author: HAWKES, J. BENTON, J.,

text:
    Lucy D. HADI, as Secretary of the State of Florida, Department of Children and Families, Appellant, v. LIBERTY BEHAVIORAL HEALTH CORPORATION, Appellee. Liberty Behavioral Health Corporation, Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 1D05-3264, 1D05-4663.
    District Court of Appeal of Florida, First District.
    March 29, 2006.
    Rehearing Denied May 4, 2006.

      W. Robert Vezina, III, Esquire, Mary Piccard Vance, Esquire, Vezina, Lawrence & Piscitelli, P.A., Tallahassee, and Josefina M. Tamayo, General Counsel, Florida Department of Children and Families, Tallahassee, for Appellant (1D05-3264).
    Cynthia S. Tunnicliff, Esquire, and Brian A. Newman, Esquire, Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellant (1D05-4663) and Appellee (1D05-3264).
    W. Robert Vezina, III, Esquire, and Mary Piccard Vance, Esquire, Vezina, Lawrence & Piscitelli, P.A., Tallahassee, for Appellee (1D05-4663).
   HAWKES, J.

These consolidated appeals result from Liberty Behavioral Health Corporation’s (Liberty’s) challenge to specifications contained in the Request for Proposals (RFP) issued by the Department of Children and Families (DCF), to construct a civil commitment facility for sexually violent predators.

In the first appeal, Liberty sought to uphold the trial court’s grant of a temporary injunction, which prevented DCF from enforcing the statutory requirement that Liberty post a 1% protest bond prior to bringing a challenge to the RFP specifications. In that appeal, Liberty argues the amendment to section 287.042(2)(c), Florida Statutes (2002), which removed the option of posting a $5,000.00 bond pri- or to challenging a bid specification, but continued to require posting a bond constituting 1% of the estimated contract price, is unconstitutional.

In the second appeal, Liberty challenged DCF’s decision to conduct an informal rather than a formal hearing, to resolve the dispute arising from Liberty contesting two of DCF’s RFP specifications as arbitrary and capricious.

Finding no merit in either of Liberty’s arguments, we reverse the trial court’s order in the first appeal, and affirm DCF’s order in the second.

Factual and Procedural Background

On June 21, 2005, DCF issued its RFP for the construction and operation of the sexually violent predator facility. There were two RFP specifications challenged by Liberty. The first required that potential vendors realize a substantial portion of their annual revenues from managing “ACA -accredited private correctional facilities,” (i.e., have experience operating a correctional facility). The second required the sexually violent predator facility be designed to meet the ACA prison standards for security.

In their protest, Liberty alleged these two specifications were arbitrary and capricious, and would disqualify it from bidding, even though it has operated the existing sexually violent predator facility under contract with DCF for approximately six years. However, to have a valid protest, Liberty was required to post a $5,062,550.00 protest bond. As required by section 287.042(2)(c), Florida Statutes, this amount constituted 1% of the estimated five hundred million dollar value of the contract that would result from the RFP.

Instead of posting the statutorily required bond, Liberty filed a declaratory judgment action, alleging the 1% bond requirement was unconstitutional. Liberty also filed a motion seeking a temporary injunction to prohibit DCF from enforcing the statutory protest bond requirement with regard to Liberty’s protest. The injunction would allow Liberty to file their protest and, consequently, stop all progress on the RFP.

Following a hearing, the trial court entered an order granting Liberty’s motion for temporary injunction. The order: (1) conclusorily found Liberty had shown a likelihood of success on the merits, irreparable harm and no adequate remedy at law; (2) required Liberty to post a $5,000.00 bond, and (3) enjoined DCF from requiring a 1% protest bond before accepting Liberty’s protest. DCF appealed, automatically staying the trial court’s temporary injunction. Liberty filed a motion to vacate the stay, which the circuit court granted.

During the pendency of DCF’s appeal of the injunction, Liberty’s challenge to the RFP specifications continued before DCF. Liberty requested a formal hearing before the Division of Administrative Hearings (DOAH) pursuant to section 120.57(1), Florida Statutes (2005), instead of an informal hearing pursuant to section 120.57(2), Florida Statutes (2005). As grounds for entitlement to a formal hearing, Liberty asserted there were disputed issues of material fact. These disputed facts included, but were not limited to, whether the terms, conditions and specifications: (a) relating to financing the construction and operation of the facility; (b) requiring the facility be constructed to prison standards; and (c) limiting vendors to entities that realize a substantial portion of their revenues from management of a correctional facility, were arbitrary and capricious, clearly erroneous, and contrary to competition and Chapter 394, Part V, Florida Statutes.

After hearing arguments of counsel, DCF determined a formal hearing was not required because, contrary to Liberty’s assertions, there were no disputed issues of material fact. Consequently, DCF conducted an informal hearing.

At the informal hearing, it was uncontested that, during the course of Liberty’s performance of the existing contract, security problems had led to DCF and Liberty requesting and receiving assistance from the Department of Corrections (DOC) to reestablish command and control of Liberty’s current facility. DOC, together with local law enforcement and a private security vendor, conducted an intervention at Liberty’s facility. This intervention involved 450 law enforcement officers, during which Liberty’s population of approximately 500 sexually violent predators was again secured. As a result of this incident, DOC and DCF entered into a contract for continued monitoring and oversight of Liberty’s facility. Liberty presented evidence to show the security problems were less serious than perceived by DCF, but acknowledged the existence of security problems that implicated life safety issues at the facility prior to DOC’s intervention.

The hearing officer noted that whether Liberty adequately performed its obligation under the existing contract was not the issue in the specification protest. Thus, Liberty’s factual claims regarding the level of security, the extent of command and control problems, and the extent to which Liberty did or did not cure security deficiencies, need not be resolved. The hearing officer concluded the sole is7 sue for resolution was whether DCF’s decision to include the challenged RFP specifications was arbitrary and capricious or, stated differently, whether DCF’s decision to include the specifications was supported by logic so that it was not irrational. The hearing officer found the decision to include the specifications was reasonable, and within the agency’s discretion. The hearing officer’s order resulted in Liberty filing the second appeal.

Liberty Is Not Entitled to a Temporary ¡Preliminary Injunction

“[T]he issuance of a preliminary injunction is an extraordinary remedy which should be granted sparingly, [and] which must be based upon a showing of the following criteria: (1) The likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of public interest.” Shands at Lake Shore, Inc. v. Ferrero, 898 So.2d 1037, 1038-1039 (Fla. 1st DCA 2005); City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750 (Fla. 1st DCA 1994).

“Every injunction shall specify the reasons for entry....” Fla. R. Civ. P. 1.610(c). “Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a preliminary injunction.” Milin v. N.W. Fla. Land, L.C., 870 So.2d 135, 136 (Fla. 1st DCA 2003). “The findings must do more than parrot each tine of the four-prong test.” Santos v. Tampa Med. Supply, 857 So.2d 315, 316 (Fla. 2d DCA 2003); see also Yardley v. Albu, 826 So.2d 467 (Fla. 5th DCA 2002).

Here, the temporary injunction failed to provide any factual findings to support the essential elements of the four-prong test. Instead, the order simply parrots three of the injunction criteria, and fails to even mention the fourth (consideration of public interest). Consequently, it is facially deficient, and therefore REVERSED.

Liberty’s Required Showing to Successfully Challenge the RFP Specifications

For Liberty to prevail in its challenge to the RFP specifications, it must show DCF’s decision to include the contested specifications was arbitrary or capricious. See § 120.57(l)(d), Fla. Stat. (2005); § 120.57(3)®, Fla. Stat. (2005). An action is “arbitrary if it is not supported by logic or the necessary facts,” and “capricious if it is adopted without thought or reason or is irrational.” § 120.57(l)(e)2.d., Fla. Stat. The determination as to whether DCF’s decision was arbitrary or capricious is resolved by conducting either a formal or an informal hearing. See § 120.57(1) — (2), Fla. Stat. (2005) If disputed issues of material fact exist, a formal hearing must be held. See § 120.57(3)(d)3, Fla. Stat. (2005); see also GTECH Corp. v. Dep’t of Lottery, 737 So.2d 615 (Fla. 1st DCA 1999).

No Disputed Issues of Material Fact

Liberty’s assertions that disputed issues of material fact exist, do not create disputed issues of material fact. See generally, e.g., Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004). If DCF correctly concludes no disputed issues of material fact exist, it may proceed informally. See Nicolitz v. Bd. of Opticianry, 609 So.2d 92 (Fla. 1st DCA 1992); see also Schafer v. Dep’t of Bus. & Prof. Reg., 844 So.2d 757 (Fla. 1st DCA 2003).

Here, Liberty conclusorily asserts the RFP specifications, which require the sexually violent predator facility be built to prison construction standards, and that bidders receive a substantial portion of their annual revenues from the operation of correctional facilities, are arbitrary and capricious. However, Liberty does not allege any disputed material facts upon which its allegations are based, nor does it allege the specifications are so vague it cannot formulate a bid, or so unreasonable as to be impossible with which to comply. See Advocacy Ctr. for Persons With Disabilities, Inc. v. Dep’t of Children & Family Servs., 721 So.2d 753 (Fla. 1st DCA 1998) (noting a challenge to an RFP must be directed to specifications so vague that bidders cannot formulate an accurate bid, or so unreasonable that they are either impossible to comply with or too expensive to do so and be competitive).

