author: STONE, J.

text:
    Michael J. CARDILLO, Appellant, v. QUALSURE INSURANCE CORPORATION and James F. Simon, Appellees.
    No. 4D06-4422.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Richard A. Sherman, Sr. of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, for appellant.
    Anna D. Torres and Nancy I. Stein-McCarthy of Powers, McNalis, Torres &
      Teebagy, West Palm Beach, for Appellee-Qualsure Insurance Corporation.
   ON MOTION FOR REHEARING

STONE, J.

We deny Cardillo’s motion for rehearing, but withdraw our opinion of November 21, 2007 and substitute the following:

Affirmed. The trial court correctly concluded that Cardillo’s motion for attorney’s fees was untimely. The trial court’s December 1st order was a declaratory judgment that entitled Cardillo to attorney’s fees and triggered the thirty-day time limitation in rule 1.525 for serving a motion for attorney’s fees. Cardillo asserts that the order was a non-final order and, therefore, did not commence the time limitation.

Simon initially sued Cardillo for personal injury; Cardillo then filed a liability claim with Qualsure. Qualsure, contesting coverage and its duty to defend, sought a declaratory judgment, pursuant to section 86.011, Florida Statutes.

On December 1, 2004, the trial court entered the disputed order titled “Findings of Fact — Conclusions of Law-And Order Regarding Trial.” In its order, the trial court stated that “[c]ertain claims of Cardillo remain pending [in the underlying litigation], but based upon the Court’s findings of fact and conclusions of law, those issues are no longer outcome determinative of the declaratory decree action.” In paragraph four of the order, the court determined that coverage exists under the policy. Next, the order announced that “[a]ll remaining issues of liability and damages” proceed to a jury trial set the following month; “[a]ll stays previously entered ... are lifted and all counsel advised to be fully ready to commence trial.” The order then simply concluded that it is “DONE AND ORDERED.”

Qualsure appealed this order, and Simon filed a motion to dismiss that appeal, contending the order on appeal was not a final order. This court denied Simon’s motion to dismiss.

Subsequently, upon request, the trial court entered a “judgment,” which stated:

THIS ACTION was tried before the Court, and on the evidence presented.
IT IS ADJUDGED that the Court’s Order rendered on December 1, 2004 is a Final Judgment, for which let execution issue, if appropriate.
DONE AND ORDERED....

On February 17, 2005, Cardillo filed a motion for attorney’s fees pursuant to section 627.428, Florida Statutes.

The question is whether the December 1st order constitutes a final order or judgment commencing the time limit in rule 1.525. Rule 1.525 provides that “[a]ny party seeking a judgment taxing ... attorney’s fees ... shall serve a motion no later than 30 days after filing of the judgment.” Fla. R. Civ. P. 1.525.

Initially, we recognize that rule 1.525 applies equally regardless of whether the time runs from a document titled “order,” “final order,” “judgment,” or “final judgment,” as long as the document is a final resolution of the rights and obligations of the parties.

We conclude that the December 1st order was, in fact, a final order as it completed all judicial labor with regard to the declaratory relief requested, went on to set the trial date for the underlying case, and entered instructions regarding trial preparation.

A final order or judgment is one which evidences on its face that it adjudicates the merits of, and disposes of, the matter before the court and leaves no judicial labor to be done. We have recognized that no particular words or phrases are essential to finality of an order. GEICO Fin. Servs., Inc. v. Kramer, 575 So.2d 1345 (Fla. 4th DCA 1991).

Clearly, the declaratory relief order is not simply an order granting or denying a motion. It does not require further court action prior to its enforcement. To the contrary, it goes on to direct the trial of all remaining issues in the underlying suit, sets trial a month later, lifts the stay, and directs counsel to prepare for trial. Patently, it was the intent of the trial court that nothing further should stand as an obstacle to concluding the underlying case and that the declaratory issues were “disposed of.” The language of the order is more than sufficient to alert counsel that the clock is ticking as to a fee motion.

We also note that chapter 86, Florida Statutes, discussing declaratory judgments, provides that “a court’s declaration ... has the force and effect of a final judgment.” § 86.011, Fla. Stat. (2007); see also Canal Ins. Co. v. Reed, 666 So.2d 888 (Fla.1996) (holding “that a declaratory judgment is appealable as a final order”); Legion Ins. Co. v. Moore, 846 So.2d 1183 (Fla. 4th DCA 2003) (finding that where the trial court terminated a declaratory judgment action as to all parties, “that decision [was] reviewable under Canal as a final order”).

We have considered the authorities cited by Cardillo in his motion for rehearing and deem them distinguishable. Therefore, the order is affirmed.

STEVENSON, J. and TRAWICK, DARYL E., Associate Judge, concur.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    VESTA CONSTRUCTION AND DESIGN, L.L.C., Appellant, v. LOTSPEICH & ASSOCIATES, INC. and Michael Howe, Appellees.
    No. 5D07-754.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      Benjamin C. Iseman and Douglas C. Spears of Stump, Callahan, Dietrich & Spears, P.A., Orlando, for Appellant.
    Rebecca C. Kibbe and Anthony P. Stra-sius of Wilson, Elser, Moskowitz, Edel-man, Dicker LLP, Miami, for Appellee.
   LAWSON, J.

Vesta Construction and Design, L.L.C., (“Vesta”), appeals the dismissal of its negligent misrepresentation claim against Michael Howe, an employee of Lotspeich & Associates, Inc., (“Lotspeich”), based upon Howe’s alleged negligence in supplying information to Vesta while performing a contract between Vesta and Lotspeich. The trial court found that Vesta’s tort claim against Howe was barred by the economic loss doctrine. Vesta argues: (1) that the economic loss doctrine does not apply because it had no contractual privity with Howe, only with his employer, Lotspeich; and (2) that claims for negligent misrepresentation are excepted from the economic loss rule altogether. We agree with the trial court that the economic loss rule bars Vesta’s claim against Howe, and affirm.

Facts

In May 2002, Vesta contracted to buy a fifty-five acre parcel of land in Titusville, Florida, which Vesta intended to develop as a residential subdivision. The contract provided a due diligence period, allowing Vesta time to explore the feasibility of developing the land. In August, Vesta made an offer for thirty additional acres of land, contiguous to the first fifty-five acres, for wetlands mitigation and restoration in connection with its planned project.

As part of its due diligence, Vesta needed an environmental assessment to determine what portion of the land was develo-pable, what portion consisted of wetlands, and how much land would have to be set aside for wetlands mitigation. Vesta contracted with Lotspeich to perform the environmental assessment. The contract required Lotspeich to provide its services in “a thorough, competent and professional manner,” and further required Lotspeich’s work to be “conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the environmental consulting profession in the same locale and acting under similar circumstances and .conditions.” Howe is an ecologist who was employed by Lotspeich at the time. He was assigned as the employee primarily responsible for Lotsp-eich’s performance of the Vesta contract.

Howe’s preliminary assessment indicated that forty-two of the fifty-five acres were wetlands. Additionally, Howe indicated that $75,000.00 per acre would have to be spent for wetlands mitigation in order to develop the land. Relying on this information, Vesta cancelled its contract to purchase the fifty-five acre parcel, and revoked its offer for the additional thirty acres.

In early 2004, Vesta’s president learned that the Titusville property had been developed by another buyer for single family residences. Curious, Vesta then obtained a copy of the environmental assessment done by Canaveral Engineering Group, (“Canaveral”), for the company that eventually developed the land. Canaveral’s assessment included all of the land Lotspeich had assessed, plus some additional acreage. Canaveral’s study reported only twenty-two acres as wetlands and found seventy-five acres to be developable. Accordingly, the second developer proceeded with its project.

Vesta then hired another firm to reinspect the land originally inspected by Lotspeich. This firm concluded that forty-six of the fifty-five acres Vesta previously planned to develop were developable; that three acres were marginal wetlands; and that fourteen acres were wetlands. Based upon these later surveys, Vesta concluded that Howe and Lotspeich had negligently assessed the land in 2002.

In 2006, Vesta sued Lotspeich and Howe, alleging that it was damaged when it chose to forego its planned development based upon Howe’s report, and seeking “lost profits associated with the development of the property.” Count I alleged a cause of action against Lotspeich for professional negligence. Count II stated a cause of action for breach of contract against Lotspeich. In count III, Vesta sued Howe personally for his alleged negligence.

