author: RAMIREZ, J.

text:
    5220 BISCAYNE BOULEVARD, LLC and The City of Miami, Petitioners, v. Robert STEBBINS, Brian Hollenbeck, Jane Pittman, Joyce Chatard, Elvis Cruz, and Theresa Wright, Respondents.
    No. 3D06-1483.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 2006.
    Shutts & Bowen, LLP, and Stephen T. Maher, and Suzanne Youmans Labrit, and Maria A. Gralia, Miami; Jorge L. Fernán-dez, Sarasota, and Rafael Suarez-Rivas, Miramar, Attorney for The City of Miami, for petitioners. ■ .
    Hite Baldwin, P.L., and M. Catherine Hite, for respondents.
    Before'GERSTEN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Petitioners 5220 Biscayne Boulevard, LLC and the City of Miami (hereinafter referred to collectively as “the City”) seek a writ of prohibition to prevent the circuit court from proceeding with a de novo action filed pursuant to section 163.3215(3)* Florida Statutes (2005), challenging the approval of-a construction project at 5220 Biscayne Boulevard, Miami, Florida. The City argues that this Court should issue a writ- of prohibition because the de novo circuit court action was untimely filed and thus the circuit court had no jurisdiction to hear it. We deny the writ because the date on which the City ,Clerk enters a development order is the date that triggers the time period within which to file a de novo action.

The respondents, plaintiffs below (hereafter referred to collectively as “Steb-bins”), are citizens of the City of Miami and live in Morningside, a residential single family neighborhood located between Northeast 50th Terrace and Northeast 60th Street, east of Biscayne Boulevard. 5220 Biscayne Boulevard, LLC is the developer of a project at that address on Biscayne Boulevard, located in Miami, Florida. Stebbins challenged the City’s issuance of a major use special permit which was approved by the City Commission on December 15, 2005 in a Development Order which the Mayor signed on December 20, 2005. The City Clerk entered thé Development Order on December 21, 2005. Stebbins filed a complaint pursuant to section 163.3215, challenging the City’s development order that permits the developer to build a high rise, high density condominium building at 5200-5220 Biscayne Boulevard. Stebbins alleged that the development order was inconsistent with the City’s comprehensive plan. The action, however, was originally filed on January 20, 2006, thirty-one days after the Mayor signed the Development Order, but thirty days after the Clerk entered the order.

The City moved to dismiss the action, asserting that the circuit court had no jurisdiction because it had been untimely filed. After the circuit court denied the motion, the City sought a writ of prohibition to prevent the circuit court from exercising its subject matter jurisdiction over the Stebbins’ claims and to require the circuit court to dismiss the Stebbins’ claims with prejudice.

Section 163.3215(3) provides that the de novo action “must be.filed no later than 30 days following rendition of a development order.” We conclude, in this case of first impression, that the triggering event for “rendition” is when the City Clerk entered the development order, not when the may- or signed the order.

Prohibition would be the proper remedy had the circuit court improperly denied the motion to dismiss this case as untimely filed. Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003). Furthermore, we held in Bal Harbour Village v. City of North Miami, 678 So.2d 356, 360-61 (Fla. 3d DCA 1996), “the time limit specified in Section 163.3215 is jurisdictional.” Even though Bal Harbour involved an earlier version of the statute with slightly different requirements, we see no reason to recede from the holding that the issue is jurisdictional.

In 2002, the Florida Legislature substantially amended section 163.3215 to address issues of standing, the standard of review, and the procedure for challenging a development order, to correct perceived problems with the prior version of the law. For example, to measure the appropriate thirty day period within which to file the action under the 2001 version of section 163.3215, an aggrieved or adversely affected person was required to determine the date that “the alleged inconsistent action was taken.”

The 2002 amendment to section 163.3215 was intended to simplify the time limit for bringing the de novo action to challenge a development order by requiring that the action be filed within thirty days of rendition of the development order. No reported case interprets how an aggrieved or adversely affected party should determine the date of rendition of a development order in the context of section 163.3215.

The City cites Payne v. City of Miami, 913 So.2d 1260 (Fla. 3d DCA 2005) in support of its argument that the date of rendition of a development order is the date on which the Mayor signs the order, but the Payne case construes a different statute which does not use the date of rendition as the triggering event. At issue in Payne was the time for filing a petition with the Department of Administrative Hearings to challenge a small scale development amendment. There, the time ran from the date of the local government’s adoption of the amendment, pursuant to the express language of section 163.3187(3)(a). The statute’s trigger date was the date of the “local government’s adoption of the amendment” which this Court determined by reference to City Charter to be either ten days after passage by the City Commission without the Mayor’s signature “or (if earlier) the date on which the Mayor signs the ordinance.” Id. at 1261. Thus, the Payne case is inapplicable because the trigger date for section 163.3215 is the date of .rendition of a development order.

- The Senate Staff Analysis of the proposed 2002 amendment of section 163.3215 indicates that the date of rendition' should be calculated in accordance with the Florida Rules of Court. Specifically, the Senate Staff recognized that the proposed 2002 amendment incorporated specific recommendations of the Growth Management Study Commission, which was appointed by Governor Jeb Bush .in- July 2000, as set out in its Final Report entitled “A Liveable Florida for Today and Tomorrow.” Recommendation 38 of the Growth Management Study Commission specifically stated:

Regardless of whether a local government used the special master process, the verified complaint provisions of section 163.3215, Florida Statute, would be deleted and the time schedule in s. 163.3215(4), Florida Statute, would be revised to make clear that a challenger has a certain amount of time from the date of the rendition of the local decision, in accordance with the Florida rules of court to file an action in circuit court for the appropriate review, as provided by statute.

Id. The Florida Rules of Court provide that the date of rendition of an order is the date when a signed, written order is filed with the clerk of the lower tribunal. See Fla. RApp. P. 9.020(h). This legislative history supports the argument that, the word “rendition” was- used in the 2002 amendment to section 163.3215 to eliminate the confusion in filing deadlines, because the “date of rendition” has a specific, uniform meaning and is determined in accordance with the Florida Rules of Court.

Additionally, until the development order is filed, with the City-Clerk and becomes available for public review,, .the public may not learn that the development order has been executed, nor what the final content of the order is so as to file a meaningful complaint for review. The City could refrain from filing the signed development order with the Clerk until thirty days have elapsed from the date on which the Mayor signs the development order. See Das v. Osceola County, 685 So.2d 990 (Fla. 5th DCA 1997) (wherein the court held that a local government “should, at the least, issue an order or permit of public record before the rights of the public to file a consistency challenge [pursuant to section 163.3215] are foreclosed by the expiration of time.”). We therefore determine that the date of rendition of the development order was the date that it was filed with the City Clerk on December 21, 2005, and that the Complaint was timely filed on January 20, 2006.

Writ of prohibition denied.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Stephen D. RAMSUBHAG, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2621.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Rehearing Denied Oct. 20, 2006.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Ramsubhag appeals his conviction for possession of cocaine and possession of a schedule IV substance (alprazolam, known as Xanax). The sole issue is the trial court’s failure to instruct on his theory of defense, the lawful disposition of contraband, because the instruction was not supported by the evidence. We affirm.

Paramedics found Ramsubhag passed out and slumped over the steering wheel of a parked car at 7:00 a.m. and called for police assistance. They had difficulty reviving him and, although he came to briefly, he immediately lapsed back into semi-consciousness.

The officers at the scene noticed an odor of alcohol, bloodshot eyes, and clammy skin. The keys were in the ignition and they concluded that Ramsubhag was under the influence of either alcohol, a drug, or both and decided to Marchman Act him, taking him into custody. Incident thereto, the officers found a clear plastic baggie containing cocaine and seven-and-a-half loose yellow pills — Xanax.

Ramsubhag told the officers present that the pills belonged to his girlfriend. At trial, however, he testified that he found the pills in the car, which belonged to his boss, and he pocketed the pills to prevent his children from exposure, with the intention of returning the pills to his boss. When asked about his statement at the scene regarding the Xanax belonging to his girlfriend, Ramsubhag answered that he had mentioned that his girlfriend took them for anxiety, but not that she owned the pills found in his pocket. Ram-subhag explained his semi-conscious state as exhaustion — “I was tired, worn out.” Ramsubhag also claimed that the cocaine was found, not in his front pocket, as reported by the two police officers testifying at trial, but under the seat of the car.

The trial court reasoned, in part, that even assuming the availability of a lawful disposition defense, the evidence in this case was insufficient to justify the charge, since Ramsubhag’s children had been picked up by their mother ten hours prior to the police discovery of the Xanax.

We recognize that a criminal defendant is entitled to have a jury instruction on his theory of defense if 'there is any evidence supporting his theory. See Wright v. State, 705 So.2d 102 (Fla. 4th DCA 1998); Vazquez v. State, 518 So.2d 1348 (Fla. 4th DCA 1987). Although the trial court should not weigh the evidence for this purpose, Garramone v. State, 636 So.2d 869, 870 (Fla. 4th DCA 1994), the requested instruction must be supported by the evidence. Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005).

