author: FULMER, Chief Judge.

text:
    214 MAIN STREET CORP., a New York corporation, and 3B Realty North, Inc., a New York corporation, Appellants, v. Perry TANKSLEY, Appellee.
    No. 2D06-768.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 19, 2007.
    Adam Mohammadbhoy of Harllee & Bald, P.A., Bradenton, for Appellants.
    Michael Moran and Susan J. Silverman, Sarasota, for Appellee.
   FULMER, Chief Judge.

The Appellants, 214 Main Street Corp. and 3B Realty North, Inc. (“Landlords”), challenge the trial court’s “Order Vacating and Setting Aside Default and Dissolving Writ of Possession.” Because the Landlords were entitled to the default and writ of possession when the tenant, Perry Tanksley, failed to make a timely payment of rent into the court registry, we reverse the trial court’s order and remand for further proceedings.

This action arises out of a dispute over the terms of a lease agreement regarding commercial property in Sarasota. Tanks-ley leased the property in 2001. In 2005 Tanksley filed a “Complaint for Declaratory Judgment” seeking construction of the terms of the lease agreement. The Landlords filed a counterclaim for eviction and damages, including unpaid rent. The Landlords later filed a motion to require Tanksley to pay rent into the court registry. After a hearing on that motion, on July 15, 2005, the trial court entered an order requiring Tanksley to deposit $6128.24 into the court registry by July 20, 2005. The order further required Tanks-ley “to pay rent that accrues during the pendency of this action into the court registry in the amount of $743.93 per month payable in advance on the first (1st) day of each calendar month.”

Tanksley deposited $6872.17 into the court registry on July 20, 2005, representing the initial $6128.24 plus $743.93 for August 2005 rent. Tanksley deposited $1487.86 into the court registry on September 8, 2005, which represented rent for September and October 2005. . After Tanksley failed to pay the November rent into the court registry by the first of November, the Landlords filed on November 3, 2005, their “Ex-Parte Motion for Default and Immediate Possession,” citing section 83.232(5), Florida Statutes (2005). The motion was not served on Tanksley or Tanksleys attorney.

On November 9, 2005, the trial court, without giving prior notice to Tanksley, entered an “Ex-Parte Order of Default for Immediate Possession,” granting the Landlords’ motion and ordering the clerk to issue a writ of possession removing Tanksley from the leased premises. On November 14, 2005, the clerk of court issued a writ of possession, which was delivered by counsel for the Landlords to the Sarasota County Sheriffs Department.

The order and the writ were sent to Tanksley and his attorney. Upon receipt of the order, Tanksley, on November 14, 2005, filed a “Motion to Set Aside Default and Default Judgment.” Tanksley asserted that after depositing two months’ rent in September, he had : inadvertently marked his calendar to show the next deposit was due in December 2005 instead of November 2005. He requested the trial court to enter an order staying the writ of possession.

The same day as the filing of Tanksleys motion to set aside default, on November 14, 2005, the trial court entered an “Order Staying Writ of Possession,” noting that Tanksley paid two months’ rent, for November and December 2005, into the court registry. The order stayed the writ until Tanksleys motion could be heard.

Tanksley later filed an “Amended Motion to Set Aside Default and Vacate Judgment; to Dissolve Writ of Possession; and for Sanctions.” In his amended motion, he argued that the trial court’s order should be vacated: (1) for lack of notice to him of the Landlords’ motion for default and immediate possession; (2) because waiver of defenses are extreme sanctions; (3) because Tanksley’s failure to comply with the trial court’s order was due to mistake, inadvertence, surprise, excusable neglect or the Landlords’ misconduct; and (4) because Tanksley had a meritorious defense to the Landlords’ claim for possession and damages. Tanksley also requested sanctions against the Landlords and their counsel.

After a hearing, the trial court entered the “Order Vacating and Setting Aside Default and Dissolving Writ of Possession,” which is the subject of this appeal. The trial court determined that it had the discretion and authority to consider a meritorious argument concerning why the November payment was made later than the date provided in the court order. The trial court excused Tanksley from the requirement that the November rent be paid into the court registry on the first day of the month, and ordered that the default and the judgment for possession be set aside and the writ of possession be dissolved. The court denied Tanksleys request for the imposition of sanctions.

The Landlords’ first point on appeal pertains to whether Tanksley was entitled to any notice of the Landlords’ motion for immediate possession. It is unnecessary to resolve this issue because Tanksley ultimately had notice of the motion and was given the chance to argue his position before the order under review was entered. Therefore, the notice issue does not determine the outcome here, and we decline to issue an advisory opinion on this issue.

The Landlords next argue that Tanksley’s failure to pay rent as previously ordered by the court entitled them to possession of the property. We agree. Section 83.232 governs rent payments into the court registry in an action by a landlord of a nonresidential tenancy which includes a claim for possession. Subsection (5) provides: “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” § 83.232(5).

Cases addressing this statute support the view that the Landlords here are entitled to a writ of possession. See City of Miami v. Smith, 698 So.2d 320 (Fla. 3d DCA 1997) (stating that county judge was required to issue an immediate writ of possession pursuant the mandatory terms of section 83.232(5)); Chartier v. Sherman, 672 So.2d 604 (Fla. 3d DCA 1996) (denying certiorari relief to tenant and upholding default under section 83.232(5) where tenant failed to abide by terms of stipulated agreement that rent be paid directly to landlord during pendency of litigation); Courthouse Tower, Ltd. v. Manzini & Assocs., 683 So.2d 215 (Fla. 3d DCA 1996) (granting mandamus relief and requiring trial court to issue immediate writ of possession as required by section 83.232(5)); Premici v. United Growth Props., L.P., 648 So.2d 1241 (Fla. 5th DCA 1995) (interpreting section 83.232(5) as resulting in waiver of defenses for possession claim only, not rent claim).

These cases do not provide a clear answer to the specific question presented here, however, which is whether the trial court retains the discretion to excuse the late payment of rent into the court registry based on a finding of excusable neglect. To answer this question we rely on the plain meaning of section 83.232(5), which indicates that the legislature intended that a landlord’s right to possession be absolute. The statute does not allow for a procedure whereby a trial court may excuse the tenant’s noncompliance with its prior order. Therefore, we conclude that the trial court erred in setting aside the default and writ of possession based upon the finding that the late November payment was the result of excusable neglect.

Reversed and remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA KEY CITIZENS COALITION, INC., and Last Stand, Inc., Appellants, v. FLORIDA ADMINISTRATION COMMISSION, and Monroe County, and Department of Community Affairs, Appellees.
    No. 3D05-1800.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 13, 2007.
    Richard Grosso (Fort Lauderdale), for appellants.
    David L. Jordan, and Richard E. Shine, and Leslie E. Bryson (Tallahassee), for appellees, Florida Administration Commission and the Department of Community Affairs.
    Johnson Anselmo Murdoch Burke Piper McDuff, and Michael T. Burke, and Tamara M. Scrudders (Fort Lauderdale), for appellee, Monroe County.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Florida Keys Citizens Coalition, Inc., and Last Stand, Inc., (collectively “petitioners”), appeal the Administrative Law Judge’s, (“ALJ”), order rejecting a challenge to proposed rules amending comprehensive plans and land development regulations. Petitioners contend that the proposed rules are invalid exercises of delegated legislative authority. We disagree and affirm.

The ALJ properly conducted a de novo review of the petitioners’ challenge to the proposed rules. We find that a preponderance of evidence supported the ALJ’s findings that the proposed rules were valid exercises of legislative authority and not arbitrary and capricious. See Dep’t of Health v. Merritt, 919 So.2d 561 (Fla. 1st DCA 2006); Chanty v. Fla. State. Univ., 680 So.2d 463 (Fla. 1st DCA 1996); Dep’t of Natural Res. v. Sailfish Club of Fla., Inc., 473 So.2d 261, 264 (Fla. 1st DCA 1985). Accordingly, we affirm the ALJ’s final order.

Affirmed.


author: COPE, C.J.

text:
    Rosa E. TORREALBA, Appellant, v. The STATE of Florida, Appellee.
    No. 2D05-2465.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Rehearing Denied Feb. 12, 2007.

      Rosa E. Torrealba, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   On Rehearing Granted

COPE, C.J.

On consideration of the State’s motion for rehearing, the court withdraws its previous opinion and substitutes the following opinion.

Rosa Elena Torrealba appeals an order denying her motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

In the trial court, the State filed an amended response to the motion of defendant-appellant Torrealba. The trial court summarily denied the motion and defendant-appellant Torrealba has appealed.

The record conclusively refutes all of the defendant’s claims except points nine and twelve. We affirm on all points except nine and twelve.

We return the matter to the trial court for further consideration on points nine and twelve. On appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). On point nine the defendant claims an error in scoring victim injury. The record now before us does not contain the sentencing guidelines scoresheet, verdict, or sentencing order, and does not conclusively refute the defendant’s claim.

On point twelve, the defendant appears to claim that there is an error on the verdict form regarding lesser included offenses. The State’s amended response on point twelve argued that the defendant waived lesser included offenses, but the cited portion of the transcript contains no such waiver. Further, the trial transcript elsewhere reflects that the jury was instructed on lesser included offenses. In the absence of relevant record excerpts, the present record does not conclusively refute this claim.

For the stated reasons we reverse the order as to points nine and twelve and remand for further proceedings. If the trial court again enters a summary denial, it must attach as part of the postconviction record the record excerpts conclusively showing that the appellant is not entitled to any relief. Otherwise the court must conduct an evidentiary hearing.

