author: FULMER, Chief Judge.

text:
    Dawn Yvonne Faulkner PEARSON, Appellant, v. Lance William PEARSON, Appellee.
    No. 2D04-563.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.

      Joseph J. Registrato, Tampa, for Appellant.
    Randall 0. Reder of Randall 0. Reder, P.A., Tampa, for Appellee.
   FULMER, Chief Judge.

Dawn Yvonne Faulkner Pearson (the Mother) appeals the trial court’s order finding her in contempt for being in willful violation of a July 9, 2003, order that specified a visitation • schedule between Lance William Pearson (the Father) and the parties’ minor child. Because the record is devoid of any evidence to support the contempt order against the Mother, we reverse.

In his motion for contempt, the Father alleged that the trial court entered an order directing that supervised visitation between the Father and the child occur at the Children’s Justice Center on July 9, 2003, and during alternate weeks thereafter. The Father further alleged that the Mother failed to comply with the order by “refusing to produce said child at said center at the appointed time on July 9, 2003.” In a supplement to his motion, the Father alleged that the Mother “has informed said center that she will not produce said child at said center during alternate weeks after July 9, 2003.”

An evidentiary hearing was held on the motion at which the trial court heard the testimony of the Father, the program coordinator of the Center, the maternal grandfather, and a clinical social worker. The Mother did not attend the hearing. At the conclusion of the hearing, the trial court announced its ruling and entered an initial and amended written order that concluded that the Mother had “willfully failed to comply with the court’s orders of visitation.”

A judgment of contempt is entitled to a presumption of correctness and it will not be disturbed when supported by the record.... [A]n appellate court will not disturb a trial court’s factual findings when supported by competent substantial evidence; however, the appellate court is not bound by a trial court’s conclusions of law.

Milian v. State, 764 So.2d 860, 861 (Fla. 4th DCA 2000) (citation and internal quotation marks omitted); see also Buchanan v. Buchanan, 932 So.2d 270, 2005 WL 2467618 (Fla. 2d DCA Oct. 7, 2005) (reversing a civil contempt order because the appellate record contained no competent substantial evidence to support the trial court’s finding of the contemnor’s ability to pay the purge amount).

The transcript of the contempt hearing reveals that none of the testimony presented supports the trial court’s contempt order. The first witness was the Father. His testimony was brief and addressed only the allegations regarding the visitation scheduled for July 9. He testified that he went to the Center for his visitation and that as he approached the Center he saw the Mother standing on the sidewalk talking on her cell phone. He heard her say, “How can we stop this?” His testimony then concluded with the following exchange:

Q [Father’s counsel]. Okay. Did you, in fact, have visitation with your son on that date at the Children’s Justice Center?
A. I did not.
Q. Did you go into the office or reception area of the Center?
A. I did.
Q. Okay. And despite that, you did not have visitation?
A. No, sir.

Counsel for the Father next called the Mother to testify, “if she’s here.” She was not present, and the trial court directed that the record reflect that she failed to appear. Upon inquiry by the judge, counsel for the Father advised that the Mother was not under subpoena. Neither had the Mother been directed to appear by court order.

The most significant witness to testify was Patricia Waterman, the program coordinator for the Center. She testified that the July 9 order directed that the child be accompanied by his maternal grandfather during the supervised visitations. She stated that they both came to the Center as ordered but that the visitation did not occur because she cancelled it. Her testimony explaining the events giving rise to the cancellation is best summarized in the following excerpt from her written report, which was admitted into evidence at the hearing:

7/09/03 Visit cancelled.
Mr. Pearson arrived on time at the CJC. [Child and maternal grandfather] arrived on time. [Maternal grandfather] contacted the CJC, via cell phone while at the designated parking area, and stated to staff that [child] would not get out of the car. Security personnel was dispatched for escort and witnessed [child’s] reluctance to attend the visit. CJC staff spoke with security personnel to verify the [child’s] behavior. CJC staff spoke with Mr. Pearson and explained the above and informed Mr. Pearson that the visit was cancelled.

On cross-examination by the Mother’s counsel, Ms. Waterman clarified that she was the person who cancelled the visitation because the child would not get out of the car. Ms. Waterman presented no testimony regarding the Mother other than to respond “No” to the question: “Does your file contain any record of statements on that day, July 9, 2003, by Dawn Yvonne Faulkner Pearson?”

The clinical social worker was called by Mother’s counsel to testify. She stated that she was with the child, his grandparents, and the Mother when they went to the Center for the visitation. Most of the questions posed to her were never answered because objections by Father’s counsel were sustained. However, the brief testimony she did present was consistent with the testimony of Ms. Waterman. The grandfather was also called by Mother’s counsel to testify. His testimony was also very brief and was consistent with that presented by Ms. Waterman.

Given the testimony presented, we are puzzled by the trial court’s determination that the Mother violated the visitation order. Other than the Father’s testimony regarding the Mother’s statement while talking on her cell phone, there was no testimony presented by any witness regarding any actions or statements made by the Mother. And, it is undisputed that the maternal grandfather appeared with the child at the Center, as ordered, ready to participate in the scheduled visitation, which was cancelled by Ms. Waterman because of the child’s reluctance and not because of any action by the Mother. In its order, the trial court stated,

The Mother has been given primary residential custody of the child, so the responsibility for controlling and directing the minor child’s behavior is charged to the [MJother. For this reason the Court concludes the Mother has certainly failed to encourage the child’s visitation with the Father, who had driven from the State of Mississippi and would have to drive back for any additional visitation.

There was no testimony presented at the contempt hearing that supports attributing the child’s behavior on July 9 to any action of the Mother. And, the trial court’s order contains no factual findings regarding any action or inaction on the part of the Mother that would support the trial court’s conclusions that the Mother is responsible for the child’s behavior.

Because we reverse the adjudication of contempt, the propriety of the sanction imposed becomes a moot issue. However, we discuss the eri'or in order to prevent its repetition in other cases. The conclusion of the contempt order provides:

Based on the Mother’s willful failure to allow the Father any type of visitation with the child, including her failure to encourage any visitation, and also considering her failure to even appear at the hearing on February 3, 2004, this Court finds that primary custody of the child shall be transferred to the Father effective immediately and shall continue until further order of the Court. The Father will have the authority to remove the child with him to the State of Mississippi and shall enter the child into counseling with a competent child counselor to assist in the adjustment of relocation.

In his motion for contempt, the Father did not seek a change of custody, nor did he ask that he be allowed to remove the child from the jurisdiction. In this appeal, he properly concedes that the trial court exceeded its authority by ordering a transfer of custody. See Pelliccia v. Arce, 867 So.2d 619 (Fla. 2d DCA 2004); LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999). Further, because the Mother was under no legal obligation to appear at the hearing, it was improper for the trial court to ascribe fault for her absence.

Because the order of contempt is not supported by competent substantial evidence, we reverse.

Reversed and remanded with directions to vacate the contempt order.

STRINGER and DAVIS, JJ., Concur.

      . We are aware of the fact that these parties have been litigating since their dissolution in 2000. The trial court may have based its ruling in this case on conclusions derived from prior proceedings that are not part of the record developed for the contempt motion.

      . The trial court's order transferring custody was stayed by this court pending the outcome of this appeal. Therefore, our reversal does not impact the physical custody of the child.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    USAA CASUALTY INSURANCE COMPANY, Appellant, v. Janie M. SHELTON and David L. Shelton, Appellees.
    No. 2D05-1307.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
    Rehearing Denied Aug. 14, 2006.

      Jeffrey R. Fuller of Brasfield, Fuller, Freeman & O’Hern, P.A., St. Petersburg, for Appellant.
    Theodore “Ted” E. Karatinos of Prugh, Holliday & Karatinos, P.L., Tampa, for Appellees.
   NORTHCUTT, Judge.

Janie and David Shelton sued their insurer, USAA Casualty Insurance Company, seeking underinsured motorists (UM) benefits under their automobile policy. The jury returned a verdict in favor of the Sheltons and the trial court entered judgment against USAA in the amount of $50,000, the policy limits. After-unsuccessfully moving for remittitur or a new trial, USAA has appealed the judgment. It contends that the trial was tainted by the court’s decision to allow the Sheltons to introduce evidence concerning USAA’s standards for payment of personal injury protection (PIP) benefits. We agree that the admission of this evidence was error, but, as we will explain, the error was harmless in this case. Accordingly, we affirm.

In September 2002, Janie Shelton was injured in an automobile accident. With USAA’s authorization, the Sheltons settled their personal injury claims against the negligent driver for the $25,000 policy limits of that driver’s liability insurance. USAA paid the Sheltons the full amount of the statutorily required no-fault coverage under their automobile insurance policy, $10,000 for PIP benefits and $5000 for additional medical benefits. See § 627.736(1), (1)(a), Fla. Stat. (2002).

The Sheltons then sued USAA for UM benefits. During discovery related to the UM suit, the Sheltons deposed two USAA adjusters and questioned them about the standards employed by the company when considering whether to pay PIP claims as well as the standards for payment of UM claims. USAA filed several motions in limine seeking to preclude any mention of its standard PIP claims practices or its standard for making payments under the PIP coverage provided in its policy. The trial court denied these motions.

This case did not involve questions of coverage or negligence. The sole issue was whether Mrs. Shelton’s medical bills were reasonable, necessary, and related to the accident of September 2002.

