text:
    Ronnie G. COATS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3996.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      Ronnie G. Coats, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Ronnie G. Coats appeals the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial as to all grounds except numbers 5 and 7. As to those grounds, we remand either for an eviden-tiary hearing or record attachments that conclusively establish that Mr. Coats is not entitled to the relief sought.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ORFINGER, MONACO and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Herbert FERGUSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-2914.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.
    Herbert Ferguson, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

The “Petition for Writ of Habeas Corpus for Belated Appeal” is hereby denied, as the petitioner’s timely appeal from the pertinent order below was filed June 5, 2007 and docketed here as Ferguson v. State, Case No. 3D07-1545. That appeal will proceed in accordance with Florida Rule of Appellate Procedure 9.141(b).

Petition denied.


text:
    Jose A. CARTAGENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3178.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.
    Jose A. Cartagena, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

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

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Salomon S. MOLYNEAUX, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-789.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.
    Salomon S. Molyneaux, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an application for habeas corpus relief based on ineffective assistance of appellate counsel in Molyneaux v. State, 924 So.2d 821 (Fla. 3d DCA 2006) (table). After careful review, we conclude that none of the numerous contentions raised by the petitioner has merit.

Petition denied.


author: SHAHOOD, C.J.

text:
    Joan HENLEY, Appellant, v. Linda MacDONALD, individually, Appellee.
    Nos. 4D06-4324, 4D06-4614.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.

      Steven A. Smilack, Pompano Beach, for appellant.
    Robert E. O’Connell of Robert E. O’Connell, P.A., Boca Raton, for appellee.
   SHAHOOD, C.J.

Joan Henley appeals an order granting summary judgment and final order of summary judgment in favor of Linda MacDonald, whom Henley sued for breach of contract. We reverse because there is a material question of fact as to whether the parties agreed to extend the closing date of the contract based on Paragraph VII of the contract, which provides for the transfer of marketable title.

Henley (“buyer”) entered into a written contract with MacDonald (“seller”) for the purchase of a single family home in Pompano Beach, Florida. This contract specified a closing date of September 6, 2005.

On September 6, 2005, the parties met at the subject property to do a final walk-through inspection. The seller noticed a small burnt spot on the floor and called the fire department. The fire department came to the house and explained that the problem was not something they dealt with and that it was a matter of code enforcement. The fire department called for a code enforcement officer and when the officer showed up he issued a code violation to the seller for electrical problems and another for the construction of an addition without a building permit.

The buyer decided not to close on the property because she believed the code violations put a cloud on the title, rendering it unmarketable. The buyer then claims that the seller agreed to postpone the closing until the violations were corrected. The seller claims that she did not agree at any time to reschedule the closing to a later date. On September 7, 2005, the buyer faxed to the seller an extension of time in order for the seller to rectify the code violations. The seller did not sign this form.

Subsequently, the code violations were corrected and the buyer asked to close on the house; the seller refused. The buyer filed a complaint against the seller alleging breach of contract for failing to close on the subject property. The seller filed a motion for summary judgment, which was granted by the trial court. Final judgment for the seller was thereafter entered.

“Summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law.” Vaughan v. Boerckel, 963 So.2d 915, 919 (Fla. 4th DCA 2007).

The buyer argues that the code violations run with the land and make the title unmarketable because they would subject the buyer to administrative proceedings and/or litigation after closing.

The seller argues that code violations do not render a title unmarketable and even if they did, the buyer waived any defect by failing to provide written notice of any defects after receipt of a clean title and waived any defects at closing by agreeing to an “as is” rider.

The violations in question were rendered pursuant to section 162.09(1), Florida Statutes (2005), which entitles county organizations to fine those who violate county code ordinances. These fines, if left unpaid, “may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator.” § 162.09(3), Fla. Stat. (2005). “[C]ode violations ‘run with land’ and subsequent purchasers can be held responsible for bringing their property up to .code.” Monroe County v. Whispering Pines Assocs., 697 So.2d 873, 875 (Fla. 3d DCA 1997).

Marketable title has been defined as:

[N]ot merely a title valid in fact but a title that must be such as to make it reasonably certain that it will not be called in question in the future so as to subject the purchaser to the hazard of litigation.... It must be, as is sometimes said, a title which can be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence, and which is not subject to such a doubt or cloud as will affect its market value.

Adams v. Whittle, 101 Fla. 705, 135 So. 152, 155 (1931) (citation omitted). Unpaid fines on the property subject it to future litigation, creating an encumbrance on the property that is a paradigm of unmarketa-bility. See Chafetz v. Price, 385 So.2d 104, 106 (Fla. 3d DCA 1980).

However, city code violations have been found to render title unmarketable only where the contract specifically warrants against such code violations. See, e.g., Rodriguez v. Leonard, 477 So.2d 19 (Fla. 3d DCA 1985). Paragraph VII of the contract provides for marketable title:

Seller shall convey marketable title subject to ... prohibitions and other requirements imposed by governmental authority ... provided, that there exists at Closing no violation of the foregoing and none prevent use of the Property for Residential purpose(s).

The buyer argues that it was because of this apparent unmarketability that the seller agreed to extend the closing date. The buyer testified in deposition to this claim:

Q: Okay. Did you not tell her that you were not going to close on this property because of the electrical problem and this other room?
A: That is not what I said. I said that there is a title issue now, you know, the fact of the electrical issue and that they mentioned that there is a possibility that the room was not permitted and I said, well, we have got to clear that up before we have clear title and we can close and she was agreeing with me and she said she would let me know what it would take to get it put together.

The seller in her affidavit stated “I at no time agreed orally or in writing to reschedule the closing to a later date.”

Pursuant to the contract, the parties agreed not to allow a waiver of any contractual term without putting it in writing, signed and delivered by the party to be bound. Paragraph V of the contract provides that “No modification to or change in this Contract shall be valid or binding upon the parties unless in writing and executed by the parties intended to be bound by it.” This language prevents an oral waiver or modification of the closing date. See, e.g., Bradley v. Sanchez, 943 So.2d 218 (Fla. 3d DCA 2006); Rybovich Boat Works, Inc. v. Atkins, 587 So.2d 519, 522 (Fla. 4th DCA 1991). However, “under certain circumstances, written contracts can be modified by a subsequent oral agreement of the parties even though the written contract purports to prohibit such modification.” Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992).

We find that the buyer’s testimony and the language of Paragraph VII of the contract are sufficient to defeat the seller’s motion for summary judgment. See Quest Air S., Inc. v. Memphis Group, Inc., 733 So.2d 1109, 1110 (Fla. 4th DCA 1999) (“If the record reflects the existence of genuine issues of fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the party moving for summary judgment.”).

Accordingly, we reverse and remand this cause for further proceedings.

Reversed and Remanded.

TAYLOR, J., concurs.

FARMER, J., concurs in conclusion only.


author: SALTER, J.

text:
    HILTON INTERNATIONAL CO. and Hilton Hotels Corporation, Appellants, v. August CARRILLO, et al., Appellees.
    No. 3D07-1773.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.

      Greenberg Traurig and Hilarie Bass, Elliot H. Scherker, Mark A. Salky and Daniel M. Samson, Miami; Kardaras and Kelleher, for appellants.
    Motley Rice and Robin R. Anderson, Ronald L. Motley, Jodi Westbrook Flowers, Donald A. Migliori, Michael E. Eisner, Justin B. Kaplan, Miami, and John M. Eubanks, for appellees.
    Before COPE, GREEN, and SALTER, JJ.
   SALTER, J.

Appellants Hilton International Company and Hilton Hotels Corporation (“Hilton”) appeal a non-final order denying their motion to dismiss for forum non con-veniens. Because we find the appellees’ connection to Florida too attenuated, and because there are adequate and more convenient forums in Israel and Egypt, we reverse the trial court and remand with instructions to grant Hilton’s motion to dismiss for forum non conveniens.

The Taba Resort Attack and the Florida Lawsuit

On October 7, 2004, terrorists attacked the Taba Hilton Resort in Taba Village, Egypt. Thirty-five persons died in the attack, and hundreds more were injured. Among the injured were August and Cheryl Carrillo, Maxim and Algaria Deri, and Bryan and Karola Jordan. Ludmilla and Oleg Faizakov were among the dead. The Carrillos and Bryan Jordan are citizens of the United States residing abroad. Karola Jordan, Bryan Jordan’s wife, is a German citizen. The Deris are Israeli citizens and residents, as were the Faizakovs.

The surviving victims, together with the Faizakovs’ survivors (also Israeli citizens), brought suit in the circuit court in Miami against Hilton, alleging that it failed to take sufficient security precautions at its resort in Taba Village. The complaint alleged that Hilton International had its principal place of business in Coral Gables, Florida, and had recently been acquired by Hilton Hotels Corporation. Hilton Hotels Corporation, according to the complaint, regularly does business in Florida, both through the Coral Gables office, and on its own. Hilton moved to dismiss the complaint on the grounds of forum non conve-niens, and the trial court denied the motion.

