author: MAY, J.

text:
    BROWARD COUNTY, Appellant, v. FAIRFIELD RESORTS INC., Sea Gardens Beach and Tennis Resort, Inc., and Vacation Break Resorts, Inc., d/b/a Santa Barbara Resort and Yacht Club, Appellees.
    No. 4D05-2288.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 15, 2007.

      Jeffrey J. Newton, Andrew J. Meyers and James D. Rowlee, Fort Lauderdale, for appellant.
    Erik E. Hawks and Brandon W. Banks of Akerman Senterfitt, Orlando, for appel-lees.
   MAY, J.

To tax or not to tax — that is the question. Broward County appeals an adverse summary judgment in which the trial court declared that Fairfield Resorts, Inc., the owner, seller, and operator of timeshares, was not responsible for collection of the county-imposed tourist development tax on Fairfield’s sale of “inspection privilege packages.” It argues the trial court erred in its application of section 125.014(3), Florida Statutes (2001), and section 31 1/2— 16, County of Broward, Florida, Code Part II, chapter 31 1/2, article II, to the packages. We disagree and affirm.

Fairfield Resorts, Inc. owns, sells, and operates timeshares at Sea Gardens Beach and Tennis Resort, Inc. and Santa Barbara Resort and Yacht Club. To entice prospective buyers, Fairfield offers a one-time inspection privilege package to prospective timeshare buyers, who pay $995 to acquire points for use at any Fairfield timeshare within twelve months. Fairfield credits the $995 toward any future purchase price. The packages can be purchased throughout the country at most Fairfield locations and can be used for up to a three-week stay at any Fairfield location. Approximately 75% of these packages do not result in timeshare purchases.

As part of its regular random auditing scheme, the Broward County Revenue Collection Division audited Sea Gardens and Santa Barbara. During the audit, Broward County discovered that Sea Gardens and Santa Barbara collected and paid sales tax. on the inspection privilege packages sold in Broward County. This discovery prompted Broward County to further investigate the inspection privilege packages. During calendar years 1998, 1999, and 2000, 974 packages resulted in non-owner visitor stays at Sea Gardens, and during 1999 and 2000, 137 packages were used at Santa Barbara. The audit further disclosed that Fairfield had not collected the tourist development tax for these stays.

In October 2001, Broward County provided Sea Gardens with the following notice.

Broward County presents you with a NOTICE OF AUDIT ASSESSMENT for Tourist Development Tax for the period of time during which you have been found liable on transactions subject to this tax under the Broward County Code of Ordinances, Section 31 1/2-16 during the audit period January 1998 through December 2000.

Broward County sent an identical notice to Santa Barbara for the period of January 1999 to December 2000. Fairfield filed a timely written protest to the assessments, which it later supplemented.

Following a hearing, Broward County issued two Notices of Decision sustaining the assessments, but then offered Closing Statements that resulted in a downward adjustment of the amounts owed. Fair-field’s petition for reconsideration was denied, but Broward County again offered Fairfield revised Closing Agreements further reducing the amounts due.

Fairfield filed a complaint for declaratory relief and moved for final summary judgment. The trial court entered a final summary judgment in favor of Fairfield. The court found that the legislative intent of the tourist development tax “was to tax entities that are in the business of leasing or renting their facilities to transient guests.” The court then determined that Fairfield was engaged in the business of selling timeshares, rather than leasing or renting them, thereby rendering sections 125.0104(3)(a), 212.03(1), and 212.0305(3)(a), Florida Statutes, and section 31 1/2-16 of the Broward County Code of Ordinances inapplicable.

Broward County argues that the trial court erred in finding the county’s tourist development tax does not apply to Fairfield’s sale of inspection privilege packages by incorrectly relying on section 212.03(1) to analyze whether Fairfield was in the business of leasing or renting. We agree that this provision is inapplicable, but the plain meaning of section 125.0104(3)(a) provides the answer to the riddle.

As there are no disputed issues of fact, only the legal issue — construction of the taxing statute — is left to be determined. Fla. R. Civ. P. 1.510(c). We review summary judgments de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130-31 (Fla.2000); Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 957 (Fla.2005).

The first step in statutory interpretation is to read the actual language used in the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). We must then give that language its plain and ordinary meaning, “unless the words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla.1992).

Section 125.0104(3), Florida Statutes (2001) provides in part:

(a) It is declared to be the intent of the Legislature that every person who rents, leases, or lets for consideration any living quarters or accommodations in any hotel, apartment hotel, motel, resort motel, apartment, apartment motel, room-inghouse, ... or condominium for a term of 6 months or less is exercising a privilege which is subject to taxation under this section....
(b) Subject to the provisions of this section, any county in this state may levy and impose a tourist development tax on the exercise within its boundaries of the taxable privilege described in paragraph (a)....

Pursuant to this provision, Broward County enacted its own tourist development tax ordinance. That ordinance provides:

(1) There is hereby levied and imposed a tourist development tax throughout Broward County, Florida, at a rate of two percent (2%) of each whole and major fraction of each dollar of the total rental charged [sic] every person who rents, leases or lets for consideration any living quarters or accommodations in any hotel, apartment hotel, motel, resort motel, apartment, apartment motel, rooming house, ... or condominium for a term of six (6) months or less is exercising a privilege which is subject to taxation under this section, unless such living quarters or accommodations are exempt according to the provisions of Chapter 212, F.S.

