author: PALMER, J.

text:
    Roch CARTER, Appellant, v. The ESTATE OF Elizabeth P. RAMBO, Etc., Appellee.
    No. 5D05-250.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2006.
    Rehearing Denied April 7, 2006.

      James B. Thompson, Jr., and Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., St. Petersburg, for Appellant.
    Susan B. Morrison of Law Office of Susan B. Morrison, P.A, Tampa and Bennie Lazzara, Jr., of Wilkes & McHugh, P.A., Tampa for Appellee.
   PALMER, J.

Roch Carter appeals the trial court’s non-final order denying his motions to quash service of process and to dismiss this action. Concluding that the Estate of Elizabeth P. Rambo (Rambo) failed to establish personal jurisdiction over Carter, we reverse.

Rambo filed suit against numerous defendants, including Carter, for injuries allegedly caused by the negligent operation of a nursing home. In the complaint, Carter is described as being a managing member of Partner’s Health Group-Florida, LLC (LLC), the entity which operated the nursing home. The complaint alleges that Carter breached or failed to perform the duties of a managing member of the LLC and that said breach or failure constituted recklessness or an act of omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the rights of others.

Carter filed motions to quash service of process and to dismiss the complaint, arguing that the trial court lacked personal jurisdiction over him. In support of the motions, Carter filed an affidavit asserting that he did not have sufficient minimal contact with the State of Florida to establish personal jurisdiction.

Carter also filed a deposition in support of his motion. In that deposition, Carter admitted that he filed uniform business reports with Florida for the LLC; however, he claimed that he signed the reports in error. A certification at the bottom of the reports set forth as follows:

I further certify that the information indicated on this report is true and accurate and that my signature shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by chapter 608 Florida statutes.

Carter stated that he was authorized to sign on behalf of the company, but knew he was not a managing partner.

The trial court denied Carter’s motions on the basis that Carter had signed the uniform business reports filed with Florida as a managing member. The trial court explained as follows:

COURT: Okay. Guys, I think when you sign under oath that you’re a manager or managing member, that you get personal jurisdiction. Now, that doesn’t foreclose his ability to go in and show that he wasn’t to a jury. But as far as getting personal jurisdiction, I think it’s denied. I think you got it.

Carter appeals, arguing that the trial court erred in so ruling because Rambo failed to demonstrate a basis for Florida to have personal jurisdiction over him. We agree.

The question in this appeal is whether the courts in Florida can obtain personal jurisdiction over non-resident Carter in his individual capacity. Two inquiries must be made when deciding whether personal jurisdiction exists over a nonresident: (1) the complaint must allege sufficient facts to bring the action within the ambit of one of the various jurisdictional criteria contained in Florida’s long-arm statute, and (2) if the complaint properly alleges long-arm jurisdiction, sufficient minimum contacts must be demonstrated that satisfy the requirements of federal due process. Law Offices of Sybil Shainwald v. Barro, 817 So.2d 873 (Fla. 5th DCA 2002). The first prong of this analysis, involves a shifting burden:

Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. Fla. R.Civ.P. 1.070(i); Jones v. Jack Maxton Chevrolet, Inc., 484 So.2d 43 (Fla. 1st DCA 1986). By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. Elmex Corp. v. Atlantic Fed. Savings & Loan Ass’n, 325 So.2d 58 (Fla. 4th DCA 1976). A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained. Elmex Corp.

Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).

Here, Rambo filed a complaint which tracked the language of Florida’s long-arm statute and alleged in detail that Carter was an individual doing business in Florida, that he operated a nursing home during Rambo’s residence, and that he had committed tortious acts while in Florida. See § 48.193(l)(a)(b) & (2), Fla. Stat. (2003). In response, Carter submitted an affidavit stating that: (1) he was not a resident of Florida; (2) he did not have any significant personal business interests in Florida; (3) he was not a managing member of the LLC; (4) he was the general counsel and an officer of Extendicare Health Services, ■ Inc; (5) Extendicare Health Services, Inc., at no time established, managed, operated or maintained the nursing home involved in this matter, or provided care to Elizabeth P. Rambo; (6) Extendicare Health Services, Inc., at no time established, managed, operated or maintained a nursing home in Florida, or provided care to Elizabeth P. Rambo; and, (7) he at no time established, managed, operated or maintained the nursing home or provided care to Elizabeth P. Rambo.

Since Carter’s affidavit expressly contested each of Rambo’s allegations, the burden shifted back to Rambo to prove the alleged basis for personal jurisdiction over Carter. To meet its burden, Rambo relied on Carter’s deposition testimony and the authenticated business records attached as exhibits to the deposition. However, Carter maintains that those records only prove that he was acting as a corporate officer and that he is not subject to personal jurisdiction for his activities as a corporate officer, citing to the corporate shield doctrine.

The corporate shield doctrine draws a distinction between a corporate officer acting on his own and a corporate officer acting on behalf of his corporation. Stomar, Inc. v. Lucky Seven Riverboat Co., L.L.C., 821 So.2d 1183 (Fla. 4th DCA 2002). Under the corporate shield doctrine, any activity in one’s capacity as a corporate officer or director is exempted from consideration in support of the exercise of long-arm jurisdiction over said officer or director. Radcliffe v. Gyves, 902 So.2d 968 (Fla. 4th DCA 2005).

Here, Rambo presented no evidence indicating that Carter personally operated a nursing home in Florida or that he personally committed any tortious acts against Rambo in Florida. The deposition evidence indicates that Carter’s only contact with Florida was that he signed business reports as a managing member of an LLC in his -representative capacity. Furthermore, Rambo also failed to demonstrate that Carter had sufficient “minimum contacts” with Florida to establish personal jurisdiction over him. Accordingly, the trial court erred in denying Carter’s dismissal motion. See Doe v. Thompson, 620 So.2d 1004 (Fla.1993)(holding that under long-arm jurisdiction statute, personal jurisdiction did not exist over nonresident defendant who was president of corporation which did business in Florida; president stated he did not personally operate business, commit tortious act or cause injury in Florida, and his purportedly negligent actions were not alleged to have been taken outside his duties as corporation’s president and chief executive officer).

REVERSED and REMANDED.

THOMPSON and LAWSON, JJ., concur.

      . Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure.

      . Section 48.193 of the Florida Statutes provides:
      48.193. Acts subjecting person to jurisdiction of courts of state
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
      (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
      (b) Committing a tortious act within this state.

      (2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
      § 48.193(l)(a)(b) & (2), Fla. Stat. (2003).


source: Caselaw Access Project

author: SHARP, W., J.

license: Public Domain

text:
    Colin MUIR, Appellant, v. Carol Ann MUIR, Appellee.
    No. 5D05-1998.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2006.
    Rehearing Denied April 7, 2006.

      Jason M. Gordon, of Law Office of Jason M. Gordon, Cocoa Beach, for Appellant.
    Walter T. Rose, Jr., of Walter T. Rose, Jr., P.A., Cocoa Beach, for Appellee.
   SHARP, W., J.

Colin Muir, the former husband, appeals from an order of the trial court which assessed alimony arrearages against him based on its interpretation of a provision in the parties’ marital settlement agreement that was incorporated in the final judgment. At issue is the proper interpretation of the provision and the resulting proper calculation of the arrearage. We disagree with the trial court’s interpretation and we reverse and remand.

Provision 13 of the final judgment provided that Carol Muir, the former wife, was to receive one-third of Colin’s gross income. The parties agreed Colin’s gross income was $400,000 per year. The parties also contemplated that Colin’s gross income might decrease by more than twenty percent. In such an event, the provision granted Colin the right to either continue to pay Carol the same amount or reduce the amount by using a formula set out in provision 13 of the Agreement, to recalculate his alimony obligation.

In 2003, Colin became unemployed, and shortly thereafter obtained a position working as an independent contractor physician for Carnival Cruise Lines. His income dropped to $80,000 per year. Due to this reduction in income, Colin utilized the formula in provision 13 and reduced his alimony payments to $980 per month after he began working for Carnival. During the period of time Colin was unemployed, from August to November of 2003, he paid no alimony to Carol.

The parties and the court agreed that Colin had the option under provision 13 to recalculate his alimony obligation because his income had dropped more than twenty percent. However, the trial court determined that the effective date Colin made the election to reduce his alimony obligation was on the date that he filed a motion to enforce the Agreement. By fixing the effective date of Colin’s election to pay a reduced alimony payment long after he had begun paying the lesser sum, the court assessed a large arrearage in Carol’s favor.

It is unclear why the trial court selected this date. Colin testified at the hearing, and recited in his motion, that he had made the election when he started paying the lower amount of alimony to Carol. There was no conflicting evidence, and provision 13 of the Agreement is determinative of this issue.

We begin by observing that a marital agreement entered into by the parties and ratified by the court is a contract which is subject to interpretation, just like any other contract. See Ospina-Baraya v. Heiligers, 909 So.2d 465 (Fla. 4th DCA 2005); Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002); Bingemann v. Bingemann, 551 So.2d 1228, 1231 (Fla. 1st DCA 1989).

Interpretation of a marital settlement agreement is a matter of law and places the appellate court on an equal footing with the trial court as interpreter of the written document. See Ospina-Baraya; Delissio; Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996). Thus, the standard of review is de novo. See Ospina-Baraya; Delissio; Gibbs Const. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000).

