author: BENTON, J.

text:
    ATLANTIS AT PERDIDO ASSOCIATION, INC. and Spanish Key Condominium Owners’ Association, Inc., Appellants, v. Bobby L. WARNER, Joseph W. and Helen M. Belanger, Donald Ray Stephens and State of Florida Department of Environmental Protection, Appellees.
    No. 1D05-4069.
    District Court of Appeal of Florida, First District.
    July 6, 2006.

      Jesse W. Rigby, Esquire and Jeremy C. Branning, Esquire of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellants.
    Sally Bussel Fox, Esquire of Emmanuel, Sheppard & Condon, P.A., Pensacola and Thomas G. Tomasello, Esquire of Thomas G. Tomasello, P.A., Tallahassee, for Appel-lees, Bobby L. Warner, Joseph W. and Helen M. Belanger and Donald Ray Stephens.
    Mark S. Miller, Senior Assistant General Counsel and Teresa L. Mussetto, Senior Assistant General Counsel, Tallahassee, for Appellee, State of Florida Department of Environmental Protection.
   BENTON, J.

Atlantis at Perdido Association, Inc. and Spanish Key Condominium Owners’ Association, Inc. (the homeowners’ associations) appeal a final Department of Environmental Protection (DEP) order approving the permit application Bobby L. Warner, Donald Ray Stephens and Joseph W. and Helen M. Belanger (the applicants) filed. The order directs issuance of Coastal Construetion Control Line Permit ES-540 (the permit), and authorizes construction of a nine-story condominium complex on Perdido Key in Escambia County. The proposal was to locate the condominium complex 193 feet seaward of the coastal construction control line, and 45 feet seaward of a reasonably continuous and uniform line of buildings (constructed on both sides of the proposed site, along a superseded control line), a line that is nearly 150 feet closer to the Gulf of Mexico than the current coastal construction control line. We reverse.

Without a DEP permit, “no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward” of a coastal construction control line. § 161.053(2)(a), Fla. Stat. (2004). Coastal construction control lines are established by rulemaking, county by county, only after comprehensive engineering studies involving models of 100-year return storms (and concomitant storm surges) take local tides and topographic surveys into account. Such studies allow DEP to predict the effect major storms will have on particular shorelines and indicate where the coastal construction control line should be placed to allow adequate regulation for the protection of upland properties and the control of beach and dune erosion. See generally St. Joe Paper Co. v. Fla. Dep’t of Nat. Res., 536 So.2d 1119, 1120 (Fla. 1st DCA 1988). Rules establishing (or amended rules relocating) coastal construction control lines are published in the Florida Administrative Weekly and the Florida Administrative Code, and recorded in the public records of the county involved.

In the present case, the applicants proposed building the new condominium development, dubbed “BellaVista,” seaward of the coastal construction control line on two adjacent parcels aggregating 1.19 acres with a total of approximately 100 feet fronting on the Gulf. Now occupying the site proposed for BellaVista are two one-story structures on piling, a duplex with floor dimensions of 44.1 feet by 31 feet (some 1,367 square feet not including decks or stairs) and, east of the duplex, a quadriplex with floor dimensions of 51.2 feet by 54.4 feet (some 2,785 square feet not including decks or stairs).

BellaVista was to consist of fifteen units, a swimming pool, a boardwalk originally planned as a dune walkover, and a driveway and parking area built with concrete pavers. The new building was to have been nine stories high — eight habitable floors above a parking level — and the structure was to have had a footprint of 70 feet in the shore normal direction and 80 feet in the direction parallel to the shore, some 5,600 square feet, abutting an additional 38.1 feet by 33.3 feet (some 1,268 square feet) of swimming pool and decking on the seaward side of the condominium tower.

The proposal was to demolish both the duplex and the quadriplex, and replace them with a condominium tower and swimming pool complex at a location slightly (18 feet) landward of the existing structures’ location, albeit 45 feet seaward of the line of continuous construction and 193 feet seaward of the coastal construction control line. The appellant homeowners’ associations’ members are owners of condominiums in the Spanish Key and Atlantis complexes, structures adjacent to the applicants’ site on either side, condominiums that are built landward of the line of continuous construction. The homeowners’ associations participated as objectors in administrative proceedings on the permit application below.

While the application for a permit to construct the “BellaVista” condominiums was pending, Hurricane Ivan came ashore on Perdido Key, damaging the structures now on the proposed site and dramatically transforming the “beach dune system.” Less than a month after Ivan hit, DEP issued notice of its intent to grant a coastal construction control line permit authorizing the applicants to construct the new BellaVista complex, including the proposed parking garage, pool, deck, dune walkover, concrete driveway, and storm drainage facilities.

DEP took the position that it had the authority to grant the permit pursuant to section 161.053(13)(a), Florida Statutes, asserting that the proposed project would constitute a “rebuilding” of the two one-story buildings currently on the property, which were damaged in the storm. The statute provides:

Notwithstanding the coastal construction control requirements defined in subsection (1) or the erosion projection determined pursuant to subsection (6), the department may, at its discretion, issue a permit for the repair or rebuilding within the confines of the original foundation of a major structure pursuant to the provisions of subsection (5). Alternatively, the department may also, at its discretion, issue a permit for a more landward relocation or rebuilding of a damaged or existing structure if such relocation or rebuilding would not cause further harm to the beach-dune system, and if, in the case of rebuilding, such rebuilding complies with the provisions of subsection (5), and otherwise complies with the provisions of this subsection.

§ 161.053(13)(a), Fla. Stat. (2004) (emphasis supplied). Below the issue became whether the BellaVista proposal contemplated “rebuilding” structures seaward of the coastal construction control line or whether the proposal called for new construction seaward of the coastal construction control line.

The parties and the administrative law judge proceeded on the agreed assumption that, while all projects (new construction and “rebuilding” alike) must comport with every other section 161.053(5) factor, “rebuilding” projects, unlike new construction, do not require DEP to take into account the “reasonably continuous and uniform construction line” factor set out in section 161.053(5)(b) and the administrative rule which implements the statute. The “reasonably continuous and uniform construction line” the administrative law judge found in the present case lay along what had been the 1975 coastal construction setback line. At hearing, Orlando Gomez, an engineer in the employ of DEP’s Bureau of Beaches and Coastal Systems who helped evaluate the BellaVista project permit application, testified that, “for a project proposed on the land or the vacant land,” as opposed to a project proposed on property with an “existing structure on it,” it “would be true” “that projects in this area of Perdido Key are not allowed to extend further than the 1975 Control Line, typically.”

Tony McNeal, administrator of DEP’s coastal construction control line program and an expert in coastal engineering, testified, however, that the Bel-laVista project would constitute “rebuilding” of the two structures now on site. Mr. McNeal said that, in DEP’s view, “rebuilding” can include replacement construction in a location more landward than the original building site, even where the replacement construction’s scale, dimensions and configuration differ dramatically from the razed original’s. Accepting DEP’s view, the administrative law judge endorsed the legal conclusion that the proposed BellaVista project was a “more landward relocation or rebuilding of [] damaged or existing structure[s].” § 161.053(13)(a), Fla. Stat. (2004). In the final order under review, DEP adopted the recommended order in its entirety.

But section 161.053(13)(a) applies only to “the repair or rebuilding within the confines of the original foundation of a major structure” or, “[alternatively, ... [the] landward relocation or rebuilding of a damaged or existing structure.” § 161.053(13)(a), Fla. Stat. (2004). The new nine-story condominium development the applicants propose is not a “repair or rebuilding within the confines of the original foundation.” The application does not propose “relocation” of the duplex and quadriplex now on site. In the words of a DER administrator, “[t]he existing structures will be leveled and new structures built in their place.” Plainly the applicants do not propose to relocate the existing structures. Nor does the permit authorize merely “rebuilding” the existing structures in a landward location. The permit authorizes something new and very different.

DEP has misconstrued the word “rebuilding.” DEP’s own official definition of “rebuilding” bears this out. Florida Administrative Code Rule 62B-33.002(47) defines rebuilding as “a substantial improvement of the existing structure as defined in Section 161.54, F.S.” Fla. Admin. Code R. 62B-33.002(47) (2005) (emphasis supplied). See Vantage Healthcare Corp. v. Agency for Health Care Admin., 687 So.2d 306, 308 (Fla. 1st DCA 1997) (“The agency is obligated to follow its own rules.”). Similarly, “substantial improvement” in section 161.54, Florida Statutes, is defined as the

repair, reconstruction, rehabilitation, or improvement of a structure when the actual cost of the improvement or repair of the structure to its pre-damage condition equals or exceeds 50 percent of the market value of the structure either:
(a) Before the improvement or repair is started; or
(b) If the structure has been damaged and is being restored, before the damage occurred.

