author: VAN NORTWICK, J.

text:
    D.R. HORTON, INC.—JACKSONVILLE, Appellant, v. John PEYTON, in his official capacity as Mayor of the City of Jacksonville, a Florida municipal corporation; and Michael Saylor, in his official capacity as Director of Planning and Development for the City of Jacksonville, a Florida municipal corporation, Appellees.
    No. 1D05-5585.
    District Court of Appeal of Florida, First District.
    June 18, 2007.

      Fred D. Franklin, Jr., William D. Brin-ton, T.R. Hainline, Jr., Cristine M. Russell, and Christopher J. Hand of Rogers Towers, P.A., Jacksonville, for Appellant.
    Cindy A. Laquidara, General Counsel and Tracey I. Arpen, Jr., Deputy General Counsel, Jacksonville, for Appellees.
    Deborah J. Andrews, Ponte Vedra Beach, for Amicus Curiae Baymeadows Community Council, Inc.
   VAN NORTWICK, J.

D.R. Horton, Inc. — Jacksonville (Horton) appeals an order granting final summary judgment in favor of John Peyton, in his capacity as the mayor of the City of Jacksonville (the City), and Michael Saylor, in his capacity as director of planning and development for the City, appel-lees. Horton brought an action challenging the mayor’s veto of a resolution of the Jacksonville City Council (Council) which had approved a so-called “fair share assessment contract” by which Horton was authorized to undertake a proposed development in the Baymeadows area of the City. Under section 6.05 of the City’s Charter, the mayor does not possess the authority to veto, among other actions of the Council, “quasi-judicial decisions made by the council.” Thus, the issue before us is whether the Council’s decision approving the Horton resolution was quasi-judicial in nature. Because Horton’s proposed development necessitated such substantial transportation infrastructure improvements, as provided in Horton’s fair share contract with the City, that it would require an amendment to the capital improvement element of the City’s comprehensive plan, we conclude that the Council’s decision was legislative, not quasi-judicial in nature. Accordingly, we affirm the order upholding the mayor’s veto, although for reasons different than those relied upon by the trial court.

Background

In 2004, Horton planned a multi-use development of the golf course within the Baymeadows community in the southeastern area of Jacksonville. The proposed development involved approximately 150 acres of real property and included approximately 1,400 residential dwellings, 150,000 square feet of office space, and 60,000 square feet of retail space. Horton sought a determination from the planning and development department of the City as to whether the proposed development of the subject property met local development requirements. More particularly, Horton sought a “concurrency certificate” showing that his proposed development fell within the development guidelines in the City’s comprehensive plan. The City’s planning and development department denied Horton’s application for a concurrency certificate on the ground that the existing roads in the area of the development would be unable to handle the increased traffic resulting from the development, as determined by a traffic study. Under the authority of the fair share contract provisions of the City’s ordinance code, Part 3, Chapter 655, Jacksonville Ordinance Code (Code), the department advised Horton of his available options, one of which was to submit a “fair share assessment” application to enter into a contract with the City by which Horton would pay for the cost of the infrastructure improvements made necessary by the proposed development. Horton submitted a fair share application that provided for a fair share payment of $4,894,875 and a proposed contract. Exhibit B to Horton’s fair share application specified in detail the various roads which would be improved pursuant to the funds provided under the fair share contract. Exhibit E to the fair share application provided that these roadway improvements “shall be added to the Capital Improvements Plan of the City, designating the Developer as the source of funding.”

The resolution approving the Horton contract was assigned to the Transportation, Environment and Energy Committee of the Council. This committee held a public meeting and thereafter recommended to the Council that Horton’s fair share contribution be increased to $7,142,403. The committee’s recommendation was submitted to the Council and scheduled on the Council’s agenda with other resolutions described in the agenda as “Action on 3rd Reading Resolution(s), Committee Recommendations.” The agenda also contained a separate category of “quasi-judicial” actions to be heard by the Council.

In the public hearing before the Council, Horton introduced the results of a traffic study prepared by its consultant which supported the roadway improvements set forth in the proposed fair share contract. Opponents of the project presented testimony by a traffic engineer that Baymea-dows Road, the only public road directly accessing the proposed development, is a “constrained facility,” meaning it could not be expanded to provide transportation service beyond its current level of service; and that the transportation improvements proposed by Horton’s fair share contract were not adequate to support the proposed development. Further, the opponents testified that proposed transportation improvements were not contained in the City’s capital improvement program that is a part of the City’s comprehensive plan and that most of the improvements which were in the capital improvement program were not within a two-mile radius of Horton’s traffic study.

After extensive debate, by a vote of 11 to 8 the Council approved the amended Horton resolution which the mayor timely vetoed. In his veto letter, the mayor set forth the policy reasons supporting his action. He found that the proposed roadway improvements were inadequate to address the traffic impacts that would be created by the proposed development. As the mayor explained:

In this case, the proposed development will generate traffic impacting Baymea-dows Road, as well as other roadway links. Specifically, the development is projected to add 1,182 PM Peak Hour trips to the three affected links of Bay-meadows Road, as well as adding additional trips to other roadway links. Baymeadows Road is a constrained facility, as defined by the Florida Department of Transportation, meaning that it cannot be widened further to add traffic capacity. While other constrained roadways exist within the city, few are failing to the same extent as Baymeadows Road, and few have the potential for the type of large-scale development that is proposed for Baymeadows Golf Course. Furthermore, due to the existing roadway configuration from past development, Baymeadows Road is the only public road directly accessing the property and the point of ingress and egress is from the most negatively-impacted links on Baymeadows Road.
Roadway improvements that add capacity to a roadway (other than road widening) are authorized by state and local law. However, those improvements must offset the impacts of the proposed development on the affected roadway links identified in the particular Fair Share Assessment Contract. For this particular project, the developer proposed a list of roadway improvements other than widening Baymeadows Road to offset the impacts on Baymeadows Road and the other affected roadway links.
I have reviewed the evidence in the record regarding the proposed roadway improvements and their suggested impact on the affected roadway links. My review has led me to conclude that the proposed list of improvements is inadequate to address the traffic impacts which would be created by the proposed development....

The Council considered overriding the veto, but failed to do so by a vote of 2 to 16.

Horton filed a petition for a writ of quo warranto in the circuit court for Duval County, asserting that in vetoing the resolution the mayor exceeded his authority under section 6.05 of the City’s Charter. Alternatively, Horton sought a writ of mandamus to compel the execution and the implementation of the fair share contract. The mayor and the director of the City’s planning department were named as respondents. The Baymeadows Community Council (BCC), comprised of residents in the Baymeadows community, was permitted to appear in the proceeding in opposition to the development.

The parties eventually moved for final summary judgment and submitted written argument in support of the respective positions; BCC also submitted argument. Following a hearing, the trial court entered a thoughtful and detailed order granting the City’s motion for summary judgment. The trial court, explained its ruling, in pertinent part, as follows:

The ultimate issue before the Court appears on the surface to be simple and discrete: Did the Mayor have the legal authority to veto the Council Resolution approving the Fair Share Assessment Agreement between Horton and the City? Any veto power the Mayor has is derived from Section -6.05, Jacksonville Municipal Code. The parties- agree that thereunder, the Mayor does not have the authority to veto “Quasi-judicial decisions made by the council.” On the other hand, under the Code, the Mayor does have the right to veto legislative type actions of the Council. The parties disagree here as to the character of the Resolution at bar.
A legislative action by a local governing body is one that results in the formulation of a general rule of policy. On the other hand, a quasi-judicial action results in the application of a general rule of policy. Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla.1993). Quasi-judicial hearings require that certain due process rights be granted to the affected parties. See, e.g., Walgreen Co. v. Polk County, 524 So.2d 1119 (Fla. 2d DCA 1988); Brown v. Walton County, 667 So.2d 376 (Fla. 1st DCA 1995).... In order to decide whether the Council action herein is quasi-judicial or legislative, then, it is essential that the Court determine the actual “character of the hearing.” Board of County Commissioners of Brevard County v. Snyder, supra, at 474....
It appears to this Court that if the City of Jacksonville were to lawfully adopt a Fair Share Assessment Contract under the statute and Code provisions here, its action would be quasi-judicial in character. Though the Jacksonville Municipal Code appears to grant the Jacksonville City Council some discretion in such matters, it is very specific as to the requirements for adoption. Thus, under existing law, the Council is not required to make policy-type decisions. It is only required to implement policy decisions by considering whether the lawful requirements for a Fair Share Assessment Contract have been met; and whether the funding to be paid by the developer thereunder is adequate to meet concurrency requirements under the Comprehensive Plan’s CIP [Capital Improvement Program] provisions. The problem with the Council action at bar, however, is that it does not come close to meeting the lawful requirements for adopting a Fair Share Assessment Contract.
* * *
In the end, counsel for Horton admitted herein that the Fair Share Assessment Agreement before the Council did nothing more than establish an amount of money which Horton would have to pay to the City to proceed with its development. It left the “how and when” of the use of that money to the total future discretion of the City. As such, the agreement did not even pretend to contemplate capital improvements already contained in the City’s CIP, which need to be implemented within the next five years. The adopted agreement, in short, was completely unlawful.
This Court cannot conceive how the Council’s decision to adopt an unlawful Fair Share Assessment Agreement could be in the character of a quasi-judicial action. If the Council has decided that it should adopt Fair Share Assessment Agreements which are in derogation of the law, they are surely acting in a policy-making capacity....

