author: STEVENSON, C.J.

text:
    Frank BARANEK, et al., Appellants v. AMERICAN OPTICAL CORPORATION, et al., Appellees.
    Nos. 4D05-9 to 4D05-94.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Dayid A. Jagolinzer, Case A. Dam and James L. Ferraro of The Ferraro Law Firm, Miami, for appellants.
    Albert H. Parnell, Nathan M. Thompson and Evelyn M. Fletcher of Hawkins & Parnell, LLP, Atlanta, Georgia, for appel-lees Bayer Cropscience, Inc., Dana Corp., Dow Chemical Co., Ericsson, Inc., Flow-serve Corp., Maremont Corp., Union Carbide Corp., and Zurn Industries, Inc.
   STEVENSON, C.J.

Frank Baranek and more than eighty others filed suits in Palm Beach County against more than fifty defendants, seeking damages for injuries associated with asbestos exposure. The trial court dismissed the claims on forum non conveniens grounds. In this consolidated appeal, the plaintiffs/appellants challenge the manner in which the trial court conducted its analysis under Florida Rule of Civil Procedure 1.061 and Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), and the sufficiency of the evidence supporting that analysis. For the reasons discussed below, we reverse the order of dismissal and remand for further proceedings consistent with this opinion.

Forum Non Conveniens Generally

“Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney, 674 So.2d at 87 (footnote omitted). The doctrine “serves as a brake on the tendency of some plaintiffs to shop for the ‘best’ jurisdiction in which • to bring suit.” Id. In Kinney, our supreme court found that the demands being placed on Florida’s courts by the bringing of claims that did not have a substantial connection to the state warranted modification of Florida forum non conveniens law. Id. at 88. Thus, the supreme court adopted the four-part federal standard:

“[1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or .near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.”

Id. at 90 (quoting Pain v. United Technologies Corp., 637 F.2d 776, 784-85 (D.C.Cir.1980)). This four-part test now appears in Florida Rule of Civil Procedure 1.061.

The Proceedings Below

More than ninety complaints against the same fifty-three defendants, seeking damages for asbestos-related injuries, had been filed in the asbestos division of the Palm Beach County circuit court. Counsel for the plaintiffs was the same in all of these cases. Four of the defendants filed an untimely motion to dismiss on forum non conveniens grounds and a fifth defendant joined in the motion. Around this same time, Judge McCarthy, who was in the midst of a trial involving an asbestos claim brought by an Alabama resident fox-exposure that took place outside of Florida, became concerned about the number of out-of-state asbestos filings. Before the untimely motion to dismiss could be heard, Judge McCarthy sua sponte issued an order directing the plaintiffs to show' cause as to why their cases should not be dismissed on forum non conveniens grounds. Following the hearing, the trial court retained jurisdiction over the one case alleging exposure in Palm Beach County, transferred eleven cases to other Florida counties, and dismissed eighty-three cases. This appeal involves only the eighty-three dismissed cases.

The bulk of the information concerning the plaintiffs comes from the “exposure sheets” appended to the complaints. Of the eighty-three plaintiffs, none reside in Florida. Thirty-five are Alabama residents who suffered all their asbestos exposure in Alabama. Twenty-one are Alabama residents who suffered most of their exposure in Alabama and none in Florida. Three are Alabama i-esidents who suffered substantial exposure outside of Alabama, but none in Florida. Thirteen are Alabama residents who suffered some exposure in Florida. Four are Wisconsin residents who suffered all their exposure in Wisconsin. One is a Wisconsin resident who alleges exposure in Wisconsin from 1973 to 1990 and exposure in California, Illinois, and Jacksonville, Florida, during the years 1969-1973. Four reside in Maine, Rhode Island, and Pennsylvania and suffered all or most of their exposure in the northeast, but none in Florida. Two are Kentucky residents who suffered most of their exposure in Kentucky, but none in Florida.

The plaintiffs’ complaints allege the defendants are foreign corporations, amenable to service in Florida. And, in opposing dismissal, the plaintiffs asserted five of the defendants, Bigham Insulation and Supply Company (“Bigham”), Meti-opolitan Life, Goodyear Tire & Rubber Company, Exxon Mobil, and Westinghouse Electric Corporation, had business locations in Palm Beach County, offering web site print-outs reflecting Palm Beach County addresses. Additionally, during the hearing precipitating the dismissal, an objection filed by Bigham’s counsel, asserting the company conducted its business entirely within the State of Florida and was not amenable to service elsewhere, was offered. Bigham’s counsel was not, however, present for the hearing or, for that matter, any other hearing during the preceding four years of litigation. The “exposure sheets” of a number of plaintiffs, however, alleged exposure to Bigham products in states other than Florida.

With this evidence before him, the trial judge determined dismissal was appropriate as to the eighty-three cases. As for the first Kinney factor, adequate, alternative forum, the order of dismissal details the law governing amenability to service of process and personal jurisdiction for the states of Alabama, Wisconsin, Rhode Island, Kentucky, Pennsylvania, California, New Jersey, New Hampshire, and Massachusetts and concludes an adequate, alternative forum exists for each of the eighty-three cases dismissed. The lower court next found the “private interests” factor favored dismissal as access to evidence was no greater in Palm Beach County, and to the contrary, access to witnesses, job sites, and treating medical providers would be greater in the alternative forums. With respect to the “public interests,” the trial judge found that the cases had no connection to Palm Beach County and yet trials in the myriad pending cases would consume enormous judicial resources at the expense of Palm Beach County taxpayers. Finally, the court concluded the eighty-three plaintiffs could reinstate their claims in the alternative forums without undue prejudice, relying upon that portion of Kinney providing that a party moving for dismissal on forum non conveniens grounds will be deemed to have stipulated that, in the alternative forum, the action will be treated as though it had been filed on the date it was filed in Florida. Despite the discretion afforded trial judges in this arena, we are obliged to reverse the dismissal of the eighty-three cases as the evidence before the lower court was insufficient to support a finding that an adequate, alternative forum, wherein the claims could be re-instituted, existed. See Fla. R. Civ. P. 1.061(a) (stating that “decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion”); Ira Mex, Inc. v. Se. Interior Constr., Inc., 777 So.2d 1107, 1108-09 (Fla. 4th DCA 2001).

The existence of an adequate, alternative forum is critical to the forum non conveniens analysis; if there is no adequate, alternative forum, the inquiry ends and dismissal is not proper. See, e.g., Sanwa Bank, Ltd. v. Kato, 734 So.2d 557, 562 (Fla. 5th DCA 1999). “Ordinarily, this requirement will be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction.” Kinney, 674 So.2d at 90 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)): Here, though, there are fifty-three defendants; thus, in order for the case to be dismissed from the Palm Beach County circuit court’s docket, there must be another jurisdiction that is able to exercise personal jurisdiction over all the defendants named by the plaintiff. See Fla. R. Civ. P. 1.061(a)(1); Kinney, 674 So.2d at 90. The trial judge found Alabama would provide an alternative forum for seventy-two of the cases, Wisconsin an alternative forum for five, Rhode Island an alternative forum for two, Kentucky an alternative forum for two, and Pennsylvania, California, New Jersey, New Hampshire, and Massachusetts an alternative forum for one each. In so doing, the trial judge made no specific findings regarding the defendants’ activities or actions in the proposed forum state; rather, each paragraph addressing the respective state’s long-arm statutes and requirements for the exercise of personal jurisdiction simply begins with the finding “[ujnder the allegations of the plaintiffs’ complaints, defendants are amenable to service of process in [insert state] and subject to the jurisdiction of the [insert state] courts.”

The difficulty with the trial court’s conclusion that these states will provide an adequate, alternative forum is that there was simply insufficient evidence before the court to permit a conclusion that the plaintiff would be able to bring suit against each of the fifty-three defendants in that alternative forum. The defendants/appel-lees suggest the exposure sheets attached to each complaint provide sufficient information to demonstrate each defendant is amenable to service of process in these other states as the “allegations of widespread, repeated exposure to [defendants’ products in the alternative jurisdiction were a reasonable basis on which to find that these alleged exposures were not isolated or unusual incidents but were instead indicative of purposeful activity directed toward the alternative forums.” The exposure sheets for each plaintiff list the defendant’s name, the type of product, the location of the job site where the exposure occurred, and the time frame during which the exposure occurred. This information, though, tells us only where the products wound up — not how they got there. And, without knowing the nature of the business activities that resulted in a product’s presence in a particular location, there is simply not enough evidentiary support to find that all the defendants purposefully availed themselves of the markets of the alternative forum states and all will be amenable to process in those states. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (addressing “pur: poseful availment” and looking to whether product’s being in forum state is the result of the defendant’s efforts to serve, directly or indirectly, that market); Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 813 (5th Cir.2006) (discussing “purposeful availment” in terms of whether defendant sold product knowing it would be used in the forum state); Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1357 (11th Cir.2000) (“The stream of commerce test for jurisdiction is met if the nonresident’s product is purchased by or delivered to a consumer in the forum state, so long as the nonresident’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there for claims arising out of that conduct.”).

