author: PER CURIAM. BELL, J.,

text:
    ADVISORY OPINION TO The ATTORNEY GENERAL RE REFERENDA REQUIRED FOR ADOPTION and Amendment of Local Government Comprehensive Land Use Plans.
    No. SC06-521.
    Supreme Court of Florida.
    July 12, 2007.
    Louis F. Hubener and Leah L. Marino, Solicitor General’s Office, Office of the Attorney General, Tallahassee, FL, for Petitioner.
    Ross Stafford Burnaman, Esquire, on behalf of Florida Hometown Democracy, Inc., Tallahassee, FL, as Sponsor.
   PER CURIAM.

While this Court was considering the validity of an initiative petition circulated pursuant to article XI, section 3 of the Florida Constitution, the Attorney General requested that we review the corresponding financial impact statement to evaluate its compliance with section 100.371 of the Florida Statutes. For the reasons that follow, we conclude that we have jurisdiction, see art. IV, § 10, art. V, § 3(b)(10), Fla. Const., but remand the statement to the Financial Impact Estimating Conference for redrafting because the statement does not meet the statutory requirements in its current form.

The first issue before this Court is to determine whether the Court has jurisdiction over the matter. Judicial review of financial impact statements is a recent development. In a majority of the cases, the financial impact statements were considered at the same time as the other matters pertaining to the ballot initiative. Based on recent changes to the constitution which now require certain deadlines for the issuance of an opinion relating to the amendment and summary, however, the financial impact statement review often occurs after the other ballot initiative matters have been resolved, thus requiring this Court to review our jurisdiction anew.

There are two constitutional provisions which are the asserted basis for this Court’s jurisdiction. First, article V, section 3(b)(10), provides that the Court:

(10) Shall, when requested by the attorney general pursuant to the provisions of Section 10 of Article IV, render an advisory opinion of the justices, addressing issues as provided by general law.

Art. V, § 3(b)(10), Fla. Const, (emphasis added). Article IV, section 10, in turn, provides as follows:

SECTION 10. Attorney General.— The attorney general shall, as directed by general law, request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to. Section 3 of Article XI. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion no later than April 1 of the year in which the initiative is to be submitted to the voters pursuant to Section 5 of Article XI.

Art. IV, § 10, Fla. Const, (emphasis added). Accordingly, initiative petitions, including the requirement for financial impact statements as they relate to initiative petitions, are one of the rare instances where this Court’s constitutional jurisdiction incorporates the provisions set forth by general law.

Section 100.371 of the Florida Statutes sets forth the overall procedural process relating to the requirements for placing an initiative on the ballot, including those matters that this Court must address relating to a financial impact statement:

(1) Constitutional amendments proposed by initiative shall be placed on the ballot for the general election, provided the initiative has been filed with the Secretary of State no later than February 1 of the year the general election is held. A petition shall be deemed to be filed with the Secretary of State upon the date the secretary determines that the petition has been signed by the constitutionally required number of electors.
(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.
(b) The Financial Impact Estimating Conference shall provide an opportunity for any proponents or opponents of the initiative to submit information and may solicit information or analysis from any other entities or agencies, including the Office of Economic and Demographic Research.
(c) All meetings of the Financial Impact Estimating Conference shall be open to the public. The President of the Senate and the Speaker of the House of Representatives, jointly, shall be the sole judge for the interpretation, implementation, and enforcement of this subsection.
1. The Financial Impact Estimating Conference is established to review, analyze, and estimate the financial impact of amendments to or revisions of the State Constitution proposed by initiative. The Financial Impact Estimating Conference shall consist of four principals: one person from the Executive Office of the Governor; the coordinator of the Office of Economic and Demographic Research, or his or her designee; one person from the professional staff of the Senate; and one person from the professional staff of the House of Representatives. Each principal shall have appropriate fiscal expertise in the subject matter of the initiative. A Financial Impact Estimating Conference may be appointed for each initiative.
2. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential impacts in the financial impact statement. Any financial impact statement that a court finds not to be in accordance with this section shall be remanded solely to the Financial Impact Estimating Conference for redrafting. The Financial Impact Estimating Conference shall redraft the financial impact statement within 15 days.
3. If the members of the Financial Impact Estimating Conference are unable to agree on the statement required by this subsection, or if the Supreme Court has rejected the initial submission by the Financial Impact Estimating Conference and no redraft has been approved by the Supreme Court by 5 p.m. on the 75th day before the election, the following statement shall appear on the ballot pursuant to s. 101.161(1): “The financial impact of this measure, if any, cannot be reasonably determined at this time.”
(d) The financial impact statement must be separately contained and be set forth after the ballot summary as required in s. 101.161(1).
(e) 1. Any financial impact statement that the Supreme Court finds not to be in accordance with this subsection shall be remanded solely to the Financial Impact Estimating Conference for redrafting, provided the court’s advisory opinion is rendered at least 75 days before the election at which the question of ratifying the amendment will be presented. The Financial Impact Estimating Conference shall prepare and adopt a revised financial impact statement no later than 5 p.m. on the 15th day after the date of the court’s opinion.
2. If, by 5 p.m. on the 75th day before the election, the Supreme Court has not issued an advisory opinion on the initial financial impact statement prepared by the Financial Impact Estimating Conference for an initiative amendment that otherwise meets the legal requirements for ballot placement, the financial impact statement shall be deemed approved for placement on the ballot.
3. In addition to the financial impact statement required by this subsection, the Financial Impact Estimating Conference shall draft an initiative financial information statement. The initiative financial information statement should describe in greater detail than the financial impact statement any projected increase or decrease in revenues or costs that the state or local governments would likely experience if the ballot measure were approved. If appropriate, the initiative financial information statement may include both estimated dollar amounts and a description placing the estimated dollar amounts into context. The initiative financial information statement must include both a summary of not more than 500 words and additional detailed information that includes the assumptions that were made to develop the financial impacts, workpapers, and any other information deemed relevant by the Financial Impact Estimating Conference.
4. The Department of State shall have printed, and shall furnish to each supervisor of elections, a copy of the summary from the initiative financial information statements. The supervisors shall have the summary from the initiative financial information statements available at each polling place and at the main office of the supervisor of elections upon request.
5. The Secretary of State and the Office of Economic and Demographic Research shall make available on the Internet each initiative financial information statement in its entirety. In addition, each supervisor of elections whose office has a website shall post the summary from each initiative financial information statement on the website. Each supervisor shall include the Internet addresses for the information statements on the Secretary of State’s and the Office of Economic and Demographic Research’s websites in the publication or mailing required by s. 101.20.
(6) The Department of State may adopt rules in accordance with s. 120.54 to carry out the provisions of subsections (l)-(5).

§ 100.371, Fla. Stat. (2006) (emphasis added). Section 100.371(5) expressly provides that this Court shall review financial impact statements in its advisory opinion and sets forth the appropriate procedure. Section 101.161(1) also provides guidance, demonstrating that the financial impact statement is simply another aspect of the initiative process, the same as the ballot summary and the ballot title:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word “yes” and also by the word “no,” and shall be styled in such a manner that a yes vote will indicate approval of the proposal and a “no” vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement; not exceeding 75 words in length, of the chief purpose of the measure. In addition, for every amendment proposed by initiative, the ballot shall include, following the ballot summary, a separate financial impact statement concerning the measure prepared by the Financial Impact Estimating Conference in accordance with s. 100.371(6). The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

§ 101.161(1), Fla. Stat. (2006).

Reading article V, section 3(b)(10) and article IV, section 10 of the Florida Constitution, in pari materia with the statutory provisions relating to the requirements imposed on initiative petitions, we find that this Court has jurisdiction. The Constitution mandates that this Court review all issues relating to initiative petitions as provided by general law. Section 100.371 clearly mandates that one of the areas to be reviewed by this Court is the financial impact statement. In three separate places, section 100.371 refers to this Court performing a judicial review of the statement to ensure its conformity with statutory requirements. Even section 101.161 is not so explicit with regard to the judicial review over the other portions relating to the validity of the initiative petitions. In fact, since the whole construction of the statute contemplates this Court’s review of financial impact statements, the entire provision becomes a nullity if we construe the statute contrary to its clear and plain intent. See, e.g., Koile v. State, 934 So.2d 1226 (Fla.2006) (holding that a statute must be construed in its entirety and as a whole). Based on these provisions of general law, the Florida Constitution mandates that the advisory opinion address the financial impact statement portion of the initiative process.