Howe moved to dismiss count III of the complaint, arguing that the tort claim was barred by the .economic loss rule. The lower court agreed, and dismissed the claim against Howe with prejudice. Vesta appealed, and argues that: (1) the economic loss rule does not apply to Howe because he was not a party to the contract between Vesta and Lotspeich, and employees can generally be sued personally for their own negligent actions taken during the scope and course of their duties as an employee; and (2) an exception to the economic loss rule for “negligent misrepresentations” should apply to the cause of action alleged. We will address each argument, in turn, after discussing the economic loss rule, in general. Because the suffi-cieney of the complaint is a question of law, our standard of review is de novo. Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206-07 (Fla. 5th DCA 2003).

The Economic Loss Rule

“The economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses.” Indemnity Ins. Co. of North Am. v. Am. Aviation, Inc., 891 So.2d 532, 536 n. 1 (Fla.2004) (also explaining that “[ejconomie losses are, simply put, disappointed economic expectations”). As explained in American Aviation, Florida courts have applied the economic loss rule in two different contexts. “The first is when the parties are in contractual privity and one party seeks to recover damages in tort for matters arising from the contract.” Id. at 536.

With respect to this context (which the Florida Supreme Court has labeled the “contractual privity economic loss rule”), the rule was developed “to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Id. “Underlying this rule is the assumption that the parties to a contract have allocated the economic risks of nonperformance through the bargaining process.” Id. As our supreme court further explained:

A party to a contract who attempts to circumvent the contractual agreement by making a claim for economic loss in tort is, in effect, seeking to obtain a better bargain than originally made. Thus, when the parties are in privity, contract principles are generally more appropriate for determining remedies for consequential damages that the parties have, or could have, addressed through their contractual agreement. Accordingly, courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract.

Id. at 536-537.

The second context for application of the economic loss rule arises “when there is a defect in a product that causes damage to the product but causes no personal injury or damage to other property.” Id. at 536. “In contrast to the contractual privity economic loss rule, which developed to protect the integrity of the contract, the products liability economic loss rule developed to protect manufacturers from liability for economic damages caused by a defective product beyond those damages provided for by warranty law.” Id. at 537-38. In summary, only those in privity with a manufacturer were originally allowed to sue the manufacturer for damages proximately caused by its defective product. Courts later expanded manufacturers’ potential liability by recognizing a cause of action in negligence for those who suffered personal injury or property damage proximately caused by a defective product, even if not in contractual privity with the manufacturer. See id. at 538-41; see also, Monroe v. Sarasota County School Bd., 746 So.2d 530, 534-37 (Fla. 2d DCA 1999). The products liability economic loss rule draws a line here, however, and does not generally allow a third party (not in privity with the tortfeasor) to recover against the manufacturer of a product when the product causes only economic losses. Am. Aviation, 891 So.2d at 538-41.

Because of the differing history, rationales and purposes of these separately developed doctrines, confusion often arises when one attempts to apply cases addressing the products liability economic loss rule to contractual privity cases, and vice versa. Here, of course, we are dealing with a contractual privity case.

The Contractual Privity Economic Loss Rule As Applied To Tort Claims Against Employees Of The Contracting Party

A corporate officer or employee is not liable for the torts of the company simply because of the person’s position with the company. E.g., Orlovsky v. Solid Surf, Inc., 405 So.2d 1363, 1364 (Fla. 4th DCA 1981). However, “officers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment.” White v. Wal-Mart Stores, Inc., 918 So.2d 357, 358 (Fla. 1st DCA 2005); see also, Fl. Specialty, Inc. v. H 2 Ology, Inc., 742 So.2d 523, 527 (Fla. 1st DCA 1999) (“agents of a corporation are personally liable where they have committed a tort even if such acts are performed within the scope of their employment”). All that needs to be alleged is that the agent or officer personally participated in the tort, even if the complained of action was because of and entirely within the scope of his or her employment. Id. at 527-28.

No Florida court has expressly addressed the interplay between these general tort principles and the economic loss rule. Vesta very logically argues that: (1) Under general tort principles, Howe can be held individually liable for his own negligent conduct for actions undertaken on behalf of Lotspeich; and (2) Vesta had no contractual relationship with Howe, so that the economic loss rule cannot be applied to bar a negligence action against Howe personally, for his own misconduct. In support of this argument, Vesta cites McLeod v. Barber, 764 So.2d 790, 793 (Fla. 5th DCA 2000), which very generally states that “the economic loss doctrine does not apply to tort claims where there is no contractual relationship between the parties.” Although this is a valid general observation relevant to the contractual privity economic loss rule, McLeod did not involve an attempt to sue an employee for negligent performance of a contract where the same cause of action would be barred (by the economic loss rule) against the employer who had contracted with the plaintiff. For two reasons, we hold that when suit is barred against a corporation by the contractual privity economic loss rule, the contracting party cannot bypass the rule by suing corporate employees for their negligent performance of the contract.

First, the policy reasons supporting the rule dictate this result. As previously explained, the whole reason for the economic loss rule in this context is “to protect the integrity of the contract.” Am. Aviation, 891 So.2d at 538. As Justice Cantero further explained in his concurring opinion in American Aviation: “When parties can protect their economic interests through contract, it would only undermine contract and warranty law and produce economic inefficiency to allow purely economic recovery in tort.” Id. at 544-45 (Cantero, J., concurring). Given that a corporation can only act through its employees, see, e.g. Romero v. State, 790 So.2d 468, 471 (Fla. 5th DCA 2001); Ratley v. Batchelor, 599 So.2d 1298, 1300 (Fla. 1st DCA 1992), it would completely undermine the contractual privity economic loss rule to allow any party which contracts with a corporation to avoid the rule by simply bringing its tort claim directly against the corporate officers or employees tasked with performing the contract on behalf of the corporation.

Second, the rule that we have expressly stated here is unequivocally implied in other controlling cases. The clearest case is Moransais v. Heathman, 744 So.2d 973 (Fla.1999). In Moransais, our supreme court considered the following question certified by the Second District to be of great importance:

WHEN THE ALLEGED DAMAGES ARE PURELY ECONOMIC, CAN THE PURCHASER OF A RESIDENCE, WHO CONTRACTS WITH AN ENGINEERING CORPORATION FOR A PRE-PURCHASE INSPECTION, MAINTAIN A PROFESSIONAL NEGLIGENCE ACTION AGAINST THE LICENSED ENGINEER WHO PERFORMED THE INSPECTION AS AN EMPLOYEE OF THE ENGINEERING CORPORATION?

Id. at 974.

In answering this question, the court held “that the economic loss rule does not bar a cause of action against a professional for his or her negligence even though the damages are purely economic in nature and the aggrieved party has entered into a contract with the professional’s employer.” Id. at 988-84. The Moransais “exception” to the economic loss rule is limited to suits against individual “professionals,” which our supreme court narrowly defined as a person engaged in a “ ‘vocation requiring at a minimum a four-year college degree before licensing is possible in Florida.’ ” Id. at 977 (quoting Garden v. Frier, 602 So.2d 1273, 1275 (Fla.1992)); see also, Am. Aviation, 891 So.2d at 537 (citing Moran-sais for the proposition that in “cases ... alleging neglect in providing professional services [it has been] determined that public policy dictates that liability not be limited to the terms of the contract”); Crowell v. Morgan Stanley, Dean Witter Serv., Co., Inc., 87 F.Supp.2d 1287, 1292 (S.D.Fla.2000) (noting that the Moransais economic loss rule exception is limited to professional negligence claims). Of course, there would have been no need for the court to have carved out an economic loss rule exception for suits against “a professional for his or her negligence ... [when] the aggrieved party has entered into a contract with the professional’s employer,” 744 So.2d at 983-84, if the theory advanced by Vesta had any validity. Under Vesta’s theory, the plaintiff in Moransais could have sued any employee of the engineering firm who helped perform the firm’s contract, whether or not the employee was a “professional,” based simply on a “lack of privity” with employees of the firm.

Therefore, we reject Vesta’s “lack of privity” theory, and reiterate that when an aggrieved party is barred by the contractual privity economic loss rule from suing a corporation in tort, it cannot avoid the rule by suing non-professional employees for their alleged negligence in performing the contract on behalf of the corporation.