Liberty’s failure to cite with specificity any material facts in dispute, means DCF did not abuse its discretion by refusing to refer the matter to DOAH, and by proceeding informally pursuant to section 120.57(2), Florida Statutes.

Decision to Include the Contested RFP Specifications Was Not Arbitrary or Capricious

The contested RFP specifications arise from DCF’s statutory obligation to construct a new commitment facility for individuals committed, against their will, under the Jimmy Ryce Act. To be committed under the Jimmy Ryce Act, an individual must be lawfully incarcerated at the time commitment is sought, and meet the two-prong definition of a sexually violent predator. See Westerheide v. State, 831 So.2d 93, 106 (Fla.2002). “Pursuant to this statutory definition, a sexually violent predator is any person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” Id. (emphasis in original) (citing § 394.912(10), Fla. Stat. (2001)).

“The statute defines ‘mental abnormality’ as ‘a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.’ ” Id. (quoting § 394.912(5)). “ ‘Likely to engage in acts of sexual violence’ is defined as ‘the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.’ ” Id. (quoting § 394.912(4), Fla. Stat.). “ ‘[L]ikely’ is a widely used term that is commonly understood by men and women of common intelligence to mean highly probable or probable and having a better chance of existing or occurring than not.” Id.

The dangerous nature of the individuals to be committed, and the fact that they are required by statute to be committed to a secure facility, supports DCF’s decision to require the sexually violent predator treatment facility be constructed to the security specifications of an ACA approved prison, and that bidders have correctional experience.

Further support for the contested RFP specifications can be found in DCF’s “real world” experience of Liberty’s management of the existing facility. During this time Liberty lost control of its sexually violent predator population. The loss of control required DOC intervention to regain command and control of the facility and resulted in continued DOC monitoring.

DCF’s decision to include the challenged RFP specifications was rational and supported by logic and reason. The fact that the challenged specifications may preclude Liberty from bidding does not render DCF’s decision to include them arbitrary and capricious. DCF’s order is AFFIRMED.

Conclusion

For the reasons specified herein, the order granting the temporary injunction in the first appeal is REVERSED, and DCF’s order denying Liberty a formal hearing in the second appeal is AFFIRMED.

POLSTON, J., concurs; BENTON, J., concurs in part and dissents in part, with written opinion.

BENTON, J.,

concurring in part and dissenting in part.

I concur in today’s judgment insofar as it reverses the circuit court injunction, although it does so too late to do much good here. “The doctrine of exhaustion of administrative remedies precludes judicial intervention in executive branch decision-making where administrative procedures [and, if necessary, ensuing judicial review under section 120.68] can afford the relief a litigant seeks.” Fla. Marine Fisheries Comm’n v. Pringle, 736 So.2d 17, 20 (Fla. 1st DCA 1999). The trial court violated well-established principles by interjecting itself into an ongoing administrative proceeding, without requiring exhaustion of administrative remedies.

A bid dispute arose when Liberty sought to challenge certain specifications in a draft request for proposals as anticompeti-tive, arbitrary and capricious. Liberty alleged the challenged specifications would have the effect of disqualifying it from bidding or proposing to perform certain services, essentially on grounds of insufficient experience, even though Liberty had been performing such services for a period of years, and was indeed the only entity who had ever done so in Florida.

After filing a notice of intent to protest and learning the amount of the bond it would have to post to make the bid protest (but before actually filing a written protest with the agency), Liberty made a preemptive strike in circuit court. There Liberty mounted an ostensible challenge to provisions of the very statute under which Florida allows prospective bidders to have input into the drafting of specifications. Surprisingly, the circuit court not only enjoined the agency’s requiring a bond in the amount it had determined to be statutorily mandated, but also vacated the automatic stay that resulted from the agency’s prompt appeal.

The “mere assertion of constitutional questions should not automatically entitle a party to bypass administrative channels.” Gulf Pines Mem’l Park, Inc. v. Oaklawn Mem’l Park, Inc., 361 So.2d 695, 699 (Fla.1978). Liberty’s allegation in circuit court that the bond requirement in section 287.042(2)(c), Florida Statutes (2002), is unconstitutional on its face does not present a close question, and did not justify an injunction altering the course of administrative proceedings already in progress. Whether a particular bond has been (or even could be) set so high as to deprive a vendor of a constitutional right can be decided, if not earlier, on review under section 120.68 of any final order entered.

Constrained by the circuit court’s unwarranted injunction, the agency allowed a protest unaccompanied by the protest bond the statute required. Liberty’s complaint that the hearing the agency then conducted on the protest was an informal hearing under section 120.57(2), rather than a formal hearing under section 120.57(1) — -required when there are disputed issues of material fact — merits limited sympathy in the context of a bid protest that was never properly perfected to begin with, because the requisite bond was not posted.

On the other hand, we ought not deprive a party of a hearing to which it would have been entitled on grounds that, relying on the circuit court’s injunction, it failed to post a bond the circuit court had (erroneously) enjoined the agency from requiring. As for the type of hearing, I agree with Liberty that there were disputes of material fact germane to the challenged specifications, and that any hearing to which it might be entitled should be conducted under section 120.57(1). See Meller v. Florida Real Estate Comm’n, 902 So.2d 325, 327 (Fla. 5th DCA 2005) (“If the agency’s action will determine the substantial interests of a party and there are disputed issues of material fact, a party is entitled to a formal proceeding under section 120.57(1). See § 120.569(1), Fla. Stat. (2003); Spuza v. Department of Health, 838 So.2d 676 (Fla. 2d DCA 2003); Buchheit v. Department of Bus. & Prof'l Regulation, Div. of Fla. Land Sales, Condos. & Mobile Homes, 659 So.2d 1220 (Fla. 4th DCA 1995); Foreman v. Columbia County Sch. Bd., 408 So.2d 653 (Fla. 1st DCA 1981).”).

Accordingly, I would reverse and remand with directions that Liberty be given a two- or three-day period in which to post bond in the amount the agency has set. If (and only if) such a bond were posted, Liberty would be entitled to a formal administrative hearing. To the extent today’s decision does not allow this opportunity, I respectfully dissent.

      . Prior to 2002, the protest bond amount for a protest of procurement specifications was 1% of the estimated contract amount or $5,000.00, whichever was less. See § 287.042(2)(c), Fla. Stat. (2001). The 2002 Legislature amended the amount for a protest bond eliminating the $5,000.00 maximum, so the amount of a protest bond is now required to be 1% of the estimated contract price. See § 287.042(2)(c), Fla. Stat. (2002). The 2002 amendment also eliminated any administrative remedy to challenge the amount of the protest bond required by the agency’s estimated contract amount. Specifically, section 287.042(2)(c), Florida Statutes (2005), provides "[t]he estimated contract amount is not subject to protest pursuant to s. 120.57(3).” Id.

      . The American Correctional Association, or ACA, is a private accreditation organization that evaluates correctional facilities based on uniform standards relating to issues such as security, training, administration, protection of inmate rights, and medical treatment.

       "Since the administrative process cannot resolve a constitutional attack upon a statute, as noted in Carrollwood State Bank v. Lewis, 362 So.2d 110, 113-114 (Fla. 1st DCA 1978), and Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), the circuit court may entertain a declaratory action as to the statute's validity when the facial constitutionality of a statute being implemented by an agency is challenged.'' Fla. Marine Fisheries Comm’n v. Pringle, 736 So.2d 17, 22 n. 4 (Fla. 1st DCA 1999). But such a challenge must raise a substantial question to justify interference with an ongoing administrative proceeding.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Flora DE LAS CUEVAS, Appellant, v. NATIONAL ENTERPRISES INCORPORATED, a/k/a National Enterprises, Inc., Appellee.
    No. 3D04-1909.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.

      Duarte, Ariz & Piedra and Jorge L. Piedra and Veronica A. Diaz, Coral Gables, for appellant.

      Liebler, Gonzalez & Portuondo, Miami, and J. Randolph Liebler, for appellee.
    Before COPE, C.J., and LEVY and SUAREZ, JJ.
   SUAREZ, J.

Flora De Las Cuevas appeals from a final judgment in favor of National Enterprises, Inc. (“NEI”). We affirm the Final Judgment.

In July, 1986, Flora De Las Cuevas and her husband, Mario De Las Cuevas, executed and delivered a promissory note (“Note I”) in the amount of $1.25 million payable to General Federal Savings & Loan Association of Miami (“Federal”). The note was secured by a leasehold mortgage signed only by Mario De Las Cuevas on land owned by Mario De Las Cuevas (“leasehold interest”). In June, 1988, Mario De Las Cuevas entered into a Mortgage Modification and Extension Agreement (“Modification Agreement”) with Federal’s successor, General Bank (“General”). The Modification Agreement restructured the terms of the loan and General loaned an additional $150,000.00 to Mario De Las Cuevas. Mario De Las Cuevas executed another promissory note payable to General (“Note II”). Only Mario De Las Cuevas executed the Modification Agreement and Note II. Flora De Las Cuevas did not execute either document. In 1989, the loan went into default. By 1989, the Resolution Trust Corporation (RTC) had taken over Federal and instituted foreclosure procedures on the leasehold interest property naming as defendants both Mario De Las Cuevas and Flora De Las Cuevas. The RTC three-count complaint sought the appointment of a receiver and an assignment of rents. Count III requested a judgment against Mario De Las Cuevas and Flora De Las Cuevas for the principal sum due on Note I. The RTC moved for summary judgment. Partial summary judgment was entered in favor of the RTC and the trial court ordered the leasehold property sold to satisfy the mortgage debt. The trial court denied summary judgment without prejudice as to count III and retained jurisdiction. The RTC was the high bidder at the foreclosure sale and the clerk issued title to the RTC. The RTC did not pursue any further claims and a final order of dismissal for lack of prosecution was entered in October, 1993. The RTC then sold the leasehold interest and the unsecured debt to National Enterprises Incorporated (“NEI”). In 1995, NEI brought the present action against Flora De Las Cuevas seeking payment of the remaining balance of $1,189,573.91 due under Note I. In her answer, Flora De Las Cuevas included the defense that Note I was amended and restructured, that she had not agreed to the amendment and restructuring and that the new debt acted as a novation thereby relieving her of liability under Note I. A non-jury trial was held and the court entered a final judgment in favor of NEI. Flora De Las Cuevas’s motion for rehearing was denied and a separate final judgment was entered ordering her to pay the sum of $1,189,573.91, plus interest in the sum of $1,430,436.47. This appeal followed.

