp., 724 So.2d 1218, 1219 (Fla. 5th DCA 1998).”); Carter v. Ferrell, 666 So.2d 556, 557 (Fla. 2d DCA 1995)(observing that “refusal to allow an amendment constitutes an abuse of discretion unless it clearly appears that ... amendment would be futile”).

Accordingly, the order under review is affirmed.

LAGOA, J., concurs.

CORTINAS, Judge

(dissenting).

I respectfully dissent. This is an appeal from an order granting a motion to dismiss the class action complaint. The trial court’s order does not explain or detail the judge’s grounds for dismissal.

Assuming, as the majority does, that the trial court dismissed the complaint for failure to meet the Rule 1.220 criteria applicable to class actions, the order doing so is completely defective. Rule 1.220(d)(1) of the Florida Rules of Civil Procedure requires that the court conduct a hearing “as soon as practicable after service of any pleading alleging the existence of a class.” Fla. R. Civ. P. 1.220(d)(1). After holding a hearing, the trial court “shall enter an order determining whether the claim or defense is maintainable” as a class action. Id. Rule 1.220(d)(1) further requires that “[irrespective of whether the .court determines that the claim or defense is main-tamable on behalf of a class, the order shall separately state the findings of fact and conclusions of law upon which the determination is based.” Fla. R. Civ. P. 1.220(d)(1)(emphasis added); see also Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928, 930 (Fla. 4th DCA 2002)(“Rule 1.220(d) requires the court to conduct a hearing and enter an order determining whether the claim is maintainable on behalf of a class, stating its findings as to the requirements of Rule 1.220(a) and (b).”).

Here, the trial court’s order does not contain a single finding of fact or any conclusion of law. In fact, the trial court’s order does not even cite to the rule under which dismissal is being granted. On its face, the trial court’s order is completely defective and, as such, cannot be affirmed.

In my opinion, the majority puts the proverbial cart before the horse in conducting what is essentially a de novo review of the propriety of appellant’s class action allegations without any indication that the allegations were properly considered and ruled upon by the trial court. Such a review is entirely inconsistent with the applicable standard of review for appeals of trial court decisions on class certification. United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So.2d 23, 25 (Fla. 3d DCA 2006)(stating that a trial court’s order certifying a class is reviewed for abuse of discretion) (citations omitted). An abuse of discretion review, which is required in this case, does not and can not entail performing the functions of a trial court. As an appellate court, we cannot review the propriety of the trial court’s order without any indication, as required by Rule 1.220(d)(1), of the grounds on which it is based. I would reverse the order of dismissal and remand this case to the trial court for consideration of appellant’s class action allegations.

      . There is nothing to indicate that the trial court's dismissal of the complaint was based on Rule 1.140, which applies to dismissals for failure to state a cause of action. Cf. Slade v. Federated Nat’l Ins. Co., 904 So.2d 623, 624 (Fla. 4th DCA 2005)(holding that an order granting a motion to dismiss class action allegations on the grounds that they are not sufficient to maintain a class action is implicitly a Rule 1.140(b)(6) motion, not a denial of class certification, and therefore is not appealable as a non-final order); see also Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928, 930 (Fla. 4th DCA 2002)(recognizing a difference between motions to dismiss for failure to state a cause of action under Rule 1.140 and motions to deny class certification under Rule 1.220).


author: WELLS, Judge.

text:
    The STATE of Florida, Petitioner, v. G.G., a juvenile, Respondent.
    No. 3D06-2615.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2006.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General for petitioner.
    Scott B. Saul, Miami, for respondent.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   WELLS, Judge.

The State seeks certiorari review of an order of the Circuit Court Juvenile Division denying the State’s motion to transport G.G., a juvenile, to the Dade County Jail. We grant the writ and quash the order under review.

G.G. was arrested for burglary of an unoccupied dwelling on August 31, 2006 and appeared before a juvenile court judge the following day. At that hearing, the State advised the juvenile court that it was reviewing the matter to determine whether to charge G.G. as an adult, that is, to direct file against him. See § 985.227, Fla. Stat. (2006). As a consequence, the juvenile court ordered that G.G. be held in secure detention pending the State’s decision.

On September 7, 2006, the juvenile court granted G.G.’s motion for home detention pending a hearing scheduled for September 21, on the State’s direct filing decision. On September 21, the State advised the juvenile court that it had filed charges against G.G. in adult court and requested that G.G. be transported to the Dade County Jail. The juvenile court denied the request stating:

The Court [feels] that it [is] not necessary to transport the Child to the Dade County Jail. The Child has always shown up to Court in his prior appearances with his parents and his attorney. The Court [feels] that there [is] no useful purpose in having the Child taken into custody and then transported to the Dade County Jail. Therefore, the Court decline[s] to have the child [sic] transported to the Dade County Jail. The only purpose that could be served by transporting this Child under this set of circumstances was to be punitive as there was no other useful purpose to be served by the Child’s incarceration.

While the court’s reasons for refusing to transport G.G. to the Dade County Jail are understandable, the ruling is contrary to the controlling statutory provision as well as precedent from this court. See § 985.215(4)(a), Fla. Stat. (2005); State v. Lopez, 748 So.2d 384, 385 (Fla. 3d DCA 2000) (quashing an order denying a motion to transfer a juvenile to the Dade County Jail “so he could answer charges to be filed in the adult felony division”). As this Court has previously explained:

... [T]he lower court departed from the essential requirements of the law when it failed to immediately order that [the juvenile] be transported to the adult county jail upon the state’s announcement that the charges had been direct filed in the adult division. Section 39.044(4)(a), Florida Statutes (1996), which was amended on June 2, 1996, specifically provides that:
(4) The court order shall order the delivery of a child to a jail or other facility intended or used for the detention of adults:
(a) When the child has been transferred or indicted for criminal prosecution as an adult pursuant to this part, except that the court may not order or allow a child alleged to have committed a misdemeanor who is being transferred for criminal prosecution pursuant to. s. 39.059 to be detained or held in a jail or other facility intended or used for the detention of adults; however, such child may be held temporarily in a detention facility; ... (emphasis added).

Prior to the amendment, juvenile courts could exercise their discretion in deciding whether the order of the delivery of a child to jail where the' child was to be prosecuted as a[sic] adult. This amendment to the statute, however, makes clear that where a child is to be prosecuted as an adult for a felony offense, the juvenile courts must, forthwith, order the transfer of the juvenile to the adult county jáil where the juvenile may be booked, processed, and released in the normal course as an adult under similar circumstances.

State v. Davis, 699 So.2d 848, 848-49 (Fla. 3d DCA 1997).

Accordingly, certiorari is granted.

      . Section 39.044(4)(a) has been renumbered as section 985.215(4)(a) of the Florida Statutes.


author: SAWAYA, J.

text:
    Sammy LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2312.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.

      James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

This case presents the question whether a trial court abuses its discretion in finding a willful and substantial violation of probation based on the defendant’s dismissal from a court-ordered drug rehabilitation or treatment program due to nonattendance, when the sentencing judge did not specify the number of attempts the defendant would have to successfully complete the program and a time period for compliance. Our answer to this question is that the trial court does not abuse its discretion in this instance and we, therefore, affirm the order of revocation.

