author: SILBERMAN, Judge.

text:
    Teri HOLLISTER, Appellant/Cross-Appellee, v. Mark A. HOLLISTER, Appellee/Cross-Appellant.
    Nos. 2D04-2803, 2D05-4834.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.

      Theodore J. Rechel of Rechel & Harri-man, P.A., Tampa, for Appellant/Cross-Appellee.
    James R. Schaffer of James R. Schaffer, P.A., Tampa, for Appellee/Cross-Appel-lant.
   SILBERMAN, Judge.

In these consolidated appeals, Teri Hol-lister (the Wife) appeals the final judgment of dissolution of marriage, arguing that the trial court erred in the equitable distribution and award of alimony in case number 2D04-2803. In case number 2D05-4834, the Wife appeals the order denying her motion for enlargement of time and amended motion for attorney’s fees. On cross-appeal in case number 2D05-4834, Mark A. Hollister (the Husband) contends that the trial court erred in granting the Wife’s motion for rehearing on attorney’s fees. We reverse the final judgment of dissolution of marriage with respect to the equitable distribution and alimony provisions. We strike the order granting the Wife’s motion for rehearing on attorney’s fees because the trial court lacked jurisdiction at the time it entered that order. We reverse the original order denying fees and remand for further proceedings on the Wife’s request for fees.

The parties had been married for twenty-two years when the Husband filed a petition for dissolution of marriage on June 6, 2003. The parties have two children who have attained the age of majority since entry of the final judgment. The parties raise no issues with respect to the provisions of the final judgment that relate to the children, and we affirm those portions of the final judgment. However, based on numerous errors in the final judgment, as detailed below, we reverse the equitable distribution and alimony components of the final judgment and remand for further proceedings.

At a hearing on October 23, 2003, Judge Timmerman ordered the Husband to pay $5750 per month in temporary alimony. The case went to trial in February 2004 before Judge Gomez. The parties stipulated to the value and distribution of many of their assets and liabilities. The Husband agreed that the Wife was entitled to permanent periodic alimony but disputed the amount.

At the time of trial, the Husband was fifty-two years old, had a college degree, and was employed as a regional vice president for Nortrax, Inc., earning an income of $221,000 per year. The Husband receives a car allowance of $1000 per month, and for 2003 he received a net bonus of approximately $25,000. • The Husband has been employed with Nortrax since 1999, and the only other bonus he received was in 2001. He characterized the 2001 bonus as a “stay” bonus to encourage him to remain with the company.

At the time of trial, the Wife was forty-seven years old, had a high school diploma, and had worked outside the home only intermittently during the marriage. Based on the parties’ agreement, the Wife had managed the household and cared for the parties’ children. Early in the marriage she had worked as an administrative assistant. Her last part-time employment was in 1995 as a pharmaceutical representative. Her highest annual salary was $26,000, but she did not earn that amount because she did not remain in that position the full year. After moving to Tampa in 1987, the most she had earned in any one year was $13,536.

I. EQUITABLE DISTRIBUTION

Failure to equitably distribute the parties’ assets and liabilities

Decisions regarding equitable distribution are subject to an abuse of discretion standard of review. Augoshe v. Lehman, 962 So.2d 398 (Fla. 2d DCA 2007); Pomeranz v. Pomeranz, 901 So.2d 895, 896 (Fla. 4th DCA 2005). Section 61.075, Florida Statutes (2003), requires the trial court to equitably distribute the parties’ marital assets and liabilities. Here, the trial court listed and valued assets and liabilities in the final judgment but failed to distribute them. The parties pointed this out to the trial court in their motions for rehearing, but, inexplicably, the trial court denied the motions. The judgment recognizes that the parties agreed to the values of the majority of the assets. Neither party sought an unequal distribution, as evidenced by their proposed equitable distribution worksheets. However, their worksheets distribute the assets and liabilities somewhat differently.

The trial court abused its discretion in failing to equitably distribute the parties’ assets. Thus, we remand and direct the trial court to effect an equal equitable distribution, subject to any specific issues discussed below.

Stock Appreciation Rights

The Wife takes issue with the trial court’s finding that the Husband’s stock appreciation rights (SARs) with his employer have no marital value. Further, the Wife contends that the trial court should have imposed a constructive trust in the Wife’s favor on one-half of the Husband’s vested but unvalued SARs.

The Husband began working for Nor-trax in November 1999. In 2000 or 2001, Nortrax granted to the Husband 46,667 SARs with a base equity value of $10 per share. The SARs plan documents reflect that the Husband agreed to the replacement of the “old SARs” with 50,000 “new SARs” having a base equity value of $6.81 per share. A letter dated March 1, 2003, from the Nortrax Board of Directors reflects that the new SARs were “100% vested as of this writing.” The SARs plan documents indicate that the original grant date of the new SARs was January 18, 2002, and at that time 70% of the SARs were vested. The remaining 30% vested on December 1, 2002. Thus, the record reflects that the Husband’s SARs were fully vested before he filed the petition for dissolution on June 6, 2003.

The Husband testified that he is not entitled to the base equity value of the SARs but only the amount of any appreciation above the base equity value. At the time of trial, the Nortrax Board of Directors had not determined the value of the SARs and had no obligation to do so until January 18, 2006. After that date, the Husband could elect to redeem up to 20% of his SARs, and at that time the Board would be obligated to determine the equity value of the Nortrax stock. The Husband contended that any appreciation would be due to his future performance and thus would be nonmarital. The trial court found that the SARs “have no marital value” because any appreciation would be based on the company’s future performance.

A court presumes that an asset is marital when a spouse acquires the asset after the date of the marriage and the asset has not specifically been established as non-marital. § 61.075(7), Fla. Stat. (2003). The cut-off date for determining marital assets, unless the parties enter into a valid separation agreement, is the date the petition was filed. § 61.075(6). Section 61.075(5)(a)(4) defines marital assets to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs[.]” The SARs were fully vested before the petition for dissolution was filed and should have been designated as a marital asset. See Parry v. Parry, 933 So.2d 9, 13 (Fla. 2d DCA 2006) (stating that the trial court properly treated vested stock options as marital assets and included them in the equitable distribution scheme).

Although the Husband argues that the appreciation is based on future performance, to the extent that any appreciation is for performance before the petition for dissolution was filed on June 6, 2003, then that amount should be valued as a marital asset for purposes of equitable distribution. See Parry, 933 So.2d at 13 (stating that “an award given as an incentive for future service would be marital only to the extent that the service is thereafter performed before the end of the marriage”). The trial court essentially found that the SARs were not a marital asset in finding that they had no marital value. Although we recognize the problem in being unable to value the SARs, that does not preclude the court from identifying them as marital assets and accounting for them as part of the equitable distribution. Thus, we reverse and rémand for the trial court to identify the SARs as a marital asset.' As the Wife suggests, we direct the trial court to impose a constructive trust on one-half of the SARs, as in Jensen v. Jensen, 824 So.2d 315, 321 (Fla. 1st DCA 2002) (recognizing that a constructive trust is a deferred distribution method and that “[t]he deferred distribution approach for a stock option that cannot be valued as of yet is the only prudent and plausible approach to adopt”). We note that Jensen dealt with unvested stock options, but like the unvest-ed stock options in Jensen, the Nortrax SARs were not capable of being valued at the time of trial. Thus, on remand the trial court shall impose a constructive trust for the Wife’s benefit on one-half of the SARs until their marital value can be determined.

Overdraft Protection Account

The Wife contends that the trial court abused its discretion in failing to value a liability, an overdraft protection account, as of the date it was closed on July 23, 2003, at a balance of $12,164.16. Rather, the trial court valued the account as of June 3, 2003, the date of filing the petition, at a balance of $6038.86. This issue is interrelated with the issue of retroactive alimony. The court stated that the $6038.86 liability “should be included in equitable distribution” and that “[t]he amount shall be considered retroactive alimony.” The court, however, did not order the Husband to pay the liability.

The parties’ joint checking account was connected to their Suntrust MasterCard (the overdraft protection account). The overdraft protection account is in the Wife’s name alone. After the parties separated in April 2003, the Husband continued to have his paycheck deposited into the joint checking account, and the Wife paid all the household expenses from that account and also paid the Husband’s bills for his separate residence from that account. The Husband stopped depositing his paycheck in the joint account on June 6, 2003, but the Wife continued to pay her household expenses and the Husband’s rent and utilities from the account. The Wife also made an $1800 payment from the joint account to the Husband’s attorney on an unrelated matter. She testified that the Husband also accessed the joint account by ATM for cash withdrawals. The Wife’s accountant prepared an analysis of the joint checking account and the flow-through to the overdraft protection account that was admitted into evidence. The accountant testified that the Wife was writing checks for normal operating expenses and that the only extraordinary amount was $1000 for a septic problem.

The Husband closed the joint checking account on July 23, 2003. The resulting balance in the overdraft account was $12,164.16. The accountant’s analysis and testimony reflects that during the time period from June 1, 2003, through July 23, 2003, the Husband deposited $15,742.78 into the joint checking account. The analysis and testimony also reflects that “$22,-300 was advanced to the marital account” during that time period.

