author: ORFINGER, J. SAWAYA, J.,

text:
    HERNANDO COUNTY, Hernando County Water, etc., et al, Petitioner, v. Nicholas J. MORANA and Ann L. Morana, Respondent.
    No. 5D06-2243.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    Rehearing Denied April 21, 2008.
    George G. Angeliadis and Thomas S. Hogan, Jr. of The Hogan Law Firm, Brooksville, for Petitioner, Karen Nicolai.

      Jon A. Jouben and Garth C. Coller, of Office of County Attorney, Brooksville, for other Petitioners.
    Joseph M. Mason, Jr. and Carole Joy Barice of McGee & Mason, P.A., Brooks-ville, for Respondents.
   ORFINGER, J.

Petitioners, Hernando County, Hernando County Water and Sewer District, Hernando County Board of Commissioners, Diane Rowden, Jeffrey Stabins, Hannah Robinson, Thomas Hogan, Sr., and Christopher Kingsley (collectively the “County”) and Karen Nicolai, as Clerk of the Circuit Court, seek review of an order of the circuit court denying their joint petition for writ of prohibition in which Petitioners sought to prevent the county court in the underlying class action from proceeding with the case based on a lack of subject matter jurisdiction. Petitioners contend that because the aggregate amount of the individual claims exceeds the $15,000 monetary limit of the county court’s jurisdiction, the county court lacks subject matter jurisdiction to consider the matter and should be prohibited from exercising jurisdiction over the class action suit. We agree and reverse.

From 1994 until 2003, the County regulated Florida Water Services, which provided water utility services for the Spring Hill region of Hernando County. To subsidize its regulatory obligations, the County charged Florida Water Services a franchise fee/regulatory assessment fee (“franchise fee”) of four and one-half percent (4.5%) of the utility’s gross receipts in Hernando County. Florida Water Services passed that cost onto its customers in their water bills. Apparently, Florida Water Services did not list the franchise fees as a separate line item on its customers’ water bills, but instead, added that cost into the equation when computing the price of water. After collection, the County deposited the franchise fees into a trust fund maintained by the Clerk. In 2003, the County condemned Florida Water’s Hernando County assets (the “Spring Hill System”). Thereafter, the County booked all receipts from its water customers as utility revenue. Over the life of the trust fund, approximately $4,400,000 in franchise fees was collected, of which almost $3,000,000 remains.

In 2004, Respondents, Nicholas and Ann Morana, on behalf of themselves and as representatives of approximately 35,000 customers of the Spring Hill System, filed a class action suit against the County and the Clerk in the county court, seeking (1) an accounting of all of the franchise fees deposited into the trust fund, (2) a refund of the franchise fees to the ratepayers, and (3) mandatory and prohibitory injunctions. Respondents claim that Petitioners collected excessive regulatory fees and that Petitioners made illegal expenditures from the fund. Petitioners seek a refund of all amounts paid. Respondents admit in their class action complaint that no individual class member’s damages exceeds $5,000 and that the average reimbursement per class member is approximately $100.

Respondents filed their class action in county court. Petitioners moved to dismiss for lack of subject matter jurisdiction, contending that the amount of franchise fees subject to the action exceeded $3,000,000. Hence, the county court lacked jurisdiction because it was not authorized to make an aggregate class action award in excess of $15,000. Following a hearing on Petitioners’ motion, the county court denied the motion, concluding that aggregation of individual claims in a class action suit is permissive, not mandatory. Petitioners then filed their joint petition for writ of prohibition in the circuit court. The circuit court denied the petition, concluding that the aggregation of claims is permissive rather than mandatory. Petitioners timely appeal.

Section 34.01(l)(e), Florida Statutes, gives county courts original jurisdiction “[o]f all actions at law in which the matter in controversy does not exceed the sum of $15,000, exclusive of interest, costs, and attorneys fees.... ” The circuit court has jurisdiction of all matters when the amount in controversy exceeds $15,000. See Art. V, § 20(c)(3), Fla. Const.; §§ 26.012(2)(a), 34.01(l)(c), Fla. Stat. (2007); see also Allen v. Walker, 810 So.2d 1090, 1092 (Fla. 4th DCA 2002) (“For purposes of subject matter jurisdiction, the .circuit courts of Florida have jurisdiction over any action at law in which the matter in controversy exceeds $15,000, exclusive of interest, costs, and attorney’s fees.”). The question presented in this appeal is whether aggregation of the individual claims for purposes of determining subject matter jurisdiction is mandatory, as Petitioners argue, or permissive, as . Respondents argue and the lower courts concluded.

This Court answered that question in Galen of Florida, Inc. v. Arscott, 629 So.2d 856 (Fla. 5th DCA 1993). In Galen, we held:

The class action rule contemplates a single judgment, not hundreds or thousands of judgments for each individual claim.... [Gjiven the purpose of the class action procedure and the size and complexity of the usual class action, we conclude that the class action rule contemplates that the amount of the claim of the entire class determines the dollar amount jurisdiction. Our circuit courts are designed to hear such complex cases; our county courts are not. If the aggregated individual claims do not exceed the $15,000 jurisdictional amount, the class action belongs in county court. If it exceeds the circuit court threshold, it belongs in circuit court.

Id. at 857 (emphasis added). The Florida Supreme Court approved the reasoning of Galen in Johnson v. Plantation General Hospital Limited Partnership, 641 So.2d 58 (Fla.1994), holding that:

The purpose of the class action is to provide litigants who share common questions of law and fact with an economically viable means of addressing their needs in court. We believe that purpose is served best if jurisdiction is conferred on the circuit court when the aggregated claims of the class meet the monetary jurisdictional requirement even though an individual claim of a class member does not reach that threshold.

Id. at 60 (emphasis added).

As we did in Galen, we hold that if the aggregated individual claims of class plaintiffs do not exceed $15,000, exclusive of costs, interest and attorney’s fees, the action belongs in the county court. If the aggregated class claims exceed the circuit court threshold, jurisdiction belongs exclusively in the circuit court. Because we conclude the trial court’s order constitutes a departure from the essential requirements of law causing sufficient harm to justify certiorari review, we grant the writ and quash the order of the circuit court denying the Petition for Writ of Prohibition.

WRIT GRANTED.

TORPY, J., concurs.

SAWAYA, J., dissents with opinion.

SAWAYA, J.,

dissenting.

In this case, the class action suit was filed in the county court and that is where the class members wish to keep it. They contend that none of the claims exceed the jurisdictional limit of the county court and that aggregation of those claims is not mandatory. Hernando County, a defendant in the class action proceedings, argues that aggregation of all individual claims is mandatory in all class action suits and, therefore, jurisdiction of the instant suit lies in the circuit court. The issue we must thus resolve is whether aggregation is permissive or whether it is mandatory in all class action cases.

The Florida Supreme Court has held that

the test for jurisdiction is twofold. In the first instance, the good faith demand of the plaintiff at the time of instituting suit determines the ability of the particular court to entertain the action. However, notwithstanding the bona fides of the plaintiffs demand at the time of institution of suit, as a matter of judicial power the county court is precluded from entering a judgment for damages in excess of its mandated jurisdiction.

White v. Marine Transp. Lines, Inc., 372 So.2d 81, 84 (Fla.1979); see also § 34.01(l)(c), Fla. Stat. (2007) (giving county courts original jurisdiction “[o]f all actions at law in which the matter in controversy does not exceed the sum of $15,000, exclusive of interest, costs, and attorneys fees.... ”). I, therefore, adhere to the view that aggregation is permissive when the amount of each individual claim falls below the jurisdictional limit of $15,000 and when it is not necessary to enter a judgment in excess of that amount.

Turning to the first part of the White test, at the time the class action suit was instituted, the alleged improper fees had already been collected and deposited into an account by Hernando County and the class members want a refund of that money. The complaint filed in this case requests injunctive relief prohibiting Her-nando County from collecting any further improper fees; injunctive relief prohibiting Hernando County from disbursing funds from the account in which the money previously collected is held; and an accounting requiring Hernando County to account for the pro rata share of each plaintiff owed a refund. The complaint also includes a count for damages for breach of fiduciary duty that does not exceed $15,000 for any plaintiff. While there may be three million dollars in the account or claimed as a refund when the individual claims are aggregated, the complaint clearly alleges that none of the plaintiffs will be entitled to an amount exceeding the jurisdictional limit of $15,000. In fact, the record clearly indicates that none of the individual claims will exceed $5,000 and that the average claim amount is $100. This is not disputed by Hernando County. Therefore, the good faith demands at the time the suit was instituted determine that jurisdiction properly lies in the county court.

Applying the second part of the White test, it is readily apparent that this case is unlike typical cases where a jury is required to determine a total amount of un-liquidated damages in excess of the jurisdictional amount, which must be reduced to judgment and collected from the defendant. Here, the record makes it clear that a summary judgment has been entered finding that the fees were improperly assessed, just as the class members alleged, and that the trial judge will enter a final judgment that establishes a formula for dividing the money that has already been collected from the class members and ordering that the class members be awarded an amount based on that formula. Her-nando County conceded this to the trial judge but argued in essence that because aggregation is mandatory in all class action suits, any judgment must be considered to be a judgment that exceeds the jurisdictional limit of the county court. The trial court disagreed and this is why the decision was made to leave the case in county court.

