author: GREEN, J.

text:
    Helmut M. CUECHA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2546.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Helmut M. Cuecha, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN, and SUAREZ, JJ.
   GREEN, J.

The appellant appeals from an order denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse in part and affirm in part.

On September 25, 2000, defendant was charged by information with five counts of engaging in sexual acts with a familial child, two counts of lewd and lascivious molestation on a child 12-16 years, and three counts of lewd and lascivious assault on a child. On January 6, 2003, defendant pled guilty to ten counts of sexual misconduct against his daughter and was sentenced to 13 years in state prison.

Defendant filed a 3.850 post conviction relief motion, which was subsequently amended. The state filed a response and, without an evidentiary hearing, the court denied the defendant’s motion. The order found that the defendant’s first three allegations were refuted by the plea colloquy and sentencing transcript and that the defendant’s fourth allegation was an improper subject matter for a 3.850 motion. This appeal followed.

Counts one and two of the defendant’s post-conviction motion revolve around the plea agreement that the defendant accepted. The defendant claims that counsel incompetently told him to turn down the state’s plea offer of seven years and thus he wound up with a less favorable offer of thirteen years in state prison. The state has failed to address this issue, and the record fails to conclusively refute the defendant’s claim.

In count three of defendant’s motion he claims that counsel failed to correct the birthday of his victim from May 14, 1981, to May 14, 1983. In addition, the defendant claims that the victim did not enter this country until July 1, 1997, and therefore, none of the criminal conduct could have occurred before that date. Thus, the defendant claims that his counsel was ineffective for failing to pursue these issues because the victim’s incorrect age, and incorrect date for the crimes classified him in a more severe category of felony than was warranted. Again, the record does not conclusively refute the defendant’s claim. Therefore, we reverse as to counts one, two and three and remand for an evidentiary hearing or other appropriate proceedings pursuant to Florida Rule of Appellate Procedure 9.141(b)(2)(D).

In count four of his motion the appellant contends that the trial court erred in designating him a sexual predator because Florida’s Sexual Predator Act, section 775.21, Florida Statutes (2003), violates procedural due process. He also claims that the trial court erred in denying his post-conviction motion on grounds that, among other things, a sexual predator designation was an improper subject matter to be raised in a 3.850 motion.

Both parties now admit that there is no order designating the defendant as a sexual predator. Hence, this issue is baseless. Accordingly, without opinion, we affirm the trial court’s denial of said claim. Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999)(The “longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that reaches the right result, but for the wrong reasons”). See State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002); Medina v. State, 920 So.2d 136 (Fla. 3d DCA 2006).

Affirmed in part, and reversed and remanded with direction.


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    Robert KORDISH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1303.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Robert Kordish, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Robert D. Kordish, appeals the trial court’s order denying his Motion for Return of Property. As the motion was untimely filed, see § 705.105(1), Fla. Stat. (2001), we affirm the trial court’s order denying the motion, but do so without prejudice to allow the defendant to seek any remedies available in the civil division where the forfeiture action was filed.

Affirmed without prejudice.


author: PER CURIAM.

text:
    Earnell L. RICHARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2014.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Earnell L. Richards, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Kermit L. MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2151.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Kermit L. Miller, in proper person.
    Charles J. Crist, Jr., Attorney General, and Olga Villa, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Davis v. State, 589 So.2d 896 (Fla.1991).


text:
    Wilfredo CALZADA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-494.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Wilfredo Calzada, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Wilfredo Calzada (“Cal-zada”), appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While we affirm the order on review as it pertains to the defendant’s claim of vindictive sentencing, we remand this matter to the trial court to allow it to rule on the remaining arguments raised in the defendant’s motion which were not addressed in its order.

In the defendant’s motion to correct illegal sentence, the defendant made several claims, including that the trial court imposed a vindictive sentence. In support of this claim, the defendant quotes several statements made by the trial judge who conducted his trial.

The trial court denied the motion. The language contained in the trial court’s order suggests that the trial court treated the defendant’s motion to correct illegal sentence as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In an abundance of caution, we will address the motion as if it was either filed under Rule 3.800(a) or Rule 3.850.

First, “a claim of vindictive sentencing cannot be raised by a Rule 3.800(a) motion.” Taylor v. State, 897 So.2d 495 (Fla. 3d DCA 2005). Next, if the motion was filed pursuant to Rule 3.850, the trial court properly denied the motion because the defendant’s claim of vindictive sentence was actually raised on direct appeal and decided on the merits. On February 5, 2002, the defendant filed his direct appeal with this court, raising the following issue: “Whether the trial court imposed an improper and vindictive sentence upon the appellant, after the appellant rejected the pretrial plea offer endorsed and actively advocated by the trial court.” Moreover, in support of this contention, the defendant quotes certain statements made by the trial judge who conducted his trial, which happen to be the same statements that the defendant quotes in his present motion. Thereafter, on August 13, 2003, this court affirmed the defendant’s sentence without a written opinion, Calzada v. State, 852 So.2d 241 (Fla. 3d DCA 2003), and on August 29, 2003, issued a mandate. We, therefore, conclude that the trial court properly denied the defendant’s motion as it pertains to his claim of vindictive sentencing.

Although we find no error in the trial court’s denial of the defendant’s motion as it relates to the defendant’s claim of vindictive sentencing, we nonetheless remand this case to the trial court to allow it to address the remaining issues raised in the defendant’s motion, which were not ruled on by the trial court.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . In addition to the claim of vindictive sentencing, the defendant also raised the following claims in his motion: that his life sentence is unconstitutional; that his conviction for kidnapping is illegal; that his convictions for kidnapping and home invasion robbery constitute double jeopardy; and that the stacking of minimum mandatory sentences is illegal.


text:
    Shawn SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-612.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Shawn Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Shawn Smith, appeals the denial of his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). The defendant’s sentence was imposed on December 17, 2002, after he was found guilty of attempted robbery, a third degree felony; fleeing or attempting to elude a law enforcement officer at a high rate of speed, a second degree felony; and leaving the scene of an accident involving injuries, a third degree felony. We affirm.

The defendant claims that the imposition of equal concurrent sentences as a habitual violent offender and as a prison releasee reoffender, violates section 775.082, Florida Statutes (1999), the Prison Releasee Reoffender Act. While we agree with this proposition, unfortunately for Mr. Smith, this principle and the case law upon which he relies, do not assist him, as the record conclusively refutes his claim of equal concurrent sentencing.

The defendant was sentenced pursuant to section 775.082(8) as a prison releasee reoffender to the maximum term provided by law, which was five years on each of the third degree felonies and fifteen years on the second degree felony. The defendant was sentenced pursuant to section 775.084(4), as a habitual violent offender to ten years with a five-year minimum mandatory on each third degree felony, and twenty years with a ten-year minimum mandatory as to the second degree felony. As the record clearly reflects, the punishments imposed are not equal under the sentencing schemes relied upon.

Affirmed.

      . See Grant v. State, 770 So.2d 655 (Fla.2000); Martin v. State, 813 So.2d 1036 (Fla. 3d DCA 2002) (wherein the State conceded that the imposition of equal concurrent sentences as habitual offender and as a prison releasee reoffender was error); Watts v. State, 789 So.2d 547 (Fla. 3d DCA 2001).


text:
    Michael SKIPWITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3581.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied May 31, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion foe ClaRification

PER CURIAM.

Appellant’s motion for clarification is hereby granted, and we clarify that this court’s per curiam affirmance of this case is without prejudice to appellant’s raising his claims of ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion for rehearing is denied.

POLEN, KLEIN and SHAHOOD, JJ., concur.


author: CORTINAS, Judge.

text:
    Dana BRIGHAM, individually and as trustee of the Defendant trusts, Patricia Brigham, individually and as successor trustee of the Defendant trusts, the Marion W. Brigham Trust, the EFP Brigham Land Trust No. 1, the Blue Rock Land Trust No. 1, the Seven Mile Ridge Land Trust No. 1, the Rice Road Land Trust No. 1, the Halls Chapel Land Trust No 1., the Cloud Valley Land Trust No. 1, and the Coxes/Jacks Creek Land Trust No. 1, Appellants, v. Edward BRIGHAM, Sandra Forbes Beran, Dana Forbes, Robin Forbes and Allen Forbes, Appellees.
    No. 3D05-2403.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Williams, Parker, Harrison, Dietz & Getzen and M. Lewis Hall, III and David A. Wallace, Sarasota; Lisa B. Lehner, for appellants.
    Kluger, Peretz, Kaplan &. Berlin and Bruce A. Katzen, Michael L. Cotzen, Miami, and Leslie P. Sharpe; Michael J. Schlesinger, Miami, for appellees.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

Appellants, Dana Brigham and his wife, Patricia Brigham, in their individual capacities, as well as trustee and successor trustee, respectively, of the Marion Trust (the “trust”), appeal from an order which (1) precluded them from paying their personal attorneys’ fees out of the trust in their defense of the underlying lawsuit filed by Appellees, and (2) required them to return to the trust all monies paid from the trust for defense of the underlying litigation. We affirm.

Appellants are the son and daughter-in-law of Marion Brigham (the “settlor”), who created the trust in 1994. Appellees, Sandra Forbes Beran, Dana Forbes, Robin Forbes, and Allen Forbes are the settlor’s grandchildren, and Appellee Edward Brigham is the settlor’s son. Appellees and Appellants are beneficiaries of the trust.

The settlor died in 2002. In June 2003, Appellees filed a multi-count complaint against Appellants alleging, among other things, undue influence, breach of fiduciary duty, self-dealing, conversion of trust assets, mismanagement of trust assets, intentional interference, fraud, and conspiracy. Appellants were sued in their individual capacities as well as their capacities as trustee and successor trustee.