The trial court found as follows:

The Wife did not provide a sufficient explanation for additional spending in excess of $21,000.00 during the same period. The Court will note that the money the Husband paid was approximately $4,000.00 in excess of the temporary support subsequently awarded. Accordingly, the Court shall value this liability at $6,038.86. This amount should be included in equitable distribution. The amount shall be considered retroactive alimony.

The Wife, relying upon Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991), contends that because she used the overdraft account to pay her expenses and the Husband’s separate expenses (such as rent, utilities, and an attorney), the liability should be valued at the later date and the Husband should be required to pay it. The Husband contends that he paid the Wife $15,742.78 for support during this time period. The court found that the Wife did not provide a sufficient explanation for additional spending in excess of $21,000 during this time period. It may be that the trial court felt that the Wife was living beyond the parties’ means; however, this does not seem to account for the fact that the Wife paid the Husband’s expenses from the account and that the Husband accessed the ATM associated with that account.

The trial court found that the liability, which is titled solely in the Wife’s name and which the court valued at $6038.86, would be retroactive alimony but did not order the Husband to pay the liability. On appeal, the Wife suggests that perhaps the trial court meant to award the difference between the $12,164.16 debt as of July 2003 and the $6038.86 debt as of June 2003 as retroactive alimony and order the Husband to pay the difference. All we can discern is that the trial court failed to equitably distribute this liability and it is unclear how the court meant it to serve as retroactive alimony. Thus, we reverse the trial court’s determination on this issue and direct the trial court to reconsider it on remand and make sufficient findings that would allow meaningful review.

The Husband’s 2003 Bonus

The Wife contends that the trial court abused its discretion in failing to equitably distribute the Husband’s bonus received for work done in 2003 or, in the alternative, to consider it as income in determining the Husband’s ability to pay alimony. The trial court did not abuse its discretion in not including the Husband’s 2003 bonus as income because the Husband’s testimony supports the conclusion that the bonus was not regular and continuing. See Vergara v. Vergara, 831 So.2d 251, 252 (Fla. 3d DCA 2002). However, on remand the trial court should include a portion of the bonus in the equitable distribution.

The Husband received an approximately $25,000 net bonus shortly before the final hearing in February 2004 for work done in 2003. Almost half of the bonus was earned by the Husband’s marital effort before he filed the petition for dissolution of marriage in June 2003. However, the husband testified that he spent a substantial portion of the bonus for living expenses, such as furnishing his apartment and paying his attorney. The Husband testified that approximately $2000 of the bonus remained in his checking account at the time of the final hearing. In Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005), the trial court had included in the equitable distribution the value of two IRA accounts that the husband had liquidated during the course of the dissolution proceedings in order to “pay for his support, living expenses, and some litigation costs.” This court determined that the trial court erred by including “depleted marital assets in the equitable distribution scheme because the Husband used this sum during the pendency of the dissolution proceedings, and no misconduct was asserted.” Id. Thus, we direct the trial court on remand to include 5/12 of the net bonus remaining at the time of the final hearing as a marital asset and to equitably distribute it.

II. ALIMONY

The Wife’s Imputed Income

The trial court imputed income to the Wife of $2167 per month, but the record contains no competent, substantial evidence to support this amount. The Wife, a high school graduate, held her'last part-time employment in 1995. For the first five years of the marriage she worked as an administrative assistant, and her highest annual salary would have been $26,000 in the mid-1980s, but she only worked for four months in that position before moving. No evidence was presented as to available jobs or prevailing earnings in the community. The Wife, however, admitted that she could obtain a job and earn $24,000 annually in an entry level position. In fact, her accountant’s alimony calculations assumed that beginning in year two, the Wife would earn $2000 per month. Based on the Wife’s admission that she could earn this amount, the trial court could have imputed $2000 per month. Thus, we reverse and direct the trial court that it may impute no more than $2000 per month.

The Wife also argues that if income is imputed, she is entitled to rehabilitative or bridge-the-gap alimony until she becomes employed. See Bacon v. Bacon, 819 So.2d 950, 953 (Fla. 4th DCA 2002) (recognizing that the trial court assumed that the wife could be employed immediately and stating that “the court should have awarded sufficient alimony to cover the wife’s total present need until such time as the wife is able to find reasonable employment, at which time modification might be in order”). We agree that on remand the trial court should award alimony to meet the wife’s total present need and consider rehabilitative or bridge-the-gap alimony depending upon the circumstances that exist upon remand. We note that due to the passage of time since trial, the Wife may have already found employment. If she has, the trial court should, of course, take that into consideration when making the alimony award.

Tax Consequences to the Wife

With respect to permanent, periodic alimony, the trial court found in the final judgment

that the Wife’s monthly needs are approximately $7,800.00. The Court notes that utilizing the Husband’s alimony scenario of the Wife earning $2,167.00 per month and Husband paying $5,633.00 per month in alimony provides the Wife with a monthly income, after taxes which would fully meet the Wife’s standard of living as stated herein.

If $7800 is the figure the trial court intended for the Wife’s net need per month, then the Wife is correct that the trial court failed to take into account the tax consequences to provide enough to meet her net needs.

The Husband argues that the $7800 figure is a mathematical error because the trial court tracked the Husband’s argument presented in his summary of issues that outlined several areas where the Wife’s accountant overstated her needs. In the judgment the court noted areas in which the accountant stated expenses that the Wife does not have and expenses that were in excess of what the Wife testified to and listed on her financial affidavit. The Husband contends that the trial court overstated the Wife’s needs by $2000 and should have stated that her needs were $5800 per month rather than $7800 per month. We cannot make that assumption.

The Wife’s accountant presented detailed alimony calculations, including tax consequences. He testified that the Wife’s net standard of living was $10,361.35 per month. Thus, if the $7800 figure used by the trial court is for the Wife’s net need, it appears that the trial court already deducted over $2000 from what the accountant testified to as the Wife’s standard of living. In any event, it is unclear from the final judgment what the trial court intended. Therefore, we reverse and remand the alimony determination for the trial court to clarify its finding on the Wife’s needs, including consideration of tax consequences. See Sharon v. Sharon, 862 So.2d 789, 791 (Fla. 2d DCA 2003) (“When evidence of the tax impact of an alimony award is presented, it is error for the trial court to fail to consider these consequences.”).

Retroactive Alimony

The Wife contends that the trial court abused its discretion in failing to award her retroactive alimony, other than the $6000 overdraft protection account debt that the trial court declared as retroactive alimony. The Husband counters that the Wife is not entitled to retroactive alimony. The divergent viewpoints appear to be at least partly based on the fact that the parties dispute the amount necessary to meet the Wife’s needs. The Wife makes her argument based on a net need of $7800 per month, while the Husband makes his argument based on a net need of $5800 per month.

Because we are reversing and remanding for the trial court to clarify the Wife’s net need for the purposes of determining permanent, periodic alimony, we reverse the trial court’s determination on retroactive alimony. On remand, the trial court shall reconsider retroactive alimony once it clarifies the Wife’s net need and shall make adequate findings that allow meaningful appellate review.

The Husband’s Income

The Wife contends that the trial court abused its discretion in determining the Husband’s income by not including the Husband’s 2003 bonus, a portion of the Husband’s car allowance, and $8000 the Husband earned from a “side deal selling equipment.” As stated above with respect to the bonus, the evidence did not reflect that the bonus was regular or continuing in nature. See Vergara v. Vergara, 831 So.2d 251, 252 (Fla. 3d DCA 2002). Similarly, although the Husband had on occasion earned money from equipment sales, the evidence supports the conclusion that these sales are not regular and continuing. See id. Thus, the trial court properly did not include those items in the Husband’s income.

With respect to the Husband’s $1000 per month car allowance, the Husband admits that he uses the vehicle for personal use 20% of the time. The Wife’s accountant testified that if the vehicle is used 20% for personal use, then $200 should be reflected as income. The Husband contends that this error is harmless because his income was more than enough to meet his Wife’s needs. Because we are reversing and remanding on other issues, we direct the trial court on remand to include 20% of the car allowance as income in determining the Husband’s ability to pay.

III. ATTORNEY’S FEES

The trial court did not have jurisdiction to enter the order on rehearing that the Husband is contesting on cross-appeal in case number 2D05-4834. That order, rendered on October 25, 2005, grants the Wife’s motion for rehearing and orders the parties to attend mediation on the issue of the Wife’s request for attorney’s fees. On February 24, 2005, the Wife had filed a third motion to supplement the record in the appeal of the final judgment in case number 2D04-2803. This court, in an order entered on September 26, 2005, treated the motion to supplement as a timely notice of appeal of the order rendered April 22, 2005, denying the Wife’s motion for enlargement of time and amended motion for attorney’s fees, which became appellate case number 2D05-4834. Thus, when the trial court heard the motion for rehearing on October 17, 2005, and rendered the order granting rehearing on October 25, 2005, the appeal of the April 22, 2005 order was pending. Because the appeal of the April 2005 attorney’s fees order was pending, the trial court lacked jurisdiction to rule on the motion for rehearing; therefore, we strike the October 2005 order. See Farr v. Farr, 840 So.2d 1166, 1167 (Fla. 2d DCA 2003) (determining that the wife’s motion for rehearing was abandoned by the wife filing a notice of appeal and that the trial court lacked jurisdiction to rule on the motion ■ for rehearing after the wife filed her notice of appeal).

