author: VILLANTI, Judge.

text:
    H.P.B.C., INCORPORATED, a Florida corporation, Trond Schou, and Nils Johnsen, Appellants, v. NOR-TECH POWERBOATS, INC., a Florida corporation, and Borre Andersen, Appellees.
    No. 2D05-1961.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Rehearing Denied Jan. 31, 2007.

      Michael D. Allweiss of Allweiss & All-weiss, St. Petersburg, for Appellants.
    Stephen M. Maher, Fort Myers, for Ap-pellees.
   VILLANTI, Judge.

H.P.B.C., Incorporated, Trond Schou, and Nils Johnson (jointly referred to as the “Manufacturer”) appeal from a final judgment entered following the reinstatement of the $290,900 jury verdict in favor of Nor-Tech Powerboats, Inc., and Borre Andersen (jointly referred to as the “Dealer”). The underlying dispute concerns an alleged oral contract which the Dealer asserts entitles it to commission payments based on the Manufacturer’s boat sales. The Manufacturer argues that the oral contract does not satisfy Florida’s statutes of frauds, and therefore, the Dealer’s alleged entitlement to commissions is barred. We agree and reverse.

Facts and Procedural History

The Dealer sued the Manufacturer for various theories of recovery, including breach of oral contract. The alleged oral contract involved an arrangement whereby the Manufacturer authorized the Dealer to market and sell particular lines of the Manufacturer’s boats, known as the “Nor-Tech 5000” and “Nor-Tech 380.” The Dealer claimed that the terms of the oral contract mirrored the terms contained in an earlier written contract (the “Nordic Contract”) between Andersen and the original boatbuilder, Nordic Export, Inc.

By way of background, this is the second time this matter has come before this court on appeal. See Nor-Tech Powerboats, Inc. v. H.P.B.C., Inc., 855 So.2d -103 (Fla. 2d DCA 2003) (Nor-Tech 1). In Nor-Tech 1, the Dealer appealed from an order granting a new trial to the Manufacturer after the jury found there was a breach of contract and awarded damages in favor of the Dealer. The Manufacturer argued that the Dealer submitted its case to the jury under a breach of written contract claim, although this claim was never pleaded. The trial court granted the Manufacturer’s motion for a new trial, stating that there had been confusion as to which contractual theory the Dealer had submitted to the jury and that this confusion had unduly prejudiced the Manufacturer, requiring a new trial. This court then reversed the .order granting -a new trial.

In Nor-Tech 1, the Dealer asserted that it never sought to enforce any written agreement against the Manufacturer and that the Dealer’s breach of contract claim was related to the alleged oral contract only. The Dealer argued, and this court agreed, that the Nordic Contract was used at trial merely as evidence of the terms of the subsequent oral contract between the Dealer and the Manufacturer. Id. at 106. In fact, the record in this appeal does not indicate that the Dealer ever amended its pleadings to assert a breach of written contract.

The Manufacturer now brings this second appeal on two theories. First, the Manufacturer asserts that Florida’s statutes of frauds bar any claim on the oral contract. Second, the Manufacturer asserts that the trial court erred by denying its motions for directed verdict after the presentation of the Dealer’s evidence and at the close of the Manufacturer’s case. Because we reverse based on the first theory, we need not address the second.

Analysis

Section 725.01, Florida Statutes (2005), provides:

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof, ,.. unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

Florida’s Uniform Commercial Code, section 672.201(1), Florida Statutes (2005), provides:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or.her authorized agent or broker.

The Nordic Contract underlying the relationship was valid by its express terms for an initial period of one year and one day, from August 1, 1994, to August 1, 1995. Shortly after the expiration of the Nordic Contract, the Dealer and the Manufacturer entered into the oral contract at issue for an unspecified period of time. The Dealer admits that the parties operated under the oral contract for approximately two years before it was terminated by the Manufacturer. The Dealer also admits that it was compensated for all sales it secured prior to the alleged breach. Thus, the Dealer is seeking unpaid commission only on future sales made by the Manufacturer after the alleged breach.

“Without an agreement in writing specifying a term and then an attempted unjustified termination before that term has elapsed, moreover, [a non-breaching party] has no valid claim for future damages in lost profits under an oral contract terminable at will.” Centro Nautico Representacoes Nauticas, LDA v. Int’l Marine Co-op, Ltd., 719 So.2d 967, 969 (Fla. 4th DCA 1998), quashed on other grounds, 761 So.2d 279 (Fla.1999). Centro Náutico involved a similar contractual arrangement between a boat distributor and manufacturer. As here, the oral contract had no specified duration, and the manufacturer terminated the contract after two years. Id. at 968. After finding that the manufacturer had breached the contract, the jury awarded the distributor damages based on projected future sales. Id. at 968-69. The appellate court reversed, holding that both the Uniform Commercial Code statute of frauds (applying to the sale of goods over $500) and the general statute of frauds (applying to service contracts not to be performed within one year) were implicated, thus barring the distributor’s claim on the oral contract. Id. at 969. The court also held that, because the distributor’s claim only sought damages related to future lost profits, the exception to the statute of frauds for goods received and accepted or goods that have been paid for was inapplicable. Id.

The Dealer characterizes the oral contract as an oral agreement in extension of the written agreement in an attempt to distinguish Centro Náutico and satisfy the statute of frauds. The Dealer argues that it satisfied the statute of frauds because the Manufacturer was in a partnership with the original boatbuilder at the time the Nordic Contract was signed. This argument fails to recognize that the oral contract, although based primarily on the terms of the Nordic Contract, is an independent agreement. Nor-Tech 1, 855 So.2d at 106. This independent agreement is not in writing and is not signed by the party against whom enforcement is sought. See §§ 672.201(1), 725.01, Fla. Stat. (2005). The Dealer does not argue that any other exceptions to the statute of frauds’ writing requirement apply.

The main issue in Nor-Tech 1 was whether the Dealer was suing for breach of an oral or a written contract. The Dealer prevailed in that appeal because it successfully argued that “the Nordic [Contract] was not the basis of the claim and that it never sought to enforce any written agreement against the Manufacturer.” Id. at 105 (emphasis added). The Dealer cannot have its cake and eat it too by now arguing during this second appeal that the separate Nordic Contract somehow satisfies the statute of frauds requirement for the oral contract upon which it is suing. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979) (holding that where a party had previously secured dismissal of a timely-filed action by successfully contending that the case must be submitted to mediation, party could not subsequently argue that mediation was improperly invoked and that the statute of limitations had run). However, even if this contention were available, common sense dictates that because the prior written contract antedated the oral contract, the former cannot validate the latter unless it was signed anew. “The law requires that for the memorandum to be sufficient it must satisfactorily show that a contract has actually been made.” Jones v. Toms, 150 Fla. 873, 9 So.2d 96, 97 (1942) (emphasis added).

Because the oral contract in question was for the sale of goods over $500 and was not to be performed within one year, both the general and the Uniform Commercial Code statutes of frauds apply. §§ 672.201(1), 725.01, Fla. Stat. (2005). Because the Dealer failed to satisfy the requirements of either of the statutes of frauds, and because there are no applicable exceptions, the Dealer’s claim for breach of oral contract must fail as a matter of law.

Accordingly, we reverse that portion of the order reinstating the jury verdict in the amount of $288,400 and remand for entry of a final judgment in favor of the Dealer regarding the remaining damages award.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.

      . The Manufacturer does not appeal the portion of the final judgment awarding the Dealer $2,678.50 in costs and $500 in attorney's fees as a sanction for failure to comply with certain discovery orders.

      . The other theories for which the Dealer sought recovery were breach of warranty, temporary and permanent injunction, and quantum meruit. In addition to the $288,400 awarded for the breach of oral contract, the jury also awarded the Dealer $2500 under the breach of warranty theory. The Manufacturer does not specifically address this portion of the award in its appeal.

      . While Nor-Tech 1 held that the Dealer • based its claim on the breach of an oral contract, this court never considered or decided the validity of the oral contract during that appeal. Thus, the issue of the oral contract's validity is not barred by the law of the case. See Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 107 (Fla.2001).

      . While there may be debate on whether the written contract was properly terminated, the Dealer is not seeking damages under the written contract and hence we need not address this issue.

      . The validity of various assertions of assignment and binding authority to do so morphing the original contracting parties into the ultimate parties here is not addressed because our holding makes those contentions moot.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Oscar Dennis HERNANDEZ, Jr., Appellant, v. Rebecca CRIGLER, Appellee.
    No. 2D06-2465.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Rehearing Denied Feb. 5, 2007.
    Matthew S. Przybycin of Dennis Hernandez and Associates, P.A., Tampa, for Appellant.
    Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellee.
   NORTHCUTT, Judge.

Mr. Hernandez raised numerous issues in this appeal. We find merit in only one of them. We reverse the costs awarded to Ms. Crigler’s attorney for mileage, tolls, and parking incurred in connection with her travel for proceedings in this case. See In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 615 (Fla.2005). In all other' aspects, we affirm the temporary attorney’s fees and costs awarded.

Affirmed in part, reversed in part.

