author: ROTHENBERG, Judge. GREEN, J.

text:
    ROYAL CARIBBEAN CRUISES, LTD., Petitioner, v. Byron COX, Respondent.
    No. 3D07-1515.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Rodriguez, Aronson & Essington and Domingo C. Rodriguez and Patricia Leigh McMillan Minoux, for petitioner.'
    Russo Appellate Firm and Elizabeth K. Russo and Craig Lee Montz; Luis A. Perez; and William F. Fabra, Miami, for respondent.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The defendant/petitioner, Royal Caribbean Cruises, Ltd. (“RCCL”), seeks a writ of certiorari to review the trial court’s non-final order denying its Motion to Compel a Supplemental Compulsory Physical Examination of the plaintiff/respondent, Byron Cox (“Cox”), by Dr. John Wilkerson. We grant the petition for writ of certiorari and quash the trial court’s order.

In August 2004, Cox, a foreign seaman, filed an action seeking damages for Jones Act negligence, unseaworthiness, failure to treat, maintenance and cure, and unearned wages, stemming from injuries he allegedly sustained while onboard an RCCL vessel on January 12, 2004. Following his alleged injuries, Cox was treated for lower back pain by RCCL’s physicians who then referred Cox to Dr. Jorge Ibars, a Board Certified Neurosurgeon. Dr. Ibars found that Cox had a disc protrusion at L3-L4, but did not recommend surgery; that Cox was at maximum medical improvement (“MMI”); and that Cox had a five percent impairment rating.

Shortly thereafter, Cox was seen by Dr. Richard Rozencwaig, a physician chosen by Cox, for lower back pain and shoulder pain. After treating Cox for several months, Dr. Rozencwaig referred Cox to Dr. Rolando Garcia, an orthopedic surgeon. Dr. Garcia performed back surgery on Cox. In May 2005, Dr. Rozencwaig performed arthroscopic surgery on Cox’s left shoulder. Following this first procedure, on September 7, 2006, RCCL had an orthopedic independent medical examination (“IME”) performed on Cox by Dr. Anthony Dorto.

On October 5, 2006, during a deposition, Dr. Rozencwaig testified that Cox needed a second operation on his left shoulder. Based on Dr. Rozencwaig’s testimony, RCCL moved to continue the trial, arguing that Cox was not at MMI, and therefore, he was not ready to proceed to trial. Cox then requested that RCCL reinstate his maintenance and cure benefits. On October 12, 2006, the trial court granted RCCL’s motion to continue the trial.

RCCL then moved to compel a supplemental IME of Cox’s left shoulder by its orthopedic expert, Dr. Wilkerson. Cox objected, stating that he did not want to have the second operation on his left shoulder, and Cox withdrew his request for reinstatement of maintenance and cure benefits. The trial court granted RCCL’s motion, and on November 11, 2006, Dr. Wilkerson conducted an IME of Cox. Following this IME, Dr. Wilkerson agreed that Cox needed a second surgery, but he disagreed with Dr. Rozencwaig’s suggested procedure, and concluded that a more extensive procedure was indicated.

Trial was scheduled for Monday, November 27, 2006, and on Friday, November 24, 2006, Cox reinstated his demand for maintenance and cure benefits, and requested that the second operation be performed as soon as possible after the trial. In response to Cox’s demand, at the commencement of trial on November 27, RCCL moved to preclude Cox’s claim for maintenance and cure, or alternatively, to continue the trial. The trial court granted RCCL’s motion to continue, and reset the trial for April 30, 2007.

On March 15, 2007, Dr. Rozencwaig performed the second operation on Cox’s shoulder. Thereafter, RCCL moved for another continuance, arguing that Cox was not at MMI. At the hearing on this motion to continue, Cox explained that he would be in this country on medical parole until June 23, 2007, and the trial was reset for the third week of June.

RCCL then filed its motion to compel a second IME with Dr. Wilkerson, arguing that RCCL would be severely prejudiced if Dr. Wilkerson was forced to testify at trial without being allowed to re-examine Cox after his second shoulder operation. Cox objected, arguing that Dr. Wilkerson’s IME of Cox prior to the second operation was sufficient, and that Florida Rule of Civil Procedure 1.360 does not allow multiple examinations for the same injury. The trial court denied RCCL’s motion for supplemental examination, but directed Cox to provide RCCL with all “additional medical reports, and radiology films (x-ray, MRI, CT scan, etc.) as soon as available.” The trial court denied RCCL’s subsequent motion for rehearing, and this petition followed.

Ordinarily, orders denying discovery are not reviewable .by certiorari because the harm from such orders can generally be rectified on appeal. Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). However, certiorari review has been granted where discovery orders cause irreparable injury to the petitioner. Id. Issuing a writ of certiorari in the instant case is necessary because the order under review is: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004).

Departure From the Essential Requirements of the Law

Florida Rule of Civil Procedure 1.360(a) allows one party to conduct physical examinations of another where a two-part test is satisfied. The first part provides: “A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. P. 1.360(a)(1) (emphasis added). The second requirement is that “the party submitting the request has good cause for the examination.” Fla. R. Civ. P. 1.360(a)(2) (emphasis added). Additionally, contrary to Cox’s argument to the trial court, the language of Florida Rule of Civil Procedure 1.360(a) does not limit the party requesting an IME to a single examination of the other party.

RCCL argues that the trial court’s order departed from the essential requirements of the law because the nature of Cox’s claims against RCCL placed Cox’s physical condition in controversy, and that Cox’s second shoulder operation caused a substantial change in that physical condition, thereby giving RCCL good cause to request another IME with Dr. Wilkerson. We agree.

The “in controversy” requirement of Florida Rule of Civil Procedure 1.360(a)(1) is clearly satisfied in this case. Cox’s claims against RCCL arise out of alleged injuries he sustained onboard an RCCL vessel on January 12, 2004, and Cox asserts that these injuries are continuing in nature. In addition, one of the central issues in this case is whether Cox has reached MMI, or is owed maintenance and cure benefits. At trial, Cox will argue as to the nature and extent of his alleged injuries, and base his claim for damages upon his past, current, and future physical conditions. Cox’s physical condition after the second shoulder operation, therefore, is clearly “in controversy” in the instant case.

Before being authorized to conduct another IME of Cox by Dr. Wilkerson, RCCL also had the burden of showing good cause for the examination. Fla. R. Civ. P. 1.360(a)(2). In a negligence action where a plaintiff asserts that he or she has sustained mental or physical injuries, the defendant’s good cause for conducting an initial IME is normally shown without any further inquiry. Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 So.2d 631, 634 (Fla. 5th DCA 2001). However, when a defendant requests a subsequent IME, the defendant should make a stronger showing of necessity before that request is authorized. Vopelak v. Williams, 12 Ohio Misc. 93, 42 F.R.D. 387, 389 (1967). We conclude that because Cox’s physical condition underwent a substantial change after Dr. Wilkerson’s first IME, RCCL has proven good cause for requesting and conducting another IME.

It is undisputed that on March 15, 2007, after Dr. Wilkerson’s first IME of Cox, Dr. Rozencwaig performed a second operation on Cox’s shoulder. Therefore, Cox’s physical condition underwent substantial changes since he was first examined by Dr. Wilkerson, and thus, RCCL and its experts had good cause to request and conduct another IME in order to update their opinion of Cox’s condition following the second invasive procedure performed on Cox’s shoulder.

We cannot conclude that RCCL’s request was overly burdensome, unnecessarily cumulative, or harassing to Cox in any way. In fact, Cox has failed to show that any harm would result from his submitting to another IME by Dr. Wilkerson, especially when the scope of the requested IME may be focused, in the trial court’s discretion, to a limited determination of the effect of the second shoulder operation on Cox’s condition. See Fla. R. Civ. P. 1.360(a)(3) (stating that the trial court may establish protective rules governing the scope of requested examinations).

Florida Rule of Civil Procedure 1.360(a) states that an IME is authorized when the examined party’s condition is in controversy, and the requesting party has good cause to request the examination. Thus, the trial court’s order departs from the essential requirements of the law because Cox’s claims placed his physical condition in controversy (both before and after the second operation), and RCCL showed good cause for requesting and conducting the subsequent IME given the substantial change in Cox’s condition.

Material Injury for the Remainder of the Case

This Court is without jurisdiction to grant RCCL’s petition and issue the writ unless the trial court’s order denying RCCL’s request to conduct a supplemental IME of Cox by Dr. Wilkerson causes material harm to RCCL that will last for the remainder of the case. Reeves, 889 So.2d at 822. RCCL has proven the requisite injury in two ways. First, the trial court’s order effectively prevents RCCL from arming itself with the information necessary to rebut the assertions that will be made by Cox and his experts at trial. Furthermore, the order allows Cox to continue to receive maintenance and cure benefits from RCCL unchecked, thereby depriving RCCL of its rights as a Jones Act employer.

a. The order leaves RCCL powerless to rebut assertions Cox will present at trial.