§ 161.54(12), Fla. Stat. (2004) (emphasis supplied). On the facts of this case, the term “rebuilding,” as used in section 161.053(13)(a), “is clear and unambiguous, [and] we need not consider the Department’s interpretation or the statute’s legislative history.” State, Dep’t of Rev. v. Lockheed Martin Corp., 905 So.2d 1017, 1022 (Fla. 1st DCA 2005). “[W]here a department’s construction of a statute is inconsistent with clear statutory [and rule] language it must be rejected, notwithstanding how laudable the goals of that department [may be].” Fla. Dep’t of Child. & Fam. Servs. v. McKim, 869 So.2d 760, 762 (Fla. 1st DCA 2004).

“ ‘[T]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968).” Beshore v. Dep’t of Fin. Servs., 928 So.2d 411, 413 (Fla. 1st DCA 2006). “ ‘It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language_We trust that if the legislature did not intend the result mandated by the statute’s plain language, the legislature itself will amend the statute at the next opportunity.’ ” McKim, 869 So.2d at 762 (quoting State v. Jett, 626 So.2d 691, 692 (Fla.1993)).

To rebuild is “[t]o build again,” “[t]o make extensive structural repairs on,” or “[t]o remodel or make extensive changes in.” The American Heritage College Dictionary 1139 (3d ed.1993). Accepting the premise that rebuilding can mean to “remodel or make extensive changes in,” DEP argues:

The pertinent definition of “rebuilding” used by the Department contemplates that a more landward structure which otherwise complies with the provisions of [the statute] may be “extensively changed,” so long as the net impact to the Act’s enumerated environmental concerns is not increased. Viewed in context, this [statutory] construction is a permissible one.

DEP’s expertise requires us to consider its construction of the statute carefully, but “nothing requires that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency.” Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004) (internal quotation marks omitted).

The Legislature is presumed to have chosen the word “rebuild,” as opposed to another word, e.g., “redevelop,” for a reason. “[T]he Legislature is assumed to know the meaning of the words used in the statute and to have expressed its intent through the use of the words.” Lockheed Martin Corp., 905 So.2d at 1020. “One of the first rules of statutory construction is that the plain meaning of the statute is controlling.” Beshore, 928 So.2d at 412. The word “remodeling” and the phrase “to make extensive changes in” do not contemplate the obliteration of every element of two smallish one-story buildings and their replacement with a totally new, altogether different, nine-story edifice, complete with appurtenant structures.

As a fallback, the applicants argue for affirmance on the ground that DEP concluded that the proposed project passed muster under the substantive section 161.053(5) and (6) criteria, on balance, albeit without considering the line of continuous construction criterion. On this record, however, it is difficult to avoid the conclusion that DEP would have denied the BellaVista application if DEP had evaluated it as — according to the DEP evaluators themselves — the law requires that applications for new construction be evaluated.

While DEP and the administrative law judge did consider other criteria, including engineering data concerning shoreline stability, storm tides, design features of the proposed structures, potential impacts from the location of such structures, sea turtle inactivity, potential interference with public beach access, and thirty-year erosion projections, they explicitly omitted any consideration of the reasonably continuous and uniform line of construction in the vicinity. This omission was fatal, and belies the assertion that the applicants have demonstrated entitlement to the coastal construction permit they seek. DEP’s failure to take the “reasonably continuous and uniform line of construction” into account fell outside the range of discretion delegated to DEP by law and was inconsistent with its own rule. See § 120.68(7)(e), Fla. Stat. (2004). See also § 161.053(5)(b), Fla. Stat. (2004); Fla. Admin. Code R. 62B-33.005(9) (2005). The order under review directs issuance of a permit that authorizes new construction, not “rebuilding.”

Reversed.

POLSTON and THOMAS, JJ., concur.

      . The proposed site lies on the northern shore of the Gulf of Mexico approximately 500 feet east of the Alabama state line. As to the location of other buildings on the Florida side of the state boundary, the administrative law judge accepted the homeowners’ associations' contention
      that there is a reasonably continuous and uniform construction line seaward of the current (the 1986) CCCL [coastal construction control line] "in the immediate contiguous or adjacent area” and landward of the proposed Project — -namely, along the line of the former (the 1975) CCCL. In fact, such a line of construction exists extending approximately 500 feet west, and approximately 1,500 feet east, of the proposed Project. ...

        See generally Regency Towers Condo., Owners Ass’n, Inc. v. Destin Architectural Group, Inc., Fla. Admin. Recommended Order No. 94-5826 (Dec. 22, 1994) (on file with clerk, Fla. Div. of Admin. Hearings) (available at 1994 Fla. Div. Adm. Hear. LEXIS 5971, *13) ("To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted.”). See also § 161.053(5)(b), Fla. Stat (2004).

      . The coastal construction control line applies to all new construction. The Legislature specifically exempted from the section 161.053 requirements "structures existing or under construction prior to the establishment of the coastal construction control line.” § 161.053(9), Fla. Stat. (2004).
      A DEP permit is also required to "make any excavation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle on, over, or across any sand dune; or damage or cause to be damaged such sand dune or vegetation growing thereon seaward” of a coastal construction control line. § 161.053(2)(a), Fla. Stat. (2004).

      .Section 161.053(l)(a) makes explicit the legislative intent that permits be required for construction seaward of an established coastal construction control line:
      [I]t is the intent of the Legislature to provide that the department establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions.... Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties and the preservation of public beach access.
      § 161.053(1)(a), Fla. Stat. (2004). The Florida Legislature enacted section 161.052, Florida Statutes, in 1970 to prohibit certain construction activities "within 50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like.” St. Joe Paper Co. v. Fla. Dep’t of Nat. Res., 536 So.2d 1119, 1120 (Fla. 1st DCA 1988) (internal quotations omitted). In 1971, the Legislature enacted section 161.053, which directed the Department of Natural Resources to establish coastal construction setback lines "on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico for the purpose of protecting [Florida's] beaches and adjacent coastal area dunes from imprudent construction." Id. In 1978, the nomenclature was changed to coastal construction control line. Id. (citing ch. 78-257, Laws of Florida).

      . In this connection, the administrative law judge made, and DEP adopted, the following findings of fact:
      13. Ivan was a major magnitude storm with a storm surge of 15-20 feet, which exceeded the predicted storm surge of a 100-year storm in Escambia County. The existing dwellings on the Property survived the storm but were severely damaged. Ivan destroyed all of the vegetation that existed on the Property and on the beach dune system to the east and west. Ivan also destroyed all of the dunes on the Property and on the beaches to the east and west of the Property.

        14. Towards the end of March 2005, Escambia County placed a sand berm on the beach in front of the existing structures on the Property and along the beach to the east and west of the Property. The placement of the sand was partially funded by the Federal Emergency Management Agency (FEMA) and is meant to provide some immediate protection for upland structures, especially those that have been damaged or are vulnerable to damage, from higher-frequency storms. Initially, it would provide less protection from lower-frequency storms and, obviously, would be destroyed by a storm like Ivan. However, depending on future storm events, it would provide some protection and could contribute to recovery of the beach and dune system over time.

      18.The FEMA dune is now the only dune on the Property or adjacent properties.

      22. Along with accretion, the dune sj's-tem in the area of the Property also was growing prior to Ivan, and dune recovery seaward of the new FEMA dune is expected. The primary dunes that existed pre-Ivan on the adjacent properties immediately seaward of the Spanish Key and Atlantis condominiums, which included dunes with elevations of 16-17 feet, will take 25-50 years to rebuild through natural processes, such as aeolian (wind-driven) transport. Some may never recover to previous elevations. The lower dunes, such as those that existed on the Property, may recover in ten years. Since the Project is located landward of the FEMA dune, it will not interfere with post-storm recovery of the dune system.

      . DEP's notice of intent took the form of a "Final Order” approving the applicants’ application for a permit to construct BellaVista. After receiving written notice of DEP's proposed action, the homeowners' associations filed a petition for formal hearing under section 120.57(1), Florida Statutes, challenging DEP's intent to issue the permit. In response, DEP referred the matter to the Division of Administrative Hearings, where it was assigned to an administrative law judge.

      . The shared assumption is that where, as here, the subject property has structures seaward of the surrounding line of construction, it cannot be said that the line of construction is continuous because structures on the subject property interrupt it:
      [I]n making their "line of construction” argument, Petitioners ignore the existing structures on the proposed Project site.

