author: KAHN, J.

text:
    Ronald L. ROTUNNO, Appellant, v. BOARD OF PROFESSIONAL ENGINEERS, Appellee.
    No. 1D06-3908.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.
    Edwin A. Bayo and Andy V. Bardos of Gray Robinson, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   KAHN, J.

In this administrative appeal, Ronald Rotunno seeks review of a final order entered by the Florida Board of Professional Engineers (Board). The Board rejected Rotunno’s argument that section 471.013(l)(a)2., Florida Statutes (2005), applies to Rotunno and would allow Rotun-no’s licensure by endorsement in Florida as a professional engineer. We affirm the Board’s order because it is a correct interpretation of the controlling statute.

Rotunno graduated from Pennsylvania State University in 1979 with a Bachelor of Science degree in transportation technology and currently holds professional engineer licenses in New Jersey, Pennsylvania, Maryland, and Delaware. He sought li-censure by endorsement in Florida pursuant to sections 471.015(3)(a) and 471.013(l)(a)2., Florida Statutes. The Board denied Rotunno’s application for li-censure by endorsement, finding as a matter of uncontested fact that he does not have “an engineering degree or a technology degree from a Florida state university.”

The Florida Legislature has established the requirements for licensure by endorsement in section 471.015(3)(a). Among those requirements is the directive that any applicant for a professional engineering license qualify under Florida law to take the necessary examinations. See § 471.015(3)(a), Fla. Stat. Rotunno argues that he does qualify to take the examination pursuant to a specific provision of section 471.013(l)(a)2., Florida Statutes. This provision provides that the applicant must be “a graduate of an approved engineering technology curriculum of 4 years or more in a school, college, or university within the State University System, having been enrolled or having graduated prior to July 1, 1979.” Rotunno has taken the position that the Legislature intended to approve any applicant who could produce an appropriate degree from any university within any system of state universities in the United States. The Board construed the language as limited to an engineering degree or technology degree from “a Florida state university.”

Because the statute before us is not ambiguous, we are bound by its plain meaning. See, e.g., State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1073 (Fla.2006); Cassoutt v. Cessna Aircraft Co., 742 So.2d 493, 495 (Fla. 1st DCA 1999). Want of ambiguity here follows from the Legislature’s use of a definite article, “the,” followed by capitalization of the words “State University System.” These drafting techniques compel a finding that the Legislature had in mind only the State University System of Florida.

Use of the phrase “State University System” in Florida parlance completely belies appellant’s suggestion that the Legislature intended the phrase only in its generic sense so that it might apply to any state institution anywhere in the country. Our constitution provides:

STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.

Art. IX, § 7(b), Fla. Const. Because Mr. Rotunno has not obtained the requisite education for licensure by endorsement, the Board properly denied the application.

AFFIRMED.

ALLEN and DAVIS, JJ., concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Ralph Marvin NOLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5819.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Ralph Marvin Nolin appeals his judgment and sentence for possession of cannabis with -intent to sell, manufacture, or deliver. Mr. Nolin entered a no contest plea, reserving the right to appeal the trial court’s denial of his dispositive motion to suppress the cannabis seized from a dresser in his home by police during a warrant-less search. At the suppression hearing, the State failed to prove that the search was a “precautionary sweep” of the space immediately adjoining the place where Mr. Nolin was secured or that the officers had an articulable basis for a broader “protective1 sweep” as explained in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Accordingly, we reverse the denial of the motion to suppress and remand with instructions to discharge Mr. Nolin on this charge.

At the hearing on the motion to suppress, Largo Police Officer Rogers testified that he responded to the Nolins’ house based on a domestic disturbance dispatch, issued in response to a neighbor’s telephone call. When Officer Rogers got out of his police car, he heard the slamming sound of either exterior or interior doors coming from the area of the Nolins’ house. He went through the Nolins’ open side gate and entered their backyard. There, the officer did not see a person but did see a large amount of broken glassware littered on the concrete walk; the glassware appeared to have been broken that evening. From the backyard, Officer Rogers looked into a screened porch where “everything looked fine” and into the Nolins’ kitchen, observing “that [a] microwave had been thrown on the floor.”

A short time earlier, when two other officers, Kraft and Iskra, first arrived, they heard incoherent screaming, which they believed came from male and female voices; however, when they knocked and announced their presence, all sounds from within ceased. The officers found the “sounds” of this silence disturbing. Because these other officers had been unsuccessful in making contact with anyone inside the home, all three officers decided to enter the home and do a welfare check. They entered through an unlocked screen door to the porch where Officer Rogers used his “multipurpose tool” to unlock the back door. According to Officer Rogers, “When we opened the door there was a female that was in front of us and down the hall we saw a male exit what appeared to be one room at the end of the hall run towards the front, what would be the front door of the residence.” A baseball bat was leaning on the wall next to the front door.

During cross-examination, Officer Rogers agreed that when he told the man, Mr. Nolin, to stop, he did so. Officer Rogers agreed that Mr. Nolin came back, sat on the couch, complied with the officers, and did not attempt to get the baseball bat. Finally, Officer Rogers agreed that he had no reason to expect there to be any firearms in the house.

Officer Kraft testified that she and her partner, Officer Iskra, were dispatched to a domestic disturbance at the Nolins’ house. While they were talking to the complainant, she heard sounds of “yelling and screaming and crashing and thuds” coming from the Nolins’ house. She and her partner then knocked and banged on the Nolins’ front door. As soon as the officers announced themselves, the noise stopped. After they were unable to get any response from the home’s occupants, the officers went into the backyard. Officer Kraft also observed the broken glass in the yard and the overturned microwave. Because she was still not able to get a response from the home’s occupants, Officer Kraft became concerned that someone inside was injured, and the officers entered the home in the manner described by Officer Rogers. According to Officer Kraft, the officers made contact with Mrs. Nolin “[w]hen we walked into the home — when we walked into the back lanai, we walked — there was a door to the left. We walked in and there, was a hallway and her bedroom, I do believe is right there, and she came out into the hallway when she heard that we were inside the home.” Officer Kraft testified that Officers Rogers and Iskra encountered the male, Mr. No-lin.

Subsequently, Officer Iskra performed a nonconsensual protective sweep of the residence. Officer Kraft testified that a protective sweep is done any time law enforcement enters someone’s home. She explained, “We do a protective sweep to make sure that nobody is going to jump out of any closets at us, nobody is hiding behind the bed in a bedroom, just so we— it’s for our safety and for the other people’s safety in the home as well.” According to Officer Kraft, a protective sweep is based on the assumption that “[w]e always think that there is more than what we see in front of us inside of a home.” Officer Kraft testified that Officer Iskra found the cannabis on a dresser during the protective sweep. Unfortunately, Officer Iskra did not testify at the suppression hearing. Thus, our record review is without the benefit of this key witness’s particularized report of the home’s configuration.

On cross-examination, Officer Kraft agreed that Mrs. Nolin was shocked to see the officers and appeared frazzled. Mrs. Nolin told Officer Kraft that she was happy that the officers were there. Mrs. No-lin did not appear to be in any physical distress. Officer Kraft’s testimony regarding Mrs. Nolin’s condition was consistent with Officer Rogers’ testimony; he testified that Mrs. Nolin “looked okay.”

Mrs. Nolin also testified at the suppression hearing. She testified that she had “a disease that makes me kind of weird. But [Mr. Nolin] had brought home some dishes that night and I get in weird moods and, you know, he was just — he brings home stuff all the time, which I usually like, and he brought home some dishes and I was just, you know.... I didn’t want to wash the dishes. I didn’t like the dishes.” Mrs. Nolin explained that in apparent response to her displeasure, her husband then went into the backyard and smashed the dishes. While Mr. Nolin was smashing the dishes, Mrs. Nolin went into their den, watched television, and went into a Xanax-assisted sleep. Mrs. Nolin testified that she “went in the other room and I gave him the silent treatment.” Mrs. Nolin was awakened when an uninvited person, Officer Kraft, entered her room and searched it. ' Mrs. Nolin testified that she was scared and told the officer that her husband was also in the home. She denied hearing the officers knocking, and she did not give the officers permission to search her home. In response to questioning from the court, Mrs. Nolin explained that her husband had been yelling when he was breaking the dishes.

The trial court denied the motion to suppress the cannabis found on the dresser. The trial court, as was its prerogative, disbelieved Mrs. Nolin’s testimony and determined that the officers had a reasonable basis to be concerned about the safety of the persons inside the home.

We begin our discussion by noting that we give deference to the trial court’s factual findings but review its legal conclusions de novo. Riggs v. State, 918 So.2d 274 (Fla.2005). Here, we find no fault with the trial court’s factual findings, but we find that these facts legally require suppression. “It is a ‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Because there was a compelling need to check on the welfare of the occupants, the officers’ initial warrantless entry into the house was lawful. See Seibert v. State, 923 So.2d 460 (Fla.2006) (holding that police may enter a residence without a warrant if there is an objectively reasonable basis to believe that there is an immediate need for police assistance for the protection of life or substantial property interests). Here, the trial court concluded that there was “ample justification for a limited protective sweep” because there had been a “long, loud and destructive disturbance at the residence”; no one from inside the residence responded to the officers; and the officers had no knowledge as to how many people were in the residence or as to the “potential threat that those excited, angry and destructive people might pose.” In other words, the silence that followed the “destructive disturbance” planted a vision of violence within the officers’ minds, and therefore, exigencies required warrantless entry to investigate. While this concern supported the initial entry and a limited sweep for officer safety, once the seed of concern planted by this silence was dispelled, there was no justification to conduct the more intrusive search that produced the cannabis. The law simply does not support the trial court’s conclusion that the facts here were those depicting a “justifi[ed]” limited protective sweep. Rather, the undisputed facts demonstrate that the search that revealed the cannabis was clearly outside the parameters authorized by Buie.