Next, this Court must determine whether the financial impact statement at issue complies with the requirements provided in the Florida Constitution and the statutes. Article XI, section 5, Florida Constitution, addresses financial impact statements and provides in relevant part:

(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the proháble financial impact of any amendment proposed by initiative pursuant to section 3.

(Emphasis added.) Section 100.371(5), Florida Statutes (2006), now addresses the financial impact statement as follows:

(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.
(c)....
2. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential impacts in the financial impact statement.

§ 100.371(5), Fla. Stat. (2006) (emphasis added). In deciding the validity of a financial impact statement, the Court has limited itself only to address whether the statement is clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments. See Advisory Op. re Protect People from Health Hazards of Using Tobacco, 926 So.2d 1186, 1194 (Fla.2006).

In this case, the proposed financial impact statement provides as follows:

The direct impact of this amendment on local government expenditures cannot be determined precisely. Over each two year election cycle, local governments cumulatively will incur significant costs (millions of dollars statewide). Costs will vary depending on the processes employed by cities and counties in obtaining approval for plan amendments. The direct impact on state government expenditures will be insignificant. There will be no direct impact on government revenues.

The sponsor asserts that the second and the third sentences within the financial impact statement are overly vague or confusing and thus defective.

Upon review, we find that the second sentence is indeed misleading. Specifieally, it states that “[o]ver each two year election cycle, local governments cumulatively will incur significant costs (millions of dollars statewide).” This statement, however, assumes that numerous local governments will have out-of-cycle changes to their respective comprehensive land use plans, necessitating special elections. Although the Financial Impact Estimating Commission is speculating that local government will be holding special out-of-cycle elections, the statement itself does not indicate that the estimated millions of dollars is dependant upon how many times counties and cities throughout the State will attempt out-of-cycle amendments to their comprehensive land use plans. In fact, the apparent purpose of the proposed amendment is to limit the amount of revisions to a county’s or a city’s comprehensive land use plan. The Commission’s assumption assumes that the proposed amendment will not have its intended effect. Because this sentence is misleading and does not inform the voter that the anticipated costs are contingent upon such factors, the Court finds that the second sentence in the financial impact statement does not comply with section 100.371(5), Florida Statutes. The Court remands the statement to the Financial Impact Estimating Conference for redrafting pursuant to section 100.371(5)(e)l.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

BELL, J., dissents with an opinion, in which CANTERO, J., concurs.

BELL, J.,

dissenting.

Guided by the perspective that this Court is a court of limited jurisdiction and reading the applicable constitutional provisions in pari materia, I conclude that this Court’s jurisdiction to render an advisory opinion regarding an initiative petition is limited to those issues concerning the validity of the initiative petition itself. And, because the validity of the initiative petition itself is not dependent upon the validity of the financial impact statement, I dissent to this Court’s advisory opinion on the financial impact statement in this case.

The majority concludes that this Court has jurisdiction to render an advisory opinion on the validity of the financial impact statement. Specifically, by focusing upon the references to “general law” in article IV, section 10, and article V, section 3(b)(10) of the Florida Constitution, the majority determines that this case is “one of the rare instances where this Court’s constitutional jurisdiction incorporates the provisions set forth by general law.” Majority op. at 211. Having concluded that it may look outside the constitution itself for jurisdiction, the majority then looks to the “general law,” section 100.371, Florida Statutes, which clearly contemplates this Court’s review of financial impact statements. See id. at 211-13; § 100.371(5)(c)-(e), Fla. Stat. In other words, the basis of the majority’s jurisdictional conclusion is that when article IV, section 10, and article V, section 3(b)(10) are construed in pari materia with the general law in section 100.371, this Court has jurisdiction to render an advisory opinion regarding financial impact statements. Majority op. at 213-14. However, as I explain below, I believe the plain language of our constitution leads to the conclusion that this Court lacks jurisdiction.

At the outset, I note that this Court is one of limited jurisdiction. Accordingly, “[t]he jurisdiction of this Court extends only to the narrow class of cases enumerated in article V, section 3(b) of the Florida Constitution.” Gandy v. State, 846 So.2d 1141, 1143 (Fla.2003) (quoting Mystan Marine, Inc. v. Harrington, 339 So.2d 200, 201 (Fla.1976)). As we recently stated in In re Holder, 945 So.2d 1130, 1134 (Fla.2006),

[B]efore this Court can take action, the Florida Constitution must give us the power to do so. This principle recognizes that our authority is not boundless; it is circumscribed by the language of the Florida Constitution. Nothing can be more consistent with the concept of judicial restraint.

Further, “[njeither this court nor the Legislature has the power to extend the jurisdiction of this court beyond the confines of the constitutional prescription.” City of Dunedin v. Bense, 90 So.2d 300, 302 (Fla.1956).

In light of this limitation to our jurisdiction, I examine the plain language of the constitutional provisions cited by the majority (section 3(b)(10) of article V and section 10 of article IV) as well as the plain language of two provisions not discussed by the majority (sections 3 and 5 of article XI). See Chiles v. Phelps, 714 So.2d 453, 457 (Fla.1998) (“Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language.”) (quoting Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)).

The plain language of article V, section 3(b)(10), empowers this Court to render advisory opinions to the attorney general when requested pursuant to article IV, section 10. Specifically, article V, section 3 provides in part as follows:

(b) JURISDICTION. — The supreme court:
(10) Shall, when requested by the attorney general pursuant to the provisions of Section 10 of Article IV, render an advisory opinion of the justices, addressing issues as provided by general law.

(Emphasis added.) In turn, section 10 of article IV provides:

SECTION 10. Attorney General.— The attorney general shall, as directed by general law, request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to Section S of Article XI. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion no later than April 1 of the year in which the initiative is to be submitted to the voters pursuant to Section 5 of Article XI.

(Emphasis added.) Thus, while the attorney general must request the advisory opinion as prescribed by general law, our constitution expressly limits the subject matter of such a request “to the validity of an initiative petition circulated pursuant to section 3 of article XI.” This being the case, this Court’s jurisdiction is limited to the validity of the initiative petition. And, if the validity of the petition is not dependent upon the validity of the financial impact statement, this Court does not have jurisdiction to render an opinion on the validity of the financial impact statement. As I mil now show, nothing in our constitution or our prior precedent suggests that the validity of an initiative petition is dependent upon the financial impact statement.

Based upon the plain language of our constitution, the validity of a petition circulated under section 3 of article XI is only dependent upon the limited factors discussed in section 3 of article XI. Significantly, section 10 of article IV, which authorizes the attorney general to seek an opinion regarding an initiative petition, only refers to section 3 of article XI. And section 3 of article XI only discusses the substance of the initiative petition itself as well as the number of signatures required for filing. Specifically, section 3 of article XI states:

SECTION 3. Initiative. — The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith. It may be invoked by filing with the custodian of state records a petition containing a copy of the proposed revision or amendment, signed by a number of electors in each of one half of the congressional districts of the state, and of the state as a whole, equal to eight percent of the votes cast in each of such districts respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.

Accordingly, this Court’s only duty is to look to the substance of the initiative petition and determine whether the revision or amendment proposed by initiative “em-bracéis] but one subject and matter directly connected therewith,” with an exception for provisions that limit the “power of government to raise revenue.” Art. XI, § 3, Fla. Const.; see Advisory Op. to Att’y Gen. re Protect People, Especially Youth, from Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So.2d 1186, 1190 (Fla.2006) (“The Court’s inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of article XI, section 3, Florida Constitution, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to section 101.161, Florida Statutes (1999).”) (quoting Advisory Op. to Att’y General re Amendment to Bar Gov’t from

Treating People Differently Based on Race in Pub. Educ., 778 So.2d 888, 890-91 (Fla.2000)). Moreover, our prior precedent does not state that in order to determine whether an initiative petition is valid, this Court must find that the financial impact statement is also valid. On the contrary, this Court has repeatedly noted over the years that our role in reviewing the initiative petition is very limited. See Advisory Op. to Att’y General re Tax Limitation, 644 So.2d 486, 489 (Fla.1994).

Most importantly, nothing in the plain language of our constitution suggests that the validity of the petition, for purposes of section 3 of article XI, is dependent upon this Court’s determination that the financial impact statement is also valid. Section 8 of article XI makes no reference to a financial impact statement as a part of the initiative petition. It certainly does not require that a proposed financial impact statement accompany the initiative petition. And section 10 of article IV does not authorize the attorney general to request an advisory opinion regarding the validity of the independent financial impact statement. Therefore, because nothing in our constitution indicates that the validity of an initiative petition is dependent upon the validity of the financial impact statement, this Court lacks jurisdiction to issue an opinion regarding the validity of a financial impact statement.

