author: LAGOA, Judge.

text:
    The STATE of Florida, Appellant, v. William R. LENNON, Appellee.
    No. 3D06-2532.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2007.

      Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender and Jacqueline Delgado and Kristen E. Mueller, Certified Legal Interns, for appellee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   LAGOA, Judge.

The State appeals an order granting defendant William R. Lennon’s (“Lennon”) motion to suppress physical evidence and statements. Because the police officer had reasonable suspicion to make an investigatory stop and because Lennon lacked standing to challenge the seizure of the stolen jet ski and trailer, we reverse the suppression order.

I. FACTUAL AND PROCEDURAL HISTORY

Lennon was charged with one count of grand theft in the third degree involving a jet ski and trailer. Lennon filed a motion to suppress contending that because there was no reasonable suspicion to detain him and conduct an investigatory stop, all physical evidence and statements obtained from the investigatory stop should be suppressed.

At the hearing on Lennon’s motion to suppress, Officer Castaneda testified on behalf of the State. Castaneda testified that at 9:05 p.m. on August 16, 2005, 911 received information that two men were selling a jet ski and a trailer on the side of the road at southwest 181st street and 97th avenue for a “very good price.” Castaneda testified this activity was illegal pursuant to a Miami-Dade County ordinance prohibiting any vehicles from being parked and displayed for sale on public streets.

Officer Castaneda responded in a marked police vehicle to the exact location provided by the tip and saw a van, jet ski, and trailer parked on the side of the public road. Lennon was standing next to the van holding a bicycle when Officer Castaneda parked his vehicle next to the van. As Castaneda approached, Lennon rode five to seven feet away from the scene on his bicycle. At that point, Officer Castaneda told Lennon “stop, I need to talk to you.” Lennon stopped, and Officer Castaneda asked for his driver’s license. After Lennon told Officer Castaneda that the van, jet ski and trailer belonged to him, Castaneda asked Lennon whether he had documentation of ownership, and Lennon responded that he did not have any to give him. Lennon told Castaneda that he owned the jet ski and trailer for a period of six months and then consented to an inspection of the jet ski and trailer. During this time frame, Lennon’s co-defendant approached Officer Castaneda and Lennon and admitted that they were selling the jet ski and trailer.

Officer Castaneda checked the VIN for the jet ski and after running the VIN number discovered that both the jet ski and trailer had been stolen six days earlier. After determining that the jet ski was stolen, Castaneda approached another officer at the scene to make contact with the registered owner who lived nearby and obtain a description of the jet ski and trailer. When the second officer confirmed that the registered owner’s description matched that of the jet ski and trailer offered for sale by Lennon, he was placed under arrest.

Following the hearing on the motion to suppress, the trial court entered a written order finding that Officer Castaneda “did not make any independent observations that were indicative of criminal activity and had no other facts upon which he could articulate a well-founded basis for suspicion of criminal activity.” Based upon these findings, the trial court concluded that Officer Castaneda “did not have reasonable suspicion to detain Lennon” and granted the motion to suppress “all of the evidence, including the jet ski, trailer, statements made by Lennon, and the officer’s identification” of Lennon.

II. STANDARD OF REVIEW

In reviewing a trial court’s ruling on a motion to suppress, we must affirm a trial court’s factual findings if supported by competent, substantial evidence. Hicks v. State, 929 So.2d 13, 15 (Fla. 2d DCA 2006)(quoting State v. D.D.D., 908 So.2d 1180, 1181 (Fla. 2d DCA 2005)). However, application of the law to those facts and any legal conclusions are reviewed de novo. Id.

III. ANALYSIS

An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “‘Reasonable suspicion’ is a less demanding standard than that for probable cause, and ‘considerably less than proof of wrongdoing by preponderance of the evidence.’ ” State v. Gonzalez, 682 So.2d 1168, 1170 (Fla. 3d DCA 1996).

The standards enunciated in Terry were codified in Florida’s Stop and Frisk Law. Section 901.151(2), Fla. Stat. (2006), provides, in relevant part:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

An officer, therefore, may detain a person in order to determine identity and circumstance when that officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Gonzalez, 682 So.2d at 1170 (Fla. 3d DCA 1996).

In determining whether a police officer possesses a reasonable suspicion to justify an investigatory stop, the court must consider the totality of the circumstances viewed in light of a police officer’s experience and background. See Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999); Brown v. State, 592 So.2d 1237, 1238 (Fla. 1st DCA 1992); Moore v. State, 561 So.2d 625, 626 (Fla. 1st DCA 1990). Some of the factors a police officer may evaluate to reasonably suggest the possibility, existence, or imminence of criminal activity are:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. To this list may be added, the factor of flight.
Hernandez, 784 So.2d at 1126 (quoting State v. Bell, 382 So.2d 119 (Fla. 3d DCA 1980)). Although flight alone is not sufficient to create reasonable suspicion, “flight can be considered when there are other suspicious circumstances.” Hernandez, 784 So.2d at 1127. Indeed, “flight at the sight of an approaching police officer is a suspicious circumstance which, when added to other suspicious circumstances, may justify the belief that the defendant was engaged in criminal activity” warranting an investigatory stop. Id. (emphasis in original).

Here, under the totality of the circumstances, we find that Officer Castaneda had reasonable suspicion to lawfully detain Lennon. Once Officer Castaneda received the information from the dispatcher that two men were attempting to sell a jet ski and trailer on a public road, he proceeded immediately to the detailed location. Upon arriving at the specific location, Castaneda observed Lennon standing next to a van, jet ski, and trailer, all of which were parked on the side of a public road, at night, in a location not near the vicinity of water. This observation, along with the tip, indicated to Castaneda a possible violation of a Miami-Dade County ordinance prohibiting the display of any vehicles for sale on a public street. Additionally, when Lennon saw Officer Castaneda park his car, he fled on a bicycle. In light of the already suspicious circumstances in this case — the possible violation of an ordinance, the time of day plus the anonymous tip, the attempt by Lennon to flee may be considered in deciding whether there existed reasonable suspicion. Indeed, taken as a whole, these factors were sufficient to lead Officer Castaneda to have a reasonable suspicion that a crime may have been, was, or was about to be committed so as to justify further investigation. As this Court has previously stated:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his [or her] shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Gonzalez, 682 So.2d at 1171 (quoting Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). We, therefore, find that the stop was constitutional, and that the trial court erred in suppressing all evidence and statements obtained as a result of the investigatory stop.

We write further to address the issue of Lennon’s standing to challenge the seizure of the stolen items. Although not presented below by the State, the issue of standing may be properly addressed for the first time on appeal. See McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003)(“the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal.”). On appeal, the State argues that Lennon did not have a reasonable expectation of privacy in either the jet ski or trailer as he did not lawfully possess them. We agree. A defendant challenging a search must show a proprietary or possessory interest in the area of search or that there are other factors which create an expectation of privacy which society is willing to recognize as reasonable. Singleton, 595 So.2d at 45 (Fla.1992). As the Second District explained in Hicks v. State, 929 So.2d 13, 16 (Fla. 2d DCA 2006):

A search violates a defendant’s Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable.

In Hicks, the Second District held that the defendant failed to establish a reasonable expectation of privacy in a stolen laptop computer which was seized from his vehicle, and therefore could not contest the search of the laptop’s files. Id. at 19. See also Tongue v. State, 544 So.2d 1173 (Fla. 5th DCA 1989)(no legitimate expectation of privacy in stolen vehicle). “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of the stolen property, such an expectation is not one that ‘society is prepared to accept as reasonable.’ ” Hicks, 929 So.2d at 17 (quoting United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir.2005)).

Similarly, Lennon had no expectation of privacy in the stolen jet ski and trailer as he had neither a possessory or ownership interest in them nor is society prepared to accept such an expectation of privacy as reasonable. Lennon, therefore, lacked standing to complain of their seizure.

IV. CONCLUSION

For the foregoing reasons, we reverse the trial court’s order granting the motion to suppress all evidence, and remand for proceedings consistent with this opinion.

      . Castaneda testified that the VIN for the jet ski was in plain view.

      . The State does not challenge — nor could it — Lennon's standing to challenge the stop of his person. See State v. Singleton, 595 So.2d 44, 45 (Fla.1992)(a defendant has "standing to challenge the stop of his person. The search of a person and the search of an area or a vehicle are different.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shirley THORNTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2791.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Rehearing Denied Sept. 11, 2007.
    Shirley Thornton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    Jason B. KELLOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3143.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Rehearing Denied Sept. 11, 2007.
    Jason B. Kellom, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, KAHN, and ROBERTS, JJ., concur.


author: SHEPHERD, J.

text:
    MERITPLAN INSURANCE COMPANY, Appellant, v. Juan E. PEREZ and Ana P. Perez, Appellees.
    No. 05-1897.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Denise V. Powers, for appellant.
    Mintz, Truppman, Clein & Higer, and Keith A. Truppman, Miami, for appellees.

      Before SHEPHERD, SUAREZ and ROTHENBERG, JJ.
   SHEPHERD, J.