With respect to the election date, the second paragraph in provision 13 provides, in its entirety:

That should the Husband’s income, from his employment as a physician, decrease more than twenty percent (20%) below its current level, the parties shall recalculate the amount of support that should be paid by the Husband to the Wife, the gross income of both parties would be added together, it would then be divided by one third and from that one-third, the current income of the Wife would be deducted and the balance would be paid by the Husband to the Wife as and for alimony under the terms of this paragraph. That if this should occur, the income of both parties from all sources shall be included in this formula and it shall not be limited as set forth herein above. Should the Husband’s income decrease by an amount of more than twenty percent (20%) from its current level, that being approximately $400,000.00 annually, and should the Husband desire to continue to pay the Wife at the existing rate at the time of said change, said formula shall not be applied. This option rests with the Husband solely to make this determination in the choice of payment or recalculation. (emphasis added)

The language of this paragraph does not require Colin to file any documents or take any other steps before effectively recalculating Carol’s alimony payments. Therefore, the election was effective on the date Colin reduced the alimony payments, and any arrearage award based on the date of his motion is improper.

The second issue in this case involves the correctness of the amount of alimony paid in any given year. The first paragraph of provision 13 provides, in part:

The Husband shall initially pay to the Wife the sum of $4,500.00 per month on the first of the month following the signing of the Marital Settlement Agreement and continuing, on the 1st day of each and every month thereafter until January 1st of each year. At that time, the Husband’s income shall be evaluated and end of year adjustments shall be made to insure that the Wife receives one-third of the Husband’s gross income. There will be no inclusion of any extra monies or extra income that the Husband may earn from any employment outside of Turner & Muir, P.A. or from any income that the Wife may earn if she becomes employed. Also, unearned income by either party shall not effect the terms of this alimony provision .The Husband shall provide the Wife copies of his income tax returns each and every year within thirty days of filing said income tax, for. so long as he owes an obligation of support. (emphasis added)

This paragraph pertains to the time prior to Colin’s reduction of the alimony obligation pursuant to the formula in the second paragraph of provision 13. It provides that on January 1st of each year, Colin’s income will be evaluated to assure that Carol, in fact, received one-third of his gross income for the year just passed.

Carol’s attorney argued below that this provision set Colin’s future alimony obligation, i.e., the January income evaluation set Carol’s alimony for the coming year, not the year just passed. However, the foregoing language does not support such an interpretation. The paragraph provides that on January 1st of each year, Colin’s income shall be evaluated and “end of year adjustments shall be made to insure that the Wife receives one-third of the Husband’s gross income.”

Obviously, the one-third amount cannot be determined until the year has passed and Colin’s total income is susceptible of being determined. The correctness of the amount of alimony paid in such instances, will always have to wait for final determination until after the end of the year, when the parties file their tax returns and exchange them in the new year. The adjustment must therefore apply to the previous year.

The third and last issue is whether the January requirement of evaluation and adjustment of alimony, found in paragraph one, inures to paragraph two, and if so whether it applies to both parties after Colin has exercised his option to reduce Carol’s alimony.

The income included in the second paragraph of provision 13 differs from the income included in the first paragraph of that provision. The first paragraph does not consider “any extra monies or extra income that the Husband may earn from any employment outside of Turner & Muir, P.A. or from any income that the Wife may earn if she becomes employed.” The only income considered in this paragraph is Colin’s income from his normal employment.

However, in paragraph two, after the option to reduce alimony has been exercised, the gross income of both parties must be added together, and then divided by one third. From that one-third, Carol’s current income must be deducted, and the remainder constitutes Colin’s alimony obligation to Carol. If the reduction occurs, the income of both parties from all sources shall be included in this formula.

Although there is no specific requirement in paragraph two that either party submit income tax returns in January of each year to calculate the amount of alimony paid and due for the previous year, there is a logical relation between the two paragraphs, and such a requirement is the only way that the second paragraph can accurately be calculated.

It seems apparent that once the formula is utilized, any adjustment between the parties works both ways. Neither party’s income is fully discernable until the first of the following year, when the parties file and exchange their tax returns. An adjustment may require Colin to pay increased alimony, no alimony, or it may give Colin a credit for alimony previously paid, all of which is dependent on the parties incomes for the past year. Adjustments based on the parties’ incomes for the ending year may favor one or the other.

REVERSED AND REMANDED.

TORPY and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Colin MUIR, Appellant, v. Carol Ann MUIR, Appellee.
    No. 5D05-483.
    District Court of Appeal of Florida, Fifth District.
    March 24, 2005.
    Jason M. Gordon, of Law Office of Jason M. Gordon, Cocoa Beach, for Appellant.
    Walter T. Rose, Jr., of Walter T. Rose, Jr., P.A., Cocoa Beach, for Appellee.
   PER CURIAM.

Colin Muir, the former husband, appeals from an order establishing and requiring him to pay alimony arrearages and attorney’s fees to his former wife, Carol Ann Muir. In a related case, Muir v. Muir, No. 5D05-1998, 925 So.2d 356, 2006 WL 435728 (Fla. 5th DCA Feb.24, 2006), we reversed the trial court’s methodology employed to calculate the alimony arrearage. For that same reason, the arrearage in this case must be reversed and reconsidered in light of our earlier Muir opinion.

REVERSED AND REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Larry D. RICHARDSON, Petitioner, v. James R. McDONOUGH, Florida Department of Corrections, Respondent.
    No. 1D04-4201.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2006.
    Rehearing Denied April 10, 2006.
    Larry D. Richardson, pro se, Petitioner.
    Charlie Crist, Attorney General and Carrie McNair, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for a writ of certiorari is denied. See Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998).

VAN NORTWICK, HAWKES and THOMAS, JJ., Concur.


author: WARNER, J.

text:
    Paul A. WEIDNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3486.
    District Court of Appeal of Florida, Fourth District.
    March 1, 2006.
    Rehearing Denied May 5, 2006.

      Paul A. Weidner, Indiantown, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the trial court’s order denying appellant Paul Weidner’s motion for postconviction relief. Weidner raises two issues, one involving prosecutorial misconduct and the other involving newly discovered evidence. The first is time-barred. As to the second, because Weidner pled to the charge, the newly discovered evidence must be such that a manifest injustice occurred. We do not find that the evidence rises to that standard.

The trial court concluded that Weidner’s contention that he was coerced into the mid-trial plea by prosecutorial misconduct during the preparation of trial witnesses was time-barred, as it was filed more than two years after defendant’s judgment and sentence became final. As it is apparent that the appellant knew of the facts giving rise to his claim at the time of his plea, we agree with the trial court that it is time-barred.

Weidner’s second contention is that he would not have pled to the crime had newly discovered evidence in the form of impeachment of the victim’s testimony been available at trial. Because there was not a complete trial, the proper standard to apply in reviewing this claim is the standard for withdrawal of a plea after sentencing, which requires the defendant to show that withdrawal of the plea is necessary to correct a manifest injustice. Bradford v. State, 869 So.2d 28, 29 (Fla. 2d DCA 2004). Not only did Weidner fail to allege that withdrawal is necessary to correct a manifest injustice, but the evidence does not indicate that such a result occurred.

The victim testified at trial prior to Weidner deciding to accept a plea. The victim said that he was held down by Weidner’s co-defendant while Weidner beat him with a stick, splitting his head open. After trial, the victim told another individual that he hit Weidner first, knocking him down. Weidner then got up and hit the victim with a piece of wood. Weid-ner maintains that he would not have pled if the impeaching statement had been available at trial, as he would have had a viable self-defense claim.

On these facts, we conclude that no manifest injustice occurred. First, Weidner would have known at the time of trial that the victim’s testimony that Weidner struck the first blow was false, if it was indeed false. Weidner himself could have testified to his claim of self-defense had he so desired. Thus, he knew he was pleading no contest based upon “perjured testimony,” as he now describes it. Second, a jury could have concluded that even if the victim hit Weidner first, his violent response far exceeded any self-defense claim he may have had. The victim’s subsequent statement did not negate his testimony that Weidner hit him with a board. Thus, there is no compelling reason to grant postconviction relief from appellant’s plea, conviction, and sentence.

Affirmed.

STEVENSON, C.J., and GROSS, J., concur.


text:
    Florence G. GALLO, as Personal Representative of the Estate of Ann Gasponi, Appellant, v. Frank R. BRADY, Esq. and Brady & Brady, P.A., Appellees.
    No. 4D04-3571.
    District Court of Appeal of Florida, Fourth District.
    March 1, 2006.
    Rehearing Denied April 25, 2006.
    Donald A. Yarbrough, Fort Lauderdale, for appellant.
    Marlene S. Reiss of Stephens, Lynn, Klein, Lacaya, Hoffman & Puya, P.A., Miami, for appellees.
   PER CURIAM.

During her lifetime, Ann Gasponi hired the appellees, Frank R. Brady and Brady & Brady, P.A.,. to provide- estate planning services. As part of the provision of those services, attorney Brady recommended and established a charitable remainder trust, drafting the trust instrument. Following Gasponi’s death, the personal representative of her estate brought a legal malpractice claim against the appellees, alleging that (1) the purpose of establishing the charitable trust was to save on federal estate taxes;. (2) the trust failed to comply with mandatory requirements set forth by the United States Tax Code and related regulations; and (3) as a consequence of the trust’s deficiencies, a tax deduction was not available to the estate and the estate paid in excess of $72,000 in estate taxes that could have been avoided but for Brady’s negligence. The appellees sought and obtained a summary judgment in their favor by arguing that the trust instrument itself did not contain language reflecting that its purpose was federal estate tax savings, the grantor’s intent could not legally be established by resort to extrinsic evidence, and thus, the personal representative could not establish any malpractice. We reverse.

