author: LaROSE, Judge.

text:
    Sanford Paul BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3924.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.

      See also, 901 So.2d 922.
   LaROSE, Judge.

Sanford Paul Butler appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of claims one and two without comment. We reverse the denial of claim three, vacate the restitution orders, and remand for further proceedings.

Mr. Butler pleaded no contest to multiple charges in five separate cases. The trial court sentenced Mr. Butler to eighteen years in prison and ordered restitution in amounts to be determined at a later date. Before the trial court could set the restitution amounts, Mr. Butler filed a notice of appeal. Shortly thereafter, the State wrote to Mr. Butler’s counsel and proposed restitution amounts. Mr. Butler’s counsel did not object. Consequently, during the pendency of Mr. Butler’s direct appeal, the trial court entered the State’s proposed restitution orders.

Subsequently, Mr. Butler moved to vacate the restitution orders, arguing that the trial court failed to enter them in a timely manner. We affirmed the denial of that motion. In doing so, we observed that the trial court entered the restitution orders while Mr. Butler’s direct appeal was pending. See Butler v. State, 901 So.2d 922, 924 (Fla. 2d DCA 2005). “A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed, even though the trial court may have previously ordered restitution and reserved jurisdiction only as to the amount.” Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997). Thus, our affir-mance in Butler was without prejudice to any right Mr. Butler “may have to collaterally attack the restitution orders” on the basis that the trial court lacked jurisdiction. Butler, 901 So.2d at 924.

Presumably responding to our invitation, Mr. Butler filed a rule 3.800(a) motion claiming that the trial court lacked jurisdiction to enter the restitution orders. The postconviction court denied the motion, concluding that the requested relief was unavailable under rule 3.800(a). However, our decision in Butler contemplated exactly such an avenue of relief by relying on Strayer v. State, 676 So.2d 77 (Fla. 2d DCA 1996), a case that reversed a summary denial of a rule 3.800(a) motion contesting a restitution order. See Butler, 901 So.2d at 924. Moreover, given the posture of Mr. Butler’s direct appeal, we cannot conclude that our decision in Butler contemplated a motion under Florida Rule of Criminal Procedure 3.850. We affirmed Mr. Butler’s convictions and sentences in 2002. Thus, when Butler issued, the two-year filing window under rule 3.850 had closed. Because of our decision in Butler, we reverse the postconviction court’s denial of the rule 3.800(a) motion. Further, because the trial court lacked jurisdiction to enter the restitution orders, we direct the postconviction court to vacate .those orders.

While the trial court had previously reserved jurisdiction to enter restitution orders, that jurisdiction was temporarily suspended during the appeal of his convictions and sentences. See Butler, 901 So.2d at 924. Accordingly, on remand, the postcon-viction court may reconsider the imposition of restitution amounts against Mr. Butler. See Harth v. State, 694 So.2d 841 (Fla. 2d DCA 1997).

Affirmed in part, reversed in part, and remanded.

STRINGER and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM. ALTENBERND, Judge,

license: Public Domain

text:
    Chad PIFER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-992.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the affirmance of the eighteen judgments and seventeen sentences on appeal in this case. An Anders brief was filed in this case, and we have located no reversible error. The trial judge, however, should be advised that no probation order was ever rendered in case number 2005-CF-2488, even though drug probation was the announced sentence. It appears to be the only case in which probation was imposed. Thus, unless an order is rendered, it is doubtful that Mr. Pifer will actually be placed on probation when his prison sentence is completed.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: THOMAS, J.

text:
    JAMES W. WINDHAM BUILDERS, INC., and FCBI/USIS, Appellants, v. Kim Van OVERLOOP, Appellee.
    No. 1D06-657.
    District Court of Appeal of Florida, First District.
    March 6, 2007.

      Katherine A. Mockler and Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellee.
   THOMAS, J.

In this workers’ compensation case, Appellant-Employer/Carrier (E/C) seeks review of an order finding it responsible for Claimant’s attendant care. We agree with E/C that section 440.13(2)(b), Florida Statutes (2004), requires that a prescription be in writing before attendant care will be provided; however, because we find that Claimant’s failure to provide a written prescription was caused by E/C’s willful ignorance, we affirm the findings of the Judge of Compensation Claims (JCC).

Claimant severely injured his ankle in a workplace accident in April 2004, requiring emergency surgery. At the time of Claimant’s hospital discharge, his treating physician did not provide a written prescription, but orally prescribed attendant care from Claimant’s Wife. Claimant’s Wife was responsible for assisting Claimant with daily living, including grooming, using the bathroom, preparing meals, keeping the injury clean and dry, and taking all medications. At Claimant’s request, his physician did write a prescription on November 11, 2004, requiring attendant care for four hours per day for ten weeks, which was intended to be a memorialization of his initial oral prescription at the time of the injury. E/C received the prescription the next day.

On the same date that E/C received the written prescription, Claimant filed a petition for benefits requesting, inter alia, payment of attendant care to his Wife. E/C denied coverage on the grounds that section 440.13(2)(b), Florida Statutes (2004), requires an attendant care prescription not only be in writing, but also that the prescription be written before the attendant care is actually provided.

Claimant’s Wife testified at the hearing that she was never advised that a prescription must be in writing before being authorized. She had had various conversations with E/C’s adjuster over the previous months and relayed that she was having difficulty doing everything required of her because she “was not a medical professional.” During these conversations, the topic of attendant care never came up.

The JCC entered an order holding E/C responsible for attendant care, and finding that the written prescription was sufficient to meet the statutory definition because it merely formalized the doctor’s previous oral prescription. The JCC further found that “the carrier’s actions in this case amount to an attempt to hide behind a wall of willful ignorance concerning claimant’s needs for attendant care following his surgery.” This timely appeal follows.

An award of attendant care is subject to the requirements of the statute in effect at the time the care was provided. See Socolow v. Flanigans Enters., 877 So.2d 742 (Fla. 1st DCA 2004). At the time Claimant received attendant care, section 440.13(2)(b), Florida Statutes (2004), stated the following:

The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or earner shall not be responsible for such care until the prescription for attendant care is received by the employer and -carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required. A prescription for attendant care shall not prescribe such care retroactively.

(Emphasis added.) The JCC found that the physician’s oral prescription qualified as proper authorization under the statute, as it was improper for E/C to require an actual written prescription prior to the time the attendant care was provided. We disagree.

When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. The statute must be given its plain and obvious meaning. McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998). A court has no power to modify an unambiguous statute by judicial interpretation. Id. A plain reading of section 440.13(2)(b), Florida Statutes (2004), states that attendant care is compensable only if it is provided after E/C receives a written prescription. Although Claimant’s doctor orally prescribed attendant care, the statute requires the prescription be reduced to writing in order to be compen-sable; therefore, the JCC’s interpretation of the statute is in error.

It is well established, however, that an E/C may not avoid payment by willful ignorance. Attitudes & Trends v. Arsuaga, 616 So.2d 1103, 1103 (Fla. 1st DCA 1993). Here, E/C failed to adequately monitor Claimant’s need for benefits. Accordingly, the JCC made a factual finding that E/C’s actions were an attempt to hide behind a wall of willful ignorance. We agree.

An employer must monitor a claimant’s injuries and provide needed benefits. IMC Phosphates Co. v. Prater, 895 So.2d 1263 (Fla. 1st DCA 2005). Although E/C argues that the applicable version of section 440.13(2)(b), Florida Statutes (2004), has precluded the duty to investigate attendant care until a written prescription is received, we find this reasoning unfounded. In fact, to suggest otherwise would violate section 440.015, Florida Statutes (2004), where the legislature states its intent that workers’ compensation law “be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker.” Here, E/C advised the treating physician regarding workers’ compensation billing information, but failed to inform him of the statutory requirement of a written prescription for attendant care.

The standard of review in workers’ compensation cases is whether competent, substantial evidence supports the JCC’s findings of fact. Jefferson v. Wayne Dalton Corp./Hartford, 793 So.2d 1081, 1083 (Fla. 1st DCA 2001). Here, there was sufficient evidence to support the JCC’s finding of willful ignorance. Despite many conversations with Claimant’s Wife, E/C never informed her that a written prescription was required to cover attendant care.

E/C argues that despite this evidence, the statutory requirement of a written prescription for attendant care absolves E/C of any duty to inform a doctor or employee of the statutory requirement. We do not agree that this is a reasonable reading of section 440.13(2)(b), Florida Statutes (2004). The statute, by its plain meaning, simply ensures that a doctor will memorialize the medical justification for attendant care; it does not authorize an e/c to willfully ignore an employee’s need for treatment by failing to disclose the statutory requirement of the treating physician.

Although we find that the JCC incorrectly interpreted section 440.13(2)(b), Florida Statutes (2004), we further find that E/C did not meet its burden in properly investigating and informing Claimant or his doctor concerning the assisted care requirements. If a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis to support the judgment in the record. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). Accordingly, the judgment below is AFFIRMED.