The trial court found that the Carrillos were Florida residents based on contacts the couple had to the state prior to the terrorist attack. Specifically, the court’s order lists a warranty deed from 1988, the Carrillos’ children’s baptism in 2001, and “general familial contacts.” Further, the court reasoned that Ms. Carrillo’s 2005 Florida driver’s license and voter registration indicated that the couple intended to live in Florida following Mr. Carrillo’s service to his country abroad.

The trial court gave the Carrillos an “edge” in the balancing of interests specified by Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 90 (Fla.1996). Based on that determination, the court then extended that “edge” to the other six plaintiffs who had no contacts with Florida. Finding that the other plaintiffs’ claims raised the same factual matters and questions of law, the court applied Florida’s “liberal joinder provision” and denied the motion to dismiss as to those plaintiffs as well. This appeal followed.

Standard of Review

A lower court’s ruling on a motion to dismiss is reviewed for an abuse of discretion. Kinney, 674 So.2d at 90-94. Misapplication of the Kinney factors may be redressed on appeal where the record is sufficiently developed and the facts pertinent to the forum non conveniens issue are undisputed. R.J. Reynolds Tobacco Co. v. Carter, 951 So.2d 105, 107 (Fla. 3d DCA 2007).

The Forum Non Conveniens Analysis

Out of growing concern that Florida was becoming a “courthouse for the world,” Kinney, 674 So.2d at 88, the Florida Supreme Court adopted the federal forum non conveniens standard. Under this standard, a court presented with a forum non conveniens motion is to consider: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the “strong presumption against disturbing [a] plaintiffs initial forum choice”; 3) if the balance of private interests is in or near equipoise, whether relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum. Id. at 90.

1. Adequate Alternative Forum

It is undisputed in this case that there is an adequate alternative forum: Israel. The plaintiffs acknowledge this.

Hilton contends that Egypt is also an adequate alternative forum, and that the trial court should have so found. Hilton’s position is well taken.

The trial court found Egypt to be an inadequate forum because it was the place where the attack occurred, there were strong anti-American and anti-Israeli sentiments in the country, and the plaintiffs would not be allowed to testify under the Egyptian legal system.

The question of whether a forum is adequate can ordinarily be answered in the affirmative if a defendant is amenable to process in the alternative jurisdiction. Id. Further, “[a] foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American Court [sic].” Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1115 (Fla. 4th DCA 1997). See Piper Aircraft v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (finding that dismissal may be improper where “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all”); Kinney, 674 So.2d at 90. Additionally, a forum may be inadequate if it is grossly inefficient or given to extreme levels of partiality. Leon v. Millon Air, 251 F.3d 1305, 1312 (11th Cir.2001).

Here, Hilton stipulates that it is amenable to process in Egypt and Israel. Of the reasons stated by the trial court regarding Egypt’s inadequacy in hearing the case, none are sufficient to justify that finding. There is no per se rule of inadequacy applicable to a country in which terrorists attack innocent persons. Moreover, Egypt’s political and cultural climates do not make Egypt an inadequate forum absent some direct, demonstrated, and adverse connection to its legal system. See Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 352 F.Supp.2d 787, 791 (E.D.Mich.2004).

A foreign forum does not need to be perfect. See Leon, 251 F.3d at 1311 (citations omitted). Rather, as other courts have found, absent evidence of extreme partiality or gross inefficiency, a foreign forum is adequate if there is a satisfactory remedy and a defendant is amenable to process in that forum. Although the plaintiffs’ expert witness regarding the Egyptian judicial system, Mr. El-Shahid, opined that Egyptian courts might take five to ten years to render a final judgment in such a case, that is not “grossly inefficient” or tantamount to deprivation of any remedy. American courts have found Egypt to be an adequate forum despite the differences between its judicial system and the United States’. See Bigio v. Coca-Cola Co., No. 97 Civ. 2858(BSJ), 2005 WL 287397 (S.D.N.Y. Feb. 3, 2005), rev’d on other grounds, 448 F.3d 176 (2d Cir.2006); Younis v. Am. Univ. in Cairo, 30 F.Supp.2d 390, 395 (S.D.N.Y.1998).

Mr. El-Shahid’s opinions regarding the more conservative compensation awarded by Egyptian judges suggests a forum-shopping or tactical disadvantage— not the inadequacy of Egypt as a forum. Kinney, and Gilbert before it, rejected any notion that a “less generous” forum is an unsatisfactory or inadequate forum.

Finally, Mr. El-Shahid’s concern that the plaintiffs would have to be represented by Egyptian attorneys, allegedly placing the plaintiffs “in an awkward and difficult position of locating counsel in a country completely foreign to them and where they or their loved ones had suffered an extreme trauma as a result of the bombing,” does not support an argument that the country’s judicial system is inadequate. The record does not support any contention that any of the plaintiffs will be unable to retain Egyptian counsel or that any of them have tried to do so and been rejected. The trauma of returning to the country in which the traumatic and horrifying events took place is not a factor precluding resolution of the claims by the judiciary of that country.

As already stated, we agree with the trial court that Israel is an adequate alternative forum; we conclude that Egypt is also an adequate alternative forum.

2. The Private Interests

The trial court refused to grant Hilton’s motion to dismiss in part because the court found that the parties’ private interests were near equipoise. We again disagree.

The private interests a court may consider include (without limitation) “adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation.” Kinney, 674 So.2d at 91. Underlying any consideration of these private interests is a presumption that favors a plaintiffs choice of forum. Id.

This presumption is rebutta-ble, however. The deference owed to a plaintiffs choice is at its highest level when that choice was motivated by legitimate reasons, i.e., the plaintiffs convenience and the ability to obtain jurisdiction over the defendant. Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir.2001). Of course, bona fide connections to the forum of choice further serve to strengthen the deference given to a plaintiffs choice. Id. Conversely, this deference dissipates if a plaintiffs forum choice was made in the absence of such connections. Id; See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003).

In this ease, the trial court gave excessive deference to the plaintiffs’ choice of forum. Of the eight plaintiffs, only three are American citizens. Of those three, only two have any connection to Florida (the Carrillos), and that connection is tenuous at best. The Carrillos did not reside in this state or own property here before the bomb incident; they vacationed here intermittently. The 1988 warranty deed noted by the trial court was to Mr. Carrillo’s father. Any indicia of intent to reside in Florida cited by the Carrillos were acquired after the horrific incident that is the subject of the lawsuit.

For example, Ms. Carrillo acquired her Florida driver’s license and voter’s registration in 2005, the year after the bombing. All of the plaintiffs currently live overseas, calling into question the argument that their forum choice was a matter of convenience. See Pollux, 329 F.3d at 73. Hilton, on the other hand, is amenable to suit in Egypt or Israel, as well as in Florida.

Turning next to Hilton’s private interests, Hilton’s experts opined that if the case is tried in the United States, Hilton will be unable to compel the testimony of Egyptian witnesses and the production of Egyptian documents. The plaintiffs’ experts did not contradict Hilton on this point. Under the record before us, Hilton would not be able to mount an effective defense if the case is tried in the United States. Substantially all of the evidence is located in Egypt, as are most of the witnesses. The site of the attack is located in Egypt, and the documents are in Arabic. Arabic is an official language in both Israel and Egypt, and the courts of both countries are well equipped to deal with documents in that language.

The plaintiffs are correct that one of the Hilton defendants has an office in Miami-Dade County. Neither that fact, the confidential management agreement signed by that defendant, nor other record evidence indicates that the Florida office had any operational control over the resort in Egypt or the tragic incident.

3. Public Interest

Although we conclude that the factors of private interests weigh heavily in favor of Egypt or Israel — obviating the need under Kinney to consider factors of public interest — we nevertheless address the trial court’s findings on those points in case further appellate consideration ensues.

The trial court considered the prospect that its unfamiliarity -with Egyptian and Israeli law “would be a significant factor weighing in favor of dismissal, if Egyptian or Israeli law were to apply,” citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260, n. 9, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The trial court then concluded, however— and this was error — that “Florida law will govern” because “the conflict of law in the instant case is a false conflict ”. The trial court reached this result by concluding that the laws of Florida, Egypt, and Israel “would produce the same outcome under the facts of the case,” citing Tune v. Philip Morris, Inc., 766 So.2d 350, 352 (Fla. 2d DCA 2000). This determination was based in turn on the trial court’s statement that Hilton’s “counsel and their experts went to great lengths in proving that Egyptian and Israeli laws have a cause of action similar to one available to plaintiffs in Florida.”