The Sheltons’ counsel first mentioned USAA’s PIP payments in his opening statement. Discussing USAA’s contention that Mrs. Shelton’s bills were unreasonable, unnecessary, and unrelated to the accident, he remarked that the carrier had paid $15,000 in PIP benefits. He also stated that USAA’s adjuster would testify that this payment was for reasonable and necessary medical bills. True to his promise, the Sheltons’ counsel called USAA’s PIP adjuster as a plaintiffs’ witness. The adjuster testified that USAA had paid the Sheltons $15,000 under the policy’s PIP and medical benefits coverage. She said that payments made under that coverage were “supposed to be” for reasonable and necessary expenses related to the accident. In closing argument, the Sheltons’ counsel again mentioned USAA’s PIP payments: “The bills in this case came to about $118,000.... Now, $15,000 of that was paid by USAA on the grounds that it was reasonable, it was necessary, and it was related to this accident.”

No majority opinion in Florida has addressed the issue of whether evidence of a carrier’s payment of PIP benefits is admissible as part of the plaintiffs evidence that medical damages sought in a UM suit are reasonable, necessary, or connected with the accident. Several cases, however, have discussed the interaction of these two different and independent coverages in an automobile insurance policy. In Nationwide Mutual Fire Insurance Co. v. Race, 508 So.2d 1276, 1278 (Fla. 3d DCA 1987), approved on other grounds, 542 So.2d 347 (Fla.1989), the Third District rejected Race’s argument that payment of PIP benefits collaterally estopped the carrier from denying UM benefits. Similarly, the Florida Supreme Court concluded that an insured’s fraudulent conduct in connection with his claim for PIP benefits did not bar him from seeking UM benefits. Flores v. Allstate Ins. Co., 819 So.2d 740, 751 (Fla.2002). We discern from these cases that actions taken by either party with regard to one coverage, i.e., PIP, do not bind that party with respect to other coverages under an automobile policy, i.e., UM.

Thus, a carrier’s payment of PIP benefits is not an admission that its insured’s claims for UM benefits are reasonable, necessary, and connected to the accident. But the question remains whether it might be admissible evidence on the issue. See, e.g., Flores v. Allstate Ins. Co., 833 So.2d 172, 174 (Fla. 2d DCA 2002) (sending the case back to the circuit court for a new a trial after remand from the Florida Supreme Court because the district court could not determine whether evidence about Flores’s fraud in his PIP claim might be admissible for some limited purpose in his suit for UM benefits). Because of the unique policy considerations underlying PIP coverage, we hold that evidence of an insurer’s payment of PIP benefits is not relevant, and therefore is not admissible, to prove the propriety of claimed medical damages in a UM action.

PIP coverage is designed to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000) (citing Gov’t Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). To further this goal, the legislature enacted penalty provisions intended to promote the prompt resolution of PIP claims by imposing several penalties on insurers who pay late. United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 86 (Fla.2001). The Rodriguez court summarized PIP coverage and its penalty provisions as follows:

In sum, the criteria governing payment of benefits and penalties are as follows: (1) an insured may seek the payment of benefits for a covered loss by submitting “reasonable proof’ of such loss to the insurer; (2) if the benefits are not paid within thirty days and the insurer does not have reasonable proof that it is not responsible for the payment, the payment is “overdue”; (3) all “overdue” payments shall bear simple interest at a rate of ten percent per year; and (4) whenever an insured files an action for payment of PIP benefits and prevails, the insured is entitled to attorneys’ fees.

Id.; see also § 626.736(4)(b), Fla. Stat. (2002).

Under the Florida no-fault coverage, the insurer has a short time in which to decide whether to pay a claim and faces both interest on the claim and attorney’s fees if its decision is wrong. In practice, the threat of such penalties, and the requirement that it must have reasonable proof to support its decision, combine to encourage the insurer to make the “swift and virtually automatic” payment of PIP claims envisioned by the PIP law. Thus, a carrier may well be induced to give the insured the benefit of the doubt and to pay a claim it might otherwise have contested. Moreover, basic PIP coverage is limited to $10,000. § 627.736(1). The insurer may conclude that its insured has suffered damages in that amount, but may question whether additional amounts are justified. On the other hand, if the insurer knew that evidence of its PIP payments would haunt it in litigation over a related UM claim, which invariably would involve far more than the sum at stake in the PIP coverage, the insurer would be inclined to give closer scrutiny to PIP claims. This could delay payments of those claims, contrary to the purpose of the PIP statute.

An insurer is in a far different posture under UM coverage. The purpose of the insurance is to provide a source of recovery when the insured has been injured by a tortfeasor with insufficient or no insurance. § 627.727(1), Fla. Stat. (2002). Therefore, in a UM claim the insured must prove that she is legally entitled to recover from the owner or operator of the uninsured or underinsured vehicle. Id. Just as she would in a suit against the tortfeasor, the insured bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident. And, unlike the case in a PIP claim, an insurer’s assessment of a UM claim is unrestrained by concerns about statutory deadlines, penalties, or attorney’s fees, or by the burden to develop “reasonable proof’ that it is not responsible for the claim. See, e.g., § 627.727(8), Fla. Stat. (2002) (providing that a carrier’s liability for the insured’s attorney’s fees under section 627.428 does not apply to a UM claim, unless there is a dispute over coverage). For these reasons, an insurer’s payment of PIP benefits in connection with an automobile accident is not relevant to the issue of whether the medical expenses claimed in the insured’s UM claim are reasonable, necessary or connected to the accident. It is therefore inadmissible for that purpose. See § 90.401-402, Fla. Stat. (2002).

Our conclusion in this regard is further bolstered by Judge Torpy’s concurrence in Wendell v. United Services Automobile, 881 So.2d 1178, 1180 (Fla. 5th DCA 2004). He addressed the exact issue presented here: whether evidence of the carrier’s payment of medical expenses under PIP coverage was admissible to prove its liability for the injury under the UM coverage contained in the policy. Judge Torpy noted that, in his view, the circuit court had correctly ruled the evidence inadmissible because section 90.409, Florida Statutes (2003), “prohibits the introduction of ‘[e]vi-dence of furnishing, or offering, or promising to pay medical or hospital expenses ... to prove liability for the injury or accident’ Id. (Torpy, J., concurring). We agree, and this reasoning provides another basis for our holding that the trial court erred in permitting the Sheltons to introduce evidence about USAA’s payment of PIP benefits in support of their claim for UM benefits.

But, having found error, we conclude that it was harmless in this case. The trial court cautioned the Sheltons’ counsel to be circumspect in his presentation of the evidence about the PIP payments, so as not to make it a feature of the trial. Our careful review of the trial record easily convinces us that this topic was not a feature of the trial. Rather, the focus of the trial centered on whether Mrs. Shelton had herniation in two spinal discs as a result of the accident, thus necessitating surgery. The jury heard more than enough evidence to support the Sheltons’ position. Them medical witnesses — Mrs. Shelton’s treating physician, a board certified orthopedic surgeon, and a radiologist — all testified that her MRI showed disc herniations, that the accident either caused the condition or aggravated a previously existing condition, and that surgery was necessary.

USAA’s expert neurosurgeon had reviewed Mrs. Shelton’s medical records and concluded that the only injury she suffered in the accident was a sprained neck that required only a few weeks of conservative treatment. His opinion that Mrs. Shelton’s surgery was not necessary or related to the accident rested heavily on his insistence that her MRI did not show that she had herniated discs. But USAA next offered the testimony of its expert radiologist, who confirmed that disc herniations were apparent in the MRI, thus significantly undermining the central premise of USAA’s defense.

After our examination of the entire case, it does not appear that the few references to PIP coverage reasonably affected USAA’s substantial rights at trial, or resulted in a miscarriage of justice. See Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1036 (Fla. 4th DCA 2003); Centex-Rooney Constr. Co. v. Martin County, 706 So.2d 20, 26 (Fla. 4th DCA 1997); see also § 59.041, Fla. Stat. (2005). Accordingly, we affirm the judgment in favor of the Sheltons.

Affirmed.

FULMER, C.J., and DEMERS, DAVID A., Associate Judge, Concur.

      . Race did not raise the estoppel issue in the Florida Supreme Court. As such, the court had no reason to address it. Race, 542 So.2d at 351.

      . We note that evidence of the payment of PIP benefits must be introduced at trial for purposes of a setoff defense. Caruso v. Baumle, 880 So.2d 540, 543 (Fla.2004).


text:
    James JENNINGS, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 2D05-1750.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.

      Mark Herron and Robert J. Telfer III of Messer, Caparello & Self, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lynn C. Hearn, Deputy Solicitor General, Tampa, for Appellee.
   FULMER, Chief Judge.

James Jennings challenges a final order of the Florida Elections Commission, which fined Jennings $9300 for violating campaign finance laws while Jennings was a candidate for the Sanibel City Council. We affirm the Commission’s findings and conclusions pertaining to counts 1 through 26, but we reverse pertaining to counts 27 through 56. We conclude that the Commission erred in reversing the administrative law judge (ALJ) and denying Jennings’ motion to dismiss counts 27 through 56.

