text:
    Julio PONCE and Alejandra Ponce, his wife, Appellants, v. U-HAUL CO. OF FLORIDA and Robert Freelove, Appellees.
    No. 4D06-4570.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Andrew Seiden of Seiden Alder & Mat-thewman, PA, Boca Raton, and Philip D. Parrish of Philip D. Parrish, P.A., Miami, for appellants.
    Charles M-P George, Mitchell L. Lun-deen, and Sharon R. Ellis, Coral Gables, for appellees.
   ON MOTION FOR REHEARING

STONE, J.

We deny Appellees’ motion for rehearing, but withdraw the opinion of January 23, 2008, and substitute the following in its place.

We reverse an order that granted U-Haul’s motion to compel settlement. Ponce asserts that his attorney’s authority to negotiate settlement did not include the power to file a formal proposal for settlement without the client’s knowledge. We agree.

Ponce was seriously injured in an automobile accident involving a vehicle owned by U-Haul. Ponce hired attorney Ginz-berg to represent him and signed a form authorizing Ginzberg to:

Negotiate settlement, sign on my behalf, any and all documents required to settle my pending personal injury/litigation/workman’s compensation cases including but not limited to: general release, stipulation of settlement; release of claim, settlement drafts, check or any and all documents required for the settlement of my case, whatsoever in nature;
hereby giving and granting unto DAVID P. GINZBERG, ESSQUIRE, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done regarding my personal injury case/worker’s compensation case pending with this office to all intents and purposes, as I might or could do if personally present, hereby ratifying and confirming all that DAVID P. GINZBERG, ESQUIRE, shall lawfully do or cause to be done by virtue here of.

In the course of litigation, U-Haul filed an offer of judgment and Ginzberg then filed a “Plaintiffs Offer of Judgment/Proposal for Settlement” in accordance with section 768.79, Florida Statutes, and Rule 1.442, Florida Rules of Civil Procedure. In the meantime, the Ponces discharged Ginzberg and hired another attorney. U-Haul accepted the offer. Immediately thereafter, Ginzberg advised U-Haul that its offer was rejected by his former client.

In his deposition, Ginzberg testified that when he filed the proposal for settlement, he believed that he had permission to do so based on his “extensive conversations and discussions with [the Ponces] throughout the course of [Ginzberg’s] representation of them both.” When asked during his deposition whether he discussed specific settlement proposals with the Ponces, Ginzberg replied:

Sure. I mean, throughout the case we discussed these types of issues.
Q. Did Mr. Ponce give you permission to file a proposal for settlement?
A. It’s my understanding that he did. Q. Was that before or after you received U-Haul’s proposal for settlement?
A. It’s my understanding, as I said, we had these discussions well before any proposal for settlement was ever filed.

In Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977), this court established the following rules to enforce a settlement offer:

(1) A party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party....
(2) The mere employment of an attorney does not of itself give the attorney the implied or apparent authority to compromise his client’s cause of action ....
(3) An exception to the general rule is a situation in which the attorney is confronted with an emergency which requires prompt action to protect his client’s interest and consultation with the client is impossible....
(4) A client may give his attorney special or express authority to compromise or settle his cause of action, but such authority must be clear and unequivocal. ...
(5) An unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client....

Sosnick v. McManus, 815 So.2d 759, 762-63 (Fla. 4th DCA 2002) (quoting Nehleber, 345 So.2d at 823).

Referring to the “clear and unequivocal” grant of special or express authority, the Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796, 797 (Fla. 1st DCA 1985) court recognized that “Florida courts have applied a strict standard of proof’ in determining whether a client authorized the attorney to settle the client’s claim. An attorney’s good faith belief that the attorney had authority to settle is insufficient. Cibula v. Ross, 597 So.2d 915 (Fla. 4th DCA 1992); Dixie Operating Co. v. Exxon Co., 493 So.2d 61, 63 (Fla. 1st DCA 1986). We further recognized, in Bursten v. Green, 172 So.2d 472 (Fla. 2d DCA 1965), that a contract giving the attorney the right “to negotiate settlement” failed to “clearly and unequivocally authorize [the attorney] to enter into a binding settlement agreement without the client’s consent.”

Notwithstanding the language in the form signed by the client, the record lacks evidence of Ponces’ clear and unequivocal grant of authority to Ginzberg to file this settlement proposal. The Ponces emphasize that Ginzberg merely had authority to negotiate. Ginzberg’s statements reflect his “understanding” of his authority, but nowhere does he assert that his clients authorized a $95,000 offer or even that they were advised or knew he was making the offer. The trial court found Mrs. Ponce’s testimony not credible as to whether she retained Ginzberg. The court did not state whether the Ponces’ testimony was credible regarding their allegation that Ginzberg had no authorization, except any flowing from the document, to file this proposal. Further, although we recognize that the trial court remains the judge of credibility, nowhere in this record is there a clear and unequivocal grant of authority to settle and to make this binding proposal. We do not deem the form document signed at the time counsel is retained as, in and of itself, sufficient to that end. We note that this is not a circumstance where a power is signed because a client is incapacitated or unavailable, or where there is an ongoing relationship or other explanation for a broad power of attorney being given at the time of retention.

Because U-Haul failed to meet its burden to prove that Ginzberg had a clear and unequivocal grant of authority from the Ponces to file a proposal for settlement, we are required to reverse. See, e.g., Sharick v. Se. Univ. of the Health Scis., Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004) (reversing where the trial court “did not resolve the [dispositive] authorization dispute ... and ... the record demonstrates no clear and unequivocal grant of authority to the attorney”).

As to the other issues raised, we find no reversible error or abuse of discretion. We remand for further proceedings.

POLEN and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M.D., mother of C.D. and B.D., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-5021.
    District Court of Appeal of Florida, First District.
    April 17, 2008.
    James R. Goff of Northwest Florida Legal Services, Inc., Pensacola, for Appellant.
    Katie George and Eric D. Schurger, Assistant Circuit Legal Counsel of Department of Children and Families, Pensacola, and Annette Lizardo of Florida Statewide Guardian Ad Litem Office, Orlando.
   PER CURIAM.

Appellant M.D. seeks review of an order terminating her parental rights to C.D. and B.D. pursuant to section 39.806(l)(c) and (i), Florida Statutes (2006). Appellant argues the Department of Children and Families failed to prove her continued involvement would harm the children. Under the relevant case law, appellant is correct. See Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 610 (Fla.2004); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222-24 (Fla. 1st DCA 2004). REVERSED and REMANDED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


author: MONACO, J.

text:
    Robert Lee EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-329.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2008.

      Robert L. Evans, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Robert Lee Evans, appeals the summary denial of his rule 3.850 motion alleging ineffective assistance of his trial counsel. While we affirm the denial on all of the grounds asserted except one, we do remand for further proceedings on the issue of vindictive sentencing.

Mr. Evans was convicted by a jury of the second degree murder of his wife, Nicole, by use of a firearm, and was sentenced to life in prison with a minimum mandatory term of 25 years. His plenary appeal was affirmed per curiam in Evans v. State, 944 So.2d 484 (Fla. 5th DCA 2006).

Among the claims made by Mr. Evans in his 3.850 motion was that his counsel was ineffective in not objecting to the purportedly vindictive sentencing he received. He alleges that the trial court injected itself into the plea negotiations between Mr. Evans and the State, and then imposed a harsher sentence than that offered. The trial court denied this motion and in support of its ruling attached part of the transcript of a colloquy between the court and Mr. Evans prior to trial. The trial judge said, in part, during the exchange:

You don’t want to take 30 years that has been offered by the State? I guess the State has withdrawn it, but if I give you this one shot to take the 30 years — you are looking at life in prison if you are convicted as charged.

Although Mr. Evans thought about the court’s proposal, he rejected it. Immediately before trial the court remade the offer of a thirty-year prison sentence in exchange for a guilty plea, but it was again rejected. After Mr. Evans was convicted by the jury the court sentenced him to life in prison, with a 25-year minimum mandatory requirement. Nothing in the record provided to us, however, explains the reason for the increased sentence above that which was offered.

The trial court in denying the 3.850 motion on this ground held that the issue of vindictive sentencing should have been raised on direct appeal and was, therefore, not cognizable under this rule. The case law does not appear to bear this out. We have previously considered, and granted relief in cases in which the failure of counsel to object to a potentially vindictive sentence under rule 3.850 was raised. See, e.g., Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003). Likewise, in Bouno v. State, 900 So.2d 672 (Fla. 5th DCA 2005), review denied, 925 So.2d 1029 (Fla. 2006), we held that the failure to object to a vindictive sentence could not be raised by a motion pursuant to rule 3.800, but noted that we had previously considered that issue in the same case in an appeal from a denied 3.850 motion. Finally, our sister court in the third district has specifically held that a vindictive sentencing claim may be considered under rule 3.850, but cannot be considered under rule 3.800. See Debuisson v. State, 947 So.2d 531 (Fla. 3d DCA 2006); see also St. Pierre v. State, 966 So.2d 972 (Fla. 2d DCA 2007); Wright v. State, 891 So.2d 618 (Fla. 3d DCA 2005), review denied, 925 So.2d 1032 (Fla.2006); Nowells v. State, 840 So.2d 415 (Fla. 3d DCA 2003), review denied, 898 So.2d 938 (Fla.2005). Mr. Evans, therefore, properly sought post-conviction relief under rule 3.850 for this claim.

