author: GUNTHER, J.

text:
    Joseph GELINAS, Appellant, v. FOREST RIVER, INC., Appellee.
    No. 4D05-2656.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied July 18, 2006.

      Patrick S. Cousins of Cousins Law Firm, P.A., West Palm Beach, for appellant.
    John J. Glenn and Jeffrey L. Smith of AndersonGlenn, LLC, Ponte Vedra Beach, for appellee.
   GUNTHER, J.

Joseph Gelinas appeals the entry of a final judgment awarding Forest River, Inc. attorney’s fees and costs. This award was entered based on a proposal for settlement following the trial court’s granting of a summary judgment in favor of Forest River on Gelinas’s claims for recovery under Florida Statutes section 681.112. We reverse.

Gelinas filed suit against Forest River under section 681.112 to recover pecuniary losses, litigation costs, and reasonable attorney’s fees stemming from the purchase of a 1999 Forest River 2465 Georgetown Recreational Vehicle. The RV had previously been determined to be a “lemon” by the Florida New Motor Vehicle Arbitration Board, which awarded Gelinas a refund of $40,391.80 following an offset for his use of the RV.

Forest River filed a motion to dismiss Gelinas’s complaint. Forest River claimed that section 681.112 did not permit Gelinas to bring a “subsequent legal action for recovery of attorney fees and costs incurred in the underlying arbitration.” In a subsequent memorandum of law in support of the motion to dismiss, Forest River asserted that Gelinas was not entitled to recover pecuniary losses, litigation costs, or attorney’s fees under section 681.112.

The trial court denied Forest River’s motion to dismiss. The trial court concluded that Gelinas’s lawsuit was authorized under section 681.112 and King v. King Motor Co. of Fort Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001).

Thereafter, Forest River filed a motion for summary judgment on all claims raised in Gelinas’s complaint. Forest River asserted that Gelinas’s complaint failed to state a cause of action under section 681.112 for several reasons prohibiting the recovery of attorney’s fees and costs and pecuniary losses for the underlying arbitration.

Gelinas filed a memorandum of law in opposition to summary judgment. Gelinas asserted that the summary judgment motion was duplicative of the motion to dismiss that was rejected by the trial court, and that section 681.112 supported recovery of the damages sought by him.

The trial court entered an order granting Forest River’s motion for summary judgment. The trial court concluded:

The Court finds that Chapter 681, Florida Statutes, does not authorize a trial court to award a plaintiff the attorney’s fees he or she incurred during the arbitration of his or her claim before the Florida New Motor Vehicle Arbitration Board. If the Florida Legislature intended for the recovery of such damages, it would have so provided in the statute.

Gelinas filed a motion for clarification of the trial court’s order granting summary judgment. Gelinas requested clarification because he believed that the order granted a partial summary judgment as to the attorney’s fees and costs claimed, without addressing the other damages sought by him. The trial court denied the motion for clarification.

Following nearly a year-and-a-half of continued prosecution, Gelinas filed a voluntary dismissal of his claims against Forest River. Thereafter, Forest River filed a motion for entry of final judgment based on the summary judgment. Forest River also filed a motion for attorney’s fees and costs based on a proposal for settlement rejected by Gelinas. The proposal for settlement was in the amount of $5,000 and included an attached General Release and Confidentiality Agreement. Gelinas objected to Forest River’s motion for attorney’s fees and costs on the ground that it was moot following the voluntary dismissal.

The trial court entered an Order Granting Defendant’s Motion for Entitlement to Attorney’s Fees and Costs. The trial court found that the case was resolved by summary judgment and voluntary dismissal and that Forest River was entitled to attorney’s fees and costs based on the proposal for settlement. The trial court entered a final judgment in favor of Forest River and awarded it $15,360 in attorney’s fees and costs.

First, we address Gelinas’s second issue on appeal: whether the trial court erred by holding that the Lemon Law arbitration and refund barred recovery of attorney’s fees and costs and other pecuniary losses in a separate action under section 681.112. The standard of review applicable to orders on summary judgment is de novo. See Sec. Nat’l Serv. Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934, 936 (Fla. 4th DCA 2005). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

As a preliminary matter, we note that this issue was not waived by Gelinas’s filing of a voluntary dismissal. This is the case because the voluntary dismissal was a nullity. See Fla. R. Civ. P. 1.420(a)(1) (“Except in actions in which property had been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or- if the motion is denied, before retirement of the jury in a case tried'before a jury or before submission of a nonjury case to the court for decision.”); Stonely v. Moore, 851 So.2d 905, 906 (Fla. 3d DCA 2003) (notice of voluntary dismissal filed after summary judgment hearing was a nullity). In the case at bar, the summary judgment hearing took place and the motion for summary judgment was granted prior to Gelinas’s filing of the voluntary dismissal. As a result, the voluntary dismissal was a nullity and this issue on appeal was not waived.

Additionally, this case does not involve a partial summary judgment. Forest River’s motion for summary judgment was addressed to Gelinas’s entire complaint. Furthermore, the summary judgment order granted the motion for summary judgment without qualification, so that the trial court clearly granted the motion addressing the full complaint in its entirety. Therefore, there is no jurisdictional bar to Gelinas’s appeal.

With these preliminary matters resolved, we turn to the heart of the issue. Section 681.112 provides:

(1) A consumer may file an action to recover damages caused by a violation of this chapter. The court shall award a consumer who prevails in such action the amount of any pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief.
(2) An action brought under this chapter must be commenced within 1 year after the expiration of the Lemon Law rights period, or, if a consumer resorts to an informal dispute-settlement procedure or submits a dispute to the division or board, within 1 year after the final action of the procedure, division, or board.
(3) This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law.

Gelinas contends that this statute contemplates suits for recovery outside of the arbitration process and not based on Lemon Law theories of recovery. Gelinas further asserts that this contention is supported by the legislative intent section of the Lemon Law, which indicates that “nothing in this chapter shall in any way limit or expand the rights or remedies which are otherwise available to a consumer under any other law.” § 681.101, Fla. Stat.

Gelinas also relies on two cases from this Court to support his argument. The first case is King v. King Motor Co. of Fort Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001). King explores the scope of damages recoverable under section 681.112 and concludes that section 681.112 contemplates damages separately recoverable outside the refund or replacement remedy available from the Lemon Law arbitration board:

Section 681.112 provides for an action for damages caused by a statutory violation, apart from the replacemeni/refund remedy that is available by following the procedural pathway through arbitration contained in sections 681.109 and 681.1095. By requiring submission to the division and to arbitration, if appropriate, section 681.1095(4) guides consumers in the direction of the broadest remedy and the most streamlined procedure.
Section 681.112(1) uses the term “damages” and indicates that a prevailing consumer may recover “the amount of any pecuniary loss.”' When discussing the replacement/refund option, the statute uses the terms “refund,” “replacement,” “relief,” and “compliance” with an arbitration decision. See §§ 681.104(2)(a), 681.1095(8) & (9), Fla. Stat. (2000). This difference in terminology indicates that the statute uses the term “damages” to mean something other than the replacement/refund option. As used in section 681.112(1), “damages” should be given its plain and ordinary meaning of pecuniary compensation recovered by a person who has suffered a loss caused by a violation of Chapter 681.
Section 681.112 thus allows for a Chapter 681 damages case in circumstances where a refund or replacement is not an option. Such circumstances might include: (1) a warranty violation under section 681.103 which does not rise to the level of a “nonconformity” under section 681.104 because it does not substantially impair the use, value, or safety of a motor vehicle within the meaning of section 681.102(16); (2) a violation of a provision of Chapter 681 other than sections 681.104 or 681.103, such as section 681.114, pertaining to the resale of returned vehicles; (3) where the refund/replacement remedy does not fully compensate the consumer, see Maserati Autos., Inc. v. Coplan, 522 So.2d 993, 996 (Fla. 3d DCA 1988); or (4) the situation presented in this case, where the consumer cannot take advantage of the refund/replacement option because he cannot furnish clear title to and possession of the motor vehicle.

Id. at 940-941.

The second case relied upon by Gelinas is Burns v. DaimlerChrysler Corp., 914 So.2d 451 (Fla. 4th DCA 2005), which was decided following the entry of final judgment in this case. In Bums, a consumer filed both a Lemon Law arbitration claim and a Magnuson-Moss Warranty Act lawsuit. Id. at 452. Following a determination by the arbitration board that the vehicle was a “lemon,” the manufacturer moved for summary judgment on the Mag-nuson-Moss claims, and the trial court granted summary judgment based on res judicata and collateral estoppel. Id. at 452-453. In reversing, this Court noted that section 681.1095 authorizes the Lemon Law arbitration board to hear Lemon Law claims, but not any additional claims. Id. at 453. This Court further noted that:

The Board is clearly limited in the types of damages it can award. The Board is authorized to award either a refund of the full purchase price, less reasonable offset for use, or order the manufacturer to replace the motor vehicle. Nowhere does Florida’s Lemon Law indicate that the Board is authorized to award attorney fees.

Id. at 453^54.