In its April 22, 2005, order, the trial court denied the Wife’s amended motion for fees. The court concluded that the motion was not timely, relying on Florida Rule of Civil Procedure 1.525. However, effective March 3, 2005, the Florida Supreme Court promulgated Florida Rule of Family Law Procedure 12.525, which states that rule 1.525 does not apply in family law cases. See Montello v. Montello, 961 So.2d 257 (Fla.2007). In Montello, the supreme court held that rule 12.525 applies to all cases that were pending when the rule was enacted. Because this case was pending when rule 12.525 was enacted, we reverse the original order denying fees and remand the fee issue to the trial court for further consideration. We note that in the order on rehearing, the trial court sought to vacate the original order, consistent with rulé 12.525. Because we are compelled to vacate the order on rehearing as discussed above, on remand the trial court may again order the parties to attempt to mediate the fee issue and may take such other action as may be necessary to resolve the issue.

IY. CONCLUSION

For the foregoing reasons, we affirm the final judgment of dissolution of marriage in part and reverse in part. On remand, the trial court must reconsider the alimony award and the equitable distribution of assets and liabilities. We reverse the original fee order of April 2005 and remand for further proceedings. We strike the October 2005 rehearing order on fees.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, C.J., and LaROSE, J., Concur.

      . The Wife did not file a notice of appeal from this order denying fees; rather, this court treated the Wife’s third motion to supplement the record in case number 2D04-2803 as a notice of appeal from the order denying fees.

      . The net increase in the overdraft account was $11,663 between the beginning of June 2003 and the closing of the account. At the beginning of June the account had a balance of $500.59, and when it was closed at the end of July, it had a balance of $12,164.16.

      . We acknowledge that normally when a party files a notice of appeal any pending motion for rehearing that the appealing party had previously filed is deemed abandoned. See Fla. R. App. P. 9.020(h)(3). Under the peculiar facts of this case, however, the Wife never filed a notice of appeal regarding the order denying fees. Rather, this court considered a motion in a separate appeal as her notice of appeal. Thus, we do not consider the Wife to have abandoned her motion for rehearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Loren SPAULDING, Appellant, v. STATE of Florida, Appellee. Ann Marie Rottinghaus, Appellant v. State of Florida.
    Nos. 4D07-2076, 4D07-2313.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Loren Spaulding, Jasper, pro se.
    J. Peyton Quarles of Zimmet & Quarles, P.L., Daytona Beach, for Appellant-Ann Marie Rottinghaus.
    No appearance required for appellee.
   PER CURIAM.

Loren Robert Spaulding and co-defendant below, Ann Rottinghaus, filed nearly identical petitions for writ of habeas corpus in the trial court. For purposes of this opinion, we have consolidated their appeals from the trial court’s orders denying their petitions.

Although we recognize that the trial court should have addressed the merits of the petitions, which alleged a lack of trial court jurisdiction, we affirm because jurisdiction appears on the face of the record. See Gunn v. State, 947 So.2d 551 (Fla. 4th DCA 2006) (agreeing with Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005), that “a trial court should review the merits of a postconviction motion, even if untimely, which raises a jurisdictional issue that was not previously considered on the merits”).

Rottinghaus and Spaulding were convicted of violating Florida’s RICO statute and prosecuted in St. Lucie County, Florida. Rottinghaus and Spaulding, along with several others, engaged in a criminal enterprise involving the fabrication and cashing of fraudulent checks at stores in multiple counties in Florida.

The petitions at issue argued that the St. Lucie County circuit court lacked jurisdiction over the RICO offense because the information was filed by the assistant state attorney for that judicial circuit. The petitions allege that only the statewide prosecutor had authority to file the charges because the acts constituting the pattern of racketeering activity were alleged to have been committed in multiple counties (in addition to St. Lucie County) and involved multiple judicial circuits.

Spaulding has unsuccessfully raised this exact same claim in three prior proceedings, in a rule 3.800 motion, a rule 3.850 motion, and an ineffective assistance of appellate counsel petition.-

We write to reject these claims once and for all and to caution the appellants that continued filing of repetitive claims will result in this court no longer accepting their pro se filings and other sanctions. State v. Spencer, 751.So.2d 47 (Fla.1999); § 944.279, Fla. Stat. (2006). See Svoboda v. State, 932 So.2d 545 (Fla. 5th DCA 2006).

The appellants allege that the statewide prosecutor has exclusive jurisdiction to prosecute offenses that are committed in more than one county. Here, because the fraudulent checks were cashed in numerous counties, in addition to St. Lucie County, the pair argues that only the statewide prosecutor could file charges against them. They allege that, because the statute of limitations on the offense has run, they must be forever discharged for their crimes.

Appellants cite cases that do not stand for what they allege and rely on the Florida Constitution’s provision creating the position of the statewide prosecutor. That provision, however, expressly states that the statewide prosecutor “shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws ...” Art. IV, § 4(b), Fla. Const, (emphasis added); see also § 16.56(l)(a)3, Fla. Stat. (2000) (setting out the authority of the Office of the Statewide Prosecutor (OSP) and providing that the OSP “may” prosecute RICO violations).

While the statewide prosecutor can file charges only if the criminal violation occurred in two or more judicial circuits as part of a related transaction, this does not give the statewide prosecutor exclusive jurisdiction to prosecute continuing offenses that span multiple counties. See Winter v. State, 781 So.2d 1111 (Fla. 1st DCA 2001) (holding that OSP has authority to prosecute crimes only if they involve two or more judicial circuits and are either part of a related transaction or part of an organized conspiracy) see also Snyder v. State, 715 So.2d 367 (Fla. 5th DCA 1998).

Here, the statewide prosecutor had jurisdiction to file the RICO charges against the appellants, but the State Attorney for the Nineteenth Judicial Circuit had concurrent jurisdiction to file the charges as well. The appellants were alleged to have committed numerous acts in St. Lucie County which constituted a pattern of racketeering activity. The trial court clearly had jurisdiction. In addition, the pair lived, and Rottinghaus was arrested, in St. Lucie County. When Rottinghaus was arrested, police found fraudulent checks, as well as a computer used for fabricating the checks and various forms of fraudulent identification, in her St. Lucie County residence.

In addition to this claim, Rottinghaus’ petition raised a second claim that the information insufficiently charged the crime because it lacked the “pattern element.” Rottinghaus previously raised this claim in a prior habeas corpus petition in this court, 4D05-2023, that was denied on the merits. This successive claim is without merit and was properly denied.

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Antonio RUAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-902.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.

      Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Antonio Ruan appeals the summary denial of his rule 3.850 motion for postconviction relief. In his motion, he raised two grounds for relief. Appellant’s second claim contained five sub-claims. We reverse on ground two, sub-claim four, and remand for an evidentiary hearing or for attachment of records which conclusively refute appellant’s allegations.

Appellant was arrested and charged •with burglary of a dwelling and battery. Upon the advice of his attorney, appellant entered a plea of no contest to both charges and was subsequently sentenced to seventy-two months in prison.

In the claim at issue, appellant asserts that his trial attorney failed to share with him the victim’s description of the perpetrator. The victim allegedly described the perpetrator as a “tall black man.” Appellant states that this information was not shared with him before he pleaded no contest. Appellant also alleges that this information was exculpatory and that had he known of this alleged exculpatory information, he would have forgone pleading no contest and elected to go to trial. However, appellant did not give a description of his own accidental characteristics in his postconviction motion. The lower court summarily denied appellant’s claim as legally insufficient for failing to demonstrate deficient performance of counsel. Specifically, the lower court faulted appellant’s failure to provide his own physical description and his failure to explain how the perpetrator’s description is exculpatory.

To demonstrate ineffective assistance of counsel, an appellant must show that his counsel’s performance was deficient and that there is a reasonable probability that counsel’s deficient performance affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show deficiency, a “ ‘claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.’” Hannon v. State, 941 So.2d 1109, 1118 (Fla.2006) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)). An attorney’s obligation to advise a client of information crucial to making an informed decision concerning a plea is just as vital as not providing a client with misinformation concerning a plea. See Brazeail v. State, 821 So.2d 364, 366 (Fla. 1st DCA 2002) (stating that “[t]he law of Florida has long recognized that a plea of guilty or nolo contendere may be vacated when the defendant has entered his plea as a result of mistaken advice by defense counsel as to the consequences of a plea”). Failure to disclose an exculpatory statement from the victim, if true, would undoubtedly demonstrate that counsel was “outside the broad range of reasonably competent performance under prevailing professional standards” as explained in Hannon. 941 So.2d at 1118 (quoting Maxwell ).

