text:
    Paul BRANCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1853.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Paul Branch, pro se, Petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the June 23, 2005, order denying motion to correct sentence in Jefferson County Circuit Court case number 04-77. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, C.J., ERVIN, and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    David SMYTHERS, on behalf of the DATACARE EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST and its participants and beneficiaries, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, and C. David Kirk, Appellees.
    No. 2D05-1570.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.

      John D. Goldsmith of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant.
    Charles W. Pittman of Macfarlane, Ferguson &'McMullen, Tampa, for Appellee C. David Kirk.
    No appearance for Appellee National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
   SILBERMAN, Judge.

Appellant David Smythers, on behalf of the Datacare Employee Stock Ownership Plan and Trust and its participants and beneficiaries (Smythers), challenges a final judgment for attorney’s fees entered in favor of Appellee C. David Kirk, former president of Datacare, Inc. Because Kirk failed to properly plead a claim for attorney’s fees, we reverse the trial court’s finding that he was entitled to recover fees and the final judgment awarding attorney’s fees.

Smythers filed a declaratory judgment action against Kirk, seeking a determination of whether Kirk was entitled to a share of settlement proceeds realized from a lawsuit that Smythers filed against Ap-pellee National Union Fire Insurance Company. Kirk filed an answer and affirmative defenses, but he did not plead an entitlement to attorney’s fees. On January 23, 2004, after a nonjury trial, the trial court rendered a final judgment determining that Kirk was entitled to share in the distribution of the settlement proceeds. On January 30, 2004, Kirk served a motion for attorney’s fees, raising for the first time a claim for fees. He alleged that he was entitled to recover fees under the Employee Retirement Income Security Act (ERISA), pursuant to 29 U.S.C. § 1132(g).

At the hearing on the question of Kirk’s entitlement to attorney’s fees, Smythers argued, among other grounds, that Kirk waived his right to seek fees by failing to plead an entitlement to fees in his answer or defenses, citing Stockman v. Downs, 573 So.2d 835 (Fla.1991). Later, the trial court entered an order determining that Kirk was entitled to a fee award under 29 U.S.C. § 1132(g). On February 23, 2005, the trial court entered a final judgment awarding attorney’s fees of $36,605 to Kirk. Smythers timely appealed that judgment.

It is undisputed that Kirk failed to plead an entitlement to fees in his answer or defenses. The Florida Supreme Court has held that

a claim for attorney’s fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. Raising entitlement to attorney’s fees only after judgment fails to serve either of these objectives. The existence or nonexistence of a motion for attorney’s fees may play an important role in decisions affecting a case. For example, the potential that one may be required to pay an opposing party’s attorney’s fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle. A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him. Accordingly, we hold that a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.

Stockman, 573 So.2d at 837-88 (footnotes and citation omitted); see also Caufield v. Cantele, 837 So.2d 371, 378 (Fla.2002) (reiterating the Stockman pleading requirements but holding that “the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled”).

Kirk contends that his fee claim is a substantive claim arising under ERISA, that ERISA preempts state law, and that ERISA does not require that a claim for fees be asserted in an initial pleading. He argues that state law, including the Stock-man decision, cannot control the outcome of the case because of preemption principles. Further, he argues that the Federal Rules of Civil Procedure should be followed and that under those rules, he was not required to plead an entitlement to fees.

We cannot agree with Kirk’s arguments. Although ERISA grants authority to a court to award attorney’s fees, it does not address the procedural aspects of making and pursuing a fee claim. See 29 U.S.C. § 1132(g). The requirement to plead a claim for attorney’s fees is a procedural requirement that serves to put the other party on notice of the claim. Notice of a claim is an element of procedural due process. See Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001). Stockman specifically 'addresses the requirement that a party must plead entitlement in order to place the other party on notice of a claim for fees. 573 So.2d at 837-38.

Kirk looks to the Federal Rules of Civil Procedure to argue that he need not plead entitlement to fees. He contends that under Federal Rule of Civil Procedure 54(d)(2), he need only file a motion for fees within fourteen days of the final judgment to sustain his claim for attorney’s fees. Of course, the Federal Rules of Civil Procedure “govern the procedure in the United States district courts” in all civil suits, subject to limited exceptions not relevant here. Fed.R.Civ.P. 1; see also Fed.R.Civ.P. 81 (stating exceptions to rule 1). Likewise, the Florida Rules of Civil Procedure govern civil actions in the circuit courts and county courts of Florida, subject to limited exceptions not relevant here. See Fla. R. Civ. P. 1.010.

Here, we apply Florida law that provides the procedural requirements for pleading a claim for attorney’s fees in state court. See Caufield, 837 So.2d 871; Stockman, 573 So.2d 835. The Federal Rules of Civil Procedure do not apply to this action. Because Kirk failed to comply with the pleading requirements of Stockman, we reverse the trial court’s determination that he was entitled to recover attorney’s fees and the final judgment awarding fees to him. Based on our decision, we need not address the second issue that Smythers raised on appeal.

Reversed.

SALCINES and STRINGER, JJ., Concur.

      . Prior to the declaratory judgment action, there had been related litigation involving an ERISA claim concerning the Datacare Employee Stock Ownership Plan and Trust.

        . Stockman provides an exception to the pleading requirement that is not applicable here. See 573 So.2d at 838 ("Where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney's fees.”). The supreme court noted that Downs sought fees after entry of the final judgment on the same basis that Stockman had previously raised. The court determined that "[t]he mere fact that Stockman sought attorney’s fees under the same contractual provision is insufficient to warrant application of the exception to the rule.” Id. Thus, the fact that Smythers had pleaded an entitlement to attorney’s fees does not excuse Kirk's failure to timely plead his claim for fees.

      . In the Fourth District's opinion that the supreme court quashed in Stockman, the district court observed that there had been "a great deal of confusion as to the procedural requirements necessary in seeking attorney's fees. Must a party plead entitlement and the authority therefor?” Downs v. Stockman, 555 So.2d 867, 867-68 (Fla. 4th DCA 1989) (emphasis added), quashed, 573 So.2d 835 (Fla.1991).


author: PER CURIAM.

text:
    Quentin SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2299.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon the state’s concession of error, appellant’s motion to expedite is granted. We reverse appellant’s conviction and sentence for driving while license permanently revoked pursuant to section 322.341, Florida Statutes. See Fla. Dep’t Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003); Gillman v. State, 860 So.2d 1099 (Fla. 1st DCA 2003). Accordingly, we remand to the lower tribunal to conduct further proceedings.

WOLF, BROWNING, and LEWIS, JJ., concur.


author: SAWAYA, J.

text:
    Wilson Javier LOPEZ-VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-4250.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

The issue we must resolve is whether convictions for attempted second-degree murder, shooting into an occupied vehicle, and shooting from a vehicle, all arising out of the same criminal episode, constitute a violation of double jeopardy principles.

There is no dispute between the parties that all three offenses arise out of a single criminal episode. Therefore, a discussion of the particular facts and circumstances that comprise that episode is not necessary to resolve the issue before us. Suffice it to say that an incident of road rage escalated into extreme acts of violence, 'culminating in the attempt by Vazquez to take the life of the victim. As Vazquez sat in his vehicle, he fired his weapon into the vehicle occupied by the victim, wounding the victim in the arm. Vazquez was convicted and sentenced for the three offenses previously mentioned, which he now claims violate his right not to be placed in jeopardy more than once for the same criminal offense. Although Vazquez did not timely object to the multiple convictions and sentences, that error is not a jurisdictional impediment to appellate review because “[a] violation of double jeopardy constitutes fundamental error which may be raised for the first time on appeal.” Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). Because we address a legal issue, the standard of review that governs our analysis is de novo. See State v. Florida, 894 So.2d 941 (Fla.2005).

