text:
    Lawrence REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3373.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Lawrence Reed appeals the denial of a motion to suppress. He contends that suppression is warranted because a detective did not corroborate a tip and illegally entered or remained inside a motel room without a warrant or exigent circumstances. We agree that the detective illegally remained in Reed’s motel room in violation of the Fourth Amendment, whether or not the tip was sufficiently corroborated. As a result, we reverse on this basis and decline to consider whether the tip was sufficiently corroborated.

Reed was charged by Information with possession of cocaine and unlawful use of driver’s license (misdemeanor). He filed a motion to suppress evidence. Reed contended that the facts given to Broward County Sheriffs Office Detective Andrew Cardarelli by a tipster were insufficient to justify a search because they were not verified, and that Cardarelli illegally entered or remained in his motel room because no exception to the warrant requirement applied under the totality of the circumstances.

The trial court held a hearing on Reed’s motion to suppress. Cardarelli testified that on the day in question he was working in the area of Northwest 27th Avenue in Fort Lauderdale when he was flagged down by an unknown man riding a bicycle. Cardarelli indicated that although he did not know the man’s identity, he saw him around the neighborhood all the time. The man informed Cardarelli that narcotics activity was taking place in a room at the Rochelle Motel. The man said that a couple of “crackheads” were smoking crack in the room and that the man in the room had stolen his own mother’s car, cash, and jewelry. The man did not indicate whether the activity had previously taken place, had just stopped, or was ongoing. The man then accompanied Cardarel-li to the motel and pointed out the room in question. Cardarelli testified that he did not get the man’s name and that the man did not provide a description of the man in the motel room.

Cardarelli then went to the motel office and verified that a man had rented the room in question, “which had started to validate the story that I was told by the person — by the [man] in the street.” Management escorted Cardarelli to the room. Cardarelli knocked and announced, and a woman opened the door. Cardarelli saw a man lying on the bed, advised the woman why he was at the room, and called out “Mr. Reed” a few times without response. Cardarelli was concerned by Reed’s unresponsiveness, made entry into the room, and shook Reed a few times while advising him of his status as a law enforcement officer. Reed awoke, and Cardarelli asked to see his ID. Reed provided his driver’s license, and Cardarelli discovered that Reed’s license was suspended and that he was on felony probation. Cardarelli placed Reed under arrest for possession of a suspended driver’s license and violation of probation.

On cross-examination, Cardarelli testified that he did not smell or see any drugs in the room when the woman opened the door. Cardarelli clarified that he was concerned for Reed’s safety because “I mean the guy’s laying there. He’s nonrespon-sive. I’m there for a drug complaint. We get overdoses all the time.” Cardarelli further stated that he did not believe Reed was sleeping because people who are sleeping usually respond in some way to a person yelling at them from ten feet away. Furthermore, Cardarelli stated that he did not leave when Reed awoke because he was conducting an investigation, but that if Reed had asked him to leave he would have been required to leave.

Thereafter, Cardarelli spoke with Reed, who was cooperative and admitted that he did steal his mother’s car, cash, and jewelry, and pawned the jewelry to fund a crack-smoking binge. Cardarelli then contacted Reed’s mother, who came to the scene, identified her car, and indicated that she did not want to press charges against her son. Then either Reed or his mother gave Cardarelli permission to search the car, where he found a very small amount of crack cocaine in the ashtray.

Following Cardarelli’s testimony, defense counsel made the following argument in support of the motion to suppress:

And, in fact, if the officer went up there and smelled drugs coming out of the room, he smelled drugs when he — when the door was opened, or observed drugs when the door was opened, I would say the State’s absolutely correct.
The problem is the officer didn’t observe those things, and so, therefore, the information he got was not corroborated by his initial contact with anybody and, therefore, he had no right to any — to any further investigation.
For the State to then rely upon the fact that while there was a man sleeping on a bed in a motel room, that’s really not unreasonable to believe that person’s sleeping on a bed in a motel room.
And if the officer was truly concerned for the well-being of this individual, then maybe if it was a legitimate concern, not under the guise of gaining access to the room, he could have walked in there. When he learned that the man was fine and was only sleeping, he had no further reason to be in that room and should have left.
Anything after that is well beyond what — what the courts allow. He had no reason to further investigate anything. There was no — no sign of drug activity, no sign of any criminal activity whatsoever. And at that point, the officer’s suspicions that were aroused by this anonymous tip, they were silenced, and that’s when the officer should have left.
If the Court does determine though that he did have a right to go into the room, did have a right to check on the well-being of this individual, once he did that, the man produced his identification, he was cooperative, he showed that he was the right — rightful renter — or renter of that room, at that point, the officer should have left. To keep going with that investigation, is completely tainted, and this Court should grant our motion. The trial court then made the following
ruling on the record at the conclusion of the suppression hearing:
I find that nothing that Detective Car-darelli did is violative of the U.S. or the Florida Constitutions. I do find that the could have, should have, would have arguments, based on just watching this particular case, I think that if he had not done what he had done as far as- — not a sleeping person, but somebody that is either in a stupor or a coma or out of it, he would have been remiss in his duty and been subject himself to further suit or departmental reprimand.
Once again, I find that there is no grounds to suppress the evidence. The motion to suppress is hereby denied.

Subsequently, the trial court entered a written form order denying Reed’s motion to suppress. Reed then pleaded nolo con-tendere to both charges and reserved the right to appeal the trial court’s denial of his dispositive motion to suppress. He was adjudicated guilty and sentenced to two years in prison on the cocaine possession count and time served on the suspended driver’s license count.

“ ‘The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.’ ” Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004) (citations omitted); see also Fitzpatrick v. State, 900 So.2d 495, 513 (Fla.2005)(same); Murray v. State, 692 So.2d 157, 159 (Fla.1997)(same).

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Article 1, Section 12 of the Florida Constitution provides similar protection and mandates the following:

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

The instant case presents two Fourth Amendment challenges, that to the tip received by Cardarelli and that to Cardarel-li’s entry and stay in Reed’s motel room. Because we find that Cardarelli’s stay in Reed’s motel room is dispositive of this case, we decline to address the challenge to the tip.

“It is a ‘basic principle of Fourth Amendment law1 that searches and seizures inside a home without a warrant are presumptively unreasonable.” Anderson v. State, 665 So.2d 281, 283 (Fla. 5th DCA 1995) (citations omitted). “[F]or Fourth Amendment purposes a motel room is considered a private dwelling where the occupant is legally there, has paid for the room, and has not been asked to leave.” Gilbert v. State, 789 So.2d 426, 428 (Fla. 4th DCA 2001). However, warrantless searches of homes and motel rooms are not unreasonable “within the framework of a few specifically established and well delineated exceptions.” Gnann v. State, 662 So.2d 406, 408 (Fla. 2d DCA 1995); see also Jones v. State, 648 So.2d 669, 674 (Fla.1994)(same). “The state has the burden of showing that a warrantless search comes within one of the recognized exceptions.” Gnann, 662 So.2d at 408. The five established exceptions to the warrant requirement are: “(1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.” Id.

The case at bar centers on the exigent circumstances exception. Exigent circumstances are those characterized by “grave emergency,” imperativeness for safety, and compelling need for action, as judged by the totality of the circumstances. See Riggs v. State, 918 So.2d 274, 278-279 (Fla.2005). For example, “where safety is threatened and time is of the essence, [the Florida Supreme Court has] recognized that ‘the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry.’ ” Id. at 279 (citations omitted); see also Webster v. State, 201 So.2d 789, 792 (Fla. 4th DCA 1967)(“The preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties.”). Feared medical emergencies are included in the scope of exigent circumstances and permit law enforcement to enter and investigate a home or motel room without a warrant, as long as law enforcement does not “ ‘enter with an accompanying intent either to arrest or search.’ ” Riggs, 918 So.2d at 280 (citations omitted). Such medical emergencies can include reports of an individual suffering from a drug overdose. See State v. Moses, 480 So.2d 146 (Fla. 2d DCA 1985). Furthermore, the reasonableness of law enforcement’s belief that a medical emergency constitutes an exigent circumstance permitting the war-rantless entry into a dwelling is measured by “the reasonableness of the police as to the existence of an emergency, not the existence of the emergency in fact.” Webster, 201 So.2d at 792; see also Randolph v. State, 463 So.2d 186, 191 (Fla.1984). However, a presumptively-valid warrant-less entry based on exigent circumstances is subject to some limitation: “ ‘Moreover, an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists.’ ” Riggs, 918 So.2d at 279 (Fla.2005) (citation omitted).

We conclude that whether or not Cardarelli’s concern for Reed’s health was legitimate and supported by the totality of the circumstances known to Cardarelli, once Cardarelli confirmed that Reed had not overdosed, he was required to leave the motel room because the exigency dissipated and no criminal activity was apparent within the room. As such, Cardarelli’s stay in Reed’s motel room exceeded the scope of the exigent circumstances exception to the warrant requirement and constituted an unreasonable search and seizure violative of the Fourth Amendment. Consequently, the trial court erred by denying Reed’s motion to suppress.

In sum, the trial court erred by denying Reed’s motion to suppress because Car-darelli remained in his motel room in violation of the Fourth Amendment. Therefore, we reverse and remand for Reed’s discharge.

Reversed.

GUNTHER, HAZOURI and MAY, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patricia JOHNSON and Joseph Johnson, Appellants, v. MAROONE FORD LLC, d/b/a Maroone Ford, Appellee.
    No. 4D05-3641.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Mark M. Heinish of Katzman & Korr, P.A., Fort Lauderdale, for appellants.
    No brief filed for appellee.
   PER CURIAM.