In Buie, the Supreme Court recognized two types of permissible sweeps of a residence following the arrest of a subject in a home. The first “precautionary sweep” may be performed without probable cause or reasonable suspicion and extends only to the immediately adjacent spaces to the place of the arrest, including closets, “from which an attack could be immediately launched.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. Notably, the second “protective sweep” requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. In either instance, the Supreme Court emphasized that

such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Id. at 335-36, 110 S.Ct. 1093 (footnote omitted). There is no bright line test to determine when one type of permissible sweep ends and another begins. The totality of facts of each case drives this determination. Vanslyke v. State, 936 So.2d 1218 (Fla. 2d DCA 2006).

The logic in Buie is rooted in the analogous intrusion allowed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where a nonconsensual pat down for weapons was permitted because it was “no more than necessary to protect the officer from harm.” Buie, 494 U.S. at 333, 110 S.Ct. 1093. Otherwise, the. Fourth Amendment’s prohibition against unreasonable searches applies.

At the suppression hearing, the State failed to present evidence to support the more intrusive protective type sweep of the Nolins’ home. There was no specific testimony regarding the size of the house, the furniture, the number or sizes of the rooms and closets, or any configurations; testimony even remotely regarding these concerns was confusing at best. There were also no specific factual findings on these matters. For example, there was no evidence that Mr. Nolin’s bedroom was adjacent to or near the living room where Mr. Nolin was secured and sitting on a couch. While the limited precautionary-search of the immediate area around Mr. Nolin was permissible without “articulable facts,” it is clear, even on this confusing record, that the contraband was not discovered in this area. Rather,, it was discovered as part and parcel of the “full-blown” protective sweep.

Contraband discovered in plain view during a permissible protective sweep need not be suppressed; however, “[t]o support such a search, the police officer must articulate facts sufficient to warrant a reasonable belief that the [house] harbored dangerous individuals.” Runge v. State, 701 So.2d 1182, 1185 (Fla. 2d DCA 1997) (finding that State did not justify warrantless search as a Buie sweep when police conducted search just to make sure no one else was in the apartment and without specific factual basis for believing dangerous individuals were in the apartment). Here, neither of the testifying officers identified any objective fact that led them to believe that anyone other than the Nolins, let alone an individual of dangerous propensity, was inside the home. The male and female voices heard upon arrival were consistent with the number of individuals found immediately upon entry. The neighbor did not identify, nor did the officers testify, that more than two people were inside the home. Clearly, the Nolins themselves posed no danger to the officers. However, even if this were not the case, “[t]he facts on which officers may justify a Buie protective sweep are those facts giving rise to a suspicion of danger from attack by a third party during the arrest, not the dangerousness of the arrested individual.” United States v. Colbert, 76 F.8d 773, 777 (6th Cir.1996). Moreover, under the facts of this case, the silent response to the officers’ arrival was a “lack of information [that] cannot justify the warrantless [protective] sweep in this case.” Chaves, 169 F.3d at 692.

Thus, the trial court’s finding that the officers did not know, even if technically true, how many people were actually inside the home is focused on the wrong inquiry. The relevant inquiry is whether articulable facts were proven to support the trial court’s finding suggesting there were more than the two occupants secured. The answer is clearly no. Indeed, Officer Kraft testified in conclusory fashion that the sweep was done because such “is done anytime law enforcement enters somebody’s home.” Police policy to routinely perform a protective sweep in response to a domestic call simply does not pass constitutional muster. “However, sensible as that may seem, such a protective measure [as a routine procedure] is only allowable when the officers have some reasonable grounds to suspect additional persons may be present. It cannot be justified routinely.” Newton v. State, 378 So.2d 297, 299 (Fla. 4th DCA 1979). “This is exactly the kind of ‘mere “inchoate and unparticular-ized suspicion or hunch” ’ that Buie indicates is insufficient to support a warrant-less sweep.” United States v. Chaves, 169 F.3d 687, 692 (11th Cir.1999) (quoting Buie, 494 U.S. at 332, 110 S.Ct. 1093 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868)).

Once the compliant Nolins were safely accounted for and no articulable facts presented to support the existence of other individuals, firearms or other weapons, probable cause, or reasonable suspicion of a crime, the officers had no right to further search the residence. Therefore, the protective sweep exceeded the permitted scope established by Buie. Because the State failed to meet its burden to demonstrate articulable facts to justify the necessity or extent of the warrantless protective sweep of Mr. Nolin’s home, we cannot uphold the search on that basis. No other exceptions to the warrant requirement apply in this case. Accordingly, when “considered in the context of the totality of relevant circumstances,” suppression of the physical evidence seized is required. Vandyke, 936 So.2d at 1222.

Reversed and remanded with directions to discharge Mr. Nolin on this charge.

NORTHCUTT and SALCINES, JJ., Concur.

      . Mrs. Nolin had a prescription for this medication — which she explained was for her anxiety and panic disorder.

      . We point out that while Mr. Nolin was not arrested at the time of the protective sweep, his detention on the couch causes us to apply the same Buie-type analysis.

      . - As commented by Judge Altenbernd in Range, we too note that "[w]e are not unmindful of the dangers police face daily while performing their duties.... Our paramount duty in cases such as this, however, is to determine whether the facts presented demonstrate that concern for officer safety justifies an exception to the Fourth Amendment right to be secure in one's home against unreasonable warrantless searches.” Range, 701 So.2d at 1186 (citation omitted).


author: LAGOA, Judge.

text:
    A.N. and A.N., Appellants, v. M.F.-A. and J.A., Appellee.
    No. 3D06-2094.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    John G. Crabtree, Key Biscayne; Marks & West and Evan R. Marks, Miami, for appellants.
    Roslyn L. Stevenson, Hollywood, for ap-pellees.
    Before WELLS, CORTINAS, and LAGOA, JJ.
   LAGOA, Judge.

In this proceeding, the appellants, A.N. and A.N., appeal from a final judgment dismissing their emergency petition for temporary custody of a minor child pursuant to section 751.05(3), Florida Statutes (2005). The issue presented to this Court is a narrow one of due process; therefore, we do not reach the merits of the underlying petition. However, we briefly touch upon the procedural history of the case in order to address the due process concern which requires reversal of the final judgment dismissing the petition with prejudice.

In September, 2003, the appellants filed a Verified Emergency Petition for Temporary Custody, Ex-Parte Complaint for Issuance of Writ of Habeas Corpus and Request for Minor Child to Testify Before Court. The appellants alleged that the appellees, M.F.-A. and J.A., are the adoptive parents of the minor child, J., but that J. had been living with appellants continuously since April, 1996, immediately after the appellees adopted J. In August, 2003, appellees sought to change the living arrangement, and-appellants filed the emergency petition seeking temporary custody, claiming that the appellees abandoned J. eight years earlier and that the appellants were the only parents J. had ever known.

On September 16, 2003, an evidentiary hearing was held on the petition. At the hearing, the appellants presented the testimony of J.’s pediatrician, J.’s school principal, J.A., and others, seeking to establish that the appellees had abandoned J. pursuant to section 751.05(3),, Florida Statutes (2005). Because of time constraints, the trial court continued the hearing, and appellants were unable to complete their case-in-chief.

The appellees then filed various motions, including a motion to dismiss. At a hearing on the motions, the parties agreed that a final hearing was required in order for the court to determine the issue of whether the appellees were “unfit” parents pursuant to section 751.05(3), Florida Statutes (2005), as alleged by the appellants in the original petition.

Subsequently, on August 14, 2006, the parties appeared before the trial court to conduct the final hearing on the original petition. The trial judge who had entered the previous orders was not available, and the presiding judge at the hearing was a visiting trial judge. During opening statements, the trial judge asked appellants’ counsel to proffer the evidence he would produce. At the conclusion of opening statements, the trial judge granted the motion to dismiss with prejudice and entered final judgment for appellees.

On appeal, appellants argue that it was error to dismiss the case as a matter of law after hearing only opening statements. We agree. In Sheldon Greene and Associates, Inc. v. Williams Island Associates, 550 So.2d 1142 (Fla. 3d DCA 1989), we reversed and remanded for a new trial where, after opening statements and a proffer by plaintiffs counsel of the evidence he would produce, the trial court directed a verdict for the defendant. This Court held that “it is error to direct a verdict before a plaintiff has completed presentation of his evidence.” Id. at 1143.

Similarly, in Zerillo v. Snapper Power Equipment, 562 So.2d 819 (Fla. 4th DCA 1990), the Fourth District held that the trial court erred in directing a verdict for the defendant prior to the completion of the plaintiffs case. In reaching its conclusion, the court noted:

It is fundamental that the constitutional guarantee of due process, which extends into every proceeding, requires that the opportunity to be heard be full and fair, not merely colorable or illusive.