Criminal defendants are protected from multiple convictions and punishments for the same offense by both the federal and state constitutions. See U.S. Const, amend. V.; Art. I, § 9, Fla. Const. Our analysis of double jeopardy issues must be directed by legislative intent, State v. Anderson, 695 So.2d 309, 311 (Fla.1997), and so the prevailing standard for “determining the constitutionality of multiple convictions ... for offenses arising from the same criminal [episode] is whether the [L]egislature ‘intended to authorize separate punishments for the two crimes.’ ” M.P. v. State, 682 So.2d 79, 81 (Fla.1996) (quoting Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)). The absence of a clear statement of legislative intent to authorize separate punishments for crimes that arise from one criminal episode requires application of section 775.021(4), Florida Statutes (2005), to determine whether separate offenses exist. M.P.; Gaber v. State, 684 So.2d 189 (Fla.1996).

Section 775.021(4) eschews the rule of lenity, which compels strict construction of criminal statutes in favor of the accused, by requiring that separate crimes committed in the course of one criminal episode be punished separately. § 775.021(4), Fla. Stat (2005); see also Gordon v. State, 780 So.2d 17, 24 (Fla.2001) (“Subsequently, the Legislature amended section 775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity.”). Separate crimes are committed “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat. (2005). Compliance with this component of the analysis generally requires a rather straightforward examination of the statutory elements of each offense. See Johnson v. State, 689 So.2d 1065 (Fla.1997); Gaber, 684 So.2d at 190-91; State v. Maxwell, 682 So.2d 88, 84 (Fla.1996); State v. Johnson, 676 So.2d 408 (Fla.1996); Hamrick v. State, 648 So.2d 274 (Fla. 4th DCA 1995). This methodology typically bears the moniker “Blockburger test,” and its primary virtue is that it can be easily applied to produce consistent and predictable results.

There are, however, three statutory exceptions that apply if the crimes do not have identical elements, one of which is a reiteration of the Blockburger test. § 775.021(4)(b), Fla. Stat. (2005). Reduced to its essence, section 775.021(4) provides that convictions and sentences for offenses committed in one criminal episode violate double jeopardy when the offenses have identical elements or, having different elements, they are degree variants of the same offense, or one or more are lesser included offenses and subsumed in the greater offense. Hence, the analysis under section 775.021(4) requires that we first determine whether the offenses have identical elements and if they do, the analysis ends and one offense must be eliminated. See Gordon. If they do not, we must proceed to determine whether any of the three exceptions applies. If any exception applies, elimination of one offense is required to comply with the double jeopardy protections. Id.

We discern no clear legislative statement that separate convictions and punishments for the three offenses committed by Vazquez are intended, so we proceed with our analysis under section 775.021(4), beginning first with examination of the elements of each offense to determine identity. Attempted second-degree murder, as proscribed by sections 782.04(2) and 777.04, Florida Statutes (2005), requires proof of two elements: 1) Vazquez intentionally committed an act that would have resulted in the death of the victim, except that someone prevented the defendant from killing the victim or the defendant failed to do so; and 2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. Shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2005), requires proof of three elements: 1) Vazquez shot a firearm; 2) he did so at, within, or into a vehicle of any kind that was being used or occupied by any person; and 3) the act was done wantonly or maliciously. Shooting from a vehicle in violation of section 790.15(2), Florida Statutes (2005), requires proof of two elements: 1) Vazquez knowingly and willfully discharged a firearm from a vehicle; and 2) at the time he discharged the firearm, Vazquez was within 1000 feet of any person.

Our examination of these statutory elements reveals that each crime contains an element the others do not. Comparing the two shooting crimes with the crime of attempted second-degree murder, the former requires the element of shooting with a firearm from a vehicle or into a vehicle, but the latter does not. See State v. Hines, 695 So.2d 747, 748 (Fla. 1st DCA 1997) (“Shooting into a conveyance thus likewise contains an element, shooting, not required by attempted murder, which does not require a firearm. Separate convictions and sentences for attempted murder and for shooting into a conveyance therefore are valid, despite arising from the same criminal episode.”). The crime of attempted second-degree murder requires the State to prove the element that the act would have resulted in the death of the victim; there is no similar requirement in the shooting statutes. Comparison of the elements of just the two shooting offenses reveals that each contains different elements: one requires shooting into a vehicle occupied by another person and the other requires shooting from a vehicle by a person who is within 1000 feet of another person. Having thus administered the Blockburger test, the results reveal that double jeopardy protections afforded Vazquez have not been violated unless one of the statutory exceptions applies and we note, parenthetically, that Vazquez does not contend otherwise. Vazquez argues that the convictions cannot stand because each is a degree variant of the same core offense.

In determining whether crimes are degree variants of the same core offense, the primary evil that each statute was intended to address must be examined. Gordon; Austin v. State, 852 So.2d 898, 901 (Fla. 5th DCA 2003) (“Following the format laid out in Gordon, we look to the evil which each statute was intended to prevent.”); Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002), review denied, 845 So.2d 892 (Fla.2003). The evil that is being addressed determines whether the offenses share “the same core offenses categorized as theft, battery, possession of contraband or homicide.” Mitchell, 830 So.2d at 947; see also Gordon, 780 So.2d at 21, 23 (recognizing Justice Kogan’s observation in his concurring opinion in Sirmons v. State, 634 So.2d 153, 155 (Fla.1994), that “theft, battery, possession of contraband and homicide are the type of core offenses upon which other criminal charges are based” and concluding that “attempted first-degree murder punishes the intent to kill, whereas aggravated battery causing great bodily harm punishes the act of seriously injuring another person”).

Vazquez neither asserts what core offense these convictions share nor explains what primary evil is being addressed by each statute. Regardless, as previously indicated, precedent tells us that “the primary evil of attempted second-degree murder is the potential of the defendant’s act to cause death.” Florida, 894 So.2d at 949. Indeed, the standard jury instruction for attempted second-degree murder provides that the State must prove two elements beyond a reasonable doubt: 1) that the defendant intentionally committed an act which would have resulted in the death of the victim except that someone prevented the defendant from killing the victim or the defendant failed to do so; and, 2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. Fla. Std. Jury Instr. (Crim.) § 6.4., at 1744 (emphasis added). We believe that the primary evil addressed by sections 790.19 and 790.15, which proscribe shooting into an occupied vehicle and shooting from a vehicle, is the endangerment of the safety of those who may be struck by the discharge from the firearm. While the violation of both shooting statutes may, in some instances, involve the death of the victim, certainly many cases will involve varying degrees of injury suffered by victims struck by the discharge from a firearm. Thus, the core offense for the shooting offenses must lie outside the core offense of homicide. As the court explained in Florida, “[t]he evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact.” Florida, 894 So.2d at 949. Accordingly, we conclude that the core offense of the shooting statutes is battery and the core offense of attempted second-degree murder is homicide. Therefore, the crimes of attempted second-degree murder and the two shooting offenses are not degree variants of the same underlying offense for which dual convictions are unauthorized pursuant to section 775.021(4)(b)(2).

Adverting once again to just the two shooting offenses, the foregoing analysis, which reveals they share the same core offense of battery, leads us to conclude that the two shooting offenses are degree variants of -the same underlying offense. Therefore, because both offenses arise out of the same criminal episode, convictions for both are prohibited under section 775.021(4)(b)(2). We find further support for this conclusion from the fact that the two firearm statutes are included in chapter 790, Florida Statutes, entitled ‘Weapons -and Firearms.” This fact is elevated to a level of significance by a general rule recognized and applied by this court and others, which provides that “degree crimes, or ‘degree variants,’ are oftentimes denoted in the same statutory chapter....” Anderson, 695 So.2d at 311 (footnote omitted); see also Lovell v. State, 882 So.2d 1107 (Fla. 5th DCA 2004). Although this general rule does not necessarily apply in all cases, we believe it does here and it suggests that both shooting offenses are degree variants of the same core offense.