“Pre-trial discovery [in civil litigation] was implemented to simplify the issues in a case, to eliminate the element of surprise, to encourage the settlement of cases, to avoid costly litigation, and to achieve a balanced search for the truth to ensure a fair trial.” Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996) (emphasis added) (citing Dodson v. Persell, 390 So.2d 704 (Fla.1980)). The trial court’s order impermissi-bly chills RCCL’s right of access to information that the defense needs to fairly resolve the material issues in dispute, and unfairly obstructs the finder of fact in determining the truth.

Cox’s experts unquestionably will examine Cox’s condition before trial to present up-to-date testimony regarding his physical condition, his healing process, his future disabilities (if any), and his damages. The trial court’s denial of RCCL’s request to examine Cox and to evaluate the effectiveness of the surgery; Cox’s present condition; and his future prognosis, leaves RCCL powerless to rebut any assertions made by Cox’s experts at trial that are based on Cox’s condition after the second shoulder operation on March 15, 2007. We fail to see the logic upon which RCCL should be denied the right to be equally prepared as Cox at trial. See Vopelak, 42 F.R.D. at 389.

The trial court’s denial of RCCL’s request for a subsequent IME of Cox, therefore, deprives RCCL of the “balanced search for the truth” which our rules of pre-trial discovery seek to implement. Elkins, 672 So.2d at 522. Thus, RCCL is materially harmed by the trial court’s order for the remainder of the case.

b. The order deprives RCCL of its rights as a Jones Act employer.

As a matter of general maritime law, Jones Act employers are required to provide maintenance and cure benefits to their employees who are injured within the course of their employment. See Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943). Accompanying this duty, however, is the shipowner’s right to monitor the seaman’s treatment to determine when MMI is reached and maintenance and cure is no longer required. United States v. Martin, No. 00-CV-303, 2001 WL 122224, at *2 (E.D.Pa. Feb. 8, 2001). The trial court’s order allows Cox to receive maintenance and cure benefits unchecked until impulse compels him to unilaterally declare MMI and proceed to trial. This ruling strips RCCL of its rights as a Jones Act employer to oversee Cox’s treatment and recovery while continuing to impose RCCL’s duty to pay maintenance and cure.

At oral argument, seven months after Cox’s second shoulder operation, the parties revealed that the matter has not been set for trial and Cox continues to receive maintenance and cure from RCCL. The eventual determination of when Cox has reached MMI was left solely to Cox’s doctors, giving them complete control over the scheduling of trial. RCCL’s doctors have little, if any, influence upon the trial court to set the case for trial because RCCL has been precluded from re-examining Cox after the second operation and substantially hampered in determining Cox’s present condition. The trial court’s order precludes RCCL from arming itself with evidence that Cox has reached MMI, allows Cox to indefinitely collect maintenance and cure benefits at RCCL’s expense, and forces RCCL to either provide these benefits or risk paying damages. The trial court’s order, therefore, deprives RCCL of its rights as a Jones Act employer,

c. A review of Cox’s records is insufficient.

We are not persuaded by Cox’s argument that a review of his doctors’ records, X-rays, CT scans, and the like will sufficiently update Dr. Wilkerson’s opinion formed prior to the second operation. Where the requisite good cause exists to conduct an IME, a mere review of the opposing party’s medical records is not a sufficient substitute for a firsthand, physical examination. See, e.g., Fla. Emergency Physicians-Kang & Assocs., 800 So.2d at 634 (holding that where a defendant had good cause to request an initial IME, a review of the opposing party’s medical or psychological records was not a sufficient substitute). When Dr. Wilkerson conducted his first IME of Cox in November 2006, he concluded that the procedure recommended by Cox’s physician, Dr. Roz-encwaig, was inadequate, and determined that a different procedure was indicated. Accordingly, it can be safely stated that an actual physical examination of Cox might yield substantially different results than a mere review of the records of a doctor with whom RCCL’s expert has already disagreed.

The Injury Cannot be Corrected on Postjudgment Appeal

Finally, RCCL must demonstrate that the injury caused by the trial court’s order, denying its request for a supplemental IME of Cox, cannot be remedied on appeal after a final order is entered. Reeves, 889 So.2d at 822. Certiorari is appropriate in the instant case because on appeal it will be impossible to determine exactly how the trial court’s order affected both RCCL’s defense and the final outcome of the case. A supplemental IME could reveal information which RCCL might employ at trial to refute, impeach, or contest the conclusions of Cox’s experts who have examined Cox after his second shoulder operation. The effect of this information on the trier of fact could be trivial, but, on the other hand, it could be substantial. It will be impossible, however, to determine what effect the trial court’s order had, on RCCL’s ability to defend, or on the final outcome of the case.

Furthermore, because the trial court’s order prevents RCCL from determining whether Cox has reached MMI, RCCL must continue to pay maintenance and cure or stop paying these benefits at its own peril. The trial court’s order creates the potential for fraud and prevents RCCL from protecting itself against fraud. Additionally, any maintenance and cure benefits paid by RCCL are not subsequently recoverable absent an independent action. Direct appeal, therefore, cannot adequately correct the injury to RCCL resulting from the trial court’s order.

Conclusion

The trial court’s order departs from the essential requirements of the law because Cox’s physical condition (both before and after the second operation) was in controversy, and RCCL demonstrated good cause for the requested IME, due largely to the substantial change in Cox’s condition after the first IME by Dr. Wilkerson. The trial court’s order causes material injury to RCCL for the remainder of the case because the order prevents RCCL from pursuing its defense on equal footing with the plaintiff, Cox, and it deprives RCCL of its rights as a Jones Act employer. The extent and effect of this harm will be impossible to quantify or remedy on a later appeal, and accordingly, we grant the petition.

Petition for certiorari granted; order quashed.

SALTER, J., (concurs).

GREEN, J.

(dissenting).

The majority opinion has written new law in the area of certiorari jurisprudence. It finds that the denial of an unsupported motion requesting a supplemental physical examination of a plaintiff, which could possibly cause the defense harm, is ripe for our certiorari review. I disagree with this extension of the law, and therefore, respectfully,- dissent.

The writ of certiorari, particularly in civil cases, is reserved for those situations where an order results in material injury which cannot be corrected on appeal (i.e. irreparable harm) and where the order departs from the essential requirements of the law. Sardinas v. Lagares, 805 So.2d 1024, 1025 (Fla. 3d DCA 2001). “Although common law certiorari is a discretionary writ, the question of irreparable harm and thus our jurisdiction is not discretionary.” Bared & Co. v. McGuire, 670 So.2d 153, 156-57 (Fla. 4th DCA 1996). See Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)(“a petitioner must establish that an interlocutory order creates material harm irreparable by a post-judgment appeal before this court has power to determine whether the order departs from the essential requirement of the law.”). “[I]t is generally held that certiorari may not be utilized to review orders which deny discovery because such orders, if in error, can be rectified upon plenary appeal.” Indus. Tractor Co. v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984).

The majority opinion, however, purports to have found irreparable harm in this case because the trial court’s order 1) prevents RCCL from defending itself at trial, maj. op. at 8; and 2) allows Cox to continue, perhaps fraudulently, to receive maintenance and cure benefits which RCCL would not be able to recover absent an independent action. Maj. op. at 12. Because I find proof of the majority’s first ground to be completely lacking on the record before us, and the majority’s second ground to be incorrect as a matter of law, I would dismiss this petition.

RCCL’s motion to compel a “supplemental compulsory physical examination” was devoid of any supporting documentation from either counsel, its expert witness physicians, or its independent medical examiner. Rather, the motion merely contained counsel’s eonclusory argument that RCCL “will be severely prejudiced if their expert is forced to testify without being allowed to re-examine [Cox] subsequent to his recent surgery and establishment of an MMI declaration.” Material injury cannot be found on such a bare bones allegation. See, e.g., Faerber v. D.G., 928 So.2d 517, 518 (Fla. 2d DCA 2006)(holding that representations of counsel did not amount to factual evidence); Tampa Med. Assocs., Inc. v. Estate of Torres, 903 So.2d 259, 263 (Fla. 2d DCA 2005)(finding that argument of counsel is “insufficient to prove need and undue hardship”); Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000)(stating that facts in dispute must be proven absent stipulation and that representations of counsel are insufficient).