First, we believe a jury could look at the facts alleged by the personal representative and, without resort to extrinsic evidence, reasonably infer that one of Gasponi’s purposes for setting up the charitable remainder trust was to effectuate federal tax savings. Second, we reject the appellees’ claim that Florida law prohibits resort to extrinsic evidence under the circumstances of this case. Florida law provides that, generally, a legal malpractice claim may be brought only by one who is in privity with the attorney. See Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 194 (Fla.1987). There is, however, an exception that permits an intended third party beneficiary of the legal services to bring suit where “testamentary intent as expressed in the will ... [was] frustrated by the attorney’s negligence and as a direct result of such negligence the beneficiaries’ legacy [wa]s lost or diminished.” Id. In obtaining summary judgment in its favor, the appellees relied upon Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378 (Fla.1993). Espinosa stands only for the proposition that a would-be beneficiary may not establish by resort to extrinsic evidence that he or she was intended to benefit from a will. Nothing in the language of the opinion suggests that when a legal malpractice claim is brought by the personal representative on behalf of the estate, the introduction of extrinsic evidence of the testator’s intent is prohibited. Indeed, while the court did not expressly address whether a personal representative bringing a malpractice suit on behalf of the estate may resort to extrinsic evidence, the court permitted the malpractice claim brought by the wife in her capacity as personal representative to proceed under circumstances where resort to extrinsic evidence was necessary to demonstrate that, although the will and codicils made no provision for an after-born child, this had been the testator’s intent. See id. at 1380. Finally, having considered the alternative grounds raised, we decline the appellees’ invitation to affirm the summary judgment pursuant to the “tipsy coachman” doctrine. The summary judgment is reversed and the matter remanded for further proceedings.

Reversed and Remanded.

STEVENSON, C.J., FARMER, J., and MARX, KRISTA, Associate Judge, concur.


text:
    Laurie Jeanne KELLY, Appellant, v. Gregory W. KELLY, Appellee.
    No. 5D05-177.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 3, 2006.

      Nancy N. Nowlis and Barry L. Zisser of Zisser, Robison, Brown, Nowlis & Macie-jewski, P.A, Jacksonville, for Appellant.
    Hal Castillo, Jacksonville, for Appellee.
   SHARP, W., J.

Laurie Jeanne Kelly, the former wife, appeals from an order rendered after a hearing to award attorney fees, following the completion of her dissolution proceeding. The order denied, in large part, her request for an attorney fee award, and granted her $3,901.50 in fees to compensate for the delays caused by the former husband, Gregory W. Kelly, during the litigation. She argues that the award fails to adequately compensate her for the costs and time incurred by her attorney, and that she should have been awarded all of her costs and fees based on the great disparity in the parties’ financial circumstances following the distribution of marital assets. The final decree denied her any alimony, and denied her any share in the increase in value of Gregory’s business interests during the parties’ marriage because of a prenuptial agreement. We reverse and remand to the trial court for determination of an appropriate award of fees and costs.

The parties were married for almost sixteen years at the time Laurie filed a petition for dissolution in 2000. They separated in 1999 after Gregory discovered she had begun an affair with another man three years earlier. At the time of the dissolution, Gregory was 73 years old and Laurie was 46. They had two minor children.

Laurie had been a stock broker when the parties married, but during the marriage, she was a full-time housewife and mother. She testified she had not held a full-time employment position for twenty years. The court did not impute any income to her based on possible future employment. The parties lived a luxurious life style. Their marital home was on the ocean in Ponte Vedra Beach, and was sold during the dissolution proceeding for $4.6 million.

Gregory left the marriage with a net worth of $12,654,731.00. His net monthly income was $86,032.83, and he was still employed. Laurie received part of the proceeds from the sale of the marital home — $1.8 million. She was required to pay $25,000.00 on a credit card that had originally been allocated to Gregory; she was ordered to pay child support of $868.00 per month; and she received no award of alimony. There was some dispute about additional marital assets she would receive over time — in two or three years — $858,147.92 or $963,728.10, but the former husband conceded that there had been a mathematical calculation error and that the sum was the latter figure.

The trial court found that Gregory’s financial position relative to Laurie’s, post the dissolution, was “superior” and that the parties had enjoyed a “very comfortable lifestyle.” However, it determined that Laurie did not have any “need” to have her attorney fees paid by Gregory because she was “self sufficient” financially, since she should have $2 million in assets to invest. The court found that she could earn 6% per year, which would produce $120,000 per year, or a gross of $10,000.00 per month, the amount that Laurie had lived on during these lengthy dissolution proceedings. Laurie projected her living expenses to maintain her marital lifestyle were $18,000.00 per month. The court found her expenses were overstated. $10,000.00 per month would sustain her in a proper lifestyle. Unfortunately, the record does not support the trial court’s calculation of her income.

At the hearing on attorney fees, an attorney expert testified that this had been an extremely difficult dissolution case to handle, and that it had involved almost every possible difficult family law issue from custody to valuation of businesses. He noted that the litigation had lasted three years, issues had been bifurcated, a duplicate lawsuit had been filed by Gregory in another county, and that there had been acrimony between counsel and the parties. He testified that Laurie’s attorney had charged a reasonable hourly rate and expended a reasonable amount of time on the case. Gregory had paid $35,000.00 in temporary fees for Laurie, and her attorney was reasonable in seeking payment of a balance of $88,000.00. The attorney fee affidavit justified a total award of $123,000.00 for fees and $12,691.23 in costs.

Laurie testified that she would have to use some of the $1.8 million she had received in equitable distribution to purchase a home for herself, and to have an appropriate place for housing the children when they visited her. Thus, the projection of $10,000.00 in gross income per month to her was erroneous. If she purchased a home for $500,000.00, keeping in mind the lifestyle she was accustomed to, her investment principal would be $1.3 million. If it earned 6%, her gross annual income would be $78,000.00; and her gross monthly income $6,500.00, minus child support of $868.00 per month = $5,642.00. This is far below the level that the trial court had projected would be adequate for her needs, based upon her $10,000 per month temporary payment.

Also at the hearing, the attorney for Laurie testified that there had been numerous failures on Gregory’s part, to timely pay moneys due Laurie, and that Gregory had repeatedly failed to timely make full disclosures in response to discovery. Laurie’s counsel testified that, in turn; extra time and effort were required on his part to obtain the information needed to proceed with the case. He also pointed to the file which indicated numerous requests by him for continuances due to incomplete discovery disclosures prior to hearings, which, in turn, required duplicate efforts to prepare for hearings and trials.

The trial court indicated it would make an award based on Gregory’s delaying tactics and failure to timely comply with discovery. In its final order the court stated “The former husband in this case engaged in some attempts to delay, hinder, and obstruct the progress of the trial through his failure to comply with discovery requests and orders of this court.” Based on the attorney affidavit showing time records, the court then determined this amount was 15 hours, at $250.00 per hour and 2.1 hours at $75.00 = $3,901.50.

I. Award of attorney fees pursuant to Section 61.16

Section 61.16 provides in part:

(1) the court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals....

The supreme court, in Rosen v. Rosen, 696 So.2d 697 (Fla.1997), explained that the language in section 61.16 requires the trial court to consider other relevant factors besides the financial resources of the parties, such as: the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; and whether the litigation is brought or maintained primarily to harass.

Although the statute does not expressly mention need on the part of one party and the ability to pay attorney fees on the part of the other, the courts have included those factors in making awards of fees in dissolution cases. Some have emphasized that “need” is the primary consideration in cases where it is undisputable that one party has the ability to pay. See Nelson v. Nelson, 795 So.2d 977 (Fla. 5th DCA 2001); Morris v. Morris, 748 So.2d 81 (Fla. 5th DCA 1999); Satter v. Satter, 709 So.2d 617 (Fla. 4th DCA 1998); Mauldin v. Mauldin, 493 So.2d 1103 (Fla. 5th DCA 1986).

However, one party need not be completely without ability to pay attorney fees in order to be awarded fees. See Rowl v. Rowl, 864 So.2d 1236 (Fla. 5th DCA 2004); Cullen v. Cullen, 884 So.2d 304 (Fla. 2d DCA 2004). The purpose of the attorneys fees statute is to ensure that both parties will have a similar ability to obtain competent legal counsel. Cullen. The cases where attorney fees have been denied because one spouse has no need are ones in which he or she has received assets via equitable distribution or alimony, or has another income source with which to pay the attorney fees without diminishing the party’s standard of living or depleting that party’s assets. In a similar context, where the parties were each awarded in excess of $1,459,000 as equitable distribution, had lived a lavish lifestyle, the former husband had a large income and the wife received $3,000 a month in alimony, the court found there was no abuse of discretion in requiring the former husband to pay 75% of the wife’s attorney’s fees. Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000).

A spouse of a relatively long-term marriage is entitled to maintain the style or standard of living enjoyed during marriage if possible. See Cash v. Cash, 691 So.2d 6 (Fla. 5th DCA 1997); Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997). And a spouse is not required to deplete her capital assets to maintain the standard of living she enjoyed during the marriage. See Kaufman v. Kaufman, 541 So.2d 743 (Fla. 3d DCA 1989); Blakistone v. Blakistone, 462 So.2d 883 (Fla. 2d DCA 1985); In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978). See generally, Cullen; Nisbeth v. Nisbeth, 568 So.2d 461 (Fla. 3d DCA 1990). As the third district noted in De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983), requiring a wife to deplete her capital assets is wrong, both as a matter of law and economics.