A word about the decision in M.P. is in order. There, the court considered whether two convictions under chapter 790 constituted double jeopardy when they arose out of a single incident. In that case, a juvenile was adjudicated delinquent for carrying a concealed weapon in violation of section 790.01 and possession of a firearm by a minor in violation of section 790.22(3) after he was found in possession of a single weapon. The court found that double jeopardy was not violated in that case because a clear statement of legislative intent to punish each crime separately is contained in section 790.22(7), which states that “[t]he provisions of this section are supplemental to all other provisions of law relating to the possession, use, or exhibition of a firearm.” M.P., 682 So.2d at 82 (alteration in original) (quoting § 790.22(7), Fla. Stat. (Supp.1994)). Since neither section 790.15 nor section 790.19 contains any similar language indicating that the provisions are supplemental to the other provisions of law, we do not find any inconsistency between our decision, which holds that convictions under two statutes in chapter 790 constitute a violation of double jeopardy, and the decision in M.P., which holds that convictions under two different statutes in chapter 790 do not.

When double jeopardy protections require that a conviction and its attendant sentence be vacated, precedent directs that the lesser offense should be eliminated. See State v. Barton, 523 So.2d 152, 153 (Fla.1988); McGlorthon v. State, 908 So.2d 554, 556 n. 2 (Fla. 2d DCA 2005). But here it does not matter which shooting offense is lost because both are second-degree felonies. See Ward v. State, 730 So.2d 728 (Fla. 1st DCA 1999), abrogated on other grounds by Consiglio v. State, 818 So.2d 467 (Fla.2002). Therefore, we will leave it to the trial court to make the choice. See McGlorthon, 908 So.2d at 556 n. 2; Cabanela v. State, 871 So.2d 279, 282 (Fla. 3d DCA 2004) (“[W]e remand with instructions that three of the appellant’s four convictions and sentences be vacated forthwith.”) (footnote omitted). Accordingly, we remand with instructions to the trial court to vacate one of the shooting convictions and for resentencing on the remaining convictions, if necessary. We affirm the judgment in all other respects.

AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.

PLEUS, C.J. and PALMER, J., concur.

      . § 775.021(1), Fla. Stat. (2005).

      . The name derives from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which established the standard.

      . This statute specifically provides as follows:
      (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
      (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
      The first exception provided in section 775.02 l(4)(b) simply repeats the Blockburger same elements test.

      .Section 782.04(2) defines the crime of second-degree murder and section 777.04 defines attempt.

      . We note that the two shooting offenses do not fall within the exception provided in section 775.021 (4)(b)(3) because they are not necessarily included lesser offenses of attempted second-degree murder. State v. Florida, 894 So.2d 941 (Fla.2005); Gordon v. State, 780 So.2d 17, 20 n. 3 (Fla.2001) (holding that the third statutory exception only applies to necessarily included lesser offenses) (citing State v. McCloud, 577 So.2d 939, 941 (Fla.1991); Aiken v. State, 742 So.2d 811 (Fla. 2d DCA 1999)).


text:
    Jerry RODGERS, Appellant, v. Cheryl REED, f/k/a Cheryl Rodgers, etc., Appellee.
    No. 5D05-694.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.

      Andrew G. Natelson, Flagler Beach, for Appellant.
    No Appearance for Appellee.
   SAWAYA, J.

The first issue we must resolve is whether the child support provision of the final judgment of dissolution of the parties’ marriage orders payment of a lump sum award, not a per child award, requiring the same amount be paid by Jerry 'Rodgers, the former husband, regardless of how many children had reached adulthood. The second issue is whether it was proper to impose a lien on any future worker’s compensation settlement Rodgers' may receive when the former wife, Cheryl Reed, had not filed any pleading seeking that relief; The order we review that necessarily frames these issues is the order establishing the amount of child support arrear-age Rodgers owes for his three children now that all have attained their majority. We note, parenthetically, that the former wife has not provided us with a brief.

The 1994 final dissolution of marriage judgment awarded the former wife primary physical custody of all three children born of the marriage and set' the amount of support arrearage at $5000. As to child support, the poorly-drafted and ambiguous provisions of that part of the judgment state:

CHILD SUPPORT: That the party obligated to pay child support shall pay to the party entitled to receive the sum of $212.00 per week for the support of the minor child(ren).
NAME OF MINOR(S) BIRTHDATE(S)
Sheila Rodgers February 27, 1978
Andrea Rodgers ’ October 18,'1979
Dewayne Rodgers February 5,1984
Child support payments shall continue until the death of said minor child, the valid marriage of the child, the lawful entry of the child into the military service of the United States for a continuous period of time of one year or more, or until attainment of said minor child’s 18th birthday, unless said child is at the time enrolled in high school on a full time basis, and living at home, in which case support shall continue until the child graduates high school.

On January 9, 2003, Rodgers filed a Motion to Terminate Child Support and Income Deduction Order premised on his assertion that rather than a lump sum support award, he was actually paying $70.76 per child per week and thus, as each child either left home or attained his or her majority, the amount he owed was reduced by $70.76. In the motion, Rodgers states that it was inequitable to require him to pay support to the former wife for Andrea when Andrea had moved to Virginia four months after the final judgment was rendered. Also, he claimed that his obligation of support for the oldest child, Sheila, ended when she turned 18 on February 27, 1996, leaving him to pay support for only Dewayne until February 5, 2002. According to Rodgers’ calculations, he should have paid the following:

A. $5,000 arrearage owed as of November 18,1994.
B. $3,180 child support based on $212.00 per week for the period beginning November 18, 1994 through March 1,1995.
C. $7,309.83 child support based on $141.33 per week from the period beginning March 1, 1995 to February 27, 1996.
D. $21,824.87 child support based on $70.67 per week from the period beginning February 27, 1996 to February 5, 2002.

The total owed, according to this calculation, was $37,314.70. Rodgers claimed that he had actually paid $43,054.66.

Rodgers, who is currently disabled and unable to work, receives $640 per month in disability payments. His motion explains that his disability payment is reduced by an income deduction order rendered by the state of California, which deducts $122 per week from his disability check for child support. He reasoned that because all children are now over 18, the trial court “should find that the former husband has fully satisfied his child support obligation and terminate his child support obligation and current income deduction order.”

A child support enforcement hearing officer heard Rodgers’ motion. It was at this hearing that the former wife’s attorney asserted an arrearage of almost $40,000 and asked the hearing officer for a lien on any lump sum benefits that Rodgers might receive in settlement of the worker’s compensation suit he was pursuing. There was no objection to the lien request from Rodgers’ attorney. The hearing officer entered a recommended order establishing the arrearage at $20,485.83 as of February 2, 2005, to be paid at $50 per month. The order also recommended that there be a lien against any lump sum payment due to Rodgers from his worker’s compensation case. The trial court approved and adopted the recommended order in all respects.

Because the first issue we must resolve involves the construction of ambiguous provisions of a final judgment, it is appropriate for us to apply the de novo standard of review in our search for the correct resolution. McCann v. Walker, 852 So.2d 366 (Fla. 5th DCA 2003); see also Spalding v. Spalding, 907 So.2d 1270 (Fla. 5th DCA 2005); Roque v. Paskow, 812 So.2d 500, 503 (Fla. 4th DCA 2002) (“Finally, the construction of a final judgment presents a question of law for the court, see Boynton v. Canal Auth., 311 So.2d 412, 415 (Fla. 1st DCA 1975), and we may review it de novo on appeal.”).

