author: COPE, C.J.

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES; Fred O. Dickinson, III, in his official capacity as Executive Director of the Florida Department of Highway Safety and Motor Vehicles; Florida Department of Transportation; Ben G. Watts, in his official capacity as Secretary of the Florida Department of Transportation, Appellants, v. Sergio RENDON, Joann M. Norris, James J. Silcock, Paul L. Lussier, Stephen R. Fisher, and Lois Busick, on behalf of themselves and all others similarly situated, Appellees.
    No. 3D02-611.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied June 8, 2007.

      Bill McCollum, Attorney General, and Christopher M. Rise, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, for appellants.
    Karen A. Gievers, Tallahassee; Robert G. Fegers, Winter Haven; Peterson & Myers and Stephen R. Senn, Lakeland, and J. Davis Connor, Winter Haven; Michael F. Lanham, Miami and Robert J. Antonello, Winter Haven, for appellees.
    Before COPE, C.J., and RAMIREZ and ROTHENBERG , JJ.

         Judge Rothenberg did not hear oral argument, but participated in the decision.

   On Remand from the United States Supreme Court

COPE, C.J.

This class action challenged the fees which were imposed by the State of Florida for issuance and renewal of disabled parking permits. The trial court granted declaratory, injunctive, and monetary relief, ruling that the fees violated a regulation promulgated under the federal Americans with Disabilities Act (“ADA”). We affirm the declaratory and injunctive relief, but remand the issue of monetary relief to the trial court for further proceedings.

I.

In 2001 the trial court entered its class action judgment, and the defendants appealed to this court. This court’s opinion summarized the proceedings as follows:

Various handicapped drivers sued the agency in a class action for declaratory and injunctive relief and to recover fees paid for parking placards that allow them to park in spaces reserved for the handicapped. The complaint alleged that the imposition of the fee violated Title II of the Americans with Disabilities Act [ADA], specifically 42 U.S.C. § 12132, and 28 C.F.R. § 35.130(f), a Department of Justice regulation implementing Title II. The regulation provides that
A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
Until 2002, the State charged a $15.00 fee for the handicapped parking placards. See Fla. Stat. § 320.0848(2)(c) (2001). As of 2002, that fee has been replaced by an administrative processing charge of $1.50. Ch.2002-20, § 121 at p. 577, Laws of Fla.
History of the Litigation
Plaintiffs first filed their actions in federal court; those actions were dismissed on the grounds that the Federal Tax Injunction Act, 28 U.S.C. § 1341, “divests the federal courts of subject matter jurisdiction over claims challenging state taxation procedures where the state courts provide a ‘plain, speedy and efficient remedy.’ ” Lussier v. State of Florida) Dep’t of Highway Safety & Motor Vehicles, 972 F.Supp. 1412, 1417 (M.D.Fla.1997); see also Rendon v. State of Florida, Dep’t of Highway Safety & Motor Vehicles, 930 F.Supp. 601 (S.D.Fla.1996). Both district courts held that Florida’s surcharge for handicapped parking placards constituted a tax, and that plaintiffs’ remedies were in state court, pursuant to section 320.0848, Florida Statutes. “Insofar as the state court has jurisdiction over ADA cases, 42 U.S.C. § 12202, the Court finds that Plaintiffs may raise all challenges to the surcharge under Fla. Stat. Ann. § 320.0848, including claims that the surcharge violates the ADA, in the state court.” Rendon, 930 F.Supp. at 605. Having ruled that they lacked subject matter jurisdiction, the courts did not reach the merits of the actions.
In 1996, plaintiffs filed a class action complaint against the agency in state court, seeking declaratory and injunctive relief and damages consisting of repayment of the allegedly unlawful parking placard tax. The trial court granted class certification; denied defendants’ motion to dismiss; denied the agency’s motion for summary judgment; and granted the plaintiffs’ motion for summary judgment. The trial court ruled, inter alia,
1) that plaintiffs did not have to first exhaust administrative remedies before challenging the tax as a violation of the ADA;
2) that the action was not time-barred by the three-year claim period specified in section 215.26(2), Florida Statutes; and
3) that sovereign immunity had been waived under Title II of the ADA. The court declared that “Florida’s
statutory scheme of requiring the payment of a fee for a disabled parking permit under Fla. Stat. § 320.0848 violates Title II of the Americans with Disabilities Act.” The court enjoined the State from requiring the payment of any fee for a handicapped parking permit from future permit applicants, and ordered the State to reimburse plaintiffs for parking permit fees collected since January 26,1992, plus interest.

State of Fla., Dept. of Highway Safety v. Rendon, 832 So.2d 141, 142-44 (Fla. 3d DCA 2002) (“Rendon I”), review denied, 851 So.2d 729 (Fla.2003), vacated, 541 U.S. 1059, 124 S.Ct. 2387, 158 L.Ed.2d 960 (2004).

This court reversed the class action judgment, holding that Title II of the ADA did not abrogate Florida’s Eleventh Amendment immunity from suit. Rendon I, 832 So.2d at 145-47. For the same reason, this court also held that the United States Department of Justice “exceeded its rulemaking authority in enacting 28 C.F.R. § 35.130(f), which bars the imposition of any surcharge for accessibility programs and measures.” Id. at 146 (citing Brown v. North Carolina Division of Motor Vehicles, 166 F.3d 698 (4th Cir.1999)). Rendon I, 832 So.2d at 146. The Florida Supreme Court denied review. Rendon v. Fla. Dept. of Highway Safety & Motor Vehicles, 851 So.2d 729 (Fla.2003).

The' United States Supreme Court granted the plaintiffs’ petition for writ of certiorari, vacated this 'court’s judgment, and remanded the matter to this court for further consideration in light of Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). In Lane, the Court held that Congress acted within its powers under section 5 of the Fourteenth Amendment when it enacted Title II of the ADA, as applied to disabled persons’ rights of access to judicial services. Id. at 513, 531, 124 S.Ct. 1978; see also United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). On remand, the appeal was rebriefed and reargued. As this court’s judgment was vacated in its entirety, we have revisited all of-the issues on appeal. We now affirm in part and reverse in part.

II.

We begin by considering the nature of Eleventh Amendment immunity as it applies to a case pending in state court. For a state court suit, -Eleventh Amendment immunity is in substance the State’s sovereign immunity against being sued for damages without the State’s consent. See Lane, 541 U.S. at 517, 124 S.Ct. 1978; Alden v. Maine, 527 U.S. 706, 711-13, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).

Important for present purposes, Eleventh Amendment (or sovereign) immunity bars an unconsented action against a state for damages, but does not bar a suit for nonmonetary relief, such as an injunction. This point was made in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), where Eleventh Amendment immunity barred plaintiffs action for damages under Title I of the ADA, but did not bar injunctive relief. Garrett, 531 U.S. at 374 n. 9, 121 S.Ct. 955.

III.

In this case the plaintiffs sought nonmonetary relief in the form of a declaratory judgment and an injunction. As the Garrett decision explains, Eleventh Amendment immunity does not bar claims for nonmonetary relief. It follows that the declaratory judgment and injunction in this case are not barred by Eleventh Amendment immunity—a conclusion also reached by this court’s panel in Rendon I. See 832 So.2d at 146.

Turning to the merits, at the time the trial court entered judgment, Florida charged a $15 fee for disabled parking permits, which were good for four years. The trial court ruled that these fees violated 28 C.F.R. § 35.130(f), which states that “[a] public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiseriminatory treatment required by the Act or this part.”

On November 14, 2001, the trial court entered its declaratory judgment that Florida’s fees for a disabled parking permit violated the federal regulation and thereby the ADA. On that date the court enjoined the defendants from requiring the payment of any fee for a disabled parking permit for future permit applications. We conclude that the trial court correctly interpreted the federal regulation.

The next question is whether the federal regulation is valid. The prior panel held that the Department of Justice had exceeded its rulemaking authority in enacting 28 C.F.R. § 35.130(f). Rendon I, 832 So.2d at 146. For that proposition the panel relied on the Fourth Circuit decision in Brown v. North Carolina Division of Motor Vehicles, 166 F.3d at 706-08.

On further consideration, we conclude that Brown does not apply to an action for nonmonetary relief. Brown was a suit for damages against the State of North Carolina, seeking to recover the disabled parking permit fees that plaintiffs had paid. Under Eleventh Amendment precedent, it is possible for Congress to enact a federal law which will override a State’s Eleventh Amendment immunity-if certain constitutional tests are satisfied. See Lane, 541 U.S. at 517, 124 S.Ct. 1978. The question in Brown was whether the federal regulation, 28 C.F.R. § 35.130(f), met the necessary tests to abrogate North Carolina’s Eleventh Amendment immunity from a suit for damages. Id. The Brown court’s answer to that question was no—the federal regulation did not validly overcome North Carolina’s Eleventh Amendment immunity—so Brown’s suit for damages was dismissed.

The Brown Eleventh Amendment analysis simply does not apply to a suit for nonmonetary relief like the prospective declaratory and injunctive relief in this case. As we see no valid barrier to enforcement of the federal regulation, we affirm that part of the trial court’s order granting nonmonetary declaratory and injunctive relief.

