author: CASANUEVA, Judge.

text:
    Stacia M. HUMERICKHOUSE, n/k/a Stacia M. Kay, Appellant, v. Donald L. HUMERICKHOUSE, Appellee.
    No. 2D05-3997.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      H. Stephen Hillebrand, Sarasota, for Appellant.
    Jeffrey A. King, Sarasota, for Appellee.
   CASANUEVA, Judge.

In this appeal from a postdissolution order on child support that denied her attorney’s fees, the former wife, Stacia M. Kay, claims the trial court abused its discretion and erred in basing its denial of fees primarily on the actions of her attorney. We agree and reverse.

Ms. Kay and Mr. Humerickhouse were married for five and a half years before they were divorced on December 30, 1991. Two daughters were born of the marriage, and Ms. Kay was granted primary residential custody of them. A prior postdissolution order, entered in June 1994, set Mr. Humerickhouse’s child support obligation at $869.96 per month. The parties engaged in several other postdissolution modification proceedings, but they are not germane to this appeal.

On January 18, 2005, Mr. Humerick-house filed an amended motion to abate, alleging that he had overpaid his court-ordered child support to that date by approximately $9,562.95. He sought to abate his support obligation until the overpayment credit was exhausted. Ms. Kay opposed his motion on various grounds, seeking either to avoid an abatement entirely or spread out the overpayment credit so the children would not be without support completely for what could amount to almost a year. Ms. Kay’s current employment provides her only a very modest income. She and her daughters have lived for many years with her longtime boyfriend in his house, and he provides the vehicles the household members use. To assist in maintaining the household, she turns over the child support to this gentleman, as well as her earnings as a waitress. In 2004, her federal income tax refund and her federal earned income credit tax refund also went into the common household fund.

Soon after Mr. Humerickhouse moved to abate, Ms. Kay filed a supplemental petition for modification of child support, alleging that an increase was needed because Mr. Humerickhouse’s income had increased and the children’s expenses were much higher than in 1994. Mr. Humerick-house answered and counterpetitioned for a reduction in his child support, primarily because their oldest daughter had recently turned eighteen and would soon graduate from high school.

An evidentiary hearing was held on Mr. Humerickhouse’s amended motion to abate, which resulted in an order finding that he had overpaid his child support obligation by $9,964.47. The trial court ordered a partial abatement of his ongoing child support obligation in the amount of $200 biweekly, rather than cease payments entirely, until the credit was exhausted.

Three days after the above order was entered, Ms. Kay filed an amended supplemental petition for modification of child support, seeking an increase in child support above the guidelines due to increased expenses for the children’s medical care and visitation. She also sought her attorney’s fees and costs.

At the hearing on the petitions for modification, the evidence showed that Mr. Humerickhouse’s net monthly income was more than twice Ms. Kay’s. He had substantial assets, including a bank account of approximately $37,000, a retirement portfolio of approximately $196,000, and an annuity account of approximately $2000. In addition, he had at least $4560 in savings and checking accounts and owns his home and a car. In contrast, Ms. Kay has almost no assets and little ability to pay her attorney’s fees and costs; her mother paid the attorney’s initial retainer fee. There had been some question about the three financial affidavits Ms. Kay had filed during the pendency of the proceedings, none of which matched the others. Ms. Kay explained these discrepancies by saying that she had prepared them without outside aid, even from her attorney, and had had some difficulty in understanding what was required. Although these disparities caused the trial court some concern, they did not detract from the fact that she possessed few assets of any value and earned only a modest salary, especially given that she had experienced some recent medical problems.

Ms. Kay’s attorney testified that his hourly rate was $150, adding that this rate had not changed since 1992 and was extremely reasonable. The total time he expended on her case was approximately forty-five hours. Based on the attorney’s affidavit with itemized time records, he testified that he was owed $6,622.50 in fees and had expended $534.89 in costs.

The trial court’s final order denied Mr. Humerickhouse’s petition to decrease his child support obligation, except that it acknowledged that no further support was needed for the eldest after her graduation from high school, and granted Ms. Kay’s request for an increase in child support, although the court declined to depart upward from the child support guidelines. The court also denied her request for attorney’s fees and costs despite the fact that it acknowledged in the order that Mr. Humerickhouse has a better ability to pay attorney’s fees than Ms. Kay does. The court found that she had an ability to pay her fees and costs because she had received 2004 tax refunds that amounted to $5854. The court also noted that her attorney had taken needless actions in the proceedings, specifically citing: unsuccessfully contesting Mr. Humerickhouse’s motion to abate; submitting standard family law interrogatories and requests for production of documents and, following responses and objections, moving to compel mandatory disclosure, which was denied; requesting discovery that was denied upon Mr. Humerickhouse’s objection; mailing a good-faith discovery letter required by local court rule after the trial court denied Ms. Kay’s motion to compel and granted Mr. Humerickhouse’s objection; scheduling a motion for temporary attorney’s fees and then canceling the hearing; and that all orders were prepared by Mr. Humer-ickhouse’s attorney. It is the complete denial of attorney’s fees in this order that Ms. Kay brings for our review.

The purpose of section 61.16(1), Florida Statutes (2005), in permitting an award of attorney’s fees in dissolution and postdissolution proceedings is to ensure that both parties will have similar financial ability to obtain competent legal counsel. The primary factor in considering whether to award one party’s fees is the financial resources of the parties. Other factors that may also be considered include the merits of the parties’ respective positions, the duration of the litigation, whether the litigation is brought or maintained primarily to harass, or whether the defense is brought primarily to frustrate or stall. In any ease where the court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, the trial court has the discretion to deny a request for attorney’s fees. Rosen v. Rosen, 696 So.2d 697 (Fla.1997). Furthermore, it is not necessary that one party be completely unable to pay attorney’s fees for the court to require the other party to pay those fees. Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980).

An award of attorney’s fees in domestic support cases is not dependent on one party’s success in the litigation but rather upon the parties’ relative financial resources. Bullock v. Jones, 666 So.2d 224, 225 (Fla. 2d DCA 1995) (holding that “[t]he fact that the former wife lost on an issue, which is not spurious, does not mean that she could not be a candidate to receive attorney’s fees from the former husband”); Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978). The trial court should also determine an attorney’s fee award upon the parties’ individual financial resources, not the financial assistance provided by family or friends. Mott v. Mott, 800 So.2d 331, 334 (Fla. 2d DCA 2001) (holding that the voluntary contributions of a live-in companion cannot be substituted for the legal obligation of a former spouse). In this case, it is undisputed that Mr. Humerickhouse is in a vastly superior financial position than Ms. Kay.

Despite the trial court’s acknowledgment that Mr. Humerickhouse has a better ability to pay attorney’s fees, it still denied her fees and costs based on two grounds: her receipt of a tax refund of $5854 from the prior year and the “needless actions” taken by her counsel. We hold that neither of these bases is sufficient to ground a complete denial of fees and that the trial court abused its discretion in so finding. See Keena v. Keena, 245 So.2d 665, 667 (Fla. 1st DCA 1971) (stating that the right to attorney’s fees in a dissolution proceeding is not an absolute right but is founded upon equitable principles); see also Meloan v. Coverdale, 525 So.2d 935 (Fla. 3d DCA 1988).

The fact that Ms. Kay received a tax refund for the previous year does not change the stark disparity in the parties’ respective financial resources. Even if a party has some means to pay, that does not disqualify her claim for fees where the contrast between the assets and income of the parties is so substantial as in this case. See Cullen v. Cullen, 884 So.2d 304, 306 (Fla. 2d DCA 2004) (citing Rosen, 696 So.2d at 699). Even counting the tax refunds from 2004, Ms. Kay’s financial resources were significantly inferior to Mr. Humerickhouse’s, which disadvantaged her in her ability to secure competent legal counsel.