Appellants, Patricia and Joseph Johnson, appeal from the trial court’s order dismissing their case for failure to prosecute. After reviewing the record on appeal, we reverse because there was record activity within the year prior to the notice of dismissal.

On September 8, 2008, plaintiffs/appellants Patricia and Joseph Johnson filed suit against defendant/appellee Maroone Ford LLC d/b/a Maroone Ford alleging violations of the Florida Deceptive and Unfair Trade Practices Act and Civil Remedies for Criminal Practices Act. On June 16, 2005, the trial court issued a “Motion, Notice and Judgment of Dismissal,” which was filed on June 20, 2005, stating that it did not affirmatively appear from the filing of pleadings, order of court, or otherwise for a period of one year, that the action is being prosecuted. The court ordered that good cause be shown why the action should not be dismissed for lack of prosecution. The appellants thereafter filed a memorandum in opposition to dismissal for lack of prosecution and showing of good cause. After conducting a hearing on the matter, the trial court entered its order of dismissal for failure to prosecute on August 12, 2005, from which this appeal is taken.

On appeal, the appellants argue that the trial court erred in dismissing the case for lack of prosecution because there was evidence before the trial court of record activity within the year prior to the motion to dismiss. Specifically, the appellants point to the plaintiffs’ second request for production to defendant filed on June 8, 2005.

The standard of review of a trial court’s dismissal of a cause of action for failure to prosecute is abuse of discretion. Richards v. Sheriff of Palm Beach County, 925 So.2d 1166, 1167 (Fla. 4th DCA 2006).

Florida Rule of Civil Procedure 1.420(e) (2005) provides:

Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

The Florida Supreme Court established a two-pronged test for determining whether dismissal for lack of prosecution is appropriate under Florida Rule of Civil Procedure 1.420(e). First, the party moving for dismissal is required to show there has been no record activity for the year preceding the motion, and second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed. Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla.1991). Furthermore, in a recent opinion, Wilson v. Salomon, 923 So.2d 363 (Fla.2005), the Court established a bright-line rule for motions to dismiss for failure to prosecute:

... if a review of the face of the record reveals activity by ‘filings of pleadings, order of court, or otherwise,’ an action should not be dismissed. This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court. As Justice Wells noted in [Metropolitan Dade County v.] Hall [784 So.2d 1087 (Fla.2001) 1 there is either activity on the face of the record or there is not. We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active.

Wilson, 923 So.2d at 368. The Court also announced that it receded from prior interpretations of rule 1.420(e) insofar as those interpretations require a trial court to look “behind the face of the record to subjectively determine whether the activity reflected of record is merely passive, and therefore insufficient to preclude dismissal under the rule, or active and therefore designed to hasten the suit to a conclusion on the merits and therefore sufficient to preclude dismissal.” Id. at 369.

Applying this bright-line rule, plaintiffs’ second request for production to defendant filed on June 8, 2005 is record activity in the year preceding the notice of dismissal for failure to prosecute filed on June 20, 2005. Consequently, we conclude the trial court erred in dismissing the case for failure to prosecute. While we note that the trial court did not have the benefit of Wilson at the time of rendering its decision, Wilson controls the outcome in this appeal. We therefore reverse the order dismissing the case for failure to prosecute and remand to the trial court for proceedings consistent with this opinion.

With respect to the appellants’ motion for attorney’s fees, we grant the motion contingent on the appellants prevailing on the merits of the case in the trial court, leaving the determination of the amount to the trial court. “When we are ruling on motions for prevailing party attorney’s fees, we will normally grant the motion contingent on the party ultimately prevailing. At the conclusion of the litigation, the trial court can then, under Moritz [v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992)], award attorney’s fees to the party prevailing on the significant issues.” Aksomitas v. Maharaj, 771 So.2d 541, 544 (Fla. 4th DCA 2000).

Reversed.

GUNTHER, HAZOURI and MAY, JJ„ concur.


text:
    Richard EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2386.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Richard Edwards, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Edwards seeks review of an order that denied his rule 3.850 motion for post-conviction relief. We reverse and remand for further review of one of Edwards’ two points.

Edwards argues that trial counsel was ineffective in failing to insist that the trial court interview witnesses in connection with an alleged violation of the rule of sequestration. Edwards alleges:

Had defense counsel made a request to the court to interview Carrie Ferguson and Virginia Edwards, it would have been established that K-9 Officer McCann discussed his testimony with the State’s other witnesses in violation of the rule of sequestration and that his in-court identification of Edwards was the product of a recent fabrication stemming from those discussions.

We find that his claim is legally sufficient. Steinhorst v. State, 412 So.2d 332 (Fla.1982); see generally Perrot v. State, 765 So.2d 85 (Fla. 2d DCA 2000).

The record reveals that counsel moved for a mistrial based on the alleged violation, but did not offer testimony from the relevant witnesses. On direct appeal, Edwards challenged the denial of the motion for mistrial. The case was per curiam affirmed. Edwards v. State, 753 So.2d 578 (Fla. 4th DCA 1999).

The issue at hand was not considered because there was no request for the court to hear testimony to determine whether a rule violation had taken place. Accordingly, we reverse and remand for further review of Edwards’ claim. On remand, the trial court shall conduct an evidentiary hearing to determine whether counsel was ineffective such that Edwards suffered the requisite prejudice. Strickland v. Washington, 466 U.S. 668, 695-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Affirmed in part, reversed in part, and remanded.

FARMER, GROSS and SHAHOOD, JJ., concur.


author: POLEN, J.

text:
    William MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3076.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, William Moore, a.k.a. Erie Jones, appeals a final order of judgment and conviction. Following a jury trial, Moore was convicted of one count of burglary of a conveyance, one count of attempted burglary of a conveyance, and one count of petit theft. The trial court declared Moore a violent career criminal and a habitual offender, and sentenced him to fifteen years in prison for count one, ten years in prison for count two, sixty days for count three, all sentences to run concurrently. Moore raises two issues on appeal. We affirm the trial court’s denial of Moore’s motion for a continuance and discharge of counsel, but find merit in Moore’s sentencing argument. We reverse Moore’s sentence and classification as a violent career criminal, and remand for re-sentencing.

To impose a habitual felony offender sentence, the trial court must find based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies and that the current felony occurred either (a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a prior felony conviction; or (b) within five years from the date of conviction for the defendant’s last prior felony or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense.

Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001). To be sentenced as a violent career criminal, the State must present evidence that the defendant had been convicted as an adult three or more times for an offense enumerated in the applicable statute. See § 775.084(l)(d)l-6. The State cannot simply refer to evidence introduced at an earlier sentencing hearing. See Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002). The trial court can rely upon certified copies of convictions and original court records in making the determination. Slade v. State, 898 So.2d 120 (Fla. 4th DCA 2005).

After careful review of the record, we find the State has failed to introduce evidence of the requisite prior convictions. The convictions relied on in the sentencing hearing do not constitute convictions for felonies listed under section 776.08, Florida Statutes. Only two of the convictions relied upon by the State would qualify to classify Moore as a violent career criminal. While there is one other conviction found in the supplemental record that would be sufficient to constitute the third offense, this conviction was neither listed nor relied upon at the sentencing hearing. Therefore, we reverse Moore’s sentence for Count I, and remand to the trial court for re-sentencing. Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004) (on remand, State has the right to introduce evidence of other qualifying convictions).

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


author: MAY, J.

text:
    Timothy PAVLAC, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3359.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Carey Haughwout, Public Defender, and Jeffrey N. Golant, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

MAY, J.

We grant the State’s motion for rehearing, withdraw the previous opinion, and replace it with the following.

The defendant appeals his conviction and sentence for aggravated fleeing and eluding and resisting an officer without violence. He argues the trial court erred in relying on acquitted conduct when imposing his sentence, and that the State failed to sufficiently prove the requisite prior criminal convictions to justify the court’s imposition of a habitual felony offender sentence. We agree in part and reverse the sentence.

A trial court may sentence a defendant to an extended term if he qualifies as a habitual felony offender. § 775.084, Fla. Stat. (2003). Habitual felony offender sentencing is permissive, not mandatory. Ellis v. State, 816 So.2d 759, 760 (Fla. 4th DCA 2002). Section 775.084 outlines the requirements for imposition of such a sentence.

The court must find “[t]he defendant has previously been convicted of any combination of two or more felonies ...” and the defendant has committed the felony he is to be sentenced for “[w]ithin 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence ....”§ 775.084(l)(a)l., 2.b. And, the felony for which the defendant is to be sentenced and one of the prior felonies cannot be for the purchase or possession of a controlled substance. § 775.084(l)(a)3. The State must prove the defendant’s criminal history satisfies the statutory requirements. Mitchell v. State, 780 So.2d 282, 283 (Fla. 4th DCA 2001).

Here, the record reflects the date of the current offense was August 24, 2003. The trial court found the defendant had been sentenced to seven years in Florida State Prison on May 15, 1990, which would have made his release date no later than May 15, 1997. However, the penitentiary packet reveals the defendant violated the terms of his conditional release on several occasions thereby extending his incarceration for the 1990 conviction until September 5, 2000. The 1990 conviction and his 2000 release from prison satisfied the requirements for habitual felony offender sentencing.

However, during the sentencing, the trial court referred to the defendant’s violent behavior, using a beer bottle and grabbing the officer’s neck, during his arrest. “It is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing the sentence.” Doty v. State, 884 So.2d 547, 549 (Fla. 4th DCA 2004). Here, the State charged the defendant with resisting arrest with violence, but the jury acquitted him of that offense and found him guilty of resisting without violence. The court should not rely on that violence in sentencing the defendant.