IY.

We next consider the parties’ arguments regarding that part of the judgment which requires the Department to reimburse the plaintiff class for disabled parking permit fees collected since January 26, 1992, plus interest.

The Department maintains that the plaintiffs’ claim for monetary relief is barred by Eleventh Amendment (or sovereign) immunity. We conclude that sovereign immunity has been waived because (as the defendants told the federal courts) Florida has adopted a statutory procedure for claiming a tax refund where no tax is due.

Florida has established a statutory procedure for obtaining a refund of a tax payment where no tax was due. At the time the plaintiffs filed this suit, the statute stated:

215.26 Repayment of funds paid into State Treasury through error.—
(1) The Comptroller of the state may refund to the person who paid same, or his or her heirs, personal representatives, or assigns, any moneys paid into the State Treasury which constitute:
(a) An overpayment of any tax, license, or account due;
(b) A payment where no tax, license, or account is due; and
(c) Any payment made into the State Treasury in error;
and if any such payment has been credited to an appropriation, such appropriation shall at the time of making any such refund, be charged therewith.
(4) This section is the exclusive procedure and remedy for refund claims between individual funds and accounts in the State Treasury.
(6) A taxpayer may contest a denial of refund of tax, interest, or penalty paid under a section or chapter specified in s. 72.011(1) pursuant to the provisions of s. 72.011.

§ 215.26, Fla. Stat. (Supp.1996) (emphasis added).

Under section 215.26, a taxpayer can obtain a refund of a fee paid where no fee was owed. Sarnoff v. Fla. Dept. of Highway Safety & Motor Vehicles, 825 So.2d 351, 356 (Fla.2002). The taxpayer may bring suit if the taxpayer’s administrative request for a refund is denied.

Eleventh Amendment (or sovereign) immunity bars a suit against a State for monetary relief, where the State has not consented to be sued. See Lane, 541 U.S. at 517, 124 S.Ct. 1978. For tax refunds under section 215.26 the State has consented to be sued, and the immunity has been waived. See McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 49 n. 34, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) (“the State waived any sovereign immunity from suit through Fla. Stat. § 215.26’s authorization of a state-court refund action ... ”). Since the immunity has been waived, there is no need for further consideration under Lane.

V.

We next turn to the merits of the judgment ordering reimbursement of parking permit fees paid since January 26, 1992. Under Florida precedent, it was necessary for each individual class member to make an application for refund under section 215.26 within the statutory time limit.

The Florida Supreme Court has held that compliance with section 215.26 will be excused “when the claim is solely that the refund is required because the tax is unconstitutional .... ” Dept. of Revenue v. Nemeth, 733 So.2d 970, 974 (Fla.1999) (footnote omitted). The court went on to say, “If the refund is claimed on any other basis, there must be compliance with section 215.26 ....” Id. at 974 n. 6.

In the present case the plaintiffs’ claim is that the parking permit fee is preempted by 28 C.F.R. § 35.130(f). That falls short of a claim that Florida’s disabled parking permit fee is unconstitutional. See Sarnoff v. Fla. Dept. of Highway Safety & Motor Vehicles, 825 So.2d at 355, 357. It follows that “all of the potential members of the class would be required to apply for a refund before joining a class action suit in this case.” P.R. Marketing Group, Inc. v. GTE Fla., Inc., 747 So.2d 962, 964 (Fla. 2d DCA 1999). A demand by the class representatives for a refund on behalf of the entire class is not sufficient. Id. at 963-64.

The summary judgment record now before us does not reveal which class members, if any, made application for a refund under section 215.26 within the statutory time limit. We therefore reverse the portion of the judgment which requires refunds and remand for consideration of monetary relief for only those claimants who timely applied for a refund under section 215.26, and for other proceedings consistent herewith.

VI.

The plaintiffs have requested attorney’s fees for this appeal under the attorney’s fees provision of the ADA, which states:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.

42 U.S.C. § 12205.

We conclude that the plaintiffs have prevailed in part on this appeal, because this court has affirmed the grant of declaratory and injunctive relief sought by the plaintiffs. The plaintiffs have not been successful in this appeal in defending the judgment for a refund to the class. We grant appellate attorney’s fees for that portion of the appellate proceedings reasonably attributable to the claim for declaratory and injunctive relief.

The defendants oppose the plaintiffs’ entitlement to such attorney’s fees. The defendants point out that under federal precedent under the Tax Injunction Act, federal law does not impose a requirement for the state court to award declaratory and injunctive relief in state tax cases when an adequate legal remedy exists in state court, such as an action for a refund. See National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 589, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995). The defendants say that since Florida provides a procedure for obtaining a tax refund, it follows that the plaintiffs are not entitled to declaratory and injunc-tive relief. Defendants maintain that if plaintiffs are not entitled to obtain declaratory and injunctive relief, then the plaintiffs are not entitled to attorney’s fees for obtaining such relief.

The defendants have overlooked a key portion of National Private Truck Council, which explains that the decision is announcing a rule of federal law and that the states are free to follow their own law. Id. at 592, 115 S.Ct. 2351. “[S’Jtate courts are free to issue injunctions and declaratory judgments under state law.” Id. (emphasis in original).

Under Florida law, it is settled that declaratory and injunctive relief are available in tax controversies, including a claim that a tax is illegal. See 51 Fla. Jur.2d Taxation §§ 494, 550, 595, 599 (2006), and cases cited therein. In this case, the plaintiffs claim that the Florida disabled parking permit fee is illegal. Under Florida law, the request for declaratory and in-junctive relief was proper. We therefore grant appellate attorney’s fees attributable to the claims for declaratory and injunctive relief, and remand to the trial court to determine the amount.

VII.

For the stated reasons, we affirm the judgment insofar as it granted prospective declaratory and injunctive relief. We reverse the judgment insofar as it grants monetary relief, and remand for further proceedings consistent herewith.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The defendants-appellants are the State of Florida Department of Highway Safety and Motor Vehicles, its Executive Director, Fred O. Dickinson, III, the Florida Department of Transportation, and its Secretary, Ben G. Watts.

      . The Alden Court explained:
      We have ... sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, -the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

        Id. at 712-13, 119 S.Ct. 2240.

      . After the appeal was filed in this case, the Legislature amended the Florida Statutes so as to eliminate the $15 fee, substituted instead an administrative processing fee of $1.50 which is paid to the county tax collector for the issuance of each disabled parking permit. Ch.2002-20, § 121, Laws of Fla. We express no opinion on the effect of the 2002 statutory amendment on this litigation.

      . As mentioned at the outset of this opinion, the plaintiffs originally filed this class action in federal court. There were actually two such actions, one in the Southern District of Florida and the other in the Middle District of Florida. See Lussier v. State of Fla., Dept. of Highway Safety & Motor Vehicles, 972 F.Supp. 1412 (M.D.Fla.1997); Rendon v. State of Florida, 930 F.Supp. 601 (S.D.Fla.1996). In both cases the defendants successfully argued that the federal Tax Injunction Act prohibited suit in federal court. Under that statute, a taxpayer cannot use the federal courts to challenge the validity of a state tax so long as the state court provides a plain, speedy, and efficient remedy. Rendon, 930 F.Supp. at 604. Both courts dismissed, reasoning that the plaintiffs must proceed with a challenge under Florida law. Lussier, 972 F.Supp. at 1421-23, Rendon, 930 F.Supp. at 604-05. The plaintiffs thereafter filed this action in state court.

      . The Lane case set forth the analysis to be applied where (a) there was no waiver of immunity, and (b) it was necessary to determine whether Congress in enacting Title II of the ADA had validly overcome the State’s Eleventh Amendment immunity as applied to the circumstances of the particular program or service at issue. See Lane, 541 U.S. at 517, 124 S.Ct. 1978.


source: Caselaw Access Project

author: LAGOA, Judge.

license: Public Domain

text:
    MICHAEL SCHIFFRIN & ASSOCIATES, P.A., Appellant, v. George KORALY, Appellee.
    No. 3D06-2724.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.

      Michael Schiffrin, Miami, for appellant.
    Steward <& Evans and Ralph L. Evans, Vero Beach, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   LAGOA, Judge.

Appellant, Michael Schiffrin & Associates, P.A. (“Schiffrin”), appeals an order transferring venue from Miami-Dade County to Brevard County. We reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Schiffrin is a professional association whose principal place of business is located in Miami-Dade County. On December 12, 2005, the defendant, George Koraly (“Ko-raly”), a resident of Brevard County, executed a retainer agreement with Schiffrin. In the retainer agreement, Schiffrin agreed to represent Koraly in a claim against Nationwide Insurance for property damage caused to Koraly’s home by Hurricane Jeanne. Specifically, the retainer agreement stated:

As indicated to you previously, we would agree to represent you with regard to your claim against Nationwide Insurance for the property damage portion of your claim, which damage was caused by Hurricane Jeanne on or about September 25, 2004 on a thirty percent (30%) contingency basis. This means that from any and all amounts we are successful in recovering, whether by settlement, judgment, verdict or award, we would be entitled to 30% of the GROSS amount, to wit: before the deduction of any and all other fees due to other service providers, experts, as well as prior to the issuance of payments for all costs and/or expenses which are outstanding at that time.

