text:
    John KISH and Elizabeth Kish, Appellants, v. A.W. CHESTERTON COMPANY, et. al., Appellees.
    No. 3D05-1538.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Rehearing Denied June 27, 2006.

      Reyes & O’Shea and Angel M. Reyes and Daniel F. O’Shea, Miami, for appellant.
    Carlton Fields and Alina Alonso and Jeffrey A. Cohen, Miami; Martin Unger, Orlando; Steptoe & Johnson and Stephen A. Fennell and Jeffrey E. McFadden, Washington, D.C., for appellee Metropolitan Life Insurance Company.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

John and Elizabeth Kish appeal from a final summary judgment, wherein the trial court ruled in favor of Metropolitan Life Insurance Company “on the basis of the statute of repose for fraud claims as described in § 95.031, Fla. Stat.” We affirm.

In August 2004, the Kishes filed a five-count complaint against twenty-one entities, alleging negligence, strict liability, breach of warranty, civil conspiracy to commit fraud, and intentional infliction of emotional distress relating to injuries Mr. Kish allegedly sustained from asbestos exposure. The Kishes sought to hold Metropolitan Life (the only non manufacturer, distributor, or supplier named in the suit) liable for Mr. Kish’s injuries because during the 1930’s and 1940’s, Metropolitan Life allegedly agreed, at the request of a number of its co-conspirator group policy holders, not to “fully share with the public” the results of industrial hygiene surveys and studies it had performed.

The court below ruled that section 95.031(2)(a), the fraud statute of repose, barred the Kishes’ fraud claims. The Kishes contend that the trial court’s failure to apply a delayed manifestation exception to the fraud statute of repose, similar to that made applicable to the products liability statute of repose by Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981), resulted in an unconstitutional denial of access to courts. See Art. I, § 21, Fla. Const, (providing “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay”).

In Diamond, the Florida Supreme Court held that the twelve year statute of repose applicable at that time in products liability actions was unconstitutional as applied to bar an action for injuries which manifested long after they occurred and long after the statute of repose had run. The question here is whether the failure to extend that exception to the instant fraud claim amounts to an unconstitutional denial of court access. We conclude it does not.

In Kluger v. White, 281 So.2d 1, 4 (Fla.1973), the Florida Supreme Court set forth the following test for analyzing access to the courts claims:

where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

The statute of repose as applied to this case satisfies this test.

First, although the Legislature, through section 95.031(2)(a), has foreclosed the Kishes’ stale fraud claim, it has provided them with a reasonable alternative remedy via the Diamond exception, now codified in sections 95.031(2)(c) and (d) of the Florida Statutes. By virtue of these provisions, the Kishes concededly have valid ongoing claims against the manufacturers of the products which they maintain caused their injuries. In light of this reasonable alternative remedy, Kluger has been satisfied. See Alterman Transport Lines, Inc. v. State, 405 So.2d 456, 459 (Fla. 1st DCA 1981) (“No substitute remedy need be supplied by legislation which only reduces but does not destroy a cause of action. Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). Nor does the elimination of one possible ground of relief require the Legislature to provide some replacement.”).

Second, the public necessity that justifies cutting off a stale fraud claim which manifests before expiration of the statute of repose is equally applicable to the instant late manifesting claim. “Fraud” is generally defined as “(1) a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; and (2) a misrepresentation made recklessly without belief in its truth to induce another person to act.” Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla.2003). It is exactly this type of claim that is most susceptible to concerns of stale memories, and most deserving of the observation that a defendant “ought not to be called on to defend a claim when the evidence has been lost, memories have faded, and witnesses have disappeared.” Shepard, 1998 WL 34064515 at 4; Nehme, 863 So.2d at 208-09 (recognizing that concerns over any injustice caused by precluding a valid cause of action are addressed by “a countervailing concern — that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred [because] ... [a]s time passes, memories fade, documents are destroyed or lost, and witnesses disappear”). As the Florida Supreme Court confirmed when rejecting a latent manifestation argument involving a claim of fraudulently concealed medical negligence, “the legislature may properly take into account the difficulties of defending against a stale fraud claim in determining a reasonable period for the statute of repose.” Carr v. Broward County, 541 So.2d 92, 95 (Fla.1989). These policy considerations are equally applicable to the instant claim and satisfy the Kluger public necessity test.

We also note that since 1974 when the fraud statute of repose was first enacted, the Legislature has had numerous opportunities to import a Diamond exception into it, but has not done so. The Florida Supreme Court also has refused to apply the Diamond exception in other cases where injuries have manifested after the repose period expired. See Kush v. Lloyd, 616 So.2d 415, 418-419, 421 (Fla.1992) (rejecting a latent injury manifestation argument in a medical malpractice case and observing that “[sjtatutes of repose by their nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists, and their constitutionality has been challenged on a variety of state and federal grounds. Although some of the statutes have been declared unconstitutional, the courts in most jurisdictions have upheld their statutes and the legislatures in those that have not have sometimes reenacted new repose legislation that has withstood constitutional attack. ... The dissenting opinion seems to rest upon its reluctance to eliminate a cause of action before it has accrued. Yet, this is exactly what a statute of repose does.”); see also Damiano v. McDaniel, 689 So.2d 1059, 1061 (Fla.1997) (“In creating a statute of repose which was longer than the two-year statute of limitation [for medical malpractice], the legislature attempted to balance the rights of injured persons against the exposure of health care providers to liability for endless periods of time. Once we determined that the statute was constitutional, our review of its merits was complete. This Court is not authorized to second-guess the legislature’s judgment.”).

As already noted, fraud claims are most susceptible to concerns of stale memories and lost evidence and witnesses. Here, where a fraudulent misrepresentation allegedly produced a physical injury through use of a product, the Kishes have a product liability claim to pursue via the Diamond exception. As to Metropolitan Life’s alleged fraudulent conduct, the twelve-year period provided for redress adequately protects the Kishes’ interests when balanced against Metropolitan Life’s right not to be called upon to defend a claim some fifty or sixty years old.

In sum, the test set out in Kluger has been met in this case. Thus we reject the claim that application of the statute of repose resulted in an unconstitutional denial of access to the courts as to these litigants.

Accordingly, we affirm.

      .Section 95.031(2)(a) provides:
      An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

      . Although we have grave misgivings as to whether the Kishes can state a viable claim against Metropolitan Life, we nonetheless review the trial court's ruling on this point.

      . Diamond’s continued applicability to products liability actions was recently reconfirmed in Pulmosan Safety Equipment Corp. v. Barnes, 752 So.2d 556, 559 (Fla.2000).

      . Sections 95.031(2)(c) and (d) provide:
      (c) The repose period prescribed in paragraph (b) [addressing product liability claims] does not apply if the claimant was exposed to or used the product within the repose period, but an injury caused by such exposure or use did not manifest itself until after expiration of the repose period.
      (d) The repose period prescribed within paragraph (b)[addressing product liability claims] is tolled for any period during which the manufacturer through its officers, directors, partners, or managing agents had actual knowledge that the product was defective in the manner alleged by the claimant and took affirmative steps to conceal the defect. Any claim of concealment under this section shall be made with specificity and must be based upon substantial factual and legal support. Maintaining the confidentiality of trade secrets does not constitute concealment under this section.

      . Those few courts addressing Florida’s fraud statute of repose have deemed it constitutional:
      The complaint generally alleges in Count III that Defendant [tobacco company] intentionally concealed known information about the dangerous and addictive qualities of their product....
      ... On its face, section 95.031(2) clearly bars Plaintiffs’ fraud claim to the extent that it is based on fraudulent conduct committed more than twelve years before the institution of this action.

      ... Plaintiffs argue that the statute of repose contained in section 95.031(2) is invalid as an unconstitutional denial of access to courts.... Plaintiffs support their constitutional attack with case law holding that the statute of repose for products liability actions violates article I, section 21, of the Florida Constitution. The cases cited by Plaintiffs, however, appear to be limited to circumstances where injuiy caused by a defective product does not manifest itself until after the repose period, where the actual injuiy does not occur until after the expiration of the repose period, or where a newly enacted repose period extinguishes an already-existing cause of action. See Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981); Overland Constr. Co. v. Sirmons, 369 So.2d 572 (Fla.1979); Vilardebo v. Keene Corp., 431 So.2d 620 (Fla. 3d DCA 1983).
      The cases cited by Plaintiffs do not require a finding that section 95.031(2) is unconstitutional as applied to this case.... [T]he twelve-year repose period for fraud actions was enacted in 1974 ... [and] was amended in 1986 with the statute of repose as to fraud specifically being retained. See Ch. 86-272, § 2, Laws of Fla.... [Rjecent cases have upheld statutes of repose in the face of constitutional scrutiny. See Carr v. Broward County, 541 So.2d 92 (Fla.1989) (holding that seven-year statute of repose for medical malpractice is constitutional); Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985) (holding that statute of repose for products liability actions does not deny access to courts under Florida Constitution); see also University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991) (holding that statute of repose may be constitutionally applied to bar claims even when cause of action does not accrue until after the period of repose has expired); see also Damiano v. McDaniel, 689 So.2d 1059, 1061 n. 4 (Fla.1997) (rejecting reliance on Diamond because that decision was made years before recent decisions involving statutes of repose).
      In further support of the constitutionality of section 95.031(2) is Armbrister v. Roland Intern. Corp., 667 F.Supp. 802, 811 (M.D.Fla.1987), holding that section 95.031(2), as applied to fraud actions, does not deny access to courts. One Florida case, Kempfer v. St. Johns River Water Management District, 475 So.2d 920, 924 n. 14 (Fla. 5th DCA 1985), states in a footnote that section 95.031(2) constitutes an unconstitutional denial of access to courts. However, that statement is dicta. See Armbrister, 667 F.Supp. at 811. Moreover, Kempfer cites to Diamond, Overton, and Battilla v. Allis Chalmers Manufacturing Co., 392 So.2d 874 (Fla.1980). Diamond and Over-ton are distinguishable as stated in this Order, and Battilla has been overruled by Pullum. Accordingly, the Court finds that Plaintiffs have not established that the generous twelve-year statute of repose for fraud actions in section 95.031(2) is unconstitutional. See Puchner v. Bache Halsey Stuart, Inc., 553 So.2d 216 (Fla. 3d DCA 1989) (applying section 95.031(2) to extinguish claims based on fraud that occurred outside the twelve-year statute of repose).