The Contractual Privity Economic Loss Rule As Applied To Claims For Negligent Misrepresentation

Citing American Aviation, Vesta argues that its negligent misrepresentation claim against Howe should not have been dismissed because “negligent misrepresentation” is a recognized “exception” to the economic loss rule. Although American Aviation does, in summary fashion, list negligent misrepresentation as an economic loss rule exception, it is clear from a thorough review of Florida case law that not all negligent misrepresentation claims are excepted from the contractual privity economic loss rule. Rather, a distinction is drawn between misrepresentations that are directly related to the breaching party’s performance of the contract and those which are independent of the contract (for example, a misrepresentation which induces the party to enter the contract). The economic loss rule exception applies only to the latter category of cases — those involving misrepresentations made “independent” of the contract. See, e.g., Taylor v. Maness, 941 So.2d 559, 564 (Fla. 3d DCA 2006) (“the Taylors cannot escape the economic loss rule in their negligent misrepresentation claim as the alleged negligent misrepresentation relates to the performance of the contract”); Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000) (“The law is well established that the economic loss rule does not bar tort actions based on fraudulent inducement and negligent misrepresentation ... [i]f the fraud occurs in connection with misrepresentations, statements or omissions which cause the complaining party to enter into a transaction.... However, where the fraud complained of relates to the performance of the contract, the economic loss doctrine will limit the parties to their contractual remedies.”) (citations omitted); Wadlington v. Continental Med. Serv., Inc., 728 So.2d 352, 352 (Fla. 4th DCA 1999) (explaining that only those “negligent misrepresentation^] [made] independent of the breach of contract are not barred by the economic loss rule.”); Straub Capital Corp. v. L. Frank Chopin, P.A., 724 So.2d 577, 579 (Fla. 4th DCA 1999) (holding that “the economic loss rule bars the tenants’ claim for negligent misrepresentation because, absent a tort independent of breach of contract, the remedy for economic loss lies in contract law,” and explaining that the “action for negligent misrepresentation in the instant case was barred by the economic loss rule because the subject misrepresentations were directly related to the breaching party’s performance under the subject lease agreement.”). In this case, because Howe’s alleged misrepresentations occurred during his performance of the contract on behalf of Lotspeich, the negligent misrepresentation exception to the contractual privity economic loss rule does not apply.

Additionally, we note that there is another “narrow exception to the economic loss rule which has been applied in certain limited circumstances” based upon section 552 of the Restatement (Second) of Torts. Russell v. Sherwin-Williams Co., 767 So.2d 592, 593 (Fla. 4th DCA 2000). Section 552 provides:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

The “ ‘rule announced by section 552 is not confined solely to the learned professions.’ ” Id. at 594 (quoting Palau Int’l Traders, Inc. v. Narcam Aircraft, Inc., 653 So.2d 412, 419 (Fla. 3d DCA 1995) (Cope, J., concurring)). However, we find that the section 552 “exception” to the economic loss rule does not apply in contractual privity cases either.

Section 552 was adopted in Florida to define the limited circumstances under which those not in privity with a purveyor of information could nonetheless bring suit to recover its economic losses for information negligently supplied. See First Fla. Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9 (Fla.1990) (“we have decided to adopt the rationale of section 552, Restatement (Second) of Torts (1976), as setting forth the circumstances under which accountants may be held liable in negligence to persons who are not in contractual privity.”) (emphasis supplied). In adopting section 552, our supreme court in no way indicated that it intended to abolish the contractual privity economic loss rule for all contracts that call for the delivery of information. Rather, the court explained section 552 in terms of the “substantial erosion in Florida” of the contractual privity doctrine, which started with “cases involving injuries caused by negligently manufactured products.” Id. at 13. In other words, the section 552 exception is best understood as an extension of the products liability economic loss rule line of cases. Both spring from the need to avoid unlimited liability for a party when abolishing the common law privity requirement, so as to allow an aggrieved party not in contractual privity with the alleged wrongdoer to recover losses caused by the wrongdoer under some circumstances.

However, if the section 552 exception were applied to contractual privity economic loss rule cases, the exception would completely “swallow the rule” for a large set of contracts — meaning that no one in the business of supplying information to others could ever allocate losses by contract. Given the policy reasons supporting the contractual privity economic rule, and the language used in adopting and discussing section 552 liability by Florida courts, we simply do not believe that our supreme court intended to deprive all purveyers of information of the ability to “allocate!] the economic risks of nonperformance through the [contractual] bargaining process,” when it adopted section 552. For this reason, we hold that section 552 does not apply as an economic loss rule exception in contractual privity cases. Rather, in contractual privity cases, the rule still stands that parties to a contract generally cannot sue one another in tort unless they establish a tort independent of the contract. E.g., AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So.2d 180, 181-82 (Fla.1987).

For these reasons, we find that the trial court properly dismissed Vesta’s tort claim against Howe.

AFFIRMED.

TORPY, J., and THOMPSON, E., Senior Judge, concur.

      . The total parcel of land owned by this developer was close to one-hundred acres.

      . In this case, Vesta did not attempt to state a cause of action against Howe for professional negligence.

      . See 891 So.2d at 543.

      . "Section 552 of the Restatement, although commonly referred to as ‘negligent misrepresentation,’ is actually entitled ‘Information Negligently Supplied for the Guidance of Others.’ ” Deloitte & Touche v. Gencor Indus., Inc., 929 So.2d 678, 681 (Fla. 5th DCA 2006). The elements of proof under section 552 of the Restatement differ from the elements of a negligent misrepresentation claim at common law. Compare Russell, 767 So.2d at 593 with Fla. Women’s Med. Clinic, Inc. v. Sultan, 656 So.2d 931, 933 (Fla. 4th DCA 1995).

      . Am. Aviation, 891 So.2d at 536.

      . Vesta argues that our decision on this point is controlled by First State Savings Bank v. Albright & Associates of Ocala, Inc., 561 So.2d 1326 (Fla. 5th DCA 1990), disapproved in part, Garden v. Frier, 602 So.2d 1273 (Fla.1992). However, Albright was not a contractual privity case. In Albright, a potential borrower had contracted with Albright and Associates, an appraisal firm, to produce a real estate appraisal for submission to First State Savings Bank in connection with the client's loan application. The bank relied upon the appraisal, and loaned millions of dollars to Albright’s client. When the loan defaulted, the bank sued the appraisal firm and the appraiser, individually, for their allegedly inaccurate appraisal of the property. The bank was not in contractual privity with either the firm or the appraiser. Therefore, the contractual privity economic loss rule could not have been an issue in that case. However, our court did address a similar issue in The Ocean Ritz of Daytona Condominium v. GGV Associates, Ltd., 710 So.2d 702 (Fla. 5th DCA 1998). Consistent with our holding today, the panel in Ocean Ritz held that the a claim under section 552 was barred by the economic loss rule when the party could bring a contract cause of action as a third party beneficiary.


author: PLEUS, J.

text:
    Mario WHITE, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D06-3998.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Mario White appeals his convictions for second degree murder, robbery with a firearm and attempted robbery with a firearm. He argues that the trial court abused its discretion in admitting a transcript of an eyewitness police interview as a prior consistent statement to rebut a charge of recent fabrication. Although White claims the statement was erroneously admitted because the witness’ motive to fabricate existed at the time of the statement, the statement was clearly admissible to rebut a charge of recent fabrication based on additional motives to fabricate arising after the statement. These additional motives were the subject of extensive cross-examination and argument by the defense in an effort to undermine the witness’ credibility. Accordingly, we affirm White’s convictions. See, e.g., Chamberlain v. State, 881 So.2d 1087 (Fla.2004); Chandler v. State, 702 So.2d 186 (Fla.1997).

On cross-appeal, the State argues that the trial court should have been allowed to impose consecutive sentences on the robbery and attempted robbery counts. We have jurisdiction to address the State’s cross-appeal under Florida Rule of Appellate Procedure 9.140(e)(l)(K).

The trial court sentenced White to 30 years in prison with a ten year minimum mandatory for carrying a firearm on the second degree murder count, 30 years with a 20 year minimum mandatory for discharging a firearm on the robbery count, and 15 years with a 20 year minimum mandatory sentence on the attempted robbery count. The court ordered all the minimum mandatory sentences to run concurrently, as well as the 30 year sentences for murder and robbery. However, the court ran the 15 year sentence for attempted robbery consecutive to the 30 year sentences for murder and robbery.

While this appeal was pending, White filed a motion to correct sentencing error, alleging that on the attempted robbery charge, it was illegal to run the 20 year minimum mandatory and the 15 year statutory maximum sentence consecutively, in effect resulting in a 35 year sentence on a second degree felony. The trial court agreed and struck the consecutive 15 year sentence. The court explained that it believed it was constrained to do so because the sentence exceeded its jurisdiction.

The State argues that the trial court erred in believing it was constrained to delete the 15 year consecutive sentence on the attempted robbery count. We disagree. The trial court’s original imposition of a 20 year minimum mandatory sentence and a consecutive 15 year statutory maximum sentence for attempted robbery, a total of 35 years for a second degree felony, was clearly illegal.

