author: ALTENBERND, Judge.

text:
    Anthony MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5502.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2007.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Anthony Monroe, who is currently serving a 100-month sentence in a federal prison, sought a final disposition of charges pending against him in the State of Florida by filing a request for final disposition pursuant to the Interstate Agreement on Detainers Act (IADA), codified as section 941.45, Florida Statutes (2004). The charges included four separate unresolved informations and two older cases in which the State had filed affidavits alleging Mr. Monroe violated his probation. When the State failed to commence a trial on the charges within 180 days, Mr. Monroe sought to dismiss the charges and to be discharged on them pursuant to the terms of Article 111(a) of the IADA. The circuit court denied the motion. Thereafter, the State nol prossed the charge in one information, and Mr. Monroe entered pleas of nolo contendere to the charges in the remaining three informations and pleas of admission to violating probation in the two older eases, reserving the right to appeal the denial of his dispositive motion for discharge. The circuit court entered three judgments and two orders revoking probation, imposing sentences totaling 114.9 months in prison, with a recommendation that the sentences run concurrently with the sentence Mr. Monroe is serving in federal prison.

The circuit court properly denied relief as to the orders revoking probation because the provisions of the IADA do not apply to alleged violations of probation. However, the circuit court should have granted the motion for discharge as to the two pending informations to which the motion was specifically addressed. The State failed to timely comply with the mandatory provisions of the IADA, and Mr. Monroe did not waive the protections afforded to him under the IADA. Accordingly, we remand for the circuit court to discharge Mr. Monroe for the offenses in those two cases and for resentencing as to the remaining charges.

I. MR. MONROE’S PENDING FLORIDA CASES AND THE PROVISIONS OF THE IADA

The IADA is a compact entered into by forty-eight States, the District of Columbia, Puerto Rico, the Virgin Islands, and United States to establish procedures for the resolution of one jurisdiction’s outstanding charges against a prisoner of another jurisdiction. See Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985); see also New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). The IADA acts as a federal law subject to federal construction. Bogue v. Fennelly, 705 So.2d 575, 578 (Fla. 4th DCA 1997) (citing Carchman, 473 U.S. at 719, 105 S.Ct. 3401). As such, state courts interpreting it are bound by United States Supreme Court precedent. Bogue, 705 So.2d at 578. The IADA is codified in Florida law as section 941.45.

In 2003, Mr. Monroe was imprisoned in a federal prison in Georgia and sought to invoke the provisions of the IADA to resolve outstanding criminal charges pending against him in Florida. In two cases, case numbers 99-16916 and 99-21500, Mr. Monroe had been placed on drug offender probation for charges of possession of cocaine and possession of marijuana and the State had filed affidavits alleging the violation of his probation. Mr. Monroe also had four pending informations in Florida: case number 00-12534, alleging possession of cocaine and possession of marijuana; case number 00-21537, alleging possession of cocaine, obstruction of justice, and possession of marijuana; case number 01-13881, alleging robbery and home invasion robbery; and case number 02-12781, alleging failure to appear.

As early as August 2003, Mr. Monroe sought a request for final disposition of the Florida cases pursuant to the IADA. The request was first sent to Florida officials as early as September 11, 2003. For the purposes of Mr. Monroe’s motion for discharge, however, the parties accepted April 15, 2004, as the date that Florida officials received the request.

Article 111(a) of the IADA requires that a prisoner be brought to trial within 180 days after he has “caused to be delivered” a request for disposition of charges pending against him in another jurisdiction, “provided that, for good cause shown in open court, the prisoner or the prisoner’s counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” § 941.45. The period required by the IADA thus began on April 15, 2004, the date that Florida officials received Mr. Monroe’s request. See Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993); see also Fuente v. State, 549 So.2d 652, 655 (Fla.1989). It was set to expire on October 12, 2004.

Our record does not indicate precisely when Mr. Monroe was transferred to a Florida jail to resolve these charges. However, it appears this occurred in September 2004. On September 23, 2004, the circuit court appointed the public defender to serve as counsel for Mr. Monroe on these matters. On October 14, 2004, 182 days after the date that Florida officials admittedly received Mr. Monroe’s request for disposition, an assistant public defender appeared with Mr. Monroe at a hearing but asked to withdraw from representation of Mr. Monroe due to a conflict of interest. At this point, the 180-day period established by the IADA had expired. No mention was made of the IADA time requirements or of any concerns regarding speedy trial.

The court permitted the withdrawal of the public defender and appointed conflict-free counsel for Mr. Monroe. This attorney did not appear before the court until November 8, 2004, at which point the attorney asserted that Mr. Monroe would waive speedy trial. Thereafter, appointed counsel appeared at a number of hearings and continued to waive speedy trial, at times with Mr. Monroe present and assenting. At no time was the IADA specifically mentioned in the waiver.

Article V(c) of the IADA provides that if a prisoner is not brought to trial within the required time, “[T]he appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.” Based upon this provision, Mr. Monroe filed a pro se “motion for dismissal of information” on January 19, 2005, and attached a letter he had mailed to his counsel indicating his desire that he wanted counsel to pursue the motion. This motion did not include a certifícate of service. However, on July 29, 2005, Mr. Monroe filed a new pro se “motion to dismiss information” that included a certificate of service indicating the motion was served on the State. Both motions were addressed only to circuit court case numbers 00-12534, involving charges for possession of marijuana and possession of cocaine, and 01-13881, involving charges of robbery and home invasion robbery. There is a notation on both motions that Mr. Monroe’s attorney was provided a copy of each. Both motions asserted that Mr. Monroe was entitled to dismissal of the charges and discharge because the time requirements under the IADA had expired without the State having brought him to trial. Thus, at least as of July 29, 2005, the State was aware that Mr. Monroe was claiming the protections of the IADA.

The State did not take action to set the case immediately for trial. In fact, the hearing on Mr. Monroe’s motion was not held until November 1, 2005. Between the filing of the July 29 motion and the hearing on November 1, there were no further waivers of speedy trial.

Mr. Monroe’s appointed counsel appeared at the hearing on the motion to dismiss, but counsel and the court allowed Mr. Monroe to argue the motion. Mr. Monroe argued that the periods under the IADA expired without a trial, and he was thus entitled to discharge. The State responded that appointed counsel’s continued waivers of speedy trial acted as a waiver of Mr. Monroe’s rights under the IADA. Mr. Monroe countered that the waivers occurred after the expiration of the 180-day period and were therefore not effective. No mention Was made during this hearing of the requirements of Florida Rule of Criminal Procedure 3.191 regarding speedy trial. Because Mr. Monroe presented no case law directly on point with his argument, the circuit court denied Mr. Monroe’s motion. Mr. Monroe proceeded to enter a plea at that hearing, reserving his right to appeal the denial of his motion to dismiss.

Initially, we note that Mr. Monroe’s notice of appeal in this case referenced all six circuit court cases pending at the time he filed his request for final disposition under the IADA, but he is not entitled to relief on all of these cases. Although Mr. Monroe’s request for final disposition acted as a request to resolve all untried indictments under article 111(d) of the IADA, his subsequent motion sought discharge on only two of his pending cases, case numbers 00-12534, involving charges for possession of marijuana and possession of cocaine, and 01-13881, involving charges of robbery and home invasion robbery. Indeed, the IADA does not apply to resolve proceedings alleging violations of probation such as those pending against Mr. Monroe in case numbers 99-16916 and 99-21500, see Carchman, 473 U.S. 716, 105 S.Ct. 3401 and thus no relief was available on those cases. It is unclear why Mr. Monroe did not seek relief for case number 00-21537, involving charges of possession of cocaine, obstruction of justice, and possession of marijuana. " As to the last case, number 02-12781, the State nol prossed this charge 'and therefore no issue has been raised regarding it. Therefore, this opinion addresses only the judgments for case numbers 00-12534 and 01-13881. The orders revoking probation for case numbers 99-16916 and 99-21500 are affirmed as well as the judgment in case number 00-21537, although we remand for resentencing on these cases based upon a new scoresheet.

Returning to the merits of Mr. Monroe’s claim that he is entitled to discharge in case numbers 00-12534 and 01-13881 pursuant to the terms of the IADA, there is no dispute that Mr. Monroe was not tried within 180 days after he delivered his request for a final disposition of these matters to the prosecuting officer and the appropriate court, as is generally required by article 111(a) of the IADA. Instead, the State appears to argue that either (1) the 120-day period in article IV(c) — not the 180-day provision in article 111(a) — applies and runs from the later date when Mr. Monroe arrived in this state to face these charges; or (2) the 180-day period was tolled or the time limitation waived by Mr. Monroe; or (3) Mr. Monroe failed to properly invoke the protections of the IADA by filing a demand or notice similar to the notice required to obtain the protections of speedy trial required by rule 3.191(p). We address each of these arguments in turn.

II. THE PROVISIONS OF ARTICLE 111(A) — NOT ARTICLE IV(C)— APPLY

The parties agreed that Florida officials received Mr. Monroe’s request for disposition of his pending charges by April 15, 2004. The 180-day period under article 111(a) expired on October 12, 2004, yet the State had still not brought Mr. Monroe to trial by November 2005. The State argues, however, that the time limitation of article IV(c) of the IADA applies to this case. Article IV is entitled “Request for Custody and Availability.” Subsection (c) states in relevant part, “In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state[.]” The State appears to interpret article IV(c) to apply to every case under the IADA and to effectively extend the 180-day period in article 111(a) to 120 days after the prisoner is brought to the receiving jurisdiction.

The State misconstrues the interplay between articles III and IV of the IADA. The provisions of article IH(a) are not “trumped” or extended by the provisions in article IV(c), as suggested by the State. Instead, the two articles apply to factually distinct scenarios.

Article III of the IADA is entitled “Request for Final Disposition.” It sets forth the procedure to be applied when a prisoner submits a request for the final disposition of charges for which the jurisdiction has outstanding detainers. As stated above, article 111(a) requires the officials in the jurisdiction receiving the prisoner to bring the prisoner to trial on the pending charges within 180 days from receiving the request.