Moreover, the mere fact that RCCL might overpay maintenance and cure benefits to Cox, which could require RCCL to bring independent action to recoup its losses is, as a matter of law, insufficient harm to permit certiorari review. See Cuneo v. Conseco Servs., LLC, 899 So.2d 1139 (Fla. 3d DCA 2005)(mere expense and inconvenience does not constitute harm to permit certiorari review, even if the order departs from the essential requirements of law); Nat’l Sec. Fire & Cas. Co. v. Dunn, 751 So.2d 777 (Fla. 5th DCA 2000)(financial harm is generally insufficient harm to justify certiorari review). See also Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842 (Fla. 3d DCA 2007) (party does not suffer irreparable harm where it can be adequately compensated by money damages); Holiday Pines Prop. Owners Assoc., Inc. v. Wetherington, 557 So.2d 243, 244 (Fla. 4th DCA 1990)(standard of “irreparable harm” not met where party could be compensated by money damages). Accordingly, I would dismiss the petition on jurisdictional grounds. See Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996)(if petitioner fails to make a prima facie showing of irreparable harm in petition for certiorari review, District Court lacks jurisdiction to decide petition and petition should be dismissed).

      . "Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the [Florida] rules." City of Jacksonville v. Rodriguez, 851 So.2d 280, 283 n. 3 (Fla. 1st DCA 2003) (quoting Wilson v. Clark, 414 So.2d 526, 531 (Fla. 1st DCA 1982)); see also Gordon v. Davis, 267 So.2d 874, 876 (Fla. 3d DCA 1972) (noting a lack of authority for departing from the construction of federal civil procedure rules when interpreting the Florida rules).

      . "If a shipowner pays a seaman more than required for maintenance and cure, he may recover the overpayment by means of a set-off against other damages, ... or through a counterclaim.” Brege v. Lakes Shipping Co., Inc., 225 F.R.D. 546, 548 (E.D.Mich.2004)(citing Huss v. King Co., Inc., 338 F.3d 647, 651-52 (6th Cir.2003) and Bergeria v. Marine Carriers, Inc., 341 F.Supp. 1153, 1154-56 (E.D.Pa.1972)).

      . If RCCL is unable to obtain the information it requires in order to be afforded a fair trial, the dismissal should be "without prejudice to file an additional petition in this court, which establishes and demonstrates irreparable harm.” Prasad v. Turner, 882 So.2d 490, 491 (Fla. 5th DCA 2004).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Rob TURNER, as Hillsborough County Property Appraiser, Appellant, v. FLORIDA STATE FAIR AUTHORITY, Appellee.
    No. 2D07-1411.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
    Rehearing Denied Feb. 29, 2008.

      William D. Shepherd, General Counsel, Hillsborough County Property Appraiser’s Office, Tampa, for Appellant.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa; and Gordon J. Schiff and Blair C. Kurland of Schiff Law Group, Tampa, for Appellee.
   WALLACE, Judge.

The Florida State Fair Authority (the Authority) challenged the assessment of ad valorem taxes for the years 2004 and 2005 against part of the Florida State Fairgrounds (the Fairgrounds). The assessment was made by Rob Turner, as Hills-borough County Property Appraiser (the Appraiser). The Appraiser made the assessment after the Authority had entered into a written agreement (the Agreement) that permitted Roadmaster Driver’s School, Inc. (Roadmaster) to use part of the Fairgrounds to operate its truck-driver school at times when the Authority did not require the use of the property. The circuit court concluded that the Authority was immune from ad valorem taxation and entered a final judgment in its favor and against the Appraiser. We affirm the final judgment in favor of the Authority on the alternate ground that the Agreement granted Roadmaster only a license to use the subject parcel, not a lease or other possessory interest in land. Therefore, section 196.199, Florida Statutes (2003 & 2004), is inapplicable, and regardless of whether the Authority is immune from taxation, the subject parcel was not subject to ad valorem taxation for the years in question.

The Facts and Procedural Background

The Florida legislature created the Authority in 1974. See ch. 74-322, §§ 1-17, at 991-97, Laws of Fla. The Authority is organized and established under the provisions of sections 616.251 through 616.265, Florida Statutes (2003 & 2004). The Authority is a public body corporate and politic, and it operates under the supervision of the Commissioner of Agriculture. § 616.251(1), (2). For the purposes of implementing the legislation that established it, the Authority is considered to be “an instrumentality of the state, subject to the jurisdiction of the state.” § 616.251(1). The Authority “is charged with the responsibility of staging an annual fair to serve the entire state.” § 616.251(3).

The Fairgrounds owned by the Authority consist of approximately 355 acres of land in Hillsborough County. The Fairgrounds are bounded on the North by Interstate Highway 4, on the West by Orient Road, and on the East by U.S. Highway 301. In accordance with the Agreement, the Authority permits Road-master to use approximately fifteen acres of the Fairgrounds during part of the year when the Authority does not require the use of the parcel. Roadmaster uses the subject parcel to operate its truck-driver school. The fees paid by Roadmaster for this privilege generate revenues that the Authority uses to perform the functions assigned to it by the legislature.

For the 2004 and 2005 tax years, the Appraiser cut out the subject parcel from a larger tract within the Fairgrounds and sought to impose ad valorem taxes against it. The Authority filed an action in circuit court challenging the Appraiser’s assessment of taxes against the parcel for the 2004 tax year. Later, the Authority filed a similar action for the 2005 tax year. These actions were subsequently consolidated.

After the consolidation, the Authority and the Appraiser filed cross-motions for summary judgment. The circuit court ruled that the Authority “as an instrumentality of the State is immune from ad valorem taxation.” Accordingly, the circuit court entered a final judgment in favor of the Authority and against the Appraiser. From that final judgment, the Appraiser has taken this appeal.

The Parties’ Arguments

As framed by the parties, the issue before us is whether the Authority is immune from taxation or if its lands are merely exempt. The distinction is significant. “Exemption presupposes the existence of a power to tax whereas immunity connotes the absence of that power.” Orlando Utils. Comm’n v. Milligan, 229 So.2d 262, 264 (Fla. 4th DCA 1969). If the Authority’s lands are merely exempt from ad valorem taxation, then a lease of part of the Fairgrounds to a nongovernmental entity could make the leased parcel subject to ad valorem taxation.

In the circuit court and on this appeal, the parties have focused their arguments on the Authority’s place in the framework of state government. There is no case law that directly addresses this issue. The Authority argues that it “is a governmental agency of the [sjtate, or part of the legislative branch, that performs a function of state government.” Based on its claim to be part of the state, the Authority contends that its lands enjoy the state’s immunity from ad valorem taxation. See Dickinson v. City of Tallahassee, 325 So.2d 1 (Fla.1975); State ex rel. Charlotte County v. Alford, 107 So.2d 27 (Fla.1958). The Appraiser responds that the Authority is merely a creation of the legislature that does not share in the state’s immunity from ad valorem taxation. The Appraiser compares the Authority to various port authorities and aviation authorities around the state. Lands owned by these entities may be exempt from ad valorem taxation, but they do not enjoy the immunity from ad valorem taxation of the state and the counties. See, e.g., Canaveral Port Auth. v. Dep’t of Revenue, 690 So.2d 1226 (Fla.1996); Walden v. Hillsborough County Aviation Auth., 375 So.2d 283 (Fla.1979); Ill. Grain Corp. v. Schleman, 144 So.2d 329 (Fla. 2d DCA 1962) (noting the exempt status of lands owned by the Hillsborough County Port Authority); Dep’t of Revenue v. Port of Palm Beach Dist., 650 So.2d 700 (Fla. 4th DCA 1995), approved, 684 So.2d 188 (Fla.1996).

The Appraiser argues further that even if the lands owned by the Authority could be deemed immune, the legislature has waived that immunity by statute. In support of this contention, the Appraiser directs our attention to section 616.260, Florida Statutes, which addresses the subject of the Authority’s “[t]ax exemption.” The statute provides:

It is hereby found and determined that all of the projects authorized by this part constitute essential governmental purposes, and all of the properties, revenues, moneys, and other assets owned and used in the operation of those projects shall be exempt from all taxation, including special assessments, by the state or by any county, municipality, political subdivision, agency, or instrumentality thereof. However, nothing in this section shall grant any person other than the authority an exemption from the tax imposed in chapter 220, and if property of the authority is leased, the property shall be exempt from ad valo-rem taxation only if the use by the lessee qualifies the property for exemption under s. 196.199. The exemption granted by this section shall not be applicable to any tax imposed by chapter 220 on interest, income, or profits on debt obligations owned by corporations. The property of the authority shall be subject to the provisions of s. 196.199.