Ramsubhag’s requested instruction read, in relevant part:

An issue in this case is whether the Defendant intended to lawfully dispose of the contraband.... It is a defense to the charge of .... if the Defendant took temporary control of the contraband in order to make a legal disposition of it by throwing it away, destroying it, or giving it to the police.

We have considered, and deem inapposite, State v. Walker, 444 So.2d 1137 (Fla. 2d DCA 1984) (holding as unconstitutional the statute requiring a prescription drug to be kept in its original container), and Fink v. Holt, 609 So.2d 1333 (Fla. 4th DCA 1992) (reversing a forfeiture of a vehicle used by a physician to transport schedule II drugs in unmarked containers).

Ramsubhag relies on Stanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999), the only Florida case involving legal disposition as a defense to possession. There, a drug dealer approached the defendant, a reformed crack-user who had successfully avoided backsliding into usage for some time. The dealer offered a free sample; the defendant declined. The dealer persisted, and the defendant decided to accept the rock and turn him in. The defendant immediately located a policeman. He placed the rock on a barricade, explained the circumstances that had brought it to him, and offered his assistance to police in apprehending the determined dealer. Notwithstanding the defendant’s intentions, the police officer promptly arrested him for possession. The Third District looked to decisions in both Alaska and California for guidance on whether a person who takes temporary possession of a controlled substance with the sole intention of turning it over to the authorities is guilty of a crime, and reversed the conviction. The court reasoned:

We do not think that a person who takes temporary possession of contraband for the sole purpose of turning it into the authorities, and promptly does so, is guilty of a crime. If a person finds contraband washed up on the beach, or floating in the sea, and takes the contraband forthwith to the authorities, we do not think that the law does, or is intended to, criminalize temporary possession for that purpose. Likewise if, a parent discovers contraband in possession of his or her child, and disposes of it, we do not think the law criminalizes the parent’s temporary possession.
It has been held that no crime is committed where a person takes temporary control of contraband in order to make a legal disposition of it by throwing it away, destroying it, or giving it to police.

Id. at 1230 (citations omitted). These facts, however, are completely distinguishable from the instant case.

A synopsis of the law surrounding the doctrine of momentary possession is contained in Coleman v. State, 1997 WL 775567 (Alaska App. Dec.17, 1997), a case extrapolating the concept as applied in drug possession cases to firearm possession. The Alaska appeals court traced the jurisprudence back to United States v. Santore, 290 F.2d 51 (2d Cir.1960), and described the divergent bodies of law that had sprung forth in California and Alaska. One group of cases remained narrow, requiring two elements: (1) brief possession, and (2) its purpose to be innocent disposal. This group came out of a California case, People v. Mijares, 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115 (1971), dealing with a defendant who disposed of his overdosed friend’s heroin before driving him to the hospital for medical attention. An observer witnessed the defendant throwing the drugs into a field and led police to them. The Supreme Court of California reversed his conviction for possession because the defendant only had momentary control in order to dispose. This case is cited in Stanton.

Stanton also references Adams v. State, 706 P.2d 1183 (Alaska App.1985). There, the defendant, a cocaine user, was in a public park with his family. A drug dealer placed a brown paper bag containing cocaine inside the defendant’s car against bis wishes. The dealer ignored the defendant’s requests that he remove it and left. Forty-five minutes later, another drug user showed up and the defendant made him take the bag. Unknown to him, this second person was a police informant. The Adams court determined that the defendant’s return of the contraband to an owner’s agent after involuntary possession could allow his acquittal on at least one possession charge.

Florida has little jurisprudence on “passing control” or “momentary possession” as a defense. It has been applied under circumstances where a defendant tests or tastes the substance to see if it was what it was purported to be, a case about marijuana smoke ingested from a pipe, and one case about asportation of a dead cow to support a larceny charge. Lamanto v. State, 547 So.2d 1248 (Fla. 4th DCA 1989) (tasting cocaine); State v. Eckroth, 238 So.2d 75 (Fla.1970) (marijuana smoke); Driggers v. State, 96 Fla. 232, 118 So. 20 (1928) (cow asportation); Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972) (fingerprint on can containing young marijuana plants being harvested).

The closest case is Stanton, which makes it clear that, in Florida, the defendant’s control must be temporary. We can discern no basis to expand this narrow body of law to include a right to indefinitely maintain possession of an illegal substance without a prescription. Ramsu-bhag’s testimony was that he found the Xanax early in the evening. The children were gone by 9:00 p.m. Ramsubhag worked, driving his tow truck from 9:00 p.m. until 8:00 a.m., at which time he returned the truck and retrieved his boss’ car. He did not account for the hours between 3:00 a.m. and 7:00 a.m. Ramsu-bhag had the drugs on his person for at least ten hours after his children left him, without explanation, despite the opportunity to dispose of them.

Although we agree with the recognition of this defense in Stanton and Mijares, we can discern no reason to apply it beyond facts that support a finding of a brief possession and an innocent disposal.

Therefore, the judgment and sentence are affirmed.

STEVENSON, C.J. and POLEN, J., concur.

      . § 397.301 etseq., Fla. Stat.

      . Another California case expanded the defense, allowing its use when possession was for the sole purpose of disposal, no matter how long the contraband was held. People v. Cole, 202 Cal.App.3d 1439, 249 Cal.Rptr. 601 (1988). This later interpretation has resulted in split authority in California.


author: WARNER, J.

text:
    Tilbert BAYNHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1566.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Rehearing Denied. Oct. 18, 2006.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appealing from his conviction for carjacking and sentence of life imprisonment as a habitual violent felony offender, appellant, Tilbert Baynham, argues that the trial court: (1) erred in admitting a photograph of appellant in jail garb; (2) admitted a suggestive identification by the victim; and (3) sentenced him as a habitual violent felony offender in violation, of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Each of these claims is meritless. As to the photograph, it was cropped so as to remove all indicia that Baynham was in jail garb. Therefore, there was no error. See Anderson v. State, 744 So.2d 475 (Fla. 4th DCA 1999); Fuster v. State, 480 So.2d 173 (Fla. 3d DCA 1985); D’Anna v. State, 453 So.2d 151 (Fla. 1st DCA 1984). His claim that the identification was suggestive was already rejected by this court in the appeal of his first conviction. See Baynham v. State, 862 So.2d 808, 810 (Fla. 4th DCA 2003). It is now the law of the case. See Schultz v. Schickedanz, 884 So.2d 422, 424 (Fla. 4th DCA 2004). And, finally, we have previously rejected appellant’s Apprendi claim. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

Affirmed.

KLEIN and GROSS, JJ., concur.


author: PER CURIAM.

text:
    E.R., and The Guardian Ad Litem Program, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-2606.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 2006.

      Kevin Coyle Colbert, Miami, for appellant, E.R.
    Hillary S. Kambour and Mercedes Sco-petta, for appellant, the Guardian Ad Li-tem Program.
    Jeffrey Bassett, and Calianne P. Lantz, Assistant District Legal Counsels, Department of Children and Family Services, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

E.R., (“the father”), and the Guardian Ad Litem program (“GAL”), appeal the trial court’s order terminating the father’s parental rights to his two children. We reverse because the trial court’s order is not supported by competent, substantial evidence.

The Department of Children and Family Services, (“DCF”), removed the children from the mother’s custody after a domestic violence incident between the mother and her new paramour. DCF placed the children with their father.

A month later, the father brought the children to DCF for a supervised visit with their mother. The DCF counselor observed that the children were dirty and the father smelled of alcohol. DCF removed the children from the father’s custody and placed the children into a relative’s custody.

DCF filed a dependency petition against the mother and father alleging neglect. Both parents entered a consent plea to the dependency petition. DCF provided the father with a case plan with a goal of reunification. The case plan required the father to complete a substance abuse screening .and treatment classes, attend psychotherapy sessions, and complete parenting skills classes.

A judicial review panel conducted a review and concluded that the father was in partial compliance with his case plan. The panel determined that the father had not completed the substance abuse treatment and recommended that the court terminate his parental rights. DCF filed a petition for termination of parental rights alleging the father neglected his children because he failed to comply with the tasks in his case plan for a twelve-month period.

At trial, the father testified that he completed the parenting classes and individual psychotherapy sessions. He also testified that he attended eight of the substance abuse classes but was unable to finish the program because his job, remodeling homes, often took him out of town. The father stated, however, that he tried to contact his DCF counselor to find classes closer to home but his counselor never returned his calls.

The DCF counselor testified that the father was regularly tested for alcohol and never tested positive. There was also un-contradicted evidence that the father visited his children at least five times a week, helped the children’s custodian with chores and often cooked the family dinner. The children’s custodian, the paternal grandfather, also testified that the father made regular child support payments, helped with repairs on the custodian’s home, and took the children shopping and to the movies.

The trial court terminated the father’s parental rights under section 39.806(l)(e), Florida Statutes (2003), for failure of the father to substantially comply with the case plan. On appeal, the father and the GAL contend that there was not competent and substantial evidence supporting the trial court’s order and that termination of the father’s parental rights was not in the children’s best interests. We agree and reverse.