Hernando County’s argument and the majority’s decision that aggregation is mandatory in all class action suits is founded on this court’s decision in Galen of Florida, Inc. v. Arscott, 629 So.2d 856 (Fla. 5th DCA 1993), review denied, 641 So.2d 1344 (Fla.1994), and review denied, 641 So.2d 1345 (Fla.1994). Galen is distinguishable because in that case, the suit was filed in circuit court and the court was looking for a legal basis to justify jurisdiction at the circuit level. In addition, some of the claims in Galen were above the jurisdictional amount for county court and the court saw little benefit to fragmenting claims based on the jurisdictional amounts. It also is not clear from the opinion whether a judgment would have to have been entered in excess of the jurisdictional amount of the county court to determine the amount of any unliquidated damages.

Nevertheless, I think it is more important to focus on the decisions of the Florida Supreme Court that have considered the aggregation issue, including the decision in Johnson v. Plantation General Hospital Ltd. Partnership, 641 So.2d 58 (Fla.1994), where the supreme court accepted jurisdiction in order to resolve a conflict between the Fourth District Court’s holding in Plantation General Hospital v. Johnson, 621 So.2d 551 (Fla. 4th DCA 1993), that aggregation of claims in class action cases should be prohibited and this court’s holding in Galen that the claims should be aggregated to confer jurisdiction on the circuit court. Although this court’s Galen decision does not explicitly state that it is mandatory to aggregate in all class action cases, the following language from that opinion could be interpreted as implying mandatory aggregation: “If the aggregated individual claims do not exceed the $15,000 jurisdictional amount, the class action belongs in county court. If it exceeds the circuit court threshold, it belongs in circuit court.” 629 So.2d at 857. Exercising its conflict jurisdiction, the supreme court rejected the prohibition of aggregation adopted by the Fourth District Court and approved the reasoning of this court’s decision in Galen for allowing aggregation. However, it is clear from reading the Florida Supreme Court’s decision that it also rejected any notion implicit in this court’s Galen decision that aggregation is mandatory in all cases. Specifically, the court explained:

We believe that allowing the aggregation of claims in order to retain jurisdiction is consistent with this Court’s decision in State ex rel. City of West Palm Beach v. Chillingworth, 100 Fla. 489, 129 So. 816 (1930). The claimants in Chillingworth owned bonds and brought an action in the circuit court seeking an installment of interest due on the bonds. The value of the aggregated claims was worth $600, but the minimum jurisdiction of the circuit courts at that time was $500. This Court stated that “if the demands from their nature or character are joint or composite, or are in some way related to each other or arise out of the same transaction, circumstances, or occurrence, they may be aggregated to confer jurisdiction.” Id. at 491-92, 129 So. 816. Although Chillingworth is not directly controlling, we see no reason to digress from this precedent of permitting the aggregation of claims as long as the procedural and legal requirements for the class action are satisfied.

641 So.2d at 60 (emphasis added). That the Florida Supreme Court held in Johnson that aggregation is permissive is apparent from its refusal to digress from the precedent established in State ex rel. City of West Palm Beach v. Chillingworth, 100 Fla. 489, 129 So. 816 (1980), “of permitting the aggregation of claims.” 641 So.2d at 60. Chillingworth explicitly holds that aggregation is a discretionary decision to be made by the trial court. It should also be emphasized that the underlying facts in Galen and Johnson clearly indicate that, in both cases, some of the claims exceeded the jurisdictional amount of the county court. Although the facts in Galen are unclear, it appears that in Johnson, a judgment would have to be entered based on a finding of the total amount of unliquidated damages owed the class. Further, in both Galen and Johnson, the class action suit was filed in circuit court, and the supreme court in Johnson essentially found a legal basis to leave it there.

The supreme court’s most recent statement on aggregation of claims in class actions is found in Galencare, Inc. v. Blanton, 650 So.2d 42 (Fla.1995), in which it approved the decision of the Second District Court in Galencare, Inc. v. Blanton, 636 So.2d 547 (Fla. 2d DCA 1994). The supreme court’s opinion contains no analysis and is a simple approval based on Johnson. .The underlying Second District Court opinion contains that court’s statement that it was aligning itself with this court’s decision in Galen, which it described as holding “that the circuit court’s dollar jurisdiction may be satisfied by aggregating the value of each plaintiffs claim.” 636 So.2d at 547 (emphasis added). It is important to note that the Second District Court described Galencare’s argument as being that aggregation is “not permitted” and rejected its argument.

If the Florida Supreme Court meant to adopt a mandatory rule of aggregation in all class action cases, it certainly knew how to explicitly say so. Instead, the court adopted a permissive rule. This is obvious from the plain language used in its decisions and by its reaffirmance and application of Chillingworth, which explicitly holds that aggregation is permissive and not mandatory.

I also looked to the law in other states and found that the courts in many states adhere to the principle that aggregation is prohibited. I do not know of any court that has faced the issue we face, which is whether aggregation is mandatory in all class actions. The reasoning of many of the decisions from other jurisdictions gives me further concern about this court adopting an absolute rule requiring aggregation in all cases. Mutual of Omaha Insurance Co. v. Blury-Losolla, 952 P.2d 1117 (Wyo.1998), explains my concern quite clearly:

Wyoming adheres to the doctrine of separation of powers. Wyo. Const, art. 2, § 1. As part of that doctrine, both statutes and court rules have recognized the distinction between substantive lawmaking and procedural rule-making. State ex rel. Frederick v. District Court of Fifth Judicial Dist. In and For Big Horn County, 399 P.2d 583, 584-86 (Wyo.1965). Wyo. Stat. § 5-2-114 (1997) sets forth the court’s authority to make rules “governing pleading, practice and procedure * * *.” See White v. Fisher, 689 P.2d 102, 106 (Wyo.1984). Wyo. Stat. § 5-2-115(b) (1997) makes it clear that “[s]uch rules shall neither abridge, enlarge nor modify the substantive rights of any person nor the jurisdiction of any of the courts * * *.” See McGuire v. McGuire, 608 P.2d 1278, 1290 (Wyo.1980). W.R.C.P. 82 dictates a narrow construction of the rules to ensure this limitation.
Wyo. Stat. § 5 — 5—131 (a)(i) gives the county court exclusive jurisdiction over “[a]n action where the prayer for recovery is an amount not exceeding * * * $7,000.00 * * *[.]” This is a clear legislative mandate that such cases may not be heard in the district court. The fact that W.R.C.P. 20-a procedural rule-allows multiple plaintiffs with similar claims to join their separate claims in one lawsuit, cannot and does not change the fact that subject matter jurisdiction lies only in the county court. Likewise, the class action procedures adopted by this court in W.R.C.P. 23 do not contemplate, and could not accomplish, a modification of subject matter jurisdiction via aggregation of claims. Federal precedent, which we find persuasive, disallows aggregation under similar circumstances (amount in controversy under cases involving diversity of citizenship). See Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) and Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).
Finally, appellees ask this court to decide in their favor because all class action lawsuits ought to be in district court. They point to several factors they believe make the district courts a more appropriate forum for the complications of the typical class action case. While this may well be a good policy argument, it is not the job of this court to make policy. The setting of the jurisdictional limits of the state’s courts is a legislative task. What we cannot do by court rule, neither can we do by individual case opinion. The same can be said of the decision as to whether class actions should be made available in the county and justice courts. At present, W.R.C.P.C.C. 1.06 and W.R.C.P.J.C. 1(a)(3) indicate that such is not the case. Indeed, the language of W.R.C.P.C.C. 1.06 specifically recognizes that it is the role of the legislature to make that decision. We cannot say whether Wyoming’s lawmakers would think it a good idea to make class action lawsuits available in the courts of limited jurisdiction.

Id. at 1120-21.

I would simply note here that the Florida courts have consistently held that “ ‘[sjubject matter jurisdiction cannot be created by waiver, acquiescence or agreement of the parties, or by error or inadvertence of the parties or their counsel, or by the exercise of power by the court; it is a power that arises solely by virtue of law.’ ” 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994) (quoting Fla. Exp. Tobacco Co. v. Dep’t of Revenue, 510 So.2d 936, 943 (Fla. 1st DCA), review denied, 519 So.2d 986 (Fla.1987), and review denied sub nom. Lewis v. Fla. Exp. Tobacco Co., 519 So.2d 987 (Fla.1987)) (emphasis added). Therefore, I question whether the Florida courts can create a rule of procedure that provides trial courts with discretion to certify class actions, see Pinellas County Sch. Bd. v. Crowley, 911 So.2d 881, 882 (Fla. 2d DCA 2005) (holding that a trial court has “considerable discretion” in deciding whether to grant or deny certification), and then create a mandatory jurisdictional rule that all claims be aggregated to require that all class actions be resolved in the circuit court. See Boyd v. Becker, 627 So.2d 481, 484 (Fla.1993) (“While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights.”); State v. Garcia, 229 So.2d 236, 238 (Fla.1969) (“The rules adopted by the Supreme Court are limited to matters of procedure, for a rule cannot abrogate or modify substantive law.”); Oceania Joint Venture v. Ocean View of Miami, Ltd., 707 So.2d 917, 920 (Fla. 3d DCA 1998) (“[I]t is clear that the Florida Supreme Court’s exclusive rule-making authority conferred under article Y, section 2, is limited to rules governing procedural matters and does not extend to substantive rights”).