Indeed, article XI, section 5(c) is the sole reference in Florida’s constitution to financial impact statements. Specifically, article XI, section 5(c), provides:

(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.

(Emphasis added.) However, reading sections 3 and 5 of article XI, it is clear that the initiative petition and the financial impact statement are independent considerations. For instance, section 5(c) of article XI requires that the Legislature, not the citizens filing the initiative petition, make provision for the financial impact statement. Also, this financial impact statement is not even prepared until after an initiative is filed pursuant to section 3 of article XI. Thus, the financial impact statement mandated by section 5 of article XI is an additional condition that must be met before the otherwise valid initiative petition is placed before the voters for election. Therefore, the grant of jurisdiction to render an advisory opinion on the validity of an initiative petition itself does not encompass the independent consideration of the validity of the financial impact statement.

To summarize, guided by the perspective that this Court is a court of limited jurisdiction and reading article TV, section 10, article V, section 3(b)(10), and article XI, sections 3 and 5, in pari materia, I conclude that this Court’s jurisdiction to render an advisory opinion regarding an initiative petition is limited to those issues concerning the validity of the initiative petition itself. This jurisdiction does not include issuing an advisory opinion regarding the validity of the separately mandated financial impact statement. This being the case, it is axiomatic that this Court’s jurisdiction cannot be expanded by general law to address issues which the constitution, by its plain language, has expressly limited. Therefore, section 100.371, Florida Statutes, which contemplates that this Court will review financial impact statements, is an invalid attempt to expand this Court’s constitutionally limited jurisdiction. And, respectfully, the majority’s re-banee upon that statute as a basis for jurisdiction to render its advisory opinion in this case is improper.

Accordingly, I find that this Court does not have jurisdiction to render an advisory opinion regarding the validity of financial impact statements. Therefore, I respectfully dissent.

CANTERO, J., concurs.

      . This Court approved the proposed amendment for placement on the ballot. See Advisory Opinion to Attorney General re Referenda Required For Adoption and Amendment of Local Government Comprehensive Land Use Plans, 938 So.2d 501 (Fla.2006).

      . In this opinion, I explain the reasoning behind my unelaborated dissents from this Court's most recent review and approval of financial impact statements corresponding to initiative petitions. See Advisory Op. to Att’y Gen. re Funding of Embryonic Stem Cell Research, 959 So.2d 195, 203 (Fla. 2007) (Bell, J., concurring in part and dissenting in part); Advisory Op. to Att’y Gen. re Prohibiting State Spending for Experimentation that Involves the Destruction of a Live Human Embryo, 959 So.2d 210, 215 (Fla. 2007) (Bell, J., concurring in part and dissenting in part).

      . Though I disagree with the majority’s conclusion in this case, I do not intend to imply that this Court can never have jurisdiction by reference to general law. I agree with the majority that general law establishes this Court’s jurisdiction in “rare instances,” but I believe this is true only when expressly provided by the constitution. In this case, based on the specific issue and the particular constitutional provisions involved, I cannot agree with the majority that this case presents one of those rare instances.

      . Admittedly, both article V, section 3(b)(10), and article IV, section 10, reference enabling legislation. But the only advisory opinion mentioned is one that addresses the validity of an initiative petition circulated pursuant to section 3 of article XI. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. No mention is made of rendering an advisory opinion regarding the validity of any financial impact statement issued pursuant to section 5(c) of article XI.

      . Additionally, general law provides that the petition signed by the electors must include the ballot summary and title, both of which are prepared by the sponsor. §§ 101.161(2), 15.21(2), 100.371(2), Fla. Stat. (2006); Fla. Admin. Code 1S-2.009(1), (2)(d), (3). Also, the form must be approved prior to or as a prerequisite to circulation. § 100.371(2), Fla. Stat; Fla. Admi-.Code 1S-2.009(1)-(2).

      . Consistent with article XI, section 3, general law, in particular section 15.21(2), Florida Statutes (2006), defines an "initiative petition” by providing that it consists of the “ballot title, substance, and text of the proposed revision or amendment.” This definition is also consistent with rule 1S-2.009, Florida Administrative Code, “Constitutional Amendment by Initiative Petition,” which requires submission of the "initiative petition” (which includes, among other things, the ballot title and summary) to the Division of Elections "for approval as to format prior to circulation of the proposed initiative amendment.” See Fla. Admin. Code 1S-2.009(1), (2)(d). There is no mention in these provisions of a financial impact statement.

      . The Legislature has provided, by general law, that its statement of the financial impact will be prepared by the Financial Impact Estimating Conference See § 100.371(1), Fla. Stat.; Fla. Admin. Code 1S-2.009(5) ("Other than providing information or a method by which the petition form may be returned by mail to the sponsoring committee, no additional information or materials that support the proposed amendment shall be printed directly on the form.”). The financial impact statement is not prepared by the sponsor and is not signed by any electors.

      . My conclusion that this Court does not have jurisdiction to review the validity of a financial impact statement does not mean that a financial impact statement cannot be reviewed by a court of original jurisdiction to ensure its compliance with general law. It seems that a court of original jurisdiction may review the financial impact statement for compliance with section 100.371. See art. V, §§ 5-6, Fla. Const.; § 26.012, Fla. Stat. (2006) (prescribing the jurisdiction of the circuit courts); § 34.01, Fla. Stat. (2006) (prescribing the jurisdiction of the county courts). In fact, section 100.371(5)(c)(2) states that "[a]ny financial impact statement that a court finds not to be in accordance with this section shall be remanded solely to the Financial Impact Estimating Conference for redrafting.” (Emphasis added.)
      Further, I recognize that this Court has reviewed financial impact statements in the past and that we adopted Florida Rule of Appellate Procedure 9.510(b)(7) in November 2006, indicating that we will continue reviewing financial impact statements as a part of our advisory opinion to the attorney general. However, prior to this case, this Court has never specifically addressed its jurisdiction to review financial impact statements. Thus, our past precedent has never spoken to, and therefore is not binding on the question of, whether this Court has jurisdiction to review financial impact statements. But now that the question is before us, we must defer to the express language of the Florida Constitution and the limitations it places on this Court's original jurisdiction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. David Samuel NICNICK, Respondent.
    No. SC06-290.
    Supreme Court of Florida.
    July 12, 2007.

      John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Juan Carlos Arias, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.

      Kevin P. Tynan of Richardson and Tyn-an, PLC, Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that David Samuel Nicnick be found guilty of professional misconduct and suspended from the practice of law for ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings and recommendations.

FACTS

The Florida Bar filed a complaint against David Samuel Nicnick alleging violations of Rules Regulating the Florida Bar 3-4.2 (violation of Rules of Professional Conduct is a cause for discipline); 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline); 4-3.3(a)(l) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-3.3(a)(2) (a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client); 4-3.3(a)(4) (a lawyer shall not knowingly permit any witness to offer testimony or evidence that the lawyer knows to be false); 4-3.4(a) (obstructing another party’s access to evidence); 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another); and 4-8.4(c) (a lawyer shall not engage in conduct involving misrepresentation). After considering stipulated facts and conducting a hearing to determine disputed facts, the referee issued a report in which the following findings and recommendations were set forth:

Nicnick represented a mother in a case involving child support arrearages. In that case, it was alleged that the child’s father had fraudulently transferred stock to his mother to avoid a child support obligation. The mother-in-law retained counsel to provide representation for her in the litigation from June 1,1999, through May 2, 2001, at which time counsel was allowed to withdraw. Nicnick was aware that the mother-in-law was represented by counsel during those dates.

The mother was approached by the mother-in-law’s personal assistant: The personal assistant informed the mother that the mother-in-law wished to settle the litigation. The mother informed Nicnick of this development, and sought from him a written outline of a settlement agreement. Nicnick drafted this and a revision requested by the mother. Nicnick had no expectation that' the documents he drafted would be returned to him executed.

On or about February 17, 2001, the personal assistant delivered an executed settlement agreement to Nicnick with a signature purporting to be that of the mother-in-law. At the same time, Nicnick and his law partner were meeting with the same personal assistant concerning legal representation; this personal assistant had been accused of stealing the mother-in-law’s automobile and was asking Nic-nick and his partner to provide his legal representation. Concerned about the personal assistant’s damaged relationship with the mother-in-law, Nicnick decided not to proceed with the settlement agreement until the- criminal case was resolved. Nicnick did not inform opposing counsel of the signed settlement agreement because he did not want him involved. Thus, opposing counsel had no knowledge of the agreement. Further, the mother did not see the mother-in-law sign the document. For the purposes of the disciplinary proceeding, the parties stipulated that an expert would have testified that the signature on the settlement agreement was not that of the mother-in-law.