KELLY and LaROSE, JJ., Concur.


author: ROTHENBERG, Judge.

text:
    CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Appellant, v. Victor M. BOOTH, as Personal Representative of the Estate of Steven M. Booth, Deceased, Appellee.
    No. 3D06-1634.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Mase & Lara and Curtis Mase and Beverly D. Eisenstadt, Miami, for appellant.
    Haggard, Parks, Haggard & Lewis and Jeannete C. Lewis and Robert L. Parks, Coral Gables, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Carnival Corporation d/b/a Carnival Cruise Lines (“Carnival”) appeals from a non-final order denying its amended motion to dismiss the complaint filed by Victor M. Booth, as Personal Representative of the Estate of Steven M. Booth, deceased (“Plaintiff’) for improper venue. We reverse.

On July 20, 2004, Steven Booth (“Steven”), a guesf/passenger on a ship owned by Carnival, died while participating in a scuba diving excursion in the U.S. Virgin Islands. The cover of the booklet holding Steven’s ticket contract states that the ticket contract contains conditions that limit the “RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST THE CRUISE LINE ....” Paragraph 14(a) of the ticket contract provides as follows:

Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of the guest, unless full particulars in writing are given to Carnival within 185 days after the date of injury, event, illness or death giving rise to the claim. Suit to recover on any such claim shall not be maintainable unless filed within one year after the date of the injury, event, illness or death ....

Further, Paragraph 15 provides:

It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated if at all, before the United States District Court of the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida U.S.A., to the exclusion of the Courts of any other county, state or country.

On July 1, 2005, the Plaintiff filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County (“State Court”) against Carnival, alleging that it was negligent in marketing the excursion. On August 31, 2005, Carnival filed a motion to dismiss the complaint, and on September 14, 2005, Carnival filed an amended motion to dismiss, adding the argument that the forum selection clause in the ticket contract requires that all disputes in connection with the cruise be filed in the United States District Court of the Southern District in Miami (“Federal Court”).

On December 29, 2005, the Plaintiff filed an almost identical suit and demand for jury trial in Federal Court. Thereafter, the Federal Court “administratively closed” the federal action due to the pending State Court action.

The trial court heard Carnival’s amended motion to dismiss, and entered an order denying Carnival’s motion, finding that Carnival had waived its right to enforce the forum selection clause, and also ordered Carnival to answer the Plaintiffs complaint.

In this non-final appeal, we must determine whether Carnival, based on its actions in State Court, waived its right to enforce the forum selection clause contained in the ticket contract. Specifically, the Plaintiffs waiver argument is based on the fact that Carnival, on October 17, 2005, served interrogatories and a request for production on the Plaintiff. As the facts are undisputed, and the issue before this court is purely a legal one, the standard of review is de novo. See Envirolite Enters., Inc. v. Glastechnische Industrie Peter Lisec Gesellschaft M.B.H., 53 B.R. 1007, 1011-12 (S.D.N.Y.1985)(noting that whether a party’s actions constitute a waiver of a forum selection clause is a “matter of law”); Dive Bimini, Inc. v. Roberts, 745 So.2d 482, 483-84 (Fla. 1st DCA 1999)(pro-viding that where facts are undisputed and the issue turns on a question of law, the standard of review is de novo).

Contractual forum selection clauses can be waived. See Three Seas Corp. v. FFE Transp. Servs., Inc., 913 So.2d 72, 74-75 (Fla. 3d DCA 2005)(holding that the defense of improper venue based on a contractual forum selection clause is waived if not pled with particularity in responsive pleading or, if made by motion, “before pleading if a further pleading is permitted”)(quoting Fla. R. Civ. P. 1.140(b)). “Waiver” is defined “as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005); see also Black’s Law Dictionary 1611 (8th ed.2004)(defining “waiver” as the “voluntary relinquishment or abandonment — express or implied — of a legal right or advantage”).

In the instant case, the parties do not' dispute that Carnival’s defense of improper venue was properly and timely asserted pursuant to Florida Rule of Civil Procedure 1.140(b), as Carnival raised the defense with particularity in its amended motion to dismiss and was made prior to the filing of a responsive pleading. Thus, we must determine whether Carnival, as a matter of law, waived its right to enforce the forum selection clause by serving one set of interrogatories and a request for production on the Plaintiff after it filed its amended motion to dismiss, which included its objection to venue.

On October 17, 2005, approximately one month after Carnival filed its amended motion to dismiss for improper venue, Carnival served interrogatories and a request for production on the Plaintiff in the State Court action. We conclude that Carnival’s limited participation in the State Court action does not, however, amount to a waiver of its right to enforce the forum selection clause. See Blank v. Bitker, 135 F.2d 962, 967 (7th Cir.1943)(holding that the defendant did not waive his right to assert improper venue by taking depositions); Envirolite, 53 B.R. at 1011-12 (holding that a venue objection based on a forum selection clause was not waived by the defendant’s service of a set of interrogatories on the plaintiff); Sherman v. Moore, 86 F.R.D. 471, 473-74 (S.D.N.Y.1980)(noting that a party may “waive its objection to venue by its pretrial conduct”; holding that the defendants did not waive their defense of improper venue by conducting a deposition where they asserted the defense in a timely manner by raising it in its amended answer); Shaw v. United, States, 422 F.Supp. 339, 341 (S.D.N.Y.1976)(holding that defendant’s action of taking a deposition does not constitute waiver of an improper venue defense that was properly raised in the answer).

“Courts have often compared forum selection clauses to arbitration clauses and have applied a similar enforceability analysis to both.” Thunder Marine, Inc. v. Brunswick Corp., No. 8:06-CV-384-T17 EAJ, 2006 WL 1877093, at *8 (M.D.Fla. July 6, 2006); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)(“An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not, only the situs of suit but also the procedure to be used in resolving the dispute.”). The Plaintiff, therefore, relied upon several cases which examined whether the actions of a party constituted a waiver of an arbitration clause in arguing that Carnival’s actions resulted in a waiver of the forum selection clause in the instant case. While we recognize that “[t]he right to arbitration, like any contract right, can be waived,” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)(quoting Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)), and that “Florida courts recognize that a party’s contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right,” Lapidus v. Arlen Beach Condo. Assoc., Inc., 394 So.2d 1102, 1103 (Fla. 3d DCA 1981), we specifically note that forum selection clauses and arbitration clauses serve different purposes. See Thunder Marine, 2006 WL 1877093 at *8. We additionally find that the cases relied upon by the Plaintiff are factually distinguishable, and therefore, inapplicable.

In Lapidus, the third party defendant moved for summary judgment. In finding that the third party defendant waived his right to arbitration, this court stated, “A party who contests the merits of a claim by filing a motion for summary judgment accepts the judicial forum. She may not consistently later claim that only the arbi-tral forum is satisfactory.” Lapidus, 394 So.2d at 1103. Unlike the third party defendant in Lapidus, Carnival did not file a motion for summary judgment “contesting] the merits of [the] claim” and did not in any manner seek affirmative relief from the State Court.

In Frontage Road Partners, LLC v. McMullen, 934 So.2d 629 (Fla. 2d DCA 2006), the plaintiff filed a complaint in the circuit court seeking the specific performance of a real estate contract. Thereafter, the plaintiff filed a motion to compel arbitration, which the trial court denied finding that the plaintiff had waived the contractual arbitration provision. The Second District Court of Appeal affirmed the trial court’s conclusion, holding that “the action of filing a complaint and notice of lis pen-dens based on a contract without simultaneously requesting a stay and an order compelling arbitration waives that party’s contractual rights to arbitrate.” Id. at 630. The Plaintiffs reliance on Frontage Road is, therefore, also misplaced, as the Plaintiff, not Carnival, filed the action in State Court, and Carnival filed a timely and proper motion to dismiss for improper venue.

In Winter v. Arvida Corp., 404 So.2d 829 (Fla. 3d DCA 1981), a case not relied upon by the Plaintiff, this court held that the right to arbitration was waived by proceeding with discovery. In that case, however, after the plaintiff filed the complaint, the following activity took place: 1) the defendant filed a motion- to dismiss the complaint for failure to state a cause of action, which was denied by the trial court; 2) the defendant deposed the plaintiff; 3) the defendant filed an answer, including affirmative defenses, without demanding arbitration; 4) approximately eight months after the plaintiff filed the complaint, the defendant filed a second motion to dismiss, this time arguing that the arbitration clause precluded the lawsuit; and 5) the defendant served interrogatories upon the plaintiff. While the trial court granted the defendant’s motion to dismiss, thereby enforcing the arbitration provision, on appeal, this court reversed, finding that the defendant waived the arbitration provision by failing to answer the complaint without demanding arbitration and by proceeding with discovery both prior to and after moving to dismiss. This court concluded that the defendant’s “actions were inconsistent with the right to arbitrate....” Id. at 830. Thus, the defendant’s actions and participation in the lawsuit were significant. In contrast, in the instant case, Carnival filed its amended motion to dismiss for improper venue, did not file an answer, and has not actively participated in the State Court action.

