text:
    Bergita EVANS, Appellant, v. COUNTY OF ALACHUA, Appellee.
    No. 1D05-4503.
    District Court of Appeal of Florida, First District.
    July 31, 2006.
    Rehearing Denied Sept. 12, 2006.
    Bill Salmon, Gainesville, and Robert Augustus Harper, Jr., Tallahassee, for Appellant. '
    Linda G. Bond of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Bergita Evans appeals from an order of the Commission on Human Relations dismissing her claim of handicap discrimination against the Alachua County Sheriffs Office, contending that the Commission erred by ruling she was not qualified to perform the essential functions of her position as a detention officer. Bécause there is competent substantial evidence supporting the order, we affirm.

The evidence before the administrative law judge (ALJ) showed that the Alachua County Sheriffs Office (ACSO) assumed operation of the Alachua County Jail in January 1998, where Evans had worked as a detention officer since 1982. The job descriptions for detention officers require, among other things, that they process and transport inmates, maintain physical custody and control of inmates, ensure the safety of staff and inmates, make periodic tours of the jail, etc. In order to perform these tasks, the officers were required to meet or exceed applicable standards of physical agility. Evans acknowledged that officers working inside the facility were expected to respond as quickly as possible to situations involving the safety of inmates and staff by running or briskly walking to the scene.

ACSO notified employees in November 2000 that they would be required to pass a physical agility test by July 1, 2003, at which time the test would become a mandatory job requirement for all detention officers. The test was designed to replicate the kinds of duties required of detention officers, and it mandated completion of nine assignments within 5:02 minutes, which included crawling, weapons firing, stair climbing, and dragging a 150-pound dummy, with sprints between each of the tasks. Evans’s treating physician, in a letter dated March, 6, 2002, advised that her morbid obesity, osteoarthritis and hypertension would prevent Evans from taking the agility test.

Evans injured her knee in an automobile accident on April 12, 2002, and ACSO placed her on temporary restricted duty and in November 2002, assigned her to the lobby and the command center. Although these areas are normally staffed by full-duty detention officers, ACSO accommodated Evans’s injury by directing that she “avoid physical confrontations, except when necessary to protect yourself or another person from imminent death or serious bodily injury.” A physician performed an independent medical examination of Evans in June 2003, and reported that “[h]er extreme obesity and advanced degenerative arthritis in the knee will definitely limit her long term ability for weight bearing exercise and physical knee stress.” The doctor recommended that she undergo a functional capacity evaluation to determine her ability to perform her job, but her chiropractor submitted a letter to ACSO on July 1, 2008, stating that Evans could not run and thus was unable to perform the physical agility test, and recommended that any assessment of her physical abilities be postponed until October “to allow for a more complete resolution of her symptoms.”

ACSO terminated Evans’s position effective August 7, 2003, due to her inability to carry out her duties in a manner that safeguarded the safety and welfare of the inmate and correctional-officer population.

In order to prove discrimination on the basis of disability, Evans was required to show (1) she is handicapped under the Florida Civil Rights Act; (2) she was otherwise qualified for her job, with or without reasonable accommodations; and (3) she was terminated solely because of her handicap. See Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220 (11th Cir.1999). The ALJ concluded that although Evans did establish that her physical condition constituted a handicap, because the ACSO viewed her as disabled from November 2002 through August 7, 2003, the date of termination, she failed to show that she was qualified for her job, in that she could not satisfy the physical agility test because she was unable to run, and was thus disabled from performing at least two of the essential functions of her job that were incorporated into the test — rapid response and controlling prisoners.

In her first issue on appeal, Evans does not point out any specific error by the Commission or the ALJ, but instead appears to argue that because she had performed her job satisfactorily before ACSO instituted the minimum physical requirements, she was able to perform the essential functions required of her position, and that running was not an essential function. To the contrary, there was competent substantial evidence that the physical agility test measured the ability of detention officers to perform tasks essential to the job. Evans never submitted any documentation lifting her physician’s restrictions of March 6, 2002, nor does she claim her physical abilities ever improved. Although ACSO had temporarily accommodated her disability, it was not required to redesign the work of a detention officer in a manner that would eliminate essential functions of the position. See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir.1997). As a result, Evans failed to show she was qualified for the position.

In her second issue, Evans claims there was no competent substantial evidence to support three of the ALJ’s findings in the recommended order. The findings in paragraphs 21 and 89 were not essential to the ALJ’s conclusion, and the finding in paragraph 90 was supported by the evidence.

AFFIRMED.

ERVIN, BENTON, and BROWNING, JJ., concur.

      . An “individual with handicaps" is defined as a person with a physical or mental impairment that substantially limits one or more of the person's major life activities, such as " 'caring for oneself, breathing, learning, and working.' ” Brand v. Fla. Power Corp., 633 So.2d 504, 510 n. 10 (Fla. 1st DCA 1994) (adopting definition from federal Rehabilitation Act).


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    DELTA FIRE SPRINKLERS, INC., Appellant, v. ONEBEACON INSURANCE COMPANY, etc., et al., Appellee.
    No. 5D04-3349.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Rehearing Denied Sept. 20, 2006.
    See also 898 So.2d 113.

      Rosemary Hanna Hayes and Tina Cara-ballo, of Hayes & Caraballo, PL, Orlando, for Appellant.
    William L. Grant of Shutts & Bowen LLP, Orlando, for Appellee.
   MONACO, J.

Delta Fire Sprinklers appeals the final summary judgment dismissing Delta Fire’s actions against OneBeacon Insurance Company in two consolidated cases. We conclude, as did the trial court, that the construction payment bond issued by OneBeacon was a statutory bond that comported with section 713.23, Florida Statutes (2001), and that because Delta Fire failed to provide the required statutory notice of nonpayment, it could not recover under the bond.

This case is one of several that grew out of the construction of the Lakeview Apartments in Seminole County. Delta Fire installed the fire protection system for the apartment complex, but alleges that it was not fully paid for its work. It originally brought a claim for breach of contract against the general contractor and a claim pursuant to section 713.23, Florida Statutes, against OneBeacon under a payment bond issued by that company. It later amended its complaint by alleging an additional count against OneBeacon “in the alternative,” asserting that the bond provided by OneBeacon was a common law, rather than statutory, payment bond. A separate suit was filed against the owner and OneBeacon seeking recovery under a construction lien theory against the owner and recovery on a common law bond against OneBeacon. Various fraud counts against the owner, OneBeacon, and the construction lender were later added. The two cases were eventually consolidated for discovery and trial.

After the pleadings had closed OneBea-con filed a- motion for summary judgment with respect to the claims against it in each suit. The discovery and documents filed in support of the motion reflected that the general contractor had performed some clearance work on the project prior to the filing of the notice of commencement, but that Delta Fire performed no work until about four months after the OneBeacon bond was recorded and provided to them. Delta Fire sent its notice to contractor, as required by section 713.23(l)(c), Florida Statutes, about three months after the bond was recorded. In addition, an affidavit of a corporate officer of OneBeacon filed to support the motion for summary judgment indicated that One-Beacon or its predecessors had been licensed in Florida since 1957. A certificate of insurance reflecting that fact was attached to the affidavit.

The discovery completed prior to the filing of the motion for summary judgment also reflected that on November 15, 2000, Delta Fire sent the contractor its notarized application for payment Number 14, which indicated that Delta had completed all of its work on the project. More specifically, each column in the application reflected that 100% of the work for which Delta Fire was engaged had been completed before submission of the application. By a sworn document dated December 8, 2000, Delta Fire submitted its final pay application (application Number 15), seeking payment of its contract retainage. As with the previous draw request, application Number 15 showed no additional work on the project, and 100% of the work completed.

Section 713.23(l)(d), Florida Statutes, required Delta Fire “as a condition precedent to recovery under the bond” to serve a written notice of nonpayment on the contractor and surety not later than 90 days after the “final furnishing of labor, services or materials.” The OneBeaeon bond itself also required 90 days’ notice of nonpayment. Delta Fire served its notice of nonpayment on March 12, 2001, or 117 days after the date of application Number 14, and 94 days after the date of application Number 15.

In order to controvert the assertion by OneBeaeon of late notice, Delta Fire presented an affidavit of its president indicating that on the day of the final inspection for the project Delta Fire had to attend the inspection with the building official and activate the fire protection system in each building in order to pretest the system and demonstrate that it was working properly. In addition, there is some indication that Delta Fire had to complete some punch list and warranty work at the same time. By Delta Fire’s reckoning, therefore, its last performance of work was not until January of 2001, the date of the final inspection, which, of course, would have made its notice of nonpayment timely. In addition, Delta Fire argued that the bond supplied was a common law bond, rather than a statutory bond, and that the 90-day statutory notice provision did not apply to it.

The trial court concluded in granting summary judgment in favor of One-Beacon, however, that the bond provided by OneBeaeon was a statutory payment bond, and that Delta Fire’s notice of nonpayment had not been served in a timely manner. Delta Fire appeals the summary judgment. We affirm.

