author: BROWNING, C.J. WOLF, J., THOMAS, J., PER CURIAM.

text:
    G.S. and B.S., maternal grandparents of I.S. and C.S., children, Appellants/Cross-Appellees, v. T.B. and E.B., paternal grandparents, Appellees/Cross-Appellants.
    No. 1D06-5264.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Order Denying Rehearing and Rehearing En Banc and Granting Certification Nov. 20, 2007.
    Rehearing Denied Dec. 17, 2007.

      Bryan S. Gowdy and John S. Mills of Mills & Creed, P.A., Jacksonville, for Appellants/Cross-Appellees.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appel-lees/Cross-Appellants.
   BROWNING, C.J.

Disposition of this appeal compels this court to answer a question of first impression:

Did the trial court have the discretion to deny the petition for adoption of I.S. and C.S. (children), orphans, filed by G.S. and B.S. (Appellants, and the children’s maternal grandparents), when resisted by T.B. and E.B. (Appellees, and the children’s paternal grandparents), after the trial court determined that Appellants are fit and proper persons to rear the children?

The trial court concluded that it did and denied the Appellants’ petition for adoption, but granted them primary custody of the children and appointed them guardians of the children’s person. Also, the trial court, on Appellees’ guardianship petition, appointed them as the guardians of the children’s property and ordered that Ap-pellees were to have liberal and frequent visitation with the children; if the parties were unable to agree upon a visitation schedule, they were ordered to follow the standard visitation guidelines for the Fourth Judicial Circuit. Appellants seek reversal of that ruling, alleging that the trial court abused its discretion by not entering a final judgment of adoption of the children after finding that Appellants are fit and proper persons to rear the children. We disagree and affirm.

Adoption is strictly controlled by statute, as it did not exist as a part of our adopted common law. See In re Estate of Levy, 141 So.2d 803, 805 (Fla. 2d DCA 1962). Chapter 63, Florida Statutes, controls adoption in Florida. For this appeal the controlling provisions are:

It is the intent of the Legislature that in every adoption, the best interest of the child should govern and be of foremost concern in the court’s determination. The court shall make a specific finding as to the best interest of the child in accordance with the provisions of this chapter.
In all matters coming before the court under this chapter, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person to be adopted.

§ 63.022(2) & (4X1), Fla. Stat. (2006).

JUDGMENT. — At the conclusion of the hearing, after the court determines that the date for a parent to file an appeal of a valid judgment terminating that parent’s parental rights has passed and no appeal, pursuant to the Florida Rules of Appellate Procedure, is pending and that the adoption is in the best interest of the person to be adopted, a judgment of adoption shall be entered.

§ 63.142(4), Fla. Stat., (2006).

We conclude from these provisions that in adoption proceedings, the legislature vested broad discretion in the trial courts of this state to determine the best interest of children sought to be adopted, and did not limit the traditional trial court’s discretion, as maintained by Appellants. Here the trial court heard extensive testimony relating to the children’s best interest and concluded their best interest compelled that the adoption should be denied. We cannot hold that this is an abuse of discretion.

We do not take lightly the compelling argument advanced by Appellants that a permanent family unit established by the adoption process is a highly desirable goal and, in most cases, advances the best interest of the children sought to be adopted. We merely hold that Chapter 63 does not require a trial court to enter a final judgment of adoption upon a determination that the persons seeking adoption are fit to rear the child, to the exclusion of other factors that impact the child’s best interest and might dictate, in the discretion of the trial court, a disposition other than adoption. If a trial court’s discretion is to be limited, as Appellants maintain here, it must be done by the legislature, not by this court.

AFFIRMED.

WOLF, J., Concurs With Opinion.

THOMAS, J., Dissents With Opinion.

WOLF, J.,

Concurring.

I concur in the decision reached by the majority because the trial court has the obligation to determine the best interests of the child in deciding whether to grant an adoption. I write because I believe Judge Browning’s opinion and the dissent have mischaracterized the issue in this case. I also believe the dissent’s reliance on Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998), and Beagle v. Beagle, 678 So.2d 1271 (Fla.1996), is misplaced.

The focus of this case is the trial court’s finding that it was not in the best interest of the children to be permanently adopted by the maternal grandparents who were unwilling to allow reasonable .visitation with the paternal grandparents. The majority opinion misstates the issue before this court on page 2, when it states that the trial court determined that appellants are fit and proper persons to rear the children. The dissent argues that “the trial court denied adoption solely to create visitation rights for grandparents where none exists in law.” Both of these statements focus on the grandparents’ rights rather than the trial court’s proper concern that the actions of the maternal grandparents were not in the best interest of the children.

The gist of the trial court’s decision was that the maternal grandparents were unfit to adopt these children because they were unreasonably denying visitation with the paternal grandparents. The trial court specifically found it is “in the best interest of the minor children to enjoy the love and affection and involvement of all their grandparents in their lives no matter who maintains their primary residence.” This is not an unreasonable conclusion based on these children having recently lost both their real parents.

The basic reasoning of Von Eiff and Beagle is that the State (through the court) has no business intruding on an existing parental relationship absent a showing of harm to the child (e.g., dependency). In the instant case, no parental relationship exists. The parties are seeking the assistance of the court to create a legal relationship through adoption. Under these circumstances, the court does and should have broad discretion to determine the best interests of the children. It was those best interests which the court determined were being ignored by the prospective adopters based on their behavior toward the other grandparents.

THOMAS, J.,

Dissenting.

I respectfully dissent. The trial court’s ruling denying the adoption petition and granting a mixed guardianship denies two young children the opportunity to have fit and caring parents, based only on one reason: to guarantee visitation rights for Appellees, the children’s paternal grandparents, who did not seek to adopt the children. Thus, the trial court denied adoption solely to create visitation rights for grandparents, where none exists in law. See Von Eiff v. Azicri, 720 So.2d 510, 511 (Fla.1998) (holding that section 752.01(l)(a), Florida Statutes (1993), is unconstitutional, which permits grandparent visitation when the court determines it is in the child’s best interests and one or both of the child’s parents are deceased, and explaining that grandparents have no legal right at common law to visit their grandchildren when the child’s parents oppose the visitation). This directly conflicts with Florida’s public policy preference for permanent family relationships and, in my view, is an abuse of discretion. See § 63.022(3), Fla. Stat. (2006). It is never in a child’s best interest to deprive him or her of appropriate adoptive parents solely to deprive those prospective parents of the parental authority granted under the Constitution. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (explaining that the Due Process Clause of the Fourteenth Amendment provides heightened protection against government interference with the parents’ liberty interest in the care, custody, and control of their children). Accordingly, I would reverse with directions to vacate the guardianship orders and grant the adoption petition.

Facts

. The children became orphans at a young age following their parents’ deaths. During the two years after their mother’s death, but before their father’s death, the children spent much of their time in Appellants’ home with Appellants performing most child rearing duties.

Almost immediately after their father’s death, Appellants, the maternal grandparents, sought adoption. Appellees, the paternal grandparents, then petitioned to become the children’s guardians. After consolidating the petitions, the court found that both Appellants and Appellees would make excellent caregivers. It also found that the children’s father wanted Appellants to raise his children, should he be unable to raise them, but found that it would be “in the best interests of the minor children to enjoy the love, affection and involvement of all their grandparents in their lives, no matter who maintains their primary residence.” The court was concerned with an adoption’s finality and did not trust Appellants’ testimony that they would permit Appellees to be involved in the children’s lives if the adoption were granted; therefore, it granted a mixed guardianship, with Appellees receiving “liberal and frequent visitation.”

Analysis

I acknowledge that the trial court has the discretion to determine whether Appellants’ adoption is in the children’s best interests; however, as in other legal matters, a trial court’s discretion is not unlimited. For example, a trial court’s discretion when making evidentiary rulings is limited by the evidence code and applicable case law. McCray v. State, 919 So.2d 647, 648 (Fla. 1st DCA 2006). Similarly, in determining an adoption petition, I believe a trial court’s discretion is limited by public policy constraints and the parents’ constitutional right to make child rearing decisions without state interference. Therefore, once the trial court determined that Appellants would be fit parents, I do not believe it had discretion to deny the petition solely to ensure that Appellees had visitation rights, especially in light of its factual finding that the children’s father wanted Appellants to raise the children. This conflicts with Florida’s public policy and a parent’s constitutional rights.