Flora De Las Cuevas first argues that she is relieved of liability under Note I as the Modification Agreement signed only by her husband served as a novation of Note I. NEI denies any intent for the Modification Agreement to serve as a novation. A novation may occur where there is a mutual agreement between the parties to discharge a valid existing obligation by the substitution of a new valid obligation. Jakobi v. Kings Creek Vill. Townhouse Ass’n, 665 So.2d 325, 327 (Fla. 3d DCA 1995) (citing Ades v. Bank of Montreal, 542 So.2d 1013 (Fla. 3d DCA 1989)). Whether a novation takes place depends upon the intent of the parties. The intent can be determined by the documents if the terms are not in dispute. If there is a dispute as to the intent of the parties, then it is a question of fact for the trier of fact. See Pinnacle Holding, Inc. v. Biologics, Inc., 643 So.2d 642 (Fla. 2d DCA 1994). Findings of fact by the trial court carry a presumption of correctness absent an abuse of discretion. Cohen v. Lansburgh, 366 So.2d 154 (Fla. 3d DCA 1979). In order to prove the intent of the parties that the Modification Agreement was meant as a substitute of Note I, Flora De Las Cuevas had the duty to prove the following at trial: 1) the existence of a previously valid contract; 2) the agreement to make a new contract; 3) the intent to extinguish the original contractual obligation; and 4) the validity of the new contract. S.N.W. Corp. v. Hauser, 461 So.2d 188, 189 (Fla. 4th DCA 1984). We find the trial court did not abuse its discretion in finding the parties did not intend for the Modification Agreement to serve as a novation. The evidence included testimony from Flora De Las Cuevas that she did not know about the Modification Agreement and was not consulted. The bank testified that the Modification Agreement was not intended as a substitution for Note I. Unlike the factually similar case of Houstoun v. Albury, 436 So.2d 224 (Fla. 3d DCA 1983), where this court found a novation, Note I was not marked “paid by renewal” or with any other marking to show the parties’ intent to substitute Note I with the Modification Agreement.

Additionally,- the Modification Agreement unambiguously shows by its language the intent of the parties that it was not intended as a substitute for Note I. The Modification Agreement specifically provides:

NOTE II shall be secured in a like manner as Note I, and Note I shall be secured in a like manner as Note II, and a default in either Note shall be considered a default in the other Note, (emphasis added)
* ⅝ #
All terms and conditions of Note I and Note II ... are hereby ratified in all their parts and shall and do remain in full force and effect, except as modified herein.

Therefore, based not only on the facts presented at trial but also on the unambiguous language of the documents, the trial court did not abuse its discretion in finding the parties did not intend a novation. As such, Flora De Las Cuevas remains liable under Note I.

Flora De Las Cuevas next argues that the final judgment is a deficiency judgment and, as such, is barred by the statute of limitations. First, this is not a deficiency judgment. It is a judgment on a note. As such, it is an action at law. Even though the mortgage had been foreclosed in the action filed by the RTC, NEI still had a right to maintain an action at law on the note as long, as a deficiency judgment had not been entered in the RTC litigation. Section 702.06, Florida Statutes (2005) states as follows:

Deficiency decree; common-law suit to recover deficiency. — In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor.

§ 702.06, Fla. Stat. (2005).

This statute has been interpreted to allow a post-foreclosure action to recover the balance due on a note where the court in a foreclosure action did not adjudicate the issue of a deficiency. See Capital Bank v. Needle, 596 So.2d 1134 (Fla. 4th DCA 1992). As the foreclosure action brought by the RTC did not adjudicate the issue of a deficiency, NEI had the right to pursue this action on the note.

NEI’s action on Note I is not barred by the statute of limitations. NEI was an assignee of Note I from the RTC. As such, 12 U.S.C. § 1821(d)(14)(A) determines the appropriate statute of limitations which is six years. WRH Mortgage, Inc. v. Butler, 684 So.2d 325 (Fla. 5th DCA 1996).

For the above reasons, we affirm in full the final judgment entered by the trial court.

      . Flora De Las Cuevas argues that the trial court did not address this issue. Novation was raised as an affirmative defense. In the trial court's final judgment, it found no merit in the affirmative defenses raised showing that the trial court did consider this affirmative defense.

      . We find no merit in the other issues raised in the appeal.


text:
    Marilyn Silvia RABELLO, Petitioner, v. Liana ALONSO, Respondent.
    No. 3D05-883.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.

      Clark, Robb, Mason, Coulombe, Buseh-man & Cecere and James K. Clark, Miami, and Bianca G. Liston, Maitland, for petitioner.
    Brett A. Weinberg and Sagi Shaked, for respondent.
    Before COPE, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

By petition for common law writ of cer-tiorari, we have jurisdiction to review the trial court’s Order Granting Plaintiffs Motion for Relief from Stipulation and Order of Dismissal With Prejudice. We grant the petition for certiorari and quash the order reinstating this action.

A stipulation and order of dismissal with prejudice was entered by the parties on May 23, 2003, with an order of dismissal signed by the trial judge on June 3, 2003. On February 3, 2005, plaintiff filed Plaintiffs Motion for Relief from Stipulation and Order of Dismissal with Prejudice. On March 22, 2005, the trial judge entered the order under review setting aside the dismissal and re-instating the action.

We agree with the petitioner that the trial court exceeded its jurisdiction in entering this order. If the motion was a simple request for reinstatement, the trial court exceeded its jurisdiction in reinstating the action, as once a stipulated voluntary dismissal is taken, the court loses jurisdiction. See Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978). Should the motion have been considered, which it apparently was, as a request to set aside the stipulated dismissal based on fraud or a mistake pursuant to Rule 1.540, Florida Rules of Civil Procedure, the time limitation for bringing such motion had run.

Therefore, the trial court’s order was issued in excess of its jurisdiction and is a departure from the essential requirements of law requiring that the certiorari petition on review be granted and the trial court’s order be quashed.


author: POLEN, J. POLEN, J.

text:
    Gary Paul SPROULE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4598.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Order Denying Rehearing and Granting Certification May 17, 2006.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Gary Sproule timely appeals a conviction for Habitual Driving While License Revoked and sentence of one year in county jail plus eighteen months’ probation. He argues that the admission of his driving record at trial was hearsay and a violation of his Sixth Amendment right to confront and cross-examine under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For the reasons stated herein, we affirm.

Sproule was charged with one count of Habitual Driving While License Revoked. During the jury trial, the State introduced Sproule’s driving record as evidence that his license had been revoked as a habitual traffic offender. Defense counsel objected that the driving record was hearsay and a violation of Sproule’s Sixth Amendment right to confront and cross-examine witnesses against him under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled the objections and Sproule’s driving record was admitted. Sproule argues that this was error. In this case we are asked a pure question of law, and thus the appropriate standard of review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) (“[T]he standard of review for a pure question of law is de novo.”).

Crawford does not alter the law regarding nontestimonial material that qualifies as a firmly rooted exception to the hearsay rule. The Supreme Court in Crawford explained that such material does not implicate the confrontation clause:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law ... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id. at 68, 124 S.Ct. 1354.

We hold that a driving record is not testimonial in nature, and therefore Sproule did not have a Sixth Amendment right to confront and cross-examine a witness concerning the compilation of that record. See State v. Kronich, 128 P.3d 119 (Wash.App.2006) (holding defendant was not denied his Sixth Amendment confrontation rights under Crawford when the court allowed admission of a Department of Licensing record custodian’s certification regarding the status of defendant’s driving privileges, since Crawford did not change the law pertinent to admission of nontestimonial hearsay that falls within a hearsay exception); State v. N.M.K., 129 Wash.App. 155, 118 P.3d 368 (2005) (holding that certified copy of the absence of a driver’s license is not testimonial under Crawford).