We find no merit in the other issues raised and affirm the defendant’s conviction. We reverse the defendant’s sentence for the reason expressed and remand the case for re-sentencing.

STEVENSON, C.J., and SHAHOOD, J., concur.


text:
    Erick TUKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1798.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Erick Tukes, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Erick Tukes appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Tukes raised two claims in his motion: (1) denial of post-sentencing jail credit and (2) illegal sentencing in excess of the statutory maximum for a third degree felony (possession of cocaine). We affirm the summary denial of the first claim for the reasons set forth in the State’s response, but reverse the trial court’s summary denial of the second claim for failure of the court to attach record evidence to support its summary denial. See Fenelon v. State, 932 So.2d 431 (Fla. 4th DCA 2006); Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996) (“holding that the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim”). We deny the State’s motion to relinquish jurisdiction for the trial court to attach a copy of the Criminal Punishment Code scoresheet to an amended order, pursuant to the “new policy” announced by the second district in Harvester v. State, 817 So.2d 1048, 1049 (Fla. 2d DCA 2002).

Accordingly, we reverse and remand for attachment of portions of the record refuting appellant’s second claim of an illegal sentence, if such records exist or an evi-dentiary hearing.

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


text:
    Benjamin COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-1955.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Jerold H. Reichler and Michael Shein of Shein & Reichler, LLC, Fort Lauderdale, and Michael Ufferman, Tallahassee, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The defendant filed a petition for writ of prohibition seeking to vacate his conviction and sentence and prevent the county court judge from proceeding with post-conviction matters. We grant the petition in part for the reasons that follow.

Petitioner was convicted after a trial conducted by the county court judge who had been temporarily assigned to circuit court. Petitioner seeks vacation of his conviction and sentence and a new trial, claiming there was no order in effect assigning the county court judge to circuit court. We deny this request as it is beyond the scope of prohibition relief. See Administrator, Retreat Hosp. v. Johnson In and For Broward County, 660 So.2d 333, 337 (Fla. 4th DCA 1995) (quoting English v. McCrary, 348 So.2d 293, 296-97 (Fla.1977)) (the purpose of prohibition is to prevent the doing of something, not to compel the undoing of something already done).

Petitioner states in his reply that he has addressed the issue concerning the jurisdiction of the county court judge in his post-conviction motions filed in the trial court, and he reserves the right to address this issue in that manner. With respect to matters post-appeal, the parties agree that there is no current order of assignment permitting the county court judge to preside over petitioner’s pending post-conviction motions. Accordingly, we remand for consideration of the post-conviction motions by a circuit court judge. See Diaz v. State, 868 So.2d 1281 (Fla. 4th DCA 2004).

Finally, we deny petitioner’s request that we remand for consideration as to whether he must surrender pending resolution of his post-conviction motions. Appellant’s conviction and sentence have been affirmed on appeal. See Combs v. State, 925 So.2d 1036 (Fla. 4th DCA 2006). This court has since indicated that there is no reason why Combs’ sentence should not go forward without delay.

GUNTHER, SHAHOOD and MAY, JJ., concur.

      . We decline to comment on the ultimate validity of a reassignment of the county court judge to this case via a new administrative order.


text:
    Mike Arthur MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3266.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2006.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Salyers v. State, 705 So.2d 1024 (Fla. 5th DCA 1998).

PALMER, MONACO and TORPY, JJ., concur.


text:
    Jon STUMPF, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-407.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2006.
    Jon Stumpf, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Allen v. State, 927 So.2d 1070 (Fla. 2d DCA 2006); Wesierheide v. State, 888 So.2d 702 (Fla. 5th DCA 2004).

THOMPSON, PALMER and TORPY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Israel CONCEPCION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2550.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Israel Concepcion, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Israel Concepcion (“Concepcion”), appeals the trial court’s September 22, 2005 order denying his second motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure, which was entered after rehearing. We affirm and order Concepcion to show good cause why he should not be prohibited from filing further pro se proceedings with this court concerning his convictions and the sentences imposed on October 11, 1996, for attempted first degree murder with a firearm and discharging a firearm in a vehicle, in case number 95-9428CA).

PROCEDURAL HISTORY

On direct appeal, the defendant specifically claimed that the sentences imposed were departure sentences, which the trial court imposed without filing contemporaneous written reasons, and were based upon an incorrectly scored sentencing scoresheet. After review of the arguments raised and the record, this court affirmed Concepcion’s convictions and sentences. See Concepcion v. State, 704 So.2d 533 (Fla. 3d DCA 1997).

On December 9, 1999, Concepcion filed his first motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (“Rule 3.850”), again attacking his sentence, alleging both ineffective assistance of trial counsel and error on the part of the trial court. This motion was denied by the trial court on August 29, 2000, and this court affirmed the denial on July 25, 2001. See Concepcion v. State, 796 So.2d 1177 (Fla. 3d DCA 2001). Concepcion then sought to have the Florida Supreme Court review this court’s affir-mance, which the Florida Supreme Court ultimately dismissed. Concepcion v. State, 794 So.2d 604 (Fla.2001).

Undaunted, Concepcion filed a petition for writ of habeas corpus on March 7, 2002, claiming that appellate counsel provided ineffective assistance of counsel for failing to raise on direct appeal the failure of the trial court to issue contemporaneous written reasons for departure, a claim which was raised on direct appeal and rejected by this court, and for failing to raise a claim of vindictive sentencing. The defendant’s petition was denied by this court on May 15, 2002. Concepcion v. State, 821 So.2d 1072 (Fla. 3d DCA 2002).

On August 26, 2003, Concepcion filed his second Rule 3.850 motion, which was his fourth attempt to challenge the departure sentence imposed. This motion was denied by the trial court on September 10, 2003, and affirmed by this court on December 3, 2003. Concepcion v. State, 861 So.2d 38 (Fla. 3d DCA 2003).

On March 7, 2005, Concepcion, perhaps realizing that a 3.850 motion for postcon-viction relief would be time-barred and procedurally barred as successive, filed the instant motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), again challenging the departure sentence imposed. The trial court denied the motion on April 25, 2005, and denied rehearing on September 22, 2005.

LEGAL ANALYSIS

We conclude, as did the trial court, that Rule 3.800(a) is an improper vehicle to challenge the validity of a departure sentence. See Wood v. State, 867 So.2d 590, 592 (Fla. 5th DCA 2004)(holding that “the validity vel non of departure reasons given for departure sentences, which do not exceed the statutory maximum, cannot be raised in a motion filed pursuant to rule 3.800(a) or rule 3.850, but must be raised on direct appeal”); Wright v. State, 864 So.2d 1153, 1154 (Fla. 2d DCA 2003)(not-ing that “a challenge to departure reasons is not cognizable in a rule 3.800(a) motion”), decision approved, 911 So.2d 81 (Fla.2005). We, therefore, affirm the trial court’s denial of the instant motion.

The defendant’s attempt to reliti-gate his challenge to his enhanced sentence is additionally barred by the doctrines of the law of the case and collateral estoppel. See State v. McBride, 848 So.2d 287 (Fla.2003)(holding that questions of law which have been decided on appeal become the law of the case, precluding relitigation of the issue in subsequent appeals, unless the application of these doctrines would result in manifest injustice). As we conclude that Concepcion has previously raised this issue and has had the benefit of appellate review regarding the same arguments raised herein, we find that the instant appeal is barred by the law of the case and collateral estoppel. As the issue has already been adversely decided on the merits, the claim is not cognizable pursuant to Rule 3.800(a), and it is time-barred and procedurally barred pursuant to Rule 3.850, we conclude that no manifest injustice would result.

ORDER TO SHOW CAUSE

It is now ten years since the defendant’s convictions and sentences were entered and nine years since the defendant’s convictions and sentences have become final on appeal. Throughout this ten-year period, Concepcion has filed a direct appeal, two motions seeking postconviction relief pursuant to 3.850, a Rule 3.800(a) motion, a petition for review by the Florida Supreme Court, and several motions for rehearing, all attacking the departure sentence imposed. We recognize that incarcerated persons must be provided with a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations, see Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury....”); State v. Spencer, 751 So.2d 47, 49 (Fla.1999)(citing Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998)); Hepburn v. State, 934 So.2d 515 (Fla. 3d DCA 2005). On the other hand, successive motions which have been heard, considered, rejected, and then raised again, are an abuse of process. Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995). We, therefore, order Concepcion to show good cause why he should not be prohibited from filing further pro se pleadings with this court pertaining to case number 95-9428(A).

Affirmed; order to show cause issued.

      . It appears that the trial court treated the instant motion as filed pursuant to Rule 3.850. after perhaps concluding that 3.800(a) was not the proper vehicle to challenge a departure sentence, and thereafter, denied the motion as successive. We conclude that, even if we were to treat the motion as a 3.850 motion for postconviction relief, we would find, as did the trial court, that the instant motion is successive and thus, procedurally barred. See Fla. R.Crim. P. 3.850(f)("Succes-sive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.”); see also Kelly v. State, 907 So.2d 550, 551 (Fla. 3d DCA 2005)(holding that "the filing of successive motions in an attempt to litigate issues that were, or could have been raised in a previous motion is an abuse of the judicial process and may result in adverse consequences'').


text:
    Curtis BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4689.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Curtis Bailey, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, PADOVANO, and THOMAS, JJ., Concur.


text:
    Michael P. DELINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2475.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006).