Rodgers reads the pertinent provisions of the 1994 final judgment as a per child order, while the hearing officer interpreted it as a lump sum award. If the hearing officer was correct, then Rodgers’ failure to seek modification of his support order prior to the emancipation of all three children left nothing for the hearing officer to do but enforce the order as written and set the amount of arrearage based upon that amount. We are directed to this conclusion by a general rule which provides that “[w]hen the child support provision fails to allocate the amount of support attributable to each child, the trial court cannot retroactively terminate child support before the date the petitioner requested such relief.” Florida Dep’t of Revenue ex rel. Wilson v. Wilson, 782 So.2d 952, 954 (Fla. 2d DCA 2001); see also Krause v. Krause, 798 So.2d 75, 77 (Fla. 2d DCA 2001); Dep’t of Revenue on Behalf of Hall v. Hall, 699 So.2d 1036, 1088 (Fla. 5th DCA 1997); State, Dep’t of Revenue, Child Support Enforcement v. Segrera, 661 So.2d 922, 923 (Fla. 3d DCA 1995); Puglia v. Puglia, 600 So.2d 484, 485 (Fla. 3d DCA 1992).

Hence, if the child support order awards a lump sum for all of the children, Rodgers’ attempt to reduce or modify the amount after the children reached adulthood is futile. Therefore, we must determine whether Rodgers is correct in arguing that the award is a per child award. We believe that the decision in Florida Department of Revenue ex rel. McClung v. McClung, 760 So.2d 244 (Fla. 3d DCA 2000), is analogous to the instant case. There, the court held that in reading all provisions of the support agreement together, it had to conclude that a per child award was intended. The McClungs’ agreement provided in part:

15. The Husband shall pay to the Wife, for support and maintenance of the minor children of the parties, the sum of $400.00 per month.
⅜ ⅝ ⅜
18. The support rights of each child shall terminate and the obligation of the husband to pay support for each child shall cease upon occurance [sic] of any one of the following:
a)The death of the child.
b) Attainment of his eighteenth birthday.
c) The valid marriage of the child.
d) The lawful entry of the child into the military service of the United States.

Id. at 245. The appellate court agreed with the trial court that indeed, the award was a per child, not lump sum, award, explaining:

Based upon our de novo review of the parties’ agreement, we believe that paragraphs 15 and 18 must be construed together in order to give full effect to each. See Durham Tropical Land Corp. v. Sun Garden Sales Co., 106 Fla. 429, 138 So. 21 (1931). When that is done, we conclude, as did the trial court, that the parties intended for the child support payments to be allocated between each child such that upon the occurrence of one of the qualifying events listed in paragraph 18, the former husband would only be obligated to pay the former wife $200.00 per month for the remaining child. We are compelled to reach this conclusion because paragraph 18 speaks in terms of the former husband’s financial obligation to each child individually as opposed to the children collectively. For that reason, the cases relied upon by the Department are readily distinguishable. See, e.g., [State, Dept. of Health & Rehabilitative Services, Child Support Enforcement v.] Whaley, 624 So.2d [367] at 367 (child support unallocated where parties agreed that former husband would pay former wife $1,500 per month as child support for the parties’ two children and agreement further provided that “said child support payments shall continue until the youngest child shall have attained the age of 18 years, dies, marries or becomes emancipated.”); [Stale, Dept. of Health and Rehabilitative Ser vices, Office of Child Support Enforcement ex rel. Worthy u] Cornell, 524 So.2d [484] at 484 (trial court erred in modifying child support following “the death of one of two children for whom the father had acknowledged paternity where the final judgment of paternity specified that the child support would continue until the minor children die, marry, become self-supporting or emancipated”); [Hammond v.] Hammond, 492 So.2d [837] at 837 (child support unallocated where the final judgment of dissolution ordered the former husband to pay “ ‘as child support the sum of $182.00 per week, ... for the support and maintenance of the minor children ... until such time as both minor children become 18 years of age[.]’ ”).

Id. at 245-46 (footnotes omitted).

Rodgers argues that just as in McClung, it is undeniable that the first paragraph of his own support order is a lump sum award; however, when the following paragraph is read in conjunction with the first paragraph, it is clear the intent was for the child support to be a per child award, and thus the amount owed would decrease upon the occurrence of any of the listed events in each child’s life. We agree with Rodgers’ analysis. The second paragraph of the instant order speaks in terms of “said child” and lists the qualifying events for the termination of support for “said child.” Coming as it does after a list of each child’s name and birth date, the reference to “said child” is a reference to each individual child listed in the first paragraph; otherwise, the second paragraph would refer to “said children.” In order to give effect to the second paragraph, any one of the listed events occurring in the life of any one of Rodgers’ three children would trigger the conclusion of support for that child. Accordingly, we conclude that reversal and remand for a recalculation of arrearages is necessary.

The second issue — imposition of a lien' on any future worker’s compensation benefits Rodgers may receive — presents a question of law that we review de novo. Generally, imposition of a lien against the prospective proceeds of a parent’s worker’s compensation settlement, for purposes of satisfying that parent’s child support arrearage, is an appropriate device to ensure that the proceeds are not improperly diverted. Dep’t of Revenue ex rel. Springer v. Springer, 800 So.2d 700, 701-02 (Fla. 5th DCA 2001); see also Bryant v. Bryant, 621 So.2d 574, 576 (Fla. 2d DCA 1993). The only caveat is the enforcement of the lien, which, this court observed in Springer, must accommodate both the child support needs and the needs of the recipient of the settlement.

It appears that the lien provision recommended by the hearing officer in the instant case, and adopted by the trial court, does not take into consideration Rodgers’ need for any of the proceeds. It provides:

There shall be a lien against any lump sum payment due to Respondent resulting from his injury, up to the full amount of the child support arrearage then due. No funds shall be disbursed to Respondent unless the arrearage has been paid in full, or upon further order of the court.

The lien language acts as a complete bar to Rodgers’ ability to receive any of the proceeds unless and until the arrearage is satisfied, but the provision does contain an “out” by including language allowing the court to revisit the issue and enter another order. Presumably, once the settlement is realized, Rodgers could move the court to enforce the lien in an equitable manner according to the circumstances at the time.

Rodgers argues that the hearing officer erred in including a lien provision in the arrearage determination because after he filed his motion to terminate support, the former -wife never filed a responsive pleading requesting a lien and, hence, never placed him on notice that she was seeking that relief. Unfortunately, Rodgers failed to preserve this issue inasmuch as he failed to object to the former wife’s request for a lien when she made it at the hearing.

Nevertheless, because the amount of the arrearage needs to be recalculated, we believe it would be expedient for the trial court to clarify the lien provision of the order to require an evidentiary hearing on the enforcement of the lien if and when the time comes. Rodgers’ almost dire financial situation was not challenged by the former wife, and it is apparent that he will require at least a portion of the proceeds for his own support. Under the undisputed facts, it would be inequitable to require that Rodgers fully satisfy the arrearage before receiving any portion of the balance of the settlement proceeds.

We reverse the order under review and remand for recalculation of the arrearage and a clarification of the lien provision. We note that upon recalculation of the arrearage, the trial court may conclude that no such lien provision is necessary.

REVERSED and REMANDED.

PLEUS, C.J. and PALMER, J., concur.


author: MONACO, J.

text:
    J.D.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1547.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

J.D.H. appeals an order rendered by the trial court ordering him to pay as restitution the original purchase price of a two and a half year old dirt bike that he had stolen. Because the fair market value of the stolen item is the correct measure, we reverse.