After receiving an accounting, Appellees discovered that Appellants were using trust funds to pay their legal fees in the underlying litigation. In November 2004, Appellees filed a Motion to Restrict Payment of Attorneys’ Fees, arguing that Appellants were prohibited from paying their individual attorneys’ fees with the trust funds and without prior Court approval.

On January 18, 2005, the trial court, after a hearing, granted Appellees’ motion in part, finding that Appellants were prohibited from paying their individual attorneys’ fees with trust funds, and concluding that court approval was necessary to pay litigation expenses out of the trust, as a personal conflict may exist since Appellants were sued in their individual capacities as well as in their trustee roles.

In March 2005, upon motion by Appellants, the trial court appointed a Special Master to assist the court in determining which of the attorneys’ fees and costs, already paid by the trust, were for the benefit of Appellants as trustee and successor trustee rather than as individuals.

In June 2005, the Special Master issued his Report and Recommendation, noting that he “does not believe that any of the fees incurred to date can be separated into [Dana Brigham’s] individual defense as opposed to [Dana Brigham’s] defense as trustee,” and recommending that Appellants personally pay all attorneys’ fees necessary to defend themselves against the litigation, and return all monies taken out of the trust for payment of attorneys’ fees in the underlying litigation.

After a hearing on Appellants’ Objection to the Report and Recommendation, the trial court adopted the Report and Recommendation and held that Appellants must pay the attorneys’ fees back to the trust and refrain from paying further attorneys’ fees and costs with trust assets without court approval.

Appellants argue that, pursuant to the trust instrument, Dana Brigham, as trustee, had absolute discretion over the payment of expenses relating to the trust. Additionally, Appellants maintain that sections 737.402 and 737.2041, Florida Statutes (2003) permit Dana Brigham, in his capacity as trustee, to pay his attorneys’ fees using the trust assets. Appellants argue that the Special Master’s inability to distinguish and separate claims against Dana Brigham in his individual capacity from claims in his capacity as trustee should not preclude Dana Brigham, in his trust role, from being able to use trust assets to defend himself.

Conversely, Appellees contend that the trust instrument does not permit Appellants to recover attorneys’ fees when defending against claims of fraudulent and tortious acts. Appellees also maintain that Appellants violated both section 737.403, Florida Statutes (2003), and the trial court’s January 18, 2005 Order when they failed to seek court approval before transferring trust assets to themselves. Finally, Appellees argue that, since Appellants failed to meet their burden of presenting record evidence either to the Special Master or the trial court demonstrating that the attorneys’ fees were incurred by them in their capacities as trustee and successor trustee or for the management of the trust, the trial court properly approved the Special Master’s recommendations.

We find that the trial court did not abuse its discretion in ordering Appellants to return to the trust all of the money previously paid to them in defense of the underlying litigation and precluding them from using additional trust funds in defending this matter without court approval. Cf. West Coast Hosp. Ass’n v. Florida Nat’l Bank of Jacksonville, 100 So.2d 807, 813 (Fla.1958)(finding that the trial court did not abuse its discretion when it ordered a trustee’s attorney’s fees to be paid out of the trust estate where the fee was incurred in good faith and related to the management of the trust).

Appellees brought suit against Appellants in their trust roles and as individuals for trust mismanagement. Because Appellants defended against individual liability, their personal interests conflicted with their position as trustees. See Shriner v. Dyer, 462 So.2d 1122, 1124 (Fla. 4th DCA 1984). When a trustee’s individual interests conflict with his or her duties to a trust, court approval is necessary before a trustee can use trust funds to pay his or her own attorneys’ fees. § 737.403, Fla. Stat. (2003).

In the instant case, the trial court, in its January 18, 2005 Order, correctly found that, because Appellees sued Appellants in their individual capacities, a conflict of interest may exist between Appellants’ personal interests and their trust positions. See Shriner, 462 So.2d at 1124. Therefore, pursuant to the trial court’s January 18, 2005 Order and section 737.403, court authorization was necessary before Appellants could use trust funds to pay for personal attorneys’ fees. See § 737.403, Fla. Stat. (2005). Any unilateral payment of attorneys’ fees by Appellants without court approval violates section 737.403 and constitutes an improper withdrawal of trust assets. See Shriner, 462 So.2d at 1124.

Appellants contend that Florida law allows a trustee to recover attorneys’ fees if he or she, in good faith, incurs legal expenses related to his or her duties and responsibilities as trustee. See, e.g., Union Nat’l Bank v. Jones, 768 So.2d 1213 (Fla. 4th DCA 2000); Vazquez v. Goodrich, 206 So.2d 54 (Fla. 3d DCA 1968). However, in order to establish that the attorneys’ fees were properly incurred, the burden is on the trustee to produce sufficient evidence demonstrating that the attorneys’ fees paid out of the trust were spent for the benefit of the trust, rather than to support the trustee’s personal claims. See Vazquez, 206 So.2d at 54.

Here, Appellants had to defend against acts which fell outside of their trust duties. Even if some of Appellees’ claims related to Dana Brigham’s duties as trustee, Appellants failed to present evidence that the legal fees paid out of the trust were for the benefit of the trust. In fact, the Special Master was unable to sever those legal fees relating to the defense of personal claims brought against Appellants from those fees relating to the management of the trust. Since Appellants’ individual interests are intertwined and in conflict with their duties to the trust, Appellants were properly required to obtain court approval before paying attorneys’ fees with trust funds. See Shriner, 462 So.2d at 1124. We affirm on all other issues on appeal.

Affirmed.

      . Section 737.403 states, in relevant part:
      (2) If the duty of the trustee and the trustee’s individual interest or his or her interest as trustee of another trust conflict in the exercise of a trust power, the power may be exercised only by court authorization....
      § 737.403, Fla. Stat. (2003).


author: SCHWARTZ, Senior Judge.

text:
    Jessie Levon DYSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1034.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing Denied Aug. 18, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before LEVY and GREEN, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Neither error nor harmful effect has been demonstrated in the points alleging trial error on this appeal.

We also reject the claim that the court improperly imposed a habitual felony offender sentence, based on defendant’s commission of attempted first degree murder occurring in the same shooting spree, consecutive to, rather than concurrent with, a mandatory life in prison sentence for the first degree murder of another victim. Cheatham v. State, 659 So.2d 287 (Fla. 3d DCA 1994), is exactly on point and mandates this result. See Downs v. State, 616 So.2d 444 (Fla.1993); see also Roberts v. State, 923 So.2d 578 (Fla. 5th DCA 2006); cf. State v. Ferreira, 840 So.2d 304 (Fla. 5th DCA 2003).

Affirmed.


author: WELLS, J. SHEPHERD, J.,

text:
    Henry DeMAYO, Appellant, v. Deborah CHAMES and Heller & Chames, P.A., Appellees.
    No. 3D04-117.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Sophie DeMayo, for appellant.
    Heller and Chames, P.A., and Deborah S. Chames and Jonathan A. Heller, Miami, for appellees.
    Before GREEN, WELLS, and SHEPHERD, JJ.
   ON MOTIONS FOR REHEARING, AND CERTIFICATION

WELLS, J.

We grant the Appellees’ Motion for Rehearing/Clarification. We withdraw the opinion issued on March 15, 2006, and substitute the following opinion in its place.

Henry DeMayo appeals from a final judgment granting Deborah Chames and her law firm, Heller & Chames, P.A., attorneys’ fees pursuant to a charging hen. The question presented is whether De-Mayo effectively waived his constitutional right to homestead exemption under Article X, section 4 of the Florida Constitution. We hold he did not.

In December 2002, DeMayo retained Chames and ■ her law firm, Heller and Chames, P.A., to represent him in post-dissolution proceedings to modify child support and alimony. The retainer agreement executed by DeMayo, as pertinent here, stated:

It is specifically agreed that Heller & Chames, P.A. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney’s charging hens upon the client’s, interests in any and all real and personal property within the jurisdiction of the court for any balance due, owing and unpaid as well, as a hen in any recovery whether by settlement or trial; and such hen or hens shall be superior to any other hen subsequent to the date hereof and that the chent hereby knowingly, voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging hen is obtained to secure the balance of attorney’s fees and costs.

In October 2003, the. trial court granted Heller and Chames’ request to withdraw as DeMayo’s. counsel and, expressly enforcing the homestead waiver provision of the retainer agreement, entered judgment for $33,207.76 in the law firm’s favor.. We reverse.

Article X, section 4 presently provides:

Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a hen thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on-the realty, the following property owned by a natural person....