(Emphasis in bold typeface provided by trial court). Thus, the trial court upheld the mayor’s veto. This appeal follows.

Horton argues on appeal that the trial court erred in holding that the Council’s approval of the resolution was unlawful and that the Council’s conduct was transformed from a quasi-judicial act into a legislative one subject to a mayoral veto as a result of the unlawful resolution. Not conceding that the contract was illegal, Horton observes that the trial court cited no authority for its reasoning that an unlawful contract transformed Council action from quasi-judicial into legislative. He argues further that it is the character of a hearing which determines whether or not county or municipal action is legislative or quasi-judicial pursuant to Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla.1993), and it is evident that the proceeding below resulted in quasi-judicial and not legislative action under Snyder. The legality vel non of a decision, Horton adds, is not a valid consideration under the supreme court’s analysis in Snyder, arguing that other courts have held that the quasi-judicial character of a local government’s decision does not change merely because the decision is contrary to a statute or city ordinance, citing in support of this argument: Grace v. Town of Palm Beach, 656 So.2d 945 (Fla. 4th DCA 1995), Hirt v. Polk County Bd. of County Comm’rs, 578 So.2d 415 (Fla. 2d DCA 1991), and Sun Ray Homes, Inc. v. County of Dade, 166 So.2d 827, 828-29 (Fla. 3d DCA 1964).

The City argues, on the other hand, that consideration of Horton’s proposed Fair Share contract required the Council to evaluate the likely impact of that contract on the City’s provision of local services, capital expenditures, and its overall plan for the managed growth and future development of the area, and, thus, the City was engaged in policy formulation. Furthermore, the City asserts that the Council’s decision whether to approve a proposed contract, such as the one at issue here, necessarily involved considerations well beyond a specific landowner’s property. Because the Council was required to evaluate the proposed fair share contract pursuant to the factors outlined in section 655.802(a) of the Code, the Council’s conduct was legislative. Therefore, the City argues the Council’s action in approving the contract was analogous to the adoption of amendments to a comprehensive plan as discussed in Martin County v. Yusem, 690 So.2d 1288 (Fla.1997). In the City’s view, the trial court reached the right conclusion — that the mayor had the authority to veto the resolution adopting Horton’s fair share contract — but for the wrong reason. Any illegality of the contract was not the basis of the mayor’s veto authority; instead, it is the inherent legislative nature of the process of adopting a Fair Share contract which makes such a contract subject to a mayoral veto. Thus, the City concludes, the trial court’s decision to uphold the veto should be affirmed under the “tipsy coachman rule.” See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

Governing Statutes and Ordinances

Florida’s Growth Policy Act, part II of Chapter 163, Florida Statutes (2005), “was intended to enhance present advantages and encourage appropriate uses of land and resources.” Martin County v. Yusem, 690 So.2d 1288, 1292 (Fla.1997). In this act, the legislature required each Florida local government to adopt a comprehensive plan that prescribes “principles, guidelines and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.” § 163.3177(1), Fla. Stat. (2005). A comprehensive plan must include several elements, section 163.3177(2), including “a capital improvement element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities _” § 163.3177(3)(a). Among other things, the capital improvement element must set forth a plan covering at least a five-year period “which outlines principles for construction, extension or increase in capacity of public facilities ..." section 163.3177(3)(a)(l), and a schedule of capital improvements “which includes publicly funded projects, and which may include privately funded projects necessary to ensure that adopted level-of-service standards are achieved and maintained.” § 163.3177(3)(a)(5). The capital improvements element is required to be reviewed on an annual basis and modified by ordinance to maintain a financially feasible five-year schedule of capital improvements. § 163.3177(3)(b)(l).. A copy of any ordinance modifying the element is required to be transmitted to the state land planning agency. Id.

In section 163.3177(10)(h), the legislature created what has become known as a concurrency requirement.- In this subsection, the legislature requires “that public facilities and services needed to support development shall be available concurrent with the impact of such development in accordance with s. 163.3180.” As for transportation facilities relevant here, section 163.3180(2)(c) mandates that “[cjonsis-tent with the public welfare, and except as otherwise provided in this section, transportation facilities needed to serve new development shall be in place or under actual construction within 3 years after the local government approves a building permit or its functional equivalent that results in traffic generation.” The City has adopted a concurrency management system “to ensure the availability of public facilities and the adequacy of those facilities at adopted levels of service concurrent with the impacts of development.” Section 655.102, Jacksonville Ordinance Code.

Under the statutory scheme, however, development may proceed even where transportation facilities are not currently available. Section 163.3180(11), Florida Statutes, provides:

In order to limit the liability of local governments, a local government may allow a landowner to proceed with development of a specific parcel of land notwithstanding a failure of the development to satisfy transportation concurrency, when all the following factors are shown to exist:
(a) The local government with jurisdiction over the property has adopted a local comprehensive plan that is in compliance.
(b) The proposed development would be consistent with the future land use designation for the specific property and with pertinent portions of the adopted local plan, as determined by the local government.
(c) The local plan includes a financially feasible capital improvements element that provides for transportation facilities adequate to serve the proposed development, and the local government has not implemented that element.
(d) The local government has provided a means by which the landowner will be assessed a fair share of the cost of providing the transportation facilities to serve the proposed development.
(e)The landowner has made a binding commitment to the local government to pay the fair share of the cost of providing the transportation facilities to serve the proposed development.

(Emphasis added). The fourth and fifth factors in this subsection require that, to allow development to proceed without satisfying transportation concurrency, the local government must have provided a means by which an owner or developer will be assessed a “fair share” of the costs of providing the transportation facilities necessary to serve the proposed development and that an owner or developer must have contracted with the local government to pay its fair share of the cost of providing such transportation facilities. § 163.3180(ll)(d) and (e).

The City, acting pursuant to this statute, adopted fair share assessment procedures in Part 3 of Chapter 655 of the Code. To proceed with development, notwithstanding a failure to meet transportation concurrency, a landowner or developer must meet five requirements set forth in section 655.303(b) of the Code. These requirements are similar, but not identical, to the factors set forth in section 163.3180(11), Florida Statutes.

The City’s government follows a structure known as a “strong-mayor” model. See generally, Richard C. Schragger, Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System, 115 Yale L.J. 2542, 2544-45, 2570-77 (2006). The City’s Charter allocates executive and legislative power and responsibility between the mayor and the Council respectively. § 4.02, Jacksonville Charter. Charter section 6.05 provides broad veto power to the mayor, restricting the veto authority in only seven specific areas, as follows:

Section 6.05. Mayor’s veto power.
The mayor may veto any ordinance or resolution adopted by the council except ordinances and resolutions relating to:
(a) Consolidation of the urban services districts.
(b) Appointments to the zoning board and the budding codes adjustment board.
(c) Zoning exceptions and variances.
(d) The auditor, the secretary of the council, or other employees of the council.
(e) Internal affairs of the council.
(f) Investigations by the council or any duly appointed committee thereof.
(g) Quasi-judicial decisions made by the council.

(Italics added).

Local Government Quasi-Judicial and Legislative Actions

The trial court found that the Horton fair share contract was unlawful because it did not contemplate the improvements currently within the City’s capital improvement plan which the City’s comprehensive plan requires to be implemented within the next five years. Thus, the trial court reasoned that, since the fair share contract was unlawful, when the Council adopted an unlawful contract, it must have been acting in a policy-making legislative capacity. We agree with the parties that the reasoning of the trial court was in error. Even if the fair share contract were unlawful, a matter we do not address, the Council’s approval of a contract that is contrary to other ordinances or its comprehensive plan contract does not necessarily render the Council’s act legislative in nature. See, e.g., Grace v. Town of Palm Beach, 656 So.2d at 946.