On August 28, 2001, the trial court held a hearing in the civil case. At that hearing, Nicnick informed the court that the settlement agreement appeared to be signed by the mother-in-law, but he had no independent confirmation of that fact. The mother-in-law denied signing the document, as well as a certified copy of a traffic citation which Nicnick used as a handwriting exemplar. Subsequent to the hearing, the trial court entered a Partial Finding of Fact and a Final Judgment for the mother, finding she and the mother-in-law entered into a valid settlement agreement that settled all matters in the case. Although the trial court’s ruling has been challenged many times, it still stands.

The referee concluded that there were no violations of rules 4 — 3.3(a)(1), 4-3.3(a)(2), 4-3.3(a)(4), and 4-8.4(c) with respect to the actual use of the settlement agreement in the civil litigation because Nicnick made the appropriate disclosures to the trial judge. Also, the referee concluded that rules 3-4.2, 3-4.3, and 4-8.4(a) were inapplicable to the present case. However, the referee concluded that once Nicnick gave the settlement agreement to his client, the mother, with the understanding that it would be delivered to the mother-in-law, he had an obligation to share the document with opposing counsel. The referee found that, here, Nicnick failed to do so because he did not want opposing counsel to be involved at that time. By failing to share the settlement agreement with opposing counsel before presenting it to the mother-in-law, the referee concluded that Nicnick violated rules 4-3.4(a) and 4-8.4(c).

The referee found that the following aggravating factors were present: (1) prior ten-day suspension for misconduct in Case No. SC01-274; and (2) substantial experience in the practice of law because Nicnick has been practicing since 1992. In mitigation, the referee found: (1) absence of a dishonest or selfish motive; (2) full cooperation with the Bar; (3) good character and reputation; (4) remorse; and (5) remoteness of prior offense.

The referee recommends that Nicnick: (1) be suspended from the practice of law for a period of ninety-one days; (2) complete a minimum of ten hours in ethics Continuing Legal Education courses within six months of the date of this Court’s approval of the referee’s report; and (3) payment of the Bar’s costs in the amount of $3,711.56.

Nicnick petitioned for review of the referee’s report, challenging the referee’s recommendations as to guilt and discipline.

ANALYSIS

First, Nicnick challenges the referee’s recommendations as to guilt. The party contending that the referee’s findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Carlon, 820 So.2d 891, 898 (Fla.2002); Fla. Bar v. Vining, 761 So.2d 1044, 1047 (Fla.2000). Nicnick challenges the referee’s conclusion that he violated rules 4-3.4(a) (Obstructing Another Party’s Access to Evidence) and 4-8.4(c) (Engaging in Conduct Involving Misrepresentation).

Rule 4-3.4(a) provides that a lawyer shall not

unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

Rule 4-8.4(c) provides that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Both parties agree that the settlement agreement is of the type that was relevant in the civil proceeding between the mother and the mother-in-law, and should not have been concealed. Rather, Nicnick essentially argues that he did not share the executed draft settlement agreement with opposing counsel because he was unsure as to its authenticity, and states that had opposing counsel remained in the case, he would have disclosed the document to him before he actually relied upon it. Further, Nicnick alleges that he felt compelled to investigate the authenticity of the document before turning it over to opposing counsel, who withdrew from the case before the investigation could be completed. Moreover, Nicnick claims he believed that opposing counsel was aware of the mother-in-law’s actions regarding the settlement. Based on these assertions, Nicnick states that there was no active concealment in the instant case. We disagree.

In Florida Bar v. Forrester, 818 So.2d 477 (Fla.2002), the respondent received a sixty-day suspension for concealing a contract during a deposition (rule 4-3.4(a)) and lying as to its whereabouts (rule 4-8.4(c)). Among other things, the respondent argued that multiple copies of the contract were available and the concealment lasted only for a short period of time because the contract was uncovered by the end of the deposition. The Court rejected these arguments:

The comment notes that one of the purposes of rule 4-3.4(a) is to secure fair competition in the adversary system. Fair competition is secured by ensuring that a party’s right to obtain relevant evidence is not frustrated by the concealment of such evidence. We see no reason to distinguish the situation where multiple copies of a document are available or when the concealment lasts for only a short period of time. Thus, we conclude that in the interest of promoting fair competition both the availability of multiple copies and the duration of such concealment do not, under the circumstances of this case, negate the specifically prohibited conduct of concealing a relevant document.

Id. at 482.

Nicnick asserts that it was within ethical boundaries to conceal a potentially forged settlement agreement until he felt the time was right for it to be revealed. As set forth in Forrester, this is not a decision that Nicnick was entitled to make. Whether opposing counsel or the mother-in-law knew that the settlement agreement existed or even had a copy of such is irrelevant in this case. As the referee’s conclusion is supported by the record, we accept the referee’s conclusion that Nic-nick is guilty of violating rule 4-3.4(a).

Next, Nicnick further argues that he lacked the requisite intent to violate rule 4-8.4(c) because he did not deliver the draft agreement to his client, the mother, with the intent to be dishonest. “[I]n order to sustain a violation of rule 4-8.4(c), the Bar must prove intent. The intent element can be satisfied, however, merely by showing that the conduct was deliberate or knowing.” Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla.2005) (citation omitted); see also Fla. Bar v. Lanford, 691 So.2d 480, 481 (Fla.1997). A referee’s finding with regard to intent is a factual finding which must be upheld if there is competent, substantial evidence in the record to support it. Forrester, 818 So.2d at 483. Additionally, where a referee’s factual findings are supported by competent, substantial evidence, “this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee.” Fla. Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992).

Here, the referee found, based on the testimony adduced at the disciplinary hearing, that Nicnick deliberately and knowingly concealed the agreement from opposing counsel because he did not want opposing counsel involved. Thus, Nic-nick’s misconduct was intentional because he knowingly concealed the document. See Forrester, 818 So.2d at 483. Further, the referee’s finding is based on competent, substantial evidence as revealed in the testimony. See MacMillan, 600 So.2d at 459. It is difficult to understand why Nicnick believes that his failure to share the purported settlement agreement with opposing counsel does not constitute a deceitful act. By its very nature, the act of omission demonstrated in concealing a relevant document is deceptive. Cf. Fla. Bar v. Miller, 863 So.2d 231, 234 (Fla.2003). By concealing the settlement agreement, Nicnick was effectively representing to opposing counsel that there was no settlement agreement and that issues remain in the case. As the referee’s conclusion is supported by the record, we approve the referee’s conclusion that Nicnick should be found guilty of violating rule 4 — 8.4(c).

Nicnick also challenges the referee’s recommended discipline. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, this Court will generally not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The facts in Florida Bar v. Myers, 581 So.2d 128 (Fla.1991), are similar to the present case. In Myers, the respondent failed to notify opposing counsel of a final hearing in a dissolution of marriage proceeding in which he represented the husband. At the final hearing, the respondent submitted a disavowed settlement agreement and intentionally failed to inform the court -that the wife was represented by counsel. As a result, the husband was awarded custody of the minor child of the parties. At a disciplinary hearing before a referee, the respondent was found guilty of violating rules 4 — 3.3(d) (a lawyer shall inform the tribunal of all material facts known, whether or not the facts are adverse), 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct), and rule 4 — 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice). On review, the Court imposed a ninety-day suspension to be followed by two years’ probation. However, unlike the respondent in Myers, where exceptionally substantial mitigating factors existed, Nicnick has previously been subject to a disciplinary suspension and has substantial experience in the practice of law. Hence, despite those mitigating factors presented here, the record here supports a suspension greater than that imposed in Myers.

Likewise, in Florida Bar v. Schultz, 712 So.2d 386 (Fla.1998), we imposed a ninety-day suspension on a respondent for dishonesty unrelated to any representation or case pending at the time the misconduct occurred. Also, as noted above, in Florida Bar v. Forrester, 818 So.2d 477 (Fla.2002), a respondent received a sixty-day suspension for concealing a contract during a deposition and then lying as to its whereabouts. Additionally, in Forrester, opposing counsel knew of the existence of the contract and had copies of such, and the misconduct occurred in the course of a single deposition. In the present case, Nicnick drafted the settlement agreement in the course of representation in a pending case and obtained a signature, now stipulated by the parties to be a forgery, to execute the agreement. Further, Nicnick effectively worked through an intermediary to contact a represented party, and then withheld the settlement agreement from opposing counsel who had no knowledge of the agreement.