Article IV, however, is entitled “Request for Custody or Availability.” It sets forth the procedure that officials in one jurisdiction that has a pending untried indictment, information, or complaint may use to seek temporary custody of a prisoner in another jurisdiction in order to resolve any outstanding detainers. Article IV(c) then provides the officials within the requesting jurisdiction a period of 120 days from receiving custody of the prisoner to commence any trial.

In this case, there is no dispute that the request for disposition originated with Mr. Monroe. No one suggested or offered proof that the state of Florida initiated these proceedings under article IV(c) to resolve the pending charges against Mr. Monroe. As such, the 180-day period called for in article 111(a) applied, and the provisions of article IV(c) did not. Cf. Shewan v. State, 396 So.2d 1133 (Fla. 5th DCA 1980) (holding that 120-day time period provided in article IV(c) did not apply where defendant initiated state court proceedings by requesting final disposition under article 111(a)). See also Common wealth v. Mayle, 780 A.2d 677, 680 (Pa.Super.Ct.2001) (“Generally, Article IV applies when the prosecution initiates the return of a prisoner and Article III- applies when the prisoner files an Article III request for trial.”); State v. Mason, 90 N.J.Super. 464, 218 A.2d 158, 162-63 (1966) (“The 120-day period after arrival in the. receiving state was not here applicable for the simple reason that the Interstate Agreement was not invoked by the prosecutor but solely by the defendant.”).

III. A PRISONER CANNOT WAIVE IADA PROTECTIONS AFTER THE TIME LIMITATION HAS EXPIRED.

In the alternative, the State argues that Mr. Monroe waived the protections of article IH(a) when he agreed to waive his rights to speedy trial on various occasions before filing his motion for discharge. It is clear that a prisoner can expressly waive the time limitations and protections of the IADA. In Johnson v. State, 442 So.2d 193 (Fla.1983), a death penalty case, the Florida Supreme Court recognized an implied waiver of rights under the IADA when a prisoner agreed to continue his trial from a date prior to the expiration of the required period to a date after the expiration of that time frame. See also Brown v. Wolff, 706 F.2d 902, 907 (9th Cir.1983) (“A prisoner may waive his IAD[A] rights, however, if he affirmatively requests to be treated in a manner contrary to the procedures prescribed by the IAD[A].”); State v. Schmidt, 84 Hawai’i 191, 932 P.2d 328 (1997) (holding defendant waived protection of IADA time limits when he agreed to a trial date just beyond their expiration); State v. Montoya, 119 N.M. 95, 888 P.2d 977, 979 (1994) (“[I]m-plicit in Defendant’s waiver of all speedy trial time limitations was a waiver of the time limitations of the IAD[A].”).

Even if we assume that Mr. Monroe’s decision to waive speedy trial rights acted as an implied waiver of his rights under the IADA, those asserted waivers did not occur until after the 180-day period had expired. Although this appears to be a matter of first impression in Florida, a majority of jurisdictions addressing the issue have not permitted a waiver of IADA rights once the applicable period has expired. See, e.g., State v. Smith, 686 S.W.2d 543, 549 (Mo.Ct.App.1985) (refusing to find implied waiver when docket call at which it was alleged to have occurred was not held until well after the 180-day period of limitation expired); Mason, 218 A.2d at 163 (holding that trial court could not extend IADA time requirement after it had run); Mayle, 780 A.2d at 683 (“[I]t remains incumbent upon the Commonwealth to request a continuance prior to the expiration of the applicable time period.”); see also Odhinn v. State, 82 P.3d 715, 725 (Wyo.2003) (stating, “most courts that have addressed the issue have concluded continuances under the LAJD[A] must be granted prior to the expiration of 180 days”).

We align ourselves with these jurisdictions and hold that in order to be effective any waiver of the protections of article 111(a) of the IADA must occur before the allotted time has expired. Mr. Monroe did nothing to waive his rights under the IADA prior to the expiration of the 180-day period. We conclude his waiver of speedy trial thereafter did not deprive him of the right to challenge the State’s noncompliance with the IADA.

IV. THE ROLE OF RULE 3.191 IN ENFORCING THE PROTECTIONS OF THE IADA

Finally, the State argues that Mr. Monroe is not entitled to relief in this case because the procedural provisions of rule 3.191 apply to the substantive provisions of the IADA and provide the State protection from dismissal by requiring a specific demand and a “recapture” period within which to try a prisoner. The State cites the Florida Supreme Court’s decision in Vining v. State, 637 So.2d 921 (Fla.1994), to support this argument. See also State v. Garza, 807 So.2d 790 (Fla. 2d DCA 2002). Although we recognize that Vining acts to provide the State a recapture period under the IADA, it does not assist the State in this case. Here, the State did not request or avail itself of the recapture period to immediately bring Mr. Monroe to trial.

Rule 3.191 provides the framework for Florida’s speedy trial rule. On its face, the rule includes no language that would suggest it applies to enforce provisions of the IADA. Rather, rule 3.191(p) protects the State from “surprise” dismissals based upon technical speedy trial violations. It requires a defendant to file a pleading entitled “Notice of Expiration of Speedy Trial Time” and to serve a copy on the prosecuting authority. Thereafter, the court must hold a hearing within five days and, unless a separate exception exists, must order the defendant brought to trial within a ten-day “recapture” period.

In Vining, 637 So.2d 921, a death penalty case, the Florida Supreme Court held that a capital defendant was not entitled to discharge based upon a violation of the IADA time limitations because the recapture provisions of rule 3.191 applied and the State had successfully brought the defendant to trial within the parameters of the rule once the State was notified of the defendant’s request for discharge.

To understand the holding in Vining and how it engrafted the requirements of rule 3.191 to apply to the IADA, it is necessary to examine the precedent that it specifically relied upon, R.J.A. v. Foster, 603 So.2d 1167 (Fla.1992). In R.J.A., the Florida Supreme Court considered whether the ninety-day time limitation in section 39.048(7), Florida Statutes (1991), for holding an adjudicatory hearing on a petition for juvenile delinquency could be extended by the operation of the speedy trial provisions of Florida Rule of Juvenile Procedure 8.090, which provided the state a recapture period once the juvenile filed a motion for discharge.

Justice Overton wrote the opinion for the four-justice majority, concluding that rule 8.090 applied and the recapture period was required. Justice Overton reviewed the history of speedy trial and concluded that speedy trial rules, initially adopted to protect the constitutional right to speedy trial, are procedural in nature and thus the proper realm of the courts. Justice Over-ton pointed to precedent holding that the individual states may enact rules prescribing a reasonable period for speedy trial consistent with the federal constitutional standard. Noting that such rules are described in the precedent as “procedural,” he concluded that the juvenile speedy trial rule was a procedural rule, properly within the realm of the judiciary.

Regarding the statute’s express ninety-day limitation, Justice Overton stated:

We do not believe that the legislature intended by its enactment of section 39.048(7) to establish a much greater right to a speedy trial than is granted by the constitution by making the violation of a statutorily enacted time period per se prejudicial [to the defendant]. We do believe that the legislature intended to establish a “triggering mechanism” which establishes presumptive prejudice and requires consideration of other factors [before the case is dismissed].... Because the time period is the triggering mechanism, we conclude that it is procedural in nature and, consequently, our rule of procedure takes precedence over the legislative enactment.

R.J.A., 603 So.2d at 1171.

Justice Barkett wrote a dissenting opinion, in which two other justices joined. She concluded that the ninety-day period in section 39.048(7) was a substantive provision that superseded the court’s rule-making authority. Justice Barkett likened the statute to a statute of limitation. “This Court has previously held that statutes of limitations create substantive rights that cannot be abrogated by rules of procedure.” Id. at 1172 (Barkett, J., dissenting) (citing Lundstrom v. Lyon, 86 So.2d 771, 772 (Fla.1956)). Justice Bark-ett concluded that permitting the juvenile speedy trial rule to extend the ninety-day limitation was in express violation of the substantive right created by the legislature.

R.J.A. thereafter acted as precedent for the decision in Vining, which applied the reasoning of R.J.A. to hold that the criminal speedy trial rule applied to the provisions of the IADA and provided the State with a recapture period beyond the time limitation provided in the IADA. Vining, 637 So.2d at 925 (citing R.J.A., 603 So.2d 1167). Citing R.J.A., the Vining court held that the IADA provisions, like the statute in R.J.A., acted only as a “triggering mechanism” to establish that a delay in the trial of a prisoner seeking the protections of the IADA was only presumptively prejudicial. Vining, 637 So.2d at 925. As a result, the period could be extended when necessary to apply the recapture period provided for in rule 3.191. In Vin-ing, the trial court and the prosecutor immediately acted upon the defendant’s motion for discharge: a hearing was held on the motion within five days of the filing of the motion and the trial commenced within ten days of the hearing, as would be contemplated in the speedy trial setting. As a result, the Florida Supreme Court held the trial court properly denied the motion for discharge, even though the trial occurred outside of the time frame required by the IADA.

This court has applied Vining in Garza, 807 So.2d 790. In Garza, the defendant filed a “notice of violation of section 941.45, claiming that the IAD[A]’s speedy trial protection had been denied Mr. Garza.” Id. at 792. The court acted immediately upon the notice and set trial for five days later. Before trial began, however, the court heard and granted Garza’s motion for discharge. Id. Because Vining specifically held that the ten-day recapture period applied and the judge had denied that benefit to the state, we reversed and remanded for further proceedings.

These cases effectively hold that the time limitations of the IADA may be extended if the court and the State act expeditiously and in compliance with the provisions of rule 3.191(p)(3) upon receiving notice of a prisoner’s request for discharge under the IADA. Vining, Garza, and Quinn all involved defendants who filed a notice of the expiration of the IADA time requirements and were then immediately brought to trial within the recapture period. In each case, the State sought or was granted the short recapture period permitted under the speedy trial rule.