The defendant argues that the order now before us must be reversed in its entirety because the trial court failed to attach the transcript excerpts to the order denying relief. This argument is without merit. When the trial court denied the defendant’s motion, the court directed in its order that the clerk of the circuit court transmit as part of the postconviction record several documents, including the State’s amended response to the defendant’s postconviction motion.

The current version of Florida Rule of Appellate Procedure 9.141(b)(2)(A) allows the trial court to rely on record excerpts attached to the parties’ pleadings. In this case the State filed an amended response and attached excerpts from the trial transcript and pretrial hearings. In that situation the trial court does not have to reattach the same excerpts to the court’s order. See id. (stating that postconviction record for a summary denial includes “copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.”); see also Rodriguez v. State, 919 So.2d 576, 577 n. * (Fla. 3d DCA 2006); Bryant v. State, 944 So.2d 1016, 1017 n. 1 (Fla. 3d DCA 2005). The record excerpts attached to the State’s amended trial court response were properly considered by the trial court, and this court.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.


text:
    M & Z PROPERTIES 2002, INC., Appellant, v. RONBIL, INC., a/k/a Metro Transmission, and Ronald J. Shaiman, Appellees.
    No. 3D06-777.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Smith, Currie Hancock, and Brian A. Wolf, and Jason D. Katz (Ft.Lauderdale), for appellant.
    Jeffrey R. Mazor, for appellees.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Goodman v. Brasseria La Capannina, Inc., 602 So.2d 1245 (Fla.1992).


author: WELLS, Judge.

text:
    Kris Edward HELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1133.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Rehearing Denied Feb. 13, 2007.

      Mel Black, for appellant.
    Charles J. Crist, Attorney General, and Erin Kinney and Jennifer Moore, Assistant Attorneys General for appellee.
    Before COPE, C.J., and GERSTEN, and WELLS, JJ.
   WELLS, Judge.

Kris Edward Helton appeals from denial of his rule 3.853 motion for postconviction DNA testing. We affirm.

Helton was convicted in 1992 for the murder of twenty-two month old Marshall Gunderson. At the time of Marshall’s death, Helton was living with Marshall’s mother, Marcella Gunderson and her three sons, Michael, age four, Matthew, age six, and Marshall.

On the evening of Marshall’s death, Hel-ton arrived home around 9:30 p.m. Marshall, who had an ear infection, had already been fed a light dinner, and, along with his four year old brother, had been put to bed. Helton had already consumed two beers before arriving home. He drank five more before going to bed.

Sometime around 11:00 p.m., Gunderson checked on her children, then she and Helton went to bed. Gunderson dozed off around 11:15 p.m., but awakened around 1:30 a.m. to find Helton awake in bed and smoking a cigarette. She noticed that he had a worried look on his face. After speaking briefly to Helton, Gunderson went to check on the children and discovered that Marshall was not in his crib.

She and Helton then searched the interi- or of the house, and found a large pitcher, its contents of Kool-Aid spilled, lying on the kitchen floor. When she noticed that the front door was open, Gunderson stepped outside and found Marshall lying face down at the bottom of the front steps on a concrete slab adjacent to a graveled area. According to a statement given to the police by Helton, Gunderson scooped Marshall up, brushed some gravel off him, and took him into the house where she and Helton performed CPR on him until fire rescue arrived. Despite these efforts, Marshall was pronounced dead on arrival at a local hospital.

An autopsy performed on Marshall determined that he died from skull fractures caused by blows from a blunt instrument. The fractures were so severe that Marshall’s brain had protruded between breaks in his skull.

Helton ultimately was charged with the first degree murder of Marshall Gunder-son. At trial, he asserted a number of defenses, claiming alternatively that the child died from an accidental fall from the porch steps or that the child was killed by an intruder or Gunderson. Medical evidence ruled out accidental death, and there was no evidence of forced entry into the fenced and gated yard or the home. Based on circumstantial evidence, Helton was convicted. That conviction, although initially reversed, was affirmed in Helton v. State, 641 So.2d 146 (Fla. 3d DCA 1994). Helton’s 92-page post conviction 3.850 motion alleging ineffective counsel, and his 43-page motion for rehearing of the order denying that motion, were denied. The order denying his 3.850 motion was affirmed by this court.

Helton now claims that he is innocent, that Gunderson killed her child, and that DNA testing of a number of items found on the child’s body, inside the home, and outside the home near, where the child was found will exonerate him.

Rule 3.853 authorizes DNA testing only where a movant states “how the DNA testing requested by the motion will exonerate the movant of the crime.” Fla. R.Crim. P. 3.853(b)(3) (emphasis added). Thus, “[u]nder rule 3.853, a motion for postconviction DNA testing must include, among other things, ‘a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced.’ ” Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004) (quoting Fla. R.Crim. P. 3.853(b)(3)). “[I]n pleading the requirements of rule 3.853, [the movant] must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.” Id. (emphasis added).

“On the issue of whether the requested DNA testing will exonerate the defendant, the determination of whether the defendant’s allegations are facially sufficient requires consideration of the facts of the crime itself and the other available evidence. Cases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence.” Zollman v. State, 820 So.2d 1059, 1062-63 (Fla. 2d DCA 2002).

Here, as the trial court found, DNA testing of the items identified by Helton in the hopes of finding Gunderson’s DNA could in no way shed light on Hel-ton’s guilt or innocence. Gunderson lived with Marshall and Helton in the home where all of these items were found. Thus, Gunderson’s DNA on any or all of these items, in the home or in the yard, is to be expected. See Hitchcock, 866 So.2d at 25-28.

Helton’s allegations that two of these items, the pieces of pea gravel and a rock wrapped in a paper towel, may have blood on them, does not change this result. People garden outside their homes, people walk barefoot outside their homes, people cut themselves and occasionally bleed outside their homes. Helton cannot satisfy his burden regarding these two items simply by claiming that they were found near where the child was discovered; that they may have blood on them; and that neither he nor the child bled at the time of the child’s death. The identification of Gun-derson’s DNA on these items would do no more than show that at some time Gunder-son had bled outside the home.

Especially unpersuasive is Helton’s claim with regard to the nine pieces of pea gravel which he alleges were “found where the victim was discovered.” An attachment to Helton’s motion regarding this evidence shows that the gravel was not found where this child was discovered, but was actually “found” in the child’s throat by the medical examiner during autopsy. Helton told the police in a statement that is part of the record that he saw Gunder-son wipe dirt and pea rock from Marshall’s face after she picked him up to take him into the house and that both he and Gun-derson administered CPR to the child. Given these facts, it would not be at all surprising to find Gunderson’s DNA on the pea gravel and it would certainly in no way “give rise to a reasonable probability of acquittal.”

Nor did Helton sustain his burden as to the rock wrapped in the paper towel. Hel-ton has repeatedly conceded that there is no evidence that Gunderson had any scrapes or cuts on her hands or body at the time of Marshall’s death. And nowhere in his motion does he allege that evidence exists that Gunderson’s blood or DNA could only have gotten on this rock and paper towel at the time of Marshall’s death as opposed to any time before or after the child was discovered. By Hel-ton’s own account, Gunderson’s hands came into contact with some pea rock or gravel when she picked the child up. That in and of itself could cause abrasions on the hands. Given these circumstance, Hel-ton simply could not and did not demonstrate how this piece of evidence would exonerate him. Thus, as to both the pea gravel and the rock in the paper towel, we believe that the trial court got it exactly right when it concluded:

As to item 1, the white paper towel with the small, bloodstained rock. Nothing in the record makes these items relevant to the crime. Even if DNA was found on the rock and it was not that of the Defendant or of Ms. Gunderson — or even if it were Ms. Gunderson’s — there would be no way to demonstrate that the DNA belonged to a wounded murderer or that it was deposited at the time of the crime. The results of DNA testing would not exonerate the Defendant.
As to item 2, nine pieces of pea rock gravel. Nothing in the record makes these items relevant to the crime. Even if the Defendant’s suspicion that there may be blood on the gravel is borne .out and the DNA was not that of the Defendant or of Ms. Gunderson — or even if it was Ms. Gunderson’s — there would be no way to demonstrate that the DNA belonged to a wounded murderer or that it was deposited at the time of the crime. The results of DNA testing would not exonerate the defendant.

Because the record in this case conclusively shows that Helton is entitled to no relief, the order under review is affirmed. See Fla. R.App. P. 9.141; Zollman, 820 So.2d at 1063 (observing that “after considering the State’s response, the trial court may either enter an order on the merits of the motion or set the motion for hearing. See Fla. R.Crim. P. 3.853(c)(3)”).

      . The facts surrounding this tragedy are more fully explicated in Helton v. State, 641 So.2d 146 (Fla. 3d DCA 1994).

      . See Helton v. State, 18 Fla. L. Weekly D1215 (Fla. 3d DCA May 11, 1993).

      . These items consist of a hair found on the child's body, the pajamas that he was wearing at the time of his death, and fingernail scrapings.

      . These items consist of: (1) the main entrance door to the house; (2) the crib, mattress, and sheet from the child's bed; (3) Helton's white lace up shoes thought by detectives to have been used to stomp on Marshall's head; (4) a pair of pants, shirt, and socks which Helton supposedly wore when he allegedly removed Marshall from his crib and killed him; (5) a blue towel thought to have been used to wipe off blood, sweat, and/or saliva after the murder; (6) an orange plastic pitcher that had contained the Kool-Aid found spilled on the kitchen floor; (7) a trash can with five empty Budweiser beer cans and various cigarette butts found in the master bedroom where Helton and Gunderson slept; (8) a bolt from the victim’s crib which was suspected of being cut with a pair of blue-handled cutters; and (9) a spring and length of black plastic coated wire used to hold up the fallen side of Marshall's crib.

