author: LAWSON, J.

text:
    SEMINOLE COUNTY, Florida, Appellant/Cross-Appellee. v. The CITY OF WINTER SPRINGS, Florida, Appellee/Cross-Appellant.
    No. 5D05-81.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.

      Robert A. McMillan, Seminole County Attorney, Stephen P. Lee, Deputy County Attorney, and C. Allen Watts of Cobb & Cole, Deland, for Appellant/Cross-Appel-lee.
    Anthony A. Garganese and Erin J. O’Leary of Brown, Garganese, Weiss & D’Agresta, P.A., Orlando, for Appel-lee/Cross-Appellant.

      Leonard Berger, Senior Assistant County Attorney, West Palm Beach, Amicus Curiae for The Florida Association of Counties, et al.
    Thomas G. Pelham of Fowler White Boggs Banker, P.A., Tallahassee, and Catherine D. Reischmann of Stenstrom, McIntosh, Colbert, Whigham, Reischmann & Partlow, P.A., Amicus Curiae for The Florida League of Cities, Inc.
   LAWSON, J.

Seminole County, Florida, (“County”), appeals from a final judgment declaring invalid a County charter amendment allowing the County to regulate future development in a rural eastern section of the County. The City of Winter Springs, (“City”), cross appeals from the same judgment. We disagree with the trial court’s conclusions that: (1) the ballot summary language explaining the charter amendment to the County’s voters was misleading; and (2) the amendment violates the County charter’s “single subject rule.” We also find that the amendment constitutes a proper exercise of the County’s home rule power under Article VIII of the Florida Constitution. Therefore, we reverse that part of the trial court’s judgment invalidating the charter amendment, and affirm in all other respects.

Division of Local Government Powers under Florida’s Constitution

Article VIII, Section 1 of the Florida Constitution requires the state to be divided into political subdivisions called “counties.” Counties may be created, abolished, or changed by law, and may exist as either “charter” or “non-charter” counties. Id. Article VIII, Sections 1(f) and (g) address the powers of non-charter and charter counties, respectively, as follows:

(f) Non-charter government. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.
(g) Charter government. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.

The most significant feature of charter counties is the direct constitutional grant of broad powers of self-government, which include local citizens’ power to enable their charter county to enact regulations of county-wide effect which preempt conflicting municipal ordinances. See Art. VIII, § 1(g), Fla. Const., D’Alemberte commentary, reprinted in 26A Fla. Stat. Ann. 155, 157 (West 1995) (“This entirely new subsection provides for the broadest extent of county self-government or ‘home rule’ as it is commonly described ... the power which may be granted to county governments under a charter is the power to have county ordinances take precedence over municipal ordinances.”).

Article VIII, Section 2 of the Florida Constitution provides that “[mjunicipalities may be established or abolished, and their charters amended pursuant to general or special law.” Like charter counties, the Constitution grants municipalities broad home-rule powers. A municipality “may exercise any power for municipal purposes except as otherwise provided by law.” Art. VIII, § 2(b), Fla. Const. These powers, however, are limited for municipalities in charter counties, where citizens are granted the constitutional right to opt for county preemption of municipal regulatory power. Art. VIII, § 1(g), Fla. Const.; Broward County v. City of Ft. Lauderdale, 480 So.2d 631 (Fla.1985).

County-City Conflict and the County’s Charter Amendment

In 1994, the County acted to create an Urban/Rural boundary to protect rural and environmentally-sensitive lands in the eastern part of the County from urban sprawl. This boundary was situated along the eastern edge of the City, and was accomplished through an amendment to the County’s Comprehensive Land Management Plan (“Comprehensive Plan”). However, because the County’s charter did not provide for County preemption of conflicting municipal land use regulations, the County’s Comprehensive Plan amendment was not effective in controlling urbanization of its eastern rural lands.

The City could simply annex property protected from dense development under the County’s Comprehensive Plan. Once incorporated within the City’s jurisdiction, the City could then incorporate the land into its own comprehensive plan and change the land use designation to allow for high-density development. Because the County’s charter provided that the municipal ordinance would control in the event of a conflict, the provisions of the City’s newly-amended comprehensive plan would then control over the rural designation in the County’s Comprehensive Plan, and development would proceed.

This pattern was well documented in the record below, with testimony regarding a dispute that arose over development of a subdivision at the eastern edge of the City known as Battle Ridge. Litigation ensued between the County and the City. The litigation settled when the County agreed to withdraw its challenge, allowing the development to proceed, with the implicit understanding that this development would represent the easternmost limit of the City’s urban expansion. Shortly thereafter, however, the City increased the size of the utility lines that serviced the 110 dwelling units planned for Battle Ridge to accommodate 1300 units. The City then proceeded to annex three additional parcels immediately east of Battle Ridge and within the County-designated rural area.

In response, the Seminole County Board of County Commissioners proposed a charter amendment to the electorate that would provide for County preemption of land use regulation in the rural eastern area of the County. The measure was placed on the ballot for public vote during the 2004 general election. The ordinance sought to amend the County charter by changing the language in Article I, Section 1.4 of the charter, from:

“Municipal ordinances shall prevail over County ordinances to the extent of any conflict.”
to:
“Except as otherwise provided, by this charter, Municipal ordinances shall prevail over County ordinances to the extent of any conflict.” (emphasis added).

The ordinance also sought to add a new substantive section to Article V of the

Charter. That section would provide:

Section 1.2. Rural Boundary and Rural Area
a. There is hereby established a Rural Boundary as more delineated on that certain map titled “Rural Boundary Map” and dated August 10, 2004, and a “Rural Area” as described in that certain legal description titled “Legal Description of Rural Area” and dated August 10, 2004, both of which are on file in the official records of the Clerk of the Board of the County Commissioners. “Rural Lands,” for the purpose of this Section, are those contained within the area depicted in the above referenced legal description. After the effective date of this section the Future Land Use Element of the Seminole County Comprehensive Plan shall include a copy of the map and legal description.
b. The Board of County Commissioners may remove property from the “Rural Area” and amend the Rural Boundary accordingly, by ordinance whenever, in the opinion of the Board, such a change is necessary. Nothing herein shall authorize the County Commission to expand the “Rural Area” beyond the area contained in the above referenced legal description.
c. From and after the effective date of this section the future land use designations contained in the Seminole County Comprehensive Plan shall control the density and intensity of development on all Rural Lands, as that term is defined herein. The Board of County Commissioners must approve all changes to the future land use designations of all Rural Lands, regardless of whether some or all of the Rural Lands are located within a municipality.
d.The Board of County Commissioners may enact ordinances to implement this section. Municipal ordinances in conflict with this section or any implementing county ordinance are superseded to the extent of such conflict.

The obvious purpose of the amendment was to assure that the land use designations of the County’s Comprehensive Plan would control the density and intensity of development on all land in the “Rural Area,” regardless of whether the land was subsequently annexed into a municipality. The designated “Rural Area” only encompassed land in unincorporated Seminole County, except for one parcel annexed by the City after the charter amendment was approved for placement on the ballot.

The charter amendment summary appeared on the ballot as follows:

CHARTER AMENDMENT ESTABLISHING RURAL AREA AND PREEMPTING MUNICIPAL COMPREHENSIVE LAND USE AUTHORITY WITHIN RURAL AREA.
Shall the Home Rule Charter be amended to establish a Rural Boundary and create a “Rural Area” of the County, authorize future changes reducing the size of the “Rural Area” by County ordinance; provide that the Future Land Use Designations established in the Seminole County Comprehensive Plan shall apply to all lands, incorporated or unincorporated, within said “Rural Area,” authorize implementing ordinances, and provide that the Charter and implementing ordinances supersede conflicting municipal ordinances. Yes _ No_

The charter amendment was approved by the voters of Seminole County on November 2, 2004.

City’s Legal Challenge and Ruling Below

After the amendment was approved by the electorate, the City sought to have the amendment invalidated in the action below. Following an evidentiary hearing, the trial court issued a detailed and well-reasoned order rejecting most of the City’s arguments. However, the trial court accepted the City’s position that the amendment was invalid because: (1) the ballot summary language explaining the charter amendment to the County’s voters was misleading; and (2) the amendment violated the County charter’s “single subject rule.”

The trial court reached both of these conclusions after accepting the City’s argument that the amendment had the unannounced effect of taking away County citizens’ right to enact ordinances by referendum. According to the City, because the newly-adopted charter provision expressly stated that the “Board of County Commissioners must approve all changes to the future land use designations of all Rural Lands,” it necessarily, by implication, amended Article II, Section 2.2 H of the charter, which provides a mechanism through which citizens may adopt, amend or repeal County ordinances by referendum. Accepting this argument, the trial court found that although “the ballot title and summary adequately reflect the primary purpose of the proposed charter amendment,” it was infirm “in its failure to inform voters that by voting affirmatively for the Charter amendment, the voters of Seminole County would thereby eliminate their reserved right to adopt and repeal ordinances related to the ‘Rural Area.’ ” The court also found that “to the extent that the proposed charter amendments eliminate the County electorate’s right to adopt or repeal ordinances relating to the “Rural Area” by initiative and referendum, it is a provision unrelated to the principal purpose of the amendment ... prohibited by the single subject requirement found in Article IV, Section 4.2 of the Seminole County Home Rule Charter.”