Meritplan Insurance Company appeals a nonfinal order enjoining the insurer to pay disputed sums under a homeowners’ insurance policy to their insureds, Juan E. Perez and his wife, Anna P. Perez, prior to a final determination of the case. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(B); Bistricer v. Oceanside Acquisitions, LLC, 937 So.2d 786 (Fla. 2d DCA 2006)(stating that an order directing action on the part of the plaintiff was treatable as a nonfinal order granting or continuing an injunction). We conclude that the trial court abused its discretion in entering the order under review, and therefore reverse and remand with instructions.

I. FACTS

A. The Loss and the Insurance Policy

On July 25, 2003, Juan E. Perez and his wife, Ana P. Perez, were the victims of personal property theft from their home. At the time of the theft, the Perezes were insured under a homeowner’s insurance policy issued by Meritplan. The insuring clause of the policy reflects that the policy is an “actual cash value” (ACV) policy. Section I — Conditions, Paragraph 3, of the policy states:

3. Loss Settlement. Covered property losses are settled as follows:
a. Property of the following types:
(1)Personal property
at actual cash value at the time of loss but not more than the amount required to repair or replace.

(Emphasis added.)

In addition, as is customary in the industry, the policy places certain duties or conditions of recovery on the insured.

Section I — Conditions, Paragraph 2, of the Meritplan policy states:

2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
e. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory;
f. As often as we reasonably require:
(1) Show the damaged property;
(2) Provide us with records and documents we request and permit us to make copies; and
(3) Submit to examination under oath, while not in the presence of any other “insured,” and sign the same;
g. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(6) The inventory of damaged personal property described in 2.e. above[.]

(Emphasis added.)

Finally, Section I — Conditions, Paragraph 6, of the policy contains a nonjudicial, alternate dispute resolution clause for resolution of any difference that might arise between an insured and insurer over the amount of the ACV that might be payable under the policy:

6. Appraisal. If you and we fail to agree on the amount of the loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire.... The appraisers will separately set the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of the loss.

B. The Endorsement

Modifications to insurance policies usually are accomplished through attachments to the policy known as “endorsements.” Some endorsements are statutorily required. See, e.g., Ady v. Am. Honda Fin. Corp., 675 So.2d 577 (Fla.1996); Prudential Prop. & Cas. Ins. Co. v. Bonnema, 601 So.2d 269 (Fla. 5th DCA 1992). Others are optional to the insured for an additional premium. Attached to the insurance policy at issue here is an optional “Personal Property Replacement Cost” endorsement purchased by the Perezes for an additional premium. This endorsement affords the Perezes an additional contractual right — a 180-day period within which to elect to replace any covered item — and, if such an election is made, receive payment for the full replacement cost of the item replaced. The Perezes purchased this option subject to “all other provisions of [the] policy.” Section I, Paragraph 2, of the endorsement states:

2. REPLACEMENT COST
The following loss settlement procedure applies to all property insured under this endorsement:
a.We will pay no more than the least of the following amounts:
(1) Replacement cost at the time of loss without deduction for depreciation.
b. When the replacement cost for the entire loss under this endorsement is more than $500, we will pay no more than the actual cash value for the loss or damage until the actual repair or replacement is complete.
c. You may make a claim for loss on an actual cash value basis and then make claim within 180 days after the loss for any additional liability in accordance with this endorsement.
All other provisions of this policy apply.

(Emphasis added.)

A cursory reading of the policy reveals that it contemplates a two-tier loss settlement procedure: (1) an initial claim for the ACV of a covered loss after taking into account applicable deductibles and special limitations of liability for certain types of losses, such as jewelry, securities, watercraft, and firearms; and (2) a second, likely later, claim filed within 180 days of the date of loss for recovery.of the total replacement cost of any covered property the insured has during the period actually replaced. Upon a careful review of the record, we conclude that, in an apparent misunderstanding of the Meritplan insurance agreement, its nature, conditions, and structure, the Perezes filed suit prematurely and led the trial court to reversible error. A full recitation of the claim and litigation history of this case will make clear how this occurred and why we are compelled to reverse the injunctive order requiring payment by Meritplan.

C. The Claim

The pre-suit adjustment period for this claim was brief. Within a few months of the theft, the Perezes engaged a public adjuster, Randy Paul, of Lesser & Company, to represent them in the presentation of their claim to Meritplan. On December 4, 2003, Paul submitted a Sworn Proof of Loss on behalf of the Perezes in an “amount claimed” of $82,684 “with limits applied.” On December 15, 2004, Merit-plan Claims Representative David Moore rejected the proof of loss as insufficient. On March 4, 2004, apparently after an investigation and analysis of his own, Moore forwarded a proposed first-tier proof of loss to Paul, evaluating the ACV for claim purposes at $21,574. When calculating that value, Moore accepted Paul’s “amount claimed” as the “replacement cost” estimate for purposes of the policy. Moore further advised:

Mr. Perez may recover the [remaining] refundable depreciation by sending us receipts and invoices documenting the items were replaced. Should you replace or repair the damage for less money than the amount allowed, we will pay the amount owed based on your actual cost. Under the terms of your policy, you have 180 days from the date of actual cash value payment on the loss to file this additional claim.

(Emphasis added.)

Paul responded to Moore on March 8, 2004:

Thank you for your correspondence of March U, %00⅛ offering $21,574.00 as an ACV payment. Please be advised that I have contacted Mr. Perez and he is extremely upset at the amount being offered .... He advised me that he will take between $⅛0,000.00 and [$⅛5,000] as an ACV payment. After reviewing this correspondence, please advise me as to your company’s position.... We would like to avoid going to appraisal, but will have no choice unless you increase your offer.

(Emphasis added.)

On April 4, 2004, — less than a month after Paul mailed his letter to Meritplan and before Meritplan responded — counsel for the Perezes appeared on the scene. Rather than pursue the appraisal option threatened by the Perezes’ professional adjuster and required by the plain language of the insurance policy, the Perezes’ counsel sued Meritplan. Although counsel later claimed he was unaware of the exchanges between Paul and Moore when he filed suit, the action he filed sounded in two counts: (1) Count I, a plain vanilla “Breach of Contract” count “for the proper amount of damages” due under the policy; and (2) Count II, a “Petition to Compel Appraisal & Appointment of Neutral” under the “Appraisal” provision of the insurance policy. Notably, the complaint contained no mention of a second-tier replacement cost claim.

D. The Litigation

In response to the complaint, Meritplan did the unexpected — it offered, through counsel, to resolve the first-tier claim through appraisal. After first agreeing in writing to the Meritplan offer, the Perezes’ counsel had second thoughts, reneged on the agreement, and filed an Amended Complaint, abandoning its Petition for Appraisal, but amending the Breach of Contract count to allege that Meritplan, by its March 4, 2004 letter, had waived all conditions precedent to payment under the policy. Presumably the Perezes’ counsel remained unaware of the Perezes’ public adjuster’s March 8, 2004 rejection of Mer-itplan’s March 4 offer. These occurrences were met by Meritplan simultaneously filing a Motion to Dismiss and to Compel Appraisal. Meritplan argued that the Per-ezes’ agreement to proceed to appraisal was the enforceable, contractually required, and legally proper way to resolve the differences then existing between the parties over the ACV of the loss. With the Perezes’ counsel’s support, after a non-evidentiary hearing, the trial court denied Meritplan’s motion, and, on June 10, 2004, sua sponte ordered, “The defendant shall tender the ACV (undisputed portion) and pay up to the agreed amount RCV [replacement cash value] upon receipts.” Despite the questionable validity of the trial court’s sua sponte directive, see Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, 547 So.2d 198, 199 (Fla. 3d DCA 1989)(stating that “a trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing”), Meritplan paid the Perezes $21,574, and, for the first time, began receiving replacement cost receipts.

As the receipts began to trickle in, Mer-itplan sought to verify them through requests for a supporting second-tier proof of loss, additional documentation, and examinations under oath of their insureds. The Perezes’ counsel refused these requests and filed a Motion to Enforce Compliance with the trial court’s sua sponte directive, and added to it a Motion for Protective Order and Motion for Sanctions. On November 10, 2004, at yet another non-evidentiary hearing, over Meritplan’s objection, the court again provided relief to the Perezes, ordering:

1. Plaintiffs Motion to Comply with Court Order Dated June 10, 2004 be and the same is hereby GRANTED. The Defendant shall tender payment within 30 days on any and all items whereby receipts have been provided to date and pay the remaining refundable depreciation withheld upon receipt of receipts up to the amount of SIXTY-ONE THOUSAND ONE HUNDRED AND FOUR AND NO/100 DOLLARS (61,104.00).
2. Plaintiffs’ Motion for Protective Order and for Sanctions is GRANTED, in part, in that the Plaintiffs/Insureds shall not be required to attend an Examination Under Oath until such time as the Defendant, Meritplan Insurance Company, has made full payment of the refundable depreciation.
4. Defendant’s Motion to Compel Attendance at Examination Under Oath is GRANTED, in part, in that after the Defendant has tendered full payment of the refundable depreciation, the Plaintiffs shall each be made available for an Examination under Oath.