With regard to the trial court’s conclusion that Ms. Kay’s attorney’s actions were “needless,” this finding is unsupported by the evidence and contrary to the law. The record shows that her attorney provided competent representation.

A party’s lack of success in a child support matter is irrelevant to the issue of whether an award of attorney’s fees is appropriate. Bullock, 666 So.2d 224; Diaco, 363 So.2d 183. In any event, Ms. Kay was successful in having the abatement of child support spread out over time to lessen its impact instead of having it completely cease until the credit was accounted for. She also prevailed in having the child support amount increased to match the current guidelines, although she did not prevail in securing a deviation upward from those guidelines.

Furthermore, it is not a needless action to file a motion to compel disclosure of certain documents which were not provided, even after a party objects and even if such a motion is eventually denied. Had Ms. Kay’s attorney not zealously asserted his client’s interests, especially in trying to move the case forward to completion, he would be risking a claim of failing to provide competent representation to his client. Also, there is no evidence in the record that the good-faith letter was sent frivolously, in bad faith, or to harass the other party. Additionally, that Mr. Humerick-house’s attorney prepared all the necessary orders had no impact on the fees Ms. Kay’s attorney earned, except to keep them lower than they could have been.

Finally, there is no evidence that the action of scheduling and then cancelling the hearing on the motion for temporary attorney’s fees was done in bad faith or to harass. The record shows that the notice for the temporary fees hearing was sent more than a month in advance of the hearing date, and then later, when the notice for nonjury trial was received, Ms. Kay’s attorney noted that the final hearing was scheduled only ten days after the temporary fees hearing. Due to the fact that the final hearing was such a short time later, it was reasonable to cancel the earlier hearing in the interest of judicial economy. We find no ground to criticize such a response.

Even if we were to conclude that the filing of the motion to compel mandatory disclosure, the mailing of the good-faith discovery letter, and the cancellation of the hearing for temporary attorney’s fees were properly found to be unnecessary, or frivolous, or in bad faith, these actions totaled 1.3 hours of attorney time. This leaves 43.6 hours of attorney time expended that were not found to be unnecessary or unreasonable.

In Diaco, 363 So.2d at 186-87, a case with facts similar to Ms. Kay’s, this court stated:

The wife herself was unable to pay her attorneys’ fee. Instead, she paid her attorneys a part of their fee with money she obtained from her father for that purpose. She has neither separate income nor sufficient assets to otherwise pay an attorney to represent her and we see no reason why the willingness of her father to provide the necessary fee money to her should relieve the husband from a duty to provide such reasonable sums as will enable her to obtain representation equal to his own in these proceedings.
Even though she was unsuccessful in obtaining the relief she sought, the services of the attorneys were reasonably necessary to assist her in bringing the interests of these children before the court, and her efforts in doing so were certainly reasonable.

For the foregoing reasons, we conclude that the trial court abused its discretion in denying fees and reverse the order denying completely Ms. Kay’s request for attorney’s fees. We remand with instructions for the court to reconsider the award of attorney’s fees and grant either partial or full relief to Ms. Kay.

Reversed and remanded for further proceedings.

DAVIS and KELLY, JJ., Concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Vincente SANDOVAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-753.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
   DAVIS, Judge.

Vincente Sandoval appeals the circuit court’s summary denial of his motion for postconviction relief and motion for rehearing filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Sandoval was convicted of capital sexual battery and sentenced to life in prison with a twenty-five-year mandatory minimum term. This court affirmed his conviction but remanded for resentencing with either appointed counsel or a valid waiver of his right to counsel. See Sandoval v. State, 884 So.2d 214 (Fla. 2d DCA 2004). On remand, the trial court resentenced him to life in prison with the possibility of parole after twenty-five years. Sandoval appealed, and this court issued a per curiam affirmance of that sentence. See Sandoval v. State, 928 So.2d 349 (Fla. 2d DCA 2006).

On October 24, 2005, Sandoval filed-a rule 8.850 motion alleging four claims of ineffective assistance of counsel. On December 21, 2005, while the direct appeal of the resentencing was pending before this court, the postconviction court summarily denied Sandoval’s rule 3.850 motion on the merits. Subsequently, Sandoval filed a timely motion for rehearing. On January 23, 2006, the postconviction court summarily denied the motion for rehearing on the merits.

Sandoval’s October 24, 2005, rule 3.850 motion was premature. See Snipes v. State, 843 So.2d 1043 (Fla. 2d DCA 2003) (holding that the two-year time limitation of rule 3.850(b) did not begin to run until the direct appeal process on defendant’s life sentence on remand concluded). Moreover, because the direct appeal of the resentencing was pending before this court on December 21, 2005, and January 23, 2006, the postconviction court lacked jurisdiction to enter its December 21, 2005, and January 23, 2006, denial orders. See id. at 1044 (noting that if the defendant filed his postconviction motion during the pen-dency of the appeal in this court, the trial court would have been without jurisdiction to entertain it).

Because the postconviction court did not have jurisdiction to rule on Sandoval’s rule 3.850 motion and motion for rehearing, we reverse the postconviction court’s denial orders and remand with instructions to dismiss Sandoval’s motion for postconviction relief and motion for rehearing without prejudice to Sandoval’s right to refile a rule 3.850 motion. See Bunkley v. State, 800 So.2d 663 (Fla. 2d DCA 2001).

Reversed and remanded.

ALTENBERND and STRINGER, JJ., Concur.

      . The direct appeal was of a resentencing upon remand from a direct appeal of a judgment and sentence, and not a resentencing after a successful collateral postconviction motion.


author: SILBERMAN, Judge.

text:
    In the Interest of L.B., M.B., K.B., and L.B., children. K.B., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D05-5450.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      Harold E. Barker, Lakeland, for Appellant.
    Douglas B. Sherman, Bartow, for Appel-lee Department of Children and Family Services.
    Patricia M. Propheter, Orlando, for Ap-pellee Guardian Ad Litem Program.
   SILBERMAN, Judge.

K.B. (the mother) appeals a final judgment terminating her parental rights as to her four children. We reverse because the judgment contains findings that are inconsistent with the oral findings made by the judge who conducted the trial concerning the mother’s parental rights and the judgment was improperly entered by a successor judge.

In January 2005, Judge Michael Hunter conducted a trial on the amended petition for termination of the mother’s parental rights. At the conclusion of the trial, Judge Hunter made various findings but stated that he would hold a final decision in abeyance until the father’s parental rights were determined in a separate proceeding.

In October 2005, Judge Charles Lee Brown conducted a hearing regarding the father’s parental rights. Following that hearing, Judge Brown entered a final judgment making findings as to both parents and terminating their parental rights.

The mother argues, and the Department of Children and Family Services and the Guardian Ad Litem concede, that the final judgment must be reversed as to the mother. First, the final judgment was improperly entered by a successor judge. See Fry v. Fry, 887 So.2d 438, 440 (Fla. 2d DCA 2004) (holding that in the absence of a stipulation by the parties, a successor judge may not enter a judgment when factual matters were tried before a predecessor judge); S.C. v. Dep’t of Children & Family Servs. (In re N.C.), 834 So.2d 189, 189 (Fla. 2d DCA 2002) (concluding that it was reversible error for a successor judge to sign a final order of adjudication of dependency because another judge presided over the proceedings and the successor judge did not hear the testimony and argument presented at the hearings); Smith v. Smith, 612 So.2d 713, 714 (Fla. 2d DCA 1993) (“A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate.”).