In the final analysis, the decision whether to certify a class action is discretionary and not mandatory. I believe that the decision whether to aggregate the claims to allow the case to be transferred to the circuit court in instances where it is not necessary to enter a judgment exceeding the jurisdictional amount and where every individual claim falls below the jurisdictional amount for circuit court should also be a discretionary matter left to the county court. I think that this view fully comports with the statutory provisions regarding the jurisdiction of the circuit and county courts, the Florida Supreme Court precedent in Galencare, Johnson, and White, and the basic principles underlying the procedural rule allowing class actions in Florida. Accordingly, the county court properly exercised its discretion in denying the Joint Motion to Dismiss for Lack of Subject Matter Jurisdiction because, just as the county court concluded, aggregation of claims is permissive in this instance. I believe, therefore, that the petition for -writ of certiorari should be denied, and I must respectfully dissent.

      . Prohibition is an extraordinary writ by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction. English v. McCrary, 348 So.2d 293, 296 (Fla.1977).

      . We review this case by certiorari in light of the Florida Supreme Court's recent holding in Sutton v. State, 975 So.2d 1073 (Fla. 2008), that orders denying writs of prohibition in circuit court are reviewed in this Court by certiorari.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Timothy L. HUMPHREY, DOC #930490, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1093.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.
    Rehearing Denied April 30, 2008.

      James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this appeal from his conviction for murder, Timothy L. Humphrey challenges, inter aha, the trial court’s denial of his nondispositive motion to suppress evidence. We affirm on all grounds but write to address one of the issues raised by Humphrey because it appears to be an issue of first impression in Florida dealing with the applicability of the husband-wife privilege to cellular telephone calls.

At trial, the State sought to introduce records obtained from Humphrey’s cellular telephone provider. The records were part of the telephone company’s billing system. On July 5-6, 2008, the evening of the murder, Humphrey and Ashley, his new wife, made numerous cellular telephone calls to each other. The records which the State sought to introduce at trial reflected the number of calls between Ashley’s and Humphrey’s cellular telephones on the night of the murder, the times of the calls, as well as the duration of the calls and the relative physical location of Ashley’s and Humphrey’s cellular telephones at the time of the calls. The records placed Ashley’s cellular telephone near the location of the victim’s workplace just hours before the murder and near the murder scene around the time of the murder. The records did not reflect the actual substance of the cellular telephone conversations between Ashley and Humphrey.

Humphrey filed a motion to suppress introduction of the cellular telephone records, arguing that the records were protected from disclosure by the husband-wife privilege, section 90.504, Florida Statutes (2003). After a hearing, the trial court denied Humphrey’s motion, finding that the records produced by the telephone company did not fall within the marital privilege. The case proceeded to trial before a jury, Humphrey was found guilty of murder in the first degree, and he was sentenced to life in prison. He challenges the trial court’s denial of his motion to suppress. We affirm the trial court’s order.

Section 90.504(1) provides:

A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

There is nothing inherently privileged about the mere occurrence of a cellular transmission between spouses — this communicates no substance of what was said by either spouse. The husband-wife privilege does not protect testimony as to the fact that a communication between husband and wife took place; only the substance of the communication is protected. See Kerlin v. State, 852 So.2d 45, 52 (Fla.1977). Therefore records obtained from a telephone company, which simply reflect the time, date, length, and location of a telephone call, are not communications falling within the purview of the husband-wife privilege. See, e.g., Thurman v. Commonwealth, 975 S.W.2d 888, 897 (Ky.1998) (holding that telephone records showing that a telephone call had been made between spouses did not implicate the spousal privilege where the content of the conversation was not revealed). Thus the trial court correctly denied Humphrey’s motion to suppress evidence of the cellular telephone records, as these records did not involve the husband-wife privilege.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

      . The victim in this case was also the victim in a felony battery trial pending in Hillsbor-ough County against Humphrey at the time she was murdered. Witnesses testified at trial in this case that Humphrey was very concerned about that upcoming felony trial.

      . Humphrey and Ashley were married on July 4, 2003, the day before the murder. At trial Ashley testified that prior to their marriage she and Humphrey discussed murdering the victim and that, while planning the murder, Humphrey told Ashley that if they were married they would not be able to testify against each other if arrested for the crime. Ashley also testified that prior to their marriage Humphrey hired an attorney to consult with her about the legal effect of a wife testifying against her husband.

      .Through technology and the location of cellular telephone towers, cellular telephone providers are able to trace the geographical area where a particular cellular telephone is located when it transmits or receives calls.


author: WALLACE, Judge.

text:
    MASTEC, INC., Appellant, v. TJS, LLC, and Lakeland Granite and Marble, Inc., Appellees.
    No. 2D06-5675.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2008.
    Rehearing Denied April 29, 2008.

      Erik W. Scharf of Erik W. Scharf, P.A., Coconut Creek, for Appellant.
    Monterey Campbell, Mark N. Miller, and Kristie Hatcher-Bolin of GrayRobin-son, P.A., Lakeland, for Appellees.
   WALLACE, Judge.

MasTec, Inc. (the Seller) appeals a final judgment for the specific performance of a contract for the sale of a reclaimed phosphate mine to TJS, LLC, and Lakeland Granite and Marble, Inc. (collectively, the Buyers). The Buyers failed to tender the purchase price to the Seller before the contract expired, and a tender in accordance with the contract was not excused. For this reason, we reverse the final judgment for specific performance.

The Facts

On March 5, 2003, the Seller entered into a “Vacant Land Contract” (the Contract) with Lakeland Granite and Marble, Inc. The Contract was for the sale of approximately 475 acres located on State Road 540 in Polk County. The purchase price was $475,000 or $1000 per acre as shown by a survey that was to be prepared before closing. The closing agent held a $10,000 deposit, and the balance of the purchase price was payable at closing. With respect to the closing date, the Contract provided, in pertinent part: “This Contract will be closed and the deed and possession delivered on or before July 25, 2003, unless extended by other provisions of this Contract.”

Later, Lakeland Granite made a partial assignment of the Contract to TJS, LLC. In accordance with the assignment, TJS was to take title to 353 acres of the property at closing, and Lakeland Granite would take title to 125 acres. The Seller eventually approved the assignment.

Several provisions of the Contract are noteworthy. The Contract provided that time was of the essence for all of its provisions. Under paragraph 5(c) of the Contract, the Seller agreed to provide the Buyers with a title insurance commitment as title evidence. The title insurance commitment was required to conform to the requirements of paragraph 8(a) of the Contract. With respect to title examination, objections to title defects, and cure, paragraph 8(b) of the Contract provided as follows:

(b) Title Examination: Buyer will examine the title evidence and deliver written notice to Seller, within 5 days from receipt of title evidence but no later than closing, of any defects that make the title unmarketable. Seller will have 30 days from receipt of Buyer’s notice of defects (“Curative Period”) to cure the defects at Seller’s expense. If Seller cures the defects within the Curative Period, Seller will deliver written notice to Buyer and the parties will close the transaction on Closing Date or within 10 days from Buyer’s receipt of Seller’s notice if Closing Date has passed. If Seller is unable to cure the defects within the Curative Period, Seller will deliver written notice to Buyer and Buyer will, within 10 days from receipt of Seller’s notice, either cancel this Contract or accept title with existing defects and close the transaction.

Such provisions for a buyer’s written notice of title defects and a seller’s opportunity to cure are common features of real estate contracts in Florida. See, e.g., Jones v. Warmack, 967 So.2d 400, 401-02 (Fla. 1st DCA 2007) (interpreting a similar contract provision); see also J. Richard Harris & Kevin M. Rys, Basic Agreement, in Florida Real Property Sales Transactions §§ 3.32-.33, .36 (Fla. Bar CLE 4th ed. 2004) (discussing the delivery of title evidence to the buyer, the buyer’s notice of defects, the seller’s opportunity to cure defects, and providing a contract form provision). The Contract provides further that it constitutes the entire agreement between the parties and that “[mjodifica-tions of this Contract will not be binding unless in writing, signed and delivered by the party to be bound.”

The property had previously been used as a phosphate strip-mine. After the Seller acquired the property in 1996, it undertook reclamation efforts. The reclamation process was substantially completed when the parties entered into the contract. However, the property was subject to two mortgages in favor of the Trustees of the Internal Improvement Fund (the TIIF mortgages). The TIIF mortgages had been recorded by the Florida Department of Environmental Protection (DEP) as security for the completion of the reclamation process.