In contrast, Mr. Monroe’s request was not acted upon until months after he filed his motion to dismiss. His first motion was filed in January 2005, and an amended motion was filed in July. No one sought to address this motion until November 2005, when it was apparently addressed at a pretrial conference. Further, during this hearing, the State never sought the recapture period or indicated a willingness to proceed directly to trial. Although Vin-ing, Garza, and Quinn provided the State with a recapture period upon request or action, the State cannot now be heard to complain it was deprived of a recapture period it never sought.

“A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.” Fla. R.Crim. P. 3.191(p)(3). Mr. Monroe, through no fault of his own, was not brought to trial in accordance with the provisions of rule 3.191(p).

Mr. Monroe established a violation of section 941.45, article 111(a), one that occurred well before any action that might imply a waiver of the protections of the Act. When notified of the violation, the State took no immediate action to bring Mr. Monroe to trial. Pursuant to article 111(d) of the IADA, Mr. Monroe is now entitled to dismissal of these charges.

.We therefore reverse the judgments in case numbers 00-12534 and 01-13881 and remand for dismissal of these charges. Our reversal in these two cases requires a resentencing in the remaining three cases, numbers 99-16916, 99-21500, and 00-21537 because the cases were all sentenced using a single scoresheet.

Reversed and remanded.

CASANUEVA and KELLY, JJ., Concur.

      . Notably, article 111(d) of the IADA provides:
      Any request for final disposition made by a prisoner pursuant to paragraph (a) shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically requested.

      . We note that although the motion was filed pro se at a time when Mr. Monroe was represented by counsel, no one sought to strike the motion. In fact, Mr. Monroe’s counsel brought the motion to the court's attention and asked the court to permit Mr. Monroe to argue it.

      . Both articles 111(a) and IV(c) permit the court in the receiving jurisdiction to grant a reasonable and necessary continuance for "good cause shown in open court, the prisoner or the prisoner's counsel being present[.]” As discussed in our second point, no request for continuance was made in Mr. Monroe’s case before the period under article 111(a) expired. Thus this exception does not apply. Further, article VI provides that the periods under articles III and IV are tolled "for as long as the prisoner is unable to stand trial.” There is no allegation that Mr. Monroe was unable to stand trial at any time since he filed his request for final disposition.

      . The State did not present this argument to the circuit court. Perhaps as a result, our record does not make clear exactly when Mr. Monroe was transported to the state of Florida for the disposition of these charges.

      . This interpretation is consistent with Florida cases that have applied the IADA to circumstances governed by both articles III and IV. Compare State v. Roberts, 427 So.2d 787, 790 (Fla. 2d DGA 1983) (“As Roberts was not brought to Florida until July 15, 1981, more than 180 days after section 941.45 was invoked, the circuit court’s dismissal of the two informations was proper.”), with State v. Ivey, 410 So.2d 636, 637 (Fla. 2d DCA 1982) (“Because the state initiated the procedure against appellee by transmitting to the Federal Institution a request for custody pursuant to section 941.45(4)(a), Florida Statutes (1979), the state was required to commence trial within 120 days after arrival of the prisoner.”). We recognize there is some language in Schuhart v. State, 647 So.2d 1049, 1050 (Fla. 5th DCA 1994), and in State v. Minnick, 413 So.2d 168, 169 (Fla. 2d DCA 1982), that appears to intermingle the two articles in a manner similar to the State’s argument in this case. However, neither of those cases addressed the specific application of either period. In Schuhart, 647 So.2d at 1050, the court concluded that a continuance was properly granted and extended the appropriate period. In Minnick, 413 So.2d at 169, this court held that the appropriate period was tolled by the prisoner's unavailability for trial.

      . The only other case to comment on these issues is Quinn v. State, 713 So.2d 1046 (Fla. 5th DCA 1998). In Quinn, the defendant filed a “demand for speedy trial’’ under the IADA.
        Id. at 1047. The trial court acted upon it immediately, employing the procedure in rule 3.191, and set the trial within the ten-day recapture period. On appeal, Quinn argued that the recapture period did not apply. The Fifth District explained:
      Appellant contends that Vining is erroneous. Without citing any authority, he contends that the decision is violative of the Separation of Powers doctrine in the Constitution of the State of Florida and of the Compact and Due Process clauses in the Constitution of the United States. Relying upon section 918.015(2), Florida Statutes (1997), he contends that the supreme court is required to provide procedures assuring that the right to a speedy is realized. Appellant maintains that the supreme court does not have the authority to create procedural rules to implement the IAD[A]’s speedy trial right. Moreover, he distinguishes Vining on the ground that it is based upon a constitutional right to speedy trial whereas the IAD[A] is based upon a contractual right to speedy trial, as agreed upon by the forty-six states, the District of Columbia and the United States government. Appellant concludes by asking this court to certify to the supreme court the question of whether Vining should be reconsidered.
      We find that this appeal is without merit. The supreme court resolved the issue on appeal in Vining by holding that the statutory time-periods set forth in the IAD[A] may be considered in conjunction with Florida Rule of Criminal Procedure 3.191. Under the doctrine of stare decisis, this court is bound by supreme court precedent.
      713 So.2d at 1049.

      . This unique situation perhaps highlights the difficulty in engrafting the Florida speedy trial rule onto the requirements of the IADA. The speedy trial rule specifically calls for the defendant to file a "notice of expiration of speedy trial time.” The rule anticipates the filing of a uniformly titled document in order to assist courts and prosecutors in identifying the matter as one requiring immediate action. In this case, of course, speedy trial had been waived and no such notice could be filed. Instead, Mr. Monroe filed a motion specifically identifying the violation of the IADA. The State has not challenged the manner in which Mr. Monroe sought discharge. Moreover, as noted above, the State did not seek the recapture period once the urgency of the motion was made clear, either when the motion was served upon it or at the hearing. We decline under these circumstances to hold that Mr. Monroe must file a specifically titled document in order to invoke the protections of the IADA and request discharge. However, to prevent future confusion regarding the interplay of the IADA and rule 3.191, the Florida Bar's Criminal Procedure Rules Committee should consider whether a specific rule, or an amendment to the current rule, is necessary to specifically address the requirements of the IADA. In the interim, prosecutors and circuit court judges may need to take affirmative measures to assure similar prosecutions do not fall between the cracks.

      . We note that the dismissal of these charges may have little practical effect. The record reflects that Mr. Monroe was serving a 100-month sentence in federal prison. The 114.9-month sentences imposed here were intended to run concurrently with the federal sentence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Terrell WILLIAMS, Appellee.
    No. 4D06-1902.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Williams’s motion for rehearing and modify our directions on remand to clarify that Williams may also file a motion to withdraw his plea. See State v, Skidmore, 755 So.2d 647, 648-49 (Fla. 4th DCA 1999).

WARNER, POLEN and HAZOURI, JJ., concur.


author:
PER CURIAM.
      POLEN, J.,

text:
    Thomas NICKERSON and Claire Nickerson, Petitioners, v. WATERMARK MARINA OF PALM CITY, L.L.C., a Florida Limited Liability Company, and Martin County Marine Corporation, Respondents.
    No. 4D07-2422.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Leif J. Grazi of the Law Offices of Grazi & Gianino, Stuart, for petitioners.
    W. Thomas Wackeen and Shelly J. Stir-rat of Fox, Wackeen, Dungey, Beard, So-bel, Bush & McCluskey, L.L.P., Stuart, for respondent Watermark Marina of Palm City, L.L.C.
   PER CURIAM.

Thomas Nickerson and Claire Nickerson (collectively, the Nickersons), defendants below, sought certiorari and prohibition relief from a non-final order which granted the plaintiffs motion for release of a lis pendens bond, substituting a pledge of stock. By earlier order, this court denied the petition for writ of prohibition on the merits. We now grant the petition for writ of certiorari.

Watermark Marina of Palm City, L.L.C. (the buyer) contracted to purchase two parcels of real property, one owned entirely by the Nickersons and the other owned in part (4.7 percent) by the Nickersons and in part by the Martin County Marine Corporation (the corporation), fifty percent of the shares of which the Nickersons own. The sale did not close and the buyer sued for specific performance, filing a notice-of lis pendens, for which the trial court required the buyer to post a bond in the amount of $200,000. While the lawsuit was pending, the buyer purchased the other fifty percent of the shares in the corporation. Trial on the underlying specific performance lawsuit is anticipated to take place early in 2008.

After the lis pendens expired, the buyer did not seek its extension, but moved for release of bond. To ensure payment for any damages from the recording of the lis pendens for the period prior to its expiration, it proposed substituting as collateral a pledge of its stock in the corporation, up to the amount of $200,000 in value. The Nickersons opposed the motion, arguing that the stock could become worthless and a lis pendens bond should be in cash or a security that one would not need to attach or sell.

The trial court granted the motion for release of bond, and in a later order, it determined the value of stock for lis pen-dens bond substitution. The subsequent order allowed the buyer to substitute two hundred shares of stock in the corporation for the lis pendens bond currently posted, with an additional 100 shares held in escrow to cover any potential decline in the value of the pledged stock. The Nicker-sons sought certiorari relief.

The buyer argues that the Nickersons have not shown any injury that cannot be corrected on final appeal. If it is ultimately determined that the lis pendens bond was wrongful, and if the Nickersons become entitled to damages, and if the buyer refuses to pay, then this court may determine, on plenary appeal, whether the trial court erred in releasing the surety; thus, the same remedy which the Nickersons seek now is one which this court may grant on final appeal. We disagree.