Forest River responds that the attorney’s fees and costs and pecuniary loss damages sought by Gelinas under section 681.112are not recoverable. Forest River contends that this is the case for two reasons. First, based on Land v. General Motors Corp., 906 So.2d 1154 (Fla. 4th DCA 2005), Forest River asserts that by bringing claims for attorney’s fees and costs and pecuniary losses under section 681.112subsequent to arbitration, Gelinas impermissibly split his causes of action. In Land, a consumer filed a claim for Lemon Law arbitration, and when she did not receive the desired relief, she filed a lawsuit seeking both to appeal the arbitration board’s decision and to obtain relief under section 681.112 and the Magnuson-Moss Warranty Act. Id. at 1155. This Court affirmed the trial court’s conclusion that the arbitration board’s decision was not timely appealed and that “[o]nce the initial arbitration decision became final and binding, Land was unable to seek new avenues of relief for the same wrongful acts of General Motors.” Id. at 1155-1156. However, it should be noted that Land was limited to its facts by Bums, in which this Court wrote:

Further, Burns was not seeking the same damages he could have received in a Lemon Law Arbitration. As noted above, the damages sought in the Mag-nuson Moss action were different and additional to those received in Burns’s Lemon Law award. Burns was not trying to “double dip” with his Magnuson Moss action.

Burns, 914 So.2d at 454-455.

Second, Forest River posits that Gelinas was required to seek recovery for his asserted attorney’s fees and costs and pecuniary losses in the Lemon Law arbitration, because such claims are permitted by statute. For example, Forest River points to section 681.104(2)(a) which requires the refund or replacement of the “lemon” vehicle to take account of “all reasonably incurred collateral and incidental damages.” See § 681.102(3), (8), Fla. Stat. (defining collateral and incidental charges). However, the damages sought by Gelinas are not of this type.

On this issue, we conclude that Gelinas was permitted to bring claims for attorney’s fees and costs and pecuniary losses unrelated to refund or replacement of the vehicle in a lawsuit subsequent to Lemon Law arbitration via section 681.112. Based on its plain language, a section 681.112claim seeks the recovery of damages, and a consumer that prevails by being deemed entitled to damages may receive attorney’s fees and costs and compensation for pecuniary losses as part of a damages award. Gelinas’s claims for pecuniary losses are of the type cognizable under section 681.112 based on King, because the claims address how the refund remedy of arbitration did not fully compensate Gelinas, so that although refund was an option, it was an inadequate option. Gelinas’s claim for attorney’s fees and costs is also cognizable under section 681.112, because where a consumer’s vehicle has been deemed a “lemon” by the arbitration board, a violation of Chapter 681 has been found, and that consumer can seek attorney’s fees and costs under section 681.112 because such cannot be sought from the arbitration board, as explained in Bums.

Additionally, because this case does not involve facts identical to those in Land, we conclude that Land is not applicable to the case at bar, because it was limited to its facts by Bums. There are two significant differences between Land on one hand and Bums and the present case on the other hand. First, the vehicle in Land was not deemed a “lemon” by the arbitration board, while the vehicles in Bums and the present case were deemed “lemons.” Second, the claims raised subsequent to arbitration in Land were the arbitration claims dressed in different clothing; the claims in Bums and the present case are entirely different claims from those raised in the arbitration, seeking relief that cannot be awarded in the arbitration. As a result, the scenario at bar does not involve impermissible splitting of causes of action (or any other type of preclusion) as in Land, and Gelinas was permitted to raise entirely new claims in the proceedings subsequent to the arbitration. This conclusion is supported by section 681.112(2) which contemplates bringing a separate action for unre-covered damages within one year of the arbitration board’s decision.

Based on our consideration of King, Bums, and Land, we conclude that the trial court erred by granting Forest River’s motion for summary judgment and entering final judgment, because section 681.112 authorizes the recovery of attorney’s fees and costs and pecuniary losses not recoverable in a Lemon Law arbitration in a separate proceeding following such an arbitration. Therefore, we reverse and remand the final judgment.

Regarding the other issue raised by Gelinas, we also reverse the award of attorney’s fees and costs to Forest River in the final judgment based on its proposal for settlement. Any award of attorney’s fees and costs due to Forest River based on its proposal for settlement will need to be redetermined following remand based on which party prevails and the amount of recovery awarded.

In sum, we reverse and remand the final judgment in its entirety and direct the trial court to undertake further proceedings consistent with this opinion. Florida law permits Gelinas to bring a claim for attorney’s fees and costs and pecuniary losses in a proceeding separate from Lemon Law arbitration under section 681.112. Additionally, any award of attorney’s fees and costs to Forest River based on its proposal for settlement must be revisited following the consideration of Gelinas’s claims under section 681.112.

Reversed and Remanded.

STEVENSON, C.J. and MAY, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Y.F., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D05-1514.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Rehearing Denied July 11, 2006.

      Albert W. Guffanti, Miami, for appellant.
    Jeffrey Bassett, Panama City; Hillary S. Kambour, for appellee.
    Before LEVY, GREEN, SHEPHERD, JJ.
   PER CURIAM.

Contrary to the arguments advanced by the appellant/mother, we find that the order terminating her parental rights to her minor child pursuant to section 39.806(l)(c), and (e), Florida Statutes (2005); was supported by competent and substantial evidence in the record before us. See F.A.F. v. Dep’t of Children and Family Servs., 804 So.2d 616 (Fla. 3d DCA 2002). We therefore affirm the order under review.

Affirmed.


author: CORTIÑAS, Judge.

text:
    CITIZENS FOR REFORM, etc., Appellant/Cross-Appellee, v. CITIZENS FOR OPEN GOVERNMENT, INC., Appellee/Cross-Appellant, v. South Florida AFL-CIO and Transport Workers Union of America, Local 291, AFL-CIO, Intervenors-Appellees.
    No. 3D05-2168.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Rehearing and Rehearing En Banc Denied June 23, 2006.

      Bruce S. Rogow, Fort Lauderdale; Po-dhurst Orseck and Robert C. Josefsberg and Stephen F. Rosenthal, Miami, for appellant/cross-appellee.
    Stephen M. Cody, Coral Gables, for ap-pellee/cross-appellant.
    Coffey & Wright and Kendall Coffey; Sale & Kuehne and Benedict P. Kuehne, Miami; Phillips, Richard & Rind and Mark Richard, for intervenors-appellees.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

Appellant/Cross-Appellee, Citizens for Reform (“Appellant”), sought to submit to voters a referendum on a proposed amendment to the Miami-Dade County Charter (“Charter”). The proposed ballot language for this amendment provided as follows:

CHARTER AMENDMENT EXPANDING THE MAYOR’S RESPONSIBILITIES AND RESTRICTING THE RESPONSIBILITIES OF THE COUNTY MANAGER
Shall the Miami Dade County Charter be amended to transfer from the County Commission and County Manager to the Mayor certain additional powers and responsibilities including the authority to:
1. Administer County government;
2. Appoint the County Manager unless disapproved by supermajority of the Commission;
3. Appoint department directors unless disapproved by supermajority of the commission; except or otherwise required by law; and
4. Direct, supervise, reprimand or remove the County Manager and department directors.

Appellee/Cross-Appellant, Citizens for Open Government, Inc., filed suit and contended that the proposed amendment violated the requirements of the Florida Constitution and Florida Statutes, that the ballot summary violated the requirements of section 101.161, Florida Statutes (2005), and that the petition in support of the referendum was not properly notarized. South Florida AFL-CIO and the Transport Workers Union of America, Local 291, AFL-CIO were granted permission by the trial court to intervene. Citizens for Open Government, Inc., South Florida AFL-CIO, and the Transport Workers Union of America, Local 291, AFL-CIO are referred to collectively as “Appellees.” •

The Circuit Court found that the proposed ballot summary met the requirements of section 101.161, and that the petition was properly notarized. Citizens for Open Government, Inc. cross-appeals these rulings by the Circuit Court. We affirm the rulings of the trial court as to the issues on cross-appeal.

With respect to the claim that the proposed amendment violates the requirements of the Florida Constitution and Florida Statutes, the Circuit Court, after holding an evidentiary hearing, found in favor of the Appellees and enjoined the Miami-Dade Elections Department from placing the proposed amendment on the ballot. The Circuit Court found that the proposed amendment removed the Miami-Dade County Commission as the “governing body” and was, therefore, unconstitutional and unauthorized.

We review the trial court’s conclusions of law and determination as to the constitutionality of the proposed amendment de novo. See, e.g., Cooper v. Dillon, 403 F.3d 1208, 1213 (11th Cir.2005); One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1285 n. 4 (11th Cir.1999) (citing Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996)); State v. O’Daniels, 911 So.2d 247, 251 (Fla. 3d DCA2005).

The Florida Constitution of 1885 Granted the Voters of Miami-Dade County Broad Home Rule Powers

The Florida Constitution of 1885 provides, with respect to Miami-Dade County, that:

The electors of Dade County, Florida, are granted power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body.

