text:
    Jason Robert McALEVY, Petitioner, v. STATE of Florida, Respondent.
    Nos. 4D06-2965, 4D06-4337.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, Daniel Cohen and Joshua LeRoy, Assistant Public Defenders, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

On our own motion, we have consolidated the above-captioned cases for purposes of this opinion.

The circuit court, via a single judge, denied petitioner certiorari relief from the county court’s order granting the state’s motion to issue a subpoena to obtain petitioner’s medical records. Petitioner then sought certiorari review in this court (Case No. 4D06-2965). Agreeing with petitioner’s claim that a three-judge panel must pass on petitions for certiorari pursuant to administrative order in the Fifteenth Judicial Circuit, by order dated September 19, 2006, we granted the petition, quashed the circuit court order and remanded for further proceedings. We directed that, on remand, the petition for writ of certiorari be heard by a three-judge panel in accordance with the relevant administrative order, and advised that an opinion would follow.

Before the opinion issued, the circuit court, by order of a three-judge panel, denied petitioner relief per curiam. The circuit court again rejected petitioner’s claim that the trial court departed from the essential requirements of law in concluding it did not have to hear evidence in the form of witness testimony to determine whether the state had shown the requisite nexus between the medical records sought and the pending criminal investigation. Petitioner then filed a second petition for writ of certiorari in this court, case number 06-4337, which we consolidated with case number 06-2965. We now deny the second petition, and write to address the issues raised in both petitions.

On second-tier review, this court determines only whether the circuit court afforded procedural due process and applied the correct law. Premier Developers III Assocs. v. City of Fort Lauderdale, 920 So.2d 852, 852-53 (Fla. 4th DCA 2006); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982).

In his first request for certiorari relief, petitioner argued that procedural due process requires a three-judge panel to pass on petitions for certiorari pursuant to administrative order in the Fifteenth Judicial Circuit. We agree.

Initially, we reject the state’s argument that the issue was not preserved for appellate review. The only opportunity for petitioner to have raised this claim below would have been in a motion for rehearing, as petitioner would have no reason to know prior to the issuance of the one-judge affirmance, that the administrative order requiring three judges had not been complied with. At least one district court has determined that the failure to seek rehearing does not preclude certiorari review of an alleged procedural error. See Dep’t of Highway Safety & Motor Vehicles v. Snell, 832 So.2d 177 (Fla. 5th DCA 2002).

Moving on to the merits, petitioner acknowledges there is no constitutional, statutory or rule-based provision designating the number of judges required when a circuit court acts in its appellate capacity. Compare Art. V, § 4(a), Fla. Const.; § 35.13, Fla. Stat. (2006); and Fla. R. Jud. Admin. 2.210(a)(1) (recently renumbered from 2.040(a)(1)) (in the district courts of appeal, three judges shall consider each case). As such, no statewide criteria exist, and the local rules on the issue differ from circuit to circuit. See Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1094 (Fla.2000). In the Fifteenth Judicial Circuit, however, there is an express administrative rule that requires a three-judge panel to review “all petitions for extraordinary writs ... which in essence seek review of action by a lower tribunal.” See 15th Jud. Cir. Admin. Order No. 8.001-11/99(1). In light of this express local rule, we find that petitioner’s due process rights were violated when a single judge passed upon his original certiorari petition.

We therefore distinguish this case from those such as Rader v. Allstate Insurance Co., 789 So.2d 1045 (Fla. 4th DCA 2001), which arose from the Seventeenth Judicial Circuit, in which the local rules permit an appeal to a single judge. In Rader, we found that the assignment of an appeal from a county court case to a single circuit court judge did not constitute a violation of procedural due process. See also Loftis v. State, 682 So.2d 682 (Fla. 5th DCA 1996) (finding no error in absence of local rule in ninth judicial circuit requiring that a three-judge panel hear a petition for an extraordinary writ).

The next issue raised requires a brief statement of facts to place it in its proper perspective.

Petitioner was charged with three misdemeanors: battery, resisting an officer without violence and driving under the influence (DUI). The state filed a motion asking for leave of court to issue a subpoena duces tecum of certain medical records. The state summarized the facts as follows:

On or about March 26, 2006, at 10:30 pm at Lake Worth Road and Florida Turnpike in Palm Beach County, D/S Crp. Vargas # 7018 PBSCO (herein referred to as ‘A/O’) responded to a complaint about a possible DUI. A/O observed that defendant had an odor of unknown alcoholic beverage on his breath, bloodshot glassy eyes, slurred speech, and slow response time. A/O observed defendant stumble when exiting the vehicle, and then dropping to his knees. A/O then assisted defendant to his feet but defendant kept stumbling. After A/O placed defendant under arrest, defendant attempted to run into traffic screaming T want to die!’ After A/O and back-up officers subdued the defendant, he once again began screaming T want to die, I don’t want to go to jail,’ and he began to strike the officers. Because the A/O spotted what could have been blood transfer from defendant to a back-up officer, the A/O called for Fire Rescue medics. But defendant once again broke free and ran away. The fire rescue medics treated both the defendant and a back-up officer, D/S Govantes PBSCO, and found that there was blood transfer from the defendant to D/S Go-vantes, and directed both to be transported to the West Palms Hospital for tests. At that time, the defendant became so combative that the medics had to sedate him to get him to the hospital. Registered nurse, Susan Dash, tested the defendant’s blood for blood alcohol content and the results have not yet been disclosed to the Palm Beach County State Sheriffs Office.

Based on these facts, the state sought to obtain: (1) the results of the blood alcohol test performed at the West Palms Hospital Emergency Room; and (2) the records of the Palm Beach County Fire Rescue medics who administered the sedative to defendant. The state argued that these records were relevant to its ongoing criminal investigation of the DUI, as the records have a “ ‘logical tendency to prove or disprove a fact which is of consequence to the outcome of the action,’ namely, whether the defendant’s blood alcohol test results were at least .08 or whether the defendant’s normal faculties were impaired.”

In granting the state’s motion, the county court concluded it need not hear evidence in the form of witness testimony. Rather, it could consider the state’s motion (i.e., argument) and the probable cause affidavit in determining whether the state had shown the requisite nexus between the medical records and the pending criminal investigation. Because we find no departure from the essential requirements of law, we deny the latest request for certio-rari relief.

Patient medical records are protected under Florida’s right to privacy as well as statute. Art. I, § 23, Fla. Const.; Hunter v. State, 639 So.2d 72 (Fla. 5th DCA), rev. denied, 649 So.2d 233 (Fla.1994). The supreme court has said that where a privacy right attaches, the state may justify encroachment of that right if it demonstrates a compelling state interest and that the state has used the least intrusive means to accomplish its goal. Shaktman v. State, 553 So.2d 148 (Fla.1989). A compelling state interest exists upon a showing that the materials contain information relevant to an ongoing criminal investigation. State v. Rivers, 787 So.2d 952; 953 (Fla. 2d DCA 2001).

Section 395.3025, Florida Statutes, outlines the procedure for obtaining a person’s medical records under subpoena, stating:

Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent ... In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

§ 395.3025(4)(d), Fla. Stat. (2006). If the patient objects, a hearing must be held to determine if the records are relevant to a criminal investigation. Cerroni v. State, 823 So.2d 150, 152 (Fla. 5th DCA 2002).

Petitioner is correct that, when a patient whose records are being sought properly raises an objection, the state must present evidence and argument to show the nexus between the medical records sought and a pending criminal investigation. See, e.g., Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994). Yet, we disagree with petitioner’s assertion that the state must present live witness testimony or nonhearsay evidence.

The Hunter case, upon which petitioner primarily relies, states in part that:

We issue this opinion only to emphasize that the state has the obligation and the burden to present evidence to the trial judge to demonstrate that a patient’s confidential hospital records are relevant to a criminal investigation before the issuance of an investigative subpoena.

639 So.2d at 72 (emphasis supplied). The fifth district did not specify what type of evidence must be presented, but found that “the accident report, coupled with the fact that the other driver died as a result of this two car accident, makes the relevancy of these documents obvious.” Id. at 73. The Hunter court emphasized that relevancy to the pending investigation is the key, stating:

the state could seek to subpoena all the medical records of a patient from all of the patient’s health care providers without there being a scintilla of evidence to suggest that any of the medical records are relevant to a pending criminal investigation. Some of the records might be relevant and some might not be relevant. Without the intervention of an impartial magistrate to determine relevancy, the notice of hearing to the patient is meaningless ... The court must act as a shield to protect the patient’s right to privacy by determining whether medical records are relevant to a pending criminal investigation.

639 So.2d at 74.

In Ussery v. State, 654 So.2d 561 (Fla. 4th DCA 1995), this court agreed with Hunter, but did not expressly state that evidence must be presented. Rather, we concluded that all requirements are met to allow the state to issue a subpoena when notice is provided and the state “carries its burden of showing the relevance of the records to its criminal investigation.” Id. Similarly, in State v. Rivers, 787 So.2d 952 (Fla. 2d DCA 2001), the second district cited Hunter, but did not discuss whether evidence must be presented. The court simply found that the state had met its burden of establishing relevancy and a compelling state interest because “the emergency room medical records and toxicology reports sought by the state were directly related to the incident which led to the [DUI] charges against Rivers and to the ongoing investigation.” 787 So.2d at 953-54 (emphasis supplied). These cases emphasize not the type of evidence that must be presented, but that the state has somehow demonstrated the relevancy of the records to the pending investigation.