Crawford acknowledged that some hearsay evidence is admissible against a criminal defendant without implicating the defendant’s Sixth Amendment confrontation rights. 541 U.S. at 56, 124 S.Ct. 1354. Crawford specifically allowed for hearsay exceptions that cover “statements that by their nature were not testimonial' — for example, business records or. statements in furtherance of a conspiracy.” Id. The Supreme Court has also held that “business and public records exceptions would seem to be among the safest of the hearsay exceptions.” Ohio v. Roberts, 448 U.S. 56, 66 n. 8, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). There is no dispute that a driving record containing habitualization entries maintained by the Florida Department of Motor Vehicles and provided to the court constitutes hearsay. However, under Florida law, this hearsay statement qualifies under a specific hearsay exception: as a certified copy of a public record. See Arthur v. State, 818 So.2d 589, 591 (Fla. 5th DCA 2002) (holding that a certified copy of defendant’s entire driving record showing his classification as an habitual traffic offender, his numerous convictions, and the revocation of his driving license is a public record and a report of a public office or agency and is excepted from the hearsay rule under section 90.803(8), Florida Statutes). The certified copy of Sproule’s driving record was properly admitted as a hearsay exception under section 90.803(8), Florida Statutes. Because Crawford did not change the law pertinent to admission of nontestimonial hearsay that falls within a hearsay exception, we hold that the trial court did not err by allowing the admission of Sproule’s driving record into evidence.

Based on the foregoing, the judgment and sentence are affirmed.

SHAHOOD and TAYLOR, JJ., concur.

ON MOTION FOR REHEARING

POLEN, J.

We deny appellant’s motion for rehearing but certify the following question to the Florida Supreme Court:

WHETHER A DRIVING RECORD AS CONTEMPLATED IN SECTION 322.201, FLORIDA STATUTES, IS TESTIMONIAL IN NATURE, AND THEREFORE A DEFENDANT HAS A SIXTH AMENDMENT RIGHT UNDER CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), TO CONFRONT AND CROSS-EXAMINE A WITNESS CONCERNING THE COMPILATION OF THAT RECORD?

SHAHOOD and TAYLOR, JJ., concur.

      . " 'Hearsay' is statutorily defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2006).

      . The Florida legislature demonstrated its faith in the trustworthiness of the maintenance of Florida DMV records by mandating that they be self-authenticating: "A copy, computer copy, or transcript of all abstracts of crash reports and all abstracts of court records of convictions received by the department and the complete driving record of any individual duly certified by machine imprint of the department or by machine imprint of the clerk of a court shall be received as evidence in all courts of this state without further authentication, provided the same is otherwise admissible in evidence.” § 322.201, Fla. Stat. (2006). See also Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2001) (holding certified copy of computer printout of defendant’s driving record maintained by the DMV was sufficient to present prima facie case of driving while license was revoked as habitual traffic offender).

      .Public records and reports — Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.


author: ORFINGER, J.

text:
    Rebecca S. BENSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 5D05-1708.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      Talbot W. Trammell, of Trammell & Trammell, Tallahassee, for Appellant.
    Pierre A.L. Mommers, of Mommers & Colombo, Melbourne, for Appellee, Ronnie & Co., Inc.
    No Appearance for Appellee, Unemployment Appeals Commission.
   ORFINGER, J.

Rebecca Benson appeals the Unemployment Appeals Commission’s (“UAC”) decision affirming an appeals referee’s determination that Benson is not eligible for unemployment compensation benefits because she voluntarily quit her job without good cause. Benson argues that the appeals referee’s decision is erroneous because it is not supported by competent, substantial evidence. We affirm.

Benson had been employed as a massage therapist at the Imperial Salon and Spa for several years. When Benson arrived at work on June 16, 2004, she was presented with an employment agreement. The agreement was a compilation of earlier employment agreements, with the addition of a non-compete clause, prohibiting employees from working at any establishment with similar services within a seven-mile radius of Imperial. All employees were encouraged to sign the agreement by the close of business that day. Although Imperial’s employees had been notified of the agreement at an employee meeting held the previous week, Benson claimed that she did not attend the meeting, and had no prior knowledge of the proposed agreement. Benson did not sign the contract and did not return to work after completing her shift.

Benson filed for unemployment compensation benefits, claiming that she had been discharged from her job because she refused to sign the employment agreement. Benson alleged that the employees were told that they must sign the agreement or be fired. Unemployment benefits were initially granted, as it was determined that “claimant was discharged for reasons other than misconduct connected with the work.” Imperial appealed that decision and an evidentiary hearing followed.

At the hearing, Benson testified that she decided not to sign the agreement because it was not in her “best interest professionally or ethically to sign something [she] did not agree with.” Specifically, Benson said that she felt the agreement was too restrictive and was “sprung” on her in an unprofessional manner. These factors influenced her decision to leave Imperial more than any of the specific terms of the agreement. Lorin Cox, Imperial’s general manager, went over the agreement with Benson. Benson testified that she did not recall whether Cox told her she would be fired if she did not sign the agreement by the close of the business day, but that there was an indication that she would no longer be employed by Imperial if she did not sign the agreement. Benson also testified that Kristen Ramacca, Imperial’s president and CEO, told her that she did not want to lose Benson as an employee.

Ramaeea testified that she discussed the agreement with Benson, who told her that she would be willing to sign it if the seven-mile restriction was taken out. To the contrary, Benson claimed that she never requested that the clause be removed. Ramaeea suspected that Benson did not want to sign the agreement because an Imperial manager was planning on opening another spa within the seven-mile radius. At the time, there was no other spa within seven miles of Imperial. According to Ramaeea, Benson was under an incorrect assumption that she would be fired if she did not sign the agreement. Ramaeea testified that Benson did not have to sign the agreement, and that she would have been able to continue working at Imperial even if she did not sign it. Ramaeea indicated that she told Benson that she could take the agreement home and come back the next day. Benson refused, and left. In contrast, Benson testified that Ramaeea refused to let her take the agreement home and insisted that she sign it by 9:00 p.m. that same day. Both Ramaeea and Cox denied telling Benson that she would be fired if she did not sign the agreement.

Following the hearing, the appeals referee recommended that the initial decision granting Benson unemployment compensation benefits be reversed, finding that Benson left her employment without good cause. The UAC affirmed the appeals referee’s decision, concluding that it was supported by competent, substantial evidence. This appeal followed.

When a party appeals a final order of the UAC affirming the appeals referee’s ruling, the appellant has the burden to demonstrate error. Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363 (Fla. 5th DCA 1995). The appeals referee is the trier of fact, responsible for weighing and resolving conflicting evidence and judging credibility. Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990). The appeals referee’s decision must be upheld on appeal if its findings are supported by competent, substantial evidence. Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 (Fla. 5th DCA 2002); Montgomery v. Unemployment Appeals Comm’n, 817 So.2d 1078, 1079 (Fla. 5th DCA 2002) (citing Miller v. Unemployment Appeals Comm’n, 690 So.2d 752, 753 (Fla. 5th DCA 1997)).

Section 443.101(1), Florida Statutes (2004), disqualifies individuals from unemployment benefits if they have voluntarily left their work without good cause. The question of whether a claimant left work voluntarily is a question of fact to be considered by the appeals referee as trier of fact. Ritenour, 570 So.2d at 1107. Benson claims that she “thought” that she had been discharged from her job at Imperial when she refused to sign the employment agreement. However, the appeals referee determined that Benson voluntarily left her employment, and was not discharged. That conclusion is supported by substantial, competent evidence. Benson testified that she did not remember anyone telling her that she would lose her job if she did not sign the agreement, only that it was implied. Cox and Ramaeea both testified that they did not tell Benson she would be fired if she did not sign the agreement. In fact, Ramaeea testified that Benson would have still been able to work at Imperial. The fact that Benson mistakenly believed that she had been fired is of no consequence.

Benson also argues that even if she left voluntarily, she had good cause to quit. “To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment.” Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973) (citations omitted); see also Ritenour, 570 So.2d at 1107. Benson claims that she had good cause to quit because the proposed employment agreement restricted where she could work, and she did not have ample time to review the agreement. Benson also claims that the agreement was not enforceable because its essential terms were left open. While these all may be good cause not to sign the agreement, they are not good cause to voluntarily leave employment.

AFFIRMED.

TORPY and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Hugo MARGANET, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1565.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Hugo A. Marganet [“Marganet”] appeals the denial of his motion to suppress. We reverse.

Marganet and his girlfriend, Wilma Luz Pinero [“Pinero”], became a target in a drug investigation after a tip from a confidential informant. The tip ultimately led to the traffic stop of a vehicle driven by Marganet, in which Pinero was a passenger. Pinero was separated from Marganet and offered to cooperate. She ultimately led police to some cocaine and heroin that was found inside a shaving kit in Margan-et’s suitcase located in a hotel room they occupied. Marganet was charged with possession of heroin with intent to sell or deliver and possession of cocaine. He filed a motion to suppress, alleging no valid consent had been given for the search of his suitcase and shaving kit.

At the suppression hearing, Agent Chio-ta testified that while engaged in a drug investigation, agents conducted a traffic stop of a Nissan Xterra driven by Margan-et. Pinero was a passenger in the vehicle. Agent Davison took charge of Pinero, who was willing to cooperate by giving consent for police to enter the hotel room where she and Marganet were staying. She produced a key she had in her purse, opened the room and invited officers inside to look for drugs. She began showing officers areas in which she knew there was drug paraphernalia and where some drugs were the last time she saw them. There were various items around the room. She told the agents:

this is my clothing, and my suitcases, and this is his stuff, and he keeps it and had it — he, being Hugo, had the heroin. He — she related that he maintained custody of it because she was a user and he was afraid she would use it up.

(emphasis added). Pinero showed them places in which she thought there would be heroin and gave them permission to search those places. They first searched all open areas within the room and then began to search the closed containers. They eventually found heroin in Marganet’s shaving kit, which was itself located inside a closed suitcase which Pinero had identified as belonging to Marganet.