POLEN, KLEIN and MAY, JJ., concur.


text:
    Fred M. CONE, Jr., individually and as Trustee of the Cone Family Trust, the Celia Cone Testamentary Trust Under Will Dated April 16, 1982, and the Celia M. Cone Irrevocable Trust, Appellant, v. Susan Cone ANDERSON, as beneficiary of the Cone Family Trust, the Celia Cone Testamentary Trust Under Will dated April 16, 1982, and the Celia M. Cone Irrevocable Trust, and as Trustee of the Celia M. Cone Irrevocable Trust, Appellee.
    No. 1D06-327.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2006.
    Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville and Dana G. Bradford II and James R. McCachren, III of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellant.
    Christopher J. Greene and Gregory Williamson of Brant, Abraham, Reiter, McCormick & Greene, P.A., Jacksonville, for Appellee.
   PER CURIAM.

“[T]he lower court’s compliance with the requirements of law when issuing an injunction is a matter within the purview of a reviewing court.” United Farm Workers of Am., AFL-CIO v. Quincy Corp., 681 So.2d 773, 776 (Fla. 1st DCA 1996); see Terex Trailer Corp. v. McIlwain, 579 So.2d 237, 240 (Fla. 1st DCA 1991) (“An appellate court has broad authority to review nonfinal orders concerning injunctive relief, even extending to orders subject to characterization as an order ‘in the nature of a mandatory injunction under Fla. R.App. P. 9.130(a)(3)(B).’ ” (quoting Seigle v. Barry, 422 So.2d 63, 64 (Fla. 4th DCA 1982))).

Florida Rule of Civil Procedure 1.610 governs injunctions. If the language of an order is injunctive in nature, the order must comply with the requirements for the issuance of an injunction, even if the trial court merely intended to preserve the status quo in the order. See Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998). In the present case, the trial court “enjoined” Cone from seeking any and all compensation until “further order of this Court or any other Court of competent jurisdiction.” Clearly, the language of the order is in-junctive in nature. Appellee concedes that the trial court did not comply with rule 1.610. Accordingly, we REVERSE the order and QUASH the injunction.

BENTON and LEWIS, JJ., and SILVERMAN, SCOTT J., Associate Judge, concur.


author: KLEIN, J.

text:
    Shara KAPLAN, Appellant, v. George LARATTE, Fils, Appellee.
    No. 4D05-3586.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Nov. 22, 2006.
    Michele A. Cavallaro of Michele A. Ca-vallaro, P.A., Dania Beach, for appellant.
    Howard W. Poznanski and Yale Manoff, Boca Raton, for appellee.
   KLEIN, J.

Appellant brought this suit for specific performance against the appellee, contending that the appellee had anticipatorily breached two contracts to sell real estate to appellant. The trial court found that both parties were in default and denied specific performance, but we reverse.

The buyer and seller signed the two contracts on May 20, 2004, but later that same day the seller informed the buyer that he would not go through with the sale. He followed the telephone call up with a letter which confirmed it. Although this anticipatory breach was undisputed, and found by the court to be the actual cause of the closing failing to occur, the court concluded that the buyer was also in default and denied relief. The default of the buyer, according to the court, was the failure to place the deposits in escrow on the same day that the contracts were executed.

Once the seller informed the buyer by telephone that he was not going to perform, however, the buyer had an immediate cause of action against the seller because of the anticipatory breach, which relieved her of any duty to tender performance. Hosp. Mortgage Group v. First Prudential Dev. Corp., 411 So.2d 181 (Fla.1982). When the seller announced he was repudiating the contract on the same day he signed it, the buyer still had time to comply with the deposit provisions. Once the seller called, she had no duty to make the deposits as a condition to holding the seller to the contracts. There was accordingly no evidence to support the trial court’s finding that the buyer was not entitled to relief. We therefore reverse and remand for entry of a judgment in favor of the buyer for specific performance.

POLEN and MAY, JJ., concur.


author: RAMIREZ, J.

text:
    UNITED AUTOMOBILE INSURANCE, COMPANY, INC., Petitioner, v. WILLIAM V. TEJEIRO, M.D., P.A., etc., Respondent.
    No. 3D06-1829.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Fowler White Burnett, and June Galko-ski Hoffman; Michael J. Neimand, Miami, for petitioner.

      Ginsberg and Schwartz, and Arnold R. Ginsberg; Jonathan R. Friedland, Miami; Richard Patino, Hialeah, for respondent.
    Before GREEN, RAMIREZ, SUAREZ, JJ.
   RAMIREZ, J.

United Automobile Insurance Company, Inc. petitions this Court for a writ of cer-tiorari seeking to quash an order of the circuit court acting in its appellate capacity which concluded that respondent William V. Tejeiro, M.D., P.A., a medical provider/assignee, was entitled as a matter of law to recover from United the reasonable value of the services it rendered to United’s insured based on a quantum meruit theory, irrespective of United’s pending affirmative defenses. We grant the petition because the circuit court’s order exceeded the relief sought.

As respondent Tejeiro appropriately concedes, Tejeiro did not plead, or otherwise brief below during the appeal from a dismissal order, that it was entitled to recover payment from United for medical services rendered to United’s insured five (5) months after the accident based upon a quasi-contract or quantum meruit theory. On this basis, the circuit court departed from the essential requirements of the law. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000) (relief may be granted if it is determined that the circuit court departed from the essential requirements of law which resulted in a miscarriage of justice).

We therefore grant the petition, quash the order under review, with directions to remand to the county court to reinstate the Complaint and to conduct further proceedings on the merits in accordance with the issues as raised in the pleadings, and to grant the medical provider’s motion for attorney’s fees conditioned upon its ultimate success on the merits with respect to recovery under the policy.

Certiorari granted; order quashed; and remanded with directions.


text:
    Ayman BOUTROS, M.D., Appellant/Cross-Appellee, v. Oscar MIÑOSO, M.D., Appellee/Cross-Appellant.
    Nos. 3D05-1849, 3D05-1773.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing Denied Jan. 16, 2007.

      Hunton & Williams and Ted C. Craig and Gustavo J. Membiela, Miami, for appellant/cross-appellee.
    Max R. Price, Miami, and Dennis Gross-man, for appellee/cross-appellant.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Ayman Boutros, M.D. (“Dr. Boutros”) appeals from a final judgment in which the trial court granted Oscar Miñoso, M.D.’s motion for directed verdict, following the jury’s verdict in favor of Dr. Boutros in the amount of $186,779. Oscar Miñoso, M.D. (“Dr. Miñoso”) cross-appeals from the same order, awarding $8,840.33 to Dr. Boutros on his lease guaranty claim. We reverse the trial court’s order directing a verdict in favor of Dr. Miñoso, affirm on Dr. Miñoso’s cross-appeal, and remand to the trial court with instructions to reinstate the jury’s verdict.

Dr. Boutros and Dr. Miñoso were equal owners and managers of a medical practice known as New Vision, The Eye Center of Miami, LLC (“New Vision”). In September 2000, New Vision borrowed money from Wachovia Bank, N.A. (“Wachovia”) and, in return, New Vision executed a Note and Security Agreement, granting Wachovia a security interest in its accounts, inventory, and equipment. New Vision also entered into a business lease agreement which contained an early termination penalty. Dr. Boutros, Dr. Miñoso, and Dr. Boutros’ wife personally guaranteed the Wachovia loan, while Dr. Boutros and Dr. Miñoso personally guaranteed the lease agreement.

New Vision ceased to operate on November 1, 2001. As part of the winding down of the business, Dr. Miñoso suggested that Dr. Boutros take possession of New Vision’s assets. On November 2, 2001, an attorney representing Dr. Bout-ros sent a letter to Dr. Miñoso’s attorney, which noted that Wachovia had placed a lien on the physical assets of the business and that Wachovia intended to sell those assets. Dr. Boutros took possession of New Vision’s equipment and stored them in a warehouse in Virginia. In order to protect the company’s assets, Dr. Boutros paid the Wachovia loan in full on November 2, 2001, and Wachovia assigned its loan documents, including the Note and Security Agreement, to Dr. Boutros on November 19, 2001. Dr. Boutros also paid the early termination penalty due under the lease agreement and, in turn, the landlord assigned its “right to seek enforcement of [Dr. Miñoso’s] obligation to pay one-half (1/2) of the Termination Amount ($26,-021.06) as required by the Guaranty of Lease.”

In his amended complaint, Dr. Boutros, in his capacity as co-guarantor of thé Wa-chovia loan and business lease agreement, sought from Dr. Mifioso an equitable share of the monies he had paid to satisfy the Wachovia loan and the early termination penalty, asserting the following claims: Count II — equitable contribution; Count V — unjust enrichment; and Count VI— equitable subrogation. In Counts III and IV, Dr. Boutros also filed suit in his capacity as the assignee of the loan and lease agreements, seeking to enforce the written agreements.

Following the presentation of the evidence, the trial court granted Dr. Boutros’ motion for directed verdict on his claim for equitable subrogation. Thereafter, the jury entered its verdict, finding, in part, as follows: 1) Dr. Mifioso had an equitable duty to repay amounts owing under the Wachovia loan and lease agreement; 2) Dr. Mifioso breached his duty to repay the amounts; 3) Dr. Mifioso unjustly benefited from Dr. Boutros’ payments; 4) the damages sustained by Dr. Boutros due to Dr. Mifioso’s conduct was $186,779; 5) Dr. Boutros proved that the laser machine was valued at $95,000; and 6) Dr. Boutros did not prove the value of the items stored in Virginia.