County of Broward, Fla., Code Part II, ch. 311/2, art. II, § 31 1/2-16 (1980).

The plain wording of these tourist development tax provisions do not include either timeshares or inspection privilege packages. Indeed, timeshares and inspection privilege packages did not exist when the statute and ordinance were enacted. And, evidence at the summary judgment hearing revealed that when Broward County requested the legislature to include timeshares within the purview of section 125.0104, it declined.

Broward County suggests, however, that the inspection privilege packages fall within the purview of the statute and ordinance as they are synonymous with the renting of a roominghouse. To reach such a conclusion would require this court to look beyond the clear wording of the statute. We decline to do so.

To the extent it could be' argued that the statute is ambiguous in its application to timeshares or inspection privilege packages, we resort to a long-standing principle. “It is a fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer.” Maas Bros. v. Dickinson, 195 So.2d 193, 198 (Fla.1967). See also Broward County v. Eller Drive Ltd. P’ship, 939 So.2d 130 (Fla. 4th DCA 2006). In this case, all that is required in construing this statute and ordinance is to give the words used their plain meaning. Timeshares and inspection privilege packages are simply not included in the statute or ordinance. They are therefore not subject to the tourist development tax.

Affirmed.

POLEN and GROSS, JJ., concur.

      . The purchase of the packages in Broward County does not mean that the purchaser will use the purchased points toward a stay in a timeshare located in Broward County. Correspondingly, a person could purchase a package in Denver, Colorado, but ultimately use the purchased points toward a stay in Broward County.

      . Section 212.03(1), Florida Statutes (2001), regulates the imposition and administration of the state level "transient rentals tax” and is inapplicable to the county "tourist development tax” at issue here. Section 125.0104 does not have the same requirement that the person engage "in the business of renting, leasing, letting or granting a license....” § 212.03(1), Fla. Stat. (2001).

      . "We acknowledge that the statutory definition of a roominghouse is broad. See § 212.02(10)(c), Fla. Stat. (2001).


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    BODYGEAR ACTIVEWEAR, INC., a Florida corporation, Appellant, v. COUNTER INTELLIGENCE SERVICES, a Florida corporation, Appellee.
    No. 4D06-1498.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Robert P. Bissonnette of Robert P. Bis-sonnette, P.A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   GROSS, J.

Bodygear Aetivewear, Inc. appeals the trial court’s denial of its motion to vacate final judgment and set aside a default. We affirm the order refusing to set aside the default as being within the court’s discretion after an evidentiary hearing. However, because the circuit court entered a final judgment for unliquidated damages without the notice and hearing required by the rules of civil procedure, we reverse the order denying the motion to vacate the final judgment.

On November 14, 2003, appellee, Counter Intelligence Services,' Inc., filed suit against Bodygear for breach of contract. The complaint alleged that pursuant to an oral agreement, Counter Intelligence was to construct a museum-style advertisement booth within the Fort Lauderdale International Airport for Bodygear to advertise its business. In exchange, for the ten-year term of its lease, Bodygear was to place in the booth a sign advertising Counter Intelligence’s business. Counter Intelligence claimed that it fully performed under the contract, but that Bodygear failed to incorporate a sign advertising its business with-' in the booth. The complaint contained a demand for a trial by jury.

On March 5, 2004, Counter Intelligence moved for default on the basis of Body-gear’s failure to file, or serve any paper in response to the complaint. The same day, the clerk entered a default against Body-gear.

On September 29, 2005, Counter Intelligence moved for the entry of a final judgment based upon the default. In support of its motion, Counter Intelligence filed an affidavit of its owner and president. The affidavit stated that Counter Intelligence (1) incurred $12,000 in expenses to construct the booth, (2) lost future accounts, that “would have been generated by advertising within” the booth, of $50,000, or $5,000 per year for the ten-year duration of the agreement, and (3) expended $1,000 for a sign for display in the booth.

On September 30, 2005, without a hearing or trial, the circuit court entered a final judgment for $63,000.

On October 19, 2005, Bodygear. filed its motion to vacate the final judgment and set aside the default. The trial court held an evidentiary hearing on January 3, 2006 and denied the motion on March 8, 2006.

We affirm that portion of the order denying the motion to set aside the default. There was conflicting evidence at the hearing as to whether Bodygear served “any paper in the action” under Florida Rule of Civil Procedure 1.500(a). The circuit court did not abuse its discretion in resolving this issue against Bodygear.

We agree with Bodygear that it was entitled to a trial on the amount of damages.

A default admits a plaintiffs entitlement to liquidated damages under a well-pled cause of action, but not to unliq-uidated damages. Bowman v. Kingsland Dev., Inc., 432 So.2d 660 (Fla. 5th DCA 1983); see Watson v. Seat, 8 Fla. 446, 447 (1859); Pierce v. Anglin, 721 So.2d 781, 783 (Fla. 1st DCA 1998). It is well-settled that “[a] defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliq-uidated damages.” Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) (quoting Bowman, 432 So.2d at 662); Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1133, 1134-(Fla. 5th DCA 1987).

“Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Pierce v. Anglin, 721 So.2d 781, 783 (Fla. 1st DCA 1998) (quoting Bowman, 432 So.2d at 662); Sloan v. Freedom Sav. & Loan Ass’n, 525 So.2d 1000, 1001 n. 1 (Fla. 5th DCA 1988). Actions for sums directly due on negotiable instruments are for liquidated damages, since every negotiable instrument must be an “unconditional promise or order to pay a certain sum in money.” See Bowman, 432 So.2d at 662 (citations omitted). Moreover, liquidated damages may exist in a contractual setting “when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party following a breach of the contract by the other.” Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334 (Fla. 5th DCA 1990).

However, damages are not liquidated if a court must consider testimony or evidence “to ascertain facts upon which to base a value judgment.” Bowman, 432 So.2d at 662; see Parker v. Dekle, 46 Fla. 452, 35 So. 4 (1903) (finding fundamental error because, to determine a reasonable attorney’s fee, testimony would be required — damages could not be ascertained solely by an ex parte affidavit from an attorney to the effect that $40 would be a reasonable fee); Pierce, 721 So.2d at 783 (stating that damages are unliquidated “[i]f testimony must be taken to determine the exact amount of damages.”); Tand v. C.F.S. Bakeries, Inc., 559 So.2d 670 (Fla. 3d DCA 1990) (finding that damages were unliquidated where the amended complaint made reference to an exhibit that merely stated that the defendant owed the plaintiff the sum of $7,219.06); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334 (Fla. 5th DCA. 1990) (rejecting plaintiffs assertion that its damages were liquidated simply because a fixed sum was- demanded by the complaint).

Watson v. Internet Billing Co., 882 So.2d 533 (Fla. 4th DCA 2004), provides an example of unliquidated damages. There, the plaintiff claimed that the defendant converted funds and unjustly enriched himself by failing to pay media clients who published advertising developed by the plaintiff. Id. at 534. After a clerk’s default was entered, the plaintiff filed an affidavit that “quantified” the amount of damages as $465,702.60. We held that such damages were unliquidated, because “evidence would be required to ascertain what sums if any the firm had retained by improperly withholding payment to a media client that had published the advertising.” Id.; see also Boulos v. Yung Sheng Xiamen Yong Chem. Indus. Co., 855 So.2d 665 (Fla. 4th DCA 2003) (holding that lost profits in a breach of contract action were unliquidated damages, so that a trial noticed under rule 1.440(c) was required before awarding the damages in a final judgment).

All the damages Counter Intelligence sought for the breach of contract were unliquidated. For lost profits or sums expended to perform a contract, testimony or other evidence is necessary “to ascertain facts upon which to base a value judgment” and set a damage figure. Therefore, even though it was in default, Bodygear was entitled to an evidentiary hearing on the issue of damages noticed in compliance with Florida Rule of Civil Procedure 1.440. See Roggemann v. Boston Safe Deposit & Trust Co., 670 So.2d 1073, 1075 (Fla. 4th DCA 1996). Florida Rule of Civil Procedure 1.440(c) requires that “[i]n actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).”

We reverse the final judgment and remand to the trial court to set a trial on damages. We affirm that portion of the order denying the motion to set aside the default.

SHAHOOD and HAZOURI, JJ., concur.

      . As the fifth district has observed, the requirement of a trial to assess unliquidated damages after a default is not new to Florida law. See Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 663-64 (Fla. 5th DCA 1983).
      In Watson v. Seat, 8 Fla. 446, 447 (1859), the defendant failed to plead, but claimed the right to be heard as to the amount of damages. The trial court refused to allow the defendant to inquire into this aspect of the case. Reversing the trial court, the supreme court held that by failure to plead the defendant admitted the plaintiff’s right to recover on the pleaded cause of action but nothing more and therefore the defendant was entitled to be heard as to damages. The court observed that this point of practice had not theretofore been made before that court “for the reason, perhaps, that the rule prevailing in the circuit court has been so generally acquiesced in, and we think such practice consonant with reason, justice, and law.”

        Bowman, 432 So.2d at 664 (quoting Watson, 8 Fla. at 447).

      . We do not reach the issue of whether the lost profits claimed are a proper element of damages in this case. See Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865, 867 (Fla. 1st DCA 1982); Levitt-ANSCA Towne Park P'ship v. Smith & Co., 873 So.2d 392, 396 (Fla. 4th DCA 2004); see generally, Marshall Constr., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845 (Fla. 1st DCA 1990).


author: PER CURIAM.

text:
    Gregory LAVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4195.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 15, 2007.
    Gregory Lavin, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

In reviewing Lavin’s petition for writ of habeas corpus in case number 4D03-2579, this court already concluded that the alleged errors did not amount to fundamental error in Lavin’s case. Re-litigation of these issues is barred by collateral estop-pel. There was no error in the trial court summarily denying the post-conviction moP-on'

STONE, WARNER and GROSS, JJ., concur.


text:
    James R. VANOVER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-4154.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    James R. Vanover, Milton, pro se.
    No response required for respondent.
   PER CURIAM.

James R. Vanover appeals from an order denying his “Notice of Inquiry,” in which he requested copies of his plea and sentencing transcripts free of charge, so that he may make a collateral challenge under Florida Rule of Criminal Procedure 3.850. We treat this appeal as a petition for writ of mandamus and deny the petition. See Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)(“Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a post-conviction motion or a petition for extraordinary relief.”).

STONE, POLEN and KLEIN, JJ., concur.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. Glenn KELLY, Appellee.
    No. 4D06-1039.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Frank A. Maister, Fort Lauderdale, for appellee.
   KLEIN, J.