In order to terminate a parent’s rights under section 39.806(l)(e), the trial court must find, by clear and convincing evidence, that the parent failed to substantially comply with a case plan within twelve months of the court adjudicating the children dependent. “Substantial compliance” means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the children will not be endangered upon the children remaining with or being returned to the children’s parent. § 39.01(68), Fla. Stat. (2003).

Here, DCF removed the children from the father’s custody on allegations that the father had a drinking problem and neglected the children by leaving them with an inadequate caretaker, the mother. The father, however, made substantial progress in addressing and remedying the circumstances which brought the children into DCF care.

The father completed all of DCF’s referrals with the exception of the treatment classes. Although he did not complete the treatment, he tested negative at every urinalysis. The children’s custodian testified that the father significantly curbed his drinking and does not drink around the children.

The father’s reason for not completing the treatment program was because it interfered with his job. This is a valid reason considering the father made regular child support payments to the custodian and needed his job to continue to provide the children with financial support. The father was making an effort to do what he thought was in the children’s best interests.

Second, in order to prove termination of parental rights is necessary, DCF must establish that there is no reasonable basis to believe the parent will improve. M.H. v. Dep’t of Children and Families, 866 So.2d 220 (Fla. 1st DCA 2004). Here, the father took significant steps to remedy his drinking problem. There was no record evidence that the father is not amenable to completing additional services, including the treatment program. In fact, the father testified that he was willing to complete the treatment classes and had contacted DCF in an attempt to find a place closer to home. The father also testified that he benefited from the parenting classes and gained insight into how to take care of his children.

Finally, DCF must prove that termination of parental rights is the least restrictive means of protecting the children from serious harm. B.C. v. Dep’t of Children and Families, 887 So.2d 1046 (Fla.2004). This requires the court to utilize measures short of termination if such measures can permit a safe re-establishment of the parent-child bond. L.B. v. Dep’t of Children & Families, 835 So.2d 1189 (Fla. 1st DCA 2002).

Here, there is no evidence supporting the' trial court’s finding thát termination of the father’s parental rights is in the children’s manifest best interest. The children have a loving relationship and strong bond with their father. They see him on almost a daily basis, and he provides for them financially and emotionally.

The GAL testified that terminating the father’s rights would be detrimental to the children. The GAL recommended allowing the children to stay in long-term relative placement with the paternal grandparents and allowing the father liberal visitation rights. See § 39.5085(l)(c), Fla. Stat. (2003). The grandparents testified that they were willing to continue the long-term relative placement and agreed that the court should allow the father visitation. Even the DCF counselor testified that she did not believe the father was a danger to, his children.

This is not a case that warrants termination of the father’s parental rights. See D.P. v. Dep’t of Children & Family, 930 So.2d 798 (Fla. 3d DCA 2006)(record does not support terminatiop of parental, rights where parent has made significant strides and is not a threat to the children); M.H., 866 So.2d at 222(a parent’s drug addiction, standing alone, is an insufficient ground to terminate parental rights).

We conclude that termination of the father’s parental rights was not supported by clear and convincing evidence. Accordingly, because the evidence in this case does not show that termination of the father’s parental rights was the least restrictive means to protect the children or was in the children’s best interests, we reverse and remand to the trial court with instructions to enter an order that the children remain in long-term relative care with the paternal grandparents and allow the father to have liberal visitation rights.

Reversed and remanded.


author: WOLF, J.

text:
    Willie RUSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1068.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.

      Willie Russ, pro se, Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

The appellant challenges the trial court’s summary denial of his postconviction motions filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to all issues raised by appellant but feel it instructive to address one. Because there was sufficient evidence in the written plea agreement to refute appellant’s allegation that his plea was involuntary because he was under the influence of psychotropic medication, we affirm.

Appellant asserts his plea was involuntarily entered because he was under the influence of psychotropic medication at the time of the plea’s entry. However, in his written plea agreement, directly above his signature, the agreement included the following provision:

I state to the court that I am not under the influence of drugs or alcohol, that no one has forced me to enter this plea, and that I am entering this plea freely and voluntarily.

(emphasis added). In addition, during his plea colloquy, the following discussion transpired:

THE COURT: And the plea form that she handed to me, that you signed in my presence, did you have a chance to read this over carefully?
THE DEFENDANT: Yes, sir.
THE COURT: And did you go over it with your attorney as well?
THE DEFENDANT: Yes.
THE COURT: And did you have any questions about anything you read on the form?
THE DEFENDANT: No.
THE COURT: And on the back; where it says defendant, that is your signature?
THE DEFENDANT: Yes.

A claim of ineffective assistance of counsel for failure to object to a plea’s entry based on the appellant’s use of psychotropic medication during the plea hearing may be refuted where an appellant affirmatively states that his medication does not affect the knowing and voluntary nature of his plea. See Iacono v. State, 930 So.2d 829, 830 (Fla. 4th DCA 2006); see also Bond v. State, 695 So.2d 778 (Fla. 1st DCA 1997) (determining appellant’s claim that he was under the influence of psychotropic medication was refuted by the record). In addition, while it has long been recognized that written plea agreements and plea colloquies may not be sufficiently specific to conclusively refute the appellant’s later postconviction claims, where an appellant makes a clearly and wholly inconsistent affirmance which contradicts his later postconviction claim, such claim may be summarily denied. See State v. Leroux, 689 So.2d 235, 237 (Fla.1996); see also Golden v. State, 703 So.2d 1207 (Fla. 1st DCA 1997) (acknowledging the written plea agreement may refute the appellant’s postconviction claims but remanding for attachment of a complete and signed written plea agreement). Furthermore, a written plea agreement alone may refute a postconviction claim. See Hill v. State, 895 So.2d 1122, 1123 (Fla. 4th DCA 2005) (holding that both the plea colloquy and the written plea agreement should be analyzed for statements which conclusively refute the appellant’s postconviction claims prior to summarily denying the motion) (emphasis added).

The appellant signed a written agreement affirming that he was not under the influence of drugs during the entry of his plea. Further, the appellant agreed in his plea colloquy that he had twice considered the provisions of his plea agreement and that he had no objections to the plea’s entry. Thus, because the appellant categorically denied being under the influence of medication at his plea hearing, we affirm the trial court’s summary denial of this claim.

LEWIS and THOMAS, JJ„ concur.

      . We are not unmindful of the case of Barnes v. State, 801 So.2d 989 (Fla. 1st DCA 2001); we, however, find that case is not controlling because there is no indication what was actually contained in the appellant's written plea agreement or whether, during the plea colloquy, the appellant acknowledged that he read and understood the written plea, agreement.


author: PALMER, J.

text:
    Terry P. HINKEL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-844.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      Terry P. Hinkel, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Terry P. Hinkel (defendant) appeals the trial court’s summary denial of his rule 3.800(a) motion seeking additional jail time credit. Concluding that the defendant’s motion is facially insufficient, we affirm the trial court’s order without prejudice to the defendant’s right to file a facially sufficient motion.

Initially, it should be noted that the defendant has failed to differentiate between the Hernando County cases at issue and the Pasco County cases that he intermingles within the body of his motion. He does not explain whether he was arrested pursuant to charges from both counties, as opposed to a scenario where perhaps Pas-co or Hernando County might merely have lodged a detainer against him. Because the defendant has failed to differentiate his Hernando cases from his Pasco cases, he has failed to sufficiently plead his entitlement to receive jail credit.

Additionally, in his motion, the defendant claims that “[t]he court file contains county jail records/arrest affidavits which conclusively establish that, at the time of sentencing, defendant was entitled to credit for 185 days as time served prior to sentencing in this case[s]”. He then lists several “incarceration dates” totaling 185 days in an attempt to support his claimed entitlement to receive the additional jail credit. Unfortunately, the defendant’s motion is difficult to decipher and references both Hernando County cases and Pasco County eases.

In summarily denying the defendant’s motion, the trial court noted that the 73 days’ jail credit the defendant received was pursuant to a negotiated plea agreement. The trial court attached to the summary denial order a copy of the “Acknowledgement Regarding Amount of Credit for Time Served” (hereinafter Acknowledgement) that the defendant signed on the date of his sentencing. The Acknowledgement reflects the following in paragraph 3:

3. I agree and understand that, as part of this plea, I will be receiving the following credit for time served (check one and fill in as appropriate:
-- from_, 200_ To_, 200_.
X Total days credit for time served 73 days.
_ all credit time served.
-. no credit for time served (waived any credit for time served).

(Emphasis added). After this paragraph, the defendant’s signature appears in the appropriate place for his signature. The trial court concluded that, because the defendant signed the Acknowledgement stating that he understood and agreed that he would be receiving the 73 days jail credit, he was not entitled to receive any relief pursuant to the instant motion.

In the instant appeal, the defendant argues that the award of 73 days’ jail credit was the result of the trial court’s hurried and last minute calculation of 73 days which was then entered on the Acknowledgment form. He argues that his execution of the Acknowledgment form was not an express, voluntary, and specific waiver of the additional jail credit he later discovered he was lawfully entitled to receive.