The case of Dennis Boyd, a Maine resident for whom the trial court found New Hampshire to be an alternative forum, is illustrative. Boyd’s exposure sheet reflects he was exposed to “asbestos containing packing and gaskets” manufactured by A.W. Chesterton Company while on board the USS Independence in Norfolk, Virginia, and while at Simplex Wire & Cable in Newington, New Hampshire. His exposure at Simplex began in January 1979 and ended in December 1980, and only it can provide support for the trial court’s inherent finding that the New Hampshire courts may assert jurisdiction over A.W. Chesterton Company. The trial court’s order provides the following with respect to New Hampshire law:

A court must engage in a two-step analysis to determine whether jurisdiction over a nonresident defendant comports with due process: first, does the defendant have “minimum contacts” with the forum state, and, second, does assertion of personal jurisdiction offend traditional notions of fair play and substantial justice. Lex Computer & Management Corp. v. Eslinger & Pelton, P.C., 676 F.Supp. 399 (D.N.H.1987).
For purposes of jurisdiction under a long-arm statute, minimum contacts are established when a defendant “purposefully directs” his activities to residents of the forum state, and the litigation results from alleged injuries that “arise out of or relate to” those activities. Id.

All we know from the exposure sheet is that a product made by A.W. Chesterton Company found its way into a building in Newington, New Hampshire, and that plaintiff Boyd was in that building. We do not know whether A.W. Chesterton Company ever engaged in business in New Hampshire, marketed to New Hampshire, or engaged in business with some other party and placed its product into the stream of commerce knowing the product would likely end up in New Hampshire. Consequently, the information supplied by the exposure sheet is insufficient to conduct the analysis required under the very New Hampshire law the court found applicable.

The parties’ arguments concerning Big-ham and even some of the authority cited in the trial court’s order further illustrate the point. The plaintiffs/appellants insist Bigham is not subject to personal jurisdiction in any state other than Florida, pointing to an objection filed by its counsel attesting the company does not do business in any state other than Florida and has no offices outside of Florida. The defendants/appellees insist, and the trial court found, that this is inconsistent with the allegations of the plaintiffs’ complaints alleging exposure in Alabama and other states. These arguments, though, beg the question — how did Bigham’s products wind up in these other states? There is no evidence on this issue and this is the critical issue for assessing whether Bigham can be sued in Alabama and these other states, i.e., whether Bigham purposefully availed itself of the privilege of doing business in these other forums or engaged in activity such that it was foreseeable that its product would enter these other forums. Page nine of the order appealed cites Sells v. International Harvester Co., 513 F.2d 762 (5th Cir.1975), for the proposition that “it did not violate due process to require a manufacturer to defend a products liability action in Alabama because the manufacturer sold its product to a national distributor knowing the product would be used in all states.” Here, neither the allegations of the complaint nor the exposure sheets provide any indication that the defendant companies sold their product to a national distributor knowing the product would be used in all states.

Apart from the lack of evidence supporting a finding that each of the fifty-three defendants will be amenable to service of process in the alternative forum, there is another obstacle to dismissal in this case. The plaintiffs/appellants argue that the alternative states will not provide an “adequate” forum due to the running of the relevant statutes of limitation. The trial court addressed this matter in factor four, which requires the judge to ensure that the suit can be reinstated “without undue inconvenience or prejudice,” see Fla. R. Civ. P. 1.061(a)(4), and concluded such factor did not preclude dismissal as Kinney holds that every motion for dismissal on forum non conveniens grounds will be deemed to stipulate that the action will be treated as though it had been filed in the alternative forum on the date it was filed in Florida. Here, though, the dismissal on forum non conveniens grounds was not precipitated by a motion filed by the defendants — rather, it was brought about by the judge. And, while a few defendants had earlier filed an untimely motion for dismissal on forum non conveniens grounds, not all defendants joined in the motion. In fact, defendant Bigham objected. The trial court’s order fails to address this issue and nothing in Kinney or rule 1.061 purports to authorize the trial court to require a non-moving, objecting defendant to waive a statute of limitations defense or to stipulate that it will treat the claim, once re-filed in the alternative forum, as filed on the same date it was filed in Florida. Indeed, subsection (b) of rule 1.061 provides that “[a] forum-non-conve-niens dismissal shall not be granted unless all defendants agree to the stipulations required by subdivision (c) and any additional stipulations required by the court.” (emphasis added).

For the reasons discussed, the order of dismissal is hereby reversed and the matter remanded for further proceedings. Our reversal is without prejudice to the trial court’s right to revisit this issue and, again, order dismissal provided that the parties present evidence establishing the individual plaintiffs can bring suit against all of the defendants in the alternative forums and that the statute of limitations issue is adequately addressed to ensure the plaintiffs are not denied a remedy. As a consequence of the possibility that these issues will again be before the trial court, we note that we find no fault with the trial court’s analysis regarding the second and third Kinney factors nor do we find merit in any other issues raised and not specifically addressed in this opinion.

Reversed and Remanded.

SHAHOOD and MAY, JJ., concur.

      . These numbers add up to more than the eighty-three dismissed cases as the trial court found that, for some plaintiffs, there was more than one possible alternative forum.

      . We should also point out that Boyd’s exposure sheet does not reflect exposure in New Hampshire as to all defendants.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alexander JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4136.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2006.
    James C. Banks of the Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Peters v. State of Florida, 919 So.2d 624 (Fla. 1st DCA 2006).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


author: SAWAYA, J.

text:
    MARTIN DAYTONA CORPORATION, etc., Appellant, v. STRICKLAND CONSTRUCTION SERVICES, etc., et al., Appellees.
    No. 5D05-2432.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.

      John H. Dannecker and Jennifer P. Sommerville of Shutts & Bowen LLP, Orlando, for Appellant.
    Rosemary Hanna Hayes and Tina L. Caraballo of Hayes & Caraballo, PL, Orlando, for Appellees.
   SAWAYA, J.

This case presents the issue whether rule 1.525, Florida Rules of Civil Procedure, which requires that motions for attorneys’ fees and costs be served “within 30 days after filing of the judgment,” applies to motions filed in the circuit court based on awards emanating from arbitration proceedings and, if so, whether a motion served before entry of the judgment is timely under the rule. We believe that the rule is applicable in this instance and that a motion served prior to entry of the judgment is timely. The facts and procedural background are important to our analysis, so we will begin our discussion there.

Facts and Procedural Background

Martin Daytona Corporation (Martin) filed suit against Strickland Construction Services (Strickland) in circuit court seeking to recover an unpaid debt pursuant to a contract that had been entered into between the parties. The contract contained an arbitration clause, which provided that the prevailing party shall be entitled to recover reasonable attorneys’ fees. On January 4, 2005, the arbitration award was issued in favor of Martin, which was declared to be the prevailing party. On January 6, 2005, Martin moved to confirm the arbitration award in the circuit court pursuant to section 682.12, Florida Statutes (2005), and sought entry of a final judgment with a reservation of jurisdiction to award attorneys’ fees and costs. Simultaneously, Martin filed and served its motion to tax attorneys’ fees and costs based on its prevailing party status. The order confirming the arbitration award was entered by the circuit court on April 18, 2005, and a few days later, the final judgment reserving jurisdiction to determine the amount of fees and costs was entered.

Strickland filed an objection to the motion for fees and costs, arguing that it had been prematurely filed before the final judgment had been entered in violation of the time requirements of rule 1.525. Martin responded that rule 1.525 does not apply to arbitration proceedings and that its motion was timely. The circuit court found that the motion for attorneys’ fees and costs was premature, that rule 1.525 applied, and that Martin’s failure to comply with the time requirement of this rule was the result of attorney error, not excusable neglect. Therefore, it denied the motions for attorneys’ fees and costs. Martin appeals. Because the parties do not agree on the proper standard of review we must apply to resolve the issue before us, we will make that determination before proceeding further.

Standard of Review

The parties do agree on the facts regarding when the motion for fees and costs was filed and served in relation to rendition of the judgment. Therefore, we must interpret the provisions of rule 1.525 to determine whether the rule applies and whether the motion for fees and costs was timely served. This is a legal issue that requires application of the de novo standard of review. See Gosselin v. Gosselin, 869 So.2d 667, 668 (Fla. 4th DCA 2004) (“Because the trial court’s determination that the Wife’s amended motion for attorney’s fees was barred by Florida Rule of Civil Procedure 1.525 is a legal determination, we review it de novo.”) (citing Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000)).

Applicability of Rule 1.525 to Motions for Fees and Costs Based on Awards Emanating from Arbitration Pro~ ceedings

In order to determine whether rule 1.525 applies to the instant case, we must analyze how attorneys’ fees and costs are awarded in arbitration proceedings. Unless the parties specifically agree that the arbitrator will decide the issues of entitlement to, and amount of, attorneys’ fees, those issues must be decided by the circuit court. Here, the parties agreed that the arbitrator would decide who the prevailing party was. Therefore, the arbitrator decided Martin’s entitlement to fees by finding Martin to be the prevailing party, but properly declined to award the amount of fees because the parties did not agree that the arbitrator would make that determination. Hence, the issue for the circuit court to decide was the amount of fees and costs Martin was entitled to-recover.