The parties moved for entry of judgment on the verdict. The trial court entered a final judgment, finding that the jury’s verdict was a verdict in favor of the plaintiff. In accordance with the jury’s verdict, the trial court found Dr. Mifioso liable for one-third of the early termination penalty that Dr. Boutros paid to the landlord, and ordered Dr. Mifioso to pay $8,840.33 to Dr. Boutros. The trial court, however, granted Dr. Mifioso’s motion for directed verdict as to Dr. Boutros’ claims regarding the Wachovia loan based on the jury’s finding that Dr. Boutros failed to prove the value of the equipment stored in Virginia. Thus, the trial court reduced Dr. Mifioso’s liability from $186,779 to $8,840.33, finding that he was only liable for one-third of the early termination penalty paid by Dr. Boutros. In reaching this conclusion, the trial court relied on Allen v. Coates, 661 So.2d 879 (Fla. 1st DCA 1995).

In Allen, the court addressed the remedies that are available to a secured party upon the default of a loan under Article 9 of the Uniform Commercial Code (“UCC”), as codified in Chapter 679, Florida Statutes. As explained in Allen, upon default, one of the possible remedies available under Article 9 of the UCC is that the secured party can take possession of the secured collateral without “judicial process,” if he can do so without “breach of the peace,” Allen, 661 So.2d at 883 (citing § 679.503, Fla. Stat. (1995)), and upon taking possession of the collateral, the secured party can “sell, lease or otherwise dispose of any or all of the collateral.” Allen, 661 So.2d at 883 (citing § 679.504(1), Fla. Stat. (1995)). However, the secured party’s disposition or sale of the collateral must be made in a “commercially reasonable” manner. Allen, 661 So.2d at 884. “These rules, in part, seek to protect the debtor, because they help prevent the creditor from acquiring the collateral at less than its true value or unfairly understating its value so as to obtain an excessive deficiency judgment.” Id.

On appeal, Dr. Boutros contends that the trial court erred in granting Dr. Miño-so’s motion for directed verdict. In support of his contention, Dr. Boutros argues that the trial court’s reliance on Allen, which applied Article 9 of the UCC, is misplaced, as Article 9 does not apply to any of his equitable claims, but applies only to his claim brought as assignee of the Wachovia security agreement. We agree.

In the instant case, Dr. Boutros sought monetary relief from Dr. Miñoso, asserting two separate types of claims: 1) equitable claims in his capacity as a co-guarantor of the Wachovia loan and lease agreement, and 2) legal claims as the assignee of the Wachovia loan and the business lease agreement. As previously stated, following the presentation of the evidence, the trial court granted Dr. Boutros’ motion for directed verdict as to his claim for equitable subrogation. Thereafter, the jury found, in part, that Dr. Miñoso had an equitable duty to repay amounts owing under the Wachovia loan and lease agreement, Dr. Miñoso breached his duty to repay the amounts, Dr. Miñoso unjustly benefited from Dr. Boutros’ payments, and the damages sustained by Dr. Boutros due to Dr. Miñoso’s conduct was $186,779. Based on the jury’s verdict and the trial court’s order directing a verdict in favor of Dr. Boutros on his equitable subrogation claim, there is no doubt that Dr. Boutros prevailed on his equitable claims.

In this appeal, Dr. Miñoso attempts to avoid the jury’s verdict in favor of Dr. Boutros on his equitable claims by arguing that Article 9 of the UCC bars Dr. Boutros from recovering on his equitable claims. Specifically, Dr. Miñoso argues that Dr. Boutros failed to dispose of the equipment in a “commercially reasonable” manner, as required by section 679.504(3), Florida Statutes (2000), and therefore, he is not entitled to judgment in his favor.

In pursuing his action against Dr. Miño-so, Dr. Boutros had the option of pursuing both equitable and legal claims. As his equitable claims were filed in his capacity as a co-guarantor, not as the assignee of the security agreement or as a “secured party,” Article 9 of the UCC, which pertains to “secured transactions,” is not applicable to his equitable claims. Moreover, section 679.504, Florida Statutes (2000), the provision that Dr. Miñoso relies upon, clearly indicates that it applies to a “secured party.”

Our finding is supported by the Second District’s decision in Siltzer v. North First Bank, 445 So.2d 649 (Fla. 2d DCA 1984). In Siltzer, Mr. Siltzer, the president of a company, borrowed money from a bank, and in return, he executed an “Installment Loan Disclosure Statement and Security Agreement,” granting a security interest in the company’s assets, including, its “inventory, equipment, furniture, ... [and] a second mortgage on residence....” Id. at 651. The bank sold the company’s inventory at a private sale, and thereafter, the bank notified Mr. Siltzer that it was applying the proceeds of the private sale to the loan balance. In his declaratory action, and on appeal, Mr. Siltzer argued that because the bank failed to follow the notice requirements set forth in chapter 679, Florida Statutes, when selling the company’s inventory, he was not required to make any additional payments on the second mortgage referenced in the security agreement. The Second District found that the bank’s

failure to comply with the requirements of the U.C.C. by failing to notice appellants of the inventory sale only affects personalty and does not affect the rights of the mortgagee. The second mortgage as collateral under the note is not governed by the U.C.C. principles, but by general equitable principles governing foreclosure of mortgages.

Siltzer, 445 So.2d at 652 (citation and footnote omitted). Thus, the court in Siltzer recognized that a defense based on the UCC will not affect independent equitable claims, even though the equitable claims and the secured claims stem from the same transaction. Id.; see also In re Eastern Marine, Inc., 104 B.R. 421, 423 (Bkrtcy.N.D.Fla.1989)(“Moreover, an equitable subrogation claim or right is not a security interest under the Uniform Commercial Code. Thus, compliance with the requirements of Article 9 is unnecessary to preserve a dominant right.”). Therefore, as the UCC does not apply to Dr. Boutros’ equitable claims, we reverse the portion of the final judgment granting Dr. Miñoso’s motion for directed verdict, and remand with directions to reinstate the jury’s verdict in favor of Dr. Boutros in the amount of $186,779.

We decline to address the remaining issues raised by the parties, including Dr. Miñoso’s cross-appeal, as we conclude that they are either without merit or need not be resolved based upon our findings herein.

Affirmed, in part, reversed, in part, and remanded for entry of a final judgment in accordance with the jury’s verdict.

      . Although only Dr. Boutros and Dr. Mifioso executed personal guaranties for the lease agreement, the Operating Agreement that governs the parties’ relationship with respect to New Vision provides that Dr. Mifioso "personally guaranties one-third of all obligations of [New Vision].”

      . Although not relevant to this appeal, Count I of the amended complaint sought a judicial dissolution of New Vision.

      . As we have reinstated the jury’s verdict based on our conclusion that the UCC does not apply to Dr. Boutros’ equitable claims, we do not need to address whether the UCC applies to Dr. Boutros’ legal claims brought as the “assignee” of the Wachovia security agreement. In addition, we do not need to address additional issues raised by the parties, such as whether the "UCC presumption” is an affirmative defense; if it is an affirmative defense, did Dr. Miñoso properly plea it in his affirmative defenses; if Dr. Miñoso failed to properly plea the "UCC presumption” in his affirmative defenses, was it tried by the implied consent of Dr. Boutros; and whether Dr. Miñoso waived the "UCC presumption” when he waived his "set-off” defense.


author: NORTHCUTT, Judge.

text:
    Nashon SHANNON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3406.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2006.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

In this appeal from the judgments and sentences in three circuit court cases, Na-shon Shannon argues, and the State concedes, that there is an error on the face of the scoresheet affecting the sentences in circuit court case nos. 03-CF-3990 and 04-CF-1175. Accordingly, we reverse the sentences in these two eases and remand for resentencing with a corrected score-sheet. In all other respects, we affirm.

Affirmed in part; reversed in part; remanded.

FULMER, C.J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: MAYE, VIVIAN C., Associate Judge.

text:
    Darrel KUSICK, Appellant, v. Rondie KUSICK, Appellee.
    Nos. 2D05-1270, 2D05-3265.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 3, 2007.
    Andrew J. Rodnite, Jr. of Reeser, Rod-nite, Outten & Zdravko, P.A., Palm Harbor, for Appellant.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellee.
   MAYE, VIVIAN C., Associate Judge.

In this consolidated appeal, Darrel Ku-sick challenges the trial court’s order denying his supplemental petition for modification of alimony and granting Rondie Kusick’s motion for order of contempt and counter-petition for attorney’s fees and costs. Because Mr. Kusick failed to show a change in circumstances sufficient to warrant a modification of alimony, we affirm the trial court’s denial of his petition to reduce alimony. We also affirm the trial court’s order granting the former wife’s motion for order of contempt without comment. However, because the trial court’s order awarding attorney’s fees does not contain specific findings as to the reasonableness of the hourly rate or hours expended on the case, we reverse as to the trial court’s award of attorney’s fees and remand for further proceedings.

Background

The thirty-year marriage of Darrel and Rondie Kusick ended in 1995. At the time of dissolution of this marriage, Mr. Kusick earned about $90,000 per year. For the time period pertinent to our analysis, the settlement agreement mandated alimony payments to Ms. Kusick of $2000 per month.

Within a year of the divorce, Mr. Ku-sick’s position with his employer was eliminated and he was involuntarily terminated. For the next eight or nine years, he held several positions with different companies. Despite short periods of unemployment, Mr. Kusick was able to maintain an average income of over $90,000 per year until' 2002. In 2003, his total income was $67,222.38. In November 2003, Mr. Ku-sick once again lost his job, and he remained unemployed until April 2004.

In March 2004, while still unemployed, Mr. Kusick filed a supplemental petition (“petition”) for modification of alimony. Before the hearing on his petition was held, Mr. Kusick secured a position in technical sales with Computer Associates. Following a hearing on January 26, 2005, the trial court denied the petition, granted Ms. Kusick’s motion for an order of contempt on past due payments of $5200, and granted Ms. Kusick’s counter-petition for attorney’s fees and costs.