Pursuant to a plea agreement, Sammy Lawson entered a plea of nolo contendere to the charges of possession of cannabis with intent to sell and sale of cannabis. He was sentenced in accordance with the agreement to five years’ imprisonment suspended upon successful completion of three years’ drug offender probation. Condition 40 in the order of probation, which Lawson was accused of violating, specifically provides:

You must enter into, participate in, and successfully complete a [ ] substance abuse [ ] alcohol abuse [ ] Drug Abuse [ ] Other_evaluation and any treatment program subsequently prescribed by the treatment agency to which you are referred, including aftercare program, and be financially responsible for any treatment rendered.[]

According to the testimony presented at the revocation hearing, Lawson enrolled in a treatment program very soon after sentencing. The rules and regulations of this program, which were explained to Lawson before his first session, provide that an individual is subject to discharge after three absences. After missing nine sessions, Lawson was terminated from the program. In an attempt to work with Lawson and his alleged transportation problems, the program administrator reinstated Lawson to the program with the understanding that he miss no more sessions. However, Lawson again missed a class and was discharged from the program. Two days later, the State filed an affidavit indicating that Lawson had violated condition 40 by failing to successfully complete or remain in drug treatment. At the revocation hearing, the trial judge inquired of Lawson why he missed nine classes:

You missed nine classes. <©
Yes, sir. >
Q. Tell me why you missed nine classes.
A. Well, the first time I missed three classes, I figured they had already kicked me out. Then I talked to my probation officer. He said to call back to see if I could get back into the class. I called back, and they accepted me back into the program. I tried to like finish all of them. Every week — I had one class a week. I was going to all my classes. I just missed one. I knew I had missed a class.
Q. I’m asking you why you missed nine classes before you were given an extra chance.
A. I have no idea, sir. No transportation.

Based on the trial court’s declaration that “[h]is reasons for absences are not persuasive to this court” and the explicit finding that Lawson willfully committed a substantial violation, it is readily apparent that Lawson’s testimony," especially his excuse for nonattendance, was not considered by the trial court to be very credible. Accordingly, the trial court revoked Lawson’s probation and imposed the suspended sentence of five years in prison. Lawson appeals, contending that because the trial court did not specify how many times he could take the program or a time period for completion, he has until the end of his probationary period to complete the program and is therefore entitled to yet another chance.

In order to properly establish a basis to revoke probation, the state must prove by a preponderance of the evidence that the defendant committed a willful and substantial violation of a condition of probation. State v. Carter, 835 So.2d 259 (Fla.2002); Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000). In reviewing a trial court’s order revoking probation, we must apply the abuse of discretion standard of review, which requires that we “determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the] violation was both willful and substantial.” Carter, 835 So.2d at 262 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). The courts generally agree that unexcused absences from treatment programs are a valid basis for finding a willful and substantial violation of probation. Rawlins v. State, 711 So.2d 137, 137 (Fla. 5th DCA 1998) (“We conclude that a judge may find that two unexcused absences from a treatment program may indeed amount to a material violation.”); see also Mills v. State, 840 So.2d 464 (Fla. 4th DCA 2003); Marcano v. State, 814 So.2d 1174, 1176 (Fla. 4th DCA 2002) (“Generally, un-ex-cused absences from required therapeutic programs constitute willful violations of probation.”) (citing Boyd v. State, 756 So.2d 1114, 1115 (Fla. 1st DCA 2000); Santiago v. State, 722 So.2d 950, 950 (Fla. 4th DCA 1998)).

We begin our analysis by noting that pursuant to the plea agreement, Lawson specifically agreed to submit to the requirements of drug offender probation. The contours of drug offender probation are defined by section 948.001(4), Florida Statutes (2005), as “a form of intensive supervision ... with individualized treatment plans.” Indeed, participation in, and completion of, specialized treatment plans developed by the Department of Corrections is a primary component of drug offender probation. See § 948.20(1), Fla. Stat. (2005) (“The Department of Corrections shall develop and administer a drug offender probation program which emphasizes a combination of treatment and intensive community supervision approaches and which includes provision for supervision of offenders in accordance with a specific treatment plan.”). We agree with Justice Pariente’s observations that “[b]e-cause each treatment plan is individualized, it is not always realistic for the trial judge to specify time parameters for completion at the time of sentencing.” Woodson v. State, 889 So.2d 823, 824 (Fla.2004) (Pariente, C.J., concurring). Although Justice Pariente was referring to treatment plans for sex offender probation, the treatment plans for drug offender probation are no less individualized.

Despite the difficulty inherent in ordering specific time parameters for completion and limitations on the number of attempts at compliance, decisions from other districts hold that the trial court’s failure to- do so at sentencing prevents revocation when a defendant is discharged from a treatment program that is a condition of drug offender or sex offender probation. See Singleton v. State, 891 So.2d 1226 (Fla. 2d DCA 2005) (drug offender probation); Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004) (drug offender probation); Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002) (sex offender probation); see also Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004) (drug treatment condition). Lawson relies on other decisions that apply the same principles to treatment programs that were not imposed as conditions of drug or sex offender probation. See Quintero v. State, 902 So.2d 236 (Fla. 2d DCA 2005); O’Neal v. State, 801.So.2d 280 (Fla. 4th DCA 2001); Dunkin v. State, 780 So.2d 223 (Fla. 2d DCA 2001); Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995). We are not bound by these decisions, and we respectfully disagree with them. We will endeavor to explain why.

Although not explicit in their explanation of the rationale for the general principles they adopt, the courts seem to premise these decisions on the requirement that the defendant must willfully violate the conditions of probation. The courts reason that if the sentencing court does not set a time frame for completion or specifically limit the number of attempts at compliance, defendants do not have sufficient notice of what is required in order to comply and, therefore, they cannot willfully violate.

While we certainly agree that defendants should receive fair notice of conduct that may result in a violation so that they may guide their actions accordingly, the concept of fair notice does not require the most comprehensive, inclusive, and detailed notice conceivable. .We adopt the view that fair notice can be satisfied by conditions of probation that provide reasonable individuals of common intelligence the basis to know and understand its meaning. See Ertley v. State, 785 So.2d 592 (Fla. 1st DCA 2001); Britt v. State, 775 So.2d 415 (Fla. 1st DCA 2001). Under this view, conditions of probation do not have to be precise to the point of obtrusiveness in order to afford fair notice to the probationer and, therefore, it is not necessary for the sentencing court to cata-logue each and every detail or circumstance that may form the basis of a violation. In essence, conditions of probation should be written and read with a measure of common sense so that the fair notice requirement does not provide refuge for defendants who deliberately turn a blind eye to, or eagerly profess ignorance of, the obvious consequences of their actions or inactions.

The rationale we adopt is not new or novel; courts in other jurisdictions have adopted it. The federal courts, for example, have decided the issue under the umbra of the due process clause and its fair warning doctrine. In United States v. Gallo, 20 F.3d 7 (1st Cir.1994), the court considered whether a condition of probation that provided in pertinent part that “[d]efendant shall continue to submit to proper psychiatric treatment, inclusive of medication,” put the defendant on notice that a refusal to follow doctor’s instructions and submit to hospitalization would constitute a violation of the probation order. The court held that although the condition of probation did not specifically warn the defendant that his refusal to be hospitalized could result in revocation, a common-sense reading of the condition gave fair warning to the defendant of the consequences of his refusal. The court explained:

When, as now, a court order is read to proscribe conduct that is not in itself unlawful, the dictates of due process forbid the forfeiture of an actor’s liberty by reason of such conduct unless he is given fair warning. Nevertheless, the fair warning doctrine does not provide a safe harbor for probationers who choose to ignore the obvious.
Furthermore, though a probationer is entitled to notice of what behavior will result in a violation, so that he may guide his actions accordingly, fair warning is not to be confused with the fullest, or most pertinacious, warning imaginable. Conditions of probation do not have to be cast in letters six feet high, or to describe every possible permutation, or to spell out every last, self-evident detail. Conditions of probation may afford fair warning even if they are not precise to the point of pedantry. In short, conditions of probation can be written — and must be read — in a commonsense way.