At the restitution hearing held in April of 2005, the victim testified from his bill of sale that he paid $2,436.96 for the dirt bike when he purchased it in October of 2002. He testified, as well, that the motorcycle was in excellent shape. There was no testimony regarding the fair market value of the bike, nor was there any evidence that would demonstrate the effect of the lapse of time and the condition of the bike on the fair market value. The trial judge simply adopted the victim’s purchase price in setting the restitution amount.

We review an order of restitution using an abuse of discretion standard. See Koile v. State, 902 So.2d 822 (Fla. 5th DCA), review granted, 905 So.2d 892 (Fla. 2005); Bernard v. State, 859 So.2d 560, 562 (Fla. 5th DCA 2003). If the award of restitution is supported by competent evidence, an appellate court should not interfere with the trial court’s reasonable exercise of discretion. Bernard, 859 So.2d at 562.

This court has held that, absent special circumstances, the fair market value, not the replacement value is generally the correct measure of damages. Ibrahim v. State, 866 So.2d 749, 750 (Fla. 5th DCA 2004); see also Walters v. State, 888 So.2d 150 (Fla. 5th DCA 2004); J.F.H. v. State, 849 So.2d 1151, 1152 (Fla. 5th DCA 2003). A determination of the fair market value takes into consideration the original market cost, the manner in which the item was used, the general condition and quality of the item, and the percentage of depreciation. Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by, F.B. v. State, 852 So.2d 226 (Fla.2003). Courts are not required to use the fair market value as the sole standard of determining restitution, but where the fair market value would provide adequate compensation to the victim or serve other purposes of restitution, the value of the property should be established through the factors listed in Negron. State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991). Here, fair market value should have been used. Market cost alone was insufficient.

Accordingly, we reverse the restitution order and remand for a new restitution hearing consistent with this opinion.

REVERSED AND REMANDED.

PLEUS, C.J. and SHARP, W., J., concur.


author: SHARP, W., J.

text:
    Antorio Donyel JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1770.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Jones appeals from his judgment and sentence for first degree murder. He contends that evidence regarding a robbery and aggravated assault of a different man, Sammie Pryor, that took place shortly before the murder and robbery of Juan Onate, the victim in this case, should have been excluded because it was improper similar fact evidence or Williams rule evidence. We affirm.

Although the circumstances of the two crimes were different, the Pryor robbery was properly admitted in evidence because it was relevant to prove the murder charge. It occurred immediately before the murder and the events of the evening were inextricably intertwined, part of a continuing episode involving the same people, vehicle and weapon. See Griffin v. State, 639 So.2d 966 (Fla.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995); Hall v. State, 403 So.2d 1321 (Fla.1981).

AFFIRMED.

PLEUS, C.J. and MONACO, J., concur.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.404(2)(a), Fla. Stat.

      . Five young men driving around late at night in a truck, drinking and smoking marijuana, Jones driving and in possession of a .38 special revolver that was kept in the truck by the owner, motivated by intent to rob for money, with racial overtones.


text:
    AGERE SYSTEMS INC., Appellant, v. ALL AMERICAN CRATING, INC., et al., Appellee.
    No. 5D06-347.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    James W. Carbin and Sheila Raftery Wiggins of Duane Morris LLP, Newark, and Eric Saida, of Duane Morris LLP, Miami, for Appellant.
    Christian D. Keedy of Christian D. Keedy, P.A., Miami, for Appellee.
   MONACO, J.

The appellant, Agere Systems, Inc., seeks review of a non-final order denying a motion for reconsideration of an earlier order. A motion for reconsideration does not toll the time to file an appeal from a non-final order. See Canfield v. Cántele, 837 So.2d 371, 376, n. 3 (Fla.2002). The reason, of course, is that motions addressed to non-final orders are not “authorized” within the meaning of Rule 9.020(h), Florida Rules of Appellate Procedure, and thus do not postpone rendition. See Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001); Coldwell Banker Commercial v. Wightman, 649 So.2d 346, 347 (Fla. 5th DCA 1995).

In the present case the underlying non-final order was rendered on November 4, 2005. The underlying order was an ap-pealable non-final order pursuant to Rule 9.130, Florida Rules of Appellate Procedure, but review of it had to be initiated by the filing of a notice of appeal within thirty days of November 4, 2005. See Fla. R.App. P. 9.130(b). The order denying the motion for reconsideration was entered on December 19, 2005. The appeal to this court was filed on January 11, 2006, well in excess of the allowable time.

Moreover, an order that simply denies a motion for reconsideration or rehearing of an underlying non-final order, such as the one sought to be appealed in this case, is not in itself an appealable order. See Richardson v. Watson, 611 So.2d 1254 (Fla. 2d DCA 1992). Since the notice of appeal was filed more than thirty days from the date of the underlying order for which reconsideration was sought, we do not have jurisdiction to review this matter. Accordingly, in the absence of jurisdiction, we dismiss the appeal.

DISMISSED.

PLEUS, C.J. and SHARP, W., J., concur.


text:
    Charlene BIRCH, Petitioner, v. Michael BABSTOCK, Respondent.
    No. 5D06-710.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Caryn Green of West, Green & Associates, P.L., Orlando, for Petitioner.
    Gavin D. Lee of Gavin D. Lee, P.A., Altamonte Springs, for Respondent.
   PER CURIAM.

We grant the petition for writ of prohibition filed by the Petitioner, Charlene Birch, seeking to prohibit Judge Margaret T. Waller from presiding further in the paternity petition below. Birch’s motion for disqualification sets forth facts which, if taken as true, are legally sufficient grounds for disqualification of Judge Waller pursuant to Florida Rule of Judicial Administration 2.160.

The petition for writ of prohibition is granted. We withhold issuing a writ, as we assume trial court compliance.

PETITION GRANTED.

SHARP, W., GRIFFIN and LAWSON, JJ., concur.

      . The Respondent, Michael Babstock, declined the opportunity to show cause why this petition should not be granted.


author: PADOVANO, J.

text:
    Janice VINSON, Bobby Vinson, Ellexzena Wilder and Beverly Vinson, Appellants, v. Martha JOHNSON, Jacqueline Davis, Yvonne Hughes, Maggie Vinson and Martin C. Vinson, Appellees.
    No. 1D04-2163.
    District Court of Appeal of Florida, First District.
    June 16, 2006.

      David Jon Russ, Gainesville, for Appellants.
    Ronald D. Surrency, Gainesville, for Ap-pellees.
   PADOVANO, J.

This is an appeal from a final judgment for the plaintiffs on a complaint to partition or force the sale of real property. The defendants contend that the judgment must be reversed, because ownership of the property was transferred by a will containing a clause that prohibits partition or sale except by the consent of all of the owners. We conclude that this clause is invalid as an unlawful restraint on the alienation of real property. Because the restrictive clause at issue is unenforceable, the property was subject to partition. For these reasons, we affirm.

Hardy Vinson, Sr., executed a will leaving his 34-acre farm and home in Alachua County to his nine living children as tenants in common. The will provided in pertinent part:

The “Vinson Estate” shall not be subject to partition or forced sale by any heir, but shall only be sold upon agreement of all heirs. Taxes and ownership expenses shall be shared equally among the children. Any heir that pays more than his or her share shall be entitled to contribution from the nonpaying heirs upon sale of the property.

Mr. Vinson died, and ownership of the real property was transferred to his children according to the devise he had made in his will. Subsequently, a dispute arose between the children, and five of them filed a suit for partition or forced sale naming the other four as defendants.