Id. at 820 (quoting Pelle v. Diners Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974)).

The same concept applies to an involuntary dismissal. See SJS Enters., Inc. v. Cates, 547 So.2d 226 (Fla. 4th DCA 1989)(trial court could not “jump the gun” and grant a motion for an involuntary dismissal before a party has completed the presentation of the evidence). Florida Rule of Civil Procedure 1.420(b) states in pertinent part:

After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief. ...

In the present case, the trial judge dismissed the petition with prejudice based upon a proffer of testimony by the attorneys in their opening statements and prior to the completion of appellants’ case. By denying appellants the opportunity to complete their case-in-chief, the trial court denied appellants their due process. Accordingly, we find that the trial judge erred in dismissing the petition prior to the conclusion of the appellants’ presentation of evidence, and reverse the final judgment entered below. The cause is therefore remanded for an evidentiary hearing on the petition.

Our reversal shall not be construed in any manner upon remand as a comment on the merits of the underlying petition.

Reversed and remanded.

      . The appellee, J.A., is the cousin of J.'s biological mother.

      . The trial court made a temporary ruling on custody until the remainder of the evidentiary hearing could be concluded.


author: HAZOURI, J.

text:
    Sandra E. Young SCHMITT, Appellant, v. Dennis Paul MAILE, Appellee.
    No. 4D05-4591.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Jennifer Labbe of The Labbe Law Firm, P.A., West Palm Beach, for appellant.
    William G. Shofstall, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Sandra E. Young Schmitt (Mother) appeals the trial court’s order declining jurisdiction to modify a Georgia final judgment concerning the custody of her minor child with Appellee, Dennis Paul Maile (Father). We affirm.

In 2000, the Father, living in Florida at the time, filed for dissolution of his marriage to the Mother in Palm Beach County Circuit Court. The Florida court dissolved the marriage, but declined to consider child support or custody of the couple’s minor child because the Mother and the child were living in Georgia, and Georgia was the child’s home state. The Father then filed his request for child support and child custody in the Superior Court of Fulton County, Georgia.

The Georgia court entered a final judgment in the custody case on September 5, 2003, awarding sole legal custody of the couple’s minor child to the Father. On November 3, 2004, the Mother filed a First Amended Petition for Domestication and Modification in the Florida court. In her petition, the Mother alleged a substantial change in circumstances, requiring a modification in custody, and requested primary legal and physical custody of the child. Specifically, she alleged that the Father’s relocation of the child from Palm Beach County to Ames, Iowa, was not in the child’s best interest, that the Father has demonstrated a pattern of alienation, and that the Father intends to further deny her court-ordered visitation.

The Georgia final judgment was domesticated on September 15, 2005. The Father filed an answer and affirmative defenses to the Mother’s amended petition, arguing both that the Florida court should decline to exercise jurisdiction and that it is in the best interests of the child that there be no modification of the Georgia judgment. Both parties filed memoranda on jurisdiction. In open court with all counsel present, the trial court communicated by telephone with the Georgia trial judge who presided over the custody case. Subsequently, the trial court -issued an order declining to exercise modification jurisdiction under section 61.516, Florida Statutes (2005). -Specifically the order read:

THIS CAUSE, having come before this Court to determine this Court’s jurisdiction to modify the Final Judgment regarding child custody issued by the Superior Court of Fulton County, Georgia, and, in accordance with Florida Statute § 61.511, this Court having communicated by telephone with the Honorable T. Jackson Bedford, Jr., the Fulton County Superior Court Judge who presided over the custody case, which communication was held in open Court, with all counsel present, and this Court being otherwise fully advised in the premises,
IT IS ORDERED that this Court hereby declines, at this time, to exercise ■modification jurisdiction under Florida Statute § 61.516;
IT IS FURTHER ORDERED that the parties may file appropriate motions with the Georgia Superior Court requesting the Georgia Court to modify the Final Judgment or, alternatively, requesting the Georgia Court to determine whether Florida or some other State would be a more appropriate forum as discussed in Florida Statute § 61.520.

The Mother argues that the trial court erred in declining to. exercise modification jurisdiction.

However, because the Mother did not provide this court with a transcript or recording of the conversation between the Florida and Georgia courts, which gave rise to the order being appealed, the Mother has failed to demonstrate a basis for reversal in the record. In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), the Florida Supreme Court recognized: “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Id. at 1152. The Mother failed to satisfy this burden. Not only was the conversation unrecorded, but the Mother did not furnish this court with a stipulated statement of facts as a substitute for a recording pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). See Southeast Bank, N.A. v. David A. Steves, P.A, 552 So.2d 292, 293 (Fla. 2d DCA 1989) (concluding that “[wjhere there is no record of the testimony of witnesses or of evidentiary rulings and where a statement of the record has not been prepared, a judgment which is not fundamentally erroneous on its face must be affirmed”).

Applegate advises further:

Without a record of the trial proceedings, the appellate court can not 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. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

377 So.2d at 1152. An inquiry into whether a trial court erred in declining to exercise jurisdiction to modify a foreign child custody decree necessarily involves underlying issues of fact. Thus, we cannot conclude that the trial court erred in applying the law to the facts of this case.

Affirmed.

SHAHOOD and GROSS, JJ., concur.

      . The lack of a transcript or recording is compounded further by the fact that the trial court’s order does not specify why the trial court declined to exercise modification jurisdiction.


author: PER CURIAM.

text:
    Travis BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2834.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.

      Travis Brown, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ON MOTION TO ENFORCE MANDATE

PER CURIAM.

We grant Appellant Travis Brown’s motion to enforce our mandate and order the trial court to hold further proceedings consistent with our prior opinion.

On August 30, 2005, Appellant Brown filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging entitlement to 540 days of jail credit. On September 16, the trial court summarily denied the motion. While the trial court’s original order cited to a sentencing score-sheet, the trial court failed to cite or attach portions of the plea colloquy conclusively establishing that Brown waived entitlement to the alleged jail credit. We therefore reversed and remanded “for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.” Brown v. State, 925 So.2d 429 (Fla. 3d DCA2006).

Based upon our mandate, the trial court had three options: (1) issue a new order granting relief to Brown, (2) enter a new order denying relief and attaching the necessary record evidence conclusively demonstrating that Brown is not entitled to credit, or (3) conduct a hearing on the merits of Brown’s motion and issue a new order reflecting the trial court’s findings. The trial court has not proceeded on any of these options. Brown therefore has filed this motion to enforce the mandate and we ordered the State to show cause why we should not grant Brown’s motion to enforce the mandate. The State, apparently failing to recognize that the trial court’s original order on Brown’s 3.800(a) motion was reversed, merely forwarded Brown’s plea colloquy. This is insufficient because the trial court has not revisited the 3.800 motion post-reversal. We therefore grant Brown’s motion to enforce our mandate with directions to conduct further proceedings in accordance with this order.

      . The scoresheet was not, in fact, attached to the trial court’s order.


author: CASANUEVA, Judge. ALTENBERND, Judge,

text:
    UNITED CAPITAL FUNDING CORP., a Florida corporation, Appellant, v. TECHNAMAX, INC., a foreign corporation, and Lisa Bryan, an individual, d/b/a Technamax, Inc., Appellees.
    No. 2D06-2955.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2006.
    Rehearing Denied Jan. 19, 2007.

      Marie Tomassi and Jay M. Walker of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, PA., St. Petersburg, for Appellant.
    Paul W. Hitchens and Robert W. Hitch-ens of Paul W. Hitchens, P.A., St. Peters-burg, for Appellees.
   CASANUEVA, Judge.

United Capital Funding Corp. (“United Capital”) appeals the trial court’s decision to vacate the default judgment entered against Lisa Bryan, d/b/a Technamax, Inc. (“Bryan”). United Capital contends that the evidence presented by Bryan was legally insufficient to sustain a finding of excusable neglect, an element that must be met in order to set aside a default judgment. After review of the record and applicable case law, we agree.

A trial court’s decision to set aside a default judgment is reviewed for gross abuse of discretion. Benedict v. W.T. Hadlow Co., 52 Fla. 188, 42 So. 239, 241 (1906); Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004). In this case, the trial court determined that Bryan had shown excusable neglect and a meritorious defense, and the court vacated the default judgment. However, three elements must be proven for a default judgment to be set aside. The defaulting party must show: “(1) that its failure to file a responsive pleading was a result of excusable neglect; (2) that it had a meritorious defense; and (3) that it acted with due diligence in seeking relief from the default.” Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 301 (Fla. 2d DCA 2004). On appeal, both parties concede the issue of a meritorious defense, and neither party raises the issue of due diligence. Thus, the sole issue before the court is whether the trial court’s determination that Bryan demonstrated excusable neglect was a gross abuse of discretion. We conclude that it was.