Under Florida law, permanency and adoption are preferred. § 63.022(l)(a), Fla. Stat. (2006) (“The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner”). The adoption statutes are intended “to provide to all children who can benefit by it a permanent family life[.]” § 63.022(3), Fla. Stat. (2006). Further, in the context of a child’s placement in the dependency system, adoption is preferable to guardianship. § 39.621(2), Fla. Stat. (2006).

The order here granting a mixed guardianship is even more troubling because it ensures judicial entanglement in the children’s lives until they reach majority. Under the guardianship statutory provisions, Appellees may challenge Appellants’ child rearing decisions, such as where the children attend school or whether they will undergo surgery, with the court resolving any dispute. See, e.g., § 744.3715, Fla. Stat. (2006) (“At any time, any interested person ... may petition the court for review alleging that the guardian is not complying with the guardianship plan or is exceeding his or her authority under the guardianship plan and the guardian is not acting in the best interest of the ward.”). The trial court’s order ensures that every significant child rearing decision, normally made by parents, can be made by the court. This conflicts with the constitutional principle that parents have a fundamental right to raise their children free from state interference. See Troxel, 530 U.S. at 65-66,120 S.Ct. 2054.

Appellees assert that a mixed guardianship is the only way they can continue to have a meaningful and legally enforceable role in their grandchildren’s lives. While Appellees and the trial court might believe that a guardianship is the preferable outcome, such a temporary arrangement is entirely inconsistent with the legislature’s mandate that establishing a permanent family is the paramount consideration in adoption. See § 63.022(3), Fla. Stat. (2006). In addition to its direct conflict with legislative directives, the trial court’s order conflicts with a parent’s fundamental right to make child rearing and educational decisions, which includes the right to deny grandparent visitation. Von Eiff, 720 So.2d at 513, 518; see also Beagle v. Beagle, 678 So.2d 1271, 1272 (Fla.1996) (holding the state lacks a compelling interest to justify mandating grandparent visitation rights over a parent’s objection).

In my view, the trial court’s ruling denying adoption cannot be based on the sole rationale, however laudable, that granting an adoption authorizes the adoptive parents to potentially deny grandparent visitation, as natural parents have the right to do. Treating natural parents differently from adoptive parents is specifically rejected by section 63.032(2), Florida Statutes (2005) (defining adoption as “the act of creating the legal relationship between parent and child where it did not exist, thereby declaring the child to be legally the child of the adoptive parents and their heir at law and entitled to all the rights and privileges and subject to all the obligations of a child born to such adoptive parents in lawful wedlock.”).

The concept of a “family as a unit with broad parental authority over minor children” is deeply rooted in American jurisprudence and Western civilization. Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). A permanent family is the bedrock of human society and the foundation of our traditions. See Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (explaining that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”). Thus, the legislature has established permanency as the primary goal when considering the best interests of children in family law proceedings.

Because the trial court’s ruling deprived the children of a permanent family in order to give Appellees the right to participate in the children’s upbringing, when they did not seek to incur the obligations of parenthood, I respectfully dissent. In my view, this court should vacate the guardianship orders and reverse the order denying the adoption petition.

OPINION ON APPELLANTS’ MOTION TO CERTIFY QUESTIONS OP GREAT PUBLIC IMPORTANCE, FOR REHEARING EN BANC, AND FOR REHEARING

PER CURIAM.

This cause is before us on Appellants’ Motion to Certify Questions of Great Public Importance, For Rehearing En Banc, and For Rehearing. We deny the Motion For Rehearing En Banc and For Rehearing, but grant the Motion to Certify Questions of Great Public Importance. We certify the following question as a matter of great public importance:

DOES A TRIAL COURT ABUSE ITS DISCRETION GRANTED BY CHAPTER 63, FLORIDA STATUTES, WHEN IT DENIES AN ADOPTION PETITION FILED BY THE ORPHANED CHILD’S MATERNAL GRANDPARENTS, WHO ARE DEEMED TO BE FIT PROSPECTIVE PARENTS, BASED ON THE COURT’S DETERMINATION THAT DENYING THE PETITION IS IN THE CHILD’S BEST INTEREST FOR ENSURING THE PATERNAL GRANDPARENTS’ INVOLVEMENT IN THE CHILD’S LIFE?

BROWNING, C.J., WOLF and THOMAS, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ISOL AUTO SUPPLY a/k/a Frank Auto and The Hartford, Appellants, v. Jorge DIAZ, Appellee.
    No. 1D07-1308.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Rehearing Denied Dec. 13, 2007.

      H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.
   PER CURIAM.

Because the parties entered into a stipulated settlement agreement which acknowledged “that all issues are resolved except as to the amount of attorney fees and costs,” this appeal seeking review of an earlier nonfinal ruling which denied a fraud defense is dismissed. The settlement of a case renders it moot. See e.g., Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla.1995); Jones v. Champion, 675 So.2d 244 (Fla. 2d DCA 1996); Seslow v. Seslow, 625 So.2d 1248 (Fla. 4th DCA 1993). “Florida’s appellate courts reserve the exercise of judicial power for cases involving actual controversies.” Merkle v. Guardianship of Jacoby, 912 So.2d 595, 599 (Fla. 2d DCA 2005).

DISMISSED.

DAVIS, POLSTON, and ROBERTS, JJ., concur.


text:
    James D. ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1694.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Rehearing Denied Dec. 11, 2007.
    James D. Adams, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted and case number 1D05-4609 is hereby reinstated. The clerk of the circuit court is directed to return the record on appeal to this court within 20 days of the date of issuance of mandate in this cause. The Public Defender for the Second Judicial Circuit is hereby reappointed to represent Adams in case number 1D05-4609 and an initial brief shall be filed within 50 days of filing of the record in that case.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


author: STONE, J.

text:
    Sean CASEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1601.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Rehearing Denied Dec. 6, 2007.

      Sharon Lee Stedman, Orlando, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Following an evidentiary hearing, the trial court denied Casey’s rule 3.850 motion for post-conviction relief.

At the start of the evidentiary hearing, Casey’s post-conviction attorney informed the court that he intended to call an attorney as an expert witness to offer an opinion on whether trial counsel rendered ineffective assistance. The court announced that it would not allow Casey to call the expert/attorney witness. Casey’s attorney claimed the expert attorney’s testimony was necessary to prove trial counsel’s performance fell below that of a competent attorney. This is the primary issue we address on appeal.

Casey was convicted of premeditated murder and robbery with a deadly weapon. During the trial, Casey’s attorney considered, but elected not to raise, a voluntary intoxication defense notwithstanding evidence that Casey had been taking drugs prior to the killing and the availability of such a defense at that time. Casey claims this decision constitutes ineffective assistance of counsel. The record reflects the decision was one of strategy. We affirm.

At the evidentiary hearing, a forensic toxicologist testified that a person taking Ecstasy would respond in an “irrational way” and “impulsively.” On the night of the murder, Casey took Ecstasy, “Special K” (Ketamine), and marijuana. The expert said that a person taking this combination of drugs would “react to a given stimulus and it’s an impulsive response rather than a rational response.” Supposedly, if Casey took Ecstasy and Ketamine at three in the morning, he would be expected to be in the “impulsive” stage at 6:30 in the morning, approximately the time he killed the victim.

On cross-examination, the toxicology expert acknowledged that the drug user will have hallucinations and “may imagine certain things and then later refer to [them] as a memory but they’re not, they’re hallu-cinetic-hallucinogenic” thoughts. However, he could not point to any comments in Casey’s statement as constituting a hallucinogenic memory. Casey’s medical records were also introduced. He was a long time addict, who had been placed in eight to ten treatment centers since the age of twelve.

The record reflects substantial evidence that trial counsel considered a voluntary intoxication defense strategy, discussed it with the client and his father, and rejected it.

During the evidentiary hearing, Casey attempted to present the testimony of the criminal law expert and, again, the court denied the request. The defense expert was prepared to testify that, in his opinion, voluntary intoxication was Casey’s only reasonable defense. At no point did Casey’s attorney suggest the expert would testify as to the reasonableness of the investigation or any avenue of investigation not taken.