The relevant context in which to make a judgment regarding attorneys fees is after the dissolution proceeding has concluded, based upon the financial situation in which it has left the parties. Gregory is in a far superior financial posture than Laurie. His net assets and income exceed hers by more than a factor of 8. See Adair v. Adair, 720 So.2d 316 (Fla. 4th DCA 1998); Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003). Given the facts disclosed by this record, Laurie will have to further deplete her 1.8 million equitable distribution award in order to pay the $88,000.00 attorney fee balance, and $12,000.00 in costs, owed her attorney. As noted above, if Laurie purchases a nice home, not a luxurious one, her investment principal will necessarily be depleted. The payment of the fees to Laurie’s attorney will deplete her principal assets further, thereby reducing her gross monthly income far below the level the trial court found would adequately sustain her lifestyle. See Murray v. Murray, 826 So.2d 1029 (Fla. 3d DCA 2001).

In reviewing an award of fees or lack of one, the appellate court uses the abuse of discretion standard. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Karpovich v. Karpovich, 739 So.2d 137 (Fla. 5th DCA 1999). In this case, we conclude that the trial court breached its discretion in not granting Laurie all or most of the fees and costs expended by her attorney. See Batson v. Batson, 821 So.2d 1141 (Fla. 5th DCA 2002); Blakistone v. Blakistone, 462 So.2d 883 (Fla. 2d DCA 1985); Karpovich; Reynolds v. Reynolds, 664 So.2d 1131 (Fla. 3d DCA 1995).

2.Fees for delay and increasing costs of litigation

In support of Laurie’s contention that the $3,901.50 was an inadequate award for the delay and lack of cooperation on the part of Gregory, the record and attorney fee affidavit indicate numerous instances of delay tactics on the part of Gregory, from the beginning of the lawsuit throughout August of 2003, which increased the cost of litigation to Laurie. The trial court was correct in awarding attorney fees for this reason. See Rosen; Elliott v. Elliott, 867 So.2d 1198 (Fla. 5th DCA 2004); Nelson; Seward v. Seward, 676 So.2d 49 (Fla. 5th DCA 1996); Levy v. Levy, 862 So.2d 48 (Fla. 3d DCA 2003). A recitation of all instances is not possible in this opinion. However, we list some of the extra efforts the former wife had to resort to in order to prosecute her case.

1. In December of 2000, the former wife was required to file a motion to compel the former husband to give more responsive answers in discovery concerning the alleged destruction of the parties’ prenuptial agreement.
2. In February of 2001, the former husband produced audio cassettes of telephone conversations of the former wife. She had to file a motion to suppress them.
3. On January 2, 2002, the former wife filed a motion for contempt, and a motion to continue the trial because the former husband had refused to cooperate in discovery.
4. In February of 2002, the former wife filed a motion to compel discovery, impose sanctions and continue the final hearing.
5. The former wife filed a motion to continue again prior to the September 12, 2002 trial date, because the information provided by the former husband about his net worth was incomplete.
6. On October 10, 2002, the former wife filed a motion for contempt because the former husband had withheld support and refused to pay her credit card bill as ordered by the court.
7. On November . 8, 2002, the former wife filed a motion for contempt and for assessment of court costs and attorney’s fees because the former husband did not appear at his scheduled deposition.
8. On January 2, 2003, the former wife filed a motion to compel and a motion to continue the final hearing because the former husband refused to cooperate with Mr. Fred Wainio, the court-appointed business evaluator. The former husband admitted that he had not complied with all of Mr. Wainio’s requests.
9. On January 13, 2003, the former wife filed a motion for contempt, based on a letter from the former husband to Mr. Wainio, in which he accused Mr. Wainio of being biased and prejudiced and requested that he resign.
10. On July 9, 2003, the former wife filed a motion for contempt because the former husband withheld support for the month of July.
11. On August 14, 2003, the former wife filed an emergency motion requesting court intervention because the former husband was corresponding with Mr. Wainio on the condition that disclosure would be withheld from the former wife.

Further, at the hearing on attorney fees, Laurie told the court that Gregory had delayed in paying sums due her throughout the proceedings and more recently one-half the value of the contents of the marital residence, after it was sold, which, at that point was more than 40 days late. The court commented that this had been a “remarkable case.”

Based on the extensive showing of delay and obstruction on the part of Gregory throughout this case, we can find no basis for such a modest award. The time and effort to draft pleadings for relief, to determine that discovery violations occurred, obtain court interventions and seek out remedies for the listed instances above alone must have greatly exceeded the 15 hours of attorney time encompassed in the $3,901.50 award.- Further, the court failed to award or address costs which may have been associated with these tactics.

Accordingly, we reverse and remand to the trial court to recalculate the attorney fee and cost award for Laurie, taking further evidence, if necessary, and awarding full costs and fees related to any bad faith, obstructive tactics. If, on remand from the prior case, there is a change in the equitable distribution award based on invalidation of the marital settlement agreement resulting in a more substantial award of assets to Laurie, then, indeed,' Laurie may have no need for an award of attorney fees above and beyond those attributable to delay and obstruction.

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER and LÁWSON, JJ., concur.

      . Another panel of this court affirmed the former wife’s appeal from the dissolution decree, but remanded for the lower court to address her contention that the prenuptial agreement was unenforceable due to a lack of full disclosure, duress or undue influence. Kelly v. Kelly, 898 So.2d 1096 (Fla. 5th DCA 2005).

      . Driscoll v. Driscoll, 763 So.2d 1189 (Fla. 4th DCA 2000).


author: GRIFFIN, J.

text:
    Jimmy Eugene COCHRAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-3919.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 3, 2006.

      Jimmy Eugene Cochran, Lake Butler, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner seeks a writ of habeas corpus, alleging ineffective assistance of appellate counsel. After trial, on October 29, 2003, petitioner was convicted of armed burglary, aggravated battery, and grand theft auto. Petitioner was adjudicated a habitual offender and was sentenced to life imprisonment. On appeal, counsel raised four issues, and the court affirmed per curiam. See Cochran v. State, 900 So.2d 569 (Fla. 5th DCA 2005). Petitioner filed a previous 3.800(a) motion to correct sentencing error, which was denied. Petitioner also filed a previous motion to mitigate sentence, which was also denied.

Petitioner now claims that appellate counsel was ineffective for failing to argue that the trial court erred in conducting his trial before making a determination of competency after having entered a written order invoking the competency proceedings described in Florida Rule of Criminal Procedure 3.210. Under this rule, if at any material stage of a criminal proceeding, the court of its own motion or on motion of counsel for the defendant or the state, has reasonable ground to believe that defendant is not mentally competent to proceed, the court shall immediately enter an order setting a time for a hearing to determine the defendant’s mental condition. The court must order the defendant to be examined by no more than three, nor fewer than two, experts prior to the date of the hearing.

In this case, defense counsel on July 17, 2003, filed a motion for psychiatric examination to determine both defendant’s sanity at the time of the offense and his competency to proceed, pursuant to Florida Rules of Criminal Procedure 3.210 and 3.211. The motion alleged that defendant had made statements to his counsel indicating that he might be suffering from mental and emotional disturbances which might prevent him from adequately assisting his counsel in preparation of his defense. Defense counsel also asserted that it appeared that defendant was insane at the time of the alleged offense. The trial court granted the motion on August 1, 2003, and appointed Dr. Olander and Dr. Gutman as experts. The competency hearing was scheduled for September 12, 2003, in excess of the twenty days contemplated by the rule.

On August 25, 2003, when the case was called up for trial, defense counsel filed a motion to continue because the evaluations had not been completed. The trial court granted the motion and reset the case for October 13, 2003. On September 18, 2003, one psychological evaluation report was filed. Dr. Olander concluded that petitioner was competent to proceed to trial and did not meet the criteria for insanity.

On October 13, 2003, the case was called up for trial. At that time, defense counsel asked the court again to continue .the case and argued that only one psychological evaluation had been done. The trial court denied the second motion to continue, but put the case at the end of the docket. The trial did not take place for two more weeks. Petitioner went to trial without two psychological evaluations and without a competency hearing.

In the initial brief filed on appeal, appellate counsel raised four issues, but did not raise the lack of a competency determination. The procedure described in the criminal rules makes it the trial court’s responsibility to appoint the experts and to schedule the competency hearing. See Fla. R.Crim. P. 3.210(b) and 3.211(a).

In Tingle v. State, 536 So.2d 202 (Fla.1988), the supreme court held that a trial court erred in denying a motion to determine competency where there were reasonable grounds to believe that the defendant may have been incompetent. Finding that there can be no retroactive determination that a defendant was competent at the time he was tried, the supreme court vacated Tingle’s conviction and sentence and remanded for a competency determination and retrial if Tingle were to be found competent. See also Scott v. State, 420 So.2d 595 (Fla.1982).

We decided a case similar to this one in 2003. Carrion v. State, 859 So.2d 563 (Fla. 5th DCA 2003), the defendant was charged with a life felony, and the public defender’s office was appointed to represent him. Subsequently, the trial court entered an order recognizing that reasonable grounds had been presented to question Carrion’s competency to proceed with the trial. The court appointed two mental health experts to examine Carrion to address the issue of competency as well as the issue of sanity at the time of the alleged offense. Carrion was never examined by the mental health experts. While preparing for trial, defense counsel learned that the mental health evaluations were never conducted and presented a written motion for continuance based on the lack of mental health evaluations. At a hearing, the court denied a continuance, finding that Mr. Carrion had returned to school. The court concluded that if Carrion could “function in the community at that level, he should be here for trial.” Id. at 564. Counsel for Carrion filed a pretrial petition for writ of prohibition, which this court treated as a petition for writ of certiorari and granted. We noted that under Florida Rule of Criminal Procedure 3.210, there is no discretion on the part of the trial court once it makes the determination that there are reasonable grounds to believe that a defendant is not mentally competent. The court must conduct a competency hearing, and the failure to hold such a hearing deprives the defendant of his constitutional right to a fair trial, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. We held that the judge’s subsequent extemporaneous evaluation of competency based on Carrion’s return to school was insufficient to ensure that Carrion was not deprived of his due process right to a fair trial.