      .These items consist of: (1) a white paper towel with a small allegedly blood stained white rock; (2) nine pieces of allegedly blood stained pea gravel; (3) a large white coral rock which the prosecutor argued might have been used to inflict the fatal blows; (4) various bags of rocks found where the victim was discovered; and (5) a cinderblock brick thought by the detectives to have been used to inflict the fatal blows.


author: GREEN, J.

text:
    Jorge Eliezer GARCES, as Co-Personal Representative of the Estate of Silvana Lorena Lopez, deceased, Robin Rosenblum, and Philip M. Gerson, Appellants, v. Eduardo MONTANO, as Co-Personal Representative of the Estate of Silvana Lorena Lopez, deceased, and Podhurst Orseck, P.A., Appellees.
    No. 3D05-490.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.

      Robin Rosenblum; Arthur J. Morbur-ger; Richard F. O’Brien, III, Miami, for appellants.
    Podhurst Orseck, P.A., and Stephen F. Rosenthal, Miami, for appellees.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

Jorge Eliezer Garces, Co-Personal Representative of the Estate of Silvana Lorena Lopez, appeals orders denying his motion to apportion attorney’s fees, denying his motion to recover costs from the decedent’s minor children’s individual recovery, granting Co-Personal Representative Eduardo Montano’s motion to discharge Garces’s attorneys’ charging lien, and order dismissing the case with prejudice. We reverse these orders.

In 1998, Silvana Lopez died shortly after surgery. Her husband, Garces, sought appointment as Personal Representative of her estate to investigate possible wrongful death and malpractice claims on behalf of himself, the estate, and Silvana’s two surviving sons. The boys’ natural father is appellee Eduardo Montano. Garces retained attorneys Robin Rosenblum and Philip Gerson (collectively “Garces attorneys”). In 1999, shortly after they were retained, Garces’s attorneys wrote to Mon-tano, requesting his cooperation and informing him that the action was being pursued. Montano did not object and told Garces that he did not intend to pursue the action on the children’s behalf. In fact, Montano did nothing for the next two years. The Garces attorneys proceeded with extensive investigations, pre-suit discovery and work on the case.

The Garces attorneys consulted with ten medical experts and developed the medical liability case. Thereafter, the statutorily mandated pre-suit discovery proceedings were conducted. The transcribed statements of all the defendant physicians and the defendant hospital’s key medical staff, attending the decedent shortly before her death, were taken. The Garces attorneys sought production of hospital documents and the hospital operator logs. These revealed significant delays in affording the decedent the appropriate care for her condition. These pre-suit discovery steps culminated in the production of the statutorily required medical expert affidavit, setting forth the grounds for the malpractice action. In November 2000, the Garces attorneys also successfully filed a motion for the tolling of the two-year statute of limitations period. The complaint was filed in June 2001.

In February 2001, two and a half years after the Garces attorneys began conducting pre-suit investigations in the cause, and six months after the expiration of the statute of limitations, the law firm of Po-dhurst Orseck, PA (“Podhurst”), informed the Garces attorneys by letter that they had been hired by Montano to pursue a wrongful death claim on behalf of the decedent’s sons. Podhurst attached its December 2000 petition tolling the statute of limitations to the letter. The Garces attorneys responded that the lawsuit was already underway, and that they would welcome Montano’s participation. Podhurst did not reply to this letter.

Montano later sought to be appointed as Co-Personal Representative in the probate case. The court appointed him in August 2001. Podhurst filed a notice of appearance in the wrongful death action in September 2001, three months after the filing of the initial complaint. Podhurst had not conducted any significant investigations, and had only consulted with one expert. For quite some time, Podhurst was not prepared to move forward with the case and agreed that the Garces attorneys should continue handling the pending discovery.

In April 2003, Podhurst began conducting discovery in the case. The Podhurst and Garces attorneys collaborated in all pertinent respects. Podhurst conducted the depositions, and consulted with the experts retained by the Garces attorneys. Podhurst repeatedly requested help from Garces’s attorneys in preparing the case for trial and up to the time of settlement. Significantly, the only medical expert qualified to testify at trial was the expert retained by Garces’s attorneys and this expert was only disclosed as a trial witness at the insistence of Garces’s attorneys. Additionally, Podhurst raised their initial settlement demand on the minors’ behalf at the insistence of Garces’s attorneys and based upon the economic analysis performed by the economic expert retained by Garces’s attorneys. This resulted in a significantly higher recovery for the children than Podhurst had originally anticipated.

Between October 2004 and January 2005, a settlement was procured on behalf of the parties. Under the terms of the settlement, the children received $1,741,267.52, the estate received $77,500, and Garces received $22,500. The issue in the case then turned to the allocation of attorney’s fees and costs.

In December 2004, Podhurst filed a motion seeking approval of the settlement and allocation of the proceeds. This motion was silent as to fee allocation. The next day, Garces’s attorneys filed a cross-motion for approval of the settlement, and for apportionment of fees and costs. The court approved the settlement, and a contingent fee award of 40% of the first million dollars recovered, and 30% of the excess. The court reserved jurisdiction to allocate attorneys’ fees and costs. The court set a hearing for January 25, 2005, to address the apportionment of fees issue.

On January 19, 2005, Garces’s attorneys filed an affidavit and a memorandum of law in support of the apportionment. The affidavit detailed the attorney’s extensive steps and work in moving the case forward before Podhurst’s involvement, and also their significant involvement thereafter. On January 21, Podhurst filed a motion to discharge the Garces attorneys’ charging lien against the settlement proceeds of the children; a motion for apportionment of the fees; and a response to the Garces motion for apportionment of fees. In response to Garces’s motion for apportionment of fees, Podhurst basically asserted that Garces’s attorneys had done little more than paper the file in an attempt to collect a fee, and was therefore not entitled to share in any fee from the minors’ recovery. Notably absent in this response, however, was any detailed recitation of Podhurst’s presuit involvement to move the case forward.

At the hearing on the fee allocation issue, Podhurst essentially argued that the Garces attorneys were not entitled to any fee from the children’s settlement because there was conflict of interest between the minors and Garces. The court denied Garces’s motion to apportion fees, granted Montano’s motion to discharge the lien, and ruled that the Garces attorneys were ineligible to receive any fee from the children’s portion of the settlement. The $696,507.01 in fees from those proceeds was awarded solely to Podhurst.

In February 2005, attorney Rosenblum individually filed a motion to apportion and approve costs and memorandum of law. She also submitted an itemized statement of the costs incurred by the Garces attorneys in prosecuting the case, including expert’s bills, expert consultation fees, filing fees and pre-suit deposition expenses. The motion sought to apportion the costs among all the plaintiffs in proportion to the amounts awarded to them, under section 768.26, Florida Statutes, as the efforts of the litigation benefited all parties equally. Additionally, many of the costs incurred resulted from requests from Po-dhurst. The court denied the motion for reimbursement of costs from the minors’ settlement.

Two weeks later, Podhurst moved the court for its guidance regarding the dismissal of the suit as stipulated to in the settlement, in view of the fact that the Garces attorneys were now preparing individual fee motions. The court dismissed the case with prejudice, which thereby precluded Garces’s attorneys from filing their motions. This appeal followed.

We reverse the various orders entered in this cause regarding disposition of the fees and costs, and hold that the trial court’s conclusion that some conflict of interest precluded the Garces attorneys from being compensated from the minors’ recovery is not supported by the record before us or the law. We thus remand for further proceedings pursuant to Wiggins v. Estate of Wright, 850 So.2d 444 (Fla.2003).

As a threshold matter, we hold that there is no legal basis in the record to conclude that a conflict of interest existed among Garces and the minor children on which to base the disparate fee distribution. The only issue litigated in this cause was that of liability. Without question, all of the decedent’s survivors had a common interest in determining liability to the greatest extent possible in order to maximize each party’s recovery. There was never any litigation regarding the allocation of the settlement proceeds, which might have resulted in a conflict. Compare In Re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000). The facts raised by Podhurst, to bolster its argument that a conflict existed, have no bearing on the issue in the medical malpractice case—i.e. liability. Hence, conflict of interest is not a basis for awarding Podhurst the lion’s share of the fees, without regard to Garces’s attorneys’ proportionately higher expenditure of time, money and effort.

Having established that no conflict of interest exists in this cause, we turn next to the appropriate allocation of the fees. The court erred in awarding the entire fee payable from the children’s settlement to the Podhurst firm. This award is basically a windfall to Podhurst and doesn’t recognize the legwork and background work that the Garces attorneys performed in the case before Podhurst ever came on board. There can be no question that all these efforts handsomely benefited the minors; they received a significant settlement. The proper allocation would have been to award the Garces attorneys a fee proportionate to their efforts from the recovery of the minors.. The remainder should go to the Podhurst firm.

It is of no moment that the Garces attorneys had no retainer agreement with the minor children. These attorneys represented the original Personal Representative in the case, who also represented the interest of the children, as survivors. There is no requirement that such an agreement exist before the attorneys can recover their fee. Catapane, 759 So.2d at 11; Perris v. Estate of Perris, 764 So.2d 870 (Fla. 4th DCA 2000). The estate prosecutes the case for the benefit of all survivors. The fact that the minors, through their guardian, chose to hire separate representation, should not penalize or reduce the fee for the work performed by Garces’s attorneys, which served to significantly move this ease to its favorable conclusion for all involved.