Id. at 12 (citations omitted); see also United States v. Johnson, 446 F.3d 272, 280-81 (2d Cir.), cert. denied, — U.S. -, 127 S.Ct. 425, - L.Ed.2d - (2006); United States v. Baton, 384 F.3d 38, 43 (2d Cir.2004); United States v. Arcadipane, 41 F.3d 1, 5 (1st Cir.1994); Wilfong v. Commonwealth, 175 S.W.3d 84, 97 (Ky.Ct.App.2004); Commonwealth v. Kendrick, 446 Mass. 72, 841 N.E.2d 1235, 1237-38 (2006).

Reading condition 40 in a “commonsense way,” a reasonable person of common intelligence would understand that he or she must undertake compliance as soon as probation is ordered. This means that the defendant must immediately submit to any necessary evaluation or testing process and enter the prescribed treatment program as soon as he or she can be placed into it. Indeed, the record clearly indicates that this was Lawson’s understanding: he did enter the prescribed drug treatment program from which he was dismissed very soon after he was placed on probation; he was specifically advised by his probation officer that if he missed a certain number of classes he would be terminated from the program; and he was advised that termination would be considered a violation of his probation. The provisions of condition 40 do not give Lawson until the last tick of the clock and as many chances as he desires to complete the drug treatment program.

We believe that the view we adopt comports with the primary goals of probation, which are to: 1) rehabilitate the criminal offender so that in the future his or her conduct will more likely conform to societal standards; 2) protect society from future criminal conduct by the offender; and 3) protect the rights of crime victims. Woodson v. State, 864 So.2d 512, 516 (Fla. 5th DCA), review dismissed, 889 So.2d 823 (Fla.2004). As we explained in Woodson:

It makes no sense to release the offender into society on a lengthy term of probation only to allow the offender the discretion to undertake treatment several years later toward the end of the probationary period. Releasing a sex offender, untreated, does not alleviate the concern that he or she will reoffend and affords no protection to society. Moreover, a requirement that provides additional chances for treatment in the future before expiration of the probationary period after willful failure to actively participate in and complete a sex offender treatment program, simply because the offender expresses a willingness to comply at a later date, opens the door to mischievous manipulation by the offender and thwarts all of the goals of probation.

864 So.2d at 516. We readily acknowledge that Woodson involved mandatory conditions of sex offender probation, but we think the rationale is no less applicable to instances where defendants fail to participate in and complete court-ordered treatment programs intended to help rehabilitate them and prevent future misconduct.

If we reduce Lawson’s argument to its essence, Lawson is actually telling us that he will be the one to decide when he submits to drug treatment and that he will be the one to decide how many chances he will have to complete it. We simply cannot accept the perverse notion that such decisions should be left to the whim or caprice of any criminal defendant, much less one like Lawson who has twice thumbed his nose at the trial court, his drug counselor, and his probation officer. “Probation is a matter of grace,” McCarthren v. State, 635 So.2d 1005, 1006 (Fla. 5th DCA 1994), that is ordered if “it appears to the court ... that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law.” § 948.01(2), Fla. Stat. (2006); Landeverde v. State, 769 So.2d 457, 462 (Fla. 4th DCA 2000). It would be anomalous, to say the least, to allow the trial court’s failure to specify the obvious to be used as a refuge for miscreants and slackers like Lawson who eagerly accept the grace of probation with little or no intention of complying with the obligations they promised to fulfill in exchange for it. We believe that the argument advanced by Lawson defies common sense, defeats the ends of justice, and does little to further the goal of rehabilitating offenders so they can conform to the normative standards of behavior demanded by a society of law-abiding citizens. Therefore, we totally reject it.

We conclude that condition 40 requires the court-ordered treatment program to be started as soon as the defendant can be placed into the program. Whether more time should be given to start the program, or more attempts allowed after initial failure due to willful noncompliance, are matters that should be left to the sound discretion of the trial court when considering an appropriate sanction in revocation proceedings. See Woodson, 864 So.2d at 517 (“If immediate initial attempts are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be left to the sound discretion of the trial court.”) Based on the evidence and testimony in the record, the State clearly met its burden of proving that Lawson willfully and substantially violated condition 40. Accordingly, the trial court did not abuse its discretion in revoking Lawson’s probation. We affirm the order of revocation.

We certify direct conflict with the decisions in Quintero, Singleton, Davis, Lynom, O’Neal, Dunkin, Butler, and Salzano. We also certify to the Florida Supreme Court the following question, which we consider to be a matter of great public importance:

DOES A TRIAL COURT ABUSE ITS DISCRETION IN FINDING A DEFENDANT, WHO IS DISCHARGED FROM A COURT-ORDERED DRUG TREATMENT PROGRAM FOR NONATTENDANCE, IN WILLFUL VIOLATION OF PROBATION WHEN THE SENTENCING COURT DID NOT SPECIFY THE NUMBER OF ATTEMPTS THE DEFENDANT WOULD HAVE TO SUCCESSFULLY COMPLETE THE PROGRAM AND IMPOSE A TIME PERIOD FOR COMPLIANCE?

AFFIRMED. QUESTION CERTIFIED.

ORFINGER and TORPY, JJ., concur.

      . Lawson notes that the boxes were not marked as to which program he would complete. Based on other provisions in the order of probation that require Lawson to participate in a drag treatment program, we believe that Lawson clearly understood and agreed when he executed his plea agreement and entered his plea that he would participate in, and successfully complete, a drug treatment program.

      . Lawson also appeals the finding that he violated condition 2 of his probation by failing to pay $50.00 toward the cost of supervision each month. Because the State failed to establish that Lawson had the ability to pay that amount, we believe that the trial court abused its discretion in finding that Lawson willfully violated this condition. See Edwards v. State, 892 So.2d 1192, 1194 (Fla. 5th DCA 2005) (“When the violation is for failure to pay restitution or costs, the State must adduce evidence of [the probationer’s] ability to pay to demonstrate willfulness.”). However, our review of the record convinces us that based only on the finding that Lawson willfully violated condition 40, the trial court would have revoked Lawson’s probation and imposed the suspended sentence. See Akins v. State, 853 So.2d 1118 (Fla. 4th DCA 2003); McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988) (holding that remand for reconsideration of the order revoking probation or the sentence is not necessary where the appellate court is convinced that neither would be affected by the deletion of single violation); Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987) (same); see also Jennings v. State, 665 So.2d 377 (Fla. 4th DCA 1996). Accordingly, affir-mance of the order of revocation is appropriate.

      . See Mitchell v. State, 717 So.2d 609, 611 (Fla. 4th DCA 1998) ("During the initial interview at the agency, the defendant contracted to enter the program and was instructed that under the contract he could only miss three sessions to be in compliance with the program rules. The defendant was further instructed that if he had to miss a class he was required to call 24 hours in advance to inform the staff. The defendant acknowledged that his first class was scheduled in May. Thus, there is record evidence that the defendant was to start the program immediately after being placed on probation.”).


author: PER CURIAM.

text:
    Silvio F. REYES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2479.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Silvio F. Reyes, Raiford, pro se.

      No Appearance for Respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Because of his nine previous unsuccessful appearances here, when Petitioner, Sil-vio F. Reyes, filed his tenth pleading, a mandamus petition, this court denied the mandamus petition and issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999).

We now hold that Reyes is barred from further pro se filings in this court on the basis that his present petition is frivolous and an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Glasco v. State, 914 So.2d 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s pro se filings had become frivolous, an abuse of process, and a waste of the taxpayers’ money); Rooney v. State, 699 So.2d 1027 (Fla. 5th DCA 1997); Dennis v. State, 685 So.2d 1373 (Fla. 3d DCA 1996).