Section 48.23(3), Florida Statutes (2006), provides, with respect to actions that are not founded on a duly recorded instrument or a chapter 713 lien, “the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.” Defendant property holders may ask plaintiffs in such suits to post a bond to protect them from harm, Chiusolo v. Kennedy, 614 So.2d 491, 493 (Fla.1993), and “the trial court’s discretion to require a bond is not limited only to cases in which the property-holder defendant can show irreparable harm. Rather, the trial court may also consider the likelihood of other damages which do not meet the standard of irreparable harm.” Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 917 (Fla.1996). “[T]he trial court is not limited to considering whether the property-holder defendant will suffer irreparable harm when determining if a lis-pendens bond is required.” Id. at 918.

If the refusal to order a lis pendens bond is a decision reviewable by certiorari, e.g., Florida Communities Hutchinson Island v. Arabia, 452 So.2d 1131 (Fla. 4th DCA 1984) (granting certiorari petition and holding trial court’s failure to discharge lis pendens or require posting of bond as condition to maintenance of lis pendens constituted departure from essential requirements of law), then it seems the determination that other collateral may substitute for a bond previously required for that purpose also must be reviewable by certiorari.

The issue thus becomes whether the trial court departed from the essential requirements of law in allowing the buyer to post stock in the corporation as collateral in place of the surety bond. The only authority on the question located by the Nickersons was Town of Davie v. Sloan, 566 So.2d 938 (Fla. 4th DCA 1990). In that case, this court held that the amount of an injunction bond, which was $20Q0, was the ceiling on damages for wrongful issuance of the injunction. The trial court had reduced an award of attorney’s fees from $16,200 to the $2000 limit. This court’s opinion reflected that previously there had been a motion to increase the bond, but “the trial court never made a specific ruling that the land would stand as a surety in lieu of increasing the bond. No order was ever entered increasing the bond from the original $2,000, nor did appellant appeal as to the sufficiency of the original $2,000 bond.” Id. at 939. The issue of whether a non-liquid asset (such as land) may be used as a surety in place of a bond was not an issue for this court to resolve in that case.

The Nickersons emphasize that the purpose of the bond is to secure the recovery of damages sustained by the property owner if the lis pendens was improperly recorded. According to the Nickersons, if they should become entitled to payment from the bond, the trial court’s order would require them to litigate over the then-present value of the collateral and also take steps to liquidate it to obtain the cash. Since the parties did not agree as to the value of the corporation or its stock, and the stock is in a closely held corporation, they argue that the substitution- of stock for the bond previously issued is inappropriate.

Rather than pointing to authority permitting the substitution of other collateral for a lis pendens or an injunction bond, the buyer concludes there can be no departure where neither party has located a statute or Florida appellate court opinion which prohibits a trial court from substituting other collateral for a lis pendens surety bond. The setting of such a bond clearly is a matter within the trial court’s discretion. See Med. Facilities Dev., Inc., 675 So.2d at 916-17; Suarez v. KMD Constr., Inc., 965 So.2d 184, 189 (Fla. 5th DCA 2007) (“The trial court is vested with considerable discretion with regard to considering whether a bond is necessary and, if so, what damages should be considered in setting the bond amount.”). If the decision to order a bond is a matter of discretion,- then so is the question of whether to allow collateral instead of the bond. Unless there is a clearly established principle of law contrary to the trial court’s order, certiorari must be denied. E.g., Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5th DCA 2006) (denying review of order granting judgment on the pleadings on count seeking to foreclose a construction lien, where issue appears to be one of first impression, and thus order is not subject of clearly established law).

However, we agree with the Nickersons’ position: the language of section 48.23(3), allowing courts to control notices of lis pendens as injunctions, invokes Florida Rule of Civil Procedure 1.610(b), which provides, “No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” (Emphasis added). A pledge of collateral simply is not a bond. Such collateral could be substituted for the bond only with the consent of both parties, which is not the case here.

'We therefore conclude that the trial court departed in allowing the buyer to substitute shares of stock, over the Nicker-sons’ objection, grant the petition, and quash the orders in question.

STONE and STEVENSON, JJ., concur.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. While the majority correctly points out there is no specific case or rule that allows the judge to substitute stock as collateral for a lis pendens bond, neither is there any prohibition against so doing. While I agree that the refusal to set a lis pendens bond is reviewable by certiorari, we are not dealing here with a refusal, but rather an attack as to the form (and apparently the value) of the proposed bond. Yet the trial court conducted a full evidentiary hearing, where respondents presented evidence of the value of the stock, and petitioners had full opportunity to present contrary evidence. It is interesting to note that one of the parcels of land that was the subject of the underlying litigation is owned almost entirely by a corporation which in turn is owned 50 percent by petitioners and 50 percent by respondent Watermark. It is 200 shares of respondent’s stock in that corporation that the trial court found was equal in value to the original $200,000 bond. In addition, the court ordered another $100,000 in stock of that corporation to be held in escrow in case the value of the stock should go down. I am not persuaded that this was a departure from any essential requirements of law. I also wonder if petitioners have truly demonstrated the necessary irreparable harm that cannot be remedied on plenary appeal. For these reasons, I would deny certiorari.

      . The petitioners own 4.7 percent of that parcel, and the corporation in question owns the rest,


author: WARNER, J.

text:
    MAE VOLEN SENIOR CENTER, INC., Appellant, v. AREA AGENCY ON AGING PALM BEACH/TREASURE COAST, INC., State of Florida, Department of Elder Affairs, and Ruth Rales Jewish Family Service of South Palm Beach County, Appellees.
    No. 4D06-2992.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Rehearing Denied May 1, 2008.

      Donna E. Blanton and Elizabeth McAr-thur of Radey Thomas Yon & Clark, P.A., Tallahassee, for appellant.
    Cynthia S. Tunnicliff, Brian A. Newman and Brandice D. Dickson of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for appellee Area Agency on Aging Palm Beach/Treasure Coast, Inc.
    Barbara M. Crosier, Robert N. Clarke, Jr. and Jason B. Gonzalez, Tallahassee, for appellee State of Florida Department of Elder Affairs.
    Matthew Triggs and Gary W. Kovacs of Proskauer Rose LLP, Boca Raton, for ap-pellee Ruth Rales Jewish Family Service.
   WARNER, J.

This case involves a challenge by Mae Volen Senior Center, Inc. to the Area Agency on Aging Palm Beach/Treasure Coast, Inc.’s (“AAA”) notice of intent to award to another provider a contract for designation as lead agency pursuant to a request for proposals issued by the AAA. An appeal was filed with the Department of Administrative Hearings (“DOAH”), and the assigned administrative law judge dismissed the appeal for lack of subject matter jurisdiction. We reverse the order dismissing for lack of jurisdiction, concluding that the DOAH has jurisdiction to hear appeals involving the area agencies on aging.

In response to the federal Older Americans Act of 1965, 42 U.S.C. § 3001 et seq., the Florida Legislature created a means of serving the elderly of the state through a continuum of community-based care administered by area agencies on aging. See § 430.201 et seq., Fla. Stat. Area agencies on aging are organizations designated by the Department of Elder Affairs (“DOEA”) to coordinate and administer DOEA programs and to provide, through contracting agencies, services for the elderly within a planning and service area. § 430.203(1), Fla. Stat. Area agencies may be either public or private nonprofit entities. Florida has eleven area agencies on aging. The area agencies are all subject to the public records act and the sunshine laws of the state when considering any contracts requiring the expenditure of public funds. § 20.41(9), Fla. Stat. (2007). Appellee AAA is responsible for a planning service area which encompasses Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie counties. It is a private, non-profit corporation.

Pursuant to federal law, and in order to receive federal funds, the DOEA as the designated state agency is required to have a state plan for elderly services. 42 U.S.C. § 3027. The state plan must require each area agency on aging to submit a plan consistent with federal law regarding the provision of services for the elderly. Id. The state plan must have a hearing process for disputes regarding service providers:

(5) The plan shall provide that the State agency will—
(A) afford an opportunity for a hearing upon request, in accordance with published procedures, to any area agency on aging submitting a plan under this sub-chapter, to any provider of (or applicant to provide) services....

42 U.S.C. § 3027(a)(5)(A).

The DOEA has adopted detailed rules ■with respect to the provision of services through the agencies on aging. The rules provide that “[t]he Department shall administer directly or through an Area Agency on Aging, at least one community care service system in each planning and service area where practical.” Fla. Admin. Code R. 580-1.003(1) (emphasis added). Area agencies are responsible for the planning of services and receipt and distribution of public funds for those services to the elderly. To accomplish this work, area agencies on aging must contract with a “lead agency” for provision of services at least once every three years through a request for proposal process. See § 430.203(9), Fla. Stat. A lead agency is “given authority and responsibility to coordinate some or all of the services, either directly or through subcontracts, for functionally impaired elderly persons.” § 430.203(9)(c), Fla. Stat.

The DOEA is responsible for developing guidelines for the area agency requests for proposals (“RFP”) for lead agencies in consultation with area agencies. § 430.202(9)(a), Fla. Stat. Such contracts must be in accordance with the rules and contract procedures of the Department. Fla. Admin. Code R. 58C-1.003(l)(a)16. The agencies must also follow “competitive bidding procedures in procurement contracts in accordance with State and Federal regulations.” Fla. Admin. Code R. 58A-1.008(2). These provisions are applicable to “agencies.”

The DOEA rules provide that one responsibility of an area agency is to “Establish procedures for appeals regarding contracts for lead agencies.... ” Fla. Admin. Code R. 58C-1.003(l)(a)20. This responsibility is also included in the guidelines for RFPs issued by the DOEA and contained in appellant’s appendix. Those guidelines require the DOEA to review RFPs prior to issuance.

AAA’s RFP includes protest guidelines, as required by the DOEA. The procedures for filing a bid protest in these guidelines copy the required procedures under section 120.57(3), as required of agencies subject to the Administrative Procedure Act (“APA”). A protest involving disputed issues of material fact and not resolved by mutual agreement shall be referred to the Division of Administrative Hearing for further proceedings. Id. Section 120.57(3)(e) authorizes the DOAH to conduct hearings on bid protests from agencies subject to the act.