Under the facts of this case, which are not in dispute, we conclude that Carnival, as a matter of law, did not waive its right to enforce the forum selection clause. Carnival properly asserted the defense of improper venue, and its action of serving one set of interrogatories and a request for production does not constitute a waiver of that right. Therefore, as Carnival did not waive its right to enforce the forum selection clause and the enforcement of the forum -selection clause is not unreasonable under the circumstances, see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)(“It bears emphasis that forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness.”); Norwegian Cruise Line, Ltd. v. Clark, 841 So.2d 547, 550 (Fla. 2d DCA 2003)(“A party contesting enforcement of a forum selection provision bears the ‘heavy burden’ of demonstrating why enforcement would be unreasonable.”)(citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)), we reverse the order under review and remand for entry of an order granting Carnival’s motion to dismiss for improper venue.

Reversed and remanded.


author: POLEN, J. POLEN, J.

text:
    John LEHMAN, Appellant, v. DEPARTMENT OF REVENUE o/b/o Joanne LEHMAN, Appellee.
    No. 4D06-1056.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Opinion Denying Rehearing Feb. 14, 2007.

      Ashley A. Sawyer and William M. Sha-heen of Libow & Shaheen LLP, Boca Ra-ton, for appellant.
    No brief filed for appellee.
   POLEN, J.

Appellant, John Lehman, appeals a non-final denial of his motion to vacate an order of contempt. The order of contempt was ordered as a result of Appellee’s, the Department of Revenue (“Department”), calculations showing that Lehman owed child support arrearages in the amount of $29,003.17 for his three children. Lehman filed a motion to vacate the order of contempt, pursuant to Florida Rule of Civil Procedure 1.540(b)(3), alleging that the Department made misrepresentations to the court by seeking child support for children who were emancipated, either by age or by incarceration. Lehman argued the child support order allocated the award per child, and- that he was not required to file a petition for modification in order for an automatic reduction to take place once each child was emancipated. We agree that the parties intended that the child support be allocated per child and reverse and remand.

A trial court’s denial of a motion to vacate is reviewed using an abuse of discretion standard. Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264, 1265 (Fla. 4th DCA 2003). In State, Dept. of Revenue, Child Support Enforcement v. Segrera, 661 So.2d 922 (Fla. 3d DCA 1995), the third district stated:

It is well established that a trial court may, in its discretion, award a lump sum, rather than a separate amount of support for each child, and that the party seeking a reduction in support has the duty to petition the court to reduce the amount when one child attains majority .... The payor parent must continue to make child support payments pursuant to the provisions of a valid order until he files a motion for modification and such motion is favorably acted upon.

Id. at 923 (emphasis added). However, in Yockey v. Yockey, this court held that child support could be modified retroactively to the filing date of the petition. 784 So.2d 582 (Fla. 4th DCA 2001). Moreover, when a child support provision allocates the amount of support per child, the trial court can retroactively terminate child support prior to the date such relief is requested. See State of Fla. Dep’t of Revenue ex rel. Wilson v. Wilson, 782 So.2d 952, 954 (Fla. 2d DCA 2001).

The controlling question in this case is whether the child support award was an aggregate award for all three children or an award allocated per child. In Florida Department of Revenue v. McClung, 760 So.2d 244 (Fla. 3d DCA 2000), the third district determined that the language in separate provisions of the parties’ agreement should be read together to determine its true intent. Id. at 245-46. The language in the parties’ agreement was as follows:

The Husband shall pay to the Wife, for the support and maintenance of the minor children of the parties, the sum of $400 per month.
The support rights of each child shall terminate and the obligation of the husband to pay support for each child shall cease upon occuranee [sic] of any one of the following:
The death of the child.
Attainment of his eighteenth birthday. The valid marriage of the child.
The lawful entry of the child into the military service of the United States.

Id. at 245. This issue was also dealt with in a fifth district case, Rodgers v. Reed, 931 So.2d 236 (Fla. 5th DCA 2006). In Rodgers, the parties’ support agreement first obligated the father to pay “$212.00 per week for the support of the minor child(ren).” Id. at 237. This provision was immediately followed by the parties’ three children’s names and their birth-dates. Id. The agreement further stated:

Child support payments shall continue until the death of said minor child, the valid marriage of the child, the lawful entry of the child into the military service of the United States for a continuous period of time of one year or more, or until attainment of said minor child’s 18th birthday, unless said child is at the time enrolled in high school on a full time basis, and living at home, in which case support shall continue until the child graduates high school.

Id. The fifth district determined that the reading of these two provisions led to the conclusion that the child support was allocated and therefore, the child support could be retroactively modified to the date of emancipation of each child. Id. at 238-39.

We find that the facts of this case are analogous to those in McClung and Rodgers. The support order in this case read: “[Lehman] is obligated to pay child support for the following minor children .... ” The children’s names and birth-dates were then listed. The agreement stated Lehman was responsible to pay the sum of $843.00 per month.

Child Support payments shall continue until the minor children) reach(es) the age of 18, die(s), marry(ies) or otherwise emancipate(s). All payments toward satisfaction of the past support shall continue after the children) emancipate(s) until the past support/arrears are satisfied in full and may be enforced by contempt.

As in Rodgers, the fact that the children’s name and birthdates were listed in the support order, along with the fact that the conditions for emancipation were laid out, leads to the conclusion that the child support was to be allocated amongst the three children. 931 So.2d 236. While this language may not be as clear as that found in McClung, i.e. “[t]he support rights of each child shall terminate and the obligation of the husband to pay support for each child shall cease” when each child reached emancipation, we find that the parties’ intent that the child support be allocated per child is still evident. 750 So.2d at 245 (emphasis added).

Lehman argues that the child support award should have automatically been reduced by one third as each child was emancipated. We find this argument to be unpersuasive, as the language in the child support agreement is not clear as to the exact amount the child support is to be reduced by upon a child’s emancipation. In viewing the child support guidelines, section 61.30, Florida Statutes (2005), we note that as the number of children subject to child support at a set income level decreases, the amount of child support required does not decrease on a pro rata basis. To accomplish such a result, the agreement or final judgment would have to specify language such as “X dollars per month per child, such amount to be discontinued as each child is emancipated.” Therefore, we reverse the trial court’s denial of Lehman’s motion to vacate the contempt order with instructions to hold an evidentiary hearing to determine the correct amount of arrearages and the appropriate reduction in child support payments.

KLEIN and MAY, JJ., concur.

On Motion for Rehearing

POLEN, J.

Appellee, the Department of Revenue, has filed a motion for rehearing. On December 13, 2006, this court issued an opinion reversing the trial court’s denial of Appellant, John Lehman’s motion to vacate and remanded for an evidentiary hearing to determine the correct amount of child support arrearages and the appropriate reduction in child support payments. We deny the Department’s motion for rehearing, but write to clarify our previously issued opinion.

The Department argues that our reference to the Lehman’s child support obligation as an “agreement” is incorrect, as the child support was court-ordered rather than part of an agreement. According to the Departmeht, this distinction is important, as our opinion states that the parties’ intended that child support be allocated to each child, and if the child support was ordered, the parties’ intent would not be a proper basis for determining the effect of the order.

While the Department is right in asserting the child support obligation was ordered by the trial court, rather than determined by the parties’ agreement, this court’s decision was founded on the language laid out in the child support order. This order was drafted by the Department and issued by the trial court. We find that the language used in the order supports the conclusion that the Department intended child support be allocated amongst Lehman’s three children. If the language found in the order does not correctly reflect the Department’s intent, any discrepancy should be resolved by changing the language in future orders to clearly reflect the Department’s intent that child support not be allocated, and to put all parties on notice of its meaning.

In all other respects, our prior reversal and remand of the trial court’s denial of Lehman’s motion to vacate, and our instructions that an evidentiary hearing be held, remain unchanged.

KLEIN and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    Theresa S. POLK, Appellant, v. BHRGU AVON PROPERTIES, LLC, Appellee.
    No. 2D06-2426.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.

      Jack Emory Farley of J. David Pob-jecky, P.A., Winter Haven, for Appellant.
    Gary R. Gossett, Jr., of Gossett Law Offices, Sebring, for Appellee.
   STRINGER, Judge.

Theresa S. Polk (“Polk”) seeks review of the final judgment, which ordered the specific performance of a real estate sales contract for the sale of her real property to BHRGU Avon Properties, LLC (“Avon”). Polk argues that the trial court erred in enforcing a contract between the parties because Avon’s power of acceptance had been terminated. We agree and reverse.

This case involves the sale of a residence and 181 acres of land in Polk County. Polk listed the property for sale with a real estate agent at a sale price of $1,299,000. On January 24, 2005, Avon made an offer to buy the property. Polk rejected the offer by making counteroffers on February 2 and February 3, 2005. There were some differences between the two counteroffers. However, both counteroffers provided that Avon had until 5 p.m. on February 7, 2005, to accept or reject them: “Seller counters Buyer’s offer (to accept the counter offer, Buyer must sign or initial the counter offered terms and deliver a copy of the acceptance to the Seller by 5:00 p.m. on 2/7/05).”

On February 4, 2005, Avon made another offer, which altered the material terms of the counteroffers. Polk did not respond to the February 4 offer, and Avon signed both of Polk’s counteroffers and delivered them before the February 7 deadline. Avon also delivered a $25,000 deposit check to Polk’s attorney, who accepted the check but eventually wrote “VOID” on it instead of cashing it.