The trial court found that the Acknowl-edgement signed by the defendant pursuant to his plea agreement was freely and voluntarily entered into. However, the trial court did not conclusively establish that a waiver of additional jail credit occurred in the instant case. See Fla. R.App. P. 9.141(b)(2)(D). Standing alone, the Acknowledgment document itself is inconclusive on the waiver issue. The Acknowl-edgement provided the trial court with a choice of several fields for purposes of addressing jail credit. The third field should be checked where the defendant is to receive “all credit time served.” Conversely, where a defendant is to receive no jail credit due to a waiver of such credit, field four appropriately addresses the circumstance.

In the instant case, the trial court checked the second field and filled in the blank with 73 days. Because the second field does not address waiver in a manner similar to the fourth field, this court can not presume (based on the Acknowledgment document standing alone) that a waiver of any entitlement to additional jail credit in fact occurred. See Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995)(explaining where a defendant’s waiver of credit for time served on the incar-cerative portion of a split sentence is not clearly shown on the record, it will not be presumed).

In Reed v. State, 810 So.2d 1025 (Fla. 2d DCA 2002), the defendant was awarded 251 days’ jail credit, but claimed entitlement to 357 days’ credit. The trial court denied the defendant’s motion for an award of jail credit finding that the defendant had entered into a plea agreement wherein she “stipulated” to 251 days’ credit. The trial court, however, only attached “a portion of the judgment and sentence which stated that [the defendant] would be allowed a total of 251 days’ jail credit followed by the phrase, ‘Stipulated Credit.’ ” Id. at 1026. The Second District affirmed the trial court’s decision based on the Court’s finding that the defendant’s motion was facially insufficient. However, in dicta, the Second District noted that, had the defendant’s motion been facially sufficient, it would have been compelled to reverse the trial court because the attached portion of the judgment and sentence did not refute the defendant’s claim. The Second District stated: “Without an attached signed plea agreement or the transcript of the plea colloquy showing that [the defendant] had stipulated to the jail credit, the trial court’s order and its attachments are insufficient to refute [the defendant’s claim] to additional jail credit.” Reed, 810 So.2d at 1026.

Accordingly, the trial court’s order summarily denying the defendant’s rule 3.800(a) motion seeking additional jail time credit is affirmed without prejudice to the defendant’s right to refile a facially sufficient rule 3.800(a) motion.

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.

      . See Fla. R.Crim. P. 3.800(a).

      . In other words, had language similar to the bold-faced type, which follows below, been added to the second field, it is suggested that waiver could have been conclusively shown by the Acknowledgment document:
      Total days credit for time served 73 days (entitlement to additional jail credit has been waived).


author: THOMAS, J.

text:
    Mimi SHAW and her husband Perry Shaw, Appellants, v. PREMIER HEALTH AND FITNESS CENTER, INC., Appellee.
    No. 1D05-6191.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.
    Benjamin D. Rust, Tallahassee, for Appellants.
    Ganesh Chatani of Fowler White Boggs Banker, P.A., Tallahassee, for Appellee.
   THOMAS, J.

Appellants, Mimi and Perry Shaw, appeal the trial court’s ruling granting final summary judgment in this negligence action. The sole issue on appeal is whether the trial court erred in finding that the waiver provision contained in the Membership Agreement clearly and unequivocally released Appellee from liability for its own negligent acts. We find that the waiver provision did clearly and unequivocally release Appellee from liability for its own negligence. We affirm the trial court’s order granting summary judgment.

This court has held that clear and unequivocal exculpatory clauses which purport to release a party from liability for its own negligence are enforceable, even though such clauses are disfavored under the law. Borden v. Phillips, 752 So.2d 69, 73 (Fla. 1st DCA 2000) (citing Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2d DCA 1990)). The waiver provision at issue here stated:

Premier shall not be liable for any injuries or any damage to any member or guest, ... or be subject to any claim, demand, injury or damages, whatsoever, including without limitation, those damages from acts of passive or active negligence on the part of Premier, its officers, employees, or agents. Member ... does hereby expressly forever release and discharge Premier ... from all such claims, demands, injuries, damages, actions or causes of action.... Member acknowledges that he/she has carefully read this paragraph and fully understands that this is a waiver and release of liability.

(Emphasis added.)

In their argument urging the invalidity of this provision, Appellants cite Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205 (Fla. 4th DCA 1973), and argue that the intent to release Appellee from its own negligence was not clearly and unequivocally stated in the Membership Agreement because the two sentences in the waiver provision must be read separately. However, the contract in Ivey is distinguishable from the Membership Agreement here. In Ivey, the Fourth District determined that the exculpatory clause, which was not italicized in the agreement and stated that the appellee would not be liable for damages even if the damages resulted from its own neglect, was separate and distinct from the indemnification clause, which was italicized in the agreement and failed to specifically mention negligence. 282 So.2d at 207-08.

Here, nothing separates or distinguishes the two clauses. Contract provisions must be construed in conjunction with one another so as to give reasonable meaning and effect to all of the provisions. See Aucilla Area Solid Waste Admin. v. Madison County, 890 So.2d 415, 416-17 (Fla. 1st DCA 2004) (construing sections 11(B) and 14(B) together); Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144, 1146-47 (Fla. 2d DCA 1981) (explaining that the provision in the agreement purporting to absolve appellees of liability was meaningless when read in conjunction with the provision agreeing to take reasonable care of the minor child). Reading the sentences of the Membership Agreement together, it is clear that the second sentence was intended to further explain the first sentence. See Banfield v. Louis, 589 So.2d 441, 444 (Fla. 4th DCA 1991) (holding that a waiver was clear and unequivocal even though the term “negligence” was only mentioned in the second sentence).

We find that the phrase “all such claims” refers back to “acts of passive or active negligence on the part of Premier.” In addition, the last sentence in the Membership Agreement indicates that the entire paragraph is intended to be read together. Therefore, the trial court did not err in granting summary judgment in favor of Appellee.

AFFIRMED.

ERVIN and WEBSTER, JJ., concur.


author: BROWNING, J.

text:
    Kenny NASH, Appellant, v. AMR CORP., and Specialty Risk Services, Inc., Appellees.
    No. 1D04-5243.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.

      Jonathan M. Sabghir, of Sawgrass Legal Center, P.A., North Lauderdale, for Appellant.
    Robert L. Teitler and Warren Brown, of Walton Lantaff Schroeder & Carson, LLP, Miami, for Appellees.
   ON MOTION FOR REVIEW OF ORDER ON APPELLATE ATTORNEY’S FEES AND COSTS

BROWNING, J.

This ease is before us on a motion filed by counsel for the claimant, Kenny Nash, pursuant to Florida Rule of Appellate Procedure 9.400(c), for review of the judge of compensation claims’ (JCC) order on appellate attorney’s fees and costs. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284-85 (Fla. 1st DCA 1997) (setting out procedure under the rule governing motions for review and stating that orders setting amount of appellate attorney’s fees are reviewable on the merits under the abuse of discretion standard). Finding no abuse of discretion- in the JCC’s determination of a reasonable number of hours expended and a reasonable hourly rate to be charged by the claimant’s attorney, Mr. Sabghir, we affirm the order.

In the initial proceedings, the JCC granted the claimant’s claim for medical mileage reimbursement and ordered the employer/carrier (e/c) to pay $94.10. At the fee hearing, the parties agreed that a statutory attorney’s fee ($18.82) on the value of the medical mileage benefits obtained would be inadequate. However, the parties’ attorneys offered strikingly different opinions as to how much time was reasonably expended by the claimant’s lawyer in securing the one successful claim. The JCC accepted the substantially lower figure (15 hours) suggested by the e/c’s attorney and, multiplying the hours by an hourly rate of $200.00, awarded an attorney’s fee of $3,000.00 to the claimant’s attorney in the order of November 19, 2004. The claim for certain taxable costs was denied. In the first appeal, we found no abuse of discretion in the attorney’s fee award and affirmed it, but we reversed the JCC’s summary denial of costs and remanded for reconsideration of the issue of costs. See Nash v. AMR Corp., 913 So.2d 699 (Fla. 1st DCA 2005).

In -that original appeal,. the claimant moved for appellate attorney’s fees pursuant to section 440.34(3)(b), Florida Statutes (2000), and Florida Rule of Appellate Procedure 9.400(b). In our order dated October 18, 2005, appellate fees were granted and jurisdiction was relinquished to the lower tribunal to determine the amount thereof. In pertinent part, our order directed that “the lower tribunal should take into consideration claimant’s limited success on appeal.”

Absent any stipulation as to the amount of attorney’s fees and submission of such a stipulation to the JCC for approval, the claimant was ordered to serve, and file with the lower court, “a verified petition to determine the amount of appellate attorneys’ fees within 15 days from the date of the mandate.” The verified petition must include, inter alia, a “statement of facts relied upon, including but not limited to a detailed chronological listing of all time and corresponding services devoted to the appeal”; the usual hourly rate of the attorney performing the services, and “an opinion as to what amount or range of dollar values would constitute a reasonable hourly rate in the particular case”; “any special circumstances relevant under any of the factors set forth in Section 440.34, Florida Statutes (2003)”; a list of each issue the claimant believes was argued successfully on appeal; a list of all exhibits to be offered to support the amount of the fee award; and “[a] list of all witnesses to be called and a short statement, based on diligent investigation, of what each witness is expected to testify to.”