A trial court, when it has not conducted an evidentiary hearing, must accept a movant’s factual allegations as true to the extent they are not refuted by the record. Mullins v. State, 850 So.2d 676, 677 (Fla. 4th DCA 2003). Here, appellant’s unrefuted factual allegations are that the victim described the perpetrator as a “tall black man” and that the victim’s description was an exculpatory piece of evidence not communicated to him by his trial attorney prior to ■ entering a plea. Because the lower court was required to accept these allegations as true, it was also required to accept, by reasonable inference, that appellant did not fit the victim’s description of the p'erpetrator. Thus, in this case, appellant’s mere failure to include his own description in his motion was not fatal to his claim.

The other issues raised on appeal are without merit and we affirm the summary denial of appellant’s 3.850 motion on those issues. As for the issue discussed above, we reverse and remand for an evidentiary hearing or for attachment of portions of the record conclusively showing appellant is not entitled to relief.

WARNER, STEVENSON and TAYLOR, JJ., concur.

      . Of course, conclusory arguments are insufficient to state an issue. See McDonald v. State, 952 So.2d 484, 489 (Fla.2006). However, we are not saying that the lower court must accept the legal conclusion that the victim's identification is actually exculpatory. What is important here is that the information withheld was reasonably and potentially exculpatory in the eyes of appellant.

      . We emphasize that in his motion, appellant did not merely state that his attorney failed to communicate to him exculpatory information. A simple claim that one’s attorney failed to provide exculpatory information, without more, would not have been enough to state a sufficient claim. See Szymanowski v. State, 771 So.2d 10, 11 (Fla. 4th DCA 2000) (stating that appellant’s ineffective assistance of counsel claim failed because appellant did not indicate what erroneous information he received from counsel which affected his decision to accept a plea). Here, appellant alleged not only that his attorney failed to share with him exculpatory evidence, but also stated the specific character of the exculpatory evidence.


text:
    Tavorris TUMBLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2314.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.

      Tavorris Tumblin, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tavorris Tumblin appeals the denial of his rule 3.800(a) motion to correct an illegal sentence. We reverse, holding that these convictions do not qualify him for sentencing under the prison releasee reof-fender statute.

Following a jury trial, Tumblin was found guilty of burglary of a dwelling with an assault or battery, and he was sentenced to life in prison as a Prison Releas-ee Reoffender. In his 3.800(a) motion, he argued that his PRR sentence is illegal based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and State v. Overfelt, 457 So.2d 1385 (Fla.1984), because the facts required to support the enhanced sentence were not submitted to the jury. The jury did not make a specific finding that the dwelling was occupied. Tumblin’s offense was committed before the PRR statute was amended in response to State v. Huggins, 802 So.2d 276 (Fla.2001), to include burglary of an unoccupied dwelling.

The trial court denied the motion concluding that the jury did not need to find that the place burglarized was an occupied dwelling because the PRR statute applies to “any defendant who commits, or attempts to commit ... [a]ny felony that involves the use or threat of physical force or violence against an individual.” See § 775.082(9)(a)l.o., Fla. Stat. (2000).

Contrary to the trial court’s reasoning, burglary with an assault or battery does not constitute a “forcible felony” that would qualify Tumblin for a PRR sentence. See State v. Hearns, 961 So.2d 211 (Fla.2007); Paul v. State, 958 So.2d 1135 (Fla. 4th DCA 2007). In determining whether an offense is a forcible felony under the Violent Career Criminal and PRR statutes, the statutory elements of the offense must include the threat or use of physical force or violence. Hearns, 961 So.2d at 213-17. The particular circumstances of the case are irrelevant.

The issue in Hearns was whether battery on a law enforcement officer is a forcible felony under the VCC statute. The supreme court concluded that it was not a forcible felony because the statutory elements do not necessarily include a threat of physical force or violence. The offense could be committed by an unlawful touching, “nominal contact.” Id. at 219.

In this case, the jury found Tumblin guilty of burglary with an assault or battery as charged in the information. Like battery on a law enforcement officer in Hearns, the offense could be committed by an unlawful touching during a burglary and does not necessarily include the threat or use of physical force or violence. Based on Hearns, Tumblin could not be sentenced as a PRR under section 775.082(9)(a)l.o, Florida Statutes (2000).

On appeal, the state agrees that Tumblin does not qualify for PRR sentencing. However, the state suggests that a new sentencing hearing is not required and that the case should simply be remanded for the trial court to vacate the PRR portion of the sentence.

We agree with Tumblin that he is entitled to a full resentencing hearing. See Hearns, 961 So.2d at 219 (approving the Third District’s reversal of Hearns’s VCC sentence in Hearns v. State, 912 So.2d 377 (Fla. 3d DCA 2005)). After concluding that Hearns did not qualify as a violent career criminal, the Third District held that he was entitled to a full resentencing hearing; see also Ross v. State, 901 So.2d 252 (Fla. 4th DCA 2005) (granting a petition for writ of habeas corpus and remanding for resentencing because the defendant did not qualify for PRR sentencing). By finding that he qualified as a PRR at the original sentencing hearing, the trial court had no discretion and was required to sentence him to a mandatory term of life in prison. Although Tumblin still qualifies for a life sentence, on remand, the trial court may exercise its discretion in sentencing him.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    William PONTIUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1844.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    William Pontius, Polk City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a rule 3.800(a) motion that alleges where in the record the information regarding jail time can be located and explains how the record demonstrates entitlement to relief. See Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

GUNTHER, STONE and MAY, JJ., concur.


text:
    Lou JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-991.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    David S. Molansky, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Lou Joseph (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief, and the order denying his motion for rehearing. We affirm, but write to address his first two grounds for relief.

Defendant was charged with (I) burglary of a dwelling while armed; and (II) shooting into a dwelling house. Following a jury trial, he was found guilty of the lesser-included offense of burglary of a dwelling as to count I and acquitted of count II.

Defendant alleged in his postconviction motion that his trial counsel was ineffective for failing to (1) file a motion, after the jury acquitted him of count II, to challenge his conviction of count I, such as a motion in arrest of judgment, based on the contention that the state had failed to prove the intent element necessary to convict him of burglary of a dwelling; and (2) object to a jury instruction which omitted to charge the jury that the underlying felony that formed the intent element was discharging a firearm into a dwelling.

Defendant’s first two grounds are based on his contention that count I of the charging information alleged that shooting into the dwelling-the offense charged in count II-was the specific offense which he had the intention of committing when he entered. On the contrary, while the information in count I alleged that he discharged a firearm while committing the burglary, it did not charge that he entered with the intention of committing that spe-cifíc offense.

There is no requirement that the state allege and prove that entry was made with the intent to commit a specific offense; however, even when it does so allege, so long as it also charges and proves “the essential element of intent to commit an offense,” the specific allegation is considered surplusage. See Toole v. State, 472 So.2d 1174, 1175 (Fla.1985). Thus, the fact that Defendant’s jury acquitted him of count II, committing the shooting offense, did not mean the state failed to prove the intent element of count I, so long as it proved he entered with the intention of committing some offense. See Duncan v. State, 606 So.2d 1227 (Fla. 4th DCA 1992) (affirming conviction for attempted burglary of dwelling; prosecution need not specify in the charging document the specific offense intended by the perpetrator, and “proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense”) (quoting § 810.07(1), Fla. Stat.), rev. denied, 618 So.2d 1367 (Fla.1993).

Nor must the judge instruct the jury on the underlying offense which the defendant intended to commit, Giangrasso v. State, 793 So.2d 71, 73 (Fla. 4th DCA 2001), though the standard jury instruction is phrased to provide for doing so. “In many instances, the state does not know the exact offense intended by the defendant. In that case, absent section 810.07, the state could not take the case to a jury in the face of the Standard Jury Instruction.” Duncan, 606 So.2d at 1229.

Affirmed.

WARNER, POLEN and HAZOURI, JJ., concur.

      . It charged that he:
      did unlawfully, enter or remain in a dwelling, or the curtilage thereof, ... property of Charmaine Dawkins, with intent to commit an offense therein, and in the course thereof they were armed within such dwelling with a dangerous weapon, to-wit: a handgun/firearm, and in fact, Lou Joseph [Defendant] did discharge said firearm during the course of committing said Burglary and as a result of said discharge, great bodily harm was inflicted upon Luc Patrick ALEX-ANDRE, contrary to F.S. 810.02(1), F.S. 810.02(2) and F.S. 775.087(2)[.]
      (Emphasis added).

      . As for Defendant's contention that his alleged entry was anything but stealthy, we point out that gaming entry by deceit also supports a burglary conviction. Schrack v. State, 793 So.2d 1102 (Fla. 4th DCA 2001).


text:
    Thomas A. WARMUS, Appellant, v. Nancy K. DAILEY, Appellee.
    Nos. 4D07-13, 4D07-14.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Rehearing Denied Oct. 23, 2007.
    Thomas A. Warmus, Pensacola, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. Fla. R.App. P. 9.315(a).

SHAHOOD, C.J., KLEIN and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    Raymond S. HURLEY, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 4D06-4106.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Diane S. Perera and James C. Kellner of Diane S. Perera, P.A., Miami, for appellant.
    Jennifer A. Tschetter, Tallahassee, for appellee.
   HAZOURI, J.