If a court inserts itself into plea negotiations, and if a harsher than offered sentence is meted out after the rejection of the bargain, a determination must be made regarding whether there is a reasonable likelihood that the harsher sentence was vindictive. See Wilson v. State, 845 So.2d 142 (Fla.2003). In Wilson, the Florida Supreme Court declined to adopt a presumption of vindictiveness to be applied in all cases in which a judge participates in failed plea negotiations, and then sentences the defendant more severely than the sentence contemplated. Instead, the high court concluded that a totality of circumstances analysis is more appropriate. See also Vondervor v. State, 847 So.2d 610 (Fla. 5th DCA 2003).

The factors identified in Wilson to be considered in the totality of circumstances calculus include (1) whether the trial judge initiated the plea discussions without being requested to do so by either party; (2) whether the trial judge, through his or her comments on the record, appears to have departed from the required role as an impartial arbiter either by urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as whether the defendant exercises his or her right to go to trial; (3) whether there is a disparity between the plea offer and the ultimate sentence imposed and the quantum of that disparity; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing. See Wilson citing Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

If after analysis the totality of circumstances does not give rise to a presumption of vindictiveness, the burden remains on the defendant to prove actual vindictiveness. See Alabama, 490 U.S. at 799, 109 S.Ct. 2201. If, however, the trial judge participates in the plea negotiations beyond the extent authorized by Warner, or if the judge by his or her comments appears to have departed from the role as neutral arbiter, then these actions may give rise to a presumption of judicial vindictiveness that shifts the burden to the State to affirmatively demonstrate by evidence sufficient to dispel the presumption. See Wilson, 845 So.2d at 155.

In the present case the trial judge, who incidentally enjoys an excellent reputation for fairness, seems to have strayed into forbidden territory. He on two occasions specifically made a sentencing offer of 30 years in prison in exchange for a guilty plea, even though the State had withdrawn its offer. He then attempted to convince the defendant of the wisdom of accepting his proposal. After the trial concluded the court sentenced Mr. Evans to life in prison, with the minimum mandatory term of 25 years, but did so without explaining why he felt it appropriate to go beyond the previously offered thirty years. Although the colloquy between the court and Mr. Evans contains a number of disclaimers, the presumption, when viewed in light of the totality of circumstances, was clearly implicated.

The response by the State to this court’s order to show cause was of little benefit. It suggests, among other things, that Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004), supports its position that Mr. Evans was required to seek rule 3.800 relief before he could show prejudice from his counsel’s failure to object. In addition to being contrary to Davis, Bourn, Debuis-son and Nowells, the State’s position cannot be founded on Allende because in that case we specifically said that “We express no opinion regarding Allende’s ability to raise the alleged vindictive sentencing error in appropriate post-conviction proceedings.” See Allende, 882 So.2d at 473 n. 3.

Accordingly, we reverse that part of the trial court’s order denying Mr. Evans claim for post-conviction relief based on the assertion of vindictive sentencing, and as required by Wilson, remand for resen-tencing of Mr. Evans before a different judge. We affirm the trial court’s order in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . See State v. Warner, 762 So.2d 507 (Fla.2000).

      . Id.


author: EVANDER, J.

text:
    FRANKLIN POND, INC., and Tom Dougherty, etc., Appellant, v. Alan T. RICCI and Paula M. Ricci, Appellees.
    No. 5D07-3192.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2008.

      Fred A. Morrison, of McLin, Burnsed, Leesburg, for Appellant.
    William N. Asma, of William N. Asma, P.A., Winter Garden, for Appellee.
   EVANDER, J.

This is an appeal from the involuntary dismissal of a suit for specific performance of a real estate contract. The trial court dismissed the case at the close of the plaintiffs’ evidence finding that the plaintiffs/purchasers had failed to present sufficient evidence to establish a written contract between the purported parties based on a meeting of the minds as to all terms. We affirm.

Attorney Tom Dougherty was the plaintiffs’ only witness who testified as to the negotiations and subsequent execution of the purported contract. Mr. Dougherty was the attorney for his mother, Kathleen Dougherty, and his fiancée’s solely-owned corporation, Franklin Pond, Inc. He testified that Kathleen Dougherty and Franklin Pond, Inc., had funds available from the first part of a § 1031 tax-deferred exchange. According to Mr. Dougherty, in a § 1031 exchange, property is sold and the proceeds are placed in escrow with a “qualified intermediary.” The intermediary holds the funds until the seller identifies a parcel of replacement property, at which time the funds are used to acquire the replacement property and the taxable gain from the first sale is sheltered by reinvestment into the second parcel. The time within which a replacement property must be identified and acquired is limited by the Internal Revenue Code.

Mr. Dougherty had engaged in prior business transactions with Alan and Paula Ricci. He was aware that the Riccis were attempting to sell a certain seven-acre parcel of land. In early May, 2005, Mr. Dougherty advised Mr. Ricci that he was “looking for 1031 property for my mother and Franklin Pond.” On May 12, 2005, at approximately 2:30 p.m., Mr. Ricci arrived unexpectedly at Mr. Dougherty’s office. Mr. Ricci presented Mr. Dougherty with a proposed contract to sell the subject parcel for 1.5 million dollars. The proposed contract had been executed by Mr. and Mrs. Ricci. Mr. Dougherty was leaving for the airport at 4:00 p.m. that day, but decided to try to reach an agreement before his departure. Mr. Dougherty reviewed the proposed contract and then made several changes to the document. Mr. Ricci inserted the names of Franklin Pond, Inc. and Kathleen Dougherty as the prospective purchasers. The required deposit was reduced from $150,000 to $20,000. (An additional $130,000 was to be paid at closing, while the balance was to be paid over time with the sellers holding the first mortgage.) Additionally, the right of the Riccis to lease-back a portion of the subject parcel and the cost for doing so was modified. Mr. Dougherty and Mr. Ricci “signed off’ on the various changes. Significantly, there was no evidence that Mrs. Ricci ever agreed to the changes or was even made aware of them.

Mr. Dougherty signed the purported contract on behalf of Kathleen Dougherty and Franklin Pond, Inc. He testified that he had been “engaged to represent them in the 1031” and that he had authority to act on their behalf. However, no evidence was presented that either Kathleen Dougherty or Franklin Pond, Inc., had ever expressly authorized Mr. Dougherty to execute the purported contract on their behalf. Indeed, there was no evidence that Kathleen Dougherty or Franklin Pond, Inc.’s sole shareholder were ever made aware that Mr. Dougherty was negotiating to purchase the subject real property on their behalf. Mr. Dougherty further acknowledged that there were no written documents authorizing him to execute any purchase contracts on behalf of Kathleen Dougherty or Franklin Pond, Inc.

After Mr. Dougherty and Mr. Ricci had initialed the changes to the purported contract, Dougherty arranged for the $20,000 deposit to be paid by the qualified intermediary to Mr. Ricci. The purported contract provided for a closing date of May 18, 2005 — -a mere six days later. Furthermore, the document included a “time is of the essence” provision.

On May 17th, Mr. Dougherty learned of a title defect. Specifically, the deed given to the Riccis by the prior owners had a ten-foot error in the legal description. Notwithstanding various communications between Mr. Dougherty and Mr. Ricci, this title defect was never cured. No title commitment was ever delivered and no closing took place. Eventually, the $20,000 deposit was returned to Mr. Dougherty.

In April, 2007, Kathleen Dougherty and Franklin Pond, Inc. filed their suit for specific performance. Ms. Dougherty subsequently assigned her interest in the purported contract to her son and he was substituted as a plaintiff. We find no error in the trial court’s dismissal of the plaintiffs’ action.

First, the evidence was insufficient to establish that Mrs. Ricci had ever agreed to the terms of the purported contract. Mrs. Ricci had executed the original proposed contract. The changes made by Mr. Dougherty to the proposed contract constituted a counteroffer. Montgomery v. English, 902 So.2d 836 (Fla. 5th DCA 2005). There was no evidence that Mrs. Ricci accepted the counteroffer. We reject the plaintiffs’ argument that Mr. Ricci had the apparent authority to act on behalf of Mrs. Ricci as reflected by his delivery to Mr. Dougherty of a proposed contract signed by Mrs. Ricci. Mrs. Ric-ci’s execution of the original proposed contract reflected that she agreed to be bound by the terms of that proposed contract. The fact that Mr. Ricci hand-carried the original proposed contract to Mr. Dough-erty is clearly insufficient to establish that Mrs. Ricci had authorized Mr. Ricci to agree to materially different terms on her behalf. We also reject the plaintiffs’ contention that the evidence was sufficient to establish that Mrs. Ricci had ratified the purported contract. As noted previously, there was no evidence that Mrs. Ricci was even aware of the changes made to the document that she had executed.

