text:
    Darrell C. TRAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2890.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.
    James C. Banks, of the Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

A jury found Darrell C. Travis (Appellant) guilty, as charged, of two counts of burglary of a conveyance, one count of possession of a burglary tool, one count of resisting an officer without violence, and two counts of criminal mischief causing damages of $200.00 or less. The trial court adjudicated him guilty and imposed guidelines sentences. Appellant raises two issues in this appeal. First, did the trial court comply with the requirements of the federal Sixth Amendment and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and conduct an adequate inquiry, prior to the commencement of the guilt and penalty phases of the trial, to assure that Appellant’s waiver of court-appointed counsel was knowing, voluntary, and intelligent? Second, did the trial court abuse its discretion by failing to give jury instructions for Category One lesser-included offenses, where no such instructions were requested, and Appellant orally approved the jury instructions given? Having concluded that the trial court adequately apprised Appellant of his rights under Faretta prior to commencement of the trial, and that no fundamental error was shown in the failure to give the jury instructions at issue, we affirm Appellant’s convictions. However, because the trial court failed to renew the Faretta inquiry before the sentencing, we reverse Appellant’s sentences and remand for re-sentencing in accordance with the requirements of Faretta.

Although the judge who conducted the pretrial Faretta inquiry had assured Appellant that the offer of counsel would be renewed before the penalty phase, the judge who presided over the trial failed to inquire further or to renew the offer of counsel at the commencement of sentencing. Sentencing is a crucial stage of a criminal proceeding, so that the offer of assistance of counsel must be renewed then, even if the defendant has previously waived counsel at other stages. See Parker v. State, 539 So.2d 1168, 1169 (Fla. 1st DCA 1989) (holding that trial court’s failure to renew offer of assistance of counsel at sentencing hearing compelled vacating of sentence and remanding for re-sentencing); see also Kepner v. State, 911 So.2d 1256, 1258 (Fla. 4th DCA 2005); Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999); Hardy v. State, 655 So.2d 1245, 1247-48 (Fla. 5th DCA 1995).

Immediately after the dismissal of the jury, the court proceeded with the sentencing process. Even though the end of the guilt phase and the commencement of the penalty phase were not punctuated by a temporal break, sentencing is a separate critical stage, which has a separate function and consequence from the jury trial itself. Because the failure to renew the offer of counsel at the commencement of the sentencing hearing constitutes reversible error, Appellant is entitled to be re-sentenced after a proper Faretta inquiry. See Parker, 539 So.2d at 1169.

We AFFIRM the convictions, VACATE the sentences, and REMAND for re-sentencing after a proper renewal of the offer of counsel.

BARFIELD and BENTON, JJ., concur.


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    Scott LAHODIK, Appellant/Former Husband, v. Rebecca LAHODIK, Appellee/Former Wife.
    No. 1D06-6602.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.

      Jonathan J. Luca, Jacksonville, for Appellant.
    Deborah L. Greene of Smith Green & Combs, Jacksonville, for Appellee.
   HAWKES, J.

Appellant Scott Lahodik appeals the trial court’s order, which modified the parties’ mediated settlement agreement to award temporary child support during the pendency of modification proceedings, as well as the order which modified the children’s custody. Our review reveals the trial court acted well within its discretion, and its findings were supported by competent, substantial evidence. Accordingly, we affirm both orders in all respects.

However, we conclude Appellant’s appeal is frivolous. We write only to impose attorneys’ fees against Appellant pursuant to section 61.16(1), Florida Statutes, and to reiterate that, although parties may have a legal right to file an appeal, a party who files an appeal lacking merit when applying the proper appellate standard of review risks the imposition of attorneys’ fees.

Here, one of Appellant’s arguments is that, because the parties previously established their child support obligations through a settlement agreement, the trial court was precluded from awarding temporary child support based on the Law of the Case doctrine. The “Law of the Case” has been defined as meaning “whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the ‘law of the case,’ whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.” State ex rel. Outrigger Club, Inc. v. Barkdull, 277 So.2d 15, 16-17 (Fla.1973) (emphasis added); see also Barry Hinnant, Inc. v. Spottswood, 481 So.2d 80 (Fla. 1st DCA 1986).

The parties’ settlement agreement placed the children with Appellant, and required Mother to pay child support. However, the children were subsequently removed from Appellant’s home and placed with Mother based on Appellant’s request due to a complaint filed against him through the Department of Children and Families. Clearly, the facts upon which the parties’ agreement was based changed. Because the children were residing with Mother, it was within the trial court’s discretion to abate Mother’s child support obligation and order Appellant to pay temporary child support until the final custody modification proceeding could be held. The law of the case doctrine is well-established, and Appellant knew or should have known the facts upon which the parties’ settlement agreement was based had changed. Consequently, Appellant knew or should have known his argument based on the law of the case doctrine was completely lacking in legal merit.

Most of Appellant’s remaining arguments are conclusory assertions of trial court error, with little or no citation to case law. In the arguments he develops, Appellant reweighs facts found by the trial court, which are supported by competent, substantial evidence.

It is well-established that the appellate court does not re-weigh the evidence or the credibility of witnesses. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Futch v. Head, 511 So.2d 314, 317 (Fla. 1st DCA 1987); Broman v. Froman, 458 So.2d 833 (Fla. 3d DCA 1984). Similarly, the appellate court does not assess whether it is possible to recite contradictory record evidence which supports arguments rejected below, nor does it retry the case or substitute its judgment for the trial court’s on factual matters supported by competent, substantial evidence. See Bullard v. Anheuser Busch, 900 So.2d 774, 775 (Fla. 1st DCA 2005); La. Pac. Corp. v. Harcus, 774 So.2d 751 (Fla. 1st DCA 2000); Fla. Mining & Materials v. Mobley, 649 So.2d 934, 934 (Fla. 1st DCA 1995) (“case[s] may not be retried on appeal, and a ruling which is supported by competent, substantial evidence will be upheld even though there may be some persuasive evidence to the contrary.”).

We have previously stated that “[ajttor-neys who do not present their appellate arguments in the context of this standard of review fail in their obligations to their clients and to this court, and risk the imposition of sanctions.” See Frederick v. United Airlines, 688 So.2d 412, 414 (Fla. 1st DCA 1997). That is precisely what happened here. The trial court’s orders are AFFIRMED, Appellee is awarded appellate attorneys’ fees, and the case is REMANDED to the trial court to determine a reasonable fee.

AFFIRMED and REMANDED.

BARFIELD, and WOLF, JJ., concur.


author: BENTON, J.

text:
    Relyea Theartis RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6382.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.

      Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, and Judy A. Bone, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Convicted twice for possession of cocaine and twice for sale of cocaine within 1,000 feet of a place of worship, Relyea Theartis Richardson contends his right not to be convicted more than once for the same offense was twice violated. We conclude he is half right. As to the possession convictions, we agree there was a double jeopardy violation. But the jury was entitled to conclude that there were two, discrete sales. We affirm in part, reverse in part, and remand with directions to vacate appellant’s sentences and one of his convictions for possession, and for resentencing.

I.

A confidential informant brought an undercover Alachua County sheriffs deputy with him to buy crack cocaine from appellant. The informant approached appellant’s car window and gave him $100 (provided by the Sheriffs Office) in exchange for “about five or six rocks” of crack cocaine, then asked whether the appellant “wanted to sell [his] buddy some dope; some drugs.” After an affirmative response, the deputy sheriff came over and purchased additional cocaine, handing over other money the Sheriffs Office had provided. Altogether, the deputy sheriff and the informant purchased 0.9 grams of cocaine from Mr. Richardson. The sale to the informant took about 10 seconds. The second transaction occurred approximately 15 seconds later. Both exchanges were accomplished within 30 seconds.

II.

Two convictions for possession of cocaine at the same time and place violate double jeopardy principles. See Gibbs v. State, 698 So.2d 1206, 1209-10 (Fla.1997) (holding double jeopardy clause bars convictions both for “trafficking possession” and simple possession of the same quantum of cocaine); Wiggins v. State, 967 So.2d 417, 418 (Fla. 1st DCA 2007) (reversing one of two convictions for cocaine possession where the “[ajppellant had a single quantum of cocaine from which he removed a portion and sold that portion to police”); Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006) (reversing one of two convictions for possession of cocaine for possession of both a quantity of crack cocaine and a quantity of powder cocaine because “settled precedent establishes that [a defendant] may not be charged with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search”); McGlorthon v. State, 908 So.2d 554, 556 (Fla. 2d DCA 2005) (holding defendant’s “act of handing over to the undercover detective a portion of the quantity of cocaine in the bag did not give rise to a separate possession of the portion [the defendant] relinquished”); Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) (noting that “to hold that a separate pos-sessory crime is committed for each packet or package of the controlled substance within an offender’s possession at a given time and place ... would lead to absurd scenarios, including the state’s charging more counts for the same amount of narcotics only due to the increased number of small packages of that illegal substance”); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982) (reversing dual convictions for possession of marijuana where some was on the defendant’s person and some was in a jacket he was not wearing, holding that “for the purpose of double jeopardy, we fail to see how there can be a legal distinction between the produce leaving the peddler’s hand or in his pocket and that still on the push cart”). The State concedes that the trial court erred in not dismissing one of the two possession counts.

III.