If the court must decide either entitlement to or the amount of fees, or both, typically a motion to confirm the award and a motion to tax fees and costs are served, often at the same time. This is what Martin did. These motions place the issue of fees and costs before the court for determination at the same time confirmation is decided. The court conducts a judicial proceeding to resolve the issues raised in the motions, and we believe that rule 1.525 is applicable to provide time limitations for serving the motion for fees and costs. We are not alone in adopting this view; recent case law from another district court has applied rule 1.525 to a motion for fees and costs based on an award emanating from arbitration proceedings. See Certified Marine Expeditions v. Freeport Shipbuilding, Inc., 914 So.2d 983 (Fla. 1st DCA 2005).

Martin’s argument that rule 1.525 does not apply to arbitration proceedings is premised on rule 1.010, Florida Rules of Civil Procedure, which provides that the civil procedure rules “apply to all actions of a civil nature.” Martin contends that pursuant to Miele v. Prudential-Bache Securities, Inc., 656 So.2d 470 (Fla.1995), the term “actions of a civil nature” does not include arbitration proceedings. The court in Miele considered the issue whether section 768.73, Florida Statutes (1991), which addressed limitations on punitive damage awards, applied to arbitration proceedings. That statute provided, in pertinent part, that it applied to “any civil action” that fell within certain categories of tort actions. § 768.73, Fla. Stat. (1991). The court held that the term “civil action,” as used in the statute, did not include arbitration proceedings. Miele, 656 So.2d at 472. Hence, Martin argues that the term “actions of a civil nature” in rule 1.010 does not include arbitration proceedings and, therefore, rule 1.525 does not apply.

Subsequent to the decision in Miele, the Legislature enacted section 768.737 Florida Statutes (1999), which provides that sections 768.72, 768.725, and 768.73 do apply when punitive damages are available as a remedy in arbitration proceedings. “It is an accepted rule of statutory construction that the legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute.” Ford v. Wainwright, 451 So.2d 471, 475 (Fla.1984). Generally, courts are permitted to consider subsequently enacted legislation in determining the meaning of a statute. It is clear that the Legislature’s enactment of section 768.737 indicates that the Legislature has a different view from that adopted by the court in Miele regarding the issue whether arbitration proceedings are “civil actions” within the meaning of section 768.73. We believe that enactment of section 768.737, in light of the decision in Miele, militates in favor of the view that the term “actions of a civil nature” in rule 1.010 includes motions for fees and costs filed in the circuit court that are based on awards emanating from arbitration proceedings.

Having determined that rule 1.525 applies, we must next decide whether serving the motion for fees prior to entry of the judgment violated the time limitations of the rule. We believe that service was timely, and we will explain why.

Serving the Motion for Fees and Costs Prior to Entry of the Final Judgment does Comply with the Time Requirements of Rule 1.525

Rule 1.525 establishes a deadline for parties to serve motions for attorneys’ fees and costs after a judgment has been entered. At the outset we note, parenthetically, that although many cases discuss the requirements of the rule in terms of filing the motion, the rule specifically requires timely service of the motion. See Certified Marine Expeditions. Here, there is no doubt that the motion was filed and served prior to entry of the judgment.

Rule 1.525 was adopted by the Florida Supreme Court and became effective on January 1, 2001. Amendments to the Fla. Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000). Prior to that time, the courts generally required that any such motion be filed and served within a reasonable time after the judgment is entered. See Carter v. Lake County, 840 So.2d 1153, 1156 (Fla. 5th DCA 2003). However, the reasonable time rule was vague and produced inconsistent results in similar cases. As a result, the court adopted rule 1.525 “to eliminate the reasonable time rule and establish a time requirement to serve motions for costs and attorney’s fees.” Id.

The initial version of rule 1.525 required the motion to be served within 30 days of the filing of the judgment. Yet, requiring the motion to be served within 30 days still caused confusion because it was difficult to discern whether the language constituted a deadline or a narrow window of opportunity. Cases decided by the First, Third, and Fourth District Courts construing the initial version of rule 1.525 held that the rule set an outside deadline for serving a motion for attorneys’ fees and costs and that motions served prior to entry of the judgment were timely. See Byrne-Henry v. Hertz Corp., 927 So.2d 66, 68 (Fla. 3d DCA 2006); Swift v. Wilcox, 924 So.2d 885, 887 (Fla. 4th DCA 2006) (“[W]e hold that Rule 1.525 ‘establishes the latest point at which a prevailing party may serve a motion for fees and costs.’ ”) (quoting Norris v. Treadwell, 907 So.2d 1217, 1218 (Fla. 1st DCA 2005), review dismissed, 934 So.2d 1207 (Fla.2006)).

The Second District Court, on the other hand, has held that the initial version of the rule established a window of opportunity between the rendering of the judgment and thirty days thereafter to serve a motion for fees and costs. See Swann v. Dinan, 884 So.2d 398 (Fla. 2d DCA 2004). We believe that the First, Third, and Fourth District Courts have correctly decided the issue and, as they did, we hold that motions served prior to, or within thirty days after, rendition of the final judgment are timely under the rule.

We note that in order to alleviate the confusion, rule 1.525 was amended effective January 1, 2006, to provide that the motion should be served no later than 30 days after the judgment. In re Amendments to the Fla. Rules of Civil Procedure, 917 So.2d 176, 187 (Fla.2005). We believe that the amendment to the rule clearly establishes a deadline beyond which motions for fees and costs are deemed untimely. Although we believe that this was the intended meaning of the version of the rule prior to its amendment, now there should be no doubt.

Conclusion

We conclude that the provisions of rule 1.525 apply to motions for attorneys’ fees filed in the circuit court based on awards emanating from arbitration proceedings when the parties did not agree to have the issue of fees and costs resolved by the arbitrators. Here, the issue of the amount of fees was placed before the circuit court for resolution, and it was entirely proper for Martin to file and serve its motion with the court prior to entry of the judgment. Thus, the motion was not premature, and the circuit court erred in denying Martin’s motion for attorneys’ fees on this basis. We reverse the order denying fees and remand this case to the circuit court to determine the amount to be awarded Martin as the prevailing party.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.

      . Martin argues that it did not have to timely file the motion to tax fees and costs because the final judgment specifically reserved jurisdiction over those issues. Strickland claims this argument has not been preserved because it was not presented to the circuit court. A review of the record reveals that Strickland’s claim is accurate; the argument was not presented to the circuit court and thus has not been preserved for appellate review. Herskovitz v. Hershkovich, 910 So.2d 366 (Fla. 5th DCA 2005); Wilson v. State, 675 So.2d 613 (Fla. 2d DCA 1996), review denied, 717 So.2d 542 (Fla.1988). Nevertheless, the court in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006), held that reservation of jurisdiction to award attorneys’ fees and costs does not affect or alter the timeliness requirement found in rule 1.525 to file the attendant motion.

      . The arbitration clause provided:
      Notwithstanding governing provisions of the General Contract, all claims, disputes and other matters in question between the Contractor and Subcontractor arising out of, or relating to, this Subcontract or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association unless the parties mutually agree otherwise. The parties agree that the locale for such arbitration shall be in Orange County, Florida. The prevailing party in any arbitration or litigation shall be entitled to recover reasonable attorneys' fee for the services of its attorney both at trial and appeal, if any. A prevailing party is the party who wins; unless the award is not at least 25% greater than prior written offer to settle made prior to commencement of the arbitration proceeding, in which case the rejected offer shall be deemed to have prevailed.

      .Martin contends that the trial court erred in rejecting its argument based on excusable neglect. This issue is rendered moot by virtue of our resolution of the issue regarding the applicability and meaning of the provisions of rule 1.525.

      . See § 682.11, Fla. Stat. (2005) ("Unless otherwise provided in the agreement or provision for arbitration, the arbitrators' and umpire's expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.”) (emphasis added); Turnberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173 (Fla.1995) (holding section 682.11, Florida Statutes, prohibits arbitrators from including attorneys’ fees in an award of expenses and fees incurred during arbitration proceedings, unless parties expressly waive the right to the trial court's determination of entitlement to and amount of fees); A-1 Duran Roofing, Inc. v. Select Contracting, Inc., 865 So.2d 601, 604 (Fla. 4th DCA 2004) ("Neither entitlement to attorney's fees, nor amount, are issues that the arbitrator may decide without the agreement of the parties.”); Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487, 489 n. 2 (Fla. 5th DCA 1999); Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1020 (Fla. 4th DCA 1999) ("[I]t is well settled that an arbitrator has no authority to award attorney’s fees absent an express waiver of the limitation contained in section 682.11, Florida Statutes.”); Dean Witter Reynolds, Inc. v. Wood, 676 So.2d 464 (Fla. 5th DCA 1996).

      . We reject Strickland's assertion that the arbitrator did not have the authority to determine who the prevailing party was for purposes of entitlement to attorney’s fees. We have carefully reviewed the transcript of the arbitration hearing and we conclude that the parties did agree that the arbitrator would decide that issue and that the circuit court would determine the amount of fees to be awarded. We also think it noteworthy that Strickland filed a post-hearing motion arguing that it should be deemed the prevailing party and submitted a proposed order to the arbitrator declaring it to be the prevailing party. Moreover, Strickland did not move to vacate the award pursuant to section 682.13(l)(c), Florida Statutes (2005), or move to modify or correct the award pursuant to section 682.14, Florida Statutes (2005).

