text:
    K.Q.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1556.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.
    Rehearing Denied Feb. 28, 2008.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Office of the Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order of the trial court finding six instances of criminal contempt and imposing a sentence of 80 days of secure detention. The appellant asserts that, pursuant to section 985.037, Florida Statutes (2007) and J.D. v. State, 954 So.2d 93 (Fla. 5th DCA 2007), the trial court was prohibited from imposing consecutive sentences for each instance of contempt. We disagree and affirm the child’s sentences for contempt.

I. Background

On January 31, 2007, the appellant appeared before the trial court to plead to a new law offense and to violating probation. After noting that the appellant had previously absconded, the trial court ordered the appellant placed in detention until his disposition hearing. At that time, the appellant became very defiant and began using extremely profane language. Although the trial court gave the appellant numerous opportunities to stop his tirade and apologize, the appellant continued to use vile language in personal verbal attacks to the judge. In response, the trial court found the appellant to have been in contempt of court six times and imposed one five-day detention to be followed by five consecutive fifteen-day detentions to be served following his regular disposition and commitment, for a total of eighty days of secure detention. The appellant does not challenge the finding of six instances of contempt on appeal. On February 15, 2007, the appellant was adjudicated delinquent and sentenced in accordance with the Department’s recommendation to a high-risk facility, with no post-commitment probation to follow.

On June 9, 2007, after the timely notice of appeal had been filed, but before the initial brief was filed, the appellant filed a motion to correct disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2). The appellant asserted the same issue he now raises on appeal, namely, that the trial court was prohibited from imposing more than 20 days of detention for his direct contempt based on J.D. v. State, 954 So.2d 93 (Fla. 5th DCA 2007). The trial judge denied the motion, stating that he did not believe that J.D. applied and that nothing prohibited him from stacking the sentences for contempt. The appellant appeals the denial of the motion filed pursuant to rule 8.135.

II. Analysis

The appellant asserts that stacking periods of detentions for contempt is not permitted under the applicable statutes and the case law. Specifically, the appellant asserts that section 985.037, Florida Statutes (2007), and J.D. v. State, 954 So.2d 93 (Fla. 5th DCA 2007), provide that only one five-day and one fifteen-day detention may be imposed under the circumstances. We disagree.

Section 985.037 delineates a trial court’s powers to impose sanctions on juveniles who are in contempt of court. That section states:

(1) CONTEMPT OF COURT; LEGISLATIVE INTENT. — The court may punish any child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto. It is the intent of the Legislature that the court restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility. A child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.
(2) PLACEMENT IN A SECURE FACILITY. — A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction. A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.

§ 985.037, Fla. Stat. (2007) (Emphasis supplied).

Section 985.037 was discussed by the Fifth District in J.D. v. State, 954 So.2d 93 (Fla. 5th DCA 2007). In that case, the trial court found that a juvenile had violated the same behavior order five times and imposed a sentence of seventy-five days of confinement. Id. at 94. The issue was whether the trial court erred by imposing consecutive fifteen-day sentences for each violation of the same behavior order. Id. The court analogized the stacking of sentences for contempt with the stacking of periods of detention in section 985.26(2), and with a prohibition on using multiple instances of violation of probation as a basis for departure, and held that section 985.037 prohibited the stacking of periods of secure detention for juveniles found guilty of contempt.

Contrary to the Fifth District’s conclusion in J.D., we hold that section 985.037 does not prohibit the trial court from imposing consecutive sentences of secure detention for each separate instance of contempt. Although section 985.037 limits a sentence for a second or subsequent offense to fifteen days, nothing in the statute-states that multiple instances of direct contempt' cannot be separately punished with consecutive sentences of fifteen days of confinement for each offense. In fact, the statute specifically states that a sentence of fifteen days may be imposed for a “second or subsequent” offense. We find that the plain meaning of the statute allows a trial court to impose a sentence of 15 days for each instance of contempt, consecutively if it so wishes. See Tillman v. State, 934 So.2d 1263 (Fla.2006) (“In construing statutes, we first consider the plain meaning of the language used.”). To hold otherwise would prohibit a trial judge from punishing individuals, such as the appellant, who repeatedly and intentionally disparage the integrity of the court and interfere with the course and conduct of proceedings before it. A trial court would be powerless to impose more than twenty days of secure detention, no matter how many acts of contempt were committed or how egregious they were. See Krueger v. State, 351 So.2d 47, 49 (Fla. 3d DCA 1977) (noting that the purpose of criminal contempt is to “punish assaults or aspersions upon the authority and dignity of a court or judge.”); see also § 985.01(1)(a), Fla. Stat. (2007) (stating that one of the legislature’s goals within Chapter 985 is to ensure that “the authority and dignity of the courts are adequately protectéd”).

III. Conclusion

We hold that a trial court is not prohibited from imposing consecutive sentences of secure detention for multiple instances of direct criminal contempt pursuant to section 985.037.

AFFIRMED.

POLSTON, HAWKES, and THOMAS, JJ., concur.

      . We note that the trial judge stated that he was willing to revoke the entire sentence for contempt if the appellant would write a two-page letter of apology within 90 days. It appears the appellant failed to do so.

      . Prior to January 1, 2007, this statute was numbered as section 985.216.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    John Michael MALARKEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5240.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2008.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

John Malarkey appeals from the order of restitution entered against him after he pleaded no contest to a charge of grand theft. Because the trial court improperly awarded restitution for items not related to the theft with which Malarkey was charged, we reverse and remand for a new restitution hearing. This resolution renders Malarkey’s other issues moot.

Malarkey was employed by Premier Electric of Naples as a supervisor dealing with low voltage products. After Premier discovered certain inventory missing, it fired Malarkey. Subsequently, on October 5, 2005, an arrest warrant was issued for Malarkey arising out of the alleged theft of property from Premier. The affidavit supporting the warrant listed the specific property that Malarkey was accused of taking and detailed the efforts to recover the missing property. The warrant for Malarkey’s arrest was based on the following list of property:

Item Disposition
Rotel surround sound receiver returned to Premier
3 50" HDTV's one returned to Premier
one sold by Malarkey for $2600
one unaccounted for
wireless control panel returned
Monster power converter returned
2 remote controls returned
Harris phone tester returned
miscellaneous electronic cables returned
2 speakers returned
DVD player returned
Audiosource 2-channel amplifier returned
Video Quest DVR returned
Sony CD/DVD player returned
surround sound speakers returned

Malarkey was subsequently arrested on the warrant. On November 3, 2005, the State filed its information charging Malarkey with grand theft based on the information in the warrant affidavit.

After initially entering a plea of not guilty to the grand theft charge, Malarkey subsequently entered into a negotiated plea agreement with the State. In that agreement, Malarkey agreed to plead no contest to the charge in exchange for an agreed sentence of probation and a withhold of adjudication. Malarkey also agreed to pay restitution in an amount to be determined by the court if he and the State could not agree on an amount. The State referred the court to the “discovery materials” as its support for the factual basis for the plea. After a thorough plea colloquy, the trial court accepted Malarkey’s plea and sentenced him in accordance with the plea agreement. The trial court also reserved jurisdiction to consider the issue of restitution.

When Malarkey and the State could not agree on the amount of restitution, the trial court scheduled a hearing on the matter. At the start of that hearing, the State brought forth what it termed “State’s Composite Exhibit 1,” which the State represented to be additional discovery materials. Malarkey objected to the use of these materials at the hearing, noting that these materials had been produced to the defense only five days before the restitution hearing and that “the State [was] seeking restitution for something that was not included in the original discovery information.” The trial court overruled Malarkey’s objection. Subsequently, when the State attempted to use the new materials, Malarkey renewed his objection, arguing that the new information contained in these discovery materials “was not a part of the original case.” The trial court again overruled the objection.

The State then presented evidence that established that after Malarkey left Premier’s employ, Premier was unable to locate a car audio receiver, a Hitachi DVD camcorder, some cabling, and a speaker. The evidence also showed that Premier had learned that Malarkey did a “side job” for one of Premier’s customers and had not turned over the payment to Premier. Finally, the State established that Malarkey had ordered a 61" HDTV for a Premier customer, that the customer had canceled the order, and that Malarkey had sold the TV for cash to another employee. Malarkey allegedly kept the cash from this transaction.

At the conclusion of the hearing, the trial court entered a restitution order in the amount of $9001.76. This amount was based solely on the evidence contained in the new discovery materials presented by the State at the restitution hearing. Malarkey now appeals the restitution order, arguing that the trial court erred by awarding restitution for items that were not related to the theft charged in the information. We agree.

Section 775.089(l)(a), Florida Statutes (2005), provides that the court may order a defendant to make restitution to a victim for:

1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode.