The controversy between the parties at trial focused on the meaning of the term “heirs” in the clause prohibiting partition or forced sale. The defendants argued that the term referred only to the devisees named in the will, and that it was not unreasonable to prohibit a forced sale of the property during their lifetimes. In contrast, the plaintiffs argued that the term “heirs” refers to all of the testator’s lineal descendants, so that the clause at issue could interfere with the right to sell or dispose of an individual interest in the property indefinitely, so long as any living descendant withheld his or her consent.

The trial court ruled in favor of the plaintiffs, and on April 14, 2004, the court entered a final judgment directing that the property be partitioned. The court concluded that the prohibition against partition or forced sale was “unenforceable because it is non-specific and its attempted prohibition applies to future persons beyond the nine named heirs.” The defendants filed a timely appeal to this court to seek review of the judgment.

A trial court decision on a point of law is subject to review on appeal by the de novo standard of review. See State v. Otte, 887 So.2d 1186 (Fla.2004); State v. Glatzmayer, 789 So.2d 297, 302 n. 7 (Fla.2001) (stating that “[i]f the ruling consists of a pure question of law, the ruling is subject to de novo review”). Whether the clause in the will prohibiting partition or sale is an unlawful restraint on alienation of real property is a question of law. Consequently we review the decision of the trial court on this point by the de novo standard.

The trial court concluded that the term “heirs” refers to all of the testator’s lineal descendants, including those who will inherit part of the property in place of the testator’s children, but we need not determine whether that interpretation is correct. In our view, the prohibition against partition and sale is an unlawful restraint on alienation even if it applies only to the nine children who were living at the time of the testator’s death. The will grants each of the children an undivided fee simple interest in real property, yet the prohibition at issue would deprive them of the normal incidents of property ownership, including the right to sell or dispose of the property during their entire lifetimes. The prohibition against partition cannot stand because it is inconsistent with the devise made in the will.

It is correct, as the defendants argue, that the court must construe a will in a way that carries out the intent of the testator. See Adams v. Vidal, 60 So.2d 545 (Fla.1952); In re Lesher’s Estate, 365 So.2d 815 (Fla. 1st DCA 1979). But this principle assumes that the action the testator intended to take with respect to his or her property is lawful. A devise made in violation of the legal requirements for conveying real property is not transformed into a valid devise merely because it was clearly expressed.

When real property is conveyed in fee simple, the grantee or devisee acquires a right to sell or dispose of the property as an incident to the right of ownership. The right of alienation is said to be an inherent and inseparable quality of the estate. See 61 Am.Jur.2d Perpetuities, Etc. § 102 (2002); 3 Thompson Real Property § 29.03(b), at 707 (2001). An absolute restraint on alienation is inconsistent with the right of ownership and is therefore invalid. See generally Iglehart v. Phillips, 383 So.2d 610 (Fla.1980) (surveying the case law pertaining to restraints on alienation).

The rule against restraints on alienation applies to restrictions on partition of real property, as well as restrictions on sale. The right to seek partition of property owned jointly in a tenancy in common is an incident to the right of individual ownership. See Richard R. Powell, The Law of Real Property, § 77 ¶ 846 (1991). While there appears to be no precedent in Florida for the precise issue presented in this case, other states have held that prohibitions against partition or forced sale of property devised in a will are unlawful restraints on alienation.

The case of Pavlikowski v. Ehrhardt, 192 Pa.Super. 373, 161 A.2d 652 (1960) is a good example. There, the testator devised real property to his three children in equal shares on the condition that the property could not be sold except by the agreement of all of the children. Two of the children sought partition in the trial court and prevailed. The judgment of partition was upheld on the ground that the requirement of mutual assent to a sale of the property was an unlawful restraint on alienation of the property.

The court in Ehrhardt recognized that a testator may restrict or postpone the right of partition for a limited time when necessary to accomplish the plan of the will. Such a restriction might be upheld if it merely keeps the property intact for a limited time, for example, until the youngest of the children reaches the age of majority. But to prohibit the sale of property during the entire lifetime of each of the children is inconsistent with the devise itself. As the court explained “there [was] a clear devise of a fee simple estate and the bald attempt to strip that estate of the right of alienation unless unanimously consented to by all the children.” Ehrhardt, 161 A.2d at 654.

A similar provision in a will was invalidated in Mills v. Blakelin, 307 Mass. 542, 30 N.E.2d 873 (1941). In that case, the testator devised real property to her three children with a provision that the property could not be sold or partitioned without the consent of at least two of the children. The court held that this restriction was an unlawful restraint on alienation. In support of this conclusion, the court stated that the right of ownership in property devised to the three children by the terms of the will cannot be “cut down by subsequent provisions repugnant to or inconsistent with their devises.” Mills, 30 N.E.2d at 875.

The rationale of Ehrhardt and Mills is directly supported in Florida cases arising in other contexts. In Davis v. Geyer, 151 Fla. 362, 9 So.2d 727 (1942), the court invalidated a condition in a deed requiring the grantor’s approval for a subsequent sale by the grantee. The court concluded that the condition was inconsistent with the grant of ownership and that it was invalid as a restraint on alienation. The court explained how the prohibition against a restraint on alienation would be applied in a variety of circumstances. Referring to the issue we have here, the court stated that a condition in a will that “land devised to a number of persons shall not be divided or sold during the lifetime of the grantee[s]” is void. Geyer, 9 So.2d at 730.

We recognize that a restriction on the right to partition property might be valid if it were effective only for a limited time. As the court explained in Iglehart, “the rule against unreasonable restraints is principally concerned with the duration of a restraint on the property.” 383 So.2d at 614 (emphasis in original). But American courts have generally followed the rule that a restraint on alienation is unreasonable if it exists for the lifetime of the grantee or devisee. See 61 Am.JuR.2d Perpetuities, Etc. § 102 (2002).

It follows that the prohibition against partition in this case is an unlawful restraint on alienation. Assuming the prohibition applies only to the testator’s children — the best possible case for the defendants — it nevertheless applies throughout their entire lives. The will grants each of the testator’s children an undivided interest in the property, but for some of them, this right is merely an illusion. They cannot all live on the property. Consequently, the prohibition against partition necessarily forces some of them to bear the burdens of property ownership without receiving any of the benefits. To apply a restriction like this throughout the entire life of any one of the testator’s children would be inconsistent with the fee simple estate devise to that child by the terms of the will.

The right to partition can be waived by agreement, but there is no evidence of such an agreement here. On this point, the present case is distinguishable from Condrey v. Condrey, 92 So.2d 423 (Fla.1957). There, a man and his wife conveyed an undivided one-half interest in their home to their son and his wife as joint tenants with a right of survivorship. All four lived in the house. The conveyance was not a gift. In return for his interest in the property, the son agreed that he would care for his parents as they got older and that he would not seek partition and forced sale, so that his parents would be able to stay in the house during their lifetimes.

The defendants argue that an agreement not to partition the property is implied in the acceptance of the property. However, that argument goes well beyond the point made in Condrey. It is one thing to say that the right to partition can be given up in return for consideration as a matter of contract law, but it is quite another to say that the right can be taken away merely by accepting a gift. The plaintiffs in this case have done nothing to waive the right to partition the property devised to them in their father’s will.

In summary, we conclude that the provision in the will that the estate “shall not be subject to partition or forced sale by any heir, but shall only be sold upon agreement of all heirs” constitutes an unlawful restraint on alienation of real property. Because the undivided interest in property devised to each of the testator’s children is subject to partition, the trial court was correct in granting relief to the plaintiffs.

Affirmed.