Nevertheless, as argued by appel-lees, the trial court was correct in ruling that the Council’s action was legislative in nature, and subject to the mayor’s veto power, for reasons other than those upon which the trial court based its ruling. When the trial court reaches the right result, but for the wrong reasons, that decision will be upheld on appeal if there is any basis which would support the judgment in the record. Dade County School Board v. Radio Station WQBA 731 So.2d at 644-45; see also Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979); Cohen v. Mohawk, Inc., 137 So.2d 222, 225 (Fla.1962)(“[T]he judgment of the trial court reached the district court clothed with a presumption in favor of its validity.... Accordingly, if upon the pleadings and evidence before the trial court, there was any theory or principle of law that would support the trial court’s judgment in favor of the plaintiffs, the district court was obliged to affirm that judgment.”). In Florida jurisprudence, this principle is frequently referred to as the “tipsy coaeh-man” rule. Home Depot U.S.A. Co. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996).

Neither the Charter nor the Code defines the term “quasi-judicial.” This term, as well as the term “legislative,” has been considered by the Florida Supreme Court in the context of actions by local governmental entities in Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla.1993); Martin County v. Yusem, 690 So.2d 1288 (Fla.1997); and Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla.2001). In Snyder, Yusem, and Coastal Development, the Court analyzed the concepts of quasi-judicial and legislative actions in the context of addressing a separation of powers issue between the legislative branch, in this instance the legislative body of a municipal government such as the Council here, and the judicial branch. Snyder, 627 So.2d at 474-75, Yusem, 690 So.2d at 1293-94, and Coastal Development, 788 So.2d at 205-06. The Court held that, when local governmental bodies undertake legislative actions, a reviewing court’s standard of review must provide “deference to the policy-making function of a board when acting in a legislative ca-pacity_” Snyder, 627 So.2d at 474. Accordingly, legislative actions “will be sustained as long as they are fairly debatable. On the other hand, the rulings of a board acting in its quasi-judicial capacity ... will be upheld only if they are supported by substantial competent evidence.” Id. Thus, to determine the judiciary’s standard of review, a court must first determine whether the action under review was legislative or quasi-judicial.

In the case under review, however, we are considering the scope of the mayor’s veto authority granted under section 6.05 of the City’s Charter, not the standard of review that constrains the scope of judicial review. Further, we are not concerned with a matter of the executive branch (the mayor) deferring to the legislative branch (the Council), but a matter of interpretation of a provision of the City’s Charter. Section 6.05 of the Charter prohibits the mayor from vetoing the Council’s quasi-judicial actions, but allows the mayor to veto the Council’s policy-making legislative actions. Although we are not required to address whether the applications of the concepts of “quasi-judicial” in such materially different circumstances from those of Snyder, Yusem and Coastal Development, might lead us to adopt different definitions in the context of the case before us, our discussion of these terms here should be seen as solely relating to the restriction on the mayor’s authority under section 6.05 of the Charter. With these considerations in mind, we will address the definitions of quasi-judicial as developed in Snyder, Yu-sem, and Coastal Development.

In Snyder, the Florida Supreme Court reviewed the district court of appeal’s grant of a petition for writ of certiorari with respect to the denial by the Board of County Commissioners of Broward County of a rezoning application of a one-half acre parcel which was consistent with the county’s comprehensive plan. Recognizing that zoning decisions were historically considered legislative acts of local government, 627 So.2d at 472, the Court held that the board’s action was quasi-judicial. Id. at 474-75. The Court outlined four characteristics of a quasi-judicial decision: (1) quasi-judicial action results in the application of a general rule of policy, whereas legislative action formulates policy; (2) a quasi-judicial decision has an impact on a limited number of persons or property owners and on identifiable parties and interests, while a legislative action is open-ended and affects a broad class of individuals or situations; (3) a quasi-judicial decision is contingent on facts arrived at from distinct alternatives presented at a hearing, while a legislative action requires no basis in fact finding at a hearing; and (4) a “quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions,” while a legislative act prescribes what the rule or requirement shall be with respect to future acts. Id. at 474.

In Yusem, the Court considered whether an amendment of a local government’s comprehensive plan, by which the allowed property density was increased as a part of a request to rezone a 54-acre parcel, was a legislative or a quasi-judicial action. 690 So.2d at 1293-94. Martin County had denied the landowner’s request to amend the land use map that was a part of the county’s comprehensive plan and to rezone the subject property; and the owner filed suit seeking declaratory and injunctive relief. The trial court found that the county erred in denying the landowner’s application, but the district court of appeal reversed. The Supreme Court undertook review and, relying heavily on the dissent authored by (then) Judge Pariente, the Supreme Court concluded that an amendment to a comprehensive plan, like the initial adoption of the plan itself, is the result of the formulation of policy. Id. at 1293-94. As such, it is in the nature of a legislative action. Thus, the Supreme Court established a bright-line rule: the decision to amend a comprehensive land use plan is a legislative decision, even if the amendment affects only a single parcel of property. Id. at 1293-95.

In Coastal Development, the Jacksonville Beach City Council denied a proposed small-scale development amendment to the City’s comprehensive plan, which the developer sought pursuant to section 163.3187(l)(c), Florida Statutes (1996), to commercially develop a 1.7 acre parcel. The circuit court granted certiorari relief and ordered the City to grant the developer's application, ruling that the City Council’s decision was quasi-judicial in nature. 788 So.2d at 205-06. This court granted the City’s petition for writ of certiorari, holding that the City’s decision was legislative, not quasi-judicial, and certified a question of great public importance. Id. at 206. On review, the Court held that decisions regarding small scale development amendments are legislative in nature. The Court noted that the process of adopting small scale development amendments differed from regular comprehensive plan developments considered in Yu-sem, id. at 207, and “may not involve a change to the textual goals, policies or objectives of the comprehensive plan.” Id. Nevertheless, because small scale development amendments involve changes to the future land use element of the comprehensive plan, the change involved a policy decision and was legislative in nature. Id. at 209. As the Court explained: Id. (quoting City of Jacksonville v. Coastal Development of North Florida, Inc., 730 So.2d 792, 794 (Fla. 1st DCA 1999); italics supplied by Supreme Court). The Court emphasized that “our conclusion in this case reinforces our policy underlying Yu-sem, which was to promote uniformity and certainty in land use planning decisions.” Id.

It seems to us that all comprehensive plan amendment requests necessarily involve the formulation of policy, rather than its mere application. Regardless of the scale of the proposed development, a comprehensive plan amendment request will require that the governmental entity determine whether it is socially desirable to reformulate the policies previously formulated for the orderly future growth of the community. This will, in turn, require that it consider the likely impact that the proposed amendment would have on traffic, utilities, other services, and future capital expenditures, among other things. That is, in fact, precisely what occurred here. Such considerations are different in kind from those which come into play in considering a rezoning request.

We read section 6.05 of the Charter as granting to the mayor a role equal to the Council in policy-making decisions. While the Council performs the legislative role in enacting ordinances, the mayor has the authority to veto, subject to Council override, the Council’s legislative acts. The Council, however, has exclusive authority with respect to quasi-judicial actions involving the application of existing policy or law to facts presented to it.

In the case under review, we conclude that the Council’s decision to approve Horton’s fair share assessment contract was a policy decision which was legislative in nature, similar to the decision made by the Jacksonville Beach City Council in Coastal Development. In reviewing Horton’s contract, the Council did not simply apply the provisions of section 655.303(b) of the Code to the facts relating to the fair share contract. Similar to the land use amendment considered in Yusem, consideration of the Horton fair share assessment contract required the Council, and later the mayor, to evaluate the likely impact of that contract on the City’s provision of local services, on its planned capital expenditures, and on its overall plan for the managed growth and future development of the surrounding area. As is apparent from the record, the decision whether to approve the proposed contract involved considerations well beyond Horton’s 150-acre development.

Further, despite subsection (3) of section 655.303(b), Jacksonville Ordinance Code, which requires that the “proposed development [be] consistent with the comprehensive plan,” the Council here approved a fair share contract which requires future changes to the comprehensive plan. Under the express terms of Horton’s fair share contract, the City was obligated to add previously unplanned roadway capacity to its capital improvement program to provide the transportation infrastructure necessary to address the transportation impact of the proposed development within and beyond the immediate area of the proposed development. These roadway additions will require amendments to the capital improvements element of the City’s comprehensive plan. Compare Yusem, 690 So.2d at 1294. Thus, in considering the Horton fair share contract, the Council and mayor necessarily were required to evaluate the impact of the proposed development on the City’s overall transportation facilities and expenditures, including its ability to provide for future growth. As with the amendment to the future land use element in Coastal Development, in amending its capital improvement program, here the City must “determine whether it is socially desirable to reformulate the policies previously formulated for the orderly future growth of the community.” 788 So.2d at 209 (quoting Coastal Development, 730 So.2d at 794).

For these reasons, we conclude that the Council’s resolution approving Horton’s fair share contract was not a quasi-judicial action. Thus, the Council’s action was subject to the mayor’s veto power under section 6.05 of the Charter.

