author: BASCHAB, Judge.

text:
    Al Joseph FELDER, Sr. v. STATE of Alabama.
    CR-04-2525.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    A1 Joseph Felder, Sr., pro se.
    Kim T. Thomas, gen. counsel and deputy atty. gen., and Albert Sim Butler, asst, gen. counsel and asst. atty. gen., Department of Corrections, for appellee.
   BASCHAB, Judge.

The appellant, A1 Joseph Felder, Sr., an inmate incarcerated at Fountain Correctional Facility, filed a petition for a writ of habeas corpus, arguing that he is being illegally detained. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

The record shows that, in 1990, in case number CC-90-92, the appellant was convicted of trafficking in cocaine, second-degree unlawful possession of marijuana, and failure to affix tax stamps. On March 1, 1990, the trial court sentenced him to serve concurrent terms of fifteen years in prison on the trafficking conviction, twelve months in the county jail on the unlawful possession conviction, and three years in prison on the failure to affix tax stamps conviction. The record also appears to indicate that the appellant was incarcerated in federal prison from sometime in 1991 until January 20, 2005, when he was brought back to Alabama pursuant to a fugitive warrant and an extradition petition to start serving his sentences on the above-referenced convictions.

The appellant argues that the circuit court erroneously summarily dismissed his petition. In his petition, he asserted that he had filed a motion for a summary judgment, asking that “ ‘all charges and sentences be vacated’ that, in an order issued on March 7, 1996, Judge Sally Greenhaw granted the requested relief and ordered that the charges and sentences in case number CC-90-92 be vacated; and that the State did not contest or appeal Judge Greenhaw’s order. (C.R. 4.) In support of his contentions, he attached several documents, including copies of a motion for summary judgment that had a different case number but appeared to pertain to case number CC-90-92 and an order from Judge Greenhaw dated March 7, 1996, which purported to be in case number CC-90-92.60. In the order, Judge Greenhaw stated:

“The Court ordered the Respondent to respond to Petitioner’s request on February 16th, 1996. There having been no response filed within fourteen days, it is hereby ORDERED that Petitioner’s request for relie[f] is due to be and is hereby GRANTED.”

(C.R. 30.) Therefore, the appellant concludes that his convictions and sentences in case number CC-90-92 have been vacated and that Alabama prison officials are illegally detaining him.

In this case, the State did not refute the appellant’s specific allegation that Judge Greenhaw ordered that the charges and sentences in case number CC-90-92 be vacated in an order issued on March 7, 1996. Rather, it asserted only that the appellant’s minimum release date was correct. Also, the circuit court did not make any findings of fact when it dismissed the petition.

‘"When the State responds to a habeas corpus petition merely by making broad, general arguments that do not address the petitioner’s specific claims, the State has failed to refute the facts alleged by the appellant and those facts must therefore be taken as true. Swicegood[ v. State, 646 So.2d 158 (Ala.Crim. App.1998) ]. See also Boutwell [v. State, 488 So.2d 33, 34 (Ala.Crim.App.1986)] (‘The State offered no facts which contradict those set out in the petition. Therefore, the unrefuted facts set out in the petition must be taken as true.’).”

Mintz v. State, 675 So.2d 1356, 1357-58 (Ala.Crim.App.1995).

The appellant’s claims could be meritorious. Accordingly, we remand this case to the circuit court with instructions that it make specific, written findings of fact addressing the validity of the appellant’s claims. On remand, the circuit court may require the State to respond specifically to the appellant’s claims and/or may conduct an evidentiary hearing on the claims. On remand, the circuit court may grant such relief, if any, that it determines to be necessary. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Michael WILSON v. STATE of Alabama.
    CR-05-1013.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      John Michael Wilson, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On July 28, 1982, the appellant, John Michael Wilson, was convicted of first-degree rape, and the trial court sentenced him to serve a term of life in prison. We affirmed his conviction on direct appeal. See Wilson v. State, 428 So.2d 197 (Ala. Crim.App.1983). On or about January 20, 2005, the appellant filed a Rule 32 petition, which the circuit court summarily denied. On September 22, 2005, the appellant filed the present Rule 32 petition, seeking an out-of-time appeal from the denial of his previous petition. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that he did not appeal the denial of his previous petition through no fault of his own. Specifically, he contends that the circuit court denied that petition on March 15, 2005, and that he did not learn that that petition had been denied until August 17, 2005. The State concedes that the appellant is entitled to an out-of-time appeal from the denial of the previous Rule 32 petition.

Rule 4(b)(1), Ala. R.App. P., requires that a notice of appeal in a criminal case be filed within 42 days after pronouncement of sentence. “In the context of post-conviction relief, the 42-day appeal period runs from the date of the [circuit] court’s denial of the Rule 32 petition.” Ex parte Jones, 773 So.2d 989, 989 (Ala.1998) (citing Barfield v. State, 703 So.2d 1011 (Ala.Crim.App.1997)).