FL. CONST, art. VIII, § 6(e), n. 3. This section provides that, in the case of Miami-Dade County, the county charter:

[m]ay grant full power and authority to the Board of County Commissioners of Dade County to pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for violation thereof; to levy and collect such taxes as may be authorized by general law and no other taxes, and to do everything necessary to carry on a central metropolitan government in Dade County.

Id. The Florida Constitution further provides that the section authorizing a home rule charter of government for Miami-Dade County “shall be liberally construed” to carry out the purpose of home rule for the people of Miami-Dade County in local affairs. Id.

The issue presented on appeal is whether the proposed amendment to the Charter effectively removes the Miami-Dade County Commission as the “governing body.” If it does, the proposed amendment is unconstitutional as no provision of the Charter may conflict with the Florida Constitution or general Florida law. See Cook v. City of Jacksonville, 823 So.2d 86 (Fla.2002); Ellis v. Burk, 866 So.2d 1236 (Fla. 5th DCA 2004). If the proposed amendment does not remove the County Commission as the “governing body,” the amendment would survive this particular constitutional challenge.

In the absence of specific statutory language, determining what constitutes the “governing body” of the County is a judicial function. As the Florida Supreme Court has held, it is the court’s function to interpret the phrase “governing body.” Metro-Dade Fire Rescue Serv. Dist. v. Metropolitan Dade County, 616 So.2d 966, 969 (Fla.1993). Since the Charter does not define the term “governing body,” this term should be given its usual and obvious meaning. See id.; City of Jacksonville v. Glidden Co., 124 Fla. 690, 169 So. 216, 217 (1936).

There is no dispute that, at the present time, the Miami-Dade Commission serves as the “governing body.” To determine whether the proposed amendment removes this authority from the County Commission, we must, therefore, first examine the current structure of government in Miami-Dade County, under which the Commission is its governing body.

The Present Structure of Miami-Dade County Government

Article 1 of the Charter provides for the existence of a Board of County Commissioners and delineates the powers afforded to the Commission. The powers afforded to the Miami-Dade County Commission, include, among others, the power to:

1. Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; provide and regulate parking facilities; and develop and enforce master plans for the control of traffic and parking.
2. Provide and operate air, water, rail, and bus terminals, port facilities, and public transportation systems.
4. Provide central records, training and communications for fire and police protection; provide traffic control and central crime investigation; provide fire stations, jails, and related facilities; and subject to Section 1.01A(18) provide a uniform system for fire and police protection.
5. Prepare and enforce comprehensive plans for the development of the county.
6. Provide hospitals and uniform health and welfare programs.
7. Provide parks, preserves, playgrounds, recreation areas, libraries, museums, and other recreational and cultural facilities and programs.
8. Establish and administer housing, slum clearance, urban renewal, conservation, flood and beach erosion control, air pollution control, and drainage programs. ...
9. Provide and regulate or permit municipalities to provide and regulate waste and sewage collection and disposal and water supply and conservation programs.
10. Levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness in such manner, and subject to such limitations, as may be provided by law.
12. Establish, coordinate, and enforce zoning and such business regulations as necessary for the protection of the public.
13. Adopt and enforce uniform building and related technical codes and regulations for both the incorporated and unincorporated areas of the county.
15. Use public funds for the purposes of promoting the development of the county, including advertising the area’s advantages.
17. Enter into contracts with other governmental units within or outside the boundaries of the county for joint performance or performance by one unit in behalf of the other of any authorized function.
18. Set reasonable minimum standards for all governmental units in the county for the performance of any service or function.
21. Exercise all powers and privileges granted to municipalities, counties, and county officers by the Constitution and laws of the state, and all powers not prohibited by the Constitution or by this Charter.
22. Adopt such ordinances and resolutions as may be required in the exercise of its powers, and prescribe fines and penalties for violation of ordinances.
23. Perform any other acts consistent with law which are required by this Charter or which are in the common interest of the people of the county.
24. Supersede, nullify, or amend any special law applying to this county, or any general law applying only to this county, or any general law where specifically authorized by the Constitution.

These powers are consistent with the Florida Constitution provision stating that a “governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.” FL. CONST, art. VIII, § 1(g) (emphasis added).

Moreover, the delineation of powers afforded to the County Commission is remarkably similar to the powers afforded by statute to the “legislative and governing body ” of counties under section 125.01(1), Florida Statutes (2005) (emphasis added). Under section 125.01(1), the “legislative and governing body” of a county is afforded, although not restricted, the power to:

(e) Provide hospitals, ambulance service, and health and welfare programs.
(f) Provide parks, preserves, playgrounds, recreation areas, libraries, museums, historical commissions, and other recreation and cultural facilities and programs.
(g) Prepare and enforce comprehensive plans for the development of the county.
(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public.
(i) Adopt, by reference or in full, and enforce housing and related technical codes and regulations.
(k)1. Provide and regulate waste and sewage collection and disposal, water and alternative water supplies, including, but not limited to, reclaimed water and water from aquifer storage and recovery and desalination systems, and conservation programs.
(l) Provide and operate air, water, rail, and bus terminals; port facilities; and public transportation systems.
(m) Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; regulate the placement of signs, lights, and other structures within the right-of-way limits of the county road system; provide and regulate parking facilities; and develop and enforce plans for the control of traffic and parking.
(p) Enter into agreements with other governmental agencies within or outside the boundaries of the county for joint performance, or performance by one unit in behalf of the other, of any of either agency’s authorized functions..
(r) Levy and collect taxes, both for county purposes and for the providing of municipal services within any municipal service taxing unit, and special assessments; borrow and expend money; and issue bonds, revenue certificates, and other obligations of indebtedness, which power shall be exercised in such manner, and subject to such limitations, as may be provided by general law.
(s) Make investigations of county affairs; inquire into accounts, records, and transactions of any county department, office, or officer; and, for these purposes, require reports from any county officer or employee and the production of official records.

§ 125.01(1), Fla. Stat. (2005).

In addition to the powers afforded under Article 1 of the Charter, the Commission has the power “to create a Planning Advisory Board, a Zoning Appeals Board, and such other boards as it may deem necessary.” The Commission is also empowered to appoint the County Attorney as well as the Commission Auditor.

Article 2 of the Charter provides for the Office of the Mayor and establishes the responsibilities of the Mayor. At present, the Charter states the “Mayor shall serve as head of the county government” with the following responsibilities:

A. The Mayor shall within ten days of final adoption by the Commission, have veto authority over any legislative, quasi judicial, zoning, master plan or land use decision of the Commission, including the budget or any particular component contained therein which was approved by the Commission; provided, however, that (1) if any revenue item is vetoed, an expenditure item in the same or greater dollar amount must also be vetoed and (2) the Mayor may not veto the selection of the chairperson or vice chairperson of the commission, the enactment of commission committee rules, the formation of commission committees, or the appointment of members to commission committees. The Commission may at its next regularly scheduled meeting after the veto occurs, override that veto by a two-thirds vote of the Commission present.
B. When one person succeeds another in the position of Mayor, the successor shall have the right to appoint the Manager, subject to the approval within 14 days of a majority of the Commissioners then in office. The Mayor shall appoint the Manager, subject to the approval within 14 days of a majority of the Commissioners then in office. The Mayor may remove the Manager subject to the Commission’s conducting a hearing within 10 days of said removal and the Commission’s overriding the May- or’s action by a two-thirds vote of those Commissioners then in office. Additionally, the Commission by a two-thirds vote of those Commissioners then in office shall be able to remove the Manager.

Article 3 of the Charter presently provides for the existence of a County Manager as the “head of the administrative branch of the county government.” Section 3.04 outlines the powers and duties of the County Manager and states:

A. Commencing with the election of Mayor in 1996, the Manager shall be responsible for the administration of all units of the county government under the Manager’s jurisdiction, and for carrying out policies adopted by the Commission. The Manager, or such other person as may be designated by resolution of the Commission, shall execute contracts and other instruments, sign bonds and other evidences of indebtedness, and accept process.
B. Unless otherwise provided for by civil service rules and regulations, the Manager shall have the power to appoint and suspend all administrative department heads of the major departments of the county, to wit: Tax Collector, Tax Assessor, Department of Public Works, Department of Public Safety, Building and Zoning Department, Planning Department, Finance Department, Park and Recreation Department and Internal Auditing Department, except that before any appointment shall become effective, the said appointment must be approved by the County Commission and if same is disapproved the said appointment shall be void. In the event such appointment shall be disapproved by the County Commission the appointment shall forthwith become null and void and thereupon the County Manager shall make a new appointment or appointments, each of which shall likewise be submitted for approval by the County Commission. However, the right to suspend, remove or discharge any department head with or without cause, is reserved at all times to the County Manager.