The retainer agreement, however, was silent as to the place of payment for Schiff-rin’s fee.

After execution of the retainer agreement, Schiffrin drafted a summons and two-page complaint and mailed them to Koraly on January 10, 2006 for his review. Pursuant to Koraly’s instructions, however, Schiffrin did not file suit as Koraly was in negotiations with the insurance company “in an attempt to resolve this matter amicably.” On February 6, 2006, and March 6, 2006, Schiffrin sent two additional letters to Koraly inquiring as to the status of the settlement negotiations.

After learning that Koraly had settled his claim with the insurance company for $190,000.00, Schiffrin sued Koraly in Miami-Dade County for breach of contract. In the complaint, Schiffrin alleges that Ko-raly failed to pay the thirty percent (30%) contingency fee due under the retainer agreement and that Schiffrin complied with all terms and conditions of the agreement and with all conditions precedent. Koraly, a resident of Brevard County, moved for a change of venue, pursuant to Florida Rule of Civil Procedure 1.140(b), asserting that the “cause of action framed by these allegations revolve around the insurance proceeds for the [defendant's residence located in Micco, Brevard County, Florida.” The trial court granted the motion and this appeal ensued.

II. ANALYSIS

On appeal, Schiffrin argues that, because the action is one for a liquidated amount due under a contract that does not state a place of payment, the general rule that payment is due where the creditor ■ resides or has a place of business applies. Koraly, however, characterizes the agreement as one for services, and argues that the rule that a cause of action accrues where services are due under the contract applies to the instant case.

We find Koraly’s argument unpersuasive given the following well-settled principle of law:

A cause of action for venue purposes accrues in the county where the contract is breached. Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979). If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); M.A. Kite Co. v. A.C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961).... [W]hen a written contract fails to specify the place where payments are to be made, a cause of action for failure to pay is properly brought in the county where the plaintiff has its principal place of business.

Sunshine Yacht Sales, Inc. v. Bob Anslow Yacht Sales, Inc., 669 So.2d 342, 343-344 (Fla. 3d DCA 1996) (quoting Ryan v. Mobile Commc’ns Enters., Inc., 594 So.2d 845, 846 (Fla. 2d DCA 1992)).

Here, the complaint contains a single count for breach of contract for failure to make payment under the retainer agreement. Because Schiffrin alleges that it performed under the retainer agreement and that Koraly failed to pay the thirty percent (30%) contingency fee due under the agreement, the cause of action accrues where the payment was to occur. As noted previously, because the retainer agreement did not provide for a place of payment, a cause of action for failure to pay is properly brought in the county where Schiffrin has its principal place of business. Because Sehiffrin’s principal place of business is in Miami-Dade County, the trial court erred in transferring the case to Brevard County. Accordingly, the trial court’s order transferring venue is reversed and this case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

      . Schiffrin's January 10, 2006 letter enclosing the draft summons and complaint stated in pertinent part:
      Dear Mr. Koraly: In accordance with your telephone notification of January 6, 2005, I herewith confirm that I will not file suit against the insurance company on your behalf until further notification from you. It is my understanding that Epic Group is negotiating with the insurance company in an attempt to resolve this matter amicably.
      In the meantime, I herewith enclose a copy of the Summons and Complaint which I have prepared for your review. Please advise immediately if it appears that settlement of your claim is not forthcoming so that I can proceed with the lawsuit against Nationwide Insurance Company of Florida on your behalf.

      . The February 6, 2006 letter stated in pertinent part:
      Dear Mr. Koraly: On January 10, 2006, I wrote to you confirming your notification of January 6, 2005 to my office by telephone that I should hold-off filing the lawsuit in this matter as Epic Group was negotiating with the insurance company in an attempt to resolve your claim amicably. I have not received anything from you or Epic Group concerning this matter and I would appreciate your updating me. By copy of this letter I am likewise requesting that Epic Group provide me with a written update for my file. Needless to say, if by now the matter has not been resolved and settlement negotiations have broken down, you would best be served by filing suit.

      .The March 6, 2006 letter stated in pertinent part:
      Dear Mr. Koraly: I have not heard from you in response of my last two letters to you with regard to the filing of the lawsuit in the above-captioned matter, which lawsuit was prepared and sent to you for approval some time ago. As a matter of fact, you had indicated that you were attempting to amicably resolve your claim with the insurance company directly and since I have not heard from you as to whether a resolution was accomplished, I need for you to immediately provide me with a written update so that I can note my file accordingly. Needless to say, if by this time the insurance company still refuses to honor your claim, my opinion would be that you would be best served by filing suit.

      . Because the matter before us is solely whether venue is proper in Miami-Dade County, we make no decision today regarding whether Schiffrin, who apparently never filed suit on Koraly's behalf, satisfied the terms and conditions of the retainer agreement.


author: WELLS, J.

text:
    The STATE of Florida, DEPARTMENT OF REVENUE, OFFICE OF CHILD SUPPORT ENFORCEMENT, Etc., Appellant, v. Joe E. DUCTANT, Appellee.
    No. 3D06-150.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.

      Bill McCollum, Attorney General, and William H. Branch, Tallahassee, Assistant Attorney General for appellant.
    Douglas Isenberg, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING

WELLS, J.

We grant the appellant’s motion for rehearing, withdraw our opinion filed on January 17, 2007, and substitute the following opinion in its stead.

The Department of Revenue seeks reversal of an order disestablishing paternity, absolving appellee, Joe D. Ductant, of responsibility for future child support payments and relieving him of child support arrearages. We affirm in part, reverse in part and remand for further proceedings.

On August 23, 1997, four days after J.KD.’s birth, Ductant voluntarily signed a consenting paternity affidavit. See § 742.10(4), Fla. Stat. (2003). In August 2003, DOR filed a petition for support naming Ductant as respondent. A hearing was held on that motion on October 15, 2004. On December 9, 2004, before a written order on DOR’s motion could be entered, Ductant filed a verified motion for relief from “child support order” and sought to invoke both rule 1.540 and section 742.10(4) of the Florida Statutes to revoke his 1997 paternity affidavit.

On December 10, 2004, an order was signed obligating Ductant to pay monthly support and to pay assessed arrearages through October 14, 2002. That order also rejected Ductant’s' claim that recent DNA testing excluded him as J.KD.’s father because he had failed to file “any legal pleadings to set aside [a] paternity finding.” On January 24, 2005, a hearing was held on Ductant’s motion to revoke paternity affidavit and for relief from child support order. The trial court ordered a DNA paternity test.

On June 14, 2005, a second hearing was héld. Based on the fact that DNA testing confirmed that Ductant was not J.KD’s father,’the court found “in the interest of equity,” Ductant would no longer have to pay child support and would be relieved of any and all prior orders adjudicating ar-rearages.

DOR claims that the trial court erred in declaring that Ductant “is no longer the legal father of the minor child” because Ductant failed to prove entitlement to relief under either section 742.10(4) or rule 1.540. We disagree.

Section 742.10, in pertinent part, provides:
(1) ... If no adjudicatory proceeding was held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury ... shall create a rebuttable presumption ... of paternity and is subject to the right of any signatory to rescind the acknowledgement within 60 days after the date the acknowledgment was signed....
(4) After the 60-day period referred to in subsection (1), a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment may not be suspended during the challenge, except upon a finding of good cause by the court.

§ 742.10(1), (4), Fla. Stat. (2004).

The unrebutted evidence in this case was, at the very least, that there was a material mistake of fact as to the paternity of the child. Thus, we believe the evidence before the court was sufficient to disestablish paternity, at least under section 742.10.

While a sufficient basis was demonstrated to disestablish paternity and relieve Ductant of any further support obligation to this child, a sufficient basis for relieving Ductant of the support obligations that had accrued prior to the date on which his verified motion to nullify his paternity affidavit was filed (December 9, 2004), was not shown. See Dep’t of Revenue ex rel. King v. Blocker, 806 So.2d 607, 610 (Fla. 4th DCA 2002)(“Child support payments that remain unpaid are a vested right of the child, and ‘they can not be cancelled or reduced retrospectively absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct [on the part of the custodial parent].’ Dep’t of Revenue v. Strickler, III, 702 So.2d 277, 278 (Fla. 1st DCA 1997).”); State Dep’t of Health and Rehab. Servs. o/b/o Davis v. Canady, 473 So.2d 273 (Fla. 2d DCA 1985)(absent compelling circumstances or valid defense such as laches, estoppel, waiver, reprehen-sive conduct or other strong equitable reasons court lacks authority to retroactively cancel or reduce past due child support payments). We therefore reverse for reinstatement of the December 20, 2004 ar-rearage award and for an award of support from October 14, 2004 (the date through which the December 20 arrearage was set) through December 9, 2004.

Affirmed in part, reversed in part, and remanded with instructions.

      . Chapter 97-170, section 70, Laws of Florida, effective July 1, 1997 added subsections (4) and (5), relating to challenging voluntary acknowledgments of paternity, and to ratification of unchallenged acknowledgments of paternity, respectively.