Although the Council’s designation of a matter as a quasi-judicial or legislative ordinance would not be determinative with respect to the nature of the Council’s decision, see generally, 5 McQuillan Mun. Corp. § 16.41 (3d ed.2006), our holding here is consistent with the manner in which the Council itself viewed Horton’s fair share contract. As noted above, the fair share contract was considered by the Council as a resolution. The agenda for the Council makes a distinction between Council “resolutions” and “quasi-judicial” actions. The Council’s agenda for the meeting at which the Horton resolution was considered lists seven such “quasi-judicial” ordinances to be heard at that Council session. Approval of Horton’s fair share contract, however, was not listed as a “quasi-judicial” matter and was not heard as such.

AFFIRMED.

WEBSTER and BENTON, JJ., concur.

      . Under section 655.303(b) of the City Code, the five requirements which all must be met before development under a fair share agreement may proceed are:
      (1) The comprehensive plan is in compliance as of the effective date of the fair share assessment contract;
      (2) The proposed development is consistent with the comprehensive plan;
      (3) The five-year Capital Improvement Program "CIP” provides for transportation projects which, upon completion, will provide transportation facilities adequate to serve the proposed development;
      (4) The Department has calculated the fair share of the cost of providing of transportation facilities necessary to serve the proposed development according to the formula established in Section 655.304(a) herein and the assessment has a reasonable relationship to the transportation impact generated by the proposed development;
      (5)The landowner or developer has executed a fair share assessment contract, on a standardized form approved by the office of General Counsel and the Council Auditor’s Office, and has agreed to pay the City the amount assessed prior to the issuance of any final development order or final development permit in connection with the proposed development, or has agreed to construct specific roadway improvements specifically identified in the fair share assessment contract and provide a bond.

      . In the action below, the parties did not directly challenge the legality of the Council’s action approving the fair share contract. Further, on appeal, the appellees do not argue that Horton’s fair share contract was unlawful. Accordingly, we do not address the trial court’s conclusion regarding the contract’s legality.


source: Caselaw Access Project

author: PADOVANO, J.

license: Public Domain

text:
    K.W. father of S.S., J.W., J.W. and D.W., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-2086.
    District Court of Appeal of Florida, First District.
    June 18, 2007.

      K.W., pro se, Appellant.
    Lucy Goddard-Teel, Department of Children & Families, Gainesville; Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee.
   PADOVANO, J.

The appellant seeks review of a final order terminating his parental rights to his two children. He contends that the termination was premature, in that the trial court had not yet fully explored the possibility of long-term relative placement for the children. We conclude that the placement issue had no effect on the judgment in this case and therefore we affirm.

Several years ago, the appellant was convicted on nine counts of sexually abusing his two children, his two step-children, and others. He is presently serving three consecutive life sentences in prison. The Department filed a petition to terminate the appellant’s parental rights, alleging that he would be incarcerated during the children’s remaining minority; that he had engaged in egregious conduct toward the children; that he had been adjudicated to be a sexual predator; that it would be harmful to the children to continue their relationship with an incarcerated parent; and that he had subjected the children to sexual abuse.

The appellant’s mother, who lives in Tennessee, indicated an interest in taking the children for long-term placement, but a home study of her residence had not been completed by the time of the final hearing. The appellant now contends that termination of his parental rights was not the least restrictive means of protecting the children, because the court does not yet know whether relative placement with the paternal grandmother would be appropriate. We reject this argument.

The least restrictive means test requires that measures short of termination be taken if they would enable the child to reunite safely with the parent. See L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002). This test is useful in determining whether it is necessary to terminate parental rights, but it has no bearing on the subsequent task of placing the children in a suitable home after parental rights have been terminated. That is a separate issue.

To prevail in a proceeding to terminate parental rights, the Department must prove the existence of a statutory ground and establish that termination would be in the manifest best interest of the child. Section 39.810, Florida Statutes (2006) provides that the court may consider a relative placement in determining whether termination is in the child’s best interest. However, the statute then qualifies this general point by stating that the availability of a “placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights.” By the text of this statute, the possibility of a relative placement is plainly not a reason to delay a decision to terminate parental rights if termination is otherwise in the manifest best interest of the child.

The availability of a relative placement might be more important in a case in which a parent is temporarily incapable of caring for a child. In the present case, however, the appellant committed atrocious crimes against his children and he is now serving a lengthy prison sentence for those crimes. This is not the kind of parental relationship the court should seek to preserve by placing children with a relative. Here, a termination of parental rights was, in fact, the least restrictive means of protecting the children, whether there was an available relative placement or not.

Other courts have also concluded that the existence of a long-term relative placement does not foreclose a termination of parental rights. For example, in A J. v. K.A.O., 951 So.2d 30, 31 (Fla. 5th DCA 2007), the court affirmed a decision to terminate a father’s parental rights, even though the trial court had not considered a possible relative placement. The father had been sentenced to ten years in federal prison, and the trial court found that he had not previously established a bond with his children. Based on these facts, the court concluded that termination was the least restrictive means of protecting the children, despite the existence of a long-term relative placement. As the court explained, the least restrictive means test was not intended to preserve a parental relationship at the cost of a child’s future. See A.J., 951 So.2d at 32.

The appellant contends that our decision in C.M. v. Department of Children and Families, 953 So.2d 547 (Fla. 1st DCA 2007) (on rehearing), requires us to remand this case with directions to the trial court to consider the possibility of placing the children with his mother in Tennessee. However, the main factor that prompted the remand in C.M. is not present in this case. In C.M., the trial court foreclosed the possibility of an adoption by a relative in the termination order itself. This case differs in that the placement issue remains open. All that is before this court at present is the trial court’s decision to terminate the appellant’s parental rights, and we certainly have no reason to find fault with that decision. In fact, it appears to be the only reasonable decision the court could have made.

For these reasons, we affirm.

BROWNING, C.J., and WEBSTER, J., concur.


author: CASANUEVA, Judge.

text:
    Darious HOLLOMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3294.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.

      ■ James Marion Moorman, Public Defender,. and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum', Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Darious Holloman seeks review of his judgment and sentence for possession of cocaine. His motion to suppress the cocaine was denied and he pleaded no contest to the charge, reserving the right to appeal the denial of suppression, which the parties stipulated was dispositive. We reverse.

Evidence Adduced At The Hearing On The Motion To Suppress

At the hearing on the motion to suppress, the evidence showed that Mr. Hollo-man and his companion, William Turner, while driving a gold Dodge Intrepid late one evening in February 2005, had come under surveillance by the St. Petersburg Police Department. Providing a description of the occupants, their clothing, and the tag number of the vehicle, the surveillance unit requested a uniformed patrol officer to make a traffic stop because numerous reckless driving infractions had been observed, as well as some suspected drug transactions. The gold Intrepid fled from the traffic stop that Officer Michael Kovascev attempted to make and was lost to law enforcement. However, later that night, Officers Michael Garter and Jason Irvin, who were at a St. Petersburg motel in a known drug area and just completing an investigation of a different matter, observed Mr. Holloman and Mr. Turner getting out of a taxi at the motel. These two officers had also been monitoring the surveillance unit’s broadcasts and noted that the two individuals matched the description of the persons in the gold Intrepid. As the pair of suspects were going into a room, the officers initiated a “citizen contact” with Mr. Turner, who was still outside the room. Upon inquiry, the man told Officer Carter that his name was “Ricky Turner.” Officer Carter knew Mr. Turner from two prior contacts and also knew that “Ricky” was not his real name.

The officers began to arrest Mr. Turner, who turned around and began pounding on the door of the motel room, which Mr. Holloman then opened. As the officers were trying to keep Mr. Turner from fleeing into the room, he reached into his pocket and handed something off to Mr. Holloman. The officers could not tell at this point what had been handed off. Mr. Holloman went to the back of the room and tossed what he had been handed into the bathroom. As he did so, the officers saw that the objects were two opaque M & M candy containers. The officers knew that crack cocaine drug users and dealers commonly used this kind of container to store their crack; in fact, one officer testified that he had seen more crack cocaine than candy in this kind of container. After Mr. Holloman tossed the candy containers into the bathroom, he returned to the doorway and, using both his hand and the door, succeeded in pushing the officers out of the doorway and closing the door.

The officers finished securing Mr. Turner, turned him over to backup officers, entered the motel room, and arrested Mr. Holloman. They then searched the bathroom, recovered the M & M containers, and opened them to find that they did contain crack cocaine. They also found a marijuana cigarette in plain view in the bathroom. The trial court denied suppression on the basis that exigent circumstances existed surrounding the arrest of Mr. Turner and the officers had the right to seize the opaque M & M containers because they were in plain view. Only the cocaine in the candy containers was the subject of Mr. Holloman’s motion to suppress.