The concept of relevancy is broader in the discovery context than in the trial context. Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995); cf. State v. Sandini, 395 So.2d 1178 (Fla. 4th DCA 1981) (hearsay information, though inadmissible as evidence in a trial, may constitutionally form basis of an affidavit for a search warrant). In Hunter, the subpoena was issued based upon a showing of relevancy, consisting only of “the accident report, coupled with the fact that the other driver dies as a result of this two car accident.” 639 So.2d at 72-73. With respect to relevancy, the Hunter court explained:

We do not rule that a finding of relevancy is equivalent to a finding of probable cause. We do not suggest, nor is there a need for, a new rule to determine relevancy. Relevancy and relevant evidence have been determined by Florida courts to be ‘evidence tending to prove or disprove a material fact.’

Id. at 74 (citations omitted); see also Cerroni, 823 So.2d at 152. To obtain a search warrant on the other hand, the state has a higher burden of proof. See Farrall v. State, 902 So.2d 820, 821 (Fla. 4th DCA 2004) (holding that, to obtain a search warrant, the state must show probable cause that the records are relevant to the commission of a crime).

In this case, however, the state sought petitioner’s medical records by way of a subpoena. In determining whether the state had shown a nexus between the medical records and the pending criminal investigation, the county court concluded it could rely upon the state’s argument and the probable cause affidavit (akin to an accident report, as in Hunter). The court further concluded it did not have to hear evidence in the form of witness testimony to make its determination. Based upon the foregoing authorities petitioner fails to demonstrate that the circuit court’s denial of relief constituted a departure from the essential requirements of law. We therefore deny the latest writ and approve the circuit court’s ruling.

POLEN, TAYLOR and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Renaud DEBUISSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1857.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Thomas John Butler, Miami Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Renaud Debuisson appeals from an order denying his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence in which he claims that the sentence imposed was vindictive and that he did not have the two felony convictions necessary to sentence him as a habitual felony offender. We affirm.

A vindictive sentence claim must be raised in a Rule 3.850 motion, not in a Rule 3.800 motion, and since the conviction and sentences in this case became final more than two years before the instant motion was filed, the motion would, if considered as a Rule 3.850 motion, be untimely. See Wright v. State, 891 So.2d 618 (Fla. 3d DCA 2005) (finding that a vindictive sentencing claim cannot be raised in a Rule 3.800 motion); Shaw v. State, 780 So.2d 188, 190 (Fla. 2d DCA 2001) (affirming the denial of a Rule 3.800 motion where, even if treated as a Rule 3.850 motion, it would be untimely).

We also find no error in the trial court’s order denying relief with regard to Debuisson’s claim that he was improperly sentenced as a habitual felony offender without the necessary two prior predicate felonies. The record reveals that Debuis-son was sentenced as a habitual violent felony offender under section 775.084(l)(b), Florida Statutes (1998), which requires only a single prior felony conviction for enhanced sentencing.

Accordingly, the order denying Debuis-son’s Rule 3.800 motion is affirmed.


author: KLEIN, J.

text:
    Orlando JIMENEZ and Magaly Jimenez, his wife, Appellants, v. COMMUNITY ASPHALT CORP., a Florida corporation, Condotte America, Inc., a Florida corporation, and Rinker Materials of Florida, Inc., a Florida corporation, Appellees.
    No. 4D06-3262.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Henry A. Seiden of the Seiden Law Firm, West Palm Beach, and Philip D. Parrish of Philip D. Parrish, P.A., Miami, for appellants.
    No appearance for appellees.
   ORDER ON JURISDICTION

KLEIN, J.

Appellant Jimenez was injured when a truck, which was owned by his employer, Rinker, overturned while he was driving it. He brought this suit against his employer, Rinker, and other defendants. His claims against Rinker included the intentional misconduct exception to worker’s compensation immunity, a claim which remains pending in the trial court. The court dismissed additional claims Jimenez alleged against Rinker based on spoliation of evidence and a violation of section 440.39(7), Florida Statutes (2002), which requires an employer to cooperate with the employee in the prosecution of claims against third party tortfeasors.

The trial court dismissed with prejudice the spoliation and breach of duty to cooperate claims. The question before us is whether the dismissal of the counts based on spoliation or the statutory violation are appealable, while the tort claim is still pending in the trial court.

Under Mendez v. West Flagler Family Ass’n, 303 So.2d 1 (Fla.1974), an order disposing of a separate and distinct cause of action, which is not interdependent with other claims still pending, is immediately appealable. In Mendez there were separate counts alleged against an insurer, one for fraud arising from the procurement and issuance of a policy, and another for breach of the insurance contract. In holding that the claims were separate and distinct, the Florida Supreme Court pointed out that the fraud claim had to do with the issuance of the policy and was unrelated to the subsequent breach of the policy after it was issued. Mendez required that the initial order disposing of a claim had to be appealed at the time; however, rule 9.110(k), which was passed in response to Mendez, allows the appeal to be taken immediately or at the end of the entire case. Pellegrino v. Horwitz, 642 So.2d 124 (Fla. 4th DCA 1994).

Because the claim still pending below involves a breach of duty by the employer occurring before the truck accident occurred, and the dismissed claims involved different conduct which occurred after the accident, we accordingly agree with appellant that under Mendez we have jurisdiction of this appeal.

TAYLOR and MAY, JJ., concur.


author: SILVERMAN, SCOTT J„ Associate Judge.

text:
    Foster J. CULLUM, IV and Cullum Chiropractic, LLC, Appellants, v. R.G. PACKO and O.K. Cap, LLC, Appellees.
    No. 1D06-766.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.

      Stephen A. Hould, Neptune Beach, for Appellants.
    Terroll J. Anderson of Patterson, Anderson & Feldman, P.A., Jacksonville, for Appellees.
   SILVERMAN, SCOTT J„ Associate Judge.

After a non-jury trial, the trial court found that appellees (hereinafter referred to as “Packo”) had not breached a non-compete agreement. The trial court also found that agreement nullified as a result of appellants’ (hereinafter referred to as “Cullum”) default on a companion lease. Cullum, the plaintiff below, appeals the trial court’s order, arguing that the court erred in respect to both the non-compete agreement and the lease. As we agree with Cullum in regard to the lease, we reverse the portion of the trial court’s order that found Cullum in default. We affirm, however, the trial court’s finding that Packo did not breach the non-compete agreement.

BACKGROUND

The parties entered into two agreements: (1) a five-year lease in which Packo leased his land and building to Cullum (“Lease”); and (2) a companion non-compete, non-disclosure, and non-solicitation agreement (“Agreement”). Under the terms of the Lease, Cullum was required to pay Packo $5,500 per month. If Cullum failed to pay by the fifth of the month, the Lease imposed a 10% late penalty. The Lease also required Cullum to pay the property taxes on the premises. Cullum could “break” the Lease by giving a year’s notice. If any default on the Lease was not cured within ten days, the Lease terminated.

The Agreement provided that, as long as the Lease was still in effect, Packo would not practice in a defined geographic area and would not target or solicit Cullum’s patients for a period of five years. A non-cured default on the Lease served to terminate the Agreement. Interestingly, the Agreement remained in effect even if Cul-lum decided to break the Lease by giving the requisite year’s notice.

In February 2005, Cullum provided Packo with one year’s notice that he intended to vacate the premises. On April 8, 2005, Packo notified Cullum that the Lease was in default as Cullum had failed to pay the annual property taxes that were due on April 1. Packo instructed Cullum to cure this default within ten days. At trial, Packo testified that the post office attempted delivery of Cullum’s property tax payment on April 16. Packo was not at his office to receive the payment on the 16th and, as a result, physically received the payment on either April 18 or 19. As Cullum could not prove that Packo actually received the check by April 18 — the last day of the cure period — Packo argues that Cullum failed to cure the default within ten days.

Cullum paid the May 2005 rent on April 30. After making the payment, Cullum discovered that his bank account possessed insufficient funds to cover the rent check. Before May 5, Cullum notified Packo’s leasing agent of the problem in order to avoid being assessed the 10% late penalty. The agent told Cullum that there was “no problem” and “not to worry about it.” The agent stated that she would simply rerun the check when it was returned. The agent re-ran the check and received the funds on May 17.

Shortly thereafter, Packo demanded that Cullum pay the 10% late penalty for the May 2005 rent payment. Cullum refused. Packo then notified Cullum that, due to his failure to cure the late May 2005 payment, the Lease and Agreement were terminated. Packo then began advertising that he planned to open a chiropractic practice on the premises currently leased to Cullum.

Cullum filed suit, seeking a declaration of the parties’ rights under both the Lease and the Agreement. Cullum also sought an injunction prohibiting Packo from advertising his intention to open a chiropractic practice on the premises. Cullum argued that the advertisement violated the Agreement. Packo forwarded several affirmative defenses, claiming that Cullum failed to timely cure the late May 2005 payment as well as the payment of property taxes. As a result of the non-cured defaults on the Lease, Packo argued that the Agreement was nullified.

On November 30, 2005, the trial court entered a final judgment for Packo. Regarding the May 2005 payment, the court found Cullum breached the Lease as a result of the payment being received after the fifth of the month and by not curing the default within 10 days. The trial court found:

The failure to deliver the rent into the hands of Suncastle [Packo’s leasing agent] by May 5, 2005 was the fault of the Plaintiff due to his initial NSF check. It was not through any delaying act of the Defendant or his agent.