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(f) The petitioner failed to appeal within the prescribed time ... from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.”

Rule 32.1, Ala. R.Crim. P.

The record indicates that the circuit court denied the appellant’s previous petition on March 15, 2005. However, the appellant alleges that he did not learn that his previous petition had been denied until August 17, 2005 — after the time for filing a notice of appeal had expired. Because the State did not refute this allegation, it must be taken as true. See Menefee v. State, 594 So.2d 251 (Ala.Crim.App.1992). Furthermore, our record from the petition for a writ of mandamus in case number CR-04-2215 supports the appellant’s allegations. Finally, the appellant filed his petition within six months after he learned about the denial of his previous petition, as required by Rule 32.2(c), Ala. R.Crim. P. Therefore, he is entitled to an out-of-time appeal. Accordingly, we reverse the circuit court’s judgment and remand this case with instructions that that court grant the appellant leave to file an out-of-time appeal from the denial of his previous Rule 32 petition. See Johnson v. State, 848 So.2d 282 (Ala.Crim.App.2002).

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . On or about July 26, 2005, the appellant filed a petition for a writ of mandamus in this court. (CR-04-2215.) In that petition, he asserted that he had filed a Rule 32 petition in the Mobile Circuit Court in January 2005; asserted that the circuit court had not "timely issue[d] an order, action, or judgement concerning said Rule 32”; and requested that we direct the circuit court "to order the state to respond to said Rule 32 petition, or, otherwise issue a judgement or order so that, if need be, an appeal can be perfected to this court should an adverse decision be entered.” (Mandamus petition.) On August 17, 2005, this court denied the petition for a writ of mandamus because circuit court records indicated that the appellant's Rule 32 petition had been denied on March 15, 2005.


author: PER CURIAM.

text:
    In re: Jane DOE, A Minor, Appellant.
    No. 4D06-1325.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2006.
    Ana Gomez-Mallada, Fort Lauderdale, for appellant.
   PER CURIAM.

A 17-year old minor appeals the denial of her petition for judicial waiver of parental notification of the minor’s termination of pregnancy, pursuant to section 390.01114, Florida Statutes (2005). We reverse, because the trial court failed to issue written and specific factual findings and legal conclusions supporting its decision to deny the petition. See § 390.01114(4)(d), Fla. Stat. (2005); Rule 8.825, Florida Rules of Juvenile Procedure.

Here, the uncontroverted evidence shows that the 17-year old petitioner is self-supporting, attending school, and has not communicated with or depended upon her sole parent for several years. The record is totally devoid of any factual or legal basis for the court’s determination that the minor is not sufficiently mature to decide whether to terminate her pregnancy. Here, the trial court’s conclusory finding on the minor’s maturity provides us with no basis for meaningful review and, further, based on this record, amounts to a failure to rule within the 48-hour period as mandated under the statute and rules. Accordingly, on remand, the trial court shall issue an immediate order granting the petition.

Reversed and Remanded.

GROSS, TAYLOR and MAY, JJ., concur.


author: VILLANTI, Judge.

text:
    THE DOCTORS COMPANY, Appellant, v. HEALTH MANAGEMENT ASSOCIATES, INC., Appellee.
    Nos. 2D05-1639, 2D05-2863 to 2D05-2866.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.
    Rehearing Denied Dec. 13,'2006.

      Mark Hicks, Brett C. Powell, and Ellen Novoseletsky of Hicks & Kneale, P.A., Miami, for Appellant.
    Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, and Robert L. Rocke and Jodi L. Corrigan of Rocke, McLean & Sbar, Tampa, for Appellee.
   VILLANTI, Judge.

The Doctors Company (TDC) appeals the final summary judgments that determined it was required to defend and indemnify Health Management Associates, Inc. (HMA) in five separate claims. Because the insurance policy at issue did not provide for coverage of the claims, we reverse and remand for the trial court to enter final summary judgments in favor of TDC.

TDC issued a Hospital and Healthcare Facility Liability Insurance Policy to HMA for the period of October 1, 2001, through October 1, 2002. Subsequent to the expiration of the policy period, HMA submitted five claims for money damages. TDC denied coverage because it contended that, as required by the policy’s terms, the claims were neither submitted as claims within the policy period nor as “probable claim events” within sixty days of the incidents giving rise to the claims.

The insurance policy at issue contains two forms of coverage: “claims made” and “probable claim events.” A claims-made policy “provides coverage for any claim that actually is made during the policy period arising out of an incident which actually occurred during the period.” Arad v. Caduceus Self Ins. Fund, Inc., 585 So.2d 1000, 1001 (Fla. 4th DCA 1991). A claim under this coverage must include a claim for money damages. Although not typical, the policy also provided extended coverage beyond the policy period for probable claim events under specific conditions. Probable claim events coverage, as provided for in this policy, does not include an initial claim for money damages. Rather, it is a form of insurance that, if specific conditions are complied with, effectively extends coverage beyond the policy period. It is the effect of this extended coverage to certain probable claim events that is at issue in this appeal.