Raymond Hurley appeals from a final order of the Construction Industry Licensing Board. The order granted the Department of Business and Professional Regulation’s motion requesting that the Board find that Hurley had waived his right to dispute the material facts alleged in the Department’s complaint against him by failing to request a formal hearing within twenty-one days after receiving the complaint. Upon finding waiver, the Board also found that Hurley violated various provisions of chapter 489, Florida Statutes, and revoked his general contractor’s license, assessed fines, and ordered restitution.

Because we agree with Hurley that equitable tolling may apply in this case to preclude the Board from finding waiver, we reverse and remand for an evidentiary hearing on the limited issue of whether equitable tolling applies to excuse Hurley’s failure to request a hearing to dispute the material facts alleged in the complaint against him. See Nicks v. Dep’t of Bus. & Prof'l, Etc., 957 So.2d 65, 68 (Fla. 5th DCA 2007); see also Brown v. State, Dep’t of Fin. Servs., 899 So.2d 1246, 1247-48 (Fla. 4th DCA 2005); Avante, Inc. v. Agency for Health Care Admin., 722 So.2d 965, 966 (Fla. 1st DCA 1998). Alternatively, the Board or Department may elect not to afford Hurley a hearing on his equitable tolling claim, and instead accept his factual allegations as true, and afford him a hearing to contest the factual allegations of the administrative complaint. See Nicks, 957 So.2d at 68.

Reversed and Remanded.

KLEIN and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    William Edward HOEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4044.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Carey Haughwout, Public Defender and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

Defendant is serving 4 years of probation for convictions of grand theft. A condition of probation is that he pay restitution of nearly $125,000. Although he undertook to pay $401 monthly on the restitution, he has made only part of a single month’s installment. He is here seeking review of an order finding him in violation of his probation, extending probation from 4 to 10 years and requiring him to pay at least $50 monthly. He argues that the evidence below established beyond any doubt that he had no ability to pay anything. We agree.

The evidence shows this. Defendant is 77 years old. He lost all his assets in a voluntary bankruptcy resulting from his crime. He owns no vehicle. He receives monthly social security benefits of $1467. He lives with his wife and his 48 year-old son (who is incompetent) in a rented, three-bedroom house. His wife happens to receive monthly social security of $500, his son monthly disability benefits of $600.

All of his benefits go to the necessaries of life: rent $1100; electricity $200; water $80; telephone $70; and medicine $40. Obviously his $1467 is not enough itself to pay for these essentials, so he must rely on his wife and son to supply food. In fact they spend the remainder on food, cable television, gas and other incidentals. He indicated that from the family income they might be able to “squeeze out $10 or $20 a month.”

In short the evidence is that the only way he could pay anything is by resorting to his wife’s and son’s benefits. In finding the ability to pay, the trial judge stated that putting “all the numbers together it does seem as though he could have paid something.” In other words, the trial court relied on family benefits to find a basis to pay “something” in restitution.

The State must prove defendant has the present ability to pay restitution before probation can be revoked for a failure to pay. See Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994) (“before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person [e.s.] has ... the ability to pay but has willfully refused to do so.”); see also Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (if probationer willfully refuses to pay or make sufficient bona fide efforts to acquire the resources to pay, court may revoke probation). The trial judge erred in basing ability to pay on the family income. It was not the family members who were sentenced to probation and restitution but him alone. To find that he violated probation, the state was required to prove that he alone has the ability to pay but refuses to do so. The evidence is clear from his income that he cannot even make the necessaries of life, let alone pay restitution.

Reversed.

GUNTHER and MAY, JJ., concur.

      . As time goes by the court may revisit the issue periodically to determine whether there has been any change in his income and ability to pay.


text:
    Lincoln GRANATINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-240.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment of conviction in this case but remand for de novo resen-tencing. At the original sentencing, the trial court believed that appellant was being sentenced for a second-degree felony-punishable by up to fifteen years in prison. He was sentenced to five years in prison followed by ten years of probation. In fact, the crime for which appellant was convicted was a third-degree felony punishable by a maximum of five years in prison. When the error was discovered, the trial court struck the ten-year probationary portion of its split sentence without holding a resentencing hearing. The trial court reversibly erred in failing to hold a de novo resentencing under these circumstances. See Galindez v. State, 955 So.2d 517, 525 (Fla.2007) (Justice Cantero concurring specially and explaining the principle of de novo resentencing). Appellant was entitled to a fair opportunity to be heard at a sentencing hearing where the court and counsel are properly apprised of the degree of the offense to be punished and where defendant is afforded the full panoply of procedural protections. See State v. Scott, 439 So.2d 219, 220 (Fla.1983).

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Darryl THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2492.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Rehearing Denied Oct. 11, 2007.
    Darryl Thomas, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order now before us is affirmed without prejudice to the appellant to file a motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853.


author: SALCINES, Judge.

text:
    James A. WHITTEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5708.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
   SALCINES, Judge.

In this appeal by James Whittey from the summary denial of his motion for post-conviction relief, we affirm the order in all respects. We write only to comment upon the postconviction court’s denial of Mr. Whittey’s motion to extend the time to file his motion for rehearing.

Mr. Whittey’s claims were denied in two orders. The first order partially denied seven of his eight claims as facially insufficient and ordered the State to respond to the remaining claim. After the State’s response, the postconviction court entered a final order, with attachments, denying that claim.

Before the time had run for Mr. Whittey to file a motion for rehearing, he filed a motion asking for an extension of time to file his motion for rehearing. Mr. Whittey contended that he was entitled to another opportunity to frame facially sufficient claims but needed additional time because his access to the law library was limited. He specifically alleged that he is required to schedule law library time “via request slip” and that access is limited because the library’s capacity is twenty-six people for a penal institution housing approximately thirteen hundred inmates. The postcon-viction court denied the motion, citing State v. Boyd, 846 So.2d 458 (Fla.2003), for the proposition that extensions of time can be given if the defendant demonstrates good cause; unfortunately, however, Mr. Whittey did not do so.

Florida Rule of Criminal Procedure 3.050 provides that “[w]hen by these rules ... an act is required or allowed to be done within a specified time, the court for good cause shown may, at any time, in its discretion ... order the period enlarged .... ” The Boyd case addressed this rule in the context of the two-year deadline for filing rule 3.850 motions and concluded that it was designed “only to afford a defendant a short period of e 846 So.2d at xtra time to file the motion where good cause is shown.”460. Good cause is “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not ... hardship on petitioner.” Id. (quoting In re Estate of Goldman, 79 So.2d 846, 848 (Fla.1955)) (emphasis added).

In Daniels v. State, 892 So.2d 526 (Fla. 1st DCA 2004), the First District granted a belated appeal to a petitioner whose timely motion for enlargement of time to move for rehearing was denied more than thirty days after entry of the order denying his motion for postconviction relief. Because of the trial court’s dilatory action, Daniels’ right to pursue his appeal was defeated. The Daniels court observed that the petitioner’s motion for extension of time should have been granted because his reasons for needing additional time stated good cause: the “need to schedule time in the prison library and to obtain the assistance of an inmate law clerk.” Id. at 527. In this case, Mr. Whittey cited Daniels and similarly alleged a need to schedule law library time, but he did not state that he needed the assistance of a law clerk. Furthermore, Mr. Whittey has not lost his appellate rights by virtue of the postconviction court’s denial of his motion.

Under rule 3.050, the postconviction court has discretion to act in matters of this kind, a concept that the Daniels court did not address. Here, the postconviction court concluded that Mr. Whittey was subject to no greater constraints than others filing motions under rule 3.850, that he apparently had adequate time to research his motion in the first place, and that mere hardship does not constitute good cause. Furthermore, although not delineated as a reason for denial by the postconviction court, Mr. Whittey’s allegations were generally factually, not legally, deficient, and he did not indicate how his limited access to the law library affected his ability to restate his claims. Because most of his claims had been denied in an order issued several months prior to the entry of the final order, Mr. Whittey had ample time to consider potential amendments to those claims. Thus, we cannot say that the post-conviction court abused its discretion in denying Mr. Whittey’s motion to extend the time for filing a motion for rehearing.

Affirmed.

NORTHCUTT, C.J. and WALLACE, JJ., Concur.


text:
    Amanda ADAMS, Petitioner, v. STATE of Florida and Ric L. Bradshaw, Palm Beach County Sheriff, Respondents.
    No. 4D07-3738.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2007.
    Carey Haughwout, Public Defender, Daniel Cohen and Robert Fallon, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

The petitioner seeks a writ of habeas corpus. She argues that the trial court improperly denied her bond. We agree and grant the petition.

Petitioner was arrested and charged with driving while her license was revoked. The first appearance magistrate denied petitioner bond for the sole reason that petitioner was on pretrial release in another case. The trial court erred in relying on the violation of conditions of pretrial release in a prior case to categorically deny pretrial release in this case. Newton v. State, 963 So.2d 929 (Fla. 4th DCA 2007); Alexander v. Judd, 930 So.2d 847 (Fla. 2d DCA 2006).