The court did not discuss the agent’s apparent assurance to Cullum, prior to the fifth, that there was “no problem.” Regarding the property taxes, the trial court found:

The Plaintiff sent, by certified mail, a check for the taxes. The Plaintiff did not provide the Court with the U.S. Postal receipt for the tax check. The Defendant testified that the check was deposited on April 19, 2005 and that he deposits the checks the day he receives them. The only evidence before the Court of the date of the receipt of the tax check came from the Defendant. The Plaintiff provided no proof of any sort of the date of the receipt of the check, although that proof (the return receipt) was available to him. Therefore, the evidence before the Court is that the failure to pay the tax payment was not cured within ten (10) days as required by Section 7.01 of the lease.

Further, the trial court found no evidence that Packo had violated the Agreement. The trial court found Cullum in default under the Lease and, as a result, found the Agreement no longer bound Packo.

ANALYSIS

We first review the trial court’s conclusion that Cullum defaulted under the Lease. We review a trial court’s findings of fact for competent substantial evidence. See Houlihan’s Rests., Inc. v. APAC-Fla., Inc., 911 So.2d 816, 818 (Fla. 1st DCA 2005). Here, the trial court found that Cullum defaulted by failing to cure the late May 2005 payment and failing to timely cure the payment of property taxes.

In regard to the property taxes, the record does not support the trial court’s finding. Packo himself testified that the postal service attempted delivery of the payment on April 16:

It was attempted on the front by the Postal Service on Saturday, April 16th. However, our office is not open on the 16th, so we received it on the 18th.

The envelope, submitted into evidence by Packo, contained a notation that delivery was attempted on “4/16.” Accordingly, the unrebutted evidence shows that Cullum delivered the check to Packo on April 16— well within the ten-day cure period. We see no reason why Cullum should be penalized for Packo’s failure to be available to accept payment. See Procacci v. Procacci, 729 So.2d 522, 523 (Fla. 4th DCA 1999) (explaining that “payment is considered ‘tendered’ on the date it is mailed, not the date that it was received”); see also Bensman v. DeLuca, 498 So.2d 645, 645 (Fla. 4th DCA 1986) (stating parties’ course of conduct showed that payment by check was considered tendered when postmarked); Brake v. Unemployment Appeals Comm’n, 473 So.2d 774, 774 (Fla. 3d DCA 1985) (“[A] letter properly addressed, stamped and mailed is presumed to have been received by the addressee.”); Neuman v. Ferris, 432 So.2d 641, 642 (Fla. 4th DCA 1983) (finding the mailing of a check constitutes delivery of payment when payee directs payor to pay by mail). See generally Waters v. Key Colony East, Inc., 345 So.2d 367 (Fla. 3d DCA 1977) (holding that a party who prevents or hinders performance cannot take advantage of the other party’s lack of performance).

Assuming, arguendo, that actual possession of the check controls, Packo raised the failure to cure as an affirmative defense and would thus bear the burden of proving the affirmative defense. See Hough v. Menses, 95 So.2d 410, 412 (Fla.1957) (placing the burden of proof on defendants to prove their affirmative defenses). On review, the record clearly demonstrates that Packo did not know whether he received the check within the cure period (April 18) or outside the cure period (April 19), as demonstrated by his following testimony:

I’m not sure if it’s the 18th or 19th.

Accordingly, even if actual delivery of the check mattered, Packo failed to satisfy his burden of proof that the check arrived after April 18. The only conclusion that can be drawn from the record is that nobody knows precisely when Packo took actual possession of the check. Thus, the record does not support the trial court’s finding that Cullum defaulted by not timely curing the property tax payment.

The trial court also found that Cullum defaulted under the Lease by failing to cure the May 2005 late rent payment. Again, the record does not support the trial court’s finding. The record is undisputed that the agent, speaking on behalf of Packo, told Cullum “not to worry about” the late payment and that it was “no problem.” An agent both speaks on behalf of and binds the principal. See Am. Lead Pencil Co. v. Wolfe, 30 Fla. 360, 11 So. 488, 491 (1892) (“Where there is a general agent to accomplish a certain purpose, and the agent acts within the general scope of his authority in effecting the object of the agency, his acts will bind his principal so far as third persons dealing with him in good faith are concerned.”). The very reason Cullum informed the agent of the problem was to avoid a potential late fee. Accordingly, the agent waived the requirement that Cullum pay the 10% late fee. See LeNeve v. Via South Fla., LLC, 908 So.2d 530, 535 (Fla. 4th DCA 2005) (“Waiver is ‘the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.’ Breaking down waiver into elements, this court has recognized that three circumstances give rise to a waiver: (1) the existence of a right which may be waived; (2) actual or constructive knowledge of the right; and (3) the intent to relinquish the right. Proof of these elements ‘may be express, or implied from conduct or acts that lead a party to believe a right has been waived.’ ” (citations omitted)).

Finally, the trial court found that Packo had not breached the Agreement. We affirm this finding. Although Packo placed an advertisement in the Yellow Pages, the ad was general in nature and not prohibited by the Agreement. In fact, Cullum, himself, testified that Packo had not yet solicited any of his patients.

CONCLUSION

The trial court erred when it found Cul-lum in default under the Lease. Accordingly, the Lease remains in effect and the Agreement has not been nullified. Although the trial court correctly found that Packo had not breached the Agreement by placing the advertisement in the Yellow Pages, neither the parties nor the trial court should interpret this decision as precluding any future causes of action based upon violations of the still valid Agreement.

AFFIRMED in part, REVERSED in part.

BENTON and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Randall T. PRATER, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5047.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.
    Rehearing Denied Feb. 2, 2007.
    Randall T. Prater, pro se, Raiford, for Appellant.
    ■ Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse and remand the denial of Prater’s petition for writ of mandamus. Contrary to the trial court’s order, prisoners may petition to initiate rulemaking under the Administrative Procedure Act. See § 120.81(3), Fla. Stat. (2005) (explaining that prisoners may petition to initiate rule-making pursuant to section 120.54(7)). We do not, however, disturb the trial court’s sanctions order entered in a companion case. See Prater v. McDonough, No. 1D05-5027, 947 So.2d 538, 2006 WL 3751499 (Fla. 1st DCA Dec.22, 2006). Accordingly, all further action in this case shall proceed in accordance with that order by requiring Prater to either pay the filing fee or retain counsel.

REVERSED and REMANDED.

KAHN, HAWKES and THOMAS, JJ., concur.


author: KAHN, J.

text:
    Randall T. PRATER, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5027.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.
    Rehearing Denied Feb. 2, 2007.
    Appellant Randall T. Prater, pro se, Rai-ford.
    Charlie Crist, Attorney General, and Joe Belitzky, Senior Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Randall Prater appeals the trial court’s order barring him from filing further actions in that court without paying the filing fee or being represented by a member of the Florida Bar. We affirm.

Despite Prater’s argument to the contrary, the trial court’s order is not a dismissal on the merits. Rather, we consider the order to be solely an imposition of sanctions based upon previous frivolous filings by Prater. In the order the trial court stated:

The records of the clerk of court show that 22 cases have been initiated in this court by the plaintiff in the past 3 years. In all of the cases, the plaintiff sought to proceed without payment of the filing fee incurred under section 28.241, Florida Statutes. None of the cases produced a meaningful result for the plaintiff.

(citation omitted). The trial court found Prater to be a “vexatious litigant” as “at least 5 of his previous actions have been finally and adversely determined against [him]” in accordance with section 68.093(2)(d), Florida Statutes (2006). Accordingly, as a sanction, the trial court prohibited Prater from filing any further actions without either paying the filing fee or retaining counsel. See Birge v. State, 620 So.2d 234 (Fla. 1st DCA 1993) (finding courts have inherent power to prevent litigants from abusing court procedure).

Contrary to Prater’s contentions, a trial court’s inherent power to sanction vexatious litigants is not obliterated simply because such a litigant might stumble upon a procedural error now and again. Accordingly, if Prater wishes to pursue his contention that the Department of Corrections misapplied the rationale of Quigley v. Florida Department of Corrections, 745 So.2d 1029 (Fla. 1st DCA 1999), he may do so by refiling his action in accordance with the order’s requirement that he either pay the filing fee or retain counsel.

AFFIRMED.

HAWKES and THOMAS, JJ., concur.


author: PADOVANO, J.

text:
    Elizabeth L. URQUHART and Henry T. Urquhart, Appellants, v. Andrea S. HELMICH, Appellee.
    No. 1D06-1439.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 7, 2007.

      R. Frank Myers of Pearson & Myers, P.A., Tallahassee, for Appellants.
    Robert G. Churchill, Jr., and Craig A. Dennis of Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, for Appellee.
   PADOVANO, J.

This is an appeal from a final summary judgment for the defendant in a civil action for intentional infliction of emotional distress. The complaint was based on a claim that the defendant, a medical doctor, had erroneously reported to state authorities that the plaintiffs infant daughter may have been abused. We conclude that the doctor is immune from civil liability to the plaintiffs and we therefore affirm.

The plaintiffs, Elizabeth and Henry Urquhart, took their then twenty-eight day old daughter to the Fort Walton Beach Medical Center emergency room on May 12, 2002, because she was having difficulty breathing. When the Urquharts arrived at the hospital the immediate danger had passed, but they reported to the emergency room technicians that the child had just experienced an episode in which she could not breathe and was turning blue. The defendant, Dr. Andrea Helmich, was the pediatrician on call at the hospital that day. She examined the infant and decided to admit her to the hospital for testing and observation.

During the course of her hospital stay, the infant experienced another episode in which she was having difficulty breathing. Dr. Helmich ordered a CT scan, and the radiologist who interpreted the scan told her that the child had suffered a skull fracture. According to the radiologist, the fracture was caused either by child abuse or by birth trauma.