      . See generally Florida Dep’t of Revenue ex rel. R.A.E. v. M.L.S., 756 So.2d 125, 127 (Fla. 2d DCA 2000)(observing that the paramount consideration in paternity cases is the best interests of the child).


author: PER CURIAM.

text:
    Robert A. SURDAKOWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1402.
    District Court of Appeal of Florida, First District.
    April 5, 2007.
    Rehearing Denied June 5, 2007.
    Robert A. Surdakowski, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: FLETCHER, Judge.

text:
    Kenneth RINKOR, in proper person, Appellant, v. Leyla BRBORICH, f/k/a Leyla Rinkor, Appellee.
    No. 3D06-1875.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing Denied May 17, 2007.
    Kenneth Rinkor, In Proper Person.
    Marcia Soto, Miami, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Kenneth Rinkor appeals from a non-final order awarding temporary attorney’s fees and costs to Leyla Brborich, his former wife, in this dissolution of marriage action. We reverse one part of the order and affirm the rest.

Included within the order is the following language:

15. The court hereby enjoins the Former Husband from liquidating his portion of the stock account for any reason other than for payment of the attorneys’ fees, costs and suit monies awarded herein. In the event the Former Husband dissipates the funds in said account for any reason other than to satisfy the Court’s award, he may be subject to a finding of indirect criminal contempt and all sanctions permitted by law.

It is this portion of the order that we reverse.

Section 61.11(1), Florida Statutes (2006) provides for the issuance of injunctions under certain circumstances, but only for the purpose of securing alimony or support to the party who should receive it. Section 61.11(1) makes no mention of attorney’s fees. The Fourth District Court of Appeal has at least twice determined that section 61.11 does not empower a trial court to enter an injunction to secure an attorney’s fee award. Levinson v. Levinson, 895 So.2d 432 (Fla. 4th DCA 2004); Widom v. Widom, 679 So.2d 74 (Fla. 4th DCA 1996). We agree with the Fourth District.

We recognize that in Carta v. Carta, 903 So.2d 300 (Fla. 3d DCA 2005), the trial, court had issued an injunction freezing assets in the husband’s safe deposit box. That injunction was not appealed to this court. What was appealed was an order modifying the previous order so as to permit the breaking of the safe deposit box to satisfy, not to secure, the award of attorney’s fees and costs. Carta does not bear on the issue here.

Accordingly, we reverse that portion of the order set forth in paragraph 15 thereof, thus dissolving the injunction, and remand for the trial court to excise paragraph 15 from the order. The remainder of the order is affirmed.

Affirmed in part, reversed and remanded in part.


text:
    CELLULAR WAREHOUSE, INC., Appellant, v. GH CELLULAR, LLC, Appellee.
    No. 3D06-2436.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.

      Smoler, Lerman, Bente & Whitebook, Miami and Carlos D. Lerman and Jodi Lerman, Hollywood, for appellant.

      Martin A. Feigenbaum, Miami, for ap-pellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   LAGOA, Judge.

The defendant, Cellular Warehouse, Inc. (“Cellular Warehouse”), appeals from an order denying its motion to set aside a default final judgment. We reverse the trial court’s order and vacate that portion of the default final judgment awarding un-liquidated damages.

I. FACTUAL AND PROCEDURAL HISTORY

GH Cellular, LLC (“GH Cellular”) filed an action against Cellular Warehouse for breach of contract, recovery on a promissory note, money lent, and unjust enrichment. In the breach of contract and unjust enrichment counts, GH Cellular sought damages in the amount of $41,742.46. This amount included a liquidated damages claim in the amount of $8,800 for failure to make payments under the terms of the contract, as well as late fees. This amount also included claims for “additionally incurred extensive and substantial expenses” as a result of the breach of contract. These expenses were set forth in invoice exhibits attached to the complaint. Among the claimed expenses were business operating expenses, amounts for several assets GH Cellular alleged were stolen by an officer of Cellular Warehouse, and “loss of dealerships which generated a monthly income for the Plaintiff.” The damages for “loss of dealerships” were labeled on the invoice as damages caused by the same officer alleged to have stolen assets. GH Cellular also sought recovery of attorney’s fees.

Because Cellular Warehouse did not file or serve any paper in the action, GH Cellular filed a motion for clerk’s default, along with a packet containing a default final judgment. The clerk subsequently entered a default against Cellular Warehouse. When GH Cellular realized that the default final judgment had not been entered, GH Cellular mailed another letter to the default clerk enclosing three additional copies of the proposed default final judgment and requesting that the clerk have the trial court execute the proposed default final judgment and forward it to the parties. GH Cellular did not notice or schedule the entry of the proposed default final judgment, which contained both liquidated and unliquidated damages, for trial. The trial court, without benefit of a trial, entered the proposed default final judgment in favor of GH Cellular in the total amount of $45,838.46, including $3,500 in attorney’s fees. It is undisputed that the default final judgment was entered without providing Cellular Warehouse with notice or an opportunity to be heard.

Cellular Warehouse subsequently filed a motion to set aside the default final judgment pursuant to Florida Rule of Civil Procedure 1.540. The trial court denied the motion, and Cellular Warehouse appeals from that order.

II. STANDARD OF REVIEW

We review an order denying a motion to vacate a default judgment under a gross abuse of discretion standard. Viets v. American Recruiters Enterprises, Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006).

III. ANALYSIS

On appeal, Cellular Warehouse argues that the trial court erred in entering a default final judgment, that included unliq-uidated damages, without providing Cellular Warehouse with notice and an opportunity to be heard pursuant to Florida Rule of Civil Procedure 1.440(c). We agree and reverse.

While a default admits all well-pleaded allegations of a complaint including a plaintiffs entitlement to liquidated damages, it does not admit entitlement to unliquidated damages. Bowman v. Kingsland Development, Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983). Damages are liquidated “when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Id. at 662. Damages are not liquidated, however, “if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Id. at 663. Claims for reasonable attorney’s fees are considered un-liquidated damages. See id.; see also Latin American Cafeteria, Inc. v. Zales Meats Distributors, Inc., 921 So.2d 768, 771 (Fla. 3d DCA 2006). In this case, the trial court awarded $3,500 in attorney’s fees.

In addition to attorney’s fees, GH Cellular also sought damages for lost business profits, stolen assets, and operating expenses. These damages were not established by the parties’ agreement nor are they capable of being determined by arithmetical calculation. Instead, these damages require testimony to ascertain a value and are properly categorized as unliquidat-ed. See Rick v. Spivey, 922 So.2d 326 (Fla. 1st DCA 2006)(plaintiff s valuation of stolen items constituted unliquidated damages); Boulos v. Yung Sheng Xiamen Yong Chemical Industry Co., Ltd., 855 So.2d 665 (Fla. 4th DCA 2003)(damages for “lost business” were unliquidated); United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So.2d 169, 172 (Fla. 3d DCA 1996)(“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make the claim liquidated. That determination can only be made after evidence has been presented and testimony taken on the issue of exactly what inventory was stolen and how much it was worth.”). A review of the complaint and attached exhibits shows that GH Cellular was entitled to $8,800 in liquidated damages. Based on the amount of the final default judgment, it is clear that a majority of the damages awarded were, therefore, unliquidated damages. Cellular Warehouse was entitled to notice and an opportunity to be heard prior to the trial court awarding such damages. Viets, 922 So.2d at 1095. Accordingly, the trial court grossly abused its discretion in denying Cellular Warehouse’s motion to set aside the final default judgment when it is clear that the majority of the $48,838.46 awarded GH Cellular constituted unliquidated damages.

On appeal, GH Cellular argues that the trial court’s order should be affirmed as Cellular Warehouse improperly proceeded below under Rule 1.540. Specifically, GH Cellular claims that because Cellular Warehouse received notice of the default final judgment after execution by the trial court, its only recourse for any objection was either through a motion for rehearing or a direct appeal. We find GH Cellular’s argument without merit.

It is well settled that a defaulting party “has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages.” Bowman v. Kingsland Development, Inc., 432 So.2d 660, 663 (Fla. 5th DCA 1983); accord Watson v. Internet Billing Co., Ltd., 882 So.2d 533 (Fla. 4th DCA 2004); Pierce v. Anglin, 721 So.2d 781 (Fla. 1st DCA 1998). Indeed, “[t]he setting of un-liquidated damages without the required notice and without proof is regarded as fundamental error.” Security Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So.2d 795, 800 (Fla. 3d DCA 1996), approved, 698 So.2d 254, 256 (Fla.1997); see also, Williams v. Direct Dispensing, Inc., 630 So.2d 1195 (Fla. 3d DCA 1994); Buffington v. Torcise, 504 So.2d 490 (Fla. 3d DCA 1987).