It appears from Carrion that if the trial court is made aware by a motion for continuance that a competency hearing has not been conducted, the trial should not proceed until the competency hearing is conducted. Cf. Sledge v. State, 871 So.2d 1020 (Fla. 5th DCA 2004) (once defendant is found to be incompetent, court cannot proceed to trial until formal competency hearing is conducted to determine restoration of competency). If appellate counsel had raised the lack of a full evaluation and competency hearing on appeal, it is likely that the conviction and sentence would have been reversed. Cf. Harris v. State, 864 So.2d 1252 (Fla. 5th DCA 2004).

The State takes the position that the decision to deny the requested continuance based on the lack of a second evaluation is simply a question of whether the trial court abused its discretion in denying a continuance and urges that the trial court cannot be faulted if defense counsel failed to provide an adequate basis to support the need for further evaluation. However, once the trial court enters an order appointing experts upon a reasonable belief that the defendant may be incompetent, a competency hearing must be held. We cannot determine why no hearing took place on September 12, 2003, the date on which the hearing was scheduled, or why the case was originally called for trial on August 25, 2003, a date prior to the competency hearing. For whatever reason, petitioner apparently was not examined by the second mental health expert, and a competency hearing was never held. When the matter was raised, the judge simply denied the motion for continuance. Based on what has been presented to us, it appears to have been ineffective assistance of appellate counsel not to raise this issue on appeal. A copy of this opinion shall be filed with the trial court and treated as a notice of appeal. Parker v. State, 906 So.2d 1273 (Fla. 5th DCA 2005).

PETITION GRANTED.

SHARP, W., and LAWSON, JJ., concur.

      . This case is unlike Bradshaw v. State, 744 So.2d 1095 (Fla. 5th DCA 1999), in which there is no indication that competency proceedings under Rule 3.210 had been invoked.


text:
    Robert A. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-205.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 6, 2006.

      Robert A. Robinson, Bonifay, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

Robert A. Robinson seeks to invoke this Court’s jurisdiction by virtue of the all writs provision found in article V, section 3(b)(7), of the Florida Constitution, by filing a ‘Writ of Habeas Corpus Under Jurisdictional Defect Act.” Our review of Robinson’s petition demonstrates that his petition is merely an attempt to “bypass the trial court and raise post-conviction claims directly in the appellate court.” Maddox v. State, 813 So.2d 138 (Fla. 5th DCA 2002) (dismissing petition to invoke all writs jurisdiction where grounds raised should have been brought on direct appeal or in a prior motion for postconviction relief).

Robinson has previously filed at least one motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court denied that motion and this Court affirmed on appeal. See Robinson v. State, 827 So.2d 1014 (Fla. 5th DCA 2002) (Table). Robinson also filed an original jurisdiction petition for writ of habeas corpus, which this Court denied on November 23, 2004. See Robinson v. State, 5D04-3624 (Fla. 5th DCA Nov. 23, 2004).

Robinson’s petition raises two alleged “jurisdictional defects.” First, Robinson alleges that his conviction should be reversed because the charging document was not signed by a duly designated assistant state attorney. This issue could and should have been raised in a motion to dismiss, and then on direct appeal. Further, in the postconviction context, this issue could and should have been raised in Robinson’s rule 3.850 motion. See Fla. R.Crim. P. 3.850(a)(2). Moreover, a review of this Court’s records demonstrates that this is the same issue that Robinson raised in his previous unsuccessful petition for writ of habeas corpus, which this Court denied in case no. 5D04-3624.

The other jurisdictional defect alleged by Robinson relates to what he characterizes as the State’s failure to charge all instances of sexual battery at one time. Robinson’s argument appears to be that the charging document failed to include, as a specific charge, the lesser included offense of attempted sexual battery of a child under 12, for which he was convicted in count II. This claim is without merit. See Fla. R.Crim. P. 3.510(a). If the claim had merit, it too could and should have been raised on direct appeal or in a motion for postconviction relief.

As the two-year limitation period for filing a rule 3.850 motion has expired, it appears that Robinson is utilizing the all writs argument in an attempt to circumvent the rule’s limitation period. We, therefore, dismiss Robinson’s petition.

PETITION DISMISSED.

ORFINGER, TORPY and LAWSON, JJ., concur.

      . Article V, section 3(b), of the Florida Constitution relates solely to the jurisdiction of the Supreme Court of Florida. Presumably, Robinson's intent is to invoke this Court's all writs jurisdiction pursuant to article V, section 4(b)(3). .

      . See Fla. R.Crim. P. 3.850(b).


text:
    Jon Christian PETERSON, Jr., Appellant, v. CITY OF WINTER PARK, Appellee.
    No. 5D05-213.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 7, 2006.
    Jon C. Peterson, Jr., Winter Park, pro se.
    James E. Cheek, III, of Winderweedle, Haines, Ward & Woodman, Winter Park, for Appellee.
   PER CURIAM.

We treat this appeal as a Petition for Writ of Certiorari and deny the petition. The matter is moot and no purpose could be served by this Court ruling on the issues presented in this appeal.

PETITION DENIED.

PLEUS, C.J., SHARP, W. and TORPY, JJ., concur.


text:
    Jack M. BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0252.
    District Court of Appeal of Florida, First District.
    March 3, 2006.
    Rehearing Denied April 13, 2006.

      Jack M. Bennett, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. This dismissal is without prejudice to appellant’s right to file a petition for belated appeal. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

VAN NORTWICK, HAWKES and THOMAS, JJ., concur.


author: KAHN, C.J.

text:
    Hector MURILLO, Appellant, v. TRI-STATE EMPLOYMENT SERVICES, INC., and Travelers Insurance Co., Appellees.
    No. 1D05-1978.
    District Court of Appeal of Florida, First District.
    March 3, 2006.
    Rehearing Denied April 10, 2006.
    Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Jean Kneale and Steven H. Preston of Hicks & Kneale, P.A., Miami, for Appellee Travelers.
   KAHN, C.J.

Appellant seeks review of a final order granting fees to Appellee, Travelers Insurance Co., pursuant to section 440.32(2), Florida Statutes (2002). That statute provides:

If the judge of compensation claims or any court having jurisdiction of proceedings in respect to any claims or defense under this section determines that the proceedings were maintained or continued frivolously,' the cost of the proceedings, including reasonable attorney’s fees, shall be assessed against the offending attorney. If a penalty is assessed under this subsection, a copy of the order assessing the penalty must be forwarded to the appropriate grievance committee acting under the jurisdiction of the Supreme Court. Penalties, fees, and costs awarded under this provision may not be recouped from the party.

Appellant raises three points: (1) the JCC lacked jurisdiction to award fees under this statute because Appellant had served a Notice of Voluntary Dismissal as to Travelers; (2) the evidence was not sufficient to support the JCC’s award of fees; and (3) the JCC abused his discretion in allowing Travelers’ witnesses to testify at the evidentiary hearing on attorney’s fees. We affirm the latter two points without further discussion.

We also find no merit to Appellant’s first point. According to Florida law, “after a voluntary dismissal by a plaintiff the trial court does have jurisdiction to award attorney’s fees where the fees are authorized by statute or a contract between the parties.” Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So.2d 1136 (Fla. 4th DCA 1986); accord. Garcell v. Holder, 689 So.2d 1177, 1178 (Fla. 2d DCA 1997); Century Constr. Corp. v. Koss, 559 So.2d 611, 612 (Fla. 1st DCA 1990). Moreover, although Appellant served a Notice of Voluntary Dismissal as to Travelers, the claim pending before the JCC was never dismissed. “Any attempt to dismiss less than the entire action is a nullity, and does not terminate the court’s jurisdiction.” Perez v. Winn-Dixie, 639 So.2d 109, 112 (Fla. 1st DCA 1994). At all relevant times, the JCC here had jurisdiction over the claim, Appellant, and Travelers.

AFFIRMED.

LEWIS and POLSTON, JJ., concur.


author: SHEPHERD, J.

text:
    Ronald H. INGRAHAM, Appellant, v. TRAVELERS INDEMNITY COMPANY, etc., et al., Appellees.
    No. 3D03-1813.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Rehearing Denied April 6, 2006.

      Ronald H. Ingraham, in proper person.
    Hicks & Kneale, Mark Hicks, Miami, James H. Wyman, Fort Lauderdale, and Dinah S. Stein, Miami, for appellees.
    Before GREEN, FLETCHER, and SHEPHERD, JJ.
   SHEPHERD, J.

This case is before us on remand from the Florida Supreme Court. In Ingraham v. Travelers Indemnity Co., 875 So.2d 667 (Fla. 3d DCA 2004), this court per curiam affirmed the trial court’s dismissal of appellant’s amended complaint with prejudice. In our earlier decision, we relied upon Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002) (Aguilera I), which has since been quashed by the supreme court. See Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005) (Aguilera II). The Supreme Court therefore quashed our prior decision and remanded for reconsideration. See Grace v. Royal Indem. Co., 911 So.2d 1235 (Fla.2005). Appellant argues that Aguilera II affords him a cause of action against the Travelers Indemnity Company. We disagree and again affirm the dismissal of the plaintiffs complaint with prejudice.