Lakeland Granite selected a local attorney, Stephen H. Artman, to act as the closing agent and title agent for the transaction. As closing agent, Mr. Artman held the Buyers’ $10,000 deposit in his trust account. Mr. Artman did not have an attorney-client relationship with either the Buyers or the Seller. In fact, each of the Buyers was represented by local counsel. Lakeland Granite was represented by Richard A. Miller. TJS was represented by Christopher M. Fear, but Mr. Fear was authorized to act on behalf of both TJS and Lakeland Granite. House counsel handled matters pertaining to the Contract for the Seller.

Shortly before the July 25, 2003, closing date designated in the Contract, Mr. Art-man obtained a title search report for the property. In addition to the TIIF mortgages, the title search report reflected an easement in favor of Polk County, certain reservations, and a long-term ground lease. Mr. Artman faxed a copy of the title search report to Mr. Fear on July 24. Afterward, in July and August, Mr. Fear and Mr. Miller informed Mr. Artman of their objections to several of the encumbrances on the property, including the TIIF mortgages. The trial court found that Mr. Artman had “communicated these objections to [the Seller], either orally or by facsimile copy.”

On July 26, 2003, the Seller and Lake-land Granite executed an addendum to the Contract. This first addendum extended the Contract and the closing date for thirty days and rescheduled the closing for on or before August 25, 2003. After the execution of this first addendum, the parties realized that addressing the title issues— especially obtaining releases of the TIIF mortgages- — would take substantially longer than they had originally anticipated. Thus the parties executed a second addendum to the Contract providing for a further extension. The second addendum was dated September 15, 2003. The provisions of the second addendum would become a focus of the litigation that ensued between the Seller and the Buyers.

The second addendum to the Contract was relatively brief. It provided as follows:

1. All Parties have been advised that a title search and examination has revealed discrepancies and encumbrances which currently render Seller’s title to the subject property unmarketable.
2. All Parties have been advised that additional time will be required in order to obtain corrective instruments necessary to correct the title problems. Accordingly, both Parties agree as follows:
A. All Parties acknowledge and reaffirm that they still intend to be bound by the Contract for Sale and Purchase dated March 5, 2003 (hereinafter the “Contract”).
B. All Parties agree that the Contract shall be extended for five (5) additional successive periods of thirty (30) days each. During this time, the Contract shall automatically renew every thirty (30) days until such time as it is closed or a maximum period of 150 days has elapsed.
3.All other terms and conditions of the Contract remain unchanged.

Thus the second addendum extended the Contract for five additional successive periods of thirty days each, effectively extending the expiration date of the Contract to February 15, 2004.

Mr. Artman sent the title commitment to the Buyers on September 11, 2003. Shortly thereafter, the parties executed the second addendum. The recitals in the second addendum reflected at least a general awareness by all parties that “a title search and examination has revealed discrepancies and encumbrances which currently render Seller’s title to the subject property unmarketable.” Notably, after their receipt of the title commitment, neither Mr. Fear nor Mr. Miller ever sent the Seller a written notice outlining the defects that they claimed rendered the title unmarketable. Likewise, the Seller never sent written notice to the Buyers or their attorneys of its inability to cure any of the “discrepancies and encumbrances” that the Buyers deemed objectionable.

Meanwhile, efforts to cure the title defects — particularly obtaining releases of the TIIF mortgages — continued. Most of this work was done by Mr. Fear. By December 2003, Mr. Fear anticipated that it would take several more months to obtain the releases of the TIIF mortgages from DEP. Thus, on December 17, 2003, Mr. Fear wrote to Mr. Artman and proposed that clearing up matters pertaining to the TIIF mortgages would be the Seller’s postclosing obligation, “with the Seller and Buyer entering into an Escrow Agreement with an escrow of $100,000 to secure the Seller’s performance of the obligation.” In addition, Mr. Fear proposed an amendment to the Contract to extend the closing date to March 15, 2004. The Seller never agreed to this proposal.

On January 5, 2004, Mr. Artman sent the Seller a proposed addendum to the Contract that would have extended it for five additional successive periods of thirty days each. Mr. Artman explained in his letter that “the [B]uyers are requesting additional time in which to complete” the ongoing efforts to secure the approval and permitting from the Southwest Florida Water Management District. Such approval and permitting was a prerequisite to obtaining releases of the TIIF mortgages. The Seller did not agree to this proposal.

On February 15, 2004, the drop-dead date fixed in the second addendum expired without either party taking steps to close the Contract. Nevertheless, on March 5, 2004, Derrell Riley, one of the Seller’s representatives, wrote to Mr. Artman in response to his letter of January 5, 2004. In pertinent part, Mr. Riley’s letter said:

[The Seller] will grant an extension of sixty (60) business days only commencing March 8th, 2004[,] and ending May 28th, 2004. If this transaction is not closed by the end of the extension term allotted, the original Contract for Sale and Purchase and previous bid will be null and void.
If your client is in agreement, please prepare a simple 60[-]day extension and send it to me for signatures.

On March 8, 2004, Mr. Artman responded by sending Mr. Riley a proposed third addendum to the Contract providing for an additional extension. The Seller found some of the details of this proposal to be objectionable. The trial court subsequently found that the exchange of proposals between Mr. Riley and Mr. Artman did not constitute an agreement to extend the closing date beyond February 15, 2004.

On March 12, 2004, Mr. Fear sent Mr. Riley a letter with yet another proposed amendment to the Contract. Mr. Fear’s proposal called for a closing date no later than May 11, 2004, and imposed various postclosing obligations on the Seller. In addition, the proposal provided that the Seller would place $100,000 from the closing proceeds in escrow as security for the performance of its postclosing obligations. On April 9, 2004, the Seller wrote Mr. Fear acknowledging “receipt of your letter dated March 12, 2004[,] enclosing a proposed Second Amendment to that Contract dated March 1, 2003.” The Seller’s letter continued, ‘Tour counteroffer is rejected.”

The Buyers subsequently dropped their demand for the $100,000 escrow requirement, and they notified the Seller that they were ready, willing, and able to proceed with the closing. However, at that point, the Seller was not willing to close the transaction. These events set the stage for the lawsuit that followed.

The Proceedings in the Trial Court

On May 20, 2004, the Buyers filed a complaint seeking both damages and spe-eific performance against the Seller. At a bench trial conducted approximately two years after the Buyers had filed suit, the focus of the parties’ presentations was on whether the Contract had been extended beyond the drop-dead date of February 15, 2004, that had been fixed in the second addendum. For example, the Buyers’ trial memorandum advised the trial court that “[t]he over-arching issue in this case is whether the Contract had expired on or before April 9, 2004[,] when [the Seller] terminated its performance.” The Buyers argued that the March 5, 2004, letter written by Derrell Riley of the Seller to Mr. Artman and Mr. Artman’s March 8, 2004, reply amounted to an agreement to extend the closing date for sixty business days commencing March 8, 2004, and ending May 28, 2004. In response, the Seller contended that this exchange of correspondence did not constitute yet another agreement to extend the closing date. In the Seller’s view, Mr. Artman’s reply was not an acceptance of the Seller’s request for a “simple 60[-]day extension.” Instead, the Seller argued that Mr. Artman’s proposed Third Addendum to the Contract providing for an additional extension was a counteroffer that added additional terms. The Seller asserted that it had rejected this “counteroffer.”

After hearing the evidence and arguments, the trial court had a different perspective on the legal issues determining the outcome of the case. The trial court agreed with the Seller’s contention that there had been no agreement to extend the closing date beyond February 15, 2004. Despite this finding, the trial court decided that the Seller had breached the Contract and was obligated to perform. The trial court’s decision was based on two legal conclusions. First, the trial court interpreted the second addendum to the Contract as relieving the Buyers of their contractual duty to provide written notice of title defects upon receipt of the title commitment. In the trial court’s view, the second addendum amounted to an acknowledgment that all parties were aware of the title defects that required correction, and it triggered the Seller’s duty either to cure the defects or to provide written notice of its inability to cure. Second, the trial court considered the Seller’s omission to send notice of its inability to cure the title defects as obligating it to convey marketable title to the Buyers on the drop-dead date of February 15, 2004. Under the trial court’s analysis, when the transaction failed to close on that date, the Seller was in breach of the Contract.

The trial court’s two critical rulings appear in the following portions of the final judgment:

8. The [second a]ddendum constitutes an acknowledgment by the parties [that] there were title defects rendering title unmarketable and that additional time was required to cure those defects. The [second] addendum also constituted an amendment to the Contract which made unnecessary, or eliminated, the contractual requirement that the Buyer[s] provide the Seller with written notice of any defects that made title unmarketable. The parties were aware of the title defects which rendered title unmarketable.
10. On January 5, 2004, [Mr.] Art-man corresponded with [the Seller] and, in addition to generally summarizing activities undertaken by the Buyers to remedy title defects, requested an extension of the closing date in order to obtain additional time to cure title defects. The [Seller] did not respond to this request by the February 15, 2004[,] closing date nor did it inform the Buyers, in writing, pursuant to Paragraph 8(b) of the Contract, that it was unable to cure the title defects. The contract did not close on February 15, 2004. Accordingly, the [Seller] was in breach of contract as of that date.

Based on these conclusions of law, the trial court ruled that the Buyers were entitled to specific performance of the Contract.