The next part of our order addressed the e/c:

Within 15 days after the verified petition is served, the opposing party or parties shall respond to the petition and shall include a recitation of all matters alleged in the verified petition which are disputed. If the time allegedly spent is in dispute, any party disputing the allegation of time spent shall, along with the verified response, produce a detailed chronological listing of all time devoted to the appeal by the disputing party on each entry on which there is any dispute. The respondent may also state opinions and facts as to any factor not addressed by the party filing the verified petition. In all other respects, the verified response shall be prepared in the same manner as the verified petition.... Review shall be in accordance with Florida Rule of Appellate Procedure 9.400(c).

Our mandate issued on November 3, 2005. Pursuant to a November 18, 2005, certificate of service, the claimant’s counsel submitted a timely verified petition for appellate attorney’s fees and costs, asserting that the claimant’s counsel had expended a total of 53.5 hours “in representation from the commencement of appellate representation upon receipt of the underlying order on November 23, 2004 until the service of the verified petition.” Attached to the petition was a chronological listing of alleged services rendered and costs expended on appeal during the period from November 23, 2004, to November 18, 2005. In the original appeal Issue One addressed the denial of taxable costs, and Issue Two dealt with the $3,000.00 award of trial attorney’s fees. The verified petition states that approximately 25% of the claimant’s attorney’s total professional effort was devoted to the research and drafting of the issue of fees, although the claimant’s attorney complained that “such an attempt at apportionment is not subject to discrete analysis.” The verified petition alleges that upon review of the statutory factors, the amount of time required to perfect the appeal is in the range of 30-40 hours. The verified petition states that the claimant’s lawyer’s usual and customary fee for appellate representation in a contingency matter is in the range of $275.00-$350.00 an hour and is reasonable under the circumstances of this case. Counsel has been practicing workers’ compensation law since 1984. The claimant’s counsel addressed the specific factors in section 440.34(l)(a)-(f), Florida Statutes (2000), for determining a fee award. The verified petition indicated that the claimant’s attorney would call lawyer Teresa Liles, of Pensacola, to testify as an expert on the issues of a reasonable hourly rate and reasonable hours expended in matters of this kind, and that the claimant was seeking the reasonable cost of presenting expert witness testimony. The verified petition lists total costs in the amount of $1,399.00.

Fifteen days from the November 18, 2005, certificate of service of the verified petition was a Saturday, December 3, 2005; December 5, 2005, was the next business day. The e/c’s response is dated December 9, 2005, which is within the five days that are to be added to the prescribed service period pursuant to Florida Rule of Appellate Procedure 9.420(d). Despite our order addressing a “verified response,” the e/c submitted an unverified response, which states in pertinent part:

The employer/carrier objects to the Verified Petition as to the amount of attorney’s fees requested. It is the position of the employer/carrier that the attorney’s fee requested in the Verified Petition is unreasonable in light of the minimal benefits that were obtained as a result of the Appeal. There were two issues raised on Appeal. The amount of the attorney’s fee awarded and the amount of costs awarded. The claimant prevailed on Appeal only on the issue of the costs. This was a dominamous [sic] benefit. Claimant’s counsel’s Verified Petition for appellate attorney’s fees does not delineate the amount of time that was spent to the two respective issues, i.e., the attorney’s fee issue and the cost issue. The employer/carrier also maintains that various of the time entries asserted by claimant’s counsel are excessive and unreasonable. Additionally, the employer/carrier maintains that the Verified Petition includes attorney time from claimant’s counsel that is not properly awardable as it is beyond the date upon which entitlement was resolved. Finally, the employer/carrier does not object to the amount of costs claimed by claimant’s counsel.

The hearing on the claimant’s verified petition for appellate attorney’s fees and costs was held on December 14, 2005. At the onset of the hearing, the parties agreed that the amount of costs to which the claimant was found entitled on remand from Nash, 913 So.2d at 699, is $436.50, which the e/c agreed to pay. Additionally, the e/c agreed to pay $1,399.00 in costs relating to the appeal. Thus, the issue of costs was resolved in the claimant’s favor without further need for discussion.

As the JCC began addressing the merits of the verified petition and the e/c’s response, counsel for the claimant objected to the admission in evidence of the response and moved to strike it on several grounds. First, the claimant’s lawyer objected to the fact that the response is not verified, contrary to our order. The e/c’s counsel, Mr. Brown, answered that the order contemplated a verified petition only, because it is the claimant who has the burden to prove a reasonable fee amount. Noting that our order refers repeatedly to a “verified response” also, the JCC expressed her willingness to accept the response as complying with the order if the e/c’s attorney would state under oath that he was adopting it.

Second, the claimant’s lawyer objected to the response, because it does not include the court-ordered “recitation of all matters alleged in the verified petition which are disputed,” including the number of hours reasonably expended and the appropriate hourly rate, and is not as detailed as the verified petition. The claimant’s attorney argued that, given the “blatant non-compliance” of the unverified response, he had not anticipated any disputed issues at the hearing, there was nothing in the response that would compel a rebuttal, and, in fact, he had decided there was no longer any need to bring an expert witness.

Third, the claimant’s counsel argued the unverified response should be stricken as untimely. Stating she was willing not to accept the response, the JCC indicated it would make little difference whether or not she accepted it, given her decision to place both attorneys under oath and to allow the e/c’s lawyer both to state his position on the record and to cross-examine the claimant’s attorney. When the claimant’s counsel renewed his objection, the JCC announced she was not going to accept the response, but would allow the e/c’s lawyer to present “whatever he needs to.” The claimant’s counsel argued that he would be prejudiced by the decision to let the e/c’s counsel testify and challenge the allegations in the verified petition. Under these circumstances, the appropriate remedy for “surprise” is a continuance, not the more drastic step of excluding evidence. See Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234, 236-37 n. 2 (Fla. 3d DCA 2003) (stating that “any prejudice which may be deemed to have existed ordinarily should be remedied, not by denial of the amendment, but by a continuance”); Batista v. Walter & Bernstein, P.A., 378 So.2d 1321, 1323 (Fla. 3d DCA 1980) (stating that by failing to move for continuance on ground they were surprised by admission of evidence and trial of case on alleged change in theory not reflected in plaintiffs complaint, plaintiffs were precluded from contending on appeal that they had been prejudiced by trial court’s rulings); Seaboard Air Line R.R. Co. v. Cain, 175 So.2d 561, 563 (Fla. 3d DCA 1965). Significantly, the claimant’s counsel did not request a continuance to mitigate the alleged surprise in the JCC’s allowing the e/e’s lawyer to testify or to allow counsel time to arrange for an expert witness to testify.

Subject to these conditions, the claimant’s attorney testified in his own behalf on the issue of the amount of appellate attorney’s fees. Next, the e/c’s counsel was allowed to cross-examine the claimant’s counsel. Afterwards, the e/c’s counsel was permitted to testify in response to the allegations in the verified petition. Finally, the claimant’s lawyer cross-examined the e/c’s lawyer. Both attorneys were allowed to present closing remarks.

The verified petition states that the claimant’s counsel expended a total of 53.5 hours in prosecuting the appeal, approximately 75% of which (or 40.1 hours) were related to the successful claim for costs. The e/c’s counsel testified that although he believed 44-45 hours is a reasonable time for the claimant’s appeal, it is unreasonable to assume that the claimant’s attorney had spent 75% of his time on the issue of costs (in the amount of $436.50) and only 25% on the issue of trial attorney’s fees ($3,000.00). In fact, the e/c’s lawyer suggested that the converse is probably more accurate. On that reasoning, the e/c’s counsel asserted that the 44-1/2 hours should be multiplied by the alleged 25% time reasonably expended by the claimant’s attorney on the successful issue of costs, for a total of 11.125 hours. The verified petition states that the claimant’s counsel’s usual and customary fee for appellate representation in such circumstances is in the range of $275.00-$300.00 an hour. On the other hand, the e/c’s lawyer suggested that $250.00 would be a reasonable hourly fee.

In the March 10, 2006, Order on Appellate Attorney’s Fees and Costs, the JCC accepted the testimony of the e/c’s counsel, in part, and the testimony of the claimant’s counsel, in part. Specifically, the JCC awarded the claimant’s attorney 11.125 hours at an hourly rate of $300.00, for a total of $3,337.50. In other words, the JCC accepted the e/c’s lawyer’s opinion that the claimant’s counsel had reasonably expended only 25% of his time on the successful appellate issue of costs, but the JCC accepted the high end of the claimant’s counsel’s range for a reasonable hourly fee. Costs, to which the parties already had stipulated and which the e/c agreed to pay to the claimant, were not argued at the evidentiary hearing and, accordingly, are not mentioned in the adjudicatory language in the JCC’s order. This second appeal ensued.