BARFIELD and VAN NORTWICK, JJ., concur.


author: PER CURIAM.

text:
    Clarence L. HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6244.
    District Court of Appeal of Florida, First District.
    March 6, 2007.
    Clarence L. Henry, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted. Clarence Henry is hereby afforded a belated appeal of the order denying motion to correct illegal sentence in case number 2004 CF 004271 A in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Drew C. HARTLEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3105.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    Drew C. Hartley, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for issuance of extraordinary writ is without merit and is rejected. But because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Jackson v. McDonough, 81 Fla. L. Weekly D2299, — So.2d —, 2006 WL 2527244 (Fla. 1st DCA Sept. 5, 2006); Yasir v. McDonough, 939 So.2d 221 (Fla. 1st DCA 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003). We accordingly quash that portion of the circuit court’s order on indigency imposing a lien as a result of petitioner’s filing of the petition for issuance of extraordinary writ. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

The petition is DENIED as to the challenge to the order by which the circuit court denied relief, but we QUASH that portion of the indigency order which imposed a lien.

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


text:
    Craig Stephen EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0190.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    Craig Stephen Edwards, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Craig Stephen Edwards seeks belated appeal from an order denying his motion to correct illegal sentence. His claim, however, is based upon a misunderstanding of the applicable rules and must be denied.

Edwards’ rule 3.800(a) motion was denied by order of October 17, 2006, and he timely moved for rehearing. The rehearing motion has not been expressly acted on but petitioner reasons that it has been denied by the passage of 60 days and therefore he should be granted a belated appeal. Florida Rule of Criminal Procedure 3.800(b)(1)(B) does provide that “[wjithin 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.” This provision, however, applies to motions made pursuant to rule 3.800(b)(1) or 3.800(b)(2). It does not apply to rule 3.800(a) motions or to motions for rehearing of orders which deny rule 3.800(a) motions, such as the one here at issue.

Edwards’ timely motion for rehearing postponed rendition of the order of October 17, 2006, in accordance with Florida Rule of Appellate Procedure 9.020(h) and the time for appealing the order of October 17, 2006, has not yet commenced nor will it until disposition of the motion for rehearing. The petition seeking belated appeal is therefore denied.

PETITION DENIED.

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


text:
    Doyle L. HEARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6715.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    Doyle L. Heard, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 29, 2007, the Court has determined that the Order Deeming Action Non-Habeas Corpus is not an appealable order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

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


author: WARNER, J.

text:
    Ozell Lamont DESSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1091.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In his appeal from his conviction for first degree felony murder, appellant contends that the trial court erred in permitting the state to delete portions of his taped statement to police that was played for the jury. The portions deleted concerned his co-defendant’s possible drug use. He argued that they should be admitted under the rule of completeness. Because the statements were not required to correct misleading impressions, the trial court did not abuse its discretion by overruling defendant’s objection to the state’s deletion of portions of his statement. We therefore affirm.

The prosecution of appellant Dessett arises out of the shooting death of Nadir Basheeri at a convenience store in Riviera Beach. A witness identified Dessett running from the store with another man on the day of the murder. Police were called to the scene and discovered Mr. Basheeri’s body in the convenience store with a bullet in his head. As a result of this incident, Dessett and his cousin, Demario Crosby, were charged with one count of first degree murder with a firearm and one count of robbery with a firearm. It is undisputed that Crosby fired the gun and killed Basheeri. The state prosecuted Dessett on a theory of felony murder, claiming Dessett was involved in the robbery of the convenience store. The primary incriminating evidence against Dessett consisted of his confession to police.

In his statement, Dessett admitted joining up with his cousin the day of the murder. Dessett told the detective that he did not know that his cousin had a gun in his possession that day. The two of them met outside the convenience store and were kidding around. The detective asked him: “Do you feel responsible for putting the idea in Mario’s head that (inaudible) could done it by himself?” Dessett replied: “We joke around like that all the time, man.”

Crosby went inside the store. Dessett looked in and saw the clerk “choking him or something.” Dessett then went inside, and the man was on the ground. Dessett stated that “the guy was already gone,” but he did not hear a gunshot. Dessett said to Crosby, “Cuz, why you did that, man?” and also said, “You could have just took the money.” Dessett then threw the cash register on the ground and took some money from it. He shared the money with his cousin when they got home. Again, he told Crosby, “you didn’t even have to do all that.”

For presentation at trial the state deleted part of Dessett’s statement, to which Dessett objected. Specifically, in his statement, Dessett speculated that Crosby was on drugs the day of the murder even though Dessett did not see Crosby ingest any. Dessett acknowledged that he did not know if Crosby ingested any drugs on the day of the robbery, but told the detective that Crosby frequently smoked cocaine and that they had separated for part of the day. Another line of questioning deleted by the state included the detective questioning Dessett on how they spent the money taken from the store, and Dessett responding that they spent the money “on drugs.” Dessett also objected to the deletion of his statement that “[Crosby] must have been on drugs and just snapped.”

Based upon the evidence presented, Dessett was convicted of first degree felony murder and robbery. The court sentenced him to life in prison without parole on the murder conviction, and life on the robbery charge as a prison releasee reof-fender. Dessett appeals his conviction.

Dessett claims that the trial court erred in overruling his objection to the state’s deletion of parts of his statement, citing to the necessity of their inclusion because of the “rule of completeness.” The rule of completeness is codified in section 90.108(1), Florida Statutes, which provides in pertinent part:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

The purpose of the rule is to avoid the potential for creating misleading impressions by taking statements out of context. Larzelere v. State, 676 So.2d 394, 401 (Fla. 1996). Under this rule, once a party “opens the door” by introducing part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness. Id. at 401-02. However, the rule of completeness is not absolute, and a trial court may exercise its discretion to exclude irrelevant portions of a recorded statement. Layman v. State, 728 So.2d 814, 816 (Fla. 5th DCA 1999).

In this case, there was no violation of the rule of completeness, because the trial court merely excluded irrelevant portions of Dessett’s statement. The state’s edited version of the tape did not create misleading impressions or take statements out of context. Additionally, the state’s edited version did not exclude exculpatory statements. In fact, part of what the state excluded was Dessett’s admission that he used the robbery money to buy drugs, a collateral bad act.

Dessett defended against the charges by claiming that the murder constituted an independent act by Crosby, completely unexpected by Dessett. Those parts of the statement which supported that theory were played,' such as Dessett asking Crosby, “Cuz, why you did that, man?” and “You could have just took the money.” Those statements suggest that Dessett had no knowledge of Crosby’s actions. The jury thus had evidence "to support his theory of defense.

Dessett also argues that he was prevented from arguing that the incident was not a robbery but a drug deal between the victim and Crosby which went wrong. This theory developed from the discovery of drug paraphernalia behind the counter of the convenience store. Dessett desired to use Crosby’s drug habit as further evidence from which to speculate that Crosby was actually buying drugs from the victim. However, admitting the portions of his statement discussing Crosby’s drug use for this purpose is not required under the rule of completeness, because Dessett never suggested anywhere in his statement the possibility that Crosby was conducting a drug deal. The state did not render the statement misleading by omitting the discussion of Crosby’s drug use. And the state is not required to present evidence on the defendant’s theories in its case-in-chief.

Finding that the trial court did not abuse its discretion in overruling the objection to the omission of parts of Dessett’s statement, we affirm the conviction and sentence.

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


text:
    Dyrren BARBER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2931.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Dyrren Barber, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

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

Reversed and remanded for further proceedings.


author: ROTHENBERG, Judge.

text:
    Ladell M. PLEASURE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2659.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Ladell M. Pleasure, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Ladell M. Pleasure, appeals the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rules of Criminal Procedure 3.800(a). We affirm.

The defendant claims that the sentences imposed, seventeen years as an habitual felony offender for trafficking in cocaine, and possession with intent to sell cocaine, are illegal as they exceed the recommended sentencing guidelines. We disagree. The defendant was found guilty of one count of trafficking in cocaine, a first degree felony which carries a maximum penalty of thirty years state prison, and one count of possession of cocaine with intent to sell, a second degree felony which carries a maximum penalty of fifteen years state prison. The record reflects that the State, filed a notice to seek an enhanced penalty as an habitual felony offender; that the defendant stipulated at sentencing to the offenses that qualified him to be sentenced as an habitual felony offender; that the trial court made all of the requisite findings in determining the defendant’s eligibility to be sentenced as an habitual felony offender; and that the defendant was sentenced as an habitual felony offender.

Pursuant to section 775.084(4)(a)(l), Florida Statutes, when sentencing a defendant in conformity with the habitual felony offender statute, the trial court may impose a sentence of life for a first degree felony, and pursuant to section 775.084(4)(a)(2), to a term of years not exceeding thirty years for a second degree felony. When being sentenced pursuant to section 775.084, the guidelines do not apply. As the defendant was sentenced to seventeen years on each count as an habitual felony offender, the sentences imposed were clearly not illegal.