      . See Rock v. Prairie Bldg. Solutions, Inc., 854 So.2d 722, 724 (Fla. 2d DCA 2003) ("Thereafter, the Rocks moved to confirm the arbitration award and to determine attorney's fees and costs.”); Josephthal Lyon & Ross, Inc., 734 So.2d at 488 ("Durham thereafter applied to the circuit court for confirmation of the award and determination of a reasonable attorney’s fee.”); Zac Smith & Co., Inc. v. Moonspinner Condo. Ass’n, Inc., 534 So.2d 739, 741 (Fla. 1st DCA 1988) ("[Ajppellee moved the trial court to confirm the arbitration award and to assess attorney fees and costs against appellants.”); see also Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 232 (Fla.2001) ("Moserf] petition[ed] to correct and confirm the arbitration award and ... petition[ed] for an award of attorney’s fees.... ”).

      . See G.E.L. Corp. v. Dep't of Env’t Prot., 875 So.2d 1257, 1262 n. 2 (Fla. 5th DCA 2004) (citing State, ex rel. Szabo Food Servs., Inc. of NC v. Dickinson, 286 So.2d 529 (Fla.1973); Gay v. Canada Dry Bottling Co., Inc. of Fla., 59 So.2d 788, 790 (Fla.1952); K.H. v. State, 821 So.2d 1202 (Fla. 5th DCA 2002); Equity Corp. Holdings, Inc. v. Department of Banking & Fin., Div. of Fin., 772 So.2d 588, 590 n. 7 (Fla. 1st DCA 2000) ("Courts are permitted to consider subsequent legislation as evidence of the legislature’s intent in construing a statute.”); Gamble v. State, 723 So.2d 905, 907 (Fla. 5th DCA 1999) (”[0]ur courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute.”); State, Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering v. WJA

        Realty Ltd. P'ship, 679 So.2d 302 (Fla. 3d DCA 1996)).


author: ORFINGER, J.

text:
    Sebastian GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3398.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Sebastian Gonzalez appeals the trial court’s denial of his motion to declare section 828.122(3), Florida Statutes (2005), which outlaws animal fighting, unconstitutional as overbroad. We affirm.

Sheriff office investigators interviewed Mr. Gonzalez about his participation in cockfighting at a rural location that had been raided. Mr. Gonzalez admitted that he had gone to the location to watch cockfights. As a result, Mr. Gonzalez was charged with violating section 828.122(3), which prohibits knowingly baiting or using an animal for the purpose of fighting or baiting any other animal; owning, managing, or operating a facility kept or used for the purpose of fighting or baiting animals; promoting, staging, advertising, or charging admission to fight or bait animals; betting on fighting or baiting animals; or attending the fighting or baiting of animals. In its statement of particulars, the State more specifically alleged that Mr. Gonzalez: (1) was present at a cockfight, and (2) possessed spurs, which the roosters wear in order to fight, thus, promoting cockfighting.

Mr. Gonzalez filed a motion to declare section 828.122(3) unconstitutional. He argued that the statute was overbroad, as it could prohibit innocent conduct. Mr. Gonzalez further argued that “attend” should be defined to mean “participation or helping,” instead of merely being present at. The trial court denied the motion, stating:

It seems to me that the sense of the statute is clear in prohibiting knowingly attending and that there is another sense of the word attend as in to attend a football game or a basketball game or a concert where perhaps you purchase a ticket. And maybe it’s without charge, but you’re going to that place, for a purpose. And the purpose is a particular exhibition and that that meaning of the statute is both clear and narrow because it — what is prohibited is knowingly attending. I find that the Tennessee case is most instructive and the Court in that case found their statute to be constitutional, as I find our statute.
... It is a principal statutory construction that the Court used to construe statutes to make sense, and it’s not nonsense, if possible, and I don’t find that this is difficult in this case.

Mr. Gonzalez subsequently pled no contest to the charge and reserved his right to appeal the denial of his motion to dismiss. The parties stipulated that the ruling on the motion was dispositive. This appeal followed.

A trial court decision on the constitutionality of a statute presents an issue of law that we review de novo. Ocala Breeders’ Sales Co., Inc. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 24 (Fla. 1st DCA 1999); see also N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 626-27 (Fla.2003). There is a “strong presumption in the law that a state statute is constitutionally valid.” Ocala Breeders’ Sales Co., 731 So.2d at 24 (citing In re Caldwell’s Estate, 247 So.2d 1 (Fla.1971)).

Florida courts have not yet addressed the constitutionality of section 828.122(3)(h). However, the courts of several other states have considered the constitutionality of similar animal fighting statutes. These decisions support the constitutionality of Florida’s statute. In State v. Tabor, 678 S.W.2d 45 (Tenn.1984), the Tennessee Supreme Court upheld a statute that prohibited a person from knowingly being present as a spectator at a cockfight or similar event, or at a place where preparations were being made for such an event. The Tabor court found that the section was neither vague nor overbroad, as it required the conduct to be done knowingly, not accidentally.

The Tabor court contrasted the Tennessee statute, which prohibited a person from knowingly being present at an animal fight as a spectator, with Hawaii’s animal baiting statute that did not contain the same narrowing language. Id. at 47. In State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968), the Hawaiian Supreme Court held that its animal fighting and baiting statute was unconstitutionally vague. In contrast to Florida’s and Tennessee’s animal fighting statutes, the Hawaii statute provided simply that it was “unlawful for any person to engage or participate in or to be present at, any cockfighting exhibition,” regardless of whether it was done knowingly. Haw. Rev. Stat. § 13-3.1 (1961). The Ohio and Missouri Supreme Courts also struck down statutes similar to Hawaii’s. See State v. Young, 695 S.W.2d 882, 886 (Mo.1985) (holding that the Missouri animal fighting statute’s provision, prohibiting a person to “be present thereat” a place where animal fighting or baiting occurred, was void for vagueness because it did not “provide a person of ordinary intelligence with adequate notice of the proscribed conduct”); State v. Wear, 15 Ohio App.3d 77, 472 N.E.2d 778, 781 (1984) (determining that Ohio’s animal baiting statute, which provides “[a]ny person who knowingly purchases a ticket of admission to [a place kept for cockfighting], or is present thereat, or witnesses such a spectacle is an aider and abettor,” was unconstitutionally vague).

Mr. Gonzalez contends that the statute is overbroad because it might punish innocent bystanders who happen upon two animals fighting, e.g., a person who observes two dogs fighting in the street or a zoo patron who witnesses animals fighting. We disagree. The requirement that the conduct be done “knowingly” in section 828.122(3), establishes a level of mens rea required under the statute that would preclude the hapless pedestrian from being caught in such a broad application of the law. In that respect, the Florida statute is similar to Tennessee’s and different from those in Hawaii, Ohio and Missouri.

Mr. Gonzalez also argues that even if the statute is not overbroad, the trial court erred in failing to apply the rule of lenity in defining the term “attend.” Mr. Gonzalez contends that section 828.122(3)(h), which prohibits knowingly attending the fighting or baiting of animals, can be construed several ways, and the trial court should have interpreted it so that it did not criminalize his conduct.

If the legislature fails to clearly and unambiguously define a crime, “the courts must resolve any doubt as to legislative intent by application of the rule of lenity.” State v. Rubio, 917 So.2d 383, 397 (Fla. 5th DCA 2005). According to the rules of statutory construction, this means that penal statutes should be strictly construed, and “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021, Fla. Stat. (2005).

“To discern legislative intent, the courts apply a common-sense approach which requires consideration of the statutory language, the purpose of the statute, the evil to be corrected, the legislative history, and the pertinent case law that has applied the statute or similar enactments.” Rubio, 917 So.2d at 397. The Florida Supreme Court has “ ‘repeatedly held that the plain meaning of statutory language is the first consideration of statutory construction.’ ” Clines v. State, 912 So.2d 550, 555 (Fla.2005) (quoting Stoletz v. State, 875 So.2d 572, 575 (Fla.2004)). “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931). We conclude that the language of this statute is clear and unambiguous, particularly when considered with the requirement that such attendance be “knowing.” Therefore, the rule of lenity does not apply.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . The overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially “because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).


text:
    Richard RICE, Appellant, v. William Bedford GREENE, Sr., Appellee.
    No. 5D06-773.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    C. Samuel Whitehead, Lexington, KY, for Appellant.
    Bryce W. Ackerman, of Gray, Ackerman & Haines, P.A., Ocala, for Appellee.
   ORFINGER, J.

Richard Rice and William Bedford Greene, Sr. each thought they had purchased a parcel of real property in Marion County, Florida, from Virginia Schwartz. Their beliefs were not unwarranted since they separately entered into contracts to purchase the property from Mrs. Schwartz, and, after paying the purchase price, received a warranty deed from her. What they did not know, because neither of them conducted a proper title search, was that Mrs. Schwartz had conveyed the same property to both of them. Not surprisingly, litigation ensued. The trial court determined that Mr. Greene’s claim to the property was superior to Mr. Rice’s. Mr. Rice now appeals. For the reasons explained hereafter, we affirm.