Reduction of Alimony

“In order to justify a modification of alimony, the moving party must show: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.” Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000). In this case, Mr. Kusick relied solely on his financial affidavit, prepared seven months prior to the hearing, and a letter of employment from Computer Associates offering him a base salary of $35,000 plus a $55,000 “incentive.” Mr. Kusick’s testimony during the January 26, 2005, hearing added no useful information and no evidence was presented such as a W-2 form or pay stubs to establish his actual, final 2004 income. Although the record on appeal contains evidence that Mr. Kusick’s income may have indeed decreased during 2004 and the first part of 2005, this information was not part of the trial court’s record at the January 26, 2005, hearing. We do not require our trial courts to be clairvoyant. The trial court’s findings were properly based on the information available to it at the time of the hearing.

Mr. Kusick alleges that even if the trial court did not err by refusing to grant a permanent reduction in alimony, it nevertheless erred by failing to consider a temporary reduction. However, the fact that Mr. Kusick failed to prove a substantial change in circumstances renders the issue moot.

Because Mr. Kusick failed to provide any evidence of his 2004 income during the hearing on his petition, we conclude that the trial court did not abuse its discretion in finding that Mr. Kusick failed to prove a substantial change in circumstances warranting a reduction in alimony.

Attorney’s Fees

On May 16, 2005, the trial court held a hearing on Ms. Kusick’s motion for attorney’s fees. Mr. Kusick and Ms. Kusick testified in detail as to their current financial resources and circumstances, and documents supporting their financial condition were entered into evidence. Ms. Kusick’s attorney entered her invoice-to-date into evidence and testified as to the services rendered and as to her hourly fee. Although the balance due on the invoice submitted to the trial court was $7247.14, after a billing discrepancy was resolved the total amount due was determined to be $4800.

The trial court’s final order awarding attorney’s fees must contain specific findings as to the number of hours reasonably expended and make a determination as to the reasonable hourly rate being charged. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985); Keeley v. Keeley, 899 So.2d 387, 389 (Fla. 2d DCA 2005). If the written order does not contain the required findings, the appellate court can look to the record. Sutton v. LeBeau, 912 So.2d 327, 328 (Fla. 2d DCA 2005). In the present case, the trial court failed to make specific oral or written findings as to the reasonableness of the hourly fee or the hours expended.

We therefore reverse the order on fees and costs and remand with directions that the trial court enter an order containing specific findings as to the reasonableness of the hourly rate(s) charged and the reasonableness of the hours expended. An evidentiary hearing is not required unless the trial court finds that the record contains insufficient information to accomplish this task.

Affirmed in part, reversed in part, and remanded with directions.

STRINGER and DAVIS, JJ., Concur.

      . However, the trial court's findings regarding the current financial condition of the parties are supported by competent, substantial evidence. See Beck v. Beck, 852 So.2d 934, 938 (Fla. 2d DCA 2003).


author: WHATLEY, Judge.

text:
    Patricia Hayes VINCENT, as mother and legal guardian of James Victor Flynn, Appellant, v. C.R. BARD, INC., a foreign corporation; Bimeco, Inc., a Florida corporation; Baxter Healthcare Corporation, a foreign corporation, Appellees.
    No. 2D05-1870.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 3, 2007.

      Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Bill Wagner of Wagner, Vaughan & McLaughlin, P.A., Tampa, for Appellant.
    Charles D. Bavol and William J. Judge, Jr. of Bavol Judge, P.A. Tampa, for Appel-lee C.R. Bard, Inc. and Bard Medsystems Division.
    Jay B. Green and Jonathan M. Matzner of Green, Ackerman & Frost, P.A., Boca Raton, for Appellee, Bimeco, Inc.
    Maja C. Eaton and James R.M. Hem-mings of Sidley Austin, LLP, Chicago, IL, Edward W. Gerecke and E. Kelly Bittick, Jr. of Carlton Fields, P.A., Tampa, and Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellee Baxter Healthcare.
   WHATLEY, Judge.

Patricia Hayes Vincent, as mother and legal guardian of James Victor Flynn, appeals the final summary judgment entered in favor of C.R. Bard, Inc., Baxter Healthcare Corp., and Bimeeo, Inc. in her action against them in which she alleged claims for strict liability and negligence based on negligent design. This case presents a question of first impression in Florida whether the designer of a product may be liable in negligence to a foreseeable user of its product although there are intervening manufacturers and distributors. We conclude that the designer may be so liable.

Vincent’s son was placed on a patient controlled analgesia (PCA) pump after undergoing surgery at Lee Memorial Hospital in 1999. The pump allegedly malfunctioned, delivering an overdose of morphine to Flynn that left him totally and permanently disabled. The pump was set aside after Flynn was discovered in distress, but the amount of morphine remaining in the pump was not documented and the pump permanently disappeared while in the' custody of the hospital. It was because Vincent was unable to identify the pump used by her son that the trial court entered final summary judgment for all of the defendants.

In her amended complaint, Vincent alleged that Bard and Baxter were the manufacturers of the pump used by Flynn and that Bimeeo was the distributor. Bard and Baxter were both alleged to be the manufacturers because in 1993, Baxter purchased the division of Bard that designed and manufactured PCA pumps. It is undisputed for summary judgment purposes that all pumps at Lee Memorial Hospital at the time of the subject incident were of the type designed by Bard, although they may have been manufactured by either Bard or Baxter. While the absence of the pump supports the entry of summary judgment in favor of Baxter and Bimeeo, we conclude that at least at this stage of the proceedings, that fact alone does not support entry of summary judgment in favor of Bard with regard to Vincent’s claim for negligent design.

In order to state a cause of action for negligence, a plaintiff must establish that the defendant owed the plaintiff a duty, the defendant breached that duty, the breach was the proximate cause of the plaintiffs injuries, and the plaintiff suffered damages as a result of those injuries. See Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859 (Fla. 5th DCA 1996) (citing Simon v. Tampa Elec. Co., 202 So.2d 209 (Fla. 2d DCA 1967)). We have found no Florida cases directly holding that a designer of a product who did not manufacture, sell, distribute or have any other involvement in getting the product to the user may be liable in negligence for the defective design of the product. However, with regard to a manufacturer, “[tjhere is no doubt whatever that the manufacturer is under a duty to use reasonable care to design a product that is reasonably safe for its intended use and for other uses which are foreseeably probable.” Light v. Weldarc Co., 569 So.2d 1302, 1303 (Fla. 5th DCA 1990) (quoting Prosser, The Law of Torts 644-45 (4th ed. 1978)). If a manufacturer who is also the designer of a product is under a duty to foreseeable users to exercise reasonable care in the design of its product, we see no sound reason why a designer of a product who is not the manufacturer should not owe that same duty to users of its product. See Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 590-91 (Tex.1986) (“A manufacturer has long been held to have a duty to exercise ordinary care in the design of a product. A designer who is not also the manufacturer should share the same duty to develop a safe design.”) (citation omitted); see also Ridley v. Safety Kleen Corp., 693 So.2d 934, 938-39 (Fla.1996) (“[W]e imposed a duty on automobile manufacturers to use reasonable care in designing and manufacturing automobiles to eliminate the risk of foreseeable injury from such impacts.”) (citing Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976)); Stazenski v. Tennant Co., 617 So.2d 344 (Fla. 1st DCA 1993) (“Where a product is defective ... and that defect rises to the level of a dangerous condition, the manufacturer or designer has created a zone of risk to all parties who may come in contact with the product.”) (emphasis added); Foster v. Ford Motor Co., 616 F.2d 1304 (5th Cir.1980) (holding that jury question existed as to whether welder hired to design and build hayfork to be attached to front-end loader exercised reasonable care in adopting safe design).

We conclude that a designer who defectively designs a product should not be shielded from liability for negligence because of the mere fact that there was an intervening manufacturer or distributor. See Ford Motor Co. v. Hill, 404 So.2d 1049, 1052 (Fla.1981) (“It would be a strange result if we said that a manufacturer who carefully designs a product and thereafter negligently produces it should be held liable, but a manufacturer who negligently designs the product and thereafter carefully produces it pursuant to the negligent design should be relieved of liability.”) (quoting Hancock v. Paccar, Inc., 204 Neb. 468, 475, 283 N.W.2d 25, 33 (1979)).

Flynn, as a surgical patient, was clearly a foreseeable user of the Bard PCA pump. Thus, Bard had a duty to Flynn to exercise reasonable care in the design of the pump. Vincent presented the unopposed affidavit of a biomedical engineer who stated that it was his opinion that the overdose occurred because of intermittent over-delivery due to electromagnetic interference that was a result of an error in the design of the pump. On the face of this record, the absence of the actual pump does not overcome this theory. Thus, a genuine issue of material fact remains whether Bard breached its duty to Flynn. Accordingly, it was error for the trial court to enter summary judgment in favor of Bard on Vincent’s claim for negligent design of the PCA pump.

We reject Vincent’s argument that this court should adopt the alternative theory of liability set forth in section 433B(3) of the Second and Third Restatements of Torts with regard to Bard and Baxter. Aside from the fact that no Florida case adopts that theory, it does not apply to the facts of this ease. The supreme court explained section 433B(3) as follows:

This theory of alternative liability applies when the actions of two or more tortfeasors combine to create an injury and it is impossible for the injured party to show which tortfeasor actually caused the injury.... The theory is applicable, for example, where two tortfeasors fire weapons in the direction of the victim and the victim is injured by one bullet.