We recognize that the problem raised by State is a legitimate one. If a defendant attempts to rob two victims at the same time, he may be charged with two counts of attempted robbery and the court may impose consecutive statutory maximum sentences of 15 years in prison on each count, for a total sentence of 30 years. § 775.021(4), Fla. Stat. (2006). However, if the defendant discharges a firearm during the course of those attempted robberies, the court must impose a 20 year minimum mandatory sentence on each count. § 775.087(2)(a)2, (2)(c), Fla. Stat. But case law seems to hold that because the crimes arise from a single episode, the mandatory minimum sentences must be run concurrently, resulting in a total sentence of 20 years. See, e.g., Valentin v. State, 963 So.2d 317 (Fla. 5th DCA 2007). Thus, under such a hypothetical situation, the application of this judicially-created rule would arguably reward a defendant for discharging a firearm because his exposure would be reduced from 30 years to 20 years. We question whether a judge should be required to run mandatory minimum sentences concurrently where the maximum sentence faced by a defendant would be reduced became the defendant discharged a firearm. However, we do not need to resolve that hypothetical situation in this case.

Here, the defendant was exposed to a life sentence on the murder charge. Furthermore, because the murder occurred at a different time than the robbery and attempted robbery, the trial court had significant flexibility in structuring the defendant’s sentences. The trial judge could have accomplished his intent of sentencing White to a total sentence of 45 years in prison even while running the mandatory minimum sentences on the robbery and attempted robbery concurrent. The trial judge did not do so. We cannot undo the sentences on the other counts to achieve the trial judge’s intent without violating double jeopardy principles. We therefore affirm White’s corrected sentence.

AFFIRMED.

MONACO and EVANDER, JJ., concur.

      . § 782.04(2), Fla. Stat. (2005).


author: PALMER, C.J. GRIFFIN, J.,

text:
    SCHOOL BOARD OF VOLUSIA COUNTY, Appellant, v. ACADEMIES OF EXCELLENCE, INC., etc., et al., Appellee.
    No. 5D06-1054.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      Theodore R. Doran, Audrie M. Harris and Michael Ciocchetti of Doran, Wolfe, Ansay & Kundid, Daytona Beach, for Appellant.
    Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   ON MOTION FOR REHEARING AND REHEARING EN BANC

PALMER, C.J.

The motion for rehearing and for rehearing en banc filed by the School Board of Volusia County is denied. However, the prior opinion of this court, dated November 30, 2007 is withdrawn, and we substitute the following in its place.

The School Board of Volusia County (School Board) appeals the final order entered by the State of Florida, Department of Education (State Board), reversing the School Board’s denial of the charter school application filed by Academies of Excellence, Inc. (Academies). Determining that the record contains competent, substantial evidence to support the State Board’s decision, we affirm.

Academies applied to the School Board for permission to open a charter elementary school in Volusia County, Florida. Pertinent to this appeal, in the application the following information was set forth:

L. Student Performance Standards
* ⅝ *
4. To be considered as meeting student performance standards, students must perform at Level 3 and above on the mathematics and reading sections of the Florida Comprehensive Assessment Test.
5. Students who score at or above the 25th percentile on norm-referenced tests are considered to have demonstrated acceptable student performance standards.

Additionally, as part of the finance portion of the application, Academies indicated that it expected to initially enroll 450 students.

The School Board held a hearing to consider Academies’ application. During the hearing, Dr. Chris Colwell, Deputy Superintendent for Instruction Services, testified that Academies’ application failed to set a goal for itself of attaining an A, B, C, or D grade in terms of success of the school. He stated that a specific stated goal was required and appropriate. Next, Colwell took issue with Academies’ standard that “students who score at or above the 25th percentile on norm referenced tests are considered to have demonstrated acceptable student performance standards.” He testified that the standard was lower than the standards held by public schools in Volusia County and lower than the standards that would be expected by the State of Florida.

Bill Kelly, Jr., Deputy Superintendent of Finance, opined that Academies’ application lacked evidence of sound financial planning. Specifically, Kelly found Academies’ enrollment projection of 450 students in the first year of operation to be unreasonable. Based on the unreasonable enrollment figure, Kelly stated that Academies’ budget revenues were overstated. Kelly also stated that Academies was understating its capital budget by one million dollars for facilities and land costs.

At the conclusion of the hearing, the School Board denied Academies’ application. Specifically, the School Board concluded that Academies’ application failed to meet the standards for minimal acceptance in the areas of student assessment/accountability and finance/class size requirements.

Academies appealed the School Board’s ruling to the State Board of Education. The Charter School Appeals Commission conducted a hearing on the matter. During that hearing, Kathleen Schoenberg, attorney for Academies, argued that Academies’ application properly addressed the statutory requirement regarding student assessment and that the argument over finances was just a difference of opinion between the School Board and Academies.

Ted Doran, attorney for the School Board, argued that Academies had failed for the fourth time to produce an application sufficient statutorily to proceed to the next level. Dr. Colwell testified that Academies’ failure to include a school goal in its application made Academies unaccountable for its performance under the Governor’s A-Plus Plan. Further, Colwell stated that it was unacceptable that Academies considered the 25th percentile to be an acceptable level of student performance. However, he did indicate that Academies had admitted that this figure on their application was a typographical error and that the figure should have been 51st percentile instead of 25th percentile.

In response, Schoenberg stated that Academies mistakenly omitted a sentence stating that the school’s goal was to be an “A” school. However, she argued that omission of that one sentence was not enough to make the entire application deficient.

The Commission asked the parties whether there was a specific requirement that a school grade be part of the application. Colwell admitted that the application template did not include such a requirement and Schoenberg stated that the statute does not require the school to include a school grade as one of its goals.

At the conclusion of the comments on student assessment/accountability, the Commission voted that the School Board had competent, substantial evidence to support its finding that the application was statutorily deficient in the area of student assessment/accountability. However, immediately thereafter, the Commission voted that the School Board’s finding that the application was statutorily deficient in the area of student assessmenVaccountability was not good cause for denial. After more discussion, the Commission voted that the School Board did not have competent substantial evidence to support its finding that the application was statutorily deficient in the areas of finance/class size requirements. Subsequently, the Commission voted to recommend to the State Board that Academies’ appeal be granted.

The Commission’s recommendations were submitted to the State Board. The State Board conducted a hearing during which it considered whether to accept the Commission’s recommendation to overturn the decision of the School Board and to grant Academies’ application. During the hearing, a member of the State Board requested clarification regarding the 25th percentile versus the 51st percentile. The head of the appeals commission responded:

I absolutely admonished the applicant that that’s not acceptable. They had noted it. They admitted it. They said it was a typo. They absolutely agree on the record and in writing, it should be 51 percent which is the norm for the FCAT.

Subsequently, the State Board issued a written order upholding the findings and recommendations of the Commission. This appeal timely followed.

The School Board challenges the State Board’s final order, claiming first that the Board deviated from the record below and improperly created its own record during the appeal process. Specifically, the School Board argues that the School Board and Academies were bound by the record developed before the School Board and thus it was error for the parties to add new evidence during the appeal process. We reject this argument because both the School Board and Academies presented, without any objection, testimony before the Commission regarding the issues of student assessment/accountability and finance/class size requirements. Additionally, the School Board did not raise any objections to the comments made during the State Board meeting regarding the 25th percentile promotion rate, nor did the School Board raise the argument before the State Board that it now raises on appeal. Accordingly, the School Board failed to preserve this issue for our review.

In a related argument, the School Board claims that the State Board improperly conducted a de novo review of the evidence by accepting testimony at the State Board hearing. Again, this argument was not properly preserved for our review.

The School Board further argues that the State Board’s order must be reversed because it fails to include a fact-based justification for the Board’s decision. We disagree.

Section 1002.33(6)(e)l. & 5. of the Florida Statutes (2005) provides:

1002.33. Charter schools
⅜ * ⅜
(6) Application process and review. Beginning September 1, 2003, applications are subject to the following requirements:
(e) 1. A Charter School Appeal Commission is established to assist the commissioner and the State Board of Education with a fair and impartial review of appeals by applicants whose charter applications have been denied, whose charter contracts have not been renewed, or
* ⅜ *
5. Commission members shall thoroughly review the materials presented to them from the appellant and the sponsor. The commission may request information to clarify the documentation presented to it. In the course of its review, the commission may facilitate the postponement of an appeal in those cases where additional time and communication may negate the need for a formal appeal and both parties agree, in writing, to postpone the appeal to the State Board of Education. A new date certain for the appeal shall then be set based upon the rules and procedures of the State Board of Education. Commission members shall provide a written recommendation to the state board as to whether the appeal should be upheld or denied. A fact-based justification for the recommendation must be included. The chair must ensure that the written recommendation is submitted to the State Board of Education members no later than 7 calendar days prior to the date on which the appeal is to be heard. Both parties in the case shall also be provided a copy of the recommendation.