Second, the judgment contains factual findings and conclusions regarding the mother that are inconsistent with the oral findings that Judge Hunter made at the conclusion of the January 2005 trial. As we observed in In re N.C., “it is unfortunate that the parties have expended the time and money to appeal this case without first seeking to obtain an order signed by the trial judge, who retains jurisdiction to enter such orders notwithstanding rotation to another circuit court division.” 834 So.2d at 190.

Accordingly, we reverse the final judgment as to the mother and remand for Judge Hunter to enter a new judgment if he is able to do so. If Judge Hunter is not available to render a judgment, then a de novo hearing will have to be conducted unless the parties stipulate that a successor judge may render a new judgment after reviewing the record. See id.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      . The final judgment also terminates the father’s parental rights. He is not a party to this appeal.


author: LaROSE, Judge.

text:
    Rex BROWNING, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4295.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
   LaROSE, Judge.

We reverse and remand for the trial court to correct a scrivener’s error in Rex Browning’s judgment. Mr. Browning’s judgment incorrectly reflects a violation of section 794.011(8)(b), Florida Statutes (Supp.1994), when the judgment should have cited to the predecessor section 794.041(2)(b), Florida Statutes (1991). The State concedes error. Accordingly, we remand for the trial court to prepare an amended judgment correcting this citation error.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Douglas M. WYCKOFF, Appellant, v. Terry Lynn WYCKOFF, Appellee.
    No. 2D05-1999.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
    Douglas M. Wyckoff, pro se.
    Appearance by David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, for Appellant.
    J.L. “Ray” Le Grande of LeGrande & LeGrande, P.A., Fort Myers, for Appellee.
   PER CURIAM.

Douglas M. Wyckoff appeals the trial court’s order rendered March 11, 2005, arguing that the court erred in resolving several postdissolution issues. He also argues that in light of the Florida Supreme Court’s decision in Wade v. Hirschman, 903 So.2d 928 (Fla.2005), this court should vacate or modify our earlier decision in Wyckoff v. Wyckoff 820 So.2d 350 (Fla. 2d DCA 2002). We affirm in all respects but note that the substantial change test approved in Wade would apply to further child custody modification proceedings between the parties.

Affirmed.

SALCINES, STRINGER, and SILBERMAN, JJ., Concur.


text:
    Michael R. SKIGEN and Rosalind Skigen, Appellants, v. The CLUB AT ADMIRAL’S COVE, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D05-2070.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied Aug. 3, 2006.
    James D. Ryan and Lauren J. Schindler of Ryan & Ryan, Attorneys, P.A., North Palm Beach, for appellants.
    Elliot H. Scherker, Elliot B. Kula, and Daniel M. Samson, Greenberg Traurig, P.A., Miami, and Susan Fleischner Korn-span, Greenberg Traurig, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order dismissing appellants’ third amended complaint with prejudice. The pleading states a claim for breach of contract under the amended bylaws and a membership certifí-cate. In The Club at Admiral’s Cove v. Skigen, 879 So.2d 57 (Fla. 4th DCA 2004), we did not hold that appellants could not base a cause of action on the amended and restated bylaws.

Reversed and remanded.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Michael LAWRENCE and Pablo Valdes, Appellants, v. VILAC, INC., Appellee.
    No. 3D05-2348.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Manick Rosenberg and Thomas Manick, Miami; Koch Trushin and Bradley H. Trushin (Ft.Lauderdale), for appellants.
    Garbett, Bronstein, Stiphany, Allen Roza and Philip A. Allen, III, Miami, for appellee.

      Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

The appellants challenge the trial court’s award of attorney’s fees and costs to Vilac, Inc. We affirm because there is competent substantial evidence in the record to support the trial court’s award. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985); Centex-Rooney Constr. Co. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999).

Affirmed.


author: WELLS, J.

text:
    Jose Alberto BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-684.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michele Samaroo, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER and WELLS, JJ.
   WELLS, J.

Jose Alberto Blanco appeals from a conviction for attempted burglary of an occupied dwelling claiming ineffective assistance of counsel. We affirm the conviction without prejudice to his raising this argument in a timely rule 3.850 post-conviction motion where a full record regarding this issue may be made. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001) (stating that “a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal”); Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)(confirming that “[bjecause of the strict rules limiting claims for ineffective assistance of counsel on direct appeal, the appellate courts typically reject the issue as both premature and requiring evidence beyond the appellate record”).

Affirmed.


author: CORTIÑAS, Judge.

text:
    James HARDEN, Petitioner, v. The STATE of Florida and Lucy Hadi, Secretary, Department of Children and Family Services, Respondents.
    No. 3D06-647.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for Respondents.
    Before FLETCHER and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The Jimmy Ryce Involuntary Civil Commitment of Sexually Violent Predators Act (“Jimmy Ryce Act”), sections 394.910-930, Florida Statutes (2004), passed by the legislature in 1998, was aimed at “a small but extremely dangerous number of sexually violent predators.” § 394.910, Fla. Stat. (2004). The legislature was concerned with the “likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence” and created a “civil commitment procedure for the long-term care and treatment of sexually violent predators.” Id.

The Jimmy Ryce Act requires that the “agency with jurisdiction over a person who has been convicted of a sexually violent offense” provide written notice and certain information regarding the person to a multidisciplinary team before the person’s release from total confinement. See § 394.913, Fla. Stat. (2004). The multidisciplinary team must include two licensed psychiatrists or psychologists, or one licensed psychiatrist and one licensed psychologist. Id. After receiving the information, the multidisciplinary team must provide to the state attorney a written assessment and recommendation as to whether the person meets the definition of a sexually violent predator. Id. After receiving the written assessment and recommendation from the multidisciplinary team, the state attorney has the discretion to file a petition for civil commitment with the circuit court alleging that the person is a sexually violent predator. § 394.914, Fla. Stat. (2004).

The issue before this court is whether, under the Jimmy Ryce Act, a positive recommendation from the multidisciplinary team that a person meets the definition of a sexually violent predator constitutes a condition precedent to the filing of the petition for involuntary commitment by the state attorney. The defendant, James Harden, petitions for writs of prohibition, habeas corpus and, in the alternative, certiorari. Harden contends that his continued confinement contravenes the Jimmy Ryce Act and constitutes an unlawful deprivation of liberty.

The interpretation of a statute is a question of law subject to de novo review. Kephart v. Hadi, Nos. SC02-936, SC02-2280, 2006 WL 1548026, at *2, 932 So.2d 1086, 1089 (Fla. June 8, 2006) (citations omitted).

Harden was charged with a series of sexual battery offenses in 1972 and 1973. In 1975, he entered guilty pleas and was sentenced to concurrent fifty-year terms. In 2004, as Harden’s release date was approaching, the Department of Corrections referred him to a multidisciplinary team (“MDT”), which was established by the Department of Children and Families (“DCF”) pursuant to the Jimmy Ryce Act. The MDT, consisting of three licensed Florida psychologists, determined that Harden did not meet the criteria to be considered a sexually violent predator and recommended against the filing of a petition seeking Harden’s involuntary commitment. This determination was based, in part, on a psychiatrist’s, Dr. Amiel’s, clinical evaluation, which included a personal interview with the defendant. Dr. Amiel determined that Harden could not be considered a sexually violent predator.