In 1998, appellant, Ronald Ingraham, filed a workers’ compensation claim against his employer, Interval Holdings, Inc., seeking compensation for vocal laryngitis that he alleges he contracted as a result of his job-related duty of responding to telephone inquiries from Interval customers. Interval’s workers’ compensation insurer at the time was Travelers Indemnity Company. In 2002, Travelers settled the claim for a lump-sum payment of $5,000. In 2003, Ingraham sued Travelers. In his pro se amended complaint, Ingraham alleges that Travelers acted in bad faith toward him during the course of the claims process, and sought to plead causes of action against Travelers for waiver, estoppel, and “meritless defense.” Accepting the allegations of Ingraham’s amended complaint in a light most favorable to him, see Abrams v. Gen. Ins. Co., 460 So.2d 572, 573 (Fla. 3d DCA 1984), Ingraham’s bad faith cause of action is based upon allegations that Travelers violated section 626.9541(l)(i)3, Fla. Stat. (1998) by furnishing allegedly contradictory information in denial of claim forms furnished to him, ignoring evidence supporting his claim, and instructing Interval long after Ingraham’s termination “to run revised ... job ads” for the position held by him “which [explicitly] sought applicants ‘with the ability to handle a heavy call volume.’ ” Ingraham’s waiver and es-toppel claims are based, in substance, upon Travelers’ purported failure to respond or respond adequately to his claim; the “mer-itless defense” claim alleges that Travelers failed to raise a justiciable issue of either law or fact during the course of its resistance of Ingraham’s claim prior to the settlement. Ingraham has made it clear in his filings below and here that leave to amend would not assist him further in stating a cause of action against Travelers.

In Aguilera II, the Florida Supreme Court reaffirmed the long standing law of this state “that the [state’s] workers’ compensation legislation does immunize an insurance carrier for mere negligent conduct, simple bad faith and minor delays in payment....” Aguilera II, 905 So.2d at 93 (emphasis added). However, the Court also concluded that if during the course of the claims handling process where a workers’ compensation insurer commits an independent, intentional tort that is sufficiently separate, “subsequent to and distinct from the original workplace injury,” id. at 92, the immunity otherwise afforded to employer and insurer under the workers’ compensation statute’s exclusivity provisions, §§ 440.10, 440.11, Fla. Stat. (2000) does not pertain. Thus, in Aguil-era II, the Florida Supreme Court reversed a decision of this Court that ordered the trial court to dismiss Aguilera’s complaint with prejudice, holding that the insurance adjuster’s affirmative conduct inflicting damage on the claimant, including “actually blocking] receipt of prescription medication prescribed to [Aguil-era] by the hospital emergency physician” and “unilaterally cancelling] medical testing prescribed by [the workers’ compensation carrier’s] own physician,” id. at 96, was sufficiently outrageous, separate, subsequent to and distinct from the original workplace injury to state a cause of action against Inservices, Inc. The allegations made by Ingraham do not approach the exceptional circumstance indicated by the Florida Supreme Court, as illustrated by the facts of its Aguilera decision, where a separate cause of action may lie.

Affirmed.


text:
    Virgil Lynn MONTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4772.
    District Court of Appeal of Florida, Fourth District.
    March 8, 2006.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), rev. denied, 915 So.2d 1198 (Fla.2005).

GUNTHER, POLEN and MAY, JJ., concur.


author: REYES, ISRAEL U., Associate Judge.

text:
    John DeCHELLIS, Appellant, v. Pamela Lindner DeCHELLIS, Appellee.
    No. 4D04-1878.
    District Court of Appeal of Florida, Fourth District.
    March 8, 2006.
    Rehearing Denied April 25, 2006.

      Amy D. Shield of Amy D. Shield, Boca Raton, and Sullivan & Sullivan, Vero Beach, for appellant.
    Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellee.
   REYES, ISRAEL U., Associate Judge.

John DeChellis, (the former husband) appeals the entry of a final Qualified Domestic Relations Order (QDRO) rendered on March 24, 2004. For the reasons stated below, we reverse.

The trial court entered a QDRO directing the distribution of alimony to Pamela DeChellis (the former wife) from four accounts belonging to The Former Husband. Both parties agreed to the language of the QDRO, which tracked the language in the Final Judgment of Dissolution. Upon receipt of the QDRO, the benefit plan manager wrote to the former wife’s attorney with several concerns. She explained that one of the accounts had been liquidated and that a second account, the deferred compensation plan, was a non-qualified plan, and therefore, not subject to a QDRO. On January 2, 2004, the attorney for the former wife sent a revised QDRO to the trial court. The revised QDRO directed that the same amount of money be distributed from only the two remaining accounts. The trial court entered the revised QDRO without a hearing.

On March 11, 2004, the former husband’s attorney sent a letter to the trial court objecting to the entry of the QDRO on the basis that it materially altered the final judgment. In addition, counsel stated, in pertinent part, “this matter cannot be handled without having additional testimony and a hearing.” The trial court, by Hotmail and telephone, notified counsel for both parties to be present for a hearing on March 24, 2004. The court did not enter an order setting the hearing or stating its purpose and did not instruct the former husband’s attorney to file and send a written notice of the hearing in the form outlined in Florida Family Law Rule of Procedure 12.923. Thus, it appears from the record before us, that neither party nor the Clerk of the Court knew why the trial court was requesting the presence of the attorneys at that time.

On March 24, 2004, during the subject hearing, and after being informed that no motion was pending, the court inquired as to the reason for the hearing. After explaining the situation involving the QDRO, the former husband’s attorney objected to the hearing taking place noting that he had not been made aware of its purpose and adding that his client was away on vacation. Instead of rescheduling the hearing, the trial court entered a new QDRO, which is the subject of this appeal.

Florida Family Law Rule of Procedure 12.090 states that time computations shall be governed by Florida Rule of Civil Procedure 1.090. Section (d) of that rule mandates that a copy of the notice of hearing on a motion be “served a reasonable time before the time specified for a hearing.” Fla. R. Civ. P. 1.090(d). Due process requires notice so as to reasonably convey the required information affording a reasonable time for those interested to make their appearances with due regard for the practicalities and peculiarities of the case. Mullane v. Cent. Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); see also Fla. Fam. L.R.P. 12.923. General notice that a hearing might be held is not adequate to advise parties that a hearing has been scheduled so the parties may appear and address the court. Special’s Trading Co. v. Int’l Consumer Corp., 701 So.2d 422 (Fla. 4th DCA 1997). Parties are entitled to notice of entry of a final judgment so they have an opportunity to be heard in opposition to its entry. Without an opportunity to be heard, a party is deprived of his due process rights. Id. at 423.

Because the effect of a QDRO is to produce a final result, adequate notice becomes even more imperative. Butts v. Hegmann, 705 So.2d 1007 (Fla. 4th DCA 1998) (the notice required for any proceeding which may produce a final result is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections). Here, there was no pending motion. Even if the court had treated the former husband’s letter as a motion, proper notice of the hearing would still have been required. Because the parties were not given adequate notice of the hearing, the former husband was not prepared for what transpired and was thus deprived of his due process rights to present arguments in opposition to entry of the QDRO.

Accordingly, the QDRO entered on March 24, 2004 is vacated. The case is remanded for the trial court to conduct an evidentiary hearing prior to the entry of a new or the same QDRO only after all interested parties are provided with adequate notice as stated herein. Based on this decision, we decline to address the substantive issue of whether the QDRO fails to conform with the final judgment.

Reversed and Remanded with Directions.

STONE and KLEIN, JJ., concur.

      . The term "qualified domestic relations order” means any judgment which relates to the provision of alimony made pursuant to State domestic relations law creating or recognizing the existence of any alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable to a participant under a deferred compensation plan. 26 U.S.C. § 414(p). This is the Internal Revenue Service's approved method by which a benefits plan manager is permitted to distribute funds from those accounts subject to the QDRO pursuant to a State court’s final judgment awarding alimony.

      . Although the record is not clear, this appears to be electronic mail.


author: SILBERMAN, Judge.

text:
    Ulysses BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5395.
    District Court of Appeal of Florida, Second District.
    March 10, 2006.
    Rehearing Denied April 18, 2006.
   SILBERMAN, Judge.

Ulysses Bailey appeals the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

In his motion, Bailey alleged that on April 26, 1999, in circuit court cases 98-CF-20212 and 98-CF-20235, he entered a no contest plea to multiple charges and was sentenced to community control followed by probation. He stated that on May 31, 2001, the trial court revoked his probation, sentenced him to prison, and awarded him eighty-six days’ jail credit.

Bailey claimed that he was entitled to an additional thirty days’ jail credit for time spent in county jail from March 27, 2001, to April 26, 2001. He asserted that on March 27, 2001, he was arrested in county court ease 00-CM-11151 but was released the next day on his own recognizance. However, despite his “release,” he was kept in the county jail because of his “probationary status” in circuit court cases 98-CF-20212 and 98-CF-20285. Bailey also alleged that his claim was apparent from the face of the trial court records and the county jail records. Thus, he presented a facially sufficient claim for relief under rule 3.800(a). See Whitt v. State, 807 So.2d 788, 788 (Fla. 2d DCA 2002).