AAA submitted a request for lead agency bids for its area and obtained two proposals, one from Mae Volen and one from Ruth Rales, another agency which was awarded the bid. Mae Volen filed a formal bid protest with AAA. Pursuant to the protest guidelines in the RFP, and reviewed by the DOEA prior to issuance, the protest was transferred to the DOAH.

Before the hearing officer, the Department contended that the DOAH did not have jurisdiction because Mae Volen was a private, non-profit entity, and not a state agency. The trial court agreed and dismissed the appeal. Mae Volen appeals the dismissal.

The DOAH is authorized to hear bid protest disputes from “agencies.” § 120.57(3), Fla. Stat. The definition of “agency” under the Administrative Procedures Act includes:

(b) Each:
1. State officer and state department, and each departmental unit described in s. 20.04.
2. Authority, including a regional water supply authority.
3. Board, including the Board of Governors of the State University System and a state university board of trustees when acting pursuant to statutory authority derived from the Legislature.

§ 120.52(l)(b), Fla. Stat.

In establishing the DOEA, the legislature provided:

(2) The department shall plan and administer its programs and services through planning and service areas as designated by the department.
(6) In accordance with the federal Older Americans Act of 1965, as amended, the department shall designate and contract with area agencies on aging in each of the department’s planning and service areas. Area agencies on aging shall ensure a coordinated and integrated provision of long-term care services to the elderly and shall ensure the provision of prevention and early intervention services ....
(7) The department shall contract with the governing body, hereafter referred to as the “board,” of an area agency on aging to fulfill programmatic and funding requirements. The board shall be responsible for the overall direction of the agency’s programs and services and shall ensure that the agency is administered in accordance with the terms of its contract with the department, legal requirements, established agency policy, and effective management principles. The board shall also ensure the accountability of the agency to the local communities included in the planning and service area of the agency.

§ 20.41, Fla. Stat. (2006) (emphasis added). Because the legislature designated the area agencies on aging as “boards” performing the programmatic and funding requirements of the DOEA, as well as the fact that they exercise multi-county authority and perform essentially government functions in authorizing the spending of public funds and contracting with lead agencies, we conclude that the DOAH has authority to hear this bid protest.

Although AAA is a nonprofit corporation, the DOEA rules provide that the DOEA functions through these area agencies on aging, corporations it selects and provides funding. The area agencies determine the need for elderly services in their areas, plan for the provision of those services, and receive funds from the government which they then distribute to service providers. In all respects they act as an arm of the state agency. They are required to comply with the public records act and the sunshine laws with respect to the contracts requiring the expenditure of public funds, which would include lead agency contracts. They are required to follow state contracting guidelines and requests for proposals. Under these circumstances, where the nonprofit corporation functions under the direction and as a public agency for the purpose of contracting with lead agencies, we do not deem its “private” label as dispositive of whether it is an agency for purposes of the APA. See Fla. Governor’s Council on Indian Affairs v. Tuveson, 384 So.2d 217 (Fla. 1st DCA 1980); Fla. Dep’t of Ins. v. Fla. Ass’n of Ins. Agents, 813 So.2d 981, 983 (Fla. 1st DCA 2002) (“legislature intended that only entities performing a traditional governmental function would be subject to the Act”).

We distinguish Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137 (Fla. 1st DCA 1981), in which the court held that a private clinic which provided mental health services for a mental health board was not an agency within the meaning of the APA. There, the clinic performed medical services under a contract which described the clinic as an independent contractor. It was a private service provider. In contrast, as defined by both statute and rule, the area agencies on aging are not service providers. They are coordinators and administrators of the department’s programs. § 430.203(1), Fla. Stat. In contracting for lead agency services, they perform the same functions as an executive administrative agency.

AAA exercises authority in a multi-county area. The territorial approach confers APA jurisdiction where entities are authorized to exercise their governmental powers in a multi-county areas. See Orlando-Orange County Expressway Auth. v. Hubbard Constr. Co., 682 So.2d 566, 567-68 (Fla. 5th DCA 1996). This too supports APA jurisdiction.

The statutes and the rules created the structure for provision of elderly services by designating the area agencies on aging to perform the DOEA’s functions and responsibilities within their region. Those statutes and rules required that-there be an appeal process for bid protests in compliance with statutory bid procurement procedures. Those procedures include hearings of bid protests before an administrative hearing officer. Hearing officers have authority to hear bid protests.

If we ignore all of this, then no appeal process is available, contrary to statute. A disgruntled bid protester is limited to suit in circuit court, which is not an appeal. If there is no appeal, then an important right required under both state and federal law is lost.

In concluding that the administrative hearing officer has jurisdiction to hear appeals from bid protests on RFPs for lead agency contracts with area agencies on aging, our ruling is very narrow. And if we are wrong in our analysis, and the legislature did not intend to confer jurisdiction on the DOAH to hear appeals of these cases, then it can certainly clarify the issue. All we decide is that the administrative hearing officer has jurisdiction to hear this bid protest for a lead agency contract.

Reversed.

POLEN and HAZOURI, JJ., concur.

      . The DOEA suggests that the remedy is a petition for certiorari, but that is available to challenge agency action or local governmental actions. This is contrary to the DOEA's claim that AAA is a private entity and not an agency (whether local or state).


author: THOMAS, J.

text:
    Ronny GOODSON, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Appellee.
    No. 1D07-1468.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Rehearing Denied April 8, 2008.

      Timothy P. Atkinson and Gavin D. Burgess of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant.
    Jennifer A. Tschetter, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Ap-pellee.
   THOMAS, J.

In this administrative appeal, Appellant challenges a final order by which the Florida Department of Business and Professional Regulation (the Department) revoked his Florida real estate licenses. Appellant argues that the Department’s administrative complaint did not contain sufficient factual allegations to support the charged infractions. We affirm this issue without comment. Appellant also argues that the Department failed to comply with section 455.225(5), Florida Statutes, because it did not terminate the informal hearing Appellant elected to have once disputed issues of fact arose. We affirm on this issue, as it is not properly preserved for review.

Appellant was charged with violating numerous provisions of section 475.25(1), Florida Statutes, regulating the practice of licensed Florida real estate brokers. After affirmatively indicating that he did not dispute the allegations of fact set forth by the Department to support these charges, Appellant elected to appear, pro se, at an informal hearing before the Florida Real Estate Commission, pursuant to section 120.57(2), Florida Statutes. During the course of this hearing, he made various statements that potentially raised disputed issues of material fact. He did not, however, request that the informal hearing be terminated in lieu of a formal hearing or otherwise object to the continuation of the proceedings before the Commission. Appellant argues on appeal that, despite his silence on the issue, the Commission was required by operation of section 455:225(5), Florida Statutes, to terminate the hearing and refer the matter to the Division of Administrative Hearings once disputed issues of fact arose. We disagree.

Section 455.225(5) provides, in relevant part, “If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.” Despite the mandatory language of this provision, it is well established that a claim of error, even in the administrative context, cannot be raised for the first time on appeal. See Twins D & D, Inc. v. Dep’t of Bus. & Prof'l Reg., 722 So.2d 234 (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates v. Florida Pub. Serv. Comm’n, 654 So.2d 678 (Fla. 1st DCA 1995). We see no reason to relax this principle in the present case. Indeed, at least one other Florida appellate court has concluded that the very argument raised by Appellant is subject to the rule of preservation. See Stueber v. Gallagher, 812 So.2d 454 (Fla. 5th DCA 2002).

To support his position that this issue is one that may be raised for the first time on appeal, Appellant cites Mixon v. Department of State, Division of Licensing, 686 So.2d 755 (Fla. 1st DCA 1997). We find that decision to be' unavailing. In Mixon, this court reversed the revocation of the appellant’s professional license following an informal hearing that was not terminated in lieu of a formal hearing once disputed issues of fact arose; however, nothing in our opinion indicates that the issue was not .properly preserved for appeal or was being considered as a matter of fundamental error, and we decline to employ such a reading. The order revoking Appellant’s real estate licenses is accordingly AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.


text:
    Janet S. OSBORNE, Petitioner, v. CITIBANK (SOUTH DAKOTA), N.A., Respondent.
    No. 1D08-0083.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Rehearing Denied April 8, 2008.
    Janet S. Osborne, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

We construe the notice of appeal in this case, which was filed iri the lower tribunal on January 7, 2008, as being directed to the circuit court’s order ori appeal, rendered on December 3, 2007. Given the nature of the order for which review is sought, we sua sponte treat the notice of appeal as attempting to invoke the court’s certiorari jurisdiction. See Fla. R.App. P. 9.040(c); Surf Dweller Owner’s Ass’n, Inc. v. Phoenix Coatings, Inc., 799 So.2d 283 (Fla. 1st DCA 2001) (order o.f the circuit court sitting in its appellate capacity is properly reviewable by a petition for writ of certiorari). As would be the case with an appeal, a petition for writ of certiorari is required to be filed within 30 days of rendition of the order to be reviewed. See Fla. R.App. P. 9.100(c).’ Because petitioner’s notice of appeal was not filed within this period, we are constrained to dismiss this proceeding for lack of jurisdiction.

DISMISSED.

POLSTON, HAWKES, and THOMAS, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FLORIDA EMERGENCY PHYSICIANS, etc., Respondent.
    No. 5D07-1686.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      Kenneth P. Hazouri of deBeaubien, Knight, Simmons,. Mantzaris & Neal, L.L.P., Orlando, for Petitioner.
    Kevin B. Weiss of Weiss Legal Group, P.A., Maitland, for Respondent.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company petitions for certiorari review of an order of the circuit court, acting in its appellate capacity, raising an issue that we recently addressed in GEICO General Ins. Co. v. Florida Emergency Physicians a/a/o Jose Fret, 972 So.2d 966 (Fla. 5th DCA 2007); see also, Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 32 Fla. L. Weekly D1396, 2007 WL 1542019 (Fla. 3d DCA May 30, 2007) (finding that section 627.736(6)(d), Florida Statutes, does not require an insurer to provide its PIP payout log to an insured or the insured’s assignee, presuit). As we did in GEICO General, and for the reasons explained in that opinion, we grant certio-rari and quash the circuit court order. The circuit court should reconsider the matter in light of GEICO General and Southern Group.