After Kelly was charged with felony DUI, he moved to dismiss the information on the ground that he was being charged with a felony based on two earlier DUIs and, because the earlier DUIs were un-counseled misdemeanors, they could not be used to enhance this DUI to a felony. The trial court granted the motion, and the state appeals. The ultimate answer to the question depends on whether the Florida Supreme Court adheres to Hlad v. State, 585 So.2d 928 (Fla.1991), or recedes from Hlad and follows Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Being bound by Hlad, we affirm and certify the issue as one of great public importance.

Kelly pled no contest to a DUI in 1995 and another DUI in 1997. He testified in this case that he was indigent, not represented by counsel in those cases, and not incarcerated in either case. The trial court ruled that, because Kelly could have been incarcerated in the prior cases for more than six months, the two prior un-counseled convictions cannot be used to enhance his current misdemeanor DUI to a felony DUI.

In Hlad the Florida Supreme Court held that an uncounseled earlier misdemeanor DUI conviction could be used to enhance a current DUI charge to a felony, because the defendant “did not receive imprisonment nor could he have been imprisoned for more than six months as a result of the uncounseled conviction.” Hlad, 585 So.2d at 930. See also State v. Beach, 592 So.2d 237 (Fla.1992). In Hlad the Florida Supreme Court relied entirely on decisions of the United States Supreme Court such as Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (indigent defendant entitled to counsel where convicted of misdemeanor resulting in incarceration). Most significantly, the Hlad court relied primarily on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), which was not entirely clear as to whether it is actual imprisonment, or the possibility of imprisonment for more than six months, which makes an uncounseled prior misdemeanor conviction unavailable for enhancement.

After the Florida Supreme Court decided Hlad, the United States Supreme Court overruled Baldasar and clarified that it was only actual imprisonment which would preclude a prior uncounseled misdemeanor conviction from being used to enhance. Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The Nichols Court, in footnote 12, left the states free to guarantee a right to counsel for indigent defendants charged with misdemeanors where there is no prison term imposed, if imprisonment is a possibility. The trial court in this case accordingly correctly followed Iliad.

We therefore affirm, but, because the Florida Supreme Court relied previously on Baldasar when it decided Hlad and Beach, and Baldasar has now been overruled, we certify the following question as one of great public importance.

Can an uncounseled prior misdemeanor conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, be used to enhance a current charge from a misdemeanor to a felony?

POLEN and MAY, JJ., concur.

      . The state has argued that Kelly is precluded from raising the issue of his uncounseled pri- or convictions because, in the plea agreements in those cases, he waived the right to counsel. This issue was contested at the evi-dentiary hearing on the motion to dismiss, at which Kelly testified, and the court, although not expressly saying so, obviously resolved the waiver issue against the state.


text:
    ALLIED SYSTEMS, LTD., etc., Appellant, v. Benjamin KAUFMAN, etc., Appellee.
    No. 3D06-1513.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Adorno & Yoss and Robert H. Schwartz, Ft. Lauderdale; McConnaughhay, Duffy, Coonrod, Pope & Weaver and Robert H. Sturgess, Jacksonville, for appellant.
    Podhurst Orseck and Joel D. Eaton, Miami, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the trial court’s non-final order denying the defendant Allied Systems, Ltd.’s motion to transfer venue to Flagler County. This action arose out of a motor vehicle collision in Flagler County that resulted in the death of Jessica Kaufman. Here, the deceased was a resident of Bro-ward County and her surviving mother and father are residents of Broward and Miami-Dade Counties, respectively. We conclude that the trial court did not abuse its discretion in determining that venue is proper in Miami-Dade County. See Hyatt Corp. v. Howarth, 678 So.2d 823, 824 (Fla. 3d DCA 1996) (The trial court abuses its discretion ‘only where no reasonable [person] would take the view adopted by the trial court.’ ”) (quoting Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)).

Affirmed.


author: CORTIÑAS, Judge.

text:
    Donald KASISCHKE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2149.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Charles J. Crist, Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER, and CORTINAS, JJ.
   ON MOTION FOR REHEARING

CORTIÑAS, Judge.

Defendant, Donald Kasischke, appeals from an order revoking his community control for violating a condition of community control under section 948.03(5)(a)(7), Florida Statutes (1999). We affirm.

We review the trial court’s factual findings concerning a defendant’s violation of community control for abuse of discretion. See Arias v. State, 751 So.2d 184, 187 (Fla. 3d DCA 2000). In doing so, we must determine “whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner.” State v. Carter, 835 So.2d 259, 262 (Fla.2002). However, because we are also reviewing the interpretation of a statute, this aspect of our review is purely a legal matter and is subject to a de novo standard of review. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (citations omitted).

This case involves a community control violation. Thus, we must consider the underlying crime for which the defendant was convicted as well as the nature of his alleged violation. The defendant, who has a Ph.D. degree, was fifty-four years old at the time of the underlying offense. He was convicted .of three counts of lewd and lascivious assault on a child under sixteen years of age. Specifically, the defendant solicited a fifteen year-old boy and offered him forty dollars so that he could perform oral sex on the boy. The defendant took the boy to a park where, behind the bushes, he unzipped the boy’s pants and performed oral sex on the victim until the boy ejaculated in the defendant’s mouth. Additionally, the defendant masturbated in the boy’s presence. Based on the defendant’s guilty plea, he was sentenced to 364 days in jail followed by two years of community control and eight years of probation. Part of his plea agreement included the following standard condition for certain sex offenders on community control:

The Defendant is prohibited from viewing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory materials], including telephone, electronic media, computer programs or computer services that are relevant to the offender’s deviant behavior pattern, unless otherwise indicated in the offender’s treatment plan.