Shortly thereafter, the State asked a second MDT to reconsider, and provided additional information to the MDT. After reviewing the additional information, the second MDT, also consisting of three licensed psychologists, one of whom was a member of the original MDT, procured another mental health evaluation. Accordingly, on September 20, 2005, another psychiatrist, Dr. Swan, conducted a clinical evaluation and determined that Harden met the criteria to be considered a sexually violent predator. However, on October 6, 2006, after reviewing the case, including the mental health evaluation reports of both Dr. Amiel and Dr. Swan and the new information submitted by the State, the second MDT concluded that Harden did not meet the criteria to be considered a sexually violent predator. Thus, two separate MDTs have determined and recommended that the defendant is not a sexually violent predator.

Notwithstanding these conclusions, the state attorney filed a petition seeking to have Harden civilly committed as a sexually violent predator. In support of its petition, the State Attorney attached the conflicting opinions and reports of Dr. Swan and Dr. Amiel, and the assessments of both MDTs.

On October 22, 2005, the trial court entered an ex-parte Order Determining Probable Cause and issued a Warrant For Custodial Detention pursuant to section 394.915, Florida Statutes (2004), transferring Harden to DCF at the conclusion of his incarcerative sentence and ordering him held in a secure facility.

We review whether the trial court departed from the essential requirements of the law when it denied Harden’s motion to dismiss the State’s petition and motion for reconsideration of the ex-parte determination of probable cause. Combs v. State, 436 So.2d 93, 96 (Fla.1983). This court will not disturb the trial court’s findings unless there has been a violation of an established principle of law resulting in a miscarriage of justice. Id.

Harden contends that the state attorney may not file a petition for civil commitment when the MDT (1) finds that the person does not meet the statutory definition of a sexually violent predator, and (2) recommends against such a proceeding. Harden further contends that, since the filing of the petition was improper due to the MDTs’ conclusions, the trial court was not authorized to conduct a probable cause hearing. See 394.915, Fla. Stat. (2004).

Conversely, the State asserts that the MDT’s recommendation that the person meets the criteria to be considered a sexually violent predator is not a condition precedent to the filing of the petition for involuntary commitment. Additionally, the State asserts that, although a written assessment and recommendation from the MDT is required under section 394.914, Florida Statutes (2004), the term “recommendation” implies a non-binding advisory opinion. Under the State’s theory, even if the MDT recommends that the defendant does not meet the criteria to be considered a sexually violent predator and recommends against civil commitment, the State is nonetheless authorized to make the final determination as to whether a petition for civil commitment should be filed.

The State’s position appears to have been initially accepted by the Office of the Attorney General in Opinion 98-64. The Attorney General opined that a state attorney may file a petition for the involuntary commitment of persons scheduled to be released from prison independently of a recommendation from the MDT. Op. Att’y Gen. 98-64 (Oct. 21, 1998). However, just forty-one (41) days later, Attorney General Opinion 98-64 was changed and a new opinion was issued. Op. Att’y Gen. 98-73 (Dec. 1,1998).

In Opinion 98-73, the Attorney General recognized that, under section 916.34, Florida Statutes (1998), which is currently section 394.914:

A state attorney may not, under the Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators Treatment and Care Act, file a petition for the involuntary commitment of persons scheduled to be released on or after January 1, 1999, independent of a recommendation from the multidisciplinary team.

Op. Att’y Gen. 98-73 (Dec. 1, 1998)(em-phasis added). Accordingly, the Attorney General’s Office expressly revised its previous opinion to reflect that, pursuant to the Jimmy Ryce Act, a state attorney may not file a petition for the involuntary commitment of persons scheduled to be released from prison independent of a recommendation from the MDT. The Attorney General noted that section 916.34 does not contain a jurisdictional disclaimer like other sections of the Jimmy Ryce Act, thereby authorizing the state attorney to act only after receiving the MDT’s recommendation and assessment. This latter Attorney General Opinion candidly admits that “nowhere in the [Jimmy Ryce Act] are there any procedures prescribed for the state attorney to proceed in the absence of a written assessment and recommendation of the multidisciplinary team.”

In the instant case, two MDTs found that Harden did not meet the criteria to be considered a sexually violent predator. We agree with the Attorney General’s opinion that there is nothing in the Jimmy Ryce Act which authorizes the state attorney to initiate commitment proceedings in the absence of a recommendation from the MDT that the individual is a sexually violent predator. Therefore, we find that the State exceeded its authority under the Jimmy Ryce Act when it filed a petition for Harden’s involuntary commitment in the absence of an MDT recommendation that Harden should be committed because he meets the definition of a sexually violent predator.

The Florida Supreme Court, in analyzing a different section of the Jimmy Ryce Act, expressed its agreement with the Fourth District Court of Appeal, which observed that the continued detention of an individual who has completed serving his full incarcerative sentence is significant enough to “ ‘warrant scrupulous compliance with the statute permitting such confinement, not to mention the applicable constitutional provisions.’ ” State v. Goode, 830 So.2d 817, 826 (Fla.2002) (quoting Johnson v. Dep’t of Children & Family Servs., 747 So.2d 402, 403 (Fla. 4th DCA 1999)). In the instant ease, since the defendant remains in custody after serving his sentence, we must determine whether “scrupulous compliance” with the Jimmy Ryce Act has been observed. When evaluating section 394.914 in conjunction with section 394.913, it becomes clear that Harden’s detention contravenes the plain meaning of those statutes.

When construing the language of a statute, courts are required to first consider the actual language of the statute. Woodham v. Blue, Cross & Blue Shield of Florida, Inc., 829 So.2d 891, 897 (Fla.2002); Campbell v. Kessler, 848 So.2d 369, 371 (Fla. 4th DCA 2003)(finding that a court must construe a statute according to the precise language used by the legislature). In interpreting a statute, we must give statutory language its plain and ordinary meaning. Green v. State, 604 So.2d 471, 473 (Fla.1992)(citing Southeastern Fisheries Ass’n, Inc. v. Dep’t of Natural Res., 453 So.2d 1351 (Fla.1984)). If the plain and ordinary meaning can be discerned from the language of the statute, courts need not examine legislative history. State v. Sousa, 903 So.2d 923, 928 (Fla.2005). Furthermore, the plain and ordinary meaning of a word can be gleaned from a dictionary. Green, 604 So.2d at 471.

Under numerous dictionary definitions, the word “recommendation” as used in section 394.914, is synonymous with advocacy, endorsement, blessing, and approval. Its antonyms include words such as rejection, disapproval, and veto. In giving section 394.914 its plain and ordinary meaning and construing it in conjunction with other sections of the Jimmy Ryce Act, we conclude that a written report recommending that a person is a sexually violent predator is required before the State can exercise its discretion to file a petition for civil commitment. Contrary to the State’s position, it seems obvious to us that in construing the word “recommendation,” we should not interpret it to mean its antonym. Therefore, we find that a positive recommendation from the multidisciplinary team that a person meets the criteria to be considered a sexually violent predator is a condition precedent to the filing of the petition for commitment by the state attorney.

Our interpretation of section 394.914 is consistent with the analyses in Tanguay v. State, 880 So.2d 533 (Fla.2004) and In re Commitment of Heath, 895 So.2d 1258 (Fla. 2d DCA 2005). The Florida Supreme Court, in reviewing the requirements and procedures of the Jimmy Ryce Act, has observed:

The Act provides a civil commitment procedure for the long term treatment of sexually violent predators. The Act was created so that a person classified as a sexually violent predator may be involuntarily committed to the DCF for treatment until the person’s mental abnormality or personality disorder has changed and the person is safe to be at large (internal citations omitted). Because of the constitutional implications related to involuntary commitment, the Legislature provided detailed procedural requirements that the State must follow to proceed under the Act.