Discussion

On appeal, the Seller’s arguments address three different aspects of the trial court’s ruling: (1) the construction of the Contract, (2) the issues relating to performance and breach, and (3) the appropriate remedy. On the contract construction issue, the Seller argues that the trial court erred in interpreting the second addendum’s recitals as amending the Contract so that the Buyers’ obligation to give written notice of title defects was eliminated, but the Seller’s obligation to respond in writing was retained. With respect to the issues of performance and breach, the Seller contends that the trial court erred in finding it to be in breach when the Buyers never tendered the purchase money. Finally, the Seller maintains that the Contract’s default clause precludes an award of specific performance when the Seller fails to make title marketable. After a thorough review of all three issues, we conclude that we need only discuss the issue relating to performance and breach of the Contract.

Whether or not the trial court’s construction of the Contract was correct, the issues relating to performance and breach are dispositive of this case. Accordingly, we may assume — without deciding — that the second addendum amended the Contract so that the Buyers were not required to give the Seller written notice of title defects. From this assumption, it follows that the Seller omitted to give the Buyers the requisite notice of its inability to cure the title defects on or before February 15, 2004. Even so, the Buyers were not entitled to specific performance because they did not tender the purchase price to the Seller before the Contract expired.

Based on the trial court’s construction of the Contract, the Seller, having failed to give the Buyers written notice of its inability to obtain releases of the TIIF mortgages and to cure the other title defects, was obligated to convey marketable title to the Buyers on or before February 15, 2004. The trial court’s remedy for the Seller’s failure to do so was to order the Seller to “take such action and execute and deliver such documents ... as may be reasonably necessary to facilitate the delivery of marketable title at closing.” But the Contract called for concurrent performances by the parties. Thus the Seller could not be in breach of the Contract and obligated to convey title absent a tender of payment by the Buyers. Where, as here, the deed is to be delivered upon payment of the purchase price, “ ‘an actual tender and demand by one party is absolutely necessary to put the other in default and to cut off his right to treat the agreement as still subsisting.’ ” Booth v. Bobbitt, 94 Fla. 704, 114 So. 513, 514 (1927) (quoting John N. Pomeroy, A Treatise on the Specific Performance of Contracts § 361 (John N. Pomeroy, Jr. & John C. Mann, eds., 3d ed. 1926)).

The trial court made no finding of tender, and the Buyers do not claim that they made a tender of payment to the Seller on or before February 15, 2004. In fact, the closing agent never had more than the $10,000 deposit in his trust account. Furthermore, the trial court did not find that a tender by the Buyers was excused by the Seller’s prior repudiation of the Contract, and such a finding would not have been supported by the evidence. Cf. Kaplan v. Laratte, 944 So.2d 1074, 1075 (Fla. 4th DCA 2006) (finding that a buyer’s duty to make deposits due under two real estate contracts was excused where the seller repudiated the contracts when the buyer still had time to make the deposits). Here, the Contract provided — in bold print — that “[t]ime is of the essence for all provisions of this Contract.” Consequently, in the absence of the Buyers’ tender of the purchase price on or before February 15, 2004, the Seller never became obligated to convey title before the Contract expired. See Vance v. Roberts, 96 Fla. 379, 118 So. 205, 208 (1928); Robinson v. Abreu, 345 So.2d 404, 405 (Fla. 2d DCA 1977); Arvesu v. Blancom Props., N.V., 913 So.2d 1231, 1232 (Fla. 3d DCA 2005); Garcia v. Alfonso, 490 So.2d 130, 131 (Fla. 3d DCA 1986); Hooper v. Breneman, 417 So.2d 315, 317 (Fla. 5th DCA 1982); Emery v. Milton, 378 So.2d 1300, 1301 (Fla. 3d DCA 1979).

Conclusion

For these reasons, the trial court erred in ordering specific performance of the Contract in favor of the Buyers. We reverse the final judgment for specific performance, and we remand for the entry of a final judgment in favor of the Seller.

Reversed and remanded with instructions.

KELLY and VILLANO!, JJ., Concur.

      .The Contract was on a preprinted form issued by the Florida Association of Realtors. The form bears the designation ''VAC-6 10/00.”

      . After the execution of the Contract, a survey disclosed that the property included 478 acres.

      . The “time is of the essence” provision appears in bold print.

      . The title search report named the Seller as the apparent owner of the property and listed the TIIF mortgages and other matters affecting the title to the property. However, the title search report was prepared for Mr. Art-man’s use in evaluating and determining the insurability of the title to the property prior to the issuance of title insurance. Thus the title search report was only preliminary information; it was not the title commitment that the Seller was required to furnish to the Buyers under paragraphs 5(c) and 8(a) of the Contract.

      . In fact, a 150-day extension would have extended the Contract to February 12, 2004, not February 15. Moreover, February 15, 2004, fell on a Sunday. Under the Contract, for any deadline falling on a Saturday, Sunday, or national legal holiday, performance would have been due on the next business day. However, the parties and the trial court treated the Contract as if it had been extended to February 15, 2004. For the purposes of our analysis, this discrepancy of three or four days is not material. Therefore, we will use February 15, 2004, as the expiration date of the Contract fixed in the second addendum.

      . The title commitment — unlike the title search report — was the evidence of title that the Seller was contractually obligated to provide to the Buyers.

      . The reference in Mr. Riley's letter to "your client" reflects a misunderstanding of Mr. Artman’s role. As noted above, Mr. Artman was selected to serve as the closing agent and title agent for the transaction. He was not the attorney for any of the parties.

      . If the parties had executed this document, it would have constituted the third amendment or addendum to the Contract, not the second.

      . At the conclusion of the trial, the Buyers elected the remedy of specific performance.

      . On announcing his ruling orally, the trial judge said: "But, here’s the point that I’m surprised neither one of you tried to argue with me at all. And nobody seemed ⅛> — and who knows maybe because I’m looking at this thing differently.”

      . The trial court's final judgment contains detailed findings of fact and conclusions of law. These findings of fact and conclusions of law have facilitated this court's review of this case.

      . In pertinent part, the Contract’s default clause provides:
      Default: (a) Seller Default: If for any reason other than failure of Seller to make Seller’s title marketable after diligent effort, Seller fails, refuses or neglects to perform this Contract, Buyer may choose to receive a return of Buyer’s deposit without waiving the right to seek damages or to seek specific performance as per Paragraph 16.


author: THOMPSON, E„ Senior Judge.

text:
    STATE of Florida, Petitioner, v. Jeffrey LEUKEL, Respondent.
    No. 5D07-2031.
    District Court of Appeal of Florida, Fifth District.
    Feb. 29, 2008.
    Rehearing Denied April 11, 2008.

      Lawson Lamar, State Attorney, Ninth Judicial Circuit and Brad Fisher, Designated Assistant State Attorney, Orlando, for Petitioner.
    Chandler R. Muller, of Law Offices of Muller, et al., Winter Park, for Respondent.
   THOMPSON, E„ Senior Judge.

The State of Florida seeks certiorari review of a circuit court order that authorizes Jeffrey Leukel’s entry into a pretrial intervention drug court program. The State objects to the court-ordered diversion into the drug court program and asserts that section 948.08(6)(a), Florida Statutes (2007), does not apply to respondent Leukel because he is not charged with committing one of the enumerated offenses therein.

On 3 April 2006, Leukel was arrested in Seminole County for driving after his license was permanently revoked, a third-degree felony. See § 322.341, Fla. Stat. (2007). Because Leukel was an assistant public defender in the Eighteenth Judicial Circuit, on 2 May 2006, the Governor of the State of Florida assigned the State Attorney for the Ninth Judicial Circuit as prosecutor for the case. On 1 June 2006, the State filed a two-count information alleging that Leukel violated section 322.341 by driving while his license was permanently revoked, and section 322.34(2)(b) by driving while his license was revoked as a subsequent offender.

On 27 March 2007, Leukel filed a motion to be allowed into a pretrial drug court program pursuant to section 948.08(6)(a). The State objected to Leukel’s entry into that program as he had not been charged with an offense eligible for drug court pursuant to the plain language of section 948.08(6)(a).

On 30 May 2007, the trial court heard Leukel’s motion. At the hearing, the arresting officer testified that Leukel was not intoxicated at the time of arrest. A psychologist testified that Leukel had been sober since 2003. However, the psychologist testified that Leukel’s decision to drive without a license was the result of an emotional relapse related to his alcoholism. In an order dated 1 June 2007, the trial court found that the list of offenses eligible for a drug court program found in section 948.08(6)(a) was not exclusive. The court therefore authorized Leukel to enter the drug court program established in Seminole County.