The Urquharts told Dr. Helmich that when the infant was born, the obstetrician attempted to remove her from the birth canal with forceps. Although the infant was eventually delivered by cesarean section, they suggested that the earlier use of the forceps may have caused the injury the radiologist had observed on the CT scan. Dr. Helmich recommended several other tests to determine the cause of the infant’s medical problem, but the Urquharts declined to allow these tests to be performed on their child. The relationship between Dr. Helmich and the Urquharts began to deteriorate and it ended in several verbal confrontations. Dr. Helmich did not think that the skull fracture was caused by trauma during the birth of the child, and she reported the fracture to state authorities as an injury that may have been caused by abuse or neglect.

In their complaint, the Urquharts alleged that Dr. Helmich reported the injury to the state child abuse hotline out of a sense of spite because she was angry about the arguments they had with her in the hospital. They also alleged that Dr. Hel-mich was attempting to “get back at them” for bothering her during her busy work day and for arguing with the nurses about the infant’s treatment. Based on these assumptions, they concluded that Dr. Hel-mich made the report not out of a sense of duty, but rather to “flex her power over them.”

Dr. Helmich moved for a summary judgment and submitted affidavits of several other doctors in support of her motion. Doctor Barry Riggs, the radiologist who originally interpreted the CT scan, signed an affidavit in which he recounted his impressions about the test and his conversation with Dr. Helmich. He stated that he believed the infant had suffered a skull fracture and that, although this could have been consistent with birth trauma, the likelihood that the fracture was caused by birth trauma was “substantially reduced,” given the fact that the infant had been delivered by cesarean section. Dr. Riggs also stated in his affidavit that he concurred with Dr. Helmich’s decision to report the injury to the hotline. Two other doctors, Randall C. Alexander and Robert F. Shelton, also signed affidavits in which they concluded that Dr. Helmich had a duty under the circumstances to make the report in question.

The Urquharts argued that the summary judgment should be denied because there were disputed factual issues. They argued that Dr. Helmich was angry with them and that she had a motive to reject their explanation that the injury may have been caused by the use of forceps during birth. Additionally, they presented the results of a subsequent CT scan. The radiologist who interpreted this test did not think that the infant had suffered a fracture. This finding was not disputed for the purpose of the motion for summary judgment.

The trial court focused on the facts known at the time Dr. Helmich made the report and concluded that she was immune from civil liability as a matter of law. Based on this conclusion, the trial court granted summary judgment for Dr. Hel-mich. The Urquharts now appeal to this court.

Whether a doctor is immune from civil liability for making an allegedly false child abuse report depends on the application of two related statutes. Section 39.203, Florida Statutes affords a general grant of immunity to a person who makes a report of child abuse in good faith. Section 39.201, Florida Statutes, is more specific, in that it establishes a mandatory reporting requirement for medical doctors and other health care professionals who have reasonable cause to suspect that a child has been abused or neglected.

The good faith immunity afforded by section 39.203 applies broadly to any person who makes a report of child abuse. In this provision, the legislature left room for the possibility that the reporting procedure might be used for an improper purpose. If an unfounded report is made by a spiteful neighbor or a vengeful former spouse, the parent of the child has some legal recourse. The parent may assert a claim, and the person making the report would be immune from liability only if the report was made in good faith. In some cases, it might be difficult to resolve the issue of good faith without a trial.

But the immunity that is afforded to a medical doctor who discovers possible child abuse in the course of a medical examination is not the same as that afforded to an ordinary citizen. A doctor who has reasonable cause to suspect child abuse is required under section 39.201, Florida Statutes to report the abuse. Failure to make the report is a crime. See § 39.205, Fla. Stat. (2005). Because the report is required by law, it is not necessary to determine whether it was made in good faith. The doctor’s feelings about the child’s parent or caretaker, whatever they might be, are irrelevant.

We should not consider the mandatory reporting requirement and the general immunity provision in isolation as if they had no connection with each other. These statutes address related subjects and therefore they must be interpreted together in a way that harmonizes the law. See Maddox v. State, 923 So.2d 442 (Fla.2006); State v. Espinosa, 686 So.2d 1345 (Fla.1996); Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176 (Fla.1995). Interpreting the two statutes in isolation would lead to a conclusion that the legislature has exposed a doctor to civil liability for doing nothing more than what it has required the doctor to do under penalty of law. That result would be unreasonable and inconsistent with the meaning of both statutes.

Reading the two statutes together, we conclude that there are two ways in which a doctor can be immune from civil liability for making an incorrect report of child abuse. Immunity exists as a matter of law if the doctor has reasonable cause to suspect that the child has been abused and makes a report of the abuse as required by law. In that event, there is no need to determine whether the doctor acted in good faith. See O’Heron v. Blaney, 276 Ga. 871, 583 S.E.2d 834 (2003) (interpreting nearly identical provisions in the Georgia statutes); see also Marks v. Tenbrunsel, 910 So.2d 1255, 1258-61 (Ala.2005). As the court explained in O’Heron, once reasonable cause has been shown, “a reporter complying with the statutory mandate to make a report is, by definition, operating, in good faith.” 583 S.E.2d at 836. However, the absence of reasonable cause does not prove liability; it merely removes the immunity that would otherwise apply as a matter of law. If the objective evidence does not support a conclusion that the doctor had reasonable cause to make the report, the doctor may nevertheless claim immunity from civil liability by showing that the report was made in good faith.

Whether a medical doctor has reasonable cause to suspect that a child has been abused is a question of law. The phrase “reasonable cause” is used in section 39.201, Florida Statutes to describe a legal standard, and in this respect, it is no different from legal standards that are applied in other areas of the law. For example, the existence of reasonable suspicion to justify a temporary detention is a question of law, as is the existence of probable cause to search a person. As with these standards, reasonable cause to suspect child abuse either exists on the facts known to the person taking the action or it does not. Whether the standard has been met under a given set of facts is a question of law.

A doctor ■ may have reasonable cause to suspect that a child has been abused, even though the parent has given an innocent explanation for the child’s injuries. It is reasonable to assume that a parent might attempt to explain an injury by something short of a confession to child abuse. In any event, the history given by the parent is only one factor the doctor must rely on in assessing the likely, cause of the injury. The issue of reasonable cause is not transformed from a question of law into a question of fact to be resolved by a jury merely because the parent has advanced an alternative cause of the child’s injury.

On the facts presented here, we have little doubt that Dr. Helmich had reasonable cause to suspect child abuse. The radiologist told her that he believed the child had suffered a skull fracture. Although the apparent fracture could have been caused by trauma during birth, the radiologist told Dr. Helmich that it was more likely caused by child abuse. Dr. Helmich suggested other medical tests before she called to make the report, but the Urquharts declined to allow her to conduct those tests.

The plaintiffs emphasize the fact that a subsequent CT scan showed that the infant’s skull had not been fractured. That is immaterial. The question is not whether child abuse actually occurred, but whether there was reasonable cause to suspect that it had occurred. That is a question that can only be answered by considering the facts that were known at the time the report was made.

For these reasons, we conclude that it is not necessary to determine whether the report of child abuse was made in good faith. Because Dr. Helmich had reasonable cause to suspect that the infant had been abused, she is immune from civil liability as a matter of law. The summary judgment in this case was properly entered.

Affirmed.

LEWIS and THOMAS, JJ., concur.


author: CORTINAS, Judge.

text:
    Esperanza SEGARRA, Appellant, v. Manuel A. SEGARRA, III, Appellee.
    No. 3D06-1540.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Rehearing Denied Jan. 29, 2007.

      Esperanza Segarra, in proper person.
    Manuel A. Segarra, III, in proper person.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

The former wife, Esperanza Segarra (“the Mother”), appeals the trial court’s order denying both her petition for relocation and her former husband’s, Manuel A. Segarra, III (“the Father”), petition for modification of visitation. The parties were married on September 15, 1999. Three months later, their son was born. The marriage lasted for approximately two years. On October 28, 2002, the trial court entered a final judgment of dissolution of marriage, incorporating a marital settlement agreement (“MSA”) that addressed shared parental responsibility, primary residence, visitation, and child support. The MSA awarded the parties shared parental responsibility, designating the Mother as the primary residential parent and affording the Father liberal visitation.

On June 7, 2005, the Father filed what he titled a “Petition for Modification of Visitation.” In this petition, the Father sought rotating custody of the child so that the child’s “primary residence ... shall be divided equally between both parties.”

The Mother filed a response as well as a “Counterpetition for Relocation,” seeking the court’s permission to relocate with the child to Bryceville, Florida, where her family resides, and asking the court to impose substitute visitation. After numerous motions from both parties, the trial court held a four-day hearing on the two petitions, hearing testimony from fifteen witnesses. The trial court subsequently denied both motions in a lengthy written order.

On appeal, we review questions of law, including the interpretation of the final judgment of dissolution of marriage and incorporated MSA, de novo. Bazan v. Gambone, 924 So.2d 952, 955 (Fla. 3d DCA) (citation omitted), review denied No. 06-892, 944 So.2d 344 (Fla.2006); Norris v. Norris, 926 So.2d 485, 487 (Fla. 2d DCA 2006). We review the trial court’s factual findings to determine whether they were supported by competent and substantial evidence. Dortar-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001). We review the trial court’s decision on relocation for abuse of discretion. Id.

The Mother’s Petition for Relocation

To adjudicate the petition for relocation, the trial court analyzed the factors listed in section 61.13(3)(d), Florida Statutes, and concluded that relocation was not in the best interest of the child. See § 61.13(3)(d), Fla. Stat. (2005). The Mother disagrees with the trial court’s factual findings upon which it based its conclusion.