      [I]n this case, under the "landward rebuilding or relocation” provisions, the existing structures on the BellaVista site cannot be disregarded.
      The ALJ concluded in his recommended order — a determination not disputed in this appeal — that "[t]he line of construction is a factor for new construction but not for rebuilding or relocation of a building landward.” Section 161.053(5)(b) provides:
      (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department if such structure is also approved by the department....
      § 161.053(5)(b), Fla. Stat. (2004). Rule 62B-33.005(9) of the Florida Administrative Code provides:
      If in the immediate area a number of existing major structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except wher.e not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsections 62B-33.005(3), (4), (7), (8), or (10), F.A.C.
      Fla. Admin. Code R. 62B-33.005(9) (2005). Neither the statute nor the rule addresses construction seaward of a reasonably continuous and uniform line of construction explicitly, but appellants argue that they discourage such construction by negative implication, even if they do not forbid it. See generally Regency Towers Condo., Owners Ass'n, Inc. v. Destin Architectural Group, Inc., Fla. Admin. Recommended Order No. 94-5826 (Dec. 22, 1994) (on file with clerk, Fla. Div. of Admin. Hearings) (available at 1994 Fla. Div. Adm. Hear. LEXIS 5971, *14) ("The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements.”); see also Kelly Cadillac, Inc. v. Fla. Dep’t of Envtl. Prot., 20 F.A.L.R. 1343, 1360 (Fla. Dep't of Envtl. Prot.1998) (available at 1998 Fla. ENV LEXIS 43, *42) ("[T]he line of construction is not a prohibition in and of itself.... ”).

      . Section 161.053(13)(a) is concerned with "rebuilding” in two situations: rebuilding within the confines of the original foundation of a major structure — concededly not applicable here — or rebuilding a damaged or existing structure on another site farther landward.

      . Tony McNeal testified below not only that "[t]he existing structures will be leveled and new structures built in their place,” but also that ”[t]he proposed project is a redevelopment consisting of the replacement of two single family dwellings with a[n] eight story multi-family dwelling and other amenities.”

      . DEP’s own permitting official testified in response to counsel's questions at hearing:
      Q As a coastal engineer, you would be okay with seeing the other structures that are along that section of the beach [such as the adjacent Atlantis condominium] come forward as far seaward as the proposed BellaVista project?
      A No, sir.
      Q Why not?
      A Again, the BellaVista project has existing buildings at a certain position already which are expected to cause certain impacts. The charge here is to try to improve upon those conditions. A new structure placed seaward at that location would be expected to cause impacts, also, that would be unacceptable.

        Q So if Atlantis wanted to come in and go more seaward, that would not be acceptable to the Department?
      A That's correct.

      Q So then there’s a difference between [a] proposed project that’s rebuilding as opposed to new construction?
      A That's correct.
      Q And for new construction then the determination would have to be made by the Department?
      A Yes. A Line of Construction is definitely a factor in the new construction....

      . Without contradiction, Mr. McNeal testified:
      Q Has a reasonably continuous and uniform Line of Construction been established for the proposed project at issue here?
      A No.
      Q [W]as a reasonably continuous and uniform line of construction determination necessary for the proposed project?
      A No.
      As to the reasoning behind this omission, he testified:
      A[S]ection 161.053 of the Florida Statute[s] is the governing Statute for Coastal Construction Control Line Permitting. Within that section it talks about what should be considered in granting a permit. And Line of Construction is one of those factors. But, also, within there is subsection 13 that's been cited already on record. When looking at the construction, we have to determine is it new construction or is it rebuilding. Because if it's new construction, then it does not fall within subsection [13].... So, in the Line of Construction determination, subsection 13, if it's just a rebuilding, there [is] no charge that we have to meet in Line of Construction. The criteria is different than it is for new construction. Therefore, we do not necessarily look at Line of Construction in that instance ....


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert R. SWAIN, Appellant/Cross-Appellee, v. Elizabeth M. SWAIN, Appellee/Cross-Appellant.
    Nos. 1D05-0722, 1D05-3392.
    District Court of Appeal of Florida, First District.
    July 6, 2006.

      C. Edwin Rude, Jr., Tallahassee, for Ap-pellanVCross-Appellee.
    Ed Horan, Tallahassee, for Appel-lee/Cross-Appellant.
   PER CURIAM.

This is a timely appeal from several post-dissolution of marriage orders pertaining to child support, alimony, and attorney’s fees. We affirm the issues raised on appeal without discussion. On cross-appeal, the former wife contends that the trial court erred in imputing income to her based upon the salary of an entry-level accountant because she did not hold an accounting degree. We agree, and reverse and remand for further proceedings consistent herewith.

For the purpose of determining child support and alimony, the trial court may impute income to the former spouse upon a finding that he or she is voluntarily unemployed or underemployed due to the pursuit of his or her own interests, or a less than diligent effort to find employment paying at a level equal to that formerly enjoyed. Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004); § 61.30(2)(b), Fla. Stat. (2003). The amount imputed must be based upon the former spouse’s recent work history and occupational qualifications, and the prevailing earnings level in the community. Andrews, 867 So.2d at 478; § 61.30(2)(b), Fla. Stat. The imputation of income will be affirmed if supported by competent, substantial evidence. Andrews, 867 So.2d at 479; Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998).

The parties signed a marital settlement agreement (MSA) in 2000, providing for four years of “family support payments” while the former wife pursued her accounting degree in hopes of becoming a certified public accountant (CPA). After signing the MSA, the former wife attended school, but did not complete her accounting degree before the expiration of the family support period. In addition, she made no effort to seek employment until August of 2004, when she sought employment through Cardinal Services, an employment agency. She later secured a temporary part-time position with her counsel, working 25-30 hours per week at the rate of $7.50 per hour. Ms. Brown, the owner of Cardinal Services, testified that because the former wife had no work experience in the past 20 years and no degree, her opportunities were limited to low-skill/no-skill jobs that paid $7-9 per hour and were predominantly part-time positions. The trial court inquired as to the entry-level salary for a recent accounting graduate with no work experience seeking employment in Tallahassee, and Ms. Brown opined that the annual salary range would be $35,00(M0,000. Ms. Brown noted that a CPA could possibly earn $55,000, but an additional year of post-graduate study was required to become a CPA. Thereafter, the trial court imputed gross annual income of $45,000 to the former wife for the purpose of determining child support, alimony, and entitlement to attorney’s fees.

There is competent, substantial evidence to support the finding that the former wife is voluntarily underemployed because she did not make an effort to seek employment during the four years she received family support payments and she did not complete her accounting degree as anticipated. The trial court erred, however, in imputing income based upon the salary of an accountant because the former wife did not possess an accounting degree or any other occupational qualifications that would allow her to secure an accounting position. See Hinton, 725 So.2d at 1157. Therefore, we reverse the trial court’s imputation of income and remand for an evidentiary hearing to determine the proper amount of income to impute based upon the former wife’s current occupational qualifications. See id.; § 61.30(2)(b), Fla. Stat. The trial court should redetermine child support, alimony, and the former wife’s entitlement to attorney’s fees based upon the newly imputed amount.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, DAVIS, and THOMAS, JJ., concur.


text:
    James Ray TUBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5628.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    James Ray Tubbs, pro se, Petitioner.
    Charlie Crist, Attorney General; John Andrew Atkinson and Tracy Lee Cooper, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to rule on petitioner’s pending petition for writ of habeas corpus. We withhold issuance of the writ, being confident that the trial court will rule forthwith on the pending petition and will take such further action as required in a timely manner.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    D’Andre COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1029.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    D. Todd Doss, Lake City, for Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for appeal is denied- without prejudice to petitioner’s right to move for reinstatement of his direct appeal in case number 1D05-3811.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Roger MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1188.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Roger Miller, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Roger Miller is hereby afforded a belated appeal of the order denying his rule 3.850 motion for postconviction relief in case number 2001-CF-719 in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


author: PALMER, J.

text:
    JAMES T. BUTLER, P.A., Appellant, v. Larry Glenn WALKER, Alan Ritchey, Inc., et al., Appellee.
    No. 5D05-1881.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.
    Richard A. Kupfer, of Richard A. Kup-fer, P.A., Delray Beach, for Appellant.
    Roy D. Wasson and Annabel C. Majew-ski of Wasson Associates, Chartered Miami, and Joseph A. Glick of Joseph A. Glick, P.A., Miami, for Appellee.
   PALMER, J.

Attorney James T. Butler appeals the trial court’s final summary judgment which ruled that, due to a conflict of interest, Butler can not recover any attorney’s fees from Richard T. Fero on a settlement agreement reached on the Fero family’s personal injury lawsuit. Since the trial court failed to set forth sufficient factual findings as to how and when an actual conflict of interest arose between Butler and the Feros, this court is unable to fully review the correctness of the trial court’s ruling. Accordingly, we vacate the instant order and remand this matter to the trial court for entry of a proper order.

The Fero family was involved in a tragic automobile accident. As a result of the accident, Nathan Ryan Fero was killed. Richard T. Fero (father) sustained injuries rendering him a paraplegic. Elizabeth Fero (mother) also sustained injuries in the accident, although not as severe as the father’s injuries. Two other sons, Jacob and Richard, also sustained injuries.