In addition, the defendant was advised by his community control officer that he could not view, own, or possess any pornographic material while on community control.

The facts giving rise to the defendant’s alleged community control violation are as follows. While the defendant was under community control, officers executed a search of his home and found several photographs of nude young males and of males performing various sexual acts. Also recovered was a videotape in a kitchen drawer that was kept apart from other videotapes that the defendant kept near his television. The parties do not dispute that the videotape shows pornographic and obscene images. Among other things, the videotape depicts a young-looking male engaging in oral and anal sex with other males. However, the parties disagree on whether the possession of such a videotape constituted a violation of the defendant’s community control conditions.

The defendant’s community control conditions are based on the legislative requirements in section 948.03(5)(a), Florida Statutes (1999). Section 948.03(5)(a) requires courts to impose upon all probationers and community controllees, whose sex offense was committed on or after October 1, 1995, various general conditions to their probation or community control. For example, sex offenders whose victim was a minor are prohibited from working at any school, park, playground, or other place where children regularly congregate. See § 948.03(5)(a)(6), Fla. Stat. Moreover, section 948.03(5)(a)(7) provides that, unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, sex offenders on probation or community control are prohibited from:

viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

§ 948.03(5)(a)(7), Fla. Stat. The various conditions set forth in section 948.03(5)(a) are standard conditions of probation or community control for certain sex offenders that need not be orally pronounced at the time of sentencing. See § 948:03(5), Fla. Stat.

Defendant argues that the phrase “relevant to the offender’s deviant behavior pattern” should modify all aspects of the community control condition and, as such, only prohibits defendant from viewing or possessing material which is specifically related to his prior deviant acts. Under this view, the community control condition would be strictly limited to obscene and pornographic material that depicts fellatio or masturbation with an underage boy, similar to defendant’s previous victim. Thus, the defendant contends that, since the. defendant was convicted of a sexual offense on a minor under sixteen years of age, the State must prove that the pornographic material involved a minor under sixteen for a community control violation to be-found. On the other hand, the State contends that the phrase “relevant to the offender’s deviant behavior pattern” only modifies “telephone, electronic media, computer programs, or computer services” or, alternatively, “sexually stimulating visual or auditory material” and not all aspects of the community control condition. Under the State’s view, the community control condition imposes a total ban on viewing or possessing any pornographic or obscene material.

A. Statutory Interpretation

In construing the language of a statute, courts are required to first consider the actual language of the statute. Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 897 (Fla.2002) (citations omitted); Campbell v. Kessler, 848 So.2d 369, 371 (Fla. 4th DCA 2003)(finding that a court “ ‘must construe a statute according to the precise language used by the legislature’ ” (quoting Fla. Gulf Health Sys. Agency Inc. v. Comm’n on Ethics, 354 So.2d 932, 933 (Fla. 2d DCA 1978))). “[T]he intent of the legislature must guide our analysis, and that intent must be determined primarily from the language of the statute.” Hale v. State, 891 So.2d 517, 521 (Fla.2004)(citing Miele v. Prudential-Bache Sec. Inc., 656 So.2d 470, 471 (Fla.1995)).

The language of section 948.03(5)(a)(7), as currently written, is undeniably susceptible to multiple and irreconcilable interpretations. For example, the statute may be read as imposing a complete ban on “any” form of obscene, pornographic or sexually stimulating material, including the listed materials. The statute could also be read as requiring all prohibited material to be “relevant to the offender’s deviant behavior pattern.” Moreover, the statute may be read as imposing a complete ban on obscene and pornographic material but with the limitation that, with respect to “sexually stimulating visual or auditory material,” such material must be “relevant to the offender’s deviant behavior pattern.” These and other possible interpretations of legislative intent may be gleaned from the actual language of section 948.03(5)(a)(7). Because we recognize that the statute is ambiguous, we must look beyond the plain language of the statute.

The statutory prohibition on obscene or pornographic materials can be traced back to an earlier version of the statute which read as follows:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually explicit material.

§ 948.03(5)(g), Fla. Stat. (1995) (emphasis added). A plain reading of the prior version of the statute clearly demonstrates that the original statute imposed a total ban on viewing, owning, or possessing “any obscene, pornographic, or sexually explicit material.”

In 1997, the legislature amended section 948.03(5)(a)(7) through the passage of Committee Substitute for Senate Bill 1930 (“CS/SB 1930”). See ch. 97-308, § 3, at 5518, Laws of Fla. The 1997 amendment to subparagraph 7 provided as follows:

7.(g) Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory explicit material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

ch. 97-308, § 3, at 5520, Laws of Fla.