The supreme court has held that before the trial court may award restitution under this statute, it must find that the loss or damage is causally connected to the offense and bears a significant relationship to it. Glaubius v. State, 688 So.2d 913, 915 (Fla.1997); State v. Williams, 520 So.2d 276, 277 (Fla.1988). To be causally connected to an offense, the restitution awarded must arise out of the offense with which the defendant is actually charged. See, e.g., Bernard v. State, 859 So.2d 560, 562 (Fla. 5th DCA 2003). Further, when a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered. See, e.g., Avery v. State, 838 So.2d 1247 (Fla. 2d DCA 2003); Noland v. State, 734 So.2d 464, 466 (Fla. 5th DCA 1999); Stewart v. State, 629 So.2d 982, 983 (Fla. 5th DCA 1993).

For example, in Avery, Avery was charged with grand theft arising out of the theft of cash payments made to Avery by his employer’s customers. 838 So.2d at 1247. While the information charged only that Avery had stolen cash, the arrest warrant indicated that he had stolen $758 in cash. Id. at 1248. Avery pleaded guilty to the charge, and the factual basis for the plea made at the change of plea hearing was that Avery had stolen $758. Id. Avery agreed to pay restitution as part of his plea.

At the restitution hearing, Avery’s employer testified that Avery had previously paid back the $758. Id. at 1247. However, Avery’s employer had subsequently discovered that an additional $1311.06 was missing. Id. The employer confronted Avery, who admitted to taking the additional money. Avery reimbursed his employer $50 of this amount, but nothing more. Avery’s employer also testified to expending $563 in investigative costs. At the conclusion of the restitution hearing, the trial court awarded $1824.06, which was the $1311.06 less $50 testified to at the restitution hearing, plus the $563 in investigative costs. Id.

On appeal, Avery contended that the additional $1311.06 should not have been included in the restitution order because it was not part of the original charge against him. This court agreed, noting that when Avery entered his plea and agreed to restitution, the charge against him was the theft of $728. Id. at 1248. The additional $1311.06 was “a separate offense for which Avery has not been charged and which cannot affect the calculation of restitution here.” Id. Thus, this court reversed and remanded for a new restitution hearing.

Similarly, in Noland, Noland was charged with grand theft and dealing in stolen property. 734 So.2d at 465. The information charging the theft alleged that Noland had stolen a VCR and/or video tapes. Noland pleaded no contest and agreed to pay restitution. At a subsequent restitution hearing, the victim testified that a grill, a refrigerator, the VCR, and the video tapes were all stolen at the same time. He testified that he did not notice that the grill and the refrigerator were missing until after the police left. Id. at 465-66. The trial court’s restitution order included amounts for the grill and the refrigerator. Id. at 466.

On appeal, the Fifth District held that because the theft of the grill and the refrigerator was not discovered and/or reported to the State before the information was filed, those items were not encompassed by the charge contained in the information. Id. Thus, because restitution could not be ordered for items not within the scope of the original criminal prosecution, the court reversed the restitution award and remanded for a new hearing.

This case is factually quite similar to Avery and Noland. In this case, the information filed by the State alleged that Malarkey stole “money or property” from Premier Electric. It did not include a listing of any specific items. However, the arrest warrant listed the specific property Malarkey was accused of taking. Neither the arrest warrant nor the State’s original discovery materials referenced the car audio receiver, the Hitachi DVD camcorder, the cabling, the speaker, and the side job for which the State subsequently sought restitution. Because these items were neither discovered by Premier nor reported to the State before the information was filed, those items were not encompassed within the original charge against Malarkey, and the theft of those items constitutes a separate offense with which Malarkey has not been charged. As such, any restitution ordered for these items is not causally connected to the offense with which Malarkey was charged. Further, because these items were not encompassed by the State’s original charge against Malarkey, he did not agree by virtue of his plea to pay restitution for these items. Accordingly, these items should not have factored into the calculation of restitution in this case.

Because the trial court’s order awards restitution for property not included in the charge against Malarkey, we reverse the order and remand for further proceedings. On remand, the State may seek an order of restitution for only that property encompassed within the original charge against Malarkey as reflected by the affidavit supporting the arrest warrant and the discovery materials referenced by the State at the change of plea hearing.

Reversed and remanded.

ALTENBERND and DAVIS, JJ., Concur.


author: ALLEN, J. WOLF, J.,

text:
    Darin Lee WALDO, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1877.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2008.
    Rehearing Denied March 4, 2008.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant challenges convictions entered upon jury verdicts at a trial after the denial of his motion to suppress evidence. Despite the appellant’s assertion that the court should have entered a judgment of acquittal, there was sufficient evidence at trial to submit the case to the jury. But because some of the evidence resulted from an unlawful search and should have been suppressed, the convictions must be reversed.

At a hearing on the motion to suppress it was established that after receiving a tip about criminal activity, sheriffs officers went to the appellant’s home and knocked on the front door. When nobody answered the knock at that door, officers went to the side and back of the house and tried to get the occupants to respond at those locations. During this foray into the side and back yard, the officers observed incriminating evidence in the yard. An affidavit for a search warrant was prepared, with a description of those observations. A search warrant issued, and on a subsequent search of the house officers found additional incriminating evidence.

In denying the motion to suppress, the trial court indicated that the officers had a legitimate and lawful reason to be on the property. However, while there was no violation of the appellant’s privacy rights when the officers first went to the front door where visitors might be expected, the side and backyard areas are more private and are constitutionally protected. See State v. Morsman, 394 So.2d 408 (Fla.1981); Maggard v. State, 736 So.2d 763 (Fla. 2d DCA 1999). As Morsman and Maggard indicate, the officers’ uninvited and warrantless entry into the side and backyard areas was an unlawful search. And because the officers’ observations during the unlawful search may not be used to obtain a warrant for a further search of the property and the house, see Morsman, the evidence resulting from the searches should have been suppressed.

The state argues that the evidence may be received under the good faith doctrine announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). But although a warrant was obtained before the officers entered the house, the officers had already made an unlawful search of the yard outside the house and the warrant was based on the officers’ observations during that unlawful search. The good faith doctrine as approved in Leon contemplates that the law enforcement agents have not acted improperly, and are otherwise entitled to reasonably rely on a judicial determination of probable cause in the issuance of a warrant. The notion that good faith cannot be claimed in connection with law enforcement error or negligence is confirmed in cases such as State v. White, 660 So.2d 664 (Fla.1995), and Shadier v. State, 761 So.2d 279 (Fla.2000). In the present case there is no basis for an assertion of good faith, in light of the officers’ initial misconduct.

The appellant’s convictions are reversed, and the case is remanded.

POLSTON, J., concurs, and WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

If all of the trial judge’s factual findings were supported by the record, I would affirm. Several critical determinations concerning the character of the area, as well as normal customs of people in this community, are not supported by evidence on the record. These determinations would be pertinent to appellant’s reasonable expectation of privacy as well as the reasonableness of the officers’ actions. I, therefore, agree with the majority’s conclusion to reverse the denial of the motion to. suppress.


author: PER CURIAM.

text:
    Brian D. KABLITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1034.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Rehearing Denied March 25, 2008.
    Steven H. Malone of Steven H. Malone, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Brian D. Kablitz appeals his judgment of convictions and sentences for aggravated battery on a person 65 years of age or older and robbery. We affirm on all issues raised by appellant, except as to his claim that the sentencing scoresheet erroneously included a crime for which he was acquitted. The record reflects that appellant filed a motion to correct this sentencing error during the pendency of this appeal. However, because the record contains no response from the state or order by the trial court on appellant’s motion, we reverse and remand for further proceedings limited to this claim of a scoresheet error.

Affirmed in part; Reversed in part and Remanded.

SHAHOOD, C.J., FARMER and TAYLOR, JJ., concur.


author: PER CURIAM. GREEN, J.

text:
    R.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1040.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

The question presented by this appeal is whether there was a reasonable suspicion to justify a school search. We conclude that there was, and affirm the order now before us.

R.B. is a high school student. Two or three weeks prior to the charged incident, a teacher reported that R.B. was under the influence. The school security officer calmed R.B. down and the parents were called to come to the school. They agreed with the assessment that he was under the influence of something, which they believed to be drugs. The mother stated that she believed drugs were being sold at the school and asked the security officer to keep an eye on R.B.

On the day of the charged incident, the school security officer was monitoring the school’s security cameras. He noticed R.B. sitting next to another student. The officer saw R.B. with his hands cupped, showing the other student something. R.B. then put the object in his pocket. The officer could not see what the object was.

Given the security officer’s previous encounter with R.B. being under the influence of drugs at the school, the officer suspected that R.B. was in possession of drugs. The officer testified, “[I]f you don’t have anything oh you, you show it open handed; why show it ... cupped?”

R.B. testified. He stated that he had a cigarette lighter in his hands which he showed the other student. He conceded that this was not how he normally would show a lighter to someone, but stated, “I was trying to hide it, so the security guards — they wouldn’t suspect anything.”

The security officer directed R.B. and the other student to come to the school office. He directed the students to empty their pockets. R.B. removed a lighter and a pen. The security officer then reached into R.B.’s pocket and removed a small bag of marijuana. The security officer called the police.