Appellant also argues that his two convictions for sale of cocaine within 1,000 feet of a place of worship punish him twice for the same offense and thus unconstitutionally subject him to double jeopardy. See Art. I, § 9, Fla. Const.; U.S. Const, amend. V; State v. Paul, 934 So.2d 1167, 1171 (Fla.2006). See also State v. Smith, 547 So.2d 613, 614 (Fla.1989) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). In determining whether multiple convictions violate double jeopardy principles, courts must ask whether the Legislature intended to recognize separate crimes. See Paul, 934 So.2d at 1171-72; Cabrera v. State, 884 So.2d 482, 483-84 (Fla. 5th DCA 2004).

Absent a specific statement of legislative intent, the Legislature requires that courts apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See § 775.021(4), Fla. Stat. (2004); Paul, 934 So.2d at 1172; Cabrera, 884 So.2d at 483-84. Under the Blockburger test, whether multiple offenses occurred turns on “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Paul, 934 So.2d at 1173 (quoting Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004)); Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001); Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). See, e.g., Cabrera, 884 So.2d at 484 (concluding that dual convictions for lewd and lascivious behavior violated double jeopardy principles where “there was not a sufficient temporal break between the two acts ... to have allowed [the defendant] time to pause, reflect and form a new criminal intent for each offense”); Russo, 804 So.2d at 422 (finding two convictions for aggravated assault violated double jeopardy where threatening victim with a beer bottle and swinging a shovel at the same victim occurred in one location in uninterrupted sequence); Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999) (holding that pointing gun at and stabbing the same victim occurred in uninterrupted sequence and constituted single criminal act). We are not concerned here with an uninterrupted assault on a single victim.

Although Richardson sold cocaine to two different individuals, both the confidential informant and the undercover agent were acting in concert and as agents of the same buyer, the Alachua County Sheriffs Office. Both transactions, moreover, were completed in one location and within 30 seconds. But “where a defendant commits two or more distinct criminal acts,” double jeopardy principles “do[ ] not prohibit multiple convictions and punishments.” Hayes v. State, 803 So.2d 695, 700 (Fla.2001); see also Paul, 934 So.2d at 1172 n. 3 (noting that “if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern”); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982) (“To constitute double jeopardy, it is not enough that the second prosecution arises out of the same facts as the first, but the second prosecution must also be for the same offense.”).

As Judge Cowart explained in Miles v. State, 418 So.2d 1070, 1072 (Fla. 5th DCA 1982), “[a]ny two offenses are ‘the same offense’ within the constitutional double jeopardy prohibition if, (a) in law, both have the identical essential constituent elements or all of the essential constituent elements of one offense are entirely included in the essential constituent elements of the other offense, and, (b) in fact, both offenses relate to the exact same factual event.” See Miles, 418 So.2d at 1072 (Cowart, J., concurring specially) (footnotes omitted). While Richardson’s two convictions for sale of cocaine in violation of section 893.13(1)(e), Florida Statutes (2004), indisputably contain identical legal elements, the two convictions arise from two factually separate and distinct sales of cocaine, sales which may be punished separately without violating double jeopardy prohibitions.

The Fourth District’s decision in Stankiewicz v. State, 921 So.2d 863 (Fla. 4th DCA 2006), to reverse one of two convictions for sale of cocaine on double jeopardy grounds is distinguishable. Stankiewicz involved the sale of cocaine to a single undercover officer. Prior to the meeting at which the sale occurred, Stankiewicz and the officer had discussed how much money the officer should bring to the meeting ($5,000), but had not agreed on the exact amount of cocaine Stankiewicz would sell the officer. , Stankiewicz, 921 So.2d at 863. Stankiewicz arrived with two separate quantities of cocaine. Id. at 863-64. After unsuccessfully attempting to purchase both quantities for $5,000, the officer paid Stankiewicz $5,500 for both quantities. Id. at 864. On appeal, the Fourth District reversed one of the sale convictions on double jeopardy grounds, holding that the “evidence does not support the trial court’s determination that there were two separate sales, during which defendant could have paused, reflected and intentionally committed an additional crime.” Id. at 863. As far as can be told from the opinion, all the cocaine and all the money were simultaneously exchanged.

The evidence here indicates that Mr. Richardson did have time to “pause[ ], reflect!,] and intentionally commit[] an additional crime” after his sale to the informant was fait accompli. Having completed one sale, he agreed to sell a separate quantity to the deputy sheriff for a separate, additional sum of money. He had enough time, albeit only seconds, to reflect on the second sale the informant proposed, and to decide to make a sale to the deputy sheriff, too. The two physically distinct sales to separate purchasers were not simultaneous. They constituted separate criminal acts that could be separately punished. See Blockburger, 284 U.S. at 302, 52 S.Ct. 180.

The Supreme Court held in Blockburger that two convictions for sale of morphine hydrochloride to a single purchaser did not violate the prohibition against double jeopardy, even though both sales were to the same purchaser “with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold.” Id. at 302, 52 S.Ct. 180. The Court concluded that “[ejach of several successive sales constitutes a distinct offense, however closely” one may follow the other, id. at 302, 52 S.Ct. 180, noting that “the first transaction, resulting in a sale, had come to an end” and that “[t]he next sale was not the result of the original impulse, but of a fresh one-that is to say, of a new bargain.” Id. at 303, 52 S.Ct. 180. Similarly, Mr. Richardson engaged in two discrete transactions involving discrete physical deliveries both of drugs and of money. Their temporal proximity notwithstanding, the sales constituted separate criminal acts and support separate criminal convictions.

IV.

Accordingly, we reverse appellant’s sentences and one of his convictions for possession of cocaine, and remand for re-sentencing. We affirm the remaining conviction for possession of cocaine, and both convictions for sale of cocaine.

ALLEN and DAVIS, JJ., concur.

      . Although the Fourth District receded from Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992) and Jackson v. State, 418 So.2d 456 (Fla. 4th DCA 1982) in Gibbs v. State, 676 So.2d 1001, 1002 (Fla. 4th DCA 1996) (en banc), the holdings in Jackson and Lundy regained their vitality when the supreme court later quashed the Fourth District’s decision in Gibbs. See Gibbs v. State, 698 So.2d 1206 (Fla.1997).

      . The Court noted that "flit appears from the evidence that, shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day.” Blockburger v. United States, 284 U.S. 299, 301, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: POLEN, J.

text:
    Steven SOSA, doing business as C & C Hanger & Supply, Inc., Appellant, v. LEGGETT & PLATT, INC., Appellee.
    No. 4D06-4704.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.
    Maxine A. Noel of Law Offices of Grazi & Gianino, Stuart, for appellant.
    Thomas J. Maccari of Thomas J. Mac-cari, P.A., Boca Raton, for appellee.
   POLEN, J.

Appellant Steven Sosa timely appeals a non-final order granting Leggett & Platt, Inc.’s motion to strike and a final judgment in garnishment. We reverse and remand with directions to hold an eviden-tiary hearing as to ownership of the funds held in the Wachovia account.

On or about January 15, 2006, Sosa purchased the assets of C & C Hanger & Supply, Inc. along with the right to use the name as a fictitious name, hence Steven Sosa d/b/a C & C Hanger & Supply, Inc. Sosa opened a bank account in the name of C & C at Wachovia Bank, N.A.

On April 7, 2006, Leggett & Platt, Inc. filed a complaint against C & C to collect money owed. A default was entered against C & C for failure to file an answer. A final judgment was entered in favor of Leggett.

On September 12, 2006, Leggett & Platt, Inc. served a writ of garnishment on the garnishee, Wachovia Bank, N.A. Garnishee filed an answer, in which it acknowledged that it might be indebted to C & C in the amount of $20,262.66 and $649.23 by virtue of accounts in the name of C & C. Leggett filed a notice of garnishment, to which Sosa, not C & C, filed a verified motion to dissolve writ of garnishment. Sosa was not represented by counsel when he filed the motion to dissolve. In the motion, Sosa stated that, upon purchasing the assets, not the stock, of C & C, he intended to create a Wyoming corporation. He set up the account at Wachovia and deposited personal funds into the account to purchase products from China with the intent to transfer the assets, including the bank account, into the future Wyoming corporation. At the time of filing the motion to dissolve, Sosa admittedly was still operating the business individually d/b/a C & C, attempting to generate enough profit to create a Wyoming corporation.

Leggett filed a motion to strike defendant’s motion to dissolve writ of garnishment, in which it argued Sosa could not individually represent C & C, a corporation. On October 19, 2006 at 8:30 a.m., a hearing was held on the matter, at which the court granted Leggett’s motion to strike. No court reporter was present at the time of the hearing and thus no transcript of the hearing is available. The clerk’s notes from the hearing state that the motion to strike defendant’s motion to dissolve writ of garnishment was granted as the writ was issued in the name of the corporation.

Though Leggett argued, and the trial court agreed, that Sosa could not individually represent C & C, it does not appear from the face of Sosa’s motion to dissolve that Sosa was attempting to represent C & C. Instead, Sosa raised a claim as to ownership of the funds in the account to be garnished. Though he incorrectly filed the motion pursuant to section 77.07(2), Florida Statutes, it is clear from the substance of the motion that Sosa was attempting to assert a claim under section 77.16, Florida Statutes.