Although we review the amount of appellate attorney’s fees awarded by the JCC for an abuse of discretion, we exercise de novo review of the JCC’s construction of the requirements and meaning of our order finding the claimant entitled to appellate attorney’s fees. See Avemco Ins. Co. v. Tobin, 886 So.2d 1034, 1036 (Fla. 4th DCA 2004); Pellar, 687 So.2d at 284-85. In his first issue on appeal, the claimant contends that the JCC abused her discretion in failing to order the e/c to pay the claimant’s costs incurred in perfecting this appeal. The e/c correctly respond that this is not an issue. By stipulation, it was agreed that the e/c would pay the claimant’s costs, and the JCC acknowledged and accepted this agreement orally at the fee hearing and in the text of the challenged order. This being the case, the JCC had no need to adjudicate the issue of costs in the fee order.

In his second issue, the claimant contends that the JCC abused her discretion and materially prejudiced the claimant’s counsel by allowing the e/c to submit an untimely, materially non-eompliant, unverified response and by letting the e/c’s counsel testify at the evidentiary hearing. The record demonstrates that the response was timely submitted according to the timetable set forth in our order and in Florida Rule of Appellate Procedure 9.420(d). The JCC cured any deficiency arising from the unverified status of the e/c’s response by refusing to accept it and by placing the e/c’s attorney under oath before allowing him to respond to the allegations in the verified petition. The claimant’s counsel was afforded an ample opportunity to cross-examine the e/c’s attorney. Although the claimant correctly notes that the response is not nearly as detailed as the verified petition, we conclude that the response is specific enough to have put the claimant’s counsel on notice regarding the key points in the verified petition with which the e/c disagreed. The record demonstrates that the claimant’s counsel was not prejudiced by the response. In fact, even without an expert witness, the claimant’s counsel ably supported his position to the extent that the issues and circumstances of the first appeal would allow it. The claimant’s counsel should not be heard to complain regarding the e/c’s questioning the respective percentages of his time reasonably expended on the successful issue of costs and the unsuccessful issue of trial attorney’s fees in the first appeal. The chronological listing of services rendered, attached to the verified petition, did not clearly delineate these percentages. In fact, the claimant’s counsel complained that his particular method of preparing for an appeal does not lend itself to an easy division of labor between different issues.

The exclusion of evidence is “a drastic remedy which should pertain in only the most compelling circumstances,” and only where the court has made “a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party.” Med. Logistics, Inc. v. Marchines, 911 So.2d 823, 824 (Fla. 1st DCA 2005); see Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981). No such procedural prejudice of the claimant’s counsel was found by the JCC, and the record discloses none. The claimant’s counsel could, and should, have requested a continuance to alleviate any problems of surprise, but failed to do so. See Batista, 378 So.2d at 1323. Finding that the JCC reasonably construed our order awarding appellate attorney’s fees and did not abuse her discretion in allowing both parties to present their positions on the fee issue, we AFFIRM the order on fees and costs.

KAHN, C.J., and THOMAS, J., concur.


author: POLEN, J. .

text:
    Mark MARKS and Beatrice Marks, Appellants, v. STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. 4D05-3581.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Irene, Porter of Hicks & Kneale, P.A., Miami, for appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey M. Dikman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J. .

Appellants, Mark' Marks and his wife, Beatrice Marks (“the Markses”) appeal a final order denying their motion for criminal attorney’s fees and costs pursuant to section 895.05(7), Florida Statutes. The Department of Legal Affairs (DLA) instituted a civil RICO action against the Markses, and the State also instituted a parallel criminal RICO action against Mark Marks. The DLA obtained a lis pendens against the Markses’ property, which was owned by the Markses as tenants by the entireties. In 1990, due to the Staté’s representation that the criminal trial was imminent, the DLA obtained a stay in the civil RICO action while awaiting the outcome of the criminal trial. The criminal RICO action never went to trial, dragging on for thirteen years, and through several appeals before this court, until its ultimate dismissal by the trial court. The DLA then filed a voluntary dismissal of the civil RICO action,'and the Marks made a motion for attorney’s fees, pursuant to section 895.05(7), Florida Statutes, both for the civil RICO action and for the criminal RICO action. The. trial court granted the motion as to the civil RICO action, but denied it as to the criminal RICO action. We affirm.

This case is governed by subsections 895.05(5) and (7), Floridá Statutes. Chapter 895 is Florida’s RICO act and authorizes both civil and criminal RICO actions. “The construction of a statute is an issue of law subject to de novo review.” Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004). “Courts must determine legislative intent from the plain meaning of the statute.” Id. Section 895.05(7), governing civil RICO actions, states, in relevant part:

The Department of Legal Affairs, any state attorney, or any state agency having jurisdiction over conduct in violation of a provision of this act may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
The defendant shall be entitled to recover reasonable attorneys’ fees and court costs upon a finding that the claimant raised a claim which was without substantial factual or legal support.

§ 895.05(7), Fla. Stat. There is no counterpart provision awarding attorney’s fees in the statutes governing criminal RICO actions.

In this case, the trial court found that the civil RICO action was raised without substantial factual or legal support, and awarded the Markses attorney’s fees. Beatrice Marks was never accused of any wrongdoing, and since the Markses’ property was owned as a tenancy by the entire-ties, the trial court determined that the DLA knew or should have known that its lawsuit was not viable. Not content with being awarded attorney’s fees for the civil case, the Markses asserted that they should also be awarded attorney’s fees in the criminal RICO action. The Markses asserted that had the DLA not obtained a stay in the civil RICO action, that litigation would have gone forward and some 6f the issues in the criminal RICO action would have been resolved via the civil action. The Markses assert that the DLA was acting in concert with the State by forcing them to litigate all issues in the criminal area and by sharing discovery in the cases, and therefore, they should be awarded attorney’s fees for at least some of the attorney’s fees incurred in the criminal RICO action.

At the outset, it is imperative that we point out that the DLA and the State Attorney’s office are two separate entities, created under separate articles of the Florida constitution. The DLA is an agency under the Attorney General’s office, which is created under the Executive Branch, and the State Attorney’s office is created under the Judicial Branch. See Art. IV, § 4, Art. V, § 17, Fla. Const. We find that the fact that the two agencies were sharing discovery does not destroy the separate nature of each agency. Even if the two were considered one and the same for purposes of this appeal, the DLA would be afforded the same quasi-judicial immunity from payment of criminal fees as the State is afforded. See Office of State Attorney v. Parrotino, 628 So.2d 1097, 1099 (Fla.1993) (“judicial and prosecutorial immunity in Florida long have existed apart from sovereign immunity,” and this immunity cannot be waived by the Legislature). Further, while the Marks argue that the stay in this case was wrongfully obtained by the DLA, at no point during the thirteen year pendency of the criminal action did the Marks petition for a writ of certiorari in this court to have the stay removed, or return to the trial court to ask that the stay be vacated.

Moreover, there is no statutory provision that would allow the Markses to recover, from the DLA, attorney’s fees incurred in defending a criminal case'instituted by thé State Attorney’s office, regardless of the validity of either case. The Markses fail to point to any case law to support their contention, and section 895.04, Florida Statutes, which controls criminal RICO actions, makes no provision for recovery of attorney’s fees. We find the Legislature clearly intended that reasonable attorney’s fees be recovered in meritless civil forfeiture actions, but not in criminal actions. “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004). “[C]ourts read statutes in pari materia, harmonizing them and giving effect to each.” State v. Burkhart, 869 So.2d 1242, 1245 (Fla. 4th DCA 2004). If the Legislature intended a party to recover attorney’s fees recovered in a criminal forfeiture action, such intention would be laid out in the statute. See Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995) (quoting Gershuny v. Martin McFall Messenger Anesthesia Prof'l Ass’n, 539 So.2d 1131, 1132 (Fla.1989) (“it is also a well-established rule in Florida that ‘statutes awarding attorney’s fees must be strictly construed’ ”)).

We find there is no statutory mandate that would allow the Markses to recover attorney’s fees incurred in the defense of a criminal RICO action, and affirm the trial court’s denial of such fees.

STEVENSON, C.J., and STONE J., concur.


text:
    MIAMI-DADE COUNTY, Appellant, v. Robert L. CRIBBS, Appellee.
    No. 3D05-1035.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Murray A. Greenberg, Miami-Dade County Attorney, and Thomas A. Robertson, Assistant County Attorney, for appellant.
    Andre A. Rouviere, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   On Motion to Clarify

PER CURIAM.

We grant Miami-Dade County’s Motion to Clarify, withdraw this court’s previous opinion dated June 28, 2006, and issue this opinion in its stead.

SunTrust Bank held a first mortgage on property owned by the appellee, Robert Cribbs (“Cribbs”), and filed a Mortgage Foreclosure Complaint against Cribbs and various other defendants. Among the other defendants was the appellant, The Dade County Board of County Commissioners, and Metro-Miami Action Plan, as agent and instrument of Miami-Dade County (the “County”), which held a second mortgage on Cribbs’ property. The County filed an Answer to the Complaint, which was signed by an Assistant County Attorney for the Miami-Dade County Attorney, Suite 2810, Stephen P. Clark Center, 111 N.W. First St. After the sale of the property and the disbursement of funds to SunTrust, there were surplus funds in the amount of $48,587.27. Cribbs subsequently hired an attorney, Andre Rouviere, to recover the surplus funds.