        Shepard v. Philip Morris, Inc., 1998 WL 34064515 *3-5 (M.D.Fla. April 28, 1998).

      . The Legislature was well aware in 1974 when the fraud statute of repose was first enacted, that such time limitations (1) "compel the exercise of a right of action within a reasonable time so that' the opposing party has a fair opportunity to defend while the evidence is still fresh”; (2) "[p]rotect potential defendants from the protracted fear of litigation”; and (3) "[p]romote security and stability in human affairs by stimulating activity and punishing negligence.” See Thomas E. Bevis, Florida Revision Council, Project on Statutes of Limitations: Some Policy Considerations (1972).

      . Section 95.031(2)(a), when first enacted provided for a twelve year statute of repose for both products liability and fraud claims. See Ch. 74-382, Laws of Fla. This provision was amended in 1986 to eliminate the products liability statute of repose, but specifically retained the statute of repose for fraud. Ch. 86-272, § 2, Laws of Fla. At that time, the Legislature declined to adopt that portion of a bill introduced in the state senate that would have eliminated the twelve year statute of repose applicable to fraud claims as well. See Fla. S. Comm. On Com., CS/SB 821 (May 26, 1986). In 1990, the Legislature reenacted the fraud statute of repose without change. Finally in 1999, the Legislature amended section 95.031 to reenact a statute of repose for products liability, but again chose not to change statute of repose for fraud. Although the Legislature exempted late manifesting injuries from the products liability of repose and additionally tolled that statute of repose where concealment was involved, it did not add similar provisions to the fraud statute of repose.

      . See also Padgett v. Shands Teaching Hosp. and Clinics, Inc., 616 So.2d 467, 467 (Fla. 1 DCA 1993)("Appellant's action is based upon the hospital's provision of a blood transfusion which resulted in the deceased contracting acquired immune deficiency syndrome which was traced to the presence of HIV virus in that transfusion. Appellant argues that the statutory period did not run until such time as she should have known of the injury or, in the alternative, that the statute resulted in an unconstitutional denial of access to courts. Both of these arguments were rejected in Kush v. Lloyd, 616 So.2d 415 (Fla.1992). We therefore affirm the dismissal by the trial court.”); Whigham v. Shands Teaching Hosp. and Clinics, Inc., 613 So.2d 110, 112 (Fla. 1st DCA 1993)(quoting 54 C.J.S. Limitations of Actions § 4 (1987), and. observing "[a] statute of repose ... limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, [the] period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald L. SYKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1602.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Rehearing Denied June 5, 2006.
    Donald L. Sykes, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ERVIN, VAN NORTWICK, and BROWNING, JJ., Concur.


text:
    John H. MALONE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0852.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    John H. Malone, pro se, Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ERVIN, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    W.T. PARKER, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D06-0037.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    W.T. Parker, pro se, for Appellant.
    Charlie Crist, Attorney General, and Louis A. Vargas, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Fla. R.App. P. 9.110(h).

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Jeffrey WAGNER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-5023.
    District Court of Appeal of Florida, First District.
    May 2, 2006.
    Appellant, pro se.

      Charlie Crist, Attorney General; and Louis A. Vargas, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

By filing a notice of appeal, the appellant has sought plenary review of an order of the lower tribunal determining him to be indigent for purposes of the appeal taken in case number 1D05-4075. The underlying appeal results from an order of the lower tribunal determining the appellant to be indigent for purposes of proceeding in the lower tribunal in a civil proceeding, pursuant to section 57.085, Florida Statutes. The order further directs the Department of Corrections to impose a lien on the appellant’s inmate trust account for the full amount of costs and fees due in the civil proceeding. The order here on appeal directs the Department of Corrections to place a lien on the appellant’s inmate trust account for the full amount of lower tribunal costs and fees incurred in connection with appeal number 1D05-4075. We conclude that review of such an order is properly by motion filed pursuant to Florida Rule of Appellate Procedure 9.430, rather than by appeal, and therefore dismiss the instant appeal.

Rule 9.430 provides that a motion for leave to proceed on appeal without payment of costs shall be filed in the lower tribunal and that review of the lower tribunal’s decision shall be by motion. The type of order on appeal here, which grants indigency status, defers payment of court costs and fees, and consequently directs the imposition of a lien, is most likely not specifically contemplated by the rule. Although the rule primarily addresses review of orders denying indigency status, the language of the rule does not expressly limit its application to such orders. We therefore find that the rule allows review of the order here on appeal. Accordingly, the proper avenue for review is by motion in the underlying appeal, rather than by a separate appeal. Here, the appellant filed both a motion for review in case number 1D05-4075, and a separate notice of appeal that became the present case. For this reason, the instant appeal is both improper and duplicative. We dismiss this appeal for lack of jurisdiction. Nevertheless, the Court notes that because the appellant filed his motion for review before dismissal of the underlying appeal, see Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005), the Court will consider the motion for review.

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


author: ALLEN, J. ERVIN, J.,

text:
    Richard A. NIX, Appellant, v. Brenda W. NIX, Appellee.
    No. 1D04-4766.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Rehearing Denied June 7, 2006.

      Laura E. Keene and Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Phillip S. Howell, Galloway, Johnson, Tompkins, Burr & Smith, Gulf Breeze, for Appellee.
   ALLEN, J.

The appellant former husband challenges a post-dissolution domestic relations order by which the trial court ordered, in accordance with the pre-judgment stipulation of the parties which was incorporated into the final judgment of dissolution, that the appellee former wife’s share of the appellant’s defined-benefit State of Florida monthly retirement benefits would be determined pursuant to a specified formula upon commencement of monthly retirement benefit payments. The appellant also challenges the trial court’s further order that should the appellant elect to participate in the State of Florida Deferred Retirement Option Plan (DROP), the appellee will be entitled to share in the DROP proceeds because these are retirement benefits. The order additionally directs that the appellee’s share of any DROP proceeds, including interest accumulations and cost of living adjustments applicable to her share, should be deposited into a separate account for her benefit and made payable to her upon the appellant’s termination of employment. Because valuing the appellee’s share of the former appellant’s monthly retirement benefits as of the date that retirement benefits begin to be paid is consistent with the formula to which the parties agreed prior to entry of the final judgment of dissolution, and because the trial court correctly recognized and properly effected the appellee’s right to equitably share in any DROP proceeds, we affirm the order under review.

The parties’ pre-dissolution stipulation was entered into after twenty-seven years and seven months of marriage, with the appellant having been a participant in the State of Florida retirement system throughout this period. The stipulation reflected the parties’ agreement that the appellee’s share of the appellant’s monthly retirement benefits would be determined in accordance with a specified formula upon commencement of payment of retirement benefits by the State of Florida. The final judgment of dissolution incorporated the parties’ stipulation by ordering that the appellee’s share of the appellant’s retirement benefits would be determined in accordance with this previously agreed-upon formula. The parties’ stipulation and the final judgment of dissolution express the formula as follows:

x 27 years and 7 months x MONTHLY PYMNT. Number of years of Husband’s Employment rH Oj

The appellant acknowledges in his initial brief on appeal that this formula precisely reflects the “deferred-distribution method” formula explained in considerable detail in DeLoach v. DeLoach, 590 So.2d 956 (Fla. 1st DCA 1991), under which the equitable division of retirement benefits is determined when the employer commences payment of retirement benefits. Notwithstanding his admission on this point, however, the appellant argues that the trial court actually intended to determine the appellee’s share of the appellant’s retirement benefits as of the date on which the petition for dissolution was filed. But a plain reading of the final judgment of dissolution and the accompanying order refutes this contention. Although the trial court identified the date of the filing of the petition for dissolution as the date used to determine the “value of the parties’ assets,” the court did so only after it had already directed in the preceding paragraph that the appellee’s share of the retirement benefit payments would be determined in accordance with the stipulated DeLoach formula. The trial court obviously established the valuation date only to facilitate the subsequent distribution of a variety of assets that were the subject of litigation (not stipulation) between the parties. Nowhere in the final judgment of dissolution or in the accompanying order did the court state that retirement benefits were to be valued on a particular date. Moreover, the very phrasing of the agreed-upon distribution formula confirms that it was intended to be applied only upon receipt of monthly retirement benefit payments. This is made obvious by the formula’s specific incorporation of the appellant’s then-unknown monthly retirement benefit payment as a factor in its computation.