The issues raised in this appeal concerning whether the bond issued by OneBea-con was a statutory or common law bond were considered by this court in Professional Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 940 So.2d 444, 2006 WL 1931199 (Fla. 5th DCA July 12, 2006), a case involving the identical project and very similar claims. Delta Fire, therefore, finds itself in the same posture as Professional Plastering, and we see no reason to vary our determination made in the earlier case that the bond is a statutory bond governed by the requirements of section 713.23. See also Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306 (Fla. 2d DCA 2005). Accordingly, we will address only the issue of whether the notice of nonpayment was timely served by Delta Fire under the statutory bond.

The standard of review governing the ruling of a trial court on a motion for summary judgment posing a pure question of law is de novo. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1084 (Fla.2005); Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In order to determine the propriety of a summary judgment, a reviewing court should determine whether there is any genuine issue regarding any material fact and whether the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The party seeking summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact. On appeal, a reviewing court should consider the evidence contained' in the record, including any supporting affidavits, in the light most favorable to the nonmoving party. If the slightest doubt exists, of course, summary judgment must be reversed. See Mivan (Florida), Inc. v. Metric Constructors, Inc., 857 So.2d 901, 902 (Fla. 5th DCA 2003); Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001); see also Horizons Rehab., Inc. v. Health Care and Ret. Corp., 810 So.2d 958 (Fla. 5th DCA), review denied, 832 So.2d 104 (Fla.2002).

A construction lien is “purely a creature of the statute,” and because it is of this nature, persons seeking its benefits must strictly comply with the requirements of the construction lien law. See Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 281 (Fla.1992); Stresscon v. Madiedo, 581 So.2d 158, 159 (Fla.1991); Johnson v. Aqua Pool Co., Inc., 725 So.2d 458, 459 (Fla. 2d DCA 1999); Hanley v. Kajak, 661 So.2d 1248 (Fla. 4th DCA 1995). Thus, for example, section 713.08(5), Florida Statutes, requires a claim of lien to be recorded at any time during the progress of work or thereafter, but not later than 90 days after the final furnishing of the labor or services or materials by the lienor, and section 713.23(l)(d) requires a party seeking recovery under a payment bond to serve a written notice of nonpayment on the contractor and surety not later than 90 days after the “final furnishing of labor, services or materials.” The issue we are faced with in the present controversy, which involves a provider of fixtures or equipment, as well as the installation of the same, is whether services by the lienor in the nature of testing for the final inspection, warranty work and punch list work associated with the installed fixtures or equipment extends the time for asserting a statutory payment bond claim under the construction lien law. We hold that it does not.

We have earlier dealt with this issue in a number of permutations. In Viking Builders, Inc. v. Felices, 391 So.2d 302 (Fla. 5th DCA 1980), for example, we concluded that the performance of warranty work is not considered the final furnishing of labor or materials for construction lien purposes. In that case a contractor returned to a job site at the request of the owners to install weep holes and to have a thermostat moved. We said there that:

These items were also to correct or ratify conditions or to eliminate problems resulting from work under the original contract. In addition, as compared to the whole contract work, they were too remote in time and too unsubstantial and too trivial in quantity to extend the time for filing.

Viking Builders, 391 So.2d at 303.

The rationale for our determination was that work done in actual fulfillment of a contract is contemplated by the contract and, accordingly, extends the time for filing, because the contract is not complete until the work is done. Remedial work in the nature of correction or repair, on the other hand, does not extend the time for filing the claim of lien since the contract is already complete, and any additional work performed is merely incidental to the executed contract. See Herpel, Inc. v. Straub Capital Corp., 682 So.2d 661, 662 (Fla. 4th DCA 1996).

Similarly, in Federal Ins. Co. v. Exel of Orlando, Inc., 685 So.2d 896 (Fla. 5th DCA 1996), we applied the “substantial-trivial” test in determining that punch list work did not extend the time to file a lien foreclosure complaint under the lien law. We said in that case that “[w]hen compared to the work done on the whole contract, punch list work is trivial and unsubstantial.” Id. at 898. See also Robert M. Swedroe, Architect/Planners, A.I.A., P.A. v. First Am. Inv. Corp., 565 So.2d 349 (Fla. 1st DCA 1990).

The Fourth District Court under similar circumstances held that the test to be applied in determining whether particular work constitutes a final furnishing under section 713.08(5), is'whether thé work was done in good faith, within a reasonable time, and in pursuance of the terms of the contract, and whether it was necessary to a “finished job.” See Michnal v. Palm Coast Dev., Inc., 842 So.2d 927 (Fla. 4th DCA 2003), review denied, 882 So.2d 385 (Fla.2004). As the Michnal court noted pointedly, there are “no steadfast rules to apply in making this determination.” See Harvesters Group, Inc. v. Westinghouse Elec. Corp., 527 So.2d 257, 259 (Fla. 3d DCA), review denied, 536 So.2d 246 (Fla.1988).

In Leader Mortgage Co. v. Rickards Elec. Serv., Inc., 348 So.2d 1202 (Fla. 4th DCA 1977), Rickards Electric Service had entered into a direct contract with an owner to provide electrical work on a building. Trouble developed and Rickards was not paid in full. Rickards sought foreclosure of a statutory mechanics lien in addition to claiming an alleged breach of an oral contract. When Rickards left the job for the last time, it submitted a request for final payment for the total outstanding balance, claiming the entire balance was due because the project had been completed. In addition, Rickards recorded a claim of lien for the identical balance. The appellant argued that Rickards was barred from enforcing its construction lien because it failed to submit a contractor’s affidavit. In order to explain its failure to serve a contractor’s affidavit, Rickards then maintained that the work undertaken had never been actually completed, so no final payment ever became due. The court noted the inconsistency of the positions argued by Rickards, and said:

Under the circumstances, we find it an unacceptable paradox for the appellee to argue that the final payment is due and payable, cash wise, but that it need not comply with the requirements of the statute because the final payment is not due, work wise. Such is a classic example of having your cake and eating it too.

Rickards Electric, 348 So.2d at 1204.

In the instant case, the only evidence of work performed after November of 2000, seems to be a final inspection or “walk through,” and the relatively minor tasks associated with it. While the completion of punch list items, and a final inspection or testing of the sprinkler system was important for the purpose of allowing the owner to acquire a certificate of occupancy, we conclude that these minor tasks were of the type described in Viking Builders, Federal Insurance, and Michnal, and were simply insufficient to extend the 90-day period for perfecting a bond claim under the statutory bond issued by One-Beacon, particularly where Delta Fire had months earlier submitted pay requisitions for a fully completed job. As the trial court certainly recognized, and as we confirm, Delta Fire could not proclaim that it fully completed its work for payment purposes, but not for bond claim purposes. No matter whether we apply the trivial substantial test articulated and adopted by this court in Federal Insurance, or the test applied by our sister court in Michnal, the result is the same. The time for serving the notice of nonpayment was not extended.

AFFIRMED.

THOMPSON and EVANDER, JJ., concur.


author: PER CURIAM.

text:
    Walter HAYWARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2114.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Rehearing Denied Sept. 15, 2006.
    Walter Hayward, Bushnell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Medina v. Dugger, 586 So.2d 317 (Fla.1991) (holding that using a different argument in postconviction proceedings in an attempt to relitigate a previously decided issue is improper).

PLEUS, C.J., PALMER and ORFINGER, JJ., concur.


text:
    Harold B. PATE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3029.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Rehearing Denied Sept. 14, 2006.
    Harold B. Pate, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal is untimely, we dismiss this appeal for lack of jurisdiction. Any pending motions are denied as moot.

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


text:
    Noelmis CARTAYA, Appellant, v. COASTLINE DISTRIBUTION and Gallagher Bassett Serv. Inc., Appellees.
    No. 1D05-5128.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Rehearing Denied Sept. 15, 2006.

      Jose J. Larraz, Jr., of Jose J. Larraz, P.A., Miami, for Appellant.
    Eduardo E. Neret of Law Offices of Eduardo E. Neret, P.A., Miami, for Appel-lees.
   PER CURIAM.

The claimant seeks review of an order of the Judge of Compensation Claims (JCC) denying his “Motion to Enforce Settlement Agreement,” which sought construction and enforcement of the parties’ washout settlement agreement. We agree that the JCC erred in concluding that she was without jurisdiction to construe the agreement. See Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004). Nonetheless, we affirm the denial of the motion because the claimant is not entitled to the relief sought.

The intent of the parties governs in contract construction, and that intent is to be ascertained from the agreement itself where its terms are clear and unambiguous. See Dune I, Inc. v. Palms N. Owners Ass’n, Inc., 605 So.2d 903, 905 (Fla. 1st DCA 1992); Bingemann v. Bingemann, 551 So.2d 1228, 1231-32 (Fla. 1st DCA 1989). The initial determination of whether a contract is ambiguous presents a question of law. Strama v. Union Fid. Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001). Absent any ambiguity, the construction of the contract also presents a question of law. Travelers Indem. Co. of Ill. v. Hutson, 847 So.2d 1113, 1114 (Fla. 1st DCA 2003). In this case, the terms of the settlement agreement unequivocally provide that, (1) the settlement payment was in full settlement of any and all claims; (2) the employer and carrier (e/c) would be released from liability for past and future medical benefits upon payment of the settlement amount; and (3) the e/c would not be liable for the payment of any medical bills upon execution of the agreement. Based upon the unambiguous terms of the agreement, the e/c’s liability was completely extinguished without any limitation. Therefore, the claimant is not entitled to payment of the medical bills that were outstanding at the time the agreement was executed.