Rouviere filed a Motion to Disburse Surplus Funds to Defendant Robert L. Cribbs and sought the disbursement of the funds into his trust account. The Motion was noticed for hearing. The Motion and notice were sent to, among others, The Dade County Board of County Commissioners, at 111 N.W. First St., and the Metro-Miami Action Plan, at 111 N.W. First St., 2nd Floor. It is undisputed that notice was not mailed to the County Attorney. The trial court held a hearing on the Motion on March 23, 2004. The County Attorney did not attend the hearing. The court disbursed the funds to Cribbs, and ordered the funds paid to Rouviere’s trust account. Rouviere disbursed the funds to his client who has since left the area.

The County, on May 14, 2004, filed a Motion to Set Aside Order of Disbursement of Funds and for Sanctions. At the hearings on the Motion, the County argued that it was never noticed for an evidentiary hearing to determine priority to the funds because the notice was sent to the Board of County Commissioners at the Dade County Building and not to the County Attorney. The County argued that the service error was compounded by the fact that Rouviere did not determine whether there was another mortgage, and that this was fraud on the court. Rouviere admitted that he did not know about the second mortgage and if he had, he would not have made the claim. The County sought a judgment against Rouviere for the amount of money disbursed, in addition to a judgment against Cribbs.

Ultimately, the judge determined that because Rouviere sent the notice to the wrong place, “it is a mistake,” and entered an Order Denying the County’s Motion to Set Aside Order of Disbursement of Funds and for Sanctions. The County appeals from the Order. We reverse because the Motion to Disburse Funds and notice of the hearing on the Motion were not served upon the County’s attorney of record.

Florida Rule of Civil Procedure 1.080(b) states, in relevant part, that “[w]hen service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court.” Accordingly, in any pending action, the Rule requires service upon the attorney of record, and failure to serve the attorney may justify reversal for lack of notice. Smith v. Dawson, 880 So.2d 784 (Fla. 2d DCA 2004). In Smith, the husband appealed from a postdissolution judgment, awarding attorney’s fees and costs to his former wife, arguing that the amended motion for fees and the notice of hearing were not served upon his attorneys of record. In concluding that the lack of notice required reversal of the fee judgment, the Second District reasoned that because the action was still pending when the motion was filed, Rule 1.080(b) required the wife to serve notice on her husband’s attorneys of record, despite her claim that the attorneys were no longer representing her husband. Smith, 880 So.2d at 786; see also Hanley v. Hanley, 426 So.2d 1230, 1232 (Fla. 2d DCA 1983)(vacating property settlement agreement and final judgment of dissolution where husband’s attorney was not served "with notice of final hearing pursuant to Rule 1.080; “deficiency in notice bears on due process”).

Moreover, service on the party’s attorney of record is required even when the party is served. For example, in Gulliver v. Texas Commerce Bank, 787 So.2d 256 (Fla. 5th DCA 2001), the appellants appealed the trial court’s refusal to grant relief from a final summary judgment. In that case, the appellee sent notice of the summary judgment hearing directly to the appellants, instead of to the appellants’ attorney. No one appeared at the hearing on behalf of the appellants and the court entered final summary judgment. The Fifth District found that

[t]he lack of notice is fatal in this case. The mere fact that a copy of a notice of hearing is sent to a represented client does not relieve the adverse party from notifying counsel of the hearing .... Therefore, notice to the client is not an acceptable substitute for the required notice to opposing counsel.

Gulliver, 787 So.2d at 258.

In the present case, as the trial court found below, and which was admitted to by Mr. Rouviere, the Motion and notice were not served upon the County’s attorney of record although they were apparently sent to the two County parties. This “mistake” of failing to give notice to the County’s attorney prevented the County from having its day in court, and denied the County the opportunity to prove that it had an interest superior to that of Cribbs in the surplus proceeds. Pursuant to Rule 1.080(b) and the above cases, the trial court therefore improperly denied the County’s Motion to Set Aside the Order of Disbursement. Accordingly, the Order Denying the County’s Motion to Set Aside Order of Disbursement of Funds is reversed and the cause remanded to the trial court for it to vacate the Order of Disbursement and order both Robert Cribbs and Andre Rouviere to repay the amount of the surplus funds into the registry of the court, failing which judgment shall be entered against them both jointly and severally for any sums not reimbursed.

Reversed and remanded.

      . Below, and before this Court, Rouviere did not dispute that he failed to send notice of the hearing to the County’s attorney of record. He simply explained to the trial court that his secretary mistakenly omitted the County's attorney's name and address from the service list. He also admitted below that he was not aware of the County's interest (although the County was a named defendant in the suit and filed an answer).


text:
    Jorge TEJEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1548.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Jorge Tejeda, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Leroux, 689 So.2d 235 (Fla.1996).


text:
    Jose R. RANGEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1922.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Jose R. Rangel, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Jose R. Rangel, appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

The defendant was sentenced to fifteen yéars in prison as a Prison Release Reof-fender (PRR). In his rule 3.800(a) motion, the defendant claims that his sentence is illegal because the evidence the State provided to establish his last release date was hearsay evidence. The defendant does not, however, claim that he does not qualify as a PRR because he did not commit a qualifying offense within three years after being released “from a state correctional facility operated by the Department of Corrections.” See § 775.082(9) Fla. Stat. (2000).

To attack his PRR adjudication on a 3.800(a) motion, the defendant had to allege that his 2000 offense was committed more than three years after his release from prison. See Macaluso v. State, 912 So.2d 694, 695-96 (Fla. 2d DCA 2005). The defendant has not made this allegation, thus the trial court was correct in denying his motion. See Sampson v. State, 832 So.2d 251, 253 (Fla. 5th DCA 2002) (claims regarding insufficient proof of prior convictions were legally insufficient where defendant failed to allege that he lacked the prior criminal record necessary for habitualization). Moreover, because here the error does not appear on the face of the record, it is not cognizable under Florida Rule of Criminal Procedure 3.800(a). See Bover v. State, 797 So.2d 1246, 1251 (Fla.2001) (“[T]he adjudication of a defendant as a habitual offender when the requisite sequential felonies do not exist may be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is apparent from the face of the record.”).

Affirmed.


text:
    The NELCO COMPANIES and Unisource Administrators/Figa, Appellants, v. Anthony LOTT, Appellee.
    No. 1D05-3043.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Mark K. Eckels of Boyd & Jenerette, P.A., Jacksonville, and William Bassett, Jr.' of Lydecker, Diaz, Lee, Behar, Berga & de Zayas, L.L.C., Miami, for Appellants.
    Dean Burnetti, Lakeland, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.
   PER CURIAM.

Appellants, the employer and carrier (E/C) in this workers’ compensation matter, challenge an award of benefits made by the judge of compensation claims (JCC). In the order, the JCC found the doctrine of res judicata prevented the E/C from raising the defense of section 440.09(4), Florida Statutes (2004). We vacate the order and remand for further proceedings.

The record discloses that, in response to an earlier petition for benefits, the E/C raised the “fraud” defense and specifically argued that appellee Anthony Lott failed to disclose to treating physicians two motor vehicle accidents that may well have played a role in his earlier claim for benefits. The record also discloses, however, that after raising the defense in the earlier action, the E/C stipulated with Lott to a complete settlement of all claims as of November 28, 2000. Specifically, the parties agreed “to resolve the outstanding claims that were to be heard on the final hearing on November 28, 2000.” Lott then filed the first of the present series of petitions for benefits on October 15, 2001. In response to the new petitions, the E/C again asserted a violation of section 440.09(4), which the JCC disallowed under the doctrine of res judicata.

“Res judicata applies to all matters actually raised and determined as well as to all other matters which could properly have been raised and determined in the prior action, whether they were or not.” ICC Chem. Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994). In this case, the E/C does not simply argue that Lott made misrepresentations prior to the 2000 settlement. If that were the sole argument, res judicata would indeed bar the defense. The E/C argue, however, that Lott, after the 2000 settlement, made subsequent misrepresentations to treating physicians after seeking additional benefits. As the E/C’s section 440.09 defense is based upon facts that allegedly arose after the 2000 settlement and concerns new petitions for benefits, the defense will not be barred by the earlier settlement. See Caron v. Systematic Air Servs., 576 So.2d 372, 375 (Fla. 1st DCA 1991). We note that although the JCC seemed less than impressed with the evidence supporting the fraud defense, the JCC failed to make an alternative finding based upon a lack of evidence. Accordingly, we VACATE the order and REMAND for further proceedings.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


text:
    Larry C. MORROW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1737.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.530; Mendoza v. State, 700 So.2d 670, 674 (Fla.1997), cert. denied, 525 U.S. 839, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998); cf. Fla. R.Crim. P. 3.410, 3.420.


author: SUAREZ, J.

text:
    SILVERMAN WENDER KOONIN EPSTEIN GARCIA & ROSENCWAIG, P.A., etc., et al., Appellants, v. Jay J. DENNIS, M.D., Appellee.
    No. 3D06-985.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Robert P. Frankel and Nolan K. Klein, Miami, for appellants.
    Pertnoy, Solowsky Allen, Miami, and Richard Allen, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   SUAREZ, J.