Michael Schwartz took title to Lot 14, Block 26 of Lakeview Manor in Marion County (“the property”) in November 1981. Mr. Schwartz owned the property until his death in July 1994. In his last will and testament, Mr. Schwartz devised all of his property to his wife, Virginia Schwartz,, to whom he had been continuously married since 1947. Mr. Schwartz’s will never went to probate, either in his home state of North Carolina or in Florida.

On June 25, 2004, Mrs. Schwartz, “on behalf of her deceased husband,” entered into a contract to sell the property to Mr. Rice. On August 4, 2004, Mrs. Schwartz executed and delivered a warranty deed to Mr. Rice, purporting to convey the property to him in accordance with their agreement. For reasons not clear from the record, Mr. Rice failed to promptly record the deed. Nearly two months later, Mrs. Schwartz entered into another contract to sell the property to Mr. Greene. On October 28, 2004, Mr. Greene paid the purchase price and received a warranty deed to the property from Mrs. Schwartz. Mr. Greene recorded his deed on November 8, 2004. Mr. Rice recorded his deed a few weeks later.

Upon learning of the situation, Mr. Rice filed suit against Mr. Greene and Mrs. Schwartz, seeking declaratory relief against Mr. Greene concerning his right to the property, and claiming that Mrs. Schwartz had breached her contract with him. The trial court concluded on summary judgment that Mr. Greene’s right to the property was superior to Mr. Rice’s and entered judgment accordingly.

We review a final order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A court may grant summary judgment only when “there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law.” Id. (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)).

Mr. Rice argues that the trial court erred in granting summary judgment in favor of Mr. Greene because Mrs. Schwartz did not have the title of the property at the time she conveyed it to Mr. Greene. He contends that, at best, she had a mere expectancy. As a result, he posits that Florida’s recording act does not apply. Thus, according to Mr. Rice, under common law, Mr. Rice’s agreement with Mrs. Schwartz has priority.

In support of his argument, Mr. Rice points to section 733.103(1), Florida Statutes (2004). Section 733.103(1) provides that “[ujntil admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.” While true, Mr. Rice’s argument fails to consider section 732.514, Florida Statutes (2004), which provides, “[t]he death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before the devise vests.” Mr. Rice is correct that under section 733.103, Mr. Schwartz’s unprobated will was ineffective to “prove title” to the property, under section 732.514. But, it was Mr. Schwartz’s death that vested Mrs. Schwartz’s rights in the property. Reading these statutes in concert, it is clear that because Mrs. Schwartz never offered Mr. Schwartz’s will for probate, she lacked marketable title to the property. However, she clearly acquired equitable title to the property upon her husband’s death, assuming, as have the parties, that Mr. Schwartz’s will, which was presented to the court below, is authentic. Admittedly, because Mrs. Schwartz’s title was not marketable, under certain circumstances, it might have been subject to divestment for the payment of claims, expenses of administration or taxes. Regardless, those are matters that affect the quality of the title, which is not at issue here. Instead, the only issue is which party has a priority claim to the property as between Mr. Rice and Mr. Greene.

Florida’s recording statute provides:

No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.

§ 695.01(1), Fla. Stat. (2004). In other words, “an unrecorded deed is not good or effectual in law or equity against creditors or subsequent purchasers for valuable consideration who are without notice of the transaction.” Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998). Therefore, because Mr. Greene had no notice of the earlier warranty deed between Mr. Rice and Mrs. Schwartz and paid valuable consideration for the property, Mr. Greene’s recording of his warranty deed before Mr. Rice gives Mr. Greene priority to the property. Since there is no genuine issue of material fact and Mr. Greene is entitled to judgment under section 695.01(1), the trial court did not err in granting Mr. Greene’s motion for summary judgment.

We do note that the language of the final judgment is overly broad, in that it purports to quiet title to the property in Mr. Greene. While the final judgment adjudicated the dispute between Mr. Rice and Mr. Greene, the language in the judgment that “title to the property is forever quieted in William Bedford Greene, Sr.” might mislead third parties. As Mr. Greene’s counsel readily concedes, much more work is necessary before Mr. Greene will have marketable title to the property. This litigation only adjudicated the competing interests of Mr. Greene and Mr. Rice.

AFFIRMED.

PLEUS, C.J. and GRIFFIN, J., concur.

      . The summary judgment in this case only concerned the issue of priority as between Mr. Rice and Mr. Greene. Mr. Rice's breach of contract claim against Mrs. Schwartz was not affected by this judgment.

      . At this point, creditors' claims are likely barred by section 733.710, Florida Statutes (2004), a two-year jurisdictional statute of non-claim that automatically bars claims that are not asserted within two years following the date of death. See May v. Ill. Nat'l Ins. Co., 771 So.2d 1143, 1157 (Fla.2000).


text:
    Robert SOELDNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2842.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert Soeldner, Malone, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, Robert Soeldner raises a minor cost issue. See generally In Re Anders Briefs, 581 So.2d 149 (Fla.1991). Soeldner preserved this issue for appeal by raising it in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

In this matter, Soeldner filed an affidavit of indigency, listing four criminal cases originating in 2004. An order appointing the public defender was entered based on that affidavit. In the written sentences, the trial court ordered Soeldner to pay the statutory application fee of $40 in each of the four cases. See generally § 27.52(2)(a), Fla. Stat. (2004). In the rule 3.800(b)(2) motion, Soeldner argued that the fee should be assessed only once, as the appointment was based on a single affidavit.

Section 27.52(2)(a), Florida Statutes (2004), which was in effect when Soeldner sought appointment of the public defender, reads in pertinent part:

Any person applying for appointment of a public defender or private attorney or any other due process services based on indigent status shall pay a $40 application fee to the clerk of court for each affidavit filed, regardless of the number of required due process services requested in the case.

(Emphasis added). As the State properly concedes, the clear language of the statute requires an application fee for each affidavit filed. The trial court erred by ordering payment of the fee in each case referenced in the affidavit. We, therefore, remand these cases to the trial court to strike three of the four court-ordered application fees in the sentences. In all other respects, the judgments and sentences are affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: STRINGER, Judge.

text:
    Eli BARON, Appellant, v. Mary Armbruster BARON, Appellee.
    No. 2D06-1783.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.

      Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellant.
    J. Christopher Lombardo and Jennifer L. Szymanski of Woodward, Pires & Lom-bardo, P.A., Naples, for Appellee.
   STRINGER, Judge.

Eli Baron (the Father) challenges various aspects of the trial court’s postfinal judgment order which granted portions of Mary Baron’s (the Mother’s) “Verified Emergency Motion for Approval of Placement of Child in Therapeutic Boarding School or in the Alternative for Return of Minor Child.” Because the trial court denied the Father’s due process rights by refusing to continue the hearing on this motion, we reverse and remand for further proceedings.

The parties were divorced in 1996, at which time they had three minor children who lived primarily with the Mother. Starting in 2004, the parties began to experience significant issues with their youngest daughter, which manifested themselves first in an eating disorder and later in more disturbing behavioral problems. In 2006, after experiencing increasing defiance and physical aggression from the youngest daughter, the Mother enrolled her in a multiple-week wilderness program in North Carolina. This program was designed to break down the attitudes of rebellious teenagers and then rebuild their attitudes based on survival skills and cooperation. While the parties dispute whether the Father was aware of the daughter’s pending enrollment in this program, it is undisputed that when the Father learned that the daughter was actually in North Carolina, he traveled there, removed her from the program, and took her to live with him in Miami.

On March 7, 2006, the Mother filed a “Verified Emergency Motion for Approval of Placement of Child in Therapeutic Boarding School or in the Alternative for Return of Minor Child.” No hearing on the motion was set at that time. On March 14, counsel for the Father filed and served a notice of unavailability which indicated that she would be unavailable from March 15 until March 21. Despite this notice, on Friday, March 17, counsel for the Mother served a “Notice of Emergency Evidentiary Hearing” on the Father through counsel, which notice scheduled the hearing on the Mother’s motion for Monday, March 20, at 8:30 a.m. The notice stated that ten minutes had been set aside for this “evidentiary hearing.” It also stated that no continuances of the hearing would be permitted.

At the start of the hearing, the Father orally moved for a continuance, noting that his attorney was in France but that she would be returning the next day. In addition, the courtroom clerk told the court that the Father’s attorney was in France and “that’s why her other case was continued.” Despite this, the court refused to grant the Father’s motion, noting that the hearing was set as an emergency hearing “because of the nature of the pleadings, they’re verified motions.”

The trial court then held a three-hour evidentiary hearing on the Mother’s motion. The transcript of the hearing reflects that the Father is an Israeli native who sometimes had difficulty making himself understood in English. The transcript also reflects that the Mother’s counsel presented the court with a notebook of exhibits relating to the hearing, which notebook had not been provided to the Father before the hearing. At the close of the hearing, the trial court granted the Mother’s motion in part and ordered a variety of activities to occur, including various psychological assessments, none of which had been requested by either party. The Father now appeals from this order, contending that the trial court abused its discretion in not granting his motion for continuance.

The decision whether to grant or deny a motion for continuance is generally left to the broad discretion of the trial court. However, that discretion is not unlimited.