Second, the evidence was insufficient to establish that Mr. Dougherty had the authority to execute a purchase contract on behalf of Kathleen Dougherty and Franklin Pond, Inc. Mr. Dougherty testified that he had been engaged to represent Kathleen Dougherty and Franklin Pond, Inc. in a § 1031 exchange and that he had the authority to act on their behalf. However, an attorney has no implied authority to execute a contract for the sale or purchase of real property. Rushing v. Garrett, 375 So.2d 903 (Fla. 1st DCA 1979). Express authorization is required. Id. Here, as previously noted, there was no evidence that either Kathleen Dougherty or Franklin Pond, Inc. had expressly authorized Mr. Dougherty to execute a purchase contract on their behalf.

The trial court properly granted the Ric-cis’ motion for involuntary dismissal. The evidence presented by the plaintiffs was simply insufficient to show that Kathleen Dougherty, Franklin Pond, Inc., or Mrs. Ricci had agreed to, or were otherwise bound by, the terms set forth in the purported contract.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

      . 26 U.S.C.A. § 1031.


author: GRIFFIN, J.

text:
    Jill MARSH, Appellant, v. Robert Earl VALYOU, Jr., et al., Appellee.
    No. 5D03-188.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2008.
    John T. Stemberger, of Law Offices of John Stemberger, P.A., Orlando, and Shannon L. Akins, of Law Offices of Shannon L. Akins, Orlando, for Appellant.
    Joseph Currier Brock and Steven W. Igou, Orlando, for Appellees, Robert Earl Valyou, Jr., and Deborah A. Valyou.
    Jane H. Clark, of Clark & Pardy, P.A., Ocoee, and Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appel-lees, Thomas J. Burke and Donna E. Burke.
    E. Peyton Hodges and Robert W. Mix-son, of Cameron, Hodges, Coleman La-Pointe & Wright, P.A., Orlando, for Appel-lee, PV Holding Corp.
   ON REMAND

GRIFFIN, J.

We have this case after our prior decision was quashed by the Florida Supreme Court. Marsh v. Valyou, 977 So.2d 543 (Fla.2007). Based upon the Supreme Court’s decision, we reverse the appealed summary final judgment and remand for further proceedings consistent with their opinion.

REVERSED and REMANDED.

PLEUS and ORFINGER, JJ., concur.


text:
    Kenneth L. ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1222.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2008.
    Kenneth L. Adams, Polk City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Kenneth L. Adams was originally charged with capital sexual battery in the circuit court for the Fifth Judicial Circuit, in Marion County, Florida, in case no. 96-1374-CF-A. Pursuant to a negotiated plea agreement, to avoid a life sentence, he entered a no contest plea to the reduced charge of attempted capital sexual battery in exchange for a thirty-year sentence of incarceration. This appeal from an order denying yet another rule 3.800(a) motion to correct an illegal sentence represents Adams’ eighth appearance in this court challenging the conviction and/or sentence entered pursuant to his negotiated plea. Following his last appearance here, we warned Adams against filing further successive, frivolous challenges to his conviction or sentence. See Adams v. State, 944 So.2d 1259 (Fla. 5th DCA 2007). After reviewing Adams’ filings on appeal from the denial of his latest successive 3.800(a) motion, and determining they too lack merit, we issued a Spencer show cause order directing Adams to demonstrate “why he should not be prohibited from filing any appeal, petition, pleading or motion pertaining to the convictions and sentences rendered in [this case], unless reviewed and signed by an attorney licensed to practice in the State of Florida.” Having carefully considered Adams’ response, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, we prohibit Kenneth L. Adams from filing with this Court any further pro se pleadings concerning Marion County, Fifth Judicial Circuit case no. 96-1374-CF-A. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2007); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

GRIFFIN, LAWSON and COHEN, JJ„ concur.

      . Although Adams' original sentence included an additional probationary period of ten years, following the thirty-year prison term, the sentence was corrected by deletion of the probationary term in accordance with our mandate in Adams v. State, 901 So.2d 275 (Fla. 5th DCA 2005).

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    GIBRALTAR DESIGN, INC., Appellant, v. COMPASS GROUP, INC., a Florida Corporation, Appellee.
    No. 1D08-0732.
    District Court of Appeal of Florida, First District.
    April 18, 2008.
    Michael Fox Orr and R. Thomas Roberts of Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Jacksonville, for Appellant.
    Arthur I. Jacobs of Jacobs & Associates, P.A., Fernandina Beach, for Appellee.
   PER CURIAM.

DISMISSED. See Henderson v. Tandem Health Care of Jacksonville, Inc., 898 So.2d 1191 (Fla. 1st DCA 2005).

BROWNING, C.J., BARFIELD, and HAWKES, JJ., concur.


text:
    C.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1112.
    District Court of Appeal of Florida, Second District.
    April 18, 2008.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   GALLEN, THOMAS M., Associate Senior Judge.

C.B. appeals the order finding that she committed battery on a law enforcement officer under section 784.07(2), Florida Statutes (2006), withholding adjudication, and placing her on probation. We reverse and remand with instructions to the trial court to enter a corrected order placing C.B. on probation for the lesser included offense of battery under section 784.03(1).

The State filed an amended delinquency petition alleging one count of battery on a law enforcement officer, one count of resisting with violence, and one count of resisting without violence. The trial court conducted a bench trial on the petition after which it granted C.B.’s motion for judgment of acquittal regarding counts two and three but denied the motion with regard to battery on a law enforcement officer. We review the denial of a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). There are no facts in dispute.

On January 16, 2007, Jane Luckett called police and advised them that her daughter C.B. had failed to appear at a scheduled Marchman Act hearing. Ch. 397, Fla. Stat. (2006). Part V of the Act provides that parents can petition for involuntary treatment for their minor children who are determined by the trial court to be substance abusers. Luckett asked that her daughter be picked up pursuant to an ex parte order which she believed the trial court had issued. Officer Quigley was dispatched and drove his patrol car to Luckett’s residence, arriving, apparently coincidentally, when C.B. was approaching the residence on foot. He made no attempt prior to approaching C.B. to verify Luckett’s information that the trial court had issued an ex parte pick-up order.

Officer Quigley testified that he arrived in a marked police cruiser and that he was wearing his uniform. He approached C.B., told her why he was there, and “attempted to detain her temporarily to investigate.” C.B. refused to stop or cooperate with Quigley, resulting in Quigley’s attempt to “physically detain” her, and he “attempted to escort her peacefully back to my vehicle.... It uh, escalated to the point where I needed to basically use a physical restraint maneuver to gain control over her.” Quigley called for backup and Officer Robinson responded to his call. Robinson was able to handcuff C.B. and both officers escorted her to Robinson’s vehicle. C.B. actively resisted throughout the process and the officers used significant measures, including leg restraints, to subdue her. While the officers were attempting to affix a seat belt to prevent C.B. from leaning forward, she spit on Officer Robinson several times. The spitting resulted in the conviction which is the subject of this appeal. Neither officer indicated they ever had an intention to arrest C.B. nor did they communicate to her that she was under arrest, although Officer Robinson stated that “I transported her to the police department, decided to take her away from there.... [W]e just decided to take her to the station and put her in a holding cell.”

Section 784.07(2) provides an enhancement to the offense of battery under section 784.08(1), Florida Statutes (2006), by elevating the offense to a third-degree felony. Further, section 776.051(1) provides that a “person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.” Conversely, subsection (2) provides that a “law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest is unlawful.” In Tillman v. State, 934 So.2d 1263, 1270 (Fla.2006), the court held:

Because the prohibition in section 776.051(1) applies only to the use of force to resist arrest, the provision has no application against law enforcement officers under other circumstances. The Legislature has not expressly precluded the defense of justifiable use of force against an officer in situations other than arrest. For this reason, and because the Legislature has placed the element of lawful execution of a legal duty in both sections 784.07(2) and 843.01, proof that the officer was acting lawfully is necessary in a prosecution for crimes committed under either statute that occur outside an arrest scenario.

Citing Tillman, this court, in J.H.M. v. State, 945 So.2d 642, 645 (Fla. 2d DCA 2006), provided the following guidance:

We are inclined to believe that the supreme court in Tillman may have intended to use the more formal and technical definition of “arrest” that is used for purposes such as speedy trial. As Justice Bell explained in his concurring opinion in Bulgin v. State, 912 So.2d 307 (Fla.2005):
It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is “the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime.” Cornelius, Search and Seizures, 2nd ed., Sec. 47. When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

The State argues that Officer Quig-ley was justified in making an investigatory stop, and was therefore in the lawful execution of his duty when C.B. resisted, for which the State says she was arrested, and then committed the battery on Officer Robinson who was in the lawful performance of his duty by backing up Officer Quigley. The facts in the record show C.B. was never arrested.