Relying upon Boyett v. Boyett, 703 So.2d 451 (Fla.1997), the appellant argues that delaying determination of the appellee’s share of the appellant’s retirement benefits until the payment of retirement benefits begins is inconsistent with Florida law because such delay results in an award to the appellee of retirement benefits which accrue after the dissolution of marriage. But neither Boyett nor any other applicable authority prevents parties to a dissolution action from agreeing that the determination of the parties’ respective shares of retirement proceeds will be made pursuant to an agreed-upon formula to be applied once disbursement of retirement proceeds begins.

Even if the methodology applied in Boyett in connection with a contested division of retirement benefits were applicable in the context of a stipulated division, the circumstances involved in Boyett are materially distinguishable from those in the present case. As the supreme court observed in Boyett, valuation of a spouse’s interest in a retirement plan is fact-intensive and varies in accordance with the particular circumstances involved. Accordingly, “[n]o recitation of formulae, considered in the abstract, could capture the variety of considerations necessary in order to do equity.” Boyett, 703 So.2d at 453 (quoting Diffenderfer v. Diffenderfer, 491 So.2d 265, 269 (Fla.1986)). The most significant distinction between the circumstances in Boyett and those in the present case is that the former husband in Boyett would have been subject to a substantial early retirement penalty had he retired at the time of dissolution, while the appellant in the present case was eligible to retire at the time of dissolution without any early retirement penalty due to the fact that he had by then already accrued more than twenty-five years of creditable service in the Special Risk Class of the Florida Retirement System. The early retirement penalty was a critical consideration in the supreme court’s decision in Boyett, and its absence in the present case would make the Boyett approach inequitable here.

In accordance with our decision in Pullo v. Pullo, 926 So.2d 448 (Fla. 1st DCA 2006), we reject the appellant’s challenge to the trial court’s determination that the appellee will be entitled to an equitable share in any DROP proceeds, with the appellee’s share including interest accumulations and cost of living adjustments to her share. As we did in Pullo, we certify the following question to the Supreme Court of Florida as a question of great public importance:

IS A SPOUSE WHO IS AWARDED A PORTION OF THE OTHER SPOUSE’S PENSION AT THE TIME OF DISSOLUTION ENTITLED TO SHARE IN A DROP ACCOUNT CREATED, INCLUDING INTEREST AND COLAS, SOMETIME AFTER THE DISSOLUTION HAS BECOME FINAL?

The order under review is affirmed.

POLSTON, J„ concurs; ERVIN, J„ dissents with opinion.

ERVIN, J.,

dissenting.

I respectfully dissent as to both issues addressed by the majority. Turning first to the point raised by appellant asserting that the lower court improperly awarded the former wife a share in any future interest of the former husband in the deferred retirement option plan (DROP), I would not decide the issue on the merits, because the contingency referred to by the trial court in its qualified domestic relations order (QDRO) never occurred: the former husband’s participation in DROP. At the time the QDRO was entered, Mr. Nix had not been given the choice by his employer, the Escambia County Sheriffs Department, to participate in the State of Florida’s DROP. The lower court’s reference to the husband’s future participation in DROP was included in the QDRO on the assumption of his eligibility for same if he were successful in his candidacy for the position for Escambia County Supervisor of Elections. The parties, however, conceded that Mr. Nix did not prevail; as a consequence, this is not a justiciable issue that is now ripe for decision. I would therefore dismiss the appeal without prejudice to Mr. Nix’s right to challenge this portion of the order if his eligibility to participate in DROP ever occurs. Cf Shuck v. Bank of Am., N.A., 862 So.2d 20 (Fla. 2d DCA2003).

As to the question whether the trial court used an improper valuation date for determining the former wife’s interest in the husband’s state retirement plan, I would reverse. The majority concludes that a plain reading of the final judgment and the order accompanying it refutes appellant’s contention that the trial court intended to determine the former wife’s share of the husband’s retirement benefits as of the date the petition for dissolution was filed, rather than as of the time of the husband’s retirement. My reading of the pertinent language in the final judgment and the order of findings fails to show any such clearly stated intent.

Immediately following the paragraph in the lower court’s order of findings which sets out the parties’ stipulated formula for distribution of the husband’s retirement benefits (recited at page three of the majority’s opinion), the order states: “The court has used a valuation date of October 15, 1998, the date the petition was filed, or as close as possible thereto in determining the value of the parties’ assets.” No other explicitly stated date for the valuation of any marital asset appears in either the final judgment or the order entered contemporaneously with it. It reasonably appears from the court’s findings that the valuation date recited therein applies to all marital assets without distinction. Nowhere in the record can I find any support for the majority’s interpretation of the above rulings that one date applies to the valuation of the retirement benefit (the time monthly retirement benefits commenced) and another to the valuation of the remaining assets in dispute (the date the petition for dissolution of marriage was filed).

More than four years after the entry of the final judgment and the order of findings, the amended QDRO, which is the subject of the present appeal, was entered, this time by a different judge from the one who had entered the earlier orders. The QDRO awarded the wife a reduction from each monthly benefit payable to the husband from the plan that would accrue to the husband as of the time of his retirement, which had not then occurred.

As the majority correctly notes, no authority prevents the parties to a dissolution proceeding from stipulating that the distribution of a party’s retirement benefits cannot be made pursuant to an agreed-upon formula. In my opinion, if the parties made any agreement as to the date for an evaluation of their marital assets, it was the date referred to by the court in its order of findings, October 15, 1998, or, if no accord was reached, the valuation occurred by operation of law at the time the judgment of dissolution was entered, April 26, 2000. If the valuation date of October 15, 1998, was neither a clear expression of the parties’ intent, nor a finding by the lower court as the time all the parties’ marital assets were to be evaluated, the only other date that could have been reasonably contemplated was the date of the final judgment.

In this regard, I note that the majority refers to DeLoach v. DeLoach, 590 So.2d 956 (Fla. 1st DCA 1991), disapproved in part, Boyett v. Boyett, 703 So.2d 451 (Fla.1997), in which this court adopted the deferred-distribution method of allocating a non-employee spouse’s interest in a non-vested pension plan at the time an employee spouse retires. In Boyett, the supreme court later disapproved that part of De-Loach which directed the trial court to distribute proportionately to the non-employee spouse all increases in the employee spouse’s retirement benefits that had accrued between the date of dissolution and the date of the latter’s retirement. Id. at 452.

The majority’s opinion states the formula agreed to by the parties below “precisely reflects” that approved by this court in DeLoach. Ante at 3. If such is the case, the parties, at the time they made their stipulation, should be presumed to have been aware of the Boyett caveat to the DeLoach decision, instructing that the trial court’s determination of “equitable valuation ... is not to include post-marriage contributions.” Boyett, 703 So.2d at 453. The formula employed by the parties, including the numerator component, i.e., the length of time the husband worked for the employer until the date the petition was filed, divided by the number of years worked by the husband for the employer before retirement, times a monthly payment to be made at some unspecified time, hardly has the clarity of intent attributed to it by the majority. Under the circumstances, the case should be remanded to the trial court with directions for the lower court to revise the QDRO by evaluating the retirement benefit either as of the date the petition was filed or, if no clearly stated intent for same can be determined, as of the date of the final judgment.

      . We reject any contention that this issue, raised and argued on its merits, both below and on appeal, is moot.

      . The numerator portion of the stipulated formula, the length of time the former husband worked for the employer during the marriage, i.e., 27 years and seven months, ended as of the date the petition for dissolution was filed, October 15, 1998, thereby adding support to the former husband’s argument that the order of findings fixed the valuation date for all of the parties' assets, including the retirement benefit.


author: HAWKES, J.

text:
    Jonathan HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4652.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Rehearing Denied June 7, 2006.

      David W. Collins, Monticello, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Jonathan Henry (Appellant) received a 15-year prison sentence for lewd and lascivious battery on a 70-year-old nursing home resident. The trial court ordered the sentence to run consecutive to a one-year sentence for a misdemeanor battery conviction on the same victim.

We resolve two issues. The first issue involves the clarity of the trial judge’s oral pronouncement when imposing the sentences. The second issue involves a double jeopardy violation. We affirm the first issue and reverse the second.

Factual and Procedural Background

Appellant, a male nursing home employee, was charged by amended information with abuse of an elderly person (count one) and lewd or lascivious battery upon an elderly person (count two).

A jury found Appellant guilty of misdemeanor battery, a lesser included offense to that charged in count one, and guilty as charged on count two. Appellant’s argument focuses on the following colloquy that occurred during the sentencing hearing:

THE COURT: It’s the judgment of the Court, [Appellant], that you be adjudicated guilty of the battery. And let me clarify, how much time does he have in jail?
THE CLERK: He has 649 days.
THE COURT: Okay.
And as to that battery case: Adjudication of guilt, 365 days in the Leon County Jail, credit for 365, time served, since you have a total of 600, to bq followed by a consecutive 15 years in the Department of Corrections, the balance of the credit to apply to that case.