§ 616.260 (emphasis added). Thus section 616.260 expressly states that lands owned by the Authority are subject to the provisions of section 196.199 concerning “[g]ov-ernment property exemptionfs].” In addition, section 616.260 suggests that lands leased by the Authority are exempt from ad valorem taxation only if the leased lands qualify for an exemption under section 196.199. With exceptions not material here, that statute provides — in pertinent part — that “[pjroperty owned by any municipality, agency, authority, or other public body corporate of the state which becomes subject to a leasehold interest or other possessory interest of a nongovernmental lessee ... shall be subject to ad valorem taxation.” § 196.199(4), Fla. Stat. (2003 & 2004).

Relying on section 196.199, the Appraiser asserts that the Agreement is a lease to a nongovernmental lessee that disqualifies the subject parcel for an exemption from ad valorem taxation. However, if the Authority’s lands are immune as it claims, then section 196.199 is arguably inapplicable to them because “[t]he exemptions in chapter 196 apply only to property which does not have immunity.” Markham v. Broward County, 825 So.2d 472, 473 (Fla. 4th DCA 2002) (concluding that the exemptions in chapter 196 do not apply to county property, which is immune from ad valorem taxation). In addition, the Authority argues that section 196.199 is inapplicable regardless of its status as an immune or an exempt entity because the Agreement is a license, not a lease. According to the Authority, the Agreement “provides only a non-exclusive permit or privilege and does not convey any interest in the property to Roadmaster.”

Discussion

We have carefully reviewed the Agreement between the Authority and Roadmaster. After this review, we find it unnecessary to reach the issue of whether the Authority shares the immunity of the state from ad valorem taxation in order to decide this case. In this case, the nature of the Agreement determines the result.

We conclude that the Agreement is a license, not a lease. A license does not confer an interest in the land but merely gives the licensee the authority to do a particular act on another’s land. See Dupont v. Whiteside, 721 So.2d 1259, 1263 (Fla. 5th DCA 1998). The distinction between the rights of a lessee and those of a licensee is as follows:

A tenant under a lease is one who has been given a possession of land which is “exclusive even of the landlord except as the lease permits his entry, and saving always the landlord’s right to enter to demand rent or to make repairs.” A licensee is one who has a “mere permission to use land, dominion over it remaining in the owner and no interest in or exclusive possession of it being given” to the occupant.

Seabloom v. Krier, 219 Minn. 362, 18 N.W.2d 88, 91 (1945) (quoting 1 Herbert Thorndike Tiffany, The Law of Real Property, § 79 (Basil Jones ed., 3d ed. 1939)), cited with approval in Lunney v. Post, 248 So.2d 504, 508 (Fla. 4th DCA 1971), approved on other grounds, 261 So.2d 146 (Fla.1972).

Here, the Agreement merely permits Roadmaster to use the subject parcel at designated times for its truck-driver school under detailed terms and conditions. The Agreement does not make Roadmaster a tenant or give it any possessory interest in the subject parcel. Because Roadmaster does not have a lease or other possessory interest in the subject parcel, section 196.199(4) is not applicable. Therefore, the parcel in question is not subject to ad valorem taxation, regardless of whether the Authority is immune from taxation or the property is merely exempt. On this basis, we affirm the circuit court’s final judgment in favor of the Authority.

Affirmed.

LaROSE, J., and LOGAN, PAUL E„ Associate Judge, Concur.

      . The Attorney General has noted that "the State Fair Authority has not been assigned to or made a part of the executive branch of state government” and suggested instead that "the State Fair Authority is a part of the legislative branch of government” Op. Att’y Gen. Fla. 83-20 (1983).


author: STRINGER, Judge.

text:
    Shane COX, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-546.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
   STRINGER, Judge.

Shane Cox appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he raised five claims for relief. We affirm the denial of claim five without comment. However, we reverse the summary denial of claims one, two, three, and four and remand for further proceedings.

In claim one, Cox alleged that the State failed to adhere to the terms of an oral plea agreement. Cox alleged that the detective in charge of his case promised him a sentence of no more than five years in prison in exchange for his cooperation, and Cox alleged that he was told that the prosecutor had “approved this agreement.” Cox alleged that he entered his plea to the charges in reliance on this agreement. Cox also alleged that the prosecutor had failed to adhere to this agreement and that he was subsequently given a significantly longer sentence.

The postconviction court summarily denied this claim and attached a copy of the written negotiated plea agreement as record evidence allegedly conclusively refuting Cox’s claim. However, a signed, written plea agreement, standing alone, is insufficient to refute a defendant’s claim that he misunderstood the terms of the plea agreement or that no other promises were made to induce the plea. Cf. Hen Lin Lu v. State, 683 So.2d 1110 (Fla. 4th DCA 1996); McCallum v. State, 591 So.2d 318, 319 (Fla. 4th DCA 1991). Therefore, we reverse the summary denial of this claim and remand for the court either to attach record excerpts conclusively refuting this claim or to conduct an evidentiary hearing.

Claims two and four of Cox’s motion raise related issues concerning the State’s alleged failure to adhere to the oral plea agreement. In claim two, Cox alleged that his counsel was ineffective for failing to file a timely motion to withdraw plea when the State failed to adhere to the earlier oral agreement. In claim four, he alleged that his plea was induced by counsel’s advising him that he would receive a more lenient sentence because of his cooperation. The postconviction court summarily denied these claims as facially insufficient; however, these claims allege both deficient performance and prejudice and so are facially sufficient. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Because the trial court did not attach portions of the record conclusively refuting these claims, we reverse and remand for the court either to do so or to conduct an evidentiary hearing.

Finally, in claim three, Cox alleged that his counsel was ineffective for failing to file a motion to disqualify the judge who presided over his sentencing. Cox alleged that the sentencing judge in this case was a former assistant state attorney and that, while an assistant state attorney, he had signed a felony information filed against Cox in another county in the same circuit. Cox alleged that his counsel failed to exercise due diligence in discovering this conflict and, consequently, in failing to file a motion for the judge to recuse himself. Cox also alleged that had such a motion been filed, the judge would have been disqualified from presiding over this case. Cox attached a copy of the felony information to his motion.

The postconviction court denied Cox’s claim as facially insufficient, finding that Cox did not allege facts to show that the court was actually biased and that Cox did not allege that but for counsel’s deficient performance the outcome of the proceeding would have been different. However, this misstates both the record and the standard for this type of claim.

In Kleppinger v. State, 884 So.2d 146, 149 (Fla. 2d DCA 2004), this court held that when considering a disqualification issue in the context of an ineffective assistance claim, “[t]he finding of prejudice turns on whether disqualification would have been required, not on whether the outcome of a new trial would have been different.” See also Goines v. State, 708 So.2d 656, 661 (Fla. 4th DCA 1998) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). This is because “trial before a judge whose impartiality may reasonably be questioned ‘would present grave due process concerns,’ because ‘proceedings involving criminal charges ... must both be and appear to be fundamentally fair.’ ” Goines, 708 So.2d at 660-61 (quoting Steinhorst v. State, 686 So.2d 498, 500-01 (Fla.1994)). Moreover, “[a] legally sufficient motion to disqualify must demonstrate ‘some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had.’ ” Kleppinger, 884 So.2d at 149 (quoting Downs v. Moore, 801 So.2d 906, 915 (Fla.2001)).

In this case, there is no dispute that the sentencing judge was the assistant state attorney who signed the prior felony information against Cox. Thus, Cox’s allegations are sufficient to show a reasonable fear of actual bias. Further, Cox’s allegations that disqualification would have been required are sufficient to establish the prejudice prong. Therefore, because Cox’s allegations are sufficient to meet the Kleppinger standard, he presented a facially sufficient claim for relief.

In its order, the postconviction court also found that Cox was not entitled to relief on claim three because he did not have a well-grounded fear of bias at the time of trial because he did not learn of the possible conflict until after he was sentenced in this case. However, the question underlying this claim is not when Cox learned of the potential conflict but whether Cox’s trial counsel was ineffective for not discovering this potential conflict, bringing it to Cox’s attention, and taking steps to resolve it. Resolution of this question requires an evidentiary hearing. Accordingly, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and VILLANTI, JJ„ Concur.

      . We recognize that Kleppinger and Goines conflict with Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007), review granted, 959 So.2d 718 (Fla.2007), on the issue of whether a defendant must allege actual bias on the part of the trial judge in order to state a facially sufficient claim for postconviction relief based on trial counsel's failure to move to disqualify the trial judge. We also have some concern that the supreme court’s decision in Carratelli v. State, 961 So.2d 312 (Fla.2007), may have called into question the holdings of Kleppinger and Goines. However, Carratelli dealt with the issue of juror disqualification rather than judicial disqualification, and we believe that the considerations of fundamental fairness and due process at issue in Kleppinger and Goines are sufficiently different from the issue in Carratelli that both Kleppinger and Goines remain viable post-Carratelli. Thus, we certify conflict with Thompson on this issue.


author: ALTENBERND, Judge.

text:
    David FREELAND, Appellant, v. Nancy FREELAND, Appellee.
    No. 2D07-280.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.