The extended coverage in this policy is contained in Section III, Coverage A of the insurance contract and provides:

YOUR liability is covered under this Policy only if and when:
(2) WE receive a Claim Report during this Policy Period.
If a Probable Claim Event described in a Claim Report received by US during this Policy Penod results in a Claim, the Claim shall be deemed for all purposes to have been first made against YOU while this Policy is in effect.
If during this Policy Period, WE [TDC] receive a written report of a ... Probable Claim Event meeting all of the requirements for coverage in effect during this Policy Period, all subsequent Claims, at any time, of any nature, by any one, arising out of YOUR rendering or failing to render Facility Services at any time to the same person or persons shall be deemed for all purposes to be a single Claim reported to US during this Policy Period, and as such, these ... reported Probable Claim Events will be subject to all the provisions in effect during this Policy Period, including OUR Limits of Liability.

The Definitions section of the insurance contract defines a Probable Claim Event and sets forth certain requirements: “23. Probable Claim Event means a Facility Services Incident that is reasonably likely to give rise to a Claim, and for which YOU provide all of the following information to US in a Claim Report submitted with 60 days of the Incident.” Paragraph 11 defines Facility Services Incident as “an event, other than a General Liability Incident, that takes place while rendering or failing to render Facility Services.” Paragraph 10 defines Facility Services as “those health care or medical services YOU normally provide to patients as a health care facility or health care provider.” The apparent advantage of the provision for HMA is that it avoids the need to obtain “tail coverage” for properly-filed probable claim events that relate back to the policy period. As this case demonstrates, except as to timely-noticed and documented probable claim events, the coverage is not designed to otherwise replace the need for an insured to purchase tail coverage.

TRIAL COURT PROCEEDINGS

HMA filed a complaint for declaratory relief in five separate cases seeking liability coverage under the policy for medical malpractice claims brought against it after the policy period expired. HMA filed motions for summary judgment, and TDC filed cross-motions for summary judgment. Following a hearing, the trial court granted HMA’s motions and denied TDC’s. The court ruled that “the 60 day requirement found in the definition of Probable Claim Event is a condition of coverage and does not define the scope of coverage. Thus, coverage is not precluded by Plaintiffs failure to comply with the 60 day requirement in reporting the subject Incidents.” The court further found, and TDC did not dispute, that TDC was not prejudiced by HMA’s failure to comply with the sixty-day notice requirement. Final summary judgments were subsequently entered in favor of HMA, and the consolidated cases timely appealed.

APPLICABLE LAW

Insurance contracts, just like any other contract, “should receive a construction that is reasonable, practicable, sensible, and just.” Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004) (citing Weldon v. All Am. Life Ins. Co., 605 So.2d 911, 915 (Fla. 2d DCA 1992)). Insurance policy provisions excluding or limiting the insurer’s liability are construed more strictly than coverage provisions. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997). Limiting provisions must be construed in favor of the insured if they are ambiguous or reasonably susceptible to more than one meaning. Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1140 (Fla. 1998). “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). A single policy provision should not be considered in isolation, but rather, the “contract shall be construed according to the entirety of its terms ... as set forth in the policy and as amplified” by the policy application, endorsements, or riders. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003) (quoting § 627.419(1), Fla. Stat. (2002)). Ambiguity does not exist merely because an insurance contract is complex and requires analysis to interpret it. Id. at 165. Where no ambiguity exists, the policy shall be construed according to the plain language of the policy as bargained for by the parties. Anderson, 756 So.2d at 34. Finally, absent ambiguity, waiver, estoppel or contradiction of public policy, courts are not authorized to extend coverage beyond the plain language of the policy. Velasquez v. Am. Mfrs. Mut. Ins. Co., 387 So.2d 427, 428 (Fla. 3d DCA 1980).

ANALYSIS

Applying these principles, we conclude that the trial court erred in determining that the sixty-day requirement for probable claim event coverage was a condition of coverage rather than a term defining the scope of coverage. The plain language of the policy allows for coverage of any claims actually made during the policy period arising out of an incident that occurred during the policy period. The plain language of the policy also had an additional provision' — not like any typical claims-made policy. This additional provision provided limited coverage for incidents that occurred during the policy period but that did not result in claims until after the expiration of the policy on the condition that the insured reported the incident to TDC (1) during the policy period and (2) within sixty days of the incident, as explained by the definitions of probable claim event, which we are required to read into each term so used throughout the policy. These two requirements clearly define the scope of this additional coverage for claims not actually made during the policy period. To find otherwise would defeat the purpose of claims-made coverage and expand it beyond the scope contracted for by the parties. As the parties noted in their briefs, if these probable claim events, at any time during the policy period, turned into claims for money damages, then coverage would be available as claims were made. Because this did not happen and the probable claim event policy conditions were not met, any future claims for money damages made after the policy expired could not relate back and be covered under the policy.