Although trial courts are endowed with rather broad discretion in deciding whether to grant or deny a motion for continuance, the exercise of that discretion is not absolute. We are charged with the task of reviewing a court’s decision on a continuance motion and setting it aside if we determine the trial court abused its discretion. This court considers certain factors in making that determination, including: 1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.

Myers v. Siegel, 920 So.2d 1241, 1242 (Fla. 5th DCA 2006) (internal citations omitted). In addition, it is generally reversible error to refuse to grant a motion for continuance when a party or his counsel is unavailable for physical or mental reasons, which unavailability prevents fair and adequate presentation of the party’s case. A.P.D. Holdings, Inc. v. Reidel, 865 So.2d 682, 683 (Fla. 4th DCA 2004); Lopez v. Lopez, 689 So.2d 1218, 1219 (Fla. 5th DCA 1997); Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991); see also Thompson v. Gen. Motors Corp., 439 So.2d 1012, 1013 (Fla. 2d DCA 1983) (holding that it was an abuse of discretion to refuse to grant continuance when attorney’s illness prevented his appearance at trial).

Under the circumstances presented in this case, we hold that the trial court abused its discretion in refusing to grant the Father’s motion for continuance. First, the underlying cause for the motion for continuance was unforeseen by the Father and his counsel. Neither the Father nor his counsel could have foreseen that either the court or counsel for the Mother would deliberately schedule an emergency evidentiary hearing with one business day’s notice during a. time when the Father’s counsel had already notified everyone that she would be unavailable.

■ Second, it is clear that the Father was prejudiced by the denial of the motion. While the Father was permitted to speak at the hearing, he was not a lawyer and thus had limited ability to make proper objections to the testimony that the Mother offered at the hearing. Further, the Father’s somewhat limited facility with the English language at times hampered his ability to make himself completely understood. In addition, the Father was given a notebook containing the Mother’s proposed exhibits for the first time at the hearing and was given no opportunity to review its contents or make objections to the exhibits before they were admitted in evidence and reviewed by the trial court.

While it is true, as the Mother argues, that the Father was permitted to “testify” in opposition to the Mother’s motion and to cross-examine the child’s therapist, the right to be heard at an eviden-tiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to “introduce evidence at a meaningful time and in a meaningful manner.” Brinkley v. County of Flagler, 769 So.2d 468, 472 (Fla. 5th DCA 2000). It also includes the opportunity to cross-examine witnesses and to be heard on questions of law. Id. Here, the Father was not proceeding pro se and was not prepared to represent himself at the hearing. Further, the record shows that he received the notice of hearing on the Friday before the Monday morning hearing. Given these facts, the denial of the Father’s motion resulted in him not being permitted to present evidence “in a meaningful manner.” While the Mother contends that the Father should have secured other counsel to attend the hearing, even had he tried to do so, there is nothing in the record to show that alternate counsel could have become prepared for such a hearing over the course of a single weekend. The prejudice to the Father by being forced to “go it alone” is patent.

Third, there is nothing in the record to show that either the Mother or the child would have been prejudiced by the two-day delay needed in order to accommodate the Father’s counsel. Nothing in the Mother’s motion indicates that the child was in immediate physical or emotional danger. Rather, the Mother’s “emergency” motion sought only court approval to place the child in a therapeutic wilderness program at some date to begin in the future. The motion was filed on March 7-ten days before the notice of hearing was served and thirteen days before the hearing was actually held. Given the existing thirteen-day delay, a further two-day delay would not have resulted in prejudice or injustice to the Mother.

Because the Father’s counsel was physically unable to be present for the hearing, which was scheduled despite full knowledge of her unavailability, and because the Father was prejudiced by the unavailability of his counsel, the trial court abused its discretion in refusing to grant the Father’s motion for continuance. Accordingly, we must reverse and remand for a new hearing.

While our disposition on this issue renders most of the Father’s remaining arguments moot, we address one other issue raised by the Father because it may arise at the new hearing. The Father argued in this appeal that the trial court erred in allowing the daughter’s psychotherapist to testify at the hearing without first appointing a guardian ad litem to protect the daughter’s patient-psychotherapist privilege if the daughter chose to exercise it. We disagree. Section 90.503(3)(d), Florida Statutes (2005), allows a psychotherapist to assert the privilege on behalf of a patient if the psychotherapist believes that it is in the patient’s best interest to do so. Thus, the daughter’s privilege was already protected, and no guardian ad litem was required. See Hughes v. Schatzberg, 872 So.2d 996, 998 (Fla. 4th DCA 2004). Therefore, the trial court need not appoint a guardian ad litem on remand for this purpose.

Reversed and remanded for further proceedings.

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

      . The Mother states in this appeal that the trial court's judicial assistant called and scheduled the hearing with the Mother’s counsel. Nothing in the record supports or refutes this statement; however, it is clear from the record that the notice of unavailability was provided to both the court and the Mother's counsel before this hearing was scheduled.


author: LAWSON, J.

text:
    Miguel Jose GALLINAT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1322.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.

      Miguel Jose Gallinat, DeFuniak Springs, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

LAWSON, J.

We grant rehearing, vacate our prior opinion, and substitute the following:

Miguel Jose Gallinat appeals from an order determining the amount of jail credit to which he is entitled in three cases. We affirm, and hold that when sentencing documents erroneously over-report the amount of jail time actually served by a defendant prior to sentencing, and the error is apparent on the face of the record, double jeopardy principles generally do not bar a trial court from correcting the jail credit award to accurately reflect the amount of time previously served on the charge(s).

PROCEEDINGS BELOW

By prior order of the trial court (entered by a different judge), Gallinat was sentenced to concurrent prison terms of three years, one month and fifteen days in three separate felony cases. The sentencing documents sent to the Department of Corrections also reflect credit for 285 days served in county jail prior to sentencing in each case. However, court records actually show that while Gallinat was entitled to 285 days in case no. 02-357, he had only served 264 days in case no. 03-629 and 96 days in case no. 02-657, prior to sentencing. Three months later, the trial court entered the “corrected order” now being challenged, which reduced the jail credit award in case nos. 03-629 and 02-657 to the time actually served by Gallinat, as reflected in the records of each case.

WITHDRAWN OPINION

In our prior opinion, we reversed the trial court’s order in reliance on Syverson v. State, 659 So.2d 1344 (Fla. 5th DCA 1995), which held that a trial court retains jurisdiction to correct an erroneous over-award of jail credit for only sixty days after imposition of the sentence. In its motion for rehearing, the State correctly points out that Syverson was decided under a prior version of Florida Rule of Criminal Procedure 3.800. The rule was amended effective January 1, 2001, to provide that: “A court may at any time correct ... a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief....” See Amendments to the Florida Rules of Criminal Procedure, 794 So.2d 457 (Fla.2000). Therefore, our reliance on Syverson was misplaced. There was no sixty-day jurisdictional bar to the trial court’s correction of the jail credit award to Gallinat.

ISSUE PRESENTED

We are now faced, however, with precedent from both the First and Second Districts holding that a trial court can never correct an erroneous award of too much jail credit on the theory that this increases the sentence in violation of the prohibition against double jeopardy. The Second District announced this rule in Gilmore v. State, 523 So.2d 1244 (Fla. 2d DCA 1988), and has followed it consistently. See King v. State, 913 So.2d 758 (Fla. 2d DCA 2005); Lebron v. State, 870 So.2d 165 (Fla. 2d DCA 2004); Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002); Keene v. State, 826 So.2d 327 (Fla. 2d DCA 2002); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997). The First District, citing Le-brón and Linton, has also followed the rule. See Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004).

In our view, however, correcting an erroneous jail credit calculation in no way increases the sentence imposed. With a few exceptions, which we will address, the question is simply a factual one of how much of the imposed sentence a defendant has already served. To us, this seems quite straightforward. A correction to accurately reflect time served in a county jail seems no different than a correction made by the executive branch of a clerical error that overstated the amount of prison time an inmate had served. For example, it is certainly foreseeable that a Department of Corrections data entry operator could incorrectly input an inmate’s commitment date into a computer, resulting in a record stating that the inmate had already served several years in prison on his first day of commitment. Typically, this type of mistake would be caught by an auditor at the Department’s Bureau of Sentence Structure in Tallahassee, and corrected. We see no difference between a correction made by one of the Department’s commitment auditors and a judge’s correction in the reporting of time that an inmate has served toward a sentence when the error is brought to the court’s attention by the state or the court’s clerk. Neither correction implicates a defendant’s constitutional right to be free of double jeopardy.

In general, the Fifth Amendment’s Double Jeopardy Clause “was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). “The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id. at 187, 78 S.Ct. 221. In practice, the Double Jeopardy Clause consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

With respect to this last protection, “the pronouncement of sentence has never carried the finality that attaches to an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 133, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). For example, although the government may not appeal from an acquittal in an attempt to secure a second trial against the defendant, it can appeal from a sentence that fails to conform to the requirements of law and seek a greater sentence on remand if it prevails. Id. at 136, 101 S.Ct. 426. However, the Double Jeopardy Clause has been held to bar a judge from recalling a defendant to increase his legally imposed sentence after the defendant has begun serving the sentence. Id. at 135,101 S.Ct. 426. Florida’s Supreme Court has further refined this concept by holding that a court retains authority to increase a valid sentence only until the conclusion of the initial sentencing hearing. Troupe v. Rowe, 283 So.2d 857 (Fla.1973). Under Troupe, when the sentencing hearing concludes, jeopardy attaches and the court can no longer increase the sentence without violating the Double Jeopardy Clause. Id. at 860.