Contrary to GH Cellular’s assertion, the relevant notice to which Cellular Warehouse was entitled was notice and an opportunity to be heard before the entry of a default final judgment that awarded unliquidated damages. Indeed, due process requires fair notice and a real opportunity to be heard before judgment is rendered. Where an action involves — as in this case — unliquidated damages, “a party against whom default has been entered is entitled to notice of an order setting the matter for trial, and must be afforded an opportunity to defend.” Viets v. American Recruiters Enterprises, Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006). It is irrelevant to this analysis that Cellular Warehouse had notice of the default final judgment after it was entered. A violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void, and Rule 1.540(b)(4) provides relief from void judgments at any time. Viets, 922 So.2d at 1095 (reversing default final judgment awarding unliqui-dated damages where judgment was entered upon just the proposed order being sent by mail to the court; plaintiff denied due process); Hutchison v. Chase Manhattan Bank, 922 So.2d 311, 315 (Fla. 2d DCA 2006)(where appellant did not receive notice before entry of orders, the appropriate procedure for attacking void judgment was Rule 1.540(b)); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988)(relief from void judgment may be granted at any time). An error in notice, however, does not void the entire judgment, only that portion awarding unliquidated damages. Bowman, 432 So.2d at 663. As the appropriate vehicle for attacking a void judgment is a motion for relief under Florida Rule of Civil Procedure 1.540(b), we find that Cellular Warehouse properly proceeded under this rule in seeking relief from the default final judgment.

III. CONCLUSION

It is undisputed that the trial court entered the default final judgment without providing Cellular Warehouse notice and an opportunity to be heard. This constitutes fundamental error. Because Cellular Warehouse was not provided with notice and an opportunity to be heard pursuant to Rule 1.440(c), Florida Rule of Civil Procedure, at a stage in the proceeding in which unliquidated damages were determined and awarded, the trial court abused its discretion in denying Cellular Warehouse’s motion to set aside the default final judgment. Accordingly, we reverse the trial court’s order denying Cellular Warehouse’s motion and vacate that portion of the default final judgment awarding unliq-uidated damages. We further remand this case for a trial on unliquidated damages.

Reversed and remanded for proceedings consistent with this opinion.

      . The parties had entered into an agreement for Cellular Warehouse to purchase a fifty percent ownership interest in the assets of GH Cellular.

      . The executed default final judgment was apparently served on Cellular Warehouse at its place of business.

      . Florida Rule of Civil Procedure 1.440(c) provides in pertinent part: "In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).”

      . To support this proposition, GH Cellular cites to this Court's opinion in Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3d DCA 1989). Rutshaw, however, is not controlling in the instant case. First, the issue in Rutshaw was one of insufficient notice, not lack of notice. Indeed, in Rutshaw, after a default was entered, a trial on damages was held with one day's notice. Additionally, in that case, unlike in this one, the trial on damages was attended by one of the two defendants and the defendant in attendance did not object to the proceeding.


text:
    Herman U. GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1533.
    District Court of Appeal of Florida, First District.
    April 13, 2007.
    Rehearing Denied June 13, 2007.
    Herman U. Green, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Larry S. MORTON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-3214.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied June 13, 2007.

      Larry S. Morton, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Beverly B. Brewster, Assistant General, Counsel, Department of Corrections, Tallahassee; Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner has filed a petition for writ of certiorari after the lower court denied his petition for writ of mandamus challenging, among other things, the Department of Corrections’ forfeiture of 18 years of basic gain-time following the revocation of his parole. We agree with petitioner that the lower court departed from the essential requirements of law in denying the mandamus petition as to this particular claim.

Petitioner received seven consecutive sentences totaling 85 years for offenses committed in October and December 1978. Upon his entry into the custody of the Department of Corrections, petitioner was awarded basic gain-time in a lump sum pursuant to the Correctional Reform Act of 1983. In 1998, petitioner was released to parole supervision while serving the second of his consecutive sentences. After petitioner’s parole was revoked, the Department declared a forfeiture of petitioner’s gain-time pursuant to section 944.28, Florida Statutes. Later, when an audit revealed that petitioner’s basic gain-time had not been completely removed from his records, the Department corrected this error. After exhausting his administrative remedies, petitioner filed a petition for writ of mandamus in the circuit court. Among other things, petitioner asserted that the Department unlawfully forfeited 18 years of basic gain-time after the revocation of petitioner’s parole because basic gain-time could not be awarded and forfeited in a lump sum on his consecutive sentences under the gain-time statute in effect when he committed his offenses. The lower court disagreed and denied the petition as to this claim.

At the time petitioner committed his offenses, section 944.275, Florida Statutes (Supp.1978), the applicable gain-time statute, provided:

(4) When a prisoner is under two or more concurrent sentences, the prisoner shall be allowed gain-time as if such sentences were all one sentence; and the prisoner’s gain-time, including any additional gain-time allowed under subsection (2) and extra gain-time allowed under subsection (3), shall be subject to forfeiture as though such sentences were all one sentence.

This provision became effective on July 1, 1978, and differed from its predecessor which referred to “cumulative sentences” rather than “concurrent sentences.” Orosz v. Singletary, 693 So.2d 538, 539-40 (Fla.1997). Our supreme court concluded that this statutory modification removed the authority of the Department of Corrections to combine consecutive sentences into a single term or overall sentence for the purpose of awarding or forfeiting gain-time. State v. Lancaster, 731 So.2d 1227, 1230 (Fla.1998); Orosz, 693 So.2d at 540. However, the court found that the 1983 amendments to section 944.275 (the Correctional Reform Act of 1983) restored the Department’s authority to combine consecutive sentences into a single term for the purpose of awarding or forfeiting gain-time. Orosz, 693 So.2d at 539. The issue here is whether the Department could retroactively apply the 1983 statute to combine petitioner’s pre-1983 consecutive sentences into a single term for the purpose of awarding or forfeiting basic gain-time without violating the ex post facto clauses of the state and federal constitutions.

In Waldrup v. Dugger, 562 So.2d 687 (Fla.1990), an inmate petitioned the Florida Supreme Court for a writ of habeas corpus, alleging that the Department was retroactively applying the 1983 amendments to Florida’s gain-time statute to deprive him of an earlier release from prison in violation of the ex post facto clause. The court noted that a penal statute violated the ex post facto clause if, after a crime had been committed, it increased the penalty attached to that crime. Id. at 691. Although the basic gain-time provision of the 1983 statute applied retroactively to sentences imposed for offenses committed before the statute’s effective date, the court concluded that this did not violate the ex post facto clause because it did not disadvantage the inmate insofar as the 1983 statute actually increased the amount of basic gain-time available for all inmates. Id. at 691-92.

Clearly, the Department was permitted under Waldrup to award basic gain-time on petitioner’s pre-1983 consecutive sentences under the more generous 1983 statute. However, it is equally clear that petitioner was disadvantaged by the Department relying on the 1983 statute in treating the consecutive sentences as a single term for purposes of awarding and forfeiting basic gain-time in a lump sum. Accordingly, the Department could not retroactively apply the 1983 statute to authorize the forfeiture of all basic gain-time on petitioner’s pre-1983 consecutive sentences without violating the ex post facto clause of the state and federal constitutions. See Avera v. Barton, 632 So.2d 167 (Fla. 1st DCA 1994) (holding that the Department’s retroactive application of the basic gain-time statute to calculate the amount of gain-time earned before, and forfeited as a result of, an escape conviction violated the ex post facto clause because the inmate would have earned 96 days under the gain-time statute in effect at the time of the inmate’s escape and conviction as opposed to 277 days under the revised statute). Under the gain-time statute in effect at the time of petitioner’s offenses, the Department had to treat petitioner’s consecutive sentences individually and could only award basic gain-time when petitioner began serving each of those sentences. Since petitioner had finished serving his first sentence and was serving his second sentence when he was released on parole, the subsequent revocation of petitioner’s parole permitted the Department to forfeit only the basic gain-time awarded on the second sentence. As for petitioner’s remaining consecutive sentences that have yet to be served, the Department is authorized to order the forfeiture of the right to earn gain-time in the future if it complies with the procedure set out in section 944.28(3), Florida Statutes (1977). However, there is nothing to indicate that the Department relied on that provision nor is there any suggestion that the procedural requirements of that provision have been met.

By not applying the correct law, we conclude that the lower court departed from the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). Accordingly, we grant the petition, quash the order in part, and remand for further proceedings.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Mary E. WARD, Paternal Grandmother, Appellant, v. Mary Tyler BRAGG, Former Wife, and Calvin Michael Ward, Former Husband, Appellees.
    No. 1D07-0454.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied June 11, 2007.
    Janis L. Burke, Ft. Walton Beach, for Appellant.
    Sabrina A. Bisordi, Shalimar, for Appel-lee Calvin Michael Ward; Mary Tyler Bragg, Pro se, Appellee.
   PER CURIAM.