The criteria for making an investigatory stop are set forth in Popple v. State, 626 So.2d 185, 186 (Fla.1993):

The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151 Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

The State argues that Officer Quigley had a well-founded, articulable suspicion that C.B. had committed the “crime” of “not showing up” for a hearing under chapter 397, a civil proceeding. There is nothing in the statute to support the contention that failing to appear in a civil proceeding is a crime. If the court had actually issued an ex parte pick-up order, as reported by C.B.’s mother, then Quigley may have been justified in arresting her on the basis of that order. However, Quigley, by his own testimony, made no effort, pri- or to making contact with C.B., to verify through police sources that such an order had actually been issued, and he stated that afterwards he was not able to confirm the issuance of such an order. Further, under the facts here there were no exigent circumstances compelling an immediate apprehension of C.B. Officer Quigley could have taken sufficient time to confirm the existence of a pick-up order before making any contact with C.B. As it turned out, there was no pick-up order and hence no justification for arresting C.B.

In Tillman, 934 So.2d at 1273, the court concluded that “[t]he detention of Tillman constituted lawful execution of a legal duty only if the facts known to the officer created a reasonable suspicion either that Tillman was involved in criminal activity or that he was armed and dangerous.” Here, there is no contention that Officer Quigley had a reasonable suspicion that C.B. was engaged in criminal activity or that she was armed and dangerous. The State has provided no support for its contention that failing to appear in a civil proceeding is a crime and we know of none. Moreover, the only evidence Quigley had concerning the existence of a pick-up order was the unverified information provided by Ms. Luckett, which in fact proved untrue. We conclude that Officer Quigley had no “well-founded, articulable suspicion of criminal activity” on the part of C.B., but had only a “mere suspicion” that a pick-up order had been issued. Popple, 626 So.2d at 186. Consequently, he was not lawfully justified in making an investigatory stop of C.B. or detaining her.

Thus, when Quigley physically restrained C.B. he was not in the lawful performance of his duties, and the decision in this case is governed by Tillman and this court’s decision in J.H.M. Under those cases, if an officer is not engaged in the lawful performance of a legal duty when the defendant’s use of force occurs, the proper analysis of the judgment of acquittal depends upon whether the use of force occurred either (a) before the defendant was placed under arrest, or (b) during or after an actual arrest. See Tillman, 934 So.2d at 1269-71; 945 So.2d at 644-46. Because the record shows there was no lawful justification to detain C.B. until after she spit on Officer Robinson, the officers were not engaged in the exercise of their lawful duties when the battery occurred. Further, as in it is unlikely that this case ever became an arrest case because there is no evidence in the record that either officer ever communicated to C.B. that she was under arrest.

Reversed and remanded to the trial court with instructions to enter a corrected order placing C.B. on probation for battery under section 784.03(1).

STRINGER and SILBERMAN, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Gregory GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-444.
    District Court of Appeal of Florida, Second District.
    April 18, 2008.
   ALTENBERND, Judge.

Gregory Green appeals the denial of his postconviction motion seeking additional jail credit. We reverse and remand for further proceedings, which should be conducted on an expedited basis.

Mr. Green claims that he was in jail at all times from June 28, 2007, until August 17, 2007, pending disposition of two felony drug offenses and two misdemeanors. The circuit court believes that Mr. Green was arrested on June 28, 2007, and released on bond on June 29, 2007. The circuit court also believes that he was arrested again on July 17, 2007, and remained in jail until the charges were resolved on August 17, 2007. Thus, this matter involves a disagreement as to Mr. Green’s status between June 29 and July 17, 2007.

Mr. Green’s sworn motion claims that he was not actually released on bond by the Polk County Sheriff because the United States Marshal placed a detainer on him, claiming a violation of a term of probation that he was serving on a federal offense. The documents attached to the trial court’s order denying Mr. Green’s motion do not refute his sworn claim. The documents do reflect that appearance bonds were written on June 29 and filed with the clerk of the circuit court. However, the recommitment form prepared and dated July 17, 2007, indicates that Mr. Green could not bond out because of two holds for other charges. The documents indicate that the premiums for the bonds written on June 29, 2007, were returned to Mr. Green because he had never been released. The records from the Polk County Jail seem to support Mr. Green’s claim.

Accordingly, we reverse and remand for further proceedings. Because Mr. Green is currently scheduled to be released from prison on June 30, 2008, the circuit court shall reconsider Mr. Green’s motion on an expedited basis.

Reversed and remanded.

SILBERMAN and LaROSE, JJ„ Concur.


author: LEWIS, J.

text:
    John Randall WINNEY, Former Husband, Appellant, v. Jayme Carol WINNEY, Former Wife, Appellee.
    No. 1D07-2960.
    District Court of Appeal of Florida, First District.
    April 21, 2008.

      Corrine A. Bylund of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, for Appellant.
    William J. Dorsey, Jacksonville; and Michael J. Korn and Mary C. Coxe of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   LEWIS, J.

John Randall Winney, Appellant, seeks review of a final judgment dissolving his marriage to Jayme Carol Winney, Appel-lee. Appellant challenges the trial court’s rulings regarding primary physical residency of the parties’ minor child, child support, alimony, life insurance as security for child support, and the distribution of the parties’ assets and liabilities. We affirm the portions of the final judgment regarding primary physical residency and the award of child support without further discussion. We agree with Appellant that the trial court erred in failing to make the required factual findings to support the requirement that Appellant obtain life insurance as security for child support. However, because this error was harmless, we affirm that portion of the final judgment as well. We also agree with Appellant that the trial court reversibly erred in failing to include the required factual findings to support the alimony award and the distribution of the parties’ assets and liabilities. On the record before us, we cannot say this error was harmless. Therefore, we reverse the portions of the final judgment concerning alimony and equitable distribution and remand for entry of factual findings and further proceedings consistent with this opinion.

The basic facts regarding the parties’ history together are undisputed. Before the parties met, Appellant acquired and lived on a tract of real property in Middle-burg, Florida. He also owned some items of personal property including a mobile home, a motorcycle, a bedroom suite, and a washing machine. When the parties met, Appellee was attending stenography school with the hope of becoming a court reporter. At some point during the parties’ relationship, but before they were married, Appellee quit stenography school and began working full-time. In February 2000, Appellee moved in with Appellant. Later in 2000, a new mobile home was purchased, and the parties began to live in it. Appellant traded in his older mobile home to pay part of the price of the newer home. The parties married on July 18, 2001, and continued living in the new mobile home on Appellant’s previously-acquired real property in Middleburg, Florida. On the date of the marriage, Appellant still owed a substantial amount toward the primary mortgage on the home. The parties lived in the home together until November 2005, when Appellant filed a petition for dissolution of marriage. During the marriage, the parties had acquired various debts and items of personal property. Among the debts incurred during the marriage was an obligation to Volkswagen for a lease on a 2006 Passat and a $50,000.00 home equity line of credit. While the parties were separated, Appellee quit her full-time job and returned to stenography school while working part-time as a waitress. The remaining relevant facts are in dispute.

At trial, Appellee testified that before the parties’ marriage, she quit stenography school because Appellant would not support her and encouraged her to quit. Appellee also submitted a financial affidavit reflecting expenses that greatly exceeded her income. She requested rehabilitative alimony, arguing that Appellant had caused her to quit stenography school, that her expected career as a court reporter would benefit the parties’ minor child, and that she could not work full-time while attending school. Appellee also sought a portion of the value of the marital home as part of the equitable distribution. She testified that she and Appellant had bought the new mobile home after they had begun living together and sharing expenses. She further testified that she helped select and decorate the new mobile home and that, during the marriage, she and Appellant together made substantial improvements to the mobile home and real property. Appellee argued that the value of the home had appreciated during the marriage, due in part to the substantial improvements she and Appellant made.

Appellant contested Appellee’s request for alimony and her claims that part of the marital home was marital property. He argued that she voluntarily quit stenography school and began to work full-time before the marriage. He further argued that because Appellee had voluntarily quit her full-time job to return to school, full-time income should be imputed to her. Appellant also submitted a financial affidavit reflecting that his expenses exceeded his income. As part of his financial disclosures, Appellant produced evidence that his employer provided basic life insurance in the amount of $97,400.00 at no cost to him and that he had elected to receive supplemental life insurance in the amount of $146,000 for a cost of $5.39 per month. As to the marital home, Appellant disputed Appellee’s characterization of the changes to the home as substantial improvements. He contended that the marital home, along with any assets bought with the home equity line of credit, was his nonmarital property.