As contended by TDC, a prejudice analysis is not reached under the straightforward terms of this policy. We are guided in our holding by Gulf Insurance Co. v. Dolan, Fertig & Curtis, 433 So.2d 512 (Fla.1983), which denied claims-made coverage for a claim alleged to have occurred during the policy period but not reported to the insurer until after the policy expired. “Coverage depends on the claim being made and reported to the insurer during the policy period.” Id. at 515. To hold otherwise would be to effectively rewrite the policy, converting it to an “extension of coverage to the insured gratis.... This we cannot and will not do.” Id. at 515-16. Similarly, even if the probable claim event is reported within the policy period, it is ineffective unless it is reported within “60 days of the [ijncident.” It is undisputed that HMA failed to report any of the subject incidents as claims or as probable claim events within the required sixty-day period. Thus, prejudice is not a factor here that can extend coverage that has expired.

We recognize that compliance with both requirements for probable claims event coverage — -to report incidents (1) during the policy period and (2) within sixty days of the incident — means that as the policy nears its expiration, the insured has less than sixty days to report. However, we refuse to rewrite the language of the policy to provide coverage beyond what the parties have contracted.

For the reasons stated above, we reverse the final summary judgments in favor of HMA. We direct the trial court to vacate those judgments on remand. Because TDC was entitled to summary judgment as a matter or law, we remand with directions to the trial court to enter final summary judgments in favor of TDC.

Reversed and remanded.

CASANUEVA and STRINGER, JJ„ Concur.

      . The information required is: (a) date, time, and place of the Incident; (b) a detailed description of what happened; (c) the name and address of the injured party; (d) the names and addresses of all witnesses; and (e) the expected nature and amount of damages.

      . "Tail coverage” is a supplemental coverage available to protect the insured in “the future for claims regarding incidents that occurred during the policy period but which were not presented until after the policy period.” Arad, 585 So.2d at 1001.

      . It appears that the trial court was unable to interpret the phrase "during this Policy Period” as less than the full period of time noted in the policy when the claim was based upon a probable claim event as opposed to a claim for monetary damages. However, we are aware of no statutory or public policy prohibitions that would prevent the parties from engaging in a contract providing for varying coverage terms. See Velasquez, 387 So.2d 427.


author: BROWNING, J.

text:
    LOCKHEED MARTIN and The Home Insurance Company in Liquidation, Appellants, v. SPECIAL DISABILITY TRUST FUND, Appellee.
    No. 1D05-5557.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.
    Rehearing Denied Dec. 12, 2006.
    James M. Hess and Margaret E. Sojourner, of Langston, Hess, Bolton, Shepard & Augustine, P.A., Maitland, for Appellants.

      Cynthia A. Shaw, Tallahassee, for Ap-pellee.
   BROWNING, J.

Appellants (E/C) seek reimbursement from the Special Disability Trust Fund (SDTF) for workers’ compensation benefits paid to a claimant, injured August 11, 1986, who is not a party to this action. The JCC ruled against E/C; we reverse.

Section 440.49(7)(a), Florida Statutes, provides that employer/carriers may seek reimbursement from the SDTF if they file a written notice of the claim “within 2 years after the date the employee last reached maximum medical improvement, or within 2 years after the date of the first payment of compensation for permanent total disability, wage loss, or death, whichever is later.” This time period cannot be waived because, rather than a statute of limitations, this is a non-claim statute. See Manatee Mem’l Hosp. v. Special Disability Trust Fund, 774 So.2d 876, 878 (Fla. 1st DCA 2000) (citing Special Disability Trust Fund v. Robbins Mfg. Co., 484 So.2d 54 (Fla. 1st DCA 1986)). The phrase “whichever is later” refers to the later of two dates as between the MMI date and the date of the first compensation payment, whether it be for permanent total disability, wage loss, or death. See Special Disability Trust Fund v. Executone of Cent. Fla., 670 So.2d 143 (Fla. 1st DCA 1996).

In the instant case, Claimant’s workers’ compensation claim was affirmed on appeal in 1991, E/C sent Claimant a check in 1992, and Claimant reached MMI in 1994. When E/C filed a notice of reimbursement with the SDTF in 1995, SDTF denied the claim as untimely, characterizing the 1992 check as the first payment of benefits. However, because Claimant reached MMI after the 1992 check, E/C had until two years from the date of MMI to seek reimbursement. Thus, E/C’s claim for reimbursement was timely.

REVERSED and REMANDED for further proceedings.

BARFIELD and VAN NORTWICK, JJ., concur.


author: SHEPHERD, J.

text:
    PARADISE DIVERS, INC., Petitioner, v. Kevin UPMAL, Respondent.
    No. 3D05-1327.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      McAlpin & Brais and Keith S. Brais and Richard D. Rusak; Shook, Hardy & Bacon and Edward A. Moss and Stephen J. Dar-mody, Miami, for appellant.
    Philip D. Parrish, Miami; Seiden, Alder & Matthewman and Michael W. McLeod, Boca Raton, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Paradise Divers, Inc. seeks certiorari review of an order compelling production of reports of Donna Albert, Esq. and Craig Jenni of Dive Consultants International relating to a maritime accident that resulted in serious personal injury to Paradise employee Kevin Upmal. We have jurisdiction, Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)(citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)), and quash the order under review insofar as it requires the production of their reports.