Tanguay, 880 So.2d at 536. The court stated that, after the MDT receives notice that a person convicted of a sexually violent offense will be released from confinement, the MDT must “assess whether the person meets the definition of a sexually violent predator who should be subject to commitment and [] provide the state attorney with its written assessment and recommendation.” Id. (emphasis added). Thus, in considering the word “recommendation,” the Florida Supreme Court gave it a positive connotation, reasoning that the state attorney had the discretion to file a petition for commitment after receiving a positive assessment and recommendation from the MDT that the person is a sexually violent predator who should be subject to commitment. See id.

Furthermore, in Heath, the Second District Court of Appeal noted that the receipt of the MDT’s report, which found that Heath met the sexually violent predator criteria, authorized the state attorney to file a commitment petition. Heath, 895 So.2d at 1260 (citing State v. Ortega, 891 So.2d 623 (Fla. 2d DCA 2005)). Heath involved an MDT’s report in which four members of the MDT assessed Heath as a sexually violent predator, while a fifth MDT member dissented from the MDT’s recommendation. The circuit court had granted Heath’s motion for release based on the MDT’s failure to unanimously agree that Heath met the criteria to be considered a sexually violent predator. Id. at 1259. However, the Second District reversed, finding that the Jimmy Ryce Act does not mandate the unanimity of the MDT’s recommendation, especially when four out of five members of the MDT find that the person meets the sexually violent criteria and recommend the person for commitment. Id. at 1260. Heath also recognized that an MDT’s recommendation is used as a predicate for commencing confinement proceedings under the Jimmy Ryce Act. Id. at 1259-60.

Unlike Heath, in the instant case, we have two MDT reports which concluded that Harden did not meet the sexually violent predator criteria. Moreover, both MDT reports specifically instructed the state attorney not to commit Harden. The state attorney, nevertheless, commenced commitment proceedings. We find that a plain reading of the statute, as well as the Tanguay and Heath cases, establish that an MDT’s positive recommendation serves as a condition precedent to the filing of a petition for commitment.

Recently, in Kephart, supra, the Florida Supreme Court addressed the requirements and procedures for the filing of a probable cause petition under the Jimmy Ryce Act. Although the court's opinion did not address the particular issue raised in this case, its language presupposes that a positive recommendation from the MDT is required before the state attorney may commence civil commitment proceedings. For example, the court stated:

Since the Act permits the state attorney to file a petition based upon the recommendation of the multidisciplinary team ..., we find that the sworn proof for the probable cause petition may be supplied by the prosecutor by swearing to the allegations in the petition or by affidavit attached to the petition from one or more of the mental health professionals.

Kephart, 2006 WL 1548026, at *5, 932 So.2d at 1092. The fact that the state attorney is permitted to file a petition “based upon the recommendation of the multidisciplinary team,” suggests that it may not do so upon a negative finding by the MDT.

Furthermore, the statutory procedures for conducting probable cause hearings set forth in section 394.915, Florida Statutes (2004), also strongly imply that a positive recommendation from the MDT is a condition precedent. This section provides, in pertinent part, as follows:

Upon the expiration of the incarcerative sentence and before the release from custody of a person whom the multidisciplinary team recommends for civil commitment, but after the state attorney files a petition under s. 394.914, the court may conduct an adversarial probable cause hearing if it determines such hearing is necessary.

§ 394.915(2), Fla. Stat. (2004)(emphasis added). We conclude that this section also presupposes that a positive recommendation from the MDT is required before the state attorney may commence civil commitment proceedings.

Finally, we take guidance in construing the Jimmy Ryce Act from Beasley v. Molett 95 S.W.3d 590 (Tex.App.2002) and In re Commitment of Fisher, 164 S.W.3d 637 (Tex.2005). Both cases trace the procedures of the Civil Commitment of Sexually Violent Predators Act in Texas (the “Texas Act”), which is similar to the Jimmy Ryce Act, noting that a state attorney may file a petition for commitment only after receiving a screening committee’s conclusion that a person suffers from a behavioral abnormality. See Fisher, 164 S.W.3d at 640-41; Beasley, 95 S.W.3d at 606. Under the Texas Act, the screening committee refers to the state attorney only those persons whom the committee determines suffer from a “behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Beasley, 95 S.W.3d at 606; Fisher, 164 S.W.3d at 640-41. Only after receiving the committee’s referrals is the state attorney authorized to make a determination as to which of the referrals should serve as a basis for commitment proceedings. Beasley, 95 S.W.3d at 606. We apply the same reasoning to the instant case, and hold that an MDT’s assessment and recommendation that a person meets the definition of a sexually violent predator is a condition precedent to the filing of a petition for commitment.

In the instant case, the state attorney acted contrary to two MDT assessments and recommendations, which concluded that Harden did not meet the definition of a sexually violent predator. Since a positive MDT assessment and recommendation is a condition precedent to the State’s ability to exercise its discretion in filing a petition for involuntary commitment, we find that the State’s petition was invalid. Thus, the trial court was not authorized to conduct an ex-parte probable cause hearing pursuant to section 394.915.

Accordingly, we grant the petition for a writ of certiorari, quash the order, and remand for further proceedings consistent with this opinion.

Certiorari granted and order quashed.

      . Section 394.913(3) states, in pertinent part: (b) Each team shall include, but is not limited to, two licensed psychiatrists or psychologists or one licensed psychiatrist and one licensed psychologist.... The assessment and evaluation shall include a review of the person’s institutional history and treatment record, ... and any other factor that is relevant to the determination of whether such a person is a sexually violent predator.

      (e) Within 180 days after receiving notice, there shall be a written assessment as to whether the person meets the definition of a sexually violent predator and a written recommendation, which shall be provided to the state attorney.
      § 394.913(3), Fla. Stat. (2004).

      . Section 394.914 states, in pertinent part:
      Following receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney, in accordance with s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation.
      § 394.914, Fla. Stat. (2004).

      . Section 394.915 states, in relevant part:
      (1) When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.
      § 394.915, Fla. Stat. (2004).


author: GERSTEN, Judge.

text:
    Manuel A. SEGARRA, III, Petitioner, v. Esperanza SEGARRA, Respondent.
    No. 3D05-2862.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Manuel A. Segarra, III, in proper person.
    Esperanza Segarra, in proper person.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   GERSTEN, Judge.

Manuel A. Segarra, III (the father), filed a petition for writ of certiorari seeking to quash the trial courts discovery order. We grant the writ of certiorari and quash the trial courts discovery order allowing production of privileged communications.

The father asserts that the trial court departed from the essential requirements of the law, by ordering production of privileged joint counseling records. Esperanza Segarra, (the mother), contends that the trial courts decision was proper because the psychotherapist-patient privilege does not apply to communications in joint counseling sessions. Based on the facts of this case, we agree with the father that the communications and records from the joint sessions are privileged.

A petition for writ of certiorari is the appropriate method to review a discovery order when the order departs from the essential requirements of the law, causes material injury throughout the remainder of the proceedings below, and effectively leaves no adequate remedy on appeal. See Nussbaumer v. State, 882 So.2d 1067, 1071 (Fla. 2d DCA 2004). The entry of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. See Nussbaumer, 882 So.2d at 1072.

Florida law recognizes several privileges including: attorney-client privilege, psychotherapist-patient privilege, husband-wife privilege, priest-penitent privilege, and accountant-client privilege. See §§ 90.502, 90.503, 90.504, 90.505, 90.5055, Fla. Stat. (2004). The patient, client, or penitent holds the privilege. The purpose of these privileges is to protect confidential communications between the parties and to encourage people seeking treatment or advice to speak freely on all matters. However, the parties may waive the privileges. See McKinlay v. McKinlay, 648 So.2d 806 (Fla. 1st DCA 1995).