Jennings was elected to the Sanibel City Council in March 2003. In June 2003, the Commission received a private citizen’s sworn complaint against Jennings, alleging campaign finance law violations. The Commission initiated an investigation for Jennings having (1) improperly certified the correctness of an incorrect campaign treasurer’s report, (2) incurred an expense without sufficient funds on deposit to pay all previously authorized or incurred expenses and outstanding checks, (3) failed to report contributions, and (4) made prohibited expenditures. The Commission notified Jennings in June 2003 that based on these accusations it was investigating him for violations of sections 106.07(5), 106.11(4), 106.19(l)(b), and 106.19(l)(d), Florida Statutes (2002). During the course of the investigation, in August 2003, the Commission notified Jennings that it would also investigate him for having had someone other than the campaign treasurer or deputy treasurer make expenditures from the campaign account, in violation of section 106.021(3).

The Commission filed an Order of Probable Cause in November 2003, and an Amended Order of Probable Cause in February 2004, finding probable cause to believe that Jennings violated sections 106.07(5), 106.19(l)(b), and 106.21(3). The Commission charged Jennings with fifty-six counts. Counts 1 and 2 alleged violations of section 106.07(5) for certifying that the original and first amended campaign treasurer reports for the reporting period of February 8 through 27, 2003, were true, correct and complete when they failed to list contributions; counts 3 through 26 alleged violations of section 106.19(l)(b) for failing to report contributions on the initial and first amended reports for the reporting period of February 8 through 27, 2003; and counts 27 through 56 alleged violations of section 106.021(3) for signing expenditure checks when Jennings was not the campaign treasurer or deputy treasurer.

Upon Jennings’ petition, the matter was referred to an ALJ for a hearing. In January 2004, Jennings moved to dismiss counts 27 through 56, arguing that these allegations did not arise out of the sworn complaint and that the Commission lacked authority to investigate violations of chapter 106 in the absence of a sworn complaint. Jennings argued that the Commission acted outside its jurisdiction by investigating and ultimately charging him with violations that were not within the scope of the original complaint but arose during the investigation. The ALJ reserved ruling on the motion until after the hearing.

The hearing was conducted on March 29 and April 7, 2004. After the hearing but before the ALJ issued a recommended order, the Florida Legislature amended section 106.25 to expressly restrict the Commission’s ability to investigate only those alleged violations contained within a sworn complaint. See ch. 2004-252, § 21, Laws of Fla. (adding statement that “[t]he commission shall investigate only those alleged violations specifically contained within the sworn complaint”). The amendment took effect July 1, 2004. Id. at § 26. Jennings cited this amendment in his proposed recommended order filed with the ALJ, contending that the amendment applied retroactively to his case and, therefore, counts 27 through 56 should be dismissed as outside the Commission’s jurisdiction. The Commission took the position that the amendment could only be applied prospectively.

The ALJ issued a Recommended Order in September 2004 that granted Jennings’ motion to dismiss counts 27 through 56. The ALJ determined that chapter 2004-252, section 21, Laws of Florida, was a procedural enactment that applied to all cases pending as- of its effective date of July 1, 2004. The ALJ concluded that further consideration of these counts was rendered unnecessary by the order granting the motion to dismiss. On the other counts, 1 through 26, the ALJ found that the Commission had proved the violations. The ALJ recommended a fine of $1000 for count 1, $500 for count 2, and $100 for each of counts 3 through 26, for a total recommended fine of $3900.

The parties filed exceptions to the Recommended Order and responses to the exceptions. The Commission entered its Final Order on March 7, 2005. In ruling on the parties’ exceptions, the Commission concluded that the ALJ erred in granting Jennings’ motion to dismiss counts 27 through 56. The Commission determined that chapter 2004-252, section 21, was not a procedural amendment but rather was a substantive statutory change which limits the Commission’s previously existing authority. Therefore, the Commission found that the amendment could not be applied to pending cases. The Commission concluded that counts 27 through 56 should not have been dismissed, and it reinstated them. The Commission further concluded that the evidence found by the ALJ showed that Jennings willfully violated section 106.021(3), Florida Statutes, and imposed a fine of $100 per violation. The Commission determined that the ALJ’s recommended penalty of $100 for each of counts 3 through 26 was too light in view of the violations and a fine of $200 was more appropriate and more closely aligned with the fines imposed in similar Commission actions.

Jennings argues on appeal that the Commission erred in reinstating counts 27 through 56. Jennings contends the 2004 amendment to section 106.25(2) should be applied to bar counts 27 through 56 because the conduct alleged in these counts was not included in the original sworn complaint filed against him.

The 2004 version of section 106.25(2), as amended by chapter 2004-252, section 21, Laws of Florida, reads as follows:

The commission shall investigate all violations of this chapter and chapter 104, but only after having received either a sworn complaint or information reported to it under this subsection by the Division of Elections. Any person, other than the division, having information of any violation of this chapter or chapter 104 shall file a sworn complaint with the commission. The commission shall investigate only those alleged violations specifically contained within the sworn complaint. If any complainant fails to allege all violations that arise from the facts or allegations alleged in a complaint, the commission shall be barred from investigating a subsequent complaint from such complainant that is based upon such facts or allegations that were raised or could have been raised in the first complaint. Such sworn complaint shall state whether a complaint of the same violation has been made to any state attorney. Within 5 days after receipt of a sworn complaint, the commission shall transmit a copy of the complaint to the alleged violator. All sworn complaints alleging violations of the Florida Election Code over which the commission has jurisdiction shall be filed with the commission within 2 years after the alleged violations. The period of limitations is tolled on the day a sworn complaint is filed with the commission.

It is undisputed that the private citizen’s sworn complaint did not allege a violation of section 106.021(3), and no complaint has ever been filed with the Commission alleging that Jennings violated section 106.021(3). The provision that “[t]he commission shall investigate only those alleged violations specifically contained within the sworn complaint,” became effective July 1, 2004, while this matter was pending. The issue of whether the change in the statute should apply to Jennings’ pending case is a question of law that we review de novo.

In determining whether a newly enacted statute should be applied retroactively, a court must first inquire whether there is clear evidence of legislative intent to apply it retroactively. See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). The parties agree here that the amendment does not evince a clear expression of intent on its application to cases arising before its enactment. The parties differ on the next step of the analysis to be undertaken, and in particular, they disagree on whether the amendment was procedural and remedial or whether it effected a substantive change in the law.

We conclude that the general principles to be applied in determining whether a statute should be applied retroactively are not useful in resolving this case given the nature of the law at issue here. The amendment effectively restricted the jurisdiction of the Commission. By its use of the word “investigate” in the amendment, the legislature did not refer merely to a discrete aspect of a Commission proceeding; rather, the term was employed in a broader sense, addressing the Commission’s power to act in any way with respect to a violation that is not asserted in a complaint. This must be so because it is self-evident that the Commission cannot proceed on any violation without first investigating it. Certainly, the Commission would not contend that, to this day, it retains power to discover and punish violations so long as it avoids investigating them in contravention of the statute.

Therefore, we conclude that the issue in this case must be resolved by using the general principle that “when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law.” Bruner v. United States, 343 U.S. 112, 116-17, 72 S.Ct. 581, 96 L.Ed. 786 (1952). In Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Court discussed instances where jurisdictional changes made by a legislative body have been applied to pending cases:

We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United States, 343 U.S. 112, 116-117, 72 S.Ct. 581, 584-585, 96 L.Ed. 786 (1952), relying on our “eonsisten[t]” practice, we ordered an action dismissed because the jurisdictional statute under which it had been (properly) filed was subsequently repealed. See also Hallowell v. Commons, 239 U.S. 506, 508-509, 36 S.Ct. 202, 203-204, 60 L.Ed. 409 (1916); Assessors v. Osbornes, 9 Wall. 567, 575, 19 L.Ed. 748 (1870). Conversely, in Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-608, n. 6, 98 S.Ct. 2002, 2005, n. 6, 56 L.Ed.2d 570 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount-in-controversy requirement for federal-question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was “now of no moment.” See also United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926, 4 L.Ed.2d 982 (1960) (per curiam); Stephens v. Cherokee Nation, 174 U.S. 445, 478, 19 S.Ct. 722, 734, 43 L.Ed. 1041 (1899). Application of a new jurisdictional rule usually “takes away no substantive right but simply changes the tribunal that is to hear the case.” Hallowell, 239 U.S., at 508, 36 S.Ct., at 202. Present law normally governs in such situations because jurisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties,” Republic Nat. Bank of Miami, 506 U.S., [80] at 100, 113 S.Ct., [554] at 565 [121 L.Ed.2d 474 (1992) ] (THOMAS, J., concurring).

(Footnote omitted.)

It makes no difference that the Commission had completed the investigatory stage of its proceeding against Jennings before the 2004 law took effect. The statute does not distinguish violations unearthed by the Commission before its effective date from violations discovered thereafter. If the legislature had intended its restriction on the Commission’s power to apply only to the latter, it easily could have said so. Just as easily, the legislature could have exempted pending proceedings from the operation of the statute. It did neither.

Because the Commission lost jurisdiction to proceed with counts 27 through 56 when the amendment became effective, we remand for the Commission to vacate its findings and sanctions imposed and to enter a dismissal of those counts. We reject, without comment, Jennings’ challenges to the amount of the penalties imposed on the other counts.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and LaROSE, JJ„ Concur.

      . Based on our reversal, it is not necessary for us to reach the issue of whether the Commission erred in making the initial factual determination that Jennings' was guilty of the violations alleged in counts 27 through 56, where the ALJ did not make findings on this factual question. We note, however, that this issue would provide an alternative basis for reversal. See Gross v. Dep’t of Health, 819 So.2d 997, 1003 (Fla. 5th DCA 2002) ("Florida courts have consistently held that the issue of whether an individual violated a statute ... is generally an issue of fact to be determined by the administrative law judge based on the evidence and testimony.”).


author: PER CURIAM.

text:
    T.T., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2253.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Robert Wesley, Public Defender and Jennifer Jacobs, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

T.T., a juvenile, arguing that the trial court failed to schedule and conduct an indirect criminal contempt hearing within 24 hours as required by statute, seeks from this court a writ of habeas corpus. We grant his petition.