As alluded to earlier, we see two types of postsentencing orders involving jail credit where this general prohibition should apply. First, there are cases in which the state and a defendant negotiate an overall sentence structure that includes a stipulated amount of time served. In these cases, the number of days credit to be given are part of the bargained-for sentence. If the trial court exercises its discretion to accept the plea and impose the agreed sentence, the court should not be allowed to later lower the agreed upon jail credit figure, For example, if the negotiated plea were to three years in prison with a stipulated credit for one year of time served, the defendant has entered a deal pursuant to which he only has two years left to serve. Once the court accepts the deal and imposes the sentence, any subsequent order reducing the credit for time served would effectively increase the remaining prison time beyond the agreed two year term, and would therefore violate the principle recognized in Troupe.

Second, there are instances in which a trial court exercises discretion in the award of jail credit. For example, a court may award credit for time served “when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced,” Kronz v. State, 462 So.2d 450, 451 (Fla.1985), but is not required to do so. If the court imposed a three year prison sentence and, as part of the sentencing hearing, exercised its discretion by awarding one year of out-of-state time, this discretionary judicial decision would effectively reduce the overall sentence to two years. Thereafter, any decision to reduce this discretionary award of credit would again increase the overall sentence beyond two years, and violate double jeopardy as outlined in Troupe.

However, these two circumstances are the exception. In most cases, the trial court simply imposes a sentence with the understanding by all parties that the defendant is legally entitled to credit against that sentence for whatever time he or she has actually served. The clerk then typically provides the court with a time-served calculation based upon his or her review of the court file (or from a clerk’s computer link to local county jail records). Then, the court simply announces the amount of credit calculated by the clerk, which is noted in the sentencing documents. Under these circumstances, where the only understanding is that the defendant will serve the entire imposed sentence, and will be given credit for whatever time he or she is legally entitled, we do not believe that a later correction to the time served calculation reflected in the sentencing documents increases the sentence for double jeopardy purposes. We reach this conclusion for four reasons.

First, in this more “typical” case, the time served calculation is simply reported by the judge, if at all, for the benefit of the institution to which the defendant will be sent to serve the remainder of his or her sentence, and is not a result of judicial decision-making. For example, if the judge imposes a three-year sentence, and reports one year of time served because the clerk read the time served calculation from the wrong file, the judicially determined sentence is still three years in prison. The judge has not exercised his discretion to reduce the sentence by accepting a stipulated amount of time served agreed to by the parties or by granting discretionary time served to which the defendant is not legally entitled. Under this circumstance, if the defendant had only served two days in jail prior to sentencing, correcting the time served to properly reflect that historical fact will not result in imprisonment for more than three years, and does not “increase the sentence.” Rather, the correction simply ensures that the defendant will serve the sentence judicially imposed.

Second, the United States Supreme Court has cautioned that the constitutional prohibition against double jeopardy should not be used to turn sentencing into “a game in which the wrong move by the judge means immunity for the prisoner.” Bozza v. United States, 330 U.S. 160, 166—167, 67 S.Ct. 645, 91 L.Ed. 818 (1947). That is exactly what would happen here if we were to hold that a judge could never correct a time-served calculation in the “typical” case.

Third, in addressing double jeopardy claims in the sentencing context, the United States Supreme Court has focused on the “legitimate expectations” of the defendant. See, e.g., DiFrancesco, 449 U.S. at 137, 101 S.Ct. 426 (A defendant’s “legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked.”)• In the typical case, the defendant’s only legitimate expectation is that he or she will serve the full sentence, and no more. Consequently, the defendant has a right to expect that any time spent in custody on an offense prior to sentencing will be accurately communicated to the facility at which the remainder of the sentence will be served, so that he or she is given full credit for all time actually served on an offense. Because correcting a time-served reporting error does not defeat a defendant’s legitimate expectations, it should not be held to violate double jeopardy. Id.

Finally, we believe that it is also appropriate to consider the legitimate expectations of the victim(s) of a particular crime involved in a case where jail credit is erroneously overstated, and of society in general. Both should be able to legitimately expect that the crime will be punished, which includes a right to expect that a lawfully-imposed sentence will be fully served. There are, of course, legally-approved methods for reducing time served on a sentence, such as the award of administrative gain time, and clemency. However, these procedures have been lawfully adopted by our state’s elected representatives. A judicially-created rule that shortens a lawfully-imposed sentence by barring anyone from correcting a mistake that credits the defendant with time against his sentence that he or she has never actually served clearly thwarts society’s interest in extracting a full and just punishment for crime.

For these reasons, we affirm the order on appeal, and certify conflict with the First District’s decision in Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004), and with the following Second District decisions: Gilmore v. State, 523 So.2d 1244 (Fla. 2d DCA 1988); King v. State, 913 So.2d 758 (Fla. 2d DCA 2005); Lebron v. State, 870 So.2d 165 (Fla. 2d DCA 2004); Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002); Keene v. State, 826 So.2d 327 (Fla. 2d DCA 2002); and Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997).

AFFIRMED; CONFLICT CERTIFIED.

THOMPSON and EVANDER, JJ., concur.

      . In some circuits, the clerk’s office regularly conducts its own audit or review of court minutes and clerk-generated sentencing documents. When errors are found, the clerk will present the judge with "corrected" documents for signature.

      . "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....” U.S. Const., Amend. 5.

      . Other state courts have reached different conclusions as to exactly when a trial court loses the ability to increase a sentence without violating double jeopardy. A comprehensive overview of the law in all fifty states regarding this issue is found at 26 A.L.R.4th 905.

      . In many Florida jurisdictions time served is not regularly provided to the trial court at sentencing. In these jurisdictions, the court simply announces that the defendant will be given credit for time served. After court, the clerk’s office (or jail personnel) then calculate the amount of time served and add their calculation to the defendant’s sentencing and commitment package.

      . The Department of Corrections typically does not have access to local jail records to determine time served prior to sentencing, and therefore relies upon the report of time served from the sentencing documents to calculate a release date. Even if the remainder of the sentence is a local jail sentence, the local jail generally will only have a record of the time that an inmate has spent in their facility on a charge. If the inmate was arrested on the charge in another Florida county, he or she would generally be entitled to credit for that time, but it would not be reflected in the local jail records. So, again, the institution would rely upon the time served report in the sentencing documents.


text:
    Gary KNAUFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2407.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.

      Gary T. Knauff, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gary Knauff appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Knauff raised several claims in his motion, only one of which has merit.

Included in Knauffs second claim is an allegation that Knauffs plea was involuntary and coerced by threats of trial counsel, shortly before trial, that if Knauff did not accept the State’s plea offer, counsel would abandon him. These allegations present a facially sufficient claim. See Jackson v. State, 801 So.2d 1024 (Fla. 5th DCA 2001); Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991). Because the trial court summarily denied this claim without attaching portions of the record that refute it, we reverse with respect to this issue only. On remand, the trial court must either attach portions of the record that conclusively refute this claim or hold an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED with instructions.

PALMER, MONACO and LAWSON, JJ., concur.

      . The trial court's order did include, as an attachment, a transcript of the plea hearing. However, the judge who accepted the plea failed to make any inquiry of Knauff to assure that his plea was voluntary and not coerced, as expressly required under Florida law. See Fla. R.Crim. P. 3.170(h), 3.172. The plea in this case was taken by a different judge than the one who considered Knauffs 3.850 motion.


text:
    George GLISSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2259.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    George Glisson, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this rule 3.800(a) proceeding challenging Appellant’s habitual offender sentence, the lower court summarily denied Appellant’s motion because it concluded that an evidentiary hearing was required. We reverse. When the issue relates to the viability of a predicate offense to support habitualization, a rule 3.800(a) motion is the proper procedural vehicle to attack the conviction if evidence of the challenged predicate conviction was introduced into evidence at the sentencing. Bover v. State, 797 So.2d 1246 (Fla.2001). Here, Appellant alleges that a certified copy of the challenged predicate conviction was part of the record. Therefore, as the state properly concedes, the lower court should have determined if the conviction was part of the record and, if so, whether Appellant is correct on the merits.

We therefore reverse the lower court’s order and remand this cause with directions that the lower court address the merits of Appellant’s motion or provide record support to conclusively refute the allegations.

REVERSED AND REMANDED.

THOMPSON, SAWAYA and TORPY, JJ., concur.


text:
    D.O.A., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-826.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

D.O.A. was adjudicated guilty of two counts of burglary of a dwelling in violation of section 810.02, Florida Statutes (2006). He appeals the adjudication of only one count, contending that there was insufficient evidence that he entered or remained in the dwelling of Kimberly Waddy. Based on our review of the record, we agree. Ms. Waddy opened the door that D.O.A. was rattling and was about to enter, causing him to run away. Thus, Ms. Waddy prevented a burglary that no doubt would have been completed but for her fortuitous intervention.