Accordingly, we affirm the order of the JCC.

AFFIRMED.

ALLEN, DAVIS, and POLSTON, JJ., concur.


text:
    Herbert N. PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1185.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Rehearing Denied Sept. 18, 2006.
    Herbert N. Price, Okeechobee, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Herbert N. Price appeals the trial court’s denial of his petition for writ of habeas corpus. Price was convicted of sexual battery on a physically incapacitated person and sentenced to prison in March 2003. He voluntarily dismissed his appeal. In March 2005, Price filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of trial counsel. The trial court held an evidentia-ry hearing on six of Price’s claims, summarily denying only one. Following the evidentiary hearing, the trial court denied relief. Price’s appeal of that order is pending in this Court. See Price v. State, No. 5D06-890 (Fla. 5th DCA filed Mar. 16, 2006).

Price then filed a petition for writ of habeas corpus with the trial court, alleging that the information charging him with the crime was fatally defective as it failed to allege an essential element of the offense. The trial court correctly held that a habeas corpus petition cannot be used to litigate matters that could have and should have been raised on direct appeal. This includes the legal sufficiency of the information. See Moore v. State, 817 So.2d 1072 (Fla. 5th DCA 2002).

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Anthony CARACCIOLO, Petitioner, v. James McDONOUGH, Secretary, Department of Corrections of Florida, Respondent.
    No. 1D06-3381.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2006.
    Rehearing Denied Sept. 12, 2006.
    Anthony Caracciolo, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Higueras v. Crosby, 924 So.2d 18 (Fla. 1st DCA 2005).

DAVIS, POLSTON, and HAWKES, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. TARGET CORPORATION f/k/a Target Corporation d/b/a Target Stores, Inc., f/k/a Dayton Hudson Corporation, a Minnesota corporation, et al., Appellees.
    No. 4D05-2308.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Rehearing Denied Oct. 16, 2006.

      Pamela S. Leslie, General Counsel and Gregory G. Costas, Assistant General Counsel, Tallahassee, for appellant.
    Marie Tomassi, Robert H. Buesing and Stephen Tabano of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for appellees.
   MAY, J.

Location, location, location — so what’s the property worth? The Department of Transportation [DOT] appeals a business damage award in an eminent domain proceeding. The property owner, Target Corporation, filed a cross-appeal. Each side claims error in evidentiary rulings concerning the value of the property. We reverse.

In the late 1970s, the DOT publicly recorded preliminary studies for long-range plans to widen Southern Boulevard, including an overpass, where it intersects State Road 7. In 1991, Target purchased the land on the northeast corner of Southern Boulevard and State Road 7.

Prior to purchasing the land, Target undertook due diligence in researching appropriate locations in the Village of Royal Palm Beach to build a store. According to testimony, Target spent one to two years, and $100,000 to $200,000 researching new locations. The research included government requirements, traffic studies, site access, and negotiations for shared utilities, parking, and common architectural theme. There was no evidence that Target discovered DOT’s recorded plans for widening Southern Boulevard prior to making the purchase. Target’s planning model provides that each store will operate for sixty-two years, with improvements undertaken each decade.

In September 1991, Target submitted a site plan to the Village for approval. The overall development was to take place in phases. The first phase included the construction of a Target store and an immediately adjacent garden center, all of the parking area for the entire property (except for the undeveloped future retail shops), and all of the appropriate drainage, utility, and roadway improvements. The site plan included a section of land nearby the Target store designated as future retail shops, consisting of 10,600 square feet, and three out-parcels for future businesses.

The Village approved the site plan, but required further submission and approval of any future development beyond the first phase. The submitted site plan did not designate a relocation of the garden center or expansion of the Target building. In 1992, Target removed the land designated for future retail shops from the real estate market and retained the property for its own future use. Target sold one out-parcel to Applebee’s International, Inc. The Village approved the plans for construction of the restaurant.

In the early 1990s, DOT reconsidered its recorded proposed plans for widening Southern Boulevard, including an overpass, and held public hearings on the matter. In 1995, the Village sent Target a letter seeking support of DOT’s plans to widen Southern Boulevard; the Village did not support the proposed overpass. Target maintains this letter was the first time it became aware of DOT’s plans for Southern Boulevard. Because the proposed widening of the road would result in a taking of virtually all of the two remaining out parcels, Target took the land off the real estate market. Funding for widening Southern Boulevard was authorized in 1997-98. In 1999, the study of DOT’s widening project of Southern Boulevard was compiled into a data book.

In 2002, Wal-Mart, Target’s biggest competitor built a superstore less than a mile away. Target’s sales leveled in 2002 and 2003, but experienced a 12% increase between 2003 and 2004.

At the end of Target’s first ten years of operation, it did not renovate or expand its physical plant either because it felt hindered by DOT’s road plans or because as a business strategy it planned to build a superstore in a different location. In 2001, Target decided to abandon the location; it relocated to a newly built superstore in October 2004. Target sold the subject property for $6,000,000 in December 2004.

In 2002, DOT filed its petition for eminent domain of three parcels consisting of the actual land being taken that was owned by Target, a permanent easement along the taken land, and a temporary construction easement. The trial court entered an order for the taking in January 2003. The real estate and business damages were tried to a jury in February 2005.

Prior to trial, the DOT moved to exclude evidence of Target’s plan to relocate its garden center to the vacant land designated on the site plan for future retail shops and to build a 10,600 square foot expansion of its existing store where the garden center had been. The approved 1991 site plan did not include that option, Target had not submitted plans for this expansion, and no monies had been expended toward the plan. The court denied the motion.

At trial, Target presented four calculations on the value of its business damages. Target requested $2.5 million for business damages, a value between the highest and lowest of the four calculations. The DOT calculated Target’s business damages at $116,200, which related to the expected negative impact on parking spaces during the period it would take to cure the loss. The DOT also argued that Target did not suffer any business loss because it moved to the new location.

Target claimed $9,465,562 in real estate damages. The DOT argued that real estate damages were limited to $2,433,225.

The jury awarded Target $2.5 million in business damages and $2,433,225 in real estate damages. From the judgment, the DOT appeals the award of business damages. Target’s cross appeal focuses on the real estate damage award. Both parties argue that errors in evidentiary rulings warrant a reversal.

The ultimate objective of condemnation proceedings is the determination of just compensation to the property owner. State Road Dep’t v. Chicone, 158 So.2d 753, 757 (Fla.1963). When the taking is only part of a piece of real property on which there is an established business for a certain duration, the owner is entitled to just compensation for “the probable damages to such business which the denial of the use of the property so taken may reasonably cause.” § 73.071(3)(b), Fla. Stat. (2002).

It is appropriate to show the uses to which the property was or might reasonably be applied, and the damages, if any, to adjacent lands. Nevertheless, the value must be established in the light of these elements as of the time of the lawful appropriation. It is not proper to speculate on what could be done to the land or what might be done to it to make it more valuable and then solicit evidence on what it might be worth with such speculative improvements at some unannounced future date.

Yoder v. Sarasota County, 81 So.2d 219, 221 (Fla.1955), overruled in part, State Road Dep’t v. Chicone, 158 So.2d 753, 758 (Fla.1963). In determining a reasonably probable loss as opposed to a speculative loss, the property owner must show affirmative steps undertaken to make future plans a reality. See, e.g., id.; City Nat’l. Bank of Fla. v. Dade County, 715 So.2d 350 (Fla. 3d DCA 1998) review denied, 727 So.2d 904 (Fla.1998); Stack v. State Road Dep’t, 237 So.2d 240 (Fla. 1st DCA 1970).

The DOT argues the trial court erred in allowing Target to introduce evidence concerning its plan for future expansion. It maintains that City National Bank controls this issue. It suggests the lack of an approved site plan and no affirmative action on Target’s part to effectuate an expansion made this element of business damages too speculative for consideration. Target responds that the approved site plan from 1991 and its corporate history for expanding its stores eliminates any concern over speculation. We do not find City National Bank dictates the outcome, but we do find it instructive.

In City National Bank, the property owner owned vacant land across the street from Pro Player Stadium. It claimed the trial court erred when it excluded a conceptual site plan it intended to introduce to support his claim for severance damages. The site plan “called for a hotel, a retail strip shopping center, and four outpar-cels.” City Nat’l Bank, 715 So.2d at 351. The county subsequently rezoned the land in conformity to the uses designated on the site plan; however, the owner never submitted the site plan to the authorities for approval. At the time of the taking, the undeveloped land was on the market for sale.

At trial, the owner intended to argue that he would have proceeded with the site plan if there had been no condemnation order. The county filed a motion in limine to exclude the conceptual site plan, and argued it was too speculative. The trial court granted the motion. The Third District affirmed, finding the unapproved site plan and lack of any affirmative effort toward fulfilling the plan was too speculative in nature for the jury’s consideration.

Here, Target introduced evidence that phase one of a multi-phased site plan had been approved by the Village. The site plan included future retail stores and three out-parcels, but it did not include the relocation of Target’s garden center to the vacant land designated on the original site plan for future retail shops nor the 10,600 square foot expansion of the existing store where the garden center had been. While Target introduced evidence of its practice in developing its store locations, it failed to prove any affirmative steps taken in time, money, or energy towards the proposed expansion of this store.

