author: WALLACE, Judge.

text:
    Tony BAMBERG, a/k/a Tony William Bamberg, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4769.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Tony Bamberg appeals the trial court’s order that revoked his probation and his resulting sentence of five years in prison. On appeal, Mr. Bamberg challenges the trial court’s order denying his motion to suppress incriminating statements that he made and physical evidence that law enforcement officers seized during a war-rantless search of his residence. Because the warrantless search of Mr. Bamberg’s residence was based on a reasonable suspicion of criminal activity, the trial court correctly concluded that it did not matter whether law enforcement officers had conducted the search for probationary or investigatory purposes. Accordingly, we affirm.

Facts and Procedural History

In October 2003, Mr. Bamberg pleaded nolo contendere to the offense of felony petit theft. The trial court adjudged Mr. Bamberg to be guilty and placed him on probation for eighteen months. The terms of Mr. Bamberg’s probation included the following pertinent condition:

39) You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation or community control Officer or any law enforcement Officer.

Such a condition is sometimes referred to as a “warrantless search condition” or a “Fourth waiver.” In January 2005, the trial court extended the term of Mr. Bam-berg’s probation for an additional six months.

In April 2005, two Polk County detectives were conducting a narcotics investigation in Bartow. The detectives received a tip from a confidential informant that Mr. Bamberg was selling methamphetamine at his residence. One of the detectives contacted a probation officer and learned that the terms of Mr. Bamberg’s probation included a warrantless search condition. Armed with this information, the detectives went to Mr. Bamberg’s residence to conduct a search. The detectives did not obtain a warrant, and they were not accompanied by a probation officer.

At the residence, Mr. Bamberg greeted the detectives at the door. The detectives informed him that they were there to conduct a warrantless search for drugs in accordance with the applicable condition of his probation. The detectives also read Mr. Bamberg a Miranda warning from a card. At the conclusion of these preliminaries, Mr. Bamberg led the detectives to his bedroom where they discovered a quantity of methamphetamine and drug paraphernalia. Upon the discovery of these items, Mr. Bamberg made several incriminating statements to the detectives and he was placed under arrest.

As a result of this incident, the State filed several new charges against Mr. Bamberg and also sought to revoke his probation. Mr. Bamberg filed motions to suppress the evidence seized during the search of his residence and his incriminating statements in both the new law violation case and in the proceedings for the revocation of his probation. We are concerned here only with the revocation of probation proceeding.

After a hearing on the motion, the trial court entered a detailed written order with findings of fact and conclusions of law. In the order, the trial court found that the search of Mr. Bamberg’s residence by the detectives was based on a reasonable suspicion:

The detectives in the present case had trustworthy information that the defendant was engaged in the sale of eon-trolled substances at the residence. They had [an] individualized, reasonable suspicion that the probationer was in possession of drugs at the premises.

The trial court framed the legal issue before it as follows: “[C]an the warrantless search condition be utilized by any law enforcement officer within her or his jurisdiction without the presence of a corrections probation officer?” The trial court answered this question in the affirmative, concluding that “[f]rom a constitutional point of view, it matters not that the search was conducted by a deputy rather than a corrections officer.” Based on this conclusion and its finding that the detectives had reasonable suspicion to conduct the search, the trial court denied Mr. Bam-berg’s motion to suppress.

Mr. Bamberg’s Arguments

On appeal, Mr. Bamberg makes two points. First, he argues that the type of search authorized by the warrantless search condition in his probation order was limited to a search made in the course of supervising the probationer, i.e., a search conducted for a probationary purpose. According to Mr. Bamberg, the challenged search was not authorized by the probation condition and was unreasonable under the Fourth Amendment because it was performed by law enforcement officers who came to his residence to conduct an independent investigation. In support of this argument, Mr. Bamberg relies primarily on the decisions in Grubbs v. State, 373 So.2d 905 (Fla.1979), and Soca v. State, 673 So.2d 24 (Fla.1996). Second, Mr. Bamberg claims that the State failed to establish that the detectives had a reasonable suspicion to conduct the search of his residence. We accept the trial court’s finding that the detectives had a reasonable suspicion to conduct the search because Mr. Bamberg did not argue to the contrary in the trial court. We write only to address his first point.

The Standard of Review

We employ a mixed standard of review in considering the trial court’s ruling on Mr. Bamberg’s motion to suppress. The trial court’s determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence. However, the trial court’s determination on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

Discussion

Our supreme court’s decision in Grubbs does support Mr. Bamberg’s argument that an investigatory search of a probationer by a law enforcement officer violates the Fourth Amendment even if the probationer is subject to a warrantless search condition. In Grubbs, the court was called upon to answer the following certified question: “Is a condition of probation requiring a probationer to consent to a search at any time, by any law enforcement officer, violative of the probationer’s rights under the Fourth Amendment of the United States Constitution or Article I, Section 12, of the Florida Constitution?” 373 So.2d at 906. The court answered this question in the affirmative. Id. at 910. In its opinion in Grubbs, the court drew a distinction between a war-rantless search of a probationer made by a probation officer for the purpose of supervising the probationer and a search made by law enforcement officers unrelated to any supervisory purpose:

The search of a probationer’s person or residence by a probation supervisor without a warrant is, in our view, a reasonable search and absolutely necessary for the proper supervision of probationers. However, granting such general authority to law enforcement officials is not permissible under the search and seizure provisions of the Florida or United States Constitutions.

Id. at 909. Thus, under Grubbs, a war-rantless search of a probationer for supervisory purposes satisfies the Fourth Amendment’s test of reasonableness, but a warrantless search conducted by law enforcement officers for investigatory purposes does not.

In Grubbs, the court also held that “a warrantless search of a probationer’s person or residence by a probation supervisor is valid to the extent that the evidence discovered is used only in probation violation proceedings” and that “the use of seized evidence in a new criminal proceeding requires compliance with customary fourth amendment requirements although the opportunity to meet those requirements may be easier because the defendant is a probationer.” Id. at 907. The court relied on this holding in Grubbs in the case of Soca, 673 So.2d 24. In Soca, an investigator from the state attorney’s office contacted a probation supervisor and requested a search of the probationer’s residence. Id. at 25. The probationer’s supervising officer and the investigator went to the probationer’s residence where the probation officer conducted a warrant-less search. Id. The search resulted in the discovery of cocaine. Id. The investigator testified at a subsequent hearing that he had “consciously decided not to seek a warrant from a neutral magistrate but rather to have the probation authorities conduct the search.” Id.

The State filed new charges against the probationer in Soca for possession of cocaine. Id. The probationer filed a motion to suppress. Id. Although the probationer conceded that the evidence could be used against him in probation revocation proceedings, he argued that the warrant-less search barred the use of the evidence against him in the new criminal proceeding. Id. Our supreme court agreed, holding that “under Grubbs the evidence obtained in the probationary search of [the probationer’s] trailer is not admissible against him in a new criminal proceeding.” Id. at 28. In its opinion in Soca, the court reaffirmed its analysis in Grubbs and rejected the State’s argument that Grubbs had been effectively overruled by several decisions of the United States Supreme Court. Id. at 27. Thus, if Grubbs — as reaffirmed by Soca — remains binding on us, we would be required to conclude that the trial court erred in denying Mr. Bam-berg’s motion to suppress because the search of Mr. Bamberg’s residence was not conducted by his probation officer or for probationary reasons.