Nicnick’s misconduct is more egregious than that involved in Myers, Schultz, and Forrester, and is the type of misconduct that often results in much harsher sanctions than was imposed in those cases. In Florida Bar v. Hmielewski, 702 So.2d 218 (Fla.1997), and Florida Bar v. Rood, 569 So.2d 750 (Fla.1990), respondents were found guilty of engaging in misconduct involving the concealment of documents. In those cases, the respondents also abused the discovery process and made deliberate misrepresentations to the court that were prejudicial to the administration of justice. In Hmielewski, we imposed a three-year suspension; in Rood, we imposed a one-year suspension. Although Nicnick was not found to have committed misconduct relating to the actual use of the settlement agreement, the less onerous sanction recommended by the referee in this case reflects this distinction. Accordingly, we approve the referee’s recommendation to impose a ninety-one-day suspension.

CONCLUSION

David Samuel Nicnick. is hereby suspended for ninety-one days.

The suspension will be effective thirty days from the filing of this opinion so that Nicnick can close out his practice and protect the interests of existing clients. If he notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.

David Samuel Nicnick shall accept no new business from the date this opinion is filed until he is reinstated.

Further, Nicnick shall complete a minimum of ten hours in ethics Continuing Legal Education courses within six months of the date of this opinion.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from David Samuel Nicnick in the amount of $3,711.56, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . Although the referee was concerned with the possibility that Nicnick communicated with a party represented by counsel, the referee did not consider whether Nicnick violated rule 4-4.2 (Communication with a Represented Party) because the Bar did not charge him with such.

      . In Myers, we noted that the respondent’s misconduct was influenced by the abduction of his child by his former wife, which occurred during the same period as the representation.


text:
    Ever Nahon ORTIZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1714.
    Supreme Court of Florida.
    July 12, 2007.
    Bennett H. Brummer, Public Defender, Robert Godfrey and Valerie Jonas, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Criminal Appeals Bureau Chief, and Lucretia A. Pitts, Assistant Attorney General, Miami, Florida, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in Ortiz v. State, 932 So.2d 214 (Fla. 3d DCA 2004), based on alleged express and direct conflict with Bell v. State, 643 So.2d 674 (Fla. 1st DCA 1994), Bingham v. State, 655 So.2d 1186 (Fla. 1st DCA 1995), Larangera v. State, 686 So.2d 697 (Fla. 4th DCA 1996), and Carter v. State, 763 So.2d 1091 (Fla. 4th DCA 1999). Upon further consideration, we conclude that the Third District’s decision is based on a materially disparate fact as to whether the trial court ordered Ortiz to complete the drug offender treatment program. Additionally, the circumstances of this case and the alleged conflict decisions are factually distinguishable. For these reasons, we exercise our discretion to discharge jurisdiction and this review proceeding is hereby dismissed.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., dissents.


author: FARMER, J.

text:
    Curtis SHERROD, Appellant, v. The PALM BEACH COUNTY SCHOOL BOARD, Appellee.
    No. 4D06-590.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Rehearing Denied Sept. 19, 2007.
    Pamela Cazares and Thomas L. Johnson of Chamblee, Johnson & Haynes, P.A., Brandon, for appellant.
    Randall D. Burks, School Board of Palm Beach County, West Palm Beach, for ap-pellee.
   FARMER, J.

In the 2003-04 school year, the School Board of Palm Beach County (SBPBC) brought formal proceedings against a career contract teacher to discharge him from the position. An Administrative Law Judge (ALJ) was appointed by the Division of Administrative Hearings. After hearing testimony and receiving other evidence, the ALJ entered a recommended order for discharge, which SBPBC adopted. He appeals. We reverse.

The 2003 version of section 1012.34(3), Florida Statutes, provides that “[t]he assessment procedure for instructional personnel ... must be primarily based on the performance of students assigned to their classrooms ....” [e.s.] The statute adds that an annual assessment:

“must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee’s performance.” [e.s.]

§ 1012.34(3)(a), Fla. Stat. (2003).

In substance the evidence adduced by SBPBC was this. In.prior years there were complaints about teacher’s classroom presentation of subject matter; communication; learning environment; planning; record keeping; working relationships with coworkers; and policies, procedure, and ethics. None of these led to any proceedings for discharge. At the end of the year in which those comments were made, he was transferred to another school. New complaints there involved “excessive and inappropriate use of R-rated videos, his failure to timely post student grades, and his failure to provide instruction ... consistent with timelines suggested for teachers to complete instruction on all covered materialsIt was further said that he failed to enter student grades into the system, making it difficult to assess student performance. It was further said that he did not administer his classes well and failed to exercise proper control over students, who would “blurt out” comments without remonstrance from him. He was also alleged to rely on group student work, rather than lecturing to them. He was thereupon placed on probation for 90 days, but because of health he did not finish that year.

In the next school year, 2003-04, he was again transferred to still another school. His probation was started anew and extended to give time for compliance. Yet his principal there found that he failed to follow a lesson plan and that the students had no required text to read and follow. In February, the superintendent advised him that he would recommend termination. The teacher requested the formal hearing, the results of which we now review.

As the substance of the evidence shows, SBPBC presented no evidence of student performance on prescribed annual tests. Therefore, SBPBC did not “primarily base” its decision on the “performance of students assigned” to appellant’s classroom. Nor can it be said that its assessment “primarily use[d] data and indicators of improvement in student performance assessed annually as specified in s. 1008.22.” Not only did it not use such data primarily, in fact it did not make any use of such data. Appellant argues that its decision is thus not based on the applicable law and should be reversed.

SBPBC argues that student performance need not be the primary focus in teacher performance assessment if other factors are “properly deemed more crucial.” “Logic dictates,” SBPBC argues, that annual student assessments are not always the best means in evaluating the effectiveness or skills of a teacher. For example, SBPBC contends, if students are able to make progress on the annual test in spite of the teacher’s deficiencies in every other sense, it should not be required to retain that instructor. Moreover, SBPBC points out that the law requires 90 calendar days for probationary periods following an unsatisfactory evaluation before termination. If a teacher’s performance is deemed substandard early in the school year but annual tests are not available until year-end, it is argued that the legislature could not have intended assessment based on results after the 90 day period.

As a matter of policy these professional educators and the School Board may be well taken in these arguments. Parents, teachers, and administrators should know whether such testing, as is required by these laws, is reliable in measuring the effectiveness of individual teachers in particular subjects. Indeed, they may be right that the FCAT is not reliable. The problem for them and this court, however, is that the statute requiring primary reliance on the FCAT and similar tests leaves no room for the free-form exercise of professional expertise they advocate. Section 1012.34 does not allow this kind of discretion even if it is deemed superior by those with advanced evaluation skills.

It strikes us as logical that in “magnet” schools, like the one involved here, students who are motivated to learn may succeed on standardized tests like FCAT in spite of poor teaching. These students might have learned more and better with competent teachers than poor ones, and the FCAT may not reflect that. For those students utterly dependent on the skills of their teachers, the test may have some validity. With primary reliance on these annual tests, however, it seems plausible that the system could end up teaching of and for the annual tests. Superior students who might have achieved their promise with competent teachers could go unfulfilled, and many students could end up being good at taking tests but inadequate in self-learning.

Whether these fears are true, however, and how these consequences might be addressed is not for us on appellate review. Any remedy lies with the Legislature. As a court, we are not authorized to pass on the wisdom of these statutes — to rely instead on the wise alternative counsel of those who run this school district. When the meaning of a statute is plain, as here, our role is to enforce the law as written. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (state courts lack power to construe an unambiguous statute to extend, modify, or limit its express terms or its reasonable and obvious implications; to do so would abrogate legislative power). Section 1012.34(3) plainly says that the student performance on annual tests must be the “primary basis” for teacher evaluation. It does not say that these annual tests “may” play a role. If the statute had instead used may in place of shall, SBPBC might then have exercised its professional discretion to evaluate the performance of a teacher as it sought to do in this case. But the term primary in the statute unmistakably makes student performance on annual tests the first consideration in any teacher evaluation. And because the requirement of 90 calendar days for compliance should be given effect, the issue of termination may have to stretch over two school years.

SBPBC suggests that horrible consequences will inevitably follow if we sustain appellant’s interpretation of the statute. We point out, however, that criminal acts, mental diseases or defects, and similar deficiencies ungrounded in the teaching art, are not the subject of this teacher’s alleged faults. In circumstances such as those presented here, where the factors relied on by SBPBC for termination are confined to pedagogical method rather than personal conduct unquestionably showing unfitness for teaching, the statute in question requires the school board to base a decision to terminate primarily on student performance on the annual tests. Because that was not done here, we have no alternative but to reverse the final order of SBPBC discharging appellant and return this case to the agency for further consistent proceedings. See § 120.68(7), Fla. Stat. (2006).