After hearing voluminous testimony regarding the contested issues of equitable distribution, alimony, and child support, the trial court entered an order with few findings related to these issues. Specifically, the trial court ordered Appellant to pay Appellee rehabilitative alimony in the amount of $300.00 per month for a period of twenty-four months, but the only finding to support this award was that Appellee “was participating in a trade school education program which was interrupted by the marriage.” The trial court also ordered Appellant to maintain a life insurance policy with death benefits in the amount of $100,000.00, as security for child support, without making any findings as to the necessity or affordability of life insurance. In devising a scheme of equitable distribution, the trial court noted that each party was awarded one-half of the net value of the marital assets and liabilities, but it did not make findings as to which assets were marital and which were non-marital. The trial court also failed to distribute all of the parties’ liabilities. Most notably, the court neglected to mention the debt to Volkswagen. After distributing some of the parties’ liabilities, the court ordered each party to be responsible for his or her “remaining personal debt, including credit card debt” but did not explain what debt was “personal” to each party. The trial court did not assign a monetary value to this debt or explain why it was considered nonmarital.

A trial court’s failure to make adequate factual findings in a final judgment of dissolution of marriage is typically reversible error because, in most circumstances, this failure precludes meaningful appellate review. See, e.g., Stalnaker v. Stalnaker, 892 So.2d 561, 563 (Fla. 1st DCA 2005); Shoffner v. Shoffner, 744 So .2d 1157, 1158 (Fla. 1st DCA 1999); Walsh v. Walsh, 600 So.2d 1222, 1223 (Fla. 1st DCA 1992). This Court has held that a trial court must make findings to address specific issues when awarding alimony, ordering a party to carry life insurance, and devising an equitable distribution scheme. Schoditsch v. Schoditsch, 888 So.2d 709, 709 (Fla. 1st DCA 2004) (addressing life insurance as security); Shoffner, 744 So.2d at 1158 (addressing alimony and equitable distribution).

The requirement that trial courts make certain findings is driven by specific statutory mandates as well as the need for a sufficient basis for appellate review. When awarding alimony, a trial court must make findings as to the recipient’s need and the obligor’s ability to pay, Walsh, 600 So.2d at 1223, and these findings must reflect a consideration of all relevant economic factors, as provided in section 61.08(2), Florida Statutes (2007). When ordering a parent to obtain life insurance as security for child support, trial courts must bear in mind that such an order is authorized only to the extent that it is necessary to protect the child support award. See § 61.13(1)(c), Fla. Stat. (2007). A trial court may not order a party to obtain life insurance without making factual findings regarding the necessity of such coverage. See Schoditsch, 888 So.2d at 709 (referencing section 61.08(3), Florida Statutes (2003), which permits a trial court to order a party to obtain life insurance as security for alimony “to the extent necessary to protect” the award). Such findings must reflect consideration of the cost and availability of such insurance. Stalnaker v. Stalnaker, 892 So.2d 561, 563 (Fla. 1st DCA 2005). The statutory requirement that a trial court justify distributions of marital assets and liabilities is more explicit. See § 61.075(3), Fla. Stat. (2007). A trial court must make written findings reflecting the following:

(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each;
(c) Identification of the marital liabilities and designation of which spouse should be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

Id. In making these findings, trial courts must bear in mind that any asset or liability acquired before the marriage is non-marital and belongs to the party who acquired it. § 61.075(5)(b)(l), Fla. Stat. (2007). Additionally, a trial court’s findings should reflect an understanding that if one party’s nonmarital property appreciates due to the efforts of either party during the marriage or the “contribution or expenditure thereon of marital funds or other forms of marital assets,” the appreciation is marital property and should be accounted for in the equitable distribution scheme. § 61.075(5)(a)2, Fla. Stat. (2007). If a trial court’s failure to include the required factual findings hampers effective appellate review, remand is necessary. Shoffner, 744 So.2d at 1158 (Fla. 1st DCA 1999); Walsh, 600 So.2d at 1228.

However, inadequate factual findings in a final judgment of dissolution of marriage sometimes constitute harmless error. See Hughes v. Hughes, 955 So .2d 1201, 1202 (Fla. 1st DCA 2007); Fulmer v. Fulmer, 961 So.2d 1081, 1088 (Fla. 1st DCA 2007) (Kahn, J. concurring). In the instant case, the trial court’s error in neglecting to include the required findings to support its order that Appellant maintain life insurance as security for child support was harmless because Appellant presented undisputed evidence that, at the time of trial, he had life insurance for more than the ordered amount. This already existing life insurance policy is sufficient to satisfy the trial court’s order, so long as Appellant names the parties’ minor child as the sole and irrevocable beneficiary thereon. In contrast, we cannot conclude, on the record before us, that the trial court’s failure to make the statutorily required factual findings regarding alimony and equitable distribution was harmless.

The parties presented conflicting evidence relevant to the alimony and equitable distribution determinations. It is unclear from the final judgment how the trial court resolved these conflicts. In particular, the final judgment does not reveal how the trial court arrived at the sum of $300.00 per month for alimony and whether the trial court considered Appellant’s ability to pay that amount. On appeal, Appellant contends that he does not have the ability to pay alimony and points to his financial affidavit for support. Of course, this Court is not in a position to reach a conclusion as to that contention. Therefore, on remand, the trial court should make findings that reflect its consideration of whether Appellee needs $300.00 per month in alimony and whether Appellant has the ability to pay that amount, consistent with the requirements of section 61.08. While the trial court is entitled to reject the representations made in Appellant’s financial affidavit, we cannot review or give effect to that rejection without adequate factual findings.

The area of the final judgment addressing equitable distribution suffers similar defects. It is unclear which assets the trial court considered marital and which assets it considered nonmarital. Similarly, the trial court failed to classify the parties’ debts as marital and nonmari-tal and altogether neglected to address the debt to Volkswagen. We cannot begin to determine whether the trial court arrived at the correct result in its distribution of assets and liabilities because the final judgment does not provide the basic starting point of determining which assets were marital and which were nonmarital. In particular, it is clear that some portion of the marital home was nonmarital property, and yet, the trial court did not designate what portion of the home’s value was a marital asset. Additionally, we note that the requirement that each party pay his or her own “personal debt” is meaningless without an accompanying classification of which debt is marital and which is nonmar-ital.

Because the trial court’s decisions concerning alimony and equitable distribution are not amenable to effective appellate review, we must remand the case for factual findings as to these issues. In all other respects, the final judgment of dissolution of marriage is affirmed. If necessary, on remand, the trial court may hear additional evidence to make the required factual findings in support of its determinations as to alimony and equitable distribution. See Shoffiier, 744 So.2d at 1157. Furthermore, in the interests of the parties and judicial economy, the chief judge of the circuit court is directed to assign this case to the trial judge who entered the final judgment for the purpose of conducting further proceedings consistent with this opinion. See id.

Appellee filed a motion for appellate attorney’s fees, and Appellant filed no response. Based on the financial information provided in the record, it appears that Appellee has a need for fees and that Appellant has an ability to pay them. However, because the ultimate determination on this issue requires a finding of fact, Appellee’s motion is provisionally granted, subject to verification at the trial level of the respective parties’ need and ability to pay. See Davis v. Davis, 584 So.2d 1117, 1117 (Fla. 1st DCA 1991). On remand, the trial court should assess what amount, if any, Appellee should receive in attorney’s fees in accordance with the rationale of Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

AFFIRMED in part, REVERSED in part, and REMANDED.

BROWNING, C.J., and HAWKES, J„ concur.

      . On appeal, Appellant does not challenge the propriety of awarding rehabilitative alimony under these circumstances. Instead, his arguments for reversal of the alimony award are focused on the fact that the trial court failed to make findings regarding Appellee’s need for alimony and his ability to pay it.

      . Appellee argues that even if the trial court used incorrect methodology to determine how to distribute the parties’ assets and liabilities, the equitable distribution scheme should be affirmed because any error was in Appellant’s favor. In advancing this argument, she asserts, among other things, that the value of the marital home appreciated by $40,000 during the marriage. Because the trial court did not make a specific finding as to the amount, if any, of appreciation, we cannot rely on the figures Appellee proposes to support a determination that the trial court arrived at the correct result.


author: BENTON, J.

text:
    CTL DISTRIBUTION, INC. and Gallagher Bassett Services, Inc., Appellants, v. Steven WOOD, Appellee.
    No. 1D07-2409.
    District Court of Appeal of Florida, First District.
    April 21, 2008.

      Kevin G. Malchow and Keef F. Owens of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.
    Raymond F. Ayres, II, Lakeland and Bill McCabe, Longwood, for Appellee.
   BENTON, J.

At issue on this appeal is a workers’ compensation claimant’s entitlement under section 440.34(3)(b), Florida Statutes (1999), to attorney’s fees at his employer’s expense, where the employer filed no pleading in response to his petition for benefits but paid all benefits then due and owing within fourteen days of the petition’s filing.

I.