In response to Mr. Bamberg’s argument for reversal based on Grubbs and Soca, the State urges affirmance based on United States v. Knights, 534 U.S. 112, 122 S.Ct. 587,151 L.Ed.2d 497 (2001). In Knights, a probationer’s conditions of probation included a provision authorizing a warrant-less search by a probation officer or law enforcement officer. Id. at 114, 122 S.Ct. 587. A sheriff’s deputy conducted a warrantless search of the probationer’s residence and discovered incriminating evidence. Id. at 114-15,122 S.Ct. 587. After the probationer was indicted, he moved to suppress the evidence obtained during the search of his residence. Id. at 116, 122 S.Ct. 587. The district court found that the sheriffs deputy had “reasonable suspicion” to conduct the search. Id. Nevertheless, the district court “granted the motion to suppress on the ground that the search was for ‘investigatory’ rather than ‘probationary’ purposes.” Id. The Ninth Circuit affirmed the district court’s ruling. United States v. Knights, 219 F.3d 1138 (9th Cir.2000).

The United States Supreme Court reversed the Ninth Circuit’s judgment. The Court explained its reasoning:

Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term “probable cause,” a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.

Knights, 534 U.S. at 121, 122 S.Ct. 587 (citations omitted). Thus the Court held that “the warrantless search of [the probationer], supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.” Id. at 122, 122 S.Ct. 587.

Although Mr. Bamberg argues on appeal that the detectives did not have the reasonable suspicion required by Knights to search his residence, he did not make this argument in the trial court. Therefore, this issue was not preserved for our review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985); State v. Hunton, 699 So.2d 320, 321 (Fla. 2d DCA 1997). Accordingly, we consider only Mr. Bam-berg’s first argument: that the search of his residence was unreasonable because it was made for an investigatory purpose.

However, the holding in Knights is fatal to Mr. Bamberg’s position. The Knights court specifically rejected the distinction between searches of probationers made for a “probationary” purpose and searches made for an “investigatory” purpose. Id. at 116-18, 122 S.Ct. 587. The Court explained:

Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, [citation omitted] “we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Id. at 122, 122 S.Ct. 587. Thus, if we follow Knights, we must conclude that the trial court correctly denied Mr. Bamberg’s motion to suppress.

On the issue before us, where law enforcement officers have reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, Knights appears to be in irreconcilable conflict with Grubbs, We look to the conformity clause contained in article I, section 12 of the Florida Constitution to resolve this conflict. Under the conformity clause, “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures” is to “be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Evidence seized in violation of the right guaranteed by article I, section 12 of the Florida Constitution “shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.” Thus this court is “bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions.” State v. Butler, 655 So.2d 1123,1125 (Fla.1995).

In accordance with the command of the conformity clause, we conclude that Knights controls the disposition of this case. Accordingly, we affirm the order revoking Mr. Bamberg’s probation and his sentence. To the extent that Grubbs and Soca suggest a contrary result, those cases have been superseded by Knights. See State v. Yule, 905 So.2d 251, 263-64 (Fla. 2d DCA 2005) (Canady, J., specially concurring).

Affirmed.

FULMER, C.J., and VILLANTI, J., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We commend the trial court for the thorough and thoughtful order that it entered in this matter. The trial court’s order has facilitated this court's review of this case.

      . According to the Knights court, a probationer has a reduced expectation of privacy because "the probationer ‘is more likely than the ordinary citizen to violate the law.’ ” 534 U.S. at 120, 122 S.Ct. 587 (quoting Griffin v. Wisconsin, 483 U.S. 868, 880, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). Specifically, the probationer’s propensity to recidivism justifies a greater intrusion into the probationer’s privacy than into the privacy of an ordinary citizen. Id. at 118-21, 122 S.Ct. 587.

      . If law enforcement officers lack a reasonable suspicion to search, then Knights is inapplicable. In that instance, Knights would not conflict with Grubbs.


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. William Steven KENNEDY, Appellee.
    No. 1D05-6199.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellant.
    Terry N. Silverman, Gainesville, for Ap-pellee.
   WEBSTER, J.

The state seeks review of an order granting appellee’s motion, made in his criminal prosecution for conspiracy to manufacture methamphetamine, to suppress evidence and statements. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const, (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.140(c)(1)(B) (permitting appeals by the state of “order[s] ... suppressing before trial confessions, admissions, or evidence obtained by search and seizure”). We conclude that the trial court erroneously failed to apply the correct law and that, upon application of the correct law, no violation of appellee’s Fourth Amendment rights occurred. Accordingly, we reverse.

The pertinent facts are not in dispute. Law enforcement personnel who were members of a “Tri-County Drug Task Force” learned from two people (Garrison and Hines) who were involved in the manufacture of methamphetamine that appel-lee was also manufacturing methamphetamine; that Garrison and appellee were involved in a “feud” over the theft by appellee of anhydrous ammonia, a chemical used to make methamphetamine; and that Garrison had intended to place a bomb in appellee’s house.

Between eight and ten members of the task force went to appellee’s house. According to the leader of that group, although they had no reason to believe that a bomb had actually been placed or “exigent circumstances” to support going onto appellee’s property, they went to appellee’s house both to warn appellee of the threat that had been made against appellee and to investigate the possibility that appellee was manufacturing methamphetamine. Appellee’s yard was not fenced, although it may have been posted with “No Trespassing” signs. As the task force leader approached appellee’s front door, he smelled odors of anhydrous ammonia and ether, which he knew were consistent with the manufacture of methamphetamine. Based upon those odors, the task force leader arrested appellee as soon as appellee opened the front door. He then told ap-pellee about the bomb plot. Because the task force had been led to believe that another individual was involved in helping appellee make methamphetamine, they conducted a “protective sweep” of the house. It was immediately apparent that a methamphetamine lab had been in operation. At that point, the house was secured and the leader of the task force went to obtain a search warrant.

Both in his motion to suppress and at the hearing on that motion, the only argument made by appellee was that his Fourth Amendment rights had been violated because the law enforcement officers went onto his property without either a warrant or “exigent circumstances.” He argued that exigent circumstances did not exist because the real reason the task force had gone onto his property was to investigate the possibility that he was manufacturing methamphetamine, and that the claim that the task force went there to warn him about the bomb threat was nothing more than a pretext. The state responded that suppression was not appropriate because the law enforcement personnel were lawfully on appellee’s property and the odors of anhydrous ammonia and ether detected as they approached the front door provided probable cause for ap-pellee’s arrest and the ensuing protective sweep of the house. The trial court found that the claim that the task force had gone to appellee’s house principally to warn him about the bomb threat was a pretext, and that the real reason the task force had gone onto appellee’s property was to investigate the possibility that appellee was manufacturing methamphetamine. Based on that finding, the trial court held that exigent circumstances did not exist to permit the task force to go onto appellee’s property without first obtaining a search warrant and that, as a result, appellee’s Fourth Amendment rights had been violated. Accordingly, it granted the motion to suppress. This appeal follows.