The Florida Supreme Court in Wiggins, 850 So.2d at 450, concluded that “[w]hen survivors have competing claims, and are represented by separate attorneys, awarding attorneys’ fees from a wrongful death suit in a manner commensurate with the attorneys’ work properly provides for proportional payment of attorneys’ fees by all survivors, out of their respective awards.” Here, as in Wiggins, the fees should have been awarded proportionately from all the survivors’ recovery based on the attorneys’ work. The Wiggins court approved the Catapcme method of allocating fees based on the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors. Wiggins, 850 So.2d at 450. Where it can be shown that one attorney played a greater role in securing a total award, a larger fee is appropriate for that attorney. Id.

On remand, in following this formula, the trial court shall assess the fee from the total settlement proceeds based on the 40/30 percentages it approved earlier, and distribute it proportionately based on the amount of work that each group of attorneys did on the case. Wiggins, 850 So.2d at 448.

As for the trial court’s denial of the motion to apportion costs among the parties, we reverse that order as well. There can be no logical argument that some speculative conflict of interest should shield the minors from sharing in the cost of filing and pursuing this litigation, from which they received the settlement. Section 768.26 unequivocally states that litigation expenses shall be “deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them.” In this case, there were no “expenses incurred for the benefit of a particular survivor,” § 768.26, Fla. Stat., as the liability issues were jointly litigated for the mutual benefit of all the survivors.

Reversed and remanded with instructions.

      . At the time of the birth of her children, and of her death, Lopez was separated from Garces and living with Montano.

      . The probate court appointed Montano as Co-Personal Representative finding that there was a potential for a conflict of interest between Garces and the decedent's sons based upon the legality of the marriage between the decedent and Garces and the possible allocation of damages. This ruling is not at issue on this appeal.

      . Curiously, the settlements were considerably healthier based on Garces's attorneys' recommendation that Podhurst increase their offers. Additionally, the allocation of the settlement proceeds has not been contested by Garces or the estate.

      . The parties do not take issue with the trial court’s 40%/30% fee allowance and we do not disturb this ruling.


text:
    D.M., et al., juveniles, Petitioners, v. Dale DOBULER, Superintendent Miami-Dade Regional Juvenile Detention Center, Wansley Walters, Director, Miami-Dade Juvenile Assessment Center, and The State of Florida, Respondents.
    Nos. 3D06-2648, 3D06-2422, 3D06-2473, 3D06-2432, 3D06-2474, 3D06-2447, 3D06-2530, 3D06-2475.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 13, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for petitioners.

      Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondents.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   WELLS, Judge.

In these consolidated petitions for writs of habeas corpus and mandamus, we review the claims of a number of juveniles who maintain that they were not afforded detention hearings within 24 hours of being taken into custody as required by section 985.215(2), Florida Statutes (2005). Although the petitioners in these cases have now received detention hearings, we believe the issue presented is of sufficient importance and frequent recurrence to warrant a ruling on the legality of the procedure utilized below. See R.W. v. Soud, 639 So.2d 25, 26 (Fla.1994). We agree that as to each of the petitioning juveniles, the administrative procedure employed violated his/her statutory right to a timely detention hearing, and that the administrative procedure currently employed in the Juvenile Division of the Eleventh Judicial Circuit, which does not require that a detention hearing occur within 24 hours after a child is taken into custody, violates the law.

D.M. was arrested at 3:00 a.m. on October 25, 2006. D.M.’s risk assessment was completed before 5:00 a.m. that same day. At 9 a.m. the following day, D.M.’s attorney requested an immediate detention hearing pursuant to section 985.215. The trial court denied the request, adhering instead to an administrative order of the Juvenile Division of the Eleventh Judicial Circuit which instructed that detention hearings would be afforded to those for whom release to home detention had been recommended at 8:30 each morning and to those for whom secure detention had been recommended at 1:30 in the afternoon. D.M., and many of the other petitioners in these consolidated petitions, sought discharge pending their respective detention hearings which had not taken place within the 24 hour period at issue.

Section 985.215 of the Florida Statutes governing detention of children who have been taken into custody, requires a juvenile probation officer (JPO), who receives custody of a child from a law enforcement agency, to review the facts in the law enforcement report or probable cause affidavit, to complete a risk assessment, and to determine whether and at what level (home, nonsecure, or secure) detention care is required pending judicial review:

(1) The juvenile probation officer shall receive custody of a child who has been taken into custody from the law enforcement agency and shall review the facts in the law enforcement report or probable cause affidavit and make such further inquiry as may be necessary to determine whether detention care is required.
(a) During the period of time from the taking of the child into custody to the date of the detention hearing, the initial decision as to the child’s placement into secure detention care, nonsecure detention care, or home detention care shall be made by the juvenile probation officer pursuant to ss. 985.213 and 985.214.
(b) The juvenile probation officer shall base the decision whether or not to place the child into secure detention care, home detention care, or nonsecure detention care on an assessment of risk in accordance with the risk assessment instrument and procedures developed by the Department of Juvenile Justice under s. 985.213. However, a child charged with possessing or discharging a firearm on school property in violation of s. 790.115 shall be placed in secure detention care.

§ 985.215(l)(a), (b), Fla. Stat. (2005).

This same provision permits a court, in cases not involving a child alleged to have absconded from a nonresidential commitment program, to “continue” detention care, if, at a hearing held within 24 hours after the child is “taken into custody,” the court determines that probable cause exists and that there is a continued need for detention:

(2) Subject to the provisions of subsection (1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court....
A child who ... is ordered to be detained pursuant to this subsection shall be given a hearing within 24 hours after being taken into custody. The purpose of the detention hearing is to determine the existence of probable cause that the child has committed the delinquent act or violation of law with which he or she is charged and the need for continued detention, except where the child is alleged to have absconded from a nonresidential commitment program .... [T]he court shall use the results of the risk assessment performed by the juvenile probation officer and, based on the criteria in this subsection, shall determine the need for continued detention. A child placed into secure, nonsecure, or home detention care may continue to be so detained by the court pursuant to this subsection....

§ 985.215(2), Fla. Stat. (2005)(emphasis added).

The term “taken into custody,” as used in this provision is defined in section 985.03(55) of the Florida Statutes as “the status of a child immediately when temporary physical control over the child is attained by a person authorized by law, pending the child’s release, detention, placement, or other disposition as authorized by law.” (Emphasis added).

The mandate of these provisions is crystal clear. A child who is to be placed in detention care must receive a detention hearing within 24 hours of being physically detained by law enforcement.

The State claims that the term “taken into custody,” as used in section 985.215(2) requiring “a hearing within 24 hours after [a child is] taken into custody,” when read in pari materia with section 985.215(1) and section 985.215(l)(a), means that a child must receive a detention hearing within 24 hours of a JPO taking custody and determining the need for detention. We disagree.

Section 985.215(2) clearly states that a detention hearing must take place within 24 hours after a child is “taken into custody.” Section 985.215(1) is equally clear in stating that a JPO only “receives” custody of a child who already had been “taken into custody” by someone authorized under section 985.207 to do so:

The juvenile probation officer shall receive custody of a child who has been taken into custody from a law enforcement agency....

§ 985.215(1), Fla. Stat. (2005).

This provision permits no interpretation of the term “taken into custody,” other than that stated in sections 985.03(55) and 985.207.

Section 985.215(l)(a), when read alone or in conjunction with section 985.215(1), makes no comment on when or by whom a child may be or is taken into custody. This provision simply authorizes the JPO, who has received custody of a child from someone who has taken that child into custody, to determine initial placement for that period of time between the moment someone authorized by law obtained “physical control” over the child and a detention hearing.

During the period of time from the taking of the child into custody to the date of the detention hearing, the initial decision as to the child’s placement ... shall be made by the juvenile probation officer. ...

§ 985.215(l)(a), Fla. Stat. (2005).

The State also maintains that petitioners’ arguments do not take into account administrative considerations and the history of the procedures currently in place. It points out that the current system has been in place for a number of years without objection. However the failure of children in the past to assert their right to a detention hearing within 24 hours of being taken into custody cannot constitute a waiver of that right by either the instant petitioners or those children who will be taken into custody in the future.

Nor do we find persuasive the State’s argument that its definition of “taken into custody” should be employed because petitioners’ interpretation will require a significant change in the detention hearing system currently employed. It is our duty to give effect to the language the legislature used. See Baker v. State, 636 So.2d 1342, 1343 (Fla.1994) (observing “[t]he courts ‘are obliged to give effect to the language the Legislature has used.’ Cobb v. Maldonado, 451 So.2d 482, 483 (Fla. 4th DCA 1984). ‘Courts have then no power to set it aside or evade its operation -If it has been passed improvidently the responsibility is with the Legislature and not with the courts.’ Van Pelt [v. Hilliard], 75 Fla. [792] at 798, 78 So. [693] at 695. The proper remedy for a harsh law will not be. found through construction or interpretation; it rests only in amendment or repeal.”).

We therefore agree with petitioners that section 985.215(2) requires that where, as here, physical control over a child is obtained by a law enforcement officer on a charge of violating the law, that child has been “taken into custody” and is entitled to a detention hearing within 24 hours of being so detained. See S.J.D. v. State, 774 So.2d 33, 34 (Fla. 2d DCA 2000)(citing section 985.215(2)(g), Florida Statutes (1999), and observing “the provision of the order requiring S.J.D. to be brought before the issuing judge when [the issuing judge] was not available to hold a hearing within twenty-four hours of 5.J.D. being taken into custody is prohibited by the plain language of the statute”).