The State charged R.B. with possession of cannabis in violation of paragraph 893.13(6)(b), Florida Statutes (2006), a first-degree misdemeanor. R.B. filed a motion to suppress the seized marijuana. The trial court heard the testimony outlined above, found that there was a reasonable suspicion to justify a school search, and denied the motion to suppress evidence.

R.B. then entered a plea of no contest, reserving the right to appeal the denial of the motion to suppress evidence. The trial court withheld adjudication of delinquency and placed R.B. on probation. This appeal followed.

As a preliminary matter, school officials have the “plenary authority, with or without justification, to summon a student to [the] office.” D.G. v. State, 961 So.2d 1063, 1064 (Fla. 3d DCA 2007) (citation omitted). R.B. does not challenge the fact that the security officer required him to go to the school office.

In the school setting, the standard to be satisfied in order to conduct a war-rantless search is reasonable or founded suspicion, rather than the ordinary requirement of probable cause. Id. (citing New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Baptiste v. State, 959 So.2d 815 (Fla. 3d DCA 2007); C.G. v. State, 941 So.2d 503 (Fla. 3d DCA 2006).

The question of reasonable or founded suspicion is viewed from the standpoint of a reasonable officer with this officer’s training and experience. See Cross v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983). He may take into account the facts known to him. See State v. M.A.D., 721 So.2d 412, 413 (Fla. 3d DCA 1998); State v. Leyva, 599 So.2d 691, 693 (Fla. 3d DCA 1992).

In this case, the security officer had personal knowledge of R.B. being at school under the influence of illegal drugs within the past two or three weeks. The officer not only observed this but had those observations confirmed by the parents, who came to the school and expressed concern that R.B. was obtaining illegal drugs at the school. The officer observed R.B. showed something to another student concealed inside his cupped hands and then returned the object to his pocket in what the judge described as a furtive gesture. We agree with the trial judge that, under the circumstances, there was a reasonable suspicion which justified the search.

R.B. argues, alternatively, that even if there was a reasonable suspicion which allowed the security officer to direct R.B. to empty his pockets, in this case the contraband was not discovered until the security officer placed his hand inside R.B.’s pocket. R.B. argues that turning one’s pockets inside out is one thing; allowing the officer to reach inside the pocket is more intrusive and requires more than a reasonable suspicion.

We conclude that this argument already has been rejected in D.G. and other cases. As already stated, the standard for a war-rantless school search is reasonable or founded suspicion. D.G., 961 So.2d at 1064, and cases cited therein. Further, in D.G. we held that an order that the student empty his pockets is “undoubtedly equivalent to a Fourth Amendment search.... ” Id. (citations omitted). For Fourth Amendment purposes there is no constitutional difference between an order that the student empty his pockets, and the security officer’s conducting a search by reaching inside the student’s pockets.

For the stated reasons, the order now before us is affirmed.

COPE and SALTER, JJ., concur.

GREEN, J.

(specially concurring).

As I see it, the record before us supports the trial court’s implicit factual determination that the school security officer had R.B.’s consent to conduct the search at issue. Therefore, it is unnecessary for us to address the issue of whether this war-rantless search was supported by reasonable suspicion.

During the suppression hearing, the school security officer and R.B. gave conflicting accounts on the consent issue. According to the school security officer, he elicited and received R.B.’s consent prior to the search but would have awaited police arrival if R.B. had refused consent for the search. R.B., on the other hand, testified that he never consented to the search.

Upon the conclusion of the suppression hearing, the trial court denied the motion “based upon the testimony in the motion to suppress.” Thus, the court did not expressly specify in its ruling whether the denial of the motion was grounded upon a finding of reasonable suspicion for the search or its resolution of the disputed consent issue. Nevertheless, since the trial court, as the fact finder, was free to believe from the testimony presented that the security officer in fact had R.B.’s consent for the search, I believe that the order under review must be affirmed and our analysis on appeal should end at this point.

      . Although not pertinent to this appeal, the mother provided the security officer with the name of someone who may be dealing in drugs at the school.

      . The other student had no contraband in his possession and was released.

      .The security officer testified that R.B. and the other student gave consent to search. R.B. testified that the security officer conducted the search without obtaining consent. The trial court did not issue a ruling on whether R.B. had consented to the search, ruling instead that the search was valid because there was a reasonable suspicion.

      . The security officer’s testimony in this regard was as follows:
      Q. Prior to the search, did you ask him [R.B.] if you could search his (indiscernible words)?
      A. I always — search—I ask every — every kid if I’m allowed to.
      Q. And what did ...
      A. And if they say no, then I wait for the officer to come in and let him know that— what I saw.
      Q. Okay.
      A. And then he deals with it from there.
      Q. What happened in this case?
      A. They both said yeah.

      Q. And if he said, no, I don’t want you to search me, you would have gotten the police officer?
      A. I was going to get the officer. That’s correct.

      . R.B. testified as follows:
      Q. Okay. What happened when you got to the security office with all the cameras?
      A. The security guard, he asked me if I have anything that I shouldn't have. And I said no, I don’t have anything. So he said, take everything out of your pockets. So that’s when I took out a lighter and a pencil, and that was it. And then — and then he just stuck his hand in my pocket and he pulled out a little bag.
      Q. At any point did the — did Mr. Gonzalez [security officer] ask you whether or not you wanted to be searched?
      A. No, he never asked me.
      Q. Who else was in the room when this happened?
      A. Just me and him.


author: HAZOURI, J. FARMER, J.,

text:
    DEPARTMENT OF REVENUE o/b/o Tangela JACKSON and Andrea Breedlove, Appellant, v. Elton NESBITT, III, Appellee.
    Nos. 4D06-4322, 4D06-4323, 4D07-574.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Rehearing Denied March 25, 2008.

      Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellant.
    Eugene S. Garrett, Boca Raton, for ap-pellee.
   HAZOURI, J.

This appeal involves two cases filed by appellant, the Department of Revenue (“DOR”), on behalf of two mothers, Tánge-la Jackson and Andrea Breedlove, against appellee, Elton Nesbitt, III (“Nesbitt”), to establish paternity and child support. DOR appeals the trial court’s orders on Nesbitt’s motion to determine child support arrearages, payment thereon, and to set aside writ and passport release, and the order on Nesbitt’s motion to enforce the previous order. This court consolidated the cases for the purposes of appeal. We reverse.

At some point, the trial court determined that Nesbitt was delinquent in all of his child support payments. Subsequently, DOR notified the federal government to restrict Nesbitt’s passport pursuant to state and federal law. Thereafter, Nesbitt filed motions to determine arrearages, payment thereon, and to set aside writs of bodily attachment. At the hearings on these motions, Nesbitt requested that his passport restrictions be released to allow him to accept a job in France as a basketball player pursuant to a contract for a fixed term. DOR argued that the circuit court did not have jurisdiction to order Nesbitt’s requested relief because the funds owed exceeded $5,000, citing section 409.2564, Florida Statutes (2006), section 51.70 of title 22 of the Code of Federal Regulations, and section 652 of title 42 of the United States Code. The trial court granted Nesbitt’s motions, established the amount of his arrearages, ordered DOR to lift and release the passport restrictions, and ordered Nesbitt to maintain a checking account in the United States and forward a specific amount monthly to the State of Florida Disbursement Unit.

DOR argues that the trial court did not have the authority to lift federally mandated restrictions on Nesbitt’s passport because the record reflects that Nesbitt’s combined delinquency in the consolidated appeals is $37,313, which exceeded the $2,500 threshold established by federal law. We agree.

This court reviews questions of statutory interpretation de novo. Connell v. City of Plantation, 901 So.2d 317, 319 (Fla. 4th DCA 2005). Federal law governs passport control and provides the framework for our discussion. See Varela-Fernandez v. Burgos, 81 F.Supp.2d 297, 299-300 (D.P.R.1999). Sections 652(k)(1) & (2), title 42 of the United States Code, provide:

(1) If the Secretary [of Health and Human Services] receives a certification by a State agency in accordance with the requirements of section 654(31) of this title that an individual owes arrearages of child support in an amount exceeding $2,500, the Secretary shall transmit such certification to the Secretary of State for action (with respect to denial, revocation, or limitation of passports) pursuant to paragraph (2).
(2) The Secretary of State shall, upon certification by the Secretary [of Health and Human Services] transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.

Further, section 51.70(a)(8) of title 22 of the Code of Federal Regulations states:

Denial of passports, (a) A passport, except for direct return to the United States, shall not be issued in any case in which the Secretary of State determines or is informed by competent authority that:
(8) The applicant has been certified by the Secretary of Health and Human Services as notified by a State agency under 42 U.S.C. 652(k) to be in arrears of child support in an amount exceeding $2,500.00.

Section 51.72(a) of title 22 of the Code of Federal Regulations provides:

Revocation or restriction of passports. A passport may be revoked, restricted, or limited where:
(a) The national would not be entitled to issuance of a new passport under section 51.70 or 51.71; or ...