Shortly after this order was entered, Meritplan received information that some of the receipts reflected items that had been ordered but not picked up; some receipts represented orders that had been cancelled; and evidence that the Perezes may have engaged in fraud on Meritplan by failing to actually replace the stolen items as required under the policy. Counsel for Meritplan contacted the Per-ezes’ counsel, who claimed he would inquire. His response was a Second Motion to Enforce. A few days later, Meritplan filed a Motion to Vacate the Orders dated June 10, 2004, and November 10, 2004, and to amend its answer to assert the defense of insurance fraud. After a final non-evidentiary hearing, the court denied the motion to vacate the June 10 and November 10 orders and granted the Perezes’ motion as follows:

Plaintiffs shall submit receipts for replacement items and the Defendant shall reimburse Plaintiffs within forty-eight (48) hours of receipt. Defendant shall have the right to make out the checks directly to the retailer and the invoices shall reflect that the items are non-refundable and/or non-returnable and all sales are final. Further, Defendant shall have the opportunity to perform one inspection of Plaintiffs’ home to confirm receipt of all replacement items in accordance with the above.

All conditions of the insurance policy having been effectively vitiated by these orders, Meritplan seeks relief before this court.

II. ANALYSIS

Stated succinctly, from the time the original complaint was filed, the Perezes’ position has been that, contrary to the express provisions of the policy, they are entitled to a check for the total replacement value of the loss, and that their obligation was to do nothing more than produce receipts.

While we recognize the good intentions of the trial court in seeking to resolve this matter through a series of injunctive orders, this case is a simple case for breach of an insurance contract. When, at the outset, Meritplan sought appraisal of the only issue existing between the parties at the time — the ACV of the loss — the Per-ezes’ counsel opposed appraisal on the ground that Meritplan and the Perezes’ adjuster had reached a settlement that only needed to be enforced. A cursory review of the parties’ correspondence prior to the Perezes’ filing of the lawsuit indicates that such was not the case. Nevertheless, the trial court denied the motion for appraisal and, thereafter, with the Per-ezes’ encouragement, sought to resolve this matter through the injunctive process.

Injunctive remedies do not ordinarily lie where there is an adequate remedy at law available to the complaining party. See DiChristopher v. Bd. of County Comm’rs, 908 So.2d 492, 497 (Fla. 5th DCA 2005). That is particularly so where, as here, such relief is entered without an evidentiary basis. See Bistricer, 937 So.2d at 787 (reversing injunction entered without evidentiary hearing and lacking factual basis). By granting the injunction in this case, the trial court vitiated Meritplan’s contractual rights prior to a trial on the merits. In so doing, the trial court abused its discretion. See Net First Nat’l Bank v. First Telebanc Corp., 834 So.2d 944, 950 (Fla. 4th DCA 2003)(“Although a trial court has broad discretion in granting in-junctive relief, it is an extraordinary remedy that ‘requires a clear legal right, free from reasonable doubt.’ ” (quoting Dania Jai Alai Int’l, Inc. v. Murua, 375 So.2d 57, 58 (Fla. 4th DCA 1979))). A trial court cannot allow itself to become the adjuster of the claim. See Union Am. Ins. Co. v. Haitian Refugee Center/Sant Refijie Ayisyin, Inc., 858 So.2d 1076, 1078 (Fla. 3d DCA 2003)(courts cannot engage in “judicial rewriting” of insurance policies). That is effectively what the trial court was induced to become here. Nor can the Per-ezes profit through their advancement below of their own misconceptions of the nature, conditions, and structure of the insurance agreement they made with Meritplan.

We reverse and remand the order on appeal with directions that the court permit Meritplan to amend its complaint to allege the defense of insurance fraud on the part of the Perezes in this case and such other defenses as it might have to the Perezes’ breach of contract claim. We find no basis for the employment of the injunctive process to afford relief to the Perezes on the record before us. We express no opinion on the merits of the breach of contract action.

Reversed and remanded with directions.

      . Because the insured already is entitled to receive and in most cases has received, the ACV of a covered item at the time he or she files a second-tier actual replacement cost claim, the total replacement cost payment under the policy endorsement is the difference between the actual replacement cost of the item replaced and the ACV already paid or scheduled to be paid for that item. As one logically would anticipate, the policy prohibits double recoveries and windfalls. ,

      . Paul’s letter actually says ''between $40,000 and $350,000.” Because, without explanation in the record, the parties appear to treat Paul’s counter-offer on behalf of the Perezes to be "between $40,000 and $45,000”, we assume the letter was inadvertently inaccurate. This discrepancy is not critical to our analysis of this case.

      . The Amended Complaint purportedly was filed pursuant to Florida Rule of Civil Procedure 1.190(a), which permits a plaintiff to amend his complaint as of right prior to the filing of a responsive pleading.

      . Sections I and II — Conditions, Paragraph 2, of the policy contains the following provision:
      2. Concealment or Fraud. The entire policy will be void if, whether before or after the loss, an “insured” has:
      a. Intentionally concealed or misrepresented any material fact or circumstance;
      b. Engaged in fraudulent conduct; or
      c. Made false statements;
      relating to this insurance.


text:
    Dorrie THOMAS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D05-5181.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Rehearing Denied Sept. 10, 2007.

      Dorrie Thomas, pro se, Appellant.
    Kim Fluharty, General Counsel, and Connie L. Beach, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Dorrie Thomas, a state prisoner, appeals the dismissal of his petition for writ of mandamus for not filing copies of his inmate trust account records as required by section 57.085, Florida Statutes (2004). We reverse and remand.

On March 2, 2004, Dorrie Thomas (appellant) filed a petition for writ of mandamus in the Fifteenth Circuit Court challenging his parole release date. The appellant contended that the Florida Parole Commission (appellee) erroneously disregarded findings of fact made by the hearing examiner and concluded that the appellant was not entitled to release. On November 30, 2004, the court determined that venue was improper and the case was transferred to the Second Circuit Court where the appellee has its headquarters.

On January 31, 2005, the appellant filed an affidavit of indigency alleging that he was indigent within the meaning of section 57.081(a), Florida Statutes (2004), and was entitled to a filing fee waiver because his claim was a collateral criminal proceeding pursuant to Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). On February 23, 2005, the court clerk issued a response stating that the petitioner had failed to file all required information to determine his eligibility to proceed as an indigent and ordered the petitioner to comply within 60 days or pay the filing fee. Notably, the appellant failed to document any financial information concerning income or real property interests. On March 7, 2005, the appellant filed a supplemental affidavit of indigency pursuant to section 57.085. The appellant produced all information requested by the court clerk with the exception of a photocopy of the appellant’s inmate trust account records for the preceding six months.

On August 12, 2005, the trial court dismissed the case because the appellant sought to proceed without a filing fee and failed to fully comply with the court clerk’s documentation request. On August 25, 2005, the appellant filed a motion for relief from judgment, which was denied on September 30, 2005. This timely appeal followed.

A trial court’s dismissal of a petition for a writ of mandamus is reviewed by direct appeal. See Green v. Moore, 111 So.2d 425 (Fla. 1st DCA 2000) (distinguishing order decided on the merits from orders decided on grounds other than the merits). The applicability of section 57.085 is a question of law and the standard of review is de novo. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317 (Fla.2005).

The appellant asserts that fulfilling the affidavit requirements of section 57.085, with the exception of copies of the records of his inmate trust account for the preceding six months, allowed him to proceed without a filing fee. The appellant argues that the trial court erred in dismissing his petition because he completed the affidavit requirements of section 57.081, which did not require the production of copies of six months’ trust account records. We agree.

Section 57.085, known as the “prisoner indigency statute,” was enacted in 1996 “in order to reduce unnecessary or frivolous prisoner filings.” Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005). Section 57.085 allows an indigent prisoner to initiate a civil proceeding without prepayment of filing fees and costs, but requires a lien to be placed on a prisoner’s inmate trust account until the fee is paid in full. See § 57.085(2)-(5), Fla. Stat. (2006). However, section 57.085 specifically exempts criminal proceedings and “collateral criminal proceeding[s].” § 57.085(10), Fla. Stat. (2006). A proceeding involving the loss of accrued gain time is considered a “collateral criminal proceeding” which exempts a prisoner from section 57.085. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003) (“[A] gain time challenge should be considered a ‘collateral criminal proceeding,’ and the Prisoner Indigency Statute should not apply.”).

In Spaziano v. Florida Parole Commission, — So.2d -, 2006 WL 1565289 (Fla. 1st DCA June 9, 2006), this Court held that a mandamus petition challenging a presumptive parole release date was a collateral criminal proceeding exempt from section 57.085. In Brooks v. Florida Parole Commission, 948 So.2d 801 (Fla. 1st DCA 2006), this Court extended Spaziano to apply to mandamus petitions challenging the decision to suspend a prisoner’s presumptive parole release date and not authorize his effective parole release date.

If a prisoner is not required to proceed under section 57.085, Florida Statutes, he may be permitted to proceed as an indigent pursuant to section 57.081, Florida Statutes, the “general indigency statute.” Section 57.082 details the information that a petitioner is required to supply to the clerk of the court as part of his affidavit of indigency under the general indigency statute. An affidavit of indigency under section 57.081 must supply most of the information required in an affidavit of indi-gency under section 57.085. Specifically, copies of the records of the inmate’s trust account for the preceding six months are not required to be provided by a petitioner proceeding under section 57.081.

Therefore, this case is REVERSED and REMANDED to the trial court, so that it may determine if Thomas is indigent under section 57.081, and if applicable, for determination on the merits of the petition.