Casey’s trial counsel testified that he considered the voluntary intoxication defense based upon his investigation, and he knew that it was a legal defense to the crimes charged. However, it appeared to him by the time of trial, that voluntary intoxication would be an inappropriate defense to assert at the trial, as it would be detrimental to their primary claim that the victim made unwelcome sexual advances toward Casey and pushed him, at which point Casey “just snapped and he stabbed” the victim. Trial counsel did not believe Casey acted with premeditation. Instead, it was his theory that the killing was “something that happened spontaneously as a reaction to being pushed for homosexual activity that he didn’t want.”

On cross-examination, Casey’s post-conviction attorney showed trial counsel a letter from a Dr. Milo, who had reviewed Casey’s medical records and suggested a brain scan. Three months before the trial began, Dr. Milo suggested that a voluntary intoxication defense may be viable. Another doctor also had written that drug induced intoxication was indicated. However, trial counsel’s ultimate decision was that it was “not going to help us, it might hurt us, it is inconsistent with our presentation,” and the decision was reached jointly with Casey and his father.

The trial court decided Casey had failed to show ineffective assistance of counsel because, despite the expert’s disagreement with trial counsel’s strategy decision, “alternate courses were considered and rejected and trial counsel’s decision was reasonable.”

The question of whether a strategy or tactic is reasonable on a post-convietion relief proceeding is decided by the trial court as an issue of law. Provenzano v. Singletary, 148 F.3d 1327, 1331-32 (11th Cir.1998). “[I]t would not matter if a petitioner could assemble affidavits from a dozen attorneys swearing that the strategy used at his trial was unreasonable. The question is not one to be decided by plebiscite, by affidavits, by deposition, or by live testimony. It is a question of law to be decided by the state courts, by the district court, and by this Court, each in its own turn.” Id. at 1332. Provenzano was subsequently cited with approval by the 11th Circuit sitting en banc, in Freund v. Butterworth, 165 F.3d 839, 863 n. 34 (11th Cir.1999). We note that Provenzano was also followed in an unpublished opinion, People v. Burbridge, not reported in NW 2d, 2005 WL 1540482 (Mich.App.).

There is no due process or other violation in the trial court’s excluding expert testimony in the post-conviction evi-dentiary hearing.

Inquiries into strategic or tactical decisions challenged as ineffective assistance of counsel involve both a factual and a legal component. The question of whether an attorney’s actions were actually the product of a tactical or strategic decision is an issue of fact. By contrast, the question of whether the strategic or tactical decision is reasonable enough to fall within the wide range of professional competence is an issue of law not of fact.

Provenzano, 148 F.3d at 1330.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court clearly intended that reviewing courts give deference to counsel’s performance and try to eliminate the “distorting effects of hindsight.” Id. at 689, 104 S.Ct. 2052. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. The justices were concerned that failing to provide this deference would inevitably lead to a dual trial system of criminal justice, the first being the traditional criminal trial, and the second would involve trials concerning the unsuccessful defense. Id. at 690,104 S.Ct. 2052.

The “reasonableness” component of the first prong of Strickland, to show deficient performance, is whether no trial attorney would have made the same strategic decision because doing so failed to make the “adversarial testing process work.” Id. It is to this component that Casey wished to present expert testimony.

In Occhicone v. State, 768 So.2d 1037 (Fla.2000), the supreme court noted “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048. “Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.” Id.; see also Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995).

We recognize that Florida law provides that “[b]oth the performance and prejudice components of an ineffectiveness claim are mixed questions of law and fact.” Asay v. State, 769 So.2d 974 (Fla.2000). If each prong of the Strickland standard includes factual and legal questions, then it follows that the determination of whether the attorney made a strategic decision (meaning, understood the possible choices and purposefully took one as opposed to the other) is the factual portion, and the determination of whether that strategic decision was reasonable is the legal portion.

The factual portion of this prong involves the determination of what acts were taken by the trial attorney, what scenarios and laws were considered, and if the ultimate decision was purposefully made. Testimony is not required as to whether the actions taken were “reasonable,” as this is a matter of law to be made by the judge after consideration of the factual testimony.

The Supreme Court, in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), wrote the following concerning reasonableness in this context:

[OJur principal concern in deciding whether [counsel] exercised “reasonable professional judgment” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable.

Id. at 522-23, 123 S.Ct. 2527. Further, Wiggins relied on the following Strickland language:

‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’

Id. at 521-22, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052) (alteration in original); see also Lamarca v. State, 931 So.2d 838, 850 (Flá. 2006) (“We have long recognized that strategic decisions by trial counsel are ‘virtually unchallengeable.’” (quoting Downs v. State, 453 So.2d 1102, 1108 (Fla.1984))); Davis v. State, 915 So.2d 95, 115 (Fla.2005) (“[C]ounsel [i]s not ineffective in exercising his decision to discontinue further investigation into matters that were already known to him and that he had strategically determined should not be presented to the jury.”). Where, as here, the trial court determines that the trial attorney conducted a “thorough investigation of law and facts relevant to plausible options,” the trial court is free, as a matter of law, to conclude that the strategic decision was reasonable. Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (internal quotation marks and citation omitted).

In the instant case, if Casey was presenting the expert to comment on the reasonableness of the investigation, there are grounds for allowing this testimony. However, because the expert was asked to testify as to the reasonableness of the attorney’s strategic decision (or whether he or any other attorney would have made this same decision), it was not an abuse of discretion to exclude the testimony as irrelevant or to consider it speculative as infringing on the province of the court. We note that, although Casey’s brief on appeal does assert that trial counsel failed to thoroughly investigate Casey’s past history, the proffered expert testimony did not address this topic, and it was not argued to the trial court.

We have considered, and deem inappo-site, Julien v. State, 917 So.2d 213 (Fla. 4th DCA 2005), in which this court reversed the denial of a rule 3.850 motion, after an evidentiary hearing, wherein a criminal law expert testified. In that case, Julien entered a plea to felony theft and became subject to deportation proceedings. Julien argued that his trial attorney never informed him of the pre-trial intervention program (PTI). There, the expert testified that “an attorney must always investigate the possibility of the PTI program and advise the client about resolving the case through PTI.” Id. at 214. This court determined the failure to investigate and inform Julien about the PTI program was unreasonable and, thus, amounted to ineffective assistance of counsel. While this case might, initially, seem to stand for the proposition that expert testimony is permissible in a rule 3.850 motion eviden-tiary hearing, it appears that the expert testimony in question related to the investigation undertaken by the attorney, and not to whether the ultimate decision was reasonable.

In any event, we deem any error in this order to be harmless.

As to all other issues and arguments raised, we also find no reversible error or abuse of discretion. Therefore, the order is affirmed.

KLEIN and MAY, JJ., concur.

      . The offense was committed March 25, 1999, prior to the enactment of section 775.051, Florida Statutes, eliminating this defense.


author: CASANUEVA, Judge. KELLY, J.,

text:
    Kevin Dewayne POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-646.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 28, 2007.

      James Marion Moorman, Public Defender, and Robert D: Rosen, Assistant Public Defender, Bartow, for Appellant.
    Kevin Dewayne Powell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

In this Anders appeal from his judgment and sentence for felon in possession of a firearm, Kevin Dewayne Powell raised an issue of arguable merit in his pro se brief. Upon order from this court, Mr. Powell’s attorney briefed the following issue: whether the trial court erred in permitting the use of Mr. Powell’s statements at trial. After Miranda , warnings that Mr. Powell claims did not adequately inform him of his right to have counsel present during questioning, Mr. Powell told Tampa police detectives that he had purchased the firearm off the street and carried it for protection, in spite of the fact that he was a convicted felon. We hold that the warnings were deficient under the Fifth Amendment of the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Florida. We reverse Mr. Powell’s conviction and remand for further proceedings.