The trial court’s legal analysis is flawed in several respects. As the state correctly argued, appellee’s Fourth Amendment rights were not violated when

law enforcement personnel crossed the unenclosed front yard to reach the front door. See, e.g., United States v. Santana, 427 U.S. 88, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (stating that the threshold of one’s dwelling is a “public” place, as to which the owner has no expectation of privacy); State v. Morsman, 394 So.2d 408, 409 (Fla.1981) (stating that, “[u]nder Florida law it is clear that one does not harbor an expectation of privacy on a front porch ...”) (citations omitted); Davis v. State, 763 So.2d 519, 520—21 (Fla. 5th DCA 2000) (stating that law enforcement “presence on the porch did not invade any expectation of privacy ... ”) (citations omitted); Wysong v. State, 614 So.2d 670, 671 (Fla. 4th DCA 1993) (stating that “[n]either thresholds nor [unfenced front yards] are within the scope of the Fourth Amendment”) (citing Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). This is so regardless of whether the property was posted with “No Trespassing” signs. Id. (quoting from State v. Sarantopoulos, 604 So.2d 551, 555 (Fla. 2d DCA 1992)). When the lead officer smelled the odors of anhydrous ammonia and ether, which he knew were consistent with the manufacture of methamphetamine, probable cause existed to arrest appellee, a point which appellee does not contest. Law enforcement’s subjective motivation is irrelevant. Rather, the test is an objective one — would a reasonable officer have acted the same way, given all of the circumstances. See Brigham City v. Stuart, — U.S.—, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006); Devenpeck v. Alford, 543 U.S. 146, 153-54, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004); Whren v. United States, 517 U.S. 806, 813-16, 116 S.Ct. 1769,135 L.Ed.2d 89 (1996). Finally, post-arrest protective sweeps of spaces outside the immediate area of the arrest are permissible provided there exist “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Here, the information possessed by the task force indicated that another individual was involved in helping appellee make methamphetamine. Moreover, it is clear from the evidence that the sweep was appropriately limited and lasted no longer than necessary to dispel the reasonable suspicion of danger and clear the house of other individuals, at which point the house was secured while a warrant was sought.

Because the trial court failed to apply the correct law and, upon application of the correct law, it is clear that appellee’s Fourth Amendment rights were not violated, we reverse the order granting appel-lee’s motion to suppress.

REVERSED.

ALLEN and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    Gabriel DIAZ, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2803.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Gabriel Diaz, pro se, Petitioner.
    Daniel R. Burke, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for writ of mandamus is without merit and is rejected; however, because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d—, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s order on indigency imposing a lien as a result of the filing of the petition for writ of certiorari/mandamus below. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

DENIED.

BARFIELD, WOLF, and VAN NORTWICK, JJ., Concur.


text:
    Ricardo BRYAN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, The Second Judicial Circuit Court, Leon County and State of Florida, Respondents.
    No. 1D06-4566.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Petitioner Ricardo Bryan, pro se.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

We grant the petition for writ of certio-rari to the extent of quashing the circuit court’s order imposing a lien to cover the filing fees associated with the petition for writ of mandamus. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003). The petition is denied in all other respects.

KAHN, POLSTON and THOMAS, JJ., concur.


text:
    Rickey Lamar LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6136.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Ricky Lamar Lewis, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of January 22, 2007, this appeal is hereby dismissed as untimely. This dismissal is without prejudice to appellant filing with this Court a petition for belated appeal. See Fla. R.App. P. 9.141(c); Adams v. State, 734 So.2d 1086 (Fla. 1st DCA 1999).

In light of this dismissal, all pending motions for extension of time, to supplement the record, and for appointment of counsel are hereby denied.

BROWNNG, C.J., KAHN, and LEWIS, JJ., concur.


author: MONACO, J. TORPY, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. J.J.E., Father of J.E., A Child, Appellee.
    No. 5D06-1797.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      Ralph J. McMurphy, of Department of Children and Families, Wildwood, for Appellant.
    Gary R. Gossett, Jr., and Christopher D. Cloud, of Gossett Law Offices, P.A., Sebr-ing, for Appellee.
   MONACO, J.

The Department of Children and Families appeals the order of the trial court finding that the service of process by publication in which the Department sought to obtain jurisdiction over the appellee, the father of the child that was the subject of a termination of parental rights proceeding, was invalid, and that the subsequent order terminating the father’s rights was void. Because we find no abuse of discretion, we affirm.

In 2002, the father’s parental rights to his child, J.E., were terminated based upon service of process by publication. The order terminating the father’s rights indicated that the father’s location was unknown and that he could not be found. J.E. was placed in a foster home along with his half-sister. Two years later the father learned through the media that J.E.’s half-sister had been abused. The father became concerned with the welfare of his son and filed a petition for writ of habeas corpus. His petition, which was assigned to a judge not involved in the original proceeding, alleged that J.E. was being wrongfully restrained in the custody of the Department because jurisdiction had never been obtained over the father. When the court, considering the petition, determined that it had subject matter jurisdiction, the Department sought a writ of prohibition from this court. We granted the petition and ordered the trial court either to dismiss the father’s petition for habeas corpus or “to transfer the proceedings to the court that ordered the termination of parental rights which continues to have jurisdiction over J.E.” See Dep’t of Children & Families v. J.J.E, 901 So.2d 215, 217 (Fla. 5th DCA), review denied, 911 So.2d 98 (Fla.2005). We directed that the issue of whether jurisdiction had been obtained over the father be considered by the dependency court employing the procedure found in Florida Rules of Juvenile Procedure 8.270(b)(4), which governs relief from an order or judgment because the order or judgment is void. Cf, Paladin Props, v. Family Inv. Enters., 952 So.2d 560 (Fla. 2d DCA 2007).

In accordance with that order the case was transferred to the dependency court, which then proceeded to hold an evidentiary hearing to consider whether process had been properly served in the original proceeding so that personal jurisdiction had been obtained over the father. More specifically, the trial court set out to determine whether the Department had performed the statutorily required diligent search prior to using publication as a means to serve process on and gain jurisdiction over the father.

Procedural due process requires “that a defendant in a termination proceeding will be given fair notice and afforded a real opportunity to be heard and defend in an orderly procedure.” M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1040 (Fla. 1st DCA 2002). Section 39.801, Florida Statutes (2006), and Florida Rules of Juvenile Procedure 8.505 govern the procedure for giving notice and serving process with respect to a petition to terminate parental rights. Section 39.801(3)(a)l. and rule 8.505(a)(1) provide that before a court can terminate parental rights, notice must be personally served on any parent who is the subject of the termination. If a party to a proceeding for termination of parental rights is known but his or her whereabouts are not, section 39.803(5) Florida Statutes (2006), requires a court to direct the petitioner to conduct a diligent search to locate the party, unless it would be in the best interest of the child to proceed without actual notice. If a party entitled to personal service cannot be so served, section 39.801(3)(b) thereafter compels notice to be given as required by the rules of civil procedure. Accordingly, when personal service cannot be made on an affected parent, service by publication may be made on any known party for proceedings to terminate parental rights. Sections 49.011(13), 49.021(1), Florida Statutes (2006); rule 8.505(c). If constructive service is utilized, however, there must be strict statutory compliance. See, e.g., Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340, 344 (Fla. 5th DCA 2006); Floyd v. Fed. Nat’l Mortg. Ass’n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998).