The exemption accorded by this provision has been part of the Florida Constitution for over a hundred years. In 1884, the Florida Supreme Court in Carter’s Administrators v. Carter, 20 Fla. 558, 570 (1884), set forth the policy considerations underlying this provision:

True, a man may sell his personal property, or may pledge or mortgage it, but in that case the property sold or pledged is designated and identified and a special interest is created in favor of a creditor in the particular article pledged or mortgaged, and in no State is this power of the owner of personalty denied. The object of exemption laws is to protect people of limited means and their families in the enjoyment of so much property as may be necessary to prevent absolute pauperism and want, and against the consequence of ill advised promises which their lack of judgment and discretion may have led them to make, or which they may have been induced to enter into by the persuasions of others.
In this country especially where there happen to be many illiterate and unsophisticated people it would be mischievous to encourage such agreement in which by the mere scratch of a pen the whole policy of the exemption laws would become nugatory. Such people, without reference to “race, color or previous condition,” are and ought everywhere to be the wards of the State and to be protected accordingly.
When a man executes a mortgage or bill of sale upon certain specified property, the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences. Such contracts are, therefore, upheld as well in respect to real as to personal property. We have in several cases held that a sale under a mortgage is not a forced sale because it was a sale under consent given under seal and irrevocably conveying an interest in the thing described. Such contracts are regulated by law and are specifically enforced in courts of equity. And by such transactions men may, through misfortune, become impoverished and their families brought to want. This is an incident of all human transactions, even where the utmost caution and circumspection are exercised, but this is not an argument in favor of encouraging indiscreet contracts made with a view to an evasion of the settled policy of the State. Few men would mortgage their household goods and their children’s clothes to a hard creditor with the inevitable result brought vividly to their understanding, but many thoughtless and improvident people might be induced to obtain credit by merely “waiving the benefit of exemption,” and thus placing the last blanket and bed and their own and the children’s clothing at the mercy of a hard creditor, if an agreement like this should be sustained.
In view of the recognized policy of the States in enacting exemption laws and of the practically universal concurrence of the authorities on the identical question, our conclusion is that the “waiver” of the benefit and protection of the exemption laws contained in this note is not valid to defeat a claim of exemption.

In 1956, the Florida Supreme Court addressed whether the protections of Article X, section 4 could be waived in a written instrument, a promissory note, which did not involve the exceptions delineated in the constitution. The Court held that the protections could not be waived because:

[T]his Court long ago determined that such a waiver was not an alienation of the homestead and not enforceable, and secondly, that such a waiver was contrary to the policy of the exemption laws of this State. Carter’s Adm’r v. Carter, 20 Fla. 558. “The public policy of a state or nation must be determined by its Constitution, laws, and judicial decisions * * Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761, 786. No policy of this State is more strongly expressed in the constitution, laws and decisions of this State than the policy of our exemption laws.

Sherbill v. Miller Mfg. Co., 89 So.2d 28, 31 (Fla.1956). Carter and Sherbill confirm that Article X, section 4 “protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself’ and that other than for the purposes stated in this provision, cannot be waived. See Havoco of America, Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001) (quoting Olesky v. Nicholas, 82 So.2d 510, 513 (Fla.1955)); Butterworth v. Caggiano, 605 So.2d 56, 60 (Fla.1992); In re Estate of Nicole Santos, 648 So.2d 277, 282 (Fla. 4th DCA 1995) (observing that “[protection of homestead from alienation cannot be waived by contract or otherwise”); see also In re Clements, 194 B.R. 923, 925 (M.D.Fla.1996) (confirming that under the expressio unius est exclusio alterius rule, homestead, in Florida, may not be used to satisfy debts other than those expressly permitted by article X, section 4). Because the attempted waiver in this case is unrelated to those purposes stated in Article X, section 4, it is invalid.

Accordingly, we reverse the order under review insofar as it grants a charging lien on the real property of Henry DeMayo in this case. We affirm the order on appeal in all other respects.

CONCURRENCE AND CERTIFICATION

SHEPHERD, J.,

with whom GREEN, J.,

joins concurring in result and certifying question of great public importance.

Because the case before us is factually indistinguishable from the Florida Supreme Court’s opinion in Sherbill v. Miller Mfg. Co., 89 So.2d 28 (Fla.1956), we are compelled to join the affirmance of the decision below. However, we feel that we would be remiss if we did not note that Sherbill, and the miich earlier decision on which it is grounded, Carter’s Adm’rs v. Carter, 20 Fla. 558 (1884), are inconsistent with the- modern view- that a person’s right to exempt his homestead property from the claims of a creditor is a personal right that maybe waived by that person if he or she so desires. For this reason, and because the people of this state in 1984 made a fundamental change in the text of their homestead provision that is,’at a minimum, inharmonious with the policy pronouncement on which Carter’s Adm’rs and hence Sherbill are moored, and also because there is strong evidence .that our High Court is tending toward the modern view in its consideration of other provisions of the Florida Constitution involving personal economic decision-making, see In Re: Amendment to the Rules Regulating the Florida Bar v. Rule U-1.5(f)(4)(b) of the Rules of Professional Conduct, Case No. SC05-1150 (Docket Entry dated December 14, 2005, ordering the Florida Bar to submit a proposed rule allowing clients to waive the constitutional limit on the amount of attorney fees that contingent fee counsel can receive in medical malpractice matters), we certify the question of whether the policy pronouncement found in Carter’s Adm’rs should be overruled.

Although the Florida Constitution has long exempted homestead property from a “forced sale,” it is important at the outset to recognize that Mr. DeMayo is not facing a “forced sale” of his property. Rather, he resists honoring an agreement he made with his counsel whereby he “knowingly, voluntarily and intelligently” waived his constitutional right. Thus, he has no textual support for the position he argues before this court. See Butterworth v. Caggiano, 605 So.2d at 58, 59 (Fla.1992) (“The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who adopted them.”).

For this reason, Mr. DeMayo necessarily must place his primary reliance upon the policy pronouncement that derives from Carter’s Adm’rs that a waiver of the type signed by him is “contrary ... to the policy of this State.” See Sherbill, 89 So.2d at 31. The pronouncement of Carter’s Adm’rs is in turn bottomed on a distillation by the High Court of the day of authorities from other jurisdictions from which it concluded that prohibition represented “the recognized policy of the States.” Carter’s Adm’rs, 20 Fla. at 570-71. Respectfully, we must point out that today the vast majority of states now permit waivers, some by legislative enactment and others as matter of judicial interpretation of their respective constitutional and statutory provisions. See Tenn. Code. Ann. § 26-2-301(b)(2006) (permitting waiver of homestead “when the exemption has been waived by written contract”); Wash. Rev. Code § 6.13.080(2)(a)(2006); Ferguson v. Ferguson, 111 S.W.3d 589, 598 (Tex.App.2003); Red River State Bank v. Reierson, 533 N.W.2d 683 (N.D.1995) (approving waiver of shield of homestead exemption relating to non-purchase money second mortgages); Sunwest Bank of Clovis, N.A. v. Garrett, 113 N.M. 112, 823 P.2d 912 (1992); Rogers v. Great American Federal Sav. & Loan Ass’n, 304 Ark. 143, 801 S.W.2d 36, 38 (1990) (“This court has recognized waivers or releases of home-stead rights for many years.”); Hawkeye Bank & Trust Co. v. Michel, 373 N.W.2d 127 (Iowa 1985); Knight v. Parish Nat. Bank, 457 So.2d 1219 (La.App. 1st Cir.1984); Matter of Wallace’s Estate, 1982 OK 80, 648 P.2d 828, 832 (1982) (“The constitutional homestead exemption is a personal right which may be waived or abandoned.”); State v. Smith, 129 Ariz. 28, 628 P.2d 65, 67 (1981) (“From a review of the Arizona statutes governing homestead exemptions, it is abundantly clear that the exemption may be voluntarily waived.”); Argonaut Ins. Co. v. Cooper, 261 N.W.2d 743, 744 (Minn.1978) (“[T]he owner of a homestead may waive his homestead rights, even though they be constitutional rights, by an act which evidences an unequivocal intention to do so.”); Schutterle v. Schutterle, 260 N.W.2d 341, 354 (S.D.1977) (“Although some courts have held such waivers to be invalid, we believe that the better rule is that homestead rights may be waived just as any other rights.”)(internal citations omitted); I.H. Kent Co. v. Miller, 77 Nev. 471, 366 P.2d 520, 522 (1962) (“The exercise and preservation of the homestead exemption is held to be a purely personal right which can be exercised or waived by the debtor.”); In re Moore’s Estate, 210 Or. 23, 307 P.2d 483, 492 (1957) (“[T]he homestead exemption, during the lifetime of the owner, is not an estate but is a personal privilege which must be claimed to be effective, and hence it is subject to waiver.”); In re Dalton’s Estate, 109 Utah 503, 167 P.2d 690 (Utah 1946); Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497, 499 (1940); Home Owners Loan Corp. v. Reese, 170 Va. 275, 196 S.E. 625, 626 (1938); Shearon v. Goff, 95 Neb. 417, 145 N.W. 855, 858 (1914) (“It is well settled that a homestead right is a purely personal one, which the owner may at any time waive or renounce.”); Prather v. Smith, 101 Ga. 283, 28 S.E. 857 (1897); Weaver v. Weaver, 109 Ill. 225 (Ill.1883) (limiting the public policy bar to waiver of homestead exemptions to “the actual facts in the case[] in which [it was] made”); Case v. Dunmore, 23 Pa. 93 (Pa.1854); see also McMillan v. Aru, 773 So.2d 355 (Miss.App.2000); Schuler v. Wallace, 61 Haw. 590, 607 P.2d 411 (Haw.1980) (permitting waiver by failure to raise the issue at trial); Kennett v. McKay, 336 Mich. 28, 57 N.W.2d 316 (1953) (permitting waiver of homestead rights in antenuptial setting); Tibbetts v. Tibbetts, 113 Me. 201, 205, 93 A. 178 (Me.1915). Of these twenty-four jurisdictions which have concluded that the right to exempt one’s homestead property is a personal right that may be waived, twenty of them post-date Carter’s Adm’rs, sixteen post-date Sherbill, and four of the six jurisdictions on which the Carter’s Adm’rs’ court rested its decision have subsequently either expressly reversed the decision of that jurisdiction on which the Carter’s Adm’rs’ court relied, ignored the decision, or significantly limited its scope. See Hawkeye Bank, 373 N.W.2d 127 (Iowa 1985) (recognizing waiver pursuant to a state statute designed to permit it); Knight, 457 So.2d 1219 (La.App. 1st Cir.1984) (accord); Cameron, 6 S.E.2d at 499 (N.C.1940); Weaver, 109 Ill. 225 (Ill.1883) (ruling that decisions such as Phelps v. Phelps, 72 Ill. 545 (Ill.1874) “are to be limited by the actual facts in the cases in which they were made.”).