We find In re James K. Walker, 276 B.R. 568 (Bkrtcy.W.D.Tex.2002), to be instructive here. There, a debtor sought judicial intervention to remove a hold placed on his passport by the Secretary of State of the United States, pursuant to notification and request by the Texas Attorney General relating to the debtor’s failure to pay his child support obligations. The court denied the motion, concluding that if the law is constitutional, “principles of justiciability prevent this court from interfering with the Secretary of State’s exercise of executive authority in placing the hold on the debtor’s passport-or with the Secretary of Health and Human Services’ exercise of authority in certifying the debtor’s child support obligations to the Secretary of State in order to initiate that hold.” Id. at 571.

Similarly, in the instant case, the trial court had no authority to order DOR to lift and release the restrictions on Nes-bitt’s passport. Section 409.2564(10), Florida Statutes (2006), gives DOR the authority to certify to the Secretary of Health and Human Services that an individual has child support arrearages and may be eligible for passport restrictions:

(10) For the purposes of denial, revocation, or limitation of an individual’s United States passport, consistent with 42 U.S.C. s. 652(k)(1), the Title IV-D agency shall have procedures to certify to the Secretary of the United States Department of Health and Human Services, in the format and accompanied by such supporting documentation as the secretary may require, a determination that an individual owes ar-rearages of support in an amount exceeding $5,000. Said procedures shall provide that the individual be given notice of the determination and of the consequence thereof and that the individual shall be given an opportunity to contest the accuracy of the determination.

§ 409.2564(10), Fla. Stat. (2006). Nesbitt does not contest the DOR’s determination that his child support arrearages exceeded $5,000. Nesbitt does not assert, and the trial court did not conclude, that section 409.2564(10) is unconstitutional. Moreover, “[a] trial court may not interfere with and does not have the authority to enter into the decision-making process which is delegated to a state agency....” Agency for Persons with Disabilities v. J.M., 924 So.2d 1, 2 (Fla. 3d DCA 2005) (citing Fla. Senate v. Fla. Pub. Employees Council 79, AFSCME, 784 So.2d 404 (Fla.2001); Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401 (Fla. 4th DCA 1999)).

Nesbitt responds to DOR’s argument by citing a webpage from the United States Department of State, Department of Consular Affairs, which states:

Section 51.70(a)(8) of Title 22 of the Code of Federal Regulations states, in part, that if you are certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, you are ineligible to receive a U.S. passport. If this applies to you, Passport Services strongly recommends that you contact the appropriate State child support enforcement agency to make payment arrangements before applying for a passport. This is because:
• The State agency must certify to the U.S. Department of Health and Human Services (HHS) that acceptable payment arrangements have been made.
• Then, HHS must notify Passport Services by the removal of your name from the electronic list HHS gives to Passport Services. (Passport Services cannot issue a passport until your name has been deleted by HHS).

http://travel.state.gov/passport/ppi/family/ family_863.html (emphasis in original). Nesbitt relies on this language to argue that if an acceptable child support arrangement is in place, a denied or suspended passport may be reinstated. We reject this argument. The website language indicates that the appropriate state agency, in this case DOR, must deem the payment arrangements acceptable, and then certify that determination to the Department of Health and Human Services. Because DOR has not deemed the arrangements created by the trial court to be acceptable, this language is inapposite.

Thus, because we conclude that the trial court lacked the authority to order DOR to take action to remove the passport restrictions, we reverse and remand for further action consistent with this opinion.

Reversed and Remanded.

KLEIN, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

In these cases, the trial court included the following provision in a final order determining the amount of child support due: “Any restrictions on [payor’s] passport shall be lifted and released regarding child support.” On appeal DOR challenges the jurisdiction of the court to award such relief.

If the issue were truly whether a state court had the authority to order a federal agency to perform a specific act within that agency’s jurisdiction, I would agree that this Florida court has no such authority. But I think something far less intrusive is afoot here.

Under federal statutes, the United States Secretary of Health and Human Services (HHS) and the Secretary of State (SOS) are actually responding to a process set in motion by DOR, a Florida agency. Under section 409.2564(10), Florida Statutes (2006), the Florida DOR is required to have procedures for notifying HHS of person’s failure to pay child support after being ordered to do so and to certify to HHS the fact that the payor owes arrear-ages exceeding $2,500. Then HHS in turn certifies the same fact to SOS, who is empowered by federal law to revoke, restrict or limit a passport previously issued to the payor.

Here, the payor testified that his arrear-ages accrued whilst he was in college and unable to pay anything. He testified that he is now able to secure a position playing professional basketball with a team in Europe — from which earnings he will be able at last to support his child — and requires a valid passport for that purpose. The trial judge obviously credited this testimony because the trial judge included the above quoted provision in the final order. His order must be understood as finding it in the best interests of the child to ease any restrictions on his passport — at least to the extent of allowing him to play basketball in Europe to pay the required support and eliminate the arrearages.

I do agree that the precise wording of the order needlessly irritates comity between agencies of different sovereigns. I would affirm the purpose and intent of the provision but require only that it be recast. In my opinion, it would be permissible for the trial judge to order the Florida DOR to decertify its previous certification to HHS, instead requiring DOR to certify to the federal agency that even though the payor is still in arrears, he has secured employment in Europe enabling him to comply with his duty of support and that his passport should simply be restricted to allow the travel to Europe for that limited purpose only, so long as he complies with a payment schedule fixed by the Florida court.


text:
    Doreen CARONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-835.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Rehearing Denied March 25, 2008.
    Doreen Carone, Riverview, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Doreen Carone appeals the summary denial of her rule 3.850 motion. One of the claims raised in her motion was that trial counsel provided ineffective assistance by failing to object to a special condition of probation that was unrelated to her crime.

To impose a special condition of probation, there must be a reasonable nexus between the condition and the crime committed. Biller v. State, 618 So.2d 734 (Fla.1993). The supreme court agreed that “a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” Biller, 618 So.2d at 734-35 (quoting Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979)). In Biller, the supreme court found the special condition that the defendant not use or possess alcohol was not reasonably related to his convictions for carrying a concealed firearm and carrying a concealed weapon. Consumption of alcohol by adults is legal, and nothing in the record suggested that alcohol was related to his offenses, that he had a propensity to use alcohol, or that his judgment was affected by its use. As a result, the court concluded this condition could not legally be imposed.

In this case, Carone entered a plea to first-degree grand theft, and nothing in the record refutes her claim of ineffective assistance or shows that her offense was related to the use of alcohol. Because the trial court had no authority to impose this condition, and because the sentence was open to the court and the state will not lose the benefit of its plea bargain, we reverse and remand with directions to strike this special condition. See Epperson, v. State, 955 So.2d 642 (Fla. 4th DCA 2007).

We affirm the summary denial of the remaining claims.

STONE, POLEN and DAMOORGIAN, JJ., concur.


author: FARMER, J.

text:
    L.S., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1602.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The child was charged with delinquency for vandalizing a car. At the final hearing on the petition, the State produced witnesses establishing that the child threw rocks repeatedly at an automobile and caused significant damage to its exterior. The owner of the vehicle testified that the amount of the damage was $6,000. After closing argument on the delinquency petition, the trial judge proceeded to announce his decision on the merits, explaining that the evidence was sufficient to show the vandalism. We affirm that decision without further discussion.

In imposing the penalty the trial judge also announced that the child was responsible for restitution in the amount testified by the owner. The judge found that the child currently had no ability to pay anything toward restitution but ruled that his liability for the $6,000 would continue into his majority. He appeals, arguing that it was a denial of due process not to afford him a formal hearing on the amount of restitution. We agree.

While the testimony of the owner was sufficient to prove guilt, it was not by itself sufficient to fix the amount of restitution at that point. Nothing in the record up to that point placed the child on notice that the amount of restitution would be determined solely on the basis of the evidence adduced at the hearing of the charge of delinquency. Without such notice, the child had no way of knowing that he would have to offer evidence as to the amount of any potential restitution at the hearing to determine whether he was even guilty of the charge. Imposition of a fixed amount of restitution without notice or hearing is error. A.B. v. State, 910 So.2d 415, 417 (Fla. 4th DCA 2005); Filmore v. State, 656 So.2d 535, 535 (Fla. 4th DCA 1995).

Adjudication of delinquency affirmed; restitution order reversed.

WARNER and GROSS, JJ., concur.


author: KELLY, Judge.

text:
    Norman DUFRESNE, Appellant, v. DAIMLERCHRYSLER CORP., Appellee.
    No. 2D05-5118.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.

      Theodore F. Greene, III, of Law Offices of Theodore F. Greene, LC, Orlando, and Alex D. Weisberg of Krohn & Moss, Ltd., Sunrise, for Appellant.
    John J. Glenn, Benjamin C. Moore, and E. Holland Brabham of AndersonGlenn, LLC, Ponte Vedra Beach, for Appellee.
   KELLY, Judge.

Norman Dufresne appeals from the trial court’s order denying him attorney’s fees and costs under the federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (MMWA). The trial court found that because Dufresne settled pursuant to an offer of judgment he could not be considered a “prevailing party” and was therefore precluded from seeking statutorily authorized attorney’s fees. We disagree and therefore reverse.