Reversed.

GUNTHER, J„ and KRATHEN, DAVID H., Associate Judge, concur.

      . We agree with appellant that the applicable version of section 1012.34 is the one in effect when the evaluation was made on which ter-ruination proceedings were begun. The later change in section 1012.34 does not apply in this case.

      . See § 1012.32(4)(c), Fla. Stat. (2003).


author: LAWSON, J.

text:
    Kenneth ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1758.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    Rehearing Denied June 21, 2007.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Kenneth M. Robinson appeals his judgment and sentence for criminal solicitation to commit murder and solicitation to commit kidnapping. He argues that his convictions were obtained using DNA evidence introduced at trial in violation of the Fifth Amendment’s double jeopardy clause, as interpreted in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and State v. Perkins, 349 So.2d 161 (Fla.1977). Because the issue was not preserved for appellate review, we affirm. Notwithstanding, we also find Robinson’s argument lacking in merit. .

Robinson was accused and convicted of soliciting another jail inmate (expected to soon be released) to kidnap and kill a thirteen-year-old child. The young girl had been the victim of a sexual battery, and Robinson was charged with that crime. While Robinson was in jail pending trial on the sexual battery charge, law enforcement officers came to collect a DNA sample from him, to test against DNA evidence collected from the girl’s body following her rape. It was after Robinson was notified of the existence of DNA evidence, when law enforcement collected the DNA sample from him, that he attempted to arrange for the girl’s kidnapping and murder. However, the inmate who Robinson attempted to hire for the killing notified law enforcement instead. Robinson was arrested on the solicitation charges after law enforcement further investigated to corroborate the informant’s account. This investigation included the surreptitious recording of a conversation between the informant and Robinson, to arrange details of the murder for hire.

With respect to the sexual battery charge, the State inexplicably failed to complete its DNA testing prior to trial. Therefore, the only evidence against Robinson, at that trial, was the girl’s testimony. And, Robinson was acquitted. After the sexual battery acquittal, the DNA testing was performed. According to the expert who testified at Robinson’s solicitation trial, the DNA sample taken from Robinson matched the semen swabbed from the vagina of the girl shortly after she reported the sexual battery. The expert estimated the chance of a random match between the DNA found in the semen sample and the DNA of someone other than Robinson at one in 120 quadrillion. The DNA evidence was admitted at the solicitation trial for the limited purpose of showing that Robinson had a motive to arrange a murder for hire, with the girl as the target. Appropriately, a limiting instruction was read to the jury. On appeal, Robinson argues that because he was acquitted of the sexual battery charge, it violated the Fifth Amendment’s double jeopardy clause to use any evidence of the acquitted crime, for any purpose, at his solicitation trial.

In Florida, it is well-settled that “[t]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be,, raised at trial and a claim different than that will not be heard on appeal.’ ” Spann v. State, 857 So.2d 845, 852 (Fla.2003) (quoting Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992)). At trial, counsel objected to introduction of the DNA evidence as .irrelevant and because the State failed to provide a Williams rule notice. Both objections were properly denied, and appellate counsel did not challenge the trial court’s rulings on the objections that were actually made at trial. Because Robinson’s trial counsel never objected to the DNA evidence on Fifth Amendment grounds, the issue was not preserved for appellate review. Therefore, the conviction and sentence must be affirmed. E.g., Hayden v. State, 833 So.2d 275 (Fla. 5th DCA 2002) (affirming sentence because issue presented on appeal was not preserved for review).

Even if the issue were properly before this Court, Robinson would not be entitled to relief. In Perkins, our Supreme Court confirmed that “the double jeopardy clause of the Fifth Amendment to the U.S. Constitution does not forbid the admission of all evidence of acquitted collateral crimes, but only that evidence which the state is collaterally estopped from introducing.” 349 So.2d at 163. The Court further explained that “the Ashe rule forbids the admission in a subsequent trial of evidence of an acquitted collateral crime only when the prior verdict clearly decided in the defendant’s favor the issue for which admission is sought. Id. (emphasis added). The issue for which admission of the DNA evidence was sought in the trial below was Robinson’s motive to arrange for the kidnapping and murder of the young girl. That issue was obviously not submitted to the jury in Robinson’s sexual battery trial, and was therefore clearly not decided by the prior jury’s verdict.

If the DNA evidence had been available for the sexual battery trial, it would have been introduced in that trial to prove that Robinson was the perpetrator of the sexual battery. However, Robinson’s identity as the perpetrator of the sexual battery was not at issue in the solicitation trial. The only issue to which the DNA evidence was relevant in the solicitation trial was Robinson’s motive to solicit the murder for hire. And, again, because the “issue for which admission [was] sought” was not decided by the prior acquittal, there was no double jeopardy violation when the DNA evidence was admitted on the limited issue of motive. Perkins, 349 So.2d at 163.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

      . In Perkins, our Supreme Court appeared to be applying the U.S. Supreme Court’s formulation of the Fifth Amendment's double jeopardy clause, as described in Ashe. However, our Supreme Court later clarified that "Perkins rests entirely on Florida law.” Burr v. State, 576 So.2d 278, 280 (citing Art. I, § 9, Fla. Const.). However, with respect to the point we address, we see no distinction between Florida and federal law. Therefore, we simply refer to this as a Fifth' Amendment issue, for ease of discussion. The same analysis should apply under article 1, section 9 of the Florida Constitution.

      . Williams v. State, 110 So.2d 654 (Fla.1959) cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.404(2)(c)1, Fla. Stat. (2005) (requiring state to give ten-days notice of its intent to offer evidence at trial of defendant’s other criminal offenses).

      . Significantly, the DNA evidence would have been highly probative on the issue of motive, irrespective of the test's results (and irrespective of Robinson's guilt or innocence on the sexual battery charge). In other words, the jury could very reasonably infer that when Robinson became aware of the existence of DNA evidence collected in the sexual battery case, and when detectives took a DNA sample from him for comparison, he would have known whether the evidence would be exonerating or incriminating immediately — before any testing was done. If the DNA results were negative, the jury could reasonably infer that Robinson would have had very little motive to arrange for the girl's kidnapping and killing because he would have needed to do nothing to secure his eventual acquittal and freedom. Rather, as soon as he provided a DNA sample, he would have been able to anticipate that the test's results would exonerate him of the charge.
      Conversely, because the DNA results showed a match between Robinson and the semen sample taken from the girl, the jury could reasonably infer that Robinson had a compelling motive to arrange for the death of the girl — because, again, Robinson would have been able to predict the test results, and would have anticipated that the strength of the DNA evidence would make a conviction likely, as long as the girl was available to testify.


author: WELLS, J.

text:
    BRODY PROPERTIES, INC., Appellant/cross-appellee, v. Barbara S. MESSER, Anthony C. Giovanni and Ron Nowka, Appellees/cross-appellants.
    No. 3D06-3018.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.

      Gary Berlin, for appellant/cross-appel-lee, Brody Properties, Inc.
    Leah A. Simms, Miami, for appel-lee/cross-appellant, Ann Mary Messer.
    Peter M. MacNamara, Miami, for appel-lee/cross-appellant, Anthony Giovanni.
    Before GREEN, WELLS, and CORTIÑAS, JJ.
   WELLS, J.

Brody Properties, Inc. appeals from an order dismissing its specific performance action to enforce a residential sales contract. Because the parties now agree that this matter should be submitted to arbitration, we reverse and remand for reinstatement of the action and submission of this matter to arbitration.

On February 1, 2005, Brody contracted to purchase the home of decedent, Carl Messer II (Carl II). The sellers were Carl II’s surviving spouse, Barbara, the life estate holder, and Carl II’s sons and heirs, Carl Messer III (Carl III) and Anthony C. Giovanni (Giovanni), and Carl II’s minor granddaughter, Ann Mary Messer (Ann), the remaindermen. Each of the adult sellers executed the sales contract; Ron Now-ka, Ann’s father, signed it on her behalf. The contract includes an arbitration clause in which the parties agreed that “[a]ll controversies, claims and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled [where mediation fails] ... through neutral binding arbitration.”

On February 17, 2006, Brody brought suit to compel performance of the contract. Ann moved to dismiss the complaint claiming, as pertinent here, that the contract was unenforceable because it was executed by her father and because it had not been approved by the court presiding over an earlier foreclosure action involving this same property. Barbara also sought dismissal on this ground. Carl III and Giovanni moved to compel arbitration. Concluding that the instant specific performance action was ancillary to the foreclosure action in which a guardian ad litem for Ann had been appointed, the action was dismissed:

This specific performance action is ancillary to the appointment of the Guardian Ad Litem in Case # 02-6507 CA 20, and thus Court approval should have been obtained prior to signing a contract to sell the real property.