As a prerequisite to service of process by publication, the party seeking to obtain service must file a sworn statement with the court demonstrating that a diligent search has been made in an effort to obtain the defendant’s residence and establishing that personal service could not be obtained. Section 49.031(1) Florida Statutes (2006); Floyd. The sworn statement must show that a diligent search has been conducted to discover the name and address of the person sought to be served, whether the person sought is over 18, and that the person’s address is unknown or known, and if known, is included in the affidavit. Section 49.041, Florida Statutes (2006). Section 39.803(6), Florida Statutes (2006), lists the minimum requirements for a diligent search:

The diligent search required by subsection (5) must include, at a minimum, inquiries of all known relatives of the parent or prospective parent, inquiries of all offices of program areas of the department likely to have information about the parent or prospective parent, inquiries of other state and federal agencies likely to have information about the parent or prospective parent, inquiries of appropriate utility and postal providers, and inquiries of appropriate law enforcement agencies.

Even though the affidavit must allege that a diligent search and inquiry was made, it does not have to include specific supporting facts. Floyd, 704 So.2d at 1112. This provision, nevertheless, does not relieve the party of establishing that a diligent search has actually been made:

The underlying facts, however, must show that the complainant reasonably employed the knowledge at his command, made diligent inquiry and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service of the defendant.

Id. (internal citations omitted); see also Shepheard. Failure to comply strictly with the constructive service statutes renders a subsequent judgment voidable or even void if service of process is so defective that it essentially amounts to no service. Floyd, 704 So.2d at 1112.

In the present case, the trial court found that the Department represented in the earlier proceeding that it had performed a diligent search for and was unable to locate the father. It thereafter served process by publication in a local newspaper. The evidence received revealed that the Department had contacted the mother of J.E., whose rights were also being terminated, and were told by her that she had no knowledge of the father’s location. The Department stated in documentation brought to the trial court’s attention that “the mother had reasons for not being forthcoming as to her knowledge of the Father’s whereabouts.” The record does seem to indicate that the Department’s personnel did at least check the phone book and drivers’ license records, but because the father had a common name, it went no further. It did not bother to seek to learn which of the seven persons with similar names was the father whose parental rights it sought to terminate. Because it was not given a social security number or the birth date of the father, the Department considered itself unable to search further, and argued that its inquiry, meager as it was, satisfied the requirements of diligent search. It did not try to contact any other governmental agencies and did not check the county public records because, according to the Department’s witness, “it would have been a waste of time.”

The evidence further revealed, however, that the Department of Revenue (Child Support Office), was located in the very same building that housed the Department, yet incredibly no one from the Department ever consulted this agency, even though the Department of Revenue had issued an Order Suspending Child Support Payments that contained the father’s correct mailing address. The Clerk of the Circuit Court testified, as well, that a motion to suspend the father’s child support payments was filed in the public records of that court. The Clerk likewise had records showing that child support payments were being received. In fact, the Clerk had a letter from the father with his address on it.

The trial court found it “unfathomable” that a more diligent search was not performed, and noted that “throwing up one’s hand due to a common name and a lack of detail when the outcome involves the termination of parental rights ... strains the conscience.” The trial court found that the dependency court never obtained jurisdiction over the father prior to terminating his parental rights because no diligent search had been completed. Having found that the termination order was void, the trial court then gave the Department leave to give proper notice to the father and to commence a new termination proceeding against him. The Department appeals.

This case is largely controlled by our recent decision in J.M. v. Dep’t of Children & Families, 938 So.2d 620 (Fla. 5th DCA 2006). Here, as in J.M., the Department failed to demonstrate that it conducted a diligent search and inquiry. The burden of demonstrating that constructive service was proper fell squarely on the shoulders of the Department. See J.M.; Shepheard. The trial court found that the Department did not come close to the mark. Inasmuch as we review such a determination on an abuse of discretion basis, we find no error. See Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004), review dismissed, 902 So.2d 792 (Fla.2005). We write only to reconfirm that because parental rights are a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, termination of those rights may not be accomplished in a perfunctory fashion. See In re K.M., 946 So.2d 1214 (Fla. 2d DCA 2006). The Constitution requires and we fully expect those seeking to terminate parental rights to comply rigorously with the applicable laws, including very importantly the laws governing service of process.

AFFIRMED.

PALMER, J., concurs.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurring and concurring specially with opinion.

When Appellee’s parental rights were terminated without notice to him in 2002, J.E. was 13 years old. In a few months, J.E. will turn 18 years old. We don’t know whether Appellee’s parental rights should have been terminated because Appellee has never had the chance to defend himself. For almost three years, Appellee has battled for that right against a recalcitrant Department of Children and Families, which has interposed a pointless procedural hurdle and frivolous defenses. In the meantime, a child remains in legal limbo.

Central to this dispute was a disagreement between two department employees regarding their respective responsibilities. The case worker testified that it was “not part of [her] responsibility” to search for Appellee. Instead, she relied upon another department employee, a “crime intelligence analyst,” to perform the “diligent” search. The crime intelligence analyst testified that, according to department procedure, it was the case worker’s responsibility to provide him with enough specifics, including a social security number and date of birth, to enable him to perform the diligent search for Appellee. When she only provided him with Appel-lee’s full name, the analyst essentially threw up his hands. The analyst spoke with a “senior” attorney for the department concerning his perceived dilemma. According to him, the attorney told him in an e-mail that she would try to get more information from the mother’s attorney, failing which, she said: “otherwise, I don’t know. Do the best you can.” Although he had been given a checklist to meet the minimum requirements for a diligent search, as set forth in section 39.803(6), Florida Statutes (2006), the analyst did not complete it. Instead, he made the unilateral determination that any such efforts would prove fruitless or, as he put it, a “waste of my time.” It is unclear why the attorney did not tell the analyst to follow the checklist. Maybe she assumed that he had.

Apparently, the analyst determined that merely searching the driver’s license records and phone book was “the best [he could]” do. Although the driver’s license search revealed seven persons within Florida with the same name as Appellee’s, the analyst made no further attempt to narrow the list of names, concluding that the list of seven was too voluminous. Despite his lack of diligence, the analyst signed a sworn statement claiming that he had made a “diligent search and inquiry to determine the residence” of Appellee. The senior attorney for the department then filed the sworn statement in the court file.

During a status proceeding, the senior attorney presented a copy of the analyst’s sworn statement to the trial judge to get the judge’s “permission” to serve Appellee by publication, although it was not necessary for the judge to give permission. See §§ 49.011(13) & 49.021(1), Fla. Stat. (2006); Fla. R. Juv. P. 8.505(c). When the attorney showed the document to the judge, her only comment to the judge was that “[t]here was very scanty information, because we don’t have much on the [Appel-lee].” At no time did anyone from the department advise the trial judge that, notwithstanding the sworn statement to the contrary, the department had not complied with the provisions of section 39.803(6), Florida Statutes (2006).