Affirmed.


author: NORTHCUTT, Judge.

text:
    Shirley PORTER, Appellant, v. Alicia R. HOEFT, Appellee.
    No. 2D06-3335.
    District Court of Appeal of Florida, Second District.
    March 7, 2007.
    Wesley R. Stacknik, Seminole, for Appellant.
    Alicia R. Hoeft, pro se.
   NORTHCUTT, Judge.

On Alicia Hoeft’s petition, the circuit court issued a permanent injunction against repeat violence by the paternal grandmother of Hoeft’s child, Shirley Porter. We reverse.

According to Hoeft’s petition, the parties have experienced substantial difficulty when they meet to pass the child for visitation. Hoeft alleged two incidents of violence by Porter, one of which allegedly occurred within six months of the petition. See § 784.046, Fla. Stat. (2006) (authorizing protective injunction when respondent has directed two incidents of violence towards the petitioner and one incident occurred within six months of the petition). When there is an immediate and present danger of violence, a court may enter an ex parte temporary injunction based solely on the allegations in the verified pleading. § 784.046(6). But the court must then conduct a full evidentiary hearing before it may enter a final injunction. § 784.046(6)(c); see Brand v. Elliott ex rel. Elliott, 610 So.2d 37 (Fla. 5th DCA 1992) (stating that full hearing contemplates opportunity to be heard and present evidence).

At the hearing in this case, Porter testified about the most recent episode that had been described in the petition, and she disputed Hoeft’s allegation that she was the aggressor. But Porter was not allowed to call other witnesses. Rather, the circuit court questioned Hoeft very briefly, without asking about the alleged incidents of violence. Then it abruptly announced that the injunction was granted based on the petition’s allegations and the court’s credibility determination.

Given the summary manner in which the court conducted the hearing, it is not surprising that the record lacks competent, substantial evidence showing the grounds required for the injunction. For this reason, we are compelled to reverse. See Russell ex rel. Russell v. Hogan ex rel. Hogan, 738 So.2d 1003 (Fla. 2d DCA 1999). Moreover, even if sufficient evidence had been introduced, we would still find it necessary to reverse because the circuit court erred in refusing to hear testimony from Porter’s witnesses. See Brand, 610 So.2d at 38 (reversing final injunction because circuit court had refused to consider respondent’s evidence).

Reversed and remanded for new hearing.

ALTENBERND and VILLANTI, JJ„ Concur.


text:
    Gerry Lee PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0913.
    District Court of Appeal of Florida, First District.
    March 8, 2007.
    Gerry Lee Parker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

ALLEN, DAVIS, and BENTON, JJ., concur.


author: PLEUS, C.J.

text:
    P.J.S., III, a Minor, et al., Appellants, v. SCHOOL BOARD OF CITRUS COUNTY, Florida, et al., Appellees.
    No. 5D06-239.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    Michael L. Boswell, of Michael L. Boswell, P.A., Deland, for Appellant.
    Andrew B. Thomas, Deland, for Appel-lee, School Board of Citrus County.
    Bill McCollum, Attorney General, and James A. McKee, Deputy Solicitor General, Tallahassee, for Appellee, Division of Administrative Hearings.
   PLEUS, C.J.

P.J.S., III, a minor, and his parents appeal from a final order of the Florida Administration Commission dismissing their “Third Amended Request” for a due process hearing pursuant to section 1003.57(5), Florida Statutes (2003), and for the appointment of an attorney to act as hearing officer pursuant to section 120.80(l)(a), Florida Statutes. We affirm.

It is unnecessary to recite the long and convoluted procedural path the appellants have taken to get to this point. Suffice to say that in their “Third Amended Request” for a due process hearing under section 1003.57(5), the appellants added the Division of Administrative Hearings (“DOAH”) as a party respondent and requested that the Administration Commission appoint an attorney to serve as hearing officer. Ultimately, the Administration Commission dismissed the appellants’ request, concluding that it lacked jurisdiction because, among other things, DOAH was not a proper party to the due process proceeding.

On appeal, the appellants argue that section 1003.57(5), Florida Statutes (2003), did not preclude them from adding DOAH as a party respondent, nor was it exempt from section 120.80(l)(a), Florida Statutes (2003), which requires the Administration Commission to appoint an attorney to act as hearing officer when DOAH is a party to an administrative proceeding. We disagree.

Section 1003.57 relates to exceptional student instruction in the public schools. It requires district school boards to provide “an appropriate program of special instruction, facilities, and services for exceptional students.... ” Section 1003.57(5) entitles the “parent of an exceptional student evaluated and placed or denied placement” to a due process hearing on the “identification, evaluation, and placement, or lack thereof.” Section 1003.57(5) further provides that such hearings “shall be exempt from the provisions of ss. 120.569, 120.57, and 286.011” and “must be conducted by an administrative law judge from the Division of Administrative Hearings of the Department of Management Services.”

Section 1003.57 refers only to “School Boards” and “parents” as proper parties to a due process hearing. It does not authorize or contemplate adding DOAH as a party. Section 120.52(12)(a), Florida Statutes (2003), defines the term “party” in pertinent part as “[sjpecifically named persons whose substantial interests are being determined in the proceeding.” The only substantial interests being determined in a section 1003.57 due process hearing are those of parents and school boards. DOAH’s only role in a section 1003.57(5) proceeding is to provide an ALJ to conduct the due process hearing.

In addition to DOAH not being a proper party, we agree with the School Board that the Administration Commission’s authority to appoint an attorney to act as a - hearing officer only applies to administrative proceedings under section 120.57, Florida Statutes. The action below was not a proceeding under section 120.57. It was a proceeding under section 1003.57.

Section 120.80(l)(a), Florida Statutes (2003), states, “Notwithstanding s. 120.57(l)(a), a hearing in which the division is a party may not be conducted by an administrative law judge assigned by the division. An attorney assigned by the Administration Commission shall be the hearing officer.” (Emphasis added). Section 120.57(l)(a) states, in pertinent part, “Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection.... ” (Emphasis added). Thus, section 120.80(l)(a) created an exception to section 120.57(l)(a) for administrative hearings in which DOAH was a party.

For example, in Randolph v. Florida Division of Administrative Hearings, 2003 WL 22885193 (Fla. Div. Adm. Hearings 2003), a DOAH employee filed an administrative petition alleging that DOAH had discriminated against her. Because DOAH was a party to the administrative proceeding, the Administrative Commission appointed an independent ALJ. In the instant case, DOAH was not a proper party.

The Legislature specifically exempted section 1003.57(5) from section 120.57. Therefore, section 120.80, which was an exception to section 120.57, did not apply to section 1003.57(5). Further, support can be found in S.T. v. School Board of Seminole County, 783 So.2d 1231 (Fla. 5th DCA 2001), which held that the former statute governing ESE due process hearing was exempt from the discovery provisions in Chapter 120.

Because DOAH was not a proper party to the section 1003.57(5) proceeding, the Commission correctly concluded that it lacked jurisdiction to appoint an attorney to act as hearing officer. Accordingly, we affirm the order of dismissal.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.


author: LAWSON, J.

text:
    Robert D. PRICE, Appellant, v. Nicole Jena PRICE, Appellee.
    Nos. 5D05-3174, 5D05-3713.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.

      Nancy N. Nowlis and Corrine A. Bylund of Zisser, Robison, Brown, Nowlis & Ma-ciejewski, P.A., Jacksonville, for Appellant.
    Gregory E. Tucci, Ocala, for Appellee.
   LAWSON, J.

Robert D. Price appeals from a final judgment dissolving his marriage to Nicole Jean Price. He challenges the award of alimony and attorneys’ fees to his former wife. For the reasons explained below, we uphold the alimony award and reverse the attorneys’ fees award. We also address several prior panel decisions from our court which forbid trial courts in our jurisdiction from awarding “bridge-the-gap” alimony.

Relevant Facts and Proceedings Below

Robert and Nicole Price were married in 1991 shortly after Nicole graduated from high school. At the time, Robert was on active duty in the United States Navy, and was stationed in Jacksonville, Florida. Nicole attended cosmetology school, and later received a cosmetology license. In 1991, she worked at a part-time job and earned $3,117 that year. A year later, she gave birth to a son.

Because Robert was on active duty in the Navy, which required lengthy tours of duty at sea, Nicole stayed home to care for their son for the next three years. Nicole re-entered the work force, part time, in 1995, earning an annual income of $5,509. She continued her part-time employment until 1996, when she gave birth to the couple’s daughter. Nicole did not work outside of the home again until 2003, when she separated from Robert. By that time, her cosmetology license had expired. She found part-time employment in an unrelated field and earned $3,676, which she used to relocate herself and her children to Marion County, Florida. Also, using money borrowed from her parents, Nicole rented a two bedroom apartment, where she currently resides with both children.