Agent Randy Davison testified concerning the drugs found in the shaving kit:

Q. Okay. Where did you retrieve the heroin and cocaine from?
A. I know there was — there was four of us in the room at the time. I know that there was one black bag lying near the sliding glass door that went out— outside — pardon me — and that — that bag was lying on the floor. And she said that there was some in there, probably in a black shaving kit. So we opened it up. She said that — right there (indicating), and she pointed to the shaving kit. We opened the shaving kit — I think it was a shaving kit. It was a black leather — a black leather container—
A. Okay.
Q. — and we opened that up. And then we located the — I believe that was the heroin baggies there.
Q. And she specifically directed you to that spot?
A. Directly to it.

After listening to argument of counsel, the court denied the motion to suppress, explaining in relevant part in its written order that Pinero had “apparent” authority to consent to a search of the suitcase and shaving kit and that the search was therefore legal. The order stated:

The issue is whether the officers had a reasonable basis to believe that Ms. Pinero had actual or apparent authority to consent to the search of the defendant’s bags. The test which the court employs is one of “objective reasonableness.” Florida v. Jimeno, [500 U.S. 248] 111S.Ct. [sic] 1801 [114 L.Ed.2d 297] (1991). In making this determination courts no longer draw a distinction between married and unmarried couples. Silva v. State, 344 So.2d 559 (Fla.1977). Facts known to the police that suggested Ms. Pinero did not have authority include that she identified the suitcase as belonging to the defendant, the contents were all a man’s personal belongings, the suitcase was closed, and it was easily separable from the room and its other contents. Facts suggesting that Ms. Pinero did have authority to give consent include that it appeared she and the defendant were in a relationship, her information was specific in that she knew the shaving kit was inside the suitcase and that the drugs might be in the kit. She also said that the defendant was hiding the drugs from her which implies he put them in a place he thought she might not look as opposed to a place she was not allowed to go.
The court is satisfied that the officers believed Ms. Pinero had authority over the defendant’s possessions or they would not have helped her leave the hotel with them. Now, after analyzing the facts the court finds that a typical, reasonable person in the same circumstances would have believed Ms. Pinero had authority to consent to a search of the defendant’s bags.

Marganet filed a motion for reconsideration. He asserted that his girlfriend had no right to consent to a search of his suitcase, emphasizing:

In the instant case, there is a complete lack of information detailing that law enforcement made any inquiry of Ms. Pinero concerning her authority to enter into Mr. Marganet’s luggage. A telling issue is the fact that she identifies the luggage for law enforcement as belonging specifically to Mr. Marganet. It is not identified, as “our luggage” but “his luggage.” Further, Ms. Pinero provides an indication to law enforcement that Mr. Marganet had hidden the drugs so she would not find them. It is not logical for law enforcement to draw a conclusion that Ms. Pinero had common authority or joint access to Mr. Margan-et’s luggage when she specifically advises them that Mr. Marganet must have placed the contraband in an area where he though she would not look.

The court denied the motion for reconsideration and Marganet pled nolo conten-dere to the charges, reserving the right to appeal the denial of his motion to suppress. Marganet argues on appeal that the trial court erred by holding that Pinero had the right to consent to a search of his suitcase and his shaving kit.

The leading United States Supreme Court case bearing on the issue of third-party consent to search is United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in which the defendant’s girlfriend consented to a search of a room she was sharing with the defendant, resulting in the discovery of money from a bank robbery in a diaper bag located in the only closet in the room. In Matlock, which involves the issue of “actual authority” to consent to a search, the court held that “permission to search [can be] obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Id. at 170, 94 S.Ct. 988. In a footnote, the court explained that the right to consent rests not on the law of property:

but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 170 n. 7, 94 S.Ct. 988.

The right of a third party to consent to a search on behalf of a defendant was extended to those with “apparent authority” in Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Rodriguez established that even if a third party does not possess actual common authority over the area that was searched, the Fourth Amendment is not violated if the police relied in good faith on a third party’s “apparent authority” to consent to the search. In Rodriguez, a former girlfriend of the defendant consented to a search of premises leased jointly in her name and that of the defendant, but in which she was no longer living. The girlfriend showed police a copy of the lease and retained a key to the premises, which she gave to them, along with instructions where drugs could be found in the residence. In finding that the search was constitutionally valid on the basis of “apparent authority” to authorize a search, the court explained:

What [Rodriguez] is assured by the Fourth Amendment itself ... is not that no government search of his house will occur unless he consents; but that no such search will occur that is “unreasonable.” U.S. Const., Arndt. 4. There are various elements, of course, that can make a search of a person’s house “reasonable” — one of which is the consent of the person or his cotenant. The essence of respondent’s argument is that we should impose upon this element a requirement that we have not imposed upon other elements that regularly compel government officers to exercise judgment regarding the facts: namely, the requirement that their judgment be not only responsible but correct....
... The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. See Archibald v. Mosel, 677 F.2d 5 (C.A.1 1982).

497 U.S. at 183-184, 110 S.Ct. 2793. In Rodriguez, the court cautioned:

[W]hat we hold today does not suggest that law enforcement officers may always accept a person’s invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?

Id. at 188, 110 S.Ct. 2793.

In this case, it is undisputed that Pinero had actual authority to consent' to a search of the hotel room because she and Marganet had “shared use and joint access to or control over” the shared area. See United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir.2004) (person who was not registered guest at motel and had not paid for room, but who -had stayed in room overnight, left his possessions there and carried key to room, had joint access and control over room and thus had actual authority to consent to its search). However, this is not dispositive of Pinero’s right to consent to a search of Marganet’s suitcase and shaving kit. See United States v. Karo, 468 U.S. 705, 725, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (O’Connor, J., concurring); see also United States v. Ruiz, 428 F.3d 877 (9th Cir.2005) (authority to consent to a search of property does not necessarily translate into authority to search specific containers).

A number of courts appear to hold that common authority over the premises is sufficient to authorize a third party to consent to search personal property found on the premises. Most courts adhering to this viewpoint reason that the right of common authority over the premises establishes a right to access all property on the premises, at least in the absence of a contrary showing. Some courts say that in entrusting the goods to a third party the defendant has assumed the risk that the third party would permit or consent to an inspection.

Nonetheless, based on Matlock, most courts find that there is no right on the part of a third party to consent to a search of personal property belonging to another person unless there is evidence of both common authority over and mutual usage of the property. See, e.g., United States v. Davis, 332 F.3d 1163, 1169 (9th Cir.2003) (“A third party has actual authority to consent to a search of a container if the owner of the container has expressly authorized the third party to give consent or if the third party has mutual use of the container and joint access or control over the container.”), quoting United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir.1998). This viewpoint appears to be based on the language contained in Matlock, that “the right to consent rests not on the law of property but rests rather on mutual use of the property by persons generally having joint access or control for most purposes .... ” 415 U.S. at 170 n. 7, 94 S.Ct. 988 (emphasis added). When police are told by a third party that the property belongs to another, the officers are obligated to make inquiries sufficient to establish that the person consenting to the search has both common control over the property and mutual use of it. See United States v. Salinas-Cano, 959 F.2d 861 (10th Cir.1992); United States v. Jaras, 86 F.3d 383, 389 (5th Cir.1996) (when person giving consent admonishes an officer that a bag belongs to third party who is the subject of a search, this may be understood to deny joint access and control over the property); see also United States v. Infante-Ruiz, 13 F.3d 498, 504-505 (1st Cir.1994) (when third party consent to search vehicle and trunk is qualified by a warning that the briefcase belonged to another, officers could not assume without further inquiry that the consent extended to the briefcase); cf. United States v. Harrison, 679 F.2d 942, 947 (D.C.Cir.1982) (since there was nothing to demonstrate that the item searched was owned or in the exclusive control of the non-consenting spouse and since the item searched was not sealed, the consenting spouse had common authority over the searched item); White v. United States, 444 F.2d 724, 726 (10th Cir.1971) (since there was no indication that the item searched was the exclusive property of the non-consenting “spouse,” the consenting “spouse” had common authority regarding that item).

Typical of those cases refusing to allow those with joint control of the premises to consent to a search of property clearly owned or identified as belonging to another is United States v. Salinas-Cano, 959 F.2d at 861. There, the Tenth Circuit considered the issue of whether the defendant’s girlfriend had common authority over a suitcase owned by the defendant. After a controlled buy with the defendant, the police went to the girlfriend’s apartment and asked permission to search it. The girlfriend consented to the search and led the police to the defendant’s belongings. During a search of the defendant’s closed, but unlocked, suitcase a quantity of cocaine was found. At the suppression hearing, the police officer conceded that he knew that the suitcase he searched belonged to the defendant. The Tenth Circuit agreed that the girlfriend had no authority to consent to a search of the suitcase, even if she had the right to consent to a search of the apartment. The court explained that a consent to search closed containers within the home was valid only when given by one with common authority over or other sufficient relationship to the premises or effects sought to be inspected. The court explained that common authority rested on mutual use of the property by persons generally having joint access or control for most purposes. The court also noted that the government had the burden of showing the effectiveness of a third party’s consent and that agents could not proceed without making further inquiry, to determine whether property about to be searched was subject to “mutual use” by the person giving consent. In Salinas-Cano, the court held that the government was therefore required to come forward with persuasive evidence of both shared use and joint access or control of a container in order to support third party consent. The Tenth Circuit also rejected the government’s contention that the girlfriend had “apparent authority” within the meaning of Rodriguez, on the basis that the information known to the police officer was insufficient to support a reasonable belief in the girlfriend’s authority to authorize a search of the suitcase.