Section 39.803(6) provides a laundry list of what is minimally necessary to establish a diligent search. Following its dictates is not rocket science, but the law is clear that strict compliance with the statute is imperative. Had the department simply done what the statute required, nothing more, nothing less, it would have found Appellee in Sebring, Florida, served him with process and this matter would have been concluded long ago on the merits. Instead, it is at its procedural genesis.

At least as troubling as the department’s meager efforts at effectuating a diligent search is the manner by which the department has reacted to what should have been an obvious revelation that it had erred. Instead of admitting the mistake and taking action to expedite the resolution of this case on the merits, it has confounded the dilemma by interposing a perplexing procedural objection and frivolous litigation, which has further delayed these proceedings for almost three years.

The department’s first avenue of defense was to challenge the procedural mechanism Appellee first used to contest the department’s actions. What was gained through that process is hard to fathom. What was lost is clear: one more year without any resolution on the merits. Thereafter, despite the fact that Appellee availed himself of the procedural route specified by this Court for him to take, the department interposed a frivolous challenge to the authority of the juvenile judge to hear Appellee’s motion, advanced wholly frivolous arguments and filed a specious appeal from the adverse ruling. This time, the department’s actions resulted in another delay of well over one and one-half years.

Incredible as it seems, never has the department contended that it complied with the requirements of section 39.803(6). Instead, it advanced as its primary contention below and on appeal that the trial judge, Judge Tombrink, did not have authority to hear Appellee’s rule 8.270(b)(4) motion because he is the successor judge to the judge who granted the department’s petition to terminate the parental rights of Appellee. As successor judge, the department contends, Judge Tombrink erred by “overturn[ing] the findings of [the predecessor judge] that the evidence was sufficient to find that a diligent search had been conducted.” Although this argument is simply too nonsensical to merit discussion, which is probably why it is not addressed by the majority, because I have labeled it frivolous, I will offer some comment on the fallacy of the argument.

The predecessor judge did not make any “findings” that the “evidence” was sufficient. In fact, he made no “findings” and he heard no “evidence.” What he did do was authorize the department to proceed with service by publication based upon a cursory review of a conclusory affidavit. Because the department was permitted by law to file a conclusory affidavit without disclosing the details of its so-called diligent search, the trial court’s function in reviewing the affidavit was ministerial at best. This did not constitute a determination that the department did in fact do a diligent search as the burden remains with the proponent of the affidavit, upon challenge, to affirmatively show that it did perform a diligent search. Floyd v. Fed. Nat’l Mortg. Ass’n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998).

Furthermore, the judgment of the predecessor judge was void, because the court did not have personal jurisdiction over Appellee, and rule 8.270 provides the procedural route for relief from any such judgment. Nothing in the rule or decisional law cited by the department requires that a collateral attack upon a void judgment be presented to the judge who signed the judgment. In fact, the law is exactly to the contrary. Tingle v. Dade County Bd. of County Comm’rs, 245 So.2d 76, 77-78 (Fla.1971); Powers v. ITT Fin. Seros. Corp., 662 So.2d 1343, 1345 (Fla. 5th DCA 1995); Batista v. Batista, 553 So.2d 1281, 1282 (Fla. 3d DCA 1989).

When the department seeks to terminate parental rights, its obligation to diligently search for the parents to give them proper notice of the proceedings is paramount. Due process of law should never be disregarded in favor of expediency, especially when fundamental rights are at stake. The purpose of the diligent search requirement is to find the parent so that actual service can be accomplished. It is not merely a technical precondition to substitute service. Service by publication is intended to be a last resort. The statute enumerates what should be done as a minimum. In addition, the department is obligated to use the “knowledge at [its] command, [make] diligent inquiry, and [exert] an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable [it] to effect personal service.” Demars v. Village of Sandalwood Lakes Homeowners Ass’n, Inc., 625 So.2d 1219, 1224 (Fla. 4th DCA 1993) (quoting Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975)). Here, the department’s efforts were obviously woefully lacking.

To make matters worse, the department, in an apparent attempt to pass the buck to the trial judge, sought unnecessary permission from the court to use substitute service of process, but did so by filing a false affidavit, without disclosing to the trial court facts within its knowledge that were clearly material to the determination. An affidavit of diligent search is given under penalty of perjury and constitutes an affirmative representation to the court that the department has complied with the mandatory, statutory provisions and due process of law. The department’s actions in failing to provide complete information to the trial court during an ex parte proceeding were a gross transgression from its ethical and legal obligations.

Thereafter, the department’s lawyers engaged in unnecessary and frivolous litigation to defend a position that was utterly indefensible. Lawyers are duty bound to expedite litigation and to refrain from interposing frivolous claims or defenses. R. Regulating Fla. Bar. 4-3.1 & 4-3.2. Here, the department’s lawyers violated these principles and, in the process, perpetuated a grievous violation of Appellee’s constitutional rights with potentially devastating personal consequences to Appellee and his child. I, for one, expect a more enlightened approach from lawyers, especially those entrusted with the responsibility of representing the government in these types of proceedings.

      . [Quoted from the department’s brief on appeal; emphasis supplied].

      . Although decisional law apparently permits the practice of filing an affidavit that merely tracks the language of the statute in concluso-ry language, I think this practice is incorrect because section 49.041, Florida Statutes (2006) requires that the affidavit “show” that a “diligent search and inquiry have been made.” In my view, to constitute a "showing” an affiant must set forth facts from which the trial court can verify that the search has been diligent.


author: WOLF, J.

text:
    FLORIDA HOMETOWN DEMOCRACY, INC. and Lesley Gay Blackner, Appellants, v. Sue M. COBB, in her official capacity as Florida Secretary of State, Appellee.
    No. 1D06-5059.
    District Court of Appeal of Florida, First District.
    March 30, 2007.

      Ross Stafford Burnaman, Tallahassee, for Appellants.
    Bill McCollum, Attorney General, Jonathan A. Glogau, Chief, Complex Litigation, and Mark Dunn, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

On October 26, 2004, appellants, Florida Hometown Democracy, Inc. and Lesley Gay Blackner, filed an action for declaratory and injunctive relief against appellee, Glenda L. Hood, in her official capacity as Florida’s Secretary of State. This suit challenged the constitutionality of a legislatively proposed revision to the Florida Constitution known as Senate Joint Resolution (SJR) 2394. SJR 2394 proposed placing time limitations on amendments to the constitution proposed by citizen’s initiatives. The trial court granted a final summary judgment in favor of appellees.

Appellants raise three issues on appeal: (1) whether the trial court erred in granting appellee’s motion for summary judgment based on its finding that SJR 2394’s ballot language met the minimum requirements set out in section 101.161(1), Florida Statutes (2004); (2) whether the trial court erred in granting appellee’s motion for summary judgment based on its finding that appellee properly noticed the proposed revision pursuant to article XI, section 5 of the Florida Constitution; and (3) whether the trial court erred in granting appellee’s motion for summary judgment based on its finding that section 101.161(1), Florida Statutes (2004), is constitutional. We affirm.