Analysis

We find that the trial court erred in accepting the City’s argument that the charter amendment affected County citizens’ right to adopt and repeal land use ordinances related to the “Rural Area.” First, we are not convinced that citizens can possess this right under the Local Government Comprehensive Planning and Land Development Regulation Act (the “Act”). The Act sets forth a comprehensive and complex process for the adoption and amendment of comprehensive plans, which includes public hearings, specific notice requirements, and a process of review by multiple government agencies. At various stages of the process, votes are required by the local government’s “governing body,” including the final vote either approving or rejecting any proposed amendment. See § 163.3184, Fla. Stat. (2005). The Act expressly defines “governing body” as “the board of county commissioners of a county.” § 163.3164(9), Fla. Stat. (2005).

Because this statute expressly designates the Board as the body responsible for land use planning, along with the fact that it would appear unworkable for citizens (by initiative) to successfully navigate the complex enactment process required by the Act, reading Article II, Section 2.2 H(l) of the charter as granting citizens the right to enact land use planning ordinances by initiative would be problematic, at best. If this right did not exist prior to the charter amendment, then the amendment could not have had the incidental effect argued by the City.

In addition, we agree with the County that even if this right did exist prior to the citizens’ adoption of the charter amendment, the construction suggested by the City is improper. As a general rule, enactments should not be read as amending non-referenced provisions by implication. In re: Advisory Opinion to the Governor, 132 So.2d 163, 167 (Fla.1961). Rather, “if by any fair course of reasoning the statute can be harmonized or reconciled with the new ... provision, then it is the duty of the courts to do so.” Id.; see also, Chiles v. Dep’t of State, Div. of Elections, 711 So.2d 151, 156 (Fla. 1st DCA 1998) (“When one statute is alleged to be in conflict with another, the court must favor a construction that gives effect to both statutes.”).

As argued by the County, Article II, Section 2.1 of the County’s charter provides that: “The legislative responsibilities and powers of the County shall be assigned to, and vested in, the Board of County Commissioners.” This general reference does not note the exception later granted in the charter for legislative action by initiative. Yet, a fair reading of the document as a whole would not cause one to conclude that Section 2.1 is in irreconcilable conflict with the separate citizen initiative provision in Section 2.2 H(l) so that the courts would have to chose between the two. The provisions can easily be harmonized by recognizing the initiative provision as an exception to the separately-stated general rule that it is the Board that is vested with legislative authority to enact ordinances. We agree with the County that the generic reference to the Board in the charter amendment should not be read as having any more significance than the generic reference set forth in Section 2.1. Both simply recognize the Board as the body with overall legislative responsibility for the County. Therefore, if the citizens had a right to adopt regulatory land use ordinances under the Act prior to the charter amendment, nothing in the charter amendment takes that right away by implication.

As previously noted, the sole basis on which the trial court found the ballot summary misleading was the alleged amendment by implication of the citizen initiative and referendum provision. In all other respects, the court found that the summary tracked the proposed amendments fairly and in sufficient detail. See § 101.161(1), Fla. Stat. (2005) (requiring all public measures submitted for vote to be printed in “clear and unambiguous language” and to include a short statement explaining “the chief purpose of the measure”); Volusia Citizens’ Alliance v. Volusia Home Builders Ass’n, Inc., 887 So.2d 430, 431 (Fla. 5th DCA 2004) (“The purpose of this requirement is to provide voters with fair notice of the contents of the proposed initiative so that voters will not be misled as to its purpose.”). We agree with the trial court that the ballot summary fairly and accurately summarized the purpose and effect to the proposed charter amendment.

Similarly, the trial court found a single subject violation only “to the extent that the proposed charter amendments eliminate [citizens’ initiative and referendum rights].” Because we have concluded that the amendment had no such affect, we also find that the amendment did not violate the single subject provision found in Article IV, Section 4.2(C) of the County’s charter.

With respect to the arguments raised by the City on cross-appeal, we find that the trial court properly rejected the City’s additional challenges to the charter amendment. Only one of these issues merits discussion. It involves the tension between Article VIII, Section 1(g) of the Florida Constitution (providing for county pre-emption of municipal ordinances by charter) and Article VIII, Section 4 (requiring a separate vote of a city’s electorate before transfer of a power from a city to a county). The trial court concluded that because the Rook property was annexed prior to the charter amendment’s adoption, preemption did not apply to that property. Concluding that all property affected by the amendment lay in unincorporated areas of the County, the court then determined that the dual-adoption requirement need not be addressed.

However, the “Rural Area” approved by the County’s electorate clearly includes the Rook property. Therefore, at the time of adoption, the charter amendment did provide for preemption of the City’s future land use regulation as to this parcel already included within the City’s jurisdiction. Even including the Rook property, however, the “Rural Area” only encompassed land governed by the County’s Comprehensive Plan. Section 171.062(2), Florida Statutes, provides that if an annexed area “was subject to a county land use plan and county zoning or subdivision regulations, these regulations remain in full force and effect until the municipality adopts a comprehensive plan amendment that includes the annexed area.” The City concedes that it has not yet amended its comprehensive plan to include the Rook property. Therefore, even though the City completed annexation of this property prior to adoption of the charter amendment, it still had not assumed regulatory control over the property’s use. For this reason, we agree with the trial court’s conclusion that the charter amendment did not involve a “transfer” of land use regulation over any property — and that the transfer provision of Article VIII, Section 4 was not triggered.

Moreover, even if the City had already amended its comprehensive plan to encompass the Rook property, we find that the electorate of a charter county may preempt a city’s land use regulation by charter, without a dual vote of the city’s electorate. As held by our Supreme Court in Broward County, 480 So.2d at 635 “section 1(g) permits regulatory preemption by counties, while section 4 requires dual re-ferenda to transfer functions or powers relating to services.” (emphasis in original). Land use regulation is just that— regulation. Therefore, dual referenda are not required. Id. This obvious conclusion is also memorialized in the Act itself, which expressly recognizes that: “In the case of chartered counties, the county may exercise such authority over municipalities or districts within its boundaries as is provided for in its charter.” § 163.3171(2), Fla. Stat. (2005).

In summary, Florida’s Constitution recognizes that: “All political power is inherent in the people.” Art. I § 1, Fla. Const. When it comes to charter counties and municipalities within those counties, the Constitution expressly grants the electorate a right to determine by charter which government they desire to vest with preemptive regulatory power. Art. VIII, § 1(g), Fla. Const. The voters of Seminole County have made that election. With respect to the “Rural Area” of Seminole County, the people have chosen to grant preemptive land use regulatory power exclusively to the County. Their decision to do so constituted a perfectly valid election under the Florida Constitution.

AFFIRMED IN PART and REVERSED IN PART.

ORFINGER, J., and FALVEY, C., Associate Judge, concur.

      . Under the Local Government Comprehensive Planning and Land Development Regulation Act, §§ 163.3161 to 163.3217, Fla. Stat. (2005), land use regulation is accomplished, in part, through the adoption of comprehensive plans by counties and cities. Once approved and adopted, all land use is controlled by the designation in the applicable comprehensive plan. Comprehensive plans are intended to "prevent the overcrowding of land and avoid undue concentration of population” ... and "conserve, develop, utilize, and protect natural resources....” § 163.3161(3), Fla. Stat.

      . The County's charter expressly provided that: "Municipal ordinances shall prevail over County ordinances to the extent of any conflict.”

      . The record suggests that the City rushed annexation of this parcel, known as the "Rook property,” so that the annexation could be completed prior to the public vote on the charter amendment.

      . Under Article II, Section 2.2 H of the County's charter, the initiative process is started by ' a petition signed by electors “residing in at least 3/5 of the County Commission election districts and the County as a whole equal to five percent (5%) of the electors qualified to vote in the last proceeding general election.” The requisite number of signatures must be secured during a six-month period that starts when a signature form is approved by the local Supervisor of Elections. If the required number of signatures are obtained during the specified-period, the matter is automatically placed on an agenda for public hearing, at which the board is given an opportunity to vote on the measure. If the board fails to enact the proposed measure, it is then placed on the ballot at the next general election. If approved by a majority vote of the electors, the measure becomes effective on the date specified in the ordinance. The board is then prohibited from amending or repealing an ordinance adopted by initiative for a period of one year after the effective date.

      . Neither the Florida Constitution nor the Florida Statutes applies a single subject rule to proposed amendments to county or city charters; therefore, any such limitation must be found within the charter itself. See Charter Review Comm’n of Orange County v. Scott, 647 So.2d 835 (Fla.1994).

      . Article VIII, Section 1(g) provides in relevant part: "The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.”

      .Article VIII, Section 4 provides: "Transfer of powers.-By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.”


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Sean McINERNEY and Joan McInerney, Appellant, v. David G. KLOVSTAD and Marsha T. Klovstad, et al, Appellee.
    No. 5D05-2722.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.
    Rehearing Denied Aug. 7, 2006.

      Patrick A. McGee, of McGee & Powers, P.A., Orlando, for Appellant.
    Mary B. Meeks, of Decubellis, Meeks, & Uncapher, P.A., Orlando, for Appellee.
   ORFINGER, J.