Accordingly, we grant the petition for writ of habeas corpus and quash the order denying bond. The trial court shall hold another bond hearing and consider pretrial release for petitioner in this case. If the state moves for pretrial detention and the statutory requirements are met, the court may order petitioner detained without bond in this case. See § 907.041(4)(c), Fla. Stat. (2007).

SHAHOOD, C.J., STEVENSON and TAYLOR, JJ., concur.


text:
    Willie James JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-682.
    District Court of Appeal of Florida, Fifth District.
    Oct. 2, 2007.
    Willie James Jones, Lake Helen, pro se.
    Bill McCollum. Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

PALMER, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Robert H. REED, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4474.
    District Court of Appeal of Florida, Fifth District.
    Oct. 2, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

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


author: TAYLOR, J. SHAHOOD, C.J., STONE, J.,

text:
    Carolyn J. WRIGHT, Michael Bornstein, Anita Mitchell, Gladys D. Van Otteren and Patricia M. High, Appellants, v. Lois FRANKEL, as mayor of City of West Palm Beach, a municipality of the State of Florida; Isaac Robinson, Jr.; Geraldine Muoio; James Exline; Kimberly Mitchell; and William Moss, as city commissioners of the City of West Palm Beach, a municipality of the State of Florida, and City of West Palm Beach, a municipality of the State of Florida, Appellees.
    Nos. 4D06-3386, 4D06-3697.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Thomas R. Julin and Patricia Acosta of Hunton & Williams LLP, Miami, for appellants.
    Jane Kreusler-Walsh and Rebecca Mer-cier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., Brian B. Joslyn and Richard A. Jarolem of Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, and Claudia M. McKenna, City Attorney, West Palm Beach, for appellees.
   On Motion for Rehearing En Banc

TAYLOR, J.

We withdraw our previously issued opinion and substitute the following in its place.

Appellants are citizens and registered voters of the City of West Palm Beach in Florida. Because appellants disagreed with the City’s decision to relocate the city hall and the city library, they formed a petition committee, which gathered signatures of more than 3,000 electors on initiative petitions for ordinances requiring voter approval for the relocation. When the City refused to place their proposed initiative on the ballot, the Committee sought mandamus relief in circuit court to compel the City to place the initiative on the ballot. The circuit court determined that the doctrine of laches barred the mandamus action. Accordingly, the court quashed the alternative writ of mandamus it had entered earlier and denied the Committee’s motion for summary judgment. Because we conclude that the trial court erred in ruling that laches barred the mandamus action, we reverse.

Background

Beginning in July 2002, the West Palm Beach City Commission passed a series of resolutions for its plans to develop a new City Center. Part of the plan involved relocation of the city hall and the city library to the Clematis Street/Banyan Boulevard corridor. On September 7, 2002, the City passed resolutions determining that the county property on Banyan Boulevard was a suitable location for a new city hall and authorizing an expenditure of $1,138,000 to acquire the land.

From November 2002 until November 2003, the City passed more resolutions, authorizing a request for proposals from developers and permitting the West Palm Beach Community Redevelopment Agency (CRA) to acquire other properties for the development. On November 18 and 24, 2003, the City adopted resolutions authorizing the relocation of the library and city hall from their present sites to the D & D Centre site. Additional resolutions authorized expenditures for City Center development in the amounts of $16,115,400, $17,670,000, $19,490,000, $155,000, and $1,635,000.

On February 3, 2004, the City passed a resolution authorizing a request for proposals to develop, design, and build a new city hall and library on property to become known as the City Center. On October 12, 2004, the CRA passed a resolution for two expenditures for the project, each in the amount of $585,000. The CRA also passed a resolution authorizing its chair to enter into an agreement with Republic Properties Corporation (“Republic”) for designing and developing City Center. On January 3, 2005, the City authorized $2,900,000 in expenditures for the city commons and waterfront construction fund. On March 28, 2005, the CRA passed a resolution amending City Center construction and operation funds, authorizing expenditures in the amounts of $1,188,268 and $650,000. On November 7, 2005, the CRA approved the City Center strategic finance plan and the implementation of said plan.

On March 13, 2006, the CRA passed a resolution authorizing expenditures of $405,000. Also on this date, the CRA passed a resolution authorizing its chairman to contract with Republic to provide for the demolition of the existing site structures. Later, after criminal charges were brought against a city commissioner for his role in securing the contract with Republic, the CRA passed a resolution on June 26, 2006, substituting Catalfumo Management Investments, Inc., as the new developer for the City Center project. Additional resolutions appear in the record relating to the completion of City Center.

On May 16, 2006, the Committee filed two petitions for initiative ordinances. One sought an ordinance regarding relocation of city hall, which provided:

AN ORDINANCE OF THE CITY OF WEST PALM BEACH REQUIRING A REFERENDUM BY THE VOTERS OF THE CITY OF WEST PALM BEACH BEFORE CITY HALL CAN BE RELOCATED TO ANOTHER SITE, PROVIDING FOR REPEAL OF LAWS IN CONFLICT, PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Hall of the City of West Palm Beach and the property upon which it is situated is a valuable asset and resource of the City;
WHEREAS, any decision to relocate the City Hall is a decision that will greatly impact the voters and residents of the City of West Palm Beach;
WHEREAS, the voters of the City of West Palm Beach should decide where their city government should operate and conduct business;
WHEREAS, pursuant to the Florida Constitution, all political power is inherent in the people and the referendum is the essence of the reserved power of the voters of the City of West Palm Beach;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF WEST PALM BEACH, FLORIDA:
Section 1. The recitals contained in the Preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this section.
Section 2. Referendum Vote: The City Hall of the City of West Palm Beach shall not be relocated to another site unless the relocation is first approved upon favorable vote of a majority of the electors of the City of West Palm Beach voting thereon in a referendum election.
Section 3. Repeal of Laws and Conflict: All local laws and Ordinances of the City of West Palm Beach in conflict with any provisions of this Ordinance are hereby repealed.
Section 4. Severability: If any section, paragraph, sentence, clause, phrase, or word of this Ordinance is for any reason held by a Court to be unconstitutional, inoperative or void, such holding shall not affect the remainder of this Ordinance.
Section 5. Effective Date: The provisions of this Ordinance shall become effective either upon approval by the City Commission in accordance with Section 6.06 of the City Charter, or by a favorable vote by a majority of the electors and certification of the election returns pursuant to Section 6.10 of the City Charter.

The Committee also filed a petition for initiative ordinance on the relocation of the city library with almost identical provisions.

On May 22, 2006, the city clerk certified to the City Commission that sufficient signatures were received for the initiative petitions. On June 19, 2006, instead of adopting the ordinances or scheduling a referendum election, the City Commission passed a resolution authorizing the filing of an action in circuit court for declaratory relief regarding the initiative petitions. The resolution stated that the city attorney had “conducted such review and has determined that the Initiative Petitions do not contain ballot questions that may be properly placed on a ballot for consideration by the voters.”

Alternative Writ of Mandamus Proceedings

On June 20, 2006, the Committee filed a complaint in circuit court for issuance of a writ of mandamus to require the City to set an election on the two initiatives. The complaint was based on the City’s failure to either pass the ordinances or submit the ordinances to the electors within the window provided by the charter.

On June 20, 2006, the Committee also filed a motion to issue an alternative writ of mandamus. The memorandum in support of this motion contended that the ordinances concerned legislative, rather than administrative matters, and, thus, were appropriate matters for an ordinance, that the petitions were not submitted in an untimely manner, and that the petitions would not impair the City’s contractual obligations. After hearing argument, the trial court issued the alternative writ on June 29, 2006, and directed the City to hold the election or to show cause why it should not be required to hold the election. The Committee also moved for final summary judgment. In response, the City filed an answer and affirmative defenses and a counterclaim for declaratory relief. It also moved to quash the alternative writ.

At the final hearing held on August 18, 2006, the Committee offered into evidence the relevant City Charter provisions, the petitions and certifications of the signatures as valid and verified, and the resolution of the City Commission refusing either to adopt the ordinances or to submit them to the electorate. The City presented affidavits essentially describing the steps that had already been taken to carry out the relocation of the city hall and library.

After the hearing, the trial court entered an amended order quashing the alternative writ of mandamus and denying the Committee’s motion for summary judgment. The court determined that the writ was barred by the doctrine of laches. It noted that the Committee had delayed challenging the City’s decision to relocate city hall and the library for well over two years, and that the City, having taken substantial steps toward relocating the buildings, would be severely prejudiced by the delay that would be caused by granting the requested relief. The Committee appealed.

Legal Analysis

Article VI of the City’s Charter confers upon the electors. of the City the power of initiative. Section 6.01 of the City Charter provides:

Sec. 6.01. Power of initiative.
The electors may propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes, and may adopt or reject it at the polls.' This power shall be known as the initiative. Any initiated ordinance may be submitted to the City Commission by petition signed by at least five (5) percent of the City electors as shown by the current voter registration lists.