“It is too well settled to require citation of authority that, where individuals commence business as a corporation and hold themselves out to the world as such, before obtaining a charter and effecting an organization, each of them is liable as a partner, notwithstanding no charter is ever actually applied for or obtained, or no organization under a charter is effected.” Todd v. Stewart, 17 Ga.App. 113, 86 S.E. 284, 285 (1915). Thus, persons assuming to act as officers or agents of a purported corporation which has, in fact, no existence either de jure or de facto, will be personally liable. 3A Fletcher Cyc. Corp. § 1121 (2006). In order to reach the property of those individuals who have made an abortive attempt to organize a corporation, however, the action must be against them personally. 3A Fletcher Cyclopedia of the Law of Corporations § 1121; 38 C.J.S. Garnishment § 74 (2007) (citing Todd v. Stewart, 17 Ga.App. 113, 86 S.E. 284 (1915)). It is universally held that property which is not actually and in “good conscience” deemed to be owned by the debtor may not be secured by the judgment creditor. Ginsberg v. Goldstein, 404 So.2d 1098, 1099 (Fla. 3d DCA 1981) (citing 38 C.J.S. Garnishment § 71 (1943); 6 Am. Jur.2d Attachment and Garnishment § 92 (1963)). This is in accord with the basic principle of garnishment that a plaintiff merely stands in the shoes of the judgment debtor. Ginsberg, 404 So.2d at 1099 (citing Howe v. Hyer, 36 Fla. 12, 17 So. 925 (1895); Barsco, Inc. v. H.W.W., Inc., 346 So.2d 134 (Fla. 1st DCA 1977)).

We therefore reverse the trial court’s decision and remand with directions to hold an evidentiary hearing as to ownership of the funds held in the Wachovia account.

Reversed and Remanded with instructions.

KLEIN and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    K.T.M, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5568.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra W. Dasrat, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

In this appeal which was initially briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we ordered supplemental briefing on the issue of whether the trial court’s findings at the restitution hearing were sufficient to support the trial court’s order of restitution imposed as part of K.T.M.’s sentence. Having received the supplemental briefs, we affirm the disposition order and sentence in all respects but one. On the sole issue of the amount of restitution to be paid, we reverse and remand for further proceedings.

The State charged K.T.M. and two other juveniles with burglary of a dwelling, burglary of a conveyance, grand theft, and grand theft motor vehicle for events which occurred between May 3 and May 7, 2006. As part of a negotiated plea agreement with the State, K.T.M. pleaded guilty to burglary of a conveyance and grand theft, and the State dropped the remaining charges. As part of his plea agreement, K.T.M. agreed to pay restitution in an amount to be determined by the court. The trial court accepted K.T.M.’s plea, withheld adjudication, and placed K.T.M. on probation. The trial court also reserved jurisdiction to consider the issue of the amount of restitution.

At a subsequent restitution hearing, the State presented evidence concerning the amount of damage caused by K.T.M. and his codefendants. K.T.M. then testified concerning what damage he had caused and which of the other two defendants had caused the remainder of the damage. Neither the State nor K.T.M. offered any evidence concerning KT.M.’s ability to earn money or ability to pay restitution. After considering the evidence presented, the trial court found that K.T.M. was jointly and severally liable for all of the damage, and it entered an order requiring K.T.M. to pay restitution in the full amount of the victim’s damages. The trial court’s order made no findings concerning K.T.M.’s ability to earn money or ability to pay restitution.

In M.W.G. v. State, 945 So.2d 597, 601 (Fla. 2d DCA 2006), this court held that it is reversible error for a trial court to order restitution to be paid by a child without making findings concerning the child’s ability to earn and ability to pay. In doing so, this court stated:

Section 985.231(1)(a)(1)(a), Florida Statutes (2003)[] states that when restitution is ordered to be paid by a juvenile, “the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” In addition, section 985.231(1)(a)(6) states that if the court orders the child to pay restitution, it must be “in a reasonable amount or manner to be determined by the court.”
This court and others have repeatedly held that these statutes do not require that the trial court find that the child has the present ability to pay restitution. See, e.g., R.S.M. v. State, 910 So.2d 361, 362 (Fla. 2d DCA 2005); R.D.S. v. State, 844 So.2d 720, 720-21 (Fla. 2d DCA 2003); A.J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996). Instead, the court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings. R.D.S., 844 So.2d at 721; A.J., 677 So.2d at 938; J.A.M v. State, 601 So.2d 278 (Fla. 1st DCA 1992). When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue. See A.J., 677 So.2d at 938; see also N.C. v. State, 774 So.2d 867, 868 (Fla. 2d DCA 2000); In Interest of C.D.D., 684 So.2d 866, 867 (Fla. 2d DCA 1996). In the absence of such a finding, an appellate court must reverse the restitution order and remand for a hearing on the child’s ability to earn and ability to pay. A.J., 677 So.2d at 938.

Id.

Here, as in M.W.G., the trial court failed to make any findings concerning KT.M.’s ability to earn and ability to pay before ordering K.T.M. to pay restitution in the full amount of the victim’s damages. The State has conceded that this lack of findings requires us to reverse the restitution order. Accordingly, we reverse the order imposing restitution and remand for a new restitution hearing at which the trial court must address K.T.M.’s ability to earn and ability to pay before determining the amount of restitution to be awarded. In all other respects, the disposition and sentence are affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.

      . Section 985.231(1)(a)(1)(a), Florida Statutes (2003), has been amended and transferred to section 985.437, Florida Statutes (2006). See Ch. 2006-120, § 47, Laws of Fla. The relevant portions of the statute remain unchanged.


author: ALTENBERND, Judge.

text:
    Jorge DELEMOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2447.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Jorge Delemos appeals his judgment for conspiracy to traffic in cocaine (count 1), trafficking in cocaine (count 5), and possession of paraphernalia (count 7). He challenges the trial court’s decision to add a fifteen-year minimum mandatory term to his sentence on count 5 while resolving his motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2); which sought only to remove a similar minimum mandatory term from the sentence on count 1. We conclude that the trial court lacked authority to increase the sentence on count 5 when it corrected the sentence on count 1. Although the trial court’s shifting of the minimum mandatory term from one sentence to the other undoubtedly seemed reasonable to that court, under existing statutes and case law the increase in the sentence for count 5 imposed after Mr. Delemos began serving that sentence violated principles of double jeopardy. We therefore reverse the amended sentence on count 5 and remand with instructions to strike the fifteen-year minimum mandatory term.

I. FACTS AND PROCEDURAL BACKGROUND

Mr. Delemos was the target of a sting operation intended to uncover drug trafficking. Originally, undercover officers purchased drugs from another individual on three separate occasions. When the officers thereafter arrested that individual, he agreed to cooperate with law enforcement and revealed Mr. Delemos as his supplier. A search of Mr. Delemos’s residence revealed large quantities of cocaine.

The State charged Mr. Delemos with conspiracy to traffic in cocaine, trafficking in cocaine, and possession of paraphernalia. At trial, the State offered into evidence fourteen separate exhibits consisting of varying quantities of cocaine. Some of these quantities were the drugs found in Mr. Delemos’s residence. Others were the drugs that had been seized during the transactions with the first individual arrested, drugs which the target accused Mr. Delemos of supplying.

The verdict form gave the jury only two options on count 1, conspiracy to traffic in cocaine: “guilty as charged” or “not guilty.” Notably, count 1 of the amended information charged Mr. Delemos with conspiring to “traffic in 400 grams or more of cocaine, in violation of Florida Statutes 893.185(5) and 893.135(l)(b).” The jury returned a verdict of guilty as charged on count 1.

The verdict form on count 5 directed that if the jury found the defendant guilty of trafficking in cocaine, it must then decide whether the amount of the cocaine was (1) 400 grams or more, (2) between 200 and 400 grams, or (3) between 28 and 200 grams. The jury returned a verdict under subsection (1) of guilty of trafficking in cocaine in an amount in excess of 400 grams. The jury also returned a verdict of guilty as charged on count 7, a misdemeanor offense.

At sentencing, the trial judge initiated a discussion regarding whether the fifteen-year minimum mandatory sentence required by section 893.135(1)(b)(1)(c), Florida Statutes (2001), applied both to the conspiracy to traffic in cocaine charge as well as the trafficking in cocaine charge. The prosecutor argued that the minimum mandatory term would apply to both offenses. Although it is clear that the prosecutor expected the trial court to impose the minimum mandatory term on the count for trafficking in cocaine, the prosecutor did not affirmatively request the minimum mandatory sentence for the conspiracy charge and it is unclear from our transcript whether the prosecutor expected the trial judge to impose the minimum mandatory term to both counts 1 and 5.

The trial judge imposed the sentences as follows:

It’ll be the judgment of the court and the sentence at law that on counts I and V, that you be adjudicated to be guilty and be sentenced to 15 years with the Department of Corrections to be followed by a period of 5 years of probation. On count I, there would be a minimum mandatory sentence of 15 years.”

(Emphasis added.) The judge orally imposed a 364-day sentence on the misdemeanor charge. The court then asked, “Have I omitted anything else?” The prosecutor answered, “Court costs, I believe.” Court costs were imposed and, after some brief further discussion, the hearing was concluded. There was no discussion regarding the verdict form and whether it permitted the fifteen-year minimum mandatory on count 1. In addition, the State did not object to the court’s failure to impose any minimum mandatory term on count 5.

The judgment and sentences were entered on May 4, 2005. Mr. Delemos filed a timely notice of appeal on May 10. The State did not file a cross-appeal. On February 1, 2007, Mr. Delemos filed a motion to correct a sentencing error pursuant to rule 3.800(b)(2). He alleged only that the trial court erred in imposing the fifteen-year minimum mandatory term on count 1 in the absence of a jury finding that the amount of cocaine involved for that count was 400 grams or more. The trial court granted the motion to correct sentencing error. In a written order, the trial court directed the clerk of the circuit court to enter amended sentencing documents deleting the fifteen-year minimum mandatory term on count 1 and replacing it with a three-year minimum mandatory term as required by section 893.135(1)(b)(1)(a).