In March of 2004, Nicole secured stable employment with the Marion County Health Department. For all but three of the eighteen months that Robert and Nicole were separated prior to trial, he sent her $600. Under the guidelines, Robert’s minimum monthly child support obligation at the time of separation should have been $962.44.

In September of 2004, after 13 years of marriage, Nicole filed a petition for dissolution. In the petition, she requested primary residential responsibility for the two minor children, payment of marital debts, child support, and alimony. Prior to trial, Nicole submitted an amended family law affidavit that listed gross monthly income of $1,483.78, and net monthly income of $1,271.28. She listed total monthly expenses of $1,761, leaving her with a monthly deficit of $489.72. However, the affidavit does not list the $600 she received from Robert.

Robert submitted a family law affidavit that listed gross monthly income of $3,767.76, and net monthly income of $3,377.97. He listed total monthly expenses of $3,222.67, leaving him a monthly surplus of $155.30. The affidavit did not include the $600 monthly payment to Nicole. During the trial, Robert admitted that his post-separation gross salary had increased to $4,212.88, but that his monthly expenses had remained the same.

Nicole testified that she needed $500 in alimony to: 1) go back to school; 2) pay for reasonable and necessary expenses, including expenses not listed in her affidavit; and 3) move out of her two bedroom apartment and into a three bedroom apartment so that both children could have a room of their own. Neither party presented a rehabilitation plan, and Nicole admitted that she had neither researched the cost of returning to school nor even identified any particular program of study. She testified that it would cost an additional $300-$600 per month in rent for a three bedroom apartment. Robert admitted that a two bedroom apartment was inadequate for the children, and noted that he was willing to pay more money so that the children could be moved into a larger apartment. However, he suggested that any additional payment ordered should be added to his existing child support payment. He argued that an award of alimony was not warranted because when the $600 he had been paying in child support was added to the amount listed in Nicole’s financial affidavit she had a monthly surplus sufficient to meet her needs.

The trial court considered the testimony and financial information provided and entered a final judgment of dissolution. First, the court awarded primary residential responsibility for both children to Nicole. Robert did not contest this arrangement. Second, after finding that the marriage was a partnership with each party making equal contribution, the court equally divided marital assets and liabilities. This ruling is not challenged on appeal. Third, the court found that the parties’ thirteen and one-half year marriage fell into the “gray area” where there is no presumption for or against an award of alimony. However, the court noted that Nicole’s decision to stop working to care for the children allowed Robert to pursue his career in the Navy. After finding that Robert had an ability to pay alimony, and that Nicole demonstrated a need for alimony, the court awarded Nicole $500 per month in permanent periodic alimony. The court noted that the award was based in part on the fact that neither party submitted a rehabilitation plan, which limited the court (under our precedent) to an award of permanent periodic alimony, or none at all.

The court specifically rejected Robert’s argument that Nicole’s need could only be established from the entries contained in her financial affidavit, which Robert argued showed a surplus after his prior $600 monthly child support payments. The court disagreed, noting that “the amounts for necessities reflected in her financial affidavit are pathetically low” and that her request for $500 was “a very, very reasonable request based on her extremely reasonable financial affidavit.” For example, Nicole listed monthly expenses for clothing ($20), grooming ($5), and entertainment ($10). She testified that this was based upon the amount that Robert allowed her to spend on herself, for these items, during the marriage. By contrast, Robert listed greater monthly expenses for clothing ($50), grooming ($20), and entertainment ($50). Similarly, Nicole listed $430 for food, compared to Robert’s $580 food budget. Additionally, Robert listed monthly expenses for cable/internet service ($75), and gifts ($50), which Nicole was not able to afford at all.

Next, the court found that Robert’s child support payments had been less than required under the child support guidelines and ordered Robert to increase the payment to $942.42 per month. Based on the past discrepancy, the court also awarded Nicole $8,240.03 in retroactive child support. After the parties agreed to deduct the amount Nicole owed Robert for marital debts, the court found that Robert owed $3,331.03 to Nicole and ordered him to pay that amount in monthly installments of $50.

Finally, the court announced Nicole’s entitlement to attorneys’ fees, but reserved ruling on the amount for a subsequent hearing. At that hearing, the court considered testimony from another attorney regarding the reasonableness of the amount of attorneys’ fees requested, and testimony from Nicole that the work was provided. The court subsequently entered an order that required Robert to pay all of Nicole’s attorneys’ fees, $5,555.50, within twelve months. This appeal followed.

Jurisdiction and Standard of Review

We have jurisdiction pursuant to article V, section 4(b)(1) of the Florida Constitution and rule 9.030(b)(1)(A) of the Florida Rules of Appellate Procedure. A trial court’s award of alimony or attorneys’ fees in a dissolution of marriage proceeding is reviewed under an abuse of discretion standard. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

Permanent Alimony Award

Permanent periodic alimony is used “to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). “The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Canakaris, 382 So.2d at 1201-02. The court may also consider any other factor necessary to do equity and justice between the parties. Id. at 1200; § 61.08(2), Fla. Stat. (2004).

The trial court considered all of these factors, as evidenced by the court’s detailed final order. On appeal, however, Robert argues that the trial court erred when it awarded permanent periodic alimony under circumstances that will result in Nicole receiving more money than needed to live at the standard of living enjoyed during the marriage, as reflected in Nicole’s financial affidavit. The primary flaw in Robert’s argument is that it is based upon the inclusion of Robert’s child support obligation as income to Nicole. As the trial court correctly pointed out, when “alimony is required because of the disparity in income between the parties, the court must first determine the amount of alimony and then, considering alimony as income, determine the amount of child support.” Pike v. Pike, 932 So.2d 229, 229 (Fla. 4th DCA 2005).

When child support is not considered, Nicole’s financial affidavit reflects a monthly deficit. And, we agree with the trial court that Nicole’s affidavit reflects extraordinarily modest personal expenses. In short, the alimony award will allow Nicole to live at the standard of living she enjoyed during the marriage. Given the length of the marriage, the disparity of incomes between the parties, Robert’s ability to pay (in light of his raise), the lack of any evidence that Nicole has an earning potential beyond that realized in her current job, and the other factors considered by the trial court, we cannot find an abuse of discretion in the court’s alimony award. See Canakaris, 382 So.2d at 1203 (“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”).

Attorneys’ Fee Award

“The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay.” Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (citations omitted); see also § 61.16, Fla. Stat. (2004). When Robert’s support obligations are considered, along with his overall financial condition at the time of the final judgment, it is clear that Robert cannot afford to pay for Nicole’s attorneys’ fees without borrowing additional money to do so. Robert already borrowed the money necessary to pay his own attorneys’ fees, and is in no better position to pay Nicole’s fees than she will be in after the divorce. Under these circumstances, requiring Robert to pay Nicole’s attorneys’ fees constituted an abuse of discretion. Gaudette v. Gaudette, 890 So.2d 1161 (Fla. 5th DCA 2004); see also Derrevere v. Derrevere, 924 So.2d 987 (Fla. 4th DCA 2006).

Bridge-The-Gap Alimony

Although we have found no abuse of discretion in the trial court’s award of permanent periodic alimony in this case, the trial court clearly expressed frustration during the proceeding with its lack of ability to consider a short-term alimony award to aid Nicole in making her transition to single life. Section 61.08, Florida Statutes, does not preclude such an award, and the other four district courts of appeal in Florida have expressly recognized bridge-the-gap alimony. See, e.g., Shea v. Shea, 572 So.2d 558, 560 (Fla. 1st DCA 1990) (recognizing that “[e]ven though a spouse is already employed, or employable, an award of rehabilitative alimony may also be justified as a ‘bridge-the-gap’ measure, to aid the recipient in making the transition from a married to a single state”); Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999) (cautioning that “bridge-the-gap alimony is not a tool to compromise adversarial positions, but to assist a spouse with any legitimate, identifiable, short-term need under circumstances where a lump sum award is reasonable and when the other spouse has the ability to pay the award”); Iribar v. Iribar, 510 So.2d 1023, 1024 (Fla. 3d DCA 1987) (approving a trial court’s alimony award that “was strictly a bridge-the-gap type of award” where “the wife is presently employed, has more than adequate employment skills, and needs nothing to be ‘rehabilitated’ to, other than to ease her transition from a married to a single status”); Murray v. Murray, 374 So.2d 622, 624 (Fla. 4th DCA 1979) (approving “a short period of rehabilitative alimony sufficient to allow the wife to ‘bridge’ the gap between the high standard of living enjoyed during the brief marriage and the more modest standard that the wife can provide for herself’).