Section 6.03 of the City Charter lists the technical requirements that all petition papers circulated for the purpose of initiative must meet. Section 6.04 sets forth the procedure that must be followed for the filing, examination and certification of all initiated petitions. Section 6.07 sets forth the duties and responsibilities of the Commission after the City Clerk has examined and certified an initiative petition. It provides:

Sec. 6.07. Consideration by City Commission.
The City Commission shall proceed forthwith to consider any certified initiative or referendum petition received from the City Clerk. In considering an ordinance proposed by initiative petition, the City Commission shall follow the same procedural requirements for passage that are prescribed hereby for ordinances generally, including public hearing thereon, and the City Commission shall take final action thereon not later than thirty (30) days after the date of submission thereof to it....

After the Commission has considered the proposed initiative as required by section 6.07, the Commission is then required to either adopt the initiated ordinance as its own or submit the ordinance to the electors, as required by section 6.08 below:

Sec. 6.08. Submission to electors.
If the City Commission fails to pass an ordinance proposed by initiative petition or passes it in a form different from that set forth in the petition ... the proposed or referred ordinance shall be submitted to the electors in its original form not less than thirty (30) days nor more than ninety (90) days after the final vote thereon by the City Commission. The City Commission may provide for a special election, and it shall so provide if no regular election is to be held within this period.

The City argues that the trial court’s decision to dismiss the petition for writ of mandamus was within the court’s sound discretion and that an appellate court should not disturb the trial court’s ruling in mandamus proceedings unless clear error appears. It further argues that “determination of whether a mandamus claim is barred by laches is for the trial court,” citing Metro. Dade County Plumbing Contractors’ Examining Bd. v. State ex rel. Bishop, 216 So.2d 76, 77 (Fla. 3d DCA 1968).

“Mandamus is an appropriate remedy to compel the performance of a ministerial act that an agency has a clear legal duty to perform. ‘A duty or act is defined as ministerial where there is no room for the exercise of discretion, and the performance being required is directed by law.’ ” Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA 2001) (quoting Shea v. Cochran, 680 So.2d 628, 629 (Fla. 4th DCA 1996) (quoting Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996))). In Shul-mister, an initiative committee circulated an initiative petition for an amendment to the Pompano Beach City Charter. It then took the necessary steps to place the proposal on the ballot. The City Commission tried to prevent the proposal from being placed on the ballot, contending that the proposal contained a defective ballot summary. The trial court denied the committee chairman’s petition for a writ of mandamus and for injunctive relief to prohibit removal of the proposal from the ballot. On appeal, we reversed the denial of the writ of mandamus because the law plainly required the city to prepare a proper ballot summary and place the committee’s proposed amendment on the ballot.

In this case, it is undisputed that petitioners followed the procedures authorized by the city charter for requiring the City Commission to either adopt their proposed ordinances or submit them to the electorate in a referendum election. Yet, the trial court denied the petition based on the equitable doctrine of laches. The court reasoned that the Committee had unreasonably delayed challenging the City’s plans to relocate the city hall and library and that the proposed ordinances, even if approved, could not be applied to block the planned relocation after years of City actions to implement the projects. However, neither delay in seeking a referendum nor the possible consequences of an election on the referendum can justify the court’s failure to enforce the referendum process.

In Brooks v. Watchtower Bible & Tract Society of Florida, Inc., 706 So.2d 85, 90 (Fla. 4th DCA 1998), we held that a referendum on an ordinance proposed by initiative cannot be prevented “unless it is demonstrated that the ordinance is unconstitutional in its entirety.” There, a group of citizens used the initiative process to seek a referendum to repeal an ordinance authorizing a contract for the sale of municipal property. Pursuant to the provisions of the city charter, the city commission placed the proposed referendum on the ballot. The prospective purchaser of the property sought to enjoin an election on the referendum, arguing that the repeal would be futile because it could sue the city for specific performance of the contract to sell the property. The trial court granted the injunction. We reversed, holding that the possibility that the referendum would be futile did not justify the trial court’s interference with the right of the people to vote on the referendum. Discussing the electorate’s right to a referendum, we stated the following:

Under the Florida Constitution, the people eléct the Legislature, and it is the Legislature which enacts the general laws under which the citizens of Florida live. The general laws of Florida encompass' the creation of municipalities. See Ch. 165, Fla. Stat. (1997). A municipal corporation derives not only its existence but its power from the Legislature. See Article VIII, § 2(a), Fla. Const.; Town of Palm Beach v. City of West Palm Beach, 55 So.2d 566, 572 (Fla.1951). The Legislature adopted the Charter of West Palm by special law in 1965. See Chs. 65-2381, 65-2382, at 4153-4267, Laws of Fla. Pursuant to the home rule powers granted in chapter 166, Florida Statutes (1997), the City Charter was amended by a referendum vote of the people to its present form in 1988. See Charter, Part I editor’s note. The Charter now provides that “[a]ll powers of the City shall be vested in the City Commission except those powers specifically given to the Mayor ... and except those powers specifically reserved in this Charter to the electors of the City.” See Charter § 2.03 (emphasis added). One of the powers specifically reserved to the electors is the power of initiative and referendum. See Charter § 6.02.

Id. at 87.

If, as we held in Brooks, a suggestion of futility is not a proper basis for preventing citizens from exercising their charter right of referendum to enact ordinances, then neither is a claim of unreasonable delay. The people reserved to themselves the power of referendum. Their legal right to govern themselves should not be abridged. Where, as here, the Committee has demonstrated a clear legal right to mandamus relief, the trial court lacks discretion to deny such relief based on laches.

Although the City cites a few cases suggesting that mandamus actions are subject to the laches defense, none of these cases concern the power of the people to enact ordinances through referendum. In State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970), the Florida Supreme Court applied the doctrine of laches to prevent delay and interference with an election proceeding. There, a judicial candidate sought to remove the names of other candidates from the election ballot on the ground that the candidates had not paid a sufficient qualifying fee. Because the petitioner’s claim was tardy and the ballots were already printed, the court ordered the election to proceed as scheduled. In Ladas v. Titus, 53 So.2d 323 (Fla.1951), a police officer brought a mandamus action to compel his reinstatement to the police force when he was dismissed before he completed his probationary period. Another mandamus case cited by the City, Board of Public Instruction of Hendry County v. State ex rel. Hilliard, 188 So.2d 337 (Fla. 2d DCA 1966), concerned a change in millage rates.

In those cases cited by the City which involved a referendum on a charter provision or the passage of a constitutional amendment, the courts did not apply the doctrine of laches. In State ex rel. Clendinen v. Dekle, 173 So.2d 452 (Fla.1965), the supreme court determined that the defense of laches did not apply in a mandamus action to compel the state canvassing board to recertify statewide results on a proposed constitutional amendment. In Scott v. City of Orlando, 173 So.2d 501 (Fla. 2d DCA 1965), which involved a suit challenging the validity of an ordinance to locate a theater and convention hall in the downtown area of Orlando, the Second District Court of ■ Appeal held that the location of the buildings was a proper subject for an initiative petition requiring an election despite the fact that the city had already spent money on architects’ fees and other items in anticipation of building the facility at another location. The court upheld the validity of the ordinance calling for a referendum, stating that “[i]f the city officials of Orlando had the right to change the location of the facility involved in this case, we see no reason why the people of the City of Orlando, voting in an initiative election upon a city ordinance changing the location of this permanent facility, should not have the same right.” Id. at 508.

In Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA 1979), the Third District held that it was improper to enjoin the electorate from passing upon a proposed ordinance to limit the county millage rate in a referendum election where the alleged invalidity of the proposed ordinance did not clearly appear on its face and there was no constitutional challenge to the proposed ordinance. The court reversed the injunction because “the trial court was not authorized by the applicable law prospectively to interfere with the electoral process by precluding a decision of the voters on the proposed ordinance.” Id. at 1003.

The common thread running through cases concerning the referendum process is the principle that citizens are free to express their views on municipal matters through the power of referendum and that courts should not interfere with the exercise of their referendum rights except in very narrow circumstances. See West Palm Beach Ass’n of Firefighters, Local Union 727 v. Bd. of City Comm’rs of City of West Palm Beach, 448 So.2d 1212, 1214 (Fla. 4th DCA 1984) (holding that where the proposed initiative ordinance governing resolution of contract issues between the city and its firefighter employees was unconstitutional in its entirety and on its face, the trial court properly denied petition for writ of mandamus; however, where challenge to the initiative petition is based on grounds that it is unconstitutional in part or invalid on non-constitutional grounds, such issue is not cognizable by the court prior to the proposed election); Gaines v. City of Orlando, 450 So.2d 1174, 1177 (Fla. 5th DCA 1984) (reversing an injunction prohibiting the city commission from placing an initiative ordinance on the ballot on the basis of its claim that the ordinance would violate statutes); Wilson, 369 So.2d at 1003; Rivergate Rest. Corp. v. Metro. Dade County, 369 So.2d 679 (Fla. 3d DCA 1979) (holding that a referendum election to restrict smoking in public places would be enjoined only if the proposed law was invalid in its entirety).