While we agree with the State that the failure to provide a child with a hearing within 24 hours of being taken into custody may not justify immediate release in every case, the instant petitions confirm that the current system employed by the Juvenile Division of the Eleventh Circuit Court assures that a significant number of children will not receive timely detention hearings. Because the legislature has so clearly pronounced its intention in section 985.215(2) that a detention hearing must take place within 24 hours of a child being taken into custody, and not at some administratively imposed later time, that intention must be followed. “Where the legislature has used particular words to define a term, the courts do not have the authority to redefine it.” Baker, 636 So.2d at 1343-44. Likewise, where the language of a statute is unambiguous and clear, there is no room for interpretation. See State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996) (‘When interpreting a statute, courts must determine legislative intent from the plain meaning of the statute.”); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982) (“The plain meaning of the statutory language is the first consideration.”); State v. Egan, 287 So.2d 1, 4 (Fla.1973) (“Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.”).

In each of the consolidated cases before us, and in at least an additional fifty-seven cases filed below since the first of these petitions was filed, temporary physical control of a child was obtained by a law enforcement officer because of an alleged violation of the law. Yet not one of these children had a detention hearing within 24 hours of being physically detained.

Accordingly, we find that each petitioner was denied his/her right to a timely detention hearing because the procedure utilized by the Juvenile Division of the Eleventh Circuit failed to provide a detention hearing within 24 hours of the child being taken into custody as required by Chapter 985 of the Florida Statutes. We also grant the petitions for writs of habeas , corpus or in the alternative mandamus to require that detention hearings be scheduled or set so that a hearing will take place within 24 hours of a child being taken into custody, that is within 24 hours after one of those entities or individuals delineated in section 987.207(1) obtains temporary physical control over the child.

It is so ordered.

      . In making their arguments, the petitioners rely on the 2005 version of the Florida Statutes. That version will remain in effect until December 31, 2006 at which time the new version takes effect. See Laws 2006-120. §§ 33, 34, 35, 36, 37, eff. Jan. 1, 2007, renumbering section 985.215 as sections 985.25 and 985.255. Thus, while we address the current text of section 985.215 in this opinion, after Jan. 1, 2007, the language at issue will appear as part of section 985.255(3)(a).

      . This provision will appear as section 985.25(l)(a) in the 2006 Florida Statutes.

      . These provisions will appear in section 985.25(1) and 985.255(3) respectively in the 2006 Florida Statutes.

      . Temporary physical control of a child is, in turn, authorized by law (1) pursuant to a circuit court order "issued under this part, based on sworn testimony, either before or after a petition is filed”; (2) by an “arresting authority” for a delinquent act or violation of law; (3) by "a law enforcement officer” for failure to appear at a properly noticed court hearing; or (4) by "a law enforcement officer” who has probable cause to believe that the child has violated the conditions of the child's probation, home detention, or post commitment probation or conditional release supervision, or where the child has absconded from a non residential commitment or escaped from a residential commitment. § 985.207(1), Fla. Stat. (2005).

      . A number of the petitioners, including D.M., argue that not only did they not receive a hearing within 24 hours of their arrest, but that they also did not receive a hearing within 24 hours of completion of their risk assessment instrument. In this regard, they argue that the State violated not only the clearly established legislative provision at issue but also the State’s own interpretation of that provision.

      . See § 985.207(3), which provides:
      (3) Taking a child into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence in conjunction therewith is lawful.


text:
    B.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-250.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The issue in this case is whether the trial court erred in attempting to provide for the future retention of jurisdiction over a juvenile’s case beyond the age of 19. B.C., a child, was adjudicated delinquent for violation of probation. Initially, the trial court continued his probation, required him to successfully complete the inpatient DATA Hayslip Residential Program (DATA), retained jurisdiction until his 21st birthday, and ordered further that B.C. be continued on juvenile probation “for an indefinite period not to exceed the child’s 19th birthday or the maximum term of imprisonment an adult could receive for each count listed above, whichever comes first.”

B.C. filed a Motion to Correct Disposition or Commitment Order pursuant to Florida Rule of Juvenile Procedure 8.135. He argued that the court’s apparent retention of jurisdiction beyond the age of 19 was illegal because none of the statutory exceptions to the general rule that jurisdiction ends at the age of 19, applied to him. The trial court filed an amended disposition order, identical to the original order, but clarifying as such; “Jurisdiction until 19th birthday unless the juvenile is in a program and violates the terms of the program; then jurisdiction cannot exceed his 22nd birthday.”

B.C. argues on appeal that the trial court erred in attempting to provide for the future retention of jurisdiction until the age of 22, where none of the statutory exceptions to the jurisdictional limit of age 19 applied. We agree.

Section 985.201(4)(a), Florida Statutes (2005), provides:

Notwithstanding ss. 743.07, 985.229, 985.23, and 985.231, and except as provided in ss. 985.31 and 985.313, when the jurisdiction of any child who is alleged to have committed a delinquent act or violation of law is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult.

There are two statutory exceptions identified in section 985.201(4)(a) to the general rule that jurisdiction ends at the age of 19: sections 985.31 and 985.313. Section 985.31 provides for the retention of jurisdiction until the age of 21 when a child is designated as a serious or habitual offender pursuant to section 985.31(3)(k). See § 985.31(3)(k), Fla. Stat. (2005). Section 985.313 provides for the retention of jurisdiction until age 21 when extra time is necessary for a child to complete a high or maximum risk program as defined by section 985.313. See § 985.313, Fla. Stat. (2005).

Two additional exceptions to the general rule that jurisdiction ends at age 19 are found in section 985.201(4)(b). Section 985.201(4)(b)l. allows a court to retain jurisdiction until the age of 22 when necessary to allow the child to participate in a juvenile conditional release program following commitment to a high or maximum risk commitment program. § 985.201(4)(b)l., Fla. Stat. (2005). Section 985.201(4)(b)2. provides for retention of jurisdiction until age 21 to enable a child to complete an intensive residential treatment program for 10 to 13 year old offenders, a residential commitment program in a juvenile prison, a residential sex offender program, or a program for serious or habitual juvenile offenders. See § 985.201(4)(b)2.

B.C. correctly notes that none of these exceptions apply here. Further, as the disposition order currently reads, the retention of jurisdiction to the age of 22 seems to be based on an expectation that jurisdiction beyond the age of 19 would be necessary if B.C. violated probation, and consequently, needed to be placed in a high or maximum risk program.

The state argues in response that the trial court did not err because the maximum term of jurisdiction does not exceed the statutory maximum term of imprisonment for an adult convicted of the same offense, and the court could retain jurisdiction until B.C.’s 21st birthday. The state relies on section 985.231(l)(a)3., Florida Statutes (2005), for this proposition. Section 985.231(l)(a)3. provides that the trial court may:

Commit the child to the department at a restrictiveness level defined in s. 985.03. Such commitment must be for the purpose of exercising active control over the child, including, but not limited to, custody, care, training, urine monitoring, and treatment of the child and release of the child from residential commitment into the community in a postcommitment nonresidential conditional release program. If the child is eligible to attend public school following commitment and the court finds that the victim or a sibling of the victim in the case is or may be attending the same school as the child, the commitment order shall include a finding pursuant to the proceedings described in s. 985.23(l)(d). If the child is not successful in the conditional release program, the department may use the transfer procedure under s. 985.404. Notwithstanding s. 743.07 and paragraph (d), and except as provided in s. 985.31, the term of the commitment must be until the child is discharged by the department or until he or she reaches the age of 21.

See § 985.231(l)(a)3., Fla. Stat. (2005). Thus, the state argues that because B.C. was committed to DATA, which appeared to be a minimum, low risk residential treatment program under section 985.03(46)(b), and had committed a second and third degree felony, the trial court could retain jurisdiction until B.C.’s 21st birthday. Section 985.03(46)(b) reads:

(46) “Restrictiveness level” means the level of programming and security provided by programs that service the supervision, custody, care, and treatment needs of committed children. Sections 985.3141 and 985.404(11) apply to children placed- in programs at any residential commitment level. The restrictiveness levels of commitment are as follows:
(b) Low-risk residential. — Programs or program models at this commitment level are residential but may allow youth to have unsupervised access to the community. Youth assessed and classified for placement in programs at this commitment level represent a low risk to themselves and public safety but do require placement and services in residential settings. Children who have been found to have committed delinquent acts that involve firearms, delinquent acts that are sexual offenses, or delinquent acts that would be life felonies or first degree felonies if committed by an adult shall not be committed to a program at this level.

However, in S.L.K v. State, 776 So.2d 1062 (Fla. 4th DCA 2001), this court ruled that even though a child’s situation may fall under section 985.231(l)(a)3., the trial court cannot retain jurisdiction beyond age 19 where it is possible that the child will be discharged from a program prior to reaching his or her 21st birthday. Id. at 1065. In the instant case, there is nothing in the record to indicate that B.C. will not complete DATA before his 21st birthday. Thus, the state’s argument fails. Under S.L.K., the trial court may retain jurisdiction only to the age of 19, where it is unclear whether or not B.C. will be released from DATA before his 21st birthday.

Based on the foregoing, we remand this case to the trial court to place a check next to the commitment paragraph of the disposition order, indicate that B.C. is placed in a “low” risk residential program, and specify that the commitment shall last no longer than B.C.’s 19th birthday, or the maximum term of imprisonment of 15 years, whichever comes first.

Remanded With Directions.

GROSS, HAZOURI, JJ„ and MAASS, ELIZABETH T., Associate Judge, concur.


author: CORTIÑAS, Judge. SCHWARTZ, Senior Judge

text:
    Patrick FRANCO, etc., Appellant, v. MIAMI-DADE COUNTY, etc., Appellee.
    No. 3D05-1074.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 12, 2007.