SJR 2394 was signed by legislative officers and filed with the Secretary of State for placement on the 2004 general election ballot. SJR 2394 provided for the following ballot title and summary:

CONSTITUTIONAL AMENDMENTS
ARTICLE IV, SECTION 10
ARTICLE XI, SECTION 5
CONSTITUTIONAL AMENDMENTS PROPOSED BY INITIATIVE. — Proposing amendments to the State Constitution to require the sponsor of a constitutional amendment proposed by citizen’s initiative to file the initiative petition with the Secretary of State by February 1 of the year of a general election in order to have the measure submitted to the electors for approval or rejection at the following November’s general election, and to require the Florida Supreme Court to render an advisory opinion addressing the validity of an initiative petition by April 1 of the year in which the amendment is to be submitted to the electors.

The text of the proposed constitutional revision was:

ARTICLE IV
EXECUTIVE
SECTION 10. Attorney General.— The attorney general shall, as directed by general law, request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to Section 3 of Article XI. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion no later than April 1 of the year in which the initiative is to be submitted to the voters pursuant to Section 5 of Article XI expeditiously.
ARTICLE XI
AMENDMENTS
SECTION 5. Amendment or revision election.—
(a)A proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than ninety days after the joint resolution, initiative ■■ petition or report of revision commission, constitutional convention or taxation and budget reform commission proposing it is filed with the custodian of state records, unless, pursuant to law enacted by the affirmative vote of three-fourths of the membership of each house of the legislature and limited to a single amendment or revision, it is submitted at an earlier special election held more than ninety days after such filing.
(b) A proposed amendment or revision of this constitution, or any part of it, by initiative shall be submitted to the electors at the general election provided the initiative petition is filed with the custodian of state records no later than February 1 of the year in which the general election is held.
(c) ⅜) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.
(d) le) Once in the tenth week, and once in the sixth week immediately preceding the week in which the election is held, the proposed amendment or revision, with notice of the date of election at which it will be submitted to the electors, shall be published in one newspaper of general circulation in each county in which a newspaper is published.
(e) Id) If the proposed amendment or revision is approved by vote of the electors, it shall be effective as an amendment to or revision of the constitution of the state on the first Tuesday after the first Monday in January following the election, or on such other date as may be specified in the amendment or revision.

SJR 2394’s ballot title and summary statement, but not the text, appeared on the November 2004 general election ballot as Constitutional Amendment No. 2.

In appellants’ Second Amended Complaint, filed on October 27, 2004, appellants raised three counts for Declaratory and Injunctive Relief alleging the following:

Count I: The ballot summary for Constitutional Amendment No. 2 violated article XI, section 5 of the Florida Constitution because the summary did not (1) accurately notify the public that the time for authorizing a citizen’s initiative to amend the constitution would be cut by five months, thereby, making the amendment process more difficult for citizens; (2) inform citizens that the amendment would eliminate the possibility that a citizen’s initiative petition could be the subject of an earlier special election; and (3) inform electors that a legislatively backed proposed amendment could be voted on by Florida electors at an earlier special election, while a citizen backed proposed amendment would have to wait for the later general election.

Count II: The ballot summary for Constitutional Amendment No. 2 violated article XI, section 5(b) of the Florida Constitution because the summary was not published in local newspapers as required in the tenth and sixth weeks preceding the general election.

Count III: Section 101.161(1), Florida Statutes (2004), violates the equal protection clause of the Florida Constitution, as considered with article I, section I, of the Florida Constitution because the statute exempts the Legislature from the 75-word limit ballot summary requirement, while impermissibly requiring all citizen’s initiative petitions to be constrained by the limit.

On November 2, 2004, Florida voters passed the proposed amendment. On April 3, 2006, appellee filed a Cross-Motion for Summary Judgment on the Second Amended Complaint and an Affidavit asserting (1) the summary adequately explained the proposed amendment’s chief purpose and the burden of applying time-limits to citizen’s initiative petitions; (2) the summary was not required to explain its limitation on citizen’s initiative petitions submission through special election because there is no bar, and even if there were, special elections are exceedingly rare and the summary is not required to explain every detail or possible ramification of a proposed amendment; (3) although the proposed revision may not have been properly submitted for publication in a minority of Florida newspapers due to a one-day delay, the Secretary of State substantially complied with the notice requirement and, thus, under existing case law, summary judgment should be granted as to count II; (4) Florida’s equal protection clause only applies to “natural persons,” not branches of government or political action committees, and, thus, count III, alleging an equal protection violation based on the 75-word limit exception, should be dismissed because neither the defendant nor the plaintiff are “natural persons;” (5) plaintiffs equal protection challenge must be subject to only a rational basis scrutiny, which it clearly passes based on the compelling state interest in ensuring ballot integrity and a valid election process; (6) a joint resolution can be declared invalid only if it is in direct conflict with a constitutional mandate, which for the foregoing reasons, SJR 2394 is not; and (7) the voters cured any defects by passing the proposed revision. In support of this motion, appellee filed affidavits from agents of the Orlando Sentinel, Tampa Tribune, Tallahassee Democrat, (Daytona) News Journal, and Florida Times-Union.

On April 24, 2006, a hearing was held on the motions. On September 1, 2006, the trial court entered a Final Summary Judgment for Defendant finding the following: (1) the proposed revision summary did not “hide the ball” from voters; the revision’s summary stated the revision’s chief purpose and informed voters that the revision would impose burdens on the initiative process; (2) the Secretary of State substantially complied with the statutory publication and timing of notice. Namely, 67 county newspapers circulated the proposed revision with only four counties relying on nearby metropolitan areas. Further, while both parties concede the notice was untimely by days in some publications, the notices substantially complied with the statutory requirements and did not amount to a “November surprise;” and (3) section 101.161(1), Florida Statute’s legislative exemption from the 75-word ballot summary limit is constitutional. The plaintiffs challenge is evaluated by the rational basis test. The Legislature has a state interest in the exemption because (1) the 75-word limitation ensures ballot integrity, and (2) joint resolutions may embrace more than one subject at a time, unlike citizen’s initiatives; thus, the need to explain the proposed legislation with more than 75 words is necessary. Appellants seek review of this order.

Appellants first assert the ballot title and summary are misleading and fail to meet the requirements of section 101.161(1), Florida Statutes.

A ballot title and summary are required whenever a constitutional amendment is submitted for a vote to the electorate. Section 101.161(1), Florida Statutes (2004), codifies article XI, section 5 of the Florida Constitution’s accuracy in proposed amendments requirement and serves as a “truth in packaging” law for ballot summaries. Armstrong v. Harris, 773 So.2d 7, 13 (Fla.2000).