Sean and Joan Mclnerney own a home in the Silver Lake Subdivision located in Seminole County. The Mclnerneys’ property, like all other property in Silver Lake, is subject to the subdivision’s declaration of covenants, conditions and restrictions. After receiving approval from the subdivision’s Architectural Review Committee and the Seminole County building authorities, the Mclnerneys began construction of an addition to their home adjacent to the property owned by their neighbors, David and Marsha Klovstad. When the Klovst-ads realized that the Mclnerneys’ addition would sit 3.45 feet from the side yard line adjacent to their property, the Klovstads, believing that the subdivision restrictions had been violated, instituted an action seeking injunctive and declaratory relief. In a summary final judgment, the trial court concluded that the subdivision’s restriction, mandating a five-foot side yard setback on both sides of the property line, controlled over Seminole County’s three-foot side yard setback on one side and seven-foot setback on the other side of the property line. As a result, the court ordered that the encroaching addition be removed. This appeal followed. For the reasons explained hereafter, we reverse.

We review a final order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The Mclner-neys contend that the trial court erroneously construed section 7.31 of Silver Lake’s subdivision declaration. They also argue that entering summary judgment was erroneous because the Klovstads failed to conclusively prove that there were no material facts in dispute and failed to address their affirmative defenses. Because we agree with the Mclnerneys’ first contention, we do not need to address the second.

Section 7.31 of Silver Lake’s subdivision declaration provides in pertinent part:

Side yard setbacks shall be five (5) feet on one side and five (5) feet on the other side, with a minimum of ten (10) feet between buildings.... For the purpose of this covenant, eaves, steps and open porches shall not be considered as a part of the building; provided, however, that this shall not be construed to permit any portion of a building on a Lot to encroach upon another Lot. If there is any conflict between this section and applicable zoning regulations of the proper governing authority, said zoning regulations shall take precedence.

(Emphasis added). On the other hand, the Seminole County ordinance provides for side yard setbacks of no less than seven feet on one side of the property and three feet on the other side of the adjacent lot. Hence, while the space between houses is ten feet under both regimes, it is divided differently, creating the dispute presented here.

In its final judgment, the trial court concluded, in pertinent part:

The Court concludes that the language of § 7.31 of the Declaration is unambiguous in reflecting the intention of the parties thereto to establish a minimum 5-foot side setback for all properties in Silver Lake, unless Seminole County requires a more restrictive setback requirement, in which event Seminole County’s setback requirements takes precedence. This construction is reasonable and logical and gives meaning and effect to all of the language of § 7.31. The construction argued by Defendants, that Seminole County’s setback requirements take precedence because the Declaration’s setback requirements are different from Seminole County’s setback requirements, is not reasonable and logical, does not give meaning and effect to all provisions of § 7.31, and contravenes the expressed intent of the Declaration.

In determining whether the subdivision restrictions or Seminole County ordinances control the minimum side yard setbacks, the Mclnerneys contend that the term “any conflict,” as used in section 7.31, means that if any difference exists between the subdivision’s restrictions and Seminole County’s ordinances, the ordinances control. In contrast, the Klovst-ads advocate the position adopted by the trial court that Seminole County’s ordinances apply only if they are more restrictive than the subdivision’s restriction.

Restrictive covenants will be enforced when they are “clear, reasonable and have a lawful purpose.” Orange Gardens Civic Ass’n v. Harris, 382 So.2d 1340, 1342 (Fla. 5th DCA 1980). However, covenants that run with the land “must be strictly construed in favor of free and unrestricted use of real property.” Lathan v. Hanover Woods Homeowners Ass’n, 547 So.2d 319, 321 (Fla. 5th DCA 1989) (citing Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925)). “[A] covenant which is substantially ambiguous is resolved against the party claiming the right to enforce the restriction.” Snider v. Grodetz, 442 So.2d 344, 344-45 (Fla. 5th DCA 1983) (citing Washingtonian Apartment Hotel Co. v. Schneider, 75 So.2d 907 (Fla.1954)); see Moore; Orange Gardens Civic Ass’n. Therefore, in order to determine whether the trial court erred in its interpretation of section 7.31, we must first determine whether its meaning is ambiguous.

Language in a document is ambiguous when its provisions are fairly susceptible to more than one interpretation. Am. Quick Sign, Inc. v. Reinhardt, 899 So.2d 461, 465 (Fla. 5th DCA 2005); see also Barnett v. Destiny Owners Ass’n, 856 So.2d 1090, 1092 (Fla. 1st DCA 2003) (stating that “[ljanguage in a document is ambiguous when it is uncertain in meaning and may be fairly understood in more ways than one and is susceptible of interpretation in opposite ways”).

The final sentence of section 7.31 reads: “If there is any conflict between this section and applicable zoning regulations of the proper governing authority, said zoning regulations shall take precedence,” but it does not define what “any conflict” means. Based on its plain language, we believe it was reasonable for the Mclner-neys to conclude that it meant “any difference.” The Mclnerneys’ understanding was also supported by Silver Lake’s Architectural Control Committee and its Board of Directors, both of which determined that the Seminole County ordinance prevailed in this instance and approved the Mclnerneys’ addition based on its compliance with the Seminole County setback requirements.

Equally true, it appears that the intent of Silver Lake’s restriction in section 7.31 was to establish aesthetically-pleasing setbacks and ensure that construction did not encroach on neighboring lots. Consequently, it was also reasonable for the Klovstads to believe that Silver Lake would want to maintain its five-foot side setback provisions. Also, the Klovstads assert, and the trial court agreed, that Silver Lake’s five-foot setbacks were more restrictive than Seminole County’s. However, that is not necessarily the case. Section 7.31 is less restrictive on one side of the line separating two lots (Silver Lake’s five-foot setback is less restrictive than Seminole County’s seven-foot setback), and more restrictive on the other side (Silver Lake’s five-foot setback is more restrictive than Seminole County’s three-foot setback). We conclude that since section 7.31 is fairly subject to more than one interpretation regarding the primacy of Seminole County’s regulations, its terms are ambiguous.

Section 7.31 of Silver Lake’s restrictions was poorly drafted, causing the difference of opinion between the parties. If we were free to interpret the restriction, the Klovstads’ interpretation is more appealing, as it appears to us more likely to enhance property values and maintain the neighborhood’s aesthetics. However, based on our conclusion that section 7.31 is ambiguous, the rules of construction require that it be construed against the Klovstads who seek to enforce the restriction. Snider, 442 So.2d at 344; see Moore, 106 So. at 904 (“The expressed intent of the parties is the controlling factor. Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant”). For these reasons, the summary final judgment is reversed.

REVERSED.

LAWSON, J. and FALVEY, C., Associate Judge, concur.

      . The parties agree that the subdivision's restrictions can be more, but not less restrictive than the controlling governmental zoning regulations.


author: WELLS, Judge.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Stephen JONES, Respondent.
    No. 3D06-454.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 5, 2006.

      Judson Chapman, General Counsel, and Jason Helfant, Assistant General Counsel, for petitioner.
    Rhonda F. Goodman; Lisa Lesperance, for respondent.
    Before WELLS, CORTINAS, and ROTHENBERG JJ.
   WELLS, Judge.

Petitioner, the Department of Highway Safety and Motor Vehicles, seeks certiora-ri review of an order from the Appellate Division of the Circuit Court quashing an administrative order suspending respondent Stephen Jones’s driver’s license. Because the court below applied the wrong law, we grant certiorari and quash the circuit court’s order.

At 1:03 a.m. on the morning of April 23, 2005, Trooper Burgos of the Florida Highway Patrol, while on routine patrol in Monroe County, noticed a white pick up truck traveling northbound ahead of him on State Road 5 having difficulty remaining in the northbound lane. Over the next mile, Officer Burgos saw the pick up truck, driven by Jones, “travel across the broken yellow line into the [oncoming] southbound lane,” and then swerve back into the northbound lane to negotiate a curve. The officer saw the pick up truck continue to swerve and again travel “left of the center [of the roadway] onto the southbound lane.” Based on these observations, Jones was stopped. Upon approaching the driver’s door, Officer Burgos noticed that Jones’s face was flushed, his eyes were watery, his speech was slurred, and that he smelled of alcohol. The officer also noted that when Jones got out of the truck, he had to grab onto the truck to steady himself.

Jones failed to satisfactorily perforin field sobriety tests and refused to submit to a breath test (after implied consent warnings were given and he was advised of the consequences of refusal). He was arrested for driving under the influence in violation of section 316.193(1) and his driving privileges were suspended. See § 316.1932(l)(a), Fla. Stat. (2005) (“failure to submit to any lawful [breath test] will result in the suspension of the ... privilege to operate a motor vehicle”).

Officer Burgos’s arrest report detailing these events stated that he advised Jones that the reason for the stop “was for failure to drive within a single lane prior to the curve and after the curve.”

Jones challenged the license suspension in an administrative proceeding before the Department of Highway Safety & Motor Vehicles arguing lack of probable cause to support the initial traffic stop. The hearing officer sustained the suspension. Relying on Dobrin v. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171 (Fla.2004), the Appellate Division of the Circuit Court quashed the hearing officer’s determination, first noting that the officer’s report failed to “include a statement that [the officer] believed [Jones] was speeding or impaired,” then concluding that failure to maintain a single lane standing alone did not establish probable cause to support a traffic stop under section 316.089 of the Florida Statutes. The circuit court also concluded that absent evidence that crossing the center line created “even the slightest risk” to others, no basis existed to support the stop. These determinations apply the wrong law.