On April 12, 2006, T.T. was arrested on battery charges. On May 4, 2006, T.T. pled not guilty at arraignment. On that same date, the trial court placed T.T. in the custody of a parent or guardian and issued an order that among other things, required the child to observe the curfew set by his parent or guardian. The court then scheduled an adjudicatory hearing for June 20, 2006.

At the June 20, 2006 adjudicatory hearing T.T. was found guilty of battery. At the same time, T.T.’s mother alleged that T.T. had violated his curfew two days ear-Her. Consequently, the court issued an order to show cause for violation of the behavior order and set a hearing for indirect contempt of court for July 3, 2006, the same date for the scheduled disposition hearing. The court also ordered that T.T. be held in secure detention pending the indirect contempt of court hearing.

In the instant petition, filed in this court on June 29, 2006, T.T. argues that the trial court has violated his statutory and due process rights by failing to schedule and conduct an indirect criminal contempt hearing within 24 hours, as required by section 985.216(4)(b), Florida Statutes (2005) and placing him in secure detention pending the indirect contempt hearing. We agree.

Section 985.216(4)(b) states in pertinent part: “If a child is charged with indirect contempt of court, the court must hold a hearing within 24 hours to determine whether the child committed indirect contempt of a valid court order.” (Emphasis added.) Further, according to section 985.216(2)(a), “A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.” In the instant case, as of the date of the filing of the petition, no contempt hearing has been conducted, but T.T. has already been held for nine days, which exceeds the five days for a first offense under section 985.216(2)(a).

Accordingly, we grant the petition and order that T.T. be released from secure detention immediately.

PETITION GRANTED.

THOMPSON, ORFINGER and MONACO, JJ., concur.


text:
    C.N.W., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2185.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Robert Wesley, Public Defender and Jennifer Jacobs, Assistant Public Defender, Orlando, for Petitioner.
    Charlie J. Crist, Jr., Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

C.N.W., a juvenile, petitions this court for a writ of habeas corpus, alleging that she is being detained in secure detention in contravention of the statutory law of this state. We agree and grant the petition.

C.N.W. was arrested on a charge of domestic violence battery upon her mother. The following day, a detention hearing was held pursuant to section 985.215(2), Florida Statutes (2005), and the trial court scored the Risk Assessment Instrument (RAI) at twelve points, authorizing secure detention. The court also heard testimony relating to C.N.W.’s “severe” drug problem, the fact that she had plans to run away to New York, and the mother’s fear that C.N.W. would cause her further injury. The court found that C.N.W. was a flight risk and a threat to herself and the community, and ordered her to be held in secure detention until the adjudicatory hearing. See § 985.215(5)(e), Fla. Stat. Since the RAI authorized secure detention, no written findings were made by the trial court in this case, although based on the statements made by the court, there was ample material the court could have drawn on to find that secure detention was necessary. See Wood v. State, 655 So.2d 1155 (Fla. 5th DCA 1995).

According to petitioner, the trial court erred in its scoring points on the RAI for absconding from her home. In response to the petition, the state correctly concedes that her argument on that issue is well-taken. See M.D. v. State, 923 So.2d 556 (Fla. 5th DCA 2006); T.D.S. v. State, 922 So.2d 346 (Fla. 5th DCA 2006); C.D.T. v. State, 920 So.2d 787 (Fla. 5th DCA 2006). However, the state asserts that the remedy is not necessarily to release the petitioner because the case can be remanded with the option of making written findings under sections 985.213(2)(b)3., and 985.215(2)(d). This would comport with the intent of section 985.213(1)(a), (b), Florida Statutes (2005). See K.M. v. Department of Juvenile Justice, 898 So.2d 1193 (Fla. 1st DCA 2005).

We conclude the petition must be granted. The case is remanded and the trial court is hereby ordered to either comply with those statutes or order petitioner’s release. In the absence of a statutory directive that failure to comply with those statutes at the detention hearing cannot be cured at a later time, we agree with the state as to the remedy., See K.M., 898 So.2d at 1194; see also M.D., 923 So.2d at 556-57; T.D.S., 922 So.2d at 348; and C.D.T., 920 So.2d at 788 (all granting relief because of a lack of written findings but holding that the trial court could revisit the issue if it decided that there was a basis to do so).

To ensure that the duration of any improper detention is kept to a minimum, the trial court shall either enter a written order in accordance with sections 985.213(2)(b)3., and 985.215(2)(d), or order C.N.W.’s release from secure detention by 5 o’clock p.m. on the second business day that follows the date of this opinion.

PETITION GRANTED; CAUSE REMANDED.

THOMPSON, SAWAYA, and TORPY, JJ., concur.


text:
    Gary Levester FLOWERS, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D05-5270.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Gary L. Flowers, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner’s argument that the trial court departed from the essential requirements of law by denying his petition for writ of mandamus is without merit and is rejected. But because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, the trial court improperly imposed liens upon the petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash the lien orders imposed as a result of petitioner’s filing of this petition for writ of mandamus. The trial court should direct the reimbursement of any funds that have been withdrawn from the petitioner’s account to satisfy the improper lien orders.

The petition is DENIED as to the challenge to the order by which the trial court denied mandamus, but it is GRANTED as to the challenge to the lien orders and those orders are hereby QUASHED.

ALLEN and DAVIS, JJ., Concur; THOMAS, J., Concurs in Result Only.


text:
    Travarus Q. PRUITT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-416.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, Diego Puig and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

As the state correctly concedes, petitioner’s motion for reduction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c) was timely filed. Accordingly, contrary to its order, the trial court did possess jurisdiction to consider the merits of that motion. The state also correctly concedes that the trial court’s order constitutes a departure from the essential requirements of law, entitling petitioner to the writ of certiorari he seeks. See, e.g., Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999). The petition seeking a writ of certiorari is granted; the trial court’s order denying petitioner’s rule 3.800(c) motion for lack of jurisdiction is quashed; and the case is remanded for further proceedings.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

ERVIN, WEBSTER, and THOMAS, JJ., Concur.


text:
    Cherie WALKER, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-4574.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Nancy A. Wilkov, Esquire, Gainesville, for Appellant.
    Charlie Crist, Attorney General; A. Mir-éille Fall, Assistant Attorney General and Diane L. Guillemette, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dismissed. See Lund v. Dep’t of Health, 708 So.2d 645, 646 (Fla. 1st DCA 1998) (“[W]e reject [the] contention that we should decide the case on the merits for the sole purpose of determining appellant’s right to prevailing-party appellate attorney’s fees under section 120.595(5), Florida Statutes.... ”).

BENTON, POLSTON, and THOMAS, JJ., concur.


author: FARMER, J.

text:
    William PONTIUS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-437.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      William Pontius, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.
   FARMER, J.

Defendant is charged with a failure to redeliver leased property over $300. He seeks a writ of prohibition on the basis that the trial court lacks jurisdiction because the statute of limitations on the offense has run. Prohibition is a proper method to bring this type of challenge. Cheffer v. Judge, Div. ‘S’, 15th Judicial Circuit, 614 So.2d 632 (Fla. 4th DCA 1993). Because the lower court refused to consider his challenge, we remand for further proceedings.

The Information charges that the offense was committed in September 2000. Although the State filed the Information and caused a capias to be issued, the capi-as had not been executed by the time Defendant filed his motion to dismiss. In that motion, he argued that the 5-year statute of limitations had expired. § 812.035(10), Fla. Stat. (2005). He added that he has been continuously in the custody at the county jail or the Department of Corrections on other charges since November 7, 2000.

The trial court struck the motion to dismiss, concluding that: “The decision about when and if the matter will be prosecuted is within the purview of the Office of the State Attorney. Until arrested, the matter is not properly before the Court, and thus, the Defendant is not entitled to relief.” We disagree with the trial court’s analysis.

The trial court acquired jurisdiction over this case when the State filed the Information. See Allen v. State, 463 So.2d 351, 360 (Fla. 1st DCA 1985) (explaining that the “jurisdiction of a circuit court in a criminal case is invoked by filing an information” and that jurisdiction is to be ascertained from the “face of the information”). Rule 3.190(b) permits the defendant to raise a defense to a charge, such as expiration of a statute of limitations, by motion to dismiss the information. See Akers v. State, 370 So.2d 81 (Fla. 1st DCA 1979) (holding that defendant’s 3.190(b) motion should have been granted because the face of the information showed “that the crime charged was barred by the statute of limitations”). Rule 3.190 also provides that defendant should file a motion to dismiss either before or at arraignment. Fla. R.Crim. P. 3.190(c).

With defendant’s challenge, the burden rested on the State to demonstrate that the prosecution was not barred by the statute of limitations. State v. King, 282 So.2d 162, 164 (Fla.1973). The State’s response was to argue that until he is formally arrested on the charge, defendant will have to wait until he is released from his sentences on other offenses before he can raise his statute of limitations challenge to his prosecution in this case.