Paragraph 2 of the MSA provides that “[njeither party shall relocate from the Miami-Dade County area without the written consent of the other party or an Order of Court.” Florida law does not recognize a presumption in favor of or against a primary residential parent who seeks to relocate a child. See § 61.13(3)(d), Fla. Stat. (2005). Instead, the trial court must evaluate the factors enumerated in section 61.13(3)(d), Florida Statutes, when considering a petition. Id. The statutory factors are:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child[;] 2. The extent to which visitation rights have been allowed and exercised!;] 3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements!;] 4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent!;] 5. Whether the cost of transportation is financially affordable by one or both parties!;] 6. Whether the move is in the best interests of the child.

Id. The statute does not require a parent who seeks to relocate to demonstrate a substantial change in circumstances. See generally id.

The trial court thoroughly analyzed the statutory factors relevant to determining whether relocation is in the best interest of the child. Examining the first factor, the trial court found no evidence that the proposed move would improve the general quality of life for the Mother and child, given the proposed living arrangements, the fact that the Mother did not have a job offer near Bryceville, and the fact that the child’s proposed school did not have a Spanish language program similar to the one in which he is currently enrolled. As to the second factor, the trial court found that visitation rights have been allowed and exercised. As to the third factor, the trial court found that transportation costs and the driving distance between Miami and Bryceville would pose a burden on both parents. On the remaining factors, the trial court found that substitute visitation would not be complied with in the event of a conflict between the parents, that relocation would end one chapter, yet begin another chapter, of conflict between the parents, and that relocation “would result in a significant diminishment of the excellent relationship” between the Father and the child. Thus, the trial court concluded relocation would not be in the best interest of the child.

After reviewing the record, we find competent and substantial evidence to support the trial court’s factual findings. There was no abuse of discretion in the trial court’s ruling.

Father’s Petition for Modification of Visitation

Custody

The Father sought to modify custody and visitation without showing a substantial change in circumstances based on a provision in the final judgment which provided that the parties would revisit visitation when the child commenced formal schooling. The trial court found it was entitled to revisit visitation based on this provision and a provision in the MSA that made custody and visitation contingent upon the parties’ completion of counseling. It is undisputed that the parties did not complete counseling; however, this issue was not raised by either party in their post-judgment petitions. We review de novo whether the trial court applied the proper law in considering a modification of a final custody determination. See Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005).

The Father’s petition, although claiming to seek modification of visitation, actually sought to modify the custody determination contained in the final judgment by establishing rotating custody, instead of shared parental responsibility with the Mother designated as the primary residential parent. The Father claims that the Mother was only temporarily designated the primary residential parent. A plain reading of the MSA does not support this contention.

Where, as here, there is a final custody determination, a parent seeking to modify such a determination must demonstrate “(1) that the circumstances have substantially and materially changed since the original custody determination, and (2) that the child’s best interests justify changing custody.” Id. at 931 n. 2 (adopting the “substantial change test” set forth by the First District in Cooper v. Gross, 854 So.2d 262, 265 (Fla. 1st DCA 2003)). Although in Cooper and Wade the courts adopted the substantial change test for modification of a rotating custody agreement, the same concerns apply to modification of any aspect of the final judgment. Wade, 903 So.2d at 934 (“The substantial change test articulated herein applies to the modification of a divorce decree providing for the custody and care of a child.”); Knipe v. Knipe, 840 So.2d 335, 339-40 (Fla. 4th DCA 2003) (citations omitted)(applying the substantial change test to petitions seeking modification of visitation).

The existence of a substantial change must be alleged on the face of the petition. Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997). Clearly, the Father’s petition does not contain any allegation of a substantial change in circumstances. To the contrary, the Father states that such a showing is not necessary. After the hearing below, and on appeal now, the Father attempts to persuade this court that the Mother’s relocation petition constitutes a substantial change in circumstances sufficient to warrant modification of the final judgment. We disagree. A desire to relocate alone, as a matter of law, is not a substantial change in circumstances sufficient to warrant modification of custody. Chapman v. Prevatt, 845 So.2d 976, 981 (Fla. 4th DCA 2003)(citing Perez v. Perez, 767 So.2d 513, 517-18 (Fla. 3d DCA 2000)). Moreover, we find that the parties’ failure to complete counseling does not, as a matter of law, constitute a substantial change in circumstances to support modification of a final custody determination. We render no opinion as to whether any of the other “changes” alleged by the Father are substantial changes sufficient to warrant modification because we find they were inadequately pled and because they were not the basis for the trial court’s denial of the petition.

Although the trial court properly denied the Father’s petition for modification of a custody determination, it erred in not following the “substantial change test” set forth in Wade.

Visitation

In addition to seeking rotating custody, the Father’s petition sought modification of visitation. The Father is not required to demonstrate a substantial change in circumstances to modify the visitation provisions in the final judgment because the MSA between the parties specifically contemplated revisiting the issue of visitation at the time the child began formal schooling. See Wade, 903 So.2d at 932 n. 9 (recognizing that a final judgment may provide for a particular standard upon which to modify a final judgment); Greene v. Suhor, 783 So.2d 290, 292 (Fla. 5th DCA 2001)(finding that the father was not required to satisfy the substantial change test where agreement provided that either party could apply for change in custody when child began kindergarten without demonstrating substantial change in circumstances); Mooney v. Mooney, 729 So.2d 1015, 1016 (Fla. 1st DCA 1999)(same).

However, in this case, the final judgment did specifically require the parties to attend mediation in order to revise the visitation schedule when the child began formal schooling. Because the Father failed to comply with this requirement pri- or to petitioning the court, the trial court ordered the parties to attend counseling and, subsequently, mediate the issue of visitation. As the trial court merely enforced what the parties’ own agreement contemplated, we find no error in the trial court’s ruling.

Conclusion

Because we find the Father failed to meet his burden of alleging a substantial change in circumstances sufficient to warrant modification of a final custody determination, and because we find the trial court did not abuse its discretion in denying the Mother’s relocation petition, we affirm the trial court’s order denying both petitions. We also affirm the trial court’s order requiring the parties to attend counseling and mediation prior to petitioning the court for a change in the visitation schedule.

Affirmed.


text:
    Beverly PENZELL, Appellant, v. Harvey BURTON, Appellee.
    No. 3D06-1375.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Victor K. Rones, North Miami Beach, for appellant.
    Warren P. Gammill, Miami, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979); De Las Cuevas v. Nat’l Enters., Inc., 927 So.2d 41 (Fla. 3d DCA 2006).


author: WARNER, J.

text:
    Mitchell NEWKIRK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4493.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 19, 2007.

      Mitchell Newkirk, Okeechobee, pro se.
    No appearance required for appellee.
   WARNER, J.

Appellant appeals the trial court’s denial of his motion for postconviction relief based upon allegations of his counsel’s ineffective assistance. Under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show that any ineffective performance of counsel has prejudiced him in these proceedings. To that end, appellant must demonstrate a reasonable probability that the deficient performance affected the outcome of the proceedings or rendered them fundamentally unfair. See Provenzano v. State, 616 So.2d 428, 431 (Fla.1993). Because he did not prove prejudice, we affirm.

Appellant’s allegations of failure to object to evidence of prior convictions which qualified appellant for an enhanced sentence do not show any prejudice, because he does not allege under oath that the convictions used to enhance his sentence were not his or that he did not qualify for an enhanced sentence. He also alleges that his counsel failed to present evidence to mitigate his sentence, but does not allege what that evidence would have been. Thus, he has made no showing of any effect on the outcome of the sentencing proceeding. Additionally, his allegations with respect to failure to request a speedy trial discharge also do not show that the proceeding was rendered fundamentally unfair or that the state could not have brought him to trial within the time periods allowed by the speedy trial rule.

Finally, he makes the curious claim that his trial counsel failed to file a notice of appeal, but the state attached a copy of the notice. This court entertained an appeal from the conviction and sentence. See Newkirk v. State, 898 So.2d 228 (Fla. 4th DCA 2005). This claim is meritless.

Affirmed.

STEVENSON, C.J., and FARMER, J., concur.


text:
    EPIPHANY SOUTH MIAMI 602 A ENTERPRISES, INC., Appellant, v. WATERHOUSE CONSTRUCTION GROUP, INC., Adrian Triana, and MG Air Conditioning Corporation, Appellees.
    No. 3D06-656.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 13, 2007.
    Gustavo Gutierrez, Coconut Grove; Boldt Law Firm and Kimberly L. Boldt (Boca Raton) and Seth Loft (Boca Raton), for appellant.
    Diane S. Perera and James C. Kellner, for appellees Waterhouse Construction Group, Inc., and Adrian Triana.
    Before WELLS and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Bonner v. RCC Assocs., Inc., 679 So.2d 794 (Fla. 3d DCA 1996); Concrete Design Structures, Inc. v. P.L. Dodge Found., Inc., 532 So.2d 1334 (Fla. 3d DCA 1988); Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So.2d 69 (Fla. 3d DCA 1987); Maguire v. King, 917 So.2d 263 (Fla. 5th DCA 2005); Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755 (Fla. 2d DCA 2005), review denied, 929 So.2d 1053 (Fla.2006); Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344 (Fla. 4th DCA 1992).


text:
    Deryck L. KATWAROO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4152.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 19, 2007.
    Deryck L. Katwaroo, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The trial court denied appellant’s motion for reduction, modification or correction of sentence as legally insufficient. We agree, as it did not allege the type of error that can be corrected pursuant to rule 3.800. Instead, appellant challenges the conditions of his confinement, which is a claim properly addressed by administrative proceedings and then, after exhaustion of administrative remedies, see Taylor v. Perrin, 654 So.2d 1019 (Fla. 1st DCA 1995), by petition for writ of habeas corpus which must be brought in the jurisdiction in which he is being held. See Harvard v. Singletary, 733 So.2d 1020 (Fla.1999).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3915.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 20, 2007.
    Dexter Gunn, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of the motion for postconviction relief, but not its dismissal. We agree with the defendant that a trial court should review the merits of a postconviction motion, even if untimely, which raises a jurisdictional issue that was not previously considered on the merits. See Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005) (reversing summary denial of rule 3.850 motion, and holding that the trial court was required to address the merits of defendant’s motions for postconviction relief where they raised jurisdictional issues that were not previously raised, as a void judgment may be collaterally attacked at any time). However, the ground for the instant motion lacks merit. The Broward County circuit court, where the defendant was prosecuted for felonies alleged to have been committed in Broward County, did not lack subject matter jurisdiction to rule on a motion to suppress evidence sought to be used in that case, see § 26.012(2)(d), Fla. Stat. (1989), even though the motion was based on the allegedly pretextual nature of a traffic stop, which also resulted in unrelated charges which were prosecuted in the county court.