Section 948.08(2) provides that any first offender or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third-degree, is eligible for release to a pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing. See also State v. Board, 565 So.2d 880 (Fla. 5th DCA 1990). On the other hand, section 948.08(6)(a) allows defendants charged with certain crimes to be placed in a substance abuse education and treatment program, including a drug court program, without the consent of the state attorney. The subsection reads as follows:

(6)(a) Notwithstanding any provision of this section, a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence; and who has not previously been convicted of a felony nor been admitted to a felony pretrial program referred to in this section is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program established pursuant to s. 397.334, approved by the chief judge of the circuit, for a period of not less than 1 year in duration, upon motion of either party or the court’s own motion, except:
1. If a defendant was previously offered admission to a pretrial substance abuse education and treatment intervention program at any time prior to trial and the defendant rejected that offer on the record, then the court or the state attorney may deny the defendant’s admission to such a program.
2. If the state attorney believes that the facts and circumstances of the case suggest the defendant’s involvement in the dealing and selling of controlled substances, the court shall hold a pread-mission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court shall deny the defendant’s admission into a pretrial intervention program.

§ 948.08(6)(a).

Leukel was not charged with purchase or possession of a controlled substance under Chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud. Under the plain reading of the statute, only a person who has been charged with one of the enumerated offenses is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a drug court program, upon motion of either party or the court’s own motion. At the end of the pretrial intervention period, if the court determines that a defendant has not successfully completed the drug court program, the court may order further treatment or order that the charges revert to the normal channels for prosecution. After successful completion of a treatment-based drug court program, the charges must be dismissed. See § 948.08(6)(c).

Although Leukel was not charged with committing one of the crimes enumerated in section 948.08(6)(a), the trial court nevertheless admitted him to the drug court program finding that section 948.08(6)(a) must be read in harmony with section 397.334(2), Florida Statutes (2007). The court stated that section 397.334(2) would allow any person who has a substance abuse problem to enter the pretrial drug court program, as long as he or she is not involved with drug dealing and had not previously rejected a pretrial substance abuse program.

Unlike section 948.08(6), section 397.334 does not provide for the dismissal of criminal charges upon successful completion of a treatment-based drug court program. Section 397.334 authorizes counties to fund treatment-based drug court programs and emphasizes that participation in such programs shall be voluntary. The statute also adopts the ten key components of drug court, recognized by the U.S. Department of Justice. Section 948.08(6)(a), on the other hand, sets forth the eligibility requirements for admission into a drug court program upon the motion of either party or the court’s own motion. It includes by direct reference treatment-based drug court programs established pursuant to section 397.334. Moreover, Administrative Order No. 01-19-S implemented the drug court program in Seminole County so that the substance abuse education and treatment program described in section 948.06(6)(a) could become operational in that county. The administrative order stated that its drug court was established pursuant to section 948.08(6)(a). The administrative order did not add eligible offenses, nor could it have lawfully added eligible offenses. An administrative order cannot amend a statute by adding terms and conditions that were not part of the original legislation. See Hewlett v. State, 661 So.2d 112 (Fla. 4th DCA 1995).

Under the trial court’s interpretation of sections 397.334 and 948.08(6)(a), the trial court would have sole discretion in every case to determine whether a defendant should be admitted to a drug court program, as long as he or she did not. previously reject an offer for substance abuse treatment and is not a drug dealer. Section 948.08(6)(a) does not support that interpretation. The trial court exceeded its authority, under section 948.08(6)(a) and the administrative order in permitting Leukel to enter the drug court program. Under the doctrine of “expressio unius est exclusio alteráis” (the mention of one thing excludes another thing not mentioned), the legislature would not have enumerated the offenses in section 948.08(6)(a) if it intended to authorize the trial court to determine whether a defendant charged with any crime should be admitted to a drug court program. When the language of a statute is clear and unambiguous and conveys a definite meaning, there is no reason to resort to rules of statutory interpretation and construction, and the statute must be given its plain and obvious meaning. See Holly v. Avid, 450 So.2d 217, 219 (Fla.1984), cited in State v. VanBebber, 848 So.2d 1046 (Fla.2003). Section 948.08(6)(a) is clear and definite in its meaning. If section 948.08(6)(a) must be harmonized with section 397.334, section 397.334 is the general statute concerning implementation of drug court programs, while section 948.08(6)(a) is the specific statute concerning the eligibility requirements for entry into drug court programs. A specific statute controls over a general statute. Cf. Jones v. State, 813 So.2d 22 (Fla.2002).

The trial court in this case has encroached on the legislature’s power to determine which defendants charged by the state attorney are eligible for drug court, and has also interfered with the state attorney’s jurisdiction to prosecute those defendants not eligible for drug court. If a defendant is not eligible for drug court, he or she still may be admitted to a pretrial intervention program, but

only with the consent of the prosecutor. As the order under review significantly impairs the State’s ability to prosecute, we find that certiorari relief is appropriate. See State v. Pettis, 520 So.2d 250 (Fla.1988). See also Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003) (clearly established law may derive from a variety of sources in addition to controlling case law, such as an interpretation or application of a statute); King v. Nelson, 746 So.2d 1217 (Fla. 5th DCA 1999) (where petition for writ of certiorari was granted to quash a circuit court order which prematurely allowed defendants entry into a drug court program).

PETITION GRANTED.

PALMER, C.J., and TORPY, J., concur.


author: ARTIGLIERE, RALPH, Associate Judge.

text:
    Ruth Buskirk NOYES, Appellant, v. James BUSKIRK, Jr., Appellee.
    Nos. 2D07-2323, 2D07-2806.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.
    Rehearing Denied April 24, 2008.
    Rodney I. Salvati, Venice, for Appellant.
    Christopher Z. Staine and Deirdre F. Aretini of Abel, Band, Chartered, Sarasota, for Appellee.
   ARTIGLIERE, RALPH, Associate Judge.

We affirm the trial court’s amended final summary judgment in all respects except for the allocation of attorney’s fees. During oral argument the parties agreed that the trial court’s allocation of attorney’s fees was in error and that the allocation should have been in accordance with section 64.081, Florida Statutes (2006).

Therefore we remand to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

STRINGER and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    William J. MATHIAS, JR., Appellant, v. Cathy Ann BRYANT, Appellee.
    No. 5D07-4168.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2008.
    Rehearing Denied April 16, 2008.
    William J. Mathias, Jr., Dublin, V.A., pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

PALMER, C.J., PLEUS and ORFINGER, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Stephen Paul SCHULZ, Appellant, v. Olga Nikolaevna SCHULZ, Appellee.
    No. 2D06-5245.
    District Court of Appeal of Florida, Second District.
    March 12, 2008.
    Rehearing Denied April 24, 2008.
    Stephen Paul Schulz, pro se.
    Olga Nikolaevna Schulz, pro se.
   NORTHCUTT, Chief Judge.

This appeal is from a final judgment dissolving Stephen and Olga Schulz’s short-term marriage. They married in August 2003 and separated less than two years later. Mr. Schulz challenges certain aspects of the equitable distribution of the parties’ assets and liabilities and the decision to grant his wife’s request for attorney’s fees and to reject his request. We reverse the final judgment only as it relates to the equitable distribution. The court erred in classifying two of Mr. Schulz’s assets as marital and in allocating Mrs. Schulz’s 401(k) plan. Accordingly, we remand with directions to revise the equitable distribution in accordance with this opinion. We affirm the final judgment in all other respects, including the equitable distribution of the parties’ liabilities and other assets not specifically discussed in this opinion, and the rulings concerning attorney’s fees.

We first discuss Mr. Schulz’s complaint about the characterization of two assets. Mr. Schulz self-published two books of poetry. He retained possession of two hundred hardcover copies of one of the books and five hundred paperback copies of the other. Mrs. Schulz’s financial affidavit listed these books as nonmarital property. Likewise, both parties listed Mr. Schulz’s 2001 Hyundai automobile as nonmarital property.

In the equitable distribution, these assets were treated as marital property even though Mrs. Schulz had disclaimed any marital interest in them. In this regard, the court abused its discretion. When the court revises the equitable distribution on remand, it must designate the books and the car as Mr. Schulz’s nonmari-tal property. We affirm the value the court attributed to both these assets.

Before and during the marriage Mrs. Schulz contributed to a 401 (k) plan. Her affidavit valued this asset at $2000, with $1000 denominated as marital property and $1000 listed as nonmarital. She sought to have the entire amount awarded to her. But the final judgment designated the 401(k) account as Mr. Schulz’s asset, with $1000 of its value treated as marital and $1000 as nonmarital. We believe this was a scrivener’s error and that the asset was mistakenly put in the wrong column. If the court had intended to award Mrs. Schulz’s 401 (k) plan to her husband, it would have issued a qualified domestic relations order transferring the asset to him. It did not. As a result, Mr. Schulz was charged with this asset in the equitable distribution, but he did not receive it. When calculating the equitable distribution on remand, the court shall charge this asset to Mrs. Schulz and distribute it to her.

Affirmed in part, reversed in part, and remanded.

STRINGER and VILLANTI, JJ., Concur.


author: GROSS, J. PER CURIAM.

text:
    William CROSSIN, Appellant, v. Danielle CROSSIN, Appellee.
    No. 4D06-4899.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Opinion Denying Rehearing May 7, 2008.

      Kenneth Eric Trent of Kenneth Eric Trent, P.A., Fort Lauderdale, for appellant.
    Howard S. Friedman and Lisa K. Bennett of Fischler & Friedman, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

We reverse two aspects of the final judgment of dissolution — the portions on “Parental Responsibility” and “Child Support Obligations.”