Having considered Appellant’s response to this Court’s order dated February 8, 2007, as well as Appellee’s reply thereto and the attached documents, this appeal is hereby dismissed for lack of jurisdiction. The December 19, 2006, order on appeal contemplates an additional hearing on the issue of visitation and is merely an interlocutory preliminary order that will eventually culminate in an appealable final order. Further, the Final Judgment, entered on July 27, 2006, which modified a previously entered custody order, is nonfinal because it reserved jurisdiction to consider the integrally related issue of visitation. See T.H. v. Dep’t of Children & Families, 736 So.2d 126 (Fla. 1st DCA 1999). Finally, Appellant’s argument that her motion for rehearing suspended rendition of the Final Judgment is without merit. Appellant’s reliance on this Court’s opinion in Johnson v. Johnson, 902 So.2d 241 (Fla. 1st DCA 2005), is misplaced because Johnson did not involve a nonfinal order. Therefore, the motion for rehearing directed towards the final order in Johnson was an authorized motion. Conversely, Appellant’s motion for rehearing in this case was not authorized because it was directed towards a nonfinal order. Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla. 1972). Therefore, it did not suspend rendition. See Fla. R.App. P. 9.020(h).

Appellant’s Motion for Relief, filed in this Court on February 1, 2007, is hereby denied as moot.

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


author: ALTENBERND, Judge.

text:
    SAVE OUR SEPTIC SYSTEMS COMMITTEE, INC., William B. Bishop, Katherine L. Bishop, Daniel W. Bush, Janet S. Bush, Jordan L. Gay, Erma C. Gay, William King, Kathryn H. King, and Richard Moyer, individually and on behalf of all others similarly situated, Appellants, v. SARASOTA COUNTY, Appellee.
    No. 2D05-6143.
    District Court of Appeal of Florida, Second District.
    April 27, 2007.

      Donald E. Hemke of Carlton Fields, P.A., Tampa, for Appellants.
    Stephen E. DeMarsh, County Attorney, and Gary K. Oldehoff and Scott T. Bos-sard, Assistant County Attorneys, Sarasota, for Appellee.
   ALTENBERND, Judge.

Save Our Septic Systems Committee, Inc., and several residents of Sarasota County (collectively “SOSS”), appeal a summary final judgment dismissing their complaint for declaratory and injunctive relief against Sarasota County. Although the complaint contained four counts, SOSS challenges only the dismissal of counts II and III, which were resolved on the County’s motion to dismiss or for partial summary judgment. These counts challenged the County’s imposition of a “capacity fee” or impact fee and a surcharge in connection with the County’s demand that these residents abandon the use of individual septic systems and instead hook up to the County’s central sewage system. The order granting summary judgment and dismissal on these counts merely granted the motion without any explanation of the trial court’s reasoning. We conclude that the County failed to prove the absence of any genuine issue of material fact, or that its capacity fee and surcharge are appropriate as a matter of law. Accordingly, as to counts II and III we reverse and remand for further proceedings.

This dispute began as a disagreement between the County and residents in the Phillippi Creek Water Basin. The County wished to discontinue the use of septic systems in this area, allegedly for environmental reasons, and to compel the residents to hook up to the County’s central sewer system. In order to hook up to the central sewer system, the existing users of septic systems would be required to pay a “capacity fee” or impact fee. There was also the possibility that they would be required to pay an additional surcharge. The local residents did not want to give up their septic systems or pay the additional charges, so they created SOSS and filed a lawsuit against the County.

The initial lawsuit was filed in April 2002. It was amended only once, in July 2002. The lawsuit contained allegations to permit a class action, but that status was never achieved. The amended complaint contained four counts. In count I, SOSS argued that the County lacked the power to compel the residents to connect to the central sewer system. Count II argued that the County was imposing a capacity fee of $1642 on each “equivalent dwelling unit” as an impact fee, but was in fact intending to divert at least $10,000,000 of the revenue from this capacity fee to repay existing indebtedness. This count argued that the County thus intended to use the proceeds of the impact fee to improperly benefit existing customers, rather than to absorb the impact of new hookups. In count III, SOSS explained that the County planned to impose an additional surcharge fee that could be as little as zero dollars or as much as $17.50 per month per resident. It asked that the court declare that the County could not legally impose this surcharge fee exclusively against the new users because the County intended to fund a sewer system capital improvement program for the whole county. Finally, in count IV, SOSS challenged the financing and implementation of a program that helped some residents obtain reimbursement for their mandated connections to the central sewer system.

The County immediately responded to this amended complaint by filing a combined motion to dismiss and motion for partial summary judgment. As SOSS’s name would suggest, the primary emphasis of the legal arguments by both sides focused on count I and the County’s power to require the residents to join the central sewer system. SOSS lost that argument and has elected not to challenge that ruling on appeal. Likewise, it has abandoned its efforts to challenge the reimbursement program. Thus only counts II and III remain at issue.

The crux of the dispute in this case involves the proper imposition of impact fees as a means to finance capital improvements to a Tocal government’s infrastructure. Impact fees have been defined as “scheduled charges applied to new development to generate revenue for the construction or expansion of capital facilities located outside the boundaries of the new development (off-site) that benefit the contributing development.” Ronald H. Rosenberg, The Changing Culture Of American Land Use Regulation: Paying For Growth With Impact Fees, 59 S.M.U. L.Rev. 177, 206 (Winter 2006) (citing James C. Nicholas, Arthur C. Nelson & Julian C. Juergensmeyer, A Practitioner’s Guide to Development Impact Fees 1-2 (1991)).

In determining whether the imposition of an impact fee is constitutionally permissible, the Florida Supreme Court has adopted the “dual rational nexus test,” which requires the local government to demonstrate “a reasonable connection, or rational nexus, between the need for additional capital facilities and the growth in population generated by the subdivision” and “a reasonable connection, or rational nexus, between the expenditures of the funds collected and the benefits accruing to the subdivision.” St. Johns County v. N.E. Fla. Builders Ass’n, 583 So.2d 635, 637 (Fla.1991) (citing Hollywood, Inc. v. Broward County, 431 So.2d 606, 611-12 (Fla. 4th DCA 1983)).

In Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976), the supreme court observed, “In principle ... we see nothing wrong with transferring to the new user of a municipally ownedwater or sewer system a fair share of the costs new use of the system involves.” Id. at 317. The supreme court thus approved a local government’s use of an impact fee to raise “expansion capital” for a sewer system “by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion” when expansion is “reasonably required” and “the money collected is limited to meeting the costs of expansion.” Id. at 320.

When the supreme court issued its opinion in Contractors & Builders Ass’n, 329 So.2d 314, the Florida Statutes encouraged and empowered local governments to adopt comprehensive plans for development, but did not mandate the same. See §§ 163.160-.315, Fla.' Stat. (1969). In 1985, however, many of the permissive provisions of this chapter were repealed and were replaced with sections mandating the adoption of comprehensive plans and development in accordance with those plans. See ch. 85-55, §§ 6,19, 20, Laws of Fla. In 1986, the legislature adopted what is currently section 163.3177(10)(h), Florida Statutes (2005), establishing the legislative intent that “public facilities and services needed to support development shall be available concurrent with the impacts of such development.” See ch. 86-191, § 7, Laws of Fla. The current version of this statute now explicitly refers to section 163.3180, which is entitled “Concurrency,” and specifically provides that sanitary sewer systems are “subject to [this] concurrency requirement on a statewide basis” and that “sanitary sewer ... facilities shall be in place and available to serve new development no later than the issuance by the local government of a certificate of occupancy or its functional equivalent.” § 163.3180(l)(a), (2)(a).

These extensive comprehensive planning requirements encourage communities to anticipate development and build the infrastructure before development, rather than allowing it to lag behind development. On the other hand, they make it more difficult to distinguish between the costs of existing facilities meeting present use and the costs of expansion related solely to future'use.

In addition, the County points out that often the financing for additional capital-expansion projects is contingent upon the reduction of existing indebtedness. This too is a factor making a clear distinction between existing costs and expansion costs difficult or perhaps impossible, particularly in the context of an ever-expanding infrastructural system such as a sewage and wastewater management system.

COUNT II: THE CAPACITY FEE

Count II alleges that the impact fee is anticipated to generate $23,000,000 from the residents in the Phillippi Creek Water Basin and that the County “intends to divert $10,000,000 of that total collection and' apply that amount to reducing [the County’s] existing sewer system indebtedness.” SOSS claims that the $13,000,000 payment is all that is required for the “Septic System Replacement Program” and that the remaining $10,000,000 is a payment above and beyond these residents’ fair share of the cost of any expansion of the sewer system required by the new users. SOSS has also suggested that the current system has excess capacity sufficient to meet the needs of all current Phillippi Creek residents and thus no further capital expansion would be required.

The County has disputed some of the factual allegations made by SOSS, particularly those related to how it intends to spend the funds raised by the capacity fee. The record does not clearly establish whether the County will be required to build new facilities to accommodate these new users or what the cost of such new facilities would be. The County has specifically asserted that payment of existing debt is necessary to expand the sewer system and thus the impact fee is appropriately applied to this expense. Some of the County’s submissions suggest that the capacity fee may not be intended to act as a traditional “impact fee” to pay for expansion but is instead an attempt to determine the new users’ pro rata share of the costs of existing capacity. Indeed, in its brief, the County now refers to the charge as a “recoupment fee” or a “user fee.”

Count II alleges a facially sufficient claim for injunctive and declaratory relief, and thus the circuit court could not have granted the judgment on this count for failure to state a claim. Further, the record contains disputed issues of material fact precluding summary judgment on this count.