Analysis

A person’s home “is accorded the full range of Fourth Amendment protections.” Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). This protection is afforded because there is an expectation of privacy in one’s dwelling that our society recognizes as justified to protect the occupant against an unreasonable entry. Thus, a nonconsensual entry into a home, a motel room, or other residence constitutes a search. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New. York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Therefore, the first question to be answered is whether Mr. Holloman’s motel room is afforded the same constitutional protection as his home.

At the suppression hearing, Mr. Holloman testified without contradiction that he was a guest at the motel and had not been asked to leave. The constitutional rights and privileges that apply to those who occupy private permanent dwellings also apply to those who occupy a motel room when the “occupant is there legally, has paid or arranged to pay, and has not been asked to leave.” Turner v. State, 645 So.2d 444, 447 (Fla.1994); Vasquez v. State, 870 So.2d 26 (Fla. 2d DCA 2003); Gilbert v. State, 789 So.2d 426, 428 (Fla. 4th DCA 2001). Thus, Mr. Holloman provided sufficient evidence of an expectation of privacy in the motel room to render the entry and search presumptively unreasonable unless the State proved an exception to the warrant requirement.

“Absent consent, a search warrant, or an arrest warrant, a police officer may enter a private home only when there are exigent circumstances for the entry.” Tillman v. State, 934 So.2d 1263, 1272 (Fla.2006) (citing Taylor v. State, 740 So.2d 89, 90 (Fla. 1st DCA 1999)). Although the chief evil the Fourth Amendment was designed to protect against was the physical entry into a person’s home, Payton, 445 U.S. at 585, 100 S.Ct. 1371, when the State can establish exigent circumstances, it is reasonable for law enforcement officers to cross the home’s threshold without a warrant. Id. at 590, 100 S.Ct. 1371; Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Riggs v. State, 918 So.2d 274, 278 (Fla.2005). An exigent circumstance may be “a ‘grave emergency’ that ‘makes a warrantless search imperative to the safety of the police and of the community.’ An entry is considered ‘imperative’ when the government can show a ‘compelling need for official action and no time to secure a warrant.’ ” Riggs, 918 So.2d at 279 (quoting Illinois v. Rodriguez, 497 U.S. 177, 191, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), and Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). These circumstances include the pursuit of a fleeing felon. Riggs, 918 So.2d at 279 (citing Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)).

“The circumstances in which the Supreme Court has applied the exigent circumstances exception are ‘few in number and carefully delineated.’ They include pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting fires.” Tillman, 934 So.2d at 1272 (citing Riggs v. State, 918 So.2d 274, 279 (Fla.2005)).

Mr. Holloman contends that the State did not carry its burden in proving exigent circumstances because it presented no evidence of the delay between Mr. Turner’s arrest outside the room and the officers’ entry into the room to look for him. We find this argument unpersuasive. Officer Irvin testified that backup officers were called while he and Officer Carter were attempting to arrest Mr. Turner. The backup arrived and took control of Mr. Turner, immediately after which he and Officer Carter entered the motel room in pursuit of Mr. Holloman. According to Officer Irvin, everything happened all of a sudden. The clear inference from this testimony is that the officers entered the room as quickly as possible and any delay was minimal. We conclude that the State proved exigent circumstances regarding Mr. Holloman. Because the officers were in pursuit of a person who had just committed a battery on a law enforcement officer, their warrantless entry into the motel room was not in violation of the Fourth Amendment.

Having concluded the officers’ entry into the motel room was proper, we next determine whether the officers exceeded the authorized scope of the search. Because the circumstances of the officers’ entry into the motel room were justified and they properly arrested Mr. Holloman for committing a battery on a law enforcement officer, the officers were permitted to perform a cursory search of the room where the arrest took place. See State v. Futch, 715 So.2d 992 (Fla. 2d DCA 1998) (holding that a warrantless search incident to a lawful arrest is limited to the area within the immediate control of the defendant). This authorization does not mean, however, that officers are entitled to search any closed container in any room.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court held that a warrantless search of the defendant’s entire house incident to the arrest was impermissible under the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness and it is reasonable for the arresting officer to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” Id. at 763, 89 S.Ct. 2034. However, there is no similar justification “for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Id.

Pursuant to Chimel and Futch, the law enforcement officers possessed authority to search the area within Mr. Holloman’s immediate control and to seize any weapon or evidence pertaining to the crime of battery on a law enforcement officer for which he was being arrested. They also could seize any other incriminating item if legally justified, for example, by the plain view exception. In this instance, however, the candy containers were seized in another room, an area not within the immediate control of Mr. Holloman at the time of his arrest.

Our law requires a warrant to search a person’s home, unless the exigencies of the situation “make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The instant situation lacked sufficient exigencies to eliminate the need for a warrant because at the time the containers were seized, Mr. Holloman was already under arrest in another room. There was, thus, no danger that he might dispose of the contents or any other reason to excuse the need for a warrant.

Although not necessary to our disposition, we note that although the officers may have had a suspicion, even a reasonable suspicion, that these particular containers might contain contraband, they had no probable cause to conclude that the contents were, in fact, contraband. On their face, the containers held innocuous candy. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (reiterating that incriminating nature of item seized in plain view must be immediately apparent). Because the officers lacked probable cause to believe the containers held contraband and because the incriminating nature of the contents was not immediately apparent, they could not seize them, even though the containers themselves were in plain view.

Because the seizure and search of the M & M containers, as to Mr. Holloman, did not fall within an exception to the Fourth Amendment’s warrant requirement, we must reverse the conviction for possession of cocaine.

Reversed and remanded.

STRINGER, J„ Concurs.

FULMER, C.J., Concurs in result only.

      . Based on the same episode that gave rise to the charge of possession of cocaine and his motion to suppress, Mr. Holloman was also charged with and pleaded no contest to battery on a law enforcement officer. Mr. Hollo-man. appeals only the judgment and sentence for possession of cocaine.

      . We do not comment upon or resolve any potential claim by Mr. Turner of a violation of his Fourth Amendment rights. The analysis of such a claim would likely differ. Here, we review only Mr. Holloman's claim that his Fourth Amendment right was violated.


author: PER CURIAM.

text:
    Bobby JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1305.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Rehearing Denied July 26, 2007.
    Bobby Jones, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. Johnson v. State, 267 So.2d 114, 114 (Fla. 2d DCA 1972)(“Appellant raises for the first time on appeal questions which must first be submitted to the trial court pursuant to [Fla. R.Crim. P.] 3.850.... There is no reversible error shown.”).


author: ROTHENBERG, Judge.

text:
    Antonio PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-935.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.

      Antonio Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Antonio Perez (“Perez”) appeals from the denial of his postconviction “Motion For a New Trial and/or for Judgement [sic] of Acquittal” (“Motion for New Trial”). Finding no error, we affirm.

On September 25, 1992, after a jury trial, Perez was convicted of possession of a firearm by a convicted felon, in violation of section 790.23(1), Florida Statutes (1991), and sentenced to a term of thirty years as a habitual felony offender. Perez appealed and this court affirmed on July 19, 1994. Perez v. State, 639 So.2d 200 (Fla. 3d DCA 1994).

On November 21, 1994, Perez filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. On January 5, 1995, the trial court denied his motion. On January 10, 1995, Perez filed a motion for rehearing, attaching the testimony of Jesus Brito. The trial court denied the motion and this court affirmed. Perez v. State, 656 So.2d 161 (Fla. 3d DCA 1995).

On April 22, 1996, Perez filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida, which was denied. Perez also sought a writ of habeas corpus in this court, which was denied on November 25, 1998. Perez v. Singletary, 727 So.2d 935 (Fla. 3d DCA 1998).

On March 17, 1999, Perez filed a second motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence, attaching the testimony of Ramon Chirino and Jesus Brito. On June 15, 1999, the trial court denied the motion on the basis that it was successive and legally insufficient. Perez’s motion for rehearing was denied on September 23,1999. Perez then filed another habeas petition in this court, alleging that he never received notice of the September 23, 1999 denial of his motion for postconviction relief, and thus, he was unfairly prejudiced. This court denied the petition. Perez v. Moore, 766 So.2d 1055 (Fla. 3d DCA 2000).

On February 12, 2001, Perez filed a third motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence. Perez again attached the testimony of Ramon Chirino and Jesus Brito. On March 8, 2001, the trial court denied the motion, explaining that Perez failed to show that he could not have procured the witnesses within the allowable time. Perez filed a motion for clarification or reconsideration, which the trial court denied on April 5, 2002. On May 17, 2002, Perez filed a notice of appeal, which this court dismissed. Perez v. State, 838 So.2d 1167 (Fla. 3d DCA 2002).

On April 16, 2003, Perez filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging, inter alia, that the trial court erred in failing to make the necessary factual findings in imposing a habitual felony offender sentence and that his sentence violated the Eighth Amendment. On May 6, 2003, the trial court denied the motion finding that it was untimely, legally insufficient, and the grounds raised in the motion were raised, or could have been raised, on direct appeal.