When Polk refused to perform her duties under the signed counteroffers, Avon filed a suit seeking specific performance. The trial court ruled that Polk’s two counteroffers constituted option contracts, which were “irrevocable as long as [Avon] accepted all its terms within the specified time limit and immediately binding when [Avon] did accept.” The court ruled that Avon’s February 4 offer did not automatically terminate its power to accept the option contracts and that Avon’s acceptance created binding real estate sales contracts. In the alternative, the court concluded that Polk accepted the signed counteroffers by failing to object when they were presented to her with the deposit check. The court ordered the specific performance of one of the two signed counteroffers and suggested that the parties determine which counteroffer to perform between themselves.

On appeal, Polk argues that the trial court erred in ordering specific performance of the signed counteroffers because they were not enforceable contracts. Polk contends that her counteroffers were not irrevocable option contracts because they were unsupported by consideration. Polk argues that Avon’s February 4 offer was therefore a counter-counteroffer that automatically terminated Avon’s power of acceptance of her counteroffers.

“An option contract is a promise which meets the requirements for the formation of a contract and limits the promi-sor’s power to revoke an offer.” Restatement (Second) of Contracts § 25 (1981). “An option contract has two elements: 1) the underlying contract which is not binding until accepted; and 2) the agreement to hold open to the optionee the opportunity to accept.” Plantation Key Developers, Inc. v. Colonial Mtg. Co. of Ind., 589 F.2d 164, 168 (5th Cir.1979). In addition, an option contract requires consideration. Donahue v. Davis, 68 So.2d 163, 170 (Fla. 1953); Benson v. Chalfonte Dev. Corp., 348 So.2d 557, 559 (Fla. 4th DCA 1976); Restatement (Second) of Contracts § 87 (1981). If an “option” is not supported by consideration, it is considered an offer and not a contract. Donahue, 68 So.2d at 170.

In this case, the trial court made two findings regarding consideration: (1) because the absence of consideration was not made an issue at trial, it is not grounds to declare the contract ineffectual; and (2) the $25,000 deposit check constituted consideration. We conclude that both of these findings are erroneous.

First, even though consideration was not made an “issue” at trial, the counteroffers cannot be option contracts without consideration as a matter of law. Polk did not stipulate that there was consideration but merely failed to argue that the counteroffers did not constitute irrevocable option contracts due to lack of consideration. Furthermore, Polk did not stipulate that the counteroffers constituted, irrevocable option contracts but vehemently argued to the contrary. The lack of consideration is not an affirmative defense of any sort that was required to be pleaded. Thus, the court’s finding that the lack of consideration is not grounds to declare the contract ineffectual because it was “not made an issue at trial” is erroneous.

Second, the deposit check was indisputably consideration for the real estate sales contract, not the option contract. There are two contracts involved with the option to purchase real property: the option contract and the real estate sales contract. See Ronald' Benton Brown, An Examination of Real Estate Purchase Options, 12 Nova L.Rev. 147, 148-49 (Fall 1987). The option contract is a unilateral contract that requires the of-feror to hold open the offer to enter into the sales contract. Id. at 148. When the option contract is exercised, it will “ripen” into a sales contract. Id. at 149. Thus, the consideration for the option contract is separate and distinct from the consideration for the real estate sales contract. Ragan v. Schreffler, 306 S.W.2d 494, 499 (Mo.1957).

Avon argues an alternative basis for finding that Polk’s counteroffers constituted irrevocable option contracts. Avon claims that a seal on the counteroffers rendered them irrevocable option contracts. The common law traditionally provided that affixing a seal on the offer was another way to secure an option contract. Restatement (Second) of Contracts § 87 cmt. a (1981). However, “[t]he erosion of the formality of the seal has made it less and less satisfactory as a universal formality.” Id. Although Avon argued that a seal secured the option contracts in this case, we do not reach the issue of whether a seal is a viable method of securing an option contract in Florida because there is no evidence that there was an actual seal in this case. We reject Avon’s argument that Polk’s act of initialing the contract and encircling her initials in pen constituted a seal in these modern times wherein just about every contract contains this type of marking.

Because the counteroffers were unsupported by consideration, Polk’s counteroffers were not irrevocable option contracts but simply counteroffers. Therefore, Avon’s February 4 offer operated as a counter-counteroffer, which rejected Polk’s counteroffers. Racing Props., L.P. v. Baldwin, 885 So.2d 881, 883 (Fla. 3d DCA 2004) (“the alteration of one of the material terms of a contract constitutes a counter-offer and rejection of said contract”), review denied, 90S So.2d 125 (Fla. 2005); Restatement (Second) of Contracts § 39 (1981).

Avon argues that, without consideration, the counteroffers would become revocable option contracts, not counteroffers. What the Florida Supreme Court has stated on this issue is, “Unless supported by a consideration, an ‘option’ is considered as a mere offer which may be withdrawn at any time before acceptance.” Donahue, 68 So.2d at 170. This does not mean that an option unsupported by consideration is still a unilateral contract; it means the ‘option’ is ah offer, or in this case, a counteroffer. As with regular contracts, the absence of consideration means that there is no contract at all. Thus, contrary to Avon’s argument, the counteroffers were mere counteroffers, and Avon’s February 4 offer was a counter-counteroffer that terminated its power of acceptance of Polk’s counteroffers.

The Restatement explains the concept of counteroffer as rejection and contains an analogous illustration:

(1) A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing- a substituted bargain differing from that proposed by the original offer.
(2) An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.
Comment:
a. Counter-offer as rejection. It is often said that a counter-offer is a rejection, and it does have the same effect in terminating the offeree’s power of acceptance. But in other respects a counter-offer differs from a rejection. A counter-offer must be capable of being accepted; it carries negotiations on rather than breaking them off. The termination of the power of acceptance by a counter-offer merely carries out the usual understanding of bargainers that one proposal is dropped when another is taken under consideration; if alternative proposals are to be under consideration at the same time, warning is expected. Illustration:
1. A offers B to sell him a parcel of land for $5,000, stating that the offer will remain open for thirty days. B replies, “I will pay $4,800 for the parcel,” and on A’s declining that, B writes, within the thirty day period, “I accept your offer to sell for $5,000.” There is no contract unless A’s offer was itself a contract (see § 37), or unless A’s reply to the counter-offer manifested an intention to renew his original offer.

Restatement (Second) of Contracts § 39, cmt. a (1981).

As in the above illustration, Polk offered Avon to sell her parcel of land for a fixed price, stating that the offer would remain open for a time certain. Avon replied that it would purchase the parcel but altered a material term of Polk’s counteroffers. Avon then attempted to accept Polk’s counteroffers within the time period set forth therein. As the illustration reflects, there is no contract unless the counteroffers themselves were contracts or Polk’s reply to the signed counteroffers manifested an intention to renew the counteroffers.

This leads us to the court’s alternative basis, for ordering specific performance of the contracts. The court found that Polk accepted the signed counteroffers by failing to object when they were presented to her with the deposit check. The problem with the court’s findings on this issue is that they are based on Polk’s failure to reject the signed counteroffers, as opposed to affirmative actions by Polk to renew the counteroffers. Polk was not required to expressly repudiate the signed counteroffers because the counteroffers had been rejected by Avon when it made the counter-counteroffer. In fact, the signed counteroffers would technically have been counter-counter-counteroffers, which Polk had every right to consider. There is simply no evidence that Polk ever affirmatively indicated an intent to accept the signed counteroffers. Polk’s attorney may have accepted the deposit check from the realtor, but he did not cash the check and eventually wrote “VOID” on it.

The trial court relied upon the Fifth District’s decision in Mid-Florida Realty Associates, Inc. v. Truesdell, 454 So.2d 747 (Fla. 5th DCA 1984), to support its holding on this issue. However, that case is not on point. The issue in Mid-Florida Realty was whether a real estate broker was entitled to his commission for obtaining a buyer who was ready, willing, and able to buy the property. Id. at 748. The buyer had executed a contract that complied with the listing but made a material deviation. The broker argued that he was entitled to his commission because the seller had accepted the contract despite its deviation from the listing terms. The trial court dismissed the complaint for failing to state a cause of action.

The Fifth District reversed, holding that the broker would be entitled to his commission if the seller accepted the contract or waived any objections to it, regardless of whether the contract closed. Id. at 749. It is in this context that the Midr-Florida Realty court held that the seller’s “waiver or acceptance may be proved by showing actions or words of the seller inconsistent with a posture of rejecting the contract, or by express assent to the contract — written or verbal. Such communications between buyer and seller may be transmitted through the parties’ attorneys.” Id. (citations omitted).

Unlike Mid-Florida Realty, this court does not confront the issue of whether a broker is entitled to a commission for delivering a buyer who was ready, willing, and able to buy the property. The issue before this court is whether a seller renewed her counteroffers after they were rejected by the buyer’s counter-counteroffer.

In conclusion, Polk’s February 2 and February 3 counteroffers were not irrevocable option contracts because they were unsupported by consideration. Avon’s February 4 counter-counteroffer thus operated as a rejection of Polk’s counteroffers and terminated Avon’s power of acceptance of the counteroffers. Because Polk did not manifest an intent to renew her counteroffers, Avon’s action of signing the counteroffers and returning them within the applicable time period did not render them enforceable real estate sales contracts. Thus, the trial court erred in ordering specific performance of one of the two real estate sales contracts, and we reverse and remand for entry of a final judgment in Polk’s favor.