Section 3.05 of the Charter also contains the following restrictions on the Mayor and the County Commission:

SECTION 3.05. RESTRICTIONS ON THE MAYOR AND COMMISSION MEMBERS.
A. Neither the Mayor nor any Commissioner shall direct or request the appointment of any person to, or his or her removal from, office by the Manáger or any of the Manager’s subordinates, or take part in the appointment or removal of officers and employees in the administrative services of the county, nor shall the Manager or any member of the administrative services accede to such direction or request. Any willful violation of this section by the Mayor or Manager or any County employee shall be grounds for his or her removal.
B. Except for the purpose of transmitting constituent inquiries to the administrative services and other inquiry, as provided in Section 1.01A(20), the Mayor and Commissioners shall deal with the administrative service solely through the County Manager’s Office and neither the Mayor nor any Commissioner shall give orders to any subordinates of the Manager, either publicly or privately.
No County employee, other than the County Manager, shall respond to or undertake any action to comply with any request by the Mayor or any Commissioner which violates the provisions of the preceding paragraph. The County Manager shall not knowingly allow any Commissioner to deal with the administrative services in violation of the provisions of the preceding paragraph.

The Proposed Amendment and its Effects on the Structure of Miami-Dade County Government

Next, we consider the proposed amendment to the Charter and its effects on the powers of the County Commission, Mayor, and County Manager.

With respect to the County Commission, the proposed amendment would alter Article 1 of the Charter as follows (proposed deletions are struck through and proposed additions are underlined):

A. The Board of County Commissioners shall be the legislative and the governing body of the county. The Board of County Commissioners and shall also have certain additional powers including the power to carry-on a central metropolitan.government-. — This power-shall include-but shall-notdae restricted to the power to:
(1) ....
(24) ....

Under the proposed amendment, the powers specifically granted under this section are verbatim the powers currently provided and exercised by the Board of County Commissioners.

The following three paragraphs, which the proposed amendment seeks to include in Article 1, are the same restrictions which are currently in effect upon the Commission, but are presently contained in Section 3.05. Thus, the following restrictions have simply been' moved to Article 1.

C. No Commissioner shall direct or request the appointment of any person to, or his or her removal from office, by the Manager or any of the Manager’s subordinates, or take part in the appointment or removal of officers and employees in the administrative services of the county, nor shall the Manager or any member of the administrative services accede to such direction or request.
D. Except for the purpose of transmitting constituent inquiries to the administrative services and other inquiry, as provided in Section 1.01A(20), the Commissioners shall deal with the administrative service solely through the County Manager’s Office and no Commissioner shall give orders to any subordinates of the Manager, either publicly or privately.
No County employee, other than the County Manager, shall respond to or undertake any action to comply with any request by any Commissioner which violates the provisions of the preceding paragraph. The County Manager shall not knowingly allow any Commissioner to deal with the administrative services in violation of the provisions of the preceding paragraph.

With respect to Article 2, which involves the powers of the Mayor, the proposed amendment would transfer powers and responsibilities that are currently in the hands of the County Manager to the May- or. For example, the proposed amendment would give the Mayor the following additional rights, powers, and duties, among others:

(2) To recommend to the Commission such resolutions, ordinances or other actions as he or she may deem necessary or expedient, and to make such other recommendations to the Commission concerning the affairs of the County as the Mayor finds desirable;
(4) Sole authority to appoint the County Manager, unless disapproved by a 2/3 majority of the full Commission at their next regularly scheduled meeting;
(5) Sole authority to direct and exercise control over the County Manager in managing those affairs of the County under the purview of the Mayor;
(6) Sole authority to dismiss the County Manager;
(7) Sole authority to appoint County representatives to boards, commissions, committees and governmental agencies, unless controlling law vests the power of appointment with the Governor, the County Commission or a County Official other than the Mayor.
(9) Unless otherwise provided for by the Charter or by civil service rules and regulations, the Mayor shall have the power to appoint all administrative department directors of the department of the county.

Also, under section 2.02 of the proposed amendment, the Mayor, and not the County Manager, “shall be responsible for the administration of all departments of the county government and for carrying out policies adopted by the Commission.” The proposed amendment would give the May- or authority to appoint administrative department directors and representatives to various county boards and committees. As will be discussed below, these additional powers granted to the Mayor are, for the most part, administrative powers, which are currently afforded to the County Manager.

With respect to the powers of the County Manager, which are currently in Article 3, the proposed amendment greatly reduces his/her powers. The proposed amendment would eliminate and transfer the County Manager’s powers to the May- or. The County Manager would then serve “under the direction of the Mayor.” Moreover, under the proposed amendment, the Mayor and not the Commission would have the sole authority to dismiss the County Manager. However, the Commission would retain the power to disapprove of the Mayor’s selection for County Manager as well as administrative department directors by a two-thirds majority of the Commission.

In considering these proposed changes to the Charter, the Circuit Court focused on the deletion of certain critical words, such as “governing” and “power to carry-on a central metropolitan government.” During the hearing in this case, the Circuit Court stated:

All parties agree that a charter amendment that removes the County Commission as the governing body is unconstitutional and unauthorized. Yet the charter amendment does just that, by its very language, limiting the Board of County Commissioners to the status of a “legislative body,” and taking away the “governing body” authority. That repeal is explicit and central to the amendment, and cannot be ignored by this Court.

Similarly, we cannot overlook the obvious, significance of deleting the words “governing body” from the reference to the County Commission in Article 1 of the Charter. We agree that the deleted words are important but recognize that the proposed deletions are not dispositive. Specifically, in the case of Miami-Dade County, the Florida Constitution expressly requires the County Commission to be the governing body and not merely to be named as such. See FL. CONST, art. VIII, § 6(e), n. 3. Therefore, the particular choice of nomenclature does not and cannot end our inquiry. Instead, our analysis and holding turns on the effect of the proposed amendment. If the proposed amendment has the effect of removing the Miami-Dade County Commission as the “governing body,” it must be found to be unconstitutional as no provision of the Charter may conflict with the Florida Constitution or general Florida law. See Cook, 823 So.2d 86; Ellis, 866 So.2d 1236. Conversely, if the effect of the proposed amendment is not to remove the County Commission as the “governing body,” the amendment would survive.

Much more striking than the deleted words “governing body” is the unassailable fact that not one single power of the County Commission, as provided in Article 1 of the Charter, is altered in any way by the proposed amendment. Under the proposed amendment, the County Commission retains all of the powers afforded to it under Article 1.

It is important to observe that a county’s governing powers emanate from the Florida Constitution and Florida Statutes. In the case of Miami-Dade County, these governing powers primarily arise from two sources.

The first source of Miami-Dade’s local government powers is Section 11 of Article VIII of the Florida Constitution of 1885, which authorizes a home rule charter and government for the people of Miami-Dade County. As noted above, the Constitution grants Miami-Dade County broad home rule powers. FL. CONST, art. VIII, § 6(e), n. 3.

The second source of Miami-Dade’s governing powers is section 125.01(1), Florida Statutes (2005). Section 125.01(1) provides, in pertinent part:

The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power includes, but is not restricted to, the power to:
(a) ....
(dd) ....

Section 125.01(1), Florida Statutes (2005) (emphasis added). Section 125.01(1) grants to the “legislative and governing body” of the county “the power to carry on county government,” which includes, but is not limited to, a broad range of powers listed in sections 125.01(l)(a)-(dd). Id.

This broad grant of power means that, unless the Legislature has pre-empt-ed a particular subject relating to county-government, the “legislative and governing body” is afforded full authority to act through the exercise of its home rule power. See Speer v. Olson, 367 So.2d 207, 211 (Fla.1979). One of the purposes of Chapter 125 was to “enable local governments to govern themselves without the necessity of running to the legislature every year for authority to act.” Home Builders & Contractors Ass’n of Palm Beach County, Inc. v. Board of County Comm’rs, 446 So.2d 140, 143 (Fla. 4th DCA 1983) (citing Speer, supra; State v. Orange County, 281 So.2d 310 (Fla.1973)).

Important for our consideration is the Legislature’s use of the word “and” rather than “or” in section 125.01(1). Section 125.01(1) essentially grants to the “legislative and governing body of the county” the power to “carry on county government,” through the use of the enumerated powers in sections 125.01(l)(a)-(dd). The Legislature’s use of the word “and” assists us greatly in determining what entity is the “legislative and governing body” of a county. A plain reading of this section suggests that the enumerated powers in sections 125.01(l)(a)-(dd) cannot be exercised by either the legislative or the governing body of a county but, rather, can only be employed by the entity that is both the “legislative and governing body.”

Under section 125.01(1), the “legislative and governing body” has the power to: (a) provide for roads, bridges and tunnels; (b) provide for air, water, rail, and bus terminals and public transportation systems; (c) provide hospitals; (d) provide parks, libraries, and museums; (e) provide and regulate waste and sewage collection and disposal; (f) levy and collect taxes; (g) establish, merge, and abolish special purpose taxing districts; (h) establish and enforce zoning regulations; (i) adopt uniform building codes and regulations; (j) regulate and grant franchises to operate utilities; and (k) approve or disapprove contracts or the issuance of bonds, among other powers. Thus, whoever has these powers is, in essence, the “legislative and governing body” of Miami-Dade County.