Prior to the date of the accident, Paradise Divers hired Upmal to serve as first mate on the MTV Paradise Diver IV off the Florida Keys. Upon learning of the accident, Paradise insurers retained Albert as counsel for Paradise. Jenni was retained to investigate the accident. During the course of her retention, Albert both provided legal advice to Paradise and communicated with Jenni and insurers concerning the investigation.

Upmal’s multi-count complaint includes causes of action for Jones Act negligence, unseaworthiness, and failure to provide maintenance and cure. As an affirmative defense to the latter claim, Paradise alleged “it relied upon the advi[c]e of former counsel, Donna Albert, Esq., not to pay maintenance and cure to Plaintiff and to advise Plaintiffs medical care providers that [Paradise] was not responsible for Plaintiffs bills.” Upmal countered with a request for production seeking “All investigation reports, surveys, or survey reports related to, or arising from Plaintiffs incident.” In response to the request, Paradise agreed to produce those documents relating to its “advice of counsel” maintenance and cure defense from Albert’s file. The production of these materials was made pursuant to an express limited waiver of both the attorney-client and work product privilege.

Upmal argues that by agreeing to produce those documents related to maintenance and cure, petitioner has waived any right it may have had to claim attorney-client or work product privilege to other portions of Albert’s and Jenni’s files. We disagree. A party can make a limited waiver of its attorney-client or work product privileges in this state. Volpe v. Conroy, Simberg & Ganon, P.A., 720 So.2d 537, 538-39 (Fla. 4th DCA 1998); Shafnaker v. Clayton, 680 So.2d 1109, 1111 (Fla. 1st DCA 1996); E. Air Lines, Inc. v. Gellert, 431 So.2d 329, 332 (Fla. 3d DCA 1983)(waiver by disclosure limited “to other unrevealed communications only to the extent that they are relevant to the communication already disclosed”); see also Procacci v. Seitlin, 497 So.2d 969 (Fla. 3d DCA 1986)(citing cases regarding limited waiver). The limited waiver made by Paradise on the subject of maintenance and cure does not constitute a waiver of the attorney-client and work product objections made to protected investigative materials, mental .impressions, or communications concerning other counts of the complaint. With exceptions not pertinent here, a party is not entitled to prepare. his case through the work product of another. See Southern Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994)(citing Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)(“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ”)).

Because that portion of the order under review constitutes a departure from the essential requirements of law not curable on review of the final judgment, the petition for certiorari in this case is granted and the order quashed to the extent it requires the production of the reports of Albert and Jenni.

Petition granted and order quashed.

      . The petition also sought to quash that portion of the order compelling production of ship's logs and manifests for the vessel. Petitioner has conceded the production of these documents.

      . Jones Act, 46 App. U.S.C.A. § 688(a).

      . In some circumstances, advice of counsel can be considered as a defense to an attorney fees claim for failure to provide maintenance and cure. See Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Stevens v. McGinnis, 82 F.3d 1353, 1360 (6th Cir.1996).


text:
    Omar F. BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4592.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 15, 2006.

      Omar F. Barnes, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, C.J., BENTON and LEWIS, JJ., concur.


author: PER CURIAM. BROWNING, J.,

text:
    Quincy WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5908.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Rehearing Denied Dec. 14, 2006.
    Quincy White, pro se, Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BARFIELD, and VAN NORTWICK, JJ., Concur; BROWNING, J., concurring in part and dissenting in part, with written opinion.

BROWNING, J.,

concurring in part and dissenting in part.

I respectfully dissent from the majority opinion as to Appellant’s issue three and concur as to all other issues. I would reverse and remand for attachment of copies of the record conclusively showing that Appellant is not entitled to relief, or for an evidentiary hearing on trial counsel’s failure to object to the prosecutor’s impermissible statements relating to Appellant’s right to remain silent. See State v. Marshall, 476 So.2d 150 (Fla.1985).


text:
    Freddie Roosevelt TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4589.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2006.
    Rehearing Denied Nov. 30, 2006.
    Freddie Roosevelt Taylor, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, BENTON and LEWIS, JJ., concur.


text:
    Willie DAVIS, Appellant, v. STATE of Florida, CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, Appellee.
    No. 1D05-2066.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.
    Rehearing Denied Dec. 14, 2006.
    Willie Davis, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated July 19, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on April 29, 2005, appealing the order on the appellant’s postconviction motion, rendered on March 29, 2005, is untimely. The trial court denied the appellant’s motion for postconviction relief on March 8, 2005. Rendition of that order was delayed until the appellant’s motion for rehearing was denied on March 29, 2005. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). The appellant’s motion to relinquish jurisdiction is denied as moot.