Accordingly, in order to conserve judicial resources, we prohibit Reyes from filing with this Court any further pro se filings of any kind concerning Seventh Judicial Circuit Court Case No. 94-573-CF. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Reyes. Any more pleadings regarding this case' will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat.; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections; Petition DENIED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    PATRICIA WEINGARTEN ASSOCIATES, INC., Appellant, v. Kim TAYLOR, Appellee.
    No. 5D06-692.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Peter N. Price of Peter N. Price, P.A., Hollywood, for Appellant.
    Garry D. Adel of Blanchard, Merriam, Adel Kirkland, P.A., Ocala, for Appellee.
   PER CURIAM.

Patricia Weingarten Associates, Inc., appeals from an order awarding attorneys’ fees to Kim Taylor, pursuant to section 57.105, Florida Statutes. The fees were awarded following the trial court’s entry of a final judgment quieting title to property in Marion County, Florida, in favor of Taylor. We recently reversed the underlying judgment in Taylor’s favor, and remanded the matter back to the trial court for reconsideration in light of the United States Supreme Court opinion in Jones v. Flowers, — U.S. -, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). See Patricia Weingarten Assoc., Inc. v. Taylor, 936 So.2d 772 (Fla. 5th DCA 2006). Accordingly, we also reverse the attorneys’ fee award. If the trial court’s reconsideration of the underlying matter results in another judgment in favor of Taylor, the court may also reconsider the propriety of awarding attorneys’ fees to Taylor.

REVERSED AND REMANDED.

PLEUS, C.J., LAWSON and EVANDER, JJ., concur.


text:
    Basil ANDREWS, Petitioner, v. Ralph JOHNSON, Sheriff, Walton County, State of Florida, and Department of Children and Family Services, Respondents.
    No. 1D06-4617.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2006.
    William Kemper Jennings, Defuniak Springs, for Petitioner.
    Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

By petition for writ of habeas corpus, or alternatively, for writ of certiorari, Basil Andrews challenges an order committing him to the custody of the Department of Children and Families for placement at the Florida State Hospital, following a determination that he continues to be incompetent to proceed in a pending criminal matter. We conclude that the proper remedy is certiorari. See Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004); Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998).

Among the prerequisites for involuntary commitment of a defendant adjudicated to be incompetent, section 916.13(l)(c), Florida Statutes (2006), requires that the court find clear and convincing evidence that “[tjhere is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.” In this instance, however, the circuit court expressly found that it is improbable that Andrews can attain competency to proceed in the foreseeable future. As the state correctly concedes, this finding precludes petitioner’s involuntary commitment under section 916.13.

Accordingly, the petition for writ of cer-tiorari is granted, the order committing Andrews for placement at the Florida State Hospital is quashed, and the matter is remanded to the circuit court for further proceedings.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Wallace A. WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1597.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Robyn M. Blake, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Wallace A. Woods (“Woods”), appeals his convictions for robbery and burglary of an occupied conveyance. Prior to trial, Woods filed a motion to suppress the out-of-court identification by the victim. Woods seeks reversal of his convictions based upon the trial court’s failure to hold an evidentiary hearing and to rule on his motion prior to commencement of the trial. As we conclude that the defendant waived any objection to the trial court’s suggestion to defer ruling until it heard from the victim at trial by not only failing to object to the suggested procedure, but in fact, by affirmatively agreeing to it, and because the defendant does not allege, nor do we find, any prejudice flowing from the procedure employed, we affirm.

The record reflects that the defendant’s motion to suppress the out-of-court identification was based upon the level of certainty displayed by the victim in making the identification, not the procedure employed by law enforcement. Defense counsel specifically informed the trial court that it was not claiming that the identification procedure was suggestive. When the trial court suggested that it not conduct a separate hearing and that it defer ruling until after hearing from the witnesses during trial, defense counsel advised the trial court that it was “okay.” We, therefore, find that the defendant waived any objection to the procedure employed. See Thomas v. State, 730 So.2d 667, 668 (Fla.1998) (“Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered waived.”)

The suppression of an out-of-court identification is governed by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which provides a two-prong test: (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification, and (2) if so, whether the suggestive procedure gives rise to a substantial likelihood of irreparable mis-identification. See also Fitzpatrick v. State, 900 So.2d 495, 517 (Fla.2005); Rimmer v. State, 825 So.2d 304 (Fla.2002). As defense counsel specifically informed the trial court that the defendant was not claiming that the procedure employed by law enforcement was suggestive, it is doubtful that the motion to suppress was legally sufficient as it contained no legal basis upon which the trial court could have granted the motion. Additionally, the victim testified that when she identified the defendant (approximately thirty-five minutes after the robbery) she recognized him immediately. Thus, even if we were to conclude that the motion to suppress the victim’s identification was legally sufficient, we would find that because the defendant did not claim that the procedure employed was suggestive, it was the jury’s responsibility, not the trial court’s, to weigh the evidence and to determine its probative value. See Downer v. State, 375 So.2d 840, 847 (Fla.1979); Farrington v. State, 884 So.2d 1094, 1097 (Fla. 4th DCA 2004).

Affirmed.


text:
    Peter ROTH and Marilyn Roth, Appellants, v. Alan COHEN, Appellee.
    No. 3D06-116.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Jorden Burt, and Richard J. Ovelmen and Andres F. Chagui and Landon K dayman, Miami, for appellants.
    Lee Milich, Ft. Lauderdale, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

Appellants Peter and Marilyn Roth (hereinafter “the Roths”) appeal a non-final order compelling arbitration of their Counterclaim and Third Party Complaint. At issue on appeal is whether Appellee Alan Cohen (“Cohen”) waived his right to compel arbitration when he filed suit in circuit court. Because we find that, by filing his otherwise arbitrable defamation claims in circuit court, Cohen waived his right to compel arbitration, we reverse the trial court’s order compelling arbitration of the Counterclaim.

1. FACTUAL AND PROCEDURAL HISTORY

Cohen is the sole officer and director of Alan David, Inc. (“ADI”), an interior design company. In 2003, Cohen and ADI decorated a model home at Cloisters on the Bay (“Cloisters”), a luxury development in Miami, Florida.

After purchasing a residence at the Cloisters, Peter Roth received a recommendation from the Cloisters that he use Cohen’s and ADI’s services. Peter Roth and ADI subsequently entered into an interior design services agreement. The signatories to that contract were Peter Roth and Cohen.

The design contract provides that Roth would purchase items through or from the designer at cost. The contract also contains an arbitration clause that states, in relevant part: “Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration in Broward County .... ” (emphasis added).

According to the Roths, Cohen and ADI breached the contract by charging and collecting more than cost for design items and by inappropriately charging sham Florida sales taxes. The Roths met with Leonard Albanese (“Albanese”), the Cloisters’ developer, in November of 2004 to discuss Cohen and ADI’s breach and Alba-nese’s continued recommendation of Cohen and ADI to Cloisters’ residents. On February 1, 2005, the Roths sent a letter to Albanese questioning why he continued to refer Cohen’s services to Cloisters’ residents, and enclosing invoices which the Roths claimed showed the improper cost overcharges and sham sales taxes.

On June 23, 2005, Cohen filed suit in circuit court against the Roths asserting claims for libel, defamation, slander, and tortious interference with his relationship with Albanese and the Cloisters. In his Complaint, Cohen alleged that he is the president of ADI and was employed by Peter Roth to provide interior design services to Roth’s residence at the Cloisters.

The Roths filed their Answer and Affirmative Defenses, as well as a Counterclaim and Third Party Complaint (naming ADI as a third party defendant) seeking joint and several damages from Cohen and ADI for fraud, fraud in the inducement, unjust enrichment, conversion, civil theft, constructive fraud, breach of contract, and an equitable accounting. In all but the constructive fraud and equitable accounting counts, the Roths allege that Cohen is the alter ego of ADI.