While we agree that adhering to precedent is usually the wise policy, see Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (“Adhering to precedent ‘is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.’ ”)(citing Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Bran-déis, J., dissenting)), nevertheless our Supreme Court has continually reaffirmed that “[although stare decisis is fundamentally important in our system of justice, it is not an, ironclad and unwavering rule so that we must bend to the voice of the past, however outmoded or meaningless that voice may have become.” Weiand v. State, 732 So.2d 1044, 1055 n. 12 (Fla.1999) (internal quotations omitted). We submit that the re-consideration by the Florida Supreme Court of Carter’s Adm’rs is particularly appropriate here where we as members of the judiciary have no particular expertise in making the policy judgment in question. Cf. Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (adopting the doctrine of comparative negligence in place of the doctrine of contributory negligence because “we definitely consider the problem to be a judicial one”). We profoundly question in a time of near instant communication, and a state legislature that in its annual sessions routinely enacts legislation to protect its citizens from all manner of overreaching, it remains necessary and legally appropriate — if ever it was — for the Florida Supreme Court to treat Florida’s citizens as “wards of the state” with respect to homestead. See Carter’s Adm’rs at 570.

That our concern is well-taken is supported by the fact that one hundred years after the pronouncement in Carter’s Adm’rs, the people of the State of Florida, in a general election held in November 1984, amended their constitution to dramatically expand the class of persons who could take advantage of Florida’s homestead law by substituting the qualifying phrase “a natural person” for the “head of a family” qualifier that had existed in every version of the constitutional provision from its first adoption in 1868. Compare Art. X, § 4, Fla. Const. (1984) with Art. IX, § 1, Fla. Const. (1868); and Art. X, § 1, Fla. Const. (1885) and Art. X, § 4 (1968). Since that time, any resident of the state, whether single, divorced, or widowed, has had the legal capacity to assert the shield of the exemption of homestead property from a forced sale without regard to familial standing or other status or station in life. Thereafter, the decisions from our High Court reflect, sometimes to the Court’s personal discomfort, that the benefit of the shield of Article X, section 4 against forced sales of one’s homestead property has been transmogrified from one that exists solely for the protection of the family home to an entitlement available to all comers. See Havoco at 1019 (affording the protection of the constitutional shield to a debtor who acquired homestead using non-exempt funds with the specific intent of hindering, delaying and defrauding creditors in violation of section 222.29, 222.30, or 726.105 of the Florida Statutes, noting that it was “powerless to depart from the plain language of Article X, section 4”); Caggiano at 56 (affording the protection of the constitutional shield to a convicted racketeer, a single person who was without any familial or support responsibilities); Tramel v. Stewart, 697 So.2d 821 (Fla.1997) (referring the issue of misuse of Article X, section 4 to the Constitutional Revision Commission on near identical facts). The people of this state in 1984 expanded the breadth of the availability of the shield of homestead to all persons who hold an interest in homestead property “[without regard to] criminal or immoral conduct,” Havoco, 790 So.2d at 1022, as now recognized by our Supreme Court; it therefore seems most reasonable to us to pause to inquire whether the judicial branch should continue to make itself available through Carter’s Adm’rs to those like Mr. DeMayo, and others of potentially lesser repute in the future, who wish to use Article X, section 4 as a sword, especially when the homestead provision as it appeared before the Carter’s Adm’rs court is no longer “construed [solely] in the interest of the family home.” See Havoco at 1020. If we were writing on a blank slate, we would not adhere to the reasoning of Carter’s Adm’rs.

Lastly, we would suggest that the adoption of the majority view recognizing a person’s right to exempt his homestead property from the claims of a creditor as a personal right that may be waived would eliminate any potential for conflict between the decision and reasoning of Carter’s Adm’rs and other express provisions of the Florida Constitution. See Art. I, § 2, Fla. Const.; Art. I, § 9, Fla. Const.; Art. I, § 10, Fla. Const.; Art. X, § 6, Fla. Const.; Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 348 (Fla.2005) (Wells, J., concurring)(“Both [the United States and Florida] constitutions expressly protect the freedom to use property....”); Chiles v. United Faculty of Florida, 615 So.2d 671, 673 (Fla.1993) (“[The right to contract] is expressly guaranteed by article I, section 10 of the Florida Constitution.”); Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881, 884 (Fla.1974) (“The right to contract and to use one’s property as one wills are fundamental rights guaranteed by the constitution of the United States and the constitution of the State of Florida.”); Zingale v. Powell, 885 So.2d 277, 283 (Fla.2004) (“[I]n construing multiple constitutional provisions addressing a similar subject, the provisions ‘must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision.’ ”) (internal citation omitted). Unless there is a compelling legal reason to the contrary, we are of the belief that the citizens of this state should be permitted to order their world as they see fit.

For the foregoing reasons, we certify the following question to the Florida Supreme Court as a matter of great public importance:

WHETHER, IN LIGHT OF SUBSEQUENT PRECEDENT IN FLORIDA AND OTHER JURISDICTIONS, AND THE TEXTUAL CHANGES MADE BY THE PEOPLE OF THE STATE OF FLORIDA IN ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION IN THE GENERAL ELECTION OF NOVEMBER 1984, THE HOLDING IN CARTER’S ADM’RS v. CARTER, 20 Fla. 558 (1884), FOLLOWED IN SHERBILL v. MILLER MFG. CO., 89 So.2d 28 (Fla.1956), THAT A WAIVER OF THE BENEFIT AND PROTECTION OF THE EXEMPTION FOUND IN ARTICLE X, SECTION 4(A) OF THE FLORIDA CONSTITUTION IS UNENFORCEABLE AGAINST THE CLAIM OF A GENERAL CREDITOR, SHOULD BE OVERRULED?

      . In 1884, the state legislature met biennially. Art. IV, § 2, Fla. Const. (1884). The population of the state according to the most recent census taken in 1880 was less than 300,000. Florida Census: 1880, http://fcit.coe-du.usf.edu/florida/docs/c/census/1880.htm (last visited March 7, 2006).

      . See, e.g., § 501.202(2), Fla. Stat. (1973)(es-tablishing the Florida Deceptive and Unfair Trade Practices Act); § 681.101, Fla. Stat. (1981)(establishing Florida’s automobile Lemon Law); Wickman v. Firestone, 500 So.2d 740, 741-42 (Fla. 4th DCA 1987) (noting that § 496, Fla. Stat. (1985) was "designed to protect a charitably minded public from being improperly solicited, abused and even defrauded.”); Gabriel v. Tripp, 576 So.2d 404 (Fla. 2d DCA 1991) (holding that § 384.34, Fla. Stat. (1989), which punishes the knowing transmission of a sexually transmissible disease, "was designed to protect a particular class of persons from their inability to protect themselves”).

      . To the extent that the opinion of the court suggests that recent authority somehow either supports or "confirm[s]” the reasoning of either Carter’s Adm’rs or Sherbill, see pp. 551-52, supra, we respectfully disagree. While the doctrine of stare decisis requires our concurrence in the result, we are compelled to reiterate that no modern authority in this state "confirm[s]” either of those decisions. The Olesky case, upon which we glean the opinion of the court places substantial reliance, involved two involuntary divestitures — i.e. two judgments held by general creditors where waivers were not at issue. The facts of the case at bar are to the contrary. See p. 549, supra. Indeed, recent Supreme Court authorities — Havoco, 790 So.2d at 1022 and Caggiano, 605 So.2d at 59 — expressly describe the homestead exemption as "intended simply to guarantee that the homestead would be preserved against any involuntary divestiture by the courts...." Caggiano, 605 So.2d at 59 (emphasis added).

      . Whether a person qualified as the "head of a family” was a question of fact to be determined by two factors: "(1) a legal duty to maintain arising out of a family relationship; (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge.” In re Estate of Van Meter, 214 So.2d 639, 641 (Fla. 2d DCA 1968), approved 231 So.2d 524 (Fla.1970); Flannery v. Green, 482 So.2d 400, 402 (Fla. 2d DCA 1985) citing Holden v. Estate of Gardner, 420 So.2d 1082 (Fla.1982).

      . In this respect, the availability of the exemption afforded by Article X, section 4 after January 1, 1985, the effective date of the November 1984 amendment, is no different than many other entitlements that most homeowners can claim, which range broadly from federal mortgage interest and property tax deductibility to other state entitlements such as the $25,000 exemption of homestead property from ad valorem taxation, the limitations on annual increases in assessed valuations of homestead property, reductions in assessed value for construction of quarters for parents and grandparents, and an additional exemption for individuals over age 65 with limited means. See Art. VII, §§ 4, 6, Fla. Const. The legislature and the people of this state know how to protect and, indeed, advantage homestead.


author: HAWKES, J.

text:
    ARQUETTE DEVELOPMENT CORPORATION, Appellant, v. Ryan HODGES, Appellee.
    No. 1D05-5214.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Rehearing Denied Aug. 1, 2006.
    Jeffrey P. Whitton, Panama City, for Appellant.
    Douglas L. Smith and Robert E. Taylor, Panama City, for Appellee.
   HAWKES, J.

We review an agreement involving the sale of real property, the terms of which required lease payments and compliance with other provisions until the sale was completed. Appellant, Arquette Development Corporation, challenges the trial court’s order granting partial summary judgment in favor, of Appellee, Ryan Hodges, holding Hodges’ breach of the lease had no effect on his ability to purchase the property. This result is possible only by the trial court’s finding that the parties entered into two separate agreements. Arquette argues the parties entered only one agreement and, consequently, the trial court’s finding was in error. We agree, and reverse and remand for entry of summary judgment in favor of Arquette.