At the present time, there is no dispute that the County Commission possesses the bulk of the powers identified in section 125.01, which are contained in Article 1 of the Charter, and, as such, is the “legislative and governing body” of Miami-Dade County. Likewise, under the proposed amendment, the County Commission would retain all of the powers afforded to it under Article 1 of the Charter and section 125.01 and, thus, would continue to be the “legislative and governing body.”

Mahavira, a 9th century Indian mathematician, understood and explained arithmetic operations involving zero, such that any number plus or minus zero equals that number, and any number minus itself equals zero. Thus, if we assume that the reservoir of powers currently afforded to the County Commission under Article 1 of the Charter, including the full panoply of quasi-judicial powers, enable the County Commission to be the “legislative and governing body” of Miami-Dade County, then subtracting zero from these powers changes little, at least with respect to identifying the “legislative and governing body.”

That is not to say that the proposed amendment would have no effect on the structure of County government. Indeed, the proposed changes to the Miami-Dade Charter would transfer to the Mayor a great deal of control over the administration of County government. Appellees suggest that subsumed within the issue of whether or not the proposed amendment effectively removes the Miami-Dade County Commission as the “governing body” lies the question: Who controls the administration of county government? It is suggested that the answer to this latter question ultimately decides the issue before us. Thus, Appellees argue that the proposed amendment takes control over the administration of county government away from the County Commission and, as a result, removes the Commission as the “governing body.”

However, such administrative powers have never rested with the County Commission and, in any event, are not the source of the Commission’s governing authority. Instead, the proposed amendment primarily alters the administrative powers of the Mayor and those of the County Manager.

These powers of administration, which are currently held by the County Manager, are not “governing body” powers. Otherwise, the County Manager and not the County Commission would be the “governing body.” Under the present Charter, the County Manager is not a member of the Commission but is responsible for “carrying out policies adopted by the Commission.” Similarly, under the proposed amendment, the Mayor would not be a member of the Commission but would-be responsible for “carrying out policies adopted by the Commission.” Although undoubtedly important, the powers of administration serve to carry out and implement the decisions of the “governing body.” Therefore, almost by definition, the proposed transfer of administrative duties from the County Manager to the Mayor would not alter the status of the Commission as the County’s “governing body.”

Nor would diminished oversight powers of the Commission over administrative responsibilities radically alter the Commission’s powers, such that it would no longer be the “governing body.” Under both the Charter and the proposed amendment, administrative powers exist to carry out the policies adopted by the Commission. Thus, it is clear that the powers of administration must conform to the dictates and policies of the County Commission and not vice-versa.

It is suggested by Appellees that the elimination of the County Commission’s power to remove the County Manager results in a change in the Commission’s status as “governing body” and, as a result, renders the proposed amendment unconstitutional. This contention is utterly flawed.

First, this argument ignores the fact that, under the current Charter, the powers to appoint as well as dismiss the County Manager rest primarily with the Mayor and not the Commission. The Charter provides that the Mayor “shall appoint the Manager,” subject only to the Commission approving or disapproving the Mayor’s choice for County Manager. The Charter also currently provides that “[t]he Mayor may remove the Manager,” which can only be overridden by a two-thirds vote of the Commission after conducting a hearing within ten days of said removal.

Second, Appellees’ position fails to take into account the County Commission’s current limited power to independently remove the County Manager. At the present time, the County Commission only holds a. supermajority power to dismiss the County’s top administrator, exercisable only upon a vote of two-thirds of the commissioners in office. While we do not wish to minimize the effect of this reduction in the Commission’s powers, it is not, by itself, so significant as to constitute a change in the “governing body” of Miami-Dade County.

Third, Appellees’ argument ignores the fact that the proposed amendment, in effect, would give the voters of Miami-Dade County a majority power, exercisable through election, over the County’s top administrator, who would be the Mayor under the proposal. Thus, under the proposed amendment, although the Commission would lose its limited supermajority power to remove the County’s head administrator (currently, the County Manager), the voters would gain a majority power to remove the proposed head of administration (the Executive Mayor). Thus, under the proposed amendment, the Commission’s limited removal power over the top administrator is not transferred from the Commission to the Mayor but, rather, from the Commission to the people. In doing so, Appellants contend that such a change comports entirely with the introductory words of the Charter, which provide: “This government has been created to protect the governed, not the governing.” Miami-Dade County Home Rule Charter, Citizens’ Bill of Rights (A).

The elimination of an extremely limited supermajority power to dismiss the County Manager, a position over which the Mayor is currently afforded much broader powers to select and dismiss, does not and cannot constitute a change in “governing body.” This is so especially in light of the fact that the Commission’s broad Article 1 Charter powers remain virtually unchanged as a result of the proposed amendment.

Appellees’ constitutional challenge is premised upon a flawed comparison between the proposed “Executive Mayor” and the Executive branches of the federal and state governments. Appellees contend that the proposed amendment would effectively equip the Mayor with Executive branch-type powers and, thereby, remove the County Commission as the governing body. However, when analyzed closely, that would not be the case. As we have noted earlier, the proposed Executive Mayor would only be acquiring administrative powers that currently reside with the County Manager. These powers pale in comparison to powers exercised by the Executive branches of federal and state governments. See, e.g., FL. CONST, art. IV, §§ 1 and 4. Such a Mayor would not be akin to an Executive branch of government.

Our conclusion is supported by cases from other jurisdictions holding that the concept of Constitutional separation of powers simply does not exist at the local government level. See e.g., State, ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31, 34 (1913) (finding that the doctrine of separation of powers has “no applicability, and [was] never intended to apply, to mere town or city governments or to mere town or city officials”); Ghent v. Zoning Comm’n, 220 Conn. 584, 600 A.2d 1010, 1012 (1991) (“The constitutional [separation of powers] provision applies to the state and not to municipalities, which are governed by charters and other statutes enacted by the legislature.”); Poynter v. Walling, 177 A.2d 641, 645 (Del.Super.Ct.1962) (finding that the “constitutional requirement of separation of the three governmental departments applies to state government and not to the government of municipal corporations and their officers”); Tendler v. Thompson, 256 Ga. 633, 352 S.E.2d 388, 388 (1987) (concluding that the “doctrine of separation of powers applies only to the state and not to municipalities or to county governments”); Willsey v. Newlon, 161 Ind.App. 332, 316 N.E.2d 390, 391 (1974) (noting that “it has repeatedly been held that the separation of powers doctrine of Article III has no application at the local level”); Bryan v. Voss, 143 Ky. 422, 136 S.W. 884, 887 (1911)(noting that “it has not been the policy of the state to separate legislative from executive functions in its government of the municipalities”); Wilson v. City of New Orleans, 466 So.2d 726, 729 (La.Ct.App.1985) (finding that the doctrine of separation of powers “applies only to the state and is not applicable to local governments”); County Council for Montgomery County v. Investors Funding Corp., 270 Md. 403, 312 A.2d 225, 243 (1973) (“The constitutional doctrine of separation of powers is ... not applicable to local government.”); State ex rel. Simpson v. City of Mankato, 117 Minn. 458, 136 N.W. 264, 267 (1912) (finding that the separation of powers “does not apply to municipal governments”); Ball v. Fitzpatrick, 602 So.2d 873, 878 (Miss.1992) (explaining that the “system of checks and balances is not needed at the local level”); Graziano v. Mayor and Township Comm., 162 N.J.Super. 552, 394 A.2d 103, 108 (1978)(finding that “the separation of powers doctrine as it applies to federal and state governments is inapplicable to municipalities”); Bd. of County Comm’rs v. Padilla, 111 N.M. 278, 804 P.2d 1097, 1102 (1990) (“Traditional [separation of powers] doctrine derives from concern about the tyranny that can arise when one branch of government — the executive, legislative, or judicial — assumes the powers of another, (citation omitted). Apparently, because this danger is diminished for a level of government whose powers are subordinated to higher levels of government or otherwise limited, the New Mexico Constitution’s provision on separation. of powers ... does not apply to the distribution, of power within local governments.”); LaGuardia v. Smith, 288 N.Y. 1, 41 N.E.2d 153, 156 (1942) (finding that the “theory of co-ordinate, independent branches of government has been held generally to apply to the national system and to the states, but not to the government of cities”).

Decisions from other jurisdictions also support our conclusion that a “strong mayor” may co-exist with a county commission as “governing body.” The two are not mutually exclusive. See Dickinson v. City of Huntsville, 822 So.2d 411 (Ala. 2001); Smitherman v. Marshall County Comm’n, 746 So.2d 1001 (Ala.1999); Stomel v. City of Camden, 383 N.J.Super. 615, 893 A.2d 32 (2006); Brown v. Fair Political Practices Comm’n, 84 Cal.App.4th 137, 100 Cal.Rptr.2d 606 (2000).