Dufresne sued DaimlerChrysler Corporation under the MMWA seeking damages for breach of his new car warranty. Daim-lerChrysler served Dufresne with a proposal for settlement under Florida Rule of Civil Procedure 1.442 and Florida’s offer of judgment statute, section 768.79, Florida Statutes (2004). The offer was exclusive of all interest, costs, and attorney’s fees. Dufresne accepted the proposal of settlement and filed a notice of acceptance with the trial court. He then sought attorney’s fees and costs under the MMWA. The MMWA provides for an award of attorney’s fees to a consumer who “finally prevails” in any action brought pursuant to the Act. 15 U.S.C. § 2310(d)(2).

Citing Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), DaimlerChrysler opposed the motion for fees arguing that Dufresne did not “finally prevail” because he accepted the settlement offer. It contended that to be considered a prevailing party under a federal fee-shifting statute such as the one contained in the MMWA, a party must either obtain a judgment on the merits or a court-ordered consent decree and that because Dufresne obtained neither, he could not claim entitlement to fees. The trial court agreed and denied Dufresne’s request for fees. Dufresne appeals from that order.

The narrow question presented here is whether Dufresne is precluded from being considered a prevailing party entitled to seek attorney’s fees under the MMWA. In Buckhannon, the Supreme Court explained that to be considered a prevailing party under a federal fee-shifting statute, there must be a “judicially sanctioned change in the legal relationship of the parties,” such as when a judgment on the merits has been entered or when the court has entered a consent decree. Id. at 605, 121 S.Ct. 1835. While either a judgment on the merits or a consent decree is sufficient to make a plaintiff a prevailing party, they are not, as Daimler-Chrysler contends, the only bases upon which a plaintiff can be considered a prevailing party. Am. Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir.2002). Where the parties have entered into a settlement and the court has explicitly retained jurisdiction to enforce the terms of the settlement, the “explicit retention of jurisdiction over the terms of the settlement [is] the ‘functional equivalent of an entry of a consent decree.’ ” Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003) (quoting Chmielarz, 289 F.3d at 1320).

Although the trial court here did not enter an order explicitly retaining jurisdiction, a settlement agreement entered into pursuant to an offer of judgment is nevertheless judicially enforceable because the offer of judgment statute states that “[u]pon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.” See § 768.79(4). We therefore conclude that the settlement here is the functional equivalent of a consent decree and that Du-fresne is not precluded from claiming entitlement to attorney’s fees under the MMWA simply because he accepted the proposal for settlement. We note, however, that in so holding we are not deciding Dufresne’s ultimate entitlement to an award of fees. We are simply holding that he is not precluded from being considered a prevailing party because he accepted the proposal for settlement. Whether a prevailing party should be awarded fees is left to the discretion of the trial court. See Hamilton v. Ford Motor Co., 936 So.2d 1203, 1207 (Fla. 4th DCA 2006) (noting that a consumer who prevails in any action brought under the Magnuson-Moss Act may be entitled to attorney’s fees and costs determined by the court to have been reasonably incurred).

Accordingly, we reverse and remand for further proceedings for the trial court to determine whether to award fees to Du-fresne, and if it determines such an award is appropriate, the amount of fees to which Dufresne is entitled.

Reversed and remanded for proceedings consistent with this opinion.

DAVIS and SILBERMAN, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    Dennis Wilifrid PLOURDE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2487.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Dennis Plourde challenges the order and sentence entered following the revocation of his probation. We affirm but write to address a sentencing issue.

In January 2005, in trial court case number 01-2126, Plourde pleaded guilty to boating under the influence/manslaughter, and the trial court sentenced him to fifteen years’ imprisonment suspended in favor of fifteen years’ probation. In July 2005, Plourde entered a no contest plea to a new charge and also admitted to violating his probation. On the new charge, the trial court sentenced Plourde to five years’ imprisonment suspended in favor of five years’ probation. The court ordered that the sentence would run concurrent with Plourde’s sentence in case number 01-2126.

As to the violation of probation in case number 01-2126, Plourde admitted the violation in exchange for reimposition of his original sentence and the imposition of additional probationary conditions. The trial court orally accepted the admission and modified Plourde’s probation, as agreed. However, the written sentence rendered on July 29, 2005, incorrectly reflects a sentence of five years’ imprisonment suspended in favor of five years’ probation rather than reimposition of the original sentence of fifteen years’ imprisonment suspended in favor of fifteen years’ probation.

The State brought the scrivener’s error to the trial court’s attention at a hearing held on September 20, 2005. Plourde’s counsel did not dispute that the written sentence rendered on July 29, 2005, was the result of a scrivener’s error, and the trial court agreed that the written sentence should be corrected. Unfortunately, the “corrected” sentencing order rendered on September 30, 2005, again reflects a sentence of five years’ imprisonment suspended in favor of five years’ probation.

In February 2006, Plourde’s probation officer filed an affidavit alleging that Plourde violated his probation. Following an evidentiary hearing, the trial court revoked Plourde’s probation. Prior to imposing sentence, the court reviewed Plourde’s sentencing history. The court found that Plourde was still serving his original sentence (with the additional probationary conditions) and that the written documents reflecting a sentence of five years’ imprisonment suspended in favor of five years’ probation were erroneous. The court then sentenced Plourde to seven years’ imprisonment followed by three years’ probation.

As noted previously, our review of the record revealed an issue of potential merit concerning Plourde’s sentence. If, at the time of the revocation proceedings leading to this appeal, Plourde had been serving a true split sentence of five years’ imprisonment suspended in favor of five years’ probation, the maximum sentence the trial court could have imposed would have been five years’ imprisonment. See Summers v. State, 817 So.2d 950, 950 (Fla. 2d DCA 2002) (noting that when a true split sentence is imposed, upon revocation of the probationary term a trial court may sentence a defendant to the entire original prison term with credit for time served or to the suspended term with no credit for time served); see also Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007) (observing that trial judges are encouraged not to impose the net remaining time on the suspended portion of a true split sentence but rather, “‘[i]f a trial court intends to impose the maximum period of imprisonment for a violation of the probationary portion of a true split sentence, it should impose the full original sentence of incarceration with credit for time served’ ” (quoting Crews v. State, 779 So.2d 492, 493 (Fla. 2d DCA 2000))). Thus, if Plourde’s actual sentence in case number 01-2126 was five years’ imprisonment suspended in favor of five years’ probation, the new sentence of seven years’ imprisonment followed by three years’ probation would be improper.

The trial court correctly recognized that prior to the current probation revocation proceeding Plourde had been serving a sentence of fifteen years’ imprisonment suspended in favor of fifteen years’ probation. This conclusion is supported by the well-established principle that “the written sentence is usually just a record of the actual sentence required to be pronounced in open court. Consequently, when the written order conflicts with the oral pronouncement, the oral pronouncement prevails.” Justice v. State, 674 So.2d 123, 125 (Fla.1996) (citation omitted); see also A.S. v. State, 714 So.2d 1038, 1038-39 (Fla. 2d DCA 1998) (recognizing that the oral pronouncement controls when there is a difference between the oral pronouncement and the written sentence). Further, the errors in the written documents do not control over the trial court’s oral pronouncements. As the supreme court reiterated in Williams v. State, 957 So.2d 600, 603 (Fla.2007), the oral pronouncement of sentence “constitutes the legal sentence imposed.”

The fact that the July and September 2005 sentencing documents incorrectly state a lesser sentence does not alter that Plourde was actually serving a suspended sentence of fifteen years’ imprisonment prior to the current revocation proceedings. Therefore, the seven years’ incarceration now ordered by the trial court is proper under Summers. Accordingly, we affirm the revocation of probation and Plourde’s sentence.

Affirmed.

STRINGER and WALLACE, JJ., Concur.

      . Plourde’s appellate counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we determined that an issue of potential merit existed as to Plourde's sentence, we ordered supplemental briefing pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

      . The conviction and sentence for the new charge is not before us in this appeal.

      . The record contains a written judgment and sentence rendered on May 15, 2006, that re-fleets a sentence of seven years' imprisonment suspended in favor of three years’ probation. However, on June 1, 2006, the trial court rendered what appears to be a corrected judgment and sentence reflecting the sentence that the court had orally pronounced: seven years’ imprisonment followed by three years’ probation.


author: ALTENBERND, Judge.

text:
    Walter J. KASM, Jr., Appellant, v. Patricia LYNNEL, f/k/a Patricia Kasm, Appellee.
    No. 2D06-3643.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.

      Mark A. Neumaier, Tampa, for Appellant.
    Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Walter J. Kasm, Jr. (the Husband), appeals a circuit court order awarding temporary attorneys’ fees in a dissolution of marriage proceeding. It is the second such nonfinal order that he has appealed. See Fla. R.App. P. 9.130(a)(3)(C)(iii). In Kasm v. Kasm, 933 So.2d 48, 49 n. 1 (Fla. 2d DCA 2006) (Kasm I), this court reluctantly reversed a prior circuit court order requiring the Husband to pay $10,000 of temporary attorneys’ fees to the Wife in the pending dissolution action. With equal or perhaps greater reluctance, we reverse this order because it awarded “temporary” attorneys’ fees for the first appeal after that appeal had been concluded and without any order from this court authorizing a “final” award of appellate attorneys’ fees.