DISMISSED.

BARFIELD, C. J., PADOVANO, and HAWKES, JJ., concur.


text:
    Julio C. COLLAZO, Appellant, v. James R. McDONOUGH, Secretary Florida Department of Corrections, Appellee.
    No. 1D06-0583.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Dec. 8, 2006.

      Julio C. Collazo, pro se, Appellant.
    Charlie J. Christ, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the circuit court’s order denying his petition for writ of mandamus. On appeal, appellant, an inmate with the Florida Department of Corrections (“DOC”), raises three arguments. First, he contends that the circuit court erred by applying a certiorari standard of review to appellant’s claim that DOC failed to follow its own administrative rules — specifically, rule 33-601.309(4), Florida Administrative Code. Second, he argues that the circuit court erred in not reaching the merits of appellant’s argument that Rule 33-601.314(6-1), Florida Administrative Code (disobeying a written or verbal order), is unconstitutionally over-broad. Finally, appellant challenges the propriety of the circuit court order placing a lien on appellant’s inmate trust account as a condition of his going forward with his petition for writ of mandamus. We affirm, without comment, appellant’s first and second arguments on appeal. However, as acknowledged by appellee in its Answer Brief, the circuit court did err in issuing an order imposing a lien on appellant’s inmate trust account. Accordingly, to the extent that the trial court’s order calls for the imposition of a lien on appellant’s prison trust account, it is reversed.

This Court has held that a “circuit court mandamus action” challenging “a disciplinary action taken against [an inmate] by the Florida Department of Corrections which result[s] in [a] forfeiture of gain time ... is a collateral criminal proceeding in which indigency determinations are to be made in accordance with section 57.081, Florida Statutes.” Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006). Appellant’s petition for writ of mandamus challenged the disciplinary action taken against appellant by DOC which resulted in appellant’s forfeiture of 30 days of gain-time. Under these circumstances, appellant’s petition qualifies as a collateral criminal proceeding and his indigency determination should have been made pursuant to section 57.081, Florida Statutes.

The circuit court order incorrectly relies upon section 57.085, Florida Statutes, to justify the imposition of a lien on appellant’s prison trust account. In Wagner, this Court specifically held that “section 57.081, unlike section 57.085, does not contain statutory language authorizing imposition of a lien” and that a lien in this circumstance (i.e., a collateral criminal proceeding) was not permissible. Id. In light of the lack of statutory authority for imposing a lien, case law indicating that such a lien is unauthorized, and appellee’s concession on the point the circuit court’s May 6, 2005 order is hereby reversed to the extent that it imposes a lien on appellant’s inmate trust account. The matter is hereby remanded to the circuit court for entry of an order removing the lien from appellant’s prisoner trust account.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

ALLEN, BENTON, and HAWKES, JJ., concur.


author: STEVENSON, C.J. PER CURIAM.

text:
    Kelle SHEEHAN, Appellant, v. Crystal Morgan SHEEHAN, Appellee.
    No. 4D05-3243.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Opinion Denying Rehearing and Granting Clarification Jan. 3, 2007.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    Robert M.W. Shalhoub of the Law Offices of Robert M.W. Shalhoub, P.A., West Palm Beach, for appellee.
   STEVENSON, C.J.

In this appeal, the former husband challenges the equitable distribution scheme in the order dissolving his nearly seven-year marriage. We affirm in part and reverse in part.

The bulk of the assets of this marriage consisted of the family business, Sheehan Towing, Inc., and rental properties. The business was founded by the husband prior to the marriage and served as the employer and source of income for both parties. The divorce was tumultuous and gave rise to a variety of allegations of “misconduct” on both sides. Approximately one year after the filing of the petition for dissolution, the couple entered into a “Mediated Temporary Relief Agreement.” The agreement provided that the wife would operate the business to the exclusion of the husband. The -wife was to be responsible for collecting the rents and paying the expenses associated with the rental properties. The husband was to have exclusive possession of the former marital residence (the Carambola property). The wife was to pay the mortgage on the property and the additional sum of $10,000 per month to the husband. The agreement expressly declined to specify whether the payment of these sums was in the nature of support or an advance equitable distribution.

By the time of the trial, the parties had reached an agreement regarding custody and the husband’s child support obligation; neither party was seeking alimony. The parties agreed the wife would receive the business and stipulated that the date of valuation for the business and other assets would be December 31, 2003. The parties disagreed about the value of the business, the distribution of the remaining assets, and the treatment to be afforded the payments made to the husband under the mediated agreement. With respect to the business, both parties presented the testimony of an expert witness on the issue of valuation. The experts disagreed as to the appropriate valuation method. Assuming the same approach, however, the experts’ figures were relatively in line with one another. The husband’s expert ultimately valued the business at $400,000 and the wife’s at $88,000.