Section 101.161(1), Florida Statutes (2004), provides:

Whenever a constitutional amendment ... is submitted to the vote of the people, the substance of such amendment ... shall be printed in dear and unambiguous language on the ballot.... [T]he substance of the amendment ... shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure .... The ballot title shall consist, of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

(Emphasis added). In Advisory Opinion to Attorney General re Independent Nonpartisan Commission, 926 So.2d 1218 (Fla.2006), the supreme court considered a challenge to a ballot summary on grounds that the summary was misleading:

This Court has stated “that the ballot [must] be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.” Askew v. Firestone, 421 So.2d 151, 155 (Fla.1982) (emphasis removed) (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954)). While the ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail or ramification of the proposed amendment. Carroll v. Firestone, 497 So.2d 1204, 1206 (Fla.1986). The ballot must, however, give the voter fair notice of the decision he or she must make. Askew, 421 So.2d at 155. The purpose of section 101.161 is to ensure that voters are advised of the amendment’s true meaning. In assessing the ballot title and summary, this Court should ask two questions, first, whether the ballot title and summary “fairly inform the voter of the chief purpose of the amendment,” and second, “whether the language of the title and summary, as written, misleads the public.” [Advisory Opinion to Attorney General re] Additional Homestead Tax Exemption, 880 So.2d [646] at 651 [ (Fla. 2004) ] (quoting [Att’y Gen. re] Right to Treatment & Rehab, [for Non-Violent Drug Offenses], 818 So.2d [491] at 497 [ (Fla.2002) ], and [Advisory Opinion to the Attorney General re] Right [of Citizens] to Choose Health Care Providers, 705 So.2d [563] at 566 [ (Fla.1998) ]).

(Emphasis added).

In the instant ease, appellants assert the summary and title violated section 101.161(1), Florida Statutes’ “truth in packaging” requirements for the following reasons: (1) the ballot title, “Constitutional Amendments Proposed by Initiative,” merely referenced the very general subject area of the proposed revision, and was, thus, overly broad; (2) the ballot title and summary’s use of the term “amendments” rather than “revisions” misled the public into believing that set time-frames would only apply to proposed amendments rather than revisions; (3) the ballot title and summary failed to inform the public that the set dates proposed would alter pre-existing time-frames; the summary misled the public to believe that these set time-frames were novel ideas which had not previously existed; and (4) the ballot title and summary failed to inform the public of the lengthy process involved in obtaining an advisory opinion from the supreme court; therefore, the electorate was not informed how the proposed deadlines would make the filing of citizen’s initiatives a more difficult task.

We disagree with appellants’ assertions for the following reasons. First, while appellants challenge the title’s over-breadth, appellants fail to explain how the title mischaracterized the proposed revision’s main purpose. The point of an appellate brief is to present arguments in support of the points on appeal, and without further elucidation on the arguments, this court may not engage in meaningful appellate review. Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990). As such, without more, this court may not review appellants’ assertions regarding the title’s alleged overbreath.

Second, appellants’ assertion that the use of the term “amendment” without reference to the term “revision” misled the voters by failing to inform the electorate of the legal distinction between the two terms is without merit. While appellants are correct that case law and the Florida Constitution apply distinct and unique definitions to the terms “amendment” and “revision,” the average voter would likely not be apprised of this legal distinction.

Appellants cite to Smothers, 338 So.2d at 828-32, in support of their contention that the summary’s use of the term amendment impermissibly misled voters to believe the deadlines would only apply to amendments rather than revisions. In Smothers, the court considered the Legislature’s right to amend or revise the constitution and determined the Legislature was not entitled to place amendments wherever they saw fit to include them in the constitution; it was constrained to include amendments only in germane sections to the amendment’s content. Id. at 829-32. While Smothers discussed the difference between proposed revisions and proposed amendments, the case does not stand for the proposition that the public is misled by the use of one term rather than the other in the proposed amendment’s ballot summary, as argued by appellants. If anything, the case draws attention to the common misconception that the terms may be used interchangeably and supports a finding that the voting public likely does not distinguish between the two terms. The language sufficiently apprised voters that it dealt with proposed changes to the constitution. As such, it cannot be said SJR 2394’s ballot summary misled the public in a way that “hid the ball” from the average voter. Armstrong, 773 So.2d at 18.

Third, appellants’ contention that the ballot summary failed to explain to the voting public that SJR 2394 shortened an already existing period for the return of advisory opinions is unfounded. The previous constitutional provision on advisory opinions regarding proposed amendments required only that the Florida Supreme Court issue the opinion “expeditiously.” There was no set date. As such, contrary to appellants’ assertions, the proposed amendment did establish a previously, non-existent time certain for the return of advisory opinions.

However, appellants correctly assert that the proposed amendment did serve to shorten the established time period for the submission of a proposed citizen’s initiative petition from approximately 3 months pri- or to the general election to approximately 9 months preceding the general election. Even in light of this fact, the trial court correctly found that the ballot title and summary appropriately apprised the electorate of the proposed revision’s main purpose as required by Armstrong.

The title and summary specifically provided the “cut-off’ date for a petition’s filing. As such, the summary and title adequately apprised the electorate that the proposed amendment would serve to establish a cut-off date, 9 months prior to the general election, for the filing of a citizen’s initiative petition. While appellants may take issue with the date’s ramifications, questions that “go to the wisdom of adopting the amendment” should be left to the public. Carroll v. Firestone, 497 So.2d 1204, 1206 (Fla.1986). The summary did not “hide the ball” from Florida voters who were told exactly what limits passing the amendment would create. Armstrong, 773 So.2d at 18.

Fourth, appellants take issue with the fact that the ballot summary did not describe the process of receiving an advisory opinion and proposed ballot summary in detail, thereby, alerting the public to the revision’s negative effects on citizen’s initiatives. In order to submit a citizen’s initiative to the Secretary of State, the sponsoring party must submit a requisite number of signatures. After 10% of the requisite signatures for the filing of a citizen’s initiative petition have been collected and certified to the Secretary of State, the Attorney General is required to petition the Florida Supreme Court for an advisory opinion on the initiative’s validity. Prior to the amendment’s passing, the Florida Supreme Court was to rule “expeditiously” on the initiative’s validity.

The Florida Supreme Court has stated, “it is not necessary to explain every ramification of a proposed amendment, only the chief purpose.” Firestone, 497 So.2d at 1206. The “[i]nclusion of all possible effects [of proposed legislation] is not required in the ballot summary.” Grose v. Firestone, 422 So.2d 303, 305 (Fla.1982). As discussed above, the ballot summary did not “hide the ball” from the voters. As explained by the trial court in the order granting summary judgment: “the chief purpose of SJR 2394 was to alter the schedule for the citizen’s initiative process, and that purpose was clearly reflected in the plain language of the ballot summary.”

Appellants’ next issue relates to whether proper notice was given to the public concerning the proposed revision. Article XI, section 5(d) of the Florida Constitution establishes a constitutional notice requirement for proposed amendments and provides as follows:

Once in the tenth week, and once in the sixth week immediately preceding the week in which the election is held, the proposed amendment or revision, with notice of the date of election at which it will be submitted to the electors, shall be published in one newspaper of general circulation in each county in which a newspaper is published.

(Emphasis added).

Appellants assert appellee did not provide notice as required by the Florida Constitution. Namely, appellants assert (1) appellee failed to publish the notice in four counties’ hometown newspapers as required; and (2) appellee failed to publish the notices in a timely fashion. In response, appellees assert that, while the requirements may not have been expressly met, the notifications substantially complied with the requirements and, thus, the legislation should be upheld. In ruling on the matter, the trial court expressly stated:

I find that the major newspapers which circulated in 2004 in the four counties at issue provided the necessary notice, and substantial compliance ... Similarly, there was substantial compliance with the timing of necessary publication ... The defendant did not strictly comply with the above timing requirements, but her substantial compliance effectuated the purpose of the requirement.