The trial court, however, did not simply correct the sentence as requested by Mr. Delemos. It proceeded to add the fifteen-year minimum mandatory term it removed from count 1 onto the sentence originally imposed on count 5. In this appeal, Mr. Delemos takes issue solely with the trial court’s addition of this fifteen-year minimum mandatory term to count 5, arguing that the trial court lacked the authority to increase this sentence based upon a motion to correct sentencing error challenging only the sentence on count l. We agree that under existing Florida law, this increase in the sentence on count 5 violated double jeopardy and was improper. See Pitts v. State, 935 So.2d 634 (Fla. 2d DCA 2006); Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005).

II. DOUBLE JEOPARDY GENERALLY

The guarantee against double jeopardy appearing in the United States and Florida Constitutions generally consists of three separate constitutional protections: It protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. See United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Carawan v. State, 515 So.2d 161 (Fla.1987) (holding that the scope of the double jeopardy clause of the Florida Constitution is the same as that of the federal constitution), superseded by statute on other grounds as recognized in State v. Smith, 547 So.2d 613, 614 (Fla.1989). Here, we are concerned with the last of these protections— the prohibition against multiple punishments for the same offense. The rationale behind this prohibition has been explained thus:

For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value?

Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873).

The protections of the double jeopardy clause are tied in large part to a “public interest in the finality of criminal judgments.” See DiFrancesco, 449 U.S. at 129, 101 S.Ct. 426 (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). As a result, the analysis of double jeopardy as a limitation upon resentencing for an offense depends in large part upon the level or degree of finality accorded to the original sentence when it was first imposed. DiFrancesco, 449 U.S. at 134-35,101 S.Ct. 426.

Under federal law, Congress has constitutionally provided the government with explicit statutory authority to appeal sentences in criminal cases. As a result, in federal courts the finality of a sentence based simply upon its oral pronouncement is relatively limited. Id. at 131, 101 S.Ct. 426. Federal courts are thus often permitted to correct a sentence to increase its term, at least during the appellate process, without running afoul of double jeopardy protections. See id.; Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). In that context, the Supreme Court has emphasized, “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Bozza, 330 U.S. at 166-67, 67 S.Ct. 645.

For better or worse, not all states limit the finality of sentences upon oral pronouncement in the same manner that federal law does. Because the extent of the protection against double jeopardy hinges upon the finality of the sentence, double jeopardy can provide greater rights to a defendant in a state court if the state law accords a level of finality to a sentence that federal law does not. See Pennsylvania v. Goldhammer, 474 U.S. 28, 30-31, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (reversing the Pennsylvania Supreme Court’s holding that double jeopardy precluded re-sentencing on counts that were affirmed on appeal when other counts were reversed as inconsistent with the rationale of DiFrancesco, but remanding for the court to consider whether state law permitted the state to seek review of the sentences or accorded finality to them). Thus, in state court the question of whether a re-sentencing violates prohibitions against double jeopardy depends upon the level or degree of finality that the laws of the specific state accord to sentences at any given time during the sentencing process. See, e.g., State v. Gruetzmacher, 271 Wis.2d 585, 679 N.W.2d 533 (2004); Cardwell v. Commomvealth, 12 S.W.3d 672 (Ky. 2000). The Cardwell court phrased the question as whether the defendant has “a legitimate expectation in the finality of his sentence.” 12 S.W.3d at 675. Here, we must examine whether, under Florida law, Mr. Delemos had a legitimate expectation in the finality of his sentence on count 5 when the trial court sought to amend the sentence to add the fifteen-year minimum mandatory term. We conclude that under existing Florida law, the sentence was final and thus not subject to correction without violating principles of double jeopardy.

III. FLORIDA LAW AND THE FINALITY OF A SENTENCE AT THE CONCLUSION OF THE SENTENCING HEARING

Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence. See Ashley v. State, 850 So.2d 1265 (Fla.2003). In Ashley, the trial court orally pronounced a sentence that designated the defendant a habitual felony offender, even though the court intended to designate the defendant a habitual violent felony offender. The written sentencing documents indicated the defendant was a habitual violent felony offender. Realizing the error, the trial court had the defendant returned to the courtroom for resentencing three days later. At this resentencing, the trial court orally pronounced the defendant to be a habitual violent felony offender.

The Florida Supreme Court reversed the habitual violent felony offender sentence in Ashley. Noting “the longstanding principle of law” that a court’s oral pronouncement of sentence controls over the written document, the supreme court concluded that the double jeopardy clause prohibited the correction because the sentence was imposed upon oral pronouncement and Ashley had begun to serve it. Id. at 1267-68.

Once a sentence is orally pronounced and the defendant has begun to serve the sentence, therefore, it is accorded finality unless there is a mechanism by which the aggrieved party can seek timely review, either by motion or appeal. Obviously a defendant is accorded the right to challenge any sentencing error before or pending appeal by way of rule 3.800(b) and may seek review of preserved sentencing errors by direct appeal. Thus, a defendant has a broad right in Florida to challenge the finality of a sentence after it has been orally pronounced and after he has begun to serve the sentence.

An argument might be made that a defendant’s action in seeking review of a sentence and relief from it should suspend the finality of all other sentences imposed in the same proceeding — not just the finality of the specific sentences challenged by the motion. That is, a defendant could not choose to challenge only one sentence in an aggregate sentencing scheme without providing the courts with the opportunity to revisit the related sentences. Florida law, however, rejects this proposition.

In Fasenmyer v. State, 457 So.2d 1361 (Fla.1984), the Florida Supreme Court held that if an appellate court reduced the severity of the sentence for one count in a multi-count judgment and remanded for resentencing, the trial court could not disturb the remaining sentences on remand without violating principles of double jeopardy. “We conclude that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.” Id. at 1366; see also Burnett v. State, 890 So.2d 335 (Fla. 2d DCA 2004); Seago v. State, 627 So.2d 1316 (Fla. 2d DCA 1993); Gordon v. State, 635 So.2d 1017 (Fla. 1st DCA 1994).

This analysis has also been applied in the context of a defendant’s motion to correct sentence pursuant to rule 3.800(b)(2). This court has specifically held that a motion to correct sentence directed to the sentence on one count does not authorize the trial court to modify a legal sentence on another count. Pitts, 935 So.2d at 635 ; see also Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005) (holding trial court could not change sentences in two cases not implicated in motion to correct sentencing error).

Under Florida law, therefore, the defendant is permitted to pick and choose which sentences to challenge in a multicount judgment, either on appeal or by way of a motion to correct sentencing error, without affecting the finality of the other sentences. The finality of Mr. Delemos’s sentences on counts 5 and 7 was not affected by his request for relief on count 1. Those sentences must be considered “final” unless they were otherwise subject to challenge by the State or correction by the court.

IV. THE COURT’S ABILITY TO INCREASE A SENTENCE AFTER THE CONCLUSION OF THE SENTENCING HEARING

In this case, the State did not file a motion or take any other step to have the sentence on count 5 increased. The trial court essentially increased the sentence on its own motion. In context, the trial court’s action may seem reasonable but it was not authorized by law.

The rules of procedure give a trial court two options by which it may alter a sentence once imposed without a motion from a party. Under rule 3.800(c), it may “reduce or modify” a sentence within a sixty-day window. Under rule 3.800(a), it can correct an “illegal” sentence at any time.

Rule 3.800(c) does not apply in this case because that rule allows the trial court discretion to give the defendant a more favorable incarcerative sentence. See Sterling v. State, 682 So.2d 694 (Fla. 5th DCA 1996). The only circumstance in which it may add a condition that might be deemed an increase in the sentence is when it adds a condition of probation or community control under chapter 948. See Harroll v. State, 960 So.2d 797, 798 (Fla. 3d DCA 2007).

Rule 3.800(a) only allows the trial court to modify an “illegal” sentence. We are not completely convinced that the sentence originally imposed on count 5 was an “illegal sentence,” even though it lacked the minimum mandatory term required by section 893.135(1)(b)(1)(c). Admittedly, defining what is an “illegal sentence” under rule 3.800(a) is no easy task. See, e.g., Carter v. State, 786 So.2d 1173 (Fla.2001). The vast majority of the cases defining this term in the context of rule 3.800(a) involve defendants seeking to reduce -their sentences, not courts seeking to increase sentences. There is no question that the State could have objected to the omission of the minimum mandatory term on count 5 at the sentencing hearing and preserved this issue for appeal as an “unlawful” sentence under rule 9.140(c)(1)(M), but it is more difficult to conclude that such a sentence is “illegal” in a way that inures to the State’s benefit.

However, even if the sentence on count 5 were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal, “even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.” Pate v. State, 908 So.2d 613, 614 (Fla. 2d DCA 2005). Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed. See also Oliver v. State, 727 So.2d 271, 272 (Fla. 4th DCA 1999) (holding that a rule 3.800(a) motion cannot serve as a substitute for the state filing a proper appeal of a sentence imposed in error).

It is noteworthy that the State, having failed to preserve this issue at the sentencing hearing, had no procedural right to preserve this issue for appeal pursuant to rule 3.800(b). The State may utilize that rule only if the correction would “benefit the defendant” or “correct a scrivener’s error.” Obviously, this modification does not benefit Mr. Delemos. Likewise, nothing in the record suggests that the written sentence initially imposed on count 5 contained a scrivener’s error. The trial judge specifically questioned the prosecutor at sentencing as to whether it could impose a minimum mandatory sentence on the conspiracy charge, and the prosecutor assured the trial judge that this was permissible. Thereafter, the court clearly pronounced a sentence which applied the minimum mandatory term only to the conspiracy charge. This is not a case in which a trial judge mistakenly transposed sentences on two counts. See, e.g., Murray v. State, 958 So.2d 473 (Fla. 2d DCA 2007). Even if one could assume the trial court simply forgot to apply the minimum mandatory term to the trafficking charge, an assumption that is not necessarily supported by this record, such an oversight is not a scrivener’s error and would not permit resentencing in a manner that increased Mr. Delemos’s sentence. See Ashley, 850 So.2d 1265.