Florida apparently adheres to the view that something more than mere joint control of the premises must be shown before a person has the right to consent to a search of property personal to another. See Silva v. State, 344 So.2d 559 (Fla.1977). Silva involved a defendant and his girlfriend who had leased an apartment as husband and wife. The girlfriend called police after an incident of domestic violence and informed them that the defendant had hit her and was a convicted felon with guns in the closet. The girlfriend let police into the apartment and told them that the guns were in the hallway closet. The defendant forbade officers to search the closet, but they searched anyway and arrested him, after which he filed a motion to suppress. The court found that police had no right, stemming from the girlfriend’s consent, to search a closet set aside for the defendant’s exclusive use, over his objections. The court explained that:

Unless consent is given by the owner or rightful possessor of the property, a warrant must be obtained. The only exception to this consent is where consent by a joint owner has been obtained in the absence of the person whose property is the object of the search. Whether or not an area searched is under the joint dominion and control of the third party consenting has been a crucial question in some cases. These cases have generally been decided on the basis of the individual’s reasonable expectation of privacy in the area, whether others generally had access to the area, and/or whether the objects searched were the personal effects of the individual unavailable to consent.

Id. at 563 (emphasis added). The court also relied heavily on the fact that the personal property found in the closet obviously belonged to the defendant. It went on to say that:

Even if we were to decide that Mrs. Brandon had sufficient access to the closet to authorize her to consent to a search, it should have become apparent to the police that the objects in the closet were the personal effects ofipeti-tioner. In discussing cases authorizing a wife to consent to a search of the home in which she and her husband live, the Hawaii court stated:
‘None of them goes so far as to hold that a wife in joint occupancy of the home can permit a search of her husband’s personal effects to discover jewelry hidden in a cuff link case in a bedroom bureau drawer.’ State v. Evans, 45 Haw. 622, 372 P.2d 365 (1962) at 372.
The Ohio court dealing again with a wife’s consent to search her husband’s personal effects, stated:
‘With the emphasis on the wife’s rights rather than her defendant-husband’s, the rights of the husband have not disappeared but merely diminished in .stature. To allow a search of his personal effects would unduly destroy the husband’s rights against unreasonable searches.’ State v. McCarthy, 20 Ohio App.2d 275, 49 Ohio Ops.2d 364, 253 N.E.2d 789, 795 (1969), aff'd. [26 Ohio St.2d 87] 269 N.E.2d 424 [(1971)].
It should have been apparent to the police officers that the closet was set aside for petitioner’s use. It held his belongings, and his rights were infringed by the police in searching them without his consent.

Id. at 564.

Silva suggests that a third party’s consent to search may be ineffective with respect to property clearly identifiable as belonging to another, in the absence of evidence of mutual use of the property. This was confirmed by Jones v. State, 648 So.2d 669 (Fla.1994), in which the court held that “[e]ven though hospital staff generally has joint access to and control of personal effects kept in a patient’s room, the staff cannot consent to the search or seizure of the effects because it has no right to mutual use of a patient’s belongings, as required by [Matlock ].” Id. at 675 (emphasis added).

Taken collectively, these cases suggest that a number of factors bear on the rights of a third party to consent to a search of a container. They include such factors as whether the property clearly belongs to one person; whether it is generally used by one person, whether it is freely accessible to others, whether the container is closed or open, whether it is locked or unlocked, and whether orders have been given not to open the container. The relationship of the parties and the nature of the property may also have a bearing on the right to consent to a search. As was pointed out in United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000), “it is less reasonable for a police officer to believe that a third party has full access to a defendant’s purse or a briefcase than, say, an open crate.” Moreover, a wife may have a right of access to her husband’s shaving kit that a roommate or girlfriend does not. The burden is on the State to show that police were given free and voluntary consent to enter the premises by someone with actual or apparent authority to do so. Williams v. State, 788 So.2d 334, 336 (Fla. 5th DCA 2001). Thus, when making entry or conducting a search, an officer must elicit sufficient facts from which he or she can determine that the person consenting to the search has common authority over the premises or property to be searched. Saavedra v. State, 622 So.2d 952, 959 (Fla.1993).

In this case, the State argues that Pine-ro had actual or apparent authority over Marganet’s suitcase and shaving kit because:

the Defendant and his girlfriend were staying together in a hotel room. Items belonging to both of them were found all throughout the room. The girlfriend had a key to the room, and admitted the police officers. She pointed out the specific location of drugs. She knew exactly where the drugs were kept in the Defendant’s suitcase — inside the shaving kit. Clearly, the girlfriend knew that the shaving kit held the drugs, knew where to find the shaving kit, and had access to it. There were no locks or other mechanisms to secure the suitcase and shaving kit. There was also no evidence that the Defendant had forbidden his girlfriend to allow anyone to open the shaving kit.
In fact, as soon as the search was complete, the hotel manager told the girlfriend that she must leave the hotel. She was forced to collect all their belongings — both hers and the Defendant’s — and load them on a baggage cart. She rolled the cart out to the parking lot, where she was to be picked up by someone.

The evidence in this case shows nothing more than location of the items on jointly occupied property. “For purposes of searches of closed containers, mere possession of the container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents.” Basinski, 226 F.3d at 834.

Here, the items involved in the search— a suitcase and a shaving case — were personal to the user and Pinero identified the items in question as belonging to Margan-et. The testimony also made clear that the contents were wholly male. Pinero seemed uncertain of the contents of the suitcase, which was closed and sitting against the wall. There was no indication that she had been given permission to access either item or that she mutually used either item. In fact, the evidence was to the contrary. Pinero informed the police that Marganet was hiding drugs from her and that they might be hidden in the suitcase or shaving kit. Absent evidence that Pinero had mutual use of these items, or even a right to access to these items, the trial court erred in finding that Pinero had the right to consent to a search of these items.

For the same reason, the evidence is also insufficient to establish apparent authority on the part of Pinero to consent to a search. Rather, the facts known to the agents were such that they could have no objectively reasonable belief that she had authority over these items. It was incumbent on the agents to make sufficient inquiry to determine whether the property about to be searched was subject to “mutual use” by the person giving consent. Saavedra; Salinas-Cano. This was not done.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . Most of the officers involved in this case appear to have been local officers on loan to &e Drug Enforcement Administration and therefore were referred to as "agents.”

      . United States v. Richard, 994 F.2d 244 (5th Cir.1993) (upholding search of motel room consented to by the defendant’s girlfriend, who had been staying in the room with him for several days; court found that her authority to consent extended to empty suitcases, trash bags, and dryer sheets in the room and ' seized during the search because no evidence had been presented showing that the defendant had limited his girlfriend’s access to these items); White v. United States, 444 F.2d 724 (10th Cir.1971) (woman who held herself out as defendant's wife had right to consent to search of small cloth bag containing, among other things, travelers checks and false identification, where wife did not object to search or remark that it was exclusively defendant’s property and defendant left her in complete control of room during his absence); People v. Posey, 99 Ill.App.3d 943, 55 Ill.Dec. 234, 426 N.E.2d 209 (1981)(holding defendant’s girlfriend can consent to a search of their hotel room and his shaving kit as she "was given complete access to all areas of that room,” despite her testimony that she was instructed not to open shaving kit and his testimony that she was forbidden from opening suitcase or shaving kit; claim was undercut by evidence that she was wearing shirt obtained from his suitcase); Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042, 1072 (1978) (holding that because wife had joint access to the parties’ bedroom, she could properly consent to the search of all areas therein, including the jewelry box over which her husband claimed exclusive access and control, in view of finding that wife generally had access to all areas of bedroom, including jewelry box); State v. Gordon, 23 Or.App. 587, 543 P.2d 321 (1975) (woman who had been living with defendant for eight months had right to consent to search of motel room and suitcase found in closet; no information in opinion as to who suitcase belonged to or if any other items were in suitcase).

      . United States v. Davis, 967 F.2d 84 (2d Cir.1992) (owner of footlocker in which defendant stored some items could validly consent to its search and owner’s consent extended to closed containers belonging to defendant that were found inside, since defendant assumed risk that footlocker owner might permit others to search it and its contents and owner had not agreed that he would not look inside); United States v. Miroff, 606 F.2d 777, 778-779 (7th Cir.1979) ("dominant" occupant of premises authorized to consent to search of defendant guests’ personal belongings found in area subject to common use, especially because guests assumed the risk of inspection by assuring occupant there was nothing illicit therein); State v. Schad, 129 Ariz. 557, 633 P.2d 366, 372 (1981) (girlfriend authorized to consent to search of defendant’s wallet, on ground that defendant assumed the risk she would permit inspection when he gave it to her); People v. Jenkins, 22 Cal.4th 900, 95 Cal.Rptr.2d 377, 997 P.2d 1044 (2000) (finding it was objectively reasonable for officers to believe that sister who granted consent to open-ended search of her home and handed officer her brother’s briefcase had authority to consent to the search of defendant’s briefcase, because it was reasonable for the officers to believe she had exercised control over the briefcase and had not only joint, but at the time of the search, exclusive access to it and control over it; court also said one who secures property at another’s behest has right to consent to search of property).