Injured while working for CTL Distribution, Inc. (“CTL”), on September 24, 1999, Steven Wood sought and received permanent total disability benefits from his employer and its servicing agent, Gallagher Bassett Services, Inc. When Mr. Wood turned 65 on September 15, 2002, he became entitled to supplemental benefits as well as permanent total disability benefits. See generally Scott v. Mohawk Canoes, 730 So.2d 731, 732 (Fla. 1st DCA 1999).

Because the supplemental (but not the underlying permanent total disability) benefits went unpaid, a lawyer filed a petition for benefits seeking supplemental benefits on Mr. Wood’s behalf. Filed June 14, 2005, and received by CTL’s servicing agent two days later, the petition sought “Supplemental Permanent Total Disability benefits from 09/15/2002 as the claimant turned 65 years old on that date.” The petition did not specifically ask for disability payments to the present “and continuing” or for any other future benefits.

On June 28, 2005, CTL’s servicing agent paid Mr. Wood more than $15,000, representing all supplemental benefits ripe, due and owing at the time the petition for benefits was filed (and through July 1, 2005), together with all related penalties and interest. See Amerimark, Inc. v. Hutchinson, 882 So.2d 1114, 1115 (Fla. 1st DCA 2004) (holding payment of a claim for benefits occurs on the date that a check is placed in the mail). Mr. Wood concedes the payment made on June 28, 2005, was full payment and that no attorney’s fee is owed on account of it.

II.

The next four biweekly checks Mr. Wood received (for the period July 2, 2005, through August 26, 2005) paid him permanent total disability benefits in full, but did not include supplemental permanent total disability benefits. Not until August 31, 2005, when CTL and its servicing agent (on their own initiative) corrected the underpayments, did the checks they sent begin covering both permanent total disability and supplemental permanent total disability benefits. Regularly thereafter checks to Mr. Wood paid both permanent total disability and supplemental permanent total disability benefits in full as they came due.

On September 21, 2006, Mr. Wood’s attorney filed a petition for attorney’s fees seeking a fee for securing supplemental permanent total disability benefits. In response, CTL and its servicing agent contended claimant’s attorney was not entitled to a fee because they had timely paid all benefits that were ripe, due, and owing at the time claimant filed his June 14, 2005 petition, and did so less than 14 days after the petition was received. The ensuing underpayments in July and August of 2005 had also been remedied, they contended, more than a year before the second petition was filed on September 21, 2006.

After a hearing on claimánt’s second petition, the judge of compensation claims entered the final order under review, awarding attorney’s fees on account of the late payment of supplemental permanent total disability benefits for the period July 2, 2005, to August 26, 2005. At the hearing, the parties agreed that the servicing agent discovered and corrected the final four biweekly checks’ insufficiencies itself, without — apart from the initial June 14, 2005 petition — claimant’s counsel’s participation in any way. It is not clear from the record that Mr. Wood’s lawyer was aware of the problem before it was fixed. The order concluded, nevertheless, that the claimant was entitled to an award of attorney’s fees on the ground that “even though [CTL and its servicing agent] paid the past due supplemental benefits, they [initially] failed to continue paying the Claimant permanent total supplemental benefits thereafter.”

III.

Mr. Wood contends that the fee award should be upheld, arguing that he is entitled to have his fees paid by CTL or its servicing agent by virtue of the following statutory language:

(3) ... A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer:
(b) In any case in which the employer or carrier files a notice of denial with the division and the injured person has employed an attorney in the successful prosecution of the claim[.]

§ 440.34(3), Fla. Stat. (1999). But this statutory provision does not authorize recovery of an attorney’s fee from an employer unless the “employer or carrier files a notice of denial with the division.”

Since neither CTL nor its servicing agent filed — or can be deemed under our cases to have filed in effect — a notice of denial, the statute does not authorize a fee award. It is impossible to construe the appellants’ response to the June 14, 2005 petition for benefits as a denial of the petition: Within 14 days, they paid all benefits the petition sought that were then ripe, due and owing, thus accepting the claim. The present case bears scant resemblance to Mitchell v. Sunshine Cos., 850 So.2d 632, 633 (Fla. 1st DCA 2003), where we held that the “employer/earrier did not then accept the claim, and the failure to timely respond is treated as the procedural equivalent of a notice of denial,” that justified an award of attorney’s fees. See also Zabik v. Palm Beach County Sch. Dish, 901 So.2d 887 (Fla. 1st DCA 2005).

CTL and its servicing agent neither denied the claim nor elected to “pay and investigate”: Section 440.192(8), Florida Statutes (1999), provides that “[wjithin 14 days after receipt of a petition for benefits by certified mail, the carrier must either pay the requested benefits without prejudice to its right to deny within 120 days from receipt of the petition or file a notice of denial with the division.” The present case differs from Zabik, Mitchell and Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997), where we said that the “failure to respond to the petition for benefits ... operated not as an admission of compensability but as a denial of every allegation in the petition for benefits,” that might lead to an attorney’s fee award. Appellants’ payment of all the benefits the petition sought that were then ripe, due and owing contrasts starkly with the filing of a notice of denial. See Smith v. Burke Painting, 765 So.2d 727 (Fla. 1st DCA 2000) (affirming denial of fee award because the claim was never controverted); Integrated Health Servs. v. Hyde, 721 So.2d 1217, 1218 (Fla. 1st DCA 1998) (reversing award of fees where “E/C accepted Claimant as permanently and totally disabled within 14 days of receiving the petition”).

IV.

The subsequent, apparently inadvertent underpayments reflected no change in position, and were remedied without the involvement of Mr. Wood’s lawyer. They gave rise to no separate claim, except for attorney’s fees. The servicing agent’s correcting the amount of the biweekly checks — albeit in the wake of the initial petition and rectifying payment— was not something in which claimant’s counsel really had a hand. This is one important difference distinguishing the present case from cases like National Distributing Co. v. Campbell, 632 So.2d 647, 648-49 (Fla. 1st DCA 1994) (approving a fee award under an earlier statute where counsel “for the claimant wrote two letters to the adjuster” which led to the resumption of benefits after the carrier had first “decline[d]” to keep paying).

The petition filed September 21, 2006, sought attorney’s fees only. Redress for the underpayment that followed the initial payment in response to the June 14, 2005 petition did not constitute “benefits obtained as a result of the claimant’s attorney’s legal services rendered in connection with the claim for benefits.” § 440.34(2), Fla. Stat. (1999). The time records Mr. Wood’s attorney submitted in support of the fee award petition reflected no time expended — not so much as a telephone call — after the filing of the initial June 14, 2005 petition for benefits, the acceptance of which Mr. Wood concedes did not result in entitlement to a fee award.

Reversed.

DAVIS and THOMAS, JJ., concur.

      . The judge of compensation claims found that the supplemental benefits for the period between July 2, 2005, and August 26, 2005, totaled $839.04. The supplemental benefits for this period and related penalties and interest are not themselves at issue in this proceeding.

      . On July 17, 2006, at a hearing on the merits of claimant’s June 14, 2005 petition for supplemental benefits (where Mr. 'Wood's attorney agreed that CTL and its servicing agent had paid all past due supplemental benefits for the period between September 15, 2002, and July 1, 2005, together with penalties and interest, within 14 days of receiving the petition), the judge of compensation claims concluded that all issues raised by the June 14, 2005 petition had been resolved except Mr. Wood’s entitlement to attorney’s fees and instructed his attorney to file a petition for attorney’s fees. Claimant then filed a second petition on September 21, 2006, that gave rise to the order under review.

      . The judge of compensation claims calculated a statutory fee of $167.81 based on the $839.04 that appellants voluntarily paid, but concluded that "a statutory guideline fee would be unreasonable and unfair in this case,” and ordered appellants to pay an attorney’s fee of $3,960 and to reimburse $215 in costs.


text:
    Tony McGEEHEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2712.
    District Court of Appeal of Florida, First District.
    April 22, 2008.
    James C. Banks, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and C. Bowen Robinson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, 944 So.2d 203 (Fla.2006).

BROWNING, C.J., KAHN and THOMAS, JJ., concur.


text:
    David Dwight WOOLF, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1363.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2008.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007).

PLEUS, EVANDER, and COHEN, JJ., concur.


text:
    Dale W. NORTHCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2446.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2008.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 948.06(1), Fla. Stat. (1998).

PLEUS, ORFINGER and EVANDER, JJ., concur.


text:
    James PACHECO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3621.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2008.
    James Pacheco, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ratliff v. State, 914 So.2d 938 (Fla.2005), and Alvarez v. State, 358 So.2d 10 (Fla.1978).

SAWAYA, EVANDER and COHEN, JJ., concur.


text:
    Gary GUCKENBERGER, Appellant, v. SEMINOLE COUNTY and Johns Eastern Co., Inc., Appellees.
    No. 1D07-3484.
    District Court of Appeal of Florida, First District.
    April 23, 2008.