As we have earlier observed, the powers to create or eliminate roads, transportation terminals, hospitals, housing, parks, libraries, and museums, as well as the powers'-to levy taxes, and promulgate ordinances, and establish zoning regulations, among others, are currently vested in the County Commission. Under section 125.01(1), these are the broad powers of the “legislative and governing body,” which are necessary to “to carry on county government.” Section 125.01(1), Florida Statutes (2005). The proposed amendment does not reduce or remove any of the powers afforded to the Commission under section 125.01(1) or Article 1 of the Charter. Nor does the proposed amendment alter the Commission’s quasi-judicial powers over zoning regulations. Thus, in this case, the proposed “Executive” Mayor does not remove the County Commission as the “governing body” of the County. Both may and would co-exist under the proposed amendment.

Whether the proposed amendment is ultimately advisable is not for the courts to determine. Our role is strictly limited to filtering proposals for legal and constitutional deficiencies. With respect to the proposed amendment, we find none. There being no constitutional or statutory impediment to its presentation on the ballot, the proposed amendment is left for consideration by the voters.

Affirmed in part; reversed in part; and remanded.

      . This section, which was originally Section 11 of Article VIII of the Florida Constitution of 1885, as amended, was expressly retained and made part of the existing Florida Constitution. See FL. CONST, art. VIII, § 6(a) and (e), n. 3.


author: HAZOURI, J.

text:
    Jose RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4839.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied July 11, 2006.
    Carey Haughwout, Public Defender, Emily Ross-Booker and Paul E. Petillo, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Jose Rodriguez appeals his conviction and sentence for depriving a law enforcement officer of means of protection or communication. Rodriguez raises three points on appeal, and we affirm on all points raised, but write to address Rodriguez’s assertion that the trial court erred in denying his motion for judgment of acquittal.

The conviction and sentence of Rodriguez arose out of a domestic disturbance between Rodriguez and his father. Bro-ward Sheriffs Deputy Patrick Keegan responded to a call at Rodriguez’s home for a domestic disturbance. According to Deputy Keegan, upon his arrival, Rodriguez’s father was calm while Rodriguez was yelling and screaming. Deputy Keegan felt it was necessary for safety reasons to separate Rodriguez from his father and handcuff Rodriguez. While he was attempting to handcuff Rodriguez, Rodriguez grabbed the handcuffs from Deputy Keegan. In order for Deputy Keegan to gain control over. Rodriguez it was necessary for him to use pepper spray and to strike Rodriguez with his baton, at which point Deputy Kee-gan was able to grab the handcuffs out of Rodriguez’s hand, handcuff him, and take him into custody.

Section 843.025, Florida Statutes (2004), entitled “Depriving officer of means of protection or communication” states:

It is unlawful for any person to deprive a law enforcement officer as defined in s. 943.10(1), a correctional officer as defined in s. 943.10(2), or a correctional probation officer as defined in s. 943.10(3) of her or his weapon or radio or to. otherwise deprive the officer of the means to defend herself or himself or summon assistance. Any person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Rodriguez argues that handcuffs are not a means of defending oneself as required by the statute and his conviction cannot stand because his conduct does not constitute the charged offense. We disagree.

There are no cases specifically addressing the definition of a weapon or means of defending oneself as applied to section 843.025. Rodriguez argues that this court should apply the rule of ejusdem generis which is a canon of construction suggesting that when a general word or phrase follows a list of specifics, the general word or phrase should be interpreted as including those things similar to the specific. things listed. The state disagrees, asserting the principle should not be used where the word “weapon” is included only to. show the extent to which a weapon is a means to defend oneself.

We agree with the state and decline to apply the rule of ejusdem generis to limit the “means” to defend oneself to only “weapons.” It is clear from the title of section 843.025 that it is a third degree felony to deprive an officer of a means of protection or communication. In the instant case, Deputy Keegan was attempting to gain control of Rodriguez, who not only posed a danger to Rodriguez’s father, but also to Deputy Keegan. Keegan’s first choice to protect and defend himself was to resort to the use of handcuffs. Rodriguez’s refusal to submit to the arrest and grabbing the handcuffs from Deputy Kee-gan resulted in Deputy Keegan’s use of pepper spray and then his baton to subdue Rodriguez. Clearly the handcuffs were an instrument used by Deputy Keegan to protect and defend himself. We therefore affirm the conviction and sentence.

Affirmed.

WARNER and GROSS, JJ., concur.


author: MONACO, J.

text:
    Nancy CIUMMO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION et al., Appellee.
    No. 5D05-3345.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Rehearing Denied June 28, 2006.

      Nancy Ciummo, Melbourne Beach, pro se.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission Tallahassee, for Appellee, Unemployment Appeals Commission.
    Charles J. Cino, Ormond Beach, for Ap-pellee, City of Flagler Beach.
   MONACO, J.

The appellant, Nancy Ciummo, appeals the determination of the Unemployment Appeals Commission (“UAC”), that she was not entitled to unemployment benefits because she voluntarily left her employment. Because it was not considered below, we reverse and remand for further proceedings with respect to Ms. Ciummo’s claim that she was constructively discharged.

Briefly, Ms. Ciummo was the City Manager of the City of Flagler Beach. She was advised in September of 2004, that her contract that was expiring on April 1, 2005, would not be renewed by the City. On October 11, 2004, Ms. Ciummo submitted her resignation effective as of December 10, 2004. Meanwhile, the City hired an interim city manager. The City relieved her of her duties on November 21st because it wanted the interim manager to begin working immediately. Ms. Ciummo was, however, fully paid for the period between November 21st and December 10th. Shortly thereafter, Ms. Ciummo applied for unemployment benefits.

The appeals referee found that the City discharged Ms. Ciummo when it told her that her contract would not be renewed. The referee determined, therefore, that Ms. Ciummo was entitled to benefits. Significantly, there was no finding that Ms. Ciummo had good cause to resign prior to the end of her contract. The UAC agreed with the findings of the referee to the effect that Ms. Ciummo was terminated without good cause, and would ordinarily be eligible for benefits. It concluded, however, that Ms. Ciummo voluntarily quit her employment by resigning early, and accordingly was ineligible for benefits after December 10, 2004, the effective date of her resignation.

The determination of the UAC is supported by the case of Johnston v. Florida Dep’t of Commerce, 340 So.2d 1229 (Fla. 4th DCA 1976). There, our sister court held that if an employer gives notice to an employee that his or her employment will be terminated as of a certain date, the employee does not voluntarily, quit that position without good cause attributable to the employer if he or she chooses to not work up until that date of termination, but the employee may not be eligible for benefits until the date specified by the employer as the termination date. The facts of Johnston indicate that although the employee was told that her employment would be terminated in two weeks, she chose to leave at the end of that same day because she was upset over being fired, and did not want to continue in the unpleasant atmosphere. Her request for unemployment compensation benefits was initially denied based upon the finding that she voluntarily left her job before the effective date of her termination notice.

The Fourth District concluded that although the employer had effectively fired the employee, the employee did become voluntarily unemployed and ineligible for benefits during the notice period that he or she chose not to work. Because the employee did not become involuntarily unemployed until the date of termination designated by the employer, however, eligibility for benefits would begin at that time. See also Knapp v. Nat’l Convenience Store, 404 So.2d 380 (Fla. 1st DCA 1981).

When we apply the teachings of Johnston to the present case, we conclude that although Ms. Ciummo may not have been eligible for benefits between December 10, 2004, and April 1, 2005, she would have been eligible for benefits after April 1, 2005, provided she was otherwise qualified. Our inquiry, however, is not at an end.

Ms. Ciummo argues that she had good cause to resign from her position early because she was constructively discharged by the City. This argument is rooted in our decision in Morris v. Unemployment Appeals Comm’n, 866 So.2d 1269, 1270 (Fla. 5th DCA 2004). There we remanded the case to the UAC to enable the employee to attempt to establish his alternative argument that he had good cause to voluntarily terminate his employment due to a disability. Because the appeals referee found that the appellant had been discharged, he never addressed the alternative argument of constructive discharge. Although this court agreed with the UAC in its decision to reverse the finding of the referee that the employee had been discharged, we remanded with instructions for the referee to make a determination respecting the employee’s alternative theory of relief — that he had “good cause” for quitting his employment due to physical disability.

In the present case it is clear from the record that Ms. Ciummo’s alternate theory of constructive discharge was not addressed by either the referee or the UAC, primarily because the referee found that Ms. Ciummo was entitled to relief on her first theory. We, therefore, remand this case to the UAC and the referee with instructions to determine whether Ms. Ci-ummo was constructively discharged.

REVERSED AND REMANDED.

TORPY and LAWSON, JJ., concur.


text:
    Richard Bernard DELVENTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-147.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2006.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and MONACO, JJ., concur.


text:
    Glenn WIERSMA, Appellant, v. Sheryl Lane NIEMANN, Appellee.
    No. 5D05-3822.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2006.
    Glenn Wiersma, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Chereskin v. Chereskin, 790 So.2d 496 (Fla. 5th DCA 2001).