Here, as in Brooks, the proposed ordinances have not been shown to be defective or unconstitutional in any respect. The City’s opposition to submitting the ordinances to the electors is based primarily on the passage of time and expenditure of funds on relocation efforts. However, those city expenditures were paid for by the taxpayers — the very same citizens who would weigh these-factors and vote on any future relocation and cost issues. The city charter entitles them to vote on these issues, regardless of their failure to propose these ordinances at some earlier point. Moreover, as the Committee points out, the City passed resolutions, instead of ordinances, to effectuate their plans for relocation. The thirty-day limitation for repealing ordinances, under section 6.02 of the City Charter, thus does not apply. Further, the charter does not prohibit new initiative ordinances that negate the effect of mere resolutions.

Although Brooks arose from an action to enjoin the City from placing an ordinance before the electors for referendum, rather than an action to compel the City to place an ordinance on the ballot, the governing principle is the same: the right of the voters to exercise their power of initiative and referendum should be honored “unless it is demonstrated that the ordinance is unconstitutional in its entirety.” 706 So.2d at 90. An ordinance requiring a vote before the relocation of city buildings is a proper subject of a referendum under the Florida Constitution, state statutes, and the City’s Charter. Because the City failed to - comply with its legal duty to either adopt the Committee’s proposed ordinances or submit them to the electorate in a referendum election, the trial court erred in quashing the alternative writ of mandamus and denying the Committee’s motion for summary judgment.

Reversed arid remanded.

WARNER, POLEN, FARMER, STEVENSON and GROSS, JJ., concur.

SHAHOOD, C.J., dissents with opinion, in which MAY, J., concurs.

STONE, J., dissents with opinion, in which MAY, J., concurs.

GUNTHER, KLEIN and HAZOURI, JJ., recused.

SHAHOOD, C.J.,

dissenting.

I dissent. I would deny the motion for rehearing en banc.

The facts of this case as.stated in the original majority opinion were that the City began passing resolutions as early as July of 2002 relating to the development of the City Center area. Thereafter, more resolutions were passed up to November 2003. It was not until May of 2006, almost four years after the passage of the first resolution,' that the Committee filed a petition for initiative ordinance on the relocation of City Hall.

As we held:

Laches is defined as an “[Unreasonable delay in pursuing a right or claim— almost always an equitable one — in a way that prejudices the party against whom relief is sought.” Black’s Law Dictionary 891 (8th ed. 2004). Generally, whether a lawful claim is barred by laches is a matter of trial court discretion. Metro. Dade County Plumbing Contractors’ Examining Bd. v. State ex rel. Bishop, 216 So.2d 76, 77 (Fla. 3d DCA 1968).

Wright v. Frankel, 32 Fla. L. Weekly D97, D98 (Fla. 4th DCA Dec. 27, 2006).

Like the majority opinion on the motion for rehearing en banc, I agree that:

If ... a suggestion of futility is not a proper basis for preventing citizens from exercising their charter right of referendum to enact ordinances, then neither is a claim of unreasonable delay. The people reserved to themselves the power of referendum. Their legal right to govern themselves should not be abridged.

I too feel that the right of the citizenry to govern themselves through the referendum process is an extremely important right, but not a limitless right. In this case the committee, by waiting over three years to file its petition for initiative ordinance, went well beyond any permissible time constraints for such filing.

I also agree with the decisions cited by the new majority opinion that:

The common thread running through cases concerning the referendum process is the principle that citizens are free to express their views on municipal matters through the power of referendum and that courts should not interfere with the exercise of their referendum rights except in very narrow circumstances. See West Palm Beach Ass’n of Firefighters, Local Union 727 v. Bd. of City Comm’rs of City of West Palm Beach, 448 So.2d 1212, 1214 (Fla. 4th DCA 1984) [emphasis added].

Again, this is not a limitless right, but rather is a case involving “very narrow circumstances.”

I do not agree that where the Committee has demonstrated a right to mandamus, the court lacks discretion to deny such relief based on laches. I therefore conclude, as we held in the original majority opinion, the trial court did not abuse its discretion in determining that the doctrine of laches applied.

MAY, J., concurs.

STONE, J.,

dissenting.

I am not unmindful of the compelling basis for our recognizing the right to exercise the initiative process granted by the charter. However, in my judgment, the trial court had the discretion to conclude that the extraordinary delay in bringing this initiative subjects it to application of the equitable doctrine of laches. That doctrine is available in mandamus proceedings. See State ex rel. Haft v. Adams, 238 So.2d 843, 844 (Fla.1970); Ladas v. Titus, 53 So.2d 323 (Fla.1951); Brown v. Firestone, 382 So.2d 654, 671 (Fla.1980); Bd. of Pub. Instruction of Hendry County v. State ex rel. Hilliard, 188 So.2d 337 (Fla. 2d DCA 1966), aff'd on other grounds, 191 So.2d 561 (Fla.1966).

In this case, almost three years passed, the project was well underway, and millions of dollars had been spent and committed by the time the initiative was presented to City. Although the proposed ordinances are silent as to whether they apply to the move of the city hall and library in progress, they appear, to me, to be directed at the current relocation.

The trial court could properly recognize that Committee had not acted for approximately three years while City continued to pass resolution after resolution providing for and funding the current relocation. Although the parties argue about the extent of planning, expenditures, and completeness of the project as it relates to the prejudice element, I would conclude that there has been enough work done on the project to support the trial court’s conclusion of prejudice to City.

The trial court could also consider, and find instructive, section 6.02 in determining what constitutes an unreasonable delay. That section provides that a petition seeking to repeal an ordinance, or submit that ordinance to a vote of the electors, must be filed within thirty days of enactment of the ordinance. Although City, properly, passed this project through resq-lutions rather than by ordinance, the time limitation provision in. the charter evinces an intent that objections be lodged to the actions of City within a brief period of time. Though I am mindful of the difference between an ordinance and a resolution, section 6.02 is of sufficiently like character to guide the court in weighing the equity of laches as it applies to an unreasonable delay in effectively seeking to repeal the three years of resolutions. See generally Radiation, Inc. v. Campbell, 200 So.2d 192, 193 (Fla. 4th DCA 1967) (“[RJecognizing that in courts of equity there is no such thing -as a statute of limitations but rather that the court is governed by the doctrine of laches, [but noting] the Florida Supreme Court nevertheless held an equity action could be barred by applying the statute of limitations.”) (citing Grable v. Nunez, 64 So.2d 154 (Fla.1953)); Reed v. Fain, 145 So.2d 858, 870 (Fla.1961) (“A statute of limitation may, of course, be employed as a guide in an equity action in connection with a careful consideration of all of the existing equities.”).

Here, the delay could properly be considered unreasonable when gauged against the thirty-day period that would have been imposed had City acted by ordinance rather than resolution. Committee acknowledges the thirty-day limit would apply to these petitions had they been directed at an ordinance. If the right to contest an ordinance is cut off after thirty days, it follows that, at some point, the right to overturn acts passed by resolutions may similarly be cut off.

As noted by the trial court, the delay in this case was thirty times longer than the time period provided in the charter. There comes a point when an unreasonable delay in bringing an action trumps the right to vote on the questioned decision. See Paget v. Logan, 78 Wash.2d 349, 474 P.2d 247, 252 (1970) (en banc) (“[A]t some point in time, a proposed stadium project may progress to a point where only administrative decisions will remain to complete the project. Initiative measures concerning site selection at that time could well be inappropriate.”); Kirsch v. City of Abilene, 120 Kan. 749, 244 P. 1054, 1056 (1926) (finding laches where “[t]he plaintiffs ... stood by from April until September, while the city, under the instruction of the voters, was disposing of bonds, wrecking a building, incurring large obligations, expending considerable sums of public money, and entering into contracts involving great amounts of money and levying a tax for payment of the bonds, before they asserted their claims”).

Finally, the trial court could properly consider that issuing the writ in this case would have caused confusion as to whether the relocation in process will proceed or whether it must be stopped. Committee argues forcefully that the application of the proposed ordinance to the pending project could not be determined until a later date, after passage. Disorder and disturbance to City would result from having to stop the current relocation, wait for the vote on the ordinances, and, if the ordinances passed, try to determine whether the new ordinances are even applicable to the move in progress, and, if so, wait until the voters either accepted or rejected the current site. As our supreme court stated in Ladas, “[i]t would be most disastrous to permit the city’s business to drag along in such a slipshod, hit or miss kind of a way.” 53 So.2d at 324. Similar considerations were before the trial court here. I would, therefore, find that there was no abuse of discretion. .

I would also conclude that the proposed ordinances are impermissibly vague.

MAY, J., concurs.

      . The resolution indicated that the City had held a public forum to receive input regarding relocation of the library, and the majority opinion at that forum supported the relocation-.

      . The petition for initiative ordinance on the relocation of the city library included language that the city library and the property upon which it is situated is a valuable "and historic” asset and resource of the City and excluded the "whereas” clause stating that "the voters of the City of West Palm Beach should decide where their city government should operate and conduct business.” The two petitions were identical in all other respects.