      Todd J. Sanders, of Bichler & Kelley, P.A., Winter Park, for Appellant.
    Barbara A. Eagan, of Broussard, Cullen, Degailler & Eagan, P. A., Orlando, for Appellees.
   PER CURIAM.

Appellant Gary Guckenberger, the claimant below, challenges the Judge of Compensation Claims’ (JCC) Order Awarding Costs to Employer/Servicing Agent, which awarded Seminole County and Johns Eastern Company, Inc., the employer and servicing agent (E/SA) respectively, $5,561.81 in costs. We affirm the order.

Appellant first asserts that the JCC was without jurisdiction to decide the E/SA’s motion for costs, because the JCC did not reserve jurisdiction in the final compensation order. Appellant correctly recites that the JCC has limited jurisdiction. The Judges of Compensation Claims are “vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits.” Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182, 184 (Fla.1983). Indeed, “[u]n-like a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440.” Pace v. Miami-Dade County Sch. Bd., 868 So.2d 1286, 1287 (Fla. 1st DCA 2004) (citing McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991)). Thus, “[a] JCC has no authority or jurisdiction beyond what is specifically conferred by statute.” Id. (citing Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999)).

However, Chapter 440, Florida Statutes, does expressly confer on the Judges of Compensation Claims jurisdiction to award costs to the prevailing party in any workers’ compensation proceeding. Subsection 440.34(3) states, “[i]f any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.” See § 440.34(3), Fla. Stat. (2005).

Appellant contends that although the JCC initially had jurisdiction to award costs, he relinquished jurisdiction when he resolved the petition for benefits and did not reserve jurisdiction. Nonetheless, Florida courts have noted,

Costs are statutory allowances recoverable by the successful party as an incident to the main adjudication. They are neither part of the damages claimed nor a penalty and need not be specially pleaded or claimed. The amount of costs does not affect the jurisdiction of the court. Unlike the substantive issues in a lawsuit, we know of no rule which precludes a court from later entertaining a motion to tax costs even though it has not reserved jurisdiction to do so.

Golub v. Golub, 336 So.2d 693, 694 (Fla. 2d DCA 1976) (citations omitted). Similarly, we hold the JCC had jurisdiction to decide the E/SA’s motion for costs.

Alternatively, appellant asserts that the JCC’s award of costs to the E/SA taxed against the appellant, where appellant’s petition for benefits was not fraudulent or frivolous, is against public policy. However, we note that section 440.34(3) is clear on its face that the JCC may tax the costs of the proceedings “against the non-prevailing party.” See § 440.34(3), Fla. Stat. (2005) (emphasis added). The statute does not distinguish between the claimant and the employer. Indeed, if the legislature had intended that only the claimant be awarded costs, it could have written the statute to reflect that intent. For example, section 440.34(5), Florida Statutes (2005), limits the JCC to award attorney’s fees only to the claimant. See e.g. § 440.34(5), Fla. Stat. (2005) (“If any proceedings are had for review of any claim, award, or compensation order before any court, the court may award the injured employee or dependent an attorney’s fee to be paid by the employer or carrier .... ”); see also NCR Corp. v. Sonitrol Corp., 626 So.2d 1073 (Fla. 1st DCA 1993) (holding that no statutory authority existed for award of attorney fees to employer and carrier). We have held that “[t]he legislature’s use of different terms in different sections of the same statute is strong evidence that different meanings were intended.” Beshore v. Dep’t of Fin. Servs., 928 So.2d 411, 413 (Fla. 1st DCA 2006). Thus, we reject appellant’s public policy argument as one more appropriate for the legislature. Cf. Thorkelson v. N.Y. Pizza & Pasta Inc., 956 So.2d 542, 544-45 (Fla. 1st DCA 2007) (noting that the “policy implications” of the Legislature’s definition of misconduct in section 440.02(18), Florida Statutes, “are for the Legislature, not the courts.”).

Therefore, we affirm the JCC’s order below awarding costs to the E/SA, to be taxed against appellant.

AFFIRMED.

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


author: ROBERTS, J.

text:
    Gregory PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2062.
    District Court of Appeal of Florida, First District.
    April 23, 2008.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Jennifer J. Moore, Assistant Attorney General; and Trisha Meggs Pate, Bureau Chief of Criminal Appeals, Tallahassee, for Ap-pellee.
   ROBERTS, J.

The appellant, Gregory Perkins, appeals his conviction for possession of cocaine. In the trial court, the appellant filed a motion to suppress the evidence, specifically the powder cocaine, seized from his pocket by Officer Register. The trial court, relying upon the “plain-feel” doctrine, denied the appellant’s motion. The appellant subsequently pled nolo contende-re, reserving his right to appeal the trial court’s denial of his motion. On appeal, the appellant argues that the “plain-feel” doctrine did not apply. We agree and reverse.

At the suppression hearing, Officer Register testified to the following facts. During a traffic stop, on opening the vehicle’s passenger door to advise the appellant that the vehicle was going to be searched incident to another passenger’s arrest, he observed a poeketknife in the front pocket of the appellant’s jeans. He asked the appellant twice not to put his hands in his pocket, but the appellant did not comply. After pulling the appellant’s hand out of his pocket the second time, Officer Register realized that the appellant was possibly trying to conceal another object in his pocket. At that point, he conducted a pat-down on the appellant for other weapons.

As he was removing the poeketknife, Officer Register felt another object in the appellant’s pocket. He put his hand back on top of the object and ran the tips of his fingers over the edge of the object and could feel that it was a square object, like a folded up piece of paper. He then ran his finger tips back over the object, down its side, and could feel a large lump in the middle. Based on his experience, he believed it was a lump of powder cocaine or some other kind of narcotic. When he removed the object from the appellant’s pocket, it was a folded up dollar bill with less than one gram of powder cocaine wrapped inside.

“A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Connor v. State, 803 So.2d 598, 605 (Fla.2001) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997)). Nevertheless, “mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Id.

To validate the warrantless search of the appellant and seizure of the folded dollar bill, the State had the burden to prove that it fell into one of the recognized exceptions to the constitutional warrant requirement. See E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004). The exception pertinent to this analysis is the “plain-feel” doctrine as announced by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

In Dickerson, during a pat-down for weapons, the officer felt a small lump in the front pocket of Dickerson’s nylon jacket. Id. at 369, 113 S.Ct. 2130. After examining the lump with his fingers, the officer believed it was a lump of crack cocaine wrapped in cellophane. Id. The officer reached into the pocket and removed a small plastic bag containing one-fifth of one gram of crack cocaine. Id. Dickerson was arrested and charged with possession of a controlled substance. Id. He moved to suppress the cocaine, but the trial court denied his motion, stating in part that “[t]he sense of touch, grounded in experience and training, is as reliable as perceptions drawn from other senses. ‘Plain feel,’ therefore, is no different than plain view and will equally support the seizure here.” Id. at 369-70, 113 S.Ct. 2130. The case proceeded to trial and Dickerson was convicted.

The Minnesota Court of Appeals reversed Dickerson’s conviction, finding that the officer overstepped the bounds allowed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in seizing the cocaine. Dickerson, 508 U.S. at 370, 113 S.Ct. 2130. In doing so, the court declined to adopt the “plain-feel” exception to the warrant requirement. Id. The Minnesota Supreme Court agreed and affirmed. Id. The court noted that, even if it were to recognize such an exception, the search would not qualify because the officer ascertained that the lump in Dickerson’s pocket was contraband only after probing and investigating what he certainly knew was not a weapon. Id. at 371, 113 S.Ct. 2130.

The United States Supreme Court accepted certiorari to resolve the conflict between state and federal courts on whether there was a “plain-feel” exception to the warrant requirement and affirmed. Id. at 371, 113 S.Ct. 2130. Unlike the Minnesota Court of Appeals and the Minnesota Supreme Court, the Court recognized the “plain-feel” exception to the warrant requirement. The Court explained that, under the “plain-feel” doctrine, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Id. at 375-76, 113 S.Ct. 2130. Thus, “if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Id. Applying the doctrine to the facts of the case, the Court reasoned that, after he determined that the pocket did not contain any weapons, the officer’s continued exploration of Dickerson’s pocket exceeded the scope of the search permitted by Terry. Id. at 378, 113 S.Ct. 2130. Because the incriminating nature of the object was not “immediately apparent” to the officer, who had to conduct a further search in order to determine it was, in fact, contraband, the Court held that the officer’s seizure of the contraband violated the Fourth Amendment. Id.

Similarly, in the instant case, it was only after Officer Register’s further search of the appellant’s pocket, when he examined the object by running the tips of his fingers over it, that he determined that the lump was, in fact, contraband. Therefore, the “plain-feel” doctrine did not apply and did not validate Officer Register’s search of the appellant’s pocket and his seizure of the object.

Accordingly, we reverse the appellant’s conviction for possession of cocaine and remand with instructions to the trial court to grant his motion to suppress.