The couple owned six properties. Four (the Conniston property, the Wilkens Avenue property, the Wilkens Avenue impound lot, and the Alpha property) are rental properties. During the marriage and the pendency of the divorce, the wife collected the rents, paid the expenses, and ensured necessary repairs were made. The rent monies were deposited into a bank account (the rental account); the rental income was used to pay the expenses associated with the rental properties and the mortgage on the former marital residence. The Conniston property was owned by the husband prior to the marriage. In 2004, it generated a profit of $6,706.62 and, during the first five months of 2005, a profit of $617.91. The Wilkens Avenue properties were rented to the business. The Alpha property was located near the business and rented to an employee. In addition to the four rental properties, there was the former marital residence (the Carambola property) and a home that was purchased by the wife with $20,000 taken from the rental account and later sold (the Cozumel property).

While the mediated agreement provided that the wife would pay the husband $10,000 each month, it was agreed that the wife had paid the husband only $35,000 in the approximately fourteen months between the entry of the agreement and the trial. The husband claimed his exclusion from the business and his wife’s failure to make the payments required him to liquidate $49,161 from several bank accounts and an IRA to meet his living expenses. The wife insisted the husband had no such need, testifying he had taken $80,000 in cash from a safe in the marital residence. The husband denied this.

In entering the final judgment, the trial court accepted the parties’ stipulations regarding custody and child support. It valued the business at $300,000 and awarded the same to the wife in accordance with the parties’ agreement. The Wilkens Avenue, Wilkens Avenue impound lot, and Alpha properties were awarded the wife. The husband was awarded the Carambola residence and his non-marital Conniston property. The parties were held jointly responsible for the 2003 income taxes. As for the 2004 taxes, with the exception of the income generated by the Conniston property, the court ordered the wife solely responsible, reasoning that as a consequence of the parties’ agreement to value everything as of December 21, 2003, the wife “effectively ... owned everything as of that time and all the income from the rental properties (except Conniston), the business and everything is her income, from that date forward.” The $49,161 removed from the accounts by the husband during the pen-dency of the divorce was charged to him in the equitable distribution scheme. The $35,000 paid the husband, the mortgage payments on the Carambola residence, and $15,000 in attorney’s and accountant’s fees incurred by the husband, all of which were paid by the wife under the mediated agreement, were also charged to the husband. The $80,000 the husband was alleged to have taken from the safe and a $5,000 boat deposit that was lost were charged to the husband. After making these distributions, the wife had received $171,387 more than the husband; the judge required the wife to write the husband a check for this amount.

In this appeal, the husband challenges (1) the trial court’s valuation of the business, arguing the judge engaged in an impermissible “averaging” of the values testified to by the experts; (2) the trial court’s decision to charge the entire amount of the Carambola mortgage payments to him and simultaneous failure to charge the wife with the mortgage payments on the Cozumel property; (3) the trial court’s decision to charge him with the $35,000 and the $49,161, which he claims were used for support during the dissolution; (4) the trial court’s failure to distribute the profits from the Conniston property to him; and (5) the trial court’s charging him with the $15,000 in attorney’s and accountant’s fees and simultaneous failure to charge the wife with similar fees she incurred. We reject the first of the husband’s claims, finding that the valuation assigned to the business by the trial court is supported by competent, substantial evidence and was not the result of improper “averaging” of the experts’ values. See Matajek v. Skowronska, 927 So.2d 981, 986 (Fla. 5th DCA 2006) (recognizing “there must be competent, substantial evidence supporting the court’s findings on valuation for marital assets”). We also reject the husband’s claim of error in the trial court’s failure to equitably distribute the profits of the Conniston property. First, based on the evidence at trial, the income from the Conniston property could have properly been treated as marital. See § 61.075(5)(b)3., Fla. Stat. (stating that income from nonmarital assets will be treated as nonmarital “unless the income was treated, used, or relied upon by the parties as a marital asset”). Second, none of the evidence at trial suggested that the profit had not been depleted during the pendency of the dissolution. See, e.g., Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005) (holding it is error to equitably distribute an asset that has been depleted). And, finally, while the court required the husband alone to bear the tax burden for the Conniston property’s rental income, we do not believe that this resulted in any inequity that compels reversal as the wife was required to be solely responsible for the income taxes on the remaining properties despite the fact that both parties benefited from the income. We find, however, that the remainder of the husband’s claims have merit.

The wife made a total of $29,839.85 in mortgage payments on the Carambola property (the marital residence). The monies used to make the mortgage payments came from the rents collected on the parties’ other properties. During this same period, the wife made $23,072.11 in mortgage payments associated with the Cozumel property. In the equitable distribution scheme, the trial court charged all of the Carambola mortgage payments to the husband and none of the Cozumel mortgage payments to the wife. This was error. Generally, when a husband and wife are jointly responsible for the.mortgage on real property and one spouse pays the entire mortgage during the pendency of the dissolution, as part of the judgment of dissolution, the paying spouse is entitled to credit for half the total payments made. See Benz v. Benz, 557 So.2d 124 (Fla. 3d DCA 1990); Golden v. Golden, 410 So.2d 945 (Fla. 3d DCA 1982). It appears that the trial court failed to apply this rule as a consequence of its conclusion that the wife “owned” all of the rental properties and all of the income for those properties as of the December 21, 2003 agreed date for valuation. This agreed date for valuation did not, however, serve to transfer ownership of the properties to the wife as of that date. And, while the wife suggests that the husband’s misconduct during the divorce justifies the inequitable treatment, we reject this argument as it clear the trial court intended to effect an equal distribution.