BROWNING, C.J., BARFIELD and ROBERTS, JJ., concur.

      . The citation to section 57.085, Florida Statutes, is on the form provided by the clerk of court.


text:
    Willie J. HUDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3340.
    District Court of Appeal of Florida, First District.
    July 16, 2007.
    Rehearing Denied Aug. 28, 2007.
    Willie J. Hudson, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Calvin Lanier FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3402.
    District Court of Appeal of Florida, First District.
    July 18, 2007.
    Rehearing Denied Sept. 11, 2007.
    Calvin Lanier Farmer, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, ALLEN, and HAWKES, JJ., concur.


author: ROTHENBERG, Judge. RAMIREZ J,

text:
    James PESCI, Appellant, v. STATE of Florida, Appellee.
    No. 3D06-234.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Sept. 26, 2007.

      Bennett H. Brummer, Public Defender, Miami, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, Miami, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The appellant, James Pesci (“Pesci”), appeals a final judgment finding him to be a sexually violent predator and civilly committing him for treatment pursuant to sections 394.910-394.932, Florida Statutes (2006), commonly referred to as the Jimmy Ryce Act (“Ryce Act”). The gravamen of Pesci’s argument is based upon the admission of hearsay evidence regarding a prior offense Pesci had been charged with in New York. Although we find that the trial court did not abuse its discretion in admitting this hearsay evidence, we conclude that based on the substantial unobjected-to evidence presented, that any error in the introduction of the objected-to evidence was harmless beyond a reasonable doubt. We, therefore, affirm.

In 1996, Pesci was arrested and charged with committing a sexual offense in New York. After posting bond and being released pending trial, Pesci absconded, fled to Florida, and changed his name.

In 1997, Pesci was charged with a sexual battery, grand theft auto, and resisting arrest without violence, in Key West. On February 11,1999, Pesci pled guilty to the charges, and he was sentenced to five years incarceration followed by five years of probation for the sexual battery offense and to concurrent incarcerative sentences for the two remaining offenses. Because the facts regarding the Key West sexually battery are not in dispute and are relevant to our decision, they will be addressed herein.

Pesci met the victim at a restaurant where they had several drinks together. After consuming several more drinks at a bar, they proceeded to the victim’s hotel room. Although the victim initially agreed to have sex with Pesci, when she learned that he did not have a condom with him, the victim withdrew her consent. This angered Pesci. What followed was a seven to eight hour assault by Pesci upon the victim. He raped her vaginally and anally and forced the victim to perform oral sex on him. Pesci additionally beat and choked the victim. He placed a dog leash around the victim’s neck and made her crawl around on the floor like a dog while he whipped her buttocks with a belt. After enduring this abuse for many hours, the victim offered Pesci her money, jewelry, and traveler’s checks, and she promised not to call the police. Pesci left with these offerings and the victim’s car to purchase some cigarettes. Before leaving, however, he ordered the victim to face the wall and count to 200. He warned her that if she turned around before counting to 200, he would bash her head in. He told her he was a member of the “New York mob” and if she did not comply with his demands, he would have her killed. When Pesci left, the victim summoned help and Pesci was arrested.

Shortly before Pesci’s scheduled release from prison, the State filed a petition seeking the involuntary civil commitment of Pesci as a sexually violent predator under the Ryce Act. The trial court entered an order finding that probable cause existed to believe that Pesci is a sexually violent predator and, therefore, eligible for civil commitment; ordered the Department of Children and Family Services (“DCF”) to take custody of Pesci upon his release from prison; and set the matter for an involuntary civil commitment trial.

Prior to the commencement of the civil commitment trial, Pesci moved to exclude any hearsay evidence regarding the sexual offense Pesci had been charged with in New York in 1996. Specifically, the defense sought to prevent the State’s experts from referring to and relying on the facts contained in the police reports detailing the New York incident, arguing that because Pesci had not been convicted of this offense, the evidence was unreliable and, therefore, should not be admitted nor relied upon by the State’s experts. Defense counsel argued that because the alleged victim of the New York sexual assault was not going to testify, he would only be able to cross-examine the experts who had no firsthand knowledge of the events; the hearsay evidence was inherently unreliable; and his due process right to confrontation would be violated. The trial court denied Pesci’s motion to exclude this hearsay evidence and the jury ultimately found that Pesci qualified to be designated as a sexually violent predator in need of civil commitment.

At Pesci’s civil commitment trial, the State presented evidence regarding the Key West sexual battery Pesci pled guilty to. Pesci did not and does not object to the introduction of that evidence. The State additionally presented two expert witnesses, Dr. Karen Parker and Dr. Eric Jensen.

Dr. Parker

Dr. Parker testified that based upon her evaluation of Pesci, she concluded that he is a psychopath, who additionally suffers from an antisocial personality disorder and paraphilia, a sexual disorder, and that she considers him to be a “very dangerous person.” In reaching these conclusions, she reviewed the Key West offense, which revealed sadistic, components to the assault. Dr. Parker explained that while rapists may use physical force, there is a point at which the level of injury, torture, and fear becomes “highly abnormal and have what we call sadistic components,” and that she found examples of sadistic sexual behavior present during the commission of the sexual assault in Key West. She noted that the violence dominated the Key West sexual assault; that Pesci demonstrated his need for power and to control and hurt the victim; and he was enjoying himself throughout the assault. Dr. Parker testified that Pesci’s disorder is a serious one.

Dr. Parker testified that Pesci “appeared to have definite psychopathic tendencies,” and explained that “[pjsycho-paths are people who are very exploitive, glib, very self-assured, but basically look at the world as a target for their exploitation, what they want out of the world.” Regarding Dr. Parker’s conclusion that Pesci suffers from an antisocial personality disorder, she noted that individuals suffering from this disorder usually start exhibiting certain behavioral traits before the age of fifteen, and this behavior does not “fall off’ as it does with other teenagers as they reach eighteen or nineteen. Instead, it gets worse and it becomes a lifestyle. Dr. Parker noted that Pesci had significant behavioral problems as a child, was out of control, and was placed in a “boy’s school” at the age of ten, where he remained until age sixteen. After leaving the “boy’s school,” Pesci committed an arson, and while on parole for that offense, he committed several violations.

Dr. Parker additionally recounted Pes-ci’s arrest in New York, approximately six months before he committed the sexual assault in Key West. She explained that Pesci was in a movie parking lot with a woman when he allegedly exposed his penis and asked the woman to perform oral sex on him; that the woman ordered Pesci out of her car; and when he saw that people were coming out of the movie, he exited the car and left. Pesci was arrested based upon these allegations, but when he did not remain in New York to answer the charges, an arrest warrant was issued on November 15, 1996, and it is still pending. Dr. Parker readily admitted that because Pesci fled New York, these were just allegations taken from the police reports and that she knew nothing about the woman who lodged the complaint.

Lastly, Dr. Parker explained the various tests performed on Pesci, which revealed: (1) a risk of recidivism of 40-52% within fifteen years based upon the Static 99 test; (2) a high risk of sexually violent recidivism of 57% within a six-year period based upon the MnSOST test; and (3) a very high match for diagnosis as a psychopath.

Dr. Jensen

Dr. Jensen also diagnosed Pesci as suffering from an antisocial disorder and par-aphilia, and like Dr. Parker, noted the early onset of behavioral problems, including truancy, glue sniffing, shoplifting, and Pesci’s wild and uncontrollable behavior which resulted in his placement in a boy’s home at the age of ten. He provided a chronology of Pesci’s life beginning with his release from the boy’s home at the age of sixteen; his convictions for two counts of arson related to an insurance fraud scheme; his conviction for assault; his parole violations for using alcohol and marijuana, giving a false name to the police, and for not complying with his curfew; and his DUI convictions in 1990. With regard to the New York arrest in 1996, Dr. Jensen provided the jury with both the allegations taken from the police reports and Pesci’s version of the events, which he obtained from Pesci when he interviewed him. Pesci admitted most of what was contained in the police reports. He admitted to parking in the public parking lot, becoming excited, exposing his penis, masturbating himself, and asking her to perform oral sex on him. He told Dr. Jensen that he had a funny feeling that the woman was going to report the incident to the police and that he was relieved that she described the incident accurately. The only real variance between the police reports and Pesci’s version is that Pesci denied using any force and claimed that it was merely a case of “misinterpreting the signals.”

Dr. Jensen testified that Pesci has been incarcerated thirty-five out of thirty-seven years of his adult life; that he violated his parole several times; and that during Pes-ci’s stay at the civil commitment center, there have been various violations, all which support a finding that there has been no change in Pesci’s personality disorder. At the civil commitment center, Pesci has had unauthorized contact with females outside of the facility and many of those communications are sexual in nature; started a chain letter to women enlisting their support for his cause; was found to be in possession of marijuana; and has verbally threatened the staff.

Along with the results of his testing, which showed Pesci to be a high risk for sexually violent recidivism, Dr. Jensen found Pesci to be a very charming, glib, conniving, and manipulative person with a criminal versatility, in that he has committed crimes in many different areas over a long period of time. He explained that Pesci’s pattern of behavior demonstrates his lack of volitional control, and his inability to conform his behavior to the law despite the negative consequences. Moreover, Pesci refuses to acknowledge he has a problem and he shows no insight with regard to his need for treatment. Based upon his complete evaluation, Dr. Jensen recommended civil commitment.