On October 10, 2005, Cohen and ADI filed a Motion to Stay Proceedings and Compel Arbitration of the Counterclaim and the Third Party Complaint. At the hearing before the trial court, the parties’ arguments centered on the issue of whether there was a nexus between Cohen’s claims and the design agreement and whether Cohen waived his right to arbitrate. The trial court granted the motion, and ordered arbitration of both the Counterclaim against Cohen and the Third Party Complaint against ADI.

II. STANDARD OF REVIEW AND FACTORS TO BE CONSIDERED IN GRANTING MOTION TO COMPEL ARBITRATION

We review an order granting or denying a motion to compel arbitration de novo. Vacation Beach, Inc. v. Charles Boyd Construction, Inc., 906 So.2d 374, 376 (Fla. 5th DCA 2005); Orkin Exterminating Co. v. Petsch, 872 So.2d 259 (Fla. 2d DCA 2004). When considering a motion to compel arbitration, three factors need to be considered: (1) whether a valid agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999).

In Seifert, the Florida Supreme Court stated that “even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638. Thus, not every dispute that arises between contracting parties will be subject to arbitration, nor is the mere fact that a dispute would not have arisen but for the contract sufficient to compel arbitration of the dispute. Id. In establishing this standard, the Florida Supreme Court relied upon cases holding that for a tort claim to be considered “arising out of or relating to” a contract, “it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself.” Id.

III. ARGUMENTS ON APPEAL

On appeal, the Roths argue that the trial court erred in compelling arbitration of their Counterclaim because the arbitration clause contained in the design contract applied to Cohen’s defamation claims and, therefore, Cohen waived his right to compel arbitration when he filed suit in circuit court. In response to the Roths’ arguments, Cohen advances two arguments on appeal. First, he argues that, because the design contract is between ADI and Peter Roth, he did not have the right to demand arbitration under the contract in the first place and, therefore, could not have waived any such right. Cohen, however, failed to preserve this issue for appellate review. “For an issue to be preserved for appeal, ... it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” Archer v. State, 613 So.2d 446, 448 (Fla.1993); Vacation Beach, Inc. v. Charles Boyd Const., Inc., 906 So.2d 374 (Fla. 5th DCA 2005); Parlier v. Eagle-Picher Indus., Inc., 622 So.2d 479 (Fla. 5th DCA 1993). Because Cohen did not raise this argument before the trial court, the issue was not preserved and is, therefore, not properly before this Court.

Even if Cohen had preserved this issue, however, it would not avoid reversal, as Cohen proceeded before the trial court in a manner inconsistent with this argument. By moving to compel arbitration of the Counterclaim against him, Cohen affirmatively took advantage of the very arbitration clause he now claims he did not have a right to demand. Following Cohen’s argument, his motion to compel arbitration of the Counterclaim would have been without factual or legal basis.

Cohen also argues that the arbitration clause does not apply to the defamation claims he filed before the circuit court because, following Seifert, an insufficient nexus exists between his claims and the arbitration clause. We disagree.

In support of his position, Cohen relies on King Motor Co. v. Jones, 901 So.2d 1017 (Fla. 4th DCA 2005). In King, the plaintiff purchased a car pursuant to a purchase and sales contract containing a broad arbitration clause. After learning that the financial information she provided to the dealer had been stolen and that she had become a victim of identity theft, the plaintiff sued the dealer under a variety of tort and statutory theories. The trial court denied the dealer’s motion to compel arbitration and the Fourth District affirmed. Relying on Seifert, the Fourth District reasoned that the tort claims were based on the dealer’s alleged breach of duty to keep customer’s confidential and financial information safe — duties owed generally to the public — and did not implicate the contractual duties created or governed by the parties’ purchase and sales contract. Moreover, none of the allegations in the complaint required reference to, or construction of, any portion of the parties’ contract. King, 901 So.2d at 1020.

In contrast, in the present case, there is a sufficient nexus between Cohen’s claims and the design contract such that the arbitration clause applies to this action. Cohen’s claims all relate to allegedly false verbal and written statements made by the Roths regarding Cohen’s failure to comply with the terms of the design contract. As such, and unlike King, the dispute in this case arises out of a construction of the design contract’s terms and conditions, and necessarily requires reference to those provisions of the contract. Because Cohen’s claims are based upon statements regarding the alleged breach of rights and obligations that exist under the design contract, they have a sufficient nexus to that contract as to fall within the arbitration clause. Cf. Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1109 (Fla. 3d DCA 1995)(where contract between the parties provided for arbitration of “any controversy or claim arising out of or relating to this Agreement,” claims for defamation, fraud, and business interference clearly had their origin or genesis in the contract and arbitration clause applied). See also Popper v. Monroe, 673 F.Supp. 1228 (S.D.N.Y. 1987)(where allegedly defamatory statements directly related to the interpretation of contract terms, dispute subject to arbitration pursuant to contract). Accordingly, we hold that the trial court erred when it found that Cohen’s claims against the Roths were not subject to the design contract’s arbitration clause.

Turning to whether Cohen waived his right to arbitrate, in Raymond James Financial Services Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005), the Florida Supreme Court noted that “[t]he right to arbitration, like any contract right, can be waived .... [therefore] an arbitration right must be safeguarded by a party who seeks to rely upon that right, and the party must not act inconsistently with the right.” “[T]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Id.

In this case, Cohen commenced a lawsuit against the Roths in circuit court and propounded discovery requests. This active participation in a lawsuit is inconsistent with a party’s contractual right to arbitration and constitutes a waiver of that right. See Fine Decorators, Inc. v. Argent Global (Bermuda) Ltd., 919 So.2d 604, 606 (Fla. 3d DCA 2006); Hill v. Bluntzer, 701 So.2d 901, 902 (Fla. 3d DCA 1997); Lapidus v. Arlen Beach Condominium Assn., Inc., 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). Because we find that the arbitration clause applied to Cohen’s defamation claims and that Cohen waived his right to arbitrate by filing suit in circuit court, the trial court’s order compelling arbitration of the Counterclaim is reversed.

Reversed and remanded for further proceedings consistent herewith.

      . Although the order on appeal compelled arbitration of both the Counterclaim against Cohen and the Third Party Complaint against ADI, appellants' arguments on appeal were limited solely to the Counterclaim against Cohen. As no argument was presented to this Court regarding the Third Party Complaint, we do not address it here. See Ramos v. Philip Morris Companies Inc., 743 So.2d 24, 29 (Fla. 3d DCA 1999); Polyglycoat Corp. v. Hirsch Distributors Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1984).

      . Peter and Marilyn Roth were not married at the time the contract was signed, and Marilyn Roth is not a party to the contract.

      . The Roths’ letter to Albanese is attached to the Complaint.


author: SCHWARTZ, Senior Judge.

text:
    VIRGIN RECORDS AMERICA, INC., f/u/b/o National Union Fire Insurance Company, Petitioner, v. SKYSTREAM, INC., Respondent.
    No. 3D06-1304.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Tew Cardenas and William G. Burd and John S. McPhee, Miami, for petitioner.
    McIntosh, Sawran, Peltz and Cartaya and Robert D. Peltz, Miami, and Robert C. Weill, Ft. Lauderdale, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The petitioner Virgin Records America, Inc., was the plaintiff in an action for, inter alia, indemnification by the respondent Skystream, Inc., of a large settlement Virgin had paid several plaintiffs in an airplane crash-wrongful death case. It seeks certiorari review of an order holding that Skystream was entitled to production of various communications between Virgin and its attorneys prior to the settlement. While it is admitted that the material would otherwise be subject to the attorney-client privilege, the trial court held that the privilege had been waived simply by bringing the indemnity action, because the attorney’s advice as to the reason for the settlement went to the “heart” of that claim.