As illustrated above, the text of article XI, section 5 outlines two notice requirements. The first being an established time-frame for notice publication and the second being a geographical publication requirement in each county of the State.

In State v. State Board of Education of Florida, 467 So.2d 294, 296 (Fla.1985), the Florida Supreme Court considered a similar challenge to the Secretary of State’s failure to provide sufficient notice as required by article XI, section 5. In State Board of Education, the Secretary failed to circulate the pre-election publication of the proposed amendment in two counties. In considering the issue, the court relied heavily on the circuit court’s analysis in the order granting summary judgment for the Secretary. Id. That analysis reads as follows:

Publication of proposed amendments being a formality, and not an essential element, of the procedure for amending the Florida Constitution, the publication of Amendment 8 in sixty-five of Florida’s sixty-seven counties in the tenth week and the sixth week prior to the General Election of November 6, 1984, constitutes substantial compliance with the provisions of Article XI of the Florida Constitution; the fact that such notice was not published in newspapers of general circulation printed in Hamilton and Madison Counties constitutes harmless error, since, even assuming that all of the registered voters in Hamilton and Madison Counties had voted against Amendment 8, said amendment would have still been approved by an overwhelming Majority of voters throughout the State. Furthermore, there has been no suggestion of fraud or bad faith in connection with the passage of Amendment 8, nor has any elector complained to have been deprived of his right to vote in the said election. This Court therefore finds that the Public Education Bond Amendment was validly amended by a vote of the electors of the State of Florida at the general election of November 6, 1984, in accordance with Article XI of the Florida Constitution, and, therefore, the gross receipts taxes as defined by Chapter 208, Florida Statutes, including the amendment thereto contained in Chapter 84-342, Laws of Florida, constitute a legal source of payment for bonds issued pursuant to the Public Education Bond Amendment.

Id. (Emphasis added). As evidenced by the preceding language, the Florida Supreme Court adopted a substantial compliance formula when considering challenges to proposed amendments based on publication errors. Under this analysis, it appears appellee has substantially complied with the notice requirements in the present case.

Both parties concede the required publication was not printed in four Florida counties: Flagler, Gadsden, Highlands, and Osceola. However, both parties further concede that the notification was published in the surrounding metropolitan areas’ newspapers, including: The Florida Times-Union (Flagler), The Tallahassee Democrat (Gadsden); The Tampa Tribune (Highlands); and The Orlando Sentinel (Osceola). Although appellee failed to publish the notices as expressly required in all Florida counties, the lack of proper notification in only four out of sixty-seven counties is not fatal to the legislation. Ap-pellee has substantially complied with the geographical notice requirements set out in article XI, section 5 of the Florida Constitution. State Bd. of Educ. of Fla., 467 So.2d at 296.

Additionally, article XI, section 5 of the Florida Constitution requires the notices be published in the sixth and tenth weeks prior to the general election. Both parties concede that the notice publications were published in the sixth week and in the ninth week prior to the general election. Thus, appellee concedes the notice was not published as required by approximately one week’s time. While State Board of Education did not consider the Secretary’s failure to file timely publications, its reasoning suggests that a substantial compliance formula should be applied to such an oversight. 467 So.2d at 296. Under this standard, it appears appellee substantially complied with the notice requirements. Article XI, section 5’s notice requirements were adopted in an effort to avoid a “November surprise.” Armstrong, 773 So.2d at 11. The failure to publish the requisite notice by a matter of days does not amount to a voter surprise on the eve of election. Further, appellants do not contend the lack of notice was the result of bad faith or fraud. The voters were informed well before the general election of the proposed amendment. As such, appellee substantially complied with the notice requirements.

Finally, appellants claim that the legislative exemption from the 75-word ballot summary limitation is an unconstitutional denial of equal protection.

Specifically, appellants assert the trial court’s finding that the 75-word limit served to guarantee ballot integrity was not supported by record evidence, and, thus, the grant of summary judgment was improper. However, empirical evidence is not required to support the finding of a reasonable relationship to a legitimate state interest. Vance v. Bradley, 440 U.S. 93,110, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)

(rejecting challenger’s assertion that the government had to present empirical evidence that the statute furthered legitimate interests). Further, in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), the U.S. Supreme Court stated:

[S]tates are not required to convince the courts of the correctness of their legislative judgments. Rather, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be eon- . ceived to be true by the governmental decisionmaker.”

(citing Vance, 440 U.S. at 111, 99 S.Ct. 939).

The State asserts that the Legislature enacted section 101.161(1), Florida Statutes (2004), to ensure ballot integrity and a valid election process. A law which requires a minimum word limit on ballot summaries clearly insures ballot integrity by limiting the ballot to a workable and user friendly length.

To the extent appellants argue that section 101.161(1) as applied, is discriminatory, appellants must show (1) that they were treated differently under the law from similarly situated persons, (2) that the statute intentionally discriminates against appellants, and (3) that there was no rational basis for the discrimination. McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998). While section 101.161(1) exempts the Legislature from the 75-word limit, the statute does not rise to the level of unconstitutional discrimination.

First, the Legislature is not a “similarly situated” person to appellants. Appellants are private voting citizens while the Legislature is an elected body charged with the responsibility of creating new laws and amending existing law. Second, the constitutional process by which legislative proposals reach the ballot is substantially different from the process utilized for a citizen’s initiative petition. Third, the lack of a single subject requirement (which is imposed on citizen’s initiatives) makes legislative proposals clearly different requiring the Legislature have the freedom to adequately explain the proposed change in a more lengthy ballot summary. For all these reasons, it is apparent the challenged statute (1) applies to all similarly situated persons to appellants; (2) does not intentionally discriminate against appellants alone; and (3) passes a rational basis scrutiny. Accordingly, section 101.161(1), Florida Statutes, should not be invalidated as unconstitutional under the equal protection clause.

AFFIRMED.

BARFIELD and VAN NORTWICK, JJ., concur.

      . Sue. M. Cobb has replaced Glenda L. Hood as Secretary of State during the pendency of this appeal.

      . This hearing has been omitted from the record.

      . In support of this argument, appellants assert revisions differ from amendments in that revisions affect multiple constitutional sections, whereas amendments affect only one provision. Adams v. Gunter, 238 So.2d 824, 829 (Fla. 1970) (holding that "where more than one section of the Constitution is to be amended it is called a revision.Smothers v. Smith, 338 So.2d 825, 829 (Fla.1976) (analyzing the distinction between article XI, section 1 of the Florida Constitution's phrases "section amendment” and "article revision” and determining that the two terms are distinct and unique).

      . The challenged title reads as follows: CONSTITUTIONAL AMENDMENTS PROPOSED BY INITIATIVE.


text:
    Charles E. DONALD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0555.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Charles E. Donald, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order issued on February 8, 2007, the appeal is hereby dismissed as untimely. The appellant’s untimely motion for rehearing did not delay rendition of the order on appeal. This dismissal is without prejudice to the appellant’s right to file a petition for belated appeal pursuant to rule 9.141(c).

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