Dr. Brown and Dr. Merwin

The defense presented the expert testimony of Dr. Natalie Brown and Dr. Jack Merwin. Both opined that Pesci was not a sexually violent predator and did not meet the statutory criteria for involuntary civil commitment. Dr. Brown, in forming her opinion, relied on the same documents relied on by the State’s experts as well as Dr. Jensen’s and Dr. Parker’s reports on Pesci. Dr. Brown also interviewed and evaluated Pesci, conducted a penile pleth-ysmograph in order to test Pesci’s sexual arousal pattern, had a polygraph test administered to Pesci, and interviewed Pes-ci’s sister and fiancé. Dr. Brown emphasized that the main reason her opinion differed from the State’s experts was because of her evaluation of the 1996 New York incident. In her opinion, the allegations contained in the New York police reports were very weak and contained no corroboration. Dr. Brown noted that without taking into account this New York offense, Pesci could not be diagnosed with paraphilia because “for any of the sexual disorders ... it’s required that there be evidence of intense recurrent manifestations of the disorder ... and in his case we only have one act of sexual violence.” Dr. Brown, however, acknowledged that Pesci did suffer from antisocial personality disorder. Similarly, Dr. Merwin testified that, although Pesci suffered from antisocial personality disorder, he did not believe that Pesci would be likely to reoffend in a sexually violent manner.

LEGAL ANALYSIS

In this appeal, Pesci challenges the trial court’s admission of the hearsay evidence regarding the New York offense arguing that (1) the hearsay evidence had no indi-cia of reliability and, therefore, was inadmissible; (2) in admitting the hearsay evidence, his constitutional due process right to confrontation was violated as he had no opportunity to confront the accusations leveled against him by his New York accuser; and (3) absent the admission of this hearsay evidence, the State’s experts could not have reached a diagnosis of paraphilia as there would be no pattern of misconduct to base it on and, therefore, no basis for Pesci’s commitment. We disagree.

We begin our review with recognition of our standard of review. A trial court’s ruling on the admissibility of evidence will not be disturbed absent a finding that the trial court abused its discretion. Carpenter v. State, 785 So.2d 1182, 1201 (Fla.2001).

Reliability Issue

Pesci recognizes that section 394.9155(5), Florida Statutes (2006), allows the introduction of hearsay evidence under the Ryce Act. He, however, asserts that the trial court abused its discretion in admitting the hearsay evidence regarding the New York offense because the State did not prove its reliability. This, however, is not the standard by which a trial court admits hearsay evidence under the Ryce Act. Section 394.9155, Florida Statutes (2006), specifies, in part, that:

(4) The court may consider evidence of prior behavior by a person who is subject to proceedings under this part if such evidence is relevant to proving that the person is a sexually violent predator.
(5) Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

§ 394.9155(4)-(5), Fla. Stat. (2006)(empha-sis added).

The record reflects that the trial judge carefully analyzed the hearsay evidence regarding the New York offense, considered Pesci’s objections, and ultimately concluded that the hearsay evidence had sufficient indicia of reliability to permit its admission. Except for the non-consensual aspect of the sexual encounter, Pesci admitted to the psychologists the accuracy of most of the hearsay evidence that was presented and this hearsay evidence was not the sole basis for Pesci’s commitment. Furthermore, before admitting this evidence, the trial court considered the fact that Pesci, rather than disputing the charges and confronting his accuser in New York, chose to flee the jurisdiction of the court and changed his name. See Escobar v. State, 699 So.2d 988 (Fla.1997), abrogated on other grounds by Connor v. State, 803 So.2d 598 (Fla.2001)(finding that flight from pending criminal charges constitutes evidence of consciousness of guilt). We, therefore, conclude that the trial court did not abuse its discretion in admitting the hearsay evidence regarding the New York offense. See Sloss v. State, 925 So.2d 419, 423 (Fla. 5th DCA 2006)(eoncluding that the trial court properly admitted hearsay evidence pursuant to section 394.9155(5) as the defendant did not dispute the accuracy or reliability of much of the hearsay evidence and the hearsay evidence was not the sole basis for the defendant’s commitment); see also In re Commitment of Rodgers, 875 So.2d 737, 740 (Fla. 2d DCA 2004)(holding that the trial court did not abuse its discretion in allowing the admission of hearsay evidence regarding the defendant’s prior bad acts and criminal offenses and thereby allowing the State’s expert to rely on the evidence to form his opinion); Lee v. State, 854 So.2d 709, 713 (Fla. 2d DCA 2003)(finding that the trial court did not err in admitting hearsay evidence under section 394.9155(5) since the statute allows the admission of hearsay evidence in civil commitment cases unless the trial court finds the evidence to be unreliable, the trial court carefully analyzed the hearsay evidence offered by the State, the defendant did not dispute the accuracy of the hearsay evidence, and the hearsay evidence was not the sole basis of the defendant’s civil commitment).

Pesci’s Reliance on Jenkins

Despite the clear language of section 394.9155(5) and the cases already addressed in this opinion, Pesci asserts that pursuant to Jenkins v. State, 803 So.2d 783 (Fla. 5th DCA 2001), his civil commitment must be reversed. We disagree as we find the instant case distinguishable and the language Pesci relied upon in Jenkins to be dicta.

Jenkins’ civil commitment was reversed because it was based almost exclusively on hearsay contained in police reports from cases in which Jenkins had not been convicted. In contrast, Pesci’s commitment order was not based almost exclusively on the hearsay evidence contained in the New York police reports. There was substantial non-hearsay evidence demonstrating that Pesci had a dangerous and violent personality disorder and was likely to reoffend in a sexually violent manner. Furthermore, Pesci did not dispute the accuracy of most of the underlying facts contained in the New York police reports. Jenkins is, therefore, clearly distinguishable. See Masters v. State, 958 So.2d 973, 976 (Fla. 5th DCA 2007)(fmding Jenkins inapplicable since the civil commitment order was not based solely on hearsay evidence); see also Williams v. State, 841 So.2d 531, 532 (Fla. 2d DCA 2003)(distin-guishing Jenkins on the ground that Jenkins’ commitment was based solely on hearsay evidence).

Pesci’s Constitutional Challenge

Pesci also argues that the admission of the objected-to hearsay evidence violated his due process right to confrontation under the Fourteenth Amendment of the United States Constitution and the parallel provision of the Florida Constitution. In support thereof, Pesci again relies on Jenkins for the proposition that although hearsay evidence is admissible under section 394.9155(5), Florida Statutes, “this statute must be construed in light of the Fourteenth Amendment right to confrontation.” See Jenkins, 803 So.2d at 785. However, the Fifth District Court of Appeal, which is the same court that decided Jenkins, recently acknowledged that it was not bound by this language in Jenkins, as it was merely dictum. “We are not bound by this language in Jenkins because it is dictum.” Masters, 958 So.2d at 977. The Fifth District in Masters also noted that a majority of Florida courts have “held that the constitutional right of confrontation does not bar the admission of hearsay evidence in civil commitment proceedings.” Id. (citing Marshall v. State, 915 So.2d 264, 267 (Fla. 4th DCA 2005) and In re Commitment of Burton, 884 So.2d 1112, 1114 (Fla. 2d DCA 2004)).

Similarly, we are not bound by the language in Jenkins, which suggests that “section 394.9155(5) must be construed in light of the Fourteenth Amendment .right of confrontation,” and agree with the Florida courts which have consistently held that the Confrontation Clauses of both the United States and Florida Constitutions are expressly limited to criminal prosecutions and are therefore, inapplicable to civil commitment proceedings under the Ryce Act. See In re Commitment of Cartwright, 870 So.2d 152, 156 (Fla. 2d DCA 2004)(The Confrontation Clauses of both the United States and Florida Constitutions are expressly limited to “criminal prosecutions.”); see also Marshall v. State, 915 So.2d 264, 267 (Fla. 4th DCA 2005)(holding that the Sixth Amendment’s Confrontation Clause is limited on its face to criminal proceedings and does not apply to civil commitment proceedings, such as civil commitment proceedings under the Ryce Act); In re Commitment of Burton, 884 So.2d 1112, 1114 (Fla. 2d DCA 2004)(rejecting defendant’s argument that the admission of hearsay under section 394.9155(5) is unconstitutional because it violated his right to confrontation under the United States and Florida Constitutions).

In the instant case, we find that Pesci’s due process rights were not violated. While Pesci was not convicted of the offense in New York, he was charged and the case is still pending. Pesci’s attempts to evade prosecution by fleeing to Florida and changing his name, coupled with his admissions to nearly everything contained in the police reports, and his statement to Dr. Jensen that he was relieved that the victim told the police the truth, establishes a sufficient indicia of reliability to allow its introduction in Pesci’s civil commitment trial. Additionally, Pesci was notified in advance of the trial that the State intended to introduce this evidence, thereby affording Pesci an opportunity to call the complaining witness himself. Pesci, therefore, made a choice, actually two choices, not to confront the evidence against him. Lastly, Pesci was permitted to cross-examine the doctors regarding the evidence and clearly established that the information regarding the New York incident was untested hearsay. Under these circumstances, we find no due process violation.