The State did not carry its burden. Defendant has been formally charged in the circuit court with a crime. He has the right under rule 3.190 before arraignment to seek dismissal of the charges on the grounds that they are time barred. There is nothing in the statutes or rules requiring him to wait until he is formally arrested to seek dismissal of untimely charges. On remand the trial court shall hear and determine petitioner’s motion on the merits.

Petition Granted.

GUNTHER and POLEN, JJ., concur.


text:
    Kip A. STERLING, Appellant, v. James V. CROSBY, Jr., etc., Appellee.
    No. 5D05-3478.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.
    Kip A. Sterling, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert L. Dietz, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari and deny it. See McDuffy v. Moore, 747 So.2d 1003 (Fla. 2d DCA 1999).

DENIED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


author: SHARP, W., Senior Judge.

text:
    Jerry Layne ROGERS, Appellant, v. STATE of Florida, Appellee. Jerry Layne Rogers, Appellant, State of Florida, Appellee, Jerry Layne Rogers, Appellant, State of Florida, Appellee.
    Nos. 5D06-979 to 5D06-981.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.

      Jerrel E. Phillips, Tallahassee and Timothy C. Hester, John H. Fuson, and Ashley K. Lunkenheimer of Covington & Burling, Washington, DC, for Appellant.'
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., Senior Judge.

Rogers appeals from the trial court’s summary denial of his three motions filed pursuant to Florida Rule of Criminal Procedure 3.850, in case numbers 1982-CF-1939, 1982-CF-1963, and 1982-CF-1988. The trial court rendered three separate denial orders and Rogers filed an appeal for each. Although the files are traveling together in this court because the issue presented in each appeal is identical, they have not been consolidated. However, a consolidated opinion is being issued for all three appeals for disposition by this court and we affirm.

In each of these appeals, Rogers seeks to collaterally attack criminal convictions, by claiming that findings made by the Florida Supreme Court in a different criminal case involving Rogers, constitute newly discovered evidence sufficient to overcome the two-year time bar for seeking 3.850 relief which would otherwise foreclose the instant attacks. See generally Fla. R.Crim. P. 3.850(b)

In the early 1980s, Rogers embarked on a series of armed robberies, or attempts thereof, with McDermid (hereinafter “the Interstate 4 robberies”). In one such attempt at a Winn-Dixie store (hereinafter “the Winn-Dixie case”), Rogers was also charged with murder and was originally sentenced to death. The judgment and sentence were affirmed by the Florida Supreme Court on appeal. See Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). That case did not form the basis for any of the charges in the cases involved in this proceeding.

In early 1990, Rogers brought a collateral attack on his first degree murder conviction and death sentence in the Winn-Dixie case via rule 3.850. After several amendments to the motion, and various legal rulings on the same, the Florida Supreme Court ultimately ruled in favor of Rogers on Brady grounds in a February 15, 2001, opinion. Rogers v. State, 782 So.2d 373 (Fla.2001).

Regarding the merits of the Brady claim, the Florida Supreme Court remanded for a new trial in the Winn-Dixie case concluding:

The materials that the State withheld from Rogers are bedrock Brady materials of the sort upon which many courts have relied in ordering new trials. We conclude that the individual as well as the cumulative effect of the suppression of the materials ... indeed undermines confidence in the outcome of the trial.

Rogers, 782 So.2d at 385.

The trial court in this proceeding summarized the supreme court’s findings regarding the Brady materials as follows:

[T]he State had in its possession at the time of trial extensive documents related to the police investigation of the Interstate 4 robberies; that this withheld evidence was material to the Defendant’s defense and potentially exculpatory; that the withheld evidence could have been used to impeach the testimony of McDermid and other witnesses; and the withheld evidence would have allowed the Defendant to show that someone else was a principal suspect in the Interstate 4 robberies.

Rogers argues in the instant appeals that the Brady violations found by the Florida Supreme Court to have occurred in the Winn-Dixie case provide valid, newly discovered evidence to challenge the three criminal convictions implicated in these appeals because those same Brady violations occurred in (and had the same impact upon) his trials in the instant cases. In particular, Rogers asserts that his principal defense at all three trials was that McDermid had falsely accused Rogers of being his accomplice to cover up the identity of McDermid’s true accomplice(s) in these crimes. Thus, the State’s failure to turn over in the instant cases the same exculpatory materials it failed to turn over in the Winn-Dixie case undermines confidence in the outcome of the instant cases.

The trial court found that the motions were proeedurally barred by the two-year time period for filing rule 3.850 motions and that the exception articulated in rule 3.850(b)(1) based on newly discovered evidence did not apply.

Obviously, the two years since the date of the criminal judgments became final in each of these three cases has long since passed. The only question is whether the exception for newly discovered evidence is applicable.

We agree with the trial court that the findings of the supreme court in the 2001 capital collateral attack proceeding in the Winn-Dixie case do not constitute new facts. Rather, the facts behind those fact findings could constitute newly discovered evidence for collateral attack purposes. However, these facts were known by Rogers in 1990 when he brought the 3.850 proceeding in St. Johns County, to attack the Winn Dixie conviction. These three 3.850 proceedings were commenced when Rogers filed his motions, all on the same day, February 12, 2003. This is more than two years after Rogers must have known about this Brady material, in 1989 or at the latest in 1991, when he was prosecuting his collateral attack in the Winn-Dixie case.

Rogers argues that these motions are timely because they were filed within two years after the supreme court’s decision in the Winn-Dixie case — decided in 2001. See Swafford v. State, 828 So.2d 966 (Fla. 2002) (a 3.850 motion based on newly discovered evidence must be filed within two years of the time when the information could have been discovered through the exercise of due diligence.). However, it is not the court’s decision which creates new facts, it is the fact of the withheld evidence that logically is the newly discovered evidence.

Furthermore, Rogers has previously asserted these Brady claims in at least one of these three cases. In Case 1982-CF-1963, a 3.850 motion was filed on April 23, 1997, alleging that the State violated the dictates of Brady by failing to turn over the same exculpatory materials that the Supreme Court would later conclude were “bedrock” Brady materials in the Winn-Dixie case. The trial court denied this motion and this court affirmed. Rogers v. State, 741 So.2d 510 (Fla. 5th DCA 1999). Thus, in addition to further demonstrating the untimeliness of the instant rule 3.850 motions, it appears the instant motions could be denied by the trial court and affirmed by this court as successive. See generally State v. McBride, 848 So.2d 287 (Fla.2003).

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

      . Case No.1982-CF-1939 — November 5, 1983 conviction, two counts of armed robbery with a firearm, per curiam affirmed by this court, Rogers v. State, 461 So.2d 958 (Fla. 5th DCA 1984); Case No.1992-CF-1963, March 4, 1983 conviction, armed robbery of a Captain D’s, per curiam affirmed by this Court, Rogers v. State, 447 So.2d 1369 (Fla. 5th DCA 1984); Case No. 1982-CF-1988, December 3, 1982 conviction, armed robbery of Daniel’s Market, per curiam affirmed by this Court, Rogers v. State, 447 So.2d 1369 (Fla. 5th DCA 1984).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . A fact which Rogers has acknowledged in the instant appeal.

      . Rogers, in fact, contends that the Brady arguments raised in case number 1982-CF-1963 in 1997 were also raised in case numbers 1982-CF-1939 and 1982-CF-1988 in 1997 and 1998, however, “all three motions were denied ... before the Florida Supreme Court established the facts that are the basis of the current motions.” The trial court was unable to locate the rule 3.850 motions filed in “1997 and 1998” in case numbers 1982-CF-1939 and 1982-CF-1988.


author: KELLY, Judge.

text:
    In re FORFEITURE OF 2003 CHEVROLET CORVETTE, IDENTIFICATION NO. 1G1YY12S435100084, TAG VBA386. Department of Highway Safety and Motor Vehicles, Appellant, v. John C. Churchill, Appellee.
    No. 2D05-5346.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert Dietz, Assistant Attorney General, Tampa, for Appellant.
    Roger S. Elkind of Law Office of Roger S. Elkind, Aventura, for Appellee.
   KELLY, Judge.

In this forfeiture proceeding, the Department of Highway Safety and Motor Vehicles appeals from the trial court’s order setting aside its finding of probable cause and ordering the return of John Churchills seized Corvette. We reverse.

The Florida Contraband Forfeiture Act (the Act), sections 932.701-932.707, Florida Statutes (2004), makes it unlawful to use personal property as an instrumentality in the commission of any felony. Personal property may be seized for a violation of the Act. § 932.703(l)(a). Following a seizure, the person whose property has been seized has the right to request an adversarial preliminary hearing. § 932.703(2). The interested person must make the request by certified mail, return receipt requested within fifteen days of receiving the notice of seizure. § 932.703(2)(a). The hearing must be set within ten days after the request is received, “or as soon as practicable thereafter.” Id.

In an adversarial preliminary hearing, the Department is required to establish probable cause that the seized property was used during the commission of a felony. See § 932.701(2)(f); Beary v. Bruce, 804 So.2d 579 (Fla. 5th DCA 2002). If the court finds that probable cause has been established, a forfeiture proceeding is held at which the court or jury ultimately determines whether the subject property shall be forfeited. See § 932.701(2)(g); City of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck, 803 So.2d 847 (Fla. 4th DCA 2002). If the interested person does not request a hearing, the court will review the complaint for probable cause without a hearing. If it finds probable cause, “the court shall enter an order showing the probable cause finding.” § 932.704(5)(b).