We do not think the lack of approval by the Village of the other phases of the original site plan alone precludes Target from introducing that plan and arguing that it had plans for future building on this location. But, it does not give Target an unlimited license to conjure up other plans, which were neither included in the submitted site plan nor for which any affirmative steps were taken. We therefore hold that the trial court erred when it denied the DOT’s motion in limine to exclude Target’s evidence that it proposed to relocate its garden center to the spot allocated for future retail shops and to expand its building where the garden center had been. This does not prevent Target from introducing the original site plan which included future plans for expansion upon retrial.

On its cross appeal, Target argues the trial court abused its discretion in permitting the testimony of rebuttal witnesses, who testified to the history of the Southern Boulevard expansion and the public’s knowledge of the plan. Target suggests the testimony negatively impacted the jury’s award for real estate damages.

The trial court’s discretion in admitting evidence is limited “by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). Any evidence that tends to “prove or disprove a material fact” is logically relevant evidence. § 90.401, Fla. Stat. (2004). Because we find, as did the trial court, that this testimony was relevant to Target’s business damages and Target opened the door for this testimony by claiming due diligence in selecting the site, we find no error in its admission.

We therefore reverse the business damages award and remand the case to the trial court for a new trial. The real estate damages award addressed in Target’s cross-appeal is affirmed. The new trial is restricted to business damages. See Causeway Vista, Inc. v. State, Dep’t of Transp., 918 So.2d 352, 355-56 (Fla. 2d DCA 2005) (new trial restricted to severance damages because there was no error as to the other damage issues).

Reversed and Remanded.

STEVENSON, C.J., and GUNTHER, J., concur.


text:
    Willard G. BROWN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0333.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2006.
    Rehearing Denied Sept. 20, 2006.
    Willard G. Brown, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Denied. See Mayes v. Moore, 827 So.2d 967, 970-72 (Fla.2002); Lincoln v. Fla. Parole Comm’n, 643 So.2d 668, 669-72 (Fla. 1st DCA 1994).

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Ida Jerry STANLEY a/k/a Ida J. Stanley, et al., Appellant, v. WELLS FARGO BANK, et al., Appellee.
    No. 5D05-4224.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    Marilyn J. Adler and Stephen J. Braun, of Legal Advocacy Center of Central Florida, Inc., Ocala, for Appellant.
    Forrest G. McSurdy, of Stern & McSur-dy, P.A., Law Offices of David J. Stern, P.A., Plantation, for Appellee.
   PER CURIAM.

Ida J. Stanley appeals the summary final judgment of foreclosure entered in favor of Wells Fargo Bank. On appeal, Ms. Stanley contends that the pleadings and evidence of record failed to substantiate Wells Fargo’s ownership of the note and mortgage that are the subject of the foreclosure proceedings. We disagree for several reasons.

First, Wells Fargo filed the original note and mortgage with the court, which strongly suggests its ownership. Secondly, its affidavits averred to its ownership of the note and mortgage. Finally, the record contains an assignment of the note and mortgage to Norwest Bank Minnesota, N.A., and printouts from the comptroller’s office, showing various name changes undergone by Norwest so that it is now known as Wells Fargo Bank.

We acknowledge that the information from the comptroller was not in affidavit form. However, the record contains no transcript of the hearing. As a result, we do not know if any objection was made to the court’s consideration of that information. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). We assume, therefore, that the trial court properly considered it.

Finding no error, we affirm the summary judgment of foreclosure.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


author: STRINGER, Judge.

text:
    In the Interest of K.B. and M.B., children. M.B., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-4612.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2006.
    Rehearing Denied Sept. 21, 2006.

      Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Leonard E. Clark, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

M.B., the Father, challenges the trial court’s order declaring his two children, K.B. and M.B., dependent as to him. Because the Department did not present any evidence that the Father poses a present threat of harm to the children, we reverse.

The facts at the adjudicatory hearing established that the Father and Mother began a relationship in 1996. K.B. and M.B. were the result of that relationship. On July 23, 2004, the Father and Mother got into an altercation after the Father learned that the Mother was cheating on him. During this altercation, the Father knocked the Mother down several times, punched her in the chest, and kicked at her legs. K.B., who was five years old at the time, and M.B., who was three years old, were in the room and witnessed these events. During the altercation, the telephone rang and the Father answered it. While the Father was on the phone, the Mother grabbed the children and fled the home.

At the adjudicatory hearing, the Mother testified that the July 2004 incident was the only time the Father had ever hit her during their eight-year relationship, and he had not touched her since. Because of this altercation and the information that started it, the Father and Mother have ended their relationship and are currently both involved in relationships with others. No evidence was presented at the adjudicatory hearing that the Father had ever engaged in any inappropriate behavior toward the children, and the record shows that the Father regularly attended his supervised visitation with them.

Based on this evidence, the trial court found that an incident of domestic violence had occurred in the presence of the children. The trial court then declared the children dependent as to the Father, approved the Department’s case plan, and ordered the Father to comply with it. The Father now appeals from this order.

Chapter 39 of the Florida Statutes is the sole and exclusive means by which the trial court can declare a child dependent. In the Interest of J.H., 535 So.2d 669, 670 (Fla. 2d DCA 1988). Chapter 39 defines a “dependent” child as one who is found by the court to have been abandoned, abused, or neglected by his or her parents or one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents.” § 39.01(14)(a), (f), Fla. Stat. (2004). “Abuse” is defined as “any willful act or threatened act that results in any physical, mental or sexual injury or harm.” § 39.01(2). “Harm” is defined to include “engaging] in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” § 39.01(30)®.

Based on these statutory definitions, courts have held that domestic violence may constitute “harm” if it occurs in the presence of the child. In the Interest of E.B., 834 So.2d 415, 416 (Fla. 2d DCA 2003); D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000). However, the “presence” of the child must be something more than physical proximity. D.D. v. Dep’t of Children & Families, 773 So.2d 615, 617-18 (Fla. 5th DCA 2000). Instead, there must be some evidence that the child sees or is aware of the violence occurring. Id. at 618. Further, for “harm” resulting from witnessing domestic violence to constitute “abuse,” the domestic violence witnessed by the child must result in some physical, mental, or sexual injury to the child. § 39.01(2); W.T. v. Dep’t of Children & Families, 787 So.2d 184, 185 (Fla. 5th DCA 2001). Moreover, in order to declare a child dependent, the parent’s harmful behavior must pose a present threat to the child based on current circumstances. B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1274 (Fla. 4th DCA 2003); W.T., 787 So.2d at 185.

In this case, the trial court found that the Father committed an act of domestic violence in the presence of K.B. and M.B. The Department presented evidence that both K.B. and M.B. witnessed the altercation and were upset by it, including testimony that both were screaming and crying during the incident and that KB. was upset by the incident for a time after-wards. Thus, the trial court’s finding that domestic violence occurred in the presence of the children was supported by competent, substantial evidence. However, the Department presented no evidence that the children suffered any physical or mental injury as a result of witnessing the altercation or that the Father posed any current threat of harm to them. In the absence of such evidence, the trial court’s finding of dependency cannot stand.

For example, in B.C., the Fourth District noted that the domestic violence incidents proven by the Department occurred a year and a half before the petition was filed. 846 So.2d at 1274. During that year and a half, no further incidents occurred. Id. In addition, the evidence showed that the parents were no longer together in a relationship. Because of this, the Fourth District reversed the finding of dependency, noting that the prior incidents of domestic violence could not support a finding of a present threat to the child. Id. at 1275.

Similarly, in W.T., the Fifth District held that because the parents were living apart and in the midst of a divorce, the domestic violence situation which had concerned the trial court no longer existed. 787 So.2d at 185. Accordingly, because there was no evidence that placing the child with his father would endanger the child’s safety or well-being, the court reversed the adjudication of dependency.

In contrast, when there is a history of domestic violence and the parents’ relationship is ongoing, prior incidents of domestic violence can support a finding that a present threat of harm exists. For example, in T.R. v. Department of Children & Families, 864 So.2d 1278, 1280 (Fla. 5th DCA 2004), the court affirmed an order of dependency based on a single incident of domestic violence because there were indications in the record of prior incidents of domestic violence, the incident at issue had involved a deadly weapon, and there was evidence that the parents’ relationship was ongoing even though they lived apart. Similarly, in D.D., the court affirmed an adjudication of dependency because the child had witnessed multiple incidents of domestic violence and there was evidence that “the mother and father were more likely than not to continue their relationship in the future.” 773 So.2d at 616. Because of the continuing relationship, it was likely that the parents would continue to engage in acts of domestic violence, thereby subjecting the child to the threat of future harm. Id.

In this case, the record shows that the only incident of domestic violence occurred on July 23, 2004. The petition for dependency was filed in September 2004, and the adjudicatory hearing was held in May 2005. The Department presented no evidence of any domestic violence occurring between July 2004 and May 2005. Further, the evidence showed that the parents are currently living apart and both have begun relationships with others. Thus, like in B.C. and W.T., the situation that gave rise to the domestic violence no longer exists, and the children are not exposed to a present threat of harm by continued acts of domestic violence. In addition, the Department presented no evidence that the safety and well-being of the children would be threatened if they were placed in their Father’s care. Under these circumstances, the Department’s evidence was insufficient to establish that K.B. and M.B. were “dependent” as the term is defined by the Florida Statutes.