An examination of Hilton’s motion to dismiss and an Egyptian expert’s affidavit, however, reveals only an assertion that the Egyptian Civil Code recognizes the causes of action asserted by the plaintiffs in Florida. That contention does not support the sweeping conclusion that the lawsuit would have the same outcome no matter which law is applied. A Florida court attempting to try the case would first apply the “significant relationships” test to -determine which law applies to the alleged breaches of duty and resulting damages. Bishop v. Fla. Specialty Paint Co., 389 So.2d 999 (Fla.1980). The law of Egypt, where the injuries occurred and Hilton International or others were to provide security to guests, would apply unless some other jurisdiction has a more significant relationship to the occurrence and the parties. The plaintiffs provided no reservation or lodging contract, and no other evidence, to demonstrate why Florida would have a more significant relationship to the occurrence and the parties than Egypt or Israel.

The significance of the conflicts and governing law question is enormous. Beyond the threshold question of whether a cause of action exists, the choice of governing law may also affect pretrial and trial procedure; the admissibility of evidence; conditions precedent; the mandatory or permissive joinder of claims against others; comparative negligence and comparative liability among those found responsible; the effect (if any) of insurance and collateral recoveries; the availability of punitive as opposed to compensatory damages; rights of subrogation, contribution, and immunity; sovereign immunity (as to the Egyptian tourist police and other governmental entities involved according to the parties’ affidavits); and appellate rights. Hilton did not allege or concede that the outcome of the lawsuit would be the same in each of the three jurisdictions; it simply demonstrated, as it was required to, that Egyptian law afforded a remedy to the plaintiffs for the type of claim alleged in the Florida lawsuit.

On the record presented, Egyptian law will predominate if the lawsuit is prosecuted here in Florida, and that is another factor weighing against retention of the case. Kinney, 674 So.2d at 92. Finally, Florida’s interest in the responsibilities of hotels and tourism companies in Egypt seems attenuated in comparison to Egypt’s obvious interest in assuring that the victims of terrorism in that country have redress for their injuries suffered there.

4. Ability to Reinstate

When, as here, the balance favors an alternative forum (Egypt or Israel, in this instance), the movant must assure the court that the plaintiffs can reinstate their lawsuit in the alternative forum without undue inconvenience or prejudice. In this case, Hilton is deemed to have accepted the stipulations set forth in Rule 1.061(b) and (c), and reinstatement of the lawsuit in the alternative jurisdictions has not been shown to cause undue inconvenience or prejudice.

Conclusion

The trial court’s concern for the plaintiffs and their emotional well-being is admirable. Under Rule 1.061, Kinney, and its progeny, however, Hilton’s motion should have been granted. For the stated reasons, we reverse the trial court’s order and remand for entry of an order granting the Appellant’s motion to dismiss under Florida Rule of Civil Procedure 1.061. This ruling is, of course, without prejudice to the plaintiffs’ right to refile their lawsuit in Israel or Egypt.

Reversed and remanded.

      . The order below found, at page 8, that four of the plaintiffs are Florida residents. That is incorrect. At the time of the tragic incident, no plaintiff lived in Florida, owned property in Florida, had a Florida driver’s license or voter's registration card, or could otherwise be considered a “resident" of Florida. After the incident, but before the lawsuit was filed here, Mr. and Mrs. Carrillo acquired some indicia of Florida residency.

      . Both Mr. Carrillo and Mr. Jordan are civilian employees of the Army Corps of Engineers.

      . Fla. R. Civ. P. 1.270.

      . The Kinney decision was codified as Florida Rule of Civil Procedure 1.061.

      . Although the Florida courts aspire to resolve cases such as this within 18 months from date of filing (Fla. R. Jud.Ad-min.2.250(a)(l)(B)), complex cases involving many witnesses in several different countries, extensive discovery, and other logistical challenges frequently take longer than five years to conclude in Florida. This is not "gross inefficiency,” but rather the hallmark of a complex international lawsuit.

      . Kinney, 674 So.2d at 90-91; Gilbert, 330 U.S. at 510, 67 S.Ct. 839.

      . We are entirely sympathetic to the trauma suffered by the plaintiffs. But global tourism, affected by terrorism that has extended even to the "safe” underground system of London and trains in Madrid, sometimes requires tourists to rely on the medical and legal infrastructure of the countries they visit. Further, the "reliving” of the bombing through testimony and trial will be traumatic irrespective of the country in which it occurs. The "emotional burden” considered in Guidi v. InterContinental Hotels Corp., 224 F.3d 142, 147 (2d Cir.2000), and by the trial court here is not a factor taken into account by Florida courts following Gilbert and Kinney.

      . Records custodians, governmental investigators, and security personnel were and are in Egypt. If none can be compelled to testify in Florida or to be deposed in Egypt as part of a Florida proceeding, we doubt that trial here would be convenient, just, or efficient.


author: SUAREZ, J. RAMIREZ, J.

text:
    Ronald SEARCY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-277.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.

      Bennett H. Brummer, Public Defender, and Howard L. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals from a final judgment of conviction and fifteen-year sentence that resulted from a plea agreement, as well as the trial court’s orders denying his Motion to Withdraw Plea and his Motion to Correct an Illegal Sentence. He also appeals his conviction and six-month sentence for direct criminal contempt. We affirm in part and reverse in part.

On November 14, 2005, the defendant, represented by counsel, pursuant to a negotiated plea, entered a guilty plea to tampering with evidence, resisting an officer with violence, and fleeing or attempting to elude a police officer. The State offered 364 days in jail with the Treatment Alternatives to Street Crime (TASC), a drug treatment program. During plea negotiations, the defendant requested a thirty-day furlough from the court. The trial court granted the furlough, provided that the defendant plead to the maximum sentence of fifteen years in-prison, to be mitigated to 364 days upon the defendant’s surrender on December 14, 2005, and provided that the defendant met three conditions: surrender in court on time, give a clean drug urine test, and have no new arrests. The defendant agreed and was sentenced. While the defendant was on furlough, he filed a motion to extend his surrender date, which was summarily denied by -the trial court. -On December 8, 2005, the defendant also filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l), claiming ineffective assistance of counsel.

The defendant timely surrendered in court following the furlough and had no new cases. At that appearance, he asked the judge to rule on his pending pro se motion to withdraw his plea. The trial court summarily denied the motion. The defendant then refused to submit to the urinalysis and engaged in a verbal argument with the trial judge that resulted in the court ordering him three times to show cause as to why he should not be held in contempt. The defendant failed to show cause and continued to engage in disrespectful and disruptive behavior. The court held him in direct criminal contempt and sentenced him to six months in prison, to run consecutive to the unmitigated fifteen-year sentence. The defendant filed a pro se notice of appeal with this Court, and subsequently, a pro se Motion to Correct an Illegal Sentence with the trial court, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court summarily denied the Motion to Correct an Illegal Sentence.

The first issue is whether the defendant was represented by counsel at the time he filed his pro se Motion to Withdraw Plea. The record indicates that he was not. Florida Rule of Criminal ■ Procedure 3.111(e) obligates counsel to represent the defendant until after filing a notice of appeal, substitute counsel has been obtained or appointed, or the time has expired for filing of a notice of appeal and no notice has been filed. In this case, the defendant was represented by court-appointed counsel in the sentencing proceedings, but apparently not thereafter. The record shows that the defendant asked the court for a new attorney at the beginning of his sentencing hearing on November 14, 2005, and the court'agreed to appoint one, but new counsel was not appointed then or thereafter. It appears from the record that the current appointed trial counsel believed that his services to the defendant terminated on November 15, 2005, the day following the defendant’s plea and sentencing, as he filed his motion for attorney’s fees and costs on that date. No counsel, appointed or otherwise, was present on December 14, 2005, when the defendant appeared in court for the purpose of surrendering following his furlough, which was the last day on which a notice of appeal could have been filed. No counsel was present to assist the defendant when he asked the trial court to grant his motion to withdraw his plea.

We agree with the defendant that he should have been entitled to conflict-free representation on his pro se Motion to Withdraw Plea filed pursuant to Florida Rule of Criminal Procedure 3.170(i). Many courts have held, and we agree, that an indigent defendant has the right to court-appointed counsel to assist in filing a Rule 3.170(Z) motion. See Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999) (rejecting the State’s classification of the 3.170(Z) motion as a collateral or post-conviction motion, and finding the thirty-day window between sentencing and time for filing an appeal to be a critical stage of criminal proceedings); see also Schriber v. State, 959 So.2d 1254 (Fla. 4th DCA 2007) (holding that the 30-day window provided by Rule 3.170(Z) is a critical stage requiring counsel to assist in preparing the initial motion to withdraw plea); Mosley v. State, 932 So.2d 1239 (Fla. 1st DCA 2006) (providing that once a defendant indicates his desire to avail himself of Rule 3.170(Z), the trial court must appoint conflict-free counsel to advise and assist); Norman v. State, 897 So.2d 553 (Fla. 1st DCA 2005) (same); Smith v. State, 849 So.2d 485 (Fla. 2d DCA 2003) (same); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002) (same); Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002) (same); Williams v. State, 793 So.2d 1112 (Fla. 4th DCA 2001) (same). Here, the defendant indirectly alleges in his motion to withdraw his plea that his plea was involuntary because it was based in part on counsel’s representation that he would be able to get him a longer furlough if he took the plea. With this in mind, we reverse the trial court’s summary denial of the defendant’s motion to withdraw his plea and remand for the court to appoint conflict-free counsel for the purpose of assisting the defendant in the preparation and presentation of this motion, as well as to schedule a new hearing on the merits of the defendant’s motion to withdraw his plea.