SHARP, W., GRIFFIN and PALMER, JJ., concur.


text:
    Danny Raymond COLLINS, A/K/A Danny Ray Guthrie, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-857.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2006.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Golden v. State, 913 So.2d 744 (Fla. 5th DCA 2005), review denied, 925 So.2d 1030 (Fla.2006).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Catrica CLIFTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1105.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2006.
    Catrica Clifton, Florida City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hill v. State, 813 So.2d 274 (Fla. 5th DCA 2002), Nowell v. State, 742 So.2d 345 (Fla. 5th DCA 1999).

THOMPSON, MONACO and TORPY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Robby Eugene HOGAN a/k/a Nevia Abraham, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1196.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.

      Robby Eugene Hogan a/k/a Nevia Abraham, in proper person.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Robby Eugene Hogan a/k/a Nevia Abraham, appeals the denial of his timely 3.850 motion for postconviction relief, in which he sought to set aside his plea regarding a 1989 conviction for escape.

The defendant’s 3.850 motion asserts that his guilty plea to escape was involuntary and not knowingly and intelligently made because his counsel misadvised him as to the consequences of the plea. Specifically, he alleges that his trial attorney provided ineffective assistance of counsel by telling him that, based upon the facts of his ease, which was that he had merely walked away from a prison work camp, the charge of escape could not be considered a serious violent offense. In August 2003, the defendant’s escape conviction was used to enhance his sentence in federal court under the federal “three strikes” law. See United States v. Abraham, 386 F.3d 1033 (11th Cir.2004).

This court has held that failure to advise a defendant regarding the possible consequences of a plea in the event that the defendant commits a new crime in the future does not constitute ineffective assistance of counsel.

Neither the court nor counsel is required to advise a defendant what penalty he can expect to receive for crimes not yet committed. The defendant can avoid further sentencing consequences, enhanced or otherwise, by refraining from committing new crimes. Future sentence enhancement for a later crime is not a direct consequence of a plea at all, but is instead contingent first on the defendant’s voluntary decision to commit another crime; second, on whether the new crime is one capable of having enhanced sentencing; and third, on the prosecutor’s discretionary decision whether to seek enhancement. Future sentence enhancement is plainly a collateral consequence, not a direct consequence, of the defendant’s plea in the earlier case.

Major v. State, 790 So.2d 550, 551-52 (Fla. 3d DCA 2001), aff'd, 814 So.2d 424 (Fla.2002); see also Medina v. State, 919 So.2d 566 (Fla. 3d DCA 2006) (finding that failure to inform defendant of the consequences that his state convictions could have in the future under a .completely different federal scheme does not constitute ineffective assistance of counsel).

This court has also held that affirmative misadvice regarding possible sentence enhancement consequences of a plea does not warrant postconviction relief. See Morgan v. State, 879 So.2d 1243, 1244 (Fla. 3d DCA 2004) (trial counsel’s alleged misadvice regarding possible sentence-enhancing consequences of a plea in the event the defendant committed new crimes does not warrant postconviction relief); Jones v. State, 838 So.2d 685 (Fla. 3d DCA 2003); Wallace v. State, 833 So.2d 796, 798 (Fla. 3d DCA 2002) (holding that affirmative misadvice regarding the sentence enhancing consequences of a plea for a new crime committed in the future is not grounds for postconviction relief as the defendant is under a legal duty to refrain from committing further crimes); Scott v. State, 813 So.2d 1025 (Fla. 3d DCA 2002); Woods v. State, 806 So.2d 621 (Fla. 3d DCA 2002); Collier v. State, 796 So.2d 629, 630 (Fla. 3d DCA 2001) (“Neither the sentencing court nor counsel is required ‘to anticipate a defendant’s future recidivism.’ ”) (quoting Major v. State, 790 So.2d at 551). “The court and counsel are entitled to assume that the defendant will obey the law in the future and not commit more crimes.” Collier, 796 So.2d at 630 (citing Major, 790 So.2d at 551); see also Rhodes v. State, 701 So.2d 388, 389 (Fla. 3d DCA 1997) (finding that misadvice regarding the sentence-enhancing consequences of a defendant’s plea differs from misadvice regarding deportation, gain time eligibility, and parole eligibility, and as a matter of public policy, we should not encourage recidivism, even implicitly, by requiring that a defendant be warned of the sentence-enhancing consequences his plea may have upon the commission of a future crime).

While the Fourth and First Districts have taken a different position on this issue, see Dickey v. State, 30 Fla. L. Weekly D443, 2005 WL 350313 (Fla. 1st DCA Feb. 15, 2005) (holding that “allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim,” and evaluating the defendant’s claim under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Jones v. State, 814 So.2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000), the Florida Supreme Court has recently resolved the issue in State v. Dickey, 928 So.2d 1193 (Fla.2006) (quashing Dickey v. State, 30 Fla. L. Weekly D443, 2005 WL 350313 (Fla. 1st DCA Feb. 15, 2005)), as follows:

We conclude that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim.

Dickey, 928 So.2d at 1198.

We additionally note that in the instant case, the federal “three strikes” law became effective in 1994, approximately five years after the defendant pled guilty to escape. Thus, the alleged advice given by the defendant’s trial counsel was.'not erroneous at the time it was given. See Cummings-El v. State, 863 So.2d 246 (Fla.2003) (stating that trial counsel is not ineffective for failing to anticipate changes in the law).

Affirmed.

      . "The federal 'three strikes’ law, which became effective on September. 13, 1994, mandates a sentence of life imprisonment for a defendant who has been convicted of a 'serious violent felony,' if he previously was convicted of 'one or more serious violent felonies and one or more serious drug offenses.' " Abraham, 386 F.3d at 1037 (quoting 18 U.S.C. § 3559(c)(1)(A)(ii)). The Abraham opinion provides that the "three strikes” law defines "serious violent felony” as: "any ... offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves substantial risk that physical force against the person of another may be used in the course of committing the offense.” Abraham, 386 F.3d at 1038 (quoting 18 U.S.C. § 3559(c)(2)(F)(ii)).


text:
    Eleck WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-328.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, and Colleen B. Ward, Assistant Public Defenders, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Defendant Eleck Williams appeals his convictions and sentences for burglary of an unoccupied dwelling, and resisting an officer without violence. Williams raises two issues on ■ appeal, neither of which merits reversal. We accordingly affirm.

Williams first argues that during voir dire the court abused its discretion in permitting the State to pose various hypothetical scenarios to prospective jurors, to inquire whether the jurors would convict under those theoretical circumstances. While it is certainly well settled that attorneys “may not have jurors indicate, in advance, what their decision will be under a certain state of evidence or upon a certain state of facts,” Franqui v. State, 699 So.2d 1312, 1322 n. 5 (Fla.1997), the State’s hypotheticals in this case did not attempt to elicit any such responses. Rather, the State’s questions were geared towards eliciting whether the jurors would find reasonable doubt based upon an extreme set of unrelated hypothetical facts or sympathy. The jurors were not presented with the facts of this case, nor asked to offer their decisions during voir dire. These hypotheticals, designed to determine whether the jurors could correctly apply the law, are permissible. Cave v. State, 899 So.2d 1042, 1056 (Fla.2005); Mosely v. State, 842 So.2d 279 (Fla. 3d DCA 2003). Compare Saulsberry v. State, 398 So.2d 1017 (Fla. 5th DCA 1981)(hypothetical embodying facts of case designed to obtain tacit commitment from jurors to convict improper and merited granting mistrial motion). Thus, the court did not abuse its discretion in permitting this line of questioning.

Williams next argues that the court abused its discretion in prohibiting the admission of his oral statements to police at the time of his arrest, during the cross-examination of the officers. The officers testified on direct that Williams had spoken with them; the statements were not disclosed on direct. These statements were properly excluded as inadmissible hearsay. Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000). There was no additional requirement that the statements be introduced under the rule of completeness, as the state did not introduce any incriminating statements by defendant. Husseain v. State, 805 So.2d 1066, 1067 (Fla. 3d DCA 2002)(under “rule of completeness” defendant’s out-of-court exculpatory statements must be admitted when state witness testifies to defendant’s incriminating statements). Guerrero v. State, 532 So.2d 75 (Fla. 3d DCA 1988)(same). Thus, there was no risk that the jury was misled, or was left with an erroneous impression of what the defendant may have stated.

Based on the foregoing, we affirm the convictions and sentences.

Affirmed.


author: COPE, C.J.

text:
    Ladell M. PLEASURE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-781.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.

      Ladell M. Pleasure, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   COPE, C.J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). We reverse.

Ladell M. Pleasure filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion for successiveness. The court stated, in part, “The motion is successive pursuant to [Florida Rule of Criminal Procedure] 3.800 in that the defendant has previously filed a 3.800 pleading (denied ... in 2004). The current grounds alleged are similar to those previously raised and were available to allege in the previously filed motion.”

In so saying, the trial court applied the wrong legal standard. As the Florida Supreme Court has explained, Rule 3.800 allows successive motions. “Rule 3.800 ... allows a court to correct an illegal sentence ‘at any time.’ Florida courts have held, and we agree, that the phrase ‘at any time’ allows defendants to file successive motions under rule 3.800.” State v. McBride, 848 So.2d 287, 290 (Fla.2003) (citations omitted). That is so because the text of Rule 3.800(a) does not contain any provision barring successive motions. Thus the trial court was incorrect in applying a successiveness bar to the defendant’s motion.