In this case, Churchill’s car was seized for leaving the scene of an accident with serious injuries. The Department mailed a presuit Notice of Seizure and Right to Adversarial Preliminary Hearing form to Churchill on October 28, 2004. Churchills attorney sent a request for an adversarial preliminary hearing to the Department in Tallahassee by regular mail, not certified mail as required by section 932.703(2)(a). The Department received the request on November 10, 2004, and notified Churchill’s attorney that the request for hearing did not comply with the mailing requirements of the statute. Churchill’s attorney then mailed another request for hearing by certified mail, but by that time the fifteen-day window to request the hearing had passed. Because the adversarial preliminary hearing was not properly requested, the Department did not set it for hearing.

Because no hearing had been set, the court reviewed the petition for forfeiture and issued an order finding probable cause. Churchill then moved to set aside the order, arguing that because the Department received actual notice of his request, it should have set a hearing. The trial court agreed and set aside its order finding probable cause and ordered the return of Churchills vehicle.

The Department argues that the provisions of the forfeiture statute must be strictly construed; therefore, Churchill’s failure to request a hearing by certified mail within fifteen days waived his entitlement to an adversarial preliminary hearing. We disagree.

“Due process mandates that the provisions of the forfeiture act be strictly interpreted in favor of the persons being deprived of their property. Town of Oakland v. Mercer, 851 So.2d 266, 269 (Fla. 5th DCA 2003) (emphasis added). Here, the trial court properly attempted to construe the statute in favor of Churchill, finding that the Department had received actual notice of the request for a hearing. See Phoenix Ins. Co. v. McCormick, 542 So.2d 1030 (Fla. 2d DCA 1989) (recognizing that statutory language providing for notice by certified mail, registered mail or hand delivery eliminates problems in proving timely service, but when actual notice is conceded, strict compliance is not required). “When considering other statutes that appear to mandate a specific mode of service, several Florida courts have held actual notice by a mode other than that prescribed sufficient.” Patry v. Capps, 633 So.2d 9, 12 (Fla.1994) (emphasizing that in the context of a medical malpractice action, the presuit notice and screening statute should be construed in a manner that favors access to courts).

Therefore, we agree with the trial court’s finding that the Department should have set an adversarial preliminary hearing. However, the trial court went a step too far when it returned the vehicle to Churchill. The proper remedy would have been to set the case for an adversarial preliminary hearing with proper notice. See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000) (holding that where Crepage only received twenty-four-hour notice of the hearing, the remedy was to set a new hearing with proper notice).

Accordingly, we reverse the trial court’s order returning the vehicle to Churchill and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, J., and GALLEN, THOMAS M., Associate Judge, Concur.


author: DAVIS, Judge.

text:
    John Robert MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1183.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

John Robert Miller challenges the trial court’s order imposing $14,000 in restitution against him in conjunction with his convictions for armed burglary, shooting into a building, and discharging a firearm in public. We reverse.

Miller was originally convicted of armed burglary, shooting into a building, and discharging a firearm in public on March 3, 2000. Miller appealed those convictions in Miller v. State, 805 So.2d 885, 886 (Fla. 2d DCA 2001), in which this court set forth the following facts:

An admitted heroin user, Miller went to the Parental Awareness and Responsibility (PAR) clinic seeking treatment for his addiction and enrolled in a methadone program. After a number of months, Miller decided he wanted to be free from all drugs, including methadone. He attempted to get off the methadone through the PAR clinic but was unsuccessful. He then turned to Neu-raad, a clinic that offered a different type of treatment called opiate detoxification. Under this program, intense doses of numerous toxic drugs are introduced into the patient’s system, following which the patient is sedated with anesthesia. The patient then sleeps during the period that his or her body undergoes the physical manifestations of withdrawal, thus greatly reducing the patient’s conscious awareness of the most acute symptoms of withdrawal.
Miller checked into the Neuraad clinic on a Tuesday morning. The staff administered the medications and the anesthesia. Some twenty-seven hours later he was released, still under the influence of significant amounts of medication and with prescriptions for additional medication. Within three hours of his release, Miller went to the PAR clinic. When he arrived, the clinic was closed for the day. Upset that he could not get in, Miller shot the lock off the gate. He walked around the building, shooting into it several times. -He then broke a window and climbed inside. He ultimately surrendered to ■ the police when they entered.

As part of Miller’s sentence on those original convictions, the trial court imposed restitution in the amounts of $11,426.64 for medical and mental health expenses incurred by one of the clinic’s employees and $1659 for property damage — for a total of $13,085.64. This award was not imposed as a condition of probation;

On appeal, this court affirmed Miller’s discharging a firearm in public conviction, reversed his armed burglary and shooting into a building convictions, and remanded for new trial on the latter two charges. See Miller, 805 So.2d 885. We note that Miller did not raise any issues regarding restitution in that appeal. Id. On remand, Miller entered no contest pleas to those charges in exchange for concurrent six-year probationary terms. The judgment and sentence and order of probation entered in relation to those pleas are silent as to restitution, leaving blank the lines reserved for such amounts. Additionally, there is nothing in either order to suggest that the trial court reserved jurisdiction to later address the restitution issue.

However, more than two years later, in 2004, Miller filed a motion to clarify, noting that no restitution had been ordered and seeking a confirmation that none was owed. On September 10, 2004, the trial court entered an order of restitution, reimposing the original restitution amount of $13,085.84. On September 24, 2004, the trial court entered a similar order, imposing the same amount of restitution but advising that Miller had thirty days to file written notice of objection to the amount of restitution. Miller then moved for a case status review, challenging the restitution award. On April 18, 2005, after holding a hearing, the trial court entered a new restitution order in the amount of $14,000.

We first note that the trial court was without jurisdiction to enter the September 10, 2004, September 24, 2004, and April 18, 2005, restitution orders because more than sixty days had passed since Miller was sentenced after remand on the armed burglary and shooting into a building charges. See Selwyn v. State, 903 So.2d 361, 362 (Fla. 2d DCA 2005) (“A trial court is required to enter an order imposing restitution within sixty days of sentencing State v. Hiscox, 677 So.2d 862 (Fla. 2d DCA 1996) (noting that the sixty-day requirement is jurisdictional). As such, those restitution orders are all nullities.

However, the original March 3, 2000, $13,085.84 restitution order is still in effect by virtue of Miller’s conviction for discharging a firearm in public that this court affirmed on appeal. See Miller, 805 So.2d 885.

Miller originally had been charged with aggravated assault, but the jury convicted him of the lesser included offense of discharging a firearm in public. The aggravated assault charge was based on Miller’s threatening to do violence to the victim— one of the clinic’s employees — once he was inside the building. As such, we conclude that the $11,426.64 restitution award for the victim’s medical and mental health expenses stemmed from Miller’s actions connected, at least in part, to the aggravated assault charge and, consequently, the discharging a firearm conviction. Additionally, although the jury convicted Miller in that count of only the lesser offense, in doing so, it made a finding that Miller did discharge a firearm inside the clinic. Therefore, we can conclude that the restitution award for property damage also related to that charge. Accordingly, the original March 3, 2000, restitution order, which Miller never challenged as part of his direct appeal, remains in effect.

In conclusion, we reverse the trial court’s September 10, 2004, September 24, 2004, and April 18, 2005, restitution orders for lack of jurisdiction but note that the original March 3, 2000, award was never overturned or vacated and thus remains intact.

Reversed.

CANADY and VILLANTI, JJ., Concur.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Angel Diane SHELL, Appellee.
    No. 2D05-2709.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State appeals the trial court’s order granting Angel Diane Shell’s motion to suppress statements she made to a law enforcement officer without the benefit of the Miranda warning. Because we find that Ms. Shell was not in custody when she made the statements, we reverse the order and remand for further proceedings.

BACKGROUND

Detective Brenda Kureth of the Collier County Sheriffs Office asked Ms. Shell to bring her two children to the Child Protection Team (CPT) Office in Naples so that a CPT caseworker could interview the children. The CPT caseworker was investigating allegations of abuse against the children by them father, who was Ms. Shell’s former husband. Ms. Shell, accompanied by her sister, brought the children to the CPT office as requested. Detective Ku-reth monitored the interview with the children while Ms. Shell and her sister waited in another room. During the interview with the children, their statements led Detective Kureth to believe that Ms. Shell had previously lied to her and to representatives of the Department of Children and Families (DCF) about where the children had been during the period of the alleged abuse. The detective asked Ms. Shell to give a taped statement. Ms. Shell agreed, and Detective Kureth directed Ms. Shell into a conference room and closed the door.

Detective Kureth did not administer the Miranda warning to Ms. Shell before questioning her. The detective’s questioning of Ms. Shell lasted approximately five minutes. The transcript of the taped statement — double-spaced between each question and answer- — -is only four pages long. In response to Detective Kureth’s questions, Ms. Shell readily admitted to leaving the children with their father despite a standing no-contact order, to telling the children to lie to representatives of the DCF about their whereabouts, and to having lied when she told representatives of the DCF that the children were with her during the time that they were actually with their father. Although the DCF sheltered the children, Ms. Shell left the CPT office with her sister after answering Detective Kureth’s questions. The State subsequently charged Ms. Shell with child neglect, and she filed a motion to suppress her taped statement. Ms. Shell claimed that she had been in custody when she made the statement and that she did not receive the benefit of the required Miranda warning.