(emphasis added).

The hearing continued. The clerk asked the trial judge to clear up what she meant when she said “the balance of the [jail] credit.” A discussion followed, in which the judge instructed the clerk to subtract the 365 days for the misdemeanor battery sentence from the 649 days he already served, and to then put the balance (284 days) toward Appellant’s 15-year sentence for the lewd and lascivious battery conviction. This discussion occurred in Appellant’s presence as part of the sentencing hearing. Appellant even assisted in answering the clerk’s question by stating the judge was “running it consecutive instead of concurrent.” The judge reiterated: “specifically, the lewd and lascivious is consecutive to the battery.”

Appellant filed a motion to correct an illegal sentence pursuant to 3.800(b)(2). Appellant argued he was never sentenced on the lewd and lascivious battery, but was instead sentenced to 16 years on the misdemeanor battery, which exceeds the one-year statutory maximum for that crime. Appellant acknowledged this may have been an oversight by the trial judge, but contended the error was irreparable because jeopardy had attached.

The trial court denied the motion finding the hearing transcript shows two separate sentences were imposed on Appellant — 365 days for the misdemeanor battery, and 15 years for the lewd and lascivious battery. We agree.

The Lewd and Lascivious Battery Sentence

In reviewing a trial judge’s sentencing, an appellate court reviews the entire hearing transcript, not just a limited portion. Appellant argues he was unambiguously sentenced on only one crime— the misdemeanor battery. In fact, the converse is true. Appellant was unambiguously sentenced on two separate crimes: 15 years in the Department of Corrections on the lewd and lascivious battery, to run consecutive to one year in the Leon County Jail on the misdemeanor battery.

The sentences were so unambiguous that Appellant was able to help explain how the jail credit would work. He informed the clerk his sentences were to run consecutively instead of concurrently. Appellant knew he had two sentences. One sentence can never be consecutive or concurrent to itself.

The only potentially colorable argument Appellant could raise is that the trial judge’s oral pronouncement was ambiguous. However, even if we were to find the oral pronouncement ambiguous, the trial judge’s intent controls. See Jackson v. State, 615 So.2d 850 (Fla. 2d DCA 1993) (holding that when a trial judge’s oral pronouncement of a sentence is ambiguous, but the judge’s intention is discernible from the record, the proper sentence is what the judge intended it to be). Here, the trial judge’s intent is clear. Based on our review of the record, there is no question the trial judge intended Appellant’s 15-year sentence to be on the lewd and lascivious battery, not the misdemeanor battery. In fact, Appellant conceded in his briefs and his motion for rehearing that this was the trial judge’s intent.

The Battery Conviction and Double Jeopardy

Appellant also argues that sentencing him for both of the offenses for which he was convicted violates double jeopardy. The State concedes the two convictions arose from the same continuous criminal episode. Thus, the misdemeanor battery conviction must be vacated. See Zapata v. State, 905 So.2d 944, 945 (Fla. 3d DCA 2005) (holding where “two convictions arise from the same continuous criminal act or episode, one of the convictions must be vacated”); see also State v. Barton, 523 So.2d 152, 153 n. 3 (Fla.1988) (“In cases involving convictions of greater and lesser included offenses, it is the lesser rather than the greater sentence which is vacated.”).

Conclusion

We affirm Appellant’s 15-year sentence on his conviction for the lewd and lascivious battery on an elderly person. We reverse Appellant’s misdemeanor battery conviction. The case is remanded for the trial court to vacate the misdemeanor battery conviction and award an additional 365 days’ credit on Appellant’s 15-year sentence. We note that when a trial court strikes a portion of a sentence or otherwise makes some (even non-clerical) correction that benefits the defendant, the defendant’s presence is not required. See Donaldson v. State, 751 So.2d 174 (Fla. 1st DCA 2000) (amending sentence to allow credit for jail time). Consequently, the trial court can make the corrections to Appellant’s sentence without his presence.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN and PADOVANO, JJ., concur.


author: SILBERMAN, Judge.

text:
    Carol Jo CUNNINGHAM, Appellant, v. Richard Bruce CUNNINGHAM, Appellee.
    No. 2D05-924.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.
    Rehearing Denied June 14, 2006.
    Brett R. Rahall of Brett Rahall, P.A., Tampa, for Appellant.
    Gregory D. Jones and Collins Guyton of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Carol Jo Cunningham (the wife) appeals a final judgment dissolving her marriage to Richard Bruce Cunningham (the husband) and challenges the trial court’s failure to award to her permanent periodic alimony and attorneys’ fees. We reverse and remand for the trial court to award nominal permanent periodic alimony to the wife and to consider her motion for attorney’s fees. In all other respects, we affirm the final judgment.

The parties had a long-term marriage of twenty-seven years. At the time of the final hearing, they had three teenage children, and the oldest child has now reached the age of majority. Throughout the marriage the husband earned substantially more income than the wife, and for eight years during the marriage the wife stayed home to raise their children. The husband has worked in the insurance industry for over twenty-five years. During the last three years of the marriage, the husband earned $138,582.24 in 2001, $165,657 in 2002, and $135,418.93 in 2003. Due to a move to a new company and a change from salary plus commission to straight commission, the husband was expected to earn $60,000 to $70,000 in 2004. His financial affidavit of October 20, 2004, reflects net monthly income of $3327.95 and monthly expenses of $6360.56. The wife was expected to earn $33,000 in 2004. Her financial affidavit of September 15, 2004, reflects net monthly income of $2215 and monthly expenses of $7550.

After a final hearing on October 25, 2004, the trial court entered a final judgment that denied the wife’s request for permanent periodic alimony but awarded to her $33,000 in lump sum alimony. The final judgment obligates the husband to pay child support of $1385.40 per month. The court made an equitable distribution of marital assets and liabilities, and the largest asset that the court awarded to the wife in the equitable distribution was the marital home. The record reflects that to maintain that asset for herself and the three children, the wife must make a monthly mortgage payment of $1431 and a second mortgage payment of $800. Thus, the mortgage payments on the home exceed the wife’s net income.

As to the wife’s request for permanent periodic alimony, the trial court made statements that appear to be contradictory. In the final judgment, the trial court stated that the wife “has a need for permanent periodic alimony” but found that the husband did not have the ability to pay. (Emphasis added.) The court then stated, “The Court has carefully considered all factors as set forth in § 61.08(1) and (2), Florida Statutes (2002), and finds that with the exception of subsection (b) [the duration of the marriage], subsections (a)-(g) do not favor an award of permanent periodic alimony to the Wife.” Previously, in its oral findings, the trial court had stated that “because of her equitable distribution of the marital assets, which puts them on equal footing, I’m finding that she doesn’t have the need. And if she did, he doesn’t have the ability to pay.” (Emphasis- added.) The wife’s counsel requested that the trial court at least reserve jurisdiction and award nominal permanent periodic alimony, but the trial court denied that request. Counsel argued that the wife should be able to seek an award once the husband’s earnings are again commensurate with the standard of living that the parties enjoyed during the marriage.

We conclude that based on the parties’ circumstances, the trial court abused its discretion in failing to award nominal permanent periodic alimony. See Blanchard v. Blanchard, 793 So.2d 989, 990 (Fla. 2d DCA 2001) (determining that “the trial court abused its discretion when it failed to award the wife $1 in permanent periodic alimony to reserve her future right to alimony in light of the husband’s work history during this long-term marriage”); Stock v. Stock, 693 So.2d 1080, 1082 (Fla. 2d DCA 1997) (affirming reservation of jurisdiction to determine alimony award in the future when the evidence showed “a likelihood that there will be a change in circumstances that would enable the husband to meet his obligation to contribute to the wife’s support”). Here, the standard of living, the duration of the marriage, and the sources of income available to either party, see § 61.08(2)(a), (b), (g), favor an award of permanent periodic alimony, although in a nominal amount at this time. The evidence supports the trial court’s finding that the husband is not voluntarily underemployed and that the husband is using his best efforts to earn income. Notably, the husband testified that he expected his income would increase in the near future to an amount at or near the level that he had historically earned. The parties were married for twenty-seven years, and their standard of living was commensurate with the husband’s historical income. The wife has also shown a need for permanent periodic alimony. The wife’s current gross yearly salary of $33,000 is the most that she has ever earned, and her net income is less than the two mortgage payments on the marital home. Thus, we conclude that the trial court should have awarded nominal permanent periodic alimony to the wife.

Finally, the wife argues that the trial court failed to consider and rule on her request for attorneys’ fees and costs. The wife had alleged that she lacked financial resources to pay fees and costs and that the husband had a far superior financial position and was capable of paying her fees and costs. Because the trial court did not rule on the wife’s request for fees, we direct the court to do so on remand.

Accordingly, we reverse the final judgment to the extent that the trial court refused to award permanent periodic alimony and remand for the trial court to enter an amended judgment that awards nominal permanent alimony of $1 per month to the wife.