We disagree and quash the order under review in its entirety. It is quite apparent that the only elements in a case such as this which must be proven by the indemni-tee are that, under the facts of the underlying case (1) the indemnitee was guilty of no negligence whatever and (2) its exposure to liability was based entirely on a vicarious or other derivative relationship with the indemnitor. See Dade County Sch. Bd. v. Radio Station WQBA 731 So.2d 638 (Fla.1999); Houdaille Indus., Inc. v. Edwards, 374 So.2d 490 (Fla.1979). Unlike a case in which the alleged bad faith of the claimant is involved, see Allstate Indem. Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), and the basis for its conclusion to settle the action is therefore in direct controversy, the content of the attorney’s advice has nothing to do with the ultimate resolution of the case. Hence, the trial court’s conclusion to the contrary cannot be upheld. See S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377 (Fla.1994)(noting that the attorney-client privilege applies to confidential communications made in the rendition of legal services to a client); Certain London Mkt. Insurers v. Associated Aviation Underwriters, Inc., 891 So.2d 601 (Fla. 1st DCA 2005)(concluding that opinions of attorney and law firm regarding the settlement value of the underlying case were protected by the attorney-client privilege); Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165 (Fla. 1st DCA 1983)(holding that a party’s simple allegation in a contribution action that a settlement was reasonable does not take a case out of the general rule that merely bringing an action does not waive the attorney-client privilege); see also Eastern Air Lines, Inc. v. U.S. Aviation Underwriters, Inc., 716 So.2d 340, 343-44 (Fla. 3d DCA 1998)(citing Remington Anns Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 412 (D.Del.1992), and observing “[b]eeause a plaintiff puts a question ‘at issue’ which would normally be, as in this case, creating a divergence of claims between the parties who would normally be on the same side, does not in itself mean that the plaintiff has to give up, blanket-wise, all of the privileges that have been bestowed upon attorneys by law”).

Certiorari granted.

      . The respondent does not contest the reasonableness of the amount of the settlement.


author: GREEN, J.

text:
    C.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1183.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Bennett H. Brummer, Public Defender and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Laura Moszer Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

C.G. appeals his adjudication of delinquency for the possession of marijuana. He argues, among other things, that the trial court erred in denying his motion to suppress the evidence seized from his belongings during a school search. We agree and reverse.

The sum total of the evidence adduced at the trial below revealed that C.G., a student at Redland Middle School, became dizzy while at school and lost consciousness in the bathroom. When he regained consciousness, C.G. located the school’s monitor and told the monitor that he was not feeling well. The monitor escorted C.G. to the Assistant Principal’s office. C.G. told Ms. Margaret Fahringer, the Assistant Principal, that he had passed out in the bathroom. Ms. Fahringer testified that C.G. appeared “a little quiet and subdued” and seemed “a little pale,” but she didn’t notice anything else about him at that time. Without more, she summarily ordered C.G. to empty his pockets and book bag.

When C.G. emptied his pockets, Ms. Fahringer spotted some pieces of paper and a little plastic baggie filled with green material. Ms. Fahringer testified that she believed this material to be marijuana and summoned the police. Officer Mario Rivera responded to the school and was given the baggie and its contents. The officer field tested a sample of the baggie’s contents; it tested positive for marijuana. The officer arrested C.G.

The State filed a petition for delinquency against C.G. charging him with possession of marijuana. C.G. filed a motion to suppress the physical evidence and statements on the grounds that the school official lacked reasonable suspicion of criminal activity to justify conducting a search of his person and belongings. The motion to suppress was heard during the bench trial of the adjudicatory proceeding. Upon the conclusion of the trial, the trial court denied the motion and adjudicated C.G. delinquent as charged.

On this appeal, C.G. argues that the Assistant Principal’s demand for him to empty his bag and pockets constituted an illegal search in the absence of reasonable suspicion of criminal activity. We agree and conclude that the motion to suppress should have been granted.

The search of a student by a school official under ordinary circumstances is subject to the Fourth Amendment and therefore requires that the school official have “reasonable grounds to suspect that a search will result in evidence that the student has violated the law or school rules.” New Jersey v. T.L.O., 469 U.S. 325, 341-47, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Accordingly, the State is obligated to elicit specific and articulable facts that, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. See A.H. v. State, 846 So.2d 1215, 1216 (Fla. 5th DCA 2003); A.N.H. v. State, 832 So.2d 170, 171 (Fla. 3d DCA 2002).

In the case before us, there were no facts elicited that, when combined with rational inferences therefrom, would have given the school official reasonable grounds to conclude that C.G. had violated either the law, or the school’s rules. The search in this case was premised entirely upon C.G.’s passing out in the bathroom and his appearance being “a little quiet and subdued” and “a little pale” to a school official. We have held that facts such as these, without more, are entirely consistent with non-criminal behavior such as illness. See A.N.H. v. State, 832 So.2d at 172 (school official had no reasonable suspicion to search student who had bloodshot eyes and was not himself); see also A.H. v. State, 846 So.2d 1215 (Fla. 5th DCA 2003)(no reasonable basis for search of student whose speech was slurred and was “not acting right”).

We therefore must reverse the adjudication of delinquency and remand with instructions to discharge C.G. Given our holding it is unnecessary to address C.G.’s remaining point on appeal.

Reversed and remanded with instructions.


text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. J.S. and T.S., Appellee.
    No. 3D06-627.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Karla Perkins, Miami, for appellant.
    Albert W, Guffanti, Miami, for appellee.
    Before COPE, C.J., and GREEN and CORTINAS, JJ.
   PER CURIAM.

Affirmed. M.F. v. Florida Dept. of Children and Families, 770 So.2d 1189, 1192 (“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.”) (Footnote omitted).


text:
    Carla RUIZ and Antonio Ruiz, her husband, Appellants, v. AEROREP GROUP CORP. d/b/a Aeropostal, Appellees.
    No. 3D05-1460.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Lorenzo & Capua and Peter Marcellus Capua, Miami, for appellants.
    Ricardo E. Pines, Coral Gables, for ap-pellees.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Carla Ruiz and Antonio Ruiz appeal an order dismissing their claims against Aero-rep Group Corp. d/b/a Aeropostal (“Aero-postal”) for failure to state a cause of action. We affirm.

Carla Ruiz was an employee of Aeropos-tal. She alleges that on July 4, 2004, while she was working, her supervisor, Jimmy Espinosa, pushed her and caused her to strike her abdominal area against a counter. She alleges that she reported this incident to various managers and to Aero-postal’s human resources department, verbally and in writing, but they took no corrective measures or disciplinary action against Espinosa. Mrs. Ruiz claims that, although Aeropostal changed Espinosa’s schedule so that he did not work while she was working on Wednesdays and Thursdays, Aeropostal scheduled him to work with her on Sundays. She further alleges that when she went to work on the Sunday after the incident, Espinosa verbally abused and threatened her, and that when she reported this to a manager the next day, she was told that nothing further would be done. Mrs. Ruiz reported Espi-nosa’s alleged battery to law enforcement, which conducted an investigation of the incident. On July 29, 2004, Aeropostal terminated Mrs. Ruiz’s employment.

Subsequently, the Ruizes filed a complaint, which included a count alleging a cause of action under Florida’s Private Sector Whistleblower’s Act, § 448.101, et seq., Fla. Stat. (2003)(“Whistleblower’s Act”). The trial court dismissed this count, and the Ruizes filed an amended complaint also setting forth a count alleging a Whistleblower’s Act violation. The trial court again dismissed the count alleging a Whistleblower’s Act violation. The Ruizes filed a second amended complaint, which omitted a Whistleblower’s Act violation claim and instead, added a claim against Aeropostal for battery, based upon the principles of respondeat superior and employer ratification. The trial court dismissed this claim with prejudice. The complaint and each of the amended complaints contained a derivative count on behalf of Mr. Ruiz for loss of consortium, which the trial court also dismissed. The Ruizes do not appeal the dismissal of their derivative claim, but do appeal the dismissal of their claims alleging a violation of the Whistleblower’s Act and battery.

“Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review.” Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 205 (Fla. 3d DCA 2003).

Because we conclude that the Ruizes have not properly preserved for review the dismissal of their Whistleblower’s Act cause of action, we affirm the trial court’s dismissal of this count. The Ruizes’ initial and first amended complaints alleging a cause of action under the Whistleblower’s Act were superseded by the second amended complaint, which did not allege a cause of action under the Whistleblower’s Act and did not indicate an intention to preserve any part of the prior complaints. See Arthur v. Hillsborough County Bd. of Criminal Justice, 588 So.2d 236, 237 (Fla. 2d DCA 1991); Downtown Invs., Ltd. v. Segall, 551 So.2d 561, 562 (Fla. 3d DCA 1989), review denied, 563 So.2d 633 (Fla.1990). By failing to reassert a claim for a Whistleblower’s Act violation in the second amended complaint, the Ruizes abandoned the claim and cannot resurrect it on appeal. Arthur, 588 So.2d at 237.

We additionally conclude that even if the Ruizes had preserved for appellate review the dismissal of their Whistleblower’s Act claim, we would affirm the trial court’s ruling because we agree that the complaint and amended complaint did not allege a valid cause of action under the Whistleblower’s Act. The Whistleblower’s Act prohibits an employer from taking any retaliatory action against an employee for providing information to a governmental agency investigating a violation by the employer of a law, rule, or regulation. See § 448.102, Fla. Stat. (2003); Sussan v. Nova Se. Univ., 723 So.2d 933 (Fla. 4th DCA 1999). In the instant case, the amended complaint alleged that Jimmy Espinosa, an employee of Aeropostal, not Mrs. Ruiz’s employer, committed a battery upon her.

Although an employer may be responsible for the actions of an employee under certain circumstances, those circumstances have not been alleged in the instant case. An employer is responsible for an intentional tort committed by an employee if the employee committed the tort while acting within the course and scope of his employment, with the purpose of benefiting the interests of the employer. Cowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999); Bryant v. CSX Transp., Inc., 577 So.2d 613, 615 (Fla. 1st DCA 1991); Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744, 758 (Fla. 1st DCA 1991); Perez v. Zazo, 498 So.2d 463, 465 (Fla. 3d DCA 1986). As the amended complaint in the instant case failed to set forth any factual allegation supporting that Mrs. Ruiz’s co-employee battered Mrs. Ruiz with the purpose of benefiting the interests of Aeropostal, the trial court was correct in dismissing their claims alleging a Whistleblower’s Act violation.

The trial court also did not err in dismissing the Ruizes’ battery claim against Aeropostal in the second amended complaint which was premised on the theories of respondeat superior and ratification. The second amended complaint specifically alleged that Espinosa’s battery of Mrs. Ruiz occurred within the course and scope of their employment. When an employee’s injury arises out of the course and scope of his or her employment, worker’s compensation is the exclusive remedy for the injury, and the employer is provided with immunity from any other liability for the injury. FCCI Ins. Co. v. Home, 890 So.2d 1141, 1143 (Fla. 5th DCA 2004); Lovin Mood, Inc. v. Bush, 687 So.2d 61, 62 (Fla. 1st DCA 1997). While there are exceptions to worker’s compensation immunity, there are no allegations in the second amended complaint supporting the applicability of any of the exceptions. Although workers’ compensation immunity usually cannot be raised in a motion to dismiss, an exception exists allowing the defense to be raised in a motion to dismiss where the defense appears on the face of the complaint. Roberts v. Cadco Builders, Inc., 694 So.2d 845, 846 (Fla. 2d DCA 1997); Gen. Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 277-78 (Fla. 3d DCA 1995). Therefore, pursuant to the allegations set forth in the second amended complaint, because Aeropostal was entitled to worker’s compensation immunity for Mrs. Ruiz’s battery, the trial court properly dismissed their battery claim against Aeropostal.

Affirmed.


author: WEBSTER, J.

text:
    Doretta TURNER, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher-Bassett Services, Inc., Appellees.
    No. 1D06-0640.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Appellant.
    Steven P. Kronenberg and Kimberly J. Fernandes of Kelley, Kronenberg, Gilmar-tin, Fichtel & Wander, Miami Lakes, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, claimant seeks review of a final merits order. She contends that the judge of compensation claims erred when he denied a claim for additional impairment benefits based on a neck injury and a claim for penalties and interest based on the late payment by the employer and servicing agent of impairment benefits attributable to a low-back injury. We agree, and reverse and remand for further proceedings.

On February 14, 2001, claimant was involved in a compensable accident. On June 28, 2002, claimant filed a petition seeking impairment benefits attributable to injuries to both her neck and low back. On July 23, 2002, the employer and servicing agent paid for 15 weeks of impairment benefits attributable to the low-back injury, but paid nothing as to the additional impairment allegedly attributable to the neck injury. The response to the first petition did not controvert the claim based on the neck injury. On July 29, 2002, claimant filed a second petition for benefits seeking penalties and interest for the alleged late payment of impairment benefits attributable to the low-back injury. In a pretrial stipulation entered into by the parties and approved by the judge, the employer and servicing agent responded “yes” to the question asking whether the accident was accepted as compensable and to the question asking whether the “[injuries or conditions” were accepted as com-pensable.

At the commencement of the merits hearing, the attorney for the employer and servicing agent took the position that claimant was not entitled to benefits on account of her neck injury because the evidence would establish that the workplace accident was not the major contributing cause of that injury. Claimant’s attorney responded that the employer and servicing agent could not make such an argument because they had stipulated that claimant’s “[injuries or conditions” were compensable. The parties then introduced evidence, which included medical testimony presented by the employer and servicing agent that' claimant’s neck injury was not causally related to the workplace accident. The judge subsequently entered a final merits order holding that claimant had failed to carry her burden of demonstrating that her neck- injury had been caused by the workplace accident. The order denied the request for impairment benefits attributable to the neck injury, but did not discuss claimant’s position that the employer and servicing agent were precluded from challenging compensability of the neck injury because of the pretrial stipulation. It also denied the claim for penalties and interest because of late payment of impairment benefits attributable to the low-back injury, again without discussion.' This appeal follows.

As a general rule, “[a] stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971). Accord Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So.2d 767, 769 (Fla. 4th DCA 2002); Burnsed v. State, 743 So.2d 139, 139-40 (Fla. 2d DCA 1999). Here, it would appear that the provision in the pretrial stipulation by which the parties agreed that claimant’s “[ijnjuries or conditions” were compensa-ble relieved claimant of any obligation to establish compensability as to her neck injury, and precluded the employer and servicing agént from attempting to establish the contrary until and unless that stipulation was set aside. No request to set aside the stipulation appears in the record, and the judge failed to address the impact of the stipulation in the merits order. Because the judge failed to address this issue, we reverse and remand with directions that the judge address the impact (if any) of the pretrial stipulation on the right of the employer and servicing agent to controvert the claim for impairment benefits attributable to claimant’s neck injury, and make findings of fact supporting his conclusion. See, e.g., Mitchell v. S. Fla. Baptist Hosp., 805 So.2d 80, 82 (Fla. 1st DCA 2002); Delchamps v. Page, 659 So.2d 341, 342 (Fla. 1st DCA 1995); King Motor Co. v. Pollack, 409 So.2d 160, 166 (Fla. 1st DCA 1982).