§ 1002.33(6)(e)l. & 5., Fla. Stat. (2005)(em~ phasis added). The statute clearly states that the Commission, not the State Board, must include a fact-based justification for its recommendation. Therefore, the failure of the State Board to include a fact-based justification for its decision does not constitute reversible error.

The School Board next challenges the State Board’s final order, claiming that the School Board’s basis for denying Academies’ charter school application constituted good cause because Academies’ application was unsound in student assessment/accountability and finance/class size requirements. The School Board claims that, because the Commission found that Academies’ application was statutorily deficient in the area of student assessment/accountability, the Commission erred in concluding that this deficiency was not good cause for denial of Academies’ application. We disagree.

While Academies admitted at the hearing before' the Commission that it had mistakenly omitted a sentence from its application that should have said the school’s goal was to be an “A” school, a representative from the School Board also admitted that the application template did not include a requirement that one of the goals include a school grade. Section 1002.33(6)(a) of the Florida Statutes also contains no such requirement, and the Florida charter schools standard application includes no such requirement. Therefore, competent substantial evidence supports the Commission’s conclusion that the School Board did not have good cause to deny Academies’ application on that basis.

Next, the School Board argues that the Commission erred in concluding that the School Board did not have good cause to deny Academies’ application based on statutory deficiencies in Academies’ basis for promotion of students. Specifically, the School Board argues that Academies’ could not promote students based on reaching the 25th percentile. This issue was extensively discussed at the meeting before the Commission. Academies indicated that it was willing to correct this language. Academies’ willingness to rectify the situation appeared to be the reason that the Commission concluded that this error on Academies’ application was not good cause to deny the application. Based on the testimony and argument presented at the hearing, the Commission had sufficient evidence before it to properly conclude that, although Academies’ application was statutorily deficient, such a deficiency was not good cause for denial of the application when Academies recognized the problem and was willing to correct it.

The School Board also argues that the Commission erred in concluding that the School Board did not have competent substantial evidence to support its finding that Academies’ application was statutorily deficient in the area of finance/class size requirement. We again disagree. The record demonstrates that Academies rebutted the reasons the School Board gave for denying its application, and the evidence demonstrated that many of the School Board’s reasons for denial were based on opinion. Also, a School Board representative admitted that Academies’ budget was correct if it could achieve its estimated enrollment number.

Finally, the School Board challenges the State Board’s final order, claiming that the order which was entered pursuant to section 1002.33 of the Florida Statutes conflicts with, and thereby violates, the School Board’s constitutional authority under Article IX, section 4(b), of the Florida Constitution, to operate, control and supervise public schools, and its authority under Article IX, section 1(a), of the Florida Constitution, to make adequate provision for a uniform and high quality system of free public schools. Specifically, the School Board argues that, because the act of operating and controlling all free public schools in Volusia County is conferred exclusively on the School- Board, section 1002.33(6)(c) is unconstitutional because it permits the State Board to open a charter school.

Section 1002.33(6)(e) of the Florida Statutes provides:

1002.33 Charter Schools
* * *
(6) Application process and review.— Beginning September 1, 2003, applications are subject to the following requirements:
(c) An applicant may appeal any denial of -that applicant’s application or failure to act on an application to the State Board of Education no later than. 30 calendar days after receipt of the district school board’s decision or failure to act and shall notify the district school board of its appeal. Any response of the district school board shall be submitted to the State Board of Education within 30 calendar days after notification of the appeal.. Upon receipt of notification from the State Board of Education that a charter school applicant is filing an appeal, the Commissioner of Education shall convene a meeting of the Charter School Appeal Commission to study and make recommendations to the State Board of Education regarding its pending decision about the appeal. The commission shall forward its recommendation to the state board no later than 7 calendar days prior to the date on which the appeal is to be heard. The State Board of Education shall by majority vote accept or reject the decision of the district school board no later than 90 calendar days after an appeal is filed in accordance with State Board of Education rule. The Charter School Appeal Commission may reject an appeal submission for failure to comply with procedural rules governing the appeals process. The rejection shall describe the submission errors. The appellant may have up to 15 calendar days from notice of rejection to resubmit an appeal that meets requirements of State Board of Education rule. An application for appeal submitted subsequent to such rejection shall be considered timely if the original appeal was filed within 30 calendar days after receipt of notice of the specific reasons for the district school board’s denial of the charter application. The State Board of Education shall remand the application to the district school board with its written decision that the district school board approve or deny the application. The district school board shall implement the decision of the State Board of Education. The decision of the State Board of Education is not subject to the provisions of the Administrative Procedure Act, chapter 120.

§ 1002.33(6)(c), Fla. Stat. (2005).

Article IX, Section 1(a) of the Florida Constitution provides:

§ 1. Public education
(a) The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people require....

Article IX, section 4(b) of the Florida Constitution provides:

§ 4. School districts; school boards
(b) The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein. Two or more school districts may operate and finance joint educational programs.

Article IX, section 2 of the Florida Constitution provides:

§ 2. State board of education
The state board of education shall be a body corporate and have such supervision of the system of free public education as is provided by law. The state board of education shall consist of seven members appointed by the governor to staggered 4-year terms, subject to confirmation by the senate. , The state board of education shall appoint the commissioner of education.

Section 1002.33(6)(c) does not permit the State Board to open a charter school. Rather, the statute permits the State Board to approve or deny a charter application after it completes an extensive review process. Granting a charter application is not equivalent to opening a public school. The approval of an application is just the beginning of the process to open a charter school. Once the charter application has been granted, the school board still has control over the process because the applicant and the school board must agree on the provisions of the charter. See § 1002.38(6)00, Fla. Stat. (2005). A school board can also cause a charter to be revoked or not renewed. See § 1002.33(8), Fla. Stat. (2005). Furthermore, under the Constitution of Florida, while the school board shall operate, control and supervise all free public schools within their district the State Board of Education has supervision over the system of free public education as provided by law.

AFFIRMED.

SAWAYA, J., concurs.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

For what it is worth, in my view, the School Board acted appropriately in denying the application. This was the fourth time that Academies had submitted its application for this charter school. In the previous application, the minimum standard Academies identified for assessment of the school itself was not to receive an “F” from the State’s grading system for two consecutive years. The County found such a standard unacceptable so, in this fourth application, Academies simply eliminated any measure for the school. As for the 25th percentile threshold for individual student evaluation, the application says that it would be acceptable if students scored at or above the 25th percentile on norm reference tests. This is clearly not an acceptable standard for several reasons that were discussed in the hearing. Academies’ response was that their standard appeared to be unacceptable due to an inadvertently omitted sentence and poor wording, but in fact, they intended to have a standard that would not be unacceptable. The Board concluded that it could only act on the application that had been submitted, not the application that might be submitted if errors were corrected, and accordingly denied the application. Surely, they could not have approved the application in its current form.

Few things in the administrative process are more destructive than the belief on the part of the applicant and the decision-maker that the “review” of administrative action is really nothing more than a “do-over” with more receptive listeners. A fact-finder and decision-maker who knows its decisions will not be accorded respect is less inclined to worry over their accuracy. Nevertheless, for reasons best known to others, this is apparently the way this process has been designed to operate. Therefore, I concur in the result.

      . Upon receipt of notification from the State Board of Education that a charter school applicant is filing an appeal, the Commissioner of Education shall convene a meeting of the Charter School Appeal Commission to study and make recommendations to the State Board of Education regarding its pending decision about the appeal. § 1002.33(6)(c), Fla. Stat. (2005).

      . Section 1002.33(6)(b)3 of the Florida Statutes provides:
      1002.33 Charter Schools

      (6) Application process and review. — Beginning September 1, 2003, applications are subject to the following requirements:

      [b] 3. A district school board shall by a majority vote approve or deny an application no later than 60 calendar days after the application is received, unless the district school board and the applicant mutually agree to temporarily postpone the vote to a specific date, at which time the district school board shall by a majority vote approve or deny the application. If the district school board fails to act on the application, an applicant may appeal to the State Board of Education as provided in paragraph (c). If an application is denied, the district school board shall, within 10 calendar days, articulate in writing the specific reasons based upon good cause supporting its denial of the charter application.
      § 1002.33(6)(b)3, Fla. Stat. (2005)(emphasis added).