Detective Kureth was the only witness who testified at the hearing on Ms. Shell’s motion to suppress. At the conclusion of the hearing, the trial court granted the motion to suppress Ms. Shell’s statement. The trial court reasoned:

I noticed in particular she was asked very pointed questions which were ... directly on point to where her responses amounted to really a total confession.
And it appears that law enforcement was not just asking questions out of curiosity, law enforcement had some knowledge of what was going on and asked directly, did [you] do [ ] it and she said yes.
Well, you tell the mother of small children that you have to bring your children down here and it looks like the children aren’t going anywhere, there is certainly some coercive quality to that particular activity.
The purpose, place and the manner of the interrogation in a closed room with a police officer with a tape recording on, the extent to which the suspect was confronted with evidence of his or her guilt, I don’t know that that was particularly an issue here.
And then the fourth one, the suspect is informed that he or she was free to leave the place of questioning. I would think that the ordinary citizen under these circumstances would certainly believe that they were in custody and not free to leave.

THE QUESTION OF CUSTODY

The determination of Ms. Shell’s motion to suppress hinged on the issue of whether she had been in custody while she was inside the closed conference room with Detective Kureth at the CPT office. It is custodial interrogation — -not mere questioning — that triggers Miranda’s requirement of the advisory warning that must be given to a suspect before questioning begins. In the Miranda opinion, the United States Supreme Court explained what it meant by custodial interrogation as follows:

[T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The test for determining whether a person “is in custody for purposes of Miranda” is “whether ‘a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.’ ” Mansfield v. State, 758 So.2d 636, 644 (Fla.2000) (quoting Ramirez v. State, 739 So.2d 568, 573 (Fla.1999)). In applying this test, a trial court should consider four factors:

(1) [T]he manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez, 739 So.2d at 574. Here, consideration of the first and third factors showed little evidence of coercion, and the trial court focused on the manner of Detective Kureth’s interrogation of Ms. Shell and whether Ms. Shell was informed that she was free to leave the CPT office.

A. The Manner of the Interrogation

The trial court turned its attention first to the questions that Detective Kureth asked Ms. Shell about the discrepancies between what the children had said in their interview and what Ms. Shell had previously told the representatives of the DCF and the detective: “And it appears that law enforcement was not just asking questions out of curiosity, law enforcement had some knowledge of what was going on and asked directly, did [you] do [ ] it and she said yes.” According to the transcript of Ms. Shell’s taped statement, Detective Kureth asked:

D [Detective Kureth]: Okay. Um, and you let the [children] go visit the father regardless of the No Contact Order in place?
A [Ms. Shell]: Yes, m’am [sic],
D: The, recently you went to Tennessee.
A: Yes.
D: Okay. Was [J.] and, uh, [J.] with you?
A: No, m’am [sic].
D: Okay. And however you did tell both [children] to lie and say that they were up there.
A: Xes, m’am [sic].
D: When Department of Children and Families Services called you on your cell phone while you were in Tennessee you said the [children] were fishing with their future step father, is that correct?
A: Yes, I did.
D: So you deliberately lied to-them and you deliberately lied to me.
A: Yes, m’am [sic].
D: And you told your [children] to lie.
A: Yes, m’am [sic].
D: Um, and you did allow these [children] to go visit their father knowing there was a No Contact Order in place.
A: Yes, m’am [sic].

We observe that the detective’s manner while asking these questions was halting and tentative. After reading the transcript, one is left with the impression that Detective Kureth was surprised by what she had recently learned from the children’s interview. In her questioning of Ms. Shell, the detective seemed to be searching for answers rather than making accusations.

“ ‘[I]n the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into a custodial interrogation.’ ” State v. Scott, 786 So.2d 606, 609 (Fla. 5th DCA 2001) (quoting Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999)). In Scott, an officer interviewed a motel employee at the motel about the theft of a guest’s credit card. Id. at 607. The officer informed the employee that she was a suspect in the theft and tape-recorded the twenty- to thirty-minute interview in which the employee admitted being involved in the crime. Id. Although the officer did not tell the employee that “she was free to leave during the interview,” he did allow her to leave after the interview. Id. Because the officer did not inform the employee of her Miranda rights, the employee filed a motion to suppress her statements from the interview, and the trial court granted her motion. Id. at 606-07. The Fifth District reversed the trial court’s order, finding that the interview “was nothing more than a consensual encounter.” Id. at 611. The court, among other reasons, stated, “there is nothing in the record to indicate that [the officer] coerced, threatened, intimidated or touched [the employee] in any way.” Id. at 607.

In this case, the trial court’s concern about the content of the interview went to the question of whether Ms. Shell was interrogated, not whether she was in custody at the time. “ ‘Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.’ ” Ramirez, 739 So.2d at 573 (alteration in original) (quoting Traylor v. State, 596 So.2d 957, 966 n. 17 (Fla.1992)). It is undisputed that Detective Kureth interrogated Ms. Shell. However, it is the manner of the interrogation — not the content — that determines whether the interrogation was custodial. Id. at 574. The record does not reflect that during , the interview, the detective was coercive, threatening, or intimidating. The trial court even recognized that “[t]he purpose, place and the manner of the interrogation” were not at issue.

The trial court’s second concern about the fact that the children were sheltered also touched on the manner of the interrogation. The trial court stated that sheltering the children has a “coercive quality.” To be sure, the possibility that the children might be sheltered as a result of the entire encounter at the CPT office could add a coercive element to the circumstances of Ms. Shell’s interrogation. Nevertheless, our supreme court has acknowledged that “[ijn determining that a suspect was not in custody, it does not have to be found that the environment in which he was questioned was devoid of coercion.” Roman v. State, 475 So.2d 1228, 1232 (Fla.1985). The record does not reflect when the representatives of the DCF made the determination to shelter the children. Thus they could have made this decision before Ms. Shell arrived, during the children’s interview, or during or after Detective Ku-reth’s questioning of Ms. Shell. Although the record reflects that Ms. Shell knew she was bringing the children to be interviewed concerning the abuse allegations against their father, it does not indicate the extent of Ms. Shell’s knowledge at any point concerning whether her children would be sheltered. The transcript of Detective Kureth’s questioning of Ms. Shell demonstrates that the detective did not mention that the children would be sheltered or use that possibility as a bargaining tool or threat. The fact that the children were ultimately sheltered did not make the manner of the interrogation coercive.

B. Whether Ms. Shell Was Informed She Was Free to Leave

Finally, the trial court commented on the fourth Ramirez factor: whether the person is informed that he or she is free to leave. One of the factors that determines whether a person is in custody for purposes of Miranda is whether a reasonable person in the suspect’s position would believe that his or her freedom “ ‘was curtailed to a degree associated with actual arrest.’ ” Mansfield, 758 So.2d at 644 (quoting Ramirez, 739 So.2d at 573). However, a suspect need not be advised that he or she is free to leave in order for the court to determine that the suspect was not in custody. Noe v. State, 586 So.2d 371, 373, 381 (Fla. 1st DCA 1991). The determination of whether a reasonable person would believe that his or her freedom is restrained is made by looking at the totality of the circumstances. Id. at 380-81.

In Noe, the investigating officers asked a mother and a father to come to the police station for questioning in connection with the death of their child. Id. at 373. The officers interviewed the mother for “less than two hours” with questions that “did not appear to be especially intimidating.” Id. at 381. No officer informed the mother that she was free to leave, and after approximately two hours, the mother confessed that she “ ‘snapped.’ ” Id. at 373-74. Later, the mother filed a motion to suppress her statement, claiming that she was in custody and had not received the Miranda warning. Id. at 373, 380. The First District affirmed the trial court’s denial of the mother’s motion, finding that “a reasonable person would not have considered the situation as being in custody.” Id. at 381. Because custody entails a limitation on freedom “to a degree associated with actual arrest,” given the totality of the circumstances, we conclude that a reasonable person in Ms. Shell’s position would not have considered herself in custody.

CONCLUSION

We may summarize by reviewing the Ramirez factors: Ms. Shell voluntarily brought her children to be interviewed at the CPT Office. The trial court dismissed the second and third factors as not “particularly an issue here.” Detective Kureth did not tell Ms. Shell that she was free to leave; however, Ms. Shell was free to leave with her sister after the interview. Further, the interrogation lasted only five minutes and was not conducted in an intimidating manner. Thus we conclude that the totality of the circumstances indicates that Ms. Shell was not in custody during the interrogation. Accordingly, we reverse the trial court’s order granting Ms. Shell’s motion to suppress her statements, and we remand to the trial court for further proceedings.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

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

      . Detective Kureth testified that she had closed the door to the conference room because the surrounding area was noisy.

      . Although testimony from Ms. Shell might have shed light on this question, she did not take the witness stand at the hearing.


text:
    FRIENDLY HOMES OF THE SOUTH INC., a Florida corporation, Appellant, v. Sonnel FONTICE and Vilcia Fontice, individually and as natural parents and next friends of Marcus Fontice, Jessica Fontice, and Jean Fontice, Appellees.
    No. 2D05-3672.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.

      Burke G. Lopez of Rywant Alvarez Jones Russo & Guyton, P.A., Tampa, for Appellant.
    Robert H. Van Hart, Lakeland, for Ap-pellees.
   NORTHCUTT, Judge.

Friendly Homes of the South, Inc., appeals a nonfinal order that determined it was not entitled to arbitration. We reverse.