We find no record support for the conclusion that the instant action for specific performance was ancillary to the earlier mortgage foreclosure action and see no reason why the sales contract may not be approved, if appropriate, by the court in the instant action, especially now that a guardian ad litem has been appointed for Ann in this case. We therefore reverse the order of dismissal and based on the parties’ agreement, articulated at oral argument, to submit the issue of Brody’s entitlement to specific performance to arbitration, we remand for entry of an order compelling arbitration. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 1209, 163 L.Ed.2d 1038 (2006) (“First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.”); Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d 587, 590-91 (7th Cir.2001) (stating that although a challenge to a contract as a whole is usually subject to arbitration, where the claim is that no contract exists because a signature was forged or “was written on a contract by a faithless agent who lacked authority to make that commitment,” the issue “can’t logically be resolved by the arbitrator (unless the parties agree to arbitrate this issue after the dispute arises)”).

Accordingly, the order of dismissal is reversed and this matter remanded for reinstatement and submission to arbitration.

      . On September 13, 2006, the trial court appointed Scott Sheftall, Esq., as guardian ad litem in the instant case. Inexplicably, notwithstanding that appointment, on November 7, 2006, the court dismissed Brody’s specific performance action referring to the non participation of the guardian ad litem from the earlier foreclosure action. Ann's father Now-ka did not appeal the order appointing Shef-tall.


author: ROTHENBERG, Judge.

text:
    Gary D. MORIN, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 3D06-2224.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      David G. Hutchison and Vincent J. Tubi-ana, for appellant.
    Akerman Senterfitt, Tallahassee and James S. Bramnick, Nancy A. Copperth-waite, and Jennifer M. Taylor, Miami, for appellee.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Gary D. Morin (“Morin”), appeals an order granting Florida Power & Light’s (“FPL”) motion to dismiss for failure to state a cause of action under Florida’s Private Sector Whistleblower Act (“Whistleblower Act” or “Act”), section 448.101, et seq., Florida Statutes (2005). We affirm.

Morin filed an amended complaint against Day & Zimmerman, DPS, Inc. (“DZNPS”) and FPL, seeking damages under the Whistleblower Act. In the amended complaint, Morin alleges that while he and his crew were in the process of unloading a C-container at Turkey Point Nuclear Power Plant (“Turkey Point”), which is considered a “critical lift,” an employee and/or agent of DZNPS, Cush Revette (“Revette”), ordered Morin to go with him to perform a different job. Morin explained to Revette that safely moving the C-container requires three men, and that he could not leave until the C-container was stabilized. Otherwise, a highly dangerous situation would exist. Revette, however, informed Morin that if he did not immediately go with him, he would be fired. When Morin refused to leave until the task was performed, he was suspended for three days for insubordination and for refusing his next assignment.

Morin filed a grievance with the Bull Steward of DZNPS and a complaint with an in-house safety concerns program. Morin claimed that he was subjected to a pattern of harassment and intimidation, he was demoted for objecting to Revette’s work order, and the harassment and intimidation were designed to force him to quit.

The amended complaint alleges that there is an “independent contractor relationship” between FPL and DZNPS. Additionally, the amended complaint alleges that Turkey Point is owned by FPL; both FPL and DZNPS are “responsible for maintaining safe procedures of operation at Turkey Point;” FPL’s Turkey Point Nuclear Plant Rigging Operations Manual indicates that the supervisorfieader must be present during all critical lifts; DZNPS has a policy of providing a safe work environment and encourages employees to report safety concerns without fearing retaliation; and this policy was “promulgated pursuant to a grant of authority from the NRC and pursuant to 10 C.F.R. § 50.5 and 10 C.F.R. § 50.7.”

FPL and DZNPS moved to dismiss the amended complaint, and in the alternative, FPL moved for summary judgment, attaching the affidavits of Mark Waronieki, FPL’s Manager of Nuclear Testing, and George Downing, DZNPS’ Site Manager at Turkey Point. Waronieki averred, in part, that DZNPS provides independent contractor services to FPL; FPL and DZNPS are not interrelated in any manner; and FPL plays no role in DZNPS’ personnel practices. Downing averred that DZNPS contracts with FPL to perform maintenance at Turkey Point; FPL is not involved in the hiring or firing decisions of DZNPS craft employees, including Morin; FPL does not pay salaries or benefits to DZNPS craft employees; FPL is not authorized to assign work to DZNPS craft employees; FPL does not have access to personnel files of DZNPS craft employees; and that he made the decision to demote Morin without consulting with FPL.

After conducting a hearing, the trial court granted the motion to dismiss with prejudice as to FPL but denied it as to DZNPS, finding that the amended complaint states a cause of action as to DZNPS, but not as to FPL. Morin contends in this appeal that the trial court erred by granting FPL’s motion to dismiss.

In reviewing an order granting a motion to dismiss for failure to state a cause of action, the standard of review is de novo. See BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003); Rivera v. Torfino Enters., Inc., 914 So.2d 1087, 1088 (Fla. 4th DCA 2005); Roos v. Morrison, 913 So.2d 59, 63 (Fla. 1st DCA 2005), review dismissed, 944 So.2d 341 (Fla.2006); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). When ruling on a motion to dismiss for failure to state a cause of action, the trial court must “treat as true all of the ... complaint’s well-pleaded allegations, including those that incorporate attachments, and to look no further than the ... complaint and its attachments.” City of Gainesville v. Fla. Dep’t of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). Moreover, the “reviewing court operates under the same constraints.” Id. (quoting Andrews v. Fla. Parole Comm’n, 768 So.2d 1257, 1260 (Fla. 1st DCA 2000) (citations omitted)).

Morin’s amended complaint seeks damages for a violation of section 448.102(3), Florida Statutes, of the Whistleblower Act. Section 448.102(3), Florida Statutes (2005), provides:

Prohibition. — An employer may not take any retaliatory personnel action against an employee because the employee has:
(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

Section 448.101(2) of the Whistleblower Act defines “employee” as “a person who performs services for and under the control and direction of an employer for wages or other remuneration. The term does not include an independent contractor.” (emphasis added).

Morin asserts that although the amended complaint alleges that there is an “independent contractor relationship” between FPL and DZNPS, FPL, as the owner of Turkey Point, cannot insulate itself from liability for the actions of its independent contractor, DZNPS, and/or its independent contractor’s employee, Revette, as the independent contractor has undertaken an ultra-hazardous activity on behalf of the owner and the owner fails to supervise the independent contractor. He, therefore, asks this court to carve out an exception to the Whistleblower Act’s exclusion of independent contractors from its definition of “employee,” where the independent contractor has undertaken an ultra-hazardous activity on behalf of the owner.

In support of this argument, Morin relies on Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla.1964). In Price, the plaintiff, an employee of an independent contractor hired by FPL to install an electrical distribution system, was injured by another employee of that same independent contractor while installing the electrical distribution system. On certiorari review, the Florida Supreme Court stated:

We hold that liability flowing from operation of the doctrines of dangerous in-strumentalities and inherently dangerous work is subject to the exception that where the defendant owner contracts with an independent contractor for the performance of inherently dangerous work and the latter’s employee is injured by a dangerous instrumentality owned by the defendant which is negligently applied or operated by another employee of the independent contractor but wholly without any negligence on the part of the defendant owner, the latter will not be held liable. The incidence of the independent contractor and injury to his employee in the course of the performance of the inherently dangerous work absent any negligence on the part of the contracting owner absolves the latter from liability.

Id. at 298.

Price involved a negligence claim where the doctrines of dangerous instrumentality and inherently dangerous work apply, as opposed to a statutory claim under the Whistleblower Act. Morin has candidly conceded that he could not find a case where these doctrines have been applied to a claim under the Whistleblower Act, and asks this court to extend these doctrines to the Act. We decline to do so and note with approval the Fourth District Court of Appeal’s holding in Tracey-Meddoff v. J. Altman Hair & Beauty Centre, Inc., 899 So.2d 1167 (Fla. 4th DCA 2005). The Fourth District Court of Appeal held that because the definition of “employer” in section 448.101(3) of the private sector whistleblower act is unambiguous, appellate courts do not have the “power to ‘construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.’ ” Id. at 1168 (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)(emphasis omitted) (citations omitted)).

Affirmed.