In denying the claim, the postconviction court stated that the records showed Bailey was in county jail from November 20, 1998, to January 8, 1999, and from April 4, 2001, to May 31, 2001, and that he was entitled to and received eighty-six days’ jail credit in circuit court cases 98-CF-20212 and 98-CF-20235. The postconviction court attached to its order a State Credit Time Log prepared by the Hillsbor-ough County Sheriffs Office that reflects Bailey was in custody for eighty-six days from April 26, 2001, to May 31, 2001, and from November 20, 1998, through January 8, 1999. The court also attached the judgments and sentences that were entered on May 31, 2001, and criminal report affidavits that indicate Bailey was arrested on April 25, 2001, for violating his probation.

The documents attached to the postcon-viction court’s order do not support the court’s findings. If Bailey was incarcerated during the dates specified in the order, it appears he would be entitled to 108 days’ jail credit. Although the order identifies April 4, 2001, as the start of one of the periods of incarceration, the criminal report affidavits show Bailey was arrested on April 25, 2001, while the jail log reflects he was arrested on April 26, 2001. The documents do not reflect that Bailey’s incarceration began on April 4, 2001, and the documents do not conclusively resolve his claim that he is entitled to additional jail credit. Accordingly, we reverse with directions for the postconviction court to reconsider Bailey’s claim. If the postcon-viction court again denies relief, it shall attach to its order those portions of the record that conclusively resolve the claim.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . We note that jail credit issues involving disputed issues of fact are not appropriate for resolution on a motion filed pursuant to rule 3.800(a) and are matters that can only be resolved pursuant to rule 3.850. See Clifton v. State, 905 So.2d 1042, 1044 (Fla. 2d DCA 2005); see also Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002); Daniels v. State, 825 So.2d 499 (Fla. 2d DCA 2002). However, based on the limited record that is before this court, we cannot determine whether Bailey’s claim can be conclusively resolved based on the record documents.


author: HAZOURI, J.

text:
    Andre KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-274.
    District Court of Appeal of Florida, Fourth District.
    March 15, 2006.
    Rehearing Denied May 8, 2006.

      Emmanuel L. Simon, Lauderhill, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Andre Kelly was charged with two counts of robbery with a firearm and two counts of kidnapping while armed with a weapon. On May 3, 2004, Kelly entered a guilty plea as to all four charges. His plea was open to the court. The trial court conducted a thorough plea colloquy with Kelly prior to accepting his plea. At the end of the plea hearing, the trial court deferred sentencing Kelly and ordered a presentence investigation to be completed.

Approximately four months later, on September 9, 2004, another hearing was held, at which time Kelly told the trial court that he wanted to withdraw his plea because he felt he was coerced into pleading guilty when, in fact, he wanted to have a jury trial. Kelly maintained that he was coerced by his counsel and that he wanted to discharge him. The following colloquy occurred:

THE COURT: Mr. Kelly, for the record, the Court accepted your open plea on May 3rd, year 2004, and Mr. Melnick represents you privately retained by you, you did testify in the trial of your codefendants this week, and the only matter that was left in this case and that is left in this case at this point is the sentencing in your case.
Question is, you have told your attorney that you want to go ahead and withdraw your plea at this time?
THE DEFENDANT: Yes, ma’am.
THE COURT: What are the grounds? Why do you want to withdraw your plea?
THE DEFENDANT: Because I feel like I was coerced into doing something. I wanted to take it to trial all along, but I was coerced into somehow not taking it to trial and taking a plea.
THE COURT: You were coerced by Mr. Melnick? Is that who you’re maintaining coerced you?
THE DEFENDANT: Yes.
THE COURT: You want to fire Mr. Melnick at this time? Because I didn’t appoint him.
THE DEFENDANT: Yes.
THE COURT: You want to fire him?
The procedure will be as follows: Mr. Melnick has been discharged by his client and the Court is going to go ahead and accept that, because eventually the bottom line is that the Court is going to have to look at the transcript of the plea colloquy.
What happens then when I receive the change of plea, you’re representing yourself at this point. And since there’s nothing before the Court, I’m not going to appoint an attorney at this point because there’s nothing before the Court. So you’re going to have to put the reasons for your motion to vacate in writing.
How long do you think this is going to take you?
THE DEFENDANT: I’m going to do it as soon as I go back.
THE COURT: Okay. As soon as the Court receives your motion to vacate plea and the Court has an opportunity to review the transcript, the Court will make a determination as to whether the transcript and the record refutes your allegations. And if they’re not refuted by the record, then the Court might have to be — have to have an evidentiary hearing, at which point the Court, if you cannot afford an attorney, will appoint an attorney to represent you. But those are the steps.
You’re going to have to put in writing your motion and request. Understand something, Mr. Kelly, I don’t give you advice or anything like that, but you testified and everything you said can and will be used against you by the State Attorney’s Office if you decide to go to trial. None of the stuff that you said is protected in any way whatsoever. Ms. Tate can use it against you in any trial that you go forward with. And that’s something for you to think about if' that’s what you want to do. And I’ll have my JA calendar in a period of 10 days. If I have not received your motion, then I’ll go ahead and set a status to see if you have changed your mind. But that’s what you’re facing. You understand that?
THE DEFENDANT: Yes.

On the same day as this hearing, the trial court entered an order declaring Kelly indigent, but did not appoint counsel to represent Kelly in the preparation of his motion to withdraw his plea. In fact, without making any inquiry concerning Kelly’s self-representation, the trial court directed Kelly to prepare his own motion to withdraw his plea.

Subsequent to this hearing, Kelly sent a handwritten one-page letter to the court seeking to withdraw his plea for several reasons, one of which was that he had been coerced by his counsel to enter into the plea. The trial court ordered the state to file a written response to Kelly’s motion to withdraw and on December 7, 2004, the trial court summarily denied Kelly’s motion to withdraw his plea. Thereafter, the trial court appointed counsel for the purpose of representing Kelly at his sentencing hearing, which occurred on December 10, 2004. The trial court sentenced Kelly on all four counts to thirty years in prison to run concurrently.

Kelly asserts that he was denied his right to counsel at the time that he was required to file his motion to withdraw his plea because seeking to withdraw a plea prior to sentencing is a critical stage of the criminal proceedings. We agree and reverse.

This court has held in Roberts v. State, 670 So.2d 1042, 1045 (Fla. 4th DCA 1996), that a request to withdraw a plea before sentencing pursuant to Florida Rule of Criminal Procedure 3.170(f) is a critical stage of a criminal proceeding requiring effective assistance of counsel. We have also held in Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999), that a request to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(Z) is a critical stage of a criminal proceeding requiring effective assistance of counsel.

The state argues that because Kelly was merely directed to draft his own motion to withdraw and no hearing was scheduled that this is not a critical stage of a criminal proceeding and therefore Kelly was not required to have assistance of counsel. It is the state’s position that only when the court sets the motion to withdraw for an evidentiary hearing does a critical stage exist. We reject this argument and note as Judge Stevenson observed in Padgett:

[a] defendant’s right to effective assistance of counsel in the appeal of the issues which were presented in, and preserved by, the filing of a rule 3.170(0 motion would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.

Padgett, 743 So.2d at 73.

As in both Roberts and Padgett, the conflict between Kelly and his counsel arose from Kelly’s assertion of coercion by his counsel. The trial court in this case failed to even inquire whether Kelly desired to have the assistance of counsel at this critical stage of the proceedings. To then declare Kelly indigent and direct Kelly to represent himself in filing the motion to withdraw was error requiring reversal. We therefore reverse the conviction and remand to the trial court to appoint conflict-free counsel to represent Kelly in the drafting of a motion to withdraw his plea. Because we are directing the trial court to afford Kelly counsel for the drafting of his motion to withdraw his plea, we decline to address the merits of Kelly’s pro se motion to withdraw his plea. Upon the filing of the motion to withdraw, the trial court should then proceed to determine whether the state should respond and thereafter determine whether to summarily deny the motion to withdraw or hold an evidentiary hearing.

Reversed and Remanded For Proceedings Consistent With This Opinion.

WARNER and KLEIN, JJ., concur.


author: HAZOURI, J. KLEIN, J.,

text:
    Angelina May CARRIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2535.
    District Court of Appeal of Florida, Fourth District.
    March 22, 2006.
    Rehearing Denied April 27, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Angelina May Carrier appeals from the trial court’s denial of her request for credit for time served in the sheriffs drug farm program. Carrier contends that this is the functional equivalent of incarceration, thereby entitles her to credit for time spent in the drug farm facility.

This is the second time that this case has been before this court. Previously, in Carrier v. State, 894 So.2d 1041 (Fla. 4th DCA 2005), we remanded the case to the trial court to hold an evidentiary hearing to determine “whether the trial court erred in failing to award appellant, Angelina Carrier, credit for time served in’ the sheriffs drug farm program when it.imposed sentence upon her finding her in violation of probation.” Carrier, 894 So.2d at 1042.

Upon remand the trial court held an evidentiary hearing and concluded that Carrier was not entitled to credit for time served in the sheriffs drug farm program, because Carrier voluntarily entered the drug farm program as a part of her probation, and therefore, the time in the sheriffs drug farm program' did not constitute the functional equivalent of jail time. We affirm.

The issue in this case is controlled by the recent decision in State v. Cregan, 908 So.2d 387 (Fla.2005). In Cregan, the supreme court specifically noted, “[t]ime spent in the control release program, or in a drug rehabilitation facility as a condition of probation, is not the functional equivalent of timé spent in a county jail.” Cregan, 908 So.2d at 389 (citations omitted).

