author: MARSTILLER, J. VAN NORTWICK,

text:
    FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, an agency of the State of Florida, Appellant, v. NATIONAL SAFETY COMMISSION, INC. a Florida corporation, Appellee.
    No. 1D10-6448.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Rehearing Denied Dec. 8, 2011.

      Pamela Jo Bondi, Attorney General, and Jason Vail, Assistant Attorney General, Tallahassee, for Appellant.
    Karen D. Walker and Matthew H. Mears of Holland & Knight, LLP, Tallahassee, and Thomas E. Bishop and Michael G. Tanner of Tanner Bishop, Jacksonville, for Appellee.
   MARSTILLER, J.

The Florida Department of Highway Safety and Motor Vehicles (“Department”) appeals a final judgment ruling that National Safety Commission, Inc., (“NSC”) may unilaterally renew its five-year contract with the Department to print and distribute the Florida Driver’s Handbook (“Handbook”). We reverse, for we conclude the contract language does not give NSC the right to mandate renewal.

Background

In 2004, the Department issued an Invitation to Negotiate (“ITN”) soliciting competitive proposals from vendors to print and distribute the Handbook at no cost to the state. This the Department did under the authority of chapter 283, Florida Statutes, and in keeping with state procurement procedures outlined in chapter 287, Florida Statutes. Chapter 283 permits state agencies to contract with private entities to print agfency-published materials. It also allows private publication of public information brochures, pamphlets, etc., when “the costs of publication or production will be borne in whole or in part by the vendor or the vendor agrees to provide additional compensation in return for the right of the vendor to select, sell, and place advertising that publicizes products or services related to and harmonious with the subject matter of the publication.” § 283.53(l)(a), Fla. Stat. (2004). The ITN specified that “The Contract shall be in effect for 5 years, with one (1) 5 year renewal option contingent upon satisfactory service, unless terminated earlier by the Department....” Further, the contract resulting from the ITN would give the selected vendor the exclusive right to publish and distribute the Handbook during the five-year term.

NSC is a Florida corporation that, according to its website, “is one of the nations’ [sic] leading providers of driver education services” and offers “a variety of online and limited classroom courses ... in all 50 states.” See The National Safety Commission, http://www.nationalsafety commission.com (last visited August 5, 2011). Its offerings include traffic school; driver’s education; and driver, motorcycle and commercial driver (CDL) training. See id. NSC was the only vendor to submit a proposal in response to the Department’s ITN. Its Best and Final Offer (“BAFO”) stated that, at an anticipated cost of $349,521.20, NSC would annually print and provide nearly 1.1 million copies of the Handbook, with the option to provide an additional 750,000 copies each year to high school students. It would maintain a website for all handbooks, which consumers could directly access from the Department’s website by clicking on a text or graphic link thereon. NSC would place Department-approved advertisements both in the printed Handbook and on NSC’s handbook website. The BAFO stated, “NSC will print and provide all handbooks for the 5-year contract period with an option to renew.”

On May 4, 2005, the parties executed a contract “governed by the terms and conditions set forth in ITN No. 002-05 with the exception of the terms submitted by the Contractor’s Best and Final Offer dated April 1, 2005.” As to the contract period and renewal option, the contract stated: “This contract shall begin on the 1st day of July, 2005 and shall terminate on the 30th day of June, 2010. There is one renewal option for a five (5) year period.” And, importing language from the BAFO, the contract also states that NSC “will print and provide all handbooks for the 5-year contract period with an option to renew.” By written amendment, the parties later extended the contract term to December 31, 2010.

Sometime after the contract began, the public learned that the lobbyist for NSC was married to the Department’s then executive director. Thus a cloud of suspicion about the propriety of the contract grew, and in 2008, Florida Providers for Traffic Safety, Inc., sued the Department and NSC to invalidate the contract. In addition, a subsequent Department director discovered that NSC was marketing its products via unsolicited emails to teenagers who were required to provide their email addresses to obtain a Handbook. Moreover, because the advertisements appearing in the Handbook only marketed NSC’s LowestPriceTrafficSchool.com, the public perception was that the Department endorsed LowestPriceTrafficSchool.com and its driver education programs. Finally, the director wanted to move away from the “antiquated strategy” of distributing paper handbooks toward solely providing electronic handbooks. For these reasons, the director decided that although NSC was performing the contract satisfactorily, for policy and business reasons it would be in the State’s best interests not to renew the contract after the term ended. By letter dated November 5, 2009, the director notified NSC of the Department’s intent not to renew. Six months later, NSC’s CEO wrote the director that NSC “is hereby exercising its option to renew the Contract for an additional five-year period.”

When the Department refused to execute the renewal, NSC sued seeking declaratory relief, specific performance and damages. Based on language in the contract elevating the BAFO terms over those in the ITN where they conflict, the trial court interpreted the BAFO as giving NSC the sole option to renew the contract. Further, the court found NSC “clearly possesses an unambiguous, unilateral right” to renew in the absence of unsatisfactory performance of its contractual responsibilities. The court granted NSC’s plea for specific performance, ordering the Department to “recognize and adhere to [NSC’s] valid exercise of its five-year renewal option and ... faithfully discharge its contractual obligations....”