Both sides filed lengthy affidavits that are factually complex regarding the need for this capacity fee, the calculation of this fee, the anticipated revenue from the fee, and the County’s understanding of where that revenue can or will be spent. Although the record does not conclusively establish how this impact fee was calculated and the intentions regarding the specific allocation of any revenues received from the fee, the parties have presented general arguments regarding the proper calculation of the fee or the proper use of revenue collected from the fee.

SOSS argues that the capacity fee cannot be used to pay off any existing County debt or to pay for expansion other than in an amount that directly and strictly relates to the impact of these new users. The County, however, points out that modern financing requires the payment of existing debt to permit further expansion. The County notes that other states have expressly recognized that impact fees can be used to pay the debts incurred in building capacity for the future. See, e.g., Airwick Indus., Inc. v. Carlstadt Sewerage Auth., 57 N.J. 107, 270 A.2d 18 (1970). In addition, the County argues that concurrency now requires that an expansion of the sewer system must include a provision for excess capacity to ensure the efficient use of capital and to ensure that the County can accommodate new growth as it occurs.

Given the concurrency requirements now in place and the modern requirements for financing capital expansion as discussed above, we are inclined to reject SOSS’s arguments that the revenues from an impact fee can never be used to pay existing indebtedness or that the amount of the impact fee cannot be based in part upon a recognized need for future capacity. Nevertheless, the supreme court’s distinction between the proper use of impact fees to finance reasonably anticipated costs of expansion versus the prohibited use of such fees to pay for the existing system as a whole remains in place. See Contractors & Builders Ass’n, 329 So.2d at 320-21; St. Johns County, 583 So.2d 635, 637-39; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 134-36 (Fla.2000).

This distinction requires the circuit court to carefully review the calculation of the impact fee and the intended expenditures from the revenue generated by that fee to assess whether the fee meets the dual rational nexus test. That is, the circuit court must assess whether the County has met its burden of demonstrating a reasonable connection or rational nexus between the need for additional capital facilities because of the anticipated new users of the system who will pay this fee, and a reasonable connection or rational nexus between the intended expenditures of the collected funds and benefits accruing to those new users. See Aberdeen at Ormond Beach, L.P., 760 So.2d at 134. Because disputed issues of material fact remain in this record as to the calculation of the fee and the intended use of the revenues from the fee, summary judgment on this count was improper.

COUNT III. THE ADDITIONAL SURCHARGE

As explained earlier, count III alleged that the County was planning to impose a surcharge and asked the court to enter a declaratory judgment barring such an ordinance. The County moved to dismiss or for summary judgment exclusively on the theory that the complaint was premature until the surcharge was calculated and imposed. It argued that SOSS had no right to seek judicial relief unless and until the County passed an ordinance.

After the amended complaint and the County’s motion were filed, the County apparently enacted Resolution No. 2003-285, which is described in the record as imposing a $165 per year surcharge. The County discussed this resolution at the hearing on its motion to dismiss and argued that it was legal and proper. SOSS argued that many factual issues remained and that a hearing on the surcharge was required, The trial court entered an order that granted the motion without further explanation.

Our difficulty, of course, is that count III does not specifically challenge the subsequently enacted Resolution No.2003-285, and the County’s basis for requesting summary judgment did not involve the propriety of that resolution. Even if the grounds contained in the County’s motion had merit, an order dismissing the amended complaint because it challenged only a possible future resolution should have resulted in an order allowing SOSS to file an amended complaint challenging Resolution 2003-285. We thus reverse the order dismissing count III in order to give SOSS the opportunity to amend its complaint to make specific legal challenges to the contents of Resolution 2003-285.

Reversed and remanded for further proceedings.

SALCINES and STRINGER, JJ., Concur.

      . Section 163.3180 was enacted in 1993. See ch. 93-206, § 8, Laws of Fla.

      . This test appears to afford some deference to the local legislative body by relying on terms like "reasonable” and “rational,” although the application of the standard in the various cases suggests something more stringent than a "rational basis”-type review. Although the issue has not yet been raised, this deference might also limit the remedies available to SOSS if the impact fee calculated by the County is deemed unreasonable. Cf. Gargano v. Lee County Bd. of County Comm’rs, 921 So.2d 661, 668 (Fla. 2d DCA 2006) (citing Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438, 445-46 (1943)).


text:
    Joyce KWIECINSKI, Appellant, v. John K. RENKE, II, Appellee.
    No. 2D06-2531.
    District Court of Appeal of Florida, Second District.
    April 27, 2007.
    Rehearing Denied June 15, 2007.
    Joyce Kwieeinski, pro se.
    John K. Renke, II, pro se.
   PER CURIAM.

We affirm without discussion the final judgment awarding attorney’s fees and costs to John K. Renke, II. We note, however, that Renke concedes that the trial court orally ruled that Joyce Kwieeinski is entitled to costs incurred in her prior, successful appeal and that such ruling has yet to be reduced to a written order.

Affirmed.

WHATLEY, STRINGER, and CANADY, JJ., Concur.


author: PEE CUEIAM.

text:
    Christopher Anthony CZAPLA, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3090.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Rehearing Denied June 8, 2007.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.
   PEE CUEIAM.

Christopher Anthony Czapla appeals his conviction for felony child abuse of his son. Because, as a matter of law, the conduct of Czapla was not reasonable corporal punishment by a parent, we affirm the conviction.

Czapla was charged following an incident with his teenage son. According to the son’s testimony, he slept late one weekend morning, a day on which he had agreed to rake a neighbor’s yard. Czapla awoke the son, but the son explained it was too late to get started on the yard work because he was required to be somewhere else by mid-morning. Later that morning, Czapla confronted the son about not doing the yard work as agreed and, an argument ensued. Then, according to the son, Czapla punched the son in the head, pushed him into an adjoining room and onto the floor, and, while the son was on the floor, kicked the son in the side. Later that day, the son met with his mother, who is estranged from Czapla. His mother contacted the police. At the time of the incident, the son was 15 years old and weighed at least 160 pounds.

Czapla was charged with a violation of section 827.03(1), Florida Statutes (2004), child abuse without causing great bodily harm, permanent disability or permanent disfigurement. The case was tried by the court without a jury. The defense moved for judgment of acquittal at the close of the State’s case-in-chief, and again at the close of all evidence, arguing that, to obtain a conviction for felony child abuse, the State must prove some significant harm to the child. After much discussion about the admittedly complex law regarding child abuse when committed by a parent or one standing in loco parentis, the trial court denied Czapla’s motion. Czapla was thereafter adjudicated guilty of the charged offense.

Generally, “an appellate court will not reverse a conviction that is supported by competent, substantial evidence.” Johnston v. State, 863 So.2d 271, 283 (Fla.2003). “If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006). However, a judgment of acquittal is proper if the State fails to prove a prima facie case of guilt when the evidence is viewed in the light most favorable to the State. We review court rulings on motions for judgment of acquittal de novo. Johnston, 863 So.2d at 283; Reynolds, 934 So.2d at 1145.

Section 827.03(1) provides that “a person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree.... ” The statute defines “child abuse,” as follows:

(1) “Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

§ 827.03(1), Fla. Stat. (2004). The legislature has not exempted parents from prosecution under this statute. See Raford v. State, 828 So.2d 1012, 1019-1020 (Fla.2002), and State v. McDonald, 785 So.2d 640, 647 (Fla. 2d DCA 2001).

In Raford, the Florida Supreme Court considered an inter-district conflict regarding whether a parent or one acting in loco parentis could claim immunity from prosecution for simple child abuse. The Court observed that “[c]ourts and legislative bodies have repeatedly recognized the difficulty in delineating a precise line between permissible corporal punishment [by a parent] and prohibited child abuse,” and that “this difficult task is principally a legislative function, better left to the Legislature.” Id. at 1020-1. The Raford court held that “a parent or one standing in loco parentis has no absolute immunity and may be convicted of the lesser offense of felony child abuse under section 827.03(1).” Id. at 1021 (footnote omitted). The Court did recognize that “a parent may assert as an affirmative defense his or her parental right to administer ‘reasonable’ or ‘nonex-cessive’ corporal punishment, i.e., a typical spanking, in a prosecution for simple child abuse.” Id. at 1020.

Corporal punishment or corporal discipline is not defined in chapter 827. However, section 39.01(30)(a)4, Florida Statutes (2004), provides:

4. Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries....