Factual Background

The parties entered into a contract entitled “RESIDENTIAL LEASE AND CONTRACT TO PURCHASE” regarding a parcel of real property located in Panama City Beach, Florida. In the agreement, Hodges was identified as the lessee and Arquette was identified as the lessor.

The agreement required Hodges to purchase the property, and until the sale was consummated, to make lease payments and pay the ad valorem taxes. The purchase was to occur at the end of 36 months, or sooner, at Hodges’ election. Purchase terms such as price, financing, and payment schedules were located in paragraph 18, which was set in bold font (as were other provisions of the agreement).

Pursuant to paragraph 9, if any breach other than a failure to make lease payments continued for ten days after provision of written notice specifying the performance' required, either party could institute court action to terminate the agreement or require its completion. The agreement contained an integration clause.

On April 28, 2004, approximately one and one half years after the agreement was executed, Arquette noticed Hodges he had breached by failing to pay the 2003 ad valorem taxes. Hodges failed to respond. Arquette paid the taxes on May 20, 2004, and filed suit seeking to terminate the agreement.

The trial court entered final judgment in favor of Arquette, finding it was Hodges’ responsibility to pay the ad valorem taxes, and failure to do so within ten days after proper notice was sent constituted a breach. This ruling was not appealed and is final.

Fifteen days before the court issued its ruling, Hodges sent written notice to Ar-quette stating he was fulfilling his obligation to purchase the property. When Arquette refused to perform, denying any obligation to sell, Hodges filed suit seeking specific performance and damages.

Hodges moved for partial summary judgment, arguing he still possessed a right to purchase the property, because the lease obligations and purchase obligations were two independent agreements. Consequently, he argued, breach of one did not preclude enforcement of the other.

Arquette also moved for summary judgment, arguing there was only one agreement,- and that was a purchase agreement that provided for leasing the property until it was purchased. Arquette argued Hodges’ breach of that agreement by failing to pay the ad valorem taxes terminated the only agreement between .the parties and, with the only agreement between the parties terminated, Arquette had no remaining performance, obligation.

The court held that, although the parties’ obligations were contained in one instrument, that instrument contained two separate contracts. The court concluded Hodges’ failure to pay ad valorem taxes breached the lease agreement, but did not affect the purchase agreement. The trial court denied Arquette’s motion for summary judgment, and granted partial summary judgment in favor of Hodges, allowing him to purchase the property.

Standard of Review

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). A grant of summary judgment based upon construction of a written instrument is reviewed de novo. Id. at 131. Here, there are no contested facts. We are confronted only with construction of the agreement.

The Obligation to Purchase and the Lease Provisions are Indivisible

We agree with the trial court that the written document contains no ambiguities and summary judgment is proper. However, the trial court erred as a matter of law by entering partial summary judgment in favor of Hodges. Our de novo review of the document leads us to conclude Arquette is entitled to summary judgment as a matter of law, because the parties entered into a single, indivisible agreement. Two aspects of the agreement support our conclusion.

First are the structural aspects and terminology of the agreement itself. These include: The parties executed one document; That document was entitled “RESIDENTIAL LEASE AND CONTRACT TO PURCHASE” (emphasis added); The purchase terms are set forth in paragraph 18 of the 21 paragraph agreement; The parties are referred to as lessor and lessee throughout the agreement and in each of the paragraphs, including paragraph 18.

Second, the various provisions of the agreement are interdependent. A key example of this interdependency is found in paragraph 18, which Hodges argues constitutes the second agreement. The problem with Hodges’ argument is that, without resort to other provisions, paragraph 18 is fatally incomplete on its own to constitute a separate agreement. Hodges relies, in part, on paragraph 18’s caption “CONTRACT TO PURCHASE.” However, paragraph 14 states “the captions ... appearing in this lease ... in no way defíne, limit, construe or describe the scope or intent of the sections or articles of this lease nor in anyway affect this lease.” Therefore, the caption of paragraph 18 has no substantive meaning or interpretative value, and does not result in paragraph 18 being a separate agreement. It is the text, or substantive language of paragraph 18 that is binding on the parties. The text does not constitute a separate agreement. The text, in part, provides that “at the termination of the 36 month term, or sooner ... the lessee shall purchase the premises.” To define “the 36 month term,” who the lessee is, who the lessor is, how notice is effected, or even what premises the lessee is purchasing, requires resorting to the other provisions of the lease.

Since the provisions detailing aspects of the purchase found in paragraph 18 are dependent upon other provisions contained in other paragraphs of the agreement for their meaning, there can be only one agreement. An analogous situation exists in lease agreements containing purchase options. When an option to purchase is dependent upon the terms of a lease, all rights to exercise the option to purchase expire when the lease terminates. Mr. Sign Sign Studios, Inc. v. Miguel, 877 So.2d 47, 50 (Fla. 4th DCA 2004) (citing Vandervalk v. Brewer, 436 So.2d 1083 (Fla. 3d DCA 1983)).

The trial court found Hodges’ failure to pay taxes breached the agreement. The parties had only one agreement. Under the agreement, Arquette, as the non-breaching party, exercised its right to terminate the agreement. Consequently, the trial court erred as a matter of law by granting partial summary judgment on Hodges’ claim for specific performance.

Breach Terminates Agreement

Hodges alternatively argues that, if there was only one agreement, it was not terminated until the day the trial court entered its order finding he had breached by not paying the 2003 taxes. The court did not enter this order until January 20, 2005. Hodges sent written notice that he wished to purchase the property on January 5, 2005. Consequently, Hodges argues, he was fulfilling his obligation to purchase 15 days before the agreement terminated. We also reject this argument.

Hodges breached by failing to pay the ad valorem taxes within ten days of Ar-quette’s notice on April 28, 2004. Hodges’ material breach entitled Arquette to immediately treat the contract as breached and terminate his own performance. See Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 441 (Fla. 4th DCA 2006) (Farmer, J., concurring specially) (noting rule of contract law is that prior material breach by party seeking enforcement entitles opposing party to terminate his own performance and treat the contract as breached). The trial court’s entry of judgment eight months after a breach does not determine the date of the breach. Hodges’ failure to perform determined the date of the breach.

Conclusion

The parties entered into a single, indivisible agreement requiring Hodges to purchase property from Arquette. Under the terms of the agreement, the sale would take place no later than 36 months from the date the agreement was executed, but could occur sooner, at Hodges’ election. Until the sale took place, Hodges had certain obligations under the agreement. Those obligations included leasing the property and paying the ad valorem taxes. Hodges’ failure to pay the ad valorem taxes by May 8, 2004, was a material breach and entitled Arquette to terminate the agreement. The trial court erred as a matter of law by granting partial summary judgment on Hodges’ claim for specific performance, because the agreement terminated before Hodges attempted to purchase the property. We reverse the partial summary judgment in favor Hodges, and on remand, order entry of summary judgment in favor of Arquette.

REVERSED and REMANDED with instructions.

ALLEN and LEWIS, JJ., concur.


text:
    Joseph Fonville CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2142.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Joseph Fonville Campbell, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, POLSTON, and THOMAS, JJ., CONCUR.


author: SHEPHERD, J.

text:
    Robert A. CICCO, Jr., Appellant, v. LUCKETT TOBACCOS, INC., a Kentucky corporation, Appellee.
    No. 3D06-336.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Murray B. Silverstein, St. Petersburg, for appellant.
    Dunwody White Landon and Jack A. Falk, Jr., Naples; Podhurst Orseck and Robert Josefsberg, Miami, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   On Motion to Dismiss Appeal

SHEPHERD, J.

The plaintiff below, Robert A. Cicco, Jr., appeals an order dismissing with prejudice his amended complaint for breach of oral contract of employment, promissory estop-pel, and quantum meruit against Luckett Tobaccos, Incorporated. The motion is prompted by the fact that an undisposed counterclaim pends below. Both the dismissed and pending claims arose during a twenty-two-month period when Cicco served both as Chief Executive Officer of Luckett and on the company’s board. While the claims are all begotten of the employment relationship, we find the claims made by the complaint are legally and factually separate and distinct from those made by the counterclaim. Accordingly, we deny the motion to dismiss the appeal.

The amended complaint alleges that during March 2003, Cicco and Luckett entered into an oral contract for Cicco to become employed by Luckett as Chief Executive Officer, and if within one year Cic-co improved Luckett’s financial performance and restored profitability, Cicco would be given a five-year, written employment contract on the same terms as those in his first-year contract. Cicco further alleges he fully performed, but Luck-ett breached its oral agreement to provide the written five-year agreement. The amended complaint seeks an award of damages in an amount equal to the salary and benefits Cicco would have earned subsequent to his termination under the agreement he claims to have made.

Luckett’s counterclaim, on the other hand, seeks to litigate other controversies that arose during the course of the employment relationship. Count I of the counterclaim seeks recovery of a sum allegedly loaned to Cicco to assist him in making a deposit on a new house he purchased in Kentucky, where he was required to move to occupy his new position with Luckett. The remaining counts seek recovery of state and local income taxes incurred by Luckett on income received during the time Cicco was employed, but which Cicco allegedly improperly ordered subordinates not to deduct from wages received.