The issue in this case, as in the recent case of M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), is whether the warning given to Mr. Powell complied with Miranda. In M.A.B., our court considered the adequacy of this identical warning and was evenly divided in a seven-to-seven tie. Per Florida Rule of Appellate Procedure 9.331(a), “the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision.” In there was no prior panel decision; therefore, the evenly-divided en banc opinion simply affirmed the trial court’s decision and certified a question to the Florida Supreme Court. However, because M.A.B. lacked a majority, it is neither a binding decision nor a binding precedential opinion. See State v. McClung, 47 Fla. 224, 227, 37 So. 51 (Fla. 1904) (explaining that when a question of law is decided by an evenly divided court, the “judgment possesses no dignity as a judicial precedent” and it “carries on its face a badge which precludes any application” of it in the “future under the doctrine of stare decisis.”); Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003) (noting that “under the Florida Constitution, both a binding decision and a binding prece-dential opinion are created to the extent that” a majority of the court have joined in an opinion and a decision). Accordingly, this panel is free to address this issue.

We also note that because a majority of this court did not reach a decision on the adequacy of the Miranda warnings in M.A.B., an argument can be made that the supreme court will not have jurisdiction to answer the question we certified to it in that case. We recognize that at least one other district court faced a similar situation with an en banc tie vote and relied on the flexibility inherent in the appellate rules of procedure to address it at the district court level. Either way, because this court was evenly divided in M.A.B., we did not actually resolve the certified question and M.A.B. may be deficient for Florida Supreme Court review. The recent case of Speedway Superamerica LLC v. Dupont, 955 So.2d 533 (Fla.2007), demonstrates exactly such a scenario. Speedway Superamerica came before the Florida Supreme Court based on that court’s jurisdiction to review a question certified by the district court to be a matter of great public importance. The district court had sat en banc in Speedway Super-america, as in M.A.B. Although it initially accepted the case, the Florida Supreme Court ultimately concluded that it did not have jurisdiction to review Speedway Su-peramerica and dismissed the review proceedings. Id. at 534-35. Justice Pariente noted in her concurrence, “the constitution also requires that the [district] court ‘pass[ ] upon a question certified by it to be of great public importance.’” Id. (citing art. V section 3(b)(4)). Justice Pariente opined that it was “questionable” whether the district court had answered the question. Id. Because of our split in M.A.B., the en banc court did not answer the certified question.

The present case contains the identical Miranda warning that was involved in M.AB. See 957 So.2d at 1220. Because this case is being resolved by the assigned panel, we necessarily address the issue certified in M.A.B. Our determination will “pass upon” the certified question on this point of law.

In M.A.B., every judge of this court concurred in the certification of the following question of great public importance pursuant to Article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

We again certify the question as one of great public importance and, for the reasons set forth herein, answer the question in the affirmative, finding the warning is constitutionally deficient. Because the Miranda warnings given to Mr. Powell contain limiting language as to “before questioning” and the right to consult with a lawyer, we hold such warnings failed to comply with state and federal constitutional requirements to adequately inform the accused of his or her right to have an attorney present throughout interrogation.

STATEMENT OF THE FACTS

On August 10, 2004, Tampa Detectives Salvatore Augeri, Randy Estevez and other officers went to a residence in Tampa to investigate Mr. Powell. Shazeena West, Mr. Powell’s girlfriend, allowed the officers to enter her apartment. Mr. Powell was one of at least four adults present in the apartment when police arrived. He was in the upstairs hallway coming from near the southeast corner bedroom. The officers searched that bedroom and under the bed found a loaded nine-millimeter handgun. Mr. Powell was arrested and transported to Tampa Police headquarters where he was questioned after being advised of his rights under Miranda. According to police, Mr. Powell agreed to talk.

During the direct examination of Detective Augeri, prior to his testimony concerning statements that Mr. Powell allegedly made, defense counsel objected on the ground that the Miranda warning was invalid. The trial court allowed defense counsel to voir dire the witness. The subsequent testimony revealed that the standard police department Form 310 used during the interrogation of Mr. Powell did not explicitly indicate that he had the right to have an attorney present during questioning. Detective Augeri testified that he witnessed another officer read Form 310 verbatim to Mr. Powell. The written warning, which was introduced at trial as an exhibit, states as follows:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. Yon have the right to use any of these rights at any time you want during this interview.

A bench conference was held, and the court ruled that the recitation coneern-ing the right to an attorney before questioning was adequate. The detective then testified that Mr. Powell said the firearm was his and that he had purchased it on the street and carried it for protection, even though he was a convicted felon. Defense counsel renewed her objection to admitting Mr. Powell’s custodial statement. The trial court overruled this objection. Mr. Powell then testified in his own defense. He said that he did not live at the apartment on August 10, 2004, but he heard a commotion when the officers entered. He said he was handcuffed and taken into custody. He testified he did not know the gun was present under the bed because he only stayed at that address every once in a while. Mr. Powell was convicted and sentenced to ten years in prison.

ANALYSIS

Although decisional law has not prescribed talismanic warning language, we conclude the warning given to Mr. Powell did not comply with the dictates of Miranda and its progeny. Critical in this analysis is Miranda’s mandate that a suspect be told that he or she has the right to the presence of an attorney. This is the overarching right from which the right to talk to or consult with an attorney flows. Advising a suspect that he or she has the right “to talk to a lawyer before answering ... any of our questions” constitutes a narrower and less functional warning than that required by Miranda,

The Fifth Amendment to the United States Constitution specifies that no person “shall be compelled in any criminal case to be a witness against himself.” To ensure compliance with the protections of the Self-Incrimination Clause when a suspect has been deprived of freedom during a custodial interrogation, the Court identified four essential warnings in Miranda:

[1] [A suspect:] must be warned prior to any [custodial] questioning that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

384 U.S. at 479, 86 S.Ct. 1602.

Clearly, suspects must be specifically informed that they possess these constitutional rights before law enforcement officers may undertake any custodial questioning to solicit incriminating statements that will later be used against them in eourt. This case focuses on the third right — the right to the presence of an attorney — which “must be afforded to [suspects] throughout the interrogation.” Id. (emphasis added.) Due to the deficiency in the wording of the warning given to Mr. Powell, he was not unequivocally informed that he had the right to the presence of an attorney during questioning. Another district court has held that, although warnings need not be administered in the exact form set out in Miranda, the person in custody must be clearly advised of the right to have an attorney present not only before interrogation but during interrogation as well. Roberts v. State, 874 So.2d 1225, 1226 (Fla. 4th DCA 2004).

Our holding is derived not only from Miranda but also from the Court’s observations concerning that case in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Chief Justice Rehnquist, in his analysis of the underpinnings of the Miranda rule and the evolution of the law governing voluntariness and admissibility of a suspect’s confession, reiterated the constitutional bases for the voluntariness requirement. Prior to Miranda, such protections were historically premised on both the Self-Incrimination Clause and the Due Process Clause of the Fourteenth Amendment, but Miranda changed the focus of the Fifth Amendment inquiry. Dickerson, 530 U.S. at 438-34, 120 S.Ct. 2326. No longer was physical brutality or the “third degree” the major evil to be stemmed; by the time the Court decided Miranda in 1966, law enforcement departments, seizing advantage from the fact that “custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals,” had developed psychologically coercive practices to extract statements from suspects in custody. Id. at 435, 120 S.Ct. 2326 (quoting Miranda, 384 U.S. at 455, 86 S.Ct. 1602). Interrogators were trained to isolate the subject, create an atmosphere of domination, posit the guilt of the accused as a fact, and use various tactics to create hostility. Miranda, 384 U.S. at 450-451, 86 S.Ct. 1602. The Dickerson Court therefore again emphasized that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that a suspect’s Fifth Amendment privilege against self-incrimination will be obliterated. 530 U.S. at 435, 120 S.Ct. 2326.

Because the rule announced in Miranda is inextricably bound to a suspect’s Fifth Amendment privilege, the warnings have taken on constitutional dimensions. In order to guard against the unacceptable risk of violating a suspect’s privilege against self-incrimination, “the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution’s case in chief.” United States v. Patane, 542 U.S. 630, 639, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion of Thomas, J., joined by Rehnquist, C.J., and Scalia, J.). A concomitant disadvantage of the Miranda rule is that “statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and a guilty defendant go free as a result.” Dickerson, 530 U.S. at 444, 120 S.Ct. 2326.