The trial court struck the husband’s pleadings due to “his willful failure to comply with discovery obligation[s].” During the trial of parental responsibility issues, the court made rulings, evidentiary and otherwise, based on the fact that the husband’s pleadings had been stricken. Custody of a child is always determined upon the best interests of the child; “[s]uch issues are not to be foreclosed on technical pleading defaults.” Seibert v. Seibert, 436 So.2d 1104, 1105 (Fla. 4th DCA 1983); see also Childers v. Riley, 823 So.2d 246 (Fla. 4th DCA 2002); Webber v. Novelli, 756 So.2d 164 (Fla. 4th DCA 2000); Barnett v. Barnett, 718 So.2d 302, 304-05 (Fla. 2d DCA 1998). In a divorce case, the striking of pleadings is a sanction with no impact on child custody issues. If a party has refused to respond to proper discovery pertaining to child custody, the trial court may take such conduct into account in making a custody decision. The court may not rely on a procedural device, such as a default or the striking of pleadings, to limit evidence on child custody or to summarily decide the issue. The guiding principle is always the best interest of the child. We remand for a new trial on the child custody issues.

As to child support, the husband testified that he did not have a job and that his money came from illicit activities. Until 2005, the husband had a window cleaning business where he earned $750 per week. Prior to the marriage, the husband had been convicted on a cocaine charge. The husband said that $400,000 stored in his mother-in-law’s attic was the couple’s primary source of funds during the marriage, but that the money was gone. The wife did not identify a legal source of the husband’s income. She said that the couple spent $4,500 a month on marital expenses from a joint checking account, in addition to other expenses— such as the mortgage, doctor visits, groceries, and vacations — paid in cash. She testified that the husband told her that he brought home about $10,000 a month and that if the couple were to divorce, the wife “would have to marry a doctor to continue the way [she had] been living.”

Based upon this testimony, “the lifestyle of the parties prior to the filing of the divorce, the fact that the Husband has no ‘traditional job’ and he has been paying substantial amounts of bills on a routine basis,” the circuit court found that the Husband had a net income of $80,000 per year or $6,666.66 per month, leading to a child support obligation of $1,924.00 per month.

The problem with this finding is that there was nothing in the evidence to show that the husband had a legal source of funds to support such an income level. A court may not base a future award of support upon “a future income from a continuous and persistent career of vice and criminality, and adopt as a basis of its decree a division of the anticipated spoils of [iniquity].” King v. King, 79 Neb. 852, 113 N.W. 538, 539 (1907); see Seitz v. Seitz, 471 So.2d 612, 614 (Fla. 3d DCA 1985) (citing King with approval). “It is against public policy to base a court order of support upon the assumption that [the husband] will violate the law in order to acquire the necessary funds to pay it. To base an order on anticipated unlawful conduct, not only recognizes, but also encourages,” the future violation of the law. Moore v. Moore, 198 Pa.Super. 349, 181 A.2d 714, 715 (1962); see Seitz, 471 So.2d at 614 (citing Moore with approval); Sheridan v. Sheridan, 247 N.J.Super. 552, 589 A.2d 1067 (1990) (holding that court should not equitably distribute marital property acquired with illicitly obtained funds).

We reverse the child support award and remand for the trial judge to determine the husband’s actual earning capacity from legal pursuits. “A defendant who has been earning his income from illegal pursuits is presumed to have an earning capacity in legal pursuits which can be the basis for [a child support] order, even though there is no evidence that he ever engaged in lawful pursuits.” Moore, 198 Pa.Super. at 352, 181 A.2d 714. The only record evidence of a legitimate source of income was $750 a week from window washing.

We affirm all other portions of the final judgment.

Affirmed in part, reversed in part, and remanded.

WARNER and FARMER, JJ., concur.

ON AMENDED MOTION FOR REHEARING

PER CURIAM.

We write to address one issue raised in the husband’s motion for rehearing. The motion found our failure to address Bara- bas v. Barabas, 923 So.2d 588 (Fla. 5th DCA 2006) to be “confounding.” The husband says that the final judgment divested his “mother of property titled in her name alone and award it to the [former wife].”

Barabas does not apply to this case because the final judgment did not adjudicate the property rights of a non-party, but contemplated that a further action would be necessary to do so.

The final judgment found that a part of the property at issue was a marital asset. The judge found that the “husband transferred the marital interest in this property to his mother in an effort to diminish the value of the marital estate.” As between the husband and the wife, the court ruled that the wife was entitled to an ownership interest in the property. The court recognized that the wife would have to file a separate action against her mother-in-law to force her to transfer title, when it wrote: “Wife shall be entitled to file any appropriate action necessary to effectuate the transfer of this property to her as it is intended in this Final Judgment.”

The amended motion for rehearing is denied.

WARNER, FARMER and GROSS, JJ„ concur.


text:
    Terrance COOPER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D08-130, 3D08-199.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Terrance Cooper, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

We grant the petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c)(2) and affirm the order under review.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Leonard Jeffrey MASON, Appellee/Cross-Appellant.
    Nos. 5D07-167, 5D07-327.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.
    Rehearing Denied April 24, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    J. Melanie Slaughter, Ocala, for Appel-lee/Cross-Appellant.
   ORFINGER, J.

The State of Florida appeals the sentence imposed on Leonard Mason following his conviction of lewd and lascivious molestation by a person eighteen years or older on a child less than twelve years of age in violation of section 800.04(5)(a)(b), Florida Statutes (2004). The State contends that the trial court was required to impose the minimum mandatory sentence set forth in the Dangerous Sexual Felony Offender Act, section 794.0115, Florida Statutes (2004), because Mr. Mason’s no contest plea to the same offense in an earlier case constitutes a prior “conviction.” Mr. Mason responds that since the trial court withheld adjudication of guilt in his earlier case, he has no prior conviction for purposes of the Act. We find merit in the State’s argument and reverse on the sentencing issue. Mr. Mason cross-appeals, arguing that the trial court erred by admitting similar fact evidence. We find no merit to Mr. Mason’s cross-appeal and affirm on this issue without further comment.

The Dangerous Sexual Felony Offender Act requires the imposition of a twenty-five year minimum mandatory sentence on any defendant twice or more convicted of certain enumerated sex crimes. However, the Act does not define the term “conviction.” As a result, we must construe the term “conviction” as used in the Act. In doing so, we recognize that the term “conviction” is a “chameleon-like” term that has drawn its meaning from the particular statutory context in which the term is used. Raulerson v. State, 763 So.2d 285, 291 (Fla.2000) (citing State v. Keim, 720 So.2d 1085, 1086 (Fla. 4th DCA 1998)).

“Statutory interpretation is a question of law subject to de novo review.” BellSouth Telecommunications, Inc. v. Meeks, 868 So.2d 287, 289 (Fla.2003). The courts’ job in construing a statute is to give effect to the Legislature’s intent. State v. J.M., 824 So.2d 105, 109 (Fla.2002). To determine legislative intent, courts look first to the plain language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Only when the statutory language is unclear or ambiguous, do courts apply rules of statutory construction and explore legislative history to determine legislative intent. Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993).

Legislative intent is gathered from consideration of the statute as a whole rather than from any one part thereof. State v. Hayles, 240 So.2d 1, 3 (Fla.1970). A law should be construed together with any other statute relating to the same subject matter or having the same purpose if they are compatible. Fla. Jai Alai, Inc. v. Lake Howell Water & Reclamation Dist., 274 So.2d 522, 524 (Fla.1973). Consequently, to determine the Legislature’s intent in using the word “conviction” in the Act, we are guided by other statutes touching on the same subject to the extent possible. Id. at 525.

The obvious intent of the Act is to provide enhanced sentences for repeat sex offenders. That purpose is best achieved if the term “conviction” in the Act is construed in the same manner as it is used in other statutes dealing with sentencing issues. Almost universally in the criminal sentencing context, “conviction” has been either defined by the Legislature or construed by the court to include no contest pleas followed by withheld adjudication. See, e.g., § 775.084(2), Fla. Stat. (2004) (defining “conviction” to include adjudication of guilt withheld for purposes of habitual felony offender, habitual violent felony offender and three time violent felony offender sentencing); § 775.0837, Fla. Stat. (2004) (defining “conviction” to include entry of plea of guilty or no contest, regardless of whether adjudication is withheld for purposes of habitual misdemeanor sentencing); Montgomery v. State, 897 So.2d 1282 (Fla.2005) (holding that “conviction” under Criminal Punishment Code, chapter 921, Florida Statutes, includes no contest pleas followed by withheld adjudication of guilt); Raulerson, 763 So.2d 285 (holding that prior no contest plea followed by withhold adjudication is a conviction for felony driving while license suspended). But see Garron v. State, 528 So.2d 353 (Fla.1988) (holding that no contest plea followed by withheld adjudication is not “conviction” for capital sentencing purposes).