Celotex Corp. v. Copeland, 471 So.2d 533, 536-37 (Fla.1985). Assuming it is “impossible” for purposes of section 433B(3) for Vincent to show whether the pump used by her son was manufactured by Bard or Baxter, it is undisputed that only one pump was used and it was designed by Bard. Therefore, the actions of the two manufacturers did not combine to cause her son’s injuries, and section 433B(3) does not contain a theory of liability applicable to the facts of this case.

Accordingly, we affirm the final summary judgment in all respects except as to the negligent design cause of action against Bard and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, J„ and CURRY, CHARLES B., Associate Judge, Concur.


author: VILLANTI, Judge.

text:
    Marlon LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3025.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
   VILLANTI, Judge.

Marlon Lawson appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order without prejudice to Lawson’s right to file a timely, facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. See Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003).

Affirmed.

WALLACE and LaROSE, JJ., concur.


author: STEVENSON, C.J.

text:
    James A. BONFIGLIO, Appellant, v. BANKER’S TRUST COMPANY OF CALIFORNIA, Appellee.
    Nos. 4D05-2607, 4D05-2846.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 26, 2007.
    Marshall J. Osofsky of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Louis M. Silber of Silber Valente & Davis, West Palm Beach, and James A. Bonfiglio, Boynton Beach, for appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee Beal Bank, S.S.B.
   STEVENSON, C.J.

In this mortgage foreclosure case, the jury awarded the lender $128,190.44 on its foreclosure claim and the borrower some $48,734.86 in damages for his breach of contract counterclaim, alleging the lender failed to properly post his payments. The trial court determined that the lender was the prevailing party in the litigation and awarded it attorney’s fees. The borrower has appealed, raising a myriad of issues. We affirm in all respects, save the amount of the attorney’s fee award and write to address only one issue — the borrower’s claim that the trial court erred in awarding the lender attorney’s fees incurred prior to the time it paid for the documentary stamps and intangible taxes.

The foreclosure action in this case was initiated in June 1993. The parties litigated for a couple of years and, on August 24, 1996, entered into a settlement modifying the terms of the original 1989 note and mortgage. Under the modified agreement, the borrower agreed to immediately pay the lender $17,189. Past due interest was capitalized, raising the principal balance from $146,500 to $165,000. Ultimately, the lender sought foreclosure of this modified note and mortgage. At trial, the borrower moved for a directed verdict, arguing, for the first time, that the lender had failed to present any evidence that the documentary stamps and intangible taxes on the 1995 modification agreement had been paid and that sections 199.282 and 201.08, Florida Statutes, precluded enforcement of the note and mortgage absent the payment of these items. The trial court reserved ruling on the matter. The lender paid the documentary stamps and intangible taxes on October 22, 2004, during the pendency of the borrower’s post-trial, renewed motion for directed verdict. The trial court denied the borrower’s motion and, ultimately, entered a judgment in the lender’s favor that awarded the lender the attorney’s fees it had incurred throughout the litigation.

The borrower argues the lender is not entitled to any attorney’s fees it incurred during the time the documentary stamps and intangible taxes on the 1995 modification agreement remained unpaid, relying upon Silber v. Cn’R Industries of Jacksonville, Inc., 526 So.2d 974 (Fla. 1st DCA 1988). There, a dispute arose during the construction of a hotel. The dispute was resolved through a settlement agreement that required the owners of the property to pay a subcontractor $45,000 upon execution and to execute a $50,000 note. When the owners failed to pay, the subcontractor brought suit for enforcement of the note. In their affirmative defenses, the owners raised the fact that no documentary stamps were affixed to the note and filed a counterclaim for damages. During the trial, the note, sans documentary tax stamps, was introduced into evidence. After the subcontractor rested its case, the owners moved to dismiss the action, arguing the note was unenforceable as a consequence of section 201.08. The trial court allowed the subcontractor to remove the note from evidence, pay the documentary tax, and place the note into evidence anew. The court then entered judgment in favor of the subcontractor and awarded it attorney’s fees.

On appeal, the owners argued, among other things, that the trial court had erred in allowing the subcontractor to re-open its case, pay the tax, and introduce the note with affixed documentary stamps. While recognizing the discretion afforded trial judges in this area, the appellate court found the lower court had indeed abused its discretion in permitting the subcontractor to re-open the case and “change existing facts.” 526 So.2d at 978. The court concluded, though, that the only prejudice suffered by the owners was the attorney’s fee award. It thus allowed the verdict to stand, provided the subcontractor agreed to the limitation of its fees to those incurred after the documentary stamps had been paid. Id. at 979.

We believe that, here, as in Silber, the lender should not be permitted to collect those attorney’s fees incurred prior to the time it paid the documentary stamps and intangible taxes on the 1995 modification agreement. Thus, while the lender is entitled to those fees it incurred from the commencement of the litigation up until the August 24, 1995 modification agreement and to those fees it incurred after the October 22, 2004 payment of the documentary stamps and intangible taxes on the 1995 modification agreement, it is not entitled to those fees it incurred during the interim period. In so holding, we have considered this court’s subsequent decision in Rappoport v. Hollywood Beach Resort Condominium Ass’n, 905 So.2d 1024 (Fla. 4th DCA 2005), but find the “gotcha” tactics employed there are not present here.

Accordingly, we reverse the prevailing party attorney’s fee award in favor of the lender and remand for recalculation of the fee award in a manner consistent with this opinion. We have considered the other issues raised on appeal, but find no error.

Affirmed in Part; Reversed in Part; and Remanded.

STONE, J., and BATEMAN, III, THOMAS HOWELL, Associate Judge, concur.


author: EVANDER, J.

text:
    Greg J. WARDELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-812.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Rehearing Denied Jan. 3, 2007.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    William J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas and Ka-chergus, P.A., Jacksonville, for Appellant.
    Greg J. Wardell, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant, Greg Wardell, challenges his convictions for trafficking in oxycotin and violation of probation. His primary argument on appeal is that the trial court was without jurisdiction to convict and sentence him where he had previously been adjudicated incompetent by another circuit court. We disagree and affirm appellant’s convictions.

Appellant was convicted of racketeering in St. Johns County in 1992. He was sentenced to four and one-half years in the Department of Corrections followed by twenty years probation. On April 22, 2002, an information was filed against appellant in Hillsborough County for burglary and related offenses. On May 15, 2002, an affidavit of violation of probation in the racketeering case was filed in St. Johns County. On June 7, 2002, appellant was charged with one count of trafficking in oxycotin in St. Johns County.

The Hillsborough County case initially proceeded at a quicker pace than the cases in St. Johns County. An issue was raised in the Hillsborough County case as to appellant’s mental competency to stand trial. The circuit court judge presiding over the Hillsborough County case, the Honorable Denise Pomponio, appointed two doctors to evaluate appellant. After evaluating appellant, both doctors concluded appellant was mentally incompetent to proceed, but that his competency was restorable. On March 30, 2003, Judge Pomponio entered an order committing appellant to the custody of the Department of Children and Families (DCF). Judge Pomponio specifically stated in the order:

This Court retains jurisdiction in this cause, and the (appellant) shall not be discharged or released from the commitment within the Department of Children of Families without further order of this court.

Appellant was admitted to the South Florida Evaluation and Treatment Center on April 3, 2003.

On April 23, 2003, the state filed a motion for mental health examination in the St. Johns County cases. One week later, the circuit court judge in St. Johns County appointed two experts to conduct a competency evaluation of appellant. The trial judge also entered an order to transport appellant to St. Johns County. In his order, the circuit judge in St. Johns County recited that he had been advised by DCF, through a state hospital administrator, that appellant no longer met the criteria for continued commitment.

Although the record suggests Judge Pomponio was subsequently made aware of the order to transport issued from St. Johns County, the record is devoid of any evidence that the state sought to obtain an order from Judge Pomponio authorizing appellant’s release from DCF’s custody.

Appellant was subsequently found competent to proceed in the St. Johns County cases. He was ultimately convicted and sentenced on both the trafficking in oxyco-tin case and his violation of probation charges. This appeal followed.

Section 916.16(1), Florida Statutes (2001), provides:

The committing court shall retain jurisdiction in the case of any defendant hospitalized as incompetent to proceed or because of a finding of not guilty by reason of insanity pursuant to this chapter. No such defendant may be released except by order of the committing court. The administrative hearing examiner shall have no jurisdiction to determine issues of continuing hospitalization or release of any defendant admitted pursuant to this chapter.

On appeal, appellant contends the trial court did not have jurisdiction because the state failed to obtain an order from the committing court (Judge Pompo-nio) authorizing the release of appellant from the custody of DCF. Although this issue was never raised with the trial court, appellant correctly notes a court’s lack of subject matter jurisdiction can be raised at any time. J.D. v. State, 849 So.2d 458 (Fla. 4th DCA 2003).

While we agree the state failed to comply with section 916.16(1), we reject appellant’s argument that the trial court lacked jurisdiction. Subject matter jurisdiction refers to the authority of the court to hear the class of cases to which the particular controversy belongs. Dep’t of Revenue v. Pelsey, 779 So.2d 629, 631 (Fla. 1st DCA 2001). We find section 916.16(1) did not divest the trial court of its authority to preside over a felony case arising in St. Johns County. The statute does not expressly state the committing court’s jurisdiction over a defendant found incompetent to proceed is exclusive. In Florida, circuit courts are tribunals of plenary jurisdiction having authority over any matter not expressly denied them by the Constitution or applicable statutes. Dep’t of Rev. v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994). Furthermore, the manner by which a criminal defendant is brought before a court, even if improper, does not divest a court of subject matter jurisdiction. See Remeta v. Dugger, 622 So.2d 452 (Fla.1993); Jones v. State, 386 So.2d 804 (Fla. 1st DCA 1980); Hunter v. State, 174 So.2d 415 (Fla. 3d DCA 1965).