V. CONCLUSION

For the purpose of assessing whether double jeopardy precluded resentencing, Mr. Delemos’s sentence on count 5 was “final” by the time he filed his motion to correct sentencing error. His challenge in the motion to correct the sentence on count 1 did not permit the trial court to correct the sentence on count 5 in a manner that increased the severity of that sentence. We therefore reverse the sentence on count 5 and remand with directions to strike the minimum mandatory term on that sentence, effectively reinstating the sentence originally orally pronounced and imposed.

Reversed and remanded with directions.

SILBERMAN and LaROSE, JJ., Concur.

      . The remaining counts of the information involved a codefendant whose charges were resolved separately from Mr. Delemos’s charges.

      . The motion was filed before the initial brief and was therefore timely. See Fla. R.Crim. P. 3.800(b)(2).

      . In his motion, Mr. Delemos relied upon State v. Estevez, 753 So.2d 1 (Fla.1999). We recognize that the Florida Supreme Court has recently pointed out that Estevez has been superseded by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), at least to the extent that the reasoning in Estevez suggests that the harmless error analysis would not apply to an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), error. See Galindez v. State, 955 So.2d 517, 522-23 (Fla.2007). The State has not cross-appealed or otherwise challenged the trial court's decision to grant the motion to correct sentencing error to remove the fifteen-year minimum mandatory term from count 1. We therefore do not comment on that issue but address only whether the court could then add that minimum mandatory term to count 5.

      . It should be noted that neither party challenged this ruling before the circuit court, and neither sought to challenge it in this appeal.

      . We note that Mr. Delemos preserved this argument by way of a second motion to correct sentencing error pursuant to rule 3.800(b)(2).

      . In this case, we are not called upon to determine precisely when the combination of "oral pronouncement” and "begins to serve” actually occurs. See, e.g., Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006). Although there may be some confusion when a correction comes shortly after oral pronouncement, there appears to be no dispute that a defendant begins serving his sentence at least upon his transfer into the custody of the Department of Corrections, as occurred in this case.

      . If the Florida Statutes and the Rules of Criminal Procedure permitted a trial court to modify a legal sentence that was imposed in conjunction with an illegal or unlawful sentence that was vacated, it is arguable that our outcome today might be different.

      . Although we referred to the motion in Pitts as one to correct "an illegal sentence,” the case involved an appeal of a judgment and sentence and thus the motion was in fact a motion to correct sentencing error under rule 3.800(b)(2).

      .We recognize that a motion under rule 3.800(b) is designed to be the equivalent of an objection at the sentencing hearing. An objection at the hearing after oral pronouncement but before the defendant begins to serve a sentence presumably allows a trial court to adjust the entire sentencing package at that time. We are troubled by the fact that a defendant may obtain greater rights by delaying an objection until he has commenced to serve the sentence, but that outcome is the result of established precedent.

      . The task is made more difficult still by the tendency of courts to use the term "illegal” to justify the state's appeal of a sentence under rule 9.140(c)(1)(M), perhaps without taking the time to distinguish between what is unlawful in a sentence versus what is illegal. See, e.g., State v. Chaves-Mendez, 809 So.2d 910, 910 (Fla. 5th DCA 2002) (holding sentence was “illegal" and subject to State appeal because the trial court initiated the plea negotiations that the sentence resulted from).

      . We note that in the few cases discussing the possible increase of a sentence under rule 3.800(a), the cases have not foreclosed the possibility that an illegal sentence might be increased under rule 3.800(a), but have concluded that the specific sentences presented were not illegal. Gartrell v. State, 626 So.2d 1364 (Fla.1993); Thomas v. State, 921 So.2d 657, 660 (Fla. 2d DCA 2006); Robinson v. State, 757 So.2d 532 (Fla. 4th DCA 2000); Thomas v. State, 648 So.2d 298 (Fla. 5th DCA 1995).

      .We recognize that one case has so held. See Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003). The case appears to have applied a federal law analysis of double jeopardy as compared to the state law rule discussed in section II of this opinion.


author: WALLACE, Judge.

text:
    Joseph Leonard RUMORE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-4626, 2D06-4802.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    Michael A. Giasi of Frank de la Grana, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Joseph L. Rumore entered pleas of guilty to the charges of trafficking in cocaine and possession of drug paraphernalia. Based on these substantive charges, Mr. Rumore also admitted violating his probation in several other cases. The circuit court designated the sentences for Mr. Rumore’s probation violations to run concurrently with the sentence that it imposed on him for the new trafficking-in-cocaine charge. Mr. Rumore reserved his right to appeal the denial of his dispositive motion to suppress. For the reasons explained below, we affirm the orders revoking Mr. Rumore’s probation and his judgments and sentences.

We hold that the search of Mr. Ru-more’s automobile did not exceed the scope of his consent. See Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Furthermore, we hold that the subsequent strip search of Mr. Rumore’s person was reasonable under the Fourth Amendment but unlawful under section 901.211, Florida Statutes (2005). However, Mr. Rumore is not entitled to have the fruits of the search suppressed because the exclusionary rule is inapplicable in the context of violations of section 901.211. See Laster v. State, 933 So.2d 41, 42 (Fla. 2d DCA 2006); Jenkins v. State, 924 So.2d 20, 33-34 (Fla. 2d DCA 2006), review granted, 944 So.2d 345 (Fla. 2006). Because the trial court correctly denied Mr. Rumore’s motion to suppress, we affirm his judgments and sentences as well as the revocation of his probation.

As in Jenkins and Laster, we certify that our decision is in direct conflict with D.F. v. State, 682 So.2d 149 (Fla. 4th DCA 1996).

Affirmed; conflict certified.

SILBERMAN and VTLLANTI, JJ, Concur.


author: NORTHCUTT, Chief Judge.

text:
    Robert James BRIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-954.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
   NORTHCUTT, Chief Judge.

Robert James Brim challenges the summary denial of his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11(1)(a)(2), Florida Statutes (2006). The postconviction court erroneously denied the motion based on its mistaken determination that the motion was untimely. Accordingly, we reverse and remand for further proceedings.

In July 2004, Brim filed a postconviction motion for DNA testing in two trial court cases, numbers 92-799 and 92-875. In a December 2005 order, the postconviction court correctly held that Brim was not entitled to seek DNA testing of the physical evidence in 92-799 because he had pleaded no contest in that case and the statute in effect at that time permitted a convicted defendant to seek DNA testing only if he had been tried and found guilty of committing a crime. See Smith v. State, 854 So.2d 684, 685 (Fla. 2d DCA 2003). The court determined that Brim was entitled to file a motion for DNA testing in 92-875 because he had been tried and found guilty in that case but that Brim’s motion was facially insufficient. The court dismissed the motion without prejudice to Brim’s filing of a facially sufficient motion for DNA testing within sixty days. The court eventually granted Brim an extension until April 7, 2006. In October 2006, Brim filed a motion for DNA testing in 92-799 only.

In the order on appeal, the posteonviction court denied Brim’s October 2006 motion as untimely because he did not file it on or before the April 7, 2006, deadline established in its previous orders. This was error. In 2004, when Brim initially sought DNA testing in 92-799, the post-conviction court correctly determined that Brim’s motion was not permitted by the statute then in effect. Obviously, in that case the postconviction court could not authorize Brim to file a facially sufficient motion for DNA testing by a particular deadline because Brim was legally ineligible to seek that relief.

Brim did not become eligible to seek DNA testing until June 23, 2006, when section 925.11 was amended to permit defendants who had pleaded guilty or no contest to felony offenses prior to July 1, 2006, to seek DNA testing in their cases. See Ch.2006-292, § 1, at 2205, Laws of Fla.; § 925.11(1)(a)(2), Fla. Stat. (2006). Thus Brim’s October 2006 motion was authorized by law and was not untimely.

The postconviction court erred in denying Brim’s motion for DNA testing as untimely. We reverse and remand for further proceedings on the motion.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.

      . Smith interpreted the 2002 statute. However, the 2004 and 2005 versions of the statute were no different in this regard.


author: PADOVANO, J. WOLF, J.,

text:
    Greg BROWN, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Robert Burgess, and Hilton Kelly, Appellees.
    Nos. 1D06-6070, 1D06-6071.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.

      Albert T. Gimbel and Mark Herron of Messer, Caparello & Self, Tallahassee; E. Gary Early, Tallahassee, for Appellant.
    Philip Claypool, General Counsel, Julia Cobb Costas, Staff Attorney, and Daniel A. Carlton, Jr., Staff Attorney, Tallahassee, for Appellee Commission on Ethics; Joseph L. Hammons of Hammons Longoria & Whittaker, Pensacola, for Appellees Robert Burgess and Hilton Kelly.
   PADOVANO, J.

This is an appeal by a public official from a final order denying costs and attorney fees under section 112.317(8) Florida Statutes (2004). We conclude that this statute does not require a public official who was falsely accused of an ethics violation to prove that the accusation was made with “actual malice.” Based on the requirements stated in the text of the statute, the appellant was entitled to recover costs and attorney fees. For these reasons, we reverse.