We also direct the trial court to address the wife’s request for attorney’s fees and costs on remand. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

STRINGER and LaROSE, JJ., Concur.


text:
    Johnny C. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-243.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Rehearing Denied June 27, 2006.
    Carey Haughwout, Public Defender, and Frederick A. Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm White’s conviction and sentence, without prejudice to raise a claim of ineffective assistance of counsel, the only issue on appeal, by seeking relief pursuant to rule 3.850, Florida Rule of Criminal Procedure.

We recognize, and the state has not disputed, that White asserts a prima facie showing that the speedy trial time period had expired at the time the state filed the information. However, the record on appeal is not sufficient to support a conclusion of ineffective assistance of counsel without an evidentiary hearing.

STONE, FARMER and MAY, JJ., concur.


author: MAY, J. STEVENSON, C.J.,

text:
    E.T., Appellant, v. STATE of Florida and DEPARTMENT OF CHILDREN AND FAMILIES, Appellees.
    No. 4D04-1450.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Rehearing Denied June 29, 2006.

      Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Family Services.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, and Amy J. Genet, West Palm Beach, for ap-pellee Foster Children’s Project.
   MAY, J.

The father of two minor children appeals the trial court’s dismissal of his petition for writ of habeas corpus alleging ineffective assistance of counsel during the proceedings that resulted in termination of his parental rights. He raises a single issue: whether the court erred in failing to conduct an evidentiary hearing on his petition for writ of habeas corpus. However, that issue begs two questions: (1) whether Florida recognizes a claim of ineffective assistance of counsel in termination of parental rights [TPR] cases; and if so, (2) what is the proper mechanism for filing such a claim. We find no error in the trial court’s denial of an evidentiary hearing and affirm the order dismissing the petition.

The Facts Leading to the TPR

The trial court terminated the father’s parental rights following two separate reports of abuse and neglect. The first incident occurred on March 29, 2002, when the two boys were two and three years of age. At that time, the father was the sole caretaker of the children because the mother had left them. Upon receiving a report from a resident of the housing complex in which the father and children lived, law enforcement arrived to find the two boys in diapers playing unattended in the parking lot.

The officer found the boys playing near a car that contained a cold six-pack of beer. The officer searched the complex for forty-five minutes before locating the children’s home about 150 feet away. A locked six-foot wooden fence surrounded the apartment. The officer jumped the fence and pounded on the front door, but no one responded. The officer then went inside and found all the doors in the apartment locked from the inside. The father emerged from one of the bedrooms.

The officer testified, and the trial court found, the father was in a “drunken, intoxicated, and disoriented state.” When asked if he knew where his kids were, the father responded, “[mjaybe they got out.” The officer arrested the defendant for child neglect.

As a result of the first incident, the court adjudicated the children dependent and placed them with the father under the protective supervision of the Department of Children and Families [DCF], The father pled to the child neglect charge. The court withheld adjudication and placed him on probation.

The second incident occurred just three weeks later on June 4, 2002. This time the children were found playing in the ocean off Singer Island, unattended and unsupervised. The woman who found them testified one of the boys was totally naked and the other one was wearing a diaper, pants, and a top. The boys were unable to verbally communicate. They had teeth marks and/or bite marks on their backs. They were dirty and smelled. The woman bought them food and diapers and after spending two hours with them without any sign of a parent, she took them to a police station near the beach.

A sheriffs deputy located the father’s motel room near the beach a couple of hours later. The deputy testified that the motel room door was slightly ajar, which allowed him to peer into the room. He saw two men sleeping in a bed. He banged on the door, but was unable to wake either of them. When the father finally awoke, the deputy found him to be drunk.

The deputy took the father to the station where the father admitted to consuming alcoholic beverages (two screwdrivers and twenty beers) since noon. He stated that one of the children had gotten away from him while he was trying to change the other child’s diaper. He looked for them, but abandoned the effort. He did not call the police because he was on probation for the prior incident.

The children were placed in the temporary custody of the maternal grandmother under the protective supervision of DCF. Subsequently, however, the court ordered the children taken into custody following a report of possible child neglect when the mother removed them from their placement without permission.

WTien the children were picked up by DCF, the certified child protective investigator found them to be out of control. At their shelter placement, they displayed none of the normal adjustment anxiety associated with being moved to a strange environment. They were unable to speak and only made grunting sounds. They were unable to eat properly and appeared to be starving. They displayed cognitive impairments and low IQs.

The TPR Proceeding

The TPR hearing was held on January 30 and 31, 2003, while the father was in jail awaiting trial on the criminal child neglect charge. While a court-ordered psychological evaluation found the father was “a good candidate for alcohol treatment, was motivated to accept treatment, and was responsive to treatment in the past,” the court rejected the doctor’s recommendation, noting it was not in the children’s best interests and that

[the father] faces a criminal trial for which he may be sentenced to four years to fifteen years incarceration if convicted. His future is uncertain. No matter the services provided to him or his potential to remain sober upon release, his self-imposed legal predicament prohibits him from being able to meet his children’s immediate special needs or their need for permanency as soon as possible.

In the TPR order, the trial court found the father had a serious alcohol problem and the mother reported a history of domestic violence. The court concluded that returning “these children to the care of their father ... would doom them to a life of unimaginable horror, misery and/or death.” The court found that despite referrals for services, the father’s severe addiction to alcohol “continued unabated.” The court found the father had not seen his children for almost a year because of his incarceration. It found the children had tremendous needs from the lack of appropriate parenting, abuse and neglect, and were desperate for bonding and permanency. And, the court found the children’s immediate special needs and their need for permanency established that the termination of the father’s parental rights was in their manifest best interests.

The father appealed the TPR order, raising, among other claims, ineffectiveness of trial counsel. This court per cu-riam affirmed the order. See J.T. v. Dep’t of Children & Families, 861 So.2d 1166 tbl. (Fla. 4th DCA 2003). While the direct appeal was pending, the father filed a petition for writ of habeas corpus in the trial court alleging ineffective assistance of counsel.

The father argued in the direct appeal, the habeas petition, and this appeal that his lawyer was ineffective because little was done to challenge DCF’s allegations of egregious conduct. He contends his TPR counsel failed to produce evidence and witnesses because the witness list had been filed late. He suggests the witnesses would have shown the children were not missing as long as claimed, and that he looked for them on the beach and hotel grounds, had returned to his room just before the deputy arrived, and was not passed out drunk.

He compared his TPR counsel to his criminal defense counsel. In his criminal trial, his attorney presented testimony from the director of the children’s day care center that the father was punctual and never drunk, and the kids were healthy and clean. He further alleged his TPR counsel failed to review depositions from the criminal case and did not request a continuance of the TPR proceeding pending the outcome of the criminal trial. He complained that TPR counsel did not meet regularly with him in jail and presented no evidence of his work history, skills, ability to earn money, or completion of rehabilitation programs.

The Foster Children’s Project [FCP], acting as attorney ad litem for the children, moved to quash the habeas petition, arguing that the extraordinary writ could not be granted where “relief may or could have been obtained through another remedy such as an appeal or post-conviction relief.” Alternatively, FCP argued that the habeas petition should not be considered until issuance of our mandate in the direct appeal.

At the criminal trial, a jury acquitted the father of child neglect for the beach incident. However, the trial court found him guilty of violating his probation and reinstated his probation with additional conditions. The father then filed a motion in this court to relinquish jurisdiction for the trial court to consider the pending habeas petition. This court denied the motion.

After this court’s affirmance of the TPR order, FCP filed a renewed motion to quash the habeas petition in the trial court, arguing that (1) the father lacked standing because his parental rights had been terminated; (2) habeas corpus was an improper remedy; and (3) the claim of ineffective assistance of counsel [IAC] was barred by the doctrine of res judicata having been considered and rejected in the direct appeal. The motion urged the trial court to finalize the children’s pending adoption. The trial court dismissed the petition. The children were adopted on April 30, 2004.

The Law

The right to appointed counsel in a TPR case is not absolute under the federal due process clause. See Lassiter v. Dep’t of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Nevertheless, the Florida Supreme Court has held Florida’s constitutional due process clause creates a right to appointed counsel in proceedings which can result in the permanent loss of parental custody. See In Interest of D.B., 385 So.2d 83, 90-91 (Fla.1980). In D.B., the supreme court held that a constitutional right to counsel in dependency proceedings necessarily arises in two situations: (1) when the proceedings may result in the permanent termination of parental rights; and (2) when the parent may be charged with criminal child abuse. Id.

Independent of Florida’s constitutional due process clause, Florida statutes provide for court-appointed counsel in all dependency proceedings, including a TPR proceeding. See § 39.013(9)(a), Fla. Stat. (2002).

Our supreme court’s most recent statement on collateral challenges regarding counsel’s effectiveness in dependency proceedings is S.B. v. Department of Children & Families, 851 So.2d 689 (Fla.2003). There, the court held the parent “did not have a constitutional right to counsel and therefore could not collaterally challenge the effectiveness of counsel” even though Florida statutes specifically provided the right to counsel. Id. at 690. The court discussed the numerous stages at which a parent is statutorily entitled to appointed counsel, but specifically rejected the concept that “all indigent participants in juvenile dependency proceedings are entitled, as a fundamental right, to have counsel supplied to them by the state.” Id. at 692.