      . To the extent the School Board argues that the Commission’s order is insufficient for failure to include detailed factual findings, the School Board failed to preserve this argument because it failed to raise the insufficiency of the Commission's recommendations before the State Board. See Imhotep-Nguzo Saba Charter School v. Department of Educ., 947 So.2d 1279 (Fla. 4th DCA 2007)(holding appellate court would not consider issue raised by charter schools for first time on appeal).


author: STRINGER, Judge.

text:
    JONATHAN M. FRANTZ, M.D., P.A., d/b/a Florida Eye Health, Appellant, v. Edward Clark SHEDDEN, Appellee.
    No. 2D07-3700.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.

      Ronald E. Bush, Anthony M. Iannacio, and Courtney L. Rice of Bush Graziano & Rice, P.A., for Appellant Jonathan M. Frantz, M.D., P.A., d/b/a Florida Eye Clinic.
    Celene Humphries of Swope, Rodante P.A., Tampa, for Appellee.
   STRINGER, Judge.

Jonathan M. Frantz, M.D., P.A. d/b/a Florida Eye Health (“Florida Eye Health”), appeals from the trial court’s order denying its motion to stay litigation and compel arbitration in this medical malpractice action. At issue is the enforceability of an arbitration agreement (“the Agreement”) signed by Edward Shedden. Because the Agreement is neither procedurally nor substantively unconscionable and because public policy does not bar its enforcement, we reverse and remand for arbitration.

In late 2003, Shedden sought to have certain elective surgery performed by doctors associated with Florida Eye Health. During a preoperative visit, Shedden was presented with various documents that he needed to complete and sign before the surgery. One of these documents was the Agreement at issue in this case. This document was a separate form that stated at the top in large bold capital letters, “PLEASE READ CAREFULLY PATIENT-DOCTOR ARBITRATION AGREEMENT.” The Agreement was specifically brought to Shedden’s attention, and he was given the opportunity to read it. He was told that if he had any questions about the Agreement, he could ask the staff to assist him. He was also told that, if he would prefer, he could take the Agreement with him and review it with anyone else, including an attorney, before signing it. Shedden testified at his deposition that he did not read the Agreement and did not seek to ask any questions about it before he signed it.

Almost a year later, Shedden sought additional elective surgery from Florida Eye Health. At his preoperative appointment, he received a second “Patient-Doctor Arbitration Agreement” as part of the required paperwork. He was again given the opportunity to read the Agreement and to take it with him if he wanted to review it further before signing it. Shed-den testified at his deposition that he again did not read this Agreement and did not seek to ask any questions about it before he signed it.

In early 2006, Shedden filed a malpractice action against Florida Eye Health based on treatment he received after the 2004 elective surgery. Florida Eye Health immediately moved to stay the litigation and compel arbitration based on the Agreement signed by Shedden in 2004. At a hearing on the motion to compel arbitration, Shedden argued that the Agreement was procedurally unconscionable because it was never explained to him and because he believed that it applied solely to the surgical procedures. He also argued that the Agreement was substantively unconscionable because it contravened certain provisions of chapter 766, Florida Statutes. In response, Florida Eye Health argued that the Agreement was not procedurally unconscionable because it was an independent, conspicuous document and Shedden was given the opportunity to review it, ask questions about it, and take it home for review before he signed it. Florida Eye Health also argued that the Agreement was not substantively unconscionable and that there was no requirement that an arbitration agreement conform to the requirements of chapter 766.

After considering the parties’ arguments, the trial court found the Agreement to be both procedurally and substantively unconscionable, and it denied Florida Eye Health’s motion to compel arbitration. Florida Eye Health then sought review. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(3) (C) (iv).

In assessing the enforceability of an arbitration agreement, this court considers (1) whether there is a valid written agreement to arbitrate; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Bland v. Health Care & Retirement Corp. of Am., 927 So.2d 252, 255 (Fla. 2d DCA 2006). Here, the only question before the trial court was whether the Agreement was valid.

In the trial court, Shedden argued that the Agreement was invalid because it was unconscionable. To succeed on his uncon-scionability claim, Shedden had to establish both procedural and substantive un-conscionability. Bland, 927 So.2d at 256; Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264-65 (Fla. 2d DCA 2004); Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). This court explained these two different types of unconsciona-bility in Bland:

Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand the disputed contract terms. Petsch, 872 So.2d at 265; [Gainesville Health Care Ctr., Inc. v.] Weston, 857 So.2d [278] at 285 [(Fla. 1st DCA 2003)]. Substantive unconscionability, on the other hand, requires an assessment of whether the contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” Weston, 857 So.2d at 285. A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on one hand, and as no honest and fair man would accept on the other.” [Belcher v.] Kier, 558 So.2d [1039] at 1044 [ (Fla. 2d DCA 1990) ] (quoting Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889)).

Bland, 927 So.2d at 256.

To establish that an arbitration agreement is procedurally unconscionable, the plaintiff must show that he or she had no meaningful opportunity or ability to know and understand the terms of the agreement before signing it. Id.; see also Orkin, 872 So.2d at 265; Weston, 857 So.2d at 284; Powertel, 743 So.2d at 574. The trial court must consider the totality of the circumstances when determining whether there was procedural unconscion-ability. Thus, when an arbitration provision is “hidden in a maze of fíne print and minimized by deceptive sales practices,” the provision may well be procedurally unconscionable. See Powertel, 743 So.2d at 574 (citing Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965)). However, when the arbitration agreement is a separate document that is clearly and conspicuously identified as an arbitration agreement and when the plaintiff has sufficient time to review the document and an opportunity to consult with others concerning the legal ramifications of the document, it is unlikely that the plaintiff can establish procedural uncon-scionability. See Bland, 927 So.2d at 256 (holding that when the agreement was a separate document clearly titled “arbitration agreement” and when the plaintiff had ample opportunity to review the document, read the document, ask questions about the document, and consult with others, the plaintiff could not establish procedural un-conscionability); Orkin, 872 So.2d at 265 (holding that when the arbitration agreement was in large print on the first page of the contract and when the plaintiff had the opportunity to read it and decide whether to seek services elsewhere, the provision was not procedurally unconscionable); Weston, 857 So.2d at 287-88 (holding that when the plaintiff had ample opportunity to read the document and get advice on its contents, the fact that the plaintiff chose not to do so would not establish procedural unconscionability).

In this case, the Agreement was a separate document that was clearly and conspicuously labeled as an arbitration agreement. Employees of Florida Eye Health testified that they brought the Agreement to Shedden’s attention and that he had the opportunity to read the Agreement and ask questions about it. Shedden did not dispute this testimony. The employees also testified that they told Shed-den that he could take the Agreement with him to review with either family or an attorney before signing it if he wanted to. While Shedden testified that no one with any legal training was available to answer any questions about the Agreement, he also clearly testified that he did not read the Agreement before signing it and did not seek to ask anyone any questions about it. On these facts, Shedden has failed to establish that he did not have a meaningful opportunity to review the Agreement and accept or reject its terms before he signed it. See Lopez v. Ernie Haire Ford, Inc., 974 So.2d 517 (Fla. 2d DCA 2008) (holding that plaintiff could not establish procedural unconscionability to defeat the terms of validly signed arbitration agreement when he had the opportunity to read the agreement and simply chose not to). Therefore, Shedden failed to establish that the Agreement is procedurally unconscionable, and the trial court should have enforced the Agreement.

While the determination that the Agreement is not procedurally unconscionable is dispositive of the issue of its enforceability, the record also shows that the Agreement is not substantively unconscionable. Nothing in the record before this court supports a finding that the Agreement is unreasonable or unfair. In fact, both the procedural and substantive provisions of the Agreement essentially track the provisions of section 766.207, Florida Statutes (2004), which governs voluntary binding arbitration of medical malpractice claims. Given the strong similarities between the provisions of the Agreement and the provisions of section 766.207, the Agreement cannot be considered so outrageous as to shock the judicial conscience. Therefore, Shedden also failed to prove the substantive prong of the test for unconscionability, and the trial court should have enforced the Agreement on this basis as well.

In this appeal, Shedden apparently recognizes that the Agreement is neither procedurally nor substantively unconscionable, and he abandons his unconscionability argument in favor of a “tipsy coachman” argument that the Agreement is void as against public policy. We disagree.

Shedden is correct that even if an arbitration agreement is not unconscionable, when a provision of the agreement conflicts with public policy or negates a statutory right provided to a party to the agreement, that provision of the agreement will not be enforced if it can be severed. See, e.g., Damora v. Stresscon Int’l, Inc., 324 So.2d 80 (Fla.1975); Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So.2d 1095, 1097 (Fla. 2d DCA 2002); Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 266 (Fla. 4th DCA 2006). Here, however, Shedden has not identified any public policy or statutory right that is violated by the Agreement.