Although Florida Rule of Appellate Procedure 9.600(c)(1) provided the circuit court jurisdiction to consider “temporary attorneys’ fees and costs reasonably necessary to prosecute or defend” the appeal, the trial court did not enter the order now on appeal until after the prior appeal was concluded. At that time, it was clear the Wife had not preserved her right to seek appellate fees for the completed appeal by filing a motion with this court for fees pursuant to rule 9.400(b). Although rule 9.600(c)(1) is undoubtedly an invaluable tool in a family law case to ensure that a needy spouse is not disadvantaged while litigation proceeds, this case highlights a procedural difficulty that can arise when a party seeks temporary attorneys’ fees for an interlocutory appeal but the circuit court does not have adequate time to address the request during the relatively short duration of that appeal. Under those circumstances, the appellate practitioner would be wise to not only seek temporary fees with the circuit court under rule 9.600(c)(1), but also to preserve the right to appellate fees incurred through the conclusion of the appeal by filing a motion with the appellate court pursuant to rule 9.400(b).

I.

In Kasm, I, we reversed the circuit court’s award of $10,000 in temporary attorneys’ fees to the Wife, entered pursuant to section 61.16(1), Florida Statutes (2005). Those fees were requested based upon the fees the Wife expected to incur before the circuit court in the pending dissolution of marriage action. Although the evidence supported such an award, the court had not made the necessary findings on the amount of fees the Wife was reasonably expected to incur. Id. at 50. It is noteworthy that the order on appeal in this case is not an order in response to our mandate in Kasm I. From our limited record, it appears that the circuit court has not yet addressed the issues remaining on remand from the first appeal.

The order that the Husband now seeks this court to review is an award of additional temporary attorneys’ fees to the Wife in the amount of $20,000. A comprehensive rendition of the tortured history by which this order was entered is unnecessary to resolve the issue now presented. Simply speaking, while the Husband’s appeal of the first award of $10,000 in temporary attorneys’ fees was pending, the Wife filed a new motion for temporary attorneys’ fees with the circuit court. She sought both fees that she had incurred or expected to incur in the then-pending appeal, and additional fees that had been incurred or were expected to be incurred in the ongoing dissolution action. As authority for these awards, the Wife cited section 61.16(1) and rule 9.400(b). The Wife, however, never filed a motion for appellate attorneys’ fees in the appellate proceeding pending in this court pursuant to rule 9.400(b). This is true, even though the Husband objected to the temporary appellate fees on that basis at a time when the Wife may have been able to remedy the problem.

By the time the Wife’s motion was first heard in the circuit court, all of the briefs had been filed in Kasm I and the parties were awaiting a decision. Squabbles over procedure and other matters caused a hearing on temporary attorneys’ fees to become three hearings. Before the last hearing was held, this court had already issued its opinion in Kasm I reversing the first award of attorneys’ fees.

At each of the three hearings before the circuit court, the Husband’s counsel objected to any award of temporary appellate attorneys’ fees by the circuit court in the absence of the Wife’s timely request for appellate attorneys’ fees in this court pursuant to rule 9.400(b). The Wife countered that she was not required to seek temporary appellate attorneys’ fees in the appellate court but could proceed solely in the circuit court under section 61.16(1). The circuit court ultimately agreed with the Wife’s position.

The order now on appeal concludes that the Wife reasonably incurred $11,950 in appellate attorneys’ fees in the first appeal and has incurred or reasonably expects to incur an additional $15,799.03 in temporary attorneys’ fees and costs before the circuit court, for a total of $27,749.03. The court gave the Husband credit for $5,049.50, which was apparently the balance remaining from the $10,000 in fees originally ordered and paid by the Husband, although this calculation is not entirely clear from our record. The court then ordered the Husband to pay an additional $20,000 in temporary fees to meet the $22,699.53 that the Wife continued to need. We reverse this order to the extent that it awards appellate attorneys’ fees of $11,950. Because numerous fee issues remain to be resolved on remand, however, the trial court may revisit in its entirety the fees incurred to date and reasonably expected to be incurred in the future before the trial court, except for fees incurred in these appeals.

II.

Prior to October 1,1994, any request for appellate attorneys’ fees in a domestic relations case, whether for temporary fees to prosecute or defend the appeal or for “final” fees once the appeal was concluded, had to be directed to the appellate court. See Boyer v. Boyer, 588 So.2d 615 (Fla. 5th DCA 1991), overruled by statute as recognized in Swartz v. Swartz, 691 So.2d 2 (Fla. 3d DCA 1996). In 1994, however, the legislature amended section 61.16(1), to provide: “The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level.” Ch. 94-169, § 1, at 1039, Laws of Fla.

In turn, the Florida Supreme Court amended rule 9.600(c) to provide: “In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding ... temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.” Amendments to Florida Rules of Appellate Procedure 9.140 and 9.600, 657 So.2d 897, 898 (Fla.1995). The text of this rule has been modified slightly but remains substantively the same in rule 9.600(c)(1).

The rule and the statute both expressly refer to “temporary fees” that are “reasonably necessary to prosecute or defend” an appeal. § 61.16(1); Fla. R.App. P. 9.600(c)(1). The rule adds that these awards must be “necessary to protect the welfare and rights of any party pending appeal.” Fla. R.App. P. 9.600(c) (emphasis added). Importantly, although the trial court has continuing jurisdiction to consider these claims pending appeal, the appellate court retains a supervisory role because it reviews any such order by motion filed in the pending appeal. See Fla. R.App. P. 9.600(c)(3).

In this ease, the Wife’s request for temporary appellate attorneys’ fees was not scheduled for hearing until after the work in defending the appeal was completed. Thus, by the time of the first hearing, the fee award was no longer “reasonably necessary” for that work on a temporary basis. See § 61.16(1); Fla. R.App. P. 9.600(c)(1). Moreover, the trial court did not award “temporary” appellate fees until after the appeal was concluded and mandate had issued. Thus, the award was no longer necessary to protect the Wife’s welfare “pending appeal.” With the appeal concluded and mandate issued, there was no pending appeal in which the Husband could seek review of that order.

We conclude that once an opinion and mandate issued in the appeal, the Wife could not rely on section 61.16(1) or rule 9.600(c)(1) as authorization for the circuit court to- enter an award of temporary appellate attorneys’ fees. Both the statute and the rule are designed to maintain jurisdiction in the circuit court during the existence of an appeal. Once the appeal is no longer pending, neither the statute nor the rule gives any power to the circuit court to award temporary appellate attorneys’ fees. Rather, the entitlement to appellate attorneys’ fees after the conclusion of the appeal must have been established by rule 9.400(b).

It is worth repeating our observation in Ghay v. Ghay, 954 So.2d 1186 (Fla. 2d DCA 2007):

[T]emporary support orders are, obviously, temporary. They do not create vested rights, and they can be' modified or vacated at any time by the circuit court while the litigation proceeds. See § 61.14(11), Fla. Stat. (2005). If further discovery reveals that a temporary support order is inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.

Id. at 1190 (footnote omitted).

The award of temporary fees permitted by section 61.16(1) and rule 9.600(c) permits the circuit court a significant degree of latitude in setting an amount of temporary attorneys’ fees in a dissolution to ensure that each spouse will have “a similar ability to obtain competent legal counsel,” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). That latitude allows the court to adequately’protect the interests of a needy spouse during the litigation, while permitting a final review of the award at the end of the litigation after a full and fair hearing to ensure that the award was equitable given the evolution of the proceedings. For example, the circuit court might anticipate that an appeal of a nonfinal order would require substantially more time and effort than it ultimately consumes. A circuit court might thus enter an extensive award of temporary appellate fees only to have the parties resolve the issue amicably or to have the district court dismiss the appeal for lack of jurisdiction. Such estimating errors can normally be corrected or adjusted by the circuit court when it ultimately resolves all issues in the final judgment of dissolution.

An order awarding temporary attorneys’ fees for work in the circuit court, in the absence of an amicable settlement by the parties, is generally followed by a final determination of fees at the end of the litigation, in which the court conclusively resolves the need and ability to pay, reasonable hourly rate, and number of hours reasonably expended. This results in a final, i.e., permanent award of circuit court attorneys’ fees that properly accounts for earlier temporary payments and adjusts them if necessary. This final order is entered based upon the party’s request in the pleadings for an award of attorneys’ fees.