As the supreme court has stated, “[t]he purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.” In re M.F., 770 So.2d 1189, 1193 (Fla.2000); see also § 39.501(2) (“The purpose of a petition seeking the adjudication of a child as a dependent child is the protection of the child and not the punishment of the person creating the condition of dependency.”). In this case, the evidence was insufficient to show that KB. and M.B. needed protection from their Father. Accordingly, we reverse.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    Daniel ALMARAZ, Appellant, v. Larry HEAWARD and Deborah Heaward, Appellee.
    No. 5D06-344.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Rehearing Denied Sept. 22, 2006.
    Daniel Almarez, Coleman, pro se.
    James P. Beadle, Spira, Beadle & McGarrell, Palm Bay, for Appellees.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, MONACO and EVANDER, JJ., concur.


text:
    Terrence A. SMARTMAYS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1352.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2006.

      Terrence A. Smartmays, Raiford, Pro Se.
    No Appearance for Appellee.
   AMENDED OPINION

ON MOTION TO RECALL MANDATE

PER CURIAM.

Terrence A. Smartmays appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Smart-mays filed a rule 3.850 motion asserting various claims of ineffective assistance of trial counsel concerning his 2004 convictions. On November 3, 2005, the trial court rendered an order denying the motion, noting “the defendant’s motion is premature” without further explanation. On December 11, 2005 (mailbox rule), some thirty-eight (38) days after the rendition of the denial order, Mr. Smartmays filed a motion for rehearing. The motion was denied on March 8, 2006. On March 28, 2006, Mr. Smartmays filed a notice of appeal. Based on what appeared to be Mr. Smartmays’s untimely motion for rehearing, this Court ordered him to show cause why this appeal should not be dismissed. His response did not address the issue.

The trial court’s order denying the rule 3.850 motion was rendered on November 3, 2005. Mr. Smartmays had thirty (30) days following the rendition of that order in which to appeal or fifteen (15) days of the date of service of that order in which to seek rehearing. See Fla. R.Crim. P. 3.850(g). Mr. Smartmays did neither. Consequently, Mr. Smartmays’s untimely motion for rehearing did not toll the time in which he was permitted to file a notice of appeal. Therefore, the notice of appeal is untimely and must be dismissed. See Jones v. State, 838 So.2d 659 (Fla. 5th DCA 2003); Alterisio v. State, 704 So.2d 164 (Fla. 5th DCA 1997); Childs v. State, 649 So.2d 349 (Fla. 1st DCA 1995). Consequently, we withdraw our earlier opinion in this matter and the mandate. Because Mr. Smartmays’s postconviction motion was not dismissed on the merits, he is not precluded from filing another timely motion.

APPEAL DISMISSED; MOTION TO RECALL MANDATE GRANTED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

      . Mr. Smartmays’s convictions and sentences were affirmed on appeal. See Smartmays v. State, 901 So.2d 278 (Fla. 5th DCA 2005).


text:
    Antonio MARTIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D05-3471, 1D05-3473, 1D05-3474.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    Rehearing Denied Sept. 20, 2006.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Antonio Martin appeals the trial court’s orders revoking probation in three consolidated cases because he failed to pay his courts costs and the costs of probation supervision fully and on time. Because the trial court made no finding that the appellant had the ability to pay these costs, we reverse.

On June 3, 2003, the appellant entered guilty pleas in each of three cases below, was adjudicated guilty, and sentenced concurrently in each case to serve 180 days in county jail and five years’ probation. He was also ordered to pay $20 per month for probation supervision, and to pay court costs “in equal monthly installments in an amount sufficient to pay the total sum in full three months before the end of the probationary period.”

After earlier revocation proceedings had led to the reinstatement of probation (albeit with further jail time as a condition), the appellant was again arrested, this time on suspicion of throwing a deadly missile into an occupied dwelling. An affidavit of violation of probation was completed in each ease on April 26, 2005, alleging that the appellant failed to comply with condition 2 of the order of probation by failing to pay for supervision costs; condition 5 by violating the law by throwing a deadly missile into an occupied dwelling; condition 10 by failing to pay court costs; and condition 24 by failing to complete fifty hours of community service hours as of April 26, 2005.

At the hearing on the violation of probation, the prosecutor withdrew the allegation of violation of condition number 5 (the new law violation). The judge found that the appellant was not guilty of violating condition 24, failing to complete the community service hours, because, although appellant had not yet served fifty hours, he had until the end of his probation to complete the prescribed hours. See Pollard v. State, 930 So.2d 854, 855 (Fla. 2d DCA 2006) (“[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours ... when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours[J”).

Regarding the only remaining allegations, payment of court costs and the costs of supervision, the appellant’s probation officer testified that he had begun supervising the appellant in December of 2004, and that the appellant had been incarcerated off and on since. The probation officer testified that, when the appellant was not in jail, it appeared that he had paid between $10 and $20 per month toward his costs. Appellant conceded that he did not pay while in jail. He testified that he attempted to find employment, but did not find anything other than “odds and ends,” jobs which did not pay very much. The judge found the appellant guilty of violating conditions 2 and 10, for failing to pay the cost of supervision and court costs.

The trial judge made no finding that the appellant had the ability to pay either court costs or the “cost of supervision.” § 948.06(5), Fla. Stat. (2001). Instead, the learned trial judge seemed to acknowledge that the appellant’s periodic incarceration made it impossible for him to make the payments. Specifically, the judge stated:

What I fail to understand, Mr. Martin, is your defense is that your own misconduct is your defense. Because you were in jail, which, by the way, you pled to the charges, because you were in jail, by your own criminal act, you were unable to comply with the lawful things you should have been doing, so I should excuse the fact that you didn’t comply with the law because you were busy breaking the law.

This ruling comes much closer to a finding of an inability to pay than to a finding that the appellant was, although often in jail and without a source of income, able to pay the costs he had been ordered to pay on schedule. Absent a finding of ability to pay, the trial court erred in revoking probation based on the failure to pay.

Revoking probation for failure to pay costs without a finding that the probationer had the ability to pay requires reversal. See Smith v. State, 892 So.2d 513, 514 (Fla. 1st DCA 2004) (reversing an order revoking community control because, although the trial court held a full evidentiary hearing and found that the appellant failed to pay both his court costs and costs of supervision, “[t]he court did not, however, find either orally or in its written order that appellant had the ability to pay”). Under section 948.06(5), Florida Statutes (2005), the burden is on the probationer to prove his inability to pay, once nonpayment has been established. § 948.06(5), Fla. Stat. (2005) (“In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision ... is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.”). This statute does not, however, relieve the trial court of its obligation to make a finding that the probationer has the ability to pay. See Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994) (“We ... hold that, before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.”) (citing Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)); Whidden v. State, 701 So.2d 1224, 1225 (Fla. 1st DCA 1997) (reversing because “the record will not support the finding regarding the failure to pay monetary obligations because the trial court did not find that appellant had the ability to pay those obligations”); Vincent v. State, 699 So.2d 806, 807 (Fla. 1st DCA 1997) (holding that it was an abuse of discretion for a trial court to revoke probation for failing to pay restitution based on stale facts, and stating that “[t]his automatic fact-finding resulted in imprisonment without a determination of [the probationer’s] ability to pay in violation of his right to due process and equal protection of the law as well as the prohibition against imprisonment for failure to pay a debt”).

Reversed.

BENTON, PADOVANO, and LEWIS, JJ., concur.

      . He entered a plea of guilty to one count of felony driving with a suspended license and one count of reckless driving in the first case; one count of domestic battery, one count of resisting arrest without violence, one count of felony driving with a suspended license, and one count of felony fleeing in the second case; and one count of domestic battery, one count of felony attempt to elude, one count of misdemeanor driving with a suspended license, one count of driving under the influence, and one count of possession of cannabis in the third case.

      . In the second and third cases, he was also sentenced to serve one year of probation for the misdemeanor charges to run concurrently with the five-year probationary period. In the second and third cases, as a condition of probation, he was ordered to complete a batterer’s intervention program. In the third case, as conditions of probation, he was ordered to complete the following additional special conditions: completing DUI school, six months' suspended driver’s license, and fifty hours of community service.

      . We reject the State's argument that the orders revoking probation should be upheld on the alternative ground that the appellant may have violated additional conditions of probation which were not complained of in the affidavit of the violation of probation. See, e.g., Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999) ("Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”).


author: THOMPSON, J.

text:
    Danny CHETRAM, Appellant, v. Saraswattee SINGH, Appellee.
    No. 5D05-4270.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.

      Jorge E. Hurtado, Law Offices of Jorge E. Hurtado, Coral Springs, for Appellant.
    Patricia K. Herman, Law Office of Patricia K. Herman, P.A., Sanford, for Appel-lee.
   THOMPSON, J.

Danny Chetram appeals an order holding him in contempt and providing for his incarceration without further notice or hearing if he did not pay arrears owed to Saraswattee Singh within 30 days. We reverse.