The constitutional validity of a traffic stop depends on purely objective criteria. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see Department of Highway Safety and Motor Vehicles v. Utley, 930 So.2d 698 (Fla. 1st DCA 2006) (Hawkes, J., concurring). This objective test “asks only whether any probable cause for the stop existed” making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant. Holland v. State, 696 So.2d 757, 759 (Fla.1997); Dobrin, 874 So.2d at 1173. If, therefore, “the facts contained in the arrest report provide any objective basis to justify the stop, even if it is not the same basis stated by the officer, the stop is constitutional.” Utley, 930 So.2d at 698, 2006 WL 1058202 at *2 (citing State v. Perez-Garcia, 917 So.2d 894 (Fla. 3d DCA 2005) (concluding that even though an officer’s subjective reason for initiating a stop was not supported by the facts detailed in an arrest report, the facts detailed provided an objective basis to support probable cause for a reason not known by the officer)).

Here, Officer Burgos observed Jones driving into the lane designated for oncoming traffic for no apparent reason. This was a violation of section 316.081 of the Florida Statutes which requires only that “a vehicle shall be driven upon the right half of the roadway” except when passing another vehicle, when avoiding an obstruction, when the roadway is divided into three lanes, or when the roadway is designated for one-way traffic. The arrest report clearly detailed this behavior and provided probable cause for the stop.

The circuit court applied a subjective test when it concluded that the officer’s report failed to detail facts to support the officer’s subjective reason for stopping Jones, that is, that Jones had failed to drive within a single lane. By concluding that the facts detailed in Officer Burgos’s report regarding Jones’s deviation from a single lane did not support a stop for violation of section 316.089 of the Florida Statutes, the circuit court applied the wrong law.

Moreover, failure to maintain a single lane alone, can under appropriate circumstances, establish probable cause. See Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999) (weaving several times within a single lane held sufficient to justify a stop where there was no evidence to show endangerment to others and where no traffic violation had occurred); see also Ndow v. State, 864 So.2d 1248, 1250 (Fla. 5th DCA 2004) (“If a police officer observes a motor vehicle operating in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued.”). And there is no requirement that operation of a vehicle create a risk to others to support a valid stop for failure to maintain a single lane. See Yanes v. State, 877 So.2d 25, 26-7 (Fla. 5th DCA 2004) (finding probable cause to support a stop and concluding that where an officer observes a driver cross the white line on the right side of the road three times “there was evidence that [the driver] deviated from his lane by more than what was practicable. To do so is a violation of the statute, irrespective of whether anyone is endangered”); see also Bailey v. State, 319 So.2d 22, 26 (Fla.1975) (observing that “[b]ecause of the dangers inherent to our modern vehicular mode of life, there may be justification for stopping a vehicle by a patrolman to determine the reason for its unusual operation”).

In sum, applying the correct law it is clear that the officer who stopped Jones had “an objectively reasonable basis for making the stop.” Dobrin, 874 So.2d at 1174. Thus, the Department correctly determined that Jones was lawfully arrested. Because the circuit court failed to apply the correct law when it quashed the Department’s order, we grant the petition sought by the Department, and quash the order of the circuit court.

      . Section 316.089, Florida Statutes (2005), in pertinent part provides:
      Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

      . The circuit court's reliance on Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), and Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002), to support its conclusion that failure to maintain a single lane alone cannot establish probable cause, is misplaced. Crooks involved a traffic stop for violation of section 316.089: premised on officers observations that Crooks had crossed from the right-hand lane into the shoulder or emergency lane to move away from a Highway Trooper intentionally traveling beside him in the left hand lane (while another Trooper followed behind). The court in that case found no probable cause to support a stop for violation of section 316.089(1) because the record did not establish how far into the right-hand lane Crooks drove and thus provided no basis for determining whether he was remaining “as nearly as practicable entirely within a single lane” as required by section 316.089; and (2) because there was no evidence that it was not reasonably safe for him to move into the emergency lane in violation of section 316.089. In short, the court correctly determined that the facts provided no objective basis whatsoever for the stop.

        Jordan similarly turned on a determination that the officer's observations provided no objective basis to support probable cause to initiate a stop either for the reasons stated, that is violation of section 316.089 or for any reason other than that given by the officer.


author: RAMIREZ, J.

text:
    STATE of Florida, DEPT. OF REVENUE, Appellant, v. Roswell and Sage BRIDGER, jointly, and Louis J. Drotar, individually, Appellees.

      No. 3D05-1784.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 5, 2006.

      Charles J. Crist, Jr., Attorney General, and Eric J. Taylor, Assistant Attorney General, and James A. McKee, Deputy Solicitor General, and Christopher M. Kise, Solicitor General, for appellant.
    Zuckerman Spaeder, LLP, and Stephen J. Bronis, and Walter J. Tache, Miami, for appellees.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

In this class action lawsuit against the State of Florida’s Department of Revenue, seeking tax refunds, the Department appeals a final judgment denying its motion for summary judgment and granting in part and denying in part appellees’ motion for summary judgment. We affirm the final judgment, insofar as the doctrine of the law of the case prevents the Department from reasserting its previously rejected positions in this second appeal. However, because we agree with the taxpayers on their cross-appeal, that the trial court’s final judgment is in conflict with our decision in Florida Department of Revenue v. Leon, 824 So.2d 197 (Fla. 3d DCA 2002), we reverse and remand.

The action in the trial court began as a class action lawsuit, seeking declaratory relief and refunds of all unconstitutionally imposed taxes collected by the Department under section 212.0505, Florida Statutes (Supp.1998), from 1986 through 1994. The pertinent facts are set out in Leon.

Between 1986 and 1994, the Department collected revenues from taxpayers pursuant to section 212.0505, which imposed a tax on unlawful transactions involving certain controlled substances. Id. at 198-99. The Florida Supreme Court declared this statute unconstitutional in Florida Department of Revenue v. Herre, 634 So.2d 618 (Fla.1994).

After the Florida Supreme Court’s decision in Herre, the Department stopped imposing and collecting taxes under section 212.0505, however, it did not refund the unconstitutionally collected taxes to taxpayers. To obtain the refunds, a class action lawsuit was filed by a group of taxpayers against the Department. Leon, 824 So.2d at 199. The trial court held that the Department had imposed an unconstitutional tax, that Herre was to be enforced retrospectively, and that the Department was required to refund all taxes, penalties and interest collected from the class members. Id. at 200.

The Department appealed to this Court and contended that certain.class members’ claims were time barred, that the class members were required to exhaust administrative remedies before they could seek relief in the courts, and that taxpayers had to file individual claims and could not use a class action lawsuit to seek a refund for an unconstitutional tax scheme. We reversed the trial court’s final summary judgment in favor of the taxpayers because the two named plaintiffs did not file the action within three years of payment of the disputed tax. Id. at 201. However, this Court found that the class members were not required to exhaust administrative remedies and further found that a class action lawsuit could be used to seek a refund for an unconstitutional tax scheme. Id. at 200-01.

The Department then filed a motion for clarification, again arguing that the direct-file exception did not apply here, that no new class representatives could be substituted because a class action was inappropriate for this case, and that the filing of the class action had no effect on taxpayers other than the original class representatives. The Department further filed a notice of supplemental authority, arguing that Sarnoff v. Florida Department of Highway Safety and Motor Vehicles, 825 So.2d 351 (Fla.2002), supported its position that the class members did not have standing to bring this action. We denied the Department’s motion for clarification.

On remand, appellees Roswell Bridger, Sage Bridger, and Louis Drotar sought to be substituted as new class members. The Bridgers received a tax assessment from the Department on or about August 6, 1990; Mr. Drotar received a tax assessment from the Department on or about September 20, 1989. The trial court granted leave to file a second amended complaint and to substitute new class representatives. Following substitution of the class representatives, the taxpayers moved for summary judgment and sought to have the trial court reinstate the judgment entitling them to declaratory relief and refund of the unconstitutionally imposed tax. The Department basically ignored this Court’s opinion in Leon and sought to have the trial court address once again the issues considered by this Court in Leon.

The trial court eventually held that the Department acted unconstitutionally in collecting taxes from the taxpayers. The court also held that the direct-file exception outlined in Department of Revenue v. Kuhnlein, 646 So.2d 717 (Fla.1994) and Department of Revenue v. Nemeth, 733 So.2d 970 (Fla.1999), allowed the taxpayers to bring their claims directly in the trial court and not have to exhaust administrative remedies. The trial court, however, granted refunds only to the Bridgers and other taxpayers who sought administrative relief from the Department or affirmatively intervened in this action within three years of them payment of the unconstitutional taxes.

The Department and the taxpayers now both appeal from the final judgment. The Department asserts the same issues already considered and rejected by this Court in Leon. The taxpayers cross-appeal the final judgment, contending that it improperly limited the relief granted to the Bridgers and those who filed individualized claims with the Department or affirmatively intervened in this action within three years of paying the unconstitutional tax. They claim that the relief granted should have extended to those who had paid the unconstitutional tax within the three years when this action had commenced, regardless of whether an administrative remedy had been pursued.