Shortly after the accident, the family retained the services of Attorney James T. Butler to represent them in a personal injury lawsuit. Notably, the Feros signed three fee and costs agreements with Butler. One fee agreement was signed on behalf of the estate of Nathan Ryan Fero. Another fee agreement was signed by the mother and father, and a third fee agreement was signed on behalf of Jacob and Richard.

Butler, acting on behalf of the entire Fero family, filed a negligence suit against several defendants. Of importance to this appeal, after reaching small settlements with several of the defendants, three defendants remained in the lawsuit: (1) Larry Glenn Walker-Alan Ritchey, Inc. (Walker-Ritchey); (2) White Construction Company; and, (3) Greenhorne & O’Mara, Inc.

Prior to trial, Walker-Ritchey and White Construction Company reached a settlement with the Feros for a total of $5,400,000. However, during the apportionment negotiations, a dispute arose between the father and mother regarding the distribution of the settlement proceeds. Ultimately, the parties signed an agreement regarding the distribution. The mother also agreed that she, Jacob, and Richard would drop out of the lawsuit against the remaining defendant, Green-horne & O’Mara, and allow only the father and Nathan’s estate to proceed with that claim. At the conclusion of the trial on that claim, the jury returned a verdict finding no negligence on the part of Green-horne & O’Mara which was the legal cause of any injury to the father or the death of Nathan. As a result, the father recovered nothing on that claim.

Subsequently, Walker-Ritchey filed a motion to enforce settlement and for entry of an order of dismissal of the Feros’ claims, alleging that the Feros had failed to execute the releases in accordance with the parties’ settlement agreement. In response, Attorney Butler filed a motion alleging that the father was not cooperating with Butler concerning the disbursement of certain settlement funds and that the father was refusing to endorse certain checks received from the defendants.

Thereafter, the father filed a pro se motion alleging for the first time that Butler had a direct and irreconcilable conflict of interest regarding the proposed distribution of settlement funds. The father claimed that a conflict of interest existed between himself and the mother due to the fact that a divorce proceeding was initiated in 1999. He alleged that, despite the existence and continuation of the conflict of interest among the plaintiffs in this case, no effective disclosure of the conflict was made to the Feros by Butler and no knowing waiver of the conflict was obtained by Butler from the Feros. The father claimed that the existence of the conflict of interest raised a serious question as to whether Butler was entitled to receive his attorney’s fee for any sums collected by the father from the Walker-Ritchey and White Construction.

Butler responded claiming that he was entitled to receive his attorney’s fees on the father’s recovery from the Walker-Ritchey and White Construction settlements because the father had signed a valid fee contract for his services. Further, Butler alleged that he had represented the Feros, including the father, for five years without conflict, and that he believed the father was raising his claim of a conflict on interest in an attempt to avoid paying Butler his rightfully earned attorney’s fees. Butler also filed a motion to withdraw from the representation of the entire Fero family based on the father’s allegations of a conflict of interest.

The trial court held an evidentiary hearing on the issue of whether a conflict of interest existed between the father and the mother, and whether Butler should have obtained a waiver of said conflict.

At the hearing, the father testified that Butler failed to advise him that there was a potential conflict of interest between himself and the mother. He stated that he told Butler that he was dissatisfied with the apportionment of the Walker-Ritehey and White Construction settlements and that he never freely agreed on same. He testified that Butler pressured him hard to accept the apportionment offer made by the other family members. He further testified that Butler told him that if he did not accept the settlement offer then the mother would not testify favorably for him if he went to trial against Greenhorne & O’Mara. The father admitted that he did initial the settlement allocation agreement, signifying that he agreed to it.

At the conclusion of the hearing, the trial court entered an order which found:

1. A “conflict of interest” as contemplated by Rule 4-1 et al of the Florida Bar Rules of Professional Conduct, as to the White Construction and Walker-Rit-chey settlements, existed at all pertinent times between movant James T. Butler and his clients under their employment contracts (Movant Exhibit No.l) and he (Butler) failed to resolve sch [sic] conflict as required under said Rule; ...

More than eighteen months later, the father filed a motion for summary judgment seeking to have all of Butler’s attorney’s fees forfeited. He argued that forfeiture was warranted because, under Florida law, an attorney who fails to obtain a waiver of a conflict of interest forfeits his right to receive any fees received after the conflict of interest arises. Butler filed a counter motion for summary judgment seeking payment of his attorney’s fees. After conducting a hearing on the motions, the trial court entered a final summary judgment finding that Butler shall not recover any attorney’s fees from the father’s portion of the settlements with Walker-Ritehey and White Construction Company.

Butler challenges the trial court’s order claiming that no conflict of interest existed in his representation of the Fero family. Butler further maintains that, even if a conflict existed, he is entitled to recover the fees he earned up until the time that the conflict of interest arose. Butler also contends that the trial court erred by not specifically finding exactly how and when the conflict arose, but instead, just finding that the conflict existed “at all pertinent times.”

In order to analyze Butler’s appeal, the first order that must be considered is the trial court’s order concerning the eviden-tiary hearing on the issue of whether a conflict of interest existed.

The trial court’s findings of fact indicate that the conflict between the father and mother arose during the Walker-Ritehey and White Construction apportionment negotiations — -not at any time prior to these negotiations. Therefore, the father’s argument that the conflict began when he filed for divorce was apparently rejected by the trial court. However, the trial court failed to specify exactly how or when the conflict arose, other than to say that it existed “at all pertinent times.” Having failed to articulate exactly when the conflict arose, and the event or events that caused the conflict to arise, the trial court made it impossible for this court to effectively review the propriety of the court’s findings. Accordingly, we remand this matter for the entry of a detailed order specifying the date on which the conflict arose and the event or events which caused the actual conflict to arise.

Even if we were able to determine how and when the actual conflict of interest arose, that determination would not, as a matter of law, preclude Butler from receiving any attorney fee.

In his motion for summary judgment, the father relied on White v. Roundtree Transport, Inc., 386 So.2d 1287 (Fla. 3d DCA 1980), to support his argument that an attorney who fails to obtain a waiver of a conflict of interest forfeits his entitlement to recover any fees received after the conflict of interest arises. However, the actual holding of that case was that an attorney’s right to recover a fee terminates when he realizes or should have realized that he cannot ethically represent his client’s interests.

In White, the Third District relied on Hill v. Douglass, 271 So.2d 1 (Fla.1972) to support its holding that an attorney’s right to recover a fee terminates when the attorney realizes or should have realized that he cannot ethically represent his client’s interests. In Hill, the Supreme Court held that an attorney is entitled to recover a reasonable fee for work performed prior to learning in good faith, or at such a point as he should have learned, that he would probably become a witness in the matter precluding continuing representation, and not to share in any portion of the fee thereafter. Thus, Hill stands for the proposition that an attorney is entitled to receive a fee for the work performed up to the time the attorney realizes or should have realized that a conflict of interest arose which would preclude him from continuing to represent his clients. As such, Butler is clearly entitled to recover the fees earned up until the date the conflict of interest between the father and mother arose. Accordingly, the trial court must determine and award, on a quantum meru-it basis, the amount of the fee Butler earned up until that date. Id. See also Adams v. Montgomery, Searcy & Denney, P.A., 555 So.2d 957 (Fla. 4th DCA 1990) (holding that attorney’s right to recover a fee terminates when attorney realizes or should have realized that he cannot ethically represent his client). Compare Pessoni v. Rabkin, 220 A.D.2d 732, 633 N.Y.S.2d 338 (N.Y.App.Div.1995) (explaining that a violation of New York’s disciplinary rule results in the forfeiture of attorney’s fees).

VACATED and REMANDED.

LAWSON, J., and SHARP, W., Senior Judge, concur.


author: ORFINGER, J.

text:
    Talmage E. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-228.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.

      Talmage E. Thomas, Bushnell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Talmage E. Thomas appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Thomas was charged by information with aggravated battery with a deadly weapon pursuant to section 784.045(l)(a)(2), Florida Statutes (2000), a second-degree felony. Pursuant to an agreement with the State, Thomas entered a plea of no contest to the charge in exchange for the State’s recommendation of ten years in prison, followed by twenty years of probation. During the plea dialogue, the State described the incident that resulted in the charge against Thomas thusly:

On or about March 16, 2000, in Citrus County, the defendant did unlawfully actually intentionally touch or strike Cecil B. Evans against his will, and in the process cause bodily harm to that person.
In the commission of that battery, [Thomas] used a deadly weapon. In this case, it was a 9-millimeter semi-automatic pistol. He basically shot Mr. Evans with that pistol.