Reversed and remanded.

FULMER, C.J., and CANADY, J., Concur.


author: EVANDER, J.

text:
    Laverne PEAVEY, Appellant, v. Rodney REYNOLDS and Daily Business Forms, Etc, Appellees.
    No. 5D05-3640.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 24, 2007.

      Charles L. Handlin, III, of Handlin <& Hefferan, P.A., Orlando, for Appellant.
    William N. Asma, of William N. Asma, P.A., Winter Garden, for Appellee.
   EVANDER, J.

The issue in this case is whether a lease agreement between Láveme Peavey (the landlord) and Daily Business Forms & Supplies, Inc., (the tenant) is void as an unreasonable restraint on the alienation of property.

The parties entered into a lease agreement which, inter alia, provided:

Lease to be for a period of two years beginning October 24, 2001. Tenant has option to renew for additional subsequent two year periods upon notification to landlord of tenant’s desire to continue lease within 90 days of lease anniversary. If for any reason tenant terminates lease prior to anniversary date, tenant agrees to continue making monthly rental payments to landlord until such a time that the landlord rents the property, or the anniversary of the lease, whichever comes first. Tenant has the first option to purchase property if landlord determines that property is to be sold. If property is sold to any one other-than tenant, lease is binding and transferable to new landlord. If tenant determines not to renew lease, tenant will notify landlord 90 days prior to lease renewal. The monthly rental amount for the first two-year period will be $650.00 per month. Upon lease extension being executed by tenant for an additional two-year period, rent will increase to $700.00 per month. Upon completion of first two year extension, and upon notification by tenant to landlord, lease agreement will automatically renew for subsequent two-year periods there after, with rental amount increasing by $50.00 per month, per anniversary, for as long as tenant desires, (emphasis added)

In July, 2003, the landlord filed a declaratory judgment action seeking a determination that the lease was void. Both parties eventually filed cross motions for summary judgment. The trial court found the lease was valid and entered a final judgment in favor of the tenant. We reverse.

The rule against unreasonable restraints on alienation is founded entirely upon considerations of public policy, specifically, the idea that the free alienability of property fosters economic and commercial development. Seagate Condominium Assoc., Inc. v. Duffy, 330 So.2d 484, 485 (Fla. 4th DCA 1976). The test to be utilized with respect to restraints on alienation is the test of reasonableness. Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980). The validity or invalidity of a restraint depends upon its long-term effect on the improvement and marketability of the property. Id.

In Iglehart, the defendants sold certain real property to the plaintiffs predecessor in interest. The deed purported to grant the defendants the right to repurchase the property if the plaintiff ever desired to sell it. The option price was fixed by terms set forth in the repurchase option. The repurchase option was of unlimited duration.

The court found that such restriction would discourage the owner from making any improvements to the property. The court further noted, as long as there was an inflationary market, it was unlikely the owner would ever sell the property. The court concluded the repurchase option was void as an unreasonable restraint on alienation.

In this case, the lease grants the tenant the right to renew the lease indefinitely at a rental rate fixed by the terms of the lease. The lease also provides that any subsequent landlord would be bound by the terms of the lease. If upheld, the lease would have the potential to forever prevent the landlord (and her successors) from being able to utilize the property for any purpose other than renting the property to the corporate tenant at a predetermined rate. The landlord would, however, remain obligated to pay the property taxes and the expense of properly maintaining the exterior of the property’s structure— regardless of the cost.

As in Iglehart, the landlord has little incentive to make improvements on her property. Furthermore, it is highly questionable whether the landlord would be able to sell the property to a third person. Few people would be willing to purchase a property which they might never have the right to use other than to rent it at a predetermined rate. Accordingly, we find the lease to be void as an unreasonable restraint on alienation.

We recognize the tenant may have made improvements to the property based on its belief that it had the right to renew its lease indefinitely. Therefore, on remand, the trial court may use its equitable powers to ensure “full justice [is] done between the parties.” Iglehart, 383 So.2d at 617. See also Hutchinson v. Kimzay of Florida, Inc., 637 So.2d 942, 945 (Fla. 5th DCA 1994). Specifically, it would appear that if the tenant is required to vacate the property, it should be compensated for the value of any improvements it made to' the leased property based on its expectation of remaining on the premises for a lengthy period of time.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . Although we are unaware of any Florida cases directly addressing this issue, the Déla-ware Supreme Court has similarly found a lease provision giving the lessee an option to renew the lease perpetually, at a fixed rental rate, to be void. Wilmington Parking Authority v. Ranken, 105 A.2d 614, 634 (Del.1954).


author: PER CURIAM.

text:
    USAA CASUALTY INSURANCE COMPANY, Appellant, v. Sabrina JONES and Cheryl Blake, as Personal Representatives of the Estate of Gladys Elouise Brown-Fields, Deceased, and Mildred Grant, as parent and natural guardian of Monica A. Grant, Appellees.
    No. 1D06-5277.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.

      Kristen M. Van Der Linde of Boyd & Jenerette, P.A., Jacksonville, for Appellant.
    Paul A. Shorstein, Jacksonville, for Ap-pellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 27, 2006, the Court has determined that the order on appeal is not an appealable order. Florida Rule of Appellate Procedure 9.110(m) provides that “Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.” Here, no claim has been made against the insureds. Therefore, on its face, the rule precludes review of the order on appeal and the Court lacks jurisdiction. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, HAWKES, and THOMAS, JJ., concur.


text:
    Arnold D. HERVY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4165.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 24, 2007.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed. See Potts v. State, 718 So.2d 757, 759 (Fla.1998) (“Because the court’s ruling [regarding the defendant’s waiver of counsel] turns primarily on an assessment of demeanor and credibility, its decision is entitled to great weight and will be affirmed on review if supported by competent substantial evidence in the record.”); Guilder v. State, 899 So.2d 412, 420 (Fla. 4th DCA 2005) (holding that “trial court did not abuse its discretion by failing to conduct a proper” inquiry pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), where record indicated defendant made, the choice to proceed pro se with a full understanding of his decision).

CANADY, WALLACE, and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Louis James DADDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4638.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 30, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Louis James Dadds appeals his convictions and sentences for possession of cocaine and possession of drug paraphernalia. We find no merit in Mr. Dadds’ argument that the trial court should have interviewed jurors before denying his hew trial motion. We write, however, to address the trial court’s imposition of certain costs and fines. Mr. Dadds properly preserved a challenge to the imposition of a $525 fine and surcharge, a $300 public defender fee, and a $20 Crime Stoppers Trust Fund cost by filing a motion to correct sentencing error. See Fla. R.App. P. 3.800(b)(2). The trial court summarily denied his motion.

Mr. Dadds argues that the trial court pronounced no statutory basis for the imposition of a $500 fine other than section 938.04, Florida Statutes (2004), that addresses the imposition of a five percent surcharge to the imposed fine. We conclude that the fine and surcharge must be stricken. The trial court’s monetary obligations order refers to section 893.13,. Florida Statutes (2004). Mr. Dadds’ cocaine possession conviction is for a violation of section 893.13(l)(a)(2). That subsection does not mandate a $500 fine. Section 893.13(l)(a)(2) does refer to section 775.083, Florida Statutes (2004), as does the trial court’s monetary obligations order. However, fines under section 775.083(1) are discretionary and must be pronounced. Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995). Because the trial court did not make that pronouncement, the $500 fine and $25 surcharge cannot stand. Thus, we reverse the imposition of the $525 fine and surcharge and remand with directions that they be stricken. See, e.g., Willits v. State, 884 So.2d 73, 74 (Fla. 2d DCA 2004) (remanding for trial court to strike fine and surcharge and noting that defendant’s presence at resen-tencing was not required).

Relying on section 938.06, Florida Statutes (2004), the trial court also imposed a $20 mandatory cost for the Crime Stoppers Trust Fund. Section 938.06(1) authorizes this cost as “an additional surcharge” to “any fine prescribed by law.” Because the $500 fine discussed above was not properly imposed, the trial court could not impose the additional $20 surcharge under section 938.06. See, e.g., Kimball v. State, 933 So.2d 1285, 1287 (Fla. 2d DCA 2006); Lang v. State, 856 So.2d 1105, 1106 (Fla. 1st DCA 2003). This cost must be stricken. Kimball, 933 So.2d at 1287.

Finally, Mr. Dadds argues that the trial court failed to pronounce the statutory basis for the imposition of a $300 public defender fee. The trial court orally pronounced a $300 fee “for the help of your lawyer.” Mr. Dadds agreed that the amount was reasonable. The trial court’s monetary obligations order cites section 938.29, Florida Statutes (2004), as authority for this fee. The trial court’s description of the fee and citation to the correct statutory provision is sufficient to warrant affirmance. See, e.g., Ayoub v. State, 901 So.2d 311, 314 (Fla. 2d DCA 2005) (holding that identifying cost by name is sufficient description to substitute for statutory citation but directing that future cost orders should include proper statutory citations); Cook v. State, 896 So.2d 870, 872 (Fla. 2d DCA 2005) (explaining procedure involved in imposing attorney’s fees under section 938.29).