The element of excusable neglect must be proven by a sworn statement or affidavit. DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998); Schauer v. Coleman, 639 So.2d 637, 638-39 (Fla. 2d DCA 1994). The burden rests on the defaulting party to prove it has a legal excuse for fading to respond to the plaintiffs complaint. See Homblower v. Cobb, 932 So.2d 402, 406 (Fla. 2d DCA 2006); Stone-Rich Props, v. Britt, 706 So.2d 330, 332 (Fla. 2d DCA 1998). In the instant case, Bryan did file a sworn affidavit with the court, but in the affidavit, Bryan failed to offer any reason for her failure to respond to the plaintiffs complaint. Since the affidavit did not address the issue of why Bryan failed to file a timely response, it was insufficient, as a matter of law, to satisfy the element of excusable neglect. See Rivera v. Dep’t of Revenue, 899 So.2d 1265, 1267 (Fla. 2d DCA 2005) (noting excusable neglect cannot be established if a party offers no facts to support a finding of legal excuse for failure to comply with the rules of civil procedure). Therefore, the trial court’s finding of excusable neglect was erroneous, and the decision to set aside the default judgment was a gross abuse of discretion.

Reversed and remanded for reinstatement of the default judgment.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion in which VILLANTI, J., Concurs.

ALTENBERND, Judge,

Concurring.

I concur in this opinion and agree that the established standard of review for this issue is gross abuse of discretion. See, e.g., Mercury Marine Indus., Inc. v. Dillon, 779 So.2d 356, 357 (Fla. 2d DCA 2000); Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 207 (Fla. 2d DCA 1990). I admit that in light of the standard for abuse of discretion announced in Cana-karis v. Canakaris, 382 So.2d 1197 (Fla. 1980), I do not have any adequate description of “gross abuse of discretion” to apply as the standard of review in a case like this. See Laura Whitmore, Abuse of Discretion: Misunderstanding the Deference Accorded Trial Court Rulings, 79 Fla. Bar J. No. 6, at 83 (June 2005). I believe we should review this case as a matter of law de novo.

As our opinion explains, a defaulting party must make a tripartite showing to set aside a default. In this case, Lisa Bryan made no showing whatsoever of excusable neglect for her failure to file a responsive pleading. She appears to have confused or intermingled the first prong, excusable neglect, with the third prong, due diligence. Her entire focus was on a claim of excusable neglect for her somewhat delayed due diligence in seeking relief from the default. Without any showing that her failure to file a timely responsive pleading was excusable, I do not believe that she presented to the trial court the predicate necessary for the trial court to have the power to exercise discretion. See Townsend v. Townsend, 585 So.2d 468, 469 (Fla. 2d DCA 1991) (reversing a modification of alimony because husband did not present proof of a substantial change, which “is a prerequisite to a trial court’s authority to exercise discretion to modify permanent alimony”); Cowie v. Cowie, 564 So.2d 533, 535 (Fla. 2d DCA 1990) (stating that until a petitioner presents evidence to surpass a minimum threshold, “the trial court does not have the authority to exercise its discretion”). Thus, while I agree with the result in this case, if I had the option I would not hold that the trial court committed a gross abuse of discretion. Instead, I would hold that it erred as a matter of law in making a discretionary decision without a legal basis in the record to authorize the exercise of discretion.


author: VAN NORTWICK, J.

text:
    Gabriel Dean WALKER, individually and as guardian for his minor child Gabriel Alexander Walker, Appellant, v. CASH REGISTER AUTO INSURANCE OF LEON COUNTY, INC., Appellee.
    No. 1D05-4321.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.

      James Garrity of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Patrick A. Raley and Jed Berman of Infantino and Berman, Winter Park, for Appellee.
   VAN NORTWICK, J.

Gabriel Dean Walker appeals an order awarding attorney’s fees and costs to Cash Register Auto Insurance of Leon County, Inc., pursuant to section 57.105, Florida Statutes, and 42 U.S.C.1988(e). For the reasons that follow, we reverse in part, affirm in part, and certify conflict with Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709 (Fla. 4th DCA 2004).

Factual and Procedural Background

Walker filed suit against Cash Register Auto Insurance', Inc. (Cash Register), after he was denied permission to take his two-year-old son into Cash Register’s restroom. Walker was at the Cash Register offices to purchase insurance, and, when he asked for access to the restroom, he was told that members of the public, including customers, were not permitted access to the restroom. Walker was told to find a restroom at a neighboring business. Before Walker could take his son to another location, his son urinated in his pants. Walker, who is an African-American, filed suit on the authority of 42 U.S.C. § 1981 seeking damages for “racial prejudice.” According to the complaint, Walker and his son “were denied the use of the Defendant’s restroom facilities that white customers of, Defendant were permitted to use. Accordingly, Plaintiffs have been denied the equal benefit of facilities afforded to and enjoyed by white citizens.” Walker sought damages for his son and himself for “mental anguish, pain and suffering, bodily injury, loss of capacity for the enjoyment of life, embarrassment, humiliation, loss of reputation, lost opportunities, and the loss of other emoluments.”

The matter proceeded to a jury trial. At trial, Walker testified as to being denied the use of the restroom on behalf of his young son and the embarrassment he suffered as a result. He testified that his son was hesitant to use a public restroom thereafter. Walker’s teenaged daughter, who was with her father at Cash Register when access to the restroom was denied, also testified that her father was pained and embarrassed by' the incident. Walker called another African-American, Ivery Guitón, who testified that, while he was allowed to use the restroom at Cash Register, he heard an employee make a derogatory remark under her breath when restroom access was requested. Another witness for the plaintiff, a former employee for Cash Register, testified that a decision was made by the office manager to restrict access to the business’ restroom to employees only, but she saw this manager give access to a white customer once. Another former employee, Margo Nicholson, who worked at Cash Register for approximately five years, testified that she once saw a white customer being granted access to the restroom.

The executive manager of Cash Register testified that several employees came to him with the request of closing the restroom to members of the public because it became too arduous to keep the lone restroom clean during the day given the volume of customers. • There was no written policy adopted. Instead, the door to the restroom was locked, and the officer manager and another employee were given keys. The employees were told that should someone other than an employee seek access to the restroom, he or she was to be told that the business did not have a public restroom. The executive manager admitted that it was probably true that employees would decide under what circumstance an exception would be made.

The office manager testified that the request to close the restroom to the public was made by several Cash Register employees, and thereafter, white as well as black customers were denied access. She agreed, though, that on an individual basis an employee could make an exception.

Walker called another former employee of Cash Register who testified that during her employment she saw some white customers being granted access to the restroom. She came to work at Cash Register approximately a year and half after Walker was denied access to the restroom.

At the close of the plaintiffs case, the trial court granted a directed verdict as to the claim made on behalf of Walker’s son. The claim of the senior Walker was to be submitted to the jury. The defense called a former employee who testified that the “general policy” at Cash Register was “just to try to limit the use of customers using the bathroom, primarily because they abused their right and made a very large mess of a very, very small room, and made it very difficult for employees — all of which that was to be used for primarily— difficult to maintain.” The witness added that Cash Register could serve between 100 and 200 people per day. While at Cash Register, he granted an exception to the restroom policy when he allowed an African-American access; she was approximately eight months pregnant and had been waiting in the Cash Register offices a long time.

The jury returned a verdict in favor of the defendant. Thereafter, the trial court took up the motion for attorney’s fees and costs filed by Cash Register. By this motion Cash Register sought fees as a prevailing party under 42 U.S.C. § 1988(b), which authorizes fees to the prevailing party in an action filed pursuant to 42 U.S.C. § 1981. Cash Register also sought to recover attorney’s fees and costs from Walker as well as plaintiffs’ counsel pursuant to section 57.105(1), Florida Statutes.

At the conclusion of the hearing on the motion for attorney’s fees and costs, the trial court granted the motion explaining:

I’m going to grant the defendant’s motion for costs and fees under two theories. One, under 42 U.S.C.1988, I believe, the prevailing party is entitled to an award of fees. And I don’t think that failure to make such a claim in the answer is a bar to awarding the fees. I’m also going to grant 57.105 fees. I do find that that case was utterly frivolous. I think the case was unreasonable. It was without foundation. And quite frankly, I think the case was absurd. This was a man who was claiming severe mental anguish because his two-year-old son. wet his pants after he couldn’t go to the bathroom. First of all, that’s what two-year-olds do, they wet their pants. If you’re taking a two-year-old someplace, you' pretty much have to take something with you or make provisions for appropriate stops.
And then during the testimony about these damages he suffered, his daughter was so coached, so obviously coached she couldn’t even tell you what humiliation was. She said her father had been completely humiliated by the process, by the circumstance and then had no idea what humiliation meant.
To tell you the truth, this was one of the most absurd cases I’ve seen. And surely the plaintiff nor his son suffered. They didn’t suffer any kind of economic damages. They didn’t have any medical expenses, no property damages. ‘ They, quite frankly, didn’t even have damages for washing that little boy’s underwear. So I am going to grant fees under 1988 as well as 57.105.

In its written order, the lower court found that the plaintiff, “and certainly his attorney,” knew or should have known that a cause of action for emotional damages was not supported by the material facts. More particularly, the lower court stated in the written order:

Plaintiffs counsel should have known that a claim for damages on behalf of a two year-old child who wet his pants did not present a valid claim for mental anguish. That a two year-old child accompanying a parent on a day of errands could wet his pants is so common in occurrence that an award of damages for such an incident would be patently absurd and not sustainable. A claim for the emotional damages for having to endure the anxiety and emotional trauma of observing your two year-old child wet his pants is not a valid claim. That is what two year-old’s do: When it’s time to go, they go. A jury of reasonable people could not have found that a parent would be humiliated by such an occurrence.