We have long adhered to the rule that piecemeal appeals will not be permit-téd where claims are interrelated and involve the same transaction and the same parties remain in the suit. Morgan v. Am. Bankers Life Assurance Co., 605 So.2d 104, 105 (Fla. 3d DCA 1992); see also S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). On the other hand, “when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed because of the pendency of other claims between the parties.” Mendez v. W. Flagler Family Ass’n, 303 So.2d 1, 5, (Fla.1974). See also Birnholz v. Steisel, 394 So.2d 523, 523 n. 3 (Fla. 3d DCA 1981) (noting in ten-count complaint for recovery of attorney fees, each count was distinct and severable from the others and would support independent actions so that summary judgments as to less than all of the counts are presently appealable under Mendez). This case readily meets the latter standard.

Unlike Morgan, 605 So.2d at 105, in which we granted a motion to dismiss on the ground that the claims were “interrelated ... insofar as [they] related to liability,” there is no interdependence on this score between the claims made in the amended complaint in this case and those in the counterclaim. Any of the three central disputes — whether or not Cicco is entitled to the benefit of a five-year contract, whether Luckett is entitled reimbursement for taxes paid, or whether Luckett should recover for monies lent— can be resolved adversely to one or another party without reference to or effect upon the resolution of the other. The only factual nexus between the disputes is that they all arose during the course of Cicco’s employment. The legal issues also are unrelated. As the Florida Supreme Court remarked in Mendez, 303 So.2d at 5, when approving an appeal by a plaintiff from an adverse summary judgment on one but not all counts of her complaint, “[w]e do not see how any good purpose can be served by [a] delay” in the appeal of the dismissal of the amended complaint in this case.

Motion denied.


author: TAYLOR, J.

text:
    Sim STANLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-219.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied Aug. 8, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Sim Stanley, Jr. appeals his criminal conviction and sentence for kidnapping, sexual battery with threat to cause serious personal injury, robbery, and sexual activity with a minor. We affirm appellant’s convictions on all issues raised and hold that there is no double jeopardy prohibition against convictions for both sexual battery with threat to cause serious personal injury and sexual activity with a minor. These are separate offenses under the analysis set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as codified in section 775.021(4), Florida Statutes. Moreover, contrary to appellant’s argument, they are not offenses which are merely degree variants of the same core offense.

The state concedes that the trial court imposed incorrect mandatory minimum terms on appellant’s habitual violent felony offender sentences. The trial court imposed a life mandatory minimum sentence on the conviction for sexual battery with threat to cause serious personal injury (Count II), and 30-year mandatory minimum sentences on the convictions for robbery (Count III) and sexual activity with a minor (Count IV). Because those minimums exceed the minimum terms authorized by § 775.084(4)(b), Florida Statutes, we remand for re-sentencing appellant to a 15-year mandatory minimum term on Count II and 10-year mandatory minimum terms on Counts III and IV.

Affirmed in part; Reversed and Remanded for resentencing.

KLEIN and SHAHOOD, JJ., concur.


text:
    Jasper Jay HARRISON, Petitioner, v. Patricia JOHNSON, Respondent.
    No. 1D06-2358.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Rehearing Denied Aug. 3, 2006.
    Jasper Jay Harrison, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

By petition for writ of certiorari, Jasper Jay Harrison complains that the circuit court has failed to take timely action on his motion to disqualify the trial judge and his motion to reassign his case to another judge. To the extent he seeks an order- of this court disqualifying the trial judge, his proper remedy is through writ of prohibition, and to the extent he seeks to compel a ruling by the circuit court on his motion to reassign, mandamus is the more apt procedural vehicle. We therefore treat the petition as seeking such relief. See Fla. R.App. P. 9.040(c).

We conclude, however, that neither prohibition nor mandamus relief is warranted at this point. In addressing motions for disqualification, Florida Rule of Judicial Administration 2.160(c) provides that in addition to filing the motion with the clerk, the movant is.required to serve a copy thereof on the subject judge. Harrison’s motion for disqualification fails to show proper service on the trial judge, as required by the rule. As a consequence, rule 2.160(j), which mandates that the trial judge rule on the motion for disqualifieation within 30 days after service of the motion in compliance with subdivision (c), failing which the motion is deemed granted, is not implicated in this case. Accordingly, because petitioner has not yet properly served his motion for disqualification of the trial judge, prohibition will not lie.

Similarly, because petitioner has not brought his motion to reassign before the trial court in order to obtain a ruling thereon, we decline to grant mandamus relief in the form of an order compelling the trial court to make such a ruling. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002) (in an ordinary civil case, mandamus will generally not lie absent a showing that the trial court has failed to take action on some pending matter that has been noticed for hearing).

Accordingly, we deny the petition for writ of prohibition or mandamus. This disposition is without prejudice to Harrison’s right to cure his error in failing to properly serve his motion for disqualification on the trial judge and to thereafter obtain a ruling on that motion or, if no ruling is timely made, to invoke the remedy set forth in rule 2.1600').

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


author: THOMPSON, J.

text:
    A.M.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1517.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

A.M.W. appeals his adjudication of delinquency and sentencing for: (1) armed burglary of a dwelling with a firearm; (2) grand theft of a firearm; (3) the lesser-included offense of third-degree grand theft; (4) third-degree grand theft of a motor vehicle; and (5) dealing in stolen property. The court committed A.M.W. to a juvenile detention facility at restrictiveness level eight until his nineteenth birthday. A.M.W. raises two points on appeal: (1) The court erred by denying his motion for judgment of acquittal with respect to armed burglary and grand theft of a firearm; and (2) double jeopardy precludes his adjudications for dealing in stolen property, grand theft of a firearm, grand theft auto and third-degree grand theft. We affirm as to his first argument, and reverse in part as to the second.

The victim, Lambert Sayles, testified that a burglar broke into his house and stole a VCR, Playstation, camcorder, television, pistol, ammunition, four cell phones, and jewelry worth $30,000 from within his house. The pistol was located in a glass case, which was also taken. Behind the house, the burglar stripped three cars: a 1964 Chevrolet Impala, 1970 Pontiac Ven-tura, and a 1968 Mazda. The carburetors, manifolds, distributors, and valve covers were taken off the engines. In addition, air tools, air tanks, and a pressure washer were stolen.

The burglar also stole Sayles’s Cadillac, which was recovered approximately eight days after the burglary. Sayles testified he saw A.M.W. driving the Cadillac about thirty minutes after he discovered the burglary, but he did not mention this sighting to the sheriffs deputies investigating the burglary until two weeks later.

Sayles saw A.M.W. at an auto shop down the street and found his Pontiac’s auto parts there. Ben Brinson, the owner of the shop, testified that A.M.W. brought the parts into his shop to sell them. The parts included valve covers, intakes, distributors, and carburetors. Brinson knew A.M.W. because A.M.W. periodically worked at the shop.

Sayles found two IDs, including one belonging to A.M.W., at his house. At trial, he claimed he found both in a wallet in his bedroom. Both deputies testified that, when Sayles turned in the IDs, he said he found A.M.W.’s ID near one of the cars and found the other ID in his bedroom. The State rested, and the court denied A.M.W.’s motions to dismiss.

A.M.W. testified his IDs had been lost or stolen several times, and he lost the ID in evidence around the time the burglary occurred. He denied working for Brinson, had never been near Sayles’s home, and was a mechanic. A.M.W. brought the car parts into Brinson’s shop so that he could put them on his antique 1987 Monte Carlo. However, his car had been impounded. A.M.W. first claimed his car was impounded after he bought the parts. He changed his mind; it was impounded before he bought the parts. A.M.W. changed his mind again; his car was impounded while he was buying the parts, so he had to walk with the parts to the auto shop. He kept the parts because, though he did not have enough money to get his car out of impound, he planned to buy another. A.M.W. changed his mind once more; he bought the parts a couple of days before the car was impounded.

The court denied A.M.W.’s renewed motions to dismiss and ruled:

There are four essential facts ... that point to the defendant’s guilt.... And that is that the items ... the burglar ... was a mechanic, because that person had enough mechanical skill to disassemble an engine.
Then we have the identification cards found on the scene. And it doesn’t really matter to me whether they’re found inside or outside.
Then there’s the issue of the victim’s testimony that he saw the defendant driving his Cadillac 30 minutes after the burglary. Well, that would be pretty dispositive, but I ... have an issue with why ... it took him 14 days to tell somebody that.
... I don’t know what’s up with that, so I’m kind of putting that aside. The other parts were in the possession of the defendant.
... Brinson, who appears to be about as ... uninterested [sic] a party as there is in this ... he was pretty straightforward .... And he didn’t say anything about the defendant having brought those parts to him for the purpose of putting on an automobile.
... Brinson testified that the defendant said that he was trying to sell those parts. That’s inconsistent with the defendant’s testimony.
And ... the defendant’s testimony — it really is incredulous [sic] — is that when he realized that his car had been impounded and he had those parts, he was planning on buying another car and using those parts on it. I guess that meant he was going to ... look for a car that needed exactly those parts.
I mean that doesn’t make a bit of sense to me....
And I do find that the defendant committed the offenses.

The court found A.M.W. guilty of the lesser-included offense of third-degree grand theft because the State did not establish that the stolen property’s value exceeded $20,000. The court expressly disbelieved the explanation that someone planted A.M.W.’s ID at the scene.