Harmless Error Analysis

While we have concluded that the introduction of the hearsay evidence regarding the incident in Néw York was not error, even if we had concluded otherwise, we would affirm because its introduction was harmless beyond a reasonable doubt.

All four of the medical experts, two called by the State and two called by the defendant, testified that Pesci suffers from an antisocial personality disorder, and Drs. Parker and Jensen additionally concluded that Pesci is a psychopath. These conclusions are supported by competent substantial evidence. Pesci’s antisocial and behavioral problems began at an early age and continued throughout his life, escalating in severity and manifesting.itself in violent, sadistic, and sexual criminal behavior. Despite incarceration and supervision,. Pes-ci has been unwilling or incapable of controlling his actions, despite the negative consequences. The Key West sexual battery was extremely violent and sadistic. He is manipulative, controlling, and looks at the world as a target. The tests performed reveal a high risk of sexually violent recidivism and a high match for a diagnosis that Pesci is a psychopath. Even while housed at the commitment center awaiting his commitment trial, Pesci committed various violations, had unauthorized contact with females outside of the facility, wrote them sexually explicit letters, and verbally threatened the staff. Based upon the unusually violent and sadistic actions committed by Pesci in the undisputed Key West sexual assault, acts he enjoyed and which included torture and sexually deviant components, coupled with his long-standing mental abnormality (antisocial personality disorder), we conclude that any error in the introduction of the complained-of hearsay evidence is harmless beyond a reasonable doubt. This finding is further supported by the fact that Pesci admitted to most of what was contained in the police reports regarding the New York incident, the doctors provided the jury with Pesci’s version of the events, and the experts specifically testified that these reports contained allegations that had not yet been tested. Additionally, Pesci’s acts, fleeing the jurisdiction and changing his name to avoid confronting his accuser, establish their reliability.

Affirmed.

CORTINAS, J., concurs.

RAMIREZ J,

concurring.

I can only concur in the result reached by the majority. I cannot agree with the opinion, particularly as it attempts first to distinguish Jenkins v. State, 803 So.2d 783 (Fla. 5th DCA 2001), and second to find that the relevant language was dicta. The fact remains that a significant part of the evidence, and one which was relied upon by the State’s experts, was a prior incident in New York. Pesci argued that his sexual contact with the victim was consensual. The court in Jenkins stated:

The legislature has determined that in Jimmy Ryce Act trials, hearsay evidence may be introduced even though it may not be the sole basis for commitment. See Section 394.9155(5), Fla. Stat. Obviously this statute must be construed in light of the Fourteenth Amendment right of confrontation. The Florida Legislature cannot, nor do we believe it intended to, rescind the due process protections of the United States Constitution. Courts must recognize the distinction between police reports which contain unchallenged and unchallengeable prejudicial hearsay and police reports which relate to cases in which the respondent has pled or has been convicted. It is only the latter which have an indicia of reliability.

Id. at 785. It is undisputed that Pesci was never convicted for the prior incident.

Here, the State’s two expert witnesses diagnosed Mr. Pesci as having a paraphilia not otherwise specified of non-consenting partners. A diagnosis of paraphilia, all experts agreed, requires a pattern of sexual misconduct lasting for at least six months. The State’s experts found a pattern here by combining the 1997 Key West case with the 1996 New York case. The former had indicia of reliability in the form of a guilty plea from Pesci and several sworn depositions from other witnesses. The 1996 New York case, in contrast, had no such indicia of reliability. There was no conviction. There were no sworn statements. There was no testimony from anyone involved in the New York case. Instead, the State’s experts testified about the events based on the alleged victim’s version contained in the unsworn police reports and the charging document. Therefore, I cannot agree that Jenkins is either distinguishable or that the language quoted above is dicta.

I concur in affirming the trial court, however, because I can find no abuse of discretion in its ruling that the hearsay evidence was sufficiently reliable, despite the fact that Pesci was not convicted for the New York incident. The trial court considered the fact that while Pesci was out on bond, he fled the jurisdiction and changed his name. He did not contest the fact that he had sex with the victim, only that it was consensual. But in my view, the majority’s attempt to distinguish Jenkins is hairsplitting. I would certify conflict.

      . In New York, Pesci used the name "Zien-tek.”

      . It seems disingenuous to us that Pesci even asserts this argument. Pesci did not plead to the New York offense or was not convicted of the offense because after he posted bond, he absconded to Florida and avoided prosecution for the offense.


text:
    Robert R. RIPOLL and Alina Ripoll, as Successor Guardian of the Person, Appellants, v. COMPREHENSIVE PERSONAL CARE SERVICES, INC., as Successor Guardian of the Property, Appellee.
    No. 3D07-711.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 27, 2007.
    Robert R. Ripoll, in proper person.
    Steven K. Schwartz, P.A., for appellant.
    Golden Cowan, P.A., and Paul M. Co-wan, Miami and William H. Glasko, for appellee.
    Before GREEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

This appeal arises from an adversary action in a guardianship proceeding brought by the appellee Comprehensive Personal Care Services, Inc. (“CPCS”) to remove the appellant/guardian, Alina Ripoll. Ripoll is the successor guardian of the incapacitated ward, Caridad Asensio. CPCS is the guardian of Asensio’s assets.

It is alleged that Ripoll improperly took money from the guardianship to purchase a home for her personal use. In an attempt to protect the ward’s assets, the trial court ordered Ripoll in the presence of her husband, not to mortgage, hypothe-cate, or encumber this home in any way. Two days later, the Ripolls executed a mortgage on the home.

CPCS moved to remove Ripoll as guardian for violating the court’s order. The court directed the parties to attend a hearing on the matter, and ordered Ripoll to bring any and all documentation she had which would reflect the location of the proceeds from the mortgage. Ripoll appeared before the court on the directed day, invoked a Fifth Amendment privilege and refused to produce any documents or answer any questions about the mortgage. As a result, the trial court froze all of the Ripolls’ assets. They instituted this appeal. On the record before us, we cannot conclude that the trial court abused its discretion and affirm the order under review.

A circuit court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries. See In re: Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000). To that end, the court:

has the authority to issue temporary injunctions freezing assets claimed to belong to [a guardianship], even though ultimate ownership of those assets may be in dispute. See Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995); Sanchez v. Solomon, 508 So.2d 1264 (Fla. 3d DCA 1987).

Barsanti, 773 So.2d at 1208. Because we find that the trial court acted within its discretion, we affirm. See Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995)(in the absence of a clear abuse of discretion appellate court will not disturb trial court’s decision in granting, denying, dissolving, or modifying injunction).

Affirmed.

      . Robert R. Ripoll, the guardian's husband, is also an appellant in this case.


author: RAMIREZ, J.

text:
    Corliss A. RUPP, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 3D06-1769.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      Hicks & Kneale, and Brett C. Powell, Miami; Michael R. Barnes, Key West, for appellant.
    Philip Monte, Tallahassee, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   RAMIREZ, J.

Dr. Corliss A. Rupp, M.D. appeals to this Court the Florida Department of Health, Board of Medicine’s Order, which imposed certain penalties on Dr. Rupp for her failure to report timely an administrative disciplinary action taken against her in the State of Virginia. We reverse, finding that the Board’s punishment is inappropriate because it punishes Dr. Rupp for failing to do something which the Order itself admits was impossible to do. Moreover, we find that the Board erred in adopting the findings and recommendations of the Administrative Law Judge’s erroneous Recommended Order, without allowing Dr. Rupp the opportunity to be heard.

Dr. Rupp has twenty years experience as a medical doctor and is a practicing psychiatrist with an unblemished record. When the subject events took place, Dr. Rupp was a sole practitioner providing psychiatric care to the poor of the Florida Keys. Before moving her practice there, Dr. Rupp worked with a company providing her services on a temporary basis, which required her to become licensed in a number of states, including Virginia, Georgia and Florida. She contracted with an Atlanta-based firm, Daniel and Yeager, which was responsible for ensuring that Dr. Rupp’s medical licenses remained current. Among Daniel and Yeager’s responsibilities was to notify the various states in which Dr. Rupp was licensed of Dr. Rupp’s address changes.

In March 2003, Dr. Rupp moved to Florida and subsequently advised the State of her change of address in April 2003. Dr. Rupp also requested that Daniel and Yeager notify the State of Virginia of this address change. However, Daniel and Yeager failed to notify the State of Virginia of Dr. Rupp’s change in address. In early 2004, Daniel and Yeager closed their Atlanta office without notifying Dr. Rupp. As of July 9, 2004, Dr. Rupp’s official address on file with the Virginia Board of Medicine was 8010 Roswell Road, Suite 320, Atlanta, Georgia, 30350, which was the address of the defunct Daniel and Yeager firm.

Dr. Rupp subsequently learned that the Virginia Board of Medicine charged and convicted her in absentia of violating Virginia’s statutory requirement to advise the Virginia Board of Medicine within thirty days of any address change. In its August 18, 2004 Order, the Virginia Board of Medicine concluded that Dr. Rupp failed to provide the required notification and ordered her to pay a $1,500.00 monetary penalty. Because the Virginia Board of Medicine continued to use the Daniel and Yeager address in trying to contact Dr. Rupp, Dr. Rupp was not notified of the Virginia disciplinary action until almost two months after its conclusion.