Next, we consider whether the defendant was entitled to representation by counsel at his court appearance on December 14, 2006, when, in accordance with the plea agreement, he reported to court solely for the purpose of surrendering and commencing his sentence after furlough. The defendant argues that his December 14, 2006, court appearance constituted a sentencing hearing and, thus, a critical stage of the criminal proceedings. Although we acknowledge that criminal defendants facing incarceration have a right to counsel at critical stages of their proceedings, including sentencing, we disagree that the defendant’s appearance to turn himself in on December 14, 2006, was a sentencing hearing. The defendant had been properly sentenced one month earlier, on November 14, 2006. At that time the defendant, represented by counsel, entered his plea pursuant to a proper plea colloquy, the court pronounced sentence, and gave the defendant a one-month conditional furlough. The purpose of the defendant’s appearance in court at the end of his furlough was merely to report to the Department of Corrections to begin his sentence, and it was not a critical stage of his criminal proceedings requiring representation of counsel.

Finally, we find that the trial court did not abuse its discretion in retaining the negotiated fifteen-year sentence in light of the defendant’s refusal to submit to the urinalysis test, one of the conditions of receiving the mitigated sentence. This Court and others have reversed sentences imposed in lieu of mitigated sentences only where the defendants’ violations of their furlough terms were de minimis or involuntary. See Navedo v. State, 847 So.2d 585 (Fla. 3d DCA 2003) (finding violation de minimis where the defendant overslept and appeared six hours late); Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001) (finding violation de minimis and involuntary where defendant was fifteen minutes late); Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995) (finding delay de minimis where defendant reported six-and-one-half hours late due to child’s hospitalization); Johnson v. State, 501 So.2d 158 (Fla. 3d DCA 1987) (finding defendant’s non-appearance involuntary where he had been arrested); Lee v. State, 471 So.2d 195 (Fla. 4th DCA 1985) (finding defendant’s delay involuntary where his car broke down on the way to court). The record in this case indicates that the defendant’s conduct was neither involuntary nor de minimis. The defendant agreed in his plea, taken one month earlier, that his sentence of fifteen years could be mitigated if he met certain conditions. The defendant had been advised on at least three occasions that a condition of his mitigation was a clean urinalysis. In open court on the day of his surrender, however, he refused to submit to the urinalysis test despite the court’s warning that he risked forfeiting the mitigation of sentence. When the defendant did not meet his plea condition and became belligerent, the trial court was within its discretion to refuse to mitigate the sentence that had been imposed one month earlier. See Gaston v. State, 613 So.2d 496, 497 (Fla. 2d DCA 1993) (“Mitigation of a lawful sentence is largely discretionary with the trial court.”).

The defendant also filed a Motion to Correct Illegal Sentence pursuant to Florida Rule of Criminal Procedure 3.800(b) while this appeal was pending. The motion is in the nature of a motion to withdraw an involuntary plea pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the 3.800(b) motion without prejudice to the defendant to re-file his motion after jurisdiction again vests in the trial court. Tompkins v. State, 894 So.2d 857, 859 (Fla.2005); Hulick v. State, 644 So.2d 117 (Fla. 2d DCA 1994).

The defendant also argues that the trial court erred by holding him in direct criminal contempt without affording him the opportunity to present evidence, in violation of Florida Rule of Criminal Procedure 3.850. The following colloquy occurred at the defendant’s surrender appearance:

THE COURT: Mr. Searcy, let me tell you two things. You either submit to the urinalysis or I am going to do an order to withdraw your blood. I believe you are under the influence and if you refuse to stop talking; you don’t stop talking, I am going to hold you in contempt. If you don’t submit to the urinalysis, then you are going to get the original sentence that we sentenced you to.
DEFENDANT: Then give it to me and I will appeal it to the 3rd DCA. I am tired of your threats.
THE COURT: Excuse me? Stop right there. You can help yourself of the contemptual [sic] behavior you just exhibited by apologizing or I am going to give you six more months. Tell me why I should not give you six more months.
DEFENDANT: It’s your call, your Honor. I just want a right to appeal.
THE COURT: I am giving you the opportunity. Tell me why you should not be held in contempt.
DEFENDANT: You know why. You know what you have done to me.
THE COURT: All I want you to tell me is why I should not give you six more months for your contemptuous behavior, raising your voice to this Court and turning your back on the Court and refusing to—
DEFENDANT: Because there is no integrity in your courtroom.
THE COURT: In that case, I am going to hold you in contempt and sentence you to six months consecutive....

A charge of direct criminal contempt presents an exceptional situation as the charging court is afforded significant power to act simultaneously and summarily as prosecutor, witness, and judge. Moreover, an individual charged with direct criminal contempt neither enjoys a right to a formal hearing on the charges nor is he entitled to legal representation even though the sentence may be incarceration. Williams v. State, 698 So.2d 1350 (Fla. 1st DCA 1997). However, the accused is entitled to the basic protections of due process, and strict compliance with the procedural requirements of Florida Rule of Criminal Procedure 3.830 is necessary to ensure that those procedural due process rights are safeguarded. Garrett v. State, 876 So.2d 24 (Fla. 1st DCA 2004). Failure to follow the procedural requirements of direct criminal contempt constitutes fundamental error. Id. at 25-26. Rule 3.830 requires that the trial judge first inform the defendant of the accusation of criminal contempt and then inquire whether the defendant has cause to show why he should not be held in contempt. Fla. R.Crim. P. 3.830. The rule further provides that, after asking the defendant to show cause why he or she should not be adjudged guilty of contempt, the trial court shall give the defendant “the opportunity to present evidence of excusing or mitigating circumstances.” Id.; see Bonet v. State, 937 So.2d 209 (Fla. 3d DCA 2006); Hibbert v. State, 929 So.2d 622 (Fla. 3d DCA 2006); Garrett, 876 So.2d at 24.

Merely asking the defendant if he wishes to explain his behavior does not meet the procedural requirement that he be given an opportunity to present evidence. O’Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987). In Garrett, the court found that the procedural requirements were not met where the defendant was neither informed that he could present mitigating or excusing circumstances, nor given a separate and distinct opportunity to present mitigating circumstances. “Under these circumstances we cannot conclude that the brief response of appellant substantially reflected what appellant would have presented if he had been given the opportunity contemplated by the rule.” Garrett, 876 So.2d at 25

In the instant case, the trial judge asked the defendant to show cause why he should not be held in contempt and even said, “I am giving you an opportunity.” But this is not enough as the court failed to advise him that he had the opportunity to present evidence of mitigating or excusing circumstances and failed to provide him with a reasonable opportunity to do so. Given the heat of the moment and the apparent agitation of the defendant, we believe that a better approach may have been to advise the defendant of the contempt charge, ask him to show cause, advise him of his opportunity to present mitigating or excusing circumstances, and then permit him a short, cooling-off period in which to gather his thoughts in order to present a proper defense of his actions. Therefore, we reverse the contempt adjudication without prejudice to the trial court to institute proper contempt proceedings. See Telfair v. State, 903 So.2d 257 (Fla. 1st DCA 2005) (finding that the trial court failed to afford appellant the opportunity to show cause why he should not be held in contempt before finding appellant in contempt, and failed to afford appellant the opportunity to present evidence of excusing or mitigating circumstances, as Rule 3.830 requires).

Affirmed in part, reversed and remanded in part.

GREEN, J., concurs.

RAMIREZ, J.

(concurring in part, dissenting in part).

I concur with the majority in its reversal of Searcy’s conviction and sentence for direct criminal contempt. I also concur that the trial court erred in summarily-denying Searcy’s motion to withdraw his plea -without appointing conflict-free counsel. I respectfully dissent, however, in our affirmance of Searcy’s fifteen-year sentence.

In my view, it defies logic to categorize Searcy’s court appearance on December 14, 2006, as anything but a critical stage in his criminal proceeding. The law is clear that sentencing is a critical stage. See Sandoval v. State, 884 So.2d 214, 215 (Fla. 2d DCA 2004); Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999); Smith v. State, 590 So.2d 1078 (Fla. 2d DCA 1991) (“An indigent defendant has the right to the assistance of counsel at every critical stage of the proceedings against him, including sentencing.”). The majority seeks to circumvent this deeply enshrined constitutional right to counsel by engaging in what I view as a legal fiction — that Searcy was sentenced on November 14, 2006, not on December 14, 2006.