A list of injuries ranging from “drowning” to “[significant bruises or welts” is then set forth. This section provides one of several definitions of “harm” for the purposes of Chapter 39, Florida Statutes, a chapter which governs the child protection system in Florida and which establishes the bases of and procedures for the removal of children from parental custody. The courts in Raford and McDonald have found guidance in the definition of “corporal discipline” contained in section 39.01(30)(a)4, when reviewing a conviction, under chapter 827, for child abuse by a parent who has claimed to have engaged in corporal discipline. Raford, 828 So.2d at 1018-1019, and McDonald, 785 So.2d at 646. We find the first sentence of section 39.01(30)(a)4 to be useful as well in determining the bounds of “reasonable” or “no-nexeessive” corporal discipline. The sentence provides that harm can occur from: “Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury.” Further, we conclude that section 39.01(30)(a)4 should be read in pari materia with the definition of child abuse given in section 827.03(1), which provides in part that child abuse includes an “intentional act that could reasonably be expected to result in physical or mental injury to a child.... ”

As we read Raford, if a parent establishes the affirmative defense of reasonable parental corporate punishment, the considerations under section 827.03(1) are modified and the offense that may be sustained depends directly upon the type of injury sustained by the child. In Judge Altenbernd’s opinion in State v. McDonald, quoted with approval by the supreme court in Raford, 828 So.2d at 1019, he explained that

if a parent can be charged with the misdemeanor offense under section 827.04 when a spanking results in significant welts, the legislature intended more serious beatings that do not result in permanent disability or permanent disfigurement to be treated as simple child abuse under section 827.03(1). This reserves aggravated child abuse to cases involving parental discipline that results in great bodily harm or permanent disabilities and disfigurements or that demonstrates actual malice on the part of the parent and not merely a momentary anger or frustration.

785 So.2d at 646; see also King v. State, 903 So.2d 954, 955 (Fla. 2d DCA 2005)(“spankings that result in ‘significant bruises or welts’ do not rise to the level of felony child dbuse, which requires more serious beatings that do not result in permanent disability or permanent disfigurement”), rev. denied, 837 So.2d 410 (Fla. 2003). If the parent fails to establish the affirmative defense of reasonable parental corporal punishment, section 827.03(1) is applied to the parent as to any other defendant.

Czapla argues on appeal that, under Raford, the parental corporal punishment must be sufficiently serious to cause injury greater than “significant bruises or welts” to constitute simple felony child abuse under section 827.03(1). Czapla further argues that, because the State did not prove that the son sustained more than significant bruises or welts, the conviction for child abuse cannot be sustained.

The case at bar differs from the typical case where the defense of reasonable corporal discipline is raised, however, because here Czapla did not administer a spanking or other typical form of parental corporal punishment to his son. As noted, the injuries listed in section 39.01(30)(a)4a-k include injuries, such as burns and drowning, which clearly cannot result from spanking. Thus, it is apparent that, when the legislature enacted the substantial revisions to chapter 39, the legislature must have intended “corporal discipline” to include punitive actions beyond spanking and therefore, we are construing Czapla’s conduct as corporal discipline.

On the basis of the plain meaning of the controlling statutory law, however, we reject Czapla’s argument that his conduct was reasonable, and hence permissible corporal discipline by a parent, simply because the son did not sustain more than significant bruising or welts. Czapla did not show that he employed reasonable corporal discipline under the circumstances. Czapla’s act in kicking his son while the son was laying on the ground was an “intentional act that could reasonably be expected to result in physical or mental injury” to the son, see section 827.03(1), Florida Statutes, and was an act that was “likely to result in physical injury” to the son. See § 39.01(30)(a)4. Thus, Czapla failed to establish the affirmative defense of reasonable parental corporal punishment. See also Julius v. State, 953 So.2d 33 (Fla. 2d DCA 2007). Because, given the form of discipline used, intentionally kicking a child who is lying on ground, Czapla’s conduct was, as a matter of law, not reasonable corporal discipline, it is not necessary for us to consider whether there was harm actually sustained by the child. Accordingly, we AFFIRM Czapla’s conviction for child abuse.

BROWNING, C.J., WOLF and VAN NORTWICK, JJ., concur.

      . Chapter 39, Florida Statutes, was substantially revised by chapter 98-403, Laws of Florida. The revisions included the definition of "harm" found in section 39.01(30), Florida Statutes (2004). Ch.98-403, § 20, Laws of Florida. See the discussion of these statutory revisions in Raford v. State, 828 So.2d at 1016-20.


author: RAMIREZ, J.

text:
    Mitchell INSIGNARES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1549.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.

      Richard L. Rosenbaum, Ft. Lauderdale, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   RAMIREZ, J.

Mitchell Insignares appeals the circuit court’s five-page order entered after an evidentiary hearing, denying his motion for post-conviction relief pursuant to his sworn Rule 3.850 motion, in which he raised sixteen issues. We affirm in all respects and discuss only the most salient points.

Insignares was charged by information with attempted first degree murder with a deadly weapon, criminal mischief, discharging a firearm in public, possession of a firearm by a convicted felon, armed robbery, and attempted armed robbery. He was convicted of attempted first degree murder with a firearm, criminal mischief, and discharging a firearm in public, and sentenced to 40 years on the attempted first degree murder with a firearm count, five years on the criminal mischief count, and one year on the discharging a firearm count. He was also sentenced to a 20-year minimum mandatory as a habitual felony offender. He was thereafter re-sentenced on all counts to 27 years on the attempted first degree murder with a firearm count, five years on the criminal mischief count, and five years on the discharging a firearm count. The entry of sentence on the discharging a firearm count was suspended. He was also sentenced to a 20-year minimum mandatory for possession of a firearm.

Insignares appealed. We affirmed in all respects except for the criminal mischief conviction, which was reversed. See Insignares v. State, 847 So.2d 1063 (Fla. 3d DCA 2003). The trial court vacated Insig-nares’ verdict, judgment, and sentence for the criminal mischief offense. Thereafter, he entered a plea of guilty to the offenses of possession of a firearm by a convicted felon and attempted armed robbery and was sentenced to 12 years on both counts with a three-year minimum mandatory as to the possession of a firearm count and ten-year minimum mandatory as to the attempted armed robbery count.

The first issue Insignares raises on this appeal is whether his trial counsel was ineffective for failing to request a mistrial after the jury was informed of all the charges against him. His counsel, Theodore Mastos, moved to sever Counts V and VI on the day of trial, the trial court deferred ruling, and the case proceeded with jury selection. After voir dire, the trial court severed the charges, and all parties agreed that the trial court would give curative instructions to the jury about only considering Count I, II, and III. When the jury returned, the trial court stated:

So at this time, you know that you have been sworn to try the case of the State ' of Florida versus Mitchéll Insignares. You know this is a criminal case. And the defendant in this case is charged with first degree — attempted first-degree murder, criminal mischief, and discharging a firearm in public.
I think that during the voir dire, I might have said something about armed burglary. That is not what he is charged with.
He is charged with attempted first-degree murder. You understand? There was a firearm allegedly involved, et cet-era. But you will hear the circumstances of it when you hear the testimony.

At the evidentiary hearing, Mastos testified to several strategic reasons for not moving for a mistrial at that point. The trial court found that counsel’s conduct was within the range of reasonable professional assistance. The State has suggested that had Mastos moved to sever earlier, it would have sought to introduce the armed robbery as Williams rule evidence. Part of the problem was that during jury selection, the trial court had not yet ruled on the motion to sever. Thus, the delay in severing the count was an issue that could have been raised on direct appeal and is not cognizable under rule 3.850. See, e.g., Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995) (stating that a defendant on postcon-viction may not “counter the procedural bar” on issues that were or could have been raised on direct appeal by “coueh[ing] his claim ... in terms of ineffective assistance of counsel in failing to preserve or raise those claims”).

Even though trial counsel moved for a mistrial based on a sleeping juror, Insig-nares argues that his attorney was ineffective for failing to request a colloquy with the sleeping juror. We find no merit to this point. The record demonstrates that defense counsel alleged that the juror was nodding during the closing and the reading of the jury instructions. There is no allegation that she nodded through the presentation of evidence during the trial. Additionally, both the defense and the court stated that the juror was nodding or falling asleep but still awake. Thus, the allegation that there was a sleeping juror is not supported by the record.

Insignares next argues that Mastos failed to present an alibi witness, Rosa Sanchez, at trial although Insignares had told Mastos of the witness. This claim was rejected by the trial court based on credibility of the witnesses that testified as to this issue, a finding supported by the record. The trial court properly held that Mastos was not ineffective in presenting alibi witnesses. Stephens v. State, 748 So.2d 1028, 1034-35 (Fla.1999).

Finally, Insignares argues that it was fundamental error to sentence him to the 20-year mandatory minimum for purposes of a firearm, because no special interrogatory verdict form was used. Insig-nares raises this issue for the first time on appeal. This sentencing issue, however, cannot be determined based on the record before us which does not contain the verdict form and sentencing transcript. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)(without a record of the proceedings below, an appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory). We thus decline to review Insig-nares’ sentencing issue without prejudice to him to raise the issue before the trial court. We also decline to discuss the remaining issues on appeal because we find them to be meritless.

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Lawrence TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2759.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.
    Rehearing Denied June 20, 2007.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Lawrence Terrell appeals a judgment for possession of cocaine, entered after the trial court denied Mr. Terrell’s dispositive motion to suppress. The cocaine was seized during a search incident to Mr. Terrell’s arrest. Although from the record it is a very close question whether the officers had probable cause to arrest Mr. Terrell for disorderly conduct, see Barry v. State, 934 So.2d 656, 657-58 (Fla. 2d DCA 2006), the officers clearly had probable cause to arrest him for filing a false report, see § 817.49, Fla. Stat. (2005). We therefore affirm the judgment and sentence.

Affirmed.

WHATLEY and DAVIS, JJ., Concur.