In holding there was no right to collaterally attack the effectiveness of counsel in a dependency proceeding, the court distinguished dependency proceedings from parental termination proceedings and those leading to criminal charges. By doing so, our supreme court distinguished a statutory right to counsel from a constitutional right. The former does not carry with it the concomitant right to effective assistance of counsel. However, a constitutional right to counsel does.

But, that is not the end of the inquiry or the analysis. The fact simply remains that Florida has not by statute or rule created a mechanism by which a parent may collaterally attack the effectiveness of counsel in a TPR proceeding.

We have reviewed cases from around the country that have tackled this very difficult issue. The issue is difficult because it pits the “protected interest in preserving the family and raising one’s children” against the manifest best interests of children and their need for permanency. Id. at 692. The very issue calls into play questions of procedure, time requirements, burdens of proof, and a balancing of interests.

We begin our analysis with the obvious — a constitutional right to counsel means effective counsel; otherwise, the right is meaningless. See In the Interest of M.R., 565 So.2d 371 (Fla. 1st DCA 1990). Yet, a challenge to counsel’s effectiveness in a TPR differs significantly from the traditional collateral attack on criminal judgments. It does not involve the same rights; it does not involve the same liberty interest; it does not involve the same standard of proof; it does not involve the judge in the same role; it does not involve the same time frames; and it does not involve the same parties.

The right to counsel in criminal matters derives from the Sixth Amendment of the United States Constitution, whereas the right to counsel in termination proceedings derives from Florida’s due process clause. See Art. I, § 9, Fla. Const. The liberty interest at stake in criminal cases is simply not equivalent to that involved in custody cases involving children. “The ‘custody’ of foster or adoptive parents over a child is not the type of custody that traditionally has been challenged through federal habeas.” See In re Adoption of T.M.F., 392 Pa.Super. 598, 611, 573 A.2d 1035, 1042 (1990) (quoting Lehman v. Lycoming County Children’s Servs., 458 U.S. 502, 510-11, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982)).

The standard of proof in termination proceedings — clear and convincing evidence — also differs from the standard of proof in criminal cases — beyond a reasonable doubt. While both standards are high, they are not the same. And, as our supreme court has noted

[t]he procedures and goals as they relate to the dependency of a child are different in form and function from those procedures and goals in place for criminal adjudications. In fact, the kinds of issues addressed in a collateral proceeding in criminal cases are part and parcel of the procedures already in place in dependency proceedings. Creating an additional process for a collateral proceeding in dependency matters would be duplicative of the safeguards already in place, and would undermine the stated goal of parsimoniously remedying the family’s problems.

S.B., 851 So.2d at 693.

The role of the judge in termination proceedings is different from that in a criminal proceeding. See, e.g., Baker v. Marion County Office of Family & Children, 810 N.E.2d 1035 (Ind.2004). The judge in a termination proceeding is the fact finder, the sentinel of the child’s best interest, and an involved participant in the process. The criminal trial judge, however, must maintain a neutral arbiter position. “Under the aegis of the court, the role of the lawyer, while important, does not carry the deleterious impact of ineffectiveness that may occur in criminal proceedings.” T.M.F., 573 A.2d at 1042.

And perhaps most importantly,

[cjriminal proceedings move in a different time frame than do termination proceedings. Failure to move a criminal proceeding within specific times may result in dismissal; such is not the case in termination proceedings. Improper or inadequate action by counsel may be rectified in part or in toto months or years after a final judgment of sentence with beneficial results for the appellant, whereas a review which turns around a decree of termination, unless done within a narrowly constrained time frame may do incalculable damage to the child with only marginal or questionable benefit to the parent.

Id. at 1043. Even the United States Supreme Court has recognized “a psychological determinate in child custody proceedings having to do with the child’s sense of time, which is measured by a different and faster clock than an adults, and the fact is that children evolve, grow, acquire new attachments and have differing needs which cannot be sublimated to the niceties of legal proceedings and the sometime dubious vagaries of the attacks on a decree.” Id.

The parties in a criminal habeas petition are the defendant and the official that has custody of the body. In this habeas petition, the father has filed the petition against the Department of Children and Families. However, these children have been adopted since April 2004. The adopted parents were not named in the petition and have not participated in these proceedings.

Given these differences, courts across the country have struggled to decide the proper vehicle for pursuit of ineffectiveness of counsel claims arising from a TPR. Only one state has relied upon a petition for writ of habeas corpus. In re O.S., 102 Cal.App.4th 1402, 126 Cal.Rptr.2d 571, 575 (2002). Yet, other courts have held that petitions for writs of habeas corpus are not the proper vehicle to raise ineffective assistance of counsel claims. See Cosgrove v. Kansas State Dep’t. of Soc. & Rehab. Servs., 14 Kan.App.2d 217, 786 P.2d 636, cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 208 (1990).

The goal in a termination of parental rights is to get the child in a healthy environment and, preferably, to find adoptive parents. If such petitions were allowed, adoptions would be impractical because the adoptive parents would be subject to a suit at any time. The need for finality in termination cases is overriding. Also, if the right of habeas is extended to an intangible interest such as parental rights, it would, by analogy, be extended to other “fundamental liberty interests,” the scope of which could be enormous.

Id. at 220-21, 786 P.2d 636. See also In re Jonathan M., 255 Conn. 208, 764 A.2d 739 (2001) (holding a habeas petition may not be used to collaterally attack a termination judgment); State ex rel. Juvenile Dep’t of Multnomah County v. Geist, 310 Or. 176, 796 P.2d 1193, 1201-03 (1990) (habeas relief not available to collaterally attack effectiveness of counsel in TPR cases).

In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United States Supreme Court balanced the competing interests in determining whether an indigent parent was entitled to appointment of counsel in termination proceedings. Those interests were the parent’s interest in “accuracy and justice,” the government’s interest in the child’s welfare and cost avoidance, and the risk of erroneously depriving a parent of a child. The Court concluded “the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high.” Id. at 31, 101 S.Ct. at 2153.

This court has also recognized that the right to counsel in a TPR case is not the same as that enjoyed by a defendant in a criminal case. See Ostrum v. Dep’t of Health & Rehabilitative Servs., 663 So.2d 1359 (Fla. 4th DCA 1995) (counsel in a TPR appeal is not required to file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), before being permitted to withdraw).

And, the perils inherent in the use of habeas corpus petitions, such as unlimited time to file the petition, the lack of any identified rules, the proper burden of proof, and the proper parties to such a petition, lead us to conclude that any attack on the effectiveness of counsel must come in the form of a direct appeal or a post-trial motion authorized by the rules. See, e.g., Fla. R. Juv. P. 8.270(b). See also In re Jonathan M., 255 Conn. 208, 764 A.2d 739 (2001); Baker v. Marion County Office of Family & Children, 810 N.E.2d 1035 (Ind.2004) (suggesting the use of a motion to open judgment); V.F. v. State, 666 P.2d 42 (Alaska 1983) (direct appeal of ineffective assistance of counsel claim); In the Interest of S.D., 671 N.W.2d 522 (Iowa Ct.App.2003); Ex parte E.D., 777 So.2d 113 (Ala.2000).

Of course, these vehicles are not without their own obstacles. The trial attorney may also handle the appeal thus making a claim of ineffectiveness unlikely. The record on appeal may be insufficient to establish a viable claim. Appellate courts do not often entertain ineffectiveness of counsel claims on direct appeal. In re Stephen, 401 Mass. 144, 514 N.E.2d 1087, 1091 (1987) (preferring the filing of a motion for new trial and explaining that absent extraordinary circumstances, an IAC claim may not be raised for the first time on appeal). However, nearly all states that permit ineffectiveness of counsel claims to be raised on direct appeal have developed procedural rules to allow for additional fact finding if necessary. Florida’s Rules of Juvenile Procedure do not currently contain such procedures.

In this case, the father raised the ineffective assistance of counsel in his direct appeal. A panel of this court affirmed the TPR without opinion. It cannot now be discerned whether the ineffectiveness of counsel claim was considered on its merits or whether the lack of an identified process for bringing such a claim caused the panel to affirm. One thing is certain, however. Neither our legislature nor our judicial system has authorized the use of a petition for habeas corpus for ineffective assistance of counsel claims in termination of parental rights cases nor have they created an alternative mechanism to pursue such a claim, a fact acknowledged by the father.

It is not our place to legislate or promulgate. The interests at stake here are too paramount and the risk of harm too great to open Pandora’s Box. We therefore affirm the trial court’s dismissal of the habe-as corpus petition and certify the following questions to the Supreme Court of Florida for consideration.

Does Florida recognize a claim of ineffective assistance of counsel arising from a lawyer’s representation of a parent(s) in a proceeding for the termination of parental rights?
If so, what procedure must be followed to pursue a claim of ineffective assistance of counsel?

POLEN J., concurs.

STEVENSON, C.J., concurs in part and dissents in part with opinion.

STEVENSON, C.J.,

concurring in part and dissenting in part.

I concur in part and dissent in part. I would hold that Florida’s due process clause guarantees the right to meaningful and effective assistance of counsel in termination of parental rights proceedings and that this issue may be raised by petition for writ of habeas corpus.