      Wasson & Associates and Roy D. Was-son and Annabel C. Majewski; Daryl L. Merl, Miami, for appellant.
    Murray A. Greenberg, Miami-Dade County Attorney, and Craig E. Leen, Assistant County Attorney, for appellee.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

Patrick Franco (“plaintiff’), as personal representative of the estate of Ida Franco, appeals an order granting the defendant Miami-Dade County (“County”) summary judgment in a wrongful death action. We affirm.

On May 24, 1997, the decedent, Ida Franco, arrived at her home complaining of chest pains. The plaintiff and Linda Wessner, Ida Franco’s daughter, were present. The record shows that Linda Wessner called 911 and also called a family friend, Dr. Ventura, seeking advice. Dr. Ventura, an ophthalmologist, obtained the name of a cardiologist, Dr. Palomo, and arranged for him to meet Ida Franco at the emergency room of South Miami Hospital.

Thereafter, Miami-Dade County Fire Rescue (“Fire Rescue”) was dispatched to Ida Franco’s home. Upon arrival, Fire Rescue determined that Ida Franco had sustained a myocardial infarction and was both “critical” and “unstable.” Linda Wessner claims that when Fire Rescue arrived, she asked Lieutenant Olivera to transport her mother to South Miami Hospital, where Dr. Palomo was waiting for her. However, Lieutenant Olivera concluded that because Ida Franco was “critical” and “unstable” she should be transported to Doctors’ Hospital, the closest facility that provided care for critical adult patients. Ida Franco died shortly after arriving at Doctors’ Hospital.

In his deposition, Lieutenant Olivera stated that he determined which hospital to transport Ida Franco pursuant to the “hospital capability chart.” The hospital capability chart is drafted by the policy and protocol committee of the Emergency Medical Services Division of the Miami-Dade County Fire Department. The hospital capability chart is compiled from information provided by several hospitals in the County. Initially, the County sends out a form to a list of hospitals and, thereafter, the hospitals classify themselves according to specialty areas and capabilities. Fire Rescue protocol mandates that paramedics use the hospital capability chart to transport patients to the “closest appropriate facility” for the particular patient’s needs. The Fire Rescue protocol also states that the closest appropriate facility for an “unstable” patient is the closest emergency room, regardless of the patient’s condition or the hospital’s capability to treat that condition. Conversely, family requests and hospital specialties are taken into consideration for “stable” patients. Here, the hospital capability chart indicated that Doctors’ Hospital was an appropriate hospital for unstable patients with cardiac symptoms, and was the closest facility to Ida Franco’s home.

The plaintiff brought a negligence action against the County. The complaint alleges that the County, through its employees, failed to follow the Miami-Dade County Fire Department policy and procedure manual, and/or failed to transport Ida Franco to the closest appropriate hospital, and/or failed to transport Ida Franco, a patient suffering from cardiac arrest, to a facility located a mile and a half away that had the capabilities to perform necessary cardiac life-sustaining procedures, as was requested by the family. The County moved for summary judgment, alleging that sovereign immunity barred the claim. The trial court granted summary judgment in the County’s favor and the plaintiffs appeal follows.

We review a trial court’s entry of summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is appropriate when no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Id. (citations omitted). If even the slightest doubt exists regarding the existence of material issues of fact, a trial court is required to deny summary judgment. McQueen v. Boye, 785 So.2d 512, 514 (Fla. 3d DCA 2000) (citing Monroe County v. New Port Largo, Inc., 441 So.2d 173 (Fla. 3d DCA 1983)).

In reviewing the trial court’s decision, we must follow the framework set forth in a recent Florida Supreme Court decision considering the issue of governmental tort liability. In Pollock v. Florida Department of Highway Patrol, 882 So.2d 928 (Fla.2004), the Florida Supreme Court clarified the complex and multifaceted Florida law that has developed over the years on the issue of sovereign tort immunity. Pursuant to section 768.28, Florida Statutes, the State of Florida has waived sovereign immunity from liability in tort actions “for any act for which a private person under similar circumstances would be liable.” Pollock, 882 So.2d at 932 (citations omitted); see § 768.28, Fla. Stat. (1995). Therefore, unless a common law or statutory duty of care exists that is applicable to an individual under similar circumstances, there can be no governmental liability. Pollock, 882 So.2d at 932 (quoting Henderson v. Bowden, 737 So.2d 532, 534-35 (Fla.1999)).

In Pollock, the court held that the question of whether a governmental actor owed a duty of care with respect to the alleged negligent conduct is a prerequisite to conducting a sovereign immunity analysis. See id. at 932-33, 938 (concluding that a finding that the Florida Department of Highway Patrol did not have an underlying common law or statutory duty of care to motorist was determinative and, therefore, a sovereign immunity analysis was unnecessary) (citations omitted). If the governmental actor owes a duty of care to the plaintiff, then it must be determined whether sovereign immunity bars an action for the alleged breach of that duty. Id. at 933 (citing Henderson, 737 So.2d at 535) (finding that a “threshold matter” in determining governmental liability is whether the [defendant] had a duty to act with care toward the decedents); see also Lewis v. City of St. Petersburg, 260 F.3d 1260,1262 (11th Cir.2001)(citing Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989)); Breaux v. City of Miami Beach, 899 So.2d 1059, 1063 (Fla.2005). Conversely, if there is a finding that no statutory or common law duty of care exists regarding the government’s conduct, the question of sovereign immunity need not be reached. Pollock, 882 So.2d at 932-33, 938 (stating that clarification of the law on sovereign tort immunity was necessary because of the language in this court’s opinion in Florida Department of Highway Patrol v. Pollock, 745 So.2d 446 (Fla. 3d DCA 1999), that the government’s actions were not operational in nature and, therefore, no special duty was owed to the plaintiffs).

Under Florida law, an independent tort duty arises when a defendant, either a public or private citizen, creates situations which place people within a “zone of risk” that creates or allows certain dangers to exist. See City of Pinellas Park v. Brown, 604 So.2d 1222, 1225 (Fla.1992) (finding that police officers who engaged in a high speed chase owed a duty to deceased motorist) (citing Kaisner, 543 So.2d at 735-36 (finding county owed motorist a duty of care when police officer ordered the motorist to stop and, thereby, placed the motorist in police custody)); see also Lewis, 260 F.3d at 1263 (finding that police officers owed the deceased a duty of care when using their firearms); Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 920 (Fla.1985) (recognizing that common law duties of care are applicable to government employees in the operation of motor vehicles and the handling of firearms); Collazos v. City of West Miami, 683 So.2d 1161, 1164 (Fla. 3d DCA 1996) (finding that the city owed children participating in an after-school park activity a duty to perform services in a prudent manner). However, Florida courts have also determined that no independent tort duty of care arises where the conduct in question involves nothing more than the carrying out of a particular governmental function. See Pollock, 882 So.2d at 936 (finding that the Florida Highway Patrol did not, by words or actions, create a duty of care toward the decedents “over and above its general duty to enforce the state’s traffic laws” when it failed to respond to an emergency call); City of Daytona Beach v. Palmer, 469 So.2d 121, 122-23 (Fla.1985) (finding that there was no statutory or common law duty of care to provide fire protection services to individual property owners); Trianon, 468 So.2d at 917, 919-20 (finding no duty of care exists with regard to how the legislature, commissions, boards, or city councils carry out functions of enacting laws or regulations, and when government employees are carrying out discretionary police powers).

Importantly, we note that while the Fire Rescue’s written policies containing these protocols may be instructive in determining whether there was a breach of an independently owed duty of care, they do not in and of themselves create a special tort duty to individual members of the public. See Pollock, 882 So.2d at 937 (citing Alderman v. Lamar, 493 So.2d 495, 497-98 (Fla. 5th DCA 1986)(holding that the regulation requiring the Florida Highway Patrol to report damaged road signs did not impose a duty to report or repair damaged signs)); Metro. Dade County v. Zapata, 601 So.2d 239, 243-44 (Fla. 3d DCA 1992) (finding that county lifeguard training video served as evidence relevant to the standard of care but did not itself establish a legal duty). Thus, the hospital capability chart, utilized by Lieutenant Olivera to conclude that Ida Franco should be transported to Doctors’ Hospital, does not give rise to a negligence claim because it is a pre-designed protocol that contains guidelines for paramedics in an emergency situation to determine the appropriate facility for a patient’s needs. Moreover, policies on how to respond to emergencies, and how to assess and treat the needs of patients, similarly do not create an independent duty to the public. See Pollock, 882 So.2d at 936-37.

However, while the policies established by Fire Rescue do not create an independent actionable duty, a duty of care arises if Fire Rescue creates situations which place people within a “zone of risk” where certain dangers may exist. Here, by exercising its discretion to provide a patient with medical care, the County created a “zone of risk” which raised an actionable duty to perform that service in a reasonably prudent manner. Clearly, the Fire Rescue creates a “zone of risk” accompanied by a corresponding duty, when it diagnoses, treats, and transports patients in an emergency situation. Notably, the Fire Rescue’s policies, manuals, and protocols, which paramedics are mandated to follow, serve as evidence of the applicable standard of care. Therefore, pursuant to the enactment of section 768.28, Florida Statutes, like a private actor, the County may also be held liable to a patient for any negligent conduct in the instant situation.