Affirmed in part, reversed in part, and remanded with directions to strike the $525 fine and surcharge and the $20 Crime Stoppers Trust Fund cost.

■STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    William Frank BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5729.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 31, 2007.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    William Frank Butler, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm William Butler’s conviction for resisting arrest with violence and his sentence as a violent career criminal. See Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001) (affirming prison releasee reof-fender sentence when battery on a law enforcement officer was qualifying forcible felony). On the sentencing issue, we certify conflict with Hearns v. State, 912 So.2d 377 (Fla. 3d DCA 2005) (holding that battery on a law enforcement officer does not always constitute forcible felony for enhanced sentencing), review granted, 926 So.2d 1270 (Fla.2006).

Affirmed; conflict certified.

FULMER, C.J., and NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Julius McGRIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5341.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 26, 2007.
    Julius McGriff, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Michael L. JOHNSON, Appellant, v. Suzanne F. JOHNSON, Appellee.
    No. 1D05-4170.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, for Appellant.
    John L. Myrick, Pensacola, for Appellee.
   PER CURIAM.

The appellant challenges several rulings made by the trial court in connection with the dissolution of the parties’ marriage. However, the appellant has not shown any error except insofar as the attorney’s fee award for the appellee encompasses services performed after the dissolution order was filed, to the extent that award exceeds the attorney’s fee limitation in the parties’ nuptial agreement. As indicated in Belcher v. Belcher, 271 So.2d 7 (Fla.1972), this limitation does not apply to services performed before the dissolution, but services after dissolution are subject to the agreed limitation. See also Urbanek v. Urbanek, 484 So.2d 597 (Fla. 4th DCA), cause dismissed, 491 So.2d 281 (Fla.1986). This rule is not impacted by more recent decisions such as Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla.2005).

The appealed orders are reversed to the extent indicated herein. The orders are otherwise affirmed, and the case is remanded.

ALLEN, LEWIS and HAWKES, JJ., concur.


text:
    Lucy HADI, as Secretary for the Department of Children and Families, Petitioner, v. L.B., B.B., R.B., & E.B., minor children, Respondents.
    No. 1D06-4724.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.

      Lucy Goddard-Teel, District Legal Counsel, and Gregory D. Venz, Assistant General Counsel, Gainesville, for Petitioner.
    Merrill C. Tunsil, Attorney ad Litem, and Sandra H. Peterson, Guardian Ad Li-tem Program Attorney, Lake City, for Respondents.
   PER CURIAM.

We have for review a petition for writ of certiorari challenging the portion of the trial court’s order directing the attorney for the Department of Children and Families to subpoena the Secretary of the Department, Lucy Hadi, to appear before the trial court to testify as to whether the Department has an appropriate placement in Florida for B.B., a dependent minor. Because the information sought by the trial court is available from lesser ranking officers, the trial court departed from the essential requirements of the law by directing the Department to subpoena Secretary Hadi. Dep’t of Health & Rehab. Seros, v. Brooke, 573 So.2d 363, 371 (Fla. 1st DCA 1991), approved by F.G. v. Agency for Persons with Disabilities, 940 So.2d 1095 (Fla.2006).

We therefore grant the petition and quash the portion of the trial court’s order directing the Department to subpoena Secretary Hadi. We note that the trial court is free to subpoena a lesser ranking officer to obtain any additional information to assist in the placement of B.B.

ERVIN, DAVIS, and BENTON, JJ„ concur.


text:
    MIAMI-DADE POLICE DEPARTMENT, Appellant, v. In re FORFEITURE $28,176.00 U.S. CURRENCY, Appellee.
    No. 3D06-105.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.

      William J. Monahan, and Robert Knabe, for appellant.
    Gregg S. Lerman, West Palm Beach, for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

The Miami-Dade Police Department (“Department”), appeals an adverse final judgment which found there was no probable cause for the seizure of $28,176.00. We affirm.

Around 8:00pm, two undercover police officers saw a parked Honda in the corner of a shopping plaza parking lot. The lot was emptying out but several businesses were still open. The police officers believed that the car was either abandoned or stolen. However, they did not have any information that anyone had reported the car stolen.

Although the officers did not see anyone in the car or any criminal activity, they approached the car to check the tag and VIN number. The driver started the engine and drove toward the parking lot exit. The officers ran the tag and learned that the car was not stolen.

The officers followed the driver and activated their police lights. The driver was fully cooperative and pulled over. The officers asked the driver why he was in the parking lot. He said he was waiting for an individual named Tony.

Upon further questioning, the driver then admitted that he had driven down from West Palm Beach to purchase marijuana from an unknown individual, and that there was money in the backseat. The driver waived his Miranda rights and agreed to a vehicle search. The police seized $28,176.00 in U.S. currency as contraband.

The trial court conducted a civil forfeiture probable cause hearing at the driver’s request. The trial court concluded that the police officers conducted an illegal stop in violation of the Fourth Amendment, and excluded the seized currency. This appeal follows.

On appeal, the Department contends that the trial court denied the Department the opportunity to present evidence on the Fourth Amendment exclusionary rule. The Department also argues that the trial court erred in finding that the police officers did not have reasonable suspicion for the stop. We disagree.

Florida law is clear that the exclusionary rule applies to forfeiture proceedings, and that evidence the police obtain in violation of the Fourth Amendment must be excluded at probable cause hearings. See Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005). Therefore, it is necessary for courts to address Fourth Amendment issues prior to addressing the probable cause issue of whether there is a nexus between the seized property and illegal activities. In re Forfeiture of 1999 Dodge Intrepid v. Judd, 934 So.2d 669 (Fla. 2d DCA 2006).

Here, at the probable cause hearing, the court excluded the evidence found as a result of the illegal stop. The Department did not ask to present evidence on this issue, did not object during the hearing, and did not seek a continuance to present additional evidence. The Department can not now claim error because it did not preserve this issue for appellate review. See F.B. v. State, 852 So.2d 226 (Fla.2003).

Next, we turn to the legality of the stop. Based on our de novo review of the evidence, we agree with the trial court that the' police conducted an illegal investigatory stop and that any evidence the pólice obtained as a result of the stop must be excluded.

A police officer may conduct an investigatory stop and detain a citizen temporarily on less than probable cause if the officer has reasonable suspicion that a person has committed, is committing, or is about to commit a crime. State v. Taylor, 826 So.2d 399 (Fla. 3d DCA 2002); Donaldson v. State, 803 So.2d 856 (Fla. 4th DCA 2002). The officer, however, must be able to point to specific facts, which taken together with inferences from those facts, reasonably warrant this type of intrusion. § 901.151(2), Fla. Stat. (2005); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Merely suspecting possible criminal activity is not enough to legally stop a person. Taylor, 826 So.2d at 402. Looking at the totality of the circumstances in this case, the police officers had no reasonable founded suspicion that any criminal activity was taking place. See Alvarez, 900 So.2d at 767.

Here, the ear was legally parked in a shopping center open for business. Although the officers approached the car because they believed it was abandoned or stolen, they determined that, in fact, the car was not stolen. Further, the officers neither observed any criminal activity, nor stopped the driver for a traffic infraction. The driver was fully cooperative and did not attempt to flee or elude the undercover officers. These facts, without more, do not create a reasonable suspicion of criminal activity sufficient for the officers to stop the car.

Moreover, it is well settled that merely observing an individual in a legally parked car is insufficient to raise a well-founded suspicion of criminal activity to support a stop. Popple v. State, 626 So.2d 185 (Fla. 1993); Miranda v. State, 816 So.2d 132 (Fla. 4th DCA 2002)(observing a legally parked car in the back of apartment complex at 5:00am in area of prior criminal activity was not sufficient to create reasonable suspicion that a crime had or was about to occur); Alvarez v. State, 695 So.2d 1263 (Fla. 2d DCA 1997)(officers who observed defendant in a legally parked car at 4:00am did not have reasonable suspicion that defendant was committing a crime); Sites v. State, 582 So.2d 813 (Fla. 4th DCA 1991)(legally parked cars do not give a police officer a basis for detaining or searching persons therein).

Accordingly, we affirm the trial court’s order finding the stop of the vehicle unlawful, and finding the Department could not establish probable cause that the money was used in violation of the Florida Contraband Forfeiture Act.

Affirmed.


author: TAYLOR, J.

text:
    M.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4774.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

M.S!, a juvenile, appeals the trial court’s denial of his motion to correct sentencing error filed during the pendency of this appeal. He contends that the disposition orders entered in his delinquency cases failed to limit the court’s jurisdiction over him to the statutory maximum penalty for his offenses or to his nineteenth birthday, whichever occurred first, and that the disposition orders regarding the misdemean- or offenses failed to provide him with credit for time served in secure detention pending his disposition and placement into a Level 8 program. We agree that M.S. is entitled to credit for secure detention time served on the misdemeanor offenses and remand for correction to reflect such credit.