Notably, there is nothing in the legislative history of the 1997 amendment that indicates that the legislature intended to modify the pre-existing total ban on viewing, owning, or possessing pornographic material. Instead, a review of the legislative history of the amendment provides critical insight by explaining precisely what the 1997 amendment intended to clarify. The Senate Staff Analysis and Economic Impact Statement concerning the amendment stated that:

CS/SB 1930 would also clarify the condition of probation, community control, and conditional release that prohibits the possession, viewing, or use of sexually “explicit” material to be sexually stimulating visual or auditory material that would include telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

Fla. S. Comm, on CJ, CS for SB 1930 (1997) Staff Analysis at 8 (final Apr. 8, 1997)(on file with Florida State Am chives)(emphasis added). Similarly, the bill which proposed the 1997 amendment had stated purposes of, among other things, “revising a provision that prohibits a sex offender from viewing, owning, or possessing certain materials; [and] prohibiting a sex offender from possessing telephone, electronic media, or computer programs or services that are relevant to the offender’s behavior pattern .... ” ch. 97-308, at 5515, Laws of Fla. Thus, the legislative history of CS/SB 1930 clearly shows that the 1997 amendment sought to clarify only the words “sexually explicit material.”

The 1997 amendment was based, in part, on research funded by the National Institute of Justice (“NIJ”) regarding the management of sexual offenders under supervised release into the community. Kim English, et al., Managing Adult Sex Offenders in the Community — A Containment Approach, NIJ Research in Brief, Jan. 1997. The NIJ report noted that “[m]any sex offenders commit a wide range and large number of sexually deviant acts during their lives and show a continued propensity to reoffend.” Id. at 2. This study points out that “deviant thoughts and fantasies by sex offenders are precursors to sexual assault and, therefore, are an integral part of the assault pattern.” Id. at 5. The report recommends that certain probation conditions are essential to reduce the opportunities of reoffense, to protect the victims, and to safeguard the general public.

In this case, the historical record of the statute in question as well as the legislative history of section 948.03(5)(a)(7) show that the legislature did not intend to alter the pre-existing ban on all pornographic or obscene material. As such, we hold that the limiting phrase “relevant to the offender’s deviant behavior pattern” only modifies the words “sexually stimulating ... material,” and not the terms “obscene” or “pornographic.”

B. Analysis

The high rate of recidivism by sex offenders is well known. A reading of the section 948:03(5)(a) community control and probation conditions suggests that these prohibitions were intended to combat such recidivism. Thus, sex offenders whose victims were minors are prohibited from working at places where children congregate to reduce their exposure to children. § 948.03(5)(a)(6), Fla.' Stat. (1999). Similarly, by its words, the section 948.03(5)(a)(7) restriction against possessing or viewing pornography is clearly aimed at reducing stimuli for sex offenders. “[R]educing access to [obscene, pornographic or sexually stimulating] materials furthers the goals of rehabilitation, deterrence, and public safety in connection with sexual offenders.” Wilfong v. Commonwealth, 175 S.W.3d 84, 99-100 (Ky.Ct.App.2004). Together with the completion of a sex offender treatment program and other requirements, such community control and probationary conditions were required by the legislature to reduce the likelihood of repeat sexual crimes, including molestation of minors, rapes and sexual assaults, sexual abuse, and sexual offenses.

In Greenwood v. State, 754 So.2d 158 (Fla. 1st DCA 2000), the First District affirmed the propriety of such general conditions of probation in the context of sex offender probationers. There, the defendant pled guilty to two counts of sexual battery. On appeal, the defendant argued that certain conditions of his probation were not reasonably related to the particular sex offense for which he was sentenced. These conditions were essentially the same general conditions authorized and required by section 948.03(5)(a). The First District found that “general conditions [of probation] may be imposed as long as they ‘are rationally related to the State’s need to supervise the defendants regardless of whether [such conditions are] reasonably related to the defendant’s offense Greenwood, 754 So.2d at 160 (quoting Brock v. State, 688 So.2d 909, 911-12 (Fla. 1997)) (finding that general conditions of probation have statutory authorization and do not have to be relevant to the defendant’s offense). As the community control and probation condition in section 948.03(5)(a)(7) is a standard condition for certain sex offenders, such as the defendant herein, these cases further support our conclusion that such general community control and probationary conditions do not have to be relevant to the defendant’s offense or the offender’s deviant behavior.

The probationary condition against viewing pornographic material was the subject of a constitutional challenge in Ertley v. State, 785 So.2d 592 (Fla. 1st DCA 2001). In that case, the defendant complained that such a probationary condition violated his due process rights because it did not provide notice of what is obscene or what constitutes his deviant behavior pattern. The First District found that these probationary conditions were not unconstitutionally vague. Ertley, 785 So.2d at 593. In so doing, the court recognized that the term “obscene” has been defined by the U.S. Supreme Court in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and that the defendant’s underlying crime provided adequate notice of his “deviant sexual behavior.” Id.

We note that the federal Second, Fifth, and Eighth Circuit Courts of Appeals, as well as other state courts, have found that due process is not violated when a sexual offender’s probationary condition imposes a ban on viewing obscene, pornographic, sexually oriented, or sexually stimulating materials. See, e.g., Farrell v. Burke, 449 F.3d 470 (2d Cir.2006) (despite finding the term “pornography” susceptible to various meanings, the’ court found no due process violation' when the facts surrounding defendant’s probation ■ violation show that defendant had adequate notice of what reasonably constituted prohibited pornographic material); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir. 2003) (finding no due process violation with condition prohibiting sexually oriented or sexually stimulating material); United States v. Cabot, 325 F.3d 384, 385 (2d Cir.2003) (finding adequate notice to defendant in prohibition of “any ‘matter’ that is pornographic”); United States v. Ristine, 335 F.3d 692, 695 (8th Cir.2003) (not finding plain error when district court imposed condition prohibiting possession of pornography); Wilfong, 175 S.W.3d at 99 (finding the prohibition of “any sexually arousing materials” to be sufficiently construed in relationship with other provisions, and not unconstitutionally vague); but cf. United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (finding prohibition on “any pornography” inherently vague and remanded for a condition with greater specificity); United States v. Loy, 237 F.3d 251, 263-65 (3d Cir.2001) (finding a condition prohibiting “all forms of pornography, including legal adult pornography,” as providing inadequate notice to defendant).