Upon hearing the facts of the incident, the trial court observed that this was a “10-20-life case.” In response, the State indicated that it would not appeal the agreed upon sentence if imposed, despite the minimum mandatory sentence mandated by section 775.087(2), Florida Statutes (2000). Consistent with the plea agreement, Thomas was sentenced to ten years in prison followed by twenty years of probation. He did not appeal his sentence, but now contends that his sentence is illegal since in the aggregate, it exceeds the fifteen-year maximum term authorized for a second-degree felony by section 775.082(3)(c). The trial court denied Thomas’s motion and this appeal followed. For the reasons stated hereafter, we reverse.

“To be illegal within the meaning of rule 3.800(a)[,] the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” Carter v. State, 786 So.2d 1173, 1178 (Fla.2001) (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)). In order to obtain relief pursuant to rule 3.800(a), the claim must establish a basis for relief from the face of the record. Harris v. State, 902 So.2d 292, 292 (Fla. 3d DCA 2005).

In arguing Thomas’s sentence is authorized, the State posits:

Florida’s “10-20-life” statute provides that when a defendant carries, uses, or kills/injures someone during the commission of a crime, the felony is reclassified one degree higher for punishment purposes. In the instant case, the Defendant was charged with a second degree felony. Since he used a gun during the felony, it was reclassified as a first degree felony and it was punishable by 30 years in prison. See section 775.082, Fla. Stat. (2000). Since the Defendant discharged the gun during the aggravated battery, he was also subject to a 20 year mandatory minimum pursuant to § [ ]775.087(2)(a)(2).
In the instant case, the Defendant chose to enter a negotiated plea to 10 years in prison followed by 20 years of probation. Since he faced a maximum sentence of 30 years with 20 mandatory, his sentence is not an illegal sentence. It is clear that the information adequately charged the offense so that the court could impose the 10-20-life sanctions. The Defendant freely and voluntarily accepted the agreed sentence, therefore, the order denying the motion to correct sentence was properly denied.

The State’s argument fails for several reasons. The State incorrectly argues that Thomas’s aggravated battery with a deadly weapon charge was reclassified to a first-degree felony pursuant to section 775.087(l)(b), Florida Statutes (2000). In relevant part, section 775.087(l)(b) provides:

775.087 Possession of use of weapon; aggravated battery; felony reclassification; minimum sentence.—
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified as follows:
(b) In the case of a felony of the second degree, to a felony of the first degree.

(Emphasis added).

The crime of aggravated battery, generally a second-degree felony under section 784.045(2), is committed when a defendant: (1) causes great bodily harm, permanent disability, or disfigurement; or (2) uses a deadly weapon. The offense of aggravated battery is reclassified as a first-degree felony pursuant to 775.087(l)(b) when the crime involves a deadly weapon or firearm, unless “the use of a weapon or firearm is an essential element” of the charge. § 775.087(1)(b), Fla. Stat. (2000); Lareau v. State, 573 So.2d 813, 814 (Fla.1991). Here, because the State charged Thomas with aggravated battery by the use of a deadly weapon, the charge could not be reclassified to a first-degree felony because the use of the deadly weapon was an essential element of the charge.

The impact of the 10-20-life statute is more problematic because the information filed by the State adequately alleged Thomas’s use of a firearm. That allegation, along with the facts put forth by the State during the plea dialogue required the court to impose the twenty-year minimum prison term mandated by section 775.087(2). Nevertheless, the State negotiated a plea that did not call for the minimum mandatory provision. The State was, of course, free to amend the information to delete the allegations needed to bring the charge within the mandatory sentencing provision of the 10-20-life law. Because the State negotiated a sentence that could only have been imposed without regard to the 10-20-life law, we must assume that the State, at least implicitly, amended the information to delete the allegations that would have otherwise required a mandatory twenty-year prison term. As a result, we conclude that Thomas’s sentence is illegal, as it exceeds the fifteen-year maximum for a second-degree felony.

For these reasons, we reverse the order on review and remand this matter to the trial court with directions that Thomas be resentenced to a term that in the aggregate does not exceed fifteen years, or at the State’s option, that the plea agreement be nullified since it called for an unauthorized sentence. If the State chooses the latter option, the matter may then proceed to trial and any lawful sentence supported by the evidence and the jury’s findings may be imposed.

REVERSED AND REMANDED.

THOMPSON and MONACO, JJ., concur.

      . Section 775.087(2), Florida Statutes, is generally referred to as the 'T0-20-life” statute. See Elozar v. State, 872 So.2d 934 (Fla. 5th DCA 2004).

      . The initial sentence was imposed by a predecessor judge.


author: VILLANTI, Judge. FULMER, Chief Judge,

text:
    Timothy M. COUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3541.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
   VILLANTI, Judge.

Timothy Coughlin challenges the post-conviction court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order denying all three of Coughlin’s claims. However, we write to recede from Ross v. State, 760 So.2d 214 (Fla. 2d DCA 2000), insofar as it permits double jeopardy challenges to convictions under rule 3.800(a).

Coughlin entered an open plea of no contest to attempted first-degree murder, attempted felony murder, robbery with a deadly weapon, and fleeing and eluding. He was convicted and sentenced for all four offenses. Citing Wittemen v. State, 735 So.2d 538, 539 (Fla. 2d DCA 1999), Coughlin asserts that the trial court illegally sentenced him for the attempted first-degree murder and attempted felony murder convictions because both offenses involved a single act and victim. Coughlin affirmatively alleges that the information and the plea colloquy facially demonstrate that the offenses involved the same act and victim. See Fla. R. Crim. P. 3.800(a). As a result, Coughlin argues that the trial court violated double jeopardy principles by sentencing him for both offenses, and because the plea was not negotiated, there is nothing in the record indicating that he waived the double jeopardy challenge. See Novaton v. State, 634 So.2d 607, 608 (Fla.1994).

The postconviction court denied this claim because it attacks Coughlin’s convictions, rather than his sentences, and is therefore not cognizable under rule 3.800(a). See, e.g., Plowman v. State, 586 So.2d 454, 456 (Fla. 2d DCA 1991); Henry v. State, 920 So.2d 1204, 1205 (Fla. 4th DCA 2006); Salazar v. State, 675 So.2d 654, 655 (Fla. 3d DCA 1996); State v. Spella, 567 So.2d 1051, 1051 (Fla. 5th DCA 1990); Ferenc v. State, 563 So.2d 707, 707 (Fla. 1st DCA 1990). Because this rule is well established in Florida, we would typically affirm the postconviction court’s order per curiam. However, because Ross directly conflicts with the established rule, we write to recede from Ross.

In Ross, the defendant argued in a rule 3.800(a) motion that his sentences were illegal because his guideline scoresheet included both his grand theft and fraudulent use of a credit card convictions in violation of section 775.021(4)(b)(2), Florida Statutes (1993). Ross, 760 So.2d at 214. Without first addressing whether a double jeopardy challenge to convictions was cognizable under rule 3.800(a), the court determined that State v. McDonald, 690 So.2d 1317 (Fla. 2d DCA 1997), controlled. Ross, 760 So.2d at 214. McDonald is a direct appeal case holding that “illegally obtaining property through the use of a forged credit card and grand theft are degrees of the same offense.” McDonald, 690 So.2d at 1319. As a result of misapplying McDonald, the Ross court reversed the post-conviction court’s order denying relief, vacated the defendant’s credit card fraud conviction, and ordered the postconviction court to resentence the defendant using a new scoresheet. Ross, 760 So.2d at 214.

Double jeopardy challenges to convictions are not cognizable under rule 3.800(a) for two reasons. First, a traditional double jeopardy challenge attacks both the conviction and, by default, the sentence, while rule 3.800(a) is limited to claims that a sentence itself is illegal, without regard to the underlying conviction. See, e.g., Plowman, 586 So.2d at 455; Henry, 920 So.2d at 1205; Salazar, 675 So.2d at 655; Spella, 567 So.2d at 1051; Ferenc, 563 So.2d at 707. Second, permitting defendants to attack their conviction and sentence under rule 3.800(a) would subsume Florida Rule of Criminal Procedure 3.850 into rule 3.800(a), thereby allowing defendants to circumvent rule 3.850’s two-year time bar for attacking their convictions and sentences. Cf. United States v. Little, 392 F.3d 671, 678 (4th Cir.2004) (finding that expanding Federal Rule of Criminal Procedure 35(a), after which rule 3.800(a) is modeled, would impermissibly infringe upon other collateral review rules).