The medical practice of Silverman, Wen-der, Koonin, Epstein, Garcia, & Ro-sencwaig, P.A. (“Silverman”) appeals a non-final order denying its motion to compel arbitration and to stay litigation with its former employee, Dr. Jay Dennis (“Dr. Dennis”). We affirm.

Silverman contends that arbitration is mandatory under Dr. Dennis’ employment agreement. Dr. Dennis asserts that the arbitration clause is no longer in effect because the agreement containing the clause has expired.

Dr. Dennis entered into a two-year employment contract to perform hand surgery for the Silverman practice in 2001. The contract contained an arbitration clause requiring the parties to arbitrate any claims or disputes arising out of or related to the contract. The parties agree that the contract expired by its terms in August, 2003. Silverman sent Dr. Dennis a letter confirming the fact that the contract had expired and that Dr. Dennis’ employment was being continued on an at-will basis. Dr. Dennis continued working for Silverman for two years after the agreement expired. When he left Silver-man in 2005, he filed suit in circuit court seeking remuneration for work he allegedly performed. Silverman moved to compel arbitration, arguing that the employment contract and its arbitration clause are still controlling because the parties continued to govern themselves according to the agreement’s terms after it expired. The trial court denied the motion to compel arbitration and Silverman appeals.

We affirm because the employment contract containing the arbitration clause is no longer in effect. The employment contract in question expired by its terms in 2003. After the agreement expired, Dr. Dennis continued working for Silverman as an at-will employee until he left Silverman’s practice in 2005. During those two years, no contract existed between the parties that would obligate them to arbitrate a dispute. Therefore, the trial court correctly rejected Silverman’s motion to compel arbitration. See Sanz v. R.T. Aerospace Corp., 650 So.2d 1057, 1060 (Fla. 3d DCA 1995) (holding that a noncompete clause was unenforceable where the written agreement containing that clause had expired and the employee continued performing pursuant to an oral agreement).

Affirmed.


text:
    PREFERRED CARE PARTNERS HOLDING CORP., et al., Appellants, v. MERCYHEALTH, INC., et al., Appellees.
    No. 3D06-135.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Greenberg Traurig and Elliot H. Scherker, Marlene K. Silverman and Julis-sa Rodriguez, Miami, for appellants.
    Hunton & Williams and Vance E. Salter and Christopher N. Johnson, Miami, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dunkin v. Barkus & Kronstadt, D.O’s P.A., 533 So.2d 877 (Fla. 3d DCA 1988), review denied, 542 So.2d 1332 (Fla.1989); Manpower, Inc. of Milwaukee v. Olsten Permanent Agency of Cent. Fla., Inc., 309 So.2d 57 (Fla. 2d DCA 1975).


text:
    Shellman PETERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1090.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Shellman Peterson, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Hitchcock v. State, 866 So.2d 23, 27-28 (Fla.2004); Peterson v. State, 919 So.2d 573, 574 (Fla. 3d DCA 2006).


text:
    P.R., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and Guardian ad Litem Program, Appellees.
    No. 4D06-2138.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2006.
    Roger Ally of Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee, Department of Children And Families.
    Patricia M. Propheter, Orlando, for ap-pellee, Guardian Ad Litem Program.
   PER CURIAM.

Based on appellee’s concession of error, we reverse the order on long term custody and terminating protective supervision for the reasons indicated in P.R. v. Dep’t of Children & Families, 936 So.2d 754 (Fla. 4th DCA 2006).

WARNER, GROSS and MAY, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Monier Mahmout RAHALL, Petitioner, v. Mohana CHEAIB-RAHALL, Respondent.
    No. 2D05-3921.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2006.

      Jane H. Grossman of Law Offices of Jane H. Grossman, St. Petersburg, for Petitioner.
    Charles E. Monty of Charles E. Monty, P.A., Clearwater, for Respondent.
   NORTHCUTT, Judge.

Mr. Rahall and Mrs. Cheaib-Rahall are involved in pending litigation to dissolve their marriage. As part of the proceedings, the circuit court ordered Mr. Rahall to pay his wife $15,000 in temporary attorney’s fees by a certain date. Mr. Rahall did not pay as ordered, and Mrs. Cheaib-Rahall moved to have him held in contempt. The court did not hold Mr. Rahall in contempt, but it entered a sanctions order barring him from conducting discovery and from pursuing his previously filed motion for an emergency change of temporary custody until he complies with the fee order. Mr. Rahall seeks a writ of certiora-ri quashing the sanctions order.

We deny the petition as it relates to the court’s decision to prohibit discovery. However, we conclude that the circuit court’s duty to inquire into and ensure the best interests of the children must prevail over its understandable determination that Mr. Rahall’s conduct warrants sanctions. Therefore, we grant the petition in part and quash the portion of the order that prevents Mr. Rahall from pursuing his emergency motion to transfer temporary custody.

Decisions concerning child custody during the pendency of dissolution litigation are governed by the shared parental responsibility law, section 61.13, Florida Statutes (2004), and must be based on the best interests of the child. Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003). On direct appeal, Florida courts have consistently reversed orders or judgments that granted custody to one parent based on sanctions imposed for the other parent’s recalcitrance. For example, in Burckle v. Burckle, 915 So.2d 747 (Fla. 2d DCA 2005), the circuit court transferred custody from the father to the mother as a sanction for the father’s refusal to comply with court-ordered visitation. We reversed the custody change, noting that such a sanction does not compel compliance with the court’s order. “[Rjather it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct.” Id. at 749 (quoting LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1133 (Fla. 2d DCA 1999)); see also Decker, 848 So.2d at 503 (stating that a temporary custody decision must be based on the child’s best interest and not as a sanction for a parent’s behavior).

Likewise, in Rose v. Ford, 861 So.2d 490 (Fla. 4th DCA 2003), the district court reversed a judgment modifying custody in favor of the mother. As a sanction for the father’s failure to pay the mother’s attorney’s fees, the circuit court had stricken his pleadings and entered a default against him. The court noted that the harsh sanction of striking the father’s pleadings based on his failure to pay the mother’s attorney’s fees was improper when it foreclosed him from litigating child custody issues, in which the best interests of the child must be considered. Id. at 493. See also Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998) (“It has long been the rule in Florida that child custody should be decided based on the best interests of the children, not based on the default of one of the parents.”); Andrews v. Andrews, 624 So.2d 391, 392 (Fla. 2d DCA 1993) (reversing an order striking the mother’s pleadings in a modification proceeding for her failure to comply with court orders and noting that decisions affecting child custody require consideration of the child’s best interests); McEwen v. Rodriguez, 766 So.2d 316, 318 (Fla. 4th DCA 2000) (holding that a modification of custody should not be based on one parent’s default because it is the child’s best interests that are at stake).

For this court to grant a certiorari petition challenging a nonfinal order, the petitioner must establish: “(1) a departure from the essential requirements of the-law, (2) resulting in material injury for the remainder of the trial, (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995); see also Barker v. Barker, 909 So.2d 333, 336 (Fla. 2d DCA), review denied, 914 So.2d 952 (Fla.2005).

The previously cited cases establish that the law requires courts to decide child custody issues based solely on the children’s best interests and that this consideration must govern even in the face of á party’s procedural defaults or contumacious conduct. While a parent’s behavior in connection with the litigation may be considered in a custody decision, that conduct cannot be the determinative factor. See Andrews, 624 So.2d at 392 (noting that although the mother was an uncooperative litigant she might still be the better parent); Seibert v. Seibert, 436 So.2d 1104, 1105 (Fla. 4th DCA 1983) (stating that a parent’s noncompliance with a court order is a circumstance to' be considered in a child custody decision). In other words, a parent’s actions in the lawsuit cannot trump the child’s right to have custody decided based on his or her best interests. The result of the sanction imposed against Mr. Rahall is that the court will not address the children’s best interests until their father pays court-ordered attorney’s fees. That violation of the children’s right is a departure from the essential requirements of law.

The second Parkway prong, material injury for the remainder of the trial, has also been met under the facts of this case. Mr. Rahall’s emergency motion to change temporary custody alleges that the children’s mother has left them with inappropriate custodians and that the children have been injured or abused. If the allegations are true, the sanctions order will have deprived the court of its ability to protect the children from harm. If the father does not pay the court-ordered fees, the children may be forced to remain in this alleged dangerous situation until the trial is completed. While the present record contains no support for Mr. Rahall’s contentions, the court must address them notwithstanding his potentially contemptuous behavior. As well as establishing the second prong of the Parkway test, these facts also establish the third prong, that is, that the harm cannot be corrected on a post-judgment appeal.

We grant the petition for certiorari in part and quash the circuit court’s order insofar as it prohibits Mr. Rahall from bringing before the court his emergency motion to change temporary custody. In doing so, we emphasize that we do not condone Mr. Rahall’s refusal to pay the court-ordered temporary attorney’s fees. The circuit court remains free to impose any other sanctions it believes might compel Mr. Rahall’s compliance with the order, including indirect criminal contempt. See Lomison v. Lomison, 329 So.2d 408, 409 (Fla. 2d DCA 1976).

Petition denied in part and granted in part.

ALTENBERND and SILBERMAN, JJ., Concur.