However, in Martin v. Martin, 582 So.2d 784, 786 (Fla. 5th DCA 1991), a panel of our court flatly rejected “bridge-the-gap” alimony with only a pronouncement that “[tjhere is no support in law or logic for such an award.... ” The panel expressed its concern that: “If such were permitted then one can imagine no bounds to the limits — how far does one go before the storm is weathered or the gap is bridged?” We note that this concern does not appear to have been realized in the other appellate districts throughout the state of Florida where such awards are recognized.

As for the legal authority to make a “bridge-the-gap” temporary alimony award, we see at least three compelling arguments for reading section 61.08 as providing trial judges with discretion to make such an award in appropriate cases. The first is the broader view of “rehabilitative alimony” adopted by the First, Third and Fourth district courts. These courts do not view rehabilitation narrowly to include only those circumstances in which one spouse needs education or training to secure appropriate employment, and has presented evidence of a plan to acquire the needed skills or degree. The second argument is set forth by Judge Altenbernd in his well-reasoned opinion in Borchard. In summary, Borchard explains why it is clear that lump-sum alimony can be ordered in “installments, to help one spouse adjust financially to life after marriage.” 730 So.2d at 749. The third argument, though not as precise, is just as compelling. In section 61.08, Florida Statutes, the Legislature has expressly directed trial courts to consider all factors necessary to do “equity and justice between the parties.” It would be contrary to this language to hold that in a short-term marriage where one spouse has the ability to pay and the other has a compelling need for short-term support to transition into single life, section 61.08 must be construed narrowly as depriving the trial court of authority to make the needed short-term award.

As a panel, we may not agree on which of these constructions is most appropriate. However, we all agree that section 61.08 is properly read as granting trial courts the discretion to award a short-term alimony award, even in instances where no plan for rehabilitation (in the narrow sense) is offered, when such an award is necessary to do equity and justice between the parties. For this reason, we believe that it is time to recede from Martin, and join the other district courts of this state in recognizing “bridge-the-gap” alimony.

In this case, however, neither party preserved the issue for appellate review, or attempted to raise it on appeal. For this reason, the present case does not present an appropriate vehicle for en banc consideration of our prior precedent on this issue. See Shands Teaching Hosp. & Clinics, Inc. v. Smith, 480 So.2d 1366, 1368 (Fla. 1st DCA 1985) (Barfield, J., concurring) (noting that an aspect of the doctrine of judicial restraint is the self-imposed rule that a court should only decide questions “properly presented to it and necessary to the determination of the case”). In the appropriate case, we believe that a majority of our court would now agree to reconsider this issue.

AFFIRMED IN PART and REVERSED IN PART.

ORFINGER and EVANDER, JJ„ concur.

      . Despite the fact that Nicole’s current full-time job compensates her better than any job she had prior to or during her marriage, she still earns approximately one third of the income earned by Robert.

      . We would also recede from the other panel decisions from our court that have followed or applied the same rule announced in Martin. See, e.g., Greene v. Greene, 895 So.2d 503 (Fla. 5th DCA 2005); Widmer v. Widmer, 713 So.2d 1054 (Fla. 5th DCA 1998); Fullerton v. Fullerton, 709 So.2d 162 (Fla. 5th DCA 1998); Ingle v. Ingle, 640 So.2d 223 (Fla. 5th DCA 1994).

      . We note that a panel of this court several years ago signaled the court's willingness to reconsider Martin. See Alpha v. Alpha, 885 So.2d 1023, 1031-32 (Fla. 5th DCA 2004) (recognizing that "[a]lthough this court has not looked kindly on 'bridge the gap’ rehabilitative alimony awards in the past, in a proper case, it might do so in the future”) (citations omitted). The trial courts within our jurisdiction have continued to express frustration at our precedent in this area, as did the court below, but have been constrained to follow Martin. Additionally, we suspect that litigants have staked out adversarial positions for strategic reasons that have precluded the issue from being presented to us squarely for review. In other words, one party opposes any award of alimony — and therefore does not suggest a short-term award — and the other party is seeking permanent periodic alimony and does not want to compromise his or her adversarial position by arguing for a short-term award to address transitional needs.


author: ORFINGER, J.

text:
    WSOS-FM, INC., Appellant, v. Doyle HADDEN, d/b/a Hadden & Associates, Appellee.
    Nos. 5D06-1687, 5D06-3651.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.

      Dock A. Blanchard, of Blanchard, Merriam, Adel & Kirkland. P.A., Ocala, for Appellant.
    Damon A. Chase, of Chase Freeman, P.A., Lake Mary, and Alex Finch, Long-wood, for Appellee.
   ORFINGER, J.

WSOS-FM, Inc. (“WSOS”) appeals a final judgment in favor of Doyle Hadden. Following a non-jury trial, the trial court concluded that WSOS breached an exclusive listing agreement between the parties by failing to pay Mr. Hadden a commission on the sale of a radio station. WSOS argues that the trial court erred in finding that the agreement between the parties, providing that the agreement could only be terminated in writing, could not be orally modified to provide for verbal termination. We agree and reverse.

In April 1998, the parties entered into an exclusive listing agreement (“the agreement”). Under the terms of the agreement, WSOS, which operated a radio station in St. Augustine, granted Mr. Hadden exclusive rights to market the station for sale. Mr. Hadden would be paid a 5% commission if: (1) WSOS was sold during the term of the agreement; or, (2) Mr. Hadden presented WSOS with an offer meeting the asking price and terms and WSOS declined that offer; or, (3) an agreement to sell WSOS was entered into within 24 months of the termination of the agreement to a buyer that Mr. Hadden had solicited during the terms of the agreement. Most relevant to this dispute, the agreement further provided that:

After this Agreement has been in effect for One Hundred Eighty (180) days, it may be terminated by either party on Thirty (30) days prior written notice to the other party. Unless so terminated, it will remain in effect indefinitely.

. In September 2002, Mr. Hadden sent ■ Mike Smith, the general manager of ■ WSOS, a fax stating that he had a potential buyer who was willing to buy WSOS-FM and its AM station for $3.5 million. That same day, Mr. Smith responded with a letter to Mr. Hadden, claiming that in a telephone conversation between them two years earlier, the exclusive listing agreement had been cancelled. Mr. Hadden promptly responded with a letter to Mr. Smith denying that the listing agreement had been terminated, but agreeing to accept Mr. Smith’s September 2002 letter as WSOS’s 30-day notice that WSOS wished to cancel the agreement. About nine months later, WSOS was sold for $4 million.

Mr. Hadden filed a breach of contract complaint against WSOS, alleging that WSOS breached its agreement to pay him the 5% commission. In its answer, WSOS denied any breach of contract, and while not artfully pled, asserted that the agreement had been orally modified by the parties to allow for verbal termination and then terminated by mutual agreement, despite the contractual provision requiring written notice.

At trial, while the parties agreed that the contract required written termination, the evidence was in substantial conflict on the issue of WSOS’s claim of oral modification and termination. Ultimately, the trial court found in favor of Mr. Hadden, awarding him a $165,000 commission, plus interest, from the date of WSOS’s sale. In its final judgment, the trial court concluded:

The language of the Agreement is clear and unambiguous. A contract will be construed according to its own clear and unambiguous terms. Arnold v. First Savings & Trust Co., 104 Fla. 545, 141 So. 608 (1932). It is clear to the Court that the plain meaning of the Exclusive Listing Agreement provided that the agreement can be terminated by any party upon written notice, and because there was no written notice terminating the Exclusive Listing Agreement, the Plaintiff is entitled to commission. Compare Law Realty, Inc. v. Pagliarulo, 385 So.2d 1093 (Fla. 4th DCA 1980).

(Emphasis added). WSOS now appeals the final judgment, as well as the trial court’s order awarding Mr. Hadden attorney’s fees and costs.

WSOS claims that the trial court erred in concluding that the agreement could not be orally modified to allow for verbal termination. “The interpretation of a contract is a question of law and, therefore, we are not bound by the conclusions reached by the trial court regarding construction of the Contract. Thus decisions which construe a contract are generally subject to review on appeal by the de novo standard of review.” NCP Lake Power, Inc. v. Fla. Power Corp., 781 So.2d 531, 536 (Fla. 5th DCA 2001) (internal citation omitted).

WSOS cites to Professional Insurance Corp. v. Cahill, 90 So.2d 916 (Fla. 1956), and Arvilla Motel, Inc. v. Shriver, 889 So.2d 887 (Fla. 2d DCA 2004), for the proposition that oral modification of an agreement is allowed, even if the agreement explicitly states that it may only be modified or terminated in writing. See also Pan Am. Eng’g Co. v. Poncho’s Constr. Co., 387 So.2d 1052, 1053 (Fla. 5th DCA 1980) (holding that “[tjhere is solid support for the principle that written contracts can be modified by subsequent oral agreement of the parties, even though the written contract purports to prohibit such modification”). Such modification, however, is only allowed when it has been accepted and acted upon in such a manner that refusing to enforce it would constitute fraud upon either party. See Cahill, 90 So.2d at 918.