Today the majority has held that an ineffective assistance of counsel claim in a TPR case may be raised in a direct appeal, but not by way of collateral attack. The majority concludes that the door to collateral relief is closed since there are no rules authorizing such post-trial motions and because no Florida court has ever said that habeas corpus applies. While the majority is correct in that there are no rules authorizing such motions, valuable precedent and persuasive authority would dictate that, under Florida law, the claims in this case can be presented via the common-law writ of habeas corpus. In In re E.H., 609 So.2d 1289 (Fla.1992), the Florida Supreme Court held that a mother was entitled to file a belated appeal in a TPR case due to her counsel’s ineffective assistance in failing to timely file a notice of appeal; according to the court, the proper procedure for obtaining the belated appeal was by petition for writ of habeas corpus.

[I]n those limited situations when a parent is entitled to belated appeal, the petition for writ of habeas corpus is the proper procedural vehicle for seeking the appeal. The writ of habeas corpus was designed as a speedy method of affording a judicial inquiry into the cause of the alleged unlawful custody of an individual; State ex rel. Paine v. Paine, 166 So.2d 708 (Fla. 3d DCA 1964). For that reason, habeas corpus has been authorized as a remedy for ascertaining a parent’s right to custody of his or her children. Id. We hold that the parent’s petition for writ of habeas corpus should be filed with the trial court. This will permit a resolution of any factual issues as well as any defenses including those predicated upon laches.

609 So.2d at 1290-91. Refusing to elevate form over substance, the court further stated: “We did not grant the belated appeal in this case based on precedent, but on the significant policy interest in ensuring that a parent and child are not separated without a thorough review of the merits of the case.” Id. at 1291.

In my view, E.H. supports the proposition that the writ of habeas corpus can be an appropriate vehicle in which to bring a claim of ineffective assistance of counsel in a TPR case even where, as here, the alleged deficiency is not as obvious as the failure to file a notice of appeal. Indeed, the absence of authorized post-trial motions for these types of claims makes the case for habeas corpus even more compelling. Until supplanted by rule, habeas corpus was the recognized means by which to challenge the effectiveness of counsel in criminal cases. See Roy v. Wainwright, 151 So.2d 825 (Fla.1963); see also Fla. R.Crim. P. 3.850; Fla. R.App. P. 9.141(c). Recently, the First District noted that there were no procedural rules available and held that a petition for writ of habeas corpus was the appropriate way to assert an ineffective assistance of counsel claim in an involuntary commitment case under the Jimmy Ryce Act:

Any attempt to address the issue of ineffective assistance of counsel on direct appeal would be subject to the same problems inherent in addressing the issue in the criminal context. The trial judge has not made any findings regarding the issue. Other than the rare case where counsel’s ineffectiveness can be discerned from the face of the record, claims of ineffective assistance of counsel need to be raised in some type of collateral proceeding where fact finding can take place.

Manning v. State, 913 So.2d 37, 38 (Fla. 1st DCA 2005).

As the majority noted, California, for example, permits the writ of habeas corpus to collaterally attack the competency of TPR counsel, recognizing that in some situations this is the only available method to introduce evidence that is outside the record, like omissions by counsel. See In re O.S., 102 Cal.App.4th 1402, 126 Cal.Rptr.2d 571, 575 (2002). As repeatedly acknowledged in the criminal context, the record in a direct appeal is often insufficient to review a claim of ineffective assistance of counsel. See, e.g., Gore v. State, 784 So.2d 418, 437 (Fla.2001); Owens v. State, 920 So.2d 59 (Fla. 4th DCA 2005); Cumper v. State, 506 So.2d 89 (Fla. 2d DCA 1987). This is especially so where the claim is based on counsel’s failure to investigate or call witnesses, or some other omission. Counsel’s omissions are often inadequately represented in the record. Even claims based on counsel’s actions sometimes require evidentiary hearings to determine whether counsel acted reasonably in the context of the litigation. Also, TPR appeals are often handled by the same attorney who represented the parent in the trial court. Attorneys are not likely to raise their own ineffectiveness as an issue on appeal. In many instances, requiring that an ineffective assistance of counsel claim be raised on direct appeal would simply not afford meaningful review.

Although I would hold that a petition for writ of habeas corpus is authorized, I would emphasize that claims of ineffective/lack of meaningful assistance of TPR counsel should be raised on direct appeal whenever possible. When habeas corpus is used, the ineffective assistance claims should be made promptly and without unreasonable delay. Considering the strong interest in finality and stability for the children involved, the Supreme Court of Florida could enact rules establishing reasonable time restrictions for filing ineffective assistance claims by way of habeas corpus — perhaps as short as sixty days after the order terminating parental rights is entered.

Here, E.T. did not unreasonably delay raising his claims of ineffective assistance of TPR counsel. E.T. attempted to raise his claims in the trial court while the direct appeal was pending. He tried to get an evidentiary hearing on his claims before a decision was made in the direct appeal. He argued that the record on appeal was insufficient to consider his claims and asked this court to relinquish jurisdiction so he could create an adequate record in the trial court. He tried to raise the claims on direct appeal, even though the record at the time was not sufficient. The procedure to be followed was unclear. Although he filed a copy of his petition for writ of habeas corpus with his reply brief, the reply brief was stricken and not considered by this court in the direct appeal.

Accordingly, I would reverse the order dismissing E.T.’s petition for writ of habe-as corpus and remand this matter to the trial court for an evidentiary hearing on E.T.’s claims. The record herein, and the attachments previously provided, do not conclusively refute E.T.’s allegations that his court-appointed counsel failed to provide meaningful assistance. Cf. Rose v. State, 617 So.2d 291, 296 (Fla.1993) (holding that an evidentiary hearing is required where the record does not conclusively refute defendant’s allegations of ineffective assistance of counsel). Appellees argue that E.T.’s claim should be barred by lach-es since the children have already been adopted. I would leave the initial determination of that issue to the trial court, after consideration of all the relevant facts and circumstances attending the delay.

Permit Direct Appeal — 27

Alabama New Jersey

Alaska New Mexico

California New York

Colorado North Carolina

Connecticut Ohio

Georgia Oklahoma

Illinois Oregon

Indiana Pennsylvania

Iowa South Dakota

Kansas Texas

Massachusetts Utah

Michigan Virginia

Missouri Washington

Montana

Have Not Addressed the Issue — 16

Arizona Maine

Arkansas Maryland

Delaware Minnesota

District of Mississippi

Columbia New Hampshire

Hawaii South Carolina

Idaho West Virginia

Kentucky Wyoming

Louisiana

Declined to Address — 4

North Dakota

Rhode Island

Tennessee

Vermont

Permits Petition for Habeas Corpus — 1

California

Post-trial Motion — 2

Alabama *

Wisconsin

No Right — 2

Nebraska — to effectiveness

Nevada — to across-the-board appointment of counsel

      . The mother's parental rights were terminated in the same order, but she is not involved in this appeal.

        . Outside of Florida, thirty-one states have addressed the issue of ineffective assistance of counsel in TPR proceedings. Of those, twenty seven states (Alabama, Alaska, California, Colorado, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, and Virginia) have permitted the issue to be raised on direct appeal. Two states (Alabama, Wisconsin) have indicated the issue should be raised by post-trial motion, and only one state (California) has allowed the issue to be raised by habeas corpus petition. One state (Nevada) has disallowed a claim for ineffective assistance of counsel. Four states (North Dakota, Rhode Island, Tennessee, and Vermont) have declined to address the issue. And, fifteen states (Arizona, Arkansas, Delaware, Hawaii, Kentucky,- Louisiana, Maine, Maryland, Minnesota, Mississippi, and Nebraska) have simply not addressed the issue.

      . See In re Termination of Parental Rights of Brittany Ann H., 233 Wis.2d 344, 607 N.W.2d 607 (allowing a post-trial hearing on'a motion for relief from judgment which challenges the effectiveness of counsel in a TPR). See also In re Smith-Baer, No. 249459, 2004 WL 243409 (Mich.Ct.App. Feb. 10, 2004) (unpublished) (to preserve issue for direct appeal, parent must seek evidentiary hearing or file motion for new trial in the trial court; otherwise, review is limited to ineffectiveness apparent on the face of the record); S.E. v. J.D.G., 869 So.2d 1177, 1178 (Ala.Civ.App.2003) (claim must be preserved for direct appeal by a post-trial motion filed in the trial court); In re Stephen, 401 Mass. 144, 514 N.E.2d 1087, 1091 (1987) (preferring the filing of a motion for new trial and explaining that absent extraordinary circumstances, an IAC claim may not be raised for the first time on appeal); In re S.D., 671 N.W.2d 522, 530 (Iowa Ct.App.2003) (direct appeal is the only way to raise claim, but procedural mechanism exists for parent to seek limited remand for additional fact-finding).

      . The Oregon Supreme Court discussed a proposed method of dealing with ineffectiveness claims in State ex rel. Juvenile Department of Multnomah County v. Geist, 310 Or. 176, 796 P.2d 1193, 1201-03 (1990). It suggested that appellate counsel could file a motion for remand in the appellate court setting forth specific claims of omissions and showing the need for an evidentiary hearing. See id. at 1204 n. 16-. The appellate court would then review the legal sufficiency of the claim and remand the case to the trial court for any necessary evidentiary hearing.