In order to dispel the compulsion and coercion inherent in custodial surroundings, the Miranda rule requires the disclosure of important safeguards, including the presence of counsel to “insure that statements made in the government-established atmosphere are not the product of compulsion.” Miranda, 384 U.S. at 466, 86 S.Ct. 1602. The Court’s emphasis on the need for counsel’s presence could not have been stronger:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights.... Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

Id. at 469-70, 86 S.Ct. 1602 (citations omitted; emphasis added).

The warning that Mr. Powell received was constitutionally flawed because the right to talk to or consult with an attorney before questioning is not identical to the right to the presence of an attorney during questioning. Miranda requires that suspects be “clearly informed” of their right to have a lawyer with them during questioning. Id. at 471, 86 S.Ct. 1602. “[T]his warning is an absolute prerequisite to interrogation.” Id. at 472, 86 S.Ct. 1602. The purported safe harbor language — that Mr. Powell was informed of his “right to use any of these rights at any time ... during this interview” — simply cannot cure the deficiency because Mr. Powell was never informed that he had the right to have a lawyer with him at all times during his custodial interrogation.

Although there presently exists no talis-manic warning language, Miranda’s hallmark is the need for effective communication to a suspect of the basic constitutional right against self-incrimination, including the right to the presence of counsel. The ability to talk to a lawyer before answering questions, which Mr. Powell was told was his right, is derivative of his and every suspect’s greater right to have an attorney present at all times during custodial interrogation. That greater right was never unequivocally conveyed to Mr. Powell. Thus, the language used by the police department in this case does not rise to a functional equivalent of the required Miranda warning.

The Supreme Court’s position in Miranda was informed by the experience of law enforcement practices existing both before and at the time of the opinion. The Court concluded such interrogation techniques necessitated a protective constitutional rule. The necessity for this rule has been woven into our constitutional fabric. Dickerson, 530 U.S. at 431, 120 S.Ct. 2326. We measure and cut our position here from that same constitutional cloth. We fochs not on how the words might be parsed afterwards, but rather on the contemporaneous character of the informational warning: whether, at the moment given, the language clearly communicated the right to have an attorney present during questioning, as required by Miranda. In our view, when a less than complete warning is given to a suspect in custody, it tears at this constitutional fabric.

Over a century ago, Oliver Wendell Holmes wrote:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

The Common Law 5 (Mark DeWolfe Howe ed., Little, Brown & Co. 1963) (1881). Miranda exists so that those experiences described in the opinion are not repeated; and, if repeated, then, as a matter of law, a penalty is extracted.

Allowing Mr. Powell’s custodial statements to be used against him violated his constitutional rights. We therefore hold that the court should have suppressed his statements.

As we did in M.A.B., we certify the following question as one of great public importance pursuant to Article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

We answer the certified question in the affirmative. We hold that the warnings provided in this case were constitutionally deficient, under the Fifth Amendment of the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Florida, and failed to comply with the Miranda requirements. Accordingly, we reverse Mr. Powell’s conviction and remand for further proceedings.

Reversed and remanded.

SILBERMAN, J., Concurs.

KELLY, J., Concurs in part; dissents in part.

KELLY, J.,

Concurring in part; dissenting in part.

Properly framed, the test for reviewing the adequacy of the warnings provided by law enforcement to an individual taken into custody “is simply whether the warnings reasonably ‘convefy] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (quoting California v. Prysock, 453 U.S. 355, 361,101 S.Ct. 2806, 69 L.Ed.2d 696 (1981)). In my view, Mr. Powell was not deprived of any information essential to his ability to knowingly waive his Fifth Amendment privilege against self-incrimination, and in particular, his right to have counsel present during questioning. Because the warnings, in their totality, “touched all of the bases required by Miranda,” I respectfully dissent from the majority opinion to the extent that it holds otherwise. See id. at 203, 205, 109 S.Ct. 2875. Although the majority’s thoughtful analysis of the issue is not without persuasive force, I believe the reasoning detailed in Judge Canady’s opinion in M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA 2007), is more in line with the body of precedent the Supreme Court has provided for guidance on this issue, and accordingly, I adopt that reasoning as my own. I fully concur, however, with the majority’s conclusion that, in light of this court’s evenly divided opinion in M.A.B., it is appropriate for this panel to address the issue of the adequacy of the Miranda warnings Mr. Powell received.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note that on August 21, 2007, the Florida Supreme Court granted review on just as the current opinion was about to issue. In light of the cases referenced in footnote 5, we include the jurisdictional discussion in an abundance of caution.

      . The Florida Supreme Court stated "[c]onsis-tency of law within a district is essential to avoid unnecessary and costly litigation. We conclude that district court judges, through their opinions, will adopt principles to ensure this result.” In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So.2d 1127, 1130 (Fla. 1982). “The district courts are free, however, to develop their own concept of decisional uniformity.” Fla. R.App. P. 9.331 committee notes, 1982 amend.; see also O'Brien v. State, 478 So.2d 497, 499 (Fla. 5th DCA 1985) (noting “inherent ambiguities of the en banc rule in regard to tie votes” and "problems of interpretation [with the en banc rule],” and adopting as a principle that an en banc tie affirmance becomes the binding precedent with the subject question to be certified to the Florida Supreme Court as a matter of great public importance). This court has not expressly adopted a similar approach.

      .This court has previously certified a question of great public importance to the Florida Supreme Court, but the supreme court dismissed that case for review due to a lack of jurisdiction on the basis that this court did not pass upon the question prior to certifying the question. Pirelli Armstrong Tire Corp. v. Jensen, 777 So.2d 973, 974 (Fla.2001); see also Gee v. Seidman & Seidman, 653 So.2d 384, 385 (Fla.1995) (dismissing the case because the district court did not address the issue contained in the certified question); accord Revitz v. Baya, 355 So.2d 1170, 1171 (Fla. 1977); Boler v. State, 678 So.2d 319, 320 (Fla.1996) (explaining that "[w]e do not have jurisdiction to answer a certified question of great public importance under article V, section 3(b)(4) where there is no district court decision for our review.”); but see Spence v. Hughes, 500 So.2d 538 (Fla.1987) (granting jurisdiction on a certified question of great public importance from a decision of an equally divided court).

      . Mr. Powell filed a pro se motion to suppress the results of the search of the house. It is unclear from our record whether the motion was denied or withdrawn, but in either event, the case proceeded to trial. Testimony at trial indicated that police arrived at the girlfriend’s apartment looking for Mr. Powell in reference to another matter. They testified that she let them in but the record is silent about whether she provided permission to search the individual rooms of the apartment.

      . Although it was not argued in the trial court, a possible corpus delicti issue exists. In order to introduce Mr. Powell’s confession, the State was required to prove that Mr. Powell constructively possessed the weapon. The general order of proof is to show that a crime has been committed and then that the defendant committed it. Spanish v. State, 45 So.2d 753, 754 (Fla. 1950); see State v. Allen, 335 So.2d 823, 825-825 (Fla. 1976). A defendant's confession or statement “may be considered in connection with other evidence” but corpus delicti cannot rest upon the confession or admission alone. Cross v. State, 96 Fla. 768, 119 So. 380, 384 (1928). Before a confession or statement may be admitted there must be prima facie proof tending to show the crime was committed. Farinas v. State, 569 So.2d 425 (Fla.1990); Bassett v. State, 449 So.2d 803 (Fla. 1984); Frazier v. State, 107 So.2d 16, 26 (Fla. 195 8). In the present case, although Mr. Powell stipulated he was a convicted felon, there was no independent proof that he possessed a firearm. There were several other adults in the apartment at the time of Mr. Powell’s arrest. The State did not introduce forensic evidence from the gun or elicit any testimony that would place the firearm in Mr. Powell's possession. Simply put, there was no evidence other than the unwarned statements Mr. Powell made to establish that a crime had been committed.

      . Mr. Powell testified that his custodial statements to detectives concerning the gun were untrue. He testified that he signed the consent form waiving his rights and made the false statements because the detectives threatened to charge his girlfriend with possessing the firearm. On rebuttal the detectives denied threatening Mr. Powell.