Although we concede that the Act could be clearer, having considered its purpose and having viewed criminal sentencing laws in their totality, we conclude that for purposes of the Act, a plea of no contest followed by a withheld adjudication of guilt constitutes a conviction. Accordingly, we reverse the sentence and remand for resentencing.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . In Montgomery, 897 So.2d 1282, the Florida Supreme Court approved of the Fourth District Court’s decision in Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), and disapproved of this Court’s decision in Negron v. State, 799 So.2d 1126 (Fla. 5th DCA 2001), the First District Court’s decision in Batchelor v. State, 729 So.2d 956 (Fla. 1st DCA 1999), and the Second District Court’s decision in State v. Freeman, 775 So.2d 344 (Fla. 2d DCA 2000), and departed from its own holding in Garron v. State, 528 So.2d 353 (Fla.1988). This Court issued several opinions in reliance on this line of cases, in which it held that a no contest plea followed by a withhold of adjudication is not a "conviction.” See, e.g., Celia v. State, 831 So.2d 716 (Fla. 5th DCA 2002); St. Lawrence v. State, 785 So.2d 728, 730 (Fla. 5th DCA 2001). In light of the supreme court’s decision in Montgomery, 897 So.2d 1282, these cases are of questionable viability.


author: TORPY, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Jesse C. PELHAM, Respondent.
    No. 5D07-2737.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.

      Judson M. Chapman and Heather Rose Cramer, Lake Worth, for Petitioner.
    Eric A. Latinsky, Daytona Beach, for Respondent.
   TORPY, J.

After Respondent’s driver’s license was suspended for refusal to take a breath test, he sought formal review before a Department of Highway Safety and Motor Vehicles (DHSMV) hearing officer. Respondent contended that the suspension should be invalidated because the detention preceding his arrest had been unlawful. The hearing officer refused to consider the lawfulness of Respondent’s arrest, concluding that recent amendments to the statutory review procedure precluded him from addressing those issues. Respondent thereafter sought certiorari review in the Circuit Court, which granted his petition and quashed the hearing officer’s ruling. Petitioner now seeks review of the Circuit Court’s order. We conclude that the lawfulness of Respondent’s arrest was appropriately within the hearing officer’s scope of review and that the Circuit Court properly quashed the order of the hearing officer. Accordingly, we deny the petition.

A detailed exposition of the facts is unnecessary to the legal issue we confront. Suffice it to say that Respondent was in his car on private property when he was approached by police officers who ordered him to exit. When Respondent refused, police officers forcibly removed him from the car. The officers then became suspicious that Respondent was under the influence of alcohol and requested that he perform field sobriety tests. He refused, and was arrested for DUI. Later, he refused to take a breath test. Although the hearing officer declined to address the lawfulness of the police actions in entering upon private property and then forcibly removing Respondent from his car, the lower court concluded that this action constituted an unlawful seizure of his person. Petitioner does not contend otherwise but instead maintains that the lawfulness of the police action is not legally relevant in an administrative proceeding to suspend a driver’s license.

The obligation to submit to testing for alcohol and chemical substance impairment emanates from section 316.1932, Florida Statutes (2007). This statute, sometimes referred to as the Implied Consent Law, provides that any person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the “alcoholic content of his or her blood or breath if the person is lawfully arrested _” § 316.1932(l)(a)l.a., Fla. Stat. (2007) (emphasis added). The statute further states that the test “must be incidental to a lawful arrest and administered at the request of a law enforcement officer....” Id. Thus, a lawful arrest must precede the administration of the breath test. State, Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003). It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.

Although our analysis might logically end here because this is a case where the refusal followed an unlawful arrest, Petitioner contends that the refusal may nevertheless form the basis for the suspension of Respondent’s license because of the 2006 amendments to section 322.2615, Florida Statutes (2007). As a result of these amendments, Petitioner urges that the legislature “negated” lawfulness of the arrest as a precondition to the administrative suspension of one’s license. Our resolution of this case thus requires us to consider the effect of section 322.2615, as amended.

Among other things, section 322.2615 authorizes a law enforcement officer on behalf of DHSMV to suspend the driver’s license of any person who refuses to submit to a “lawful ” breath test. § 322.2615(l)(a) and (l)(b)l.a., Fla. Stat. (2007) (emphasis added). Upon such suspension, the statute entitles the driver to formal review of the validity of the suspension before a DHSMV hearing official. In pertinent part, the formal review portion of the statute provides:

In a formal review hearing ... the hearing officer shall determine ... whether sufficient cause exists to sustain, amend or invalidate the suspension. The scope of review shall be limited to the following issues:
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

§ 322.2615(7), Fla. Stat. (2007) (emphasis added).

In the prior version of the statute, the hearing officer’s scope of review included the additional issue of “whether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)2., Fla. Stat. (2005). Because the legislature deleted this statutory language and made other deletions in the amended statute, Petitioner contends that the lawfulness of the arrest is no longer an issue in the suspension process. Respondent counters that the text of the amended statute does not support this construction, especially when considered in pari mate-ria with section 316.1932. Petitioner responds that sections 316.1932 and 322.2615 should be read in isolation because they are intended to address different issues. Section 316.1932, Petitioner contends, is a criminal statute, while section 322.2615 is a statute that authorizes administrative sanctions. Petitioner also relies upon a house staff report which states that the amendment “negatefe] the need” for the DHSMV to show “that a lawful arrest for a violation of s. 316.193, F.S. occurred” in an administrative license suspension proceeding. Fla. H.R. Comm, on Transp., HB 7079 (2006) Staff Analysis 25 (Apr. 26, 2006). We agree with Respondent.

Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pan materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest.

This conclusion is supported by the fact that section 322.2615 only permits suspension “pursuant to” a “lawful” test, based on a statutory form of notice, which must state that the refusal involves a “lawful” test. § 322.2615(l)(a) and (l)(b)l.a., Fla. Stat. (2007). There is no definition of what constitutes a “lawful” test, so it is necessary to examine the entire statutory scheme for breath testing, and in particular section 316.1932, to determine what is lawful. Under this statutory scheme, clearly, a “lawful” test is, at a minimum, one that drivers are required to take pursuant to section 316.1932, which must be incident to a lawful arrest.

We have not overlooked the legislative staff report but are reluctant to accept this staff analysis as evidence of what the legislature intended by making deletions in the statute. The staff analysis itself contains a caveat that it should not be interpreted as an expression of the “intent or official position of the bill sponsor or House of Representatives.” Fla. H.R. Comm. on Transp., HB 7079 (2006) Staff Analysis 25 (Apr. 26, 2006). This is for good reason. The analysis is not written by legislators, nor is there any evidence that legislators voting on the bill read the analysis or agreed with its conclusions. See Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 375-76 (Fla.2005) (Cantero, J., concurring in part and dissenting in part) (discussing why staff analysis is not reliable evidence of legislative intent). Even were we to accept the analysis as evidence of legislative intent, however, it is not our function to rewrite the statutory scheme to do what the legislature failed to accomplish expressly.

Nor have we overlooked the language of subsection 322.2615(7), which purports to “limit” the scope of review to three issues. The first issue, probable cause, is a concept that is often inextricably intertwined with the lawfulness of the detention as it is in this case. Indialantic Police Dep’t v. Zimmerman, 677 So.2d 1307, 1309 (Fla. 5th DCA 1996). The second issue directs the hearing officer to address whether the driver “refused to submit to any such test.” (Emphasis added). § 322.2615(7) (b)2., Fla. Stat. We construe “any such test” to refer to the “lawful” test that the suspension must be “pursuant to.” The final issue, the provision of notice, relates to the form of notice mandated by the same statute, which too refers to a “lawful” test. Therefore, we do not construe this so-called limitation on the hearing officer’s scope of review to nullify the statute’s directive that the hearing officer “determine ... whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7), Fla. Stat. (2007). Under the statutory scheme, the lawfulness of the suspension is central to any determination that there is “sufficient cause” to “sustain” it.

We remain mindful of our obligation to effectuate legislative intent when we are given clear indication of what is intended. If the legislature intends to authorize DHSMV to suspend a driver’s license for refusal to take a test, without regard to the validity of the police action preceding the request, then it should say so expressly-

Because we deem this to be an issue of great public importance, we certify the following questions to our high court:

CAN THE DHSMV SUSPEND A DRIVER’S LICENSE FOR REFUSAL TO SUBMIT TO A BREATH TEST, IF THE REFUSAL IS NOT INCIDENT TO A LAWFUL ARREST? IF NOT, IS A DHSMV HEARING OFFICER REQUIRED TO ADDRESS THE LAWFULNESS OF THE ARREST AS PART OF THE REVIEW PROCESS?

PETITION DENIED; QUESTIONS CERTIFIED.

PALMER, C.J., and PLEUS, J., concur.

      . Petitioner does argue alternatively that we should at least grant the petition to require the remand of the lawfulness issue to the hearing officer. Because Petitioner did not timely assert this argument in the lower court, we conclude that it was not preserved.

      . The statute provides that the suspension "shall be pursuant to, and the notice of suspension shall inform the driver ... [that] ... [t]he driver refused to submit to a lawful ... test....”

      . Though not material to our analysis, Petitioner does not explain its characterization of section 322.2615 as a criminal statute.

      . In light of our holding, we find it unnecessary to consider Respondent's constitutional arguments.