The purpose of a motion for judgment of acquittal, termed in this context as a motion to dismiss, is to test the legal sufficiency of the State’s evidence. State v. Lalor, 842 So.2d 217, 219 (Fla. 5th DCA 2003) (citing Donovan v. State, 821 So.2d 1099, 1100 (Fla. 5th DCA 2002)). The defendant moving for judgment of acquittal 'admits all facts and evidence adduced at trial, and the court views all reasonable inferences from the evidence in favor of the State. Id. (citing Donovan, 821 So.2d at 1100). We note that, where the evidence is entirely circumstantial, no matter how strongly it might suggest guilt, a conviction may not be upheld unless the evidence is inconsistent with any reasonable hypothesis of innocence. E.T.R v. State, 873 So.2d 571, 572 (Fla. 2d DCA 2004). The State need not rebut every variation of events that could be inferred from the evidence, but must introduce competent evidence inconsistent with the defendant’s theory of events. Haugabrook v. State, 827 So.2d 1065, 1068 (Fla. 2d DCA 2002). Once the State introduces competent evidence inconsistent with the defendant’s theory, the court must review that evidence in a light most favorable to the State to determine the presence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. Id.; E.T.R., 873 So.2d at 572. If the State meets its burden, it becomes the duty of the trier of fact to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Haugabrook, 827 So.2d at 1068.

Here, A.M.W.’s possession of property stolen from outside Sayles’s home justifies the presumption arising from the possession of recently stolen property, on the ground that the thefts here occurred during a single course of conduct. “[U]nexplained possession of recently stolen property is not only sufficient to support a theft conviction, but when a burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of the recently stolen goods also supports a conviction for burglary.” Francis v. State, 808 So.2d 110, 134 (Fla. 2001) (quoting T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992)); see also Barnlund v. State, 724 So.2d 632, 633 (Fla. 5th DCA 1998) (noting that “possession of recently stolen property is sufficient to give rise to an inference not only that he stole the property, but that he committed the burglary which was necessary to accomplish the theft”); J.J.H. v. State, 651 So.2d 1239, 1241 (Fla. 5th DCA 1995) (reversing where State presented no evidence other than an inadmissible hearsay statement that defendant entered home). A.M.W.’s explanation for his possession of recently stolen items was a question of fact to be resolved by the trier of fact. Francis, 808 So.2d at 134; Barnlund, 724 So.2d at 633.

The testimony established that A.M.W. possessed several of the auto parts stolen during the theft and burglary that occurred on 9 March 2004. The recovery of his ID at the scene of the crime constituted further competent evidence that he committed the burglary. See Riggins v. State, 898 So.2d 1025, 1026 (Fla. 4th DCA 2005) (noting that the burglar took a shower at the home, and a pair of pants containing defendant’s ID was found in the home). Because the explanation’s reasonableness was a question to be decided by the trier of fact, and because the court disbelieved A.M.W.’s testimony regarding his acquisition of the auto parts, the evidence was sufficient to support the adjudications on armed burglary. See Francis, 808 So.2d at 134. Similarly, the State presented Sayles’s testimony that various items, including a firearm, were stolen from his home. His trial testimony alleged that A.M.W.’s ID was found in his bedroom. See Lalor, 842 So.2d at 220. This testimony was legally sufficient to preclude a judgment of acquittal on the grand theft of a firearm charge. Id.; Riggins, 898 So.2d at 1026.

In sum, the evidence, viewed in the light most favorable to the State, was inconsistent with A.M.W.’s theory of innocence. The discovery of his ID, his possession of the auto parts, and the trial testimony of Sayles and Brinson constituted competent, substantial evidence from which the trier of fact could find that the elements of the crimes were established beyond a reasonable doubt, without an undue pyramiding of inferences. See Bender v. State, 890 So.2d 538, 539 (Fla. 4th DCA 2005) (affirming conviction because, where defendant possessed stolen checks from the burglarized home, the case involved a number of facts from which one inference was made).

A.M.W. next argues that most of his delinquency adjudications should be vacated because they violate double jeopardy. A.M.W. contends that double jeopardy bars his conviction for grand theft auto, but the Florida Supreme Court has rejected that argument in similar circumstances.

[I]in reaching a determination of the double jeopardy issue in a case involving a single victim’s property, courts should look to whether there was a separation of time, place, or circumstances between the initial armed robbery and the subsequent grand theft, as those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent. In making this determination of whether there is a separation of time, place, or circumstances giving rise to distinct and independent acts, the courts should consider the location of the items taken, the lapse of time between takings, the number of owners of the items taken, and whether intervening events occurred between the takings.

Hayes v. State, 803 So.2d 695, 704 (Fla.2001).

In Hayes, the supreme court held that a robbery inside the house and theft of the vehicle outside constituted separate crimes. Although there was only one victim, and no intervening acts occurred, the “robbery of various items from inside the residence was sufficiently separate in time, place and circumstances from Hayes’ theft of the motor vehicle parked outside the victim’s residence to constitute distinct and independent criminal acts.” Hayes, 803 So.2d at 704. Similarly, though Sayles was the only victim in this case, and there is no evidence suggesting intervening acts occurred, we conclude the theft of various items inside and behind Sayles’ house were sufficiently separate in time, place, and circumstances from the theft of the Cadillac.

However, A.M.W. correctly asserts he may not be convicted of both third-degree grand theft and dealing in stolen property. A.M.W. was adjudicated delinquent for third-degree grand theft for stealing, among other things, auto parts. He was also adjudicated delinquent for dealing in stolen property, i.e., auto parts. It is well-settled that, while the State may charge both, only one conviction may stand. Hall v. State, 826 So.2d 268, 271 (Fla.2002); Hale v. State, 838 So.2d 1185, 1189 (Fla. 5th DCA 2003); T.S.R. v. State, 596 So.2d 766, 767-68 (Fla. 5th DCA 1992); § 812.025, Fla. Stat. (2003). This remains the case even where only some of the property alleged stolen is dealt. See Corvo v. State, 916 So.2d 44, 46 (Fla. 3d DCA 2005) (rejecting the argument the State makes here and reversing sentence of grand theft); Toson v. State, 864 So.2d 552, 554-55 (Fla. 4th DCA 2004) (vacating convictions under section 812.025 though several items stolen were not alleged to be dealt). The grand theft and dealing charges all involved property stolen during a single burglary of Sayles’s home. Thus, we vacate the third-degree grand theft adjudication involving auto parts.

Finally, A.M.W. correctly argues that, under Wilson v. State, 776 So.2d 347 (Fla. 5th DCA 2001), and Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004) (en banc), he may not be convicted of both third-degree grand theft of a firearm and third-degree grand theft for other items, when both charges arise from the same burglary. We follow Wilson and Scarola and hold that, as to the grand theft of a firearm and the grand theft of jewelry and auto parts charges, one adjudication must be vacated. That count, in turn, is vacated in light of the adjudication for dealing in stolen property. As a result, we affirm the adjudications for armed burglary with a firearm, grand theft of a motor vehicle, and dealing in stolen property. Though A.M.W. has already completed his sentence, we vacate the adjudications for grand theft of a firearm and third-degree grand theft because of the effect it may have upon future sentencing. See Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003); Lamb v. State, 526 So.2d 998 (Fla. 1st DCA 1988).

AFFIRMED in part; REVERSED in part.

GRIFFIN and MONACO, JJ., concur.

      . §§ 810.02(b); 775.087(2), Fla. Stat. (2003).

      . § 812.014(2)(c)(5), Fla. Stat. (2003).

      . § 812.014(2)(b), Fla. Stat. (2003). The petition on count three alleged the theft of "jewelry, automobile equipment or other household items” valued at more than $30,000.

      . § 812.014(2)(c)(6), Fla. Stat. (2003).

      . § 812.019(1), Fla. Stat (2003). The petition on count five alleged dealing in the automobile equipment that was the subject of count three.

      . Sayles's testimony regarding the stolen property's value was thoroughly impeached.

      . We recognize Aat Ae FourA District certified conflict wiA Wilson in Kelso v. State, 898 So.2d 1023, 1023-25 (Fla. 4th DCA 2005).


author: LEWIS, J.

text:
    HOWELL & O’NEAL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Shana R. David, Appellees.
    No. 1D06-0028.
    District Court of Appeal of Florida, First District.
    July 11, 2006.

      Charles Cook Howell, III of Howell & O’Neal, P.A., Jacksonville, for Appellant.
    Geri Atkinson-Hazelton, General Counsel, and John Maher, Deputy General Counsel, Tallahassee for Appellee Florida Unemployment Appeals Commission; Scott A. Tacktill, Orlando for Appellee Shana R. David.
   LEWIS, J.

The employer, Howell & O’Neal, seeks review of an order of the Unemployment Appeals Commission (“Commission”), in which it rejected several of the appeals referee’s factual findings on the ground that they were not supported by the record and determined that claimant, Shana R. David, left her employment for good cause attributable to the employer and, thus, that she was eligible to receive unemployment compensation benefits. The employer argues that the Commission erred in rejecting the appeals referee’s factual findings because they are supported by competent, substantial evidence. Because we agree, we reverse and remand for further proceedings.

After the Agency for Workforce Innovation (“Agency”) determined that claimant was entitled to benefits because she quit her job with good cause attributable to the employer, the employer appealed that determination. At a telephonic hearing before an appeals referee, Charles C. Howell, III, the employer’s president, testified that claimant was originally hired to work as a runner for twenty-four hours per week but later asked the employer if she could work more hours. Howell continued:

And we said we would certainly try to do so. We thought she was a very good employee and still do. We said, “We will give you two more hours a week — a day, for ten hours a week, during which time you would be helping our nurse paralegal and billing for those hours.”
And we tried that and after five months it turned out that there was simply not enough work to keep her busy helping our paralegal and we had advised [claimant] that we would have to put her back to the twenty-four hour a week position that she was originally hired for.
And at that point in time, that was not acceptable to her, so she left.

When asked whether claimant was told that the employer would try to give her thirty-four hours a week for a period of time when her hours were initially increased, Howell replied, ‘We told her that we would try to give her more hours a week if the work justified it and initially it did.” When asked whether claimant was told that the change to thirty-four hours per week would be “forever” or whether the employer was just “going to try it,” Howell responded, “It was as long as the work was there we certainly would let her have the time because she did good work. We could bill for it.” Howell could not recall whether he or his wife, the employer’s office administrator, had advised claimant that she was no longer needed to work thirty-four hours per week.