On appeal, Walker argues that an award of attorney’s fees and costs under section 57.105(1) is improper because Cash Register failed to give 21 days’ notice as required by section 57.105(4), which provides that a

motion by a party seeking sanctions under this section must be served but may not be filed or presented to the court unless, within 20 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Further, Walker asserts on appeal that attorney’s fees should not have been awarded because the instant case was not frivolous, irrespective of the trial court’s personal views about the case. Finally, Walker argues that, because Cash Register never specifically pled entitlement to fees under 42 U.S.C. § 1988, fees were not awardable in the instant case, citing Stockman v. Downs, 573 So.2d 835 (Fla.1991). He adds that simply losing a civil rights case does not render the case patently frivolous and a civil rights plaintiff is not at risk of owing fees 'to the opposing party unless the case is patently frivolous. See Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

Section 57.105(1)

A trial court’s award of section 57.105 fees is reviewed pursuant to an abuse of discretion standard. See Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423 (Fla. 2d DCA 2002). Generally speaking, attorney’s fees statutes should be strictly construed. See, e.g., Dade County v. Pena, 664 So.2d 959 (Fla.1995).

Section 57.105 authorizes an award of attorney’s fees to be paid in equal measure by a losing party and that losing party’s counsel when counsel knew or should have known that a claim or defense when initially presented or before trial was not supported by the material facts necessary to support such a claim or defense or would not be supported by the application of the controlling law to such facts. Previously, section 57.105 allowed for the award of fees when there was a complete absence of justiciable issue of either law or fact raised by the losing party. In 1999, the statute was amended to allow for an award of attorney’s fees when a claim, pleading or other filing — as opposed to the entire case — is without merit. See Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414 (Fla. 1st DCA 2002); Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003).

. Subsection (4) of section 57.105 provides a “safe harbor” from the extended reach of the revised statute. This subsection provides that a “party” seeking sanctions under this statute must first give the opposing party notice of the intent to seek such a sanction so that a “challenged paper, claim, defense, contention, allegation, or denial” might be corrected or withdrawn. This subsection has been construed as not applying where a court orders 57.105 sanctions on its own motion. See Schmigel v. Cumbie Concrete, 915 So.2d 776 (Fla. 1st DCA 2005).

The safe harbor provision of subsection (4) became effective July 1, 2002. See Ch. 2002-77, § 1-2, at 908-09, Laws of Fla. The primary purpose of section 57.105(4) is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004).

In Ganz v. HZJ, Inc., 605 So.2d 871 (Fla.1992), the supreme court held that a claim for attorney’s fees on the authority of section 57.105 need not be pled before the conclusion of a case. The Ganz court explained:

It is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney’s fees under section 57.105 before the case is ended. We agree with the Third District’s observation in Autorico, Inc. v. Government Employees Insurance Co., 398 So.2d 485, 487-88 (Fla. 3d DCA 1981):
There is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979). Indeed, we think it is best to presume good motives on the part of one’s adversary even on what appears to be an open and shut case. It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause, and, if so, to file an .appropriate motion, as here, seeking an entitlement to said attorney’s fees under Section 57.105, Florida Statutes (1979).

605 So.2d at 872-873. Ganz, however, was decided before subsection (4) was added, and it is not evident that it can be reconciled with subsection (4).

Cash Register has argued on appeal that the safe harbor provision is inapplicable here because the trial court awarded attorney’s fees on its own motion. See Schmi-gel, A review of the record, however, clearly shows that this was not the case. Nevertheless, the order is affirmable on another basis. See Robertson v. State, 829 So.2d 901 (Fla.2002)(explaining that under the “tipsy coachman” rule, an appellate court is to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as there is any basis which would support the judgment in the record).

As noted, subsection (4) became effective on July 1, 2002. See Ch. 2002-77, § 1-2, at 908-09. The instant complaint was filed on June 11, 2002. The act of denying Walker and his son use of the restroom was. alleged to have occurred on December 31, 2001. Thus, any application of subsection (4) to the instant case would be retroactive. As a general rule, procedural changes in the law are applied retroactively, while substantive changes are applied prospectively only. See Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013, 1017 (Fla. 1st DCA 2004) (explaining that in the absence of clear legislative intent otherwise, the general rule is that procedural statutes apply retroactively while substantive statutes apply prospectively). The supreme court has held that “rights to attorney’s fees granted by statute are substantive rather than procedural.” Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla.2001), citing with approval, U.S. Sec. Ins. Co. v. Cahuasqui, 760 So.2d 1101, 1107 (Fla. 3d DCA 2000); see. also Timmons v. Combs, 608 So.2d 1, 2-3 (Fla. 1992)(“it is clear that the circumstances under which a party is entitled to costs and attorney’s fees is substantive”), and Leapai v. Milton, 595 So.2d 12 (Fla.1992).

The Fifth District has held that the broad changes made in 1999 to section 57.105 do not have retroactive effect. See Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So.2d 1232, 1233 (Fla. 5th DCA 2003)(“We have held recently that the 1999 version of section 57.105 applies to actions taken, positions maintained or papers filed subsequent to October 1, 1999,” the effective date of the statute); Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003). The Third District has held similarly. See Bisson v. Arellano, 844 So.2d 648 (Fla. 3d DCA 2003).

While the court in Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d at 711, was not considering retroactive application of subsection (4), the court did describe subsection (4) as “a procedural change” to the statute. We hold, to the contrary, that subsection (4) is a substantive addition. Subsection (4) does more than require the giving of notice. It creates an opportunity to avoid the sanction of attorney’s fees by creating a safe period for withdrawal or amendment of meritless allegations and claims. The withdrawal or amendment of a claim, allegation or defense could substantively alter a case. Compare, Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437 (Fla. 1st DCA 2004)(holding that statutory amendment to Chapter 440, Florida Statutes, that allowed employer/carrier 30 days, rather than 14 days, within which to provide benefits before being responsible for payment of attorney fees, was substantive change to statute, and thus amendment could not be applied retroactively). Because we conclude that the safe harbor provision of subsection (4) is a substantive change, we hold that it does not have retroactive application and, therefore, could not be applied to the instant case.

As for Walker’s argument that his claim was not frivolous, we defer to the trial court’s evaluation of the evidence. While it is certainly true that the trial court, in passing on the motion for attorney’s fees and costs, did discuss at length that lack of proof of damages, the trial court also found no merit to the cause of action itself. Our review of the trial testimony does not show that the trial court abused its discretion in finding that an award under section 57.105(1) was warranted.

4» U.S.C. § 1988

As a general rule, a party who is entitled to attorney’s fees must plead for attorney’s fees. Stockman v. Downs, 573 So.2d 835 (Fla.1991). There are recognized exceptions. A party need.not plead for attorney’s fees if the opposing party waives the necessity to do so, id. at 838, or if the basis for an award of attorney’s fees is an offer of judgement, see Tampa Letter Carriers, Inc. v. Mack, 649 So.2d 890 (Fla. 2d DCA 1995), disapproved on other grounds, MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla.1997). As explained above, in the case of section 57.105 fees, Ganz created another exception to the Stockman rule. Ganz, however, has not been applied beyond fees awarded under section 57.105.

The Stockman rule continues to be applied strictly. In Callaway v. City of West Palm Beach, 674 So.2d 921 (Fla. 4th DCA 1996), it was held that rule set forth in Stockman v. Downs specifically applies to attorney’s fees sought under 42 U.S.C. § 1988. See also Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708, 712 (Fla. 4th DCA-.2002)(“Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver.”). Given the Stockman rule, the award of fees under 42 U.S.C. § 1988 was erroneous because Cash Register did not plead entitlement to fees under that statute.

Accordingly, the award of attorney’s fees and costs under 42 U.S.C. § 1988 is REVERSED, the award under section 57.105(1) is AFFIRMED, and the case is REMANDED to the trial court; further, we certify conflict with Maxwell Building Corp. v. Euro Concepts, LLC.

BROWNING, C.J., and WOLF, J., concur.


author: BROWNING, C.J.

text:
    STATE of Florida, Appellant, v. Edward Lewis ZECCKINE, Appellee.
    No. 1D05-6044.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.

      Charlie Crist, Attorney General; and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellant.
    Sharon K. Wilson, Pensacola, for Appel-lee.
   BROWNING, C.J.

The State brings this interlocutory appeal from the circuit court’s order granting Appellee Edward Zecckine’s motion to suppress all self-incriminating statements made by Appellee to a jailmate, Kenneth Groves. We have jurisdiction over this type of appeal pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B); see State v. Stanley, 754 So.2d 869, 870 (Fla. 1st DCA 2000). While conceding that some evidence in the record demonstrates that Groves became a “government agent” on or after November 27, 2000, when Groves first met with Detective Vancil, the State correctly asserts that the trial court erred by suppressing other statements by Appellee made to Groves and communicated to ' law-enforcement officials before Groves became a government agent. We affirm the suppression order insofar as it excluded any evidence obtained from Ap-pellee by Groves after Groves came a government agent on November 27, 2000; however, we reverse the order to the extent it suppressed evidence obtained from Appellee by Groves before Groves became a government agent. We do not disturb the other rulings in the order denying sanctions based on an alleged discovery violation; refusing to suppress Appellee’s recorded and unrecorded statements freely, knowingly, and voluntarily given to the law-enforcement authorities on May 24, 2000; and suppressing the statement given by Appellee to the authorities on May 30, 2000, without prior notification of appointed counsel.