Chetram and Singh divorced in New York in July 2002. The divorce decree was registered in Florida in 2003 and followed by ongoing litigation over child support and visitation. In October 2003, the court granted Singh’s motion for civil contempt and found Chetram failed to pay all required support. In 2004, the parties moved for civil contempt and modification, and the court held a final hearing in May 2004. No final order issued, despite a December 2004 case management conference and motions filed in 2005. Another judge presided over their case in 2005, and a hearing on one of Singh’s motions for contempt was set for 1 November 2005. Singh’s notice was purportedly sent to Chetram’s counsel on 30 September 2005, but Singh’s counsel sent the notice to an incorrect address. Chetram claims neither he nor his counsel in Coral Springs received notice; counsel’s office was closed in late October and early November by power outages and infrastructural damage from Hurricane Wilma.

Chetram-wás not present at the hearing. The second judge entered an order on 2 November 2005 that provided:

1. [Singhj’s Motion Entry of Order Finding [Chetram] in Civil Contempt of Court is hereby GRANTED;
2. [Chetram] is found to be in willful contempt of court;
3. [Chetram] shall be compliant with the Order entered on October 15, 2003;
4. [Chetram] is found to be in arrears of his child support obligation in the amount of ... [$10,350].
5. [Chetram] shall pay to [Singh] ... [$10,350] within thirty (30) days of the date of this hearing, to wit: December 1, 2005.
[ 6]. That this Court ... may immediately issue a Writ of Bodily Attachment, without notice or further hearing to [Chetram], for [179] days in the Orange County Jail ... should [Singh] not receive said amount by December 1, 2005.

Significantly, the order originally contained a purge provision, which had been lined out.

Chetram argues the order must be reversed because it was entered without notice, hearing, or any evidentiary support to show he willfully disobeyed a court order. He notes there was no finding or evidence showing present ability to pay the purge amount and the child support referenced in the October 2003 order. Singh responds without citation that Chetram is entitled to no notice or hearing before commitment because there was a contempt order entered in October 2003; he “had over two (2) years of due process, and has failed to avail himself to the lower tribunal for such relief.” Moreover, Singh argues Chetram may not challenge the commitment provision for any reason because he lost the right to appeal the November 2005 order when he did not appeal the October 2003 order. Finally, Singh states without citation that “[t]he lower tribunal did not have to make a determination regarding [his] ability to pay. That decision was previously made by the State of New York” in July 2002. We disagree with Singh’s analysis, and hold that the trial court abused its discretion.

The primary purpose of criminal contempt is punishment, and potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. Gregory v. Rice, 727 So.2d 251, 253 (Fla.1999); Dep't of Children & Families v. R.H., 819 So.2d 858, 861 & n. 3 (Fla. 5th DCA 2002). “[T]he primary purpose of a civil contempt proceeding is to compel future compliance with a court order. A civil contempt sanction is coercive in nature and is avoidable through obedience.” Gregory, 727 So.2d at 253 (citations and internal quotation marks omitted); see also R.H., 819 So.2d at 861.

A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard. Abridge v. Crow, 903 So.2d 346, 350 (Fla. 2d DCA 2005). Civil contempt sanctions are only appropriate if the court determines that the con-temnor has the present ability to pay the support and has willfully refused to do so. Gregory, 727 So.2d at 254. Regardless of the sanction, the court must provide the contemnor with the ability to purge the contempt. Id.; R.H., 819 So.2d at 862; Pompey v. Cochran, 685 So.2d 1007, 1014 (Fla. 4th DCA 1997). The key safeguard in civil contempt proceedings is the court’s finding that the contemnor has the ability to purge the contempt. Abridge, 903 So.2d at 351 (citing Parisi v. Broioard County, 769 So.2d 359, 364 (Fla.2000)).

Where jail is the sanction for civil contempt, the court must grant the contemnor an opportunity to establish inability to pay before he can be incarcerated. Ross v. Botha, 867 So.2d 567, 570 (Fla. 4th DCA 2004). “If the trial court orders the eontemnor’s incarceration, a separate affirmative finding that the parent has the present ability to pay the purge is required, and the court must recite the facts in support of that finding.” Id. “[T]he presumption of ability to pay ... is not a substitute for the ‘separate, affirmative finding’ of ability to pay required for- incarceration.” Pompey, 685 So.2d at 1014; see also Hipschman v. Cochran, 683 So.2d 209, 212-13 (Fla. 4th DCA 1996) (holding courts must hold pre-incarceration hearings where previous contempt orders required extrajudicial compliance). The absence of such a finding transforms a coercive civil sanction into a criminal punishment that has been imposed in violation of the contemnor’s constitutional rights. R.H., 819 So.2d at 862; accord Pompey, 685 So.2d at 1013-15 (noting the court “must have some affirmative evidence before it that the obligor has ‘the keys to his cell’ in his pocket[;] [otherwise, its order of incarceration is ... an order of criminal contempt[ ] without the required due process protections”). Incarceration for the simple failure to pay a debt is prohibited; civil contempt proceedings must not be used to create a debtor’s prison. Gregory, 727 So.2d at 256.

The order held Chetram in contempt and set the amount of arrears at $10,350. He was ordered to pay this amount within 30 days or face incarceration. This order failed to satisfy the basic requirements for a finding of contempt.

A child support contempt order must find: 1) a prior valid order of support; 2) a failure to pay all or part of the ordered support; 3) the parent’s present ability to pay the support; and 4) the parent’s willful refusal to comply with the prior court order. Further, the order shall contain a recital of the facts on which these findings are based.

Ross v. Botha, 867 So.2d 567, 570 (Fla. 4th DCA 2004) (citations and internal quotation marks omitted). Neither the required legal findings nor the facts are reflected in the order here. Id.

REVERSED and REMANDED for further proceedings in accordance with this opinion.

MONACO and EVANDER, JJ., concur.


author: ORFINGER, J.

text:
    Christopher MARLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1859.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Christopher Maries appeals his conviction of sexual battery on a person under twelve years of age. He contends that the trial court erred by denying his motion for a judgment of acquittal, claiming that the State failed to prove beyond a reasonable doubt that penetration had occurred as alleged. We disagree and affirm.

Mr. Maries was charged with one count of sexual battery by digital penetration for an incident involving his then five-year-old stepdaughter. At trial, the victim testified that Mr. Maries “put his finger in my private.” The medical evidence was inconclusive. In taped statements played for the jury, the victim testified that she was asleep when she felt Mr. Marles’s finger in her private, the place “where you go peepee.”

The well-established rule in Florida is that proof of even the slightest penetration is sufficient to sustain a conviction of sexual battery. Williams v. State, 53 Fla. 84, 43 So. 431 (1907). While Williams dealt with the crime of rape, this rule has remained unchanged since implementation of Florida’s sexual battery statute. See Pride v. State, 511 So.2d 1068, 1070 (Fla. 1st DCA 1987) (holding that under the current sexual battery statute, “any penetration, no matter how slight, constitutes a completed sexual battery”).

The test for sufficiency of evidence to support a jury verdict is whether the jury, as reasonable people, could have found such a verdict from the evidence. Seay v. State, 139 Fla. 433, 190 So. 702 (1939). While the evidence of penetration here was far from crystal clear, “[a] trial court should not grant a motion for acquittal in a criminal case if there is any view of the evidence, which is favorable to the State’s case, from which the jury could reasonably believe or infer facts that would prove the State’s charges.” Baker v. State, 760 So.2d 1085, 1088 (Fla. 5th DCA 2000). We conclude that the evidence presented here was sufficient to satisfy the State’s burden of proof. Accordingly, the judgment is affirmed.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


text:
    Gerald M. McKIRE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-3735.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2006.
    Gerald M. McKire, pro se, for Petitioner.
    Charlie Crist, Attorney General; and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. The record establishes that the petitioner was afforded procedural due process and that the circuit court, sitting in its appellate capacity, observed the essential requirements of the law. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Sheley v. Fla. Parole Comm'n, 720 So.2d 216 (Fla.1998).

PETITION DENIED.

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    Richard H. GIBSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3662.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    Richard H. Gibson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner’s motion to review has been treated as a petition for writ of certiorari. The petition for writ of certiorari is dismissed as premature because petitioner is seeking review of an indigency order related to the circuit court filing fee; therefore, review is properly made after the circuit court has issued a final order disposing of the cause pending below. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

DISMISSED.

BARFIELD, PADOYANO, and HAWKES, JJ., concur.


text:
    Benjamin LaFLOWER, Appellant, v. James R. McDONOUGH, Secretary, Department of Corrections, Appellee.
    No. 1D05-4777.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    Benjamin LaFlower, pro se, Appellant.
    Rosa Carson, General Counsel, Department of Corrections; Charlie Crist, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm without prejudice to appellant’s right to file an administrative grievance challenging the deductions from his account for legal copying, pursuant to Smith v. Florida Department of Corrections, 920 So.2d 638 (Fla. 1st DCA 2005), review denied, 923 So.2d 1162 (Fla.2006).

AFFIRMED.

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


author: ROTHENBERG, Judge. COPE, C.J., SHEPHERD, J.,

text:
    Andrew Henry MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1358.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Andrew Henry Mann (“Mann”), appeals from the summary denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. As we agree with the trial court that the evidence Mann claims entitles him to relief does not qualify as newly discovered evidence, we affirm. We also conclude, as did the trial court, that the Public Defender’s Office lacks authority to represent a criminal defendant, who is not under sentence of death, in a collateral postconviction proceeding without being appointed to do so.