Under the law of the case doctrine, questions of law that actually have been decided on appeal must govern the case in the same court and in the trial court through all subsequent states of the proceedings. Wendel v. Wendel, 852 So.2d 277, 283 (Fla. 2d DCA 2003). “[P]oints of law adjudicated in a prior appeal are binding in order to promote stability of judicial decisions and to avoid piecemeal litigation.” Bueno v. Bueno de Khawly, 677 So.2d 3, 4 (Fla. 3d DCA 1996).

In the appeal before us, the law of the case governs three issues that were decided in the first appeal. First, the Department contends that the taxpayers failed to pursue the administrative remedies outlined in sections 215.26 and 72.011, Florida Statutes. Second, the Department contends that the “direct file” exception to these sections applies here. And third, the Department contends that class action treatment of such claims is not appropriate. We already have rejected these three arguments in Leon, and the doctrine of the law of the case bars relitigation of them.

We further note that Sarnoff was fully considered in the prior appeal when the Department filed its notice of supplemental authority, directing this Court’s attention to consider Sarnoff. As such, Sarnoff is not an intervening decision that would serve to allow us to depart from the law of the case.

With regard to the taxpayers’ cross-appeal of the final judgment, we find that the trial court did not apply the law of the case when it limited the relief to members of the class “who had timely filed for a refund within three years of the date of paying the subject taxes.” In Leon, this Court stated that the class consisting of those taxpayers who had paid any taxes under the unconstitutional tax at issue and had made such payment within the preceding three-year period of when this action was originally filed (after January 16, 1993), could seek a refund based on the unconstitutionality of the tax. Leon, 824 So.2d at 200-01. This holding became the law of the case. A trial court has no discretion to change the law of the case. Brunner Enters., Inc. v. Dep’t of Revenue, 452 So.2d 550, 552 (Fla.1984). Consequently, that portion of the trial court’s final judgment which conflicts with this Court’s decision in Leon was erroneous and is reversed and remanded so that the final judgment applies to all taxpayers who paid the unconstitutional tax within the three years when this action was commenced, regardless of whether they filed an administrative action.

For the foregoing reasons, the trial court’s final judgment is affirmed, insofar as the law of the case precludes relitigation of the Department’s positions. No exceptions to the doctrine apply here. However, because the final judgment conflicts with this Court’s decision in Leon, we reverse and remand to the trial court with instructions that the trial court enter judgment for all taxpayers who paid the unconstitutional tax within the three years when this action was commenced and award them the refunds of all sales taxes, surcharges, penalties and interest collected under section 212.0505, Florida Statutes.

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


text:
    APACHE GROUP, INC., a dissolved corporation, Fort Apache Marine Group, Inc., a Florida corporation, and Marc A. Osheroff, Appellants/Cross appellees, v. RONALD S. FRIEDMAN, CPA, P.A., and Ronald Friedman, Appellees/Cross-appellants.
    No. 3D04-3098.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied Aug. 31, 2006.

      Katzman, Wasserman & Bennardini and Steven M. Katzman, Boca Raton; Green-berg Traurig and Elliot H. Scherker and Elliot B. Kula, Miami, for appellants/cross-appellees.
    Rojas Law Firm and Jose I. Rojas and Teresa Gail Sosby and Juan R. Garcia, Miami, for appellees/cross-appellants.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

After a jury trial in this contract action, Ronald S. Friedman, CPA, P.A. secured a judgment against Marc Osheroff for $72,213 plus prejudgment interest. In this consolidated appeal, Osheroff seeks a new trial claiming that the trial court erred in precluding his proffered expert’s testimony. Osheroff also appeals two separate fee orders that denied his motion for attorney’s fees as the prevailing party on some of the claims raised in Friedman’s Third Amended Complaint, and that awarded attorney’s fees to Friedman pursuant to an offer of judgment under Florida Rule of Civil Procedure 1.442(c)(3), after Friedman prevailed on all of Osheroffs counterclaims. Friedman similarly cross-appeals the trial court’s failure to award him attorneys’ fees as the prevailing party at trial. He also appeals the prejudgment interest award, arguing that it was calculated at the statutory rate when it should have been calculated at the contractual rate expressly agreed upon in the parties’ underlying agreement(s). We find no merit in any of these points on appeal or cross-appeal other than Friedman’s argument regarding entitlement to prejudgment interest at the contractual rate.

In addition to other claims, Friedman sued Osheroff for breach of two promissory notes and two personal guarantees contained in agreements for professional services. Both the notes and the guarantees expressly provided for the payment of eighteen percent annual interest until fully paid. Osheroff raised waiver as an affirmative defense to these notes and guarantees claiming that Friedman had waived the interest.

Prior to trial, the parties stipulated that the trial court would determine the amount of prejudgment interest due to Friedman after October 31, 1996, if he prevailed. The jury ultimately awarded Friedman $19,849 for breach of one promissory note and $52,364 for breach of at least one guarantee, the latter sum including prejudgment interest calculated at the contract rate through October 31, 1996. Pursuant to the parties’ agreement, the trial court awarded Friedman prejudgment interest accruing after October 31, 1996, but did so at the statutory rate, rather than the eighteen percent contractual rate, on Osheroff s argument that the jury had been instructed on waiver and that the verdict unquestionably demonstrated a jury finding that Friedman had waived his contractual right. The record, however, confirms that the jury rejected Osheroffs waiver argument and instead awarded the precise amount requested by Friedman with respect to the one promissory note and both guarantees, including prejudgment interest through October 31, 1996 at the contract rate. The court below therefore erred in failing to calculate the prejudgment interest due after October 31, 1996, at the contractual rate. Accordingly, we reverse the prejudgment interest award and remand for a recalculation at the contract rate. See WPB, Ltd. v. Supran, 720 So.2d 1091, 1093 (Fla. 4th DCA 1998) (noting that statutory interest is given “where the contract is silent on the rate of interest that applies in the event of a default”).

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


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Robert SEITZ, Appellee.
    No. 3D05-1156.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 5, 2006.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.
    John H. Lipinski (Pembroke Pines), for appellee.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

The undisputed testimony of the defendant is that he would not have entered into his plea agreement if it were not for the misadvice he received from his trial counsel. Accordingly, the motion for relief filed by the defendant, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, should have been granted. The cause is remanded to the trial court for the purpose of having the trial court grant said motion. The foregoing renders the appeal by the State moot.

Reversed and remanded.


text:
    Roberto NORTON, Petitioner, v. The STATE of Florida, Respondent.
    No. 1D06-2369.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Rehearing Denied Aug. 16, 2006.
    Roberto Norton, 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, POLSTON, and THOMAS, JJ., concur.


text:
    Percy KIRKLAND, Petitioner, v. Elizabeth KIRKLAND, Respondent.
    No. 1D06-1916.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Rehearing Denied Aug. 16, 2006.
    Percy Kirkland, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002); see also, Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla.1991).

BENTON, POLSTON, and THOMAS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Jose GARCIA, Respondent.
    No. 3D05-2137.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied Aug. 18, 2006.

      Enoch J. Whitney, General Counsel, and Carlos J. Raurell, Assistant General Counsel, for petitioner.
    Hersch & Talisman and Richard Hersch, Miami, for respondent.
    Before LEVY, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The State of Florida, Department of Highway Safety and Motor Vehicles (“Department”), seeks certiorari review of an order entered by the circuit court, appellate division, quashing the Department’s administrative suspension of Jose Garcia’s driver’s license, following his arrest for driving under the influence of alcohol. As we conclude that the circuit court, acting in its appellate capacity, and applied the correct law, we deny the petition.

In reviewing the action of an administrative agency, the circuit court must determine (1) whether the agency accorded the parties procedural due process; (2) whether the agency observed the essential requirements of the law; and (3) whether the agency’s action is supported by competent substantial evidence. See Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So.2d 1084 (Fla. 1st DCA 2002); Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551, 553 (Fla. 2d DCA 2002). However, “[i]n reviewing the final order of the circuit court acting in its appellate capacity, the district court is limited to determining whether the circuit court afforded the parties procedural due process and applied the correct law.” Dep’t of Highway Safety & Motor Vehicles v. Dehart, 799 So.2d 1079 (Fla. 5th DCA 2001).

In the instant case, on January 16, 2005, Jose Garcia was arrested for driving under the influence (“DUI”). After being arrested, Garcia was transported to a police station where he submitted to breath-alcohol tests. As the intoxilyzer test results were allegedly 0.08 or higher, the police officer took Garcia’s driver’s license and filed a notice of suspension. See § 322.2615(1)(a), Fla. Stat. (2005). Thereafter, pursuant to section 322.2615(l)(b)(3), Florida Statutes (2005), Garcia filed a request for formal review of his driver’s license suspension with the Department. In support of the suspension, the law enforcement officer submitted documentary evidence, as required by section 322.2615(2), Florida Statutes (2005), and rule 15A-6.013(2) of the Florida Administrative Code. Rule 15A-6.013, Florida Administrative Code, provides as follows:

(2) The hearing officer shall consider any report or photocopies of such report submitted by a law enforcement officer, correctional officer or law enforcement or correctional agency relating to the arrest of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. • Such reports, which shall be in the record for consideration by the hearing officer, include:
(a) The uniform traffic citation or notice of suspension issued to the driver;
(b) An affidavit stating the officer’s grounds for belief that the person arrested was in violation of s. 316.193;
(c) An affidavit of any breath, urine or blood test refusal, submitted by a law enforcement officer;
(d) The results of any breath or blood test documenting the driver’s alcohol level;
(e) The officer’s alcohol influence report or a description of the field sobriety test;
(f) Any video or audio tape of the driver incidental to the arrest, including any field sobriety test performed or attempted to be performed by the driver;
(g) Notice of Commercial Driver’s License/Privilege Disqualification, HSMV Form 72005;
(h) Certification of Blood Withdrawal, FDLE/ICP Form 11;
(i) Breath Test Result Affidavit, FDLE/ ICP Form 14;
(j) Blood Test Result Affidavit, FDLE/ ICP Form 15; or
(k) Agency Inspection Checklist, FDLE/ICP Form 24.
No extrinsic evidence of authenticity as a condition precedent to admissibility is required.