Coughlin’s reliance on Hopping v. State, 708 So.2d 263 (Fla.1998), is misplaced. Hopping concerned a sentence’s unconstitutional enhancement following its commencement. Id. at 264-65. Such double jeopardy challenges are distinguishable from Coughlin’s challenge because a Hopping challenge is solely a sentencing issue. However, Coughlin’s double jeopardy challenge, although couched as an attack on his sentences, is inherently attacking his convictions because correcting the alleged double jeopardy violation would require vacating an underlying conviction. See Kurtz v. State, 564 So.2d 519, 521 (Fla. 2d DCA 1990) (“[I]t has been the general practice of the appellate courts to vacate both the adjudication of guilt and the sentence associated with a second offense which presents a double jeopardy problem.”), disapproved of on other grounds, Novaton v. State, 634 So.2d 607 (Fla.1994). As a result, such challenges are not cognizable under rule 3.800(a) and should be raised under rule 3.850. Plowman, 586 So.2d at 455; Ferenc, 563 So.2d at 707. Coughlin’s motion could not be treated as a rule 3.850 motion because it is procedurally time barred.

Therefore, we recede from Ross insofar as it contradicts our holding today and affirm the postconviction court’s order denying Coughlin’s rule 3.800(a) motion in all respects.

Affirmed.

ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, CANADY, WALLACE, and LaROSE, JJ., Concur.

FULMER, C.J., Dissents with an opinion in which KELLY, J., Concurs.

FULMER, Chief Judge,

Dissenting.

I dissent because Coughlin attacked only his sentences, and it is my view that an illegal sentence can be set aside without the necessity of also setting aside the conviction.

      . "The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction.... Exceptions to this rule of construction are ... (2) Offenses which are degrees of the same offense as provided by statute.” § 775.021 (4)(b)(2), Fla. Stat. (1993).

      . The Ross opinion is also unclear as to whether the challenged convictions were primary offenses on his scoresheet. Ross, 760 So.2d at 214. However, the fact that Ross vacated one of the convictions suggests they were primary offenses. Id.


author: CANADY, Judge.

text:
    Eulice GUEVARA-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4110.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

In this appeal briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Eulice Guevara-Rodriguez challenges her convictions and sentences for interference with child custody, giving a false name, having no valid vehicle registration, grand theft of a motor vehicle, possession .of drug paraphernalia, false imprisonment, and driving with a suspended license after prior violations. We affirm Guevara-Rodriguez’s convictions without comment. We also affirm the sentences as imposed.

We write only to point out that the State’s concession of error as to the imposition of the $3 teen court cost was erroneous. Guevara-Rodriguez failed to preserve that issue because she did not raise the matter at the sentencing hearing or file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b).

Affirmed.

DAVIS and WALLACE, JJ., Concur.


author: STRINGER, Judge.

text:
    R.A.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4500.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

R.A.B., a juvenile, seeks review of the restitution order entered after he pleaded no contest to obstructing or opposing an officer without violence. R.A.B. argues that the damage and loss suffered by the victim did not bear a significant relationship to the offense and were improperly established by hearsay testimony. We agree that the damage and loss did not bear a significant relationship to the offense and reverse on that basis.

The charges in this case arose from an incident in which R.A.B. fled after police stopped the stolen car in which he was a passenger. The State charged R.A.B. with obstructing or opposing an officer without violence and trespass in an unoccupied structure or conveyance. R.A.B. entered a no contest plea to the charge of obstructing or opposing an officer without violence with the understanding that the trespass charge would be nolle prossed. The trial court ordered restitution for exterior damage to the vehicle and some personal property that was stolen from the vehicle’s interior.

R.A.B. argues that the trial court abused its discretion in ordering him to pay restitution because the damage and loss suffered by the victim do not bear a significant relationship to the offense of obstructing or opposing an officer without violence. The State does not dispute the insufficiency of the relationship between the victim’s damage and loss and the offense, but argues that restitution was a condition of R.A.B.’s plea and was not required to bear a significant relationship to the convicted offense pursuant to section 775.089(l)(b)(2), Florida Statutes (2005).

The resolution of this issue thus turns on whether restitution was a condition of R.A.B.’s plea. Our review of the plea form and transcript of the plea hearing reveals that it was not. The plea form does not mention restitution but lists the only condition of the plea as follows: “I am pleading pursuant to a Plea Agreement and the terms of that agreement are as follows: NP ct. 2• — Trespass of unoccupied structure or conveyance.” Although the State indicated that it was seeking restitution at the plea hearing, defense counsel did not concede that restitution was appropriate but merely agreed to set a restitution mediation date. Furthermore, the court did not inform R.A.B. that he was waiving his right to contest restitution during the plea colloquy.

Thus, the record does not establish that restitution was a condition of R.A.B.’s plea agreement, and section 775.089(l)(b)(2) does not apply. Because the damage and loss suffered by the victim do not bear a significant relationship to the offense of obstructing or opposing an officer without violence, the trial court abused its discretion in ordering restitution. See J.O.S. v. State, 689 So.2d 1061, 1064 (Fla.1997); J.M. v. State, 658 So.2d 1128, 1129 (Fla. 2d DCA 1995). Accordingly, we reverse the restitution order on this basis.

Reversed.

FULMER, C.J., and CASANUEVA, J., Concur.

      . Pursuant to section 775.089(l)(b)(2), Florida Statutes (2005), "A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.”


author: NORTHCUTT, Judge.

text:
    Gary Lee MUNGEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-328.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
   NORTHCUTT, Judge.

Gary Mungen challenges the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As to his claim of ineffective assistance of counsel, we affirm the denial of relief without further comment. However, we reverse the postconviction court’s finding that the record conclusively refutes Mungen’s claim that his plea was involuntarily entered and remand for an evidentiary hearing.

Mungen’s motion and accompanying memorandum of law, which was sworn, argued that his plea was involuntary because he was under the influence of psychotropic medication at the time he entered it and that he would not have agreed to the plea if he had not been under the influence. Such a claim is facially sufficient and cognizable under rule 3.850. See Colon v. State, 933 So.2d 2, 2006 WL 1098269 (Fla. 2d DCA Apr.19, 2006); Mosley v. State, 888 So.2d 734, 734 (Fla. 1st DCA 2004).

When summarily denying this claim, the postconviction court attached a copy of the plea colloquy in Mungen’s case. The fact that Mungen was medicated was discussed during the colloquy, and Mungen’s counsel told the trial court that the medication was not affecting Mungen’s ability to plead and understand the consequences of the plea. However, the trial court never personally asked Mungen whether the medication was affecting his ability to understand the proceeding and to voluntarily plead. See Fla. R.Crim. P. 3.172(c) (“Except when the defendant is not present for a plea, ... the trial court should, when determining vol-untariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands: (1) the nature of the charge to which the plea is offered .... ”).

Although the plea transcript reflects that the trial court was concerned about the effect of the medications and satisfied itself that they were not impairing Mun-gen’s ability to enter the plea, the transcript does not conclusively refute his claim to the contrary. See Campbell v. State, 488 So.2d 592, 592-93 (Fla. 2d DCA 1986). Accordingly, we reverse and remand this case for the postconviction court to conduct an evidentiary hearing as to this claim.

Affirmed in part; reversed and remanded in part.

KELLY and WALLACE, JJ„ Concur.


author: VAN NORTWICK, J.

text:
    Kurt FICOCELLI, Sr., Appellant, v. JUST OVERLAY, INC., Appellee.
    No. 1D05-3155.
    District Court of Appeal of Florida, First District.
    July 11, 2006.

      Larry Cangro and Raymond O. Burger of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellant.
    Douglas J. Barnard and Dawn M. Rapo-port of the Barnard Law Group, Fort Lauderdale, for Appellee.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Kurt Ficocelli, Sr., the claimant below, appeals an order of the Judge of Compensation Claims (JCC) determining that his employer, Just Overlay, Inc., appellee, was not engaged in the construction industry and that, since Just Overlay did not employ four or more employees, it was not required to provide workers’ compensation coverage for Ficocelli. Because we conclude that the business activities of Just Overlay were within the “construction industry” as defined in section 440.02(8), Florida Statutes (2004), and the rule promulgated thereunder, we hold that the ap-pellee was required to comply with the workers’ compensation law. Accordingly, we reverse and remand for further proceedings.

On the date of his accident, Ficocelli was working on the roof of a hanger at the Clearwater/St. Petersburg Airport applying white sealant coating to the roof. He stepped backwards onto a translucent panel which gave way under his weight. He fell approximately thirty-five to forty feet to the concrete hangar floor below, suffering serious injuries. At the time, Just Overlay performed work at airports in Florida and south Georgia. The work included resealing and restriping tarmacs; sealing and coating roofs on hangers; repairing leaks in those roofs, which at times required replacing part of the roof structure; pressure washing hangers; and cleaning up debris. On occasion, Just Overlay’s employees installed ceiling tiles.

Under section 440.09(1), Florida Statutes (2004), “[t]he employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment.” Section 440.02 defines “employment” for the purposes of chapter 440 as including “all private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer.” See § 440.02(17)(b)2, Fla. Stat. (2004). It is undisputed that Just Overlay employed fewer than four employees. Therefore, for Just Overlay to be subject to the workers’ compensation law, it must be engaged in business activities in the construction industry.