There is no Florida case law that directly addresses whether the psychotherapist-patient privilege is waived in joint counseling sessions. The mother suggests we follow case law from other jurisdictions. See Redding v. Virginia Mason Med. Ctr., 75 Wash.App. 424, 878 P.2d 483 (1994); Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (1981). However, we are not persuaded and decline to follow Redding or Hahman.

In Redding and Hahman, the courts analogized the attorney-client privilege to the psychotherapist-patient privilege. The courts held that in litigation between joint patients, the psychotherapist-patient privilege does not protect statements made by one of the joint patients to the counselor during the joint counseling sessions. See Redding, 878 P.2d at 485; Hahman, 628 P.2d at 986.

In Washington and Arizona, the psychotherapist-patient privilege explicitly requires confidential communications between a client and psychologist remain privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between an attorney and a client. See Redding, 878 P.2d at 485; Hahman, 628 P.2d at 985. Therefore, the courts properly extended the concept of waiver in joint attorney-client sessions to waiver in joint psychotherapist-patient sessions.

However, in Florida, the psychotherapist-patient privilege does not include language that the privilege should be subject to the same conditions as the attorney-client privilege or any other statutory privilege. Section 90.503, Florida Statutes (2004), provides that a patient has a privilege to refuse to disclose, and to prevent any other person from disclosing confidential communications or records made for the purpose of diagnosis or treatment of the patients mental or emotional condition. See § 90.503(2), Fla. Stat. (2004). Thus, we are not required to analogize the psychotherapist-patient privilege to the confidential communications between an attorney and a client.

We must be cognizant of the reason for the patient-psychotherapist privilege and respect the parties privacy expectations when they reveal confidential information. The psychotherapist-patient privilege enables a person suffering from mental, emotional, or behavioral disorders to seek services and treatment without being needlessly exposed to public scrutiny. See Cedars Healthcare Group, Ltd. v. Freeman, 829 So.2d 390 (Fla. 3d DCA 2002).

Here, the father and mother attended joint counseling sessions to improve their relationship and ultimately, to save their marriage. Typically, the goals of marriage counseling are to strengthen communication, to develop problem-solving skills, and to learn how to resolve conflicts. The parties are encouraged to reveal matters of the utmost private nature, by opening their souls to the therapist, in order to assure that they will receive a proper diagnosis and treatment. See Cantor v. Toyota Motor Sales, USA, Inc., 546 So.2d 766 (Fla. 5th DCA 1989). Therefore, it is clear that the father and mother had an expectation that any communications they made to the counselor would remain confidential, regardless of whether the therapy was an individual or joint session.

However, the privilege is not absolute because a party can waive the privilege at any time. A person having the psychotherapist-patient privilege against disclosure of a confidential matter or communication waives the privilege if the person ... voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of any significant part of the matter or communication. See § 90.507, Fla. Stat. (2004).

Here, the father did not voluntarily disclose confidential information to another party. He had a reasonable expectation of privacy in the joint session, and he did not consent to disclosure of any part of the communication. However, had the court ordered the counseling sessions, then there would have been no reasonable expectation of confidentiality. See § 90.503(4)(b), Fla. Stat. (2004). Here, the court did not order the sessions. Therefore, we find that the father did not waive his psychotherapist-patient privilege when he attended joint counseling sessions with the mother.

Accordingly, we grant the petition for writ of certiorari and quash the trial courts discovery order, which compels discovery of privileged communications.

Petition granted and order quashed.


author: TAYLOR, J.

text:
    Joseph THRISTINO, as surviving spouse of Linda Thristino, a/k/a Lynne Thristino, deceased; and Joseph Thristino, as Personal Representative of the Estate of Linda Thristino, and Joseph Thristino, individually, Appellants, v. CRAWFORD & COMPANY, a Florida for profit corporation; Partners in Health, a Florida for profit corporation; Tenet Health Care Corporation, a Florida for profit corporation d/b/a North Ridge Medical Center, Appellees.
    No. 4D04-2921.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Nancy Little Hoffman of Nancy Little Hoffman, P.A., Pompano Beach, for appellants.
    Michael W. Baker of Bazinsky & Kor-man, P.A., Plantation, for appellees.
   TAYLOR, J.

Appellant filed a survival action on behalf of his deceased wife, Lynne Thristino, against Tenet Health Care Corporation and Crawford & Company. Tenet was Mrs. Thristino’s employer, and Crawford was hired by Tenet to handle her worker’s compensation claim. After Mrs. Thristino died, appellant sought damages against Tenet and Crawford for intentionally and purposefully depriving her of necessary care and services prescribed by her physicians. The trial court dismissed appellant’s second amended complaint with prejudice as to Crawford. As Crawford concedes, we must reverse the trial court’s dismissal of the intentional infliction of emotional distress claim of Lynne Thristi-no (Count I). Dismissal of this claim was based on Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002), which was recently quashed by the supreme court in Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005).

Lynne Thristino was employed as a cardiac technician at North Ridge Medical Center in Broward County, Florida, when she was severely injured on the job. She suffered extreme injuries to her head, spine, and face. Her condition deteriorated over the next fourteen years, until her death in May 2001. In his second amended complaint, appellant made detailed factual allegations of intentional mistreatment or neglect by Tenet and Crawford in their management of Mrs. Thristino’s care.

The trial court dismissed appellant’s complaint as barred by worker’s compensation immunity, relying primarily on the third district’s decision in Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002). There, the court held that the Worker’s Compensation Act’s exclusivity provision barred an action against the carrier for intentional infliction of emotional distress committed while handling a claim, unless the allegations involved wrongdoing wholly separate and independent of the claims handling process. The Florida Supreme Court later quashed Inservices, stating:

[W]e reject the notion and premise of the Third District and that favored by the dissent, that an independent tort in this context can never exist within the claims administration process and that for an independent claim to have validity, it must be an act totally separate and apart from the process itself.

Aguilera v. Inservices, 905 So.2d 84, 93 (Fla.2005).

The court emphasized that our workers’ compensation law does not eliminate a common law action for intentional torts:

[a]n insurance carrier who utilizes the process of administering benefits to intentionally injure a worker is not afforded immunity. Only injuries that occur within the system, “workplace injuries,” are covered under the workers’ compensation law, not injuries intentionally inflicted by an insurance carrier during the claims administration process.

Id. at 98.

Appellee concedes that, based on Aguil-era, appellant’s claim of intentional infliction of emotional distress must be reinstated. We agree with appellant that the order of dismissal as to the remaining counts of the second amended complaint should be reversed as well and appellant given leave to amend his complaint. We therefore reverse and remand this cause for further proceedings consistent with this opinion.

Reversed and Remanded.

KLEIN and SHAHOOD, JJ., concur.


text:
    Ulises RAMON and Olga T. Ramon, Appellants, v. HOMESTAR II, INC., a Florida Corporation, Appellee.
    No. 3D05-1749.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Richard Lorenzo, Miami, and Robert N. Pelier, Coral Gables, for appellants.
    Benitez & Associates, and Leo Benitez, and Lizette Benitez, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000).


text:
    Valation ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-952.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied July 27, 2006.
    Valation Ellis, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Metellus v. State, 900 So.2d 491 (Fla.2005).


author: STRINGER, Judge.

text:
    Joseph HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2701.
    District Court of Appeal of Florida, Second District.
    June 28, 2006.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Affirmed without prejudice to any right Joseph Holt may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 raising the violation of the plea agreement issue. See Williams v. State, 821 So.2d 1267 (Fla. 2d DCA 2002).