An award of “final” appellate attorneys’ fees by the circuit court is not authorized merely by a request for attorneys’ fees in the initial petition for dissolution of marriage. In. the event of an appeal, the district court must consider the parties’ entitlement to appellate fees, but may thereafter remand to the circuit court to provide that court the authority to assess the appropriate amount. See Fla. R.App. P. 9.400(b); Rados v. Rodos, 791 So.2d 1130, 1131 (Fla. 2d DCA 2001). If the case is remanded, the circuit court effectively acts as a commissioner of the „ appellate court to resolve the factual issues presented by such a motion. Cf. Phillips v. Fla. Comm’n on Human Relations, 846 So.2d 1221 (Fla. 5th DCA 2003) (providing an example of the appellate court assessing fees without remanding the cause to the lower tribunal). Generally speaking, the circuit court cannot award attorneys’ fees at the conclusion of litigation for services rendered in an earlier appeal without authorization from an appellate court. Foley v. Fleet, 652 So.2d 962, 963 (Fla. 4th DCA 1995).

Because the Wife did not obtain either a timely award of temporary fees in the trial court or file a motion in this court seeking fees in Kasm I, the circuit court’s order cannot be affirmed. Unfortunately, the Wife simply has not preserved or perfected her right to receive any attorneys’ fees for work performed in connection with Kasm I. Likewise, the Wife has not filed a motion pursuant to rule 9.400(b) for attorneys’ fees in this proceeding.

Notably, the Husband has filed a timely motion for appellate attorneys’ fees in this appeal pursuant to section 61.16(1) and rule 9.400(b). Although we are often cautious and remand such matters to the trial court to develop the evidence of need and ability to pay, our record provides more information on this subject than normal. There is nothing to support the Husband’s assertion that the Wife has any ability to pay his attorneys’ fees or that he has a need for these fees. We are not inclined to encourage further litigation between these parties or to be the cause of additional attorneys’ fees in a continuing fight over attorneys’ fees. Accordingly, the Husband’s motion is denied.

III.

Both parties, having now spent over $50,000 in attorneys’ fees, appear no closer to resolving the financial issues remaining from their childless, ten-year marriage. The symptoms of Wrona’s disease appear in the record. In hopes of treating these symptoms before they become a full-blown illness that could devastate this couple financially, we remand with a more detailed mandate than usual.

On remand, the parties should schedule a hearing with sufficient time to address the remaining issues related to temporary attorneys’ fees — -those that may still remain from our mandate in Kasm I and those now existing based on our opinion here. The Wife’s counsel should file an affidavit regarding the fees the Wife has incurred to date, excluding any fees incurred for the initial appeal or this appeal. The Wife may then again estimate the amount of fees she reasonably expects to incur in the continued proceedings. The circuit court has already determined that the hourly rates of $295 and $195 charged by the Wife’s counsel and her associate are reasonable, a finding the Husband has not challenged and we do not disturb. The court should examine the affidavit submitted by counsel, subject to limited examination and cross-examination regarding the details of that affidavit, to determine the reasonable amount of attorneys’ fees incurred and expected to be incurred for the Wife in the circuit court.

Once these calculations are made, the court must address the Wife’s continued need and the Husband’s continued ability to pay. If the parties are unable to proffer evidence that their financial situations have significantly changed for reasons beyond their control — and it appears unlikely that they will be able to proffer such evidence — the court may rely on its past findings in this regard. Insignificant or voluntary changes by the parties should not expand this inquiry into a de novo multi-day hearing on this issue. With respect to the Husband’s ability to pay fees, we note any amount of fees the Husband has already paid should be credited to him and should certainly be immune from the argument that he was somehow unable to pay them. If the Wife seeks substantially more fees than the amount already ordered or paid, however, a further assessment may need to be made of the Husband’s ability to pay that amount.

We emphasize once more that although this court requires somewhat detailed findings supporting temporary awards of attorneys’ fees as it relates to the amount of fees reasonably incurred or expected, an award that makes the proper findings based upon competent, substantial evidence is not easily reversed. See Ghay, 954 So.2d at 1190 (“If the circuit court issues an order that comports with the evidence presented at the temporary hearing and provides a reasonable temporary resolution of the family’s needs in light of their apparent resources, we are unlikely to find any reversible error in the temporary award.”).

Reversed in part, affirmed in part, and remanded with instructions.

SALCINES and KELLY, JJ., Concur.

      . We need not address in this case whether a party who properly obtained temporary appellate attorneys’ fees pursuant to rule 9.600(c) but did not thereafter secure entitlement to "final” appellate fees by filing a motion with the appellate court pursuant to rule 9.400(b) might "lose” the fees in the circuit court's final accounting for fees. As noted above, a practitioner seeking temporary appellate fees might be wise to avoid this issue by not only seeking the award by motion directed to the circuit court as permitted under rule 9.600(c) but also by securing entitlement to “final” appellate fees by filing a motion with the appellate court pursuant to rule 9.400(b).

      . Wrona v. Wrona, 592 So.2d 694, 696-97 (Fla. 2d DCA 1991); see also Bogos v. Bogos, 821 So.2d 383, 384 n. 1 (Fla. 2d DCA 2002).


author: DAMOORGIAN, J.

text:
    Edgar WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4051.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Edgar Wilson (“Wilson”) appeals his convictions and sentence for one count of aggravated battery with a deadly weapon or causing great bodily harm and one count of misdemeanor battery. On appeal, Wilson asserts that the trial court fundamentally erred by giving a misleading self-defense jury instruction. We reverse because the misleading instruction negated Wilson’s only defense. On remand, the correct instruction should make it clear that self-defense could apply to each victim irrespective of the other. We affirm in all other respects.

Wilson was charged with aggravated battery with a deadly weapon on two separate victims; Humberto Medina and Jorge Perez-Orozco. Wilson’s defense was that his use of force was justified. The trial court first read the instructions as to each count separately. However, the trial court read one self-defense instruction for both counts. The self-defense instruction read:

Unless the force asserted toward the defendant was so great that he reasonably believed that he was in eminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other [than] using force likely to cause death or great bodily harm to Humberto Medina and Jorge Perez-Orozco, or in good faith the defendant withdrew from physical contact with Humberto Medina and Jorge Perez-Orozco and indicated clearly to Humberto Medina and Jorge Perez-Or-ozco that he wanted to withdraw and stop the use of force likely to cause death or great bodily harm but Humberto Medina and Jorge Perez-Orozco continued or [resumed] the use of force,

(emphasis added).

It is well settled that fundamental error occurs where a confusing or misleading jury instruction relates to an element of the offense or to an affirmative defense. Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001); see also Miller v. State, 918 So.2d 415, 416-17 (Fla. 2d DCA 2006) (jury instruction that allows the jury to mix elements of the crime as to two possible victims to reach a conviction results in fundamental error).

In using the conjunction and, the instruction requires that Wilson’s use of force be justified as to both victims to establish self-defense on either count. Thus, it is impossible to determine whether the jury applied the self-defense instruction to each victim separately. Consequently, the instruction in effect negated Wilsons only defense. This constitutes fundamental error. See Davis, 804 So.2d at 404. Therefore, we reverse Wilsons convictions and remand for a new trial.

Reversed and Remanded.

KLEIN and HAZOURI, JJ., concur.


author: WEBSTER, J.

text:
    GOLDEN WEST FINANCIAL CORPORATION, World Savings & Loan Association, as Successor to Beach Federal Savings and Loan Association, Golden West Savings Association Service Company, World Mortgage Company, Commerce Investment Company of Shawnee, First Savings and Loan Shares, Incorporated, the 1901 Corporation, Atlas Securities, Incorporated, Atlas Advisers, Incorporated, Ohio Valley Service Corporation, Homeco Service Corporation, Steel Valley Management Group, Border City Consumer Corporation, Lynnwood Leasing and Mortgage Company, Incorporated, Lynnwood Financial Corporation, Pacific Holiday Development, First Consumer Service Corporation, World Savings Bank, SSB, World Savings Bank, FSB, (f/k/a Watchung Hills Bank for Savings), World Loan Company, WLC Company, and World Savings Association of Florida, and all Members of Golden West Financial Corporation’s Affiliated Group of Companies, Successors, and Assigns, Appellants v. FLORIDA DEPARTMENT OF REVENUE, an Agency of the State of Florida, Appellee.
    No. 1D07-0135.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    David E. Otero, Peter 0. Larsen, and Cynthia DeBula Baines of Akerman Sen-terfitt, Jacksonville, and Katherine E. Gid-dings of Akerman Senterfitt, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charles Catanzaro, Assistant, Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellants commenced an action in Leon County circuit court pursuant to section 72.011, Florida Statutes (2003), challenging the denial by the Department of Revenue of their application seeking refunds of state corporate income taxes paid for the years 1996 through 1999. Among other things, they alleged that Florida Administrative Code Rule 12C-1.013(14)(j), upon which the Department relied for its denial of the requested refunds, constituted “an invalid exercise of delegated legislative authority” in violation of the Florida Administrative Procedure Act (ch. 120, Fla. Stat.) because the rule “enlarge[d], modifie[d], or contravenefd] the specific provisions of law [purportedly] implemented” by the rule. They now seek review of a final order ultimately entered by the trial court which, among other things, concluded that “[r]ule 12C-1.013(14)(j) is a valid exercise of delegated legislative authority, and has not impermissibly enlarged, modified, or contravened that grant of authority” and, accordingly, granted the Department’s motion for summary judgment and denied appellants’. Because we conclude that rule 120-1.013(14)0’) does enlarge, modify or contravene the statutes it purports to implement and that, therefore, it constitutes an invalid exercise of delegated legislative authority, we reverse, and remand with directions that the trial court vacate the summary final judgment entered in favor of the Department and enter a summary final judgment in favor of appellants.