Affirmed.

STEVENSON, C.J., and TAYLOR, J., concur.

FARMER, J., concurs in result only.


author: CORTIÑAS, Judge.

text:
    Aaron Edward STRONG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1175.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Rehearing Denied Jan. 29, 2007.

      Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The defendant, Aaron Strong (“Strong”), was convicted of manslaughter and false imprisonment. He appeals his conviction and contends that the trial court erred by admitting into evidence a statement made by the victim. The statement at issue was a hearsay statement made by the victim, Grace Brown Strong (“Mrs. Strong”), who was the defendant’s spouse, to Officer Valdes approximately five to eight hours after Mrs. Strong sustained an injury that rendered her quadriplegic. Over a year after sustaining the injury, Mrs. Strong died of complications from quadriplegia.

Mrs. Strong’s statement was seventeen minutes in length and was the most detailed evidence in support of the State’s theory of the case. Although clearly hearsay, the State argued and the trial court agreed that the statement was an excited utterance, and thus, an exception to the prohibition on the admission of hearsay statements. See § 90.803(2), Fla. Stat. (2005). The standard of review on appeal of an evidentiary ruling is abuse of discretion. Carpenter v. State, 785 So.2d 1182, 1201 (Fla.2001); Wilson v. State, 880 So.2d 1287, 1289 (Fla. 3d DCA 2004).

The Florida Evidence Code, codified in chapter 90 of the Florida Statutes, defines an excited utterance as “a statement or excited utterance relating to a startling event or condition made while the declarant is still under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. Excited utterances are admissible because they contain sufficient guarantees of trustworthiness in that “the declarant does not have the reflective capacity necessary for conscious misrepresentation” while in a state of excitement. Rogers v. State, 660 So.2d 237, 240 (Fla.1995)(citing Charles W. Erhardt, Florida Evidence § 803.2 (1994 ed.)). For a statement to constitute an excited utterance, the Florida Supreme Court has stated that “(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event.” State v. Jano, 524 So.2d 660, 661 (Fla.1988)(cit-ing Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982)).

The statutory language setting forth the excited utterance exception does not contain a temporal requirement. Compare § 90.803(2), Fla. Stat. with § 90.803(1), Fla. Stat. (requiring that a spontaneous statement be made while perceiving the event or immediately thereafter). Thus, courts have recognized that there is no bright-line test for how much time can pass before a statement can no longer be considered an excited utterance. Jano, 524 So.2d at 663. Instead, the amount of time that has passed between the event causing the excitement and the making of the statement is indicative of whether the victim was still under the stress of the event at the time the statement was made, such that the declarant’s excited state prevented the declarant from engaging in reflective thought. Id. at 662 (citations omitted). “Where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declar-ant did not engage in a reflective thought process.” Id.; see also Rogers, 660 So.2d at 240 (“Although there conceivably was time for [the declarant] to engage in reflective thought, the record indicates that [the declarant] did not engage in any reflection”). It is the State’s burden to show that the time that elapsed was “sufficiently short” to prevent reflective thought. Jano, 524 So.2d at 663; Hutchinson v. State, 882 So.2d 943, 951-52 (Fla.2004)(“Absent some evidence that [the declarant] did not engage in reflective thought, the statement ... must be excluded.”); Stoll v. State, 762 So.2d 870, 873-74 (Fla.2000)(holding that the State failed in fulfilling its burden of showing that “the time period was such that [the declarant] did not have time for reflective thought”).

Here, the State did not satisfy its burden. Clearly, sufficient time, at least four to five hours, elapsed for Mrs. Strong to have engaged in reflective thought. Depending on which party’s theory of the case is accepted, the statement was made five to eight hours after Mrs. Strong sustained her injury. Even if that time is discounted for the time the State contends Mrs. Strong was left lying helpless on the floor of her home, there still remains almost a four hour gap between the time Fire Rescue arrived at her home and the time Mrs. Strong made her statement to Officer Valdes. Cf. Laflipe v. State, 888 So.2d 104, 105 (Fla. 3d DCA 2004)(uphold-ing the admission of a statement as an excited utterance because “[a]lthough there was no definitive time regarding when [the victim] was shot and when he arrived at his home, he was still in an excited state after being shot where blood was coming out of his wound, he was moaning in pain, and he told his sister ... within minutes of coming home, the identity of his shooter.”)

During those four hours, Mrs. Strong was in contact with at least two Fire Rescue paramedics, one nurse, and one resident doctor. The record also indicates that Mrs. Strong may have spoken with the defendant after arriving at the hospital and before giving her statement to Officer Valdes. Although we render no opinion as to the truth of Mrs. Strong’s statement to Officer Valdes, we must recognize that the facts surrounding her statement allowed her the opportunity to overhear what was being said about her injury and to reflect on what she would say. See Hamilton v. State, 547 So.2d 630, 633 (Fla.1989)(exclud-ing statement of two-year old child as to how his family members were shot because statement was made two and one half hours after the shootings and the child had “ample opportunity while at the scene of the shootings to overhear deputies, investigators, and several other people state that opinion”).

Because sufficient time elapsed for Mrs. Strong to have engaged in reflective thought, the State had the burden to prove that she did not actually engage in reflective thought. Mariano v. State, 933 So.2d 111, 117 (Fla. 4th DCA 2006)(“Applying the rule of Jano, the interval between the event and the statement to [the witness] was long enough to permit reflective thought. Thus, the statement is inadmissible unless there is evidence that reflective thought, did not occur.”)(emphasis in original). .

During its proffer on the admissibility of the excited utterance, the State’s position was that Mrs. Strong’s paraplegic condition prevented her from engaging in reflective thought. While we recognize Mrs. Strong’s paraplegic condition at the time she made the statement, we cannot find this to be a case where Mrs. Strong’s physical condition alone would prevent her from engaging in reflective thought. See Blandenburg v. State, 890 So.2d 267, 270 (Fla. 1st DCA 2004)(recognizing that the “common thread” in cases admitting statements made “well after” the event is that “at the time of the statement, the declar-ants were either hysterical, severely injured, or subject to some other extreme emotional state sufficient to prevent reflective thought”). In dicta, the Florida Supreme Court has recognized that a person rendered unconscious may make a statement days after the event that rendered them unconscious and the statement may still be an excited utterance. Jano, 524 So.2d at 661.

Here, the State put forth no evidence to demonstrate that Mrs. Strong’s physical condition prevented her from explaining what happened prior to her conversation with Officer Valdes or from engaging in reflective thought. Instead, the testimony of an emergency room doctor who treated Mrs. Strong prior to Officer Valdes’ arrival makes clear that Mrs. Strong was able to speak to him about her condition.

Further, the State’s testimony did not support its position that Mrs. Strong was still in an excited state at the time she made the statement. See Edmond v. State, 559 So.2d 85, 86 (Fla. 3d DCA 1990)(admitting statement as excited utterance where statement was made two to three hours after the event and the evidence showed that the child “was excited, perhaps even hysterical” at the time he made the statement). To the contrary, on cross-examination, Officer Valdes was asked whether she would consider “finding out that you can’t move your arms and legs a pretty traumatic experience” and she responded that she would not consider it traumatic.

The only evidence of Mrs. Strong’s state of mind was Officer Valdes’ description that Mrs. Strong was crying while giving her statement and had to pause to compose herself. Cf. Bell v. State, 847 So.2d 558, 561 (Fla. 3d DCA 2003)(finding excited utterance where officer testified that victim remained hysterical while making a statement fifty minutes after the event as evidenced by the victim looking outside to make sure the defendant was not there and the victim being so upset she could not speak). Florida law is clear that the fact that a declarant becomes excited while making the statement is insufficient to transform the statement into an excited utterance. See Mariano, 933 So.2d at 117 (“The mere fact that [the victim] was still upset and crying is not sufficient to show that reflective thought has not occurred.”); Blandenburg, 890 So.2d at 270 (“After reviewing the record in this case, we conclude that the State went no further than showing that both [declarants] were excited when they spoke with [the police officer].”); Chariot v. State, 679 So.2d 844, 845 (Fla. 4th DCA 1996)(“A statement as to what occurred does not become admissible merely because the victim is still in an excited state.”).

Further, a review of Officer Valdes’ testimony at trial indicates that Mrs. Strong made her statement in response to the officer’s questioning. Contrary to the State’s contention that Mrs. Strong spontaneously poured out her story to the first person who would listen to her, Officer Valdes testified that in response to her questioning, Mrs. Strong gave a chronological description of the events of the night, beginning with her husband’s arrival at home that night, the argument that occurred, and her husband’s alleged violent reaction.