On October 11, 2004, Dr. Rupp received a letter in a plain envelope at her Florida address. The letter, dated September 22, 2004, and addressed to Dr. Rupp at the Atlanta address, was from the Virginia Compliance Unit of the Department of Health Professions referring to the Virginia Final Order. This was the first time Dr. Rupp became aware of the Virginia disciplinary action. Dr. Rupp physically did not receive notice of the disciplinary action taken against her until almost two months after the order was entered. She provided notice to Florida’s Department of Health within thirty days of the date that she received notice from Virginia.

On November 2, 2004, the Florida Board of Medicine advised Dr. Rupp that the Board was initiating an investigation into her failure to notify the Board of the Virginia disciplinary action. Dr. Rupp attended a hearing before the Administrative Law Judge to answer the Florida Board of Medicine’s complaint. After the Judge entered its Recommended Order, Dr. Rupp filed a timely Response. The Response did not contain any exceptions to the Judge’s findings of facts or conclusions of law, but contained legal arguments challenging the propriety of the Judge’s recommended disciplinary action.

The Board held a hearing on June 2, 2006, supposedly to conduct the Board’s de novo review of the record and Recommended Order in Dr. Rupp’s case. Pursuant to the Board’s conclusion that Dr. Rupp’s Response was an exception rather than a pleading, the Board refused to allow Dr. Rupp or her counsel to address the Board regarding the propriety of the Judge’s recommendations.

The Board adopted the Judge’s findings of fact. The Judge’s Recommended Order specifically states in paragraph 20:

20. Dr. Rupp physically did not receive notice of disciplinary action taken against her until almost two months after the order was entered. Therefore, she could not have notified the Department within 30 days of the date the order was entered. She did provide notice to the Department within 30 days of the date that she received notice from Virginia.

On June 19, 2006, the Board issued its Final Order imposing a $500 administrative fine against Dr. Rupp. It further stated that a letter of concern would be issued to Dr. Rupp by the Board, and it imposed $10,118.19 in costs to be paid by Dr. Rupp within one year from the date of the Final Order. This appeal followed.

With regard to the standard of review, this Court reviews a lower court’s interpretation of a statute de novo. See Romine v. Fla. Birth Related Neurological Injury Comp. Ass’n., 842 So.2d 148 (Fla. 5th DCA 2003). Furthermore, an agency abuses its discretion when it ignores findings of fact based upon competent substantial evidence. See Strickland v. Florida A & M Univ., 799 So.2d 276, 277 (Fla. 1st DCA 2001).

First, Dr. Rupp contends on appeal that the Judge’s Recommended Order is invalid because it imposes sanctions on her for failure to take actions that the Order acknowledges were impossible to perform. We are in complete agreement with Dr. Rupp on this issue.

Florida law is clear that the law does not impose penalties upon an individual for failing to take certain actions which it is physically impossible for that individual to take. See Shevin v. Int’l Inventors, Inc., 353 So.2d 89, 93 (Fla.1977)(invalidating regulatory statute due to its “substantial impossibility of compliance”); Ford v. State, 801 So.2d 318, 321 (Fla. 1st DCA 2001)(“[R]equiring the state to prove which crime caused a defendant to flee ‘would place upon the State an impossible burden to prove that one charged with multiple violations of the law fled solely because of his consciousness that he committed one particular crime.’ ”); Aspen-Tarpon Springs Ltd. v. Stuart, 635 So.2d 61, 67-8 (Fla. 1st DCA 1994)(finding that regulatory scheme constituted an unconstitutional taking because it prohibits landowners’ use of their property unless the landowner satisfies impossible requirements); Freeman v. Freeman, 615 So.2d 225, 226 (Fla. 5th DCA 1993)(“[W]e hold that in the context of child support modification, the requirement that the change of circumstances is permanent does not require a showing that the change is forever. That would be an impossible burden because no one can testify to the future; ...”); Indian Trail Homeowners Ass’n., Inc. v. Roberts, 577 So.2d 998, 999 (Fla. 4th DCA 1991)(“... a party cannot be required to do the impossible.”); Abbey Park Homeowners Ass’n. v. Bowen, 508 So.2d 554, 555 (Fla. 4th DCA 1987)(revers-ing order granting injunction because “Abbey Park does not have the ability to comply with the injunction, and therefore, the injunction is improper.”); Ivaran Lines, Inc. v. Waicman, 461 So.2d 123, 125 (Fla. 3d DCA 1984) (“The law does not require the performance of impossibilities as a condition to assertion of acknowledged rights, and if a statute requires performance of something which cannot be performed, the court may hold it inoperative.”).

Here, the Judge’s Recommended Order is incorrect because it seeks to impose liability upon Dr. Rupp for not doing what was impossible for her to do. The Recommended Order specifically finds that Dr. Rupp should be punished for failing to do that which the Judge’s own Recommended Order specifically acknowledges could not be done. The Recommended Order thus seeks to punish Dr. Rupp for non-compliance with the notification requirements of section 458.331(l)(kk), Florida Statutes, despite the fact that Dr. Rupp was physically unable to comply with these requirements. It simply defies logic that Dr. Rupp’s noncompliance with the notice requirements would not be excused when she did not know, nor could she have known, that the Virginia action had taken place.

Second, Dr. Rupp contends that the Board erred in failing to conduct a de novo review of the Judge’s recommended order. Dr. Rupp is correct that the Board was required to conduct a de novo review of the record in this case which, by its own admission, it did not do.

Pursuant to section 120.57, Florida Statutes (2006), the Board of Medicine is required to conduct a de novo review of the Judge’s findings of fact and law in determining whether or not a recommended penalty is appropriate. See § 120.57(l)(k), Fla. Stat. (“All proceedings conducted under this subsection shall be de novo.”). The Board’s admitted failure to conduct this review constitutes a material error in procedure which made it impossible for Dr. Rupp to obtain a fair hearing. See § 120.68(7)(c), Fla. Stat. (reversal of agency decision or dismissal of case required where “[t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.”). Furthermore, prior to the hearing, the parties were provided with “Instructions For Recommended Orders (No Exceptions)”, which read as follows:

THE PURPOSE OF THIS PROCEEDING IS TO CONSIDER THE RECOMMENDED ORDER ISSUED BY THE ADMINISTRATIVE LAW JUDGE IN THIS CAUSE. NO NEW EVIDENCE WILL BE ADMITTED BECAUSE THIS PROCEEDING IS NOT [sic] A DE NOVO REVIEW. IT MUST BE CONFINED TO THE RECORD TOGETHER WITH THE RECOMMENDED ORDER. THE RECORD CONSISTS OF NOTICES, PLEADINGS, MOTIONS AND RULINGS BY THE ALJ; EVIDENCE ADMITTED (THE TRANSCRIPTS AND EXHIBITS); MATTERS OFFICIALLY RECOGNIZED; EXCEPTIONS AND RESPONSES THERETO, IF ANY.

Thus, the instructions erroneously declare that the hearing is not a de novo review, while stating that the full record before the Judge would be reviewed.

Here, the Judge specifically found that it was physically impossible for Dr. Rupp to have complied with the requirements of section 458.331(l)(kk), Florida Statutes. Therefore, Dr. Rupp was entitled to present her arguments as to why this finding did not justify punishment. Because Dr. Rupp was entitled to a de novo review of the record in this case, and because the Board undisputedly did not conduct such a review, the Board’s failure in this regard requires reversal. See § 120.68(7)(c), Fla. Stat. (“The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that ... The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.”); Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247 (Fla. 2d DCA 2006)(application of improper standard of review in administrative action constitutes a departure from the essential requirements of the law which requires reversal).

Dr. Rupp did not file “exceptions” because she recognized that the Judge’s findings of law and fact were accurate, as she tried to explain at the hearing. She does not dispute the sequence and timing of events as detailed in the Recommended Order, and she does not take issue with the Judge’s conclusion of law that “[subsection 458.331(l)(kk), Florida Statutes, does not provide that notice must be given within 30 days of receipt of the disciplinary action, but within 30 days of the action being taken.” Dr. Rupp could not have filed an “exception” to these findings and conclusions because she did not disagree with the Judge’s findings of fact or conclusions of law. As such, Dr. Rupp sought a de novo review of the Judge’s recommended penalty.

It is undisputed that Dr. Rupp timely responded to the Department’s motions. Therefore, there was no reason why the Board denied Dr. Rupp the opportunity to be heard at this hearing. Instead, the Board made it clear that it intended to adopt the Judge’s order without conducting the required examination. Various board members refused Dr. Rupp her right to be heard on the procedural basis that her challenges were untimely filed exceptions to the Judge’s findings of fact. Moreover, the Board refused to allow Dr. Rupp to be heard on the issue of the impropriety of punishing Dr. Rupp under the facts of this case. And finally, the Board decided the issue of imposing a cost judgment against Dr. Rupp without allowing Dr. Rupp any opportunity to be heard.