The appellant Greg Brown is the property appraiser for Santa Rosa County. He took office in January 2001, having succeeded Robert Burgess, who had retired from the position at the end of the preceding term of office. Brown sought re-election in 2004 and was opposed by Leon Cooper, a man who had previously worked in the property appraiser’s office under Burgess.

The controversy in this case began with the filing of two ethics complaints against Brown by his political opponents. Both complaints were submitted to the Florida Commission on Ethics on April 12, 2004, the day that Cooper qualified to run against Brown, and both were eventually dismissed for lack of probable cause.

Robert Burgess filed one of the complaints. The essence of the claim was that Brown had acted improperly in reinstating a religious exemption for a church. The exemption had been denied several years earlier during Burgess’ term in office, on the ground that the property was not being used for religious purposes. Burgess alleged that Brown reinstated the exemption to obtain the political support of the owners of the church and on that assumption, he accused Brown of committing a “corrupt” act. However, he came to this grave conclusion about Brown’s conduct ■without checking into the facts. Had he investigated the matter, he would have learned that the exemption was reinstated because it had been removed without proper notice. Public records available in the tax collector’s office explained that the exemption had been removed in error. Burgess apparently did not examine these records or else he would have known that he was actually complaining about the correction of his own mistake.

The other complaint was filed by Hilton Kelly, who was apparently acting on behalf of his sister, a realtor in Santa Rosa County and a prominent supporter of the Cooper campaign. Kelly alleged that Brown had deliberately undervalued the property of a Santa Rosa County resident in exchange for a campaign contribution. He included factual details that appeared to support this assertion. For example, he alleged that Brown had instructed his appraisers to stay away from the property in furtherance of a scheme to ensure that it would remain undervalued.

Kelly conceded that he had filed the complaint at his sister’s suggestion and explained that he did not “have a dog in this hunt.” Although the allegations were made under oath, Kelly admitted that he had not investigated the facts. The reason for the reduction in the assessed value would have been apparent with very little inquiry. The house situated on the property had burned to the ground. Once the house was destroyed, the property was worth much less and Brown had no alternative but to reduce the assessment.

The Florida Commission on Ethics dismissed the complaints, and Brown subsequently made a claim for costs and attorney fees under section 112.317(8). This statute provides that a person who files an ethics complaint against a public official is liable for costs and fees if the complaint was made with a malicious intent to injure the reputation of the public official, in that the facts alleged in the complaint were known to be false or made with reckless disregard for the truth. Brown alleged that the ethics complaints filed by Burgess and Kelly fell within the requirements of the statute and he sought to recover the expenses he had incurred in his successful defense before the Ethics Commission.

Brown’s claim for costs and attorney fees was presented on written evidence to Administrative Law Judge, Steven Dean. Judge Dean found as a matter of fact that “[b]oth complaints were motivated by the desire to impugn Brown’s character and ... to injure [his] reputation.” He found that Burgess had not examined the public records to ascertain the reason for reinstating the religious exemption, that Burgess lacked a factual predicate to assert that Brown had acted corruptly, and that it was “clear from the timing that Burgess’ motivation was to impugn Brown’s reputation.” Likewise, he found that Kelly had “made no independent effort to verify any of the facts in his ethics complaint” and that he had “recklessly disregarded whether the complaint contained false allegations.”

Based on these findings, Judge Dean concluded in his recommended orders that Brown was entitled to an award of costs and attorney fees under section 112.317(8). He determined that Brown was entitled to recover $5,366.56 in costs and $17,079.50 in attorney fees in the case initiated by Robert Burgess, and that he was entitled to $4,603.29 in costs and $13,016.50 in attorney fees in the Hilton Kelly case.

In the course of the final hearing, many of the commissioners expressed the view that the complaints by Burgess and Kelly were among the most egregious examples of misuse of an ethics complaint to harm a political opponent. They described the complaints as “blatantly political” and “shameful.” Nevertheless, the Commission denied Brown’s request for costs and attorney fees.

This decision was based on a concern that the findings of fact in Judge Dean’s order were insufficient. The Commission construed the language of section 112.317(8) to require a finding of “actual malice,” as defined by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Because the findings in Judge Dean’s order would not, in the Commission’s view, support a conclusion that the complainants entertained serious doubts about the truth of their allegations, as required by the Sullivan standard, the Commission remanded the case to Judge Dean for additional findings.

In the interim, Judge Dean retired. Administrative Law Judge Lisa Shearer Nelson was assigned in his place. Using the same written evidence, Judge Nelson concluded that the evidence against Burgess and Kelly did not meet the actual malice test in Sullivan. For that reason, Judge Nelson entered amended recommended orders, in which she concluded that Brown’s motion for costs and fees should be denied. The Commission adopted Judge Nelson’s recommendations and Brown then appealed to this court.

The standard of review of an agency decision on a point of law is set out in the Florida Administrative Procedure Act. Section 120.68(7)(d), Florida Statutes (2006) states that an appellate court may set aside a final administrative order if the agency “has erroneously interpreted a provision of law and a correct interpretation compels a particular action.” See Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158 (Fla. 1st DCA 2001). This statute incorporates the de novo standard of review, which applies generally to issues of law. By the terms of the statute, the appellate court need only determine that the agency made a legal error and that the error was one that affected the outcome of the case.

A more specific principle in the case law requires the appellate courts to show greater deference to an administrative agency if the agency has interpreted a statute within its jurisdiction. In such a case, the interpretation may have been based on a history that is best known by the agency or special expertise the agency has in applying the statute. To account for these factors, the courts have held that an agency decision construing a statute within its substantive jurisdiction should not be reversed unless it is clearly erroneous. See Pan Am. World Airways, Inc. v. Fla. Pub. Serv. Comm’n, 427 So.2d 716 (Fla.1983); Arza v. Fla. Elections Comm’n, 907 So.2d 604 (Fla. 3d DCA 2005).

Deference is not required under this rule, however, if the statute the agency has interpreted is an attorney fee statute. See G.E.L. Corp. v. Dep’t of Envt’l Protection, 875 So.2d 1257 (Fla. 5th DCA 2004). An appellate court is free to reject an agency’s interpretation of an attorney fee statute even if the statute is one that applies exclusively to that agency. See Doyle v. Dep’t of Bus. Reg., 794 So.2d 686 (Fla. 1st DCA 2001). Whether a party is entitled to an award of attorney fees is a question that arises in many different kinds of cases, regardless of the subject matter, and it is one that the courts are best equipped to answer.

This case illustrates the reason for excluding attorney fee statutes from the customary practice of deferring to an agency. Here, the interpretation of the statute did not require the use of the agency’s expertise in evaluating the ethical conduct of public officials. To the contrary, it required nothing more than the application of the principles of statutory construction. The fact that the Commission reached its decision in part by importing a principle from the law of defamation is further evidence that it was not operating within its area of expertise.

Given the nature of the adjudication in this case and the subject matter of the statute, we conclude that the final order is reviewable by the de novo standard, as expressed in section 120.68(7)(d). Because the order is based on a conclusion of law that did not require any particular expertise, we need not defer to the Commission.

Brown contends that the phrase, “reckless disregard for the truth,” in section 112.317(8) should be interpreted by its plain meaning. If that is correct, Brown will prevail on appeal. There is no doubt that Burgess and Kelly acted “recklessly,” as we would ordinarily use that term. They charged Brown with public corruption without any investigation of the facts. Although they submitted their complaints under oath, they had no legitimate reason to believe that the accusations they made against Brown were true.

In contrast, Burgess and Kelly contend that the phrase, “reckless disregard for the truth,” is used in the statute as a term of art to mean something much more. Because this phrase mirrors the language in the opinion in New York Times Co. v. Sullivan, they argue, it must refer to the actual malice standard adopted by the Court in that ease. The term, “actual malice,” is used in Sullivan not to refer in its ordinary sense to feelings of ill will about the person who was the subject of the statement, but rather to signify the likelihood that the speaker knew the statement was false.

As the Court has since explained, the statement must be one that was made with “a high degree of awareness of [its] probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). To meet this standard, the plaintiff must prove by clear and convincing evidence that the “defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). If the Florida Legislature meant to incorporate these concepts into section 112.317(8), Burgess and Kelly will prevail on appeal. On this record, we could not say that they acted with “actual malice,” as that phrase is used in Sullivan.

To resolve the controversy, we first consider the text of the statute. Section 112.317(8) states in full:

In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney’s fees incurred in the defense of the person complained against, including the costs and reasonable attorney’s fees incurred in proving entitlement to and the amount of cost and fees. If the complainant fails to pay such costs and fees voluntarily within 30 days following such finding by the commission, the commission shall forward such information to the Department of Legal Affairs, which shall bring a civil action in a court of competent jurisdiction to recover the amount of such costs and fees awarded by the commission.

§ 112.317(8), Fla. Stat. (2004) (emphasis added). The underscored language is the same as that used in the Sullivan case, but that is the only point that supports the argument by Burgess and Kelly. There are many other points supporting Brown’s argument.

It is significant, in our view, that the term, “actual malice,” does not appear in the text of the statute. The Legislature has shown that it understands the precise meaning of this term by using it in the proper context in section 104.271(2) Florida Statutes. This statute authorizes the imposition of a penalty against a political candidate who with “actual malice” makes a false statement against an opposing candidate. The Legislature plainly understood when it enacted section 104.271(2) that a statute regulating pure speech or expression would require proof of actual malice to meet First Amendment standards. By contrast, the absence of this well known phrase in section 112.317(8) is an indication that the Legislature did not intend to engraft the Sullivan standard into the statutory requirements for recovery of costs and attorney fees.