Petition GRANTED; circuit court opinion QUASHED.

PLEUS, TORPY and LAWSON, JJ., concur.


text:
    Paul Arthur WEIDNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5097.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 21, 2008.
    Paul Arthur Weidner, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006).

WARNER, HAZOURI and MAY, JJ., concur.


author: ROBERTS, J.

text:
    NELSON TREE SERVICE, INC., Appellant, v. Randall GRAY and Owen Specialty Services, Inc., Appellees.
    No. 1D07-4704.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Rehearing Denied April 8, 2008.

      John W. Campbell, Angelique Groza Lyons, and Sharonda P. Mills of Constan-gy, Brooks & Smith, LLC, Tampa, for Appellant.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, for Appellees.
   ROBERTS, J.

In this action on a noncompete agreement, the appellant, Nelson Tree Service, Inc. (NTS), appeals the trial court’s order denying its amended motion for preliminary injunctive relief against the appellees, Randall Gray and Owen Specialty Services, Inc. (OSS). We agree and reverse.

NTS first argues that the trial court erred in finding that its claim for preliminary injunctive relief against OSS could not stand because it did not plead for such relief in its complaint. The parties agreed that Florida law controls on this issue. Generally a trial court’s denial of a motion for preliminary injunctive relief is reviewed under the abuse of discretion standard. See Neal v. Neal, 636 So.2d 810, 813 (Fla. 1st DCA 1994). However, in the instant case, the denial rests on purely legal matters and is, therefore, reviewed de novo. See generally Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002).

Although it is true that NTS did not include a claim for injunctive relief against OSS in its complaint, it did include such claim in its amended motion for preliminary injunctive relief. This was sufficient. See Lingelbach’s Bavarian Rests., Inc. v. Del Bello, 467 So.2d 476, 479 (Fla. 2d DCA 1985) (holding that a motion for preliminary injunction is the appropriate mechanism for seeking that form of relief).

Additionally, rule 1.610(a)(2) of the Florida Rules of Civil Procedure requires “reasonable notice,” defined as notice that provides a “meaningful opportunity to prepare and defend against the allegations of the motion or complaint. It means the ability to offer evidence and to secure a record of the proceedings.” Harrison v. Palm Harbor MRI, Inc., 703 So.2d 1117 (Fla. 2d DCA 1997) (quoting Pecora v. Pecora, 697 So.2d 1267 (Fla. 5th DCA 1997)). In Harrison, the court held that seven days was sufficient under that standard. In the instant case, the notice of hearing was served 20 days before the continued hearing. Thus, under Harrison, OSS had more than reasonable notice. Additionally, OSS was represented by counsel at the hearing and evidence was presented on its behalf.

NTS next argues that the trial court erred in finding that it did not prove by clear and convincing evidence that irreparable harm would result unless a preliminary injunction was issued against Mr. Gray. The parties agreed that Ohio law controls on this issue. Under Ohio law, a trial court’s denial of a motion for preliminary injunction is reviewed for abuse of discretion. See Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 619 N.E.2d 1145, 1148-49 (1993). Whether the trial court applied the correct legal standard is a question of law reviewed de novo.

In Corbett, the court explained:

In general, courts will consider the following factors in deciding whether to grant injunctive relief: (1) the likelihood or probability of a plaintiffs success on the merits; (2) whether the issuance of the injunction will prevent irreparable harm to the plaintiff; (3) what injury to others will be caused by the granting of the injunction; and (4) whether the public interest will be served by the granting of the injunction.

Id. at 1148 (citations omitted). In Procter & Gamble v. Stoneham, the court explained

In actions to enforce covenants not to compete, Ohio courts have held that an actual threat of harm exists when an employee possesses knowledge of an employer’s trade secrets and begins working in a position that causes him or her to compete directly with the former employer or the product line that the em1 ployee formerly supported. Although the courts do not refer to this evidentia-ry proposition as “inevitable use” or “inevitable disclosure,” the concepts are the same. According to the inevitable-disclosure rule,- a threat of harm warranting injunctive relief can be shown by facts establishing that an employee with detailed and comprehensive knowledge of an employer’s trade secrets and confidential information has begun employment with a competitor of the former employer in a position that is substantially similar to the position held during the former employment.

140 Ohio App.3d 260, 747 N.E.2d 268, 278-79 (2000).

In determining whether a trade secret exists, a trial court must consider: (1) the extent to which the information is known outside the business; (2) the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information withheld from competitors; (5) the amount of effort or money expended in obtaining and developing the information; and (6) the amount of time and expense it would take for others to acquire and duplicate the information. See id. at 272, 747 N.E.2d 268 (citing Pyromatics, Inc. v. Petruziello, 7 Ohio App.3d 131, 454 N.E.2d 588, 592 (1983)).

In the instant case, the trial court did not indicate whether it considered the existence of a trade secret. From the record, it appears that Mr. Gray may have possessed knowledge of NTS’s trade secrets. In its order denying NTS’s amended motion for preliminary injunctive relief against Mr. Gray, the trial court stated only that NTS failed to prove by clear and convincing evidence that irreparable harm would result unless an injunction was issued. Before reaching this step in the analysis, the trial court should have determined whether or not Mr. Gray possessed NTS’s trade secrets. Failure to do so was error.

REVERSED and REMANDED for further proceedings consistent with this opinion.

KAHN and WEBSTER, JJ., concur.


text:
    Stanley GRONTKOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4408.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Rehearing Denied April 29, 2008.

      Stanley Grontkowski, Miami, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the trial court’s order denying appellant’s motion for postconviction relief from his conviction and sentence for felony murder, aggravated burglary of a dwelling, and two counts of aggravated battery. To avoid the two-year time limit on motions for postconviction relief, he claimed newly discovered evidence, as he had already filed a motion for postconviction relief which was denied after evidentiary hearing. We conclude, as did the trial court, that the evidence was not newly discovered nor would it probably lead to an acquittal on retrial.

To set aside a conviction based on newly discovered evidence, the evidence must have been unknown at the time of trial, and it must appear that defendant and counsel could not have discovered the evidence through due diligence. Jones v. State, 709 So.2d 512, 521 (Fla.1998). In addition, the evidence “must be of such nature that it would probably produce an acquittal on retrial.” Jones v. State, 591 So.2d 911, 915 (Fla.1991).

In his first claim, appellant contends that counsel was ineffective for failing to suppress a taped statement he made to the detectives. This claim was raised in his first rule 3.850 motion. In the prior motion, he alleged that when he was in custody, the detective used improper tactics to circumvent Miranda. The trial court denied it after the evidentiary hearing where the court determined that he was not in custody. In this motion, he alleges that his claim is now “newly discovered,” because at the evidentiary hearing, he learned that it was a “non-custodial” statement and argues that it should have been suppressed as illegal under section 934.03, Florida Statutes. We agree with the trial court’s assessment that the claim is not based on newly discovered evidence, although his legal theory may be new. The facts upon which this claim is based were known or discoverable since the time the statement was made. In addition, appellant has not shown how suppression of this statement would have probably produced an acquittal in that he denied involvement in the incident in his statement.

His next claim alleges that he has newly discovered evidence from the postconviction evidentiary hearing that the state used false evidence against him at trial or mishandled exculpatory evidence. However, this claim was fully vetted at an eviden-tiary hearing on his first postconviction relief motion. This motion does not raise a newly discovered evidence claim.

The last two claims also involve a claim that the state created a false exhibit of appellant’s driver’s license identification card. From the time of the trial, appellant claimed this license was false in that it provided an address for a residence next door to the victim, when in fact he did not live there. The address was of a woman whom the appellant knew (and may have been his girlfriend). He maintained that the state used this evidence to depict him as a liar, because he claimed he did not know the victim.

This issue was raised in the first motion for postconviction relief. At the evidentia-ry hearing, a representative of the Division of Driver Licenses testified that the address was changed approximately six months after the crime at a time when appellant was in jail. The representative could not determine how the address was changed but consulted with the secretary of the Division, who told her that the postal service would send the Division any change of address requests that it had received. These changes would be sent approximately twice a year. The Division would then update addresses in its record from this list. The trial court denied relief, concluding that the evidence did not show that the state either created or used information it knew was false.

Following the hearing, the appellant contacted the postal service. The e-mails attached to his motion show that he asked whether “the Post Office ha[s] the authority to change address[es] on Florida drivers’ licenses .... ” The postal service responded that it does not have authority to change the address. Armed with this information, the appellant claims that this “newly discovered evidence” entitles him to a new hearing, arguing if the state presented inaccurate information or acted in bad faith at trial, he should be entitled to a dismissal of the charges.

The appellant argues that the state’s deliberate presentation of false information at trial violated his due process rights, citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Florida Supreme Court has recognized that there is a three-part test to establish a Giglio violation. Guzman v. State, 868 So.2d 498, 505 (Fla.2003). The defendant must show: “(1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Id. “[T]he false evidence is material ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id. at 506 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

Like the other evidentiary issue, this issue was fully explored at the prior hearing, and the court concluded that there was a logical explanation as to how the state presented information that was not necessarily false or manufactured. The information attached to the motion does not constitute newly discovered evidence that would lead the court to conclude either that the evidence was false or that the prosecutor knew the evidence was false. First, the post office help desk informed the appellant that it had no authority to change an address on a Florida driver’s license. This is not inconsistent with the testimony of the Division representative at the prior hearing. The post office would send all of the changes of address it had collected for a period of time to the Division. It was up to the Division to make the changes on the driver’s license. Thus, the post office did not have the authority to change an address on the driver’s license. Second, nothing in the “newly discovered evidence” would show that the prosecutor knew the evidence was false or did anything to create this evidence, as is alleged by appellant. No one knows who submitted the change of address card to the post office and then to the Division of Driver Licenses. Nothing points to the state as having caused the change of address. Thus, appellant has failed to meet the criteria for a Giglio violation.