On May 24, 2000, Appellee was arrested for the January 31, 1997, murder of Bessie Echols, the victim of an apparent home invasion. On the same date, but before his arrest, Appellee gave two recorded statements to Detective Vancil admitting that Appellee had acted as a lookout while Delmar Kelly broke into the victim’s residence to steal a VCR. On May 25, 2000, the Public Defender’s Office was appointed to represent Appellee. Five days later, Ap-pellee gave a recorded statement to Detective Vancil in which he admitted having been inside the house when Kelly murdered the victim. On June 21, 2000, Ap-pellee was charged by information with second-degree murder with a weapon, burglary of a dwelling with assault or battery, and robbery with a deadly weapon.

It is well-established that the right to counsel applies to felony prosecutions under both the Sixth Amendment to the United States and Article I, Section 16, of the Florida Constitution. See Smith v. State, 699 So,2d 629, 638 (Fla.1997). Once this right attaches, the government cannot deliberately elicit incriminating statements from the accused regarding the charged offense without the presence or waiver of counsel. See Fellers v. United States, 540 U.S. 519, 523, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004); Maine v. Moulton, 474 U.S. 159, 176-77, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). To constitute a Sixth Amendment violation, the act must be performed by someone acting as an agent of the government by deliberately eliciting incriminating statements. See Henry, 447 U.S. at 273-74, 100 S.Ct. 2183; Brown v. State, 725 So.2d 1164, 1165-66 (Fla. 2d DCA 1998). “[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); see Cooper v. State, 856 So.2d 969, 973 (Fla. 2003) (“[T]he police may not sidestep constitutional protections by employing jail residents as independent contractors to interrogate defendants without the presence of an attorney.”). The passivity of law-enforcement authorities is the critical element in assessing the facts in any given ease. See Rolling v. State, 695 So.2d 278, 291 (Fla.1997); Bottoson v. State, 443 So.2d 962, 964-65 (Fla.1983); Lightbourne v. State, 438 So.2d 380, 386 (Fla.1983); Brown, 725 So.2d at 1166.

Before November 27, 2000, no agreement or plan (either tacit or overt) existed between Groves and Detective Vancil or any other official for Groves to obtain incriminating information from Ap-pellee. In fact, Groves and Detective Van-cil were strangers before that date. Prior to that date, Groves deliberately obtained incriminating information from Appellee, but Groves did so entirely of his own volition in the hope of improving his own situation. That Groves may have had a self-serving motive from the beginning, and may have hoped for a lighter sentence in exchange for eliciting incriminating information from Appellee, did not, of itself, render Groves a government agent. See Rolling, 695 So.2d at 292; Dufour v. State, 495 So.2d 154, 159 (Fla.1986).

We REVERSE the trial court’s order to the extent it suppressed statements made by Appellee to Groves and communicated by Groves to the authorities before November 27, 2000. We AFFIRM the order in all other respects.

DAVIS and LEWIS, JJ., concur.


author: THOMAS, J.

text:
    Henry BOYER, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1625.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.
    J. Stephen Alexander, St. Augustine, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s partial denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Appellant’s claim may not be raised in a postconviction motion, we affirm.

Appellant pled no contest to two counts of lewd and lascivious acts, agreed to be sentenced as a sexual predator,, and was sentenced to 10 years’ imprisonment followed by 8 years of sex offender probation. Appellant filed a rule 3.800(a) motion alleging that his sentence was illegal because he did not have a necessary predicate offense to be sentenced as a sexual predator, and sexual offender probation did not exist at the time of his sentencing. The trial court denied Appellant’s first claim on the basis that the sexual predator designation was negotiated, and granted Appellant’s second claim on the basis that it was not orally pronounced at sentencing. Appellant now appeals the denial of his first claim.

' Rule 3.800(a), Florida Rules of Criminal Procedure, permits the trial court to correct an illegal sentence. Any error here does not constitute an illegal sentence, however, because the alleged error involves Appellant’s designation as a sexual predator. A sexual predator designation is neither a punishment nor a sentence and does not render a sentence illegal as the term is used-in rule 3.800(a). See Gonzalez v. State, 808 So.2d 1265 n. 1 (Fla. 3d DCA 2002) (quoting Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997)); Walker v. State, 718 So.2d 217, 218 (Fla. 4th DCA 1998); see also Freeland v. State, 832 So.2d 923 (Fla. 1st DCA 2002) (holding that the registration and reporting requirements of the Sexual Predator Act are “regulatory and procedural in nature and do not violate the ex post facto clause.”). Consequently, Appellant cannot challenge his designation as a sexual predator in a postconviction motion but must instead file a separate civil suit seeking injunctive or declaratory relief. See Saintelien v. State, 937 So.2d 234, 235 (Fla. 4th DCA 2006) (citing Connor v. State, 773 So.2d 1242 (Fla. 4th DCA 2000)).

The Second District recently receded from its prior precedent that an appellant can challenge his or her erroneous designation as a sexual predator only in a separate civil action. King v. State, 911 So.2d 229, 230 (Fla. 2d DCA 2005)(en banc). In King, the Second District certified conflict with the Fourth District and aligned itself with the Fifth District’s approach in Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), and Cabrera v. State, 884 So.2d 482 (Fla. 5th DCA 2004), permitting an appellant to challenge an erroneous sexual predator designation in a rule 3.800(a) motion. Id. The Second District reasoned that it had incorrectly applied a constitutional provision in a procedural context and that challenging a sexual predator designation in a separate civil suit had proven to be unworkable. Id. at 233.

Whether a civil suit is the most workable solution is not the question presented here. Permitting Appellant to challenge his designation in a rule 3.800(a) motion requires us to ignore prior precedent holding that a designation is not a sentence or a punishment. We believe the better rationale, and consistent with our prior holdings, is to follow the Fourth District and hold that Appellant may challenge an erroneous sexual predator designation in a separate civil suit for injunctive or declaratory relief, but not in a postconviction motion. Accordingly, we affirm the trial court’s denial of Appellant’s rule 3.800(a) motion, without prejudice to file a separate civil suit, and we certify conflict with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005)(en banc), and Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003). See Connor v. State, 773 So.2d 1242 (Fla. 4th DCA 2000); Brown v. State, 927 So.2d 1024 (Fla. 4th DCA 2006); Saintelien, 937 So.2d at 234; Dragon v. State, 937 So.2d 781 (Fla. 4th DCA 2006).

AFFIRMED; CONFLICT CERTIFIED.

WOLF and LEWIS, JJ., concur.


text:
    CATALINA YACHTS and Bridgefield Employers Insurance Company, Appellants, v. Judy WARREN, Appellee.
    No. 1D05-2594.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.

      Ivan Matusek and Raymond 0. Burger of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood and Tony A. Turner, St. Petersburg, for Appellee.
   PER CURIAM.

The employer/carrier appeal a worker’s compensation order which resolved certain issues and stated that a claim for temporary partial disability benefits was granted. However, the order further indicated that it was not shown whether the claimant had received and returned any Employee Earnings Reports. Noting that without those forms the parties might be unable to determine the amount of benefits due, the order cited Jack Feagin Electric, Inc. v. Hallmark, 894 So.2d 1083 (Fla. 1st DCA 2005), and specified that the benefits “are not payable until the forms are completed by the claimant and returned to the carrier.”

The claimant’s entitlement to temporary partial disability benefits was disputed at the hearing, and the appealed order did not resolve all outstanding issues in connection with that claim. Instead, it left the amount of such benefits unresolved and potentially subject to further dispute and another hearing after submission of the referenced forms. The order is thus interlocutory and not presently appealable. Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982).

This appeal is therefore dismissed.

ALLEN, LEWIS, and HAWKES, JJ., concur.


text:
    Lenton McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1733.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.

      Lenton McCray, pro se, Appellant.
    Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he challenges his conviction for aggravated battery causing great bodily harm. We affirm the denial of all but one of Appellant’s claims without further discussion.

In his fourth ground for relief, Appellant asserts that counsel was ineffective for failing to investigate two witnesses prior to his bench trial. In order to allege a facially sufficient claim of ineffective assistance of counsel for failing to call or interview a witness, Appellant must state: (1) the identity of the witness; (2) the substance of the witness’s testimony; (3) an explanation of how the omission of this testimony prejudiced the outcome of the case; and (4) that the witness was available to testify at trial. Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004). Appellant stated the names of the witnesses and their potential testimony, which allegedly would have been that the victim in the case sustained her injuries prior to the altercation with Appellant. Further, Appellant contends that if the testimony had been presented, the trial court could have reasoned that he was only guilty of battery, as opposed to guilty of aggravated battery. Appellant has stated a,facially sufficient claim for relief, with the exception that he has failed to allege that the witnesses were available to testify. When a defendant fails to allege that a witness would have been available to testify, he should be granted leave to amend the motion within a specified time period. Nelson, 875 So.2d at 583-84.

On remand, the trial court shall grant Appellant a reasonable period of time to file an amended motion. If Appellant fails to file an amended motion within this time period, then the denial may be with prejudice. If an amended motion is filed, the trial court shall either hold an evidentiary hearing or attach additional record evidence conclusively refuting Appellant’s claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, HAWKES and THOMAS, JJ., concur.