The equitable distribution scheme charged to the husband the $35,000 he was paid during the pendency of the dissolution under the mediated agreement and the $49,161 removed by the husband during the dissolution proceedings. The husband claimed he used these monies to meet his living expenses, pointing to his financial affidavit reflecting nearly $12,000 in monthly expenses not paid by the wife and the wife’s failure to pay the agreed upon $10,000 per month. The wife points to the $80,000 the husband took from the safe. Even were the $80,000 considered, the husband’s expenses exceeded all sources of payments available to him, including the $49,161 and the $35,000. Thus, we agree it was error to attribute to the husband these depleted assets. See Karimi v. Karimi, 867 So.2d 471, 475 (Fla. 5th DCA 2004) (holding that “[wjhere the asset is used by one of the parties out of necessity for reasonable living expenses ... that asset should not be assigned to the party who used them, absent a finding of misconduct”).

Last, the husband was charged some $15,000 in attorney’s and accountant’s fees paid by the wife under the terms of the mediated agreement. The husband claims that to the extent the payment of these fees was made from marital funds, he should be charged for only half the amount. We agree. To justify attributing the $15,000 in payments to the husband as part of the equitable distribution scheme, the wife’s accountant prepared a spreadsheet intended to demonstrate that more than half of the gross income from the business and rental properties was being spent for the benefit of the husband. The math, though, does not justify charging the husband with the entire $15,000 on the ground that he received this much more than his fair share of the income. According to the wife’s expert, the total income was $123,083.08, making the husband’s half $61,541.54. Exclusive of the $15,000, the spread sheet reflects some $52,742.96 was paid for the benefit of the husband. Thus, to get his half share of the income, the husband was entitled to the payment of an additional $8,798.58 on his behalf. After subtracting this amount from the $15,000 in temporary fees paid by the wife, it appears the wife paid some $6,201.42 above and beyond the husband’s fifty percent share. Thus, even under the wife’s own evidence, the husband could have been charged with only $6,201.42—not the entire $15,000. Our conclusion that the husband should not have been charged with the entirety of the Carambola mortgage payments further skews the numbers in favor of the husband.

Finally, we agree that it was inequitable for the trial court to fail to charge the wife with the $13,505.69 she paid her attorneys and accountants during the pen-dency of the divorce. First, as already indicated, the temporary relief analysis used to suggest the husband had received more than his half share of the income erroneously charged the entirety of the Carambola mortgage payments to the husband. Second, the husband was essentially charged twice for his $15,000, i.e., once to demonstrate he had received at least half of the income during the pendency of the dissolution and again in the equitable distribution. In contrast, by accounting for the wife’s fees only as part of her half share of the marital funds, the wife was charged only once. This is clearly not the equitable result the trial court intended.

The order appealed is thus reversed and the matter remanded. On remand, the trial court shall reevaluate the equitable distribution scheme. In so doing, the trial court shall (1) charge the husband with only half the amount of the mortgage payments on the Carambola property made during the pendency of the dissolution and similarly charge the wife with half the amount of the payments, the source of which was joint marital funds, made on the Cozumel property; (2) charge each spouse with half the amount of his or her interim attorney’s fees as such fees were paid from joint marital funds, i.e., the rental income from the properties; and (3) remove from the equitable distribution the $84,161 in depleted assets ($35,000 and $49,161) charged to the husband.

Affirmed in Part, Reversed in Part, and Remanded.

STONE and POLEN, JJ., concur.

On Motion For Rehearing Or Clarification

PER CURIAM.

To the extent the appellant’s motion seeks rehearing of our prior opinion, we deny the same. We grant, however, that portion of the motion seeking clarification. On remand, should the trial court determine that the equities require it, the trial court has the discretion to award the husband interest, accruing from entry of the final judgment of dissolution, on those sums that should have been distributed to the husband, but which the wife has had the benefit of since entry of the final judgment. Cf. Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005) (holding trial court has discretion to award interest on payments to be made by spouse to equalize the distribution of assets and liabilities).

STEVENSON, C.J., STONE and POLEN, JJ., concur.

      . In this sense, "charged” means that the amount was included in the total equitable distribution amount to which the trial court found that the husband was entitled.

      . This figure represents $35,000 in temporary relief, $14,804.67 for the mortgage on the Carambola property, $2,068.52 in boat loans, and $879.77 for lawn equipment from Uncle Ben’s.