      Matthew D. Brumley, Tampa, for Appellant.
    Gary A. Urso, New Port Richey, for Appellee.
   ALTENBERND, Judge.

David Freeland appeals a final judgment of dissolution of his marriage to Nancy Freeland. He challenges two aspects of the final judgment relating to equitable distribution. Without further discussion, we conclude that the trial court did not err in refusing to adjust the calculation of equitable distribution to account for a post-filing gift that the Husband gave to his adult child from a prior marriage. We conclude, however, that the portion of the judgment requiring the Husband to pay an equalizing payment appears to contain a miscalculation resulting from a mathematical error by the parties’ joint financial expert. The Husband filed a motion for rehearing that identified and explained this problem, but the trial court denied that motion without a hearing. The Husband asks this court simply to order the trial court to correct the calculation. We conclude that the record does not permit that relief. On the other hand, the record does establish that the trial court abused its discretion when it did not conduct a hearing on the Husband’s motion for rehearing to consider this problem and clarify its ruling.

The parties were married for approximately fifteen years. To their credit, they were able to resolve the differences between their respective positions prior to trial except for four financial issues. Even during the trial, every effort was made to resolve matters efficiently and without discord.

Because most issues were resolved prior to the trial, at the beginning of the trial, the Wife’s counsel read an “agreement” into the record. Our record concerning this agreement is a little unusual. There was no exhibit formally filed in the record at the time the Wife’s counsel read this partial settlement agreement to the trial judge. The first exhibit in the record is exhibit “2,” which suggests that the parties may have believed that the partial settlement agreement was exhibit “1.” The final judgment attaches an “agreement read into the record,” as exhibit “A.” The judgment was entered weeks after the trial, and we are not certain whether exhibit “A” was prepared before or after the trial. Exhibit “A” is not signed by the parties, and no one suggests that there is a signed stipulation between the parties determining the equalizing payment.

When the Wife’s counsel read the agreement into the record, he occasionally digressed to explain the agreement. The critical paragraph in the written agreement attached to the final judgment as exhibit “A” states:

As an equalization of the distribution of the marital assets herein, the Husband shall pay to the Wife the sum of $95,728.20. Said sum shall be paid to the Wife within fourteen (14) days from the date of the execution of this Agreement.

The discussion of this paragraph on the record states:

[T]his paragraph will be changed according to the Court’s ruling. So there will be an equalization necessary of the marital assets. And it will require either wife to pay husband or husband to pay wife, depending on what the Court rules. And so I think we need to have [the financial expert] here, because she can run our calculation for us, depending on what you might rule.

Thus, the above-quoted language from exhibit “A” was never “read into the record,” and no signed stipulation was filed in the record establishing an equalization payment of $95,728.20. However, both the agreement read into the record and the agreement in exhibit “A” to the final judgment reflect the parties’ “intent to effectuate a 50/50 distribution.”

After the agreement was read into the record, the parties presented the testimony of a joint expert witness as to financial matters. In answer to a question posed by the Wife’s counsel, the expert opined that the equalizing payment to be paid by the Husband to the Wife should be $95,728.20. It is obvious from the documents in the record that the expert’s calculation was incorrect and that the formula she used failed to divide the equalization amount in half. Thus, if a 50/50 split was intended, then the expert’s calculation contains an error of $47,864.10.

During trial, the Husband’s counsel did not cross-examine the expert on this error, but instead stated:

Since we’ve agreed to the other issues, I’m not going to make an issue of the valuations on the particular equitable distribution worksheet that you have prepared, because we’ve agreed to only discuss four issues today, but you would acknowledge I’m sure that in the event the Court decides to give a credit to Mr. Freeland on the issue of the gift to the son and the loan to Mrs. Freeland’s brother, that the amount of money to be transferred would change?

When the trial court issued its judgment, its rulings on the disputed issues caused it to adopt the expert’s calculation. Thus, the judgment required the Husband to pay an equalizing payment of $95,728.20. The Husband moved for rehearing, explaining that the judgment incorporated this mathematical error. The Husband described the error as a “bilateral mistake” by the parties’ joint expert. The trial court denied the motion without a hearing, and the Husband appealed.

The Husband contends that the parties intended to effectuate an equitable distribution that was a 50/50 split. He asks this court simply to reverse the portion of the judgment setting the equalization payment at $95,728.20 with instructions to correct this amount to $47,864.10. See Prinz v. Prinz, 596 So.2d 807 (Fla. 2d DCA 1992) (reversing where final judgment did not reflect the obvious intent of the parties). The Wife contends on appeal that they did not agree to a precise 50/50 split. Although we are inclined to believe that the Husband’s position in his motion for rehearing has merit, we are not certain that the above-described content of the record permits us to provide this relief. Especially in the absence of a signed stipulation in this record, we cannot determine whether this calculation is the type of mistake for which the Husband was entitled to relief. If he were entitled to relief, we are not certain whether the trial court could simply correct the judgment or whether the parties would need to renegotiate their agreement.

It is clear, however, that the motion had sufficient merit that the trial court needed to conduct a hearing to consider the merits of the motion. To the ejctent that the trial court denied a hearing on this issue, it abused its discretion.

Florida Rule of Civil Procedure 1.530(a) provides that “On a motion for rehearing of matters heard without a jury ... the court may open the judgment if one has been entered, take additional testimony and enter a new judgment.” Additional testimony may be taken on any or all of the issues for a full development of the essential facts so that the trial judge may render a more accurate judgment. See, e.g., Pensacola Chrysler-Plymouth, Inc. v. Costa, 195 So.2d 250, 254 (Fla. 1st DCA), cert. denied, 204 So.2d 211 (Fla.1967). Moreover, this rule provides the trial court an opportunity to correct any error it has committed if it becomes convinced it has erred. See, e.g., Elmore v. Palmer First National Bank and Trust Co., 221 So.2d 164, 166 (Fla. 2d DCA 1969).

Wynocker v. Wynocker, 500 So.2d 555, 557 (Fla. 2d DCA 1986). Thus, on remand, unless the parties can achieve an amicable settlement of this remaining issue, the trial court should conduct a hearing to determine whether the miscalculation of the equalizing payment is a matter that permits relief either as a mutual mistake that was relied upon by both parties in their agreement, perhaps requiring them to renegotiate the agreement, or a. trial court error that can be corrected by amending the amount of the equalizing payment in the judgment.

Reversed and remanded.

SALCINES and WALLACE, JJ., Concur.

      . The author of this opinion has no standing to criticize the financial expert, having been required to publish an opinion to correct an error in a child-support formula established in one of his earlier opinions. See Gingola v. Velasco, 668 So.2d 1054, 1055 (Fla. 2d DCA 1996).

      . Because no hearing has been held on the motion for rehearing, it is difficult to determine how to categorize this mistake. The parties have not been allowed to argue, for example, whether it is a unilateral or a mutual mistake. See generally Feldman v. Kritch, 824 So.2d 274, 277 (Fla. 4th DCA 2002) (discussing effect of unilateral or mutual mistake of fact in context of signed settlement agreement). It may be neither. It may simply be a mathematical error by the trial judge in entering judgment without double-checking the joint expert’s math.


text:
    Donald Raymond IVEY, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
    No. 2D07-4838.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.

      Jeanine L. Cohen of Cohen & DePaul, P.A., Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Donald Raymond Ivey filed a petition for habeas corpus or, in the alternative, petition for writ of certiorari in this court. He is attempting to present a claim of ineffective assistance of trial counsel relating to his representation in a civil commitment proceeding in the Sixth Judicial Circuit pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act (the Jimmy Ryce Act), §§ 394.910-.931, Fla. Stat. (2001). No one contests his constitutional right to effective assistance of counsel in that proceeding. No one suggests that he should be denied the right to present a claim of ineffective assistance of counsel. Nevertheless, no court seems to have an adequate procedural method to address this issue, which is of a constitutional dimension. We conclude that a district court does not have authority to conduct the evidentiary hearing required by Mr. Ivey’s petition. Thus, we deny this petition, but certify the following question of great public importance:

MAY A DISTRICT COURT OF APPEAL CONDUCT AN EVIDENTIARY HEARING AND RULE UPON A PETITION FOR WRIT OF HABEAS CORPUS OR CERTIORARI FROM A CIVIL DETAINEE SUBJECT TO THE JIMMY RYCE ACT WHEN THE DETAINEE ALLEGES INEFFECTIVE ASSISTANCE OF COUNSEL?