Statements made in response to police questioning are, by definition, not excited utterances. J.A.S. v. State, 920 So.2d 759, 763 (Fla. 2d DCA 2006); Blandenburg, 890 So.2d at 272; Lyles v. State, 412 So.2d 458, 460 (Fla. 2d DCA 1982). Similarly, a statement “in the form of a narrative of the events in and of itself indicates that the victim is reflecting upon the events of the evening.” Mariano, 933 So.2d at 117. The record does not support the State’s position that this is “a case in which the victim blurted out the details of the traumatic event without prompting.” J.A.S., 920 So.2d at 763; cf. Rivera v. State, 718 So.2d 856, 857 (Fla. 4th DCA 1998)(finding statement an excited utterance where officer testified that he approached the scene of an altercation to find the victim holding her torn dress, screaming, waving her hands, crying, and asking the officer to keep the defendant away from her.)

Thus, we find the trial court abused its discretion by admitting Mrs. Strong’s seventeen minute statement as an excited utterance without sufficient proof that the statement met the criteria for an excited utterance. Because we find the trial court erred, the burden is on the State to prove the error was harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

After reviewing the record in its entirety, we find Officer Valdes’ testimony was perhaps the State’s strongest evidence. Although two other witnesses testified that Mrs. Strong described her injury as occurring when her legs were flipped behind her head and she heard a popping noise, they gave no further explanation as to how or why the injury occurred. Mariano, 933 So.2d at 117 (holding admission of statement was not harmless error where statement went beyond what other witnesses testified about). Indeed, Officer Valdes was the only witness to link Mrs. Strong’s description of how she was injured to the defendant and was the only witness to explain that the injury resulted from an alleged sexual battery. Officer Valdes’ testimony was especially important as Strong testified to his account of how Mrs. Strong injured herself. Additionally, the two medical examiners who testified differed in their opinion of how Mrs. Strong was injured, one finding Mrs. Strong’s version to be most consistent with her injury and the other finding Strong’s version most consistent with the injury. Because we cannot find beyond a reasonable doubt that the jury was not affected by the admission of Mrs. Strong’s statement, we must reverse the defendant’s convictions and remand for a new trial. DiGuilio, 491 So.2d at 1139 (“If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”).

Reversed and remanded.

      . The State's theory behind Mrs. Strong's injury was that Strong broke Mrs. Strong's spine when he flipped her legs behind her head in an attempt to engage in non-consensual sex with her. The defense's theory was that Mrs. Strong's spine broke when she tripped over and hit her head on a metal chair while under the influence of cocaine, marijuana, and alcohol.

      . In addition to arguing that Mrs. Strong’s statement constituted an excited utterance, the State also argued, and the trial court agreed, that Mrs. Strong's statement was admissible as a first complaint of sexual battery. However, if admissible under this theory, only the fact that the statement was made, and not the content of the statement, is admissible. See Burgess v. State, 644 So.2d 589, 591 (Fla. 4th DCA 1994)(citing Ellis v. State, 25 Fla. 702, 6 So. 768 (1889)). Thus, even if the statement was admissible under this theory, the trial court erred by allowing Officer Valdes to testify about the details of the statement. For reasons explained below, this error was not harmless.


text:
    The CHURCH OF CHRIST WRITTEN IN HEAVEN, INC., a Georgia nonprofit corporation, Appellant, v. The CHURCH OF CHRIST WRITTEN IN HEAVEN OF MIAMI, INC., a Florida corporation, Appellee.
    No. 3D06-1957.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.

      Smoler Lerman Bente & Whitebook, Miami, and Kathleen Bente, Hollywood, for appellant.
    Mendez & Mendez, and Sergio Mendez, Coral Gables, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

The Church of Christ Written in Heaven, Inc., a Georgia non-profit corporation, appeals an order vacating a default judgment entered against appellee The Church of Christ Written in Heaven of Miami, Inc., a Florida corporation. We reverse because the local Miami church failed to establish excusable neglect and a meritorious defense sufficient to allow the trial court to vacate the default final judgment.

The Georgia church filed an amended complaint which it served upon the local Miami church on April 14, 2005. The local Miami church did not respond to the amended complaint and the Georgia church moved for the entry of a default. The clerk entered a default against the local Miami church. On June 27, 2005, the court entered a default final judgment against the local Miami church. The local Miami church thereafter moved to vacate the final default judgment. In its unverified motion, the local Miami church alleged that its failure to file a response was due to mistake, inadvertence and excusable neglect, and that it had a meritorious defense. At the hearing on the motion to vacate, Arturo Alfonso, who had been counsel for a separate defendant, testified that he had failed to file an Answer on behalf of the local Miami church at the time during which he filed one on behalf of the separate defendant. Alfonso also testified that he had never been retained to represent the local Miami church.

The trial court subsequently determined that there had been a showing of excusable neglect and granted the motion, finding that “while all of the procedural requirements may not have been met at the outset, they [had], over the history of the case, been met.” We find that the motion to vacate was legally insufficient.

Florida law requires the party who moves to vacate the entry of a default and default judgment to demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate a default and default judgment. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962); Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004); Dade Cty. v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976). Excusable neglect must be proved by sworn statements or affidavits. See Geer, 880 So.2d at 720. A conclusory assertion that a meritorious defense exists is insufficient to demonstrate the existence of a meritorious defense. Id. at 721. A party’s failure to satisfy these requirements is fatal to the success of a motion to vacate. Id.

The local Miami church’s motion to vacate contained no evidence of excusable neglect or meritorious defense. The local Miami church’s motion to vacate contained only a bare allegation of excusable neglect and meritorious defense. The motion was unverified and it did not contain any accompanying affidavit in support. The motion was thus legally insufficient. Furthermore, at the hearing on the motion, the local Miami church did not present any testimony to support a showing of excusable neglect. Alfonso’s testimony at the hearing on the motion, where he stated that he never represented the local Miami church, actually disproved local Miami church’s claim of excusable neglect.

Although courts favor the disposition of cases on the merits, a trial court abuses its discretion when it sets aside a default judgment underlying which is a legally insufficient motion to vacate. See Geer, 880 So.2d at 720. We must therefore reverse the trial court’s order vacating the default final judgment.

Reversed.


author: GROSS, J.

text:
    Kathryn Angie STOUGH, Appellant/Cross-Appellee, v. Stephen Michael STOUGH, Appellee/Cross-Appellant.
    No. 4D06-603.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Heather L. Trailer and H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellant/cross-appellee.
    George M. Evans of The Law Offices of George M. Evans, P.A., Coral Gables, for appellee/cross-appellant.
   GROSS, J.

The husband cross-appeals one aspect of a final judgment of dissolution of marriage.

In the final judgment, the trial court found that the husband “got the benefit of the boat purchased by the Wife’s father for $9800.00.” Although the husband “testified he sold the boat for $1000.00,” the trial court did “not find this testimony credible.” The court ruled that the husband would “be responsible for the $9800.00 loan from the Wife’s father used to purchase the parties’ boat.”

On appeal, the husband argues that the “trial judge erred by awarding $9,800.00 in the [fjinal judgment in favor of a non party against the Husband in a dissolution of marriage action.” The husband reasons that the “trial court did not have jurisdiction to award damages in favor of a non party,” since the father was not joined as a party.

Our reading of the dissolution judgment is that the trial judge equitably distributed the debt to the wife’s father as a marital liability under section 61.075, Florida Statutes (2005). This means that the court determined that between the husband and the wife, the husband should be responsible for the debt. This was not an abuse of discretion in light of the evidence presented at trial.

The dissolution judgment is not a final judgment in favor of the wife’s father for the underlying debt which the father is entitled to enforce under Chapter 56 or Chapter 77, Florida Statutes (2005).

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . The wife appealed and the husband cross-appealed the final judgment of dissolution of marriage. The wife subsequently filed a motion for dismissal of her appeal which was formalized by a July 17, 2006 order of this court; the husband's cross-appeal remained.


text:
    Robert BRADY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3816.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 27, 2007.
    Robert Brady, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Robert Brady appeals the denial of his post-conviction motion filed under Florida Rule of Criminal Procedure 3.850 after an evidentiary hearing on one of his claims. We affirm.

At the evidentiary hearing, Brady expressed dissatisfaction with his court-appointed attorney and requested another one. The trial court concluded that counsel was providing adequate assistance and denied the request. Brady chose to proceed with counsel.

The evidentiary hearing concerned Brady’s claim that trial counsel was ineffective for failing to call Brady’s cousin as a witness to support a self-defense claim. However, before trial, Brady told his lawyer that he had an alibi defense — he claimed he was in St. Augustine at the time of the shooting; never did Brady tell counsel that he was at the scene of the shooting or that he shot the victim in self-defense. Before trial, Brady told an investigator that he was in Orlando at the time of the shooting. He gave the investigator the name of a witness who supported the alibi. The investigator tried without success to confirm the alibi in North Florida. Brady denied telling his lawyer or investigator that he was in Orlando or St. Augustine at the time of the shooting.

The trial court denied relief, concluding that Brady’s testimony was not credible.

On appeal, Brady raises two arguments. That the court erred in summarily denying claim seven of his motion and that post-conviction counsel provided ineffective assistance.