With regard to the issue of claimant’s entitlement to penalties and interest for late payment of impairment benefits attributable to the low-back injury, the evidence appears to demonstrate that the employer and servicing agent were aware by at least late March 2002, when their attorney had a conference with Dr. Chiron, that claimant had reached maximum medical improvement on January 4, 2002, with a five percent impairment rating attributable to her low-back injury. (In fact, there is evidence suggesting that the servicing agent had received information to that effect on an earlier date.) Notwithstanding this evidence, however, claimant was not paid impairment benefits for her low-back injury until July 23, 2002. Thus, it would appear that claimant is entitled to penalties and interest for late payment. See § 440.15(3)(a)l (providing that “[o]nce the employee has reached the date of maximum medical improvement, impairment benefits are due and payable within 20 days after the carrier has knowledge of the impairment”); § 440.20(6) & (8) (addressing liability for penalties and interest, respectively), Fla. Stat. (2001). Nevertheless, because the judge also failed to make any findings regarding this issue, we are constrained to reverse and remand with directions that the judge address the issue and make findings of fact supporting his conclusion. See B & L Servs., Inc. v. Coach USA 791 So.2d 1138, 1144 (Fla. 1st DCA 2001).

In summary, we reverse the determinations that claimant is not entitled to impairment benefits attributable to her neck injury or to penalties and interest for late payment of impairment benefits attributable to her low-back injury, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    C.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-879.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order committing him to a moderate risk facility. Because the trial court erred when it failed to reference the characteristics of a moderate risk facility in relation to Appellant’s needs and failed to explain why its consideration of the evidence led to a different conclusion than that recommended by the Department of Juvenile Justice (DJJ), we must reverse.

Section 985.23(3)(e), Florida Statutes (2006), provides,

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

This court has explained that when the trial court departs from the DJJ’s recommendation, it “must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002) (citing A. C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999)).

Here, the trial court stated that the Jacksonville Marine Institute, as recommended by the DJJ, would “not meet the needs of these young men,” referring to both Appellant and his co-defendant. The trial court failed to differentiate between the two or explain why they should be treated identically. Therefore, the trial court did not reference the characteristics of a moderate risk placement vis-a-vis Appellant’s needs.

Additionally, the trial court restated the facts of the battery, which were already known to the DJJ, but did not explain why these facts justified a more restrictive commitment. The trial court also considered the extent of the victim’s injuries, a fact not previously known to the DJJ when it completed its predisposition report. Again, the trial court failed to reference the characteristics of the restrictiveness level in relation to Appellant’s needs. See D.R.B. v. State, 876 So.2d 700 (Fla. 1st DCA 2004) (explaining that when a trial court bases its reasons for departure on facts previously unknown to the DJJ, the factual findings must be supported by competent, substantial evidence and the court’s reasons must reference characteristics of the restrictiveness level in relation to the needs of the child). Therefore, we reverse the trial court’s disposition order and remand for further proceedings.

REVERSED and REMANDED.

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    William C. FARRIS, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES DISTRICT: 04 Duval Unit: 88208, Appellee.
    No. 1D05-6017.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    Megan Wall, St. Johns County Legal Aid, St. Augustine, for Appellant.
    Roger L.D. Williams, Assistant General Counsel, Department of Children and Family Services, Jacksonville, for Appel-lee.
   PER CURIAM.

We have for review an administrative order terminating Appellant’s eligibility for the Home and Community Based Services Medicaid Waiver Program (Med-Waiver). We reluctantly affirm. Appellant, who is mentally retarded, was approved to receive the Med-Waiver in September 2000. As a result of this program, Appellant was able to find employment, move out of his parents’ home, and live independently in a group home. Appellant’s eligibility was renewed annually by the Department of Children and Families (Department) without incident until 2004.

In June 2004, Appellant’s employer temporarily closed for renovations, forcing Appellant to apply for Social Security benefits. Because the Social Security Administration determined that Appellant’s monthly income of $1,200 exceeded the allowable Substantial Gainful Activity-amount, Appellant was deemed not disabled. Subsequently, relying on the Social Security’s denial of benefits, the Department determined Appellant was also no longer eligible for the Med-Waiver Program and terminated his eligibility. A hearing officer upheld the Department’s decision, and this timely appeal follows.

Rule 65A-1.711(4), Florida Administrative Code (2005), states:

(4) To be eligible for a Home and Community Based Services Waiver program, an individual must meet the requirements of Rule 59G-8.200, F.A.C.[] ... Additionally, an individual must meet the criteria for one of the following waivers:
(d) Be disabled in accordance with SSI disability criteria set forth in 42 C.F.R. §§ 435.540 and 435.541 (both incorporated by reference) and meet the requirements of subsection 65A-1.701(10), F.A.C., to participate in the Developmental Services waiver program;

The issue before us is a possible conflict between the second and third criteria for eligibility. Essentially, the second requirement (applicant must be disabled under 42 Congressional Federal Register sections 435.540 and 435.541) states that an agency must use the same definition of disability as that used under Supplemental Security Income. It further states that once the Social Security Administration makes a determination of disability, that determination is binding on the agency until changed by the Social Security Administration. See 42 C.F.R. §§ 435.540(a) & 435.541(b)(1)® (2005). A determining factor in determining whether one is disabled under the Social Security guidelines is the applicant’s ability to engage in “substantial gainful activity.” 20 C.F.R. § 416.971 (2005).

Meanwhile, the third requirement for eligibility for the Med-Waiver Program (rule 65A-1.701(10), Florida Administrative Code) allows an applicant to qualify if his “gross income” is less than three times the Federal Benefits Rate. See R. 65A-1.701(10), 65A-1.713(l)(d), F.A.C. (2005). Although there is some inconsistency in the record, it appears that at the time of Appellant’s application, his monthly income was $1,200, while the monthly Substantial Gainful Activity limit was $880, and “300 percent” of the Federal Benefits Rate monthly limit was $1,737.

The principles of statutory construction require reconciliation among seemingly disparate provisions of law in order to give effect to all parts of the law. Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977). Appellant argues that it is impossible to give effect to both of these provisions when they are read together. If the second requirement disqualifies all applicants who have a monthly income that exceeds $880, then certainly the $1,737 monthly limitation in the third requirement would be rendered meaningless. Appellant urges this court to find that the second requirement is meant to be a non-financial requirement, and merely means that an applicant must be “medically disabled” under all non-financial definitions handed down by the Social Security Administration. Appellant argues that the higher financial requirement in the third prong is consistent with the intent of the Med-Waiver program and should be followed.

We find no conflict between the two provisions, as the monthly limitations refer to two different types of income. It is clear from the regulations and the interoffice documents in the record that the Med-Waiver program is available' only to those persons who have been deemed disabled by the Social Security Administration. Rule 65A-1.711(4)(d), F.A.C. (2005). Under Social Security Administration’s definition, one cannot be “disabled” if he or she is capable of substantial gainful activity. The substantial gainful activity amount is measured primarily from “earnings from your work activity as an employee.” 20 C.F.R. § 416.974(b)(2) (2005). However, the income level measured under the third prong is a limit on “gross income.” R. 65A-1.713(l)(d), F.A.C. (2005). Although not clearly defined in the Florida Administrative Code, it is reasonable that the Department’s definition of “gross income” includes not only earnings, but also other benefits received such as Social Security, VA benefits, pensions and contributions. See, generally, R. 65A-1.713(2), F.A.C. (2005). Under this interpretation, as explained at oral argument, it is possible for an individual to “earn” less than the Substantial Gainful Activity amount and qualify for the Med-Waiver Program under the second prong, yet have a “gross income” that is too high to qualify for the Program under the third prong. In fact, this interpretation is the only possible reading that can give effect to both provisions at issue here.

Although in our view the Department’s termination of Appellant’s Med-Waiver eligibility may be an unwise policy decision, we are nonetheless restricted by the confines of the law under Article II, Section 3 of the Florida Constitution.

AFFIRMED.

WOLF, PADOVANO and THOMAS, JJ., concur.

      . R. 59G-8.200, F.A.C., was transferred to 59G-13.080.