In 1995, Mr. Ivey committed a lewd and lascivious assault on a victim under the age of sixteen in Pinellas County when he was nineteen years old. He was convicted of the offense and sentenced to fifty months’ imprisonment. Prior to his release from prison in 2001, the State filed a civil commitment proceeding against him. Following a nonjury trial, Mr. Ivey was found to be a sexually violent predator and was civilly committed. He appealed that ruling, and we affirmed the commitment order. Ivey v. State (In re Commitment of Ivey), 918 So.2d 300 (Fla. 2d DCA 2005) (table decision).

During the pendency of the direct appeal, Mr. Ivey filed an emergency petition for writ of habeas corpus in this court claiming ineffective assistance of counsel. In October 2005, we dismissed the petition in an unpublished order that instructed him that the dismissal was “without prejudice to file in the circuit court.” See Ivey v. State (In re Commitment of Ivey), 912 So.2d 1224 (Fla. 2d DCA 2005) (table decision).

Accordingly, in December 2005, Mr. Ivey filed a petition for writ of habeas corpus in the circuit court in and for DeSo-to County where he is detained. In that petition, he again attempted to allege ineffective assistance of counsel. In December 2006, the circuit court in DeSoto County denied his petition. Obeying the rule of law explained in Alachua Regional Juvenile Detention Center v. T.O., 684 So.2d 814 (Fla.1996), that court concluded that it was empowered to decide only whether the circuit court in the Sixth Judicial Circuit had jurisdiction to enter the commitment order and whether the final judgment was void. Thus, it denied the petition without reaching the merits of Mr. Ivey’s claim that his trial counsel was ineffective. Mr. Ivey did not appeal this order.

Undeterred, in January 2007, Mr. Ivey filed a petition for writ of habeas corpus in the circuit court of the Sixth Judicial Circuit where he had been tried. That court denied his petition, explaining that it had no jurisdiction over the location of his detention. It agreed that a petition for writ of habeas corpus was the correct method to challenge his detention according to the First District’s decision in Manning v. State, 913 So.2d 37, 37 (Fla. 1st DCA 2005). It declined to disagree with the circuit court in DeSoto County, but it also declined to provide relief. In closing, the circuit court in the Sixth Judicial Circuit noted that the petition did not comply with the pleading requirements of Florida Rule of Criminal Procedure 3.850, but it did not grant leave to amend the motion because the court concluded it would have no authority under that rule to consider a claim of ineffective assistance of counsel in a civil case.

As a result of these orders, Mr. Ivey returned once again to this court seeking a writ of habeas corpus or a writ of certiorari to address his claim of ineffective assistance of counsel. This court, of course, cannot conduct evidentiary hearings. We have considered whether we could or should appoint a circuit court judge in the Sixth Judicial Circuit as our commissioner to conduct such a hearing. If we took that approach, it is unclear whether Mr. Ivey could then receive any meaningful appellate review from our ruling in the supreme court. Moreover, it is only coincidental that this court has territorial jurisdiction over both the location of Mr. Ivey’s detention and the circuit court in which he was tried. Many, if not most, detainees at the Jimmy Ryce facility in DeSoto County were tried in circuit courts whose decisions cannot be reviewed by this court. We doubt that it would be appropriate for this court to appoint circuit court judges outside our territorial jurisdiction to be this court’s commissioners in reviewing petitions for habeas corpus from detainees who were tried in circuit courts in other districts.

A person whom the State is seeking to have committed under the Jimmy Ryce Act has the right to effective assistance of counsel at all significant stages of the commitment process. The supreme court explained in Pullen v. State, 802 So.2d 1113 (Fla.2001):

Clearly, an individual who faces involuntary commitment to a mental health facility has a liberty interest at stake. Accordingly, this Court has held that “[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. By significant stages we mean all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subject’s liberty.” In re Beverly, 342 So.2d 481, 489 (Fla.1977) (citation omitted); accord Jones v. State, 611 So.2d 577, 579 (Fla. 1st DCA 1992).

Id. at 1116.

In Manning, 913 So.2d at 38, the First District held that in the absence of a procedural rule comparable to rule 3.850, the proper vehicle for raising claims of ineffective assistance of trial counsel in a Jimmy Ryce proceeding is by way of a petition for writ of habeas corpus in the circuit court wherein custody lies, which in this case is in the circuit court of the Twelfth Judicial Circuit in DeSoto County. While that ruling is not illogical, we also recognize that the circuit court in DeSoto County was not unreasonable when it followed the much more restrictive review authorized by T.O.

The writ of habeas corpus has been recognized in Florida since the earliest territorial statutes. See Valdez-Garcia v. State, 965 So.2d 318, 320 (Fla. 2d DCA 2007). Although it is a flexible writ for obtaining release from custody when one is illegally detained, it has limitations. This case demonstrates that it is not a particularly good writ for the purpose of reviewing a claim of ineffective assistance of counsel.

Before we are too critical of the limitations of the great writ, it may be useful to observe that the theory of “ineffective assistance of counsel” is of relatively recent origin. The phrase “ineffective assistance of counsel” first appears in a case reviewing a claim under Florida Rule of Criminal Procedure 1, the precursor to rule 3.850. See State v. Barton, 194 So.2d 241, 244 n. 9 (Fla.1967) (quoting Edwards v. United States, 256 F.2d 707, 709 (D.C.Cir.1958)). The theory was not generally available prior to that time because one could not generally make a claim of ineffective assistance for privately retained counsel. See Byrd v. State, 220 So.2d 14 (Fla. 3d DCA 1969). Thus, until the United States Supreme Court held that the Sixth Amendment right to counsel applied to the states in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), this theory had virtually no application in Florida courts. Thus, despite the long history of the writ of habeas corpus, it has never actually needed to serve as a regular method to review claims of ineffective assistance of trial counsel because modern postconviction procedures were established before these claims became common.

We agree with the Manning court that the process of using a petition for habeas corpus in DeSoto County is cumbersome, inconvenient, and unsatisfactory because, in the many cases, the circuit in which the commitment facility is situated is not the circuit where the commitment proceedings occurred. In this case, the trial occurred in Pinellas County and it would not be a great burden for trial counsel to appear in DeSoto County to testify about issues relating to his or her effectiveness. It would, however, be highly impractical to conduct such hearings in DeSoto County for cases tried in Pensacola, Panama City, or Key West.

If this court had rule-making authority, we would probably devise a rule similar to rule 3.850 for use in these specific civil proceedings. Only the supreme court has that power. See Art. V, § 2(a), Fla. Const. The best that we can do is to instruct Mr. Ivey to file his petition once again in DeSo-to County. Because we have not disagreed with the decision in Manning, he should be free to argue that he is entitled to a hearing before that court, applying a standard of review similar to rule 3.850 for claims of ineffective assistance of counsel despite the narrower standard announced by the supreme court in T.O.

Because we recognize that, under the case law, Mr. Ivey has fallen into a whirlpool from which he may never escape with a ruling on the merits, we have certified the question at the beginning of this opinion to provide the supreme court with an opportunity to establish .a procedure that gives detainees like Mr. Ivey a method to obtain timely relief for such claims.

Petition for writ of habeas corpus denied.

WHATLEY and STRINGER, JJ., Concur.

      . A Westlaw search reveals only two references to "ineffective assistance of counsel” in Florida case law prior to 1970 and eleven prior to 1975. As of the end of 2007, Florida case law contains 2956 references to this theory.

      . The theory of ineffective assistance of counsel is discussed in cases somewhat earlier, using various terminology. See, e.g., Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964) (discussing "the right to question the competence of such counsel”); Webster v. State, 156 So.2d 890 (Fla. 1st DCA 1963).

      .The writ is frequently used to claim ineffective assistance of appellate counsel. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Such claims, however, are rarely fact-intensive and can frequently be resolved as an issue of law. that is apparent on the face of the appellate record.