In claim seven, Brady contends that trial counsel was ineffective for failing to seek suppression of a post-custody statement under Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). We affirm the summary denial of his claim because Brady received the functional equivalent of adequate Miranda warnings and he failed to show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

On the remaining claim, our review of the record demonstrates that Brady was not denied meaningful access to the courts. See Kokal v. State, 901 So.2d 766, 777 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 560, 163 L.Ed.2d 471 (2005).

Affirmed.

KLEIN and MAY, JJ., concur.


author: TAYLOR, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. Kathryn COX, Toby Bogorff, Robert Bogorff, Beth Garcia, Roald Garcia, Robert Pearce, Barbara Pearce, Timothy Donald Farley and Patricia Woody, Respondents.
    No. 4D04-4952.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 27, 2007.

      Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, and Jerold I. Budney of Greenberg Traurig, P.A., Fort Lauderdale, for petitioner.
    Robert C. Gilbert of Robert C. Gilbert, P.A., Coral Gables, Jamie Alan Cole of Weiss Serota Helfman Pastoriza Cole & Boniske, P.A., Fort Lauderdale, William S. Williams of Lytal, Reiter, Clark, Fountain & Williams, West Palm Beach, Ellis Rubin of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, and Michael J. Pucillo of Berman Devalerio Pease Tabac-co Burt & Pucillo, West Palm Beach, for respondents.
   TAYLOR, J.

This class action was brought by property owners to recover compensation from the Florida Department of Agriculture and Consumer Services because of its destruction of canker-exposed citrus trees under the Citrus Canker Eradication Program. The Department challenges a trial court order requiring it to pay the costs of providing notice to members of the certified class.

In Florida Department of Agriculture v. Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002), we affirmed the trial court’s certification of the class (Cox class) but limited the class to Broward County citrus tree owners. Notice of the class action must be provided to members of the class to allow any member who does not want to be part of the class action suit to opt out. Fla. R. Civ. P. 1.220(d)(2) (2005). Under Rule 1.220 the plaintiff is required to pay the costs of providing notice “unless otherwise ordered by the court.” Because the parties were unable to agree on which party should be required to pay the costs of providing notice to class members, the trial court held a hearing on this issue. After the hearing and a review of additional written argument submitted by the parties, the trial court entered an order approving the form and manner of notice to the class and requiring the Department to pay the initial costs of providing the notice. The order states, in pertinent part, as follows:

8. Fla. R. Civ. P. 1.220(d)(2) provides: “Unless otherwise ordered by the court, the party asserting the existence of the class shall initially pay for the cost of giving notice.” The Court, however, has broad discretion to order the party opposing class certification to advance the cost of notice where doing so “provides the most economically viable means of assuring efficient and cost-effective notification.” See, Sears, Roebuck and Co. v. Labora, 670 So.2d 1025, 1026 (Fla. 3rd DCA 1996).
9. The Court finds the arguments and evidence in this case sufficiently persuasive to warrant shifting to the Defendant the burden of paying the initial costs of giving notice. The Defendant should pay the initial costs of giving notice to the Cox Class because it will result in the most economically viable means of assuring efficient and cost-effective notification. The Defendant has compiled and maintains an extensive database of Cox Class members which is regularly updated. The Defendant has previously communicated with members of the Cox Class by mail on at least three (3) prior occasions. The Defendant’s written communications with members of the Cox Class have been in three languages — English, Spanish and Creole— reflecting the multilingual nature of South Florida’s population. Thus, the Department is uniquely positioned to disseminate the Notice of Pending Class Action and Request for Exclusion through use of its PICS database, and should be required to pay the initial costs of giving such notice. Requiring the Defendant to initially pay the notice costs is also warranted based on the Plaintiffs’ showing of some success on the merits in this case. Throughout the four year span of this litigation, Plaintiffs have established the Defendant’s destruction of property owned by members of the Cox Class under the CCEP, and the Defendant’s destruction of such property was accomplished for a public purpose. Moreover, Plaintiffs have defeated through partial summary judgment the Defendant’s affirmative defense asserting a right of a setoff based on the Shade Florida (Wal-Mart) cards. Therefore, requiring the Defendant to initially pay the costs of giving notice to the Cox Class is also supported based on Plaintiffs’ prior showing of some success on the merits. See, 3 Newberg on Class Actions § 8.6 (4th Ed.). Accordingly, Defendant shall pay the initial costs of proving notice in the manner described herein to the Cox Class, subject to taxation following entry of final judgment on the claim for inverse condemnation.

The Department originally sought appellate review of the order as an injunction under Rule 9.130(a)(3)(B), Fla. RApp. P., but we sua sponte redesignated the appeal as a petition for writ of certiorari under Rule 9.030(b)(2)(a), Fla. R.App. P.

In response to our order to show cause why the petition should not be granted, the Cox class/respondents first seek dismissal of the petition. They argue that we lack any basis for exercising certiorari jurisdiction because the trial court’s pretrial order does not result in any irreparable injury to the Department that cannot be corrected on final appeal. They point out that the order merely requires the Department to advance the costs of providing notice to the certified class and expressly provides that such costs are “subject to taxation following entry of final judgment.” Alternatively, they argue that we should deny relief because the order was proper on the merits.

In reply, the Department argues that certiorari relief is appropriate in this case. It cites cases wherein appellate courts have granted a writ of certiorari upon a state agency’s claim that the trial court violated separation of powers principles by ordering the agency to pay for certain litigation costs. Office of the State Attorney for the Eleventh Judicial Circuit v. Polites, 904 So.2d 527 (Fla. 3d DCA 2005); Dep’t of Corrections v. Grubbs, 884 So.2d 1147 (Fla. 2d DCA 2004). The Department contends that the order requiring it to spend money for notice to class members violates the doctrine of separation of powers and thus gives us certiorari jurisdiction. The cases cited by the Department, however, are inapposite.

In Polites, the third district granted a writ of certiorari to quash an order requiring the offices of the State Attorney and the Public Defender to pay for mental health examinations they had not requested. The court first examined the 1998 constitutional amendment that changed funding for the state courts system and state attorneys’ and public defenders’ offices. It then reviewed statutes and rules regarding expert witnesses and construed them as requiring the state court system to pay for the expert “where neither party requests the appointment of a mental health expert.” In finding a departure from the essential requirements of law, the court concluded that the trial judge’s order requiring the state attorney to spend money for an expert that it did not request interfered with the state attorney’s executive decision on how to prosecute and thus violated the separation of powers doctrine.

In Grubbs, the second district granted certiorari and quashed the trial court’s order directing the Department of Corrections (DOC) to pay for a probationer’s sex offender treatment. There, the court determined that it had jurisdiction over DOC’s petition for writ of certiorari because DOC, a nonparty to the criminal proceedings, had no adequate remedy by direct appeal. The court cited Department of Health & Rehabilitative Services v. Myers, 675 So.2d 700 (Fla. 4th DCA 1996) (granting certiorari and quashing an order requiring HRS, a nonparty to criminal action, to pay the costs of transporting a detainee to county jail, because HRS’s nonparty status deprived it of an adequate remedy by direct appeal after final judgment).

In this case, however, the Department of Agriculture and Consumer Services is a party to the class action lawsuit for compensation for destroyed citrus trees. Further, the rule governing notice to class members gives the trial court discretion to shift the costs of mailing the notice to the defendant.

A writ of certiorari is an extraordinary remedy to be granted only upon the showing of a departure from the essential requirements of the law which causes material injury for which there is no adequate remedy by appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). As we have stated, “there are two indispensable ingredients to common law certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable injury to the petitioner that cannot be corrected on final appeal (2) caused by a departure from the essential requirements of law.” Sultan v. Earing-Doud, 852 So.2d 313, 315 (Fla. 4th DCA 2003); Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

Here, the essential elements for establishing certiorari jurisdiction have not been satisfied. First, the Department has not shown irreparable injury that cannot be corrected on final appeal. The order simply requires the Department to advance the costs of providing notice to class members and expressly provides that such costs are “subject to taxation following entry of final judgment.” See Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1200 n. 5 (Fla. 4th DCA 2000) (dismissing petition for certiorari review of a pretrial discovery order which allegedly placed undue financial burden on petitioner, and noting that the order “does not forestall later reallocation of the costs incurred when the prevailing party seeks to tax costs at the end of the case”); Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. 2d DCA 2003) (denying petition for certiorari review of the trial court’s order compelling discovery claimed to be costly and burdensome and stating that such economic concerns do not rise to the level of an undue burden necessary to support a finding of a departure from the essential requirements of law and that the petitioner can later seek reallocation of the costs incurred for the discovery as the prevailing party).

Second, the order in this case did not depart from the essential requirements of the law. Florida Rule of Civil Procedure 1.220(d)(2) specifically authorizes the trial court to order the party opposing the existence of the class to initially pay the cost of providing notice. The rule states in pertinent part:

Unless otherwise ordered by the court, the party asserting the existence of the class shall initially pay for the cost of giving notice.

Fla. R. Civ. P. 1.220(d)(2) (2005) (emphasis supplied).

Although plaintiffs generally must bear the initial cost of notice to the class, Rule 1.220(d)(2) gives the court discretion to shift the cost to the defendant. See Sears, Roebuck & Co. v. Labora, 670 So.2d 1025 (Fla. 3d DCA 1996) (holding that trial court acted within its discretion in ordering defendant corporation to pay costs of notice to class because the ruling provided the most economically viable means of assuring efficient and cost-effective notification).

Because the Department has not shown irreparable injury and a departure from the essential requirements of the law, it is not entitled to certiorari relief. Accordingly, we dismiss the petition.

Petition Dismissed.

POLEN and KLEIN, JJ., concur.

      . See Art. V, section 14(c), Fla. Const.