It is unclear to us if the trial judge concluded that the agreement could not be orally modified and then verbally terminated, or if, while recognizing that oral modification and termination was legally possible, was simply not persuaded by the evidence that such had occurred. The former conclusion would be erroneous as it is possible to terminate an agreement orally, even though the agreement requires written termination, provided that the parties agreed to waive the requirement of written termination and WSOS relied to its detriment on that modification. See Cahill; Arvilla Motel; Pan Am. On the other hand, the latter conclusion would not be erroneous because there was an issue of fact concerning whether the agreement had been orally terminated, and, based on the evidence, the trial court could have determined that no oral modification or termination occurred. See Evans v. State, 800 So.2d 182, 188 (Fla.2001) (holding that “it is the function of the trial court to resolve such factual disputes, and the trial court’s determination should be upheld absent an abuse of discretion”).

Because we cannot tell if the trial judge concluded that an oral modification and termination occurred but was ineffective due to the requirement that it be in writing, or if no oral modification and termination occurred, we remand for further proceedings. We also reverse the award of attorney’s fees and costs, though if Mr. Hadden ultimately prevails on remand, he shall be entitled to recover his fees and costs, including appellate attorney’s fees.

REVERSED AND REMANDED.

GRIFFIN and LAWSON, JJ., concur.

      . The parties stipulated that in accordance with the trial court's grant of partial summary judgment, the amount of the sale subject to commission is $3.3 million ($4 million minus $300,000 for the sale of the AM station and $400,000 for the real property). Therefore, Mr. Hadden was entitled to 5% of $3.3 million, or $165,000.

      . Cahill states that:
      A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such a manner as would work a fraud on either party to refuse to enforce it.... And oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing.
      90 So.2d at 918.


text:
    Robin BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3948.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    Robin Brewer, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Robin Brewer seeks review of the trial court’s summary denial of her rule 3.800(a) motion to correct illegal sentence. Because the trial court’s order fails to conclusively refute her claim, we reverse and remand for further proceedings.

Brewer pled guilty on December 16, 1994, to charges of second degree murder, conspiracy to commit robbery with a firearm and attempted robbery with a firearm. She agreed to an upward departure sentence, and was sentenced on the charge of second degree murder to forty-one years and four days, with a three-year minimum mandatory term imposed for use of a firearm. She was also sentenced to concurrent fifteen-year terms on each of the other counts.

In a prior postconviction motion, Brewer alleged that her sentence for the charge of second degree murder was illegal because the maximum punishment at the time of her offense was either life or a term not exceeding forty years. See Ferguson v. State, 804 So.2d 411 (Fla. 4th DCA 2001). Although it appears from the limited record on appeal that the trial court granted Brewer’s prior motion, it also appears that the court never entered an amended judgment correcting Brewer’s sentence. Therefore, in her current motion, Brewer again requests that her sentence be corrected to a term of years not exceeding forty years. Both below and on appeal, the State indicates that it has no objection to the trial court’s entry of an amended judgment and sentence order correcting Brewer’s sentence as requested in her motion. However, without attaching documents from the record refuting Brewer’s claim, the trial court summarily denied her motion.

Therefore, we reverse and remand for further consideration of Brewer’s motion.

REVERSED and REMANDED.

MONACO and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Gerardo P. LOPEZ-VALENTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3269.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.

      Gerardo P. Lopez-Valente, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant challenges the summary denial of his motion and supplemental motion for post-conviction relief. These motions were filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to all the issues raised by appellant except for his double jeopardy claim.

Appellant was charged in two separate cases with trafficking in cocaine. The information in each case alleged the offense had occurred on March 30, 2005, in Volusia County, Florida. Appellant entered a no contest plea to both charges. He was sentenced to a fifteen-year term in prison in each case, to be served concurrently.

In his supplemental motion for post-conviction relief, appellant claims his trial counsel was ineffective for failing to assert a double jeopardy challenge because he was charged twice for the same crime. In summarily denying appellant’s supplemental motion, the trial court found the two cases involved separate quantities of cocaine seized at different locations and at different times. Copies of police reports supporting the trial court’s conclusion were attached to its order.

The police reports attached to the trial court’s order were hearsay and were insufficient to conclusively refute appellant’s claim. See Burgess v. State, 831 So.2d 137 (Fla.2002); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004).

We recognize a negotiated plea can be a basis for waiver of a double jeopardy claim. See Novaton v. State, 634 So.2d 607 (Fla.1994); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004). However, neither a plea agreement nor a transcript of the plea colloquy was attached to the trial court’s order. Accordingly, on remand, the trial court must either include attachments to its order conclusively refuting appellant’s double jeopardy claim, or hold an eviden-tiary hearing.

AFFIRMED, in part; REVERSED, in part; REMANDED.

PLEUS, C.J. and SAWAYA, J., concur.


text:
    K.Q.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4198.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.

      James S. Purdy, Public Defender, and Susan A. Pagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

K.Q.W. appeals from an adjudication of delinquency and juvenile commitment order entered after the trial court found her guilty of violating section 901.36(1), Florida Statutes (2005). The statute makes it “unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer....” Because the evidence was uncontroverted that K.Q.W. had been neither arrested nor detained when she gave a false name to the officer, the trial court should have granted KQ.W.’s motion for judgment of dismissal. See Whyte v. State, 940 So.2d 1174, 1175 (Fla. 2d DCA 2006) (“The plain language of section 901.36(1) requires that, in order to be in violation of the statute, the giving of a false name or identification must occur following arrest or lawful detention.”); A.F. v. State, 912 So.2d 374, 376 (Fla. 2d DCA 2005) (“Therefore, because the State failed to establish that A.F. gave a false name to a law enforcement officer while he was being lawfully detained, we reverse.”); Bordelon v. State, 908 So.2d 543, 544 (Fla. 1st DCA 2005) (“The statute does not make it a crime to give a false name during a ‘consensual field interview’ when there has been neither arrest nor lawful detention.”).

Accordingly, we reverse both the adjudication of delinquency and the commitment order.

TORPY and EVANDER, JJ., concur.


text:
    David Alan SHUEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1914.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

We have reviewed the points raised by the defendant and conclude that only one has merit. The judgment of conviction erroneously states that the defendant pled nolo contendere to the charges when he was actually convicted following a jury trial. We affirm the convictions and sentences but remand to the trial court for correction of this scrivener’s error. See, e.g., Cook v. State, 947 So.2d 1207 (Fla. 1st DCA 2007). The defendant correctly concedes that his presence at such correction is unnecessary.

AFFIRMED; REMANDED.

SAWAYA and EVANDER, JJ., concur.


text:
    David M. SALYER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-146.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    David M. Salyer, Clermont, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

David M. Salyer appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While Mr. Salyer raises several issues, only one has merit, i.e., his assertion that in case no. 04-291, the written sentencing documents differ from the sentence orally pronounced in court. Having carefully reviewed the record, we agree. The sentence orally pronounced by the trial judge in case no. 04-291 did not include the three-year minimum mandatory term ordinarily applicable due to possession of a firearm. However, the sentencing documents, which imposed a thirty-seven month prison sentence, included the three-year minimum mandatory term. Oral pronouncements of sentence control over the written sentencing document. State v. Jones, 753 So.2d 1276, 1277 n. 2 (Fla.2000). Accordingly, on remand, the three-year minimum mandatory term shall be stricken from the sentencing documents in case no. 04-291. Mr. Salyer need not be present for resentencing. In all other respects, the order denying Mr. Salyer’s motion to correct sentence is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, MONACO and EVANDER, JJ., concur.

      . The three-year minimum mandatory imposed at the same proceeding in case no. 04-292 is unaffected by this opinion.


text:
    Sonia COLLADO, Appellant, v. Joel M. PAVLOW, Appellee.
    No. 5D06-694.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.

      Scott E. Siverson, Orlando, for Appellant.
    C. Christopher Killer of Law Offices of J. Christopher Norris, Orlando, for Appel-lee.
   PLEUS, C.J.

Sonia Collado appeals from a final judgment of dismissal which adopted the report of the general magistrate, summarily denied her objections to that report and dismissed her personal injury action.

The defendants, Joel Pavlow and Dar-den Restaurants, Inc., (defendants), filed a motion to enforce settlement claiming that the parties had entered into a complete settlement of Collado’s personal injury action. The trial court, with the consent of the parties, referred the matter to the general magistrate. After hearing argument, the general magistrate issued a report and recommendation that the motion to enforce settlement be granted. The trial court, by order, ratified, approved and adopted the report, and ultimately entered final judgment dismissing Collado’s action.

Collado challenges both the procedure employed by the trial court in declining to afford her a hearing on her objections to the general magistrate’s report and recommendation, and the lack of factual findings and record evidence to support the report and recommendation.