In his brief, Shedden argues that the Agreement negates his statutory right to appeal as provided by the Florida Arbitration Code; however, the plain language of the Agreement does not support this argument. While the Agreement does provide that the arbitrator’s decision will be final and binding, the Agreement does not purport to limit or eliminate Shedden’s right to seek vacation of an award pursuant to section 682.13, Florida Statutes (2004), or to appeal an award pursuant to section 682.20. Because the Agreement states that proceedings will be “pursuant to the Florida Arbitration Code” and because it does not specifically bar any right to appeal, the appeal provisions of section 682.20 would apply to give Shedden the right to appeal. Thus, the Agreement should not be invalidated on the basis of this alleged conflict. See Orkin, 872 So.2d at 265 (holding that because arbitration agreement did not specifically deny the plaintiff his right to raise statutory claims in arbitration, the arbitration agreement would not be read to eliminate those claims so as to render the agreement unenforceable); cf. Healthcomp, 817 So.2d at 1097 (invalidating provision of arbitration agreement that specifically barred parties from taking an appeal as void because it conflicted with the Florida Arbitration Code); VoiceStream Wireless Corp. v. U.S. Commc’ns, 912 So.2d 34, 39 (Fla. 4th DCA 2005) (same).

Further, even if the Agreement did purport to completely eliminate the right to appeal, that would not make the entire Agreement unenforceable. Instead, the severability provision of the Agreement would allow a court to simply eliminate those provisions that were invalid while enforcing the remainder of the Agreement. Healthcomp, 817 So.2d at 1098; VoiceStream, 912 So.2d at 39. Thus, the trial court’s order finding the Agreement unenforceable cannot be affirmed on this basis.

Because the evidence before the trial court established that the Agreement was neither procedurally nor substantively unconscionable, the trial court should have granted the motion to stay litigation and compel arbitration. Accordingly, we reverse and remand for referral to arbitration.

Reversed and remanded for arbitration.

SILBERMAN, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . This second Agreement contained substantive changes from the first Agreement, none of which are relevant to our opinion in this case.


author: PER CURIAM.

text:
    Herman Vondell BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3055.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    Bart Schneider of Bart Schneider, P.A., Orlando, and Richard J. D’Amico, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Herman Vondell Brown appeals his conviction for second degree murder, raising five issues. In one issue, Brown claims ineffective assistance of counsel in that his trial attorney did not object to evidence of his flight from a police officer. Issues of ineffective assistance of counsel are only addressed on direct appeal “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.” McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004). Because Brown’s claim does not meet this standard, we have not considered it on the merits. Id. None of Brown’s other claims were preserved for appellate review. Having carefully considered each claim, we find no fundamental error, and therefore affirm the conviction and sentence. See Cardenas v. State, 867 So.2d 384, 396-97 (Fla.2004) (recognizing appellate courts should not consider issues that were neither preserved nor fundamental error).

AFFIRMED.

TORPY, LAWSON and COHEN, JJ., concur.


text:
    John M. COLDIRON, Appellant, v. SEMINOLE COUNTY SHERIFF’S DEPARTMENT, Appellee.
    No. 5D06-3622.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      John M. Coldiron, Longwood, pro se.
    David Lane, Sanford, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order denying his motion to set aside a final judgment of forfeiture. Appellant contends that the summary final judgment is void because he was not afforded notice of the hearing. Concluding that the lower court erred in not granting Appellant’s motion, we reverse and remand this cause for further proceedings.

Appellee initiated proceedings to forfeit $10,487 in U.S. currency confiscated from Appellant during his arrest. The forfeiture proceeding was served upon Appellant by publication. Counsel entered an appearance on behalf of Appellant and filed an answer to the forfeiture complaint. Subsequently, counsel was permitted to withdraw. However, the motion to withdraw did not to comply with Florida Rule of Judicial Administration 2.505(f)(1) because it failed to set forth Appellant’s last known address and the certificate of service evidences that the motion to withdraw was not served upon Appellant. The order permitting counsel to withdraw also did not provide an address upon which Appellant may be served with notices and was not sent to Appellant.

Several months after counsel was permitted to withdraw, Appellee filed a motion for summary judgment. The certificate of service states that the motion was served upon Appellant by U.S. mail. There is no indication in the record, however, as to how the address in the certificate of service was associated with Appellant and Appellant states that he never received the motion or notice for hearing. When Appellant did not appear for the hearing on Appellee’s motion for summary judgment, the court entered final judgment.

Because the hearing that resulted in the entry of the judgment was not properly noticed, the final judgment is void. Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA 1999). The lower court’s order denying Appellant’s motion to set aside the final judgment reasoned that Appellant had failed to comply with his burden to keep the clerk informed of his proper address. Therefore, the lower court concluded that Appellant was not entitled to notice. We disagree with this conclusion because Appellant had employed counsel to receive notices in the action and he was not given proper notice of counsel’s attempt to withdraw.

REVERSED and REMANDED.

PALMER, C.J., PLEUS and TORPY, JJ., concur.


text:
    STIHL SOUTHEAST, INC., Petitioner, v. GREEN THUMB LAWN & GARDEN CENTER NEWCO, INC., Respondent.
    No. 5D07-2051.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      Marc C. Chapman and Wendy S. Temple of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., for Petitioner.
    Kevin A. Fernander of Tripp Scott, P.A., Fort Lauderdale, for Respondent.
   PER CURIAM.

The defendant below, Stihl Southeast, Inc., seeks certiorari review of a discovery order on the grounds that the compelled discovery is overbroad, burdensome and contrary to the essential requirements of law. Although certiorari is not available to remedy every erroneous discovery order, it is an appropriate remedy for discovery orders that compel compliance with patently overbroad discovery requests. See Life Care Centers of America v. Reese, 948 So.2d 830, 832 (Fla. 5th DCA 2007); Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006).

In the present case, the trial court held a hearing on Stihl’s objections to Green Thumb’s request for production of documents. For purposes of this opinion, it is unnecessary to discuss the nature of the underlying litigation or the specific discovery requests in dispute. It is sufficient to observe that at the conclusion of the hearing, the trial court stated:

I’m going to overrule the objections in part, and sustain the objections in part. The events complained of occurred prior to August 2004, so the period of time from 2000 to August 2004 is a reasonable period of time. They don’t have to ... respond with respect to correspondence or documents after that time.
Furthermore, the area in Florida would be relevant. But nationwide, I don’t believe, would be relevant. So I mil limit your production in those two ways.

(Emphasis added.)

If the ensuing written order conformed with the trial court’s oral pronouncements, we would find that Stihl had failed to show that the trial court had departed from the essential requirements of law. Unfortunately, the written order (apparently prepared by Green Thumb’s counsel) did not set forth the geographical and time limitations verbally imposed by the trial judge. As a result, the compelled discovery was patently overbroad and was contrary to the essential requirements of law. Accordingly, we grant the petition. On remand, the trial court is directed to enter a written order which conforms to its oral pronouncement.

Petition GRANTED; Order QUASHED.

PALMER, C.J., ORFINGER and EVANDER, JJ., concur.


text:
    Bruce SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-65.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    Bruce Shelton, Century, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Bruce Shelton, appearing pro se, appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion raised four separate claims. We affirm the summary denial of Shelton’s claims one, two and four, without further comment. We reverse the denial as to Shelton’s claim three, with directions that Shelton be afforded an opportunity to amend his motion.

On March 9, 2006, Shelton was convicted by a jury of sexual battery while armed, armed kidnapping, armed burglary of a dwelling and violation of a domestic violence injunction. The trial court sentenced Shelton to thirty-five years in the Department of Corrections. The convictions and sentences were affirmed on appeal. Shelton v. State, 950 So.2d 433 (Fla. 5th DCA 2007).

In claim three of his 3.850 motion, Shelton alleges that his counsel was ineffective for failing to call witnesses who were available and willing to testify in his defense at trial. Because Shelton’s motion fails to identify the purported witnesses, the trial court correctly found the motion to be facially insufficient. See generally, Nelson v. State, 875 So.2d 579 (Fla.2004). However, the Florida Supreme Court has recently ruled that a defendant who files a legally insufficient rule 3.850 motion should be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected. See Spera v. State, 971 So.2d 754 (Fla.2007), rehearing denied, No. SC06-1304 (Fla. Dec. 26, 2007). The trial court denied Shelton’s motion shortly after Spera was issued. Therefore, Spera applies. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992).