      . It may be helpful for this court to observe that the certified question contained in this opinion has been narrowly written to assure that it incorporates the actual issue that was dispositive of this case in this court. If the supreme court chooses to address this certified question, we hope that it will consider the adoption of a procedure similar to rule 3.850 permitting the detainee to present this challenge in the circuit court where his case, was actually tried.


text:
    N.H.M., Appellant, v. STATE of Florida, Appellee.
    No. 2B06-5287.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

The State filed a petition for delinquency alleging that N.H.M. committed the crimes of robbery and carrying a concealed weapon. At the conclusion of the delinquency trial, the trial judge concluded that the State had not proven that N.H.M. committed a robbery but that the evidence was sufficient to support a finding that N.H.M. committed the lesser-included crime of battery. N.H.M. objected that battery was neither a necessary lesser-included offense of robbery nor a crime charged in the petition for delinquency. Nevertheless, the trial court entered the order now on appeal finding that N.H.M. committed a battery and carried a concealed weapon. N.H.M. raises no issues directed to the offense of carrying a concealed weapon, and that portion of the order is therefore affirmed. However, we reverse the portion of the order finding that N.H.M. committed a battery because the petition for delinquency did not contain the elements necessary to allege that N.H.M. committed that offense.

A conviction on a charge not contained in the charging document is considered a denial of due process. Jaramillo v. State, 659 So.2d 1238, 1239 (Fla. 2d DCA 1995). This principle applies in juvenile delinquency proceedings. See, e.g., B.S.W. v. State, 668 So.2d 1075, 1075 (Fla. 2d DCA 1996). As a result, when an offense is not a necessarily lesser-included offense of the charged offense — that is, the offense is a “category 2” or permissive lesser-included offense — the trial court cannot convict the defendant of the lesser crime unless the allegations of the charging document include the elements of that crime. B.S.W., 668 So.2d at 1075.

Battery is not a necessarily lesser-included offense of robbery. Id. Therefore, the finding that N.H.M. committed a battery was only permissible if the petition for delinquency alleged the elements, of this crime. The petition specifically alleged that N.H.M. did “unlawfully, by force, violence, assault or putting in fear rob, steal and take away from the person or custody of [the victim] certain property.” Certainly the use of the term “force” suggests a physical force that may constitute a battery. However, the specific elements of battery are either actually and intentionally touching or striking another person against the will of the other or intentionally causing bodily harm to another. See § 784.03(l)(a), Fla. Stat. (2006); see also Khianthalat v. State, 935 So.2d 583, 584 (Fla. 2d DCA 2006); S.D. v. State, 882 So.2d 447, 448 (Fla. 4th DCA 2004).

Strictly speaking, the simple use of the word “force” does not encompass an intentional touching without consent or the intentional infliction of bodily harm. In Wilson v. State, 786 So.2d 632 (Fla. 4th DCA 2001), the Fourth District concluded that language similar to the language in N.H.M.’s petition did not properly allege a battery: “In the instant case, the information charging Wilson alleged that he took money from the victim by force, violence, assault, or putting in fear and carried a weapon at the time. It does not allege that Wilson touched or struck the victim or caused her bodily harm.” Id. at 633.

In contrast, this court has found an information sufficient to allege both an attempted robbery and the lesser-included crime of battery when it stated that the defendant committed an attempted robbery “ ‘and in such attempt did an act toward the commission of such offense to-wit: threaten or commit a battery on [the victim] with the intent to unlawfully, by force, violence, assault or putting in fear, take away from the person or custody of [the victim] certain property[.]’ ” Ross v. State, 373 So.2d 41, 41 (Fla. 2d DCA 1979); see also Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991) (stating “[t]he information in the instant case adequately alleged that appellant intentionally caused bodily harm to another,” thus supporting conviction for battery as a lesser-included offense to strong-arm robbery).

In light of the holding in Wilson, 786 So.2d at 633, the use of the word “force” in the petition charging N.H.M. with robbery did not give adequate notice to N.H.M. that he faced adjudication for the crime of battery. We therefore reverse that portion of the order withholding adjudication of delinquency that finds N.H.M. guilty of battery. On remand, however, the court may consider whether the evidence was sufficient to find N.H.M. committed an assault. Assault is a necessary lesser-included offense of robbery. Richardson v. State, 523 So.2d 746, 747 (Fla. 5th DCA 1988). The elements of assault were specifically alleged in the petition, and N.H.M.’s counsel conceded that the court could find N.H.M. guilty of assault when the court indicated it was considering an adjudication for battery.

Affirmed in part, reversed in part, and remanded.

DAVIS and CANADY, JJ., Concur.

      . We do not mandate this result. Because the petition for delinquency never alleged a battery, the State may be able to file a new petition alleging battery rather than pursue the entry of an order finding N.H.M. guilty of assault.


author: VILLANTI, Judge.

text:
    Kenneth DARLING, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2130.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
   VILLANTI, Judge.

Kenneth Darling appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, raising five grounds for relief. We affirm the trial court’s denial of claims two through five without discussion.

In claim one, Darling alleges that his counsel was ineffective for failing to object to the jury venire’s disparate representation of minority groups. Darling asserts that members of minority groups were systematically excluded from the all-white venire. However, Darling’s claim is merely conclusory and contains no factual support for his contention. Cf. Leonard v. State, 659 So.2d 1210, 1212 (Fla. 4th DCA 1995) (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). Accordingly, we affirm the post-conviction court’s order on claim one without prejudice to any right Darling may have to file a timely, facially sufficient motion on this claim. See Delaughter v. State, 641 So.2d 932 (Fla. 2d DCA 1994).

Affirmed.

SALCINES and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Demetrius JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5913.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Demetrius Jackson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is time-barred under the terms of Florida Rule of Appellate Procedure 9.141(c)(4)(A) and is therefore denied. This disposition, however, is without prejudice to the right of petitioner to challenge his sentence by filing an appropriate motion in the circuit court.

PETITION DENIED.

WOLF, KAHN, and LEWIS, JJ., concur.


text:
    Stephen MANGRUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3299.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Stephen Mangrum, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Andre C. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6317.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Andre C. Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Michael CORKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0086.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.

      Michael Corker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: SUAREZ, J.

text:
    GOLDEN GATE HOMES, L.C., Appellant, v. L & G ENGINEERING SERVICES, INC. and Mohamad Sonny Salleh, P.E., Appellees.
    No. 3D07-398.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Paul J. Kneski, Miami, for appellant.
    Stephens Lynn Klein LaCava Hoffman & Puya and Roberta G. Mandel, Miami, for appellees.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Golden Gate Homes, L.C., appeals an Order Clarifying Order Granting Defendants’ Motion for Reconsideration and to Dismiss. The trial court dismissed without prejudice Golden Gate’s complaint for breach of contract and negligence after the statute of limitations had run. Because we find that Golden Gate’s motion to reinstate was both untimely, if considered as a motion for rehearing, and did not meet the prerequisites for setting aside a judgment, if filed pursuant to Florida Rule of Civil Procedure 1.540, we affirm the dismissal.

On October 30, 2006, the trial court entered an order granting Golden Gate’s attorney’s motion to withdraw and ordered Golden Gate to obtain new counsel within fifteen days or face sanctions including dismissal of Golden Gate’s complaint. On Nov 6, 2006, a new law firm filed a motion on behalf of Golden Gate requesting a continuance of the November 27, 2006 trial date, stating it would represent Golden Gate only if the continuance were granted. The trial court denied the motion to continue on November 16, 2006. On November 22, 2006, the trial court entered an order granting without prejudice Defendant L & G Engineering Services, Inc.’s Motion to Dismiss Golden Gate’s complaint for failure to retain new counsel within the court-ordered fifteen days. On December 12, 2006, although the statute of limitations had run, Golden Gate moved to reinstate the complaint giving reasons for its difficulty in obtaining new counsel. On December 21, 2006, the trial court reinstated the action. Then, on December 28, 2006, the trial court vacated its December 21 order on grounds that Golden Gate’s December 12, 2006 Motion to Reinstate was untimely under Florida Rule of Civil Procedure 1.530 and was insufficient to set aside the reinstatement under Florida Rule of Civil Procedure 1.540. We agree. The December 12, 2006 Motion to Reinstate the action was neither timely as a motion for a new trial or rehearing, required to be served not later than ten days after judgment, see Fla. R. Civ. P. 1.530, nor legally sufficient to demonstrate excusable neglect sufficient to constitute relief from judgment. See Fla. R. Civ. P. 1.540.

The trial court’s November 22, 2006 order dismissing Golden Gate’s complaint without prejudice is a dismissal with prejudice as the statute of limitations had run. See Walden v. Adekola, 773 So.2d 1218 (Fla. 3d DCA 2000); see also Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180 (Fla. 3d DCA 1982) (holding that order of dismissal without prejudice is a final ap-pealable order). Therefore, Golden Gate’s December 12 Motion to Reinstate, if treated as a motion for rehearing pursuant to Rule 1.530(b), was untimely as it was served more than ten days after the trial court’s November 22 order dismissing the action. If considered as a motion for relief from judgment, decree, or order pursuant to Florida Rule of Civil Procedure 1.540, Golden Gate’s failure to timely secure legal counsel was itself not a basis for excusable neglect so as to qualify for relief from judgment. See Szucs v. Qualico Dev., Inc., 893 So.2d 708 (Fla. 2d DCA 2005).