      . United States v. Waller, 426 F.3d 838 (6th Cir.2005) (defendant had reasonable expectation of privacy with respect to zipped, closed suitcase stored in bedroom at friend’s apartment, friend did not have actual authority to grant consent to search and it was unclear whether defendant’s suitcase was subject to mutual use, so that officers were not entitled to search suitcase without further inquiry); United States v. Basinski, 226 F.3d 829 (7th Cir.2000) (friend to whom defendant gave locked briefcase for safekeeping at his home did not have apparent authority to consent to search of briefcase); United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir.1992) (girlfriend lacked apparent authority to consent to search of defendant's suitcase left in her home, when he slept in the home several nights a week and maintained control over the suitcase, and there was no evidence his girlfriend used the suitcase); United States v. Gilley, 608 F.Supp. 1065 (S.D.Ga.1985) (host could not consent to a search of a guest’s closed travel bag, even though the bag was left in an area of the premises over which the host had joint control); State v. Evans, 45 Haw. 622, 372 P.2d 365 (1962) (wife could not validly consent to the search of her husband's closed cuff link case that was found in a drawer to which she had joint access; court said cuff link case opened by the officers clearly was identifiable as the husband’s and that case did not involve situation in which officers justifiably supposed that the person authorizing the search had the authority that he purported to have); Krise v. State, 746 N.E.2d 957 (Ind.2001) (male housemate could not validly consent to a search of a female housemate's purse, even though the purse was found in a bathroom that they both shared); Owens v. State, 322 Md. 616, 589 A.2d 59, 66-67 (1991) (officers could not reasonably believe occupant of apartment had authority to consent to search of luggage left behind by visitor, because there was no evidence of common authority over the bag); State v. Younger, 305 N.J.Super. 250, 702 A.2d 477 (1997) (although homeowner/wife consented to search of bedroom, she lacked authority to consent to search of closed change purse belonging to defendant/husband during search of home); People v. Gonzalez, 88 N.Y.2d 289, 644 N.Y.S.2d 673, 667 N.E.2d 323 (1996) (accomplicé’s sister could not give consent to search of defendant's duffle bag located in apartment defendant shared with accomplice and his sister where accomplice's sister had no apparent or actual authority to consent); see also United States v. Jaras, 86 F.3d 383 (5th Cir.1996) (driver's consent to search of vehicle did not reasonably extend to search of passenger’s suitcases where officers were told that suitcases belonged to passenger even though passenger failed to object to search); United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir.1994) (driver’s consent to search of car did not extend to passenger’s briefcase); United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993) (third party who jointly had rented vehicle with defendant had authority to consent to a search of the vehicle but lacked actual or apparent authority to consent to a search of the defendant’s purse located in the trunk of the vehicle, because there was no evidence of joint access or control or use of the purse); People v. James, 163 Ill.2d 302, 206 Ill.Dec. 190, 645 N.E.2d 195 (1994) (driver’s consent to search of her vehicle did not reasonably extend to a search of passenger's purse where purse belonged exclusively to passenger); State v. Suazo, 133 N.J. 315, 627 A.2d 1074 (1993) (where driver consented to search of vehicle but passenger told officer that red bag belonged to him, officer's reliance on driver’s consent to search bag was unreasonable even if passenger did not object to search); State v. Allen, 254 N.J.Super. 62, 603 A.2d 71 (1992) (consent to search of vehicle by owner did not extend to suitcase in which she disclaimed ownership interest); State v. Caniglia, 1 Neb.App. 730, 510 N.W.2d 372 (1993) (male driver’s consent to search of vehicle did not extend to female passenger’s make-up purse as make-up purse was not item that officers could have reasonably believed belonged to male driver); State v. Williams, 48 Or.App. 293, 616 P.2d 1178 (1980) (consent by owner for search of vehicle did not validate warrantless search of cassette tape case owned by passenger); State v. Zachodni, 466 N.W.2d 624 (S.D.1991) (husband’s consent to search of vehicle was not valid consent @for search of wife's purse).

      . See also Brown v. State, 789 So.2d 1021 (Fla. 2d DCA 2001) (driver of vehicle had no right to consent to search of zippered fanny pack resting on passenger’s lap when officer first saw it; court said that this "personal item, not generally shared between two persons, was not something that the driver could give a consent to search.”); Velazquez v. State, 648 So.2d 302 (Fla. 5th DCA 1995) (summarily holding that defendant had no expectation of privacy in friend's residence and friend had authority to consent to search of room in his residence that contained boxes that defendant had left there); State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990) (driver’s consent to search automobile and specifically contents of trunk extended to suitcase located in trunk over which passenger and driver had common authority, even though suitcase belonged to passenger; it was noted that officer conducting the search had no indication to whom the suitcase belonged, given its location and nature); Johnson v. State, 519 So.2d 713, 714 (Fla. 1st DCA 1988) (third party in whose possession highly suspicious defendant had left a suitcase had authority to consent to a search of the suitcase he identified as belonging to defendant).


author: PALMER, J.

text:
    G.F., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3183.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

G.F. appeals his juvenile delinquency disposition order, claiming that the trial court erred by requiring him to attend outpatient sex offender treatment and by continuing its jurisdiction over him after he reaches 19 years of age. We agree and reverse.

G.F. was charged with committing the crime of battery. Testimony was presented that G.F. was a resident at a juvenile facility when he got into a dispute with three employees of the facility and struck them. The trial court found that the State had proven that G.F. committed two counts of battery.

The trial court adjudicated G.F. delinquent and committed him to a level 8 high-risk residential commitment facility for a period of time not to exceed five years, consecutive, on each of two counts, to be followed by post-commitment conditional release. G.F.’s predisposition report indicated that G.F.’s psychological evaluation recommended, among other things, participation in an intensive outpatient sex offender treatment program. Accordingly, the trial court ordered G.F. to participate in mental health counseling and recommended that such counseling include sex offender treatment. The trial court also expressly retained jurisdiction over G.F. until his 22nd birthday. G.F. was sixteen years old at the time.

G.F.’s post-commitment conditional release was subsequently changed to probation by agreement of the parties, nunc pro tunc to the date of sentencing. The amended disposition order specifically set forth that G.F. was to enroll in and complete an out-patient sex offender treatment program as a condition of his probation.

G.F. filed a motion to correct sentencing errors under Florida Rule of Juvenile Procedure 8.135(b)(2), requesting that the trial court enter an order vacating the special condition requiring outpatient sex offender treatment and limiting the time jurisdiction is retained by the court to his 19th birthday. The trial court denied the motion. This appeal timely followed.

On appeal, G.F.’s first argument is that the trial court only has jurisdiction over him until his 19th birthday. We agree.

Commitment probation is governed by section 985.231(l)(a)l.d of the Florida Statutes which provides:

985.231. Powers of disposition in delinquency cases
* ⅜ *
[l][a]l.d Notwithstanding s. 743.07 and paragraph (d), and except as provided in s. 985.31, the term of any order placing a child in a probation program must be until the child’s 19th birthday unless he or she is released by the court, on the motion of an interested party or on its own motion.

§ 985.231(l)(a)l.d, Fla. Stat. (2003)(empha-sis added).

In S.L.K. v. State, 776 So.2d 1062 (Fla. 4th DCA 2001), the Fourth District confronted a similar issue regarding whether the trial court could retain jurisdiction over a juvenile after he reached the age of 19. The Fourth District explained:

Clearly, under section 985.231, the circuit court has jurisdiction over an adjudicated delinquent and it may commit the juvenile to the Department until the child is discharged by the Department or until he or she reaches the age of twenty-one. Thus, section 985.231 permits the circuit court to retain jurisdiction in the event that the juvenile’s commitment extends until his or her twenty first birthday. However, section 985.231(l)(a)3 does not permit the court to continue to retain jurisdiction if the juvenile is discharged from his or her commitment prior to age twenty-one. Under such circumstances, the court’s authority to retain jurisdiction is limited to the child’s nineteenth birthday pursuant to section 985.201(4)(a), Florida Statutes (1999).
In this case, the trial court’s disposition order required that, “the child [is to be] placed in a Level 8 program. The placement is for an indeterminate period, but no longer than the maximum sentence allowable by law or the child’s 21st birthday.” It is quite possible that S.L.K. may be discharged from the Level 8 program, or the Level 6 program if accepted, prior to reaching his twenty-first birthday. Given the language in section 985.231(l)(a)3 that the term of the commitment must be until the child is discharged by the Department or until he or she reaches the age of 21, even if S.L.K. is discharged by the Department prior to his twenty-first birthday, the trial court’s disposition order will have the effect of unlawfully extending the court’s jurisdiction over the child after his discharge and after his nineteenth birthday, [footnote omitted] Accordingly, upon remand, should the trial court decide to impose the same disposition, its continued jurisdiction over the child shall cease when he reaches the age of nineteen.

Id. at 1065.

Here, the record demonstrates that G.F. was discharged from the Level 8 program prior to his reaching the age of 22 and that he is now on probation. Based on these facts, the trial court only has jurisdiction over G.F. until he reaches the age of 19. Thus, the trial court must correct its disposition order accordingly.

G.F. also claims on appeal that the trial court erred in imposing sex offender treatment as a special condition of his post-commitment probation because he was not convicted of committing any sexual offenses, nor was he ever found delinquent for committing any prior sex offenses.