BARFIELD and DAVIS, JJ., concur.


text:
    Jammie FEATHERSTONE, Appellant, v. James S. McCRANIE, Jennifer L. Holman, Chase Manhattan Mortgage Company, John and Jane Doe, 1-30, and Warren Wilson Cook of First National Land Title Company, Crestview Florida, Appellees.
    No. 1D06-0247.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Jammie Featherstone, pro se, Appellant.
    Susan A. Woolf, Pensacola, for Appellee Chase Manhattan Mortgage Company; Steven R. Griffin, Pensacola, for Appellees James S. McCranie and Jennifer L. Holman.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 5, 2006, the Court has determined that it lacks jurisdiction to review the orders on appeal.

The appellant’s notice of appeal, which was filed in the lower tribunal on January 10, 2006, failed to timely invoke the Court’s jurisdiction to review either the April 18, 2005, order or the December 7, 2005, order. Although the appellant served her notice of appeal within 30 days, Florida Rule of Appellate Procedure 9.110(b) requires that the notice be filed within 30 days. Furthermore, the Court also lacks jurisdiction to review the lower tribunal’s January 9, 2006, order. The order is a non-appealable interlocutory order on a motion for leave to amend the counterclaim. See Villareal v. Craig, 813 So.2d 984 (Fla. 1st DCA 2002)(holding that order on a motion for leave to amend a complaint is not an appealable order). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. In light of the dismissal, all pending motions are denied as moot.

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


text:
    Mark E. BEDFORD, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0768.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    William B. Richbourg, Pensacola, for Petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the October 28, 2005, order denying motion to correct illegal sentence and addendum in Leon County Circuit Court case number 1996CF1373. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

KAHN, C.J., ERVIN, and VAN NORTWICK, JJ., concur.


text:
    William Cecil BROWN, Appellant, v. Nelda Jane BROWN, Appellee.
    No. 1D06-1317.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Brian C. Toundas of Brian C. Toundas, P.A., Gainesville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

A final judgment of dissolution of marriage was rendered by the Circuit Court for Gilchrist County and appealed to this court in case number 1D06-0400. After the notice of appeal was filed the trial court entered an amended final judgment, purportedly under authority of Florida Rule of Civil Procedure 1.540(b), and former wife appeals. The first appeal divested the circuit court of jurisdiction to modify or amend the judgment on appeal. Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135 (Fla. 2d DCA 1979); Flemenbaum v. Flemenbaum, 636 So.2d 579, 581 n. 1 (Fla. 4th DCA 1994). We therefore sua sponte quash the amended judgment as having been entered in the absence of jurisdiction and dismiss this appeal as moot.

APPEAL DISMISSED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


author: STRINGER, Judge.

text:
    Lamar Anthony BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1676.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Lamar Bryant appeals the revocation of his probation, contending that the evidence was insufficient to establish that he had willfully and substantially violated the terms of his probation. We affirm the revocation of Bryant’s probation based on the trial court’s finding that Bryant willfully and substantially violated conditions 1, 5, and 18. However, we remand for the trial court to strike the finding of a violation of condition 27 because there was insufficient evidence to establish a willful and substantial violation of this condition.

In December 2002, Bryant was sentenced to twenty-four months’ probation as part of a negotiated plea. In August 2003, following a finding that Bryant had violated his probation, the trial court adjudicated Bryant guilty of the underlying offenses and resentenced Bryant to a new term of twenty-four months’ probation. In December 2004, the Department of Corrections filed an affidavit of violation of probation contending, among other things, that Bryant had violated condition 27 of his probation.' Condition 27 required Bryant to complete fifty hours of community service at the rate of five hours per month during the term of his probation.

At the revocation hearing, Bryant’s probation officer testified that she had no documentation to show that Bryant had completed any of his required community service hours. Bryant testified that he had completed thirty of his required fifty hours by working at Progress Village Park. Bryant testified that the assistant park manager had the paperwork to prove this, but he testified that she had told him that she had to keep the paperwork until he had completed all fifty hours. The State presented no evidence to refute Bryant’s testimony that he had, in fact, completed thirty hours of community service. In finding that Bryant had violated condition 27, the trial court stated, “[A]s to the Condition 27, I find a willful and substantial violation because Mr. Bryant basically — I don’t believe there’s any documented community service hours that are before the Court. And that’s what’s required.”

In Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005), this court held that the State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.

“[T]he omission” from a probation order “of a specified date by which [a probationer] was required to complete [a particular] task” combined with “the fact that [the probationer] was not at the end of his probationary period” results in “the State’s inability to prove a willful and substantial violation.”

Id. (quoting Oates v. State, 872 So.2d 351, 352 (Fla. 2d DCA 2004)).

In this case, Bryant’s probation order required him to complete fifty hours of community service; however, it did not contain a specified date by which he was to complete those hours. The record reflects that when the affidavit of violation was filed, Bryant had eight months remaining in his probationary period. Assuming that Bryant had, in fact, already completed thirty of his fifty community service hours, he had more than sufficient time to complete the remaining twenty hours during the eight months left in his probationary period. Thus, the State failed to prove a willful and substantial violation of this condition.

Moreover, contrary to the trial court’s finding at the revocation hearing, Bryant’s failure to submit documentation of his community service hours does not constitute a violation of condition 27. Condition 27 requires the probationer to actually perform the community service work. “[D]oeumentation of community service hours was not an actual condition of probation.” King v. State, 915 So.2d 764, 765 (Fla. 2d DCA 2005); see also Richter v. State, 697 So.2d 939, 940 (Fla. 2d DCA 1997). Thus, Bryant’s failure to submit documentation of his community service hours cannot support a finding that he violated condition 27 of his probation, which requires only actual performance of the work itself.

Despite the fact that the State failed to prove a violation of condition 27, we affirm the revocation of Bryant’s probation because it is clear from the record that the trial court would have revoked his probation based solely on the violations of conditions 1, 5, and 18. However, we remand for the trial court to strike the' finding concerning the violation of condition 27 and enter a corrected revocation order.

Affirmed and remanded with instructions.

FULMER, C.J., and WHATLEY, J., Concur.


text:
    Marcelino GUDINO, Appellant, v. OASIS OUTSOURCING and Cambridge Integrated Services, Appellees.
    No. 1D04-5204.
    District Court of Appeal of Florida, First District.
    June 20, 2006.

      Christopher Graver of Law Offices of William F. Souza, North Miami Beach, for Appellant.
    Desi J. Morales of Charouhis, -Fandino, Lopez & Write, Miami, for Appellees.
   PER CURIAM.

Marcelino Gudino appeals an order of the judge of compensation claims (JCC) enforcing a Mediation Settlement Agreement signed by the parties at the conclusion of a mediation conference. The record supports the JCC’s determination that the parties intended the Mediation Settlement Agreement to be a “full/washout settlement” of the workers’ compensation case, with payment of a monetary sum in exchange for relinquishment of “any and all claims for indemnity and medical care, past, present and future.” We are bound by this determination. See Calderon v. J.B. Nurseries, Inc., 933 So.2d 553, 2006 WL 263644 (Fla. 1st DCA Feb.6,, 2006). We note, however, that this is the extent of the settlement in this case and, as counsel for the employer/carrier recognized during oral argument, the JCC has only enforced the terms of the Mediation Settlement Agreement.

AFFIRMED.

KAHN, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    José QUINTERO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2204.
    District Court of Appeal of Florida, First District.
    June 20, 2006.
    José Quintero, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and POLSTON, JJ., concur.


author: FULMER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Thomas Edward KNIGHT, Sr., a/k/a Tommy Knight, Sr., a/k/a Tom, Appellee.
    No. 2D05-4922.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   FULMER, Chief Judge.