Although we conclude that the Fire Rescue assumes a duty of care when it obtains control of a patient in an emergency situation, we find that in this case, the duty owed to Ida Franco was not breached. Here, our stage of review is limited to the facts in the record construed in the light most favorable to the plaintiff. After a careful review of the record, we find that no dispute of material fact exists as to whether the paramedics failed to follow Fire Rescue’s protocol or whether Doctors’ Hospital was the closest appropriate facility to treat Ida Franco. Lieutenant Olivera’s testimony that his evaluation of Ida Franco deemed her “critical” and “unstable” is uncontested. Additionally, it is undisputed that Lieutenant Olivera transported Ida Franco to the closest appropriate hospital pursuant to the hospital capability chart. Clearly, Lieutenant Olivera cannot be faulted for adhering to the Fire Rescue’s protocol, which determines the closest appropriate hospital for a critical and unstable patient suffering from cardiac arrest. There are no genuine issues of material fact as to whether Fire Rescue provided Ida Franco with medical care that comports with the applicable standard of care, as evidenced by the protocol. Therefore, we find that in this case, the lack of a breach of the applicable duty of care renders an independent sovereign immunity analysis unnecessary. Accordingly, we affirm the order granting the County summary judgment.

Affirmed.

FLETCHER, J., concurs.

SCHWARTZ, Senior Judge

(specially concurring).

Without reaching the issue of the existence of a cognizable duty, I concur in affirmance because of my agreement with the conclusion that, as a matter of law, there was no breach.

      . It is undisputed that Doctors' Hospital is approximately a mile and a half closer than South Miami Hospital to Ida Franco's home.

      . The Emergency Medical Services Division of the County is responsible for coordinating the medical care strategies and rescue activities for operational units of the Fire Rescue. The hospital capability chart is one of the guidelines authored by the Emergency Medical Services Division and is used by paramedics in the field.

      . The plaintiff also initiated suit against Doctors’ Hospital and the treating physicians in the emergency room.


author: SUAREZ, J.

text:
    Michael Lashawn WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2850.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 30, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore and Linda S. Katz, Assistant Attorneys General, for ap-pellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The defendant asserts that he should receive a new trial because the State referred to evidence in its opening statement that it never introduced at trial, and because admission of the victim’s dying declaration violated his right to confront the witness testifying against him. We affirm the conviction and sentence.

The defendant was charged with the shotgun murder of his sister’s ex-boyfriend. The victim and the defendant’s sister, Nicole, had dated and lived together for several years. They fought and Nicole moved out. The victim came to the school where Nicole worked, the two had an argument, and the victim took Nicole’s purse. Nicole was upset because the purse contained keys, and a friend drove Nicole from work to her brother’s house to pick up an extra set of car keys. That evening, a man who witnesses identified as the defendant, carrying a shotgun, waited for the victim outside the victim’s duplex. He left for approximately fifteen minutes, and then returned with Nicole’s keychain. He let himself into the victim’s duplex, brought the victim outside, and eventually shot the victim in the abdomen with the shotgun. The victim came back into the duplex and locked the door. The defendant kicked down the door, followed the victim into the duplex, and exited carrying a black bag. He left the scene on foot. Neighbors and police arrived on the scene within two minutes of the shooting to find the victim bleeding, screaming, and trying to push his intestines back into his abdomen. He told bystanders and the police that his girlfriend’s brother Mike had shot him. He died at the hospital a few hours later.

First, the defendant argues that his motion for mistrial should have been granted because the State’s opening statement contained information attributable to Nicole that was not proven at trial. In an opening statement, “[t]he prosecuting attorney may outline the facts which he, in good faith, expects to prove and which are competent for him to prove.” Paul v. State, 209 So.2d 464, 464 (Fla. 3d DCA 1968).

Here, the prosecutor laid out the facts that the State expected to present at trial. This included testimony that it stated would come from Nicole. Prior to trial the State had met with and interviewed Nicole. She gave the State - her cellular phone number and promised to appear at trial. She then failed to appear. There has been no suggestion that the prosecutor acted in bad faith by outlining Nicole’s expected testimony in the State’s opening statement. Ricardo v. State, 481 So.2d 1296 (Fla. 3d DCA 1986). Even though Nicole failed to testify, the evidence that the State claimed in opening would be elicited through Nicole was either introduced by the State through other witnesses at trial or was irrelevant or tangential. Therefore, the objected-to portion of the opening statement was harmless beyond a reasonable doubt. Occhicone v. State, 570 So.2d 902 (Fla.1990) (trial court did not abuse its discretion by referring briefly in opening statement to doctor expected to testify who ended up not being called); Williams v. State, 865 So.2d 17 (Fla. 4th DCA 2003) (statement in opening regarding children being removed from home harmless in light of uncontested testimony to this effect); Ricardo v. State, 481 So.2d 1296 (Fla. 3d DCA 1986) (no error where prosecutor referred to facts contained in a report that had the possibility of being introduced into evidence); Travieso v. State, 480 So.2d 100 (Fla. 4th DCA 1985) (state’s reference to a potential witness in opening statement as though he was going to testify at trial, who ended up not testifying at trial, was not error).

Next, the defendant argues that the victim’s statements to police and to witnesses identifying him as the shooter violated the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As a general matter, statements made in response to a police interrogation are defined as “testimonial,” and are inadmissible because they violate the Confrontation Clause. U.S. Const. Amend. VI; see Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (specifically including police interrogations as testimonial statements); State v. Hosty, 944 So.2d 255 (Fla.2006). (holding that mentally impaired victim’s statements to police officers were testimonial and therefore inadmissible under Crawford). However, Crawford acknowledges that dying declarations have been the “one deviation” to the rule excluding testimonial statements in criminal cases, and that the exception may remain valid post -Crawford:

The existence of [the dying declaration] exception as a general rule of criminal hearsay law cannot be disputed.... Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.... We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui gener-is.

Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354 (internal citations omitted).

Several state and federal courts addressing this issue have found that the dying declaration exception to the hearsay rule has survived Crawford. See State v. Martin, 695 N.W.2d 578 (Minn.2005) (admission of a dying declaration into evidence does not violate the defendant’s confrontation rights because such an exception existed at common law and was not repudiated by the Sixth Amendment); People v. Monterroso, 34 Cal.4th 743, 22 Cal.Rptr.3d 1, 101 P.3d 956 (2004) (finding that the dying declaration exception does not conflict with Crawford). Cf. United States v. Jordan, No. 04-CR-229-B, 2005 WL 513501 (D.Colo. Mar. 3, 2005) (holding inadmissible the victim’s trauma room statements to police identifying the defendant as the person who stabbed him under the dying declaration exception, excited utterance exception, and forfeiture by wrongdoing doctrine).

The Supreme Court also expressly accepted the doctrine of forfeiture by wrongdoing, which “extinguishes confrontation claims on essentially equitable grounds.... ” Crawford, 541 U.S. at 62, 124 S.Ct. 1354; see 28 U.S.C. 804(b)(6) (Federal Rules of Evidence forfeiture by wrongdoing provision making admissible “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness”); see also United States v. Mayhew, 380 F.Supp.2d 961 (S.D.Ohio 2005) (rejecting argument that dying declarations are an exception to the Confrontation Clause, but admitting victim’s audiotaped statement under the forfeiture by wrongdoing doctrine). The Florida Evidence Code does not contain language that directly mirrors the Federal Evidence Code’s forfeiture by wrongdoing provision. However, Florida law does acknowledge that a party’s wrongdoing may constitute waiver under certain circumstances. See Ellison v. State, 349 So.2d 731, 732 (Fla. 3d DCA 1977) (in the context of invited error, acknowledging that “[cjonstitutional rights may be waived just as other rights may be waived; a criminal defendant may, by his conduct, make otherwise constitutionally inadmissible evidence admissible for certain purposes”); see People v. Melchor, 362 Ill.App.3d 335, 299 Ill.Dec. 8, 841 N.E.2d 420 (2005) (although no Illinois case had adopted Federal Rule of Evidence 804(b)(6), holding that the doctrine of forfeiture by wrongdoing should be part of Illinois law based on public policy considerations), app. allowed, 218 Ill.2d 551, 303 Ill.Dec. 6, 850 N.E.2d 811 (Ill.2006).

In the instant case, the victim identified the defendant as the man who shot him in response to police questioning minutes after he was shot, as he lay bleeding and was attempting to push his intestines back into his body. The responding officer questioned the victim immediately, rather than following procedure and waiting for an investigator to arrive, because the victim was very gravely injured and appeared to be dying. Although we find the federal and state opinions retaining the dying declaration exception to be persuasive, we need not decide here whether the victim’s statements were “testimonial” under Crawford, or whether the dying declaration exception passes constitutional muster. The outcome of the instant case is not dependent upon whether the victim’s statements were “testimonial” or admissible as a dying declaration. The victim’s statements to the police in the instant case are cumulative to his statements made to lay witnesses identifying the defendant as the shooter. These statements are non-testimonial and admissible under Crawford as dying declarations. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (“Where nontes-timonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether”); Soles v. State, 97 Fla. 61, 119 So. 791 (1929) (holding admissible as a dying declaration a boy’s statement to his father identifying the shooter twenty to twenty-five minutes after he was shot in the head). Therefore, even if the victim’s statements to the police are inadmissible under Crawford, the evidence is cumulative and any error is harmless beyond a reasonable doubt. Lee v. State, 869 So.2d 1251 (Fla. 3d DCA 2004) (admission of hearsay was harmless beyond a reasonable doubt where it was cumulative of other evidence).