      . Nothing in either the trial court's order or the attachments to it conclusively refutes this claim. The trial court attached portions of the victim's medical records with notes describing how, according to the victim, the injuries occurred. These documents are insufficient to refute Appellant’s claim that counsel should have called two witnesses who would have testified to a different version of events. The documents only demonstrate that the victim sustained injuries; they do not prove how or when those injuries were sustained.


text:
    STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Petitioner, v. Kelly Marie MISTRETTA, Respondent.
    No. 1D06-3096.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.
    Angelique Knox, Counsel for the Department of Financial Services, Tallahassee, for Petitioner.
    Kelly Marie Mistretta, pro se, Respondent.
   PER CURIAM.

The Department of Financial Services (DFS) petitions this court for review of a non-final order entered by an administrative law judge (ALJ) of the Department of Administrative Hearings, recommending that DFS enter a final order determining that Respondent’s application to be licensed as an insurance agent “has been granted by operation of law” under the default provision of section 120.60(1), Florida Statutes. We have jurisdiction to review a non-final administrative order under section 120.68(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.190(b)(2) when review of the final agency action would not provide an adequate remedy. We have stated that the scope of review in such a matter “is analogous to and no broader than the right of review by common law certiorari,” see Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA1995).

We find that the ALJ, who sua sponte raised and decided the issue of default after the final hearing without giving the parties an opportunity to present evidence and/or argument, departed from the essential requirements of law by denying DFS due process, for which the remedy of appeal following the conclusion of the administrative proceedings will be inadequate. The challenged recommended order is therefore QUASHED, and the case is REMANDED to the ALJ for further proceedings consistent with this opinion.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Petitioner, v. Vincent Robert FUGETT, Sr., Respondent.
    No. 1D06-3486.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.
    Angelique Knox, Counsel for the Department of Financial Services, Tallahassee.

      Vincent Robert Fugett, Sr., pro se, Respondent.
   PER CURIAM.

The Department of Financial Services (DFS) petitions this court for review of a non-final order entered by an administrative law judge (ALJ) of the Department of Administrative Hearings, recommending that DFS enter a final order determining that Respondent’s application to be licensed as an insurance agent “has been granted by operation of law” under the default provision of section 120.60(1), Florida Statutes. We have jurisdiction to review a non-final administrative order under section 120.68(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.190(b)(2) when review of the final agency action would not provide an adequate remedy. We have stated that, the scope of review in such a matter “is analogous to and no broader than the right of review by common law certiorari,” see Charlotte County v. Gen. Dev. Utilities, Inc., 658 So.2d 1081, 1084 (Fla. 1st DCA 1995).

We find that the ALJ, who sua sponte raised and decided the issue of default after the final hearing without giving the parties an opportunity to present evidence and/or argument, departed from the essential requirements of law by denying DFS due process, for which the remedy of appeal following the conclusion of the administrative proceedings will be inadequate. The challenged recommended order is therefore QUASHED, and the case is REMANDED to the ALJ for further proceedings consistent with this opinion.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Mirta HERNANDEZ, Appellant, v. SECURITY WINDOWS & DOORS, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D06-460.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Mirta Hernandez, in proper person.
    Geri Atkinson-Hazelton, Tallahassee, for appellees.

      Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

Mirta Hernandez (“Hernandez”) appeals from an order of the Unemployment Appeals Commission (“Commission”) dismissing her appeal as untimely. We reverse and remand.

Hernandez applied for and was awarded unemployment benefits. Hernandez’s employer appealed and requested a hearing. Following a hearing, the appeals referee reversed the initial determination and held that Hernandez was disqualified from receiving benefits because she was discharged from her employment for misconduct. This decision was mailed to Hernandez on September 15, 2005.

On November 22, 2005, Hernandez faxed a letter to the Commission, which the Commission treated as an appeal. In her letter, Hernandez wrote:

To Whom It May Concern:
Please be advised that this is the 2nd request that I, Mirta Hernandez, has made to the Office of Appeals. My 1st request was made in the middle of September 2005 via fax in Spanish, however I received no response to my appeal. Today, November 20, 2005, I am making my second request. Please contact me at the address or phone number listed below.

On December 21, 2005, the Commission ordered Hernandez to show cause why the appeal should not be dismissed as untimely based on a November 22nd filing date. On January 18, 2006, the Commission dismissed the appeal as untimely.

On February 2, 2006, Hernandez sent a handwritten letter in Spanish addressed to Silvia Maya at the Agency for Workforce, Office of Appeals. In that letter, Hernandez asked why she did not have the right to appeal when she had filed several appeals. She also indicated that she. had sent a notarized document back as requested but may have made a mistake because of her poor English.

Pursuant to section 443.151(4)(b)5, Florida Statutes (2005), a claimant has twenty days after the mailing of the appeal referee’s decision to initiate an appeal with the Commission. An appeal which is not timely perfected within twenty days is subject to dismissal pursuant to Florida Administrative Code Rule 60BB-7.006.

While there are no good cause exceptions provided in the statute or rule, as the Commission candidly points out, courts, including this one, have carved out exceptions to the dismissal rule “in certain individual cases based on considerations of fairness and due process.” See Frederick v. Fla. Unemployment Appeals, 834 So.2d 957, 958 (Fla. 3d DCA 2003)(quoting Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 332, 333 (Fla. 1st DCA 1995)).

Because we have no authority to vary from our precedent of judicially created exceptions to an otherwise unambiguous statute, the disposition of this appeal is governed by Frederick. In Frederick, this Court held that the dismissal of claimant’s appeal in the absence of an evidentiary hearing was improper and remanded the case for an evidentiary hearing to determine whether claimant “actually attempted to fax her notice of appeal to the UAC within twenty days from the mailing of the appeal referee’s decision”. Id. at 958-59.

Accordingly, we váeate the order dismissing Hernandez’s appeal to the Commission and remand for an evidentiary hearing to determine whether Hernandez’s notice of appeal to the Commission was timely filed.

Reversed and remanded for proceedings consistent ■with this opinion.


author: KLEIN, J.

text:
    Donell JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2186.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Donell Jackson, Malone, pro se.
    No response required for respondent.
   KLEIN, J.

Donell Jackson has filed this petition alleging that his appellate counsel rendered ineffective assistance on his direct appeal. In that appeal, counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that there were no arguable issues for reversal of his conviction for armed robbery and life sentence. Jackson was given the opportunity to file his own brief identifying any matter that he felt this court should address, but he did not do so. This court then conducted its own independent review of the record, and after finding no basis for reversal, dismissed the appeal.

In Johnson v. Moore, 744 So.2d 1042 (Fla. 4th DCA 1999), this court held that a defendant whose counsel has withdrawn under Anders, and who has failed to file his own brief, cannot seek relief for ineffective assistance of appellate counsel. Two of our sister courts have disagreed with Johnson. See Hollinger v. State, 749 So.2d 534, 535 (Fla. 5th DCA 1999); and Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006). We are persuaded by those opinions that we should recede from Johnson. We accordingly do so and address the petition on the merits.

Appellant alleges error in the lower court’s failure to instruct on a lesser included offense; however, the record shows that appellant’s defense was mistaken identification, and his counsel, with appellant’s agreement, specifically requested no lesser included instructions be given. Next appellant argues a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); however, the record shows that the evidence about which appellant complains was not withheld by the state. Appellant’s claim of error in the imposition of an enhanced sentence, as violating Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is without merit, as is his claim that the court imposed an order of restitution without notice or a hearing. We accordingly deny the petition and recede from Johnson v. Moore, 744 So.2d 1042 (Fla. 4th DCA 1999).

STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, FARMER, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Salvatore BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4825.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Salvatore Bennett, Moore Haven, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In his rule 3.800(a) motion to correct an illegal sentence, appellant argued in part that he did not qualify as a habitual offender because all of his prior convictions were sentenced on the same day during the same sentencing proceeding. § 775.084(5), Fla. Stat. (2004).

In response to his motion, the state asserted that he has a number of prior convictions that were sentenced on two different dates and that the certified convictions were part of the court file. However, no records were attached to the state’s response below or the trial court’s order to show that appellant’s prior convictions satisfy the sequential sentencing requirement of the habitual offender statute. The state attempted to provide the records on appeal. However, this court has repeatedly held that the state cannot cure the defect in the trial court’s order by providing records to this court. Collins v. State, 805 So.2d 73 (Fla. 4th DCA 2002); Foley v. State, 657 So.2d 929 (Fla. 4th DCA 1995); see also Fla. R.App. P. 9.141(b)(2)(D).

As a result, we reversed the trial court’s order and on remand instructed the trial court to address this court’s decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2004), quashed by State v. Richardson, 915 So.2d 86 (Fla.2005). Bennett v. State, 904 So.2d 447 (Fla. 4th DCA 2005).

Following its decision in Richardson, the Florida Supreme Court quashed this court’s earlier decision in Bennett and remanded this case for reconsideration.

Because appellant stated a legally sufficient claim, which was not refuted by the attached records, the circuit court’s order is reversed and this case is remanded for the court to attach records that show appellant qualifies for habitual offender sentencing.

POLEN, KLEIN and SHAHOOD, JJ., concur.


author: COPE, C.J.

text:
    LOWER FLORIDA KEYS HEALTH SYSTEMS, INC. and Key West HMA, Inc., Appellant, v. BEACON HEALTH PLANS, INC., Appellee.
    No. 3D05-1578.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.