REVERSED and REMANDED with instructions.

BARFIELD and POLSTON, JJ., concur.


author: WEBSTER, J. HAWKES, J.,

text:
    STATE of Florida, Appellant, v. Wyon Dale CHILDERS, Appellee.
    No. 1D07-0230.
    District Court of Appeal of Florida, First District.
    April 23, 2008.

      Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee; John F. Simon, Jr., Assistant State Attorney, Pensacola, for Appellant.
    Richard G. Lubin and Tama Beth Kud-man, West Palm Beach, for Appellee.
   WEBSTER, J.

The state seeks review of an order denying restitution for losses it claims were “directly caused” as the result of appellee’s bribing a fellow county commissioner so that appellee might obtain a majority vote to purchase a 48-acre parcel of real property known as the soccer complex. The state’s sole argument is that the trial court's order is not supported by competent substantial evidence and that, therefore, the order constitutes an abuse of discretion. Having carefully reviewed the record, we conclude that the trial court’s order is amply supported by the evidence and, therefore, does not constitute an abuse of discretion. Accordingly, we affirm.

Following a jury trial, appellee, an Es-cambia County Commissioner, was convicted of bribery and unlawful compensation or reward for official behavior in connection with a scheme to have the Escambia County Commission purchase the soccer complex property. ’ We subsequently affirmed those convictions; reversed the trial court’s ruling that the county was not a “victim” for purposes of section 775.089, Florida Statutes (2002), and as a result was not entitled to restitution; and remanded so that the state might have an opportunity to prove that the county had suffered a loss as the result of appellee’s crimes, and the amount of any such loss. Childers v. State, 936 So.2d 585 (Fla. 1st DCA) (en banc), review denied, 939 So.2d 1057 (Fla.2006).

On remand, the trial court held a restitution hearing, at which considerable testimony was presented and evidence offered. The state contended that, as the victim, Escambia County was entitled to restitution consisting of the difference between what the county had paid for the property and what it received when it sold the property ($1,090,706.50), plus costs attributable to maintaining the property and having it appraised ($33,524.02). Appellee countered that the property was sold for less than its fair market value and that, had it instead been sold for what it was worth, the county would have netted a profit rather than a loss. Both the state and appel-lee presented testimony from real property appraisers regarding the value of the soccer complex property. As anybody who has had any appreciable exposure to eminent domain proceedings knows, real property appraisal is an art, not a science. In eminent domain proceedings, the differences in value asserted are frequently great, and the outcome usually turns on which of two or more property appraisers the jury finds to be more credible. This is precisely what occurred in this case.

The state presented the appraiser who had appraised the property when the county decided to sell it. He testified that, in his opinion, the property was worth only $2,450,000. Based on that appraisal, the county had sold the land for $2,925,000. Appellee’s appraiser, on the other hand, testified that, in his opinion, the county’s appraiser’s valuation was low. He believed that, had the county been patient, it could have sold the property for much more — perhaps as much as $7,000,000.

The trial court subsequently denied the request for restitution, concluding that any loss sustained by the county had not been “caused by [appellee’s] criminal activities” but, rather, that “the more persuasive evidence is [that] the [c]ounty did not take advantage of traditionally accepted measures to get the highest bid on resale. If it had done so, the evidence indicates it very likely could have made a profit, perhaps a substantial one, on the conveyance.” This appeal follows.

For purposes of restitution, the burden rests with the state to prove the amount of the victim’s loss by the greater weight of the evidence. § 775.089(7), Fla. Stat. (2007); Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005). Moreover, “Restitution must be proved by substantial competent evidence.” Koile, 902 So.2d at 824 (citations omitted). Finally, as a general matter, the standard of review for a restitution order is abuse of discretion. Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006).

It is apparent from the transcript of the hearing that the trial court listened closely to the testimony. It is, likewise, apparent that the trial court’s order was based upon its conclusion that the state had failed to prove that the county had lost any amount because of appellee’s crimes. This conclusion is equally clearly based on the trial court’s implicit finding of fact that appellee’s appraiser’s testimony regarding the value of the property was more persuasive, and that, based upon that testimony, the county had not lost anything on account of appellee’s crimes. Rather, it is clear that the trial court concluded, again based on that testimony, that the county’s loss was attributable to poor business judgment. Our reading of the transcript satisfies us that the trial court’s factual findings are amply supported by the evidence. Such being the case, the trial court’s holding cannot possibly constitute an abuse of discretion. See Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990), for the proposition that “[discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court’ ”). Accordingly, we affirm.

AFFIRMED.

PADOVANO, J., concurs; HAWKES, J., dissents with written opinion.

HAWKES, J.,

Dissenting.

I believe the majority mischaracterizes both the State’s argument and the trial court’s order. Accordingly, I must dissent.

The State made two arguments on appeal. Contrary to the majority’s assertion, both were issues of law, and neither is addressed by the majority opinion.

First, the State correctly argued the basis upon which the trial court denied restitution, i.e., the County “did not take advantage of traditionally accepted measures to get the highest bid on resale,” was not supported by law or fact. What the phrase “traditionally accepted measures” means is unknown. The phrase is not defined by the trial court, the majority, or Florida case law, and is certainly devoid of statutory support.

Evidently, the County could have made a “substantial” profit had it added additional acreage to its parcel, and retained the property for a couple of years until the market was more favorable. The trial court and the majority find support for this conclusion by relying on a sale and appraisal that occurred 18 months after the County sold the property {25 months after listing the property), and after 18 acres of road frontage had been added to the parcel.

Although “[rjestitution has not abandoned the concept of mitigation of damages,” J.K. v. State, 695 So.2d 868, 869 (Fla. 4th DCA 1997), the trial court did not cite, nor has my research revealed, any authority for the proposition that a victim seeking restitution must overcome every speculative proposition made by a defense expert as to how damages may have been mitigated.

The record shows the County owned property for which it had no use. A decision was made to explore selling the property. A request for proposals was issued. A qualified real estate agent was retained, and the property was listed for the price the County paid for the property. After the passage of a couple of months, and the receipt of one disappointing offer for only a portion of the property, the County paid for the property to be reappraised. Based on the reappraisal, the price was reduced. Even after reducing the price approximately 25%, the property remained on the market for an additional five months before it finally sold at a substantial loss.

Every decision made by the County was in accordance with statute and occurred at public hearings. The substantial profit the majority and trial court reference is both speculative and illusory. In fact, no one recognized the “substantial” profit until the passage of two years and the addition of 13 acres of road frontage. The County was not required to hold the property indefinitely, hoping its market value would increase. Restitution cannot depend on hindsight that there may have been a better result had the victim made different choices following the defendant’s criminal conduct.

To support its conclusion that the trial court simply weighed the testimony and found the State’s case lacking, the majority selectively quotes that portion of the trial court’s order stating the County’s loss was not “caused by” the defendant’s criminal conduct. The majority’s quotation is misleading. The full phrase used in the trial court’s order was that the loss was not “actually caused by” the defendant’s criminal conduct. The trial court applied the wrong legal standard.

To ascertain whether a restitution award is required, the trial court must determine whether: (1) The loss or damage was directly or indirectly causally connected to the offense; and, (2) The loss or damage bears some significant relationship to the offense, i.e., was foreseeable. See § 775.089(1)(a), Fla. Stat.; Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). If these two elements are present, restitution must be ordered. See § 775.089(1)(a)1.-2., Fla. Stat.

Applying the causation elements to the case at bar, to obtain restitution, the State was required to prove by a preponderance of the evidence that: (1) The County’s loss from the sale of the property was at least indirectly related to the bribe induced votes the defendant procured to obtain Commission authority to purchase the property, and (2) It was foreseeable that, when purchasing votes to obtain real estate, a subsequent resale may be at less than the price paid. In short, if it takes a bribe to purchase the property, a subsequent good-faith, arms-length sale of the property may result in a lower price.

The trial court erred as a matter of law by applying the wrong legal standard to conclude restitution was not warranted because the defendant did not “actually cause” the County’s loss. The trial court compounded its legal error by creating the additional burden that the County prove it used “traditionally accepted measures” to sell the property before being entitled to restitution. We may have had some insight into the meaning of this phrase had the trial court complied with the statutory requirements of stating on the record “in detail” its reasons for denying restitution, and providing “clear and compelling reasons not to order restitution.” § 775.089(l)(a)-(b)l., Fla. Stat. The trial court’s failure to comply with these statutory requirements is but another legal error committed by the trial court and ignored by the majority.

The State also contended the trial court’s order failed to address restitution for the County’s cost of maintenance and repair of the property. A review of the trial court’s order reveals the State is again, correct. The trial court is required to “make findings as to causation for each discrete item of restitution.” See Bellot v. State, 964 So.2d 857, 860 (Fla. 2d DCA 2007). The majority opinion does not mention the trial court’s failure to address the restitution sought by the State on this ground. For the foregoing reasons, I would reverse.