Because of the lack of an objection, we do not need to determine the proper remedy for the state’s failure to comply with the statute’s requirement to obtain an appropriate release order from the committing court. We would note the failure of the state to comply with the statute did create the potential for a procedural quagmire. For example, should appellant have been kept in the state hospital or in the local jail while awaiting trial on his St. Johns County cases? Should appellant have been transported to the Department of Corrections or have been returned to DCF’s custody upon the conclusion of his sentencing hearing? While it is unnecessary to resolve these questions today, we remind the state of its obligation to comply with the law.

We find the other issue raised on appeal by Warded to be without merit. Walls v. State, 926 So.2d 1156 (Fla.2006).

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . During oral arguments, both parties advised this court that the state had entered a nolle prosequi in the Hillsborough County case. Therefore, the conflict between the order of commitment entered in Hillsborough County and the sentencing order entered in St. Johns County no longer existed.


author: STRINGER, Judge.

text:
    Earl SMITH, Appellant, v. CITY OF FORT MYERS and Lee County, Appellees.
    No. 2D06-1693.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.

      Steven Carta of Simpson, Henderson, Carta & Randolph, Fort Myers, for Appellant.
    Harold N. Hume, Jr., and J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellee City of Fort Myers.
    David M. Owen, Lee County Attorney, and Jack N. Peterson, Assistant County Attorney, Fort Myers, for Appellee Lee County.
   STRINGER, Judge.

Earl Smith seeks review of an order granting final summary judgment in favor of the City of Fort Myers and Lee County (together “Appellees”) in Smith’s declaratory judgment action. We conclude that Smith lacked standing to bring the declaratory judgment action and affirm.

Smith filed a complaint in the circuit court seeking a judicial declaration of the validity of the City’s transfer to the County of its ownership of City of Palms Park (“the Park”), which serves as the spring training grounds for the Boston Red Sox. Specifically, Smith alleged that the City violated the notice requirements of the city code and section 163.380, Florida Statutes (2003).

Appellees responded to the complaint by filing motions to dismiss which argued that the complaint failed to state a cause of action and did not allege any basis for standing. The circuit court subsequently granted the motions, ruling that the amended complaint failed to state a cause of action. The court rejected Appellees’ standing argument by finding that Smith would have had standing to bring the claim if the complaint had stated a cause of action.

On appeal of that order, this court reversed and remanded the case for further proceedings. See Smith v. City of Fort Myers, 898 So.2d 1177, 1178 (Fla. 2d DCA 2005). This court did not address the circuit court’s finding that Smith had standing to bring the action, although the City raised the issue on appeal as an alternative basis for affirmance or as a “Tipsy Coachman” argument, see Robertson v. State, 829 So.2d 901, 906 (Fla.2002).

On remand, the parties entered into a stipulation regarding the undisputed facts, and Smith and the City filed motions for summary judgment based on those stipulated facts. The court granted the City’s summary judgment motion and entered a final summary judgment in favor of Appel-lees. Smith appealed, and the City reasserts its standing argument as an alternative basis for affirmance. The City argues that Smith lacks standing to challenge the transfer of the Park because Smith has not established a special injury apart from his interest in the transfer of the Park as a taxpayer. Smith raises two arguments in response to the City’s standing argument.

First, Smith argues that the issue of his standing has already been decided by the circuit court and affirmed on appeal. Thus, according to Smith, the City is barred from raising the issue by the doctrine of the law of the case. “The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). The doctrine of law of the case thus applies only to those issues “actually decided on appeal,” whether explicitly or implicitly. Id. at 105-06.

Contrary to Smith’s argument, this court did not decide the issue of standing in the first appeal. The issue was not raised as a basis for reversal by Smith as the appellant but was raised as an alternative basis for affirmance by the City as an appellee. This court’s reversal on an entirely different basis does not mean that it considered the City’s “Tipsy Coachman” argument. See Warren v. Shands Teaching Hasp. & Clinics, Inc., 700 So.2d 702, 704 (Fla. 1st DCA 1997) (holding that an alternative ground for affirmance was not necessarily decided and thus did not trigger the doctrine of law of the case). Because the issue of standing was not actually decided on appeal, the City is not barred from raising it by the doctrine of law of the case.

Smith’s second argument is that he is not required to establish a special injury in order to challenge the legality of the transfer of the Park. Generally, a private citizen is precluded from filing a taxpayer complaint to challenge government action unless the private citizen alleges and proves a “special injury,” which is an injury that is different from that of the general public. N. Broward Hosp. Dist. v. Forties, 476 So.2d 154 (Fla.1985); Rick-man v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). This has been termed the “Rick-man rule” or “special injury rule.”

The supreme court has recognized that the special injury rule is not absolute. First of all, if there is legislation expressly providing for standing, the special injury rule does not apply. See, e.g., Fla. Wildlife Fed’n v. State Dep’t of Envtl. Regulation, 390 So.2d 64, 67 (Fla.1980) (holding that a showing of special injury was not required to bring an action pursuant to the EPA). In addition, the supreme court created an exception to the special injury rule for constitutional challenges to government action alleging a violation of the legislature’s taxing and spending power. Dep’t of Admin, v. Home, 269 So.2d 659, 663 (Fla.1972).

Smith acknowledges the continued validity of the special injury rule to taxpayer suits. He has not alleged any special injury in this case, and he does not argue that there is legislative authority for standing or that the case somehow involves a constitutional challenge to government action alleging a violation of the legislature’s taxing and spending power. Instead, Smith argues that under Renard v. Dade County, 261 So.2d 832, 835 (Fla.1972), he has standing because he is challenging the legality of the City’s procedures used to transfer its ownership of the Park to the County. We conclude that Smith’s reliance on Renard is misplaced because Re-nard applies only in the context of zoning suits.

Although originally applied in taxpayer suits, the special injury rule was extended to zoning suits in Boucher v. Novotny, 102 So.2d 132 (Fla.1958). In Renard, the supreme court limited the application of the special injury rule in zoning suits by holding that “[t]he Boucher rule was not intended to be applied to zoning matters other than suits by individuals for zoning violations.” 261 So.2d at 835. The Renard court thus concluded that an attack on a zoning ordinance enacted without proper notice could be brought by “[a]ny affected resident, citizen or property owner of the governmental unit in question” as previously set forth by supreme court precedent. Id. at 838. There is no indication in Renard that its exception applies in any context other than zoning suits.

In fact, the supreme court has twice mentioned the Renard exception as applying in the narrow context of zoning decisions. See Citizens Growth Mgmt. Coalition of W. Palm Beach, Inc. v. City of W. Palm Beach, Inc., 450 So.2d 204, 206 (Fla.1984) (“The question of standing to challenge zoning decisions was comprehensively explained in Renard v. Dade County.”)-, Fla. Wildlife Fed’n, 390 So.2d at 67 (noting that the supreme court has carved out an exception to the special injury rule in zoning suits and citing Renard for this proposition). Furthermore, in a case issued a decade after Renard, the supreme court expressly reaffirmed the validity of the special injury rule and noted that there is only one exception to this rule in the context of taxpayer suits, which is the exception for constitutional challenges set forth in Home. Fornes, 476 So.2d at 156 (“This Court has refused to depart from the special injury rule or expand our exception established in Horne.”).

Smith cited the following cases in support of his argument for the extension of Renard: City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3d DCA 1983); Upper Keys Citizens Ass’n v. Wedel, 341 So.2d 1062 (Fla. 3d DCA 1977); Godheim v. City of Tampa, 426 So.2d 1084 (Fla. 2d DCA 1983); and City of Sarasota v. Windom, 736 So.2d 741 (Fla. 2d DCA 1999). None of these cases compels such a reading of Renard.

Save Brickell Avenue and Upper Keys Citizens Ass’n are not persuasive because in those cases the Third District applied the Renard exception to challenges in zoning suits. Save Brickell Ave., 426 So.2d at 1103; Upper Keys Citizens Ass’n, 341 So.2d at 1064.

In Godheim, this court declined to apply the special injury rule to determine the standing of a taxpayer to challenge the award of a governmental contract based upon a violation of the notice requirements of the Sunshine Law. 426 So.2d at 1087-88. However, this court did not apply the special injury rule because standing was expressly conferred by the Sunshine Law. Id. at 1088. Thus, Godheim is not controlling because an exception to the special injury rule for taxpayer suits applied. Furthermore, this court did not cite Re-nard anywhere in its opinion.

The final case cited by Smith is Windom, a taxpayer suit in which the plaintiffs cited Renard in support of their argument that they had standing to seek permanent injunctions enjoining the City of Sarasota from installing speed humps or tables within the City and requiring the removal of speed humps or tables that had already been installed. 736 So.2d at 743. This court recognized the validity of the special injury rule and rejected the plaintiffs’ suggestion that Renard applied, describing the exception as “generally dealing with a procedural challenge, such as a lack of notice, to the local government’s legislation.” Id. Smith’s interpretation of this language as an extension of Renard to taxpayer suits is misplaced. Because this court did not apply the Renard exception in the taxpayer suit, the language is, at best, dicta.

Based on the above analysis, we can discern no legal basis to extend the Re-nard exception beyond zoning matters to all matters in which the legality of a procedural enactment is at issue. Therefore, the special injury rule governs standing in this case. Because Smith failed to establish such a special injury, he lacked standing to file the declaratory judgment action. Accordingly, we affirm the circuit court’s order granting final summary judgment in favor of Appellees.

Affirmed.

CASANUEVA and LaROSE, JJ., Concur.