I agree that if Searcy had merely turned himself in at the appointed hour without incident and his sentence had been mitigated as agreed, that the event could be viewed as non-critical. As the majority opinion makes clear, however, what occurred on December 14, 2006, was far from uneventful. It resulted in a fourteen-year increase in Searcy’s term of incarceration.

Searcy was charged by information with three third-degree felonies, all alleged to have occurred on October 20, 2004: (1) tampering with or fabricating physical evidence; (2) resisting an officer with violence; and (3) fleeing or attempting to elude a police officer. Searcy went through several defense attorneys, starting with the Office of the Public Defender. On April 18, 2005, the trial court appointed attorney Emilia Diaz Fox as his counsel, after the Public Defender certified a conflict. On April 29, 2005, there was an oral motion to withdraw, with a notation of “reserve ruling.” On May 4, 2005, new counsel, Anthony Sanchez, made his appearance in the case. Although the record does not show the reason why, on August 9, 2005, Searcy’s bond was revoked, and he was incarcerated until his plea was entered on November 14, 2005.

On that date, Sanchez announced the State’s plea offer of “adjudication, 364/ TASC.” Searcy then requested that the trial court reconsider reinstating his bond, which was denied. Searcy next complained that he had been incarcerated for over 100 days and counsel “hasn’t come and talked to me about anything.” He requested to be co-counsel at trial, which was also summarily denied. When the court inquired if he was getting along with Sanchez, Searcy stated that he was not. The court then stated, “I’m letting Mr. Sanchez out of your case but not until I find a new attorney.”

At that point, Searcy requested to speak with Sanchez. After explaining the plea and that Searcy was facing 51.3 months under the guidelines, with a maximum of fifteen years in prison, the court gave Se-arcy time to speak with Sanchez. When the case was recalled, Searcy requested a thirty-day furlough. The trial court agreed to grant it if Searcy would “plead to the 15-year maximum today and when you return in 30 days and you have a clean urine and you have picked up no new cases for which I find probable cause and you show up on time, then I will mitigate your sentence to the 364/TASC sentence.” Se-arcy assented.

In Parks v. State, 782 So.2d 968 (Fla. 3d DCA 2001), we vacated the sentence imposed upon the defendant’s alleged failure to comply with a previous plea agreement and remanded for further proceedings to be conducted after the appointment of conflict-free counsel for the defendant. The majority opinion acknowledges that criminal defendants are entitled to counsel at all critical stages of their proceedings, but it characterizes the event scheduled for December 14, 2006, as merely a report to the Department of Corrections to begin Sear-cy’s sentence. The scheduled event, however, was to have a significant impact on Searcy’s sentence. The sentence was supposed to be reduced from fifteen years to 864 days, provided Searcy met the conditions of his furlough. For example, if Se-arcy had “picked up” a new case, under the terms of the plea agreement, the trial court had to find probable cause. It was more than a ministerial act. What was scheduled to have occurred attached significant consequences. The United States Supreme Court has defined a “critical stage” as a step of a criminal proceeding that holds “significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). I regard a fourteen-year sentence differential as significant.

For the foregoing reasons, I would reverse and remand for further proceedings before a different judge, where Searcy would be represented by conflict-free counsel. If the new judge denies Searcy’s motion to withdraw his plea, as the majority has ordered, the judge could still sentence Searcy to fifteen years, if he or she determines that the fifteen-year sentence is appropriate.

      . We point out that it is not whether the issue presented in the motion is meritorious, but whether the defendant was denied conflict-free counsel at a critical stage of the proceedings. Smith v. State, 849 So.2d 485, 486 (Fla. 2d DCA 2003); Padgett, 743 So.2d at 74 (declining to rule on the merits of appellant’s motion to withdraw plea, as the denial of right to counsel is not subject to harmless error analysis).


text:
    Elaine SHURE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2186.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2008.
    Nancy A. Daniels, Public Defender, Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges her conviction for making a false report of child abuse as well as the amount of restitution ordered by the trial court. We find no merit as to the issue addressing the conviction but reverse the award of restitution because the State failed to present competent evidence to support the award. Accordingly, we reverse and remand for a new restitution hearing. See Forlano v. State, 964 So.2d 246 (Fla. 1st DCA 2007).

BARFIELD, WOLF, and HAWKES, JJ., concur.


author: HAWKES, J.

text:
    STATE of Florida, Appellant, v. Ernest W. DAVIS, III, Appellee.
    No. 1D06-5678.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2008.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee; Robert Carson Elmore, Assistant State Attorney, Crestview, for Appellant.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellee,
   HAWKES, J.

The State appeals the trial court’s non-final order partially granting Defendant Ernest. Davis’s motion to suppress. We reverse. „ .

The following is a brief synopsis of the events léading up to Davis’s motion to suppress. On August 25, 2005, Officers Jim Spencer and Jerry Utsey sought out Davis to question him concerning his father’s death. When the officers found Davis, they told him they wanted him to come to the Sheriffs office for an interview concerning his father’s death. The officers told Davis he could ride with them and, because his truck was malfunctioning, he agreed. During the trip, another officer radioed Officer Spencer and informed him they had Davis’s brother. According to Officer Spencer, Davis overheard the report and stated, “You got us now.” Davis denied making the statement and asserted he asked if the officers had talked to the neighbor.

After arriving at the Sheriff’s office, Davis was read his Miranda rights and signed a waiver form. Officer Utsey and Officer Jeffrey Shuler then began questioning him about his father’s death. During the interview, Davis stated on several occasions that he wanted to go home. He was eventually informed he could not go home because he was being detained and was officially a suspect.

Officer Spencer then came into the interview room, and the following conversation took place:

OFFICER SPENCER: Which one of these guys do you feel more comfortable talking with? Which one of these guys you wanna talk to Ernest?
DAVIS: None of ‘em.
OFFICER SPENCER: I mean which one would you feel more comfortable talking with? Give me an answer. I’m giving you a choice.

Davis did not answer again and Officer Spencer continued questioning him. Ultimately, Davis confessed to murdering his father and directed officers to the location of the gun he used to shoot his father. Davis was charged with first-degree premeditated murder with a firearm.

Subsequently, Davis filed a motion to suppress the statements and admissions made to officers during his interview and any evidence (including the gun) discovered as a result of those statements and admissions. Following an evidentiary hearing, the trial court entered an order partially granting Davis’s motion to suppress, concluding that his statement, “none of ‘em,” was an unequivocal assertion of his right to terminate further questioning.

A trial court’s ruling on a motion to suppress is presumptively correct. See e.g., Connor v. State, 803 So.2d 598, 605 (Fla.2001). However, appellate courts review mixed questions of law and fact that ultimately determine constitutional rights using a two-step approach. See id. The trial court’s findings of historical fact are given deference, but the appellate court reviews the constitutional issue de novo. See id.; see also Walker v. State, 957 So.2d 560 (Fla.2007); Albritton v. State, 769 So.2d 438 (Fla. 2d DCA 2000). Accordingly, a trial court’s determination of whether a defendant’s statement constituted an unequivocal assertion of a Miranda right is reviewed de novo. See Connor, 803 So.2d at 606. In Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court held that, after a suspect knowingly and voluntarily waives Miranda rights, a law enforcement officer may continue questioning unless the suspect clearly and unequivocally asserts his or her right to counsel. Thus, under Davis, law enforcement officers have no duty to clarify a suspect’s equivocal or ambiguous request and may continue questioning until the suspect makes a clear assertion of the right to counsel. See id.

In State v. Owen, 696 So.2d 715, 717 (Fla.1997), the Florida Supreme Court recognized that the reasoning of Davis applies when a suspect makes an equivocal or ambiguous assertion of any Miranda right, including the right to terminate further questioning. The Florida Supreme Court explained:

A suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect’s intent, and they may proceed with the interrogation.

Id. at 718 (quoting Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994)). Thus, under Owen, after a suspect knowingly and voluntarily waives Miranda rights, law enforcement officers have no duty to clarify the suspect’s request and may continue questioning until the suspect makes a clear and unequivocal assertion of his right to terminate further questioning. Id. at 717-18, 719-20. Applying, this reasoning, the Florida Supreme Court held that Owen’s statements, “I’d rather not talk about it” and “I don’t want to talk about it,” were equivocal and, therefore, the law enforcement officers were not required to clarify his statements or to terminate further questioning. Id. at 720; see also Owen v. State, 560 So.2d 207, 210-11 (Fla.1990).