The dismissal order of November 22, 2006, was a final appealable order. Derma Lift, 419 So.2d at 1180. The trial court lost jurisdiction over the cause after the ten-day period for rehearing expired. See Curbelo v. Ullman, 571 So.2d 443 (Fla.1990); Derma Lift, 419 So.2d at 1180 (holding that trial court lost jurisdiction to set aside order of dismissal without prejudice after time for rehearing had expired). Appellant failed to exercise its option to file a motion for rehearing within ten days, to file an appeal within thirty days from the judgment, or to re-file the action. The appellant cannot now complain that it was prejudiced by the trial court’s ruling. See Gries Inv. Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980) (determining that trial court was without jurisdiction to consider motion for leave to amend complaint when plaintiff did not timely appeal or seek rehearing following dismissal without prejudice).

We find no abuse of discretion by the trial court in vacating its motion to reinstate the action and therefore affirm the order below. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 609 (Fla.1994) (“A trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice.”); Masot v. Hoteles Doral, C.A., 645 So.2d 184 (Fla. 3d DCA 1994); see Szucs, 893 So.2d at 708.

Affirmed.

      . Florida Rule of Civil Procedure 1.530(b) requires motions for rehearing to be served no later than ten days from the date the order is filed.


author: MAY, J.

text:
    L.O.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-248.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 12, 2008.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals an order adjudicating him delinquent and committing him to a high risk residential program. He raises three arguments. He argues the trial court erred in adjudicating him delinquent for three counts of grand theft and one count of dealing in stolen property for the same firearms. He also asserts the trial court erred in designating him as a serious or habitual juvenile offender, and in failing to limit its jurisdiction over him to the age of 19. We reverse on the first issue, but affirm in all other respects, and remand for further proceedings.

The State filed a delinquency petition alleging five counts, one for armed burglary of a residence, three for grand theft of firearms taken from that residence, and one for dealing in stolen property (the firearms). The juvenile entered a no contest plea on all counts. The trial court accepted the plea, adjudicated the juvenile delinquent, and committed him to a high risk residential program as a serious or habitual juvenile offender.

The juvenile then filed an amended motion to correct the disposition order. The motion asked the court to strike the disposition order as it related to counts I (grand theft), II (dealing in stolen property), and TV (grand theft), based on double jeopardy grounds. In essence, he argued that the court could not adjudicate him delinquent on three grand theft counts and the dealing in stolen property count because they all related to the same stolen property.

The court denied the motion. It found that the firearms charged in the grand theft counts were not the same as those involved in the dealing in stolen property count as there were multiple firearms taken during the residential burglary. It is in this finding that the trial court erred.

We have previously held that double jeopardy does not prohibit convictions for grand theft and dealing in stolen property because each offense requires an element that the other does not. Blair v. State, 667 So.2d 834 (Fla. 4th DCA 1996) (discussing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Nevertheless, section 812.025, Florida Statutes (2006) prohibits convictions for both crimes where a single charging document charges “theft and dealing in stolen property in connection with one scheme or course of conduct.” Toson v. State, 864 So.2d 552, 554 (Fla. 4th DCA 2004). In that circumstance, the “trier of fact may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025, Fla. Stat. (2006). In Toson, this court reversed convictions for grand theft and three counts of dealing in stolen property because the counts all involved the same property. Toson, 864 So.2d at 556. See also Hall v. State, 826 So.2d 268, 270-72 (Fla.2002); Aversano v. State, 966 So.2d 493, 496-97 (Fla. 4th DCA 2007).

Here, the petition alleged three counts of grand theft of a firearm and one count of dealing in stolen property. The State’s factual basis for the plea revealed that the juvenile burglarized a house and found twenty guns, some of which he stole, along with some ammunition. He threw the firearms over the fence intending to retrieve them later and sell them for money to buy clothes or marijuana. The juvenile admitted burglarizing the house, stealing the guns, and selling one of them.

When analyzing the issue, the trial court focused its attention on the fact that multiple guns were taken from the residence instead of analyzing whether the theft counts and dealing in stolen property count were distinct and unrelated criminal incidents. When the proper analysis is applied, it is clear that section 812.025, Florida Statutes (2006) prohibits the adjudication on the three grand theft charges and the dealing in stolen property charge in this case. In fact, one firearm involved in the theft charge was precisely the same firearm that formed the basis for the dealing in stolen property count.

The second argument raised by the juvenile concerns the trial court’s designation of him as a serious or habitual juvenile offender. Section 985.47(1), Florida Statutes (2006) provides:

A “Serious or habitual juvenile offender,” for the purposes of commitment to a residential facility and for purposes of records retention, means a child who has been found to have committed a delinquent act or a violation of law, in the case currently before the court, and who meets at least one of the following criteria:
(a) The child is at least 13 years of age at the time of the disposition for the current offense and has been adjudicated on the current offense for:
14. Carrying, displaying, using, threatening, or attempting to use a weapon or firearm during the commission of a felony[,]
(b) The child is at least 13 years of age at the time of the disposition, the current offense is a felony, and the child has previously been committed at least two times to a delinquency commitment program[,][or]
(c) The child is at least 13 years of age and is currently committed for a felony offense and transferred from a moderate-risk or high-risk residential commitment placement.

§ 985.47(1), Fla. Stat. (2006) (emphasis added).

Here, the juvenile was 13 years of age, pled to, and was adjudicated for, three counts of grand theft of a firearm, one count of dealing in stolen property, and one count of armed burglary. Each of these offenses falls within the purview of subsection 14. Therefore the trial court did not err in making this designation. The court further did not err in failing to limit its jurisdiction over this juvenile to the age of 19. See § 985.0301(5)(d), Fla. Stat. (2006) (providing for retention of jurisdiction over a child committed for placement in a high-risk residential commitment program until the child’s 22nd birthday).

For the reason expressed above, we reverse the adjudication and disposition order and remand the case to the trial court to vacate either the dealing in stolen property charge or the three counts of grand theft of a firearm and to enter a new disposition order.

Reversed and Remanded.

POLEN and KLEIN, JJ., concur.

      . The juvenile filed the motion in four cases. The court granted the motion as it related to three cases not involved in this appeal.


text:
    Charles STEPHENSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-2196.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Charles Stephenson, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before GREEN, SUAREZ, and WELLS, JJ.
   PER CURIAM.

We treat this petition for writ of habeas corpus as a motion for belated appeal. Following our review of the issues raised, we affirm on the merits.

Affirmed.


text:
    Lorenzo BROOKS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 4D07-4686.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 12, 2008.
    Lorenzo Brooks, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

In this certiorari proceeding, Lorenzo Brooks (Appellant) challenges an order of the Palm Beach County circuit court which denied his petition for writ of habeas corpus, challenging as unconstitutional the conditional release statutes, sections 947.1405 and 947.141, Florida Statutes (2006). As the circuit court’s ruling was not rendered in its review capacity, we re-designate the proceeding as an appeal, treat Appellant’s petition as his initial brief, and affirm summarily pursuant to rule 9.315(a) (providing court may affirm summarily on finding no preliminary basis for reversal has been demonstrated).

The circuit court may have been inaccurate in calling Appellant’s habeas petition premature, though Appellant has not yet been placed on conditional release. Compare Duncan v. Moore, 754 So.2d 708 (Fla.2000) (considering the merits of a habeas petition filed by an inmate subject to the conditional release program, who did not appear to have been released yet). Nevertheless, the circuit court clearly was correct in denying the petition on the merits, citing Mayes v. Moore, 827 So.2d 967 (Fla.2002).

The cases cited by the circuit court did not address Appellant’s argument that he was denied due process because the challenged statutes did not contain a list of prohibited acts that may result in the revocation of his conditional release. However, we find this argument also to be without merit. When an inmate is placed on conditional release, the order of conditional release notifies the inmate of the conditions that will apply. See § 947.1405(6) (“If the commission determines that the inmate is eligible for release under this section, the commission shall enter an order establishing the length of supervision and the conditions attendant thereto.”). Compare Avatar Dev. Corp. v. State, 723 So.2d 199, 203-04 (Fla.1998) (approving this court’s opinion, which held petitioners, charged with failing to comply with special conditions to prevent pollution set out in permit issued by Department of Environmental Protection, were not deprived of due process because the permit they received provided them with notice of the conditions upon which the permit was issued).

Affirmed.

SHAHOOD, C.J., HAZOURI and DAMOORGIAN, JJ., concur.