(emphasis added).

At the hearing, all of the documents, required by Rule 15A-6.013 were introduced. The intoxilyzer print card which was submitted at the formal hearing was, however, for an individual named Jose A. Gonzalez, not Jose Garcia, the suspended driver in the instant case. The intoxilyzer print card introduced showed that Jose A. Gonzalez’s breath test results were 0.241 and 0.236, and that the tests were conducted at 17:07 and 17:09, respectively. The Complaint/Arrest Affidavit, however, indicates that Garcia was arrested at 20:42, and the Breath Test Result Affidavit (Form 14) indicates that Garcia’s breath test results were 0.094 and 0.086, and that the tests were administered at 21:46 and 21:48, respectively.

At the hearing, Garcia’s counsel moved to invalidate the intoxilyzer print card and the Breath Test Result Affidavit, arguing the invalidity of the results contained on the intoxilyzer print card, based upon the inconsistencies between the Breath Test Result Affidavit and the intoxilyzer print card. The hearing officer, however, relied upon the print card documenting the breath test results of Jose A. Gonzalez, an entirely different individual, administered an hour prior to Garcia’s encounter with law enforcement, and sustained the suspension of Garcia’s driving privilege finding, in part, that Garcia’s breath test results were 0.241 and 0.235, and therefore, Garcia had “an unlawful alcohol level of .08 or higher.”

Garcia appealed the decision of the Department’s hearing officer by filing a petition for writ of certiorari in the circuit court, appellate division. Garcia objected to evidence regarding his breath test results, arguing that the intoxilyzer breath card, which was submitted by law enforcement and ultimately considered by the hearing officer in finding that his blood alcohol levels were 0.2⅛1 and 0.235, was for another driver, and therefore, there was no evidence confirming the breath results asserted in the Breath Test Result Affidavit. In response, the Department argued that the inclusion of another person’s intoxilyzer breath card was harmless in light of the inclusion in the record of the Breath Test Result Affidavit which listed Garcia’s actual breath test results. The circuit court agreed with Garcia, finding, in part, that rule 15A-6.013(2) requires the production of the intoxilyzer breath card at the formal hearing. Further, the circuit court noted that the hearing officer chose to ignore the “discrepancies and inconsistencies” between the Breath Test Result Affidavit and the intoxilyzer breath card.

As the Department does not allege any procedural due process violations, this court’s review is limited to whether the circuit court applied the correct law when it quashed the Department’s suspension of Garcia’s driver’s license. The Department argues that the circuit court applied the wrong law because rule 15A-6.013(2) does not require that an intoxilyzer printout, print card, or breath card be included in the record. We disagree.

Rule 15A-6.013(2) provides, in part, as follows:

(2) ... Such reports, which shall be in the record for consideration by the hearing officer, include:
(d) The results of any breath or blood test documenting the driver’s alcohol level;
(i) Breath Test Result Affidavit, FDLE/ ICP Form 14[.]

In essence, the Department argues that the admission in the record of the Breath Test Result Affidavit (Form 14) satisfies both 15A-6.013(2)(d) and (i) because the Breath Test Result Affidavit states the suspended driver’s breath test results. We are, however, unpersuaded by the Department’s argument. If the drafters of rule 15A-6.013 intended that the introduction of the Breath Test Result Affidavit required in 15A-6.013(2)(i) would reheve law enforcement of its obligation of submitting the print card, which documents the breath test results, they would not have listed the requirement to provide that evidence as a separate requirement in 15A-6.013(2)(d). In situations where a driver submits to a breath test, we interpret rule 15A-6.013 as requiring that the record before the hearing officer include both the Breath Test Result Affidavit and the actual result documenting the driver’s blood alcohol level, which in this case is the intoxilyzer print card inserted into the in-toxilyzer machine and which records the results of the test. Case law also appears to support our position that the intoxilyzer print card is required pursuant to rule 15A-6.013(2). See Dep’t of Highway Safe ty & Motor Vehicles v. Silva, 806 So.2d 551 (Fla. 2d DCA 2002) (“The Charlotte County deputy who administered the breath test timely filed his paperwork with the Department pursuant to section 322.2615(2), Florida Statutes (1999), and Florida Administrative Code Rule 15A-6.013, including, inter alia, the DUI traffic citation, intoxilyzer print card, and the probable cause affidavit.”); Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657, 658 n. 1 (Fla. 5th DCA 2001) (“The other documents contained in the record for consideration by the hearing officer pursuant to rule 15A-6.013(2), Florida Administrative Code, were: 1) the charging affidavit; 2) Intoxilizer printer card; 3) the July 9, 1999 and August 25, 1999 agency inspection report; 4) Department inspection report; and 5) the DUI citation.”) (emphasis added). We, therefore, conclude that the circuit court applied the correct law when quashing the Department’s suspension of Garcia’s driver’s license, and thus we deny the Department’s petition for writ of certiorari.

Petition denied.


author: FLETCHER, Judge.

text:
    Placido GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-880.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied Aug. 18, 2006.
    Arthur B. Calvin, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   FLETCHER, Judge.

In 1994, Placido Gutierrez was charged with aggravated battery on a pregnant victim. He entered a plea of nolo con-tendere in exchange for a withhold of adjudication and 14 months of probation. During the plea colloquy the trial court advised Gutierrez that “there is a possibility that this plea could affect your immigration status.” Gutierrez accepted the plea and was sentenced accordingly. In 2004, Gutierrez filed his first post-conviction relief petition seeking to vacate the plea. In that petition he claims that the Immigration and Naturalization Service [INS] denied his application for waiver of grounds of excludability, dismissed his appeal, and denied his application for adjustment of status. Gutierrez asserts that he faced a deportation hearing in November 2004. However, no INS Notice to Appear or results of the deportation hearing are in the record before us.

What is clear from the record is that the trial court failed to give adequate pre-plea warning to Gutierrez of the possibility of deportation upon conviction. Since 1988, the law in Florida requires that the trial judge must specifically advise a defendant that she or he may face deportation as a consequence of the plea. In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988)(Fla.R.Crim. P. 3.172(c)(8) requires judges presiding at plea colloquies to inform the accused that a guilty or nolo contendere plea may subject him or her to deportation); see Labady v. State, 783 So.2d 275 (Fla. 3d DCA 2001); Peart v. State, 705 So.2d 1059 (Fla. 3d DCA 1998), rev’d on other grounds, 756 So.2d 42 (Fla.2000). For that alone, Gutierrez is entitled to the relief he seeks.

What is not clear from the record is whether Gutierrez’ petition for relief is timely, i.e., whether Gutierrez is under current threat of deportation. Peart, 756 So.2d at 46. Gutierrez asserts that he is under threat of deportation and the attached dismissal of his appeal for waiver suggests that the INS moved toward deportation, but the record before us does not contain the usual test of “threat” of deportation in the form of an INS Notice to Appear. See Kindelan v. State, 786 So.2d 599 (Fla. 3d DCA 2001)(advice from INS of excludability from the United States due to a conviction fails to establish a prima facie case for relief because it is not the same as being threatened with deportation as a result of a plea).

Thus, the trial court’s order denying the petition for post-conviction relief must be reversed and the cause remanded for an evidentiary hearing to determine whether the petition is premature (no imminent threat of deportation) or should be addressed on the merits (deportation imminent). See State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005); Alfaro v. State, 828 So.2d 1056 (Fla. 3d DCA 2002).

Reversed and remanded for further proceedings.


author: ROTHENBERG, Judge. COPE, C.J.

text:
    Jesus FERNANDEZ and Marisol Fernandez, Appellants, v. HOMESTAR AT MILLER COVE, INC., Appellee.
    No. 3D05-1591.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Fort Lauder-dale, and Norman S. Segall, Miami, and Brigid F. Cech, Fort Lauderdale, for appellants.
    Leo Benitez and Lizette Benitez, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiffs, Jesus Fernandez and Marisol Fernandez (“Purchasers”), appeal from an adverse final summary judgment entered in favor of the defendant, Homes-tar at Miller Cove, Inc., a Florida corporation (“Seller”). We affirm.

As a result of the Seller terminating a Purchase and Sale Agreement (“Agreement”) that the parties entered into, the Purchasers filed a complaint against the Seller, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, and specific performance. Thereafter, the Seller filed a motion for summary judgment. The trial court conducted a hearing, in which it reviewed the record and heard argument from the parties’ counsel. Following the hearing, the trial court entered final summary judgment in favor of the Seller, finding that there were no genuine issues of material fact, and that based on its strict construction of the Agreement and an addendum to the Agreement, the Seller did not breach the Agreement by terminating it.