SILBERMAN and VILLANTI, JJ., Concur.


text:
    David F. RUMLER, Appellant, v. Victoria J. RUMLER, Appellee.
    No. 2D05-2261.
    District Court of Appeal of Florida, Second District.
    June 28, 2006.
    Matthew D. Branz of Paul & Elkind, P.A., DeLand, for Appellant.
    Robert L. Vaughn, Fort Myers, for Ap-pellee.
   LaROSE, Judge.

David F. Rumler (the Husband) appeals the final judgment dissolving his marriage to Victoria J. Rumler (the Wife). He argues that the trial court erred in (1) ruling that his City of Homestead police pension was a marital asset subject to equitable distribution, (2) directing equitable distribution of approximately one-third of his pension to the Wife as permanent periodic alimony, and (3) ordering an unequal distribution of marital assets. Although the Husband receives a disability pension, the trial court treated the entire pension as a marital asset because the payment is calculated based upon the Husband’s accrued retirement benefit. This was error. Additionally, without making specific findings, the trial court directed the Husband to pay the Wife’s portion of his pension as permanent periodic alimony. This, too, was error. Thus, we reverse as to these two issues. The record amply supports the trial court’s unequal distribution of marital assets. However, the trial court may reconsider that distribution in light of future proceedings on the alimony and pension issues.

Retirement Benefits Subject to Equitable Distribution

“[A] spouse’s entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property.” Acker v. Acker, 904 So.2d 384, 386 (Fla.2005) (quoting Diffenderfer v. Diffenderfer, 491 So.2d 265, 270 (Fla.1986)); see also § 61.075(5)(a)(4), Fla. Stat. (2003) (defining “marital assets” to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs”); § 61.076(1) (“All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.”); Reyher v. Reyher, 495 So.2d 797, 799 (Fla. 2d DCA 1986).

The trial court concluded that the Husband’s pension was a marital asset. See § 185.18(5), Fla. Stat. (2003). The Husband argues that his pension was a disability pension not subject to equitable distribution. See Gay v. Gay, 573 So.2d 180, 180 (Fla. 2d DCA 1991) (holding husband’s “disability plan” was not marital asset) (citing Freeman v. Freeman, 468 So.2d 326, 328 (Fla. 5th DCA 1985) (holding retirement pension may be marital asset; disability pension designed to compensate employee for lost earnings and injuries (including pain and suffering) sustained on job not marital asset)).

When a disability pension is involved, the trial court must determine “what portion of the pension represents compensation for pain and suffering, disability and disfigurement, and what portion, if any, represents retirement pay.” Brogdon v. Brogdon, 530 So.2d 1064, 1066 (Fla. 1st DCA 1988). Only the retirement portion is subject to equitable distribution. Id.; cf. Weisfeld v. Weisfeld, 545 So.2d 1341, 1345-46 (Fla.1989) (employing analytical approach focusing on purpose of personal injury compensation to determine what portion is marital property).

Under section 185.18(1), police officers may receive early retirement benefits if they have ten years of service and become disabled other than in the line of duty or if they become disabled in the line of duty with fewer than ten years’ service. The Husband falls into the latter category. His “disability retirement” payments are the accrued normal retirement benefit, but not less than forty-two percent of his average monthly compensation at retirement. See § 185.18(5). Therefore, the accrued retirement benefit portion, if any, of the Husband’s “disability” pension is actually deferred compensation. The trial court can equitably distribute only that portion. See Sweeney v. Sweeney, 583 So.2d 398, 398 (Fla. 1st DCA 1991); cf. Pilny v. Pilny, 658 So.2d 1110, 1112 (Fla. 5th DCA 1995) (explaining that police disability pensions grant employees some portion of deferred compensation to which they would have been entitled absent injuries preventing attainment of normal retirement age). If the deferred compensation portion is less than the minimum disability retirement benefit of forty-two percent of average compensation, the difference is a disability benefit not subject to equitable distribution.

The trial court did not make an allocation of the retirement and disability portions of the Husband’s pension. Therefore, we reverse and remand for further proceedings to determine what portion of the Husband’s pension, if any, is for his disability and, thus, excluded from equitable distribution. We note that the Husband may be able to obtain an official statement from his former employer that reflects the appropriate allocation. See id.

Payment of Pension as Alimony

The final judgment directed the Husband to pay a portion of his pension to the Wife as alimony because a municipal pension is not subject to equitable distribution by a qualified domestic relations order. § 185.25; Edwards v. Edwards, 819 So.2d 837, 838 (Fla. 2d DCA 2002); Carolo v. Carollo, 920 So.2d 16, 20 (Fla. 3d DCA 2004). Equity empowers the trial court to fashion an alternative remedy to safeguard the Wife’s interest in the pension. Edwards, 819 So.2d at 838; see also Acker, 904 So.2d at 388 (“In dissolution cases, the trial judge possesses the broad, discretionary authority to do equity between the parties.”).

[The court] is entitled to devise a remedy through other means to safeguard the former wife’s interest in the pension which is rightfully hers, and to insure she receives the funds which are hers. It may be possible to construct a decree which requires payment of the pension funds to a trustee to be held in a joint account for the parties’ joint benefit, and requires the trustee to distribute the funds when received to the party entitled to them. Or perhaps the former husband could be required to post a bond with the court to ensure the former wife receives her share of the funds on a timely basis. Failing that, the court is also free to reconsider the total equitable distribution and alimony scheme contemplated by the original decree and settlement, since a key portion of the total plan cannot now be achieved.

Bd. of Trs. of Orlando Police Pension Plan v. Langford, 833 So.2d 230, 235 (Fla. 5th DCA 2002).

The trial court ordered the Husband to pay thirty-two percent of his pension to the Wife as permanent periodic alimony. We cannot sustain this alternative for distribution absent the statutorily required findings for an alimony award. See § 61.08(2), Fla. Stat. (2003); Smith v. Smith, 912 So.2d 702, 703 (Fla. 2d DCA 2005); but see Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001) (declining to reverse for absence of statutory findings where basis for alimony award reasonably clear and record supported it). Thus, we reverse on this point.

On remand, the trial court may, again, order alimony to distribute the Wife’s portion, if any, of the Husband’s pension, if supported by the required findings. Alternatively, the trial court may employ some other distribution method, such as those suggested in Langford, 833 So.2d at 235. However, as Langford aptly concludes, “these are cumbersome devices and costly. There ought to be a better remedy.” Id. We agree; however, such changes are best left to the legislature.

Unequal Distribution of Assets

Finally, the Husband argues that the trial court erred in distributing marital assets unequally, ultimately redounding in favor of the Wife.

[Sjection 61.075(1) requires the trial court to distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur. However, where a justification is shown, a trial court may make an unequal distribution....

Feger v. Feger, 850 So.2d 611, 614-15 (Fla. 2d DCA 2003) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980)). The final judgment sets forth detailed, thorough findings supporting the unequal distribution of marital assets.

If the trial court determines, on remand, that some portion of the Husband’s pension is a disability benefit excluded from distribution, it may reconsider the total equitable distribution and alimony scheme contemplated by the original final judgment in order to arrive at a just result.

Reversed and remanded.

FULMER, C.J., and CASANUEVA, J„ Concur.

      . (1) A police officer having 10 or more years of credited service, or a police officer who becomes totally and permanently disabled in the line of duty, regardless of length of service, may retire from the service of the city under the plan if he or she becomes totally and permanently disabled as defined in subsection (2) by reason of any cause other than a cause set out in subsection (3) on or after the effective date of the plan. Such retirement shall herein be referred to as disability retirement.