Undaunted, Perez filed another motion to correct an unlawful sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) on January 15, 2004, alleging the same errors he alleged in the motion he submitted on April 16, 2003. The trial court denied the motion on the basis that it was legally insufficient, Perez filed a notice of appeal, and this court affirmed. Perez v. State, 876 So.2d 570 (Fla. 3d DCA 2004).

Perez’s next motion was a motion for new trial. On November 28, 2005, the trial court denied the motion finding that it was legally insufficient. After filing a notice of appeal, Perez filed a motion for voluntary dismissal. This court acknowledged the motion for voluntary dismissal, and Perez’s appeal was dismissed on November 15, 2006. Perez v. State, 941 So.2d 385 (Fla. 3d DCA 2006).

On December 5, 2006, Perez filed another Motion For New Trial, which is the subject of this appeal, stating that it was filed pursuant to Florida Rules of Criminal Procedure 3.380, 3.380(a), and 3.600. In this motion, Perez raises six issues. First, Perez alleges that his defense attorney deprived him of a fair and impartial trial by failing to request the trial judge to review the weight of the evidence. Second, he alleges that the trial court fundamentally erred in failing to conduct a Frye hearing on the admissibility of novel scientific evidence. Third, he alleges that the trial court fundamentally erred in failing to provide him, as an indigent defendant, with expert witnesses not “beholden” to the prosecution. Fourth, he alleges that fundamental error was committed because the prosecution’s fingerprint experts were not qualified and the methodology used by them had not yet been accepted. Fifth, he alleges that the trial court fundamentally erred by failing to enter a judgment of acquittal after the State failed to meet its burden of proof. Lastly, he alleges ineffective assistance of trial counsel based on trial counsel’s failure to file various pretrial motions to suppress the fingerprint evidence. On December 12, 2006, the trial court denied the motion on the basis that it was insufficient to support the relief sought. On January 9, 2007, Perez filed a motion for rehearing, which was denied on January 23, 2007, to which Perez now appeals.

Although Perez filed the instant postconviction Motion for New Trial pursuant to rules 3.600 and 3.380, this motion is not cognizable under rule 3.380 as 3.380 pertains to a motion for Judgment of Acquittal raised at the “close of evidence for the state or at the close of all the evidence in the cause,” not for claims raised numerous years after conviction and sentence. We have, therefore, reviewed Perez’s claims as having been filed pursuant to either rule 3.850 or 3.800.

In the first and sixth claims raised by Perez, he alleges ineffective assistance of trial counsel, and thus, we treat these claims as filed pursuant to Florida Rule of Criminal Procedure 3.850(a)(1). These claims are time barred because the motion was filed more than two years after the judgment became final, and the facts surrounding these claims were known, or should have been known, to Perez within the time allowable under the rule. See Fla. R.Crim. P. 3.850(b)(1) (“No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case ... unless it alleges that the facts on which the claim is predicated were unknown to the movant or the mov-ant’s attorney and could not have been ascertained by the exercise of due diligence....”). Moreover, the claims are procedurally barred because Perez could have presented them in any one of his previous motions for postconviction relief. See Fla. R.Crim. P. 3.850(f) (“A second or successive motion may be dismissed ... if new and different grounds are alleged [and] the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.”).

Perez’s second, third, fourth, and fifth claims are all claims Perez could have raised on direct appeal and, therefore, not cognizable under rule 3.850 or 3.800, and are procedurally barred.

This court cautions Mr. Perez that the further filing of procedurally and/or time-barred motions may result in him being barred from filing any further pro se motions in this case, see Maggard v. State, 790 So.2d 506, 508 (Fla. 5th DCA 2001), and subject him to sanctions by the Florida Department of Corrections.

Affirmed.


text:
    Jean DESROSES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2317.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Jean Desroses, in proper person.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Archer v. State, 934 So.2d 1187 (Fla.2006); Wood v. State, 867 So.2d 590 (Fla. 5th DCA 2004).


author: SUAREZ, J.

text:
    Steven BRIECKE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-167.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Steven Briecke, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of point 9 of the defendant’s rule 3.850 motion as it is without merit. However, on appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because, as the State concedes, the record now before us fails to make the required showing for points 1-8 and points 10 and 11 of defendant’s motion, we reverse the order as to those points and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Affirmed in part, reversed in part and remanded for further proceedings with directions.


text:
    Joseph PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-479.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Joseph Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See § 775.087(2), Fla. Stat. (1993); Fla. R.Crim. P. 3.702(d)(12); Grantham v. State, 735 So.2d 525 (Fla. 2d DCA 1999).


text:
    Jason PARNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-849.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Jason Parnell, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Blanchard v. State, 909 So.2d 352 (Fla. 5th DCA 2005).


text:
    Larry CHARLTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1001.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Larry Charlton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to relief.

Reversed and remanded for further proceedings.


text:
    Silvio MITSOULIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1011.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Rehearing Denied July 18, 2007.
    Silvio Mitsoulis, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Stano v. State, 520 So.2d 278 (Fla.1988).


text:
    Paula S. SMYTH, Appellant, v. Randolph Lyle SMYTH, Appellee.
    No. 1D06-1140.
    District Court of Appeal of Florida, First District.
    June 21, 2007.

      Paula S. Smyth, pro se, Appellant.
    E. Jane Brehany, Pensacola, for Appellant.
    Randolph Lyle Smyth, pro se, Appellee.
   PER CURIAM.

Appellant (the wife) seeks review of a final judgment of dissolution of marriage. The wife raises five issues on appeal; we find one issue has merit. The wife argues that the trial court abused its discretion in awarding her only $250 per month in permanent periodic alimony. We agree and, therefore, reverse.

A trial court has broad discretion in awarding and determining the amount of alimony to do equity between the parties. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The standard of review is abuse of discretion. See id.

Section 61.08(1), Florida Statutes (2005), requires that, in awarding alimony, the trial court shall provide findings of fact relative to the factors enumerated in subsection (2) of the statute, which provides:

In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a)The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

In the instant case, the trial court found that the wife was in need of, and the husband had the ability to pay, permanent periodic alimony. The trial court made the requisite findings of fact pursuant to section 61.08(1) and ordered the husband to pay the wife permanent periodic alimony in the amount of $250 per month. The trial court’s findings of fact, however, were not consistent with the award.

Although the trial court found that the wife had sufficient education and training in her respective career to find appropriate employment, the trial court went on to find that the wife had no other source of income available to her at the time of the final judgment and was temporarily precluded from working. The trial court stated:

Presently the Wife has no other source of income available to her. Based upon findings that the Wife is staying at home to care for the parties’ disabled child and other two (2) children, the Wife is temporarily precluded from working in her former career as an attorney. The Husband’s professional full time sailing career, however, has been largely unhindered by the birth of the parties’ three (3) children....

As the trial court failed to make any findings that the husband’s income would preclude him from paying more, it abused its discretion in awarding the wife only $250 in permanent periodic alimony.

Accordingly, we reverse the award of $250 per month in permanent periodic alimony, and remand with directions that the trial court award the wife permanent periodic alimony in an amount consistent with its aforementioned findings of fact.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


author: WEBSTER, J. BENTON, J.,

text:
    David Ray YOUNGBLOOD, Former Husband, Appellant, v. Marcella Ann YOUNGBLOOD, Former Wife, Appellee.
    No. 1D06-4946.
    District Court of Appeal of Florida, First District.
    June 21, 2007.

      Joseph D. Lorenz of Poché & Lorenz, LLP, Shalimar, for Appellant.
    Jams L. Burke, Fort Walton Beach, for Appellee.
   WEBSTER, J.

The former husband seeks review of the trial court’s order holding him in contempt for failing to pay to the former wife a share of his concurrent disability pay pursuant to the final judgment of dissolution of marriage. Because we agree with the former husband that he was not required to make such a payment pursuant to the final judgment, we reverse the order holding him in contempt and directing him to pay the former wife a share of his concurrent disability pay.

In 2000, the trial court entered a final judgment dissolving the parties’ 43-year marriage. At the time, the former husband, who was retired from the military and disabled, was receiving both military retirement pay and Veterans’ Administration (VA) disability benefits. However, as a condition of receiving VA disability benefits, the former husband was required to waive a corresponding amount of his military retirement pay (VA waiver). See Mansell v. Mansell, 490 U.S. 581, 583-84, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Because the former husband was receiving $2,366.00 each month in VA disability benefits, he waived $2,366.00 of his gross military retirement pay, resulting in net military retirement pay of $100.51. The final judgment provided that “[t]he parties have agreed that the Wife shall be due one-half (½) of the Husband’s military retirement pay as a vested property right, and one-half (½) of his VA waiver as permanent periodic alimony.” By giving the former wife one-half of the former husband’s VA waiver as alimony, the final judgment assured that the former wife would receive her full share of the former husband’s military retirement as if no VA waiver had been taken. See Longanecker v. Longanecker, 782 So.2d 406 (Fla. 2d DCA 2001). Thus, under the final judgment, the former wife received $50.25 each month in retirement pay and $1,183.00 (one-half of the VA waiver) in monthly alimony for a total monthly payment to the former wife of $1,233.25, which was equivalent to one-half of the former husband’s military retirement pay if no VA waiver had been taken.