The Board’s failure to follow its own procedure as mandated by statute denied Dr. Rupp her right to due process and resulted in an unjust punishment. See J.B. v. Dep’t of Children & Fam. Servs., 768 So.2d 1060, 1064 (Fla.2000)(due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered); Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990)(violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void); Armesto v. Weidner, 615 So.2d 707, 709 (Fla. 3d DCA 1992)(state agency violates a person’s due process rights if it ignores rules promulgated thereby which affect individual rights). Here, the Board violated Dr. Rupp’s right to due process by refusing her the opportunity to present her case. See Ryan’s Furniture Exch. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935)(“In observing due process of law, the opportunity to be heard must be full and fair, not merely 'colorable or illusive.”); Haigh v. Planning Bd. of Town of Medfield, 940 So.2d 1230 (Fla. 5th DCA 2006)(trial court’s entry of a final judgment establishing a foreign judgment without an eviden-tiary hearing or trial violated judgment debtor’s due process rights); Cook v. City of Winter Haven Police Dep’t, 837 So.2d 492 (Fla. 2d DCA 2003)(circuit court, acting in its appellate capacity, violated petitioners’ due process rights in refusing to consider evidence presented in late-filed appendix to petition).

Because the Board failed to allow Dr. Rupp an opportunity to present her case to the Board, and instead adopted the Judge’s Recommended Order without a de novo review of that order, the Board violated Dr. Rupp’s right to due process. The resulting Final Order cannot stand because it imposes serious disciplinary penalties on Dr. Rupp for her failure to do what the Order itself recognizes was impossible.

In sum, given that Dr. Rupp was sanctioned for a failure to take actions which were admittedly impossible to take, we reverse the Department of Health, Board of Medicine’s Final Order and remand the case for entry of judgment in Dr. Rupp’s favor, thereby disposing of this matter in its entirety and avoiding another hearing. We further comment that this case has been a shocking waste of everyone’s resources. Dr. Rupp is a physician with an unblemished record providing services to the poor, who took the step of hiring a firm to keep her licenses current, and yet was disciplined for not doing the impossible. The Florida Department of Health, Board of Medicine, should be encouraging other physicians to do what Dr. Rupp has been doing. The Department, after all, has the traditional mandate of providing primary medical care for the poor. It should exercise better judgment in deciding whether to’ file such a frivolous case and instead focus its energies on tracking down and disciplining those physicians who truly deserve punishment.

Reversed and remanded with instructions that judgment be entered in Dr. Rupp’s favor.

      . In addition, at the hearing itself, Board Chairman Dr. Zachariah clearly explained "[t]his hearing is being conducted pursuant to 120.569 and 120.57(1) of the Florida Statutes.... No new evidence will be admitted because this is a de novo review. It must be confined to the record, together with the Recommended Order.” (App.A-2, p. 4).

      . See § 120.68(7)(c), Fla. Stat. ("The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that ... [t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.”) (emphasis supplied).


text:
    Luis L. COLOMA, Appellant, v. Ms. Candis TRUSTY, Appellee.
    No. 3D07-9.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Sept. 20, 2007.
    Luis L. Coloma, in proper person.
    Markowitz, Davis, Ringel & Trusty, Miami, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Phenion Dev. Group, Inc. v. Love, 940 So.2d 1179 (Fla. 5th DCA 2006); Saka v. Saka, 831 So.2d 709 (Fla. 3d DCA 2002).


text:
    Ronnie E. CONNOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1640.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    Rehearing Denied Sept. 11, 2007.
    Ronnie E. Connolly, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    Herman MINOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-715.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Herman Minor, in proper person.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

On January 19, 2005, defendant, Herman Minor, filed a petition for writ of habeas corpus with the trial court. After the trial court entered its order denying defendant’s petition, defendant filed his appeal. On June 15, 2006, we ordered defendant to show cause why he should not be prohibited from filing further pro se proceedings with this court concerning his October 13, 1994 conviction and sentence. After carefully considering defendant’s response, see State v. Spencer, 751 So.2d 47 (Fla.1999), and concluding defendant’s current appeal lacks merit and that good cause has not been shown, we now prohibit him from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

I. Facts

Defendant originally was charged with second-degree murder with a firearm in count one, and unlawful possession of a firearm by a convicted felon in count two, based on an incident occurring on July 28, 1993, where defendant shot and killed a victim named Bruce Scott. The jury returned a verdict of guilty to the lesser included charge of manslaughter on count one and guilty of the charge of firearm possession on count two. The trial court sentenced defendant to life for count one and thirty years for count two. Defendant was habitualized as a habitual violent felony offender for both counts and received a fifteen-year mandatory minimum sentence for count one and a three-year mandatory minimum sentence for count two. In addition, the trial court ordered the sentences to run concurrent with each other. This court affirmed defendant’s conviction on direct appeal. Minor v. State, 662 So.2d 435 (Fla. 3d DCA 1995).

This is defendant’s tenth post-conviction motion or petition for relief to reach this court. Defendant previously contested his habitualization at least six times. Defendant also has challenged other aspects of his case, including arguments that: (1) the voir dire of the jury panel was improper, Minor v. State, 825 So.2d 397 (Fla. 3d DCA 2002); (2) evidence was improperly admitted, Minor, 662 So.2d 435; (3) there was insufficient evidence to support his conviction for count two, Minor v. State, 705 So.2d 16 (Fla. 3d DCA 1998); and (4) the prosecutor’s closing argument was improper, Minor, 705 So.2d 16. We have rejected all claims to date.

II. Frivolous Appeals Petitioners

Defendant styles his current attempt as a petition for habeas relief. In this petition, defendant once again alleges the trial court erred in reclassifying his manslaughter conviction as a first-degree felony without a sufficient jury finding that he used a firearm and that his habitualization was illegal. This matter was resolved firmly against defendant in 1998 and has consistently been affirmed. Owing to the frivolous nature of defendant’s allegation, we issued an order to show cause why defendant should not be precluded from filing further post-conviction motions regarding his conviction and sentence. Defendant has filed a fifty-page response, arguing that to prevent him from filing further motions would result in a “manifest injustice” based on his constant refrain of error regarding his habitualization. To the contrary, defendant’s filings have reached the point of abuse such that it would be manifest injustice to allow him to continuously reargue matters, the merits of which already have been decided against him. Permitting defendant to continue can only result in diverting limited resources away from potentially meritorious cases and towards a hopeless appeal. There must be a point in which finality occurs. See John son v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005)(“After repeated denials of multiple, successive filings, there comes a point where enough is enough.”)(internal quotations omitted); see also Carter v. State, 929 So.2d 1161, 1162 n. 1 (Fla. 5th DCA 2006)(“We further note that [defendant] cannot persist in contesting his sentences forever.”); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995)(“This case reminds me of my grandmother’s final warning and admonition to me and my siblings as children, when we had exhausted her patience with our doings. ‘Enough is enough,’ she would say. And that was the end of it.”). Based upon careful review of defendant’s filings in this court, we conclude defendant has reached that point.

We also caution defendant that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court is subject to having his gain-time forfeited. § 944.28(2)(a), Fla. Stat. (2005)(“AU or any part of the gain-time earned by a prisoner according to the provisions of law is subject to forfeiture if such prisoner ... is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court....”); § 944.279(1), Fla. Stat. (2005)(“A prisoner who is found by a court to have brought ... a frivolous or malicious collateral criminal proceeding, which is filed after September 30, 2004, ... is subject to disciplinary procedures pursuant to the rules of the Department of Corrections.”); Simon v. State, 904 So.2d 487 (Fla. 3d DCA 2005).

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s order denying defendant’s petition for writ of habeas relief, and we order that henceforth any pleadings or papers filed in this court relating to case number F93-25452 must be reviewed and signed by an attorney licensed to practice law in this state, and the Clerk of the Third District Court of Appeal is directed not to accept any further pro se pleadings from defendant relating to said case.

Denial of writ of habeas corpus affirmed.

      . Minor v. State, 876 So.2d 569 (Fla. 3d DCA 2004)(table)(seeking a second writ of mandamus where the trial court denied a post-conviction motion alleging the oral pronouncement does not support habitualization); Minor v. State, 871 So.2d 238 (Fla. 3d DCA 2004)(table)(seeking a writ of mandamus where the trial court denied a post-conviction motion alleging the oral pronouncement did not support habitualization); Minor v. State, 864 So.2d 422 (Fla. 3d DCA 2003)(table) (alleging the oral pronouncement did not support habitualization and the State failed to prove defendants pri- or conviction); Minor v. State, 831 So.2d 191 (Fla. 3d DCA 2002)(table)(alleging his habitualization sentence was illegal where the trial court did not orally sentence defendant as a habitual violent felony offender and the State failed to prove the necessary facts of his prior felony conviction); Minor v. State, 799 So.2d 1053 (Fla. 3d DCA 2001)(table)(alleging his sentence was illegally enhanced without a jury finding that defendant used a firearm and without proof of prior felonies); Minor v. State, 707 So.2d 1184 (Fla. 3d DCA 1998)(alleging "defendant was denied effective assistance of counsel for counsel’s failure to move to have the illegal sentence of habitualization vacated").

      . In addition, defendant raises several new points of error regarding defendant’s conviction and sentence that were not previously raised in his current petition or in his appeal of the trial court’s denial. Some of the new issues include: (1) failure by the State to file a proper information; (2) error regarding jury instructions; (3) an alleged defective verdict form; (4) failure by the trial court to include lesser included offenses in the verdict form; and (5) failure to orally pronounce defendant's habitualization sentence. These arguments are, of course, procedurally barred and hopelessly successive.