I.

The pertinent facts are not in dispute. Appellant Golden West and its subsidiaries (the remaining appellants) qualified as an affiliated group of corporations for purposes of the federal Internal Revenue Code and, accordingly, filed federal consolidated income tax returns for the years 1989 through 1999. During the same period, some of the affiliated corporations operated within the State of Florida and, therefore, had a nexus with the state for purposes of the Florida tax code (ch. 220, Fla. Stat.). Some of the Florida nexus corporations sustained net operating losses, and some had taxable income. From 1989 through 1992, each of the Florida nexus corporations filed a separate Florida income tax return. During that same period, affiliated corporations having no nexus with Florida did not file a Florida income tax return. From 1993 through 1999, appellants filed Florida consolidated tax returns for the affiliated group, pursuant to section 220.131, Florida Statutes, although not all of the corporations were Florida nexus corporations.

In 2000, appellants filed refund claims in the form of amended consolidated Florida income tax returns for the years 1996, 1997, 1998 and 1999. The refunds claimed for those four years totaled $2,923,378. The claimed refunds were generated by appellants having netted and carried forward net operating losses from the separate Florida returns filed earlier by nexus members of the affiliated group, and then applying those net operating losses against the group’s consolidated Florida income for the tax years 1996 through 1999, as generally contemplated by section 220.13(1)(b)1a, Florida Statutes, which provides that “[tjhere shall be subtracted from ... taxable income ... [tjhe net operating loss deduction allowable for federal income tax purposes under s. 172 of the Internal Revenue Code for the taxable year.” All of the net operating losses in question had been allowed for federal income tax purposes by the Internal Revenue Service. Nevertheless, the Department disallowed the net operating losses, and denied the refund requests, based exclusively on rule 12C-1.013(14)(j), which is known as the Florida “Separate Return Limitation Year” (SRLY) Rule.

Following the denial of the refund requests, appellants filed their action in circuit court, challenging the denial on the grounds that the Florida SRLY rule was invalid because it (1) enlarged, modified and contravened the statutes it was intended to implement; (2) was “inequitable and unjust” and, therefore, violated section 220.51(3), Florida Statutes, which requires that “[rjegulations relating to consolidated reporting for affiliated groups of corporations ... provide for an equitable and just administration of th[e] [Florida tax] code with respect to multicorporate taxpayers”; and (3) violated the Commerce Clause (art. I, § 8, cl. 3) of the United States Constitution. Eventually, appellants and the Department filed cross-motions for summary judgment. In granting the Department’s and denying appellants’, the trial court concluded that the rule (1) “is a valid exercise of delegated legislative authority, and has not im-permissibly enlarged, modified, or contravened that grant of authority”; (2) “does not violate the equal protection provisions of the state or federal constitutions, and does not deprive the taxpayers of due process, and has not been shown to violate [a]rticles III and IV of the Florida Constitution” (issues that were not raised by appellants); and (3) “is consistent with the [C]ommerce [C]lause of the United States Constitution, in that it does not discriminate against or burden interstate commerce.” This appeal follows. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.030(b)(1)(A). Our standard of review is de novo. See Major League Baseball v. Morsani 790 So.2d 1071, 1074 (Fla.2001) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo”) (footnote omitted).

II.

A.

Our legislature has clearly stated that its “intent” in enacting chapter 220 of the Florida Statutes (the Florida corporate income tax code) was to “utilize, to the greatest extent possible, concepts of law which have been developed in connection with the income tax laws of the United States.” § 220.02(3), Fla. Stat. We have previously acknowledged this fact. See Dep’t of Revenue v. Am. Tel. & Tel. Co., 431 So.2d 1025, 1027 (Fla. 1st DCA 1983) (stating that the intent was to “enabl[e] Florida taxpayers to ‘piggyback’ on the provisions of the [Internal Revenue Code]”) (citing § 220.02(3), Fla. Stat. (Supp.1972), and Arthur J. England, Corporate Income Taxation in Florida: Background, Scope, and Analysis, Symposium, Fla. St. L.Rev. 4, 10 (1972)). This approach of “piggybacking” on federal tax code provisions is evident in two provisions of the Florida tax code that apply to appellants’ situation. Section 220.131(4) reads:

The computation of consolidated taxable income for the members of an affiliated group of corporations subject to tax hereunder shall be made in the same manner and under the same procedures, including all intercompany adjustments and eliminations, as are required for consolidating the incomes of affiliated corporations for the taxable year for federal income tax purposes in accordance with s. 1502 of the Internal Revenue Code, and the amount shown as consolidated taxable income shall be the amount subject to tax under this code.

Section 220.13(1)(b)1 states that “[t]he net operating loss deduction allowable for federal income tax purposes under s. 172 of the Internal Revenue Code for the taxable year” is to be “subtracted from ... taxable income,” and that “all deductions attributable to such losses shall be deemed net operating loss carryovers ... and treated in the same manner, to the same extent, and for the same time periods as are prescribed for such carryovers in s[ ]. 172 ... of the Internal Revenue Code.” Both of these statutory provisions are listed as specific provisions of law that the Florida SRLY rule was intended to implement.

As noted above, it is undisputed that, pursuant to the federal tax code, appellants were entitled to use all of the net operating losses at issue. This is because the federal SRLY rule permits an affiliated group filing a consolidated federal income tax return to deduct from its gross income the net operating losses that one or more of its members sustained during a year in which those members filed separate tax returns, provided that those members were part of the affiliated group for every day of the separate return limitation year during which the losses arose. See 26 C.F.R. §§ 1.1502-1, 1.1502-21(c). It is likewise undisputed that appellants are prohibited from doing so on their consolidated Florida income tax return by the Florida SRLY rule (Fla. Admin. Code R. 12C-1.013(14)(j)), which provides that a federal affiliated group may not deduct a net operating loss carryover sustained in “a prior taxable year for which a Florida consolidated return was not filed and Florida corporate income tax returns were not filed for all members” of the group. We must decide whether the Florida SRLY rule is “an invalid exercise of delegated legislative authority” prohibited by section 120.52(8)(c), Florida Statutes, because it “enlarges, modifies, or contravenes the specific provisions of law implemented.”

B.

Section 120.52(8) tells us that

[a] grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.

As we have previously said, this language was intended to restrict agency rulemak-ing. State, Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass’n, 794 So.2d 696, 699 (Fla. 1st DCA 2001).

With these principles in mind, it seems to us relatively clear that the Florida SRLY rule is “an invalid exercise of delegated legislative authority” because it “enlarges, modifies, or contravenes the specific provisions of law [purportedly] implemented” in violation of- section 120.52(8)(c), Florida Statutes. As noted above, two of the specific provisions of law identified as intended to be implemented by the Florida SRLY rule are sections 220.131(4) and 220.13(1)(b)1, Florida Statutes. The former states that

[t]he computation of consolidated taxable income for the members of an affiliated group of corporations subject to tax hereunder shall be made in the same manner and under the same procedures, including all intercompany adjustments and eliminations, as are required for consolidating the incomes of affiliated corporations for the taxable year for federal income tax purposes in accordance with s. 1502 of the Internal Revenue Code, and the amount shown as consolidated taxable income shall be the amount subject to tax under this code;

and the latter states that “[t]he net operating loss deduction allowable for federal income tax purposes under s. 172 of the Internal Revenue Code for the taxable year” is to be “subtracted from ... taxable income,” and that “all deductions attributable to such losses shall be deemed net operating loss carryovers ... and treated in the same manner, to the same extent, and for the same time periods as are prescribed for such carryovers in s[ ]. 172 ... of the Internal Revenue Code.” Notwithstanding these two explicit statutory provisions, the Florida SRLY rule prevents “[t]he computation of consolidated taxable income for the members of an affiliated group of corporations ... in the same manner and under the same procedures ... as are required for consolidating the incomes of affiliated corporations for the taxable year for federal income tax purposes in accordance with s. 1502 of the Internal Revenue Code” in situations such as that presented by the facts of this case. The Florida SRLY rule also prevents net operating loss carryovers from being “treated in the same manner, to the same extent, and for the same time periods as are prescribed for such carryovers in s[ ]. 172 ... of the Internal Revenue Code” in such situations. For these reasons, we conclude that the rule (Fla. Admin. Code R. 12C-1.013(14)(j)) impermissibly “enlarges, modifies, or contravenes the specific provisions” of those two statutes and, therefore, “is an invalid exercise of delegated legislative authority” prohibited by section 120.52(8)(c), Florida Statutes.

III.

We reverse the summary final judgment entered in favor of the Department. On remand, the trial court shall vacate that judgment, and then enter a summary final judgment consistent with this opinion in favor of appellants.

REVERSED and REMANDED, with directions.

KAHN and ROBERTS, JJ., concur.