      . Were we writing on a clean slate, we would rephrase the question in the following manner: IS THE MIRANDA REQUIREMENT THAT A SUSPECT BE WARNED OF THE RIGHT TO THE PRESENCE OF AN ATTORNEY VIOLATED WHEN A SUSPECT IS WARNED THAT "YOU HAVE THE RIGHT TO TALK TO A LAWYER BEFORE ANSWERING ANY OF OUR QUESTIONS” AND "YOU HAVE THE RIGHT TO USE ANY OF THESE RIGHTS AT ANY TIME YOU WANT DURING THIS INTERVIEW”? We likewise answer this question in the affirmative.

      . In the landmark confession case, Brown v. Mississippi, 297 U.S. 278, 281-86, 56 S.Ct. 461, 80 L.Ed. 682 (1936), police testified that they physically abused the defendants prior to their confessions. The Court reversed based on a denial of due process under the Fourteenth Amendment and admonished the trial court stating, "[t]he rack and torture chamber may not be substituted for the witness stand.” Id. at 286-87, 56 S.Ct. 461. It was not until Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), that the Court held the self-incrimination clause of the Fifth Amendment was applicable to the states. Miranda was decided two years later.


author: PER CURIAM. THOMAS, J.

text:
    In re Jane DOE 07-A, Appellant.
    No. 1D07-4287.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Natalie N. Maxwell and Kirsten Clanton of Southern Legal Counsel, Gainesville, for Appellant.
   PER CURIAM.

We conclude that the trial court incorrectly applied the standard for determining if the minor was “sufficiently mature to decide whether to terminate her pregnancy....” See § 390.01114(4)(e), Fla. Stat. (2006) and In re Jane Doe, a minor, 924 So.2d 935, 939 (Fla. 1st DCA 2006) (“In determining whether a minor is ‘sufficiently mature,’ the court need only find that the minor has the necessary emotional development, intellect and understanding to make an informed decision regarding terminating her pregnancy.”)

Accordingly, we reverse the circuit court’s final judgment and direct the trial court to grant the petition for waiver of parental notice of termination of pregnancy.

BROWNING, C.J., and PADOVANO, J., concur; THOMAS, J., dissents with written opinion.

THOMAS, J.

dissenting.

I respectfully dissent. In my view, the trial court applied the correct standard to determine that the minor in this case was not sufficiently mature to decide whether to terminate her pregnancy. I would affirm the trial court’s order.


text:
    Nicholas BODOR and Sheryl Bodor, Appellants, v. HOWARD DESIGN GROUP, INC., a Florida corporation, and Jeffrey Howard, Appellees.
    No. 3D07-613.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Ginsberg Schwartz and Arnold R. Ginsberg; Alan R. Soven, Miami, for appellants.
    Josephs Jack and Nicole I. Sieb, for appellees.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1133 (Fla. 3d DCA 2006); Chicago Ins. Co. v. Tarr, 638 So.2d 106, 108 (Fla. 3d DCA 1994).


author: PALMER, C.J. SAWAYA, J.,

text:
    HUBBARD CONSTRUCTION COMPANY, Appellant, v. JACOBS CIVIL, INC., Appellee.
    No. 5D06-3640.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.
    Rehearing Denied Nov. 30, 2007.

      Philip E. Beck of Smith, Currie & Hancock, LLP, Atlanta, GA, for Appellant.
    A. Anderson B. Dogali and Joel Ewusiak of Forizs & Dogali, P.L., Tampa, for Ap-pellee.
   PALMER, C.J.

Hubbard Construction Company (HCC) appeals the non-final order entered by the trial court granting Jacobs Civil, Inc.’s (JCI) motion to compel arbitration. Determining that JCI failed to comply with the conditions precedent set forth in the parties’ arbitration agreement, we reverse.

JCI filed a motion to compel arbitration with HCC. The motion explained that the parties entered into a written subcontract agreement which provided that JCI would provide certain services in connection with the design and construction of a section of interstate highway. Of importance to this appeal, said agreement contains the following arbitration provisions:

DESIGN SUBCONTRACT AGREEMENT
* * ⅜
16. Miscellaneous Provisions. The following miscellaneous provision shall govern this Agreement:
(b) Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under the agreement which is not resolved shall be decided by Hubbard, who shall reduce its decision to writing and furnish a copy thereof to [JCI]. Unless the decision impairs [JCI’s] obligation as a professional engineer, [JCI] shall immediately implement such decision without interruption, deficiency or delay. The decision of Hubbard shall be final and conclusive unless, within (20) days from the date of receipt of such copy, [JCI] makes written demand to Hubbard for arbitration proceedings, unless otherwise agreed in writing by the parties hereto.
(c) This agreement shall be governed by the laws of the state of Florida. If any controversy should arise between the parties relating to this agreement or the failure or refusal of any party to perform the whole or any part hereof, the parties will submit such matter to binding arbitration. Such arbitration shall be governed by the Florida Arbitration Code with the venue to be in Orange County, Florida. Each party shall choose one arbitrator with a third arbitrator mutually chosen by the two arbitrators.

JCI’s motion to compel arbitration alleged that a controversy arose between the parties concerning amounts due under the contract. Specifically, JCI maintained that HCC owed JCI more than $600,000 pursuant to the terms of the parties’ agreement, and HCC claimed that JCI owed “an even higher sum in relation to impact allegedly caused by [JCI’s] defective performance.” The motion further alleged that said controversies were required to proceed to arbitration pursuant to the terms of the parties’ agreement.

HCC filed an answer to JCI’s motion to compel arbitration. In its answer, HCC alleged that JCI’s motion should be dismissed because it failed to state a valid claim upon which relief could be granted. The answer further alleged defenses of waiver, time-bar, and noncompliance. In its answer, HCC also set forth a counterclaim/cross-motion for a declaratory judgment that JCI’s claim was not subject to arbitration because JCI failed to comply with paragraph 16(b) of the parties’ arbitration agreement which sets forth a 20-day time limitation for the exercise of the option to arbitrate.

To support its counterclaim, HCC explained that numerous disputes arose between the parties during the course of the construction project and that, on January 18, 2006, HCC sent a letter to JCI issuing its “final decision” regarding those collective disputes. Said letter specifically stated that, since the parties had not been able to resolve disputed issues concerning disagreements about the construction in the five months following the completion of the construction project, the letter constituted HCC’s

“final decision pursuant to Paragraph 16(b) of the design Subcontract Agreement between [the parties]. Hubbard remains willing to discuss these issues with Jacob further if it, appears that further discussions would be mutually beneficial. Accordingly, if Jacob disagrees with the final decision set forth herein, but desires to meet with [HCC] in an attempt to resolve these issues without resorting to arbitration, please advise us as soon as possible and we will be happy to discuss with you the possibility of the parties agreeing in writing to extend the deadline for initiating arbitration proceedings a reasonable length of time in order to allow such a meeting to occur.”

On February 12, 2006, the twentieth day after JCI received HCC’s “final decision letter”, counsel for JCI sent a letter to HCC. In that letter, counsel for JCI stated that JCC would need additional time to review the case and requested that HCC agree to a 60-day extension of the time limitation set forth in paragraph 16(b) of the parties’ agreement. No demand for arbitration was made by JCI in the February 12th letter. HCC responded via letter to JCI noting that the time limit for seeking arbitration had expired.

The trial court conducted a hearing on the parties’ competing motions. During the hearing, counsel for JCI argued that all issues relating to JCI’s defenses must be determined by the arbitrators, not the trial court. HCC responded by arguing that paragraph 16(b) of the parties’ contract created a condition precedent to JCI’s right to seek arbitration; specifically, making a demand for arbitration within 20 days of any final action undertaken by HCC, and that JCI failed to comply with said condition by failing to demand arbitration within 20 days of HCC’s January 18, 2006 final decision letter, thereby waiving its right to seek arbitration.

Upon review, the trial court entered an order summarily granting JCI’s motion to compel arbitration. HCC appeals, maintaining that the trial court erred in granting JCI’s motion. We agree.

The standard of review of a trial court’s ruling on a motion to compel arbitration is de novo. Avid Engineering, Inc. v. Orlando Marketplace, Ltd., 809 So.2d 1 (Fla. 5th DCA 2001).

In this case, the issue is whether JCI failed to comply with a condition precedent to arbitration and, as a result, is not entitled to demand arbitration. Two cases presenting similar factual scenarios lead to the conclusion that JCC is not entitled to demand arbitration.