The undisputed facts, which were before the trial court, are as follows. The Purchasers and Seller entered into the Agreement, whereby the Purchasers agreed to buy from the Seller a specific lot and the single family dwelling erected on the lot or that would be erected on the lot by the Seller. The first page of the Agreement indicates that, in addition to the base purchase price of $227,900, the Purchasers agreed to pay an additional $29,300 for a covered terrace and swimming pool, for a total purchase price of $257,200.

Paragraph l(B)(ii) of the Agreement, entitled “Mortgage Provision,” provides, in part, as follows:

If a portion of the Purchase Price is to be paid out of the proceeds of a mortgage loan and the name of the SELLER APPROVED LENDER has been inserted on the first page of this agreement, then this contract will be subject to and/or conditioned upon Buyer obtaining a firm mortgage commitment. If the amount of the mortgage loan and the name of the lender have not been inserted, then this Contract is a cash sale and is not subject to and/or conditioned upon Buyer obtaining a firm mortgage commitment.

(Emphasis added). There was no approved lender inserted on the first page of the Agreement, and the Agreement reflects that the mortgage amount was zero. Therefore, pursuant to Paragraph l(B)(ii), the transaction was an all “cash sale,” which was not contingent upon the Purchasers obtaining permanent financing.

In addition, Paragraph 3 of the Agreement, entitled “Completion,” provides, in part, as follows:

The issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority will conclusively establish completion of the Residence and Purchaser’s unconditional obligation to close. If any items that bring the Property into compliance with the standards of construction in the county where the property is located are not completed or finished by closing, the work on all such items shall be completed by Seller within a reasonable time after closing.

In addition, Paragraph 4 of the Agreement, entitled “Extras and Options,” provides, in part, as follows:

Purchaser acknowledges and understands that Seller may not be able to obtain all or part of the extras prior to or at the time of closing. In such event, Seller shall, if possible, provide same as soon as is practicable, but in no event shall Purchaser hold back any funds at closing or object to final closing with full disbursement to Seller.

(Emphasis added).

Finally, Paragraph 8(a) of the Agreement, which is titled “Date and Place of Closing: Procedure and Payment,” provides, in part, as follows:

Closing of title shall take place at the office of [left blank] at such time and on such day as Seller may designate to Purchaser, giving not less than (7) days oral or written notice (the “Closing Date”) unless Seller and Purchaser agree to close at an earlier date. The closing shall be held after issuance of a Certificate of Occupancy or such other similar certificate by the appropriate governmental authority.

(Emphasis added).

The Purchasers also executed an addendum to the Agreement, entitled “Addendum #3 Options, Upgrades, and Extras” (“Addendum # 3”). Addendum # 3 lists the terrace as an option, and provides the Purchasers with a $500 credit. In addition, the swimming pool is also listed as an option, with no additional amount charged.

The Seller pulled separate permits for the dwelling and swimming pool. On January 3, 2005, the Seller provided the Purchasers with the seven-day notice required by Paragraph 8(a) of the Agreement, and notified the Purchasers that the closing was scheduled for January 11, 2005. Thereafter, on January 7, 2005, the Seller obtained the certificate of occupancy for the dwelling. The pool, however, was still under construction.

Although this was a “cash sale,” the Purchasers signed a mortgage loan application on January 5, 2005, just six days prior to the scheduled closing. On January 10, 2005, the Purchasers’ lender faxed a loan approval letter, which was subject to the completion of the swimming pool. Despite that this transaction was a “cash sale,” the Purchasers did not attend the scheduled closing because they were unable to obtain financing from their chosen lender because the swimming pool was not completed. When the Purchasers failed to appear at the scheduled closing, the Seller terminated the Agreement.

The Purchasers contend that the trial court erred by granting final summary judgment in favor of the Seller where the contract is ambiguous and there were genuine issues of material fact as to the meaning of the alleged ambiguities contained in the Agreement. We disagree.

A trial court’s ruling on a motion for summary judgment regarding a pure question of law is reviewed de novo. See Roberts v. Sarros, 920 So.2d 193 (Fla. 2d DCA 2006); Barnier v. Rainey, 890 So.2d 357 (Fla. 1st DCA 2004) (“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.’ ”) (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001)). In addition, “[t]he standard of review applicable to the question of whether a contract is ambiguous is de novo,” see Garcia v. Tarmac Am., Inc., 880 So.2d 807, 808 (Fla. 5th DCA 2004), and if a contract is unambiguous, the construction of the contract presents a question of law. See Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985); see also Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003) (“The standard of review applicable to contract interpretation is de novo.”).

In the instant case, the issue that the trial court was called upon to resolve was whether, as a matter of law, the Seller, based upon the Agreement, Addendum # 3, and undisputed facts, prematurely scheduled the closing. If the Seller prematurely scheduled the closing, the Purchasers, regardless of the fact that they did not attend the closing, were not in breach of the Agreement, and therefore, the Seller breached the Agreement by terminating the Agreement. On the other hand, if the Seller did not prematurely schedule the closing, then the Purchasers breached the Agreement by not attending the scheduled closing, and therefore, the Seller rightfully terminated the Agreement.

As did the trial court, we find that the Agreement and Addendum # 3 are clear and unambiguous. As such, we are required to construe these documents as written, since they are the best evidence of the parties’ intent. See Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) (“It is axiomatic that the clear and unambiguous words of a contract are the best evidence of the intent of the parties. Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning.”) (citations omitted); Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995) (“When a contract is clear and unambiguous, the court is not at liberty to give the contract ‘any meaning beyond that expressed.’”) (quoting Bay Mgmt., Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1978)). A eonstraetion of Paragraph 3 of the Agreement indicates that the Purchasers’ “unconditional obligation to close” is triggered by the “completion of the Residence,” which is evidenced by the “issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority.” We conclude that the term “Residence,” as used in Paragraph 3, includes only the actual dwelling, not the swimming pool. Therefore, once the Purchasers received the seven-day notice required by Paragraph 8(a) and the certificate of occupancy was issued, the Purchasers were obligated to close on the scheduled date.

In support of this conclusion, we note that the swimming pool is one of the options listed in Addendum # 3. When entering into the Agreement, the Purchasers, under Paragraph 4, acknowledged that the “Seller may not be able to obtain all or part of the extras prior to or at the time of closing,” but that under “no event shall Purchaser ... object to final closing with full disbursement to Seller.” As such, the parties are bound by the clear and unambiguous language contained in the Agreement and Addendum # 3, which obligates the Purchasers to close the transaction once the certificate of occupancy is issued for the residence, even if the options are incomplete.

Although we acknowledge that it would have been more reasonable for the closing to take place after the completion of both the dwelling and swimming pool, as the Agreement and Addendum are clear and unambiguous, “the contracting parties are bound by those terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties.” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995). Unfortunately, as the Purchasers agreed that this real estate transaction was a “cash sale,” which was not contingent upon the Purchasers obtaining permanent financing, the Purchasers’ lender’s refusal to provide permanent financing because the swimming pool was not completed is irrelevant. Accordingly, we affirm.

Affirmed.

SHEPHERD, J., concurs.

COPE, C.J.

(dissenting).

Respectfully, the trial court misinterpreted the Purchase and Sale Agreement. We should reverse the summary judgment.

This litigation arose out of a failed real estate transaction. The issue is whether developer-seller Homestar at Miller Cove, Inc. scheduled a closing prematurely.

The buyers entered into an agreement with the developer under which the developer agreed to build a residence with a covered terrace and swimming pool. The buyers did not insert a financing contingency into the agreement.

The developer built the dwelling and obtained a certificate of occupancy. The developer had obtained a separate permit for the swimming pool. At the time the certificate of occupancy was issued for the dwelling, the swimming pool had not been completed.

The developer took the position that under the contract, the issuance of a certificate of occupancy was the event which allowed the developer to require a closing. In the meantime the buyers had attempted to obtain financing, but the lender would not provide a loan until the swimming pool was completed. The buyers failed to close on the date set by the developer, and the developer retained the buyers’ deposit. The buyers brought suit against the developer seeking return of the deposit and other damages or, alternatively, specific performance. The trial court granted summary judgment for the developer. The buyers have appealed.

The question is how to interpret the parties’ contract. Paragraph 3 of the Purchase and Sale Agreement is entitled “Completion” and states in part:

The issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority will conclusively establish completion of the Residence and Purchaser’s unconditional obligation to close. If any items that bring the Property into compliance with the standards of construction in the county where the property is located are not completed or finished by closing, the work on all such items shall be completed by Seller within a reasonable time after closing.

The buyers argue that the term “Residence” means the house plus the covered terrace and swimming pool, while the developer argues that “Residence” means the dwelling only. The buyers argue that, at a minimum, there is an ambiguity in the contract which precludes summary judgment.