Similarly, in Taylor v. State, 821 So.2d 404 (Fla. 2d DCA 2002), the defendant contended that the probationary condition, which prohibited obscene, pornographic, or sexually explicit material, was unconstitutional because it was not specific as to his particular deviant behavior. Taylor, 821 So.2d at 405. Consistent with the First District’s holding in Ertley, the Second District found that the defendant had adequate notice of what was prohibited, but remanded the case so that the written conditions would conform to the statutory language of section 948.03(5)(a)(7), Florida Statutes. Id. at 405-06. As the Second District only required that the probationary condition track the statutory language of section 948.03(5)(a)(7), the court did not address whether or not the phrase “relevant to the offender’s deviant behavior pattern” modified the ban on viewing or possessing pornographic material. Id.

Having determined that the statutory limiting phrase only applies to “sexually stimulating ... material” and not to the total ban on viewing, owning, or possessing pornographic or obscene material, we review the trial court’s findings. The trial court held that the probation condition at issue prohibited the defendant from viewing, owning, or possessing any pornographic material. The court then found that defendant violated his community control by possessing pornographic material. Based on our holding that section 948.03(5)(a)(7) prohibited the defendant from viewing, owning, or possessing any pornographic material while on community control, and because the parties do not dispute that the videotape found inside the defendant’s home showed pornographic and obscene images, we affirm the order of the trial court.

Affirmed.

      . The trial judge, Henry Leyte-Vidal, recently passed away. Judge Leyte-Vidal was recognized by all as a consummate professional who treated everyone with respect. His wisdom and devotion to the law only added to his outstanding reputation. Judge Leyte-Vi-dal was an exemplary jurist who will be greatly missed.

      . This statute has been renumbered and is now section 948.30(l)(g), Florida Statutes (2006).

      . It is unclear whether anyone, including the State, could obtain and prove the identity and ages of individuals involved in pornographic videos.

      . Words stricken are deletions and words underlined are additions.

      . Notably, one reported study of 561 voluntary subjects found that approximately fifty-four percent (54%) of offenders have at least two paraphilias (preference for unusual sexual practices) and twenty percent (20%) participated 'in deviant behavior regardless of the victim's gender. Id. at 2.

      . As no due process claims were raised below, wé do not address this issue on appeal.


text:
    Charles SCOTT, Appellant, v. James McDONOUGH et al., Appellee.
    No. 1D06-3315.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.
    Rehearing Denied Jan. 25, 2007.

      Charles Scott, pro se, Appellant.
    Monica Ryan, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the circuit court’s orders imposing liens on his inmate trust account for circuit court fees and costs incurred as a result of his circuit court Petition for Writ of Mandamus as well as circuit court fees and costs related to this appeal. Appellant also argues that it was error for the trial court to dismiss his Petition for Writ of Mandamus when he failed to comply with the circuit court’s order requiring him to prepay $9.00 in circuit court fees and costs.

We find no error in the circuit court’s decision to impose liens and partial prepayment obligations on appellant’s inmate trust account,- pursuant to section 57.085, Florida Statutes. Appellant’s mandamus action does not qualify as a collateral criminal proceeding; accordingly, we affirm the circuit court orders to the extent that they place liens on appellant’s trust account and require a partial prepayment of fees and costs. However, appellant’s second point on appeal may potentially have merit. It is error for the circuit court to dismiss an action for failure to prepay fees and costs where a lien placed by the Department of Corrections prevents the inmate from complying with the prepayment obligations. The circuit court’s order never directly addresses appellant’s arguments on this point and the record evidence tends to support appellant’s claim. Therefore, this matter must be reversed and remanded with instructions for the circuit court to determine whether the Department of Corrections had a lien on appellant’s inmate trust account, which prevented him from complying with the order to partially prepay circuit court fees and costs.

In Schmidt v. Crusoe, the Supreme Court stated that an action which directly affects an inmate’s time in prison is collateral criminal in nature and is not subject to the Prisoner Indigency Statute. 878 So.2d 361, 367 (Fla.2003). Accordingly, if an action qualifies as a collateral criminal proceeding, there is no basis for imposing a lien or requiring the prepayment of a fee when the inmate has obtained a certificate of indigency. See § 57.081, Fla. Stat.

Here, however, appellant’s Petition for Writ of Mandamus merely sought to compel the Department of Corrections to address the merits of his administrative grievance appeal, which the Department of Corrections had deemed untimely. If successful on this petition, appellant would obtain the right to have his appeal heard, on the merits, by the Department of Corrections. This mandamus proceeding could not, in any way, directly affect appellant’s time in prison. Therefore, it does not qualify as a collateral criminal proceeding and the imposition of liens and prepayment obligations under section 57.085(4) and (5), Florida Statutes, was appropriate.