The parties are in agreement that in reviewing a trial court’s adoption and ratification of a general magistrate’s report and recommendation, the standard of review is abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Florida Rule of Civil Procedure 1.490, entitled “Magistrates,” authorizes the circuit court to refer matters to magistrates with the consent of the parties. Rule 1.490 contemplates at subsection (g) that the magistrate prepare a report and provides at subsection (h):

Filing Report; Notice; Exceptions. The magistrate shall file the report and serve copies on the parties. The parties may serve exceptions to the report within 10 days from the time it is served on them. If no exceptions are filed within that period, the court shall take appropriate action on the report. If exceptions are filed, they shall be heard on reasonable notice by either party.

Subsection (h) requires a circuit court to afford a hearing on a party’s timely served exceptions to the report. See Roth v. All-American Inv. Props., 944 So.2d 1239 (Fla. 2d DCA 2006); Yoxsimer v. Yoxsimer, 918 So.2d 997 (Fla. 2d DCA 2006) (under Rule 1.490(h), litigant who requests hearing on exceptions but is not afforded one is deprived of due process). The purpose of such a hearing is for the trial court to review the record so as to “ascertain whether the master’s finding is supported by competent evidence.” Anderson v. Anderson, 736 So.2d 49, 51 (Fla. 5th DCA 1999).

In the present case, Collado timely served exceptions or objections to the magistrate’s report and requested a rehearing by the trial court. The trial court abused its discretion in adopting the report without affording Collado an opportunity to be heard.

The remaining aspect of Collado’s challenge relates to the substance of the deter-ruination that a settlement was effectuated in this case. The defendants, acknowledging that “a party seeking to compel enforcement of a settlement bears the burden of proving that an attorney has the clear and unequivocal authority to settle on the client’s behalf,” Sharick v. Southeastern University of Health Sciences, Inc., 891 So.2d 562 (Fla. 3d DCA 2004), contend that the general magistrate found they met this burden and rely on an affidavit of the claims manager as evidentiary support for this finding.

Collado counters that the magistrate was required by Rule 1.490 to file the evidence supporting its report and recommendation but failed to do so, and that further, the record contains no evidence that Collado herself assented to the settlement.

Rule 1.490(f) requires that “evidence ... be taken in writing by the magistrate ... and shall be filed with the magistrate’s report.” Subsection (g) of the rule, entitled “Magistrate’s Report,” provides:

In the reports made by the magistrate no part of any statement of facts, account, charge, deposition, examination, or answer used before the magistrate shall be recited. The matters shall be identified to inform the court what items were used.

The record contains no indication that the general magistrate filed any evidence or identified the matters which he used in making his decision. The magistrate’s report and recommendation do not reflect that an evidentiary hearing was conducted. Under these circumstances, on remand the trial court should consider the magistrate’s failure to identify the matters relied upon in reaching his decision, and determine whether referral back to the magistrate to remedy this oversight is necessary.

Without a record of what the general magistrate relied upon, it is difficult to address the substantive issue presented, which is whether the defendants proved that Collado’s attorney had clear and unequivocal authority to settle on her behalf. Mere employment of an attorney does not give the attorney the implied or apparent authority to compromise the client’s cause of action or settle the client’s claim. River City Wholesale Florist, Ltd. v. Equiflor Corp., 864 So.2d 21 (Fla. 3d DCA 2003); Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977). An exception to this general rule is recognized when an attorney is confronted with an emergency which requires immediate action to protect the client’s interests and consultation with the client is impossible. Nehleber, 345 So.2d at 823. As further explained by the Fourth District, a client may give his attorney special or express authority to compromise his cause of action but such authority must be clear and unequivocal. Id. Finally, an unauthorized compromise may be ratified by the client. Id.

On remand, the trial court should apply these principles to resolution of the defendants’ motion. We express no opinion as to the merits of that motion.

REMANDED.

SAWAYA and EVANDER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Manuel GOMEZ, Appellee.
    No. 1D06-3043.
    District Court of Appeal of Florida, First District.
    March 12, 2007.

      Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    William Mallory Kent, Jacksonville, for Appellee.
   PER CURIAM.

The State appeals from the circuit court’s order granting appellee’s motion to suppress evidence seized on December 1, 2005, during the search of a vehicle driven by appellee. The State argues that the search of the vehicle’s passenger compartment was legal because it was incident to the lawful arrest of a passenger of the vehicle. We agree and reverse.

Only one witness testified at the suppression hearing in this case. Deputy United States Marshal Dwayne Johnson testified that he is a member of the Fugitive Apprehension Strike Team, or “FAST,” a multi-agency task force charged with apprehending fugitives within 12 Florida counties. FAST had received a tip that a fugitive named Michael Callaway had fled the city of St. Augustine and relocated to a residence in Jacksonville, Florida. St. Augustine officials had an outstanding warrant for Callaway’s arrest.

Deputy Johnson was one of the first members of FAST to arrive at the residence for surveillance. After approximately 15 to 30 minutes, appellee arrived at the residence driving a Chevy Impala. Appellee entered the residence under surveillance. After about 15 to 20 minutes, appellee, Callaway, and another unidentified man exited the residence and got into the vehicle, with appellee driving and Cal-laway as the front-seat passenger.

Deputy Johnson and other members of FAST followed the Impala. However, before the Impala could be pulled over, ap-pellee unexpectedly parked the car, and the unidentified passenger exited the vehicle and entered a post office. Callaway was still seated in the front passenger seat. Appellee then exited the driver’s side of the car and started walking back towards Deputy Johnson’s vehicle. Members of FAST, not knowing appellee’s intentions, emerged from their vehicles and handcuffed both appellee and Callaway. Appellee was set, in handcuffs, against the Impala.

Callaway was arrested after his identity was confirmed by both appellee and identification found in Callaway’s pocket. Deputy Johnson confirmed there were no outstanding warrants for appellee. It was discovered that the Impala was not registered to appellee, however, Johnson made some checks and verified appellee’s story that he was in possession of the vehicle to perform detailing work for a friend.

Deputy Johnson performed a search of the passenger compartment of the vehicle, and discovered a small duffel bag on the floor board behind the driver’s seat. Johnson opened the bag which contained marijuana, cocaine, a scale, and a t-shirt which was the same color, size, and had the same advertising on it as the one ap-pellee was wearing. Appellee was then arrested for drug possession. It is undisputed that Johnson did not have a warrant or consent to search either the vehicle or the bag.

The State argues that New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), is controlling. Belton held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460, 101 S.Ct. 2860. Additionally, “the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach.” Id. This is a bright-line rule which does not depend on reasonable suspicion of criminal activity or probable cause. State v. Gilbert, 894 So.2d 1055, 1056-57 (Fla. 1st DCA 2005). “This rule is based on the need to remove any weapons and to preserve any evidence that might be in the vehicle.” Id. at 1057. The authority to conduct a search does not depend on a trial court’s subsequent determination that weapons or evidence will likely be found in the car. “As long as the arrest itself is lawful, no additional justification is required for a search incident to the arrest.” Id.

In this case, it is undisputed that Calla-way was a passenger in appellee’s vehicle immediately before his arrest, and that Callaway was legally arrested pursuant to a warrant. Accordingly, it was legal to undertake a search of the passenger compartment of the vehicle and any containers therein pursuant to Belton. See State v. Smith, 662 So.2d 725 (Fla. 2d DCA 1995) (ruling that where the police had a warrant to arrest the passenger, the subsequent search of the vehicle, driven by the appel-lee, and the search of appellee’s black bag, left behind in the vehicle, were legal).

Because the lawful arrest of only one occupant will support a Belton search, the search of the vehicle’s passenger compartment is not rendered invalid where law enforcement had no reason to arrest or detain appellee, the vehicle’s driver, at the time of the search. See Shaw v. State, 449 So.2d 976, 979 (Fla. 1st DCA 1984) (noting, “there is even greater justification for a protective search where the officers, at the time of the search, know that the arrestee’s companions, with respect to whom no grounds then exist for arrest or further detention, will probably be allowed reentry into the passenger compartment of the vehicle with resultant access to any weapons which might be present”).

The search of the vehicle’s passenger compartment and the duffel bag were legal pursuant to the bright-line rule established in Belton. Therefore, we reverse the trial court’s order, and remand for further proceedings.

REVERSED and REMANDED.

BARFIELD, BENTON, and POLSTON, JJ., concur.


author: ALLEN, J.

text:
    Carlisle BRELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5766.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant in this direct criminal appeal challenges the sentences imposed following his pleas of guilty to various offenses. He argues that the trial court erred by finding that he failed to comply with a specific condition of his negotiated plea agreement. We agree, vacate the appellant’s sentences (which are greater than those which could have been imposed under the plea agreement had there been no finding of noncompliance), and remand this case to the trial court.