We dismiss this appeal for lack of jurisdiction and explain our reasoning. In this appeal, the State seeks review under Florida Rule of Appellate Procedure 9.140(c)(1)(B) of an order granting a motion to suppress evidence.' However, the trial court did not enter a written order on the suppression issue. This court lacks jurisdiction to hear the appeal from an order granting a motion to suppress where no written order has been entered by the trial court. See State v. Johnson, 892 So.2d 563 (Fla. 1st DCA 2005); State v. Siegel, 662 So.2d 1013 (Fla. 5th DCA 1995). Furthermore, the record contains an order entered by the trial court on September 25, 2005, adjudging the Appel-lee not guilty. Because the case has been dismissed below, this court is without jurisdiction to entertain an appeal from an interlocutory order suppressing evidence. This is so because were we to reverse on the suppression issue, we would be unable to remand for further proceedings because there would be no pending case in the trial court until the State refiled a charging document.

The Florida Supreme Court has explained that “the State’s right to appeal an adverse ruling is a limited one that is strictly governed by statute, rule and overriding constitutional principles.” State v. Gaines, 770 So.2d 1221, 1227 n. 8 (Fla.2000). The State’s right to appeal in criminal cases should be construed narrowly. Id.

The record indicates that the trial judge orally dismissed the case after the State indicated it would not go forward with jury selection. While the State may have been able to appeal from this order under rule 9.140(c)(1)(A), our disposition of such an appeal would turn on the propriety of the dismissal rather than the propriety of the suppression order. We decline to treat the two rulings as one. See Gaines, 770 So.2d at 1224 (“The fact that the order granting the motion to suppress was contained in the same written order as the order of dismissal does not convert the trial court’s ruling on the motion to suppress into an independent final order that is immediately appealable.”).

Accordingly, this appeal is dismissed for lack of jurisdiction.

WHATLEY and STRINGER, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Jerry Rollins OGLESBY, Appellant, v. DEPARTMENT OF REVENUE; Mensh & MacIntosh, P.A.; Tracey Arnold-Hitchcock; Thomas J. Walsh; Michael A. Coffee; Joseph J. Navarra; Judge Ralph C. Stoddard; Glenda S. Oglesby; Judge Manuel Menendez, Jr.; and All Judges in the Thirteenth Judicial Circuit, Appellees.
    No. 2D04-3018.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.
    Jerry Rollins Oglesby, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock and Yvette Aeosta-McMillian, Assistant Attorneys General, Tampa, for Appellee Department of Revenue.
    Jason M. Azzarone, Marlene S. Reiss, and Stephens Lynn Klein of Stephens, Lynn, Klein, LaCava, Hoffman & Puya, P.A., Tampa, for Appellees Mensh & Macintosh, P.A.; Tracey Arnold-Hitchcock; and Thomas J. Walsh.
    No appearance for Appellees Michael A. Coffee; Joseph J. Navarra; Judge Ralph C. Stoddard; Glenda S. Oglesby; Judge Manuel Menendez, Jr.; and All Judges in the Thirteenth Judicial Circuit.
   ALTENBERND, Judge.

Jerry Rollins Oglesby appeals a final order dismissing his complaint for failure to prosecute. We reverse because the record does not contain a motion to dismiss for failure to prosecute that would permit dismissal in light of Mr. Oglesby’s November 14, 2004, record activity. See Wilson v. Salamon, 923 So.2d 363 (Fla.2005).

A dismissal for failure to prosecute is proper when the face of the record reflects a period of inactivity of one year. See Fla. R. Civ. P. 1.420(c) (2004 ed.). This one-year period is determined by calculating the time between the date of the filing of the last record activity and the date of the filing of the motion to dismiss for failure to prosecute. See Togo’s Eatery of Fla., Inc. v. Frohlich, 526 So.2d 999, 1001 (Fla. 1st DCA 1988).

The trial court dismissed Mr. Oglesby’s case because it concluded there was no record activity for the relevant one-year period. The appellees assert that on November 12, 2003, they mailed their original motion to dismiss for failure to prosecute along with a cover letter directly to the presiding judge, rather than filing it with the clerk of court and sending the judge a courtesy copy. The court clerk’s records do not reflect that the motion was ever received. The appellees concede that the record does not contain this motion and recognize that it was probably misplaced. They have been unable to produce any proof of the filing of this motion. Thus, the appellees are relying on a document that is not in the record and cannot be produced by any clerk.

The only motion to dismiss for failure to prosecute filed in the record bears a filing date of November 17, 2003. This motion would not be sufficient to permit dismissal because Mr. Oglesby’s November 14, 2003, motion for default is record activity within the one-year period between November 17, 2002, and November 17, 2003. Salamon, 923 So.2d at 363.

We recognize that this case has been procedurally complicated as a result of its informal transfer from the Thirteenth Judicial Circuit to a judge in the Sixth Judicial Circuit. A review of the record reflects that documents pertaining to this case were filed with the clerks in both Hillsborough and Pasco Counties and that some of the filings even bore incorrect case numbers. However, because the record does not actually contain the one document needed to permit dismissal, we reluctantly reverse. We express no opinion on the merits of this action or the sufficiency of the complaint to state any cause of action.

Reversed and remanded.

WALLACE, J„ and DANAHY, PAUL W., Senior Judge, Concur.

      . We note that Florida Rule of Civil Procedure 1.420(e) was amended on December 15, 2005, effective January 1, 2006, to provide that after ten months of record inactivity, notice may be served on the parties that such a period of inactivity has occurred. Following receipt of this notice, a party has sixty days to conduct record activity in order to preclude dismissal. If the sixty-day period passes with no record activity, the action shall be dismissed absent the showing of good cause. In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176 (Fla.2005).


author: PER CURIAM. STONE, J.,

text:
    Norma KASDORF, Appellant, v. Ronald KASDORF, Appellee.
    No. 4D05-2934.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.

      Jennifer Labbe of the Labbe Law Firm, P.A., West Palm Beach, for appellant.
    Ronald Kasdorf, Lake Worth, pro se.
   PER CURIAM.

The wife appeals a final judgment of dissolution awarding primary residential custody and the ultimate decision making authority concerning medical/dental decisions to the husband. Each side sought primary residential custody. There is record support for the award of primary residential custody to the husband. There was competent, substantial evidence to support the trial court finding that the wife, if awarded primary residential custody, would seek to sabotage the husband’s visitation with the children, was not completely truthful to the doctor who performed a custody evaluation in describing her conduct and relationship with the children, and lacked the inclination to foster a loving relationship between the father and the children. Therefore, the court did not abuse its discretion in applying these findings to the statutory factors of section 61.13, Florida Statutes.

The wife raises an issue for the first time on appeal that the husband did not specifically plead to have the ultimate decision making authority over the children’s medical and dental decisions. Nevertheless, the record supports the trial court’s decision that “due to the acrimony between the parties primarily caused by the wife and her unnecessarily taking the children to doctors for medical treatment, the husband shall have ultimate decision making authority concerning medical/dental decisions regarding both children.”

Section 61.13, Florida Statutes, provides:

In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

§ 61.13(2)(b)2.a., Fla. Stat.

We deem the cross-petitions for primary residential parenting, coupled with support for the decision in evidence, to be sufficient notice that the medical/dental decisions would be at issue. We cannot conclude on this record that there was either an abuse of discretion in awarding primary residential custody, or in giving the husband ultimate decision making medical/dental decisions. Therefore, the final judgment is affirmed.

POLEN and FARMER, JJ., concur.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I dissent as to the provision awarding sole responsibility concerning medical/dental decision on the authority of McKeever v. McKeever, 792 So.2d 1234 (Fla. 4th DCA 2001).