The Cregan case was before the supreme court on a certified conflict between this court and the Second and Third District Courts of Appeal. See Toney v. State, 817 So.2d 924 (Fla. 2d DCA 2002); Molina v. State, 867 So.2d 645 (Fla. 3d DCA 2004). In both Toney and Molina, the respective district courts held that the time a probationer spends in a post-conviction drug treatment facility is not creditable against a subsequent term in jail or prison. In approving both the Second and the Third District Courts of Appeal, and quashing this court’s decision in Cregan v. State, 884 So.2d 127 (Fla. 4th DCA 2004), the court held: “a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control.” Cregan, 908 So.2d at 391; see § 948.06(3), Fla. Stat. (2003). “This prohibition applies when a defendant spends time in a drug rehabilitation facility as a condition of his community control.” Cregan, 908 So.2d at 391.

Following the supreme court’s decision in Cregan, this court was faced with the issue of whether a defendant would be entitled to post-conviction jail-time credit for 116 days that the defendant spent in the CARP drug treatment program while on community control. See Comer v. State, 909 So.2d 460 (Fla. 4th DCA 2005). In affirming the trial court’s denial of jail-time credit for time spent in CARP, this court noted the supreme court’s opinion in Cregan and concluded that “[pjost-conviction treatment in a drug rehabilitation facility as a condition of probation or community control is contractual in nature, not a coercive deprivation of liberty. A trial court may not give jail credit for time spent on probation or community control.” Comer, 909 So.2d at 461 (citation omitted). In this case, Carrier, as part of her probation, voluntarily entered into the drug farm program and therefore there is no court ordered deprivation of liberty. As a result, Carrier’s stay in the drug farm program cannot be considered a sentence for which jail-time credit can be awarded.

Affirmed.

WARNER, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. I am writing to clarify that, because the appellant’s time in the drug farm was spent as a condition of probation, it was unnecessary to reach the issue of whether being in the drug farm is the functional equivalent of being in the county jail.

At the evidentiary hearing, Lieutenant Merkle, who runs the drug farm for the Palm Beach County Sheriffs Office, testified that the drug farm is located within the Palm Beach County Stockade, and that the stockade is a minimum security jail where inmates who are sentenced to serve time in the county jail are incarcerated. Lieutenant Merkle testified that participants in the drug farm are incarcerated and can be charged with escape if they leave. Drug farm participants are more restricted as to when they can watch television, and when they can have visitors, than non-drug farm inmates. They are required to wear uniforms, as are non-drug farm inmates, and only leave the stockade for work detail under the supervision of a corrections employee. The transportation to court for hearings is the same as for general inmates, in the company of deputy sheriffs.

The reason I am pointing this out is that Lieutenant Merkle testified that some drug farm inmates are incarcerated as part of their sentence, not as a condition of probation. An inmate in the drug farm who is serving part of a normal sentence, in my opinion, would be entitled to credit for time spent, because this drug farm is the functional equivalent of incarceration in the county jail. There is no evidence from which it could be found that drug farm inmates are guarded less, or restricted less, than regular county jail inmates.


author: KLEIN, J.

text:
    Magdy Z. BOUTROS and Barbara R. Boutros, Appellants, v. COMMUNITY REAL ESTATE SERVICES, INC., a Florida corporation, Appellee.
    Nos. 4D04-2984, 4D05-1249.
    District Court of Appeal of Florida, Fourth District.
    March 22, 2006.
    Rehearing Denied April 25, 2006.

      Keith A. Seldin of the Law Offices of Keith A. Seldin, P.A., Jupiter, for appellants.
    Scott E. Tuckman of Navon & Lavin, P.A., Fort Lauderdale, for appellee.
   KLEIN, J.

The trial court found, after a non-jury trial, that the appellee real estate broker was entitled to a commission for finding a buyer for the sellers’ property. The sellers appeal because the offer obtained by the broker did not conform to their offer to sell. We reverse.

The sellers owned two separate buildings at one location, containing a total of ten rental apartments. They signed a listing agreement with the broker, and the agreement provided that a commission would be due if the seller refused an offer at the price and terms stated in the listing agreement.

The broker then produced a buyer; however, the contract provided that the sellers would deliver the property as “ten separately deeded condominium units.” Although the broker submitted two more contracts from the same buyer, each of them suffered from the same deficiency as the first one, containing the requirement that the rental apartments be deeded as condominium units. After the sellers refused to sign the third contract, the prospective buyer lost interest and the broker sued for a commission, contending that it had produced a ready, willing and able buyer. The trial court found in favor of the broker and the sellers appeal.

There is no evidence in the record that the apartments were owned as condominiums or that the apartments could have been converted into condominiums by the sellers in order to meet the terms of the offer produced by the broker. The trial court, although it made findings of fact, did not address the discrepancy between the conveyance described in the buyer’s offer, and the condition of the title in the sellers’ offer. The broker does not assert that the sellers could have satisfied the title requirement in the offer, but rather argues that the buyer had no concern as to whether these apartments were condominiums or not. The buyer, according to the broker, was willing to accept title in the form in which it existed. That position is in fact supported by some evidence introduced by the broker at trial; however, that evidence did not establish that this was understood by the buyer and sellers when the offer to buy was submitted to the sellers. The broker has not furnished us with any authority that this substantial difference between what the sellers owned, and what the offer required them to convey, could be rectified by testimony as to the buyer’s intent.

We accordingly reverse the judgment, as well as the order awarding attorney’s fees, and remand for entry of a judgment in favor of the sellers. We also authorize the trial court to award attorney’s fees for the trial court litigation to the sellers, as prevailing parties under the listing contract.

WARNER and HAZOURI, JJ., concur.


text:
    Lonnie J. BALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0946.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Lonnie J. Ball, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

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

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Roger HUGHES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0610.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Roger Hughes, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

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

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Timothy STIDHUM, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5269.
    District Court of Appeal of Florida, First District.
    March 29, 2006.
    Appellant, pro se.
    Louis A. Vargas, General Counsel; Charlie Crist, Attorney General; Warren James Pearson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s motion to dismiss, as well as the appellant’s response thereto, the Court has determined that the lower tribunal’s October 5, 2005, order is not an appealable order. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005). Accordingly, the appellee’s motion to dismiss is granted and the appeal is hereby dismissed for lack of jurisdiction. In light of the dismissal, the appellant’s Motion to Substitute Initial Brief, filed on February 6, 2006, is hereby denied as moot.

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


text:
    Stacy SARNOFF, Appellant, v. David DAILY, Appellee.
    No. 4D04-4248.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, and Jonathan S. Root of Graner, Root & Heimnovies, P.A., Boca Raton, for appellant.
    Joel M. Weissman of Weissman & Yaffa, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Stacy Sarnoff, appeals from the trial court’s final judgment of paternity, child support, and timesharing. We affirm in all respects, except we reverse that part of the judgment requiring any increases in child support payments to be placed in a trust on behalf of the child and controlled by the father.

In the October 2004 paternity judgment, the court designated the mother the primary residential parent and the father the secondary residential parent, and both parents were awarded shared parental responsibility. The father was ordered to pay the mother $1,662 in monthly child support. The court also ordered the father’s accountant to determine any increases in child support should the father’s income in any year be greater so as to cause a percentage difference greater in child support. Moreover, the court required that the increases in child support “be placed in a trust in the name of the father on behalf of the child to be under the total supervision of the father on behalf of the child.” The father was awarded “total authority” over the trust, which was to be used primarily for the child’s education and medical needs “at the father’s discretion.”

The mother argues on appeal that the trial court’s decision to impose such a trust is error and contrary to the Supreme Court’s decision in Finley v. Scott, 707 So.2d 1112 (Fla.1998). We agree. Similar to this case, Finley involved a paternity action. The father filed a petition in the probate division of the circuit court for the appointment of a guardian of the property of his minor child. The trial court approved the father’s proposed guardian and declined to honor the preference of the mother in the appointment of the guardian because evidence • was presented that a large percentage of the minor’s funds were being used by the mother. The trial court also ordered the father to pay $2,000 in child support to the mother and an additional award of $3,000 per month in child support to the guardian of the property. The mother appealed the final judgment, arguing that the trial court had no authority to require any of the support payment to be paid into a guardianship trust. The Supreme Court disagreed, and concluded that the trial judge acted within his authority in ordering that a portion of the money not needed for the child’s immediate custodial maintenance, or “good fortune award,” be paid to the legally appointed guardian of the child’s property. The court reasoned that once the probate court determined a need for a guardianship of the property, then the trial court, in the support proceeding, could use the guardian to protect the portion of the child support payment that the trial court determined pursuant to section 61.30 was not needed for the child’s day-to-day custodial expenses.

However, the court made it clear that “only when the necessity for a legal guardianship has been proven and a legal guardian appointed by the probate court pursuant to chapter 744 can the trial court use a guardian to protect the minor’s assets.” The court further explained that “the trial court is not to order any portion of the child support paid into a trust unless a legal guardian has been appointed.”

Here, the trial court’s paternity judgment requires that increases in child support payments be paid into a trust under the father’s control and supervision. However, The court’s holding in Finley clearly requires that a legal guardian be appointed by the probate court before “any portion” of the child support is paid into a trust. Therefore, according to Finley, we conclude that the trial court abused its discretion by establishing a trust for child support without first appointing a legal guardian.

Thus, we reverse that part of the paternity judgment requiring future increases in child support to be paid into a trust under the father’s control. We affirm the trial court’s judgment in all other respects.

Affirmed in Part, Reversed in Part.

GUNTHER, POLEN and MAY, JJ., concur.