Our limited appendix reveals the following. In January 1997, Friendly Homes entered into a form contract with Vilcia Fontice and Jean Fontice for the sale and purchase of a single family dwelling, to be constructed by Friendly Homes, with a closing date of April 30. Vilcia is married to Sonnel Fontice, and Jean is one of their three children. The contract did not contain an arbitration agreement. On May 14, Vilcia and Jean signed a two-page document titled “Arbitration Document Disclosure.” Friendly Homes described this document as one signed by the Fontices “upon occupancy of the home.” The document did not contain a signature line for Friendly Homes, and it was not signed by anyone from the company.

In October 1999, Yilcia and Sonnel sued Friendly Homes, asserting claims for breach of implied warranty, breach of express warranty, negligence, and breach of contract. They filed suit individually and on behalf of their children. In a nutshell, they alleged that the house was poorly constructed and suffered from defects that resulted in mold and mildew. Friendly Homes filed a motion to dismiss, asserting deficiencies in the complaint. In an amended motion to dismiss, it also asserted a right to arbitration. After the Fon-tices filed an amended complaint, Friendly Homes filed a motion to compel arbitration.

When ruling on a motion to compel arbitration, a court must consider three questions: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 635 (Fla.1999). Instead of seeking the circuit court’s determination of these issues, however, the parties jointly stipulated to the entry of an order compelling arbitration. The court did as the parties asked and ordered the matter to arbitration. On June 24, 2004, the arbitrators awarded the Fontices $47,400 in damages.

In February 2005, Friendly Homes filed a motion to confirm the arbitration award. It appears that the Fontices took no action between the arbitration decision and Friendly Homes’ motion to confirm. After a hearing, the circuit court refused to confirm the arbitration award, premised on three rulings: first, that the May 1997 “Arbitration Document Disclosure” was ambiguous and insufficient to constitute a valid binding arbitration agreement; second, that Sonnel Fontice could not be bound by the document because he did not sign it; and third, that the Fontices did not waive their right to contest the arbitration result by failing to file any pleading, objection, or motion in response to Friendly Homes’ motion to compel arbitration.

When we first examined this case, we questioned whether we had jurisdiction to consider it. The order on appeal was entered in response to Friendly Homes’ motion to confirm the arbitration award. This was not a final order because it did not end the judicial labor in the case. Cf. City of Tallahassee v. Big Bend PBA, 703 So.2d 1066 (Fla. 1st DCA 1997). The Florida Arbitration Code purports to establish a right to appeal from an order “confirming or denying confirmation of an award[.]” § 682.20(l)(c), Fla. Stat. (2005). But only the supreme court is empowered to grant interlocutory jurisdiction to the district courts of appeal, which it has done with respect to the nonfinal orders listed in Florida Rule of Appellate Procedure 9.130. See art. V, § (4)(b)(1), Fla. Const.; Health Care Assocs., Inc. v. Brevard Physicians Group, P.A., 701 So.2d 118 (Fla. 5th DCA 1997); City of Tallahassee, 703 So.2d at 1069 (“Nor can the legislature create, by statute, a right to appeal from non-final orders not enumerated in Rule 9.130.”). Rule 9.130 contains no provision for interlocutory appeals from orders denying motions to confirm arbitration awards. Thus, if the order was only a denial of the motion to confirm, we would lack jurisdiction to review it.

However, at least two of the circuit court’s rulings went directly to Friendly Homes’ entitlement to arbitration, a matter that is reviewable under rule 9.130(a)(3)(C)(iv). The circuit court ruled on whether a valid written agreement to arbitrate existed (holding that it did not) and whether Sonnel was a party to that agreement (holding that he was not). These rulings are reviewable because they determined Friendly Homes’ entitlement to arbitration, albeit after the fact.

Turning to the merits then, we share the circuit court’s skepticism about the validity of the “Arbitration Document Disclosure.” But the court was mistaken to focus on that document. The controlling agreement was the parties’ joint stipulation for arbitration, entered after the suit was commenced. This agreement was not ambiguous, and Sonnel was a party to it. Chapter 44, Florida Statutes (2004), authorizes a court to order nonbinding arbitration, § 44.103, and to order voluntary binding arbitration when opposing parties so agree in writing, § 44.104. The supreme court has adopted rules for these arbitra-tions. Fla. R. Civ. P. 1.700, 1.800-.830. The parties having jointly stipulated for arbitration in this case, Friendly Homes was entitled to arbitration regardless of whether the May 1997 “Arbitration Document Disclosure” was effective.

Our jurisdiction to review the non-final order on appeal is limited to the issue of Friendly Homes’ entitlement to arbitration. Therefore, we do not review the circuit court’s ruling that the Fontices did not waive their right to contest the arbitration result by failing to oppose the motion to compel. We note, however, that a party’s ability to contest an arbitration award is regulated by statute and court rule. See §§ 682.13, .14 (providing grounds for party to seek vacation, modification, or correction of arbitration award within 90 days after delivery of copy of award); § 44.103(5) (directing judge to enter orders or judgments necessary to carry out arbitration decision when no timely motion for trial de novo has been made after nonbinding arbitration); § 44.104(10) (providing limited grounds for party to raise in challenging decision rendered in voluntary binding arbitration); § 44.104(13) (directing judge to enter orders or judgments necessary to carry out arbitration decision when no timely appeal has been taken); Fla. R. Civ. P. 1.820(h) (providing 20 days to move for trial de novo after nonbinding arbitration); Fla. R. Civ. P. 1.830(c)(2) (providing 30 days to appeal decision of voluntary binding arbitration); Bacon Family Partners, L.P. v. Apollo Condo. Ass’n, Inc., 852 So.2d 882, 888 (Fla. 2d DCA 2003) (“If no motion for trial is timely served [after nonbinding arbitration], then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise.”).

We do not decide whether the arbitration fell under chapter 682 or chapter 44, and we express no opinion on what rights the Fontices have or have not waived at this point in the proceedings. We hold only that the circuit court should have given effect to the parties’ stipulated agreement to arbitrate.

Reversed and remanded for further proceedings consistent with this opinion.

SALCINES and SILBERMAN, JJ., Concur.


text:
    Mose C. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-807.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.

      Mose C. Jones, Bristol, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed without prejudice to file a legally sufficient motion pursuant to Florida Rule of Criminal Procedure 3.800(a).

AFFIRMED.

GRIFFIN, ORFINGER, JJ., and SHARP, W., Senior Judge, concur.


author: VILLANTI, Judge.

text:
    In the Interest of K.L., P.L., and N.L., Children. Department of Children and Family Services, Appellant, v. M.L., Appellee.
    No. 2D05-4870.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    Douglas Sherman, Lakeland, for Appellant.
    No appearance for Appellee.
   VILLANTI, Judge.

The Department of Children and Family Services appeals a final order directing it to pay the grandmother’s attorney’s fees in a foster care proceeding. The Department correctly argues that there was no authority for the award of fees. While we are not unsympathetic to the trial judge’s frustration with the Department’s delay in conducting a home study, it was error for the trial judge to order the fee payment absent a legal basis. See Dep’t of Children & Family Servs. v. J.B., 898 So.2d 980 (Fla. 5th DCA 2005). Accordingly, we reverse and remand with directions to the trial court to strike the fee award.

Reversed and remanded with directions.

FULMER, C.J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Christopher SMITH, Appellant, v. Carla SMITH, Appellee.
    No. 2D05-5665.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.

      Toni A. Butler, Esquire of Toni A. Butler, P.A., Naples, for Appellant.
    Carla Smith, pro se.
   THREADGILL, EDWARD F., Senior Judge.

Christopher Smith (“the Former Husband”) appeals a postdissolution order of the trial court that modified his visitation privileges with the parties’ two children, one of whom is still a minor. We reverse.

The parties have been divorced for more than thirteen years. They started having visitation problems after the Former Husband moved to Colorado. Carla Smith, the Former Wife, filed a motion to have the Former Husband’s visitation privilege suspended for failure to comply with their agreement. Mediation failed, and the case was submitted to a general master. The general master submitted a report and a recommended order which required the Former Husband to have supervised visitation in Florida. The Former Husband filed exceptions to the general master’s order and requested a hearing. The trial court denied the exceptions two years later without conducting a hearing.

Florida Family Law Rule of Procedure 12.490(f) provides that “[i]f exceptions are filed [to a general master’s report], they shall be heard on reasonable notice by either party or the court.” This court has interpreted this rule to require a mandatory hearing before the trial court if a hearing is requested. See Yoxsimer v. Yoxsimer, 918 So.2d 997 (Fla. 2d DCA 2006) (holding that the trial court erred in denying the wife’s exceptions to the magistrate’s order without first conducting a hearing); see also Knorr v. Knorr, 751 So.2d 64 (Fla. 2d DCA 1999); Ellett v. Ellett, 546 So.2d 1108 (Fla. 2d DCA 1989). We therefore reverse and remand for further proceedings.

Reversed and remanded.

CANADY and LaROSE, JJ., Concur.


text:
    David W. FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D05-2029.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    David W. Farmer, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

David Farmer petitions this court for a writ of habeas corpus, alleging that his appellate attorney provided ineffective assistance by failing to raise fundamental errors in the jury instructions regarding the justifiable use of deadly force. We grant the motion for rehearing and withdraw our previous order denying the petition.

Without a complete appellate record, we cannot determine whether the erroneous instructions constituted fundamental error in this case. Accordingly, we grant Farmer a new appeal on this issue. We are not deciding at this time whether this issue is barred by res judicata based on the arguments presented on direct appeal.

STONE, WARNER and SHAHOOD, JJ., concur.