In my view, the wording of the Purchase and Sale Agreement means that the “Residence” includes the dwelling, covered terrace, and swimming pool. The Agreement provides in part:

Seller agrees to sell and Buyer agrees to purchase the following described real estate, together with the residential dwelling erected or to be erected thereon, as hereinafter described:
LOT 27, BLOCK 3 of MILLER COVE II, according to the Plat thereof, as recorded in Plat Book _, at Page _, of the Public Records of Miami-Dade County, FL.
Commonly known as MILLER COVE n.
Model Name: Captiva 5. The Lot and dwelling comprises the “Property.”
The sale and purchase will be made upon subject to and in accordance with the following terms and conditions:
Base Price $ 225,900 + Lot Premium $ 2,000 = $ 227,900.
Other: COVERED TERRACE 40 X10' & POOL 15'X30' $ 29,300.
TOTAL PURCHASE PRICE: $ 257,200

(Emphasis added). The above language describes the residential dwelling as including the Captiva 5 dwelling plus the covered terrace plus the swimming pool.

In this case, the developer elected to pull a separate permit for the swimming pool. Where the developer elects to use that procedure, logically the developer must obtain a certificate of occupancy for the dwelling, and a final inspection approving the swimming pool, before calling for a closing. As quoted previously, the “Completion” section of the Agreement states that “The issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority will conclusively establish completion of the Residence and Purchaser’s unconditional obligation to close.” (Emphasis added). The developer represented to the court at oral argument that a certificate of occupancy is issued upon completion of a dwelling, but in the case of the separate permit for the swimming pool, the final approval would come in the form of a final inspection.

The trial court came to a different conclusion because the Agreement also contained Addendum # 3, entitled “Options, Upgrades, and Extras.” This contains a list of twenty-two items for a total of $16,167. This included such extras as a circular driveway, kitchen cabinets and upgraded tile.

Also included in Addendum # 3 were the terrace and pool as follows:

Option # Description Price
2 Terrace 40'x8' See Purchase & Sale Agreement (500)
3 Pool 15x30 see Purchase & Sale Agreement

(Emphasis added). Although included on this list, the buyers received a credit of $500 for the terrace and no charge for the pool. The Addendum simply referred the reader back to the Purchase and .Sale Agreement for both the terrace and the pool.

Because the terrace and pool were included in the Addendum entitled “Options, Upgrades, and Extras,” the trial court concluded that paragraph four of the Agreement, entitled “Extras, Options,” applied. That paragraph states, in part:

Purchaser acknowledges and understands that Seller may not be able to obtain all or part of the extras prior to or at the time of closing. In such event, Seller shall, if possible, provide same as soon as is practicable, but in no event shall Purchaser hold back any funds at closing or object to the final closing with full disbursement to the Seller.

The trial court concluded that the language just quoted allows the developer to demand a closing without completing the covered terrace and swimming pool.

The problem with that analysis is that the covered terrace and swimming pool appear in two places, not just one place, in this contract. As already stated, the first page of the Purchase and Sale Agreement contains the language identifying “the residential dwelling erected or to be erected thereon, as hereinafter described,” and thereafter lists the Captiva 5 home plus covered terrace and swimming pool. The better reading of the Purchase and Sale Agreement is that the Captiva 5 home plus covered terrace and swimming pool are the “Residence” which must be completed pri- or to closing. The fact that the covered terrace and swimming pool were also listed on the Addendum is surplusage having no significance, because the Addendum did not impose any additional charge for the swimming pool or covered terrace — indeed, in the case of the covered terrace the buyer actually received a $500 credit.

In conclusion, the correct interpretation is that the “Residence” consists of the Captiva 5 home plus covered terrace and swimming pool. The developer properly obtained a certificate of occupancy on the Captiva 5 dwelling, but had not obtained a final inspection approving the swimming pool when the developer called for a closing. The closing was scheduled prematurely by the developer and the summary judgment should be reversed.

      . During oral argument, the Seller’s counsel represented to this court that, upon a governmental agency's final approval of a swimming pool, the agency issues a final inspection, not a certificate of occupancy. In addition, the final inspection for the swimming pool was obtained approximately one month after the scheduled closing.

       Alternatively, if the foregoing analysis is not accepted, then at a bare minimum the contract is ambiguous because the covered terrace and swimming pool are included both in the basic description of the premises on the first page of the Agreement, and again in the Addendum identifying "Options, Upgrades, and Extras.” Under either analysis, the summary judgment should be reversed.


text:
    Johnny Bell PERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 06-1009.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied Aug. 31, 2006.
    Johnny Bell Perry, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Moore v. State, 820 So.2d 199, 205 (Fla.2002).


text:
    Daniel Victor WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-259.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied Aug. 18, 2006.

      Daniel Victor White, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Daniel Victor White, appeals from the denial of two of the three claims raised in his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Pursuant to a negotiated plea with the State, the defendant pled guilty to numerous charges in five cases (97-27541, 97-34847, 97-34344, 97-33536, and 97-33538), and agreed to be sentenced as an habitual offender. In his motion to correct illegal sentence, the defendant raised three claims. Based upon the State’s confession of error regarding the defendant’s second claim, the trial court granted the motion and vacated the defendant’s sentence in Case No. 97-34344. The remaining two claims are the subject of this appeal.

CLAIM I

That the defendant’s plea to an occupied burglary in Case No. 97-34344 was not free and voluntary because the State failed to establish a factual basis for the plea

Florida Rule of Criminal Procedure 3.172(a) provides that “[bjefore accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.” The defendant claims that the trial court erred in summarily denying his first claim as the record reflects that the State failed to provide a factual basis for the defendant’s plea to burglary of an occupied structure. As this claim is not cognizable under rule 3.800(a), we conclude that the trial court properly denied the claim. See Nowlin v. State, 639 So.2d 1050, 1051 (Fla. 1st DCA 1994)(holding that whether the trial court established that there was a factual basis for the defendant’s guilty plea, is not an issue which may be raised in a rule 3.800(a) motion to correct illegal sentence)(citing Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993)). Such a claim may, however, be addressed in a postcon-viction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, unless it is time-barred. Nowlin, 639 So.2d at 1052. However, since the defendant entered his plea of guilty and was sentenced on June 4, 1999, even if we were to treat the defendant’s motion as a motion filed under Rule 3.850, we would affirm as such a motion would clearly be untimely. See Fla. R.Crim. P. 3.850(b)(“A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than two years after the judgment and sentence become final in a noncapital case.... ”). Therefore, the trial court properly denied the defendant’s first claim.

CLAIM III

That the defendant’s sentences as an habitual offender are illegal

The defendant claims that the trial court erred in finding that he qualified to be sentenced as an habitual offender by relying on a conviction in Case No. 91-4234 as one of the qualifying prior convictions, which he claims was not his conviction. A review of the record indicates that, in addition to Case No. 91-4234, the trial court also relied on convictions in Case Nos. 91-4784 and 91-4923 in finding that the defendant qualified as an habitual offender. Based on the convictions in Case Nos. 91-4784 and 91-4923 alone, the defendant had the requisite predicate convictions to support his sentencing as an habitual offender. Thus, we conclude that the trial court properly denied the defendant’s third claim.

Affirmed.


text:
    Michael MICHANOWICZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5044.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Rehearing Denied Aug. 11, 2006.
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Robert R. Wheeler, Chief, Criminal Appeals, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See § 924.051(4), Fla. Stat. (2003) (“If a defendant pleads nolo conten-dere without expressly reserving the right to appeal a legally dispositive issue, ... the defendant may not appeal the judgment or sentence.”); § 924.06(3), Fla. Stat. (2003) (same). See also Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006) (“Where the coercion alleged is legally insufficient or conclusively refuted by the record, there is no need to hold an evidentiary hearing or appoint conflict-free counsel.”). See also Blakely v. Washington, 542 U.S. 296, 301, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (reaffirming the exception for “the fact of a prior conviction,” and defining “ ‘statutory maximum’ for Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] purposes [a]s the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant”) (emphasis omitted); Daniels v. State, 929 So.2d 710, 31 Fla. L. Weekly D1460, D1461 (Fla. 1st DCA May 25, 2006) (“[T]here is no Apprendi violation [where], as the record indicates, the ... additional [scoresheet] points did not cause Appellant’s sentence ... to exceed the prescribed statutory maximum.”).

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    Andre HALL a/k/a Keenon Clarke, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3364.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Aug. 28, 2006.

      Andre Hall a/k/a Keenon Clarke, Fort Lauderdale, pro se.
    No appearance require for appellee.
   PER CURIAM.

Andre Hall appeals the summary denial of his rule 3.850 motion for post-conviction relief.

Following a jury trial, Hall was convicted of first degree felony murder and attempted robbery with a firearm. In his post-conviction motion, he raised numerous claims of ineffective assistance of counsel. We affirm and write only to address point seven, that counsel provided ineffective assistance by making comments which Hall argues were a concession of his guilt. We have considered the claim ,on the merits and hold that counsel did not concede Hall’s guilt on the charged offense. Compare Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); Thompson v. State, 839 So.2d 847 (Fla. 4th DCA 2003); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We also hold that Hall’s remaining claims of ineffective assistance of counsel have no merit.

STEVENSON, C.J., WARNER, J„ and DELL, JOHN W., Senior Judge, concur.


text:
    Willie Frank BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2959.
    District Court of Appeal of Florida, First District.
    July 7, 2006.
    Rehearing Denied Aug. 17, 2006.
    Willie Frank Barnes, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, C.J., WEBSTER, and HAWKES, JJ., Concur.