In a recent case, our court addressed a similar issue involving the imposition of special conditions of probation. In A.M.B. v. State, 917 So.2d 239 (Fla. 5th DCA 2005), the case involved a juvenile, A.M.B., who was adjudicated delinquent on two counts of grand theft and resisting an officer without violence. A.M.B. was committed to a program operated by the Department of Juvenile Justice, followed by Department supervision until his 19th birthday. As a special condition of supervision, the court required A.M.B. to resign from his high school’s Reserve Officer’s Training Program. A.M.B. appealed that condition contending that such a condition was unrelated to the offenses for which he was adjudicated delinquent. In striking the condition of supervision, our court held that a special condition of probation is invalid if the condition has no relationship to the crime committed, relates to conduct which is not in itself criminal or forbids conduct that is not reasonably related to future criminality. Id. See also Biller v. State, 618 So.2d 734 (Fla.1993).

Here, ordering G.F. to attend sex offender counseling bears no relationship to the offense of which G.F. was adjudicated delinquent. A review of G.F.’s extensive prior record of criminal activity indicates that he was charged with one count of lewd and lascivious molestation where the victim was less than 12 years old and the offender was 18 years old or older, and one count of lewd and lascivious exhibition by a person less than 18 years old where the victim was less than 16 years old. However, G.F.’s record indicates that both charges were dismissed. Arguably, G.F. might receive some benefit from attending sex offender counseling; however, based on the holding of A.M.B., G.F.’s current charges cannot support the trial court’s order directing him to attend sex offender counseling. Accordingly, on remand, the condition of probation requiring G.F. to enroll in and complete an outpatient sex offender treatment program must be stricken.

REVERSED and REMANDED.

PLEUS, C.J. and SAWAYA, J., concur.

      . Florida Rule of Juvenile Procedure 8.135(b)(2) was amended to provide the same procedural safeguards as Florida Rule of Criminal Procedure 3.800(b)(2). G.F.'s utilization of rule 8.135(b)(2) preserved his arguments for appellate review. See N.W. v. State, 835 So.2d 1263, 1264 (Fla. 1st DCA 2003).


author: PER CURIAM.

text:
    Delfonta PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5802.
    District Court of Appeal of Florida, First District.
    April 5, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his postconviction motion, in which he asserts that his sentence is illegal. Specifically, the appellant asserts that he pled to a sentence of life imprisonment with the possibility of parole in 25 years; however, under the requisite sentencing statutes in place at the time of his offense, a conviction for a capital felony barred any possibility of parole. See § 775.082(1), Fla. Stat. (1995).

For the reasons set forth below we reverse and remand with directions to the trial court either to attach documentation conclusively refuting the appellant’s claim, or to grant the appellant the benefit of his negotiated plea agreement and resentence him to 40 years’ imprisonment for second-degree murder (count 1) and kidnaping (count 2).

On June 9, 1997, the appellant entered into a negotiated plea agreement in which he pled guilty to first-degree murder and kidnaping in exchange for a sentence of life imprisonment with the possibility of parole in 25 years. However, at the time the plea was entered the prosecuting attorney and the trial court expressed concerns over whether or not the plea would be upheld in light of statutory changes requiring mandatory sentencing for capital crimes. Based on these concerns, the appellant’s plea agreement listed a second option. If the first sentence was not upheld, the appellant would be deemed to have pled to second-degree murder (count 1) and kidnaping (count 2) and a substitute sentence of 40 years’ imprisonment on each count to run concurrently would be imposed.

The appellant is correct in his assertion that he pled to an illegal sentence. His primary sentence is illegal because the sentence failed to comport with statutory requirements at the time of his plea. The appellant pled on June 9, 1997, to first-degree murder, a capital felony. § 782.04(l)(a), Fla. Stat. (Supp.1996). Therefore, the appellant’s minimum allowable sentence would have been life imprisonment without the possibility of parole. § 775.082(1), Fla. Stat. (1995).

In the instant ease, the appellant’s plea agreement expressly provided for an alternative should the sentence imposed be deemed illegal upon appellate review. Thus, the appellant is entitled to have his judgment and sentence amended to second-degree murder (count 1) and kidnap-ing (count 2) and a term of 40 years’ imprisonment should be imposed on each count, to run concurrently.

Accordingly, we reverse the summary denial and remand for the trial court either to attach documentation conclusively refuting the appellant’s claim, or to grant the appellant the benefit of his negotiated plea agreement and resentence the appellant to 40 years’ imprisonment for second-degree murder (count 1) and kidnaping (count 2).

REVERSED AND REMANDED.

ERVIN, PADOVANO and HAWKES, JJ., concur.


author: SUAREZ, Judge.

text:
    Monica BYRNE-HENRY, Appellant, v. The HERTZ CORPORATION and Stella Chin, Appellees.
    No. 3D04-2774.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.

      Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Nelson & Freedlander, for appellant.
    Wagenfeld Levine and Edward S. Polk, Miami, for appellees.
    Before SHEPHERD, SUAREZ, and CORTINAS, JJ.
   SUAREZ, Judge.

Monica Byrne-Henry appeals the trial court’s order granting entitlement to taxable costs to Hertz Corporation (“Hertz”) and Stella Chin. We affirm as the motion for taxable costs was served timely pursuant to Florida Rule of Civil Procedure 1.525.

This matter arises out of an action filed by Monica Byrne-Henry against Hertz and Stella Chin. The case was called to trial on January 21, 2004. Monica Byrne-Henry’s request for a continuance was denied. She then announced the taking of a voluntary dismissal. Thereafter, on numerous occasions, attorneys for Hertz attempted to contact the attorneys for Monica Byrne-Henry to request the filing of the notice of voluntary dismissal. On February 23, 2004, Hertz served its motion to tax costs. Two days later, on February 25, 2004, Monica Byrne-Henry served her notice of voluntary dismissal without prejudice. On April 2, 2004, Hertz filed affidavits in support of its motion for taxable costs. The hearing on costs was reset a number of times and canceled. Prior to the July, 2004 hearing, Monica Byrne-Henry filed her Motion to Determine Defendant’s Entitlement to Taxable Costs claiming Hertz’s motion for costs was not served timely and, therefore, Hertz was barred from claiming taxable costs. She argued at the hearing that Florida Rule of Civil Procedure 1.525 requires Hertz to serve its motion only after the actual service of the notice of voluntary dismissal and prior to the running of thirty days after such service. As Hertz served its motion after the oral notice of voluntary dismissal, but before the service of the written notice, and had not re-served within thirty days after Monica Byrne-Henry’s service of her notice of voluntary dismissal, Hertz had not timely served and was, therefore, barred from claiming costs. The trial court denied the motion and issued an order stating that Hertz had timely served and was entitled to costs.

Florida Rule of Civil Procedure 1.525 states as follows:

Rule 1.525. Motions for Costs and Attorneys’ Fees
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within thirty days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal. -

Monica Byrne-Henry claims Rule 1.525 entitles a party to costs only if the party serves his motion after the service of the written notice of voluntary dismissal and before thirty days after such service. Only if the motion for costs is served within that time frame may a party be entitled, under the rule, to costs. Hertz argues the rule should not be so narrowly interpreted and that the intent of the rule was met when Hertz served its motion to tax costs after the oral announcement in court of a voluntary dismissal, but. two days prior to the actual service of the notice of voluntary dismissal.

The Florida Supreme Court adopted Rule 1.525 in 2000, to establish “the time for serving motions for attorneys’ fees and costs.” Amendments to the Fla. Rules of Civil Procedure, 773 So.2d 1098, 1098 (Fla.2000). The rule, requiring a thirty-day time limitation for the service of a motion, was promulgated to end the confusion concerning the prior requirement that motions for fees and costs had to be served within a “reasonable time” after final judgment. See Shipley v. Belleair Group, Inc., 759 So.2d 28 (Fla. 2d DCA 2000) (stating that the uncertainty created by case law concerning reasonable time suggests that a rule of procedure concerning such motions might be appropriate).

Hertz’s motion to tax costs was served after the announcement in court of a voluntary dismissal, two days prior to the actual service of the notice of voluntary dismissal, and prior to thirty days after service of the notice of voluntary dismissal. As such, we feel the intent of the rule was met. In Angrand v. Fox, 552 So.2d 1113 (Fla. 3d DCA 1989), we rejected the same type of argument made here by Monica Byrne-Henry and reversed a trial court when it dismissed a medical malpractice complaint which was filed prior to expiration of the ninety-day screening and investigation period provided by section 768.57(3)(a), Florida Statutes (1987). The intent of the statute had been met. We agree with the First District’s decision on this issue. See Norris v. Treadwell, 907 So.2d 1217 (Fla. 1st DCA 2005)(although the rule makes a “blight line test,” the thirty-day requirement is the latest in which a motion for attorney’s fees and costs may be served and the party seeking fees may serve the motion immediately after the party becomes entitled to seek such fees), review granted, 919 So.2d 435 (Fla.2006); accord Swift v. Wilcox, 924 So.2d 885, 2006 WL 544510 (Fla. 4th DCA Case no. 4D05-1969, opinion filed, March 8, 2006). In this action, Hertz was entitled to seek costs upon the oral announcement of a voluntary dismissal. The motion was served shortly thereafter and certainly pri- or to the running of the thirty days. Therefore, the intent of the rule was met. We certify direct conflict with Swann v. Dinan, 884 So.2d 398 (Fla. 2d DCA 2004).

Affirmed, direct conflict certified.