Mann was convicted of arson for a fire he started in his prison cell. The fire occurred after the defendant had been moved to a “close confinement” cell for arguing with and threatening a correctional officer. The conviction was affirmed by this court on direct appeal. Mann v. State, 787 So.2d 130 (Fla. 3d DCA 2001). Thereafter, the Public Defender’s Office filed an unsworn motion for postconviction relief in Mann’s behalf on the grounds of “newly discovered evidence.” The Public Defender’s Office subsequently amended the postconviction motion by filing a sworn motion on the same basis. Mann appeals the trial court’s summary denial of his amended motion, and challenges the trial court’s finding that the Public Defender’s Office did not represent him in the post-conviction proceedings which were before the trial court. We conclude that the trial court did not err in failing to conduct an evidentiary hearing as the evidence alleged in the sworn motion does not meet the legal requirements of newly discovered evidence. We also agree with the trial court that the Public Defender’s Office is without legal authority to represent a defendant on a non-death penalty postconviction matter unless appointed to do so. We, therefore, affirm.

Mann claims that the trial court erred in summarily denying his motion for postcon-viction relief brought on the basis of newly discovered evidence. After reviewing the trial testimony, the trial court denied the motion without conducting an evidentiary hearing because it concluded that the “evidence” which Mann had now obtained “could have and/or should have [been obtained] through reasonable diligence” prior to trial. We agree that the evidence now in Mann’s possession was easily discoverable with the exercise of due diligence prior to trial and, therefore, does not constitute newly discovered evidence.

EVIDENCE INTRODUCED AT TRIAL

While incarcerated at the South Florida Reception Center, Mann was ordered into a close confinement cell after he threatened a correctional officer. Approximately thirty minutes after Mann was placed into the cell, Officer Holder smelled smoke. When Officer Holder looked through the glass window of Mann’s cell, he saw Mann standing near a mattress, which had been placed on the floor near the cell door, and the mattress was on fire. Officer Holder testified that he saw Mann standing over the mattress feeding the fire by dropping toilet paper onto the burning mattress. A Metro-Dade fire investigator and a fire marshal inspected the cell and investigated the fire. They found evidence of two separate fires in the cell: (1) the mattress which was burning on the floor and (2) a mattress on the top bunk, in which the fire had burned itself out. Based upon their investigation, these investigators concluded that a fire was started on the top bunk, which was then transferred to the mattress on the floor. The State argued that Mann’s motivation for setting the fire was to escape the harsh conditions of being housed in a close confinement cell. The State explained that inmates placed in these units for disciplinary and/or security reasons are removed from the jail’s general population, live without the benefit of air conditioning (it was August in Miami), remain in their cells twenty-four hours a day with no exercise for the first thirty days, have no television privileges, no canteen privileges, and cannot have any visitors. When an inmate sets fire to his cell, he is charged with arson and then transferred to the Dade County Jail, where he is returned to the jail’s general population, with the added “luxury” of air conditioning, daily exercise, cable TV, and much greater freedom of movement.

Mann testified that he did not start the fire and that he believed a “trustee” named “Pompano” may have started the fire. “Trustees” are inmates who are permitted to work around the prison and have greater privileges. They assist the officers, clean, help feed the inmates, and have greater freedom of movement. Mann claimed that, when he heard voices, he turned around and saw the trustee he knows as “Pompano.” Thereafter, Mann turned away, and moments later he smelled smoke and saw the mattress that he had placed by the door to be exchanged because it was worn, on fire. He explained that these “trustees” or “runarounds” will often “slip” the inmates cigarettes, cigars, candy, and other goods, and will “pass them a light” by lighting a piece of paper and throwing it under the door of the cell. While he did not see how the mattress caught fire, Mann testified that he believed that was how the fire started.

NEWLY DISCOVERED EVIDENCE

Mann claims that in January 2004, while incarcerated at the Dade County Jail, he discovered the identity of the trustee who started the fire in his cell. An inmate, Dyron Tucker, allegedly told Mann that he started the fire, but did not realize that Mann had been charged with a crime. Upon learning this information, Mann contacted the Public Defender’s Office, and thereafter, the Public Defender’s Office obtained a sworn statement from Tucker, wherein he averred that, on the day of the fire, he was working as a run-around on the floor where Mann was incarcerated; that he threw a lit object into Mann’s cell; and that he quickly walked away so that he would not be caught by the guards. Shortly thereafter, he heard the fire alarm.

ANALYSIS

The Florida Supreme Court, in Jones v. State, 591 So.2d 911 (Fla.1992), set the current standard for reviewing claims based upon newly discovered evidence: (1) “the asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence,’ ” Jones, 591 So.2d at 916 (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)), and (2) “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones, 591 So.2d at 915; see also Smith v. State, 931 So.2d 790 (Fla.2006); Miller v. State, 926 So.2d 1243 (Fla.2006); Rutherford v. State, 926 So.2d 1100 (Fla.), cert. denied, — U.S. —, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006); Wright v. State, 857 So.2d 861 (Fla.2003); McLin v. State, 827 So.2d 948 (Fla.2002).

Based upon this clearly articulated standard, the evidence offered by Mann does not qualify as newly discovered evidence as the asserted facts were known to Mann and/or his lawyer prior to trial and the identity of the witness was easily ascertainable. As Mr. Tucker appears willing to testify that he started the fire (accidentally), there is no reason to believe that he would not have been equally willing to do so at Mann’s trial in 1999. In support of our conclusion, we refer to a portion of the transcript attached by the trial court in its order denying relief.

[STATE]: Now, you said there was a run-around in that area, correct?
[DEFENDANT]: Yes.
[STATE]: Ever see him before?
[DEFENDANT]: Yes.
[STATE]: You knew who he was, right?
[DEFENDANT]: Yes.
[STATE]: What is his name?
[DEFENDANT]: I don’t know. I think they call him Pompano. That’s where he is from. The nickname in prison where you are from.
[STATE]: It is your testimony, based on direct examination, it was Pompano who set the mattress on fire?
[DEFENDANT]: If that was the case, I would have told him when they first pull me. I didn’t actually see him. All I know next door asked him for a match.
[STATE]: They asked Pompano for a match?
[DEFENDANT]: They asked for a light.
[STATE]: And the next thing you know, your cell was on fire?
[DEFENDANT]: Right.
[STATE]: And Pompano, the runaround you knew, you knew from confinement a month ago, right?
[DEFENDANT]: Yes.

From this dialogue, it is clear that Mann personally knew “Pompano,” that he believed Pompano had started the fire, and that Pompano was in the unit at the time because he was working as a trustee or run-around. Officer Nathaniel Graham, a correctional officer working in the unit where Mann was housed, testified that there were two run-arounds working in that area at the time. Officer Holder testified that he noticed a trustee in section A, which is adjoining section C, the section Mann was housed in, when he smelled the smoke coming from Mann’s cell. Had Mann wanted to identify and locate Pompano, it would not have taken much effort to do so. Obviously, inmates are not simply permitted to roam around outside of their cell blocks, especially in the locked close confinement section that Mann was housed in. Trustees earn their status and, one would assume, they are being monitored. Mann could have requested the name of any trustee who was granted access to his unit that morning, examined the booking photographs of these trustees, and since he had seen this particular trustee, have readily identified him. This process is a simple investigation which could have been performed by the Public Defender’s Office in its exercise of due diligence prior to trial. Thus, as the evidence submitted clearly does not constitute newly discovered evidence, the trial court did not err in denying Mann’s motion for postconviction relief without granting him an evidentiary hearing.

REPRESENTATION BY THE PUBLIC DEFENDER’S OFFICE IN NON-DEATH PENALTY POSTCONVICTION COLLATERAL PROCEEDINGS

While the trial court accepted and ruled on the postconviction motion filed by the Public Defender’s Office, it concluded that the Public Defender’s Office did not, in fact, represent Mann because it had not been appointed to do so. We agree.

A criminal defendant’s right to counsel is constitutionally mandated regarding representation at trial and on direct appeal. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)(holding that a criminal defendant has a Sixth Amendment right to counsel at trial); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)(holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal). The right to representation in a postconviction collateral proceeding is generally derived by statute and only becomes constitutionally mandated if the postcon-viction motion presents a meritorious claim and a hearing on the motion is potentially so complex that counsel is necessary. Russo v. Akers, 724 So.2d 1151 (Fla.1998).

In addressing this issue, several statutory provisions are pertinent. First, section 924.051(9), Florida Statutes (2005), provides: “Funds, resources, or employees of this state or its political subdivisions may not be used, directly or indirectly, in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated.” In addition, section 27.702(2), Florida Statutes (2005), provides: “The capital collateral regional counsel shall represent persons convicted and sentenced to death within the region in collateral postconviction proceedings, unless a court appoints or permits other counsel to appear as counsel of record.” Finally, section 924.066(3), Florida Statutes (2005), provides: “A person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer.”

Thus, a criminal defendant is constitutionally entitled to representation at trial and on direct appeal and is statutorily entitled to counsel in all collateral relief proceedings when under a sentence of death. See Spalding v. Dugger, 526 So.2d 71, 72 (Fla.1988)(holding that “under section 27.702, each defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all collateral relief proceedings”). There is, however, no statutory entitlement to representation in collateral relief proceedings for defendants not under a sentence of death.