      . The action against DZNPS was later removed to federal court based on diversity jurisdiction.

      . Although FPL moved in the alternative for summary judgment, the transcript of the hearing indicates that the trial court’s ruling was based solely on the motion to dismiss. Thus, as our review is limited to whether the trial court erred by granting FPL’s motion to dismiss, we do not take into consideration FPL’s motion for summary judgment or the affidavits attached thereto.


author: BROWNING, C.J.

text:
    R. Casper ADAMSON, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D06-1201.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    R. Casper Adamson, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

We AFFIRM the dismissal of the mandamus petition as frivolous, without further comment. We hold that section 944.279, Florida Statutes, which provides that an inmate found to have brought a frivolous or malicious collateral criminal proceeding filed after September 30, 2004, is subject to discipline by the Department of Corrections, is not an ex post facto law because Appellant’s petition was filed after September 30, 2004; does not necessarily result in lost gain time; and does not increase the punishment for the crime of which Appellant was convicted, but only promotes punishment for filing frivolous claims.

We REVERSE, however, the finding that Appellant is a vexatious litigant under section 68.098, Florida Statutes, because there was no competent substantial evidence to support the finding that Appellant had commenced five or more pro se actions in the immediately preceding five years that had been finally and adversely determined against him. The State has wisely conceded this point.

We AFFIRM the imposition of the original lien, because Appellant did not preserve his challenge to it by arguing the point below. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

However, we REVERSE the imposition of the appellate lien, and QUASH the March 23, 2006, order authorizing the DOC to place an appellate lien of $126.50 on Appellant’s account. We REMAND with directions that the trial court order the DOC to dissolve that lien and direct reimbursement of any monies already removed from Petitioner’s account towards payment of that hen.

BARFIELD and ROBERTS, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Antwan JENKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-2052, 1D06-2054, 1D06-2057, 1D06-2134, 1D06-2135 and 1D06-2199.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Rehearing Denied Sept. 4, 2007.
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the revocation of his probation based on his failure to complete a residential drug treatment program. We reverse.

The only evidence of the conduct that purportedly led to appellant’s discharge from Phoenix House was hearsay. Hearsay cannot be the sole basis for finding a violation of probation. See Stewart v. State, 926 So.2d 413, 415 (Fla. 1st DCA 2006) (reversing revocation of probation where the only evidence that conduct which led to discharge from drug treatment amounted to a “willful” or “substantial” violation of condition of community control was hearsay testimony); Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001) (“Finally, both the probation officer’s testimony and the treatment counselor’s report were hearsay and, because the probation officer neither prepared nor was the custodian of the treatment counselor’s report, the report was not subject to the business record exception. Because this hearsay evidence was the only evidence Appellant was terminated unsuccessfully from the treatment program for willfully failing to participate, it is insufficient to support a finding of violation of probation.”) (citations omitted).

The order placing the appellant on probation did not, moreover, specify the time within which he was to complete the treatment program or limit the chances he had to succeed. As we recently said in Campbell v. State, 939 So.2d 242 (Fla. 1st DCA 2006): “Courts have held that ‘evidence of the failure to complete a counseling program is insufficient to establish a willful and substantial violation of probation if the condition in question does not specify a time for completion.’ ” Id. at 244 (quoting Quintero v. State, 902 So.2d 236, 237 (Fla. 2d DCA 2005)). See also Jones v. State, 744 So.2d 537, 538 (Fla. 2d DCA 1999) (“The community control order did not specify the period within which appellant was to complete the program or how many chances he would have to obtain success. Since the order was not specific and appellant has expressed a willingness to complete some form of drug treatment, we conclude that the trial court abused its discretion in revoking appellant’s community control.”) (citation omitted).

REVERSED.

BENTON and PADOVANO, JJ., concur; THOMAS, J., concurs in result only with opinion.

THOMAS, J.,

concurring in result only.

Although the facts here are somewhat distinguishable, I recognize we are bound to follow our precedent in Campbell v. State, 939 So.2d 242 (Fla. 1st DCA 2006). Were we presented with this issue for the first time, however, I would follow the Fifth District’s decision in Lawson v. State, 941 So.2d 485 (Fla. 5th DCA 2006), review granted, 954 So.2d 27 (2007).

In Lawson, the Fifth District held that a trial court does not abuse its discretion in finding that a probationer willfully and substantially violates his probation when discharged from a court-ordered drug treatment program, even though neither the time period to complete the program nor the number of chances the probationer had to complete the program were specified. Id. at 487. The Fifth District rejected the probationer’s argument that failure to specifically state the number of attempts permitted or to specify a completion date meant he had the entire probationary term to complete the court-ordered drug treatment program, explaining

If we reduce Lawson’s argument to its essence, Lawson is actually telling us that he will be the one to decide when he submits to drug treatment and that he will be the one to decide how many chances he will have to complete it. We simply cannot accept the perverse notion that such decisions should be left to the whim or caprice of any criminal defendant, much less one like Lawson who has twice thumbed his nose at the trial court, his drug counselor, and his probation officer.

Id. at 491 (emphasis supplied).

Appellant presents a similar argument here, stating that the trial court erred in revoking his probation based on his failure to complete drug treatment at Phoenix House. Appellant argues that time remained in his probationary term, and he could complete treatment either through Phoenix House or another similar program, as his original probation order did not specify the number of permitted attempts or the deadline for completion. I agree with the Fifth District that Appellant’s argument “defies common sense, defeats the ends of justice, and does little to further the goal of rehabilitating offenders so they can conform to the normative standards of behavior demanded by a society of law-abiding citizens.” Id. This is especially true considering the facts here, including the Phoenix House director’s testimony that Phoenix House would never permit Appellant to return. Thus, there is no possibility for Appellant to “successfully complete Phoenix House and any aftercare,” as specifically ordered by the court, regardless of the amount of time remaining on his probation.

I recognize that a probationer’s due process rights are violated when he or she does not receive fair notice of the probation requirements and the actions which will result in a violation. See id. at 489-90. However, Appellant did have adequate notice of his probation requirements. In fact, a reasonable person would understand that he must comply with a treatment center’s rules in order to “successfully complete” its program. Even if Appellant was unsure of his probation requirements, he knew he must successfully complete the Phoenix House program based on the court’s multiple admonitions to him during sentencing. Further, upon entering Phoenix House, staff members and his probation officer thoroughly explained the rules and regulations. In addition, after violating rules, the director counseled him about the specific violations, warning that further violations would result in discharge.

In the probation order before us, Appellant was not ordered to complete some unspecified drug treatment program, nor was he given the option to complete a similar program should he be unsuccessful at Phoenix House. The trial court’s order required that Appellant remain incarcerated until he could be transported to Phoenix House, indicating that he was to immediately begin treatment when space became available. Nevertheless, as this court explained in Campbell, if a specifically ordered treatment program does not permit a probationer to remain in its program, but there is time remaining for the probationer to complete a similar program, the court abuses its discretion when it revokes probation based on the probationer’s failure to complete the specifically ordered program. 939 So.2d at 245.

This is illogical, in my view, as it permits Appellant to decide when and where he will complete drug treatment. Further, in order to avoid the result here, trial courts must “specify all performance conditions, such as the number of opportunities and a time period for completion of specific probationary conditions.” Davis v. State, 862 So.2d 931, 935 (Fla. 2d DCA 2004) (Casanueva, J., concurring). I believe this specificity requirement will discourage trial courts from utilizing probation as an alternative to prison sentences.

Were we free to follow the Fifth District’s decision in Lawson, I would find that Appellant’s probation revocation was not based entirely on hearsay and would affirm the revocation. The Phoenix House director testified he personally discharged Appellant from Phoenix House; this testimony was not an out-of-court statement, but simply a recitation of the facts as they occurred for which he had personal knowledge. See § 90.801(1), Fla. Stat. (2005). Appellant’s probation was revoked because he failed to “successfully complete” the Phoenix House treatment program. I would find that the director’s testimony constitutes competent evidence of a willful and substantial violation of probation. Because we are not free to reject our prior precedent in Campbell, however, I must concur with the majority’s decision.


text:
    Michael M. RUFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1665.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Rehearing Denied Aug. 28, 2007.
    Michael M. Ruffin, Jasper, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Grant v. State, 770 So.2d 655 (Fla.2000).

PLEUS, ORFINGER and MONACO, JJ., concur.


text:
    Grant NUNN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1379.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    Rehearing Denied Aug. 29, 2007.
    Grant Nunn, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


text:
    Nancy MEARS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3503.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    Rehearing Denied Aug. 29, 2007.
    Nancy Mears, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.