Now we turn to appellant’s second point on appeal. Appellant cites to Harper v. Moore, 737 So.2d 1232 (Fla. 1st DCA 1999), and Huffman v. Moore, 778 So.2d 411 (Fla. 1st DCA 2001), for the proposition that where the Department of Corrections has placed a lien oh an inmate trust account, which makes it impossible for the -inmate to make the partial prepayment ordered, it is error to- dismiss for failure to comply with the prepayment obligation. In the circuit court, appellant specifically argued that he was unable to comply with the prepayment obligations because of a lien the Department of Corrections had placed on his account. A review of appellant’s inmate trust account records shows that following the April 4, 2006, order, requiring appellant to make partial prepayment, appellant made no withdrawals from his inmate trust account. Every withdrawal after this date was made by the Department of Corrections for purposes of satisfying the lien.

The circuit court’s Order of Dismissal indicates that it was dismissing the petition because appellant failed to comply with his prepayment obligations. At no point did the circuit court address appellant’s argument concerning his inability to pay due to the lien. In light of these facts and the above cited case law, the circuit court’s Order of Dismissal is reversed and remanded with directions for the circuit court to determine whether appellant had funds available for the prepayment required by the April 4, 2006, order.

AFFIRMED in part, REVERSED in part and remanded with directions.

WEBSTER, POLSTON and HAWKES, JJ., concur.


author: BROWNING, C.J.

text:
    Takara WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0111.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.

      Nancy A. Daniels, Public Defender; and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Takara Williams asserts that the trial court erred as a matter of law and violated her right to a speedy trial by denying her motion to discharge and amended motion to discharge. We have de novo review over a pure question of law. See State v. Glatzmayer, 789 So.2d 297, 302 n. 7 (Fla.2001). Agreeing that Ms. Williams’ right to a speedy trial was violated, we reverse the judgment/sentence and remand with directions to the trial court to discharge Williams.

According to a March 18, 2003, Florida Uniform Traffic Citation, Williams was cited for “Reckless Driving; Willful and Wanton.” The form cited section 316.192, Florida Statutes, and included a check-mark in the box indicating the following: “Criminal Violation. Court - Appearance Required. As Indicated Below.” Below that notation is mentioned the Gadsden County Courthouse in Quincy “upon notification.” The bottom of the ticket states: “Arrest Delivered to ROR.” Sergeant B. Ingram signed the citation. Two March 26, 2003, Notices to Appear ordered Williams to appear for arraignment on April 8, 2003, at 9:30 a.m. at the courthouse in Quincy. The notices listed the charges as “WILLFUL WANTON RECKLESS DRIVING” and “DRIV VH W/ UNSAFE EQUIP.” On April 8, 2003, Williams pled no contest, and the trial court withheld adjudication and placed her on four months’ probation.

On April 22, 2003, a bench warrant was issued for Williams’ arrest. However, she was not arrested until March 21, 2005. By information filed on May 24, 2005, the State charged Williams with aggravated assault with a deadly weapon (automobile) upon her boyfriend. This charge arose from the same incident on. March 18, 2003, that had led to the reckless driving citation. After the denial of her motions to discharge in 2005, Williams entered a plea agreement whereunder she pled no contest to the charged offense in exchange for three years’ probation. Williams expressly reserved the right to appeal the denial of her motions to discharge, which the'trial court found dispositive.

According to the speedy-trial rule, “[t]he time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d).” Fla. R.Crim. P. 3.191(a). Another subdivision of this rule states:

(d) Custody. For purposes of this rale, a person is taken into custody.
(1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or
(2) when the person is served with a notice to appear in lieu of physical arrest.

In the amended motion to discharge, Williams argued that the notice for her to appear constituted “custody” for purposes of the speedy trial rale. On appeal, the State concedes that if Williams was, indeed, “taken into custody” on the reckless driving charge in March 2003, then she is entitled to a discharge from the instant charge of aggravated assault with a deadly weapon because that charge arose from the same criminal conduct or episode as the March 18, 2003, incident, and because the information was filed after the time limit for a felony, which expired in September 2003, i.e., 175 days after Williams was taken into custody. See Fla. R.Crim. P. 3.191(a). The State acknowledges it is not entitled to the “recapture period” in Rule 3.191(p) when it files the information after the expiration of the applicable time limit. See State v. Williams, 791 So.2d 1088 (Fla.2001). The State concedes that because Williams was served a notice to appear on March 26, 2003, for a criminal traffic offense, she was “taken into custody” on that date for purposes of Rule 3.191(d)(2). See Rodriguez v. State, 453 So.2d 175,176 (Fla. 2d DCA 1984). Pursuant to Reed v. State, 649 So.2d 227, 229 (Fla.1995), Williams was taken into custody for all crimes arising out of the same criminal conduct or episode, including the charge of aggravated assault with a deadly weapon. The speedy trial rule barred the State from prosecuting Williams for that offense. See Rodriguez, 453 So.2d at 176. Thus, the trial court erred in denying the amended motion for discharge. The State correctly notes on appeal that the decisions in Fothergill v. State, 754 So.2d 174 (Fla. 5th DCA 2000), and State v. Coughlin, 871 So.2d 935 (Fla. 5th DCA 2004), on which it relied in the trial court, are materially distinguishable in that neither defendant in those two cases was issued a notice to appear.

We are constrained to REVERSE the judgment/sentence and REMAND with directions to the trial court to discharge Williams.

KAHN and DAVIS, JJ., concur.