M.S. was charged by petition with “improper exhibition of a dangerous weapon.” He pled guilty to the charge and the trial court withheld adjudication and placed him on probation. About five months later, M.S. was charged by petition with “robbery by sudden snatching” and “carrying a concealed weapon.” As a result of these two offenses, a sworn affidavit/petition for violation of probation was filed. M.S. was adjudicated guilty of both offenses. He then pled guilty to violating probation. His disposition was deferred.

A third petition was filed charging M.S. with “battery in county jail or detention facility.” M.S. pled guilty to this offense, as well as to violating probation, based on the offense. The court accepted M.S.’s guilty plea and again deferred disposition. Ultimately, M.S. was- adjudicated delinquent and committed to a Level 8 program on all three cases. M.S. appealed his judgment and conviction.

Between the initial pick-up order issued for M.S. and the trial court’s final disposition order, the trial court issued numerous orders that M.S. be held in secure detention. During the pendency of his appeal, M.S. moved the trial court to correct sentencing error. Because the court did not rule upon the motion, it was deemed denied.

In his motion to correct sentencing error, M.S. argued that the disposition orders in all three cases on appeal failed to reflect the limitations of the trial court’s jurisdiction over him, and that two of the disposition orders failed to provide him with credit for time served in secure detention pending his disposition and placement into a Level 8 program.

Section 985.201(4)(a), Florida Statutes (2002), provides:

Notwithstanding ss. 743.07, 985.229, 985.23, and 985.231, and except as provided in ss. 985.31 and 985.313, when the jurisdiction of any child who is alleged to have committed a delinquent act or violation of law is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult.

Section 985.231(l)(a)(8), Florida Statutes (2002), states that a court with jurisdiction may, by order:

Commit the child to the Department of Juvenile Justice for placement in a program or facility for serious or habitual juvenile offenders in accordance with s. 985.31. Any commitment of a child to a program or facility for serious or habitual juvenile offenders must be for an indeterminate period of time, but the time may not exceed the maximum term of imprisonment that an adult may serve for the same offense. The court may retain jurisdiction over such child until the child reaches the age of 21, specifically for the purpose of the child completing the program.

Thus, a court may retain jurisdiction until the child reaches the age of nineteen; or if the child is committed by the court, for the maximum term an adult offender may serve for the offenses, but in no event after the child turns twenty-one, whichever occurs first.

Disposition orders are governed by Florida Rule of Juvenile Procedure 8.115. Subsection (c) provides:

The disposition order shall be prepared and distributed by the clerk of the court. Copies shall be provided to the child, defense attorney, state attorney, and department representative. Each case requires a separate disposition order. The order shall:
(1) state the name and age of the child;
(2) state the disposition of each count, specifying the charge title, degree of offense, and maximum penalty defined by statute;
(3) state general and specific conditions or sanctions;
(4) make all findings of fact required by law;
(5) state the date and time when issued and the county and court where issued; and
(6) be signed by the court with the title of office.

Appellant argues that the trial court erred in failing to specify that his Level 8 commitment was limited to the statutory maximum penalty or to his nineteenth birthday, whichever occurred first. We conclude, however, that the trial court’s disposition orders are not defective for failing to explicitly state the limitations of the trial court’s jurisdiction over M.S. See J.G. v. State, 783 So.2d 1233,1236 (Fla. 5th DCA 2001) (holding that the disposition order was not infirm for failure to explicitly state that the court’s jurisdiction over juvenile ended when he reached age nineteen; stating that “all parties are on notice that, when J.G. reaches the age of nineteen, the trial court’s jurisdiction terminates by operation of law pursuant to section 985.201(4)(a), Florida Statutes (1999)”); T.J. v. State, 743 So.2d 1158, 1159-60 (Fla. 2d DCA 1999) (receding from cases that require a disposition order under chapter 985 to explicitly state jurisdiction ends at age nineteen; stating “[w]e conclude that both the juvenile and the State are on legal notice of the content of that chapter”).

We agree with the state that, here, where the child was committed by the court, the trial court met the requirements of rule 8.115 and section 985.231(l)(a)(8) by specifying in each order the maximum term of imprisonment that an adult may serve for each offense. This is sufficient, because section 985.231(l)(a)(8) dictates that commitment not to exceed this term.

As to the second point raised by M.S., we agree and accept the state’s concession that the trial court erred in failing to award M.S. credit for time spent in secure detention against the one-year maximum period for the misdemeanor offenses. See J.I.S. v. State, 930 So.2d 587 (Fla.2006).

In J.I.S., the Florida Supreme Court recently addressed the question raised by the First District Court of Appeal in J.I.S. v. State, 902 So.2d 890 (Fla. 1st DCA 2005): “Is a juvenile delinquent who receives an indeterminate residential commitment to the Department of Juvenile Justice (DJJ) entitled to credit for time served in secure detention before the commitment?” Id. at 589. The supreme court answered this question in the negative, agreeing with the first district that pre-commitment credit for time served in secure detention is not required on an “indeterminate” commitment. However, the court concluded that such credit is awarda-ble on a “determinate” sentence.

The supreme court examined the difference between “determinate” and “indeterminate” sentences, stating that the distinction would be “crucial in determining entitlement to credit for time served in secured detention.” Id. at 592. The court cited several opinions from our district which recognized a difference between “determinate” and “indeterminate” commitments in deciding entitlement to credit for time served in secure detention. Id. at 593 (citing D.T. v. State, 820 So.2d 1091, 1092 (Fla. 4th DCA 2002) (holding that credit for time served should be granted a juvenile in residential commitment for a first degree misdemeanor, but noting that “credit should be applied from the end of the commitment period as the length of commitment is indeterminate and only limited to the maximum term that could be served by an adult”); J.B. v. State, 829 So.2d 376 (Fla. 4th DCA 2002) (holding error for trial court to fail to give the juvenile credit for time served for first- and second-degree misdemeanor offenses); L.K v. State, 729 So.2d 1011 (Fla. 4th DCA 1999) (ordering the trial court to correct the disposition order to reflect that the juvenile could serve no more than one year, and to note that the juvenile was allowed credit for time served against the period of commitment)).

The supreme court quoted language from our opinion in C.C. v. State, 841 So.2d 657, 658-59 (Fla. 4th DCA 2003), wherein we held that the juvenile was entitled to predisposition credit for time served in secure detention against a moderate-risk residential commitment for a misdemean- or:

The juvenile justice system is designed to rehabilitate youth. Accordingly, juveniles are committed for indeterminate lengths of time. It is, therefore, generally impossible to fix a date from which to deduct time spent in secure detention. Perhaps this is why there is no comparable statute [to section 921.161(1) ] found in Chapter 985. Nevertheless, this is one of those cases involving a misdemeanor where the credit for time served in secure detention can find certainty.

Id. at 593-94.

As the supreme court noted, we later applied the felony/misdemeanor distinction in our en banc decision in J.W. v. State, 879 So.2d 680, 682 (Fla. 4th DCA 2004), in awarding credit for the misdemeanor offense but not for the felony. Id. at 594.

The J.I.S. court adopted this dichotomy in its holding:

Accordingly, we conclude, as did the Fourth District in J.W., C.C., J.B., D.T., and L.K, that in the case of a determinate commitment, that is, for a crime on which the maximum punishment will .necessarily conclude before DJJ loses authority over the offender, the trial court must grant credit for time served in secure detention against the residential commitment. However, as noted by the Fourth District in C.C. and the First District in this case, where the commitment is indeterminate and will necessarily extend up to DJJ’s age-based jurisdictional limits, such credit need not be granted.

J.I.S. at 596.

In this case, M.S. was adjudicated delinquent and committed to a Level 8 program for both misdemeanor and third degree felony crimes. Because the length of M.S.’s commitment on the misdemeanor offenses is determinate, he is entitled to credit for time served in secure detention for the misdemeanor crimes that were part of his overall commitment. Accordingly, we reverse and remand this cause with directions to correct the disposition orders to reflect such credit.

Reversed and Remanded.

STEVENSON, C.J., and GUNTHER, J., concur.


author: PER CURIAM. KLEIN, J.,

text:
    James LESCHER, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 4D06-2291.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, for petitioner.
    Heather Rose Cramer, Lake Worth, and Thomas C. Mielke, Miami, for respondent.
   PER CURIAM.

Petitioner’s Florida driver’s license was permanently revoked on December 1, 2000, based on his four prior DUI convictions. He applied for reinstatement of his license on hardship grounds on August 3, 2005, as authorized by a statute which is no longer in effect. His application was denied administratively and upheld by the circuit court. We deny his petition for certiorari.

In the past, section 322.271(4), Florida Statutes, authorized a person whose license had been revoked for four or more DUI’s to seek a hardship license after five years of revocation of the license. That provision was eliminated by Chapter 98-223, Laws of Florida, in 1998; but Chapter 98-223 was later held unconstitutional for violating the single subject requirement of the Florida Constitution. Art. Ill, § 6, Fla. Const.; Fla. Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

The legislature then adopted the provision as an amendment to. : section 322.271(4), effective July 1, 2003. The State acknowledges that there was a “window” during which a hardship license could have been requested, as a result of Critch-field, but that period closed on July 1, 2003, when the amendment held unconstitutional in Critchfield was reenacted.