Claimant testified that after increasing her weekly hours, the employer told her that it no longer needed her as an assistant paralegal but offered to rehire her for her original position as a runner. She left her employment because she needed full-time work and the healthcare benefits that the thirty-four-hour-a-week position provided. The following exchange then took place between the appeals referee and claimant:

Q And did you go to them and ask for more hours after you’d been working for a while?
A I went to them and I asked specifically for a full-time position, yes.
Q Did they tell you that they would hire you full-time on a trial basis to see if you were needed?
A They didn’t say a trial basis, no.
Q Did they say that they would see if they needed you for that period, for the additional hours?
A No. They didn’t say that they would see if I was needed.
Q So no one ever told you that they would hire you full-time on a trial basis to see if you were needed ten more hours a week?
A No.
Q And were you advised that your benefits — that you would no longer have benefits if you worked twenty-four hours?
A Yes.
Q And it’s your testimony that you were never advised that they would see if you were needed for the additional time?
A No.

The appeals referee found that although claimant may have made a valid personal decision to quit, she had not shown that she quit with good cause attributable to the employer. Thus, the referee determined that claimant was disqualified from receiving benefits. The referee noted that she had been presented with conflicting testimony regarding whether the employer guaranteed claimant full-time work when she requested additional hours or whether claimant was advised that the employer would “try to see if she would be needed for the additional hours” and accepted the employer’s testimony as more credible than that of claimant. The referee ultimately reversed the Agency’s determination that claimant was entitled to benefits.

Claimant appealed the referee’s decision to the Commission, arguing that it was not supported by competent, substantial evidence, that she left work for good cause attributable to the employer, and that the employer reduced her hours and benefits, which caused a substantial and detrimental change in the conditions of her employment. The Commission vacated the referee’s decision and remanded the case to the referee with directions that she make specific findings of fact addressing the evidence regarding the changes in claimant’s terms of employment and that she state with particularity in her conclusions of law whether those changes gave claimant good cause to leave her employment.

On remand from the Commission’s order, the appeals referee issued a second decision containing the following findings of fact:

[Claimant] worked for the employer from July 12, 2004 until March 25, 2005, as a runner and as an assistant to the nurse paralegal. [Claimant] was hired to work 24 hours each week. [Claimant], in September 2004, requested to work 10 additional hours. The employer agreed to allow her to work 10 hours more each week, as long as there was sufficient work and need. [Claimant] began working 34 hours per week on September 28, 2004. In March 2005, the nurse paralegal advised the employer that she did not have enough work to keep [claimant] busy. The employer advised [claimant] on March 11, 2005, that there was insufficient work to justify the additional hours and advised [claimant] that her hours would return to the original agreement of hire which was 24 hours each week. [Claimant] quit.

In her conclusions of law, the referee set forth in part:

The record reflects that [claimant] quit when the employer advised her that her hours would return to the original agreement of hire after the hours were increased on a temporary basis. The record reveals that the employer advised [claimant] that they would try the additional hours each week as long as there was sufficient need. Although [claimant] may have made a valid personal decision to quit, she has not shown that her quitting was with good cause attributable to the employer or for her illness or disability or due to the employer changing the agreement of hire on a permanent basis. Therefore, [claimant] is disqualified for receipt of unemployment benefits based on her separation from the employer.

Like she did in her first decision, the referee noted that she was presented with conflicting testimony regarding whether the employer guaranteed claimant full-time work when she requested the change in hours or whether claimant was advised that the employer would see if there was a need for her to work the additional hours and accepted the testimony of the employer as more credible than that of claimant. The referee again reversed the Agency’s determination that claimant was entitled to benefits.

Claimant sought the Commission’s review of the referee’s second decision, again asserting that it was not supported by competent, substantial evidence, that she left work for good cause attributable to the employer, and that the employer reduced her hours and benefits, thereby causing a substantial and detrimental change in the conditions of her employment. She further asserted that the referee’s second decision did not materially differ from her first and did not adequately address the evidence regarding the changes in the terms of claimant’s employment.

The Commission subsequently entered the order at issue in this appeal, in which it noted that the referee’s finding that the employer agreed to allow claimant to work an additional ten hours per week as long as there was sufficient need included an implicit finding that the employer and claimant had agreed that claimant would work the additional hours only as long as a need existed. The Commission found that the record did not reflect that the employer communicated to claimant that the additional hours were contingent upon the employer having sufficient need, that claimant’s testimony that she agreed to an increase in her hours that was not temporary was not effectively rebutted at the hearing, and that Howell’s testimony regarding his conversations on the subject was vague and ambiguous. The order states that Howell could not recall whether he spoke to claimant regarding the additional hours, whether his wife spoke to her about them, or whether they spoke to her together and that although Howell testified regarding his understanding that the additional hours would be temporary and contingent on the workload, he did not testify that he told claimant or heard her being told that the “enhancement to her terms of employment” would be temporary. Accordingly, the Commission found that the parties did not agree that the additional hours would be temporary and rejected the referee’s findings to the extent that they reflected such an agreement. The Commission further found that the “temporary nature of the upgrade” did not become part of claimant’s new terms of employment when her hours were increased, that claimant worked under the new terms for more than two-thirds of the time she worked for the employer, and that at the end of that time, the employer determined that its business needs no longer justified claimant’s new work schedule. The order further states:

When reverted to her initial terms of hire, [claimant] effectively was demoted from the status of a full-time employee with benefits to part-time status, meaning she lost her benefits as well as more than one-quarter of her pay. The demotion was effected based on the employer’s business needs and not on any misconduct on the claimant’s part. Accordingly, the demotion gave [claimant] good cause attributable to the employer to leave this employment; therefore, she is not disqualified from receipt of benefits.

The Commission reversed the referee’s decision, found that claimant was entitled to benefits if otherwise eligible, and ordered that the employer’s record be charged with its proportionate share of benefits paid in connection with claimant’s claim. This appeal followed.

A claimant who voluntarily leaves his or her employment is disqualified from receiving unemployment compensation benefits unless he or she leaves due to “good cause” that is attributable to the employer or that consists of illness or disability requiring separation from work. § 443.101(1)(a), Fla. Stat. (2005). “Good cause” in this context is “one which would reasonably impel the average able-bodied qualified worker to give up his or her employment.” Moore v. Fla. Unemployment Appeals Comm’n, 498 So.2d 992, 993 (Fla. 1st DCA 1986); see also Manning v. State Unemployment Appeals Comm’n, 787 So.2d 954, 955 (Fla. 4th DCA 2001). The Commission’s standard of review of an appeals referee’s decision is whether the referee’s findings of fact are based on competent, substantial record evidence and whether the proceedings on which those findings are based complied with the essential requirements of law. Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 501-02 (Fla. 4th DCA 2004). The appeals referee, as the trier of fact, is privileged to weigh and reject conflicting evidence, and the Commission cannot reweigh the evidence and substitute its findings for those of the referee. Id. at 502. Although the Commission may reject the referee’s conclusions of law without limitation, it may not modify the facts to reach a different legal conclusion, rely on facts that were not established at the hearing, or rely on a theory not advanced by one party or anticipated by the other. See id. This Court cannot make credibility determinations or substitute its judgment for that of the referee and must uphold the appeals referee’s decision where there is competent, substantial evidence to support it. See id.; Ford v. Se. Atl. Corp., 588 So.2d 1039, 1040 (Fla. 1st DCA 1991). This Court may overturn a legal conclusion of the Commission if it is clearly erroneous and, in reviewing the Commission’s substituted conclusion, must assure that the correct rules of law were applied. See id.

Here, the Commission rejected the appeals referee’s factual findings that the employer advised claimant that the additional weekly hours were contingent upon the employer having sufficient need and that claimant and the employer agreed that the additional hours would be temporary and/or contingent on the workload on the ground that such findings were not supported by the record. However, when asked whether claimant was told that the employer would give her thirty-four hours per week for any specific period of time, Howell testified that claimant was told that the employer “would try to give her more hours a week if the work justified it.” When asked whether claimant was told that the increase in hours would be permanent or whether the employer was just going to try it, Howell testified that the increased hours were to last as long as the work was there. Although the Commission’s order describes Howell’s testimony as “vague and ambiguous” and states that he could not remember whether he spoke to claimant regarding the additional hours, whether his wife spoke to claimant about them, or whether they both spoke to claimant together, Howell only testified that he did not remember whether he or his wife had informed claimant that she was no longer needed to work thirty-four hours per week. No testimony was elicited regarding who initially spoke to claimant about increasing her hours. As she was entitled to do, the referee accepted Howell’s testimony as true and rejected claimant’s contradictory testimony. See Szniatkiewicz, 864 So.2d at 502. Because competent, substantial evidence supports the appeals referee’s findings that claimant was advised and/or agreed that the increase in her hours was contingent upon the employer having sufficient need for the additional work, the Commission erred in rejecting such findings. See id.

Because the Commission improperly rejected the referee’s factual findings regarding the circumstances surrounding the initial increase in claimant’s hours before reaching its ultimate determination that claimant was eligible for benefits, it is unclear from the order whether the Commission would have reached the same conclusion if it had properly accepted the referee’s factual findings. Accordingly, the order on appeal is REVERSED and the cause is REMANDED to the Commission to address the propriety of the referee’s determination that claimant is ineligible for benefits under the facts as found by the appeals referee.

BARFIELD and VAN NORTWICK, JJ., concur.