In the instant case, the statement made by Davis was more, not less, equivocal than the statements made in Owen. When asked by Officer Spencer whether he was more comfortable speaking with either Officer Shuler or Officer Utsey, Davis replied “none of 'em.” When asked again, Davis did not reply and the questioning continued. Taken in context, Davis’s statement, “none of 'em,” was not an unequivocal or unambiguous request to terminate further questioning. It is unclear whether Davis was indicating that he was not comfortable talking with Officer Shuler or Officer Ut-sey, but would be comfortable talking with Officer Spencer, or that he did not want to continue the questioning at all. Thus, the officers were under no obligation to clarify Davis’s intent or to terminate further questioning. See Owen, 696 So.2d at 717-18.

Accordingly, the trial court reversibly erred by partially granting the motion to suppress. The order partially granting the motion to suppress is REVERSED.

WEBSTER and ROBERTS, JJ., concur.


text:
    J.C. MAZON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1899.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2008.
    J.C. Mazon, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General; Thomas Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the order denying his motion for postconviction relief rendered on November 17, 2005, in Columbia County Circuit Court case number 97-135-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

We quash the portion of the special master’s order which purports to grant the petition for belated appeal. The authority to grant the petition to obtain a belated appeal lies with the appellate court to which the appeal was or should have been taken. Fla. R.App. P. 9.141(c)(2); see also Hardaway v. State, 733 So.2d 606 (Fla. 1st DCA 1999).

PETITION GRANTED.

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


author: WOLF, J.

text:
    James E. McCALISTER, Jr., Superintendent of the Bay County School District, Appellant, v. SCHOOL BOARD OF BAY COUNTY and Larry Bolinger, Appellees.
    No. 1D07-2235.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2008.

      Martha Harrell Chumbler, Daniel Hernandez, and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellant.
    Joy Frank, Florida Association of District School Superintendents, Tallahassee, for Florida Association of District School Superintendents, Amicus Curiae for Appellant.
    Franklin R. Harrison and Robert A. Fleming, III of Harrison, Sale, McCloy, Thompson, Duncan & Jackson, Chtd., Panama City, for Appellee School Board of Bay County; Mary F. Aspros, Ronald G. Meyer, and Jennifer S. Blohm of Meyer and Brooks, P.A., Tallahassee, for Appellee Larry Bolinger.
    Major B. Harding and J. Jeffrey Wahlen of Ausley & McMullen, Tallahassee, for Florida School Boards Association, Inc., Amicus Curiae for Appellees.
   WOLF, J.

Appellant, James McCalister, Jr., Superintendent (Superintendent) of the Bay County School District, timely appeals a final order of appellee, the School Board of Bay County (School Board), rejecting his recommendation to transfer appellee, Larry Bolinger (Bolinger), from his position as principal of Bay County High to the position of principal at Jinks Middle School. The Superintendent asserts the following arguments: (1) the School Board did not have the statutory authority to enter an order requiring the Superintendent to retain Bolinger as principal of Bay High until 2009; and (2) the School Board did not have the statutory authority to reject the Superintendent’s recommendation to transfer Bolinger to the principal position at Jinks Middle School. We agree and reverse.

In June of 2005, the Superintendent recommended Bolinger for the vacant principal position at Bay High. Bolinger and the Superintendent met in private to discuss the offer, and, during this meeting, the Superintendent agreed to allow Bolinger to remain as principal of Bay High until he was expected to retire, four years later. Bolinger accepted the offer and, in the 2005-2006 school year, was able to raise the performance level of Bay High from a “D” to a “C.” However, during that school year, Bolinger was involved in an incident regarding the choice of the school valedictorian which ultimately ended in his recommended transfer.

The School Board voted to reject the recommendation to transfer Bolinger based on its belief that the transfer (1) was not in Bay High’s best interest; and (2) violated the Superintendent’s assurance that Bolinger would be able to remain at Bay High until his retirement. Following the transfer rejection, Bolinger entered into a written contract with the School Board to serve as principal of Bay High for the 2006-2007 school year. The Superintendent challenged the decision of the School Board to reject his recommendation of transfer by filing a Petition for Formal Administrative Hearing with the School Board. The School Board referred the petition to the Department of Administrative Hearings who held an evidentiary hearing at -which the five School Board members, Bolinger, and the Superintendent testified regarding the recommended transfer. Following the hearing, the Administrative Law Judge (ALJ) entered a recommended order.

In the Recommended Order, the ALJ concluded, in relevant part:

70. The School Board has the burden of proving by a preponderance of the evidence that it had good cause to reject the Superintendent’s recommendation to transfer Bolinger. c See Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990).
72. The School Board’s responsibilities are set forth in section 1012.22(l)(a), Florida Statutes, which states ...:
2. The district school board may reject for good cause any employee nominated.
76. In this case, the School Board had reason to believe that Bolinger’s transfer after one very successful year at Bay High, so close to the beginning of the next school year, would adversely impact the forward progress of the school under the A+ Plan. The transfer would damage the morale of the students, faculty, staff, parents, and community members, who had rallied to improve Bay High academically and in other areas such as attendance, discipline, and pride in the physical facility under Bolinger’s strong leadership. In the absence of any reason for the Superintendent’s action, the School Board was not required to risk Bay High’s future by approving the Superintendent’s proposed transfer of Bol-inger, the one person that the Superintendent recently considered the best and only person who could “fix” Bay High. In one year, Bolinger may have “ruffled some feathers” but he certainly made substantial gains towards “fixing” Bay High.
77. There is no legal prohibition against a school board rejecting for “good cause” a superintendent’s recommended transfer based upon the performance of the school and the impact such transfer would have on the school. Under the facts of this case, the School Board had “good cause” not to approve Bolinger’s transfer based on lawful, rational, non-arbitrary, non-statutory reasons.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the School Board enter a final order rejecting the Superintendent’s recommendation to transfer Larry Bolinger.

Following the entry of the Recommended Order, the School Board held a hearing devoted to the writing of the Final Order and subsequently issued an order containing the following pertinent language:

The SCHOOL BOARD OF BAY COUNTY, FLORIDA therefore accepts, approves and adopts in their entirety the Findings of Fact, Conclusions of Law and Recommendation contained in the Recommended Order subject only to the corrections and modifications as outlined in this Final Order and rejects the Superintendent’s recommendation to transfer Larry Bolinger from his position as Principal of Bay High School and further because the Superintendent accepted the benefits of his agreement with Larry Bolinger by assigning him to Bay High School, orders that the Superintendent is precluded from removing Larry Bolinger from the Principal position at Bay High School for the 2007-2008 and 2008-2009 school years subject to the provisions of Bay County School Board Policy 4.113 entitled Suspensions or Dismissal.

(Emphasis added).

This appeal involves the respective powers of superintendents and school boards, both of which hold certain authority with respect to the direction and control of all public schools within their district. More specifically, this court must determine if a school board is endowed with the statutory authority to reject a superintendent’s recommended transfer of a principal based on its belief that the principal’s transfer would negatively affect the school he would be leaving, without taking into consideration his suitability for the position to which he is recommended. Based on a plain reading of the statutory scheme authorizing school board actions regarding recommendations of a superintendent, this court determines that a school board lacks this specific authority.

Article IX of the Florida Constitution creates the office of both the school board and the school superintendent. This constitutional article gives us little insight in the division of powers between school boards and superintendents. Article IX, section 4(b) of the constitution creates school boards and provides that “[t]he school board shall operate, control and supervise all free public schools within the school district....” Article IX, section 5 creates the position of superintendent but does not describe the duties of the office.

The Legislature thus has broad powers to define the relationship between the school board and the superintendent. See Armistead v. State ex rel. Smyth, 41 So.2d 879 (Fla.1949) (recognizing that education powers conferred by the Florida Constitution are further refined and limited by statute); Harvey v. Bd. of Pub. Instruction, 101 Fla. 273, 133 So. 868 (1931) (same).

The statutory framework defines the general relationship between school boards and superintendents as well as the specific relationships concerning the power of supervision over proposed appointments made by the superintendent.

Within each school district, the Legislature has assigned specific duties to certain positions: (1) school boards “shall operate, control and supervise” the public schools in their district and may exercise any power except those prohibited by the constitution or general law; and (2) the superintendent is charged with “the administration and management of the schools and for the supervision of instruction in the district.” § 1001.32(2)-(3), Fla. Stat. (2006).

The general powers • and duties of district school boards are set forth in sections 1001.41 and 1001.42, Florida Statutes (2006). These include the powers to determine policies and programs for the efficient operation and general improvement of the district school system, to adopt rules, to prescribe standards and policies to provide each student the opportunity to receive a complete education program, to assign students to particular schools, to develop and execute plans for the operation of schools, and to provide for the transportation of students, as well as other duties generally relating to the operation of the school district. The school board is empowered to contract, sue, and be sued. Indeed, the school board is the exclusive contracting agent for the district school system. § 1001.41(4), Fla. Stat. (2006); Sch. Bd. v. Goodson, 335 So.2d 308, 310 (Fla. 1st DCA 1976).