Another indication leading to the same conclusion is that section 112.317(8) does not explicitly require evidence of a high awareness of probable falsity, or proof that the complainant in fact entertained serious doubts as to the truth of the allegations in the complaint. These findings would be required if the Legislature meant to incorporate the Sullivan actual malice standard.

It is also significant that the statute does not address the evidentiary standard that applies to a claim for costs and attorney fees. A public official who files a civil action for defamation must prove actual malice by clear and convincing evidence, yet there is nothing in section 112.317(8) to suggest that the Commission should also apply this high burden of proof to a claim for costs and fees. That the Legislature is presumed to have known about this standard of proof and did not include it here is yet another indication that it did not mean to require a showing of actual malice.

If we were to accept the argument made by Burgess and Kelly, we would be forced to read into the statute language that is not there. We would have to assume that the phrase, “malicious intent to injure the reputation of [the] officer,” does not refer to the motive or intent of the complainant, but rather that it was used in a more abstract way to describe the legal concept of actual malice. We would also have to assume that the phrase, “reckless disregard for the truth,” does not refer to a conscious indifference to the truth, as it would ordinarily, but that it was meant to convey an entirely different meaning: that the complainant in fact had serious doubts about the truth of the accusation.

Florida courts interpret statutes according to their plain meaning. There are certain accepted principles of statutory construction that can be applied if a statute is ambiguous, but the courts have no reason to speculate as to the meaning of a statute if it is clear on its face. Section 112.317(8) is not confusing or ambiguous. It lays out in plain English the requirements for recovering costs and attorney fees. It is not for us to add to these requirements by reading unstated terms into the statute.

We reject the argument that section 112.317(8) incorporates the actual malice standard in Sullivan based on the text of the statute alone. But the argument is one that must fail for yet another good reason. The justification for applying such a high standard in a defamation action by a public official — -to protect the right to freedom of expression — does not exist in a defensive context such as this. Brown did not sue anyone. He merely sought to recover costs and attorney fees in an action brought against him by Burgess and Kelly.

The distinction is best illustrated by a brief review of the facts of the Sullivan case. A public official in Alabama sued the New York Times Company and a group of African-American civil rights leaders, claiming that they had published a false and defamatory editorial about his conduct toward civil rights activists. Many of the statements made in the editorial were false. The official was not named in the editorial and he could not prove that he was actually harmed by it. Nevertheless, in 1960 an Alabama court awarded him a judgment in the amount of $500,000. This judgment was made possible primarily because Alabama had a law that created a presumption that a false statement was made with malice.

The United States Supreme Court granted review in Sullivan to answer the question “whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.” Sullivan, 376 U.S. at 268, 84 S.Ct. 710. The Court observed that it was considering this issue against “the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270, 84 S.Ct. 710. Following a detailed exposition of the need to protect the right to freedom of expression, the Court concluded that the Alabama law presuming malice was deficient and it held instead that a public official must show actual malice.

These concerns do not exist here. Burgess and Kelly were not merely critics of Brown’s official conduct. They initiated legal proceedings against him and swore under oath in those proceedings that he committed acts of public corruption. In Sullivan, the First Amendment was used as a shield to protect speakers and writers against complaints that might have the effect of discouraging public discourse,, but here the complainants wish to use it as a sword to justify baseless litigation.

Had Burgess and Kelly made these same false accusations in a press conference, on the internet or in a campaign flyer, the situation would have been different. Brown could have responded with his own statements or he could have ignored the accusations. However, Burgess and Kelly did not give him either of those options. When they filed their ethics complaints against him, they drew him into the legal system involuntarily, and he had no choice but to defend himself. He was not seeking damages or a penalty; he was merely trying to recover the costs and expenses he incurred in defending himself.

The distinction is critical. The First Amendment guarantees the right to freedom of expression, but it would be a far cry to extrapolate from this proposition that the First Amendment also guarantees a right to initiate a legal proceeding based on false allegations. If that were the case, the “actual malice” standard would shield a claim of malicious prosecution in the same way that it shields a defamation claim. Yet that is not the case. Florida courts have held the plaintiff in a malicious prosecution case need not prove actual malice. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994); Clemons v. State Risk Mgmt. Trust Fund, 870 So.2d 881 (Fla. 1st DCA 2004). As the courts have recognized, these are very different issues. A person who flies a lawsuit based on a false allegation is not entitled to -the same protection that is afforded to a person who merely publishes false information.

That proof of actual malice is not required to recover attorney’s fees under section 112.317(8) will not discourage citizens from filing ethics complaints against a public officials. The statute sets a very high bar for the recovery of fees, even without the extraordinary protection that is afforded to freedom of expression. We have stated our view that the actual malice standard is not necessary as a matter of constitutional law, but the Florida Legislature is certainly free to incorporate this standard in the statute if it wishes.'

For these reasons, we conclude that the phrase, “reckless disregard for the truth,” in section 112.317(8) was not used as a shorthand reference to the exacting requirements in New York Times Co. v. Sullivan. Instead, we construe the statute by its plain meaning. Based on the text of the statute, the elements of a claim by a public official for costs and attorney fees are that (1) the complaint was made with a malicious intent to injure the official’s reputation; (2) the person filing the complaint knew that the statements made about the official were false or made the statements about the official with reckless disregard for the truth; and (3) the statements were material.

Because the evidence supports all of these elements, Brown is entitled to an award of costs and attorney fees against Burgess and Kelly. Accordingly, we reverse the final order on appeal and remand this case with instructions to enter a final order awarding costs and fees. No additional evidence is required or permitted. The Commission need only enter a final order adopting Judge Dean’s original recommendations.

Reversed and remanded.

ROBERTS, J., concurs.

WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

I concur fully in the majority’s determination that the text of section 112.317(8), Florida Statutes, does not incorporate the actual malice standard. I also concur to the extent the majority determines that adoption of the actual malice standard is not constitutionally mandated. I feel it is unnecessary, however, to weigh the importance of the right to freedom of expression as addressed in New York Times Co. v. Sullivan against the right to bring complaints to an independent commission concerning breaches of the public trust by public officials.

The Commission on Ethics, in its motion for rehearing, makes a number of policy arguments for the adoption of the “actual malice” standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). I feel that these policy arguments should be made to the Legislature. The majority opinion suggests that the freedom of expression protected in New York Times Co. v. Sullivan is entitled to greater protections than the freedom to file ethical complaints regarding public officials. In my view, this is also a policy decision for the Legislature.

The importance of an independent investigation of misuse of office cannot be debated. The people expressed their recognition of this importance within the constitution. Article II, section 8(f) of the Florida Constitution requires the creation of an independent commission to investigate breaches of the public trust by public officers or employees. The Commission on Ethics fulfills this important responsibility. See § 112.320, Fla. Stat. (2006); Comm’n on Ethics v. Sullivan, 489 So.2d 10 (Fla.1986). Thus, complaints to the Commission are the method of implementing the people’s mandate of ethics in government. Judicial debate over the relative importance of this right serves no useful purpose.

The majority attempts to illustrate the greater importance of freedom of expression by comparing the facts in New York Times v. Sullivan and the facts in this case. Individual illustrations add little to the exercise of weighing these two important constitutional rights. The critical determination is not the facts related to these two particular instances; it is the general question of whether the right to criticize a public figure in writing is piore important than the right to initiate investigations of public office holders who may be involved in breaching the public trust. The people of the State of Florida have indicated both rights are important. It is totally within the prerogative of the Legislature to determine if they wish to give complainants to the Commission on Ethics as much protection as provided in Sullivan. I, therefore, would not engage in a discussion of the relative importance of these rights.

      . The statute was subsequently renumbered. It is now section 112.317(7).

      . We recognize that section 112.317(8) involves policy considerations that are not present in other forms of civil litigation. The comparison to malicious prosecution suits is made here only to illustrate that the actual malice standard protects a person who has made a false statement about another. It does not protect a person who takes formal legal action against another based on a false accusation.

      . The reckless allegation of the appellees in this case are a perfect example of why the Legislature may wish not to adopt such a standard.

      . This is especially true because the Commission cannot initiate investigations on its own but may only act upon initiation of an individual complaint. See § 112.322, Fla. Stat. (2006).

      .I would note that any protection from liability under either of these processes allows for misuse or abuse of the process. It is up to the Legislature to weigh this factor.


author: PER CURIAM.

text:
    Virginia McCALLUM, Appellant, v. PALM BEACH COUNTY SCHOOL DISTRICT and F.A. Richard & Associates, Appellees.
    No. 1D07-0727.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.
    Jerry J. Goodmark of Goodmark & Goodmark, P.A., West Palm Beach; Barbara B. Wagner of Wagenheim Wagner, Ft. Lauderdale, for Appellant.
    Kurt A. Wyland and Jerry McKim of Walton Lantaff Schroeder & Carson, West Palm Beach, for Appellees.
   PER CURIAM.

Claimant, Virginia McCallum, appeals an order in which the judge of compensation claims determined that she did not have jurisdiction to construe the parties’ settlement agreement for the purpose of ruling on claimant’s motion for attorney’s fees. We reverse and remand for further proceedings.