The trial court’s order denying the motion for postconviction relief is affirmed.

POLEN and FARMER, JJ., concur.


text:
    Vincent MARGIOTTI, Petitioner, v. J.E. SPEIGHTS, Classification Supervisor, and Walter A. McNeil, Secretary, Florida Department of Corrections, Respondents.
    No. 1D08-0315.
    District Court of Appeal of Florida, First District.
    March 24, 2008.
    Vincent Margiotti, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. Martin v. Fla. Dep’t of Corr., 768 So.2d 1150 (Fla. 1st DCA 2000).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Leroy ROBINSON, Jr., Petitioner, v. CITY OF JACKSONVILLE, Respondent.
    No. 1D08-0465.
    District Court of Appeal of Florida, First District.
    March 24, 2008.
    Leroy Robinson, Jr., pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


text:
    Daly N. BRAXTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-1030.
    District Court of Appeal of Florida, First District.
    March 24, 2008.
    Daly N. Braxton, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Corry MENCY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0997.
    District Court of Appeal of Florida, First District.
    March 24, 2008.
    Corry Mency, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Pope v. Wainwright, 496 So.2d 798 (Fla.1986).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    BOATS EXPRESS, INC., d/b/a Boats Express Corp., and Gregory D. Hutchens, Appellants, v. Mark THACKERAY, Appellee.
    No. 2D06-5713.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      Mark J. Albrechta, Tampa, for Appellants.
    Kevin M. Davis and Andrea N. Zdaniew-ski of Thompson, Goodis, Thompson, Gro-' sedóse & Richardson, P.A., St. Peters-burg, for Appellee.
   ALTENBERND, Judge.

Boats Express, Inc., d/b/a Boats Express Corp., and Gregory D. Hutchens appeal an amended final order on proceedings supplementary. The final order enters a judgment in favor of Mark Thackeray and against Mr. Hutchens in the amount of $45,975.42. This judgment was entered on the theory that Mr. Hutchens, the president of Boats Express, fraudulently transferred assets of Boats Express to another corporation to prevent Mr. Thackeray from garnishing these assets to satisfy a judgment against Boats Express. To the extent that a judgment was entered against Mr. Hutchens on this theory when no complaint alleging such a theory had ever been filed, or served on him and his appearance at an examination on proceedings supplementary was merely as a witness, we conclude that the judgment against him must be reversed.

Our holding in this case is relatively simple and based on well-established principles of due process. The proceedings in the trial court, on the other hand, were not simple and involved some very unusual procedures. It is difficult to explain the trial court’s error without first describing the unusual procedural steps that led' to the error.

I. THE PROCEEDINGS TO ENFORCE A FOREIGN JUDGMENT

In August 1997, Boats Express entered into a written contract to move Mr. Thackeray’s boat from a marina in Georgia to a marina in Cincinnati, Ohio. Boats Express agreed to provide this service in consideration for a payment of $896. Apparently, Boats Express failed to fulfill this contract, and Mr. Thackeray arranged for someone else to transport the vessel. Thereafter, Mr. Thackeray sued Boats Express in Ohio state court.

Boats Express made an unsuccessful attempt to remove the action to federal court. When the federal court remanded the action to state court, Boats Express apparently did not attend the trial and a judgment was entered against it on January 27, 2000, for $45,975.42, which included awards of compensatory damages, punitive damages, and attorneys’ fees. Despite various challenges in Ohio by Boats Express, our record contains nothing suggesting that the judgment was ever vacated, modified, or set aside.

Pursuant to the Florida Enforcement of Foreign Judgments Act, §§ 55.501-509, Fla. Stat. (2000), Mr. Thackeray filed the Ohio final judgment with the clerk of the circuit court in Pinellas County in March 2000, where Boats Express was located. The clerk then provided notice of the filing to Boats Express pursuant to section 55.505(2). In this process, the clerk assigned the judgment a new case number, 00-2120CI-HNO, with the style, “Mark Thackeray v. Boats Express Corp.”

The Florida Enforcement of Foreign Judgments Act is based on the uniform act and contemplates that a foreign judgment will become equivalent to a Florida judgment for enforcement purposes after notice to the judgment debtor and the expiration of a thirty-day waiting period. See §§ 55.503, .505. If a judgment debtor wishes to challenge such a judgment, it may file “an action contesting the jurisdiction of the court which entered the foreign judgment or the validity of the foreign judgment” and record “a lis pendens directed toward the foreign judgment.” § 55.509(1).

There is little guidance in the law concerning the nature of the action to be filed by a judgment debtor who wishes to challenge such a foreign judgment. One leading commentator has suggested a form in which the judgment debtor is identified as the plaintiff and seeks a judgment declaring the foreign judgment unenforceable and staying its enforcement. Henry P. Trawiek, Jr., Florida Practice and Procedure Forms § 4-76.2, at 243^4 (2007 ed.). The form suggested by Florida Practice and Procedure Forms assumes that the action to challenge a foreign judgment will be given its own separate case number.

In this case, Boats Express filed a timely “action to contest the jurisdiction of the Ohio Court,” but it filed this action in the proceeding that the clerk had created to provide notice of the filing of the foreign judgment. It did not describe it as a counterclaim. As a result, the pleading is odd because the “defendant” is filing an action against the “plaintiff.” The “plaintiff’ answered the action, and the “defendant” filed a reply to the answer. We suspect that this procedure was as confusing for the trial court as it was for this court.

In July 2000, this case was considered by Judge Crockett Farnell. The order entered as a result of that hearing is entitled “Order Denying Dismissal for Lack of Subject Matter Jurisdiction.” The order recites that the case came on for hearing on the “Defendant’s action to contest the jurisdiction of the Ohio Court.” The order held that the Ohio court had jurisdiction and ruled: “Dismissal of this cause for lack of jurisdiction is denied.” Following years of continuing disputes, Judge Dem-ers entered a similar order in December 2005 declining to dismiss the cause for lack of subject matter jurisdiction. Despite their titles, these orders are not declining to dismiss “the cause” filed by Boats Express, but rather they are declining to “dismiss” the foreign judgment.

The parties all seem to believe that the one or both of the orders denying “motions to dismiss” were final orders in the action to contest the enforceability of the foreign judgment. This would appear to have been the intent of the circuit court, even though the orders on the surface appear to be nonfinal orders. There is no issue on appeal challenging this procedure, and we have no basis to review these orders. Nevertheless, these orders have generated some of the confusion that followed. A procedure that resulted in a recorded final judgment as suggested by Trawiek would have been helpful.

When a judgment debtor files a timely action challenging the foreign judgment and records a lis pendens, the enforceability of the foreign judgment does not commence at the expiration of the thirty-day period. ' See § 55.509(1). Although Florida’s version of the statute is not identical to the uniform statute and the differences have caused some confusion, the stay of enforcement created by the filing of such an action and the lis pendens is not intended to last indefinitely, but normally lasts at least until the circuit court conducts a hearing to determine if grounds exist to stay enforcement and to decide what security may be appropriate to maintain the stay. See § 55.509(2); Expedia, Inc. v. McKenney’s, Inc., 611 So.2d 98 (Fla. 1st DCA 1992); SCG Travel, Inc. v. Westminster Fin. Corp., 583 So.2d 723 (Fla. 4th DCA 1991).

The hearings conducted in this case were not held pursuant to section 55.509(2) to modify the stay created by the lis pen-dens. Because the trial court entered only the orders described above, no final judgment was ever recorded that expressly dissolved the lis pendens. Likewise, without a Florida judgment expressly domesticating the Ohio judgment, it does not appear that any execution ever issued in Florida to facilitate collection of the Ohio judgment. See Fla. R. Civ. P. 1.550.

II. THE PROCEEDINGS SUPPLEMENTARY

In August 2004, Mr. Thackeray filed a motion for proceedings supplementary in case number 00-2120CI-HNO, alleging only the basic requirements of section 56.29(1), Florida Statutes (2004). The motion and supporting affidavit claim that the sheriff held an unsatisfied execution that was valid and outstanding. Apparently, Mr. Thackeray was explaining that a sheriff in Ohio held such an execution on an Ohio judgment. Without objection, an order for proceedings supplementary was issued.

Section 56.29 authorizes any person to request proceedings supplementary when he or she “holds an unsatisfied judgment or judgment lien obtained under chapter 55.” § 56.29(1). We are inclined to believe that this statute means what it says and that an unsatisfied judgment in Ohio is not a basis for proceedings supplementary unless and until the foreign judgment has been domesticated under the applicable Florida law in chapter 55 and a Florida sheriff holds an unsatisfied execution. The parties, however, have treated the above-described orders denying dismissal as sufficient for these purposes, and this unusual procedure is not an issue on appeal.

In September 2005, Mr. Thackeray filed an amended motion for proceedings supplementary in case number 00-2120CI-HNO requesting an order authorizing him to “join and/or implead” Mr. Hutchens. This amended motion was based on the theory that Mr. Hutchens was the president and sole shareholder of Boats Express and that he may hold property of the corporation. Before the circuit court ruled on this motion, Mr. Thackeray filed another amended motion seeking “leave to amend plaintiffs motion for proceedings supplementary to add Gregory D. Hutch-ens as a named defendant.” This motion again alleged that Mr. Hutchens was president and sole shareholder of Boats Express. This motion, however, did not seek to amend the motion to recover property of Boats Express. Instead, it alleged that Mr. Hutchens, as the person in control of Boats Express, had made a fraudulent transfer of $43,609.35 from the accounts of Boats Express on July 27, 2000. The motion does not allege that Mr. Hutchens had possession of these funds. Instead, Mr. Thackeray’s second motion sought to amend the pleadings to seek a personal judgment against Mr. Hutchens in the amount of the full judgment against Boats Express.