The Public Defender argues in this appeal that while it is true that Mann was not statutorily entitled to representation in pursuing his motion for postconviction relief, the Public Defender’s Office can seek postconviction relief, if in the exercise of its professional judgment, it concludes such representation is necessary to provide effective and complete representation of a defendant. While the Public Defender’s desire to continue to assist criminal defendants, even after their convictions have become final after appeal and their statutory duty and authority has terminated, is admirable, we conclude that to do so would violate Florida’s statutory scheme and deny all other similarly situated defendants desirous of representation in collateral proceedings equal protection under the constitutions of the' State of Florida and the United States.

Historically, after the United States Supreme Court issued Gideon, Florida was one of the first states to institute a state public defender system to represent indigent defendants and to adopt a broad omnibus postconviction relief procedure. While not constitutionally mandated, Florida provides counsel to indigent defendants under sentence of death in collateral post-conviction proceedings. Florida, however, has specifically limited the use of the state’s “funds, resources, and employees” in collateral proceedings, when constitutionally or statutorily mandated. Since collateral representation in noncapital cases is not statutorily mandated, the use of the Public Defender’s Office, which includes its lawyers, staff, resources, and funds provided for that purpose, to pursue collateral review in noncapital cases may, therefore, only occur if constitutionally mandated.

In Graham v. State, 372 So.2d 1363 (Fla.1979), the Florida Supreme Court noted that, while there is no absolute right to counsel in postconviction relief proceedings, due process may require representation in certain postconviction proceedings. Specifically, the Court, quoting Hooks v. State, 253 So.2d 424 (Fla.1971), provided that:

The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner’s claims. Of course, doubts should be resolved in favor of the indigent petitioner when a question of the need for counsel is presented. Each case must be decided in the light of the Fifth Amendment due process requirements.

Graham, 372 So.2d at 1365 (quoting Hooks, 253 So.2d at 426). In making this determination, the Florida Supreme Court held that:

The adversary nature of the proceeding, its complexity, the need for an evidentia-ry hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel. This appointment authority is discretionary, with any doubts being resolved in favor of an indigent defendant. There is no absolute duty to appoint counsel for an indigent defendant. in a post-conviction relief proceeding unless the application on its face reflects a colorable or justiciable issue or -a meritorious grievance. The court has the authority to summarily deny relief without appointment of counsel when the petition and record reflect it is without merit.

Graham, 372 So.2d at 1366; see also Russo v. Akers, 724 So.2d 1151, 1153 (Fla.1998)(holding that when counsel is constitutionally mandated under Weeks and Graham, section 924.051(9) does not prohibit or preclude appointment- of counsel for indigent defendants in seeking collateral review).

While section 924.051(9) prohibits the use of funds, resources, or employees in collateral proceedings unless the use is constitutionally or statutorily mandated, the Public Defender argues that it may exercise its professional discretion and independence and represent defendants without appointment in noncapital collateral proceedings. In support of its position, it relies on Polk County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Green v. State, 620 So.2d 188 (Fla.1993); State ex rel. Smith v. Brummer, 426 So.2d 532 (Fla.1982); and Graham. ' A review of these cases, however, reflects that none involve the issue presented herein.

We begin our review with Polk County v. Dodson. Dodson, an Iowa criminal defendant who was convicted and incarcerated, brought a civil rights suit against Iowa’s Offender Advocate, which is the functional equivalent of Florida’s Public Defender’s Office, and others. Dodson claimed that his civil rights were violated when his appointed appellate counsel moved to withdraw from representing him on the ground that his appellate claims were legally frivolous. The Supreme Court of the United States held that Dodson’s constitutional rights were not violated because any lawyer, whether privately retained or publicly appointed, has a legal and ethical duty not to pursue a frivolous motion or appeal. Polk County, 454 U.S. at 323-24, 102 S.Ct. 445. In making that determination, the Court noted that

a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client. “A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.”

Polk County, 454 U.S. at 321, 102 S.Ct. 445 (quoting DR 5-107(B), ABA Code of Professional Responsibility (1976)). Thus, the issue in Polk County was whether the Public Defender who was appointed to represent the defendant could, in the exercise of its professional discretion and ethical obligations, refuse to pursue an appeal or motion it concluded was frivolous. We find the principles applied in Polk County are, therefore, totally inapplicable to the instant case because the Public Defender, without appointment or legal authority, attempted to represent a criminal defendant in a noncapital collateral proceeding.

We likewise find the remainder of authority relied upon equally unavailing. In Graham v. State, the Florida Supreme Court addressed the issue of whether the State of Florida had an obligation to provide counsel to defendants under sentence of death in federal proceedings. The Court noted that the appointment of counsel, even to those under sentence of death, is not constitutionally mandated and that the State of Florida has no obligation to provide counsel in federal proceedings. However, the Court concluded that, if counsel was appointed to represent an indigent defendant in a postconviction relief proceeding, appointed counsel may exercise his/her professional discretion in determining what relief to seek. Thus, once appointed for state postconviction purposes, counsel may also pursue federal postconviction relief. Graham is, therefore, inapplicable to the instant case as the defendants in Graham were under sentences of death, counsel had been appointed to assist the defendants in seeking postconviction collateral relief, and the Court simply stated that appointed counsel, once appointed, could pursue whatever relief he/she believed was appropriate. In the instant case, Mann was not appointed postconviction relief representation. The Public Defender’s Office was not free to exercise discretion without being granted the authority to act in behalf of the defendant.

Similarly, in State ex rel. Smith v. Brummer and in Green v. State, counsel had been appointed and was representing his client. The issue was whether in representing his client, appointed counsel could also seek relief in federal court. Mann cites to no case, nor were we able to find a case, wherein the Public Defender’s Office was permitted to represent a defendant who was not under sentence of death in a collateral postconviction relief proceeding without being appointed to do so. In fact, the Second District Court of Appeal has recently held to the contrary. See Perry v. State, 869 So.2d 41 (Fla. 2d DCA 2004)(holding that the public defender was not authorized to file a motion collaterally attacking the defendant’s sentence, and affirming the trial court’s dismissal of Perry’s Rule 3.800(a) motion filed by the public defender without prejudice to Perry’s right to file such a motion pro se).

In summary, an indigent criminal defendant (in a felony case) has the constitutional right to counsel when charges are pending and on direct appeal. All defendants under sentence of death have a statutory right to representation in seeking collateral postconviction relief and, the appointed Public Defender may exercise his/her professional discretion as to the nature, scope, and court to seek that relief. Defendants who are not under sentence of death have no statutory right to representation of counsel in seeking collateral postconviction relief and only have a constitutional right to counsel in those proceedings where under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the defendant’s claims. Unless a court makes the determination that representation is constitutionally mandated, funds, resources, and employees of the Public Defender’s Office may not be used directly or indirectly in collateral proceedings of defendants not under sentence of death. See § 924.051(9), Fla. Stat. (2005). Thus, the Public Defender’s Office may not represent a defendant not under sentence of death in a collateral proceeding unless appointed to do so. See § 27.51(4), Fla. Stat. (2005) (prohibiting the public defender and assistant public defenders from engaging in the private practice of criminal law).

Affirmed.

COPE, C.J.,

concurring.

As stated in Judge Rothenberg’s opinion, there were two fires in the cell of defendant-appellant Mann: “(1) the mattress which was burning on the floor and (2) a mattress on the top bunk, in which the fire had burned itself out.” Majority opinion at 724.

The defendant’s theory at the original trial, and in his motion for postconviction under Florida Rule of Criminal Procedure 3.850, is that the fire was set by accident when a trustee passed a light under the door of the cell. Majority opinion at 724-25. The defendant’s position is that the lighted material came under the door and came to rest on the mattress that was on the floor, which caught fire.

Even if the testimony of the trustee could be viewed as newly discovered evidence, the problem is that “[t]he photographs-and fire marshal’s testimony show that there was a second fire, on top of the defendant’s bunk. There is no plausible explanation for the second fire, and it was physically impossible for the second fire to have been set by accident.” Mann v. State, 787 So.2d 130, 136 (Fla. 3d DCA 2001) (concurring opinion).

SHEPHERD, J.,

specially concurring.

I join that portion of the majority opinion holding that the Office of the Public Defender does not have discretionary authority post-conviction to continue to represent a defendant not under a sentence of death. See supra pp. 726-29. This procedural ground is a sufficient ground to affirm the decision of the trial court below. Accordingly, it is not necessary to reach the merits of this appeal. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 640 (Fla.2003) (“Pursuant to the doctrine of judicial restraint, we decline to address petitioners’ remaining constitutional claims because resolution of those claims is unnecessary for the disposition of this case.”); Lake Towers, Inc. v. Axelrod, 216 So.2d 86, 87 (Fla. 4th DCA 1968) (“We expressly [d]o not decide the sufficiency of the complaint or of the lis pendens, or any of the other matters raised by defendant, since such issues are not necessary to the disposition of this matter.”); see also PDK Labs., Inc. v. United States DEA, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring) (“This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further.”).

      . These trustees are also referred to as "runarounds.”

      , Because the error is procedural, however, I would afford appellant thirty days from the date of this court’s mandate within which to file an amended motion which complies with Florida Rule of Criminal Procedure 3.850, either pro se or with proper representation. See Hickey v. State, 763 So.2d 1213 (Fla. 1st DCA 2000).