Section 440.02(8) defines “construction industry” as follows:

“Construction industry” means for-profit activities involving any building, clearing, filling, excavation, or a substantial improvement in the size or use of any structure or the appearance of any land. However, “construction” does not mean a homeowner’s act of construction or the result of a construction upon his or her own premises, provided such premises are not intended to be sold, resold, or leased by the owner within one year after the commencement of construction. The Division may, by rule, establish standard industrial classification codes and definitions thereof which meet the criteria of the term “construction industry” as set forth in this section.

Pursuant to the authority provided by section 440.02(8), the Division of Workers’ Compensation of the Department of Financial Services has adopted a rule that establishes industrial classification codes for businesses within the “construction industry” as defined by section 440.02(8). Florida Administrative Code Rule 69L-6.021, governing construction industry classification codes, provides, in pertinent part, as follows:

69L-6.021 Construction Industry Classification Codes, Descriptions, and Operations Scope of Exemption
(1) The Division adopts the classification codes and descriptions that are specified in the Florida Contracting Classification Premium Adjustment Program, and published in the Florida exception pages of the National Council on Compensation Insurance, Inc. (NCCI), Basic Manual (October 2005 ed.). For convenience, the Division lists here the classification codes and descriptions that are published in the Florida exception pages of the Basic Manual and adopted in this rule.
* * *
(ii) 5474 Painting or Paperhanging NOC and Shop Operations, Drivers.
* * *
(jj) 5478 Carpet, Linoleum, Vinyl, Asphalt, or Rubber Floor Tile Installation.
* * *
(tt) 5538 Sheet Metal Work — Shop and Outside — NOC and Drivers.

The JCC concluded that Just Overlay made only “minor” repairs to facilities and, therefore, ruled that its activities did not fall within the definition of “construction industry.” We respectfully disagree. Because the pertinent facts in this case are not in dispute, and the issue is the interpretation to be given to the statutory definition of “construction industry,” our review is de novo. Lombardi v. Southern Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004).

Section 440.02(17)(b)2, a numerical-minimum exemption statute, was undoubtedly enacted to avoid administrative inconvenience to small employers. See 4 Arthur Larson & Lex K Larson, Larson’s Workers’ Compensation Law, chapter 74 (2005 ed.). However, in 1989, the legislature extended coverage to employees of construction industry employers who employ one or more employees. We agree with Ficocelli that this change was made to ensure that workers performing inherently dangerous work in the construction industry would be covered, even when they are working for small employers who employ only a few employees.

Turning to the statutory definition of “construction industry,” the legislature has defined the term broadly to include, in pertinent part, “activities involving any building, clearing, filling, excavation, or a substantial improvement in the ... use of any structure.” § 440.02(8), Fla. Stat. (2004)(emphasis added). Because the definition uses the disjunctive “or,” for activities to satisfy this definition it is not necessary that the construction-related activity substantially improve the use of the subject structure. It is sufficient if the activities constitute “building, clearing, filling, [or] excavation.” Id. Here, the nature of Just Overlay’s business is clearly within the type of “building” activities traditionally included in the construction industry. Further, while the work of Just Overlay did not improve the size of the airport hangers, where the work performed by Just Overlay repaired or sealed the roofs of airport hangers, Just Overlay’s activities did result in substantial improvement in the use of those hangers as contemplated by section 440.02(8). The repairs and sealing of the roof were necessary to permit the airport hangers to continue to function as storage facilities that protect aircraft and other equipment from the elements.

Further, we find useful the industrial classification codes adopted by the Division. Under the pertinent standard industrial classification codes in rule 69L-6.021(1), painting, application of vinyl and asphalt, tile installation, and sheet metal work all constitute work which is included within the construction industry. The activities of Just Overlay are analogous to work performed in these classification codes and, thus, are no less within the construction industry as defined.

REVERSED and REMANDED for further proceedings consistent with this opinion.

KAHN, C.J., and ERVIN, J., concur.

      . NOC means "not otherwise classified,” meaning that no other classification code more specifically describes the business activity.


author: KAHN, C.J.

text:
    Nukarri K. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2855.
    District Court of Appeal of Florida, First District.
    July 11, 2006.

      Frank E. Sheffield and M. Lilja Dande-lake, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Sr. Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, C.J.

Nukarri K. Williams appeals his convictions and sentences for first-degree murder and attempted first-degree murder. The State sought the death penalty, but the trial court sentenced Williams to life imprisonment. Williams argues the trial court reversibly erred by allowing Williams to retain counsel who did not meet all the requirements of Florida Rule of Criminal Procedure 3.112(f). We affirm the convictions and sentences.

BACKGROUND

One month before his trial, Williams’ family hired a private attorney, Mr. Colle-ton, whom Williams wished to have represent him. The trial judge conducted a hearing on the matter on September 2, 2003. Williams testified, under oath, at the hearing. The following exchange took place:

The Court: Mr. Williams, Mr. Colleton has filed a motion to come in as substitute counsel to take over from the previous attorneys that have been representing you, Mr. Way and Mr. Leace. Is that your desire to have Mr. Colleton come in and represent you?

The Defendant: Yes.

Fully aware that Florida Rule of Criminal Procedure 3.112(f) imposes certain requirements upon lead counsel in death penalty cases, the trial judge questioned Mr. Colleton about his qualifications to represent a defendant in a death penalty case. In response, Mr. Colleton listed his experience as a criminal attorney for more than 20 years. Mr. Colleton conceded that:

I think the only matter that I do not meet the letter of the rule would be with regard to having tried a death penalty case or two death penalty cases.

The trial judge, unsure whether Mr. Colle-ton satisfied the criteria, sought a waiver of rule 3.112 from Williams in the event Mr. Colleton did not qualify under the rule. The trial judge asked Williams a few questions:

The Court: Mr. Williams, what we’re talking about is the Supreme Court has set up rules by which persons qualify to be on a death penalty case. These rules are quite technical. It may turn out— maybe I misread the rule, maybe Mr. Colleton does not technically qualify for this rule. If he does not qualify under this rule, do you still want him to represent you in this case?
The Defendant: Yes, sir.
The Court: Do you understand that down the road you’re not going to be able to complain that — you know, and I think he does, frankly, but it may be that he doesn’t — assuming he does not qualify under this rule, you’re not going to be able to go to Court and say, my lawyer didn’t qualify, therefore, you need to set this judgment aside. Do you understand what I’m saying?
The Defendant: Yes, sir.
The Court: Do you wish for Mr. Colle-ton to come on to your case?
The Defendant: Yes, sir.

Upon Williams’ request, the trial court granted the substitution of counsel motion.

On June 7, 2004, a jury found Williams guilty of both first-degree murder and attempted first-degree murder. In the sentencing phase of the trial, the jury did not recommend the death penalty, opting for life in prison without the possibility of parole. Accordingly, the court sentenced Williams to life without parole. Williams now appeals and argues that he should have been protected from his knowing choice of counsel.

ANALYSIS

Florida Rule of Criminal Procedure 3.112(f) establishes minimum standards for attorneys in capital cases. Under the rule, attorneys acting as lead counsel in such cases must meet the following criteria:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
(2) are experienced and active trial practitioners with at least five years of litigation experience in the field of criminal law; and
(3) have prior experience as lead counsel in no fewer than nine state or federal jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead defense counsel or cocounsel in at least two state or federal cases tried to completion in which the death penalty was sought. In addition, of the nine jury trials which were tried to completion, the attorney should have been lead counsel in at least three cases in which the charge was murder; or alternatively, of the nine jury trials, at least one was a murder trial and an additional five were felony jury trials; and
(4) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
(5) are familiar with and experienced in the utilization of expert witnesses and evidence, including but not limited to psychiatric and forensic evidence; and
(6) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, including but not limited to the investigation and presentation of evidence in mitigation of the death penalty; and
(7) have attended within the last two years a continuing legal education program of at least twelve hours’ duration devoted specifically to the defense of capital cases. Attorneys who do not meet the continuing legal education requirement on July 1, 2002, shall have until March 1, 2003, in which to satisfy the continuing legal education requirement.

Fla. R.Crim. P. 3.112(f) (emphasis added). The underscored language provides the basis for the present claim. Lead defense counsel, Mr. Colleton, despite being an accomplished attorney, never participated in a death penalty case before handling Williams’ trial. Williams claims that, by misconstruing the rule and assigning Mr. Colleton as lead counsel in this case, the trial court violated Florida Rule of Criminal Procedure 3.112(f) and, as a result, committed reversible error.

As Williams not only failed to object to Mr. Colleton’s representation at trial, but affirmatively chose Mr. Colleton to represent him, we must presume Williams considers the trial court’s failure to follow the rule fundamental error. The standard of review for a pure question of law is de novo. See Jones v. State, 912 So.2d 686 (Fla. 1st DCA 2005). Williams’ argument fails for several reasons.