Effective January 1, 2004, federal legislation provided for the phased restoration of retirement pay currently, deducted from certain military retirees’ accounts due to their receipt of VA disability benefits. 10 U.S.C. § 1414. This restoration of retirement pay has been referred to as “concurrent disability pay.” Beginning in February 2004, the former husband received $750.00 each month in concurrent disability pay. This resulted in a $750.00 decrease in the VA waiver (from $2,366.00 to $1,616.00) and a corresponding $750.00 increase in the former husband’s net retirement pay (from $100.51 to $850.51). It also resulted in a reduction in the former wife’s monthly alimony (from $1,183.00 to $808.00) and an increase in the monthly amount she received from the former husband’s military retirement (from $50.25 to $425.25) for a total monthly payment of $1,233.25. In short, the former wife continued to receive her full share of the former husband’s military retirement pay as if no VA waiver had been taken.

In March and June 2004, the former wife filed motions for contempt and enforcement which claimed, among other things, that the former husband was not paying her a share of his concurrent disability pay. In July 2004, the trial court entered an order concluding that under the final judgment of dissolution, the former wife was entitled to receive one-half of the former husband’s concurrent disability pay in addition to one-half of his military retirement pay and one-half of his VA waiver. The trial court reserved ruling on the amount of the arrearage in concurrent disability pay and the former wife’s motion for contempt. The former husband filed an appeal which this court designated as an appeal from an appealable, non-final order. In May 2005, this court affirmed without opinion. Youngblood v. Youngblood, 905 So.2d 895 (Fla. 1st DCA 2005) (table). In June 2006, the trial court entered a final order holding the former husband in contempt and directing him to pay an arrearage in concurrent disability pay. This appeal follows.

The former husband claims that the trial court erred in holding him in contempt upon concluding that the former wife was entitled to one-half of his concurrent disability pay ($375.00 per month) in addition to the monthly payment of $1,233.25. The trial court’s conclusion appears to be based on the mistaken belief that concurrent disability pay increased the former husband’s gross retirement pay when, in reality, it merely restored retirement pay that the former husband previously was required to waive in order to receive VA disability benefits. The trial court’s ruling results in the former wife receiving more than one-half of the former husband’s military retirement pay which is clearly inconsistent with the final judgment. Although the former husband filed a non-final appeal challenging this ruling and this court affirmed without opinion, we must reconsider and correct this erroneous ruling, which has become the law of the case, because failure to do so would result in a manifest injustice. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001); Logue v. Logue, 766 So.2d 313, 315 (Fla. 4th DCA 2000). Requiring the former husband to make a payment not required by the final judgment would result in a manifest injustice, particularly where the former husband was held in contempt for failing to make the payment.

We acknowledge that the concurrent disability pay legislation contemplates that the former husband eventually will be allowed to receive the full amount of both his military retirement pay and VA disability benefits which will provide him with significantly more income than the former wife. However, we cannot read the final judgment of dissolution as permitting the former wife to receive half of all the former husband’s income related to his military service. Since this is merely an action to enforce the final judgment, there is no jurisdiction to consider whether modification of the final judgment is warranted in light of the subsequent concurrent disability pay legislation. Based on the clear language of the final judgment, we reverse the trial court’s final order holding the former husband in contempt and directing him to pay an arrearage in concurrent disability pay.

REVERSED.

ALLEN, J., concurs.

BENTON, J., dissents with written opinion.

BENTON, J.,

dissenting.

The order under review is far from a manifest injustice, and it faithfully implements our first ruling on the exact same question earlier in this very case. Originally, the trial court worded the parties’ divorce decree — in light of the intricacies of federal law then obtaining — to require Mr. Youngblood to split his retirement income with Mrs. Youngblood, who had been his wife for more than four decades. Later, in post-judgment proceedings she instituted to give full effect to the divorce decree — in light of an intervening change in federal law — the trial court required him to pay her half of his “concurrent disability pay” in addition to half of his “military retirement pay.” On interlocutory appeal, we affirmed.

Even accepting for present purposes the premise of the majority opinion that, on general principles, our original pronouncement of the law was erroneous, the law of the case ought to be given effect here. Under the doctrine of the law of the case, the ruling of the highest appellate court that decides a question is presumptively binding on the parties in all subsequent stages of the proceeding, trial and appellate.

Our supreme court has shown great flexibility in applying the law of the case doctrine, see Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (“Moreover, even as to those issues actually decided, the law of the case doctrine is more flexible than res judicata in that it also provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a ‘manifest injustice.’ ”), and has said:

This is the same suit and we have not lost jurisdiction thereof. Consequently, we have the power to correct any error which the Chancellor or we may have heretofore made in the progress of this litigation. There is no question of res adjudicata because this is the same, not a new and different, suit. However this Court, among others, has gone so far as to hold that it will not invoke the doctrine of res adjudi-cata if to do so would work injustice. The propriety of such ruling can not be questioned when one reflects upon the fact that the primary purpose for which our courts were created is to administer justice. In the case of Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302, 304, we said:
“Stare decisis and res adjudicata are perfectly sound doctrines, approved by this court, but they are governed by well-settled principles and when factual situations arise that to apply them would defeat justice we will apply a different rule. Social and economic complexes must compel the extension of legal formulas and the approval of new precedents when shown to be necessary to administer justice. In a democracy the administration of justice is the primary concern of the State and when this cannot be done effectively by adhering to old precedents they should be modified or discarded. Blind adherence to them gets us nowhere.”
A Court should have less hesitancy in changing “the law of the case” before losing jurisdiction than it would have in refusing to apply the doctrine of res adjudicata when all the requisites thereof are present. We may change “the law of the case” at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. In such a situation a court of justice should never adopt a pertinacious attitude.

Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 607-08 (Fla.1953).

Bush v. Holmes, 886 So.2d 340, 369-70 (Fla. 1st DCA 2004) (Benton, J., concurring) (collecting cases). Rulings that become law of the case bind the parties in appellate and trial courts alike for the duration of the case, whether correct on general principles or not, so long as the facts on which the appellate decision was based remain the facts of the case. The law of the case governs, unless the initial appellate ruling is both (a) erroneous on general principles and (b) would, if undisturbed, result in manifest injustice.

At most, the majority opinion identifies a categorical, procedural or technical error, not the manifest injustice it hyperboli-cally proclaims. The thesis is that “concurrent disability pay” has a discrete legal character requiring that it be treated differently from “military retirement pay.” However that may be, the order under review evinces the same purpose that animated the parties’ divorce decree, and is a product of the same rationale and ongoing effort that produced that decree. The majority opinion “acknowledge^] that the concurrent disability pay legislation contemplates that the former husband eventually will be allowed to receive the full amount of both his military retirement pay and VA benefits which will provide him with significantly more income than the former wife,” ante p. 418, and also — wisely, in my estimation — seems to leave open the possibility — albeit in a different proceeding — “to consider whether modification of the final judgment is warranted in light of the subsequent concurrent disability pay legislation.” Id.

One of the rationales for the doctrine of the law of the case has been stated thus: “Judicial resources, already heavily taxed, are hardly efficiently allocated when they are used to twice review the same issue.” DeGennaro v. Janie Dean Chevrolet, Inc., 600 So.2d 44, 45 (Fla. 4th DCA 1992) (An-stead, J., specially concurring). Appellate review also consumes parties’ resources.

Fortunately for litigants and appeals courts alike, most litigation does not involve even a single appeal. Whatever else it may accomplish, an appeal consumes additional resources. Reflecting this reality, an important rule of decision has been devised for litigation that bubbles up repeatedly into the appellate courts: Once actually decided by the highest court to which the case goes, the law of the ease cannot be revisited, with rare exceptions not applicable here.

Edgewater Beach Owners Ass’n, Inc. v. Bd. of County Comm’rs of Walton County, Fla., 694 So.2d 43, 45 (Fla. 1st DCA 1997) (Benton, J., specially concurring). Breaching this “important rule of decision” in the present case can only serve as an inducement to relitigating questions already decided on appeal in other cases, with the attendant waste of resources by courts and litigants alike.