We reverse one adjudication of burglary of a dwelling and remand with directions that the adjudication be amended to reflect the offense of attempted burglary of a dwelling, which was clearly shown by the evidence. The remaining burglary adjudication is unaffected.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: MONACO, J.

text:
    Jose CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3863.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Jose Cruz, was convicted of one count of lewd and lascivious molestation and one count of lewd or lascivious conduct, both of which are violations of subsections of section 800.04, Florida Statutes (2004). Because of the constitutional requirements prohibiting double jeopardy, one of the convictions must be reversed.

Mr. Cruz, who was over 18 at the time of the offenses, was convicted by jury trial of one count of the information that alleged that on October 4, 2004, he touched the breast or the clothing covering the breast of the victim, who was 15 years of age, in violation of section 800.04(5)(c)2, Florida Statutes (2004). He was also convicted of another count of the information that alleged that on the same date he sucked or kissed the neck of the victim in a lewd or lascivious manner, in violation of section 800.04(6)(b), Florida Statutes (2004). The Assistant State Attorney admitted to the trial court that “there seems to be [that] this is one continuous act.” That is to say, these actions occurred during a single episode in a single location and without any meaningful temporal breaks between the acts.

This case is controlled by the Florida Supreme Court’s decision in State v. Paul, 934 So.2d 1167 (Fla.2006). When considering facts quite similar to those presented to us, the high court’s majority opinion said:

The first criminal episode occurred in the living room when Paul first entered the home. Specifically at issue are two counts: (1) count I — lewd and lascivious molestation by touching the victim’s genital area or the clothing covering it in violation of section 800.04(5)(a); and (2) count V — -lewd and lascivious conduct by kissing the victim’s neck in violation of section 800.04(6)(a). In order for multiple convictions to be permitted under these two counts pursuant to section 775.021(4)(a), i.e., the “same elements” test, each offense is considered separate “if each offense requires proof of an element that the other does not, without regard, to the accusatory pleading or the proof adduced at trial” § 775.021(4)(a), Fla. Stat. (2005) (emphasis added). Therefore, we must review the necessary elements of each violation under the statute itself. In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(l) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less that 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999). [footnote omitted]. In other words, any violation of subsection (5)(a), which prohibits the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true — that (6)(a)(l) has an element(5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations.

Id. at 1173-74.

Accordingly, we reverse the judgment and sentence and remand this matter to the trial court with instructions to enter a new judgment with respect to only one of the counts for which Mr. Cruz was found guilty, and to resentence him accordingly. We have examined the other matters raised by Mr. Cruz but find them to be without merit.

REVERSED and REMANDED with INSTRUCTIONS.

SAWAYA and PALMER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Deborah STENMARK, Respondent.
    No. 2D06-2263.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.

      Judson Chapman, General Counsel, and Jason Helfant, Assistant General Counsel, Department of Highway Safety & Motor Vehicles, Miami, for Petitioner.
    Scot E. Samis and Jennifer J. Card of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Respondent.
   NORTHCUTT, Judge.

The Department of Highway Safety & Motor Vehicles seeks second-tier certiorari review of a circuit court decision that quashed the suspension of Deborah Sten-mark’s driver’s license. We grant the petition.

Stenmark was stopped and ultimately arrested for driving under the influence. She requested a formal review of the Department’s suspension of her driver’s license. See § 322.2615, Fla. Stat. (2004). At the hearing, Stenmark challenged the suspension and asserted that the stop was not based on a reasonable suspicion. See § 322.2615(7)(a)(2) (requiring hearing officer to determine whether person was placed under lawful arrest for DUI). The hearing officer considered the following evidence.

Stenmark was arrested at about 2:00 in the morning, shortly after she had stopped her car at a red light. According to Sten-mark, she had just come from a fast food restaurant and had spilled food in her lap. She testified that while she waited for the light to change, she tried to clean up the mess. As she did so, she kept looking up to see if the light had turned green. According to the report by a Largo police officer, he saw Stenmark stopped at the intersection and observed her head bobbing up and down. Thinking that Sten-mark might have passed out, he approached the car.

The witnesses gave conflicting accounts of what occurred next. Stenmark testified that the light turned green and she began to drive off when someone approached and yelled for her to stop. When she realized that the man yelling at her was a police officer, she stopped her car. At that point, she said, the officer reached into the car and grabbed her keys.

The officer gave the following version:

I exited my vehicle and made my way to the driver’s side of the vehicle where I made contact with the driver, who was still passed out. I reached in and attempted to turn the vehicle off. At this time, the driver woke up and the vehicle began drifting into the middle of the intersection. I was able to instruct the driver of the vehicle to place the vehicle into park in order to stop it.

In his order, the hearing officer found: “Officer Martens exited his vehicle and made contact with Ms. Stenmark, who was passed out. Officer [Martens] reached into the vehicle in an attempt to turn it off. Ms. Stenmark woke-up and the vehicle began to drift forward. Officer Martens ordered the vehicle to stop.” Based on the findings of fact, the hearing officer ruled that the stop was lawful.

On certiorari review, the circuit court disagreed. Although it quoted the hearing officer’s findings verbatim, the circuit court found that Stenmark’s innocent explanation for her head bobbing refuted the officer’s concern that she was passed out. Thus, the circuit court reasoned, the officer lacked a reasonable basis for conducting a traffic stop. Although we do not disagree with the circuit court’s analysis of the law regarding traffic stops, we conclude that the circuit court improperly reweighed the evidence in reaching its decision.

When reviewing an administrative order by certiorari, the circuit court’s task is to determine whether procedural due process was accorded in the proceedings giving rise to the order, whether the essential requirements of law were observed, and whether the administrative findings and judgment were supported by competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). But the circuit court is not entitled to reweigh the evidence; it may only review the evidence to determine whether it supported the hearing officer’s findings. State, Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32, 35 (Fla. 2d DCA 2001). If the circuit court reweighs the evidence, it has applied an improper standard of review, which “is tantamount to departing from the essential requirements of law[.]” Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 845 (Fla.2001); see also Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607 (Fla. 2d DCA 2005) (granting second-tier certiorari relief when circuit court improperly reweighed the evidence).

On second-tier certiorari review, this court may only determine whether the circuit court afforded procedural due process and whether it departed from the essential requirements of law. Haines City Cmty. Dev., 658 So.2d at 530. Here, the circuit court departed from the essential requirements of law by reweighing the evidence. As the circuit court’s opinion observed, Stenmark had an innocent explanation for the behavior that drew the officer’s attention. But this did not refute the officer’s testimony that when he approached to check on Stenmark’s safety, he discovered that she was, in fact, passed out behind the wheel of a car that was stopped at an intersection with the motor running. That evidence supported the hearing officer’s order. Accordingly, we quash the order on review.

Petition granted; order quashed.

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


text:
    Treston HOLLINGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2496.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Treston Hollinger, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the summary denial of Tre-ston Hollinger’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, with the exception of ground 6. As the State properly concedes, the trial court inadvertently failed to consider ground 6 of Hollinger’s motion. Consequently, we remand this matter to the trial court to consider ground 6. In all other respects, the matter is affirmed.

AFFIRMED IN PART; REVERSED IN PART, REMANDED.

PLEUS, C.J., ORFINGER and LAWSON, JJ., concur.


text:
    Erice GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3776.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Erice Green, Daytona Beach, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Erice Green seeks from this court a belated appeal. We summarily deny his petition, but without prejudice, as will be explained.

In the instant petition, Green alleges that after he was convicted, he requested his trial counsel to file a direct appeal on his behalf, but through “no fault” on his part, the appeal was not timely filed. He goes on to allege that this court in 5D05-2924 dismissed his appeal without prejudice to him seeking a belated appeal. Green “swears” that the alleged facts “are the truth,” but his petition lacks an oath.

Under Rule 9.141(c)(3)(F), a petition for belated appeal must be sworn. Though, as indicated, Green “swears” that the alleged facts in his petition “are the truth,” nothing in his allegations subject him to perjury charges for an untrue statement as required by State v. Shearer, 628 So.2d 1102 (Fla.1993) and section 92.525, Florida Statutes, which sets forth the form to be used for a written declaration for a sufficient unnotarized oath. When a petition for belated appeal is not properly sworn, it is subject to denial as facially insufficient, but without prejudice to the petitioner filing a facially sufficient sworn petition. See Popp v. State, 935 So.2d 93 (Fla. 5th DCA 2006) (when petition for belated appeal was not sworn to, petition would be denied as facially insufficient, without prejudice to file a facially sufficient sworn petition); Abbot v. State, 929 So.2d 723 (Fla. 5th DCA 2006) (petition for belated appeal insufficient because it is unsworn).

Accordingly, we summarily deny the instant petition without prejudice to Green filing a sworn petition.

PLEUS, C.J., MONACO and EVANDER, JJ., concur.


text:
    Harry M. KOSLOWSKI, Petitioner, v. Susan S. KOSLOWSKI, n/k/a, Susan Hardman, Respondent.
    No. 1D06-5111.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Ned I. Price and Beth M. Terry of the Law Offices of Ned I. Price, P.A., Jacksonville, for Petitioner.
    Elliot Zisser of Zisser, Robison, Brown, Nowlis & Maeiejewski, P.A., Jacksonville, for Respondent.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995).

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