Accordingly, we affirm the trial court’s denial of Shelton’s claims one, two and four, and reverse its denial of claim three. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Dennis Ray BURKHART, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4658.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dennis Ray Burkhart, Appellant, challenges the trial court’s Order of Modification of Probation, which imposed an electronic monitoring device as an additional condition of his probation. He argues that the trial court violated the Double Jeopardy Clause when it modified his sentence after the conclusion of his sentencing hearing. The State acknowledges that the modification was improper. We agree. Accordingly, we reverse the modified order of probation that imposes an additional condition of probation and remand with instructions for the trial court to vacate the order.

After Appellant pled nolo contendere to two counts of possession of a controlled substance, one count of possession of drug paraphernalia, and one count of driving while license cancelled, suspended, or revoked, the trial court sentenced him to concurrent sentences of thirty months probation and six months of community control. Following the conclusion of Appellant’s sentencing hearing, Appellant’s probation officer suggested to the trial court that it may have erred in failing to require electronic monitoring as a condition of Appellant’s probation because Appellant had a previous conviction for lewd or lascivious exhibition under section 800.04(7)(c), Florida Statutes. Subsequently, the trial court entered an order modifying Appellant’s sentence to include electronic monitoring as an additional condition of probation.

Because probation is considered a sentence in Florida, an enhancement or extension of the conditions of probation after the conclusion of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions. See Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994); Justice v. State, 674 So.2d 123, 126 (Fla.1996). Section 948.06 sets forth the proper procedure for enhancing the conditions of probation. Under section 948.06, probation may not be enhanced until the probationer has been formally charged with a violation of probation, brought before the court, and advised of the charge. Lippman, 633 So.2d at 1064; Eddie v. State, 933 So.2d 570, 571 (Fla. 1st DCA 2006). Additionally, the double jeopardy protection prohibits enhancement of probation conditions without proof of a violation of probation. Lippman, 633 So.2d at 1064.

However, in Harroll v. State, 960 So.2d 797, 798 (Fla. 3d DCA 2007), the Third District recognized that a trial court may modify a sentence of probation to include statutorily mandated conditions of probation without violating the Double Jeopardy Clause. Specifically, the Harroll court recognized that where section 948.30 requires a probationer to be electronically monitored, a trial court does not err in modifying the probationer’s sentence to correct the omission of this required condition of probation. See id. The Harroll court’s holding rested on the sound premise that a defendant is not placed in double jeopardy when the trial court simply corrects a legally invalid sentence. See id. (citations omitted).

The narrow issue presented in this case is whether the trial court erred in concluding that Appellant’s previous conviction was a qualifying offense under section 948.30(3)(c). Under section 948.30(3)(c), any probationer or community controllee whose crime was committed on or after September 1, 2005, must undergo electronic monitoring as a condition of probation or community control supervision if he or she “[h]as previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older.” The crimes listed in this section of the statute are, respectively, any crime of sexual battery, lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, sexual performance by a child, or selling or buying of minors.

Where a statute enumerates specific terms, it is ordinarily construed as excluding from its operation all those terms not expressly mentioned. Thayer v. State, 335 So.2d 815, 817 (Fla.1976). The crime of lewd or lascivious exhibition, as defined in section 800.04(7), is not listed as a qualifying offense in section 948.30(3)(c). Thus, Appellant’s previous conviction of lewd or lascivious exhibition did not require the trial court to impose electronic monitoring as a condition of probation under section 948.30(3)(c). Because the additional condition was not statutorily mandated, the trial court placed Appellant in double jeopardy when it modified the terms of Appellant’s probation after the close of the sentencing hearing. The State concedes that section 948.30 does not support the trial court’s decision to modify Appellant’s sentence. We commend the State for its candor and conclude that, under the facts of this case, there was no justification for modifying the sentence.

Accordingly, we REVERSE and REMAND with directions for the trial court to vacate the order modifying Appellant’s probation.

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

      . The record does not indicate when Appellant committed this offense. However, Appellant has conceded that the offense was presumptively committed after the effective date of section 948.30(3)(c). Additionally, our ruling in this case renders the date of the offense irrelevant.

      . Although it concedes that section 948.30 does not support the trial court's modification of Appellant’s sentence, the State emphasizes its position that the judgment and sentence originally imposed against Appellant were proper. The only issue Appellant has raised in this appeal is whether the modification itself was proper. Therefore, this decision does not affect the validity of the original judgment and sentence.


author: BENTON, J.

text:
    Stephen BOWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4221.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.

      Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

We entered an order on January 30, 2008, reversing Stephen Bowman’s forty-month prison sentence along with the predicate for the sentence, an order revoking his probation. Our order also reinstated him to probation. We write to explain the basis for our decision.

In accordance with the parties’ plea agreement, the original trial judge had placed Mr. Bowman on “administrative probation,” specifying as a condition of probation a jail term subject, however, as “a matter of grace” to the possible substitution of time at a sheriffs work camp. Addressing appellant, she explained:

... On the Sheriffs work camp, if you don’t sign up or don’t qualify for any reason, even though it’s no fault of your own, the punishment [ie., condition of probation] for this is 30 days jail. It’s a matter of grace that you’re allowed to do the work camp instead of the jail and participate in that program.
But do you understand if, for any reason, you’re unable to do the Sheriffs work camp that the intention is that you do the 30 days jail, or whatever is left of the Sheriffs work camp days?

The original trial judge thus indicated that the condition of probation could be fulfilled by jail time, work camp days, or a combination of the two. She also gave Mr. Bowman credit for two days he had already served in jail, in this way requiring him to serve twenty-eight more days, whether in jail or at the work camp.

Mr. Bowman had completed sixteen work camp days before he was dismissed from the work camp program. (The work camp program accepted medical excuses for five absences but dismissed him, apparently on account of the sheer number of absences, when he missed a sixth scheduled day.) Instead of sending him to jail to serve the twelve days that remained as a condition of his probation, an affidavit was filed alleging that he had violated a condition of his probation. A violation of probation hearing was convened before a different judge, who revoked his probation at the conclusion of the hearing, even though there was no showing that Mr. Bowman’s absences violated work camp rules, much less any condition of probation.

To establish a violation of probation, the State bears the burden of proving “by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). In proving dismissal from the work camp program, the State proved no violation of any condition of probation at all. Although probation officers (relying on erroneous “paper work”) had informed Mr. Bowman that he did not have the option of fulfilling the probationary condition in jail, the assistant state attorney at the revocation hearing, who had not been present at the original sentencing hearing, stated he “would feel somewhat bound to honor” any option the original judge had given when setting the conditions of appellant’s probation.

The dismissal from work camp did no more than trigger the requirement that Mr. Bowman complete his condition of probation by finishing the remaining twelve days in jail. Because he had already served the twelve days necessary to complete the condition of his probation many times over, we ordered his reinstatement to probation. Until we ordered probation reinstated, Mr. Bowman had been incarcerated ever since he was arrested as a result of the probation violation affidavit filed before his probation was revoked on July 21, 2006.

Although the State does not dispute appellant’s contention that scoresheet errors occurred at the original sentencing, we do not reach any question concerning the errors. See Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997). But see Stubbs v. State, 951 So.2d 910, 911 (Fla. 2d DCA 2007) (“[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal.” (quoting Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004))).

WOLF and PADOVANO, JJ., concur.


text:
    Peter HARRIS, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-3409.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Appellant Peter Harris, Gordon, AL, pro se.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the dismissal of appellant’s petition for a writ of habeas corpus, which he filed on behalf of his incarcerated son, Charles E. Harris. Appellant presents arguments that his son should or could have raised on direct appeal. See Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“It is important to note that habeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial.”); White v. Dugger, 511 So.2d 554, 555 (Fla.1987); Robbins v. State, 564 So.2d 256, 257 (Fla. 1st DCA 1990).

AFFIRMED.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    Henry CLIFTON, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-6298.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Henry Clifton, Jr., pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying a petition for writ of mandamus which challenged the setting of his presumptive parole release date is without merit and is rejected. But because the underlying action constituted a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2006), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. Petitioner preserved this issue by filing in the circuit court a motion to vacate the lien. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007). Although the circuit court granted the motion and dissolved the lien, the court refused to authorize a refund of the monies which had been withdrawn from petitioner’s inmate account based on the erroneous lien. We quash that portion of the circuit court’s November 6, 2006, order which refused to authorize a refund. See Villar v. Florida Parole Comm’n, 955 So.2d 664 (Fla. 1st DCA 2007).

Accordingly, the petition is DENIED in part, GRANTED in part, and REMANDED. We direct the circuit court to order reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

ALLEN, KAHN, and DAVIS, JJ., concur.