On November 19, 2003, claimant and Palm Beach County School Board, the employer, and F.A. Richard and Associates, the carrier, entered into a settlement agreement whereby the employer/carrier agreed to pay McCallum a lump sum and McCallum agreed to release the employer/carrier from any further claims. The parties agreed that the employer/carrier “will be responsible for payment of indemnity (if applicable) and for provision of authorized medical treatment and care through the date of the Judge of Compensation Claims’s approval of the attorney fee stipulation and that employer/carrier/servicing agent’s responsibility to provide Fla. Stat. § 440 benefits will cease on that date.” The parties also agreed that the employer/carrier “shall set up and fund a Medicare Set Aside Trust to indemnify the Claimant and her attorney from any medical liens asserted by Medicare.”

On December 1, 2003, claimant filed a Petition for Benefits asking the employer/carrier to pay for her share of two bills Medicare had covered and was seeking from her: a $10.32 payment to Northridge Internal Medicine for treatment provided to her between May 28, 2002, and June 15, 2002; and a $50.12 payment to Long Beach Medical Center for treatment between August 19, 2003, and September 12, 2003.

On December 11, 2003, the judge of compensation claims approved the attorney’s-fee stipulation, thus finalizing the parties’ settlement agreement.

The employer/carrier disputed claimant’s entitlement to the two Medicare claims recited above, and the issue went to mediation, which was unsuccessful. Finally, however, the employer/carrier agreed to hold the claimant harmless against the Medicare claims. MeCallum thereafter filed a motion for attorney’s fees, seeking recovery from the employer/carrier for time expended in connection with the mediation and in securing the hold-harmless agreement. The judge of compensation claims denied the motion on January 23, 2007, concluding that she did not have jurisdiction to “adjudicate disputes arising from the Release Agreement” executed back in December 2003.

The judge of compensation claims erred as a matter of law. See, e.g., Cartaya v. Coastline Distrib., 937 So.2d 700 (Fla. 1st DCA 2006) (observing that the determination of the terms of a settlement agreement presents a question of law). Nothing in the settlement agreement precludes the judge of compensation claims from determining whether its terms required the employer/carrier to pay the amounts that Medicare sought from MeCallum, and thus whether the employer/carrier failed to abide by the agreement. See, e.g., Cartaya v. Coastline Dist., 937 So.2d 700 (Fla. 1st DCA 2006); Czopek v. Great Chems., 778 So.2d 996 (Fla. 1st DCA 2000). We direct the judge of compensation claims on remand to determine the validity of McCallum’s motion for attorney’s fees.

REVERSED and REMANDED.

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    TWIN CITY ROOFING CONSTRUCTION SPECIALISTS, INC., Appellant, v. STATE of Florida, DEPT. OF FINANCIAL SERVICES, Appellee.
    No. 1D06-6648.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.

      Steven N. Lippman, of Rothstein Rose-feldt Adler, Fort Lauderdale, for Appellant.
    John M. Iriye, Thomas H. Duffy and Colin M. Roopnarine, of the Department of Financial Services, Division of Legal Services, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order of the Department of Financial Services imposing a penalty on appellant for the failure to provide certain of its workers with workers’ compensation coverage. The appellant raises three issues on appeal, only one of which has merit.

I. BACKGROUND

Florida law requires any company performing construction to secure the payment of workers’ compensation. See §§ 440.10; 440.38, Fla. Stat. (2005). The litigation underlying this appeal was commenced pursuant to section 440.107, Florida Statutes and Rule Chapter 69L, Florida Administrative Code, when an investigator for the Department of Financial Affairs, Division of Workers’ Compensation, visited the office premises occupied by Twin City Roofing Specialists, Inc., in Jupiter, Florida. After determining that Florida workers’ compensation coverage was not secured for a number of Twin City’s employees, the investigator issued and served a Stop-Work Order and Order of Penalty Assessment, and a Request for Production of Business Records for Penalty Assessment Calculation to Twin City Roofing. The Request asked Twin City Roofing to produce certain records that it is required to maintain pursuant to Rule 69L-6.015, Florida Administrative Code. The Request was limited to the period October 25, 2004, through July 8, 2005, inclusive. Twin City Roofing failed to provide the requested records.

The case went to a formal hearing before an administrative law judge (ALJ). On August 30, 2006, the ALJ issued her recommended order. In a section headed “Identification of Twin City’s employees,” the ALJ found that five persons (Mr. Geisen, Ms. Geisen, Mr. Willett, Mr. Colborn, and Mr. Benegas) were “imputed to be employees of Twin City for the period extending from October 24, 2004, through July 8, 2005.” The ALJ recommended imposing a penalty for the failure to provide workers’ compensation coverage for those employees for the period at issue. On November 22, 2006, the Department issued a Final Order that rejected all but one of Appellant’s exceptions (which involved a scrivener’s error), and accepted the Recommended Order. The appellant filed a timely notice of appeal.

II. ANALYSIS

A. Penalty assessed for Ms. Geisen

In its first claim for relief, the appellant asserts that the Department erred when it calculated a penalty based on appellant’s failure to provide workers’ compensation coverage for Ms. Geisen, when it was undisputed that Ms. Geisen was a “volunteer” for whom no workers’ compensation coverage was required. The basis for the Department’s conclusion that the employer had to provide workers’ compensation coverage for Ms. Geisen was that the employer admitted in response to a request for admissions that Ms. Geisen was “employed” by the employer during the period in question.

Although matters admitted during discovery in administrative litigation can furnish the basis for a finding of fact, see Fla. Admin. Code R. 28-106.206 (Florida Rules of Civil Procedure regarding discovery are applicable in administrative proceedings); Fla. R. Civ. P. 1.370(b) (if a party admits a matter in response to a request for admission then that matter is “conclusively established unless the court on motion permits withdrawal or amendment of the admission”); see also Holland v. CSX Transp., Inc., 583 So.2d 777 (Fla. 2d DCA 1991) (holding that an admission made in response to a request for admissions “conclusively establishes the fact admitted”), here, we conclude the admission that Ms. Geisen was “employed” was not an admission that she was an “employee” for whom workers’ compensation coverage had to be provided. An employer is required to provide workers’ compensation coverage for those who qualify as an “employee” as defined in section 440.02(15). That section defines an employee as anyone who received remuneration. Volunteers are specifically excluded from the definition of an employee. Pursuant to section 440.02(15)(d)(6), “[a] person who does not receive monetary remuneration for services is presumed to be a volunteer.” The parties stipulated, as a matter of law, that Twin City was not responsible for providing workers’ compensation coverage for individuals providing services to Twin City on a gratuitous basis.

During the hearing, the uncontro-verted evidence established that Ms. Geisen was a volunteer who did not receive any remuneration for her work. The ALJ even found, as a matter of fact, that Ms. Geisen was not paid. Therefore, that portion of the order assessing a penalty for the failure to provide Ms. Geisen with workers’ compensation coverage is reversed. Cf. Wade Bradford Grove Serv., Inc. v. Bowen Bros., Inc., 382 So.2d 719 (Fla. 2d DCA 1980) (when a conclusion is in conflict with unrebutted testimony, it is not supported by competent, substantial evidence in the record).

B. Imputed Payroll

The appellant also asserts on appeal that the Department improperly imputed payroll to two employees (Mr. Geisen and Mr. Willett) for periods when the employees were not engaged in work in Florida. Specifically, the appellant asserts that the payroll imputed to Mr. Geisen and Mr. Willet should only include the period of the employer’s noncompliance, and thus, the Department erred when it imputed income' to Mr. Geisen and Mr. Willet for the entire period of October 24, 2004, through July 8, 2005, when one of appellant’s employees testified that Mr. Geisen and Mr. Willett each only worked in Florida for half of that period of time.

The requirement that all employers engaging in work in the State of Florida secure payment of workers’ compensation for their employees is enforced through section 440.107, Florida Statutes, which gives the Department broad powers to investigate employers, to halt any work where employers are not complying, and to assess penalties on those who do not comply. The legislature has recognized that in order to enforce compliance with the requirement to secure the payment of workers’ compensation, companies would have to maintain business records and produce them to the Department upon request. § 440.107(3), Fla. Stat. (2005). The Department, pursuant to section 440.107, Florida Statutes, has implemented its own rules requiring employers to keep detailed employment records and to hand them over when requested. See Fla. Admin. Code R. 69L-6.015. When, as here, an employer refuses to provide business records, the Division is required to impute the missing payroll for the period requested in order to assess the penalty. § 440.107(7)(e), Fla. Stat. (2005).

C. Classification Code

Finally, the appellant challenges the Department’s use of the “roofing” classification code when calculating the penalty. However, as noted above, the appellant failed to produce any of the business records as required by section 440.107(3), Florida Statutes, and rule 69L-6.015. Rule 69L-6.028(2)(d) states that when an employer fails to produce records sufficient to establish payroll, the imputed weekly payroll for each employee is calculated using the highest rated workers’ compensation classification code associated with the employer’s business, unless the employer’s records demonstrate the assignment of an alternative workers’ compensation classification code. Here, competent, substantial evidence was introduced that Twin City engaged in roofing. The appellant also failed to produce any business records indicating that the employees in question engaged in non-roofing related activities. Thus, the Department did not err when it used the highest rated classification code for “roofing” when calculating the penalty assessment.

Conclusion

Accordingly, the Department’s order is reversed to the extent it assesses a penalty on appellant for the failure to secure workers’ compensation coverage for Ms. Geisen. Otherwise, the order on appeal is affirmed.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.

      . In discovery the Division asked Twin City to admit the following facts: “During the time period Respondent employed James Geisen, Karen Geisen, Jeff Willett, Aaron Colborn, Jimmi Benagas and Jaime Andrade.” Appellant responded: "Denied that Twin City employed Jaime Andrade,- otherwise admitted.”