First, Williams has mixed practice and procedural rules with substantive law. The Florida Supreme Court differentiated between substantive law and procedural rules in Haven Federal Savings & Loan Ass’n v. Kirian, 579 So.2d 730, 732 (Fla.1991):

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. On the other hand, practice and procedure “encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and corresponding defenses.

(citations omitted). Substantive law creates substantive rights; rules of procedure, however, “merely provide the remedies to enforce rights.” State v. Dorian, 619 So.2d 311, 313 (Fla. 3d DCA 1993), quashed on other grounds, 642 So.2d 1359 (Fla.1994); see Birnholz v. 44 Wall St. Fund, Inc., 880 F.2d 335, 339 (11th Cir.1989) (finding that procedural rules are “legal machinery and not a fountain of legal rights”). The Supreme Court Criminal Rules of Procedure Committee included the following comment to rule 3.112:

These standards are not intended to establish any independent legal rights. ... Any claims of ineffective assistance of counsel will be controlled by Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].

Fla. R.Crim. P. 3.112 Comm. Cmts. (emphasis added).

The supreme court characterizes rule 3.112 as a rule of efficiency intended to decrease the “number of claims of ineffective assistance in postconviction proceedings.” In re Amend. to Fla. Rules of Crim. P. — Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 820 So.2d 185, 194 (Fla.2002) (amending rule 3.112 to apply to privately retained attorneys). As a result, rule 3.112 does not provide Williams with an independent right to relief. Strickland will control any argument that Mr. Colleton rendered ineffective assistance of counsel. No such claim, however, has been raised.

Instead, Williams argues that the Florida Supreme Court has prohibited death penalty defendants from waiving rule 3.112 and, as a result, any such waiver nullifies a subsequent conviction. See In re Amend, to Fla. Rules of Crim. P. — Rule 3.112, 820 So.2d at 192 (declining to adopt a waiver provision). Where no right exists, the question of waiver does not arise. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (defining “waiver” as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right”); see also Black’s Law Dictionary 1574 (7th ed.) (defining “waiver” as “[t]he voluntary relinquishment or abandonment — express or implied — of a legal right or advantage”). As discussed above, rule 3.112, as a rule of procedure, establishes no independent right to relief. Instead, the rule merely governs the machinery of court proceedings.

The Sixth Amendment protects the right to put on a trial defense, including the right to waive assistance of counsel and represent one’s self. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.”). Respecting the constitutional right to self-representation, the Florida Supreme Court has affirmed numerous death penalty convictions in which defendants represented themselves. See, e.g., Diaz v. State, 513 So.2d 1045 (Fla.1987); Muhammad v. State, 494 So.2d 969 (Fla.1986); Johnston v. State, 497 So.2d 863 (Fla.1986); Jones v. State, 449 So.2d 253 (Fla.1984). In situations where a defendant’s Sixth Amendment right conflicts with a rule of procedure, the defendant’s constitutional right must prevail. See Harrison v. State, 152 Fla. 86, 12 So.2d 307, 309 (1943) (adopting, on rehearing, Justice Chapman’s opinion as the majority opinion: “The duty of maintaining the constitutional rights of a person on trial for his life rises above mere rules of procedure and whenever the court is clearly satisfied of the violation it will not sanction its approval”). Prohibiting a defendant from hiring his choice of attorney raises serious Sixth Amendment questions, especially in light of the fact that defendants are constitutionally empowered to represent themselves in such proceedings. Accordingly, we decline to ignore Williams’ exercise of his constitutional right.

As suggested above, Williams’ argument neglects to even address Strickland. To establish ineffective assistance of counsel, a convicted criminal defendant must satisfy the two-prong requirement of Strickland: (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 687-88, 694, 104 S.Ct. 2052; see Huff v. State, 762 So.2d 476, 480 (Fla.2000) (“In order to establish an ineffective assistance of counsel claim, a defendant must demonstrate that counsel’s performance was deficient and that there is a reasonable probability that but for the deficiency, the outcome would have been different.”). We have noted the following claim in Williams’ brief, advanced without reference to the trial record:

Based upon a review of the record, it is clear that Mr. Colleton was an inexperienced death penalty attorney who had no business representing the defendant. At best, Mr. Williams received ineffective assistance of counsel in his first degree murder trial.

Williams points to no instance, in the eighteen volumes of record, where Mr. Colle-ton rendered ineffective assistance.

Finally, if any error could be attributed to the trial court, such error was harmless. See Walden v. State, 319 So.2d 51, 52 (Fla. 1st DCA 1975) (“ ‘[T]he violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.’ ” (quoting Richardson v. State, 246 So.2d 771, 774 (Fla.1971))); Salamone v. State, 247 So.2d 780, 781 (Fla. 3d DCA 1971) (same). The specter of the penalty of death distinguishes capital cases from all others. The jury considers the appropriateness of death during the sentencing phase of trial. See Armstrong v. State, 862 So.2d 705, 724 (Fla.2003) (Anstead, J., specially concurring) (explaining that the sentencing phase of a death penalty case more resembles a separate trial than it does a non-capital sentencing proceeding). The major thrust of rule 3.112(f), therefore, goes to the sentencing phase of a capital trial, as it is this part of the capital trial that distinguishes it from other trials. Certainly, no special rules apply to lawyers who represent defendants in non-death capital cases. As Williams did not receive the death penalty, Mr. Colleton’s failure to qualify under rule 3.112(f), if error, is harmless. Again, we are directed to no error, committed by either the trial court or defense counsel, during the guilt phase of the trial.

AFFIRMED.

WOLF and BENTON, JJ., concur.


text:
    John MOSLEY, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3192.
    District Court of Appeal of Florida, First District.
    July 11, 2006.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

John Mosley appeals the summary denials of his motion to withdraw his plea and his motion for trial. “This Court has consistently held that, ‘once a defendant indicates his desire to avail himself of the [Florida Rule of Criminal Procedure] 3.170(Z) procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’ ” Norman v. State, 897 So.2d 553, 553 (Fla. 1st DCA 2005) (quoting Lester v. State, 820 So.2d 1078, 1078 (Fla. 1st DCA 2002)); see Young v. State, 910 So.2d 899 (Fla. 1st DCA 2005); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002). Accordingly, the trial court’s summary denials of Appellant’s motions are reversed and remanded. Upon remand, conflict-free counsel shall be appointed to assist Appellant in this cause.

REVERSED and REMANDED with INSTRUCTIONS.

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


text:
    Harold MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5056.
    District Court of Appeal of Florida, First District.
    July 11, 2006.

      Harold Miller, pro se, Appellant.
    Charlie Crist, Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying his Florida Rule of Criminal Procedure 3.800(a) motion. After being convicted of possession of a firearm by a convicted felon, a second-degree felony, and classified as a habitual violent felony offender, the appellant was sentenced to 30 years’ imprisonment with a 15-year minimum mandatory. The minimum mandatory portion of appellant’s sentence exceeds the 10-year minimum mandatory term authorized under section 775.084(4)(b)2, Florida Statutes (Supp.1996). Therefore, we reverse and remand with instructions to the trial court to correct this sentence to reflect a 10-year minimum mandatory. See Ruffin v. State, 835 So.2d 272 (Fla. 3rd DCA 2002) (remanding to the trial court to correct a sentence for second-degree felony as a habitual violent felony offender to reflect a 10-year minimum mandatory).

The trial court’s order is otherwise affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    Jason ERICKSON, Appellant, v. Sherry L. ERICKSON, Appellee.
    No. 1D05-5753.
    District Court of Appeal of Florida, First District.
    July 11, 2006.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tallahassee, for Appellant.
    G. Cline Moore of Smith, Smith & Moore, P.A., Perry, for Appellee.
   PER CURIAM.

Appellant seeks review of an Order on Writ of Civil Attachment. Because the trial court’s finding that appellant had the ability to pay the purge amount set is not supported by competent substantial evidence, we are constrained to reverse. See, e.g., Stebbins v. Stebbins, 754 So.2d 903 (Fla. 1st DCA 2000); Perez v. Perez, 599 So.2d 682 (Fla. 3d DCA 1992).

REVERSED.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    Carl J. GAMBLE d/b/a Carl’s Main Street Cafe, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D06-1378.
    District Court of Appeal of Florida, First District.
    July 11, 2006.
    Carl J. Gamble, pro se, Appellant.
    Charlie Crist, Attorney General; Richard. M. Prendergast and John Mika, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. The dismissal is without prejudice to appellant seeking relief pursuant to Florida Rule of Civil Procedure 1.540. See Gundlah v. Moore, 831 So.2d 780 (Fla. 4th DCA 2002); Brown v. Fla. Parole Comm’n, 763 So.2d 1262 (Fla. 1st DCA 2000).

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.