      . No view of the record would suggest that E.T.’s claim of ineffective assistance of TPR counsel was ripe for determination in- the direct appeal since much of the evidence to support the claim lay outside of that record,

       Double counted.


author: CORTIÑAS, Judge.

text:
    Stuart D. MARR, Appellant, v. Edward T. WEBB, et al., Appellees.
    No. 3D05-2206.
    District Court of Appeal of Florida, Third District.
    May 3, 2006.
    Rehearing Denied June 2, 2006.

      Hershoff, Lupino & Yagel and Russell A. Yagel and James S. Lupino, Tavernier, for appellant.
    Gus H. Crowell, Tavernier; Jose M. Herrera, Miami, for appellees.
    Before RAMIREZ and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

Appellant, Stuart Marr (“Marr”), appeals from an order vacating an arbitration award and reserving jurisdiction to modify the award.

In February 1994, Marr entered into three residential construction agreements (“contracts”) with Edward T. Webb, Enrique Benitez, and Seagate Mechanical, Inc. (collectively the “Contractors”). The contracts were for the construction of three single family “spec” homes on real property owned by Marr and located in Key Largo, Florida. Pursuant to the contracts: (1) the Contractors were to be paid upon the sale of the subject homes; (2) Marr would allow his real property to serve as collateral for loans to be taken out by the Contractors; and (3) the profits obtained would be equally divided (50/50) between Marr and the Contractors after the sale of the homes.

Additionally, the contracts provided that any dispute arising between the parties would be resolved by arbitration. The arbitration clause in the contracts specifically stated:

All claims or disputes between the Contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof, shall be decided by arbitration....
The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

The contracts also included “Addendum 4,” which provided that, when the properties were sold, the monies would be divided as follows:

1. Owner will be reimbursed for land costs.
2. Contractor shall be reimbursed for construction costs incurred.
3. Balance of proceeds, after deducting sales costs, will be divided equally between owner and contractor.

In August 1996, Marr provided the Contractors with financing for the construction of the homes at an interest rate of 11.25%. The Contractors later advised Marr, by a letter dated January 5, 1997, that they were “unable to complete the three houses” and were modifying the contracts. The Contractors’ letter requested that Marr loan funds and hire personnel to complete the construction on the homes. In return, the Contractors agreed to repay Marr at an 11% interest rate from the sale proceeds of the first home sold. Marr ultimately provided funding, and claims that he expended $1,033,475.67 of his own funds to complete the homes, which were eventually sold.

Thereafter, a dispute arose between Marr and the Contractors. The Contractors claimed that a net of $2,527,595.00 remained after all costs and construction loans were paid and that $1,242,595.00 remained after Marr reimbursed himself for his real property, but that Marr did not pay the Contractors their percentage of the profit. On the other hand, Marr claimed that the Contractors were not entitled to the money because no profit resulted from completing the homes, as said money was reimbursement for the costs he expended to complete the homes and pay off the construction loans.

The Contractors filed an action in the trial court, which was abated pending arbitration. An arbitration proceeding was held before a panel of three arbitrators, wherein the parties presented their evidence and claims. After three days of hearings, the arbitrators entered an award in favor of the Contractors for damages and pre-judgment interest in the amount of $80,000.00. The arbitrators further awarded $30,851.00 on a promissory note to a third party, Eric Benitez. The Contractors subsequently filed a motion to modify and/or correct the arbitrators’ award. After a hearing, the trial court entered an order vacating the arbitration award and reserving jurisdiction to determine the correct amount of the award to be entered. The trial court found that the arbitrators exceeded their authority and departed from the parties’ contractual agreement, and that the arbitrators failed to follow the parties’ contractual formula in “Addendum 4” for the payment and distribution of profits.

In reviewing the trial court’s order, we review findings of fact for competent substantial evidence and questions of law de novo. LeNeve v. Via South Florida, L.L.C., 908 So.2d 530, 534 (Fla. 4th DCA 2005) (citing Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997)). However, our review of the arbitrators’ decision to grant a certain award “ ⅛ very limited, with a high degree of conclusiveness attaching to an arbitration award.’ ” See Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1019 (Fla. 4th DCA 1999) (quoting Applewhite v. Sheen Fin. Res., Inc., 608 So.2d 80, 83 (Fla. 4th DCA 1992)). This limited review is necessary to “avoid a ‘judicialization’ of the arbitration process,” and “to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative.” Charbonneau, 727 So.2d at 1019 (citing Chandra, M.D. v. Bradstreet, 727 So.2d 372 (Fla. 5th DCA 1999)).

Section 682.13(1), Florida Statutes (2005), enumerates five grounds for vacating an arbitration award, and provides, in relevant part:

(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising an objection.

§ 682.13, Fla. Stat. (2005) (emphasis added). In the absence of one of the five factors set forth in the statute, neither the trial court nor this court has the authority to overturn the arbitration award. Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989); LeNeve, 908 So.2d at 534. In the instant appeal, we only address subsection (c) to determine whether the arbitrators exceeded their powers in entering the arbitration award.

The Contractors contend that the arbitrators exceeded their authority by improperly accounting for costs, losses, and profits as if the parties had a joint venture relationship. The Contractors contend that the arbitrators should have followed the contractual formula in “Addendum 4” instead.

However, we find that the arbitrators did not exceed their authority, as they did not go beyond the authority granted to them by the parties or their contracts, and they did not decide issues that were not pertinent to the resolution of the issues submitted to them. See Schnurmacher, 542 So.2d at 1329 (citations omitted); Soler v. Secondary Holdings, Inc., 832 So.2d 893, 895 (Fla. 3d DCA 2002); Charbonneau, 727 So.2d at 1020. Rather, the parties’ contracts empowered the arbitrators to resolve “[a]ll claims or disputes between the Contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof.” As such, the arbitrators acted within their power in determining: (1) the meaning and intent of “Addendum 4;” (2) the meaning and intent of the January 5, 1997 letter; and (3) the amount of costs incurred and chargeable to the project.

Moreover, the parties’ intent is a question of fact to be determined by the trier of fact which, in the instant case, was the arbitration panel. See De Las Cuevas v. Nat’l Enters. Inc., No. 3D04-1909, 927 So.2d 41, 2006 WL 782867 (Fla. 3d DCA 2006); Montealegre v. Banco De Credito Centro-Americano, S.A., 895 So.2d 1097 (Fla. 3d DCA 2004); Wagner v. Wagner, 885 So.2d 488 (Fla. 1st DCA 2004); Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920 (Fla. 2d DCA 2000). The arbitration panel “is the sole and final judge of the evidence and the weight to be given to it,” and we will not review the findings of fact contained in its arbitration award. Prudential-Bache Secs., Inc. v. Shuman, 483 So.2d 888, 889 (Fla. 3d DCA 1986); see also Charbonneau, 727 So.2d at 1019. “The fact that the relief granted is such that it could not or would not be granted by a court of law or equity is not a ground for vacating or modifying the award.” Shuman, 483 So.2d at 889. Since we find that the determination of the award amount was within the arbitrators’ authority, the award operates as a final and conclusive judgment. See Charbonneau, 727 So.2d at 1020; Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994, 995 (Fla. 3d DCA 1998).

We next address the trial court’s authority to modify an arbitration award. Section 682.14, Florida Statutes (2005), enumerates three grounds for modifying an arbitration award and provides, in relevant part:

(1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when:
(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
(b) The arbitrators or umpire have awarded upon a matter not submitted to them or him or her and the award may be corrected without affecting the merits of the decision upon the issues submitted.
(c) The award is imperfect as a matter of form, not affecting the merits of the controversy.

§ 682.14, Fla. Stat. (2005) (emphasis added). The Contractors argue that the arbitrators made an evident miscalculation in determining the amount of the award.

The Contractors contend that the January 5, 1997 letter was a modification to the contracts, and meant that the funds expended by Marr would be included in the calculation to arrive at an equal (50/50) split of profits by having Marr pay himself back from the funds resulting from the sale of the first house only, not from the other sales or from the contractor. They also contend that there was no agreement that the Contractors would share the losses, and, if any losses resulted from the sale of the three lots, those losses were to be borne by Marr as the owner of the properties.

Here, the arbitrators did not make an evident miscalculation, and the facts of this case do not support a modification of the arbitration award. After the parties presented their evidence, the arbitrators requested that the parties each submit an accounting of “what they say their construction cost was exclusive of interest, but including everything that they felt they spent, quote, on these jobs.” A review of the arbitration hearings reflects that the panel considered all of the evidence in determining its award. As we previously stated, the arbitrators were the sole judges of the evidence and the parties’ intent, and we will not disturb their findings on appeal. In the absence of an evident miscalculation, the trial court “is not empowered to set aside arbitration awards for mere errors of judgment as to law or facts.” Dasso v. Fernandez, 831 So.2d 714, 716 (Fla. 3d DCA 2002) (citations omitted); Expressway Cos., Inc. v. Precision Design, Inc., 882 So.2d 1016, 1018 (Fla. 3d DCA 2004).

Accordingly, we quash the trial court’s order vacating the arbitration award and remand with directions to confirm the arbitration award.

Order quashed; Remanded with directions.