      Morgan & Hendrick, Key West, and James T. Hendrick, Key Largo; Steven M. Goldsmith, Boca Raton, for appellant.
    Steven M. Ziegler and Bradley M. Sel-din, and Kenneth E. White, Hollywood and Dorothy Wallace, for appellee.
    Before COPE, C.J., and GREEN, J„ and SCHWARTZ, Senior Judge.
   COPE, C.J.

This is an appeal from a declaratory judgment regarding the terms of a settlement agreement. We affirm.

Appellants are Lower Florida Keys Health Systems, Inc. (“LFKHS”) and Key West HMA, Inc. (“HMA”). LFKHS operated the Lower Florida Keys Hospital until April 30, 1999 when HMA took over operation pursuant to a contract between LFKHS and HMA. Appellee Beacon Health Plans, Inc. (“Beacon”) is a Health Maintenance Organization (“HMO”) the members of which were provided services by the hospital from 1997 until July 1999. During LFKHS’ operation of the hospital, LFKHS and Beacon had ongoing disputes about payment for services rendered and LFKHS eventually claimed that Beacon owed it several hundred thousand dollars.

In early 1999 LFKHS was preparing to hand over operation of the hospital to HMA and sought to settle its outstanding claims with Beacon prior to transfer. Both parties agree that a settlement was reached and that Beacon paid $583,993.18. They dispute other terms of the settlement agreement. LFKHS claims that the terms of the settlement agreement were reflected in an April 1, 1999 letter from LFKHS to Beacon. Beacon claims that the terms were set forth in an April 19, 1999 Settlement Agreement and Release signed by LFKHS.

After a non-jury trial, the court found that there had been an oral settlement agreement. The trial court agreed with Beacon’s version of the settlement. LFKHS and HMA appeal.

Appellants argue that the trial court erred in not finding that the April 1 letter and payment resulted in an enforceable agreement and in finding the April 19 release enforceable. We cannot agree. While the evidence regarding the settlement was sharply disputed, the trial court’s findings are supported by competent substantial evidence. As we are not at liberty to reweigh that evidence, we must affirm on this point. See Stevens v. Cricket Club Condominium, Inc., 784 So.2d 517, 518-19 (Fla. 3d DCA 2001) (finding that an appellate court’s function is not to reweigh the evidence, but to determine if the record contains competent substantial evidence to support the conclusions of the trier of fact, and that the trial court’s findings are presumed correct); Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979) (if there exists any substantial competent evidence on the record, the findings of fact must stand and the judgment entered thereon must be affirmed).

Appellants also argue that the trial court erred on the issue of set-off. The trial court found that in exchange for Beacon’s payment of $583,993.18, LFKHS released Beacon from any claims for services LFKHS rendered on • or before April 1, 1999. However, the evidence showed that after the settlement, LFKHS and its successor HMA submitted a significant number of claims with service dates on or before April 1, 1999, and Beacon erroneously paid them. The sum of $139,000 was paid in error to LFKHS and $300,000 to HMA for a total of $439,000. .

Upon realizing the error, Beacon set off the total sum of $439,000 against invoices which had been submitted by HMA for services rendered after April 1. These set-offs occurred in May, June and July, 1999.

Appellants argue that the setoffs violated subsection 641.3155(4), Florida Statutes (1999). We do not agree.

The statute states in relevant part:

(4)Any retroactive reductions of payments or demands for refund of previous overpayments which are due to retroactive review of coverage decisions or payment levels must be reconciled to specific claims'unless the parties agree to other reconciliation methods and terms....

§ 641.3155(4), Fla. Stat. (1999)(emphasis added).

The setoffs started in May, 1999, but subsection (4) did not take effect until June 18, 1999. Ch. 99-393, §§ 5, 18, Laws of Fla. For those setoffs occurring prior to June 18, 1999 subsection (4) did not yet exist and there was no statutory limitation on the right of setoff.

For the remaining setoffs, subsection (4) was in effect but we conclude there was no statutory violation. By its terms subsection (4) applies where there is a demand for refund of previous overpayments “due to retroactive review of coverage decisions or payment levels.... ” Id. Where that occurs, the adjustments must be reconciled to specific claims. Id.

The present case does not involve such issues. In the present case Beacon erroneously paid claims which had already been released by LFKHS. This is akin to a situation in which an HMO erroneously pays the same claim twice. We do not think the statute applies to the situation now before us.

Appellants argue that, apart from the statutory issue, the setoffs were inequitable. We conclude that the trial court’s analysis on that issue was correct. We have carefully considered appellant’s arguments to the contrary but are not persuaded thereby.

Affirmed.

      . The hospital building and land are owned by other entities.


text:
    Frank W. PEHRINGER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3141.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Frank W. Pehringer, pro se, Petitioner.
    Charlie Crist, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Frank W. Pehringer timely seeks certio-rari review of an order denying his petition for writ of mandamus, in which he challenged the outcome of a prison disciplinary proceeding.

Pehringer was issued a disciplinary report charging him with unauthorized use of drugs. The disciplinary report alleged that a “for cause” drug test administered to Pehringer yielded a positive result for the presence of cocaine. We agree with the circuit court that the symptoms observed prior to testing were sufficient to establish a basis for administering a “for cause” test, and that the fact that the incident report describing those symptoms was not prepared before the testing was undertaken does not entitle petitioner to relief from the disciplinary action. However, we do find merit to Pehringer’s contention that he is entitled to relief because prison officials failed to comply with mandatory testing procedures set forth in the Department of Corrections’ own rules. In describing “specimen collection procedures,” rule 33 — 108.101(3)(b)(6) provides as follows:

The tester shall give each mmate a closed specimen cup with an identification label containing the inmate’s name and DC number prior to collecting the-inmate’s urine specimen. The tester shall ensure that the inmate acknowledges his or her correct identity information on the label of the specimen cup.

According to Pehringer, and this allegation was not disputed by the Department, he was subjected to testing at the same time as six other inmates. From the outset, he asserted in his written statement to the disciplinary team that the specimen cup provided to him had no identifying information on the label, and another inmate who was tested at the same time provided a statement indicating that the specimen cup provided to him likewise did not contain the required labeling information. The disciplinary team nonetheless found Pehringer guilty of the charged offense based upon the reporting officer’s statement, which made no mention of whether the labeling requirement had been satisfied.

In the administrative grievance process, Pehringer reiterated his allegation that he was provided an unlabeled specimen cup, but this claim was by all appearances ignored. Finally, Pehringer again made this allegation in his petition for writ of mandamus, but the Department failed to specifically refute it, other than to state that “[a]ll factual allegations not specifically admitted [in the response] are denied or are without knowledge.” We conclude that under the circumstances, the boilerplate denial of an allegation the Department declined to address in either the disciplinary proceedings or the administrative grievance process was insufficient to raise a material issue of fact, and Pehringer’s factual allegation in this regard should therefore have been deemed to be admitted as true. See Holcomb v. Dep’t of Corr., 609 So.2d 751 (Fla. 1st DCA 1992); see also Plymel v. Moore, 770 So.2d 242 , (Fla. 1st DCA 2000).

We further conclude that the Department’s failure to comply with its own rule governing specimen collection, the obvious purpose of which is to ensure the integrity of the chain of custody and the testing procedure itself, encroached upon petitioner’s due process rights in the ensuing disciplinary proceedings. See White v. Moore, 789 So.2d 1118 (Fla. 1st DCA 2001).

Finally, as the Department correctly concedes, the circuit court further erred by imposing a lien on Pehringer’s inmate trust account to recoup court costs and fees. Pehringer forfeited 180 days of gain-time as a consequence of the disciplinary proceeding, and his claim thus clearly constituted a “collateral criminal proceeding.” See Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003). The imposition of a lien was therefore unauthorized. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

Accordingly, the order denying Pehringer’s petition for writ of mandamus is quashed, and the matter is remanded to the circuit court for further proceedings consistent herewith. We likewise quash the order imposing a lien, with directions that the trial court dissolve the lien and direct the reimbursement of any funds that have been withdrawn pursuant thereto.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    Charles SCOTT, Petitioner, v. James McDONOUGH, Secretary, Department of Corrections, Respondent.
    No. 1D06-1972.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Charles Scott, pro se, Appellant.
    Rosa Carson, General Counsel, Department of Corrections; Charlie Crist, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari filed by Charles Scott seeking review of the circuit court’s order denying his petition for writ of mandamus, which challenged a disciplinary report resulting in the imposition of disciplinary confinement and loss of gain time. To the extent that Scott contests the circuit court’s imposition of a lien on his prisoner trust account, we treat his argument as if it had been filed as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430. Lowery v. McDonough, 940 So.2d 540 (Fla. 1st DCA 2006). We grant that motion for review and quash the circuit court’s order which authorised imposition of the lien. This court has repeatedly recognized that statutory authority does not exist for the circuit court to impose a lien to recover costs and fees in proceedings of this nature. Id.; see also Terry v. McDonough, 935 So.2d 81 (Fla. 1st DCA 2006); Rodriguez v. McDonough, 932 So.2d 515 (Fla. 1st DCA 2006); Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006).

WEBSTER, BENTON, and VAN NORTWICK, JJ„ concur.