      . (5) The benefit payable to a police officer who retires from the service of the city with a total and permanent disability as a result of a disability is the monthly income payable for 10 years certain and life for which, if the police officer’s disability occurred in the line of duty, his or her monthly benefit shall be the accrued retirement benefit, but shall not be less than 42 percent of his or her average monthly compensation as of the police officer's disability retirement date. If after 10 years of service the disability is other than in the line of duty, the police officer’s monthly benefit shall be the accrued normal retirement benefit, but shall not be less than 25 percent of his or her average monthly compensation as of the police officer's disability retirement date.


text:
    Scott HASEMEIER, Appellant, v. James R. McDONOUGH, Secretary, Florida Dept. of Corrections, Appellee.
    No. 1D06-1549.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Scott Hasemeier, pro se, Appellant.
    Rosa Carson, General Counsel, Department of Corrections, Tallahassee; Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 23, 2006, the Court has determined that the order on appeal is renewable by motion filed pursuant to Florida Rule of Appellate Procedure 9.430 in the appellate proceeding that precipitated the order rather than by separate appeal. Wagner v. McDonough, 930 So.2d 710 (Fla. 1st DCA 2006). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

The circuit court’s appellate indigen-cy/lien order is properly challenged by filing a motion for review in case number 1D05-3856.

WOLF, PADOVANO, and POLSTON, JJ., concur.


author: CANADY, Judge.

text:
    Joe Clayton HALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2561.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

Joe Clayton Hall appeals his conviction and sentence for sale of cocaine and resisting an officer without violence. We affirm Hall’s conviction without comment. However, the State concedes that the trial court erred in imposing $80 in costs of prosecution because the State failed to document its request for costs. See Howard v. State, 920 So.2d 764, 765 (Fla. 2d DCA 2006); Hill v. State, 845 So.2d 310, 310 (Fla. 2d DCA 2003); Tucker v. State, 832 So.2d 840, 840 (Fla. 2d DCA 2002).

Because the State failed to meet its burden of demonstrating the amount of costs incurred as required by section 938.27(4), Florida Statutes (2004), we strike the $80 costs of prosecution and remand to the trial court with directions that such costs may be reimposed following the State’s production of the required documentation. See Howard, 920 So.2d at 765; Hill, 845 So.2d at 311; Tucker, 832 So.2d at 841.

Conviction affirmed; costs award stricken; remanded with instructions.

DAVIS and WALLACE, JJ., Concur.


author: VILLANTI, Judge.

text:
    Xavier Tremain JOHNSON a/k/a Zay Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3407.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Xavier Johnson appeals his judgments and sentences for multiple offenses in three cases, entered after he pleaded guilty. Johnson raises only one issue on appeal' — that the trial court should have appointed conflict-free counsel to represent him on his pro se motion to withdraw his plea. We affirm Johnson’s judgments and sentences but reverse and remand for the trial court to strike Johnson’s pro se motion.

Johnson filed his pro se “Motion to Withdraw Plea and Demand for Speedy Trial” on May 26, 2005. At the time, he was represented by counsel. The trial court orally denied the motion. Because Johnson was represented by counsel, the trial court should have treated Johnson’s motion as a nullity unless it included some unequivocal request to discharge counsel. See Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004). Johnson’s motion states, “My attorney Sheri Murphy led me to believe and/or encouraged my misapprehension of the nonbinding character of the plea agreements sentencing recommendation; resulting in my erroneous belief that the sentencing recommendation was a binding agreement pursuant to Florida Statute Criminal Procedure Rule 3.170(i).” In Mourra, this court stated, “We are not inclined to believe that an allegation of misadvice without a motion to discharge trial counsel is sufficient to justify a pro se pleading that might have unintended pre-clusive effect on postconviction proceedings.” Id. at 321 n. 5. Like the motion in Mourra, Johnson’s motion indicated some dissatisfaction with his attorney, but it did not seek to discharge her. Therefore, Johnson’s motion should have been treated as a nullity. See id. Accordingly, we reverse the trial court’s denial of Johnson’s pro se motion to withdraw his plea and remand with directions to strike the pro se motion.

Affirmed in part, reversed in part, and remanded to strike pro se motion to withdraw plea.

SILBERMAN and KELLY, JJ., Concur.


text:
    William Leslie BASS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5349.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
   VILLANTI, Judge.

William Leslie Bass appeals an order summarily denying four of five claims raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Bass’ fifth claim which sought jail credit was granted and, therefore, was not appealed by Bass. We affirm without comment as to claims two, three, and four but write to explain our affirmance as to claim one.

In claim one of his motion, Bass claims that his counsel is at fault for the State withdrawing three plea offers that he had accepted. Bass argues that the State erroneously believed that he had a prior second-degree murder conviction. Bass had advised his counsel that his prior conviction was for assault with intent to commit armed robbery, not second-degree murder. Counsel failed to investigate. The State withdrew its previous offers for six, seven, and eight years and conveyed a ten-year plea offer. Bass rejected this final offer, went to trial, was convicted, and was thereafter sentenced to fifteen years in prison. Bass claims that if counsel would have investigated his prior criminal history and notified the State of its error, the State would have reinstated one of its prior offers, which Bass would have accepted. Consequently, Bass contends he was prejudiced by his counsel’s failure to correct the factual misrepresentation concerning his prior record, resulting in a sentence greater than any one of the State’s pretrial offers.

We affirm the trial court’s summary denial because Bass’ claim is insufficient on its face. To be successful, an ineffective assistance of counsel claim must satisfy both prongs of the Strickland test — deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Jones v. State, 845 So.2d 55, 65 (Fla.2003). The flaw in Bass’ argument is that it assumes the State could not have withdrawn its offers had it been correctly informed as to his criminal history. Florida Rule of Criminal Procedure 3.172(f) states, “No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.” (Emphasis added.) The State could withdraw its plea offers to Bass at any time until a plea offer was formally accepted by the trial judge. The State was not obligated to inform Bass or his counsel why it was withdrawing its plea offers. And, even if the State’s withdrawal was based on an inaccurate criminal history, it would not be obligated to reinstate its plea offers. Bass’ claim is legally insufficient because it is pure speculation as to whether the State would have reinstated one of its prior offers if the prior record error was corrected — Bass’ counsel cannot be ineffective for failing to provide the State with information that may have caused the State to reinstate a plea offer it was neither obligated to give or keep on the table.

Besides the plain language of rule 3.172(f) cited above, pure speculation cannot be a basis for postconviction relief. See Jones, 845 So.2d at 64 (“Postconviction relief cannot be based on speculative assertions.”). Likewise, a defendant is not entitled to a plea offer from the State; that is a discretionary matter entirely within its executive domain. See Hitchcock v. State, 578 So.2d 685, 690 (Fla.1990), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); see also Downs v. State, 386 So.2d 788 (Fla.1980).

Bass’ argument as to legal sufficiency is similar to that in Cottle v. State, 733 So.2d 963 (Fla.1999). In Cottle, the supreme court addressed the legal sufficiency of a claim raising ineffective assistance of counsel for failure to convey the State’s plea offer. The court specifically rejected a pleading requirement “that the defendant must prove that a trial court would have actually accepted the plea arrangement offered by the state but not conveyed to the defendant.” Id. at 969. Bass’ claim is based on an allegation that trial counsel failed to correct a factual misrepresentation concerning his prior record, not that counsel failed to convey a plea offer. Therefore, Cottle is inapplicable.

Because Bass’ claim is legally insufficient, we affirm the postconviction court’s denial of his rule 3.850 motion.

Accordingly, we affirm.

NORTHCUTT and CASANUEVA, JJ., Concur.