Section 1001.42 also assigns school boards certain duties relating to school personnel. That statute specifically authorizes a school board to “[designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees ....”§ 1001.42(5)(a), Fla. Stat. (2006).

The district school superintendent is the secretary and executive officer of the district school board, and as such, is responsible for the administration and management of schools and for the supervision of instruction in the school district. §§ 1001.32(3), 1001.33, 1001.48, Fla. Stat. (2006). The general powers and duties of district superintendents are set forth in section 1001.49, Florida Statutes (2006). School superintendents are required to:

(1) General oversight. — Exercise general oversight over the district school system in order to determine problems and needs, and recommend improvements.
(2) Advise, counsel, and recommend to district school board. — Advise and counsel with the district school board on all educational matters and recommend to the district school board for action such matters as should be acted upon.
(3) Recommend policies. — Recommend . to the district school board for adoption such policies pertaining to the district school system as the district school superintendent may consider necessary for its more efficient operation.
(4) Recommend and execute rules.— Prepare and organize by subjects and submit to the district school board for adoption such rules to supplement those adopted by the State Board of Education as, in the district school superintendent’s opinion, will contribute to the efficient operation of any aspect of education in the district....
(5) Recommend and execute minimum standards. — From time to time prepare, organize by subject, and submit to the district school board for adoption such minimum standards relating to the operation of any phase of the district school system....

§ 1001.49(l)-(5), Fla. Stat. (2006).

A superintendent also must perform all tasks necessary to make sound recommendations, nominations, proposals, and reports to be acted upon by the school board, and to direct the work of school personnel, subject to the requirements of chapter 1012, Florida Statutes. § 1001.51, Fla. Stat. (2006).

The specific provisions relating to appointment of personnel are sections 1012.27 and 1012.22, Florida Statutes (2006). Section 1012.27, Florida Statutes (2006), sets forth the school superintendent’s duties and provides in pertinent part:

The district school superintendent is responsible for directing the work of the personnel, subject to the requirements of this chapter, and in addition the district school superintendent shall perform the following:
(1) Positions, Qualifications, and Nominations.—
(a) Recommend to the district school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district.
(b) Recommend minimum qualifications of personnel for these various positions, and nominate in writing persons to fill such positions.

(Emphasis added). Section 1012.22(1), Florida Statutes (2006), describes the authority of the school board to reject a superintendent’s nominations and to transfer recommendations and provides in pertinent part:

(a) Positions, qualifications, and appointments.—
1. The district school board shall act upon written recommendations submitted by the district school superintendent for positions to be filled, for minimum qualifications for personnel for the various positions, and for the persons nominated to fill such positions.
2. The district school board may reject for good cause any employee nominated.
(e) Transfer and promotion. — The district school board shall act on recommendations of the district school superintendent regarding transfer and promotion of any employee.

(Emphasis added). The superintendent is vested with the sole power to nominate employees for service with the school district. Illustrative of this point, both parties concede that, had the Superintendent simply left Bolinger’s name off his list of nominations for the 2006-2007 school year, Bolinger would have no legal cause to challenge his termination. In contrast, the school board’s authority to act on the nominations and transfer recommendations of a superintendent is limited. The explicit wording of section 1012.22, Florida Statutes (2006), authorizes the school board to act on a superintendent’s nomination and recommended transfer but limits this action to an acceptance or rejection on consideration of good cause. While the “good cause” provision does not expressly address transfer recommendations, it “is elementary and particularly so in this case that to transfer personnel an appointment is necessitated ...” Von Stephens v. Sch. Bd., 338 So.2d 890, 893 (Fla. 2d DCA 1976) (rejecting the School Board’s assertion that a transfer recommendation does not trigger the good cause standard for rejection) (emphasis added).

This statutory scheme envisions the school board as having the power to reject an appointment under limited circumstances but not to mandate that the superintendent keep a particular person in a particular position.

While the record amply evidences Bolinger was successfully performing his duties as principal of Bay High, the relevant statutes, as well as existing case law, dictate that the School Board could only reject Bolinger’s nomination for the position as principal at Jinks Middle School if questions existed regarding his ability to adequately perform in the position for which he was nominated. This necessarily excludes the School Board’s, as well as this court’s, consideration of Bolinger’s suitability for the position he wished to retain. Accordingly, we reverse the School Board’s final order rejecting the Superintendent’s recommended transfer.

The Superintendent further challenges the School Board’s inclusion of additional language to the ALJ’s recommended order requiring the Superintendent retain Bolinger until the close of the 2009 school year. Again, the School Board lacked legislative authority to require such an action. In School Board v. Goodson, 335 So.2d 308, 310 (Fla. 1st DCA 1976), this court failed to give effect to an employment agreement entered into between a principal and a teacher, noting:

The crucial issue is whether Principal Coley had the authority to enter into an agreement with appellee that would be binding upon the School Board. Under the statutory scheme devised by the legislature, the exclusive contracting agent for a District School System is the School Board. F.S. s 230.22. The Superintendent’s role in contract matters is to ‘confer with the principals and submit in writing to the School Board his nominations of all other persons to be appointed or reappointed as members of the instructional staff of the district school system.’ F.S. s 230.33(7)(d). He is also to ‘recommend to the school board terms for contracting with employees and prepare such contracts as are approved. Contracts for the members of the instructional staff are to be prepared, recommended, and executed as hereinbefore prescribed.’ F.S. s 230.33(7)©. Finally, we examine the power of a public school principal to enter into contractual agreements. Prior to June 26, 1974, principals had no specific statutory power relating to contracts. On that date, Chapter 74-315 (Laws of Florida, 1974), became effective and directed each principal to ‘submit recommendations to the superintendent regarding the appointment, assignment, promotion, transfer, and dismissal of all personnel assigned to the school.’ See F.S. (1975) Section 231.085(2).
A reading of the above-quoted statutes makes clear the legislative intent. The School Board is to have exclusive authority to form contracts with the instructional personnel of the school system. The Board may accept or reject the recommendations of the superintendent who, in turn, may accept or reject the recommendations of the school principals. Neither a superintendent nor a principal, acting individually or collectively, may enter into a contractual agreement with a teacher without the express approval of the School Board.

335 So.2d at 310 (Fla.1976). Based on the foregoing, the Superintendent correctly contends that, even if he had entered into an oral contract with Bolinger, this agreement can have no legal effect, as he was without the authority to enter into the contract.

While the superintendent is endowed with the authority to nominate an employee for a certain position, as previously discussed, it is the school board that retains the contracting authority for the school districts. §§ 1012.22(l)(d); 1012.27(l)(b), Fla. Stat. (2006). In addition, section 1012.33(l)(b), Florida Statutes (2006), further defines the school board’s powers to contract with principals and states:

A supervisor or school principal shall be properly certified and shall receive a written contract as specified in this section. Such contract may be for an initial period not to exceed 3 years, subject to annual review and renewal. The first 97 days of an initial contract is a probationary period. During the probationary period, the employee may be dismissed without cause or may resign -from the contractual position without breach of contract. After the first 3 years, the contract may be renewed for a period not to exceed 3 years and shall contain provisions for dismissal during the term of the contract only for just cause, in addition to such other provisions as are prescribed by the district school board.

(Emphasis added).

The relevant statutes expressly authorize only a school board to enter into contracts with principals based on the written recommendation of a superintendent. These contracts cannot initially extend past the three-year requirement. § 1012.33(1), Fla. Stat. (2006). Any renewals after the first three years must be authorized through the entry of a second contract. Id. Accordingly, based on the language of these statutes, the school board’s addition of the disputed language to the Final Order was well outside the confines of its legislative authority for the following reasons: (1) the written nomination by the Superintendent had already been accepted and acted on by the School Board when they executed a one-year employment contract with Bolinger, and the Superintendent never wrote a recommendation for Bolinger to remain for four years; and (2) while the added language establishing the four-year contract in the Final Order referenced the termination policies established for the Bay County School Board, the oral contract was for an unauthorized period of four years and was not written and executed between the School Board and Bolinger as required by statute.

It is clear, when the relevant statutes are read in pari materia, that a specific process exists for the hiring of principals. That process requires that a superintendent formally execute a written recommendation upon which a school board must act. If the recommendation is accepted, the school board must execute a written contract between themselves and the candidate. This process was followed, and Bolinger was awarded a one-year contract by the School Board, which he executed. The School Board cannot seek to redefine this legislatively imposed process through the enforcement of an alleged oral contract that was entered into in violation of its statutory authority. The statutes’s meaning is plain and is not for the School Board or this court to rewrite.

For the foregoing reasons, we reverse the final order of the School Board.

BARFIELD and HAWKES, JJ., concur.

      . While section 1001.32(2), Florida Statutes (2006), provides for home rule powers of the school district to operate, supervise, and control free public schools, it specifically recognizes these powers are limited by general law.