First, in Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), a general contractor appealed the trial court’s order denying its motion to compel arbitration pursuant to an agreement that contained an express 30-day time limitation for demanding arbitration. The motion to compel arbitration was denied by the trial court because the demand was not timely made. On appeal, the Third District affirmed, ruling that the contractor failed to timely make demand for arbitration.

Similarly, in Seaboard Surety Co. v. Cates, 604 So.2d 570 (Fla. 3d DCA 1992), the Third District held that the trial court properly determined, as a matter of law, that the defendant had no right to arbitrate contractual disputes where its contract specifically provided that demand within 30 days was a precondition for arbitration and defendant failed to file any such demand.

Applying this case law to facts in this case, the trial court erred in granting JCI’s motion to compel arbitration since it was undisputed that JCI failed to comply with the 20-day time limitations set forth in the parties’ contract.

JCI argues that these two cases are not controlling because other Florida courts have broadly held that any issue concerning whether demand for arbitration has been “timely made” is a question of fact to be decided by an arbitrator. We disagree.

JCI’s arguments confuse the concepts of timeliness and failure to meet a condition precedent. A claim alleging mere delay in seeking arbitration which creates a timeliness issue must be decided by the arbitrators. See Alderman v. City of Jacksonville, Fire & Rescue Div., 902 So.2d 885 (Fla. 1st DCA 2005). However, the issue here was whether JCI failed to comply with a condition precedent to seeking arbitration and, as such, whether the trial court was required to consider that issue. None of the arbitration provisions contained in the cases cited by JCI set forth express time limitations for the invocation of arbitration rights like the 20-day requirement existing in this case.

JCI also argues that the time limitation set forth in paragraph 16(b) does not apply to the instant controversy because the intent behind the paragraph was that the provision only applied to conduct between the parties “during the pendency of the construction project,” not to conduct occurring after the project was completed. We reject this argument because the language set forth in paragraph 16(b) is not ambiguous as to its applicability to all disputes “arising under the agreement.”

REVERSED and REMANDED.

LAWSON, J., concurs.

SAWAYA, J., dissents, with opinion.

SAWAYA, J.,

dissenting.

There is an arbitrable issue that must be decided by the arbitrator: whether Hubbard Construction Company is estopped from asserting noncompliance by Jacobs Civil, Inc., with the twenty-day time limitation contained in the agreement between the parties for demanding arbitration. Therefore, I do not agree with the majority that Jacobs Civil, Inc., is not entitled to demand arbitration because it failed to comply with that time limitation. Based on the facts and circumstances relating to the estoppel issue raised by Jacobs, the trial court properly compelled arbitration so the issue of estoppel could be resolved by the arbitrator. I, therefore, respectfully dissent.

The proceedings in circuit court began when Jacobs filed a motion to compel arbitration. There are three elements a court must consider in ruling on a motion to compel arbitration of a given dispute: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); see also O’Keefe Architects, Inc., v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006); Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005); Presidential Leasing, Inc. v. Krout, 896 So.2d 938, 940 (Fla. 5th DCA 2005).

As to the first issue, Hubbard and Jacobs clearly entered into a valid agreement to arbitrate, and that is not contested. As to the second element, it is equally clear that the issue of estoppel raised by Jacobs in the trial proceedings is an arbitrable issue to be decided by the arbitrator. Specifically, Jacobs presented evidence of a letter from Hubbard dated January 18, 2006, that contained Hubbard’s final decision regarding disposition of the dispute between itself and Jacobs. This final decision letter triggered the provision in the agreement that “[t]he decision of Hubbard shall be final and conclusive unless within twenty (20) days from the date of receipt of such copy, [Jacobs] makes written demand to Hubbard for arbitration proceedings, unless otherwise agreed in writing by the parties hereto.” That letter also contained the following offer to Jacobs:

Hubbard remains willing to discuss these issues with Jacobs further if it appears that further discussions would be mutually beneficial, Accordingly, if Jacobs disagrees with the final decision set forth herein, but desires to meet with Hubbard in an attempt to resolve these issues without resorting to arbitration, please advise us as soon as possible and we will be happy to discuss with you the possibility of the parties agreeing in writing to extend the deadline for initiating arbitration proceedings a reasonable length of time in order to allow such a meeting to occur.

Jacobs, through its attorney, accepted the offer to further discuss the issues and to extend the time limit for demanding arbitration in a letter dated February 12, 2006, which stated:

Jacobs has been analyzing the issues outlined in your letter, and intends to continue to do so over the next few weeks. I believe a detailed response can be prepared by about the end of March, at which'time we would be in a position to meet with you to discuss the claims. In order for Jacobs to continue its analysis with this schedule in mind, Hubbard will need to agree to an extension of the time provided in paragraph 16(b) of the parties’ Agreement. I suggest sixty (60) days from today.
Please confirm, as offered in the third paragraph of your January 18 letter, that Hubbard is in agreement with this suggested extension. In the absence of your confirmation, we will have no choice but to submit a demand for arbitration.

Hubbard subsequently retained counsel who, after the twenty-day period had expired, wrote a letter to Jacobs indicating it was no longer willing to discuss the matter, that Hubbard was now relying on strict compliance with the twenty-day time limit, and that Hubbard would object to any attempt to arbitrate the contested issues because Jacobs failed to formally demand arbitration within that specified period. Although Jacobs accepted Hubbard’s offer of further discussions and extension of the time limitation under the contract within twenty days from the date of Hubbard’s letter, Hubbard claimed that Jacobs’ acceptance of the offer was untimely.

I believe that estoppel is a meritorious defense in the instant case, which raises arbitrable issues encompassed by the broad arbitration clause contained in the agreement between Jacobs and Hubbard. That clause specifically provides:

This Agreement shall be governed by the laws of the State of Florida. If any controversy should arise between the parties relating to this Agreement or the failure or refusal of any party to perform the whole or any part hereof, the parties will submit such matter to binding arbitration. Such arbitration shall be governed by the Florida Arbitration Code with the venue to be in Orange County Florida. Each party shall choose one arbitrator with a third arbitrator mutually chosen by the two arbitrators.

A similarly broad agreement was considered by the court in O’Keefe. There, the arbitration agreement provided that a demand for arbitration must be made within a reasonable time not to exceed the time period covered by the applicable statute of limitations. After O’Keefe raised a statute of limitations defense to the otherwise ar-bitrable claim, the trial court found that the defense raised a matter for the arbitrator to decide and entered an order compelling arbitration. The supreme court agreed that under the broad arbitration agreement, the defense raised an arbitra-ble issue, explaining:

[A] gateway dispute about whether the parties are bound by a given arbitration clause raises a “question of arbitrability” for a court to decide. Similarly, a disagreement about whether an arbitration clause in a con-cededly binding contract applies to a particular type of controversy is for the court.
At the same time the Court has found the phrase “question of arbitra-bility” not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition” are presumptively not for the judge, but for an arbitrator, to decide. So, too, the presumption is that the arbitrator should decide “allegation^] of waiver, delay, or a like defense to arbitrability.” Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to “incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],” states that an “arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.” RUAA § 6(c), and comment 2, 7 U.L.A. 12-13 (Supp.2002).

O’Keefe, 944 So.2d at 186-87 (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (some citations omitted)). Like the statute of limitations defense raised in O’Keefe, the issue of estop-pel is an arbitrable issue to be determined by the arbitrator. Therefore, the trial court properly compelled arbitration.

The third element the trial court must determine is whether a party waived the right to arbitration. The courts have consistently held that a party waives its right to arbitrate by: (1) actively participating in the lawsuit; or (2) taking action which is inconsistent with the right to arbitrate. Saldukas, 896 So.2d at 711 (citing Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 680 (Fla.1973)); Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 397 (Fla. 5th DCA 2003); Avid Eng’g, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1 (Fla. 5th DCA 2001); R.W. Roberts Constr. Co., Inc. v. Masters & Co., Inc., 403 So.2d 1114 (Fla. 5th DCA 1981). “ ‘The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.’ ” Saldukas, 896 So.2d at 711 (quoting Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)). The record reveals that Jacobs did not participate in any lawsuit that would form the basis of a waiver of its right to arbitrate. To the contrary, what Jacobs did was file a motion to compel arbitration in the circuit court, which is a proceeding that is totally consistent with its right to arbitrate.