The appellant’s negotiated plea agreement provided that he would enter a plea of guilty and would receive a sentence of up to fifteen years in prison if he appeared for all required court dates, but that he could receive any lawful sentence up to thirty years in prison, including a fifteen-year mandatory minimum term, if he did not. The trial court accepted the plea and passed the case for sentencing. The appellant appeared at neither his initial sentencing nor at a number of subsequently scheduled hearings. When he finally did appear, the prosecutor contended that he was in violation of his plea agreement and recommended a prison sentence of twenty years, including the fifteen-year mandatory minimum term. The appellant countered that his absences were not willful and thus did not constitute a violation of the agreement. Without conducting an ev-identiary hearing on the matter, the trial court imposed the sentence recommended by the prosecutor.

“[W]here timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson v. State, 501 So.2d 158 (Fla. 3d DCA 1987); accord Robinson v. State, 946 So.2d 565 (Fla. 2d DCA 2006). There is insufficient record evidence in this case that the appellant acted willfully when he failed to appear for sentencing. Had the trial court conducted an evidentia-ry hearing on the matter, perhaps sufficient evidence of willfulness would have been revealed. As it stands now, however, the trial court’s finding that the appellant failed to substantially comply with the terms of his negotiated plea agreement lacks record support.

The appellant’s sentences are accordingly vacated and this case is remanded.

KAHN and DAVIS, JJ., concur.


text:
    Marilyn ROBERTS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-3067.
    District Court of Appeal of Florida, First District.
    March 12, 2007.

      Marilyn Roberts, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of certiorari to review an order of the circuit court which denied a petition for writ of mandamus as untimely. We grant the petition.

Following an interview on October 1, 2004, a Parole Commission hearing examiner recommended that the Florida Parole Commission (FPC) set the petitioner’s presumptive parole release date (PPRD) for March 5, 2007. On November 17, 2004, the FPC did not affirm the hearing examiner’s recommended PPRD and the FPC set the established PPRD for September 5, 2009. Petitioner requested an administrative review of the decision and on April 5, 2005, the Review Request Commission denied any change to the established PPRD. On March 27, 2006, petitioner challenged the PPRD by filing a petition for writ of mandamus in the Leon County Circuit Court. The circuit court, without issuing an order to show cause, denied the petition for writ of mandamus as untimely pursuant to the 30-day time limit, imposed by Florida Rule of Appellate Procedure 9.100(c)(4), to file a petition challenging agency action. The circuit court improperly denied the petition for writ of mandamus as untimely.

In Johnson v. Florida Parole Commission, 841 So.2d 615, 617 (Fla. 1st DCA 2003), we held “that unlike the 30 day limit imposed by Florida Rule of Appellate Procedure 9.100(c)(4), to file a petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings, the Florida Supreme Court has not by rule adopted a similar time limit to challenge orders of FPC in parole revocation or PPRD proceedings.” See also Spaziano v. Fla. Parole Comm’n, 31 Fla. L. Weekly D1597 (Fla. 1st DCA June 9, 2006) (citing Johnson, 841 So.2d at 617, for this proposition). Therefore, “the question of timeliness must be raised by the affirmative defense of laches.” Johnson, 841 So.2d at 617 (citing McCray v. State, 699 So.2d 1366 (Fla.1997) (holding the doctrine of laches is properly applied to habeas corpus petitions when the delay in bringing a claim has been unreasonable and the state has been prejudiced in responding to the claim)). As such, because the Florida Supreme Court has not adopted a 30-day time limit rule for challenging orders of the FPC in parole revocation or PPRD proceedings, the circuit court, without issuing an order to show cause, departed from the essential requirements of law in denying petitioner’s request for mandamus relief as untimely under Florida Rule of Appellate Procedure 9.100(c)(4).

We grant the petition for writ of certio-rari, quash the order of the circuit court, and remand for further proceedings.

PETITION GRANTED.

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


text:
    Ross Jay LAWSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3212.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Ross Jay Lawson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In this petition for writ of certiorari, Petitioner challenges the circuit court’s denial of his petition for writ of mandamus, and the imposition of a lien placed on his inmate trust account. The petition for writ of mandamus challenged a disciplinary proceeding, which resulted in the loss of a portion of Petitioner’ gain-time.

Based on our review of the record, we conclude that, in denying the petition for writ of mandamus, the circuit court properly applied the test established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which sets forth the due process requirements for prison disciplinary proceedings. Consequently, the petition for writ of certiorari challenging the denial of the petition for writ of mandamus is DENIED.

However, Petitioner’s mandamus petition challenged the loss of gain-time. Because his challenge directly affected the time he will spend in prison, the circuit court departed from the essential requirements of law by placing a lien on his inmate trust account to pay for court costs incurred by filing the mandamus petition. See Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003). The petition for writ of certiorari challenging the imposition of a lien on Petitioner’s inmate account is GRANTED, and the order imposing the lien is QUASHED.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: WOLF, J.

text:
    Clarence BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5891.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, Clarence Baker, appeals a final judgment following a jury trial in which he was convicted of sale, manufacture, delivery or possession of cocaine with the intent to sell, manufacture or deliver cocaine within 1,000 feet of a convenience business. Because we find that the business in question did not meet the statutory definition of a convenience business, we reverse.

Section 893.13, Florida Statutes (2005), defines the offense in question and states:

(l)(e) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance not authorized by law in, on, or within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services or within 1,000 feet of a convenience business as defined in s. 812.171.

Section 812.171, Florida Statutes (2005), defines a convenience business as follows:

As used in this act, the term “convenience business” means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m

(Emphasis added).

Appellant asserts that the store could not be considered a convenience business because testimony established that the store’s regular hours of operation were from 7:00 a.m. to 10:00 p.m., and it only “sometimes” operated after 11:00 p.m. At trial, the owner of the business in question testified that his store opens at 7:00 a.m., closes at 10:00 p.m., and is sometimes open past 11:00 p.m. The record is totally devoid of evidence concerning how many times within any one period this business was actually opened during the designated hours. As such, our review of this issue turns on whether a business that is only “sometimes” open after 11:00 p.m. can be considered a convenience business pursuant to section 812.171, Florida Statutes.

“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The instant statute, however, is ambiguous. In the instant case, the phrase “at any time” may be read in two conflicting ways. First, the phrase may be read to mean that a store having regular business hours, at any time between 11:00 p.m. and 5:00 a.m., constitutes a convenience business. Second, the phrase may be interpreted as meaning a store that has at any time been open between 11:00 p.m. and 5:00 a.m. constitutes a convenience business under the terms of the statute. The first reading of the statute is far more logical than the second. In determining legislative intent, “[t]he judiciary must use a degree of common sense....” Doe v. Dep’t of Health, 948 So.2d 803, 809 (Fla. 2d DCA 2006). This concept weighs in favor of appellant. Furthermore, according to the Rule of Lenity, where a statute is susceptible to differing constructions, we adopt the construction most favorable to an accused. § 775.021(1), Fla. Stat. (2005); see also Thomas v. State, 741 So.2d 1246, 1246 (Fla. 2d DCA 1999). In the instant case, based on the statutory language “open for business at anytime between the hours of 11:00 p.m. and 5:00 a.m.,” the Rule of Lenity requires this court to find that, in order for a store to fall within the definition of a “convenience business,” it must be operating at any time during the proscribed hours on at least some semi-regular basis and not just “sometimes.” The evidence presented by the State in this particular case fails to meet any reasonable interpretation of the statutory requirements.

We, therefore, reverse appellant’s conviction and remand for the entry of a conviction for the lesser included offense of sale, manufacture, delivery or possession with the intent to sell, manufacture or deliver cocaine and for resentencing pursuant to appellant’s corrected conviction.

REVERSED.

VAN NORTWICK and LEWIS, JJ., concur.

      . Section 812.171, Florida Statutes (2005), also contains exclusions not applicable to the issue discussed herein.

      . In 1990, the Legislature adopted the “Convenience Store Security Act” to provide security requirements in target areas for the protection of store employees and the consumer public from robbery and injury. Ch. 90-346, Laws of Fla. The Act defines "convenience store” as any place of business engaged in the retail sale of groceries that is regularly open for business at any time between the hours of 10:00 p.m. and 5:00 a.m. and that is attended during those hours by one employee. Id. The statute was later amended to change the times to 11:00 p.m. and 5:00 a.m. and to change the word “store” to “business.” See Chs. 90-346 and 92-103, Laws of Fla.
      The same law removed the word "regularly” from the language of the statute. See Ch. 92-103, Laws of Fla. However, an examination of the Senate and House Committee Notes does not reveal the reason for the removal of the word "regularly.” Thus, we find this change to be unpersuasive in our analysis.

      . The owner’s testimony that he "sometimes” operates his business during the proscribed hours is insufficient to aggravate the severity of the charged crime in light of the Rule of Lenity. We do not address whether this store falls within the statutory definition of a convenience business for any other purpose, including the security requirements for convenience businesses under the "Convenience Store Security Act.”