      . The Florida School Boards Association, Inc., in its amicus curiae brief, points out that increasing focus on the recently enacted school rating system requires school boards take a more active role in personnel decisions. While this may be the case, this is an argument for the Legislature, not this court.

      . While this court in Goodson considered the predecessor statutes to the current statutory scheme, the wording analyzed is sufficiently similar to the prior scheme,


text:
    Daryl SMITH, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-3606.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2008.
    Daryl Smith, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of habeas corpus under Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). Because the facts of this case are substantially similar to Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we grant the petition.

The Florida Parole Commission issued a warrant charging petitioner with violating the terms of parole when he failed to be at his approved residence and by violating curfew. Petitioner entered a plea of guilty and the hearing examiner recommended reinstatement to parole with a strong letter of reprimand. Nonetheless, the Parole Commission revoked petitioner’s parole. Petitioner asserts that the Parole Commission was bound by the hearing examiner’s recommendation that he be reinstated to parole. This argument has been rejected by this court in Lopez v. Florida Parole Commission, 943 So.2d 199 (Fla. 1st DCA 2006) (stating that, a hearing examiner’s recommendation is non-binding).

However, the record shows that neither the hearing examiner’s disposition recommendation nor the Parole Commission’s revocation order contained a finding that petitioner’s action constituted a willful violation of a substantial condition of parole. In Mathis, this court held that absent such a finding, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence and, because the circuit court did not apply the correct law, it could not have observed the essential requirements of the law. Accord Houck v. Fla. Parole Comm’n, 953 So.2d 692 (Fla. 1st DCA 2007).

Accordingly, we grant the petition, quash the circuit court’s order and remand for further proceedings.

PETITION GRANTED.

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


text:
    John MASON, Appellant, v. HOMES BY WHITAKER, INC., Appellee.
    No. 5D07-3297.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2008.
    Robert A. Lash, of Moody, Salzman & Lash, Gainesville, for Appellant.
    Garry D. Adel, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   PER CURIAM.

John Mason appeals the denial of his motion to transfer venue of his breach of contract case to consolidate that action with a lien foreclosure action involving the same parties and the same property. On the facts presented here, we agree that the trial court erred in refusing to transfer venue.

John Mason and Homes By Whitaker, Inc. (“Homes”) entered into a written contract for Homes to construct a new residence on Mason’s real property located in Clay County, Florida. The contract provided that “any action resulting from any breach ... be [brought] in Marion County, Florida.” During the course of construetion, a dispute arose and the parties terminated their business relationship.

Mason then filed a breach of contract action against Homes in Marion County, Florida. Homes answered Mason’s complaint, denying most of the allegations and asserting various defenses. Shortly thereafter, Homes recorded a claim of lien and filed a complaint to foreclose its lien in Clay County. Mason answered the Clay County complaint, and, subsequently, moved to transfer venue of the Marion County proceedings to Clay County so that the two cases could be consolidated. The court considered written submissions from the parties, but did not hold a hearing or receive any supporting affidavits or live testimony. The trial court then denied the motion to transfer venue, concluding that the contract’s venue provision controlled, and finding, without any record evidence, that a substantial portion of Homes’s business was conducted in Marion County and all of its material witnesses either resided or worked in Marion County. Mason now seeks review of that order.

As a general proposition, a mandatory forum selection clause contained in a contract should be enforced absent a showing that the clause is unreasonable or unjust. Walbridge Aldinger Co. v. Roberts Plumbing Contractors, Inc., 800 So.2d 285, 287 (Fla. 3d DCA 2001). However, a court is not bound to abide by such an agreement where, as here, there are compelling reasons not to enforce it. Interval Mktg. Assocs. v. Sea Club Assocs. IV, 468 So.2d 262, 263 (Fla. 2d DCA 1985). In the instant case, the parties agree that the lien foreclosure action can only be brought in Clay County, where the property is located. Transfer of the Marion County case to Clay County would avoid multiple lawsuits, minimize judicial labor, reduce the expenses to the parties and avoid inconsistent results. In both cases, the witnesses and the basic dispute are the same. Having separate proceedings makes no sense, despite the forum selection provision in the contract. Accordingly, we reverse the order denying Mason’s motion to change venue and remand this matter for further action consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.

      . The motion was filed pursuant to section 47.122, Florida Statutes (2006).


text:
    Marshall LANDEVERDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4016.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.

      Marshall Landeverde, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marshall Landeverde seeks review of an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Landeverde was convicted following a jury trial of first degree felony murder and two counts of burglary of a dwelling. His motion is based on “newly discovered evidence” in the form of a codefendant’s “statement.” Because the statement is not inherently incredible as a matter of law and would have been material to Landeverde’s “independent act” defense, an evidentiary hearing is required to determine whether it in fact constitutes newly discovered evidence. Barrow v. State, 940 So.2d 1235 (Fla. 5th DCA 2006); Brantley v. State, 912 So.2d 342 (Fla. 3d DCA 2005).

GROSS, TAYLOR and MAY, JJ., concur.


author: STONE, J.

text:
    Debbie KARNBACH, Appellant, v. Gary KARNBACH, Appellee.
    No. 4D07-1052.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.
    Steven L. Winig of Steven L. Winig, P.A., West Palm Beach, for appellant.

      Anne Lynch of Anne Lynch, PA., West Palm Beach, for appellee.
   STONE, J.

The former wife appeals an order enforcing a judgment as to child support. The judgment incorporated a settlement agreement including child support for the two minor children.

Under the agreement, the former husband was required to pay child support of $620 per month. The agreement provided that it would continue until “each child reaches nineteen (19) years of age, graduates high school, dies or becomes emancipated.” In 1999, the parties modified the agreement to give the former husband nearly equal timesharing. They also reduced the former husband’s child support obligations.

The older child obtained his GED on November 29, 2005, but continued to reside with the former wife from May to August 2006, when he lived with the former husband.

The court entered an order granting the former husband’s motion to enforce the settlement agreement and to determine child support based on a magistrate’s finding that the settlement agreement provided for “allocation ” of support between the two children. The magistrate found that upon the.older child’s graduation, the former husband’s child support obligation would be terminated, retroactive to the day the older child received his GED. The former wife contends that the award was “unallocated” and that she is, therefore, entitled to a re-calculation of support for the remaining child.

Although we conclude that the trial court correctly recognized the support as “allocated,” we reverse for re-calculation of support for the remaining child.

In Rodgers v. Reed, 931 So.2d 236 (Fla. 5th DCA 2006), the final judgment provided “that the party obligated to pay child support shall pay to the party entitled to receive the sum of $212.00 per week for the support of the minor child(ren).” It named the parties’ three children and their birthdates. It further provided:

Child support payments shall continue until the death of said minor child, the valid marriage of the child, the lawful entry of the child into the military services of the United States for a continuous period of time of one year or more, or until attainment of said minor child’s 18th birthday, unless said child is at the time enrolled in high school on a full time basis, and living at home, in which case support shall continue until the child graduates high school.

The Rodgers dispute was over a claim for arrearages. The trial court ruled it was a lump sum amount and ordered the former husband to pay the full amount. On appeal, the Fifth District reversed, relying on Florida Department of Revenue ex rel. McClung v. McClung, 760 So.2d 244 (Fla. 3d DCA 2000). In McClung, the child support agreement had provided that the husband would pay child support of $400 per month for the children of the parties, but also provided that the support rights of each child terminated upon certain occurrences. The court found that the order was for a “per child” award. Applying that reasoning from McClung to Rodgers, the Fifth District concluded that there was a “per child” order, not a lump sum award.

Applying Rodgers and McClung to this case, we note that the language in McClung was exactly the same as the language here, stating that “the support rights of each child shall terminate ...” upon the happening of specific events and that the parties intended for child support to be allocated between each child. Nevertheless, in Lehman v. Department of Revenue, 946 So.2d 1116 (Fla. 4th DCA 2006), although we found the language in that case analogous to that in McClung and Rodgers, we concluded that an automatic proportional reduction was not mandated. Rather, we concluded that, where the language used in the agreement “is not clear as to the exact amount the child support is to be reduced,” a hearing is required to fix child support for the remaining children in accordance with chapter 61.10. Id. at 1119. In Lehman, we also noted that in order to achieve an automatic reduction, the agreement must “specify language such as ‘X dollars per month per child, such amount to be discontinued as each child is emancipated.’ ” Id. In this case, there is no such specificity in the agreement.

Therefore, applying Lehman, and notwithstanding the use of the term “each child” indicating allocation in the agreement, we reverse and remand for a hearing as to the amount of child support. We also certify conflict with McClung as to whether the reduction is to be proportional.

As to all other issues raised, we find no reversible error or abuse of discretion.

MAY, J., and TUTER, JACK BEN, JR., Associate Judge, concur.