On January 17, 2006, the circuit court granted Mr. Thackeray’s motion to amend proceedings supplementary. The order states that Mr. Hutchens “shall be im-pleaded as a party for the Proceedings Supplementary to Execution.” The order does not distinguish between the first and second motion to amend the proceedings. It does not authorize the filing of an amended pleading and does not indicate that the court anticipates that a personal judgment could be entered against Mr. Hutchens after he is impleaded. See Machado v. Foreign Trade, Inc., 544 So.2d 1061, 1062 (Fla. 3d DCA 1989) (holding that order impleading party to proceedings supplementary is nonfinal and functions to determine whether a prima facie case has been made).

Following this order, no amended pleading was ever filed adding Mr. Hutchens as a named defendant. No complaint alleging a fraudulent transfer under section 726.108, Florida Statutes (2000), was ever filed. Nothing was ever served on Mr. Hutchens. He did not file any notice of appearance, and no lawyer formally appeared on his behalf.

In April, the circuit court entered a case management order after a hearing with “counsel for both parties.” That order, which does not list Mr. Hutchens as a party, requires him to appear for an “examination” pursuant to the motion for proceedings supplementary. It requires him to produce many documents related to Boats Express. Nothing in this order suggests that he would be attending a trial at which a judgment could be entered against him.

Mr. Hutchens apparently did not produce all of the documents that he was ordered to produce. As a result, Mr. Thackeray filed a motion to show cause why he should not be held in contempt. In the motion, Mr. Hutchens is described as a “witness” at the examination. The circuit court issued an order continuing and reconvening the “matter” and requiring Mr. Hutchens as a “witness” to produce certain documents to Mr. Thackeray’s counsel.

Following the reconvened examination, the circuit court entered a final judgment against Mr. Hutchens on November 21, 2006. Even in this judgment, he is not shown as a defendant in the proceeding. The order determines that Mr. Hutchens conveyed $43,609.35 from the Boats Express bank account to a BEX Voice & Data Services account on July 27, 2000. As a result, the circuit court entered a judgment against Mr. Hutchens for $45,975.42 plus prejudgment interest from the entry of the judgment in Ohio on January 27, 2000.

We hold that the entry of this judgment against Mr. Hutchens after an examination of him as a witness in a proceeding in which no complaint had been filed against him must be reversed. “[T]he fundamental principle of due process of law demands notice and an opportunity to be heard before final judgment.” Cavalier v. Ignas, 290 So.2d 20, 21 (Fla.1974). The first actual step taken in a civil action is the filing of a complaint. Fla. R. Civ. P. 1.050. If a complaint had been filed and served against Mr. Hutchens alleging his personal liability for a fraudulent transfer on July 27, 2000, he would have had the opportunity to retain an attorney who could have filed an appropriate answer. The entry of a judgment under these circumstances denies due process. Accordingly, we reverse the judgment against Mr. Hutchens and remand for further proceedings.

Reversed and remanded.

KELLY and CANADY, JJ., Concur.

      . Unif. Enforcement of Foreign Judgments Act §§ 1-19, 13 U.L.A. 160-275 (1964).

      . It is likely that Florida Practice and Procedure Forms did not anticipate that a clerk in Florida would give a Florida case file number to an Ohio judgment when it was submitted pursuant to this statute.

      . The attorneys handling this appeal for both sides were not the attorneys of record in the circuit court during this period.

      . Section 56.29 authorizes a judge to order property of the debtor that is “in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.” § 56.29(5).

      . It may be helpful to know that this transfer allegedly took place at the time when Mr. Thackeray was attempting to garnish the bank accounts of Boats Express, which he admits was a "premature” effort.


author: FULMER, Judge.

text:
    In the Interest of K.M., a child. D.M., Appellant, v. Department of Children and Families, T.W., and Guardian Ad Litem Program, Appellees.
    No. 2D07-1609.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      Antonio R. Araao of Law Office of Antonio R. Arnao, Largo, for Appellant.
    Jessica C. Tien of Tien Law Group, Tampa, for Appellee, T.W.
    Wendie Michelle Cooper, Orlando, for Appellee, Guardian ad Litem Program.
    No appearance for Appellee, Department of Children and Families.
   FULMER, Judge.

Appellant D.M., the maternal grandmother of the minor child K.M., appeals from an order placing K.M. with her father, Appellee T.W. (“the Father”), pursuant to section 39.521(3)(b), Florida Statutes (2006). Because we conclude that the grandmother has no standing to appeal, we dismiss the appeal.

The trial court adjudicated K.M. dependent as to her mother and, in January-2005, placed K.M. with the grandmother and a maternal aunt. At that time, the whereabouts of the Father were unknown; K.M. was not adjudicated dependent as to him. Shortly thereafter, however, contact was made with the Father, who requested custody of K.M. Custody was denied. The Father appealed, and this court reversed, ordering the trial court to reconsider the matter in accordance with the requirements of section 39.521(3)(b). See In re K.M., 946 So.2d 1214 (Fla. 2d DCA 2006). On remand, the trial court conducted a hearing over two days, finding that “there was insufficient evidence introduced to meet the standard] of compelling evidence endangering the health, safety or well[-]being of [K.M.] if placed with [the Father]” and ordering that the grandmother immediately surrender custody of K.M. to the Father.

The grandmother has appealed. We issued an order to show cause why the appeal should not be dismissed for lack of standing, noting that the grandmother was expressly denied party status below when she attempted to intervene. In her response to our order, the grandmother contends that, because she was K.M.’s legal custodian before the child was transferred to the Father, Florida Rule of Appellate Procedure 9.146(b) allows her to appeal:

Who May Appeal. Any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding affected by an order of the lower tribunal, or the appropriate state agency as provided by law may appeal to the appropriate court within the time and in the manner prescribed by these rules.

Fla. R. App. P. 9.146(b).

Section 39.510(1) provides that “[a]ny party to the proceeding who is affected by an order of the court, or the [Department [of Children and Families] may appeal to the appropriate district court of appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure.” The statutory definition of party, however, does not include “legal custodian”:

“Party” means the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child.

§ 39.01(50). Rather, a legal custodian is included under the rubric of “participant,” which is a status separate from that of “party.” See § 39.01(49) (defining “participant”). “Participants” are not included in the list of entities that may appeal a dependency action. § 39.510(1).

On its face, rule 9.146(b) contradicts section 39.510(1), which does not list “legal custodian” as an entity that may appeal and provides for appeals only by “any party.” Furthermore, the phrase “any other party” in rule 9.146(b) implies that legal custodians are a specific category of party, but this contradicts the definition of “party” in section 39.01(50), which does not include legal custodians. It appears to us that the rule, promulgated in 1996, see Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla. 1996), reflects the version of chapter 39 in effect at that time but has not been updated to remain consistent with statutory amendments. The earlier version of the statute read: “Any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate district court of appeal. ...” § 39.413, Fla. Stat. (1995) (em, phasis added). This provision was amended and renumbered as section 39.510 and then further amended to delete “legal custodian.” See ch. 98-403, § 72, Laws of Fla. (renumbering section 39.413 as section 39.510; effective October 1, 1998); ch. 99-193, § 34, Laws of Fla. (amending section 39.510 from “Any child, parent, guardian ad litem, caregiver, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court ... may appeal” to “Any party to the proceeding who is affected by an order of the court ... may appeal”; effective July 1, 1999); see also ch. 99-193, § 4, Laws of Fla. (deleting “legal custodian” from the definition of “party” and adding “the legal custodian of the child” to the definition of “participant” in section 39.01).

Because “[a] statute conferring a right to appeal upon a litigant relates to a substantive, rather than a procedural right,” State v. Kelley, 588 So.2d 595, 597 (Fla. 1st DCA 1991) (citations omitted), we conclude that section 39.510(1) supersedes rule 9.146(b) such that the grandmother does not have standing to appeal the order of the trial court placing K.M. with the Father. See also Hines v. State, 931 So.2d 148, 150 (Fla. 1st DCA 2006) (noting that “[w]hen a statute confers a substantive right, a conflicting procedural rule is invalid as a violation of separation of powers under article II, section 3 of the Florida Constitution because a rule of procedure cannot enact substantive law”). We are therefore compelled to dismiss the grandmother’s appeal.

Dismissed.

NORTHCUTT, C.J., and ALTENBERND, J., Concur.

      . Section 39.521(3) reads as follows, in pertinent part:
      (3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
      (a) ...
      (b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child....

      . Additional background details may be found in this opinion.

      . Based on our review of the record, it would appear that the grandmother was K.M.'s "legal custodian” in the sense that she was granted "temporary legal custody” of K.M. pursuant to the dependency disposition option listed in section 39.52 l(3)(c), which reads, in pertinent part:

        If no fit parent is willing or available to assume care and custody of the child, [the court may] place the child in the temporary legal custody of an adult relative or other adult approved by the court who is willing to care for the child, under the protective supervision of the department.
      We note that, although both "legal custody” and “temporary legal custody” are defined in the statute, see § 39.01(34), (73), there appears to be no provision in chapter 39 that delineates the circumstances under which "legal custody” is actually granted. Only "temporary legal custody” is granted. See, e.g., § 39.521(3)(c), (d). Furthermore, although the term "legal custodian” is used throughout chapter 39, usually in conjunction with "parent,” see, e.g., §§ 39.01(1) (definition of “abandoned”), 39.201(l)'(a) (requirement for reporting child abuse,, etc.), 39.402(1) (criteria for placing a child in shelter), the term is not defined in chapter 39. It appears to cover wider ground than persons granted "legal custody.” Cf. § 39.01(9), Fla. Stat. (1971) (earlier version of statute, defining "legal custodian” as “the legal guardian of a child, or the person who stands in loco parentis to and has the custody of a child”).