In this case petitioner applied for reinstatement of his driver’s license- as a hardship on August 3, 2005. Under Cantrall v. Department of Highway Safety & Motor Vehicles, 828 So.2d 1062 (Fla. 2d DCA 2002), the statute in effect at the time of application for reinstatement of a driver’s license controls, not the statute in effect when the driver’s license was revoked. We agree with Cantrall. Hill v. Dep’t of Highway Safety & Motor Vehicles, 891 So.2d 1202 (Fla. 4th DCA 2005).

Petitioner argues that when the legislature reenacted the law effective July 1, 2003, the elimination of the hardship license violated the ex post facto prohibition in the Florida Constitution, Article I, section 10, as to him. Petitioner’s driver’s license was permanently revoked in 2000. Petitioner primarily relies on Judge Klein’s concurring opinion in Cornelius v. State, 913 So.2d 1176 (Fla. 4th DCA 2005). In Cornelius this court held that the elimination of the hardship license would not be a basis for withdrawal of a plea in which the defendant had agreed to a lifetime revocation of his driver’s license. In Cornelius, we held en banc:

The possibility of a reinstatement of driving privileges is not a direct consequence of the plea. ; Reinstatement depends upon the department’s review of the applicant’s entire driving record and fitness to drive. The granting of a work permit was not automatic, even under the statute in existence at the time of defendant’s plea. It is an administrative proceeding and not part of the criminal proceeding.

Id. at 1178. The concurring opinion in Cornelius suggested that when the defendant applied for a hardship license, he might have an argument that the amendment, as applied to him, was unconstitutional as an ex post facto law. In one of the cases cited in the concurring opinion, on which petitioner relies, Waldrup v. Dugger; 562 So.2d 687 (Fla.1990), the Florida Supreme' Court held that an amendment to a statute which resulted in a decrease in incentive gain time for prisoners could not be constitutionally applied retroactively because it would be an ex post facto violation.

The State points out that in Waldrup, the ex post facto violation occurred because the punishment for a criminal offense was being increased after the crime had been committed. The administrative revocation of a driver’s license for DUI, however, is not punishment. In Department of Highway Safety & Motor Vehicles v. Gordon, 860 So.2d 469, 471 (Fla. 1st DCA 2003), rev. denied, 872 So.2d 899 (Fla.2004), the court explained:

The administrative revocation of a driver’s license for DUI is not “punishment” of the offender. See Dep’t of Highway Safety & Motor Vehicles v. Grapski, 696 So.2d 950, 951 (Fla. 4th DCA 1997). Rather “it is an administrative remedy for the public protection that mandatorily follows conviction for certain offenses.” Id. (quoting Smith v. City of Gainesville, 93 So.2d 105, 107 (Fla. 1957)); see also Dep’t. of Highway Safety and Motor Vehicles v. Vogt, 489 So.2d 1168, 1170 (Fla. 2d DCA 1986). When a driver’s license revocation is made mandatory by statute, revocation is an administrative function rather than the imposition of a criminal sentence. See Grapski, 696 So.2d at 951.

The Supreme Court of Florida has held that a law violates ex post facto clauses of the United States and Florida Constitutions “when it increases the punishment for a criminal offense after the crime has been committed. • See U.S. Const, art. I, § 9; U.S. Const, art. I, § 10, cl. 1, § 10, Fla. Const.” Goad v. Fla. Dep’t of Corr., 845 So.2d 880, 882 (Fla.2003) (ruling that the retroactive application of a statute authorizing inmates’ civil liability for costs of incarceration to the existing inmate population did not violate ex post facto prohibitions).

Because the ex post facto clauses of the United States and Florida Constitutions apply only to criminal legislation and proceedings, Goad, 845 So.2d at 882, and driver’s license revocation has been held not to be criminal punishment, the amendment eliminating the hardship license, when applied to petitioner, is not unconstitutional as an ex post facto law.

Because we are seeing a number of petitions raising this issue, and anticipate that other districts will also face the same issue, we certify the following question as one of great public importance:

Does the amendment to section 822.271(1), Florida Statutes, which eliminated hardship driver’s licenses effective July 1, 2008, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?
Petition for Certiorari Denied.

GUNTHER and SHAHOOD, JJ., concur.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

The cases relied on by the majority for the proposition that the revocation of a driver’s license for DUI is not punishment all stem from Smith v. City of Gainesville, 93 So.2d 105 (Fla.1957). The issue in Smith was whether, under a statute requiring license revocation, a municipal court judge could revoke the license, where the Florida Constitution limited municipal courts to punishing offenses which violated municipal ordinances. The court stated that under the statute the license revocation was an administrative remedy to protect the public, not a punishment.

Shortly after Smith, however, in Miami v. Aronovitz, 114 So.2d 784, 787 (Fla.1959), our supreme court used language consistent with the revocation being penal:

We judicially know that as originally contemplated the drivers’ license requirement was enacted primarily as a source of revenue to finance the maintenance of the State Department of Public Safety. Time has proven, however, that because of the severe penalties attendant upon serious traffic violations, including suspension or revocation of drivers’ licenses, this requirement has become an essential segment of our laws for the control and prevention of traffic accidents and fatalities. The public records reveal that during the first six months of the current calendar year over two and one-half million drivers’ licenses had been issued in Florida. It is a privilege to hold a license to drive. It is a severe handicap to be compelled to do without one. Suspension or revocation of drivers’ licenses is one of the most effective measures to compel observance of the traffic laws.

This court also has characterized the revocation of a driver’s license as a penalty. In Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998), a defendant who had entered a plea to drug possession moved to withdraw his plea because he had not been informed that as a result of his plea his driver’s license would be revoked under section 322.055(1), Florida Statutes (1997). Judge Gross wrote for the court:

Florida Rule of Criminal Procedure 3.170(k) requires the trial court to determine that a defendant’s plea is voluntary. One aspect of a voluntary plea is that the defendant understand the reasonable consequences of his plea, including “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Fla. R.Crim. P. 3.172(c)(1); Ashley v. State, 614 So.2d 486, 488 (Fla.1993). However, a trial court is required to inform a defendant only of the direct consequences of the plea, and is under no duty to advise the defendant of any collateral consequences. See State v. Ginebra, 511 So.2d 960, 961 (Fla.1987); State v. Fox, 659 So.2d 1324, 1327 (Fla. 3d DCA 1995), rev. den., Fox v. State, 668 So.2d 602 (Fla.1996). In Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982), this court adopted the fourth, circuit’s definition of a “direct consequence” of a plea:
“The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.) cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973).
In this case, the two year license revocation mandated by section 322.055(1) was definite, immediate, and automatic upon Daniels’ conviction. The revocation was a “consequence” of the plea under Ashley and a “penalty” contemplated by Rule 3.172(c)(1).

Daniels, 716 So.2d at 828-29.

We used the same Daniels analysis in Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001), where the revocation of the driver’s license was for DUI. Our conclusion in Daniels that the revocation of a driver’s license is a direct, not a collateral consequence of a guilty plea, is in conflict with State v. Bolware, 28 Fla. L. Weekly D2493, - So.2d -, 2003 WL 22460271 (Fla. 1st DCA Oct. 31, 2003), and the Florida Supreme Court has granted review. Bolware v. State, 924 So.2d 806 (Fla.2006).

Our current driver’s license revocation statutes provide that, after a first DUI conviction, revocation shall be for six months to one year, and that on second, third, and fourth violations, the periods of revocation increase, with a lifetime revocation following a fourth DUI conviction. § 322.28(2), Fla. Stat. (2006). This escalation, depending on the number of prior offenses, which was not in the 1957 statute addressed in Smith, smacks of punishment to me. I cannot agree that the purpose of our current statute is only for the protection of the public. Even where the legislative intent is for a remedy to be civil, a statute can be so punitive as to be deemed criminal and subject to ex post facto principles. Goad v. Fla. Dep’t of Corr., 845 So.2d 880, 884 (Fla.2003).

The fact that issuance of a hardship license is discretionary does not preclude the application of ex post facto principles. In Dugger v. Williams, 593 So.2d 180, 181 (Fla.1991), the Florida Supreme Court stated:

In Florida, a law or its equivalent violates the prohibition against ex post facto laws if two conditions are met: (a) it is retrospective in effect; and (b) it diminishes a substantial substantive right the party would have enjoyed under the law existing at the time of the alleged offense. Art. I, § 10, Fla. Const.; Waldrup v. Dugger, 562 So.2d 687, 691 (Fla.1990). There is no requirement that the substantive right be “vested” or absolute, since the ex post facto provision can be violated even by the retroactive diminishment of access to a purely discretionary or conditional advantage. Waldrup, 562 So.2d at 692. Such might occur, for example, if the legislature diminishes a state agency’s discretion to award an advantage to a person protected by the ex post facto provision. This is true even when the person has no vested right to receive that advantage and later may be denied the advantage if the discretion otherwise is lawfully exercised. Id. In other words, the error occurs not because the person is being denied the advantage (since there is no absolute right to receive it in the first place), but because the person is denied the same level of access to the advantage that existed at the time the criminal offense was committed.

I would hold that the revocation of a driver’s license for a DUI is a penalty, and that the elimination of the hardship license in 2003 is an ex post facto violation as to petitioner, whose license was revoked in 2000.