Instead, in the case óf a second or subsequent Rule 3.800(a) motion, the question is whether the subsequent motion is barred by the doctrine of collateral es-toppel. Collateral estoppel applies when “the identical issue has been litigated between the same parties or their privies.” State v. McBride, 848 So.2d at 290-91 (citation and internal quotation marks omitted). For the bar of collateral estop-pel to apply, the prior decision must have been on the merits. See id,.

Thus on remand, the questions for the trial court are whether the defendant’s current Rule 3.800(a) motion raises the identical issue as the previous motion, and whether the previous motion was decided on the merits. If that turns out to be so, then the trial court’s order denying the current Rule 3.800(a) motion should include as attachments the prior order denying relief plus the defendant’s prior Rule 3.800(a) motion. Only by including those attachments will the record conclusively show that the defendant’s current motion is barred by collateral estoppel. See Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”).

Alternatively, if a review of the prior motion, order, and related documents shows that the current claim is not identical to the claim previously decided, then the trial court will need to proceed to a consideration of the merits of the current Rule 3.800(a) motion.

Reversed and remanded for further proceedings consistent herewith.

      . By contrast, Rule 3.850 contains a specific provision which bars certain successive 3.850 motions. See Fla. R.Crim. P. 3.850(f).

      . If there was a prior decision on the merits and an affirmance on appeal, then the law of the case doctrine would also come into play. See id. at 289-90; Swain v. State, 911 So.2d 140, 143-44 (Fla. 3d DCA 2005), rev. denied, No. SC05-2071, 929 So.2d 1054 (Fla. April 10, 2006).


author: GREEN, J.

text:
    Vincent DIAZ a/k/a Lazaro Rodriguez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-55.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.

      Vincent Diaz, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   GREEN, J.

Appellant, Vincent Diaz a/k/a Lazaro Rodriguez, appeals the trial court’s denial of his motion to mitigate sentence on the sole ground that the motion was untimely. We elect to treat this appeal as a timely petition for writ of certiorari and grant it based upon the trial court’s erroneous determination that it lacked jurisdiction to consider the motion.

On February 11, 1999, the appellant pled guilty in lower court case number F98-32532 to aggravated battery on a law enforcement officer, fleeing and attempting to elude a law enforcement officer, resisting an officer without violence, and two counts of leaving the scene of an accident with property damage. He was sentenced to two years of community control.

On July 2,1999, an affidavit of community control violation was filed for various violations. Appellant admitted to the violations and was sentenced to two years probation.

On August 29, 2001, an affidavit of violation of probation was filed against the appellant on various grounds. This affidavit was amended on October 9, 2001, to include a violation for failure to remain at liberty without violating law. This violation was based upon several new charges filed against the appellant in 2001.

Specifically on October 4, 2001, the appellant was charged by information in case number F01-28247 with attempting to flee or elude a law enforcement officer and resisting arrest without violence. He pled guilty and was sentenced as a habitual felony offender to a ten year minimum mandatory prison term. On October 9, 2001, the appellant was charged by information in case number F01-28491 with one count of armed robbery. He pled guilty to this charge and was sentenced as a habitual felony offender to ten years in prison. The appellant was also charged on October 9, 2001, in court case number F01-28492 with one count of armed robbery. He pled guilty and was sentenced to a ten year prison term. Finally, on November 26, 2001, the appellant was charged on November 26, 2001, by information in case number F01-32011, with one count of armed robbery. He pled guilty and was sentenced as a habitual felony offender to a ten year minimum mandatory prison sentence. All of the appellant’s sentences were imposed concurrently with the sentence in F98-32532.

On January 21, 2004, the appellant sought and was granted a belated appeal of his judgment and sentence, by this court. See Diaz v. State, 865 So.2d 504 (Fla. 3d DCA 2004)(table). The mandate issued on October 21, 2005.

On November 22, 2005, the appellant filed his motion to mitigate his sentence with the trial court pursuant to Florida Rule of Criminal Procedure Rule 3.800(c). The trial court denied this motion on December 15, 2005, on grounds that the motion was untimely because the appellant was sentenced on October 8, 2003. The appellant filed the instant appeal.

We begin by acknowledging that an order denying a motion to reduce or mitigate a sentence is not appealable. See Smith v. State, 902 So.2d 293 (Fla. 3d DCA 2005); Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993); Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990); Davenport v. State, 414 So.2d 640 (Fla. 1st DCA 1982). An appeal, however, may be treated as a petition for writ of certiorari to permit the trial court to properly consider a motion to mitigate where the trial court has mistakenly found the motion to be untimely. See Arnold, 621 So.2d at 503. See, e.g., State v. Rhodes, 554 So.2d 1229 (Fla. 2d DCA 1990); Marsh v. State, 497 So.2d 954 (Fla. 1st DCA 1986); Smith v. State, 471 So.2d 1347 (Fla. 2d DCA 1985).

In the instant case, although the appellant was sentenced on October 2, 2003, he filed a belated appeal of his judgment and sentence. The mandate on that appeal was issued on October 21, 2005, or 32 days prior to the filing of his motion to mitigate his sentence with the trial court. Rule 3.800(c), Florida Rules of Criminal Procedure, permits a defendant to file a motion for reduction of sentence within 60 days of the issuance of the mandate in the original appeal. See Smith v. State, 895 So.2d 488, 489 (Fla. 2d DCA 2005); Seward v. State, 912 So.2d 389, 390 (Fla. 2d DCA 2005). The appellant’s motion for reduction of sentence was therefore timely and should have been considered by the trial court, as the state has properly conceded. See Arnold, 621 So.2d at 503 (“although it is within the unfettered discretion of the trial court to deny the motion, it was within the trial court’s jurisdiction to consider it and the trial court should do so”).

We therefore grant certiorari, quash the order under review and remand this cause to the trial court for its consideration of the motion.. We express no opinion as to the merits of the motion.

Quashed and remanded.


text:
    Gregory R. PRICE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-1096.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Gregory R. Price, in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before GREEN, FLETCHER, and ■ RAMIREZ, JJ.
   PER CURIAM.

Petitioner, Gregory R. Price, files this petition for writ of habeas corpus. With respect to petitioner’s claims regarding the reliability of the fingerprint identification, those claims and his claim for habeas corpus relief are denied on the merits. See State v. Armstrong, 920 So.2d 769 (Fla. 3d DCA 2006). To the extent the petition otherwise attempts to state a claim for habeas corpus relief regarding ineffective assistance of appellate counsel, we deny that claim as well. Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 647-48 (Fla.2000) (appellate counsel does not render ineffective assistance by failing to raise a claim of ineffective trial counsel on direct appeal); Thompson v. State, 759 So.2d 650, 663 (Fla.2000).

Petition denied.


text:
    Darryl FREDERICK, Appellant, v. James R. McDONOUGH, Sec’y, Florida Dep’t of Corr., etc., Appellee.
    No. 3D06-1010.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Darryl Frederick, in proper person.
    Judy Bone, Assistant General Counsel, Department of Corrections, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Darryl Frederick, pro se, petitions this court for writ of habeas corpus. We have jurisdiction pursuant to Article V, section 4(b)(3) of the Florida Constitution and deny the petition. See § 944.28(1), Fla. Stat. (2004) (if conditional release to the prisoner is revoked, the department may declare a forfeiture of all gain-time earned by such prisoner prior to such conditional release). See also Duncan v. Moore, 754 So.2d 708, 711 (Fla.2000) (returning a conditional release violator to prison to continue serving his sentence without credit for the prior awarded gain time does not constitute a violation of double jeopardy).

Petition denied.


text:
    Kevin BURT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2082.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing Denied July 11, 2006.

      See also, 791 So.2d 594.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Defendant appeals from an oral order revoking community control. We find no abuse of discretion and therefore affirm the sentence imposed on violation of community control. Porras v. State, 651 So.2d 183 (Fla. 3d DCA 1995).

The trial court failed to prepare a written order revoking Appellant’s community control listing the conditions that were violated. Thus, we reverse the trial court to the extent that it must prepare a written order on the violations on remand. Rucker v. State, 890 So.2d 254 (Fla. 2d DCA 2004); Watson v. State, 807 So.2d 166 (Fla. 3d DCA 2002).

Affirmed in part; reversed in part; and remanded.

      . Defendant cites Nelson v. State, 753 So.2d 658 (Fla. 4th DCA 2000), where the court held that a defendant's visit to a pawn shop at 5:20 p.m., when he was permitted to remain at work until 5:30 p.m., was not a basis for revocation under a provision that required defendant to “remain confined to [his] approved residence except for one-half hour before and after [his] approved employment, public service work, or any other special activities approved by [his] community control officer.” (Internal quotations omitted.) We find this case distinguishable because the stipulated testimony in this case demonstrates that defendant made the unauthorized visits outside of any time that defendant was authorized for purposes of work or travel.