Affirmed.


author: GROSS, J.

text:
    MOLINOS DEL S.A., Desarrollo Industrial Bioacuatico S.A., Aquamar, S.A. Emelorsa-Empacadora El Oro S.A., and Industrial y Agricola 44, S.A., Appellants, v. E.I. DUPONT DE NEMOURS AND COMPANY, Appellee.
    No. 4D06-20.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 22, 2007.

      Joel S. Perwin of Joel S. Perwin, P.A., Miami, Robert J. McKee and Kelly B. Gelb of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauderdale, and Scott Mager of Mager Law Group, P.A., Fort Lauderdale, for appellants.
    Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, and Daniel F. Molony and David S. Johnson of Shook, Hardy & Bacon, L.L.P., Tampa, for appellee.
   GROSS, J.

Molinos Del S.A., Desarrollo Industrial Bioacuatico S.A. (Dibsa), and Aquamar, S.A. Emelorsa-Empaeadora El Oro S.A. (Aquamar), appeal the denial of their motions for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b), based on newly discovered evidence. The circuit court denied the motions because they were filed more than one year after the entry of two final judgments in appellants’ favor. In earlier appeals, this court reversed both judgments and directed that judgments be entered in favor of DuPont, the defendant.

We reverse the circuit court’s denial of appellants’ Rule 1.540(b) motions, holding that the one-year time limit under the rule begins to run from the time the circuit court entered new judgments in compliance with our mandates, and not from the time of the original judgments.

Appellants own shrimp farms in Ecuador. In 1998, appellants each brought a lawsuit against DuPont involving Benlate, a fungicide manufactured and sold by DuPont and used in banana farms near appellants’ properties.

Aquamar and Dibsa’s cases went to jury trial. Dibsa’s ease resulted in a final judgment of $14,315,599.17 rendered on February 16, 2001. Aquamar secured a final judgment of $12,335,475 rendered on April 19, 2001. DuPont appealed both judgments.

While the appeals were pending, Dibsa and Aquamar learned that DuPont may have concealed information during discovery. Shortly after rendition of the Dibsa final judgment and return of the Aquamar verdict, plaintiffs’ counsel obtained two DuPont interoffice memoranda, referred to as the Coombs and Nickle memos, which discussed the potential impact of an aquatic monitoring study. Plaintiffs counsel then filed a Freedom of Information Request with the Environmental Protection Agency seeking studies referenced in the Coombs and Nickle memoranda. The EPA sent plaintiffs counsel an aquatic monitoring report in mid-June 2001, which documented certain environmental effects of Benlate run-off.

Over 17 months after receiving the aquatic monitoring report from the EPA, and after this court heard oral argument in the Dibsa case, Dibsa and Aquamar filed motions for sanctions in the trial court, seeking to strike DuPont’s pleadings for alleged discovery violations. Appellants claimed that DuPont’s conduct had adversely affected them by reducing their damages and compromising the record. DuPont’s response argued, among other things, that the trial court lacked jurisdiction to consider the motions because of the pending appeals.

The trial court declined to consider the sanctions motions because it lacked jurisdiction. Later, Dibsa and Aquamar moved this court to relinquish jurisdiction to permit the trial court to “determine whether sanctions, (including striking DuPont’s pleadings) should be imposed upon DuPont for discovery violations.” Dibsa and Aqua-mar told this court that the sanctions should “includfe] the possibility of vacating the Plaintiffs judgment[s] in order to strike DuPont’s pleadings and retry the cases on damages alone.” Dibsa and Aquamar also asked this court to withhold “the issuance of any opinion in either [Dib-sa or Aquamar to] allow the trial court to address the prejudice of DuPont’s discovery violations on the already completed trials, and consider an appropriate remedy.” This court denied both motions. After the trial court entered an order in other Benlate cases finding that the plaintiffs were entitled to sanctions for discovery violations, Dibsa and Aquamar filed renewed motions to relinquish jurisdiction, which we also denied.

Ultimately, this court reversed both the Aquamar and Dibsa judgments. See E.I. DuPont De Nemours & Co. v. Desarrollo Indus. Bioacuatico, S.A., 857 So.2d 925 (Fla. 4th DCA 2003), review denied, 869 So.2d 538 (Fla.2004); E.I. DuPont de Nemours & Co. v. Aquamar S.A, 881 So.2d 1 (Fla. 4th DCA 2004), cert. denied, 543 U.S. 1177, 125 S.Ct. 1335, 161 L.Ed.2d 162 (2005). The mandate in Dibsa issued on December 5, 2003; the mandate in Aquamar issued on October 4, 2004. The circuit court entered final judgments on February 11, 2005 in both cases consistent with this court’s mandate.

Shortly after the Aquamar decision, on October 19, 2004, Dibsa and Aqua-mar each filed a motion for relief from judgment under Rule 1.540(b)(2), based on essentially the same facts that formed the basis for their motions for sanctions previously filed in the trial court. The timeliness of these motions is at issue in this appeal.

The circuit court denied appellants’ Rule 1.540(b) motions as untimely, because they had not been filed within one year of the entry of the original, 2001 final judgments.

A basic principle under the rules of civil procedure is that litigation must be brought to an end. “The doctrine of deci-sional finality provides that there must be a ‘terminal point in every proceeding ... at which the parties and the public may rely on a decision as being final and dis-positive of the rights and issues involved therein.’ ” Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla.2001) (citing Austin Tupler Trucking Inc. v. Hawkins, 377 So.2d 679, 681 (Fla.1979)).

As an exception to the rule of finality, Rule 1.540(b) gives the trial court jurisdiction to relieve a party from a final judgment in a narrow range of circumstances. See Bane v. Bane, 775 So.2d 938, 941 (Fla.2000); see also Abram v. Wolicki, 864 So.2d 18, 20 (Fla. 4th DCA 2003) (stating that rule 1.540(b) provides relief from judgment only “under a limited set of circumstances”); Am. Fire & Cas. Co. v. Dawson, 400 So.2d 849, 849 n. 1 (Fla. 2d DCA 1981) (holding that an order is final unless it falls strictly under an exception in 1.540(b)). Like its counterpart, Federal Rule 60, Rule 1.540(b) allows a court “to strike the proper balance between two often conflicting principles — that litigation must be brought to a final close and that justice must be done.” Federal Practice and Procedure, Civil Rules, 2006 Quick Reference Guide, Commentary on Rule 60, p. 939; see Kippy Corp. v. Colburn, 177 So.2d 193, 196 (Fla.1965); Pruitt v. Brock, 437 So.2d 768, 772 (Fla. 1st DCA 1983).

Rule 1.540(b) provides that “the court may relieve a party ... from a final judgment” and, for the grounds at issue in this case, “[t]he motion shall be filed within a reasonable time and ... not more than 1 year after the judgment ... was entered.” Generally, the time for filing Rule 1.540(b)(2) and (b)(3) motions begins to run from entry of a final judgment, not from resolution of an appeal from judgment. See In re Guardianship of Schiavo, 792 So.2d 551, 558 (Fla. 2d DCA 2001); see also Marco Tech. Corp. v. Reynolds, 520 So.2d 63, 65 (Fla. 4th DCA 1988). The pendency of an appeal does not extend the one-year limit for filing a Rule 1.540(b) motion. See, e.g., Weiss v. Berkett, 907 So.2d 1181, 1183 (Fla. 3d DCA 2005); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 n. 1 (Fla. 4th DCA 1994).

Like the parties, we have found no Florida case factually on point, where a party that obtained a favorable judgment in the trial court discovered the grounds to set it aside while the judgment was on appeal. We therefore look to federal law under Rule 60. Identical to Florida, federal precedent holds that “the pendency of an appeal does not extend the one-year limit” for filing a Rule 60 motion. Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal PRACTICE and Procedure (2d ed. 1996) § 2866, n. 17. However, “if the appeal should result in a substantive change in the judgment,” the time [for filing a Rule 60] motion would run from the entry of the new judgment entered on mandate of the appellate court.” Id.; see Berwick Grain Co. v. Illinois Dept. of Agric., 189 F.3d 556, 559 (7th Cir.1999) (wherein the court indicated that it was “willing to assume that, with respect to Rule 60(b)(1), a new, one-year period is triggered by an appellate ruling that substantially alters a district court’s judgment”); Gegenheimer v. Galan, 920 F.2d 307, 310 (5th Cir.1991). A “substantive change” in a judgment occurs when the appellate court “ ‘has disturbed or revised legal rights and obligations which, by [the] prior judgment, had been plainly and properly settled with finality.’ ” Simon v. Navon, 116 F.3d 1, 3 (1st Cir.1997) (quoting FTC v. Minn.-Honeywell Regulator Co., 344 U.S. 206, 212, 73 S.Ct. 245, 97 L.Ed. 245 (1952)).

Without delineating the parameters of a “substantive change” in a judgment on appeal, we can say that such a change occurred here. The appeals effected the most substantive of changes in the Dibsa and Aquamar judgments — it reversed them and directed that judgments be entered in favor of DuPont. The time for appellants to file their Rule 1.540(b) motions thus ran from February 11, 2005, the date the new judgments were entered in compliance with this court’s mandates. The Rule 1.540(b) motions were therefore timely filed. This result is consistent with the language of the rule — the “judgments” from which appellants sought relief were those entered after DuPont’s successful appeals.

We reverse the circuit court’s order denying the Rule 1.540(b) motions for untimeliness. Nothing in this opinion forecloses the trial court from considering the motions on their merits or ruling on whether the motions were brought within a “reasonable time” within the meaning of the rule.

Reversed and Remanded.

HAZOURI, J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . Federal Rule 60(b) provides in pertinent part:
      On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
      The federal rule is substantially the same as Rule 1.540(b).