I acknowledge that there are cases that hold the failure to comply with a time limitation in an agreement for making a demand for arbitration may constitute a waiver. In determining who should decide that particular issue, some courts distinguish between cases that have a specific time limitation for demanding arbitration and those that require the demand be made within a reasonable time but no later than the expiration of the statute of limitations. See Abel Homes at Naranja Villas, LLC v. Hernandez, 960 So.2d 891, 894 (Fla. 3d DCA 2007); The Hillier Group, Inc. v. Torcon, Inc., 932 So.2d 449, 455 (Fla. 2d DCA 2006). If the agreement provides a specific time period and it is uncontested that the time limit was not complied with, the trial court may decide the issue. See Seaboard Sur. Co. v. Cates, 604 So.2d 570 (Fla. 3d DCA 1992); Lyons v. Krathen, 368 So.2d 906, 908 (Fla. 3d DCA 1979). The rationale for this view was explained by this court in Fluor Enterprises, Inc. v. Tri-City Electrical Contractors, Inc., 784 So.2d 1260, 1260 (Fla. 5th DCA 2001), when we stated that requiring an arbitrator to acknowledge an undisputed fact “would be an exercise in futility.” As the court explained in O’Keefe, if the failure to file a demand for arbitration is pursuant to a broad agreement to arbitrate and the agreement requires the demand to be made within a reasonable time and no later than the date upon which the statute of limitations expires, the arbitrator must decide the issue.

I recognize that the agreement in the instant case provides a specific time limitation to demand arbitration. However, compliance with the time limitation is not undisputed because Jacobs has raised a valid and meritorious defense of estoppel that may prevent Hubbard from asserting Jacobs’ failure to file its demand within the specific time limitation of twenty days. Accordingly, the instant case is clearly distinguishable from Fluor, Cates, and Lyons. Moreover, this case is unlike Fluor because requiring the arbitrator to decide the contested issue of estoppel would not be an exercise in futility.

The majority states that the issue of noncompliance with the twenty-day time limit is not a timeliness issue but a condition precedent to be considered by the trial court rather than the arbitrator. The Third District Court has held that compliance with a time limit to demand arbitration is not a condition precedent, but a procedural requirement that must be decided by the arbitrator. See Public Health Trust of Dade County v. M.R. Harrison Const. Corp., 415 So.2d 756 (Fla. 3d DCA 1982), pet. for review denied, 427 So.2d 737 (Fla.1983); see also ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574 (Fla. 3d DCA 1999). In M.R. Harrison, the court explained:

Sharply to be distinguished from conditions precedent to arbitration are procedural stipulations that the parties may have laid down to be observed in the conduct of the arbitration proceeding itself — conditions in arbitration, e.g., limitations of time within which the demand for arbitration must be made, or requirements as to parties on whom or as to the manner in which service of the demand for arbitration shall be made. As would be expected, questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding (citations omitted).

415 So.2d at 757 (quoting County of Rockland v. Primiano Constr. Co., Inc., 51 N.Y.2d 1, 431 N.Y.S.2d 478, 409 N.E.2d 951, 954 (1980)). But even if it is a condition precedent, compliance with conditions precedent is usually a matter for the arbitrator to decide rather than the trial court, as the court in O’Keefe explained. This was also explained by the court in Alderman v. City of Jacksonville, Fire & Rescue Division, 902 So.2d 885, 886-87 (Fla. 1st DCA 2005), when it stated:

And questions of timeliness are to be decided by an arbitrator, not a trial court. Piercy v. Sch. Bd. of Washington, 576 So.2d 806 (Fla. 1st DCA 1991). This is true even if the time requirement for arbitration is labeled a condition precedent. See Executive Life Ins. Co. v. John Hammer & Assoc., Inc., 569 So.2d 855 (Fla. 2d DCA 1990).

(Emphasis added). Moreover, this court and others have held that conditions precedent are issues for the arbitrator to decide.

Regardless of whether we label compliance with specific time limitations for demanding arbitration as a condition precedent or a waiver issue, estoppel is a matter for resolution by the arbitrator. Accordingly, this court should affirm the trial court’s order compelling arbitration so the arbitrator may decide the issue in the arbitration proceedings.

      . See Cooper v. Fine, 705 So.2d 131, 131 (Fla. 4th DCA 1998) ("Although appellant claims she is entitled to litigate the question of whether conditions precedent to arbitration were fulfilled, that issue is a question for the arbitrator.”); City of Mount Dora v. Cent. Fla. Police Benevolent Ass'n, Inc., 600 So.2d 520, 522 (Fla. 5th DCA 1992); Executive Life Ins. Co. v. John Hammer & Assocs., Inc., 569 So.2d 855, 857 (Fla. 2d DCA 1990); Federated Dep't Stores, Inc. v. Pavarini Const. Co., Inc., 425 So.2d 1212 (Fla. 4th DCA 1983) (holding that court may decide question of whether arbitration has been waived unless one party contends waiver question should be answered by arbitrators, in which instance the question must be resolved by arbitrators); see also Public Health Trust of Dade County v. M.R. Hairison Const. Corp., 415 So.2d 756 (Fla. 3d DCA 1982) (noting that whether arbitration demand is timely within meaning of contract provision is a matter for arbitrator), pet. for review denied, 427 So.2d 737 (Fla.1983); Held v. Trafford Realty Co., 414 So.2d 631 (Fla. 5th DCA 1982) (same).


text:
    Daniel Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2892.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.
    Rehearing Denied Dec. 10, 2007.
    Daniel L. Davis, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla.1999) (“Trial counsel cannot be deemed ineffective for failing to raise meritless claims or claims that had no reasonable probability of affecting the outcome of the proceeding.”).

PALMER, C.J., THOMPSON and MONACO, JJ., concur.


author: PLEUS, J.

text:
    BSP/PORT ORANGE, LLC., Broad Street, etc., et al, Appellants, v. WATER MILL PROPERTIES, INC., Appellee.
    No. 5D06-2905.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Rehearing Denied Dec. 12, 2007.

      John H. Dannecker, Stephen T. Maher and Jennifer P. Sommerville, of Shutts & Bowen, LLP, Orlando, for Appellants.
    Robert W. Rasch of Robert W. Rasch, P.A., Altamonte Springs, for Appellee.
   PLEUS, J.

This appeal involves a claim for real estate commissions based on an oral agreement. The total property was to be purchased in three phased closings. The oral agreement contemplated a 5% commission payable to appellee in connection with each of the three closings. The trial court granted summary judgment in favor of the appellee and then final judgment thereupon.

We affirm the entry of summary judgment. The appellants maintain that they presented evidence by way of deposition and affidavit that the oral agreement had been modified but that affirmative defense was never pled by them. See Fla. R. Civ. Pro. 1.110(d). See also Mark Leach Health Furniture Co. v. Thal, 143 So.2d 64 (Fla. 2d DCA 1962). Testimony in a deposition and averments in an affidavit in opposition to summary judgment are insufficient to raise an affirmative defense which was not itself pled. See Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556, 557 (Fla. 3d DCA 1971). “At a summary judgment hearing, the court must only consider those issues made by the pleadings.” Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985).

We reject the contention that the defense of modification was tried by the consent of the parties. During the summary judgment hearing, both appellee’s counsel and the trial court expressly noted the failure of appellants to plead modification as an affirmative defense. Those affirmative defenses which were raised were either rebutted by the appellee or were insufficient to preclude entry of summary judgment.

The final judgment, however, must be reversed and remanded. The appellee failed to demonstrate a legal basis for the individual liability of appellant Walsh. As to Walsh, the judgment is reversed. The judgment erroneously calculates prejudgment interest at 11% instead of at the applicable 7% rate. § 55.03, Fla. Stat.; Trawick, Fla. Prac. & Proc. § 25-12.2 (note 4). On remand, the corrected prejudgment interest should be recalculated.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

LAWSON, J., and REINMAN, M., Associate Judge, concur.


text:
    James Victor HARRELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5005.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2007.
    Rehearing Denied Dec. 11, 2007.
    James Victor Harrelson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.