Earlier in the present case, Mr. Young-blood bore the expense of prosecuting an appeal and Mrs. Youngblood bore the expense of defending that appeal to get an answer to the precise question on which the court today somersaults. See Youngblood, v. Youngblood, 905 So.2d 895 (Fla. 1st DCA 2005) (Ervin, Padovano and Thomas) (table). See also Barry Hinnant, Inc. v. Spottswood, 481 So.2d 80, 83 (Fla. 1st DCA 1986); Exchange Invs., Inc. v. Alachua County, 481 So.2d 1223, 1227 (Fla. 1st DCA 1985) (“While a PCA has no precedential value, it becomes the law of the case as to the same parties and can be used for res judicata purposes.”) (Ervin, J., concurring in part and dissenting in part). As law of the case, our first decision should govern.

Accordingly, I respectfully dissent.


author: STRINGER, Judge.

text:
    Joanne Ferraro MILLER, Appellant, v. William Alan MILLER, Appellee.
    No. 2D07-346.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.

      Nathaniel B. Kidder, St. Petersburg, for Appellant.
    William Alan Miller, pro se.
   STRINGER, Judge.

In this postdissolution action, Joanne Miller (the Former Wife) appeals from the order on her “Amended Motion for Enforcement of Final Judgment” and the order denying rehearing of the same motion, contending that the trial court erred by modifying an award of lump-sum alimony when neither she nor William Miller (the Former Husband) had sought any modifications to the amended final judgment. We reverse the portion of the trial court’s order that modified the award of lump-sum alimony because the trial court had no jurisdiction to modify that award in the absence of a pleading seeking modification. In all other respects, we affirm.

The parties were divorced pursuant to an amended final judgment of dissolution that was rendered February 21, 2006. In the amended final judgment, the trial court determined that a residence owned by the parties in North Carolina was marital property, and it ordered the proceeds of the sale of that residence to be divided equally between the parties. After distributing the remaining assets and liabilities, the trial court determined that the Former Husband should pay the Former Wife $34,971.77 to equalize the distribution between the parties. Thus, under the amended final judgment of dissolution, the Former Wife was to receive half of the proceeds from the sale of the North Carolina residence and an additional payment of $34,971.77.

When the amended final judgment of dissolution was rendered, the proceeds of the sale of the North Carolina residence were being held in escrow by the Former Wife’s former attorney. Shortly after the amended final judgment of dissolution was rendered, the trial court ordered that $34,971.77 be disbursed to the Former Wife from the escrowed proceeds of the sale of the North Carolina residence. Although the trial court did not explicitly reference the equitable distribution equalizing payment in its order to disburse funds, the amount of this disbursement exactly equaled the equalizing payment ordered in the amended final judgment of dissolution. The trial court’s disbursement order did not make any reference to the provision of the amended final judgment of dissolution that awarded the Former Wife half of the proceeds of the sale of the North Carolina residence. Instead, the trial court ordered the remainder of the escrowed funds to be disbursed to the Former Husband.

On May 5, 2006, the Former Wife filed an amended motion to enforce the final judgment. In this motion, she noted that she had received the $34,971.77 payment that was intended to equalize the distribution to the parties. However, she asserted that she had not received her half of the proceeds from the sale of the North Carolina residence. She sought an order requiring the Former Husband, to whom the proceeds of the North Carolina residence had been disbursed, to pay her her half of those proceeds.

At the hearing on the Former Wife’s motion, the trial court orally ruled in favor of the Former Wife and ordered the Former Husband to pay the Former Wife $39,931.88, which represented her half of the proceeds of the sale of the North Carolina residence. However, when the trial court issued its written order, it not only ordered payment of this amount to the Former Wife, but it also reduced the award of lump-sum bridge-the-gap alimony that had been awarded to the Former Wife in the amended final judgment of dissolution. In doing so, the trial court noted that it had originally based the award of bridge-the-gap alimony on a misreading of the equitable distribution matrix that resulted in its mistaken belief that the Former Wife was awarded only $34,971.77 in cash. Because the Former Wife was now receiving almost $40,000 more than what the court originally thought she was receiving, the court believed that equity required it to reduce the lump-sum alimony award accordingly.

The trial court’s written order was rendered October 31, 2006. On November 2, 2006, the Former Wife filed a motion for rehearing, arguing that the trial court did not have jurisdiction to reduce the lump-sum alimony award because no pleading seeking modification of that alimony had been filed. On December 18, 2006, the trial court denied the Former Wife’s motion for rehearing. The Former Wife then filed her notice of appeal on January 17, 2007.

When this court received the Former Wife’s notice of appeal, we sua sponte ordered the Former Wife to provide this court with authority showing why this appeal should not be dismissed as untimely. We questioned whether the Former Wife’s motion for rehearing was an authorized motion for rehearing that tolled the time for rendition of the order on the amended motion to enforce and thus also tolled the time for filing the notice of appeal. Having reviewed the Former Wife’s response and having conducted our own research, we have determined that this appeal is timely.

In Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78 (Fla.1976), the supreme court addressed the issue of whether a postjudgment order could be a “final judgment” for purposes of filing a motion for rehearing under Florida Rule of Civil Procedure 1.530(a) that would be effective to stay rendition under Florida Rule of Appellate Procedure 9.020(h). In that case, the court explained,

An interlocutory order entered after judgment, post decretal, order, [sic] is not to be confused with one entered during the pendency of the proceedings before final judgment. Post decretal orders are not true interlocutory orders, and perhaps the term ‘interlocutory’ is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment, and, therefore, a petition for rehearing could be properly directed to such a post decretal order which constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment.

Id. at 79 (internal citation omitted). Thus, a motion for rehearing is authorized when directed to a postjudgment order that comprises a final ruling on some portion of the case that has arisen after entry of the final judgment. Id.; see also Remington v. Remington, 705 So.2d 920, 922 (Fla. 4th DCA1997).

Since Clearwater Federal, the courts have held that orders disposing of postdis-solution modification petitions and orders disposing of postdissolution contempt motions are “final” for purposes of the filing of an authorized motion for rehearing. Roshkind v. Roshkind, 717 So.2d 544 (Fla. 4th DCA 1997); Remington, 705 So.2d at 922-23. In addition, the Fifth District has held that an order on a motion for clarification and to enforce a final judgment of dissolution was sufficiently final that a motion for rehearing was authorized. Wool-ley v. Woolley, 637 So.2d 74 (Fla. 5th DCA 1994).

In Woolley, the former husband filed a motion seeking an order clarifying that, by signing the parties’ property settlement agreement, the former wife had waived her statutory entitlement to any portion of his federal retirement benefits. Id. at 75. He also sought an order enforcing the final judgment on this issue as it was written. Id. After the trial court denied the motion, the former husband filed a motion for rehearing. Only after the motion for rehearing was denied did the former husband file his notice of appeal. The Fifth District cited Clearwater Federal and held that the former husband’s notice of appeal was timely. Id. at 74 n. 1.

In this case, as in Woolley, the Former Wife filed a motion to enforce the final judgment as written as it applied to the distribution of the proceeds of the sale of the North Carolina residence. When the trial court granted this motion, it also sua sponte modified the lump-sum alimony that had been awarded to the Former Wife in the amended final judgment of dissolution. Because the portion of the trial court’s order concerning the alimony award constituted a final ruling on an issue that arose after entry of the final judgment, that portion of the order was a final postjudgment order to which a motion for rehearing was properly directed. Therefore, because the motion for rehearing was authorized, it stayed rendition of the final order until disposition of the motion. The notice of appeal was timely filed within thirty days after the order disposing of the motion for rehearing. Accordingly, this appeal is timely.

Turning to the merits of this appeal, we must reverse the order to the extent that it modifies the alimony award. “It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003); see also Cortina v. Cortina, 98 So.2d 334, 336 (Fla.1957) (“There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on such issue.”); Ksaibati v. Ksaibati, 824 So.2d 219, 221 (Fla. 2d DCA 2002).

Here, the only motion pending before the trial court was the Former Wife’s motion to enforce the amended final judgment. Neither the Former Wife nor the Former Husband sought modification of any aspect of the amended final judgment in any pleading, and neither party had notice that the trial court would consider modifying any aspect of the amended final judgment. Moreover, there was no discussion at the hearing concerning the trial court’s decision to modify the lump-sum alimony award. Rather, the modification of the lump-sum bridge-the-gap alimony award was presented as a fait accompli in the trial court’s written order that was served on the parties after the hearing. Under these circumstances, the trial court denied the Former Wife due process on this issue and abused its discretion by modifying the alimony award.

Accordingly, we reverse the order on appeal to the extent that it purports to modify the Former Husband’s obligation for bridge-the-gap alimony. As no other issues were raised by either party and the Former Husband did not cross-appeal, the remainder of the order is affirmed.

Affirmed in part; reversed in part.

NORTHCUTT and VILLANTI, JJ., concur.