Analysis

We interpret the contract de novo and conclude that the BAFO provision addressing the renewal option did not change, and thus supersede, the relevant ITN provision, nor does the language give NSC the unilateral right to renew the contract.

The renewal clauses at issue are as follows:

[From the ITN]
3.2 TERM OF CONTRACT: The Contract shall be in effect for 5 years, with one (1) 5 year renewal option contingent upon satisfactory service, unless terminated earlier by the Department.... [From the BAFO]
(1) NSC will print and provide all handbooks for the 5-year contract period with an option to renew.
[From the contract]
CONTRACT PERIOD: This contract shall begin on the 1st of July, 2005 and shall terminate on the 30th day of June, 2010 [extended by amendment to December 31, 2010]. There is one renewal option for a five (5) year period.
1. The Contractor will print and provide all handbooks for the 5-year contract period with an option to renew.

These provisions reflect no inconsistency between the ITN and the BAFO as to contract renewal. Rather, read together they allow either party to seek renewal of the contract. Indeed, the BAFO language makes clear the option is bilateral. Neither party can force the other into another five-year contract.

The renewal language is essentially the same as that in section 287.058(l)(f), Florida Statutes, which, this court held in Department of Corrections v. C & W Food Service, Inc., 765 So.2d 728, 730 (Fla. 1st DCA 2000), “authorizes the parties to renew a state procurement contract in subsequent years, but ... does not create a right to renewal.” Section 287.058(1) requires written agreements for competitively procured contractual services. It also provides that such agreements may contain “[a] provision specifying that the contract may be renewed for a period that may not exceed 3 years or the term of the original contract, whichever period is longer ... and specifying that renewals shall be contingent upon satisfactory performance evaluations by the agency .... ” § 287.058(l)(f), Fla. Stat. (2004). “The purpose of the statute is to exempt the parties from the competitive bidding process for a limited time if they are mutually satisfied with the agreement.” C & W Food Service, 765 So.2d at 730 (emphasis added). But “it does not guarantee any vendor the right to continue to do business with the state beyond the original term of the contract.” Id. Even if, as NSC argues, “no cost” publishing contracts authorized by section 283.53 already are exempt from the competitive procurement requirements of chapter 287 — an issue we need not address today — the point is that the contract language tracks statutory language requiring mutual agreement of the parties to renew a contractual services agreement. The option to renew is not unilateral for either party.

We therefore reverse the final judgment on appeal and remand the cause for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WETHERELL, J., concurs; VAN NORTWICK, J., dissents with opinion.

VAN NORTWICK,

dissenting.

I read the contract provisions applicable here to grant to National Safety Commission, Inc. (NSC), a unilateral option to renew the contract awarded to it by the Florida Department of Highway Safety & Motor Vehicles (Contract) contingent upon NSC’s satisfactory service under the Contract. The record here is undisputed that the Department acknowledges that NSC satisfactorily performed all of its obligations under the Contract and that the Department’s decision to dispute the renewal was based on grounds other than NSC’s performance. Further, neither the applicable statute, section 283.58, Florida Statutes (2004), nor the case authority relied upon by the majority opinion, Department of Corrections v. C & W Food Service, Inc., 765 So.2d 728 (Fla. 1st DCA 2000), provides a basis for reversal. Accordingly, I respectfully dissent.

Background

The gravamen of this appeal concerns the interpretation of the renewal provision of the Contract that was awarded to NSC by the Department on May 4, 2005, pursuant to which NSC prints and distributes the Florida Official Driver’s Handbook at its own expense and at no cost to the State of Florida. In accordance with section 283.58, Florida Statutes, the Contract gives NSC the right to select, sell and place Department-approved advertising in the Handbook. In the Contract, the parties agreed that NSC would print and provide a specified quantity of Handbooks at NSC’s expense for a “5-year contract period with an option to renew.” Prior to expiration of the initial term of the Contract, NSC notified the Department that it was exercising its renewal option and that NSC would continue to print and distribute the Handbook at no cost to the State of Florida for an additional five years. The Department refused to recognize NSC’s renewal of the Contract.

Following a non-jury trial, the trial court entered a final judgment finding that NSC possessed the unilateral right to renew the Contract and that the Department must specifically perform the Contract. In its final judgment, the trial court explained its ruling, in part, as follows:

The parties, through the Invitation to Negotiate process, negotiated and established their respective rights and duties, and expressed them in an undisputedly valid and binding written document, the Contract. It is evident from the face of the Contract that the parties knew how to make a provision in the Contract contingent upon mutual agreement of the parties. The parties chose, however, not to use the words “mutual agreement” or “mutual” in the renewal provisions of the Contract. They also chose not to mention the Department in the renewal provisions of the Contract. Instead, the Contract exclusively references the Plaintiff and states that it is Plaintiffs option to renew. Accordingly, when the contract is construed as a whole and when its provisions are read together, the Plaintiff clearly possesses an unambiguous, unilateral renewal right under the Contract.
Despite its argument that the renewal of the Contract requires mutual consent, the Department has not put forward any reasonable interpretation of the renewal provision of the Contract that would support a renewal contingent upon mutual agreement. Instead, the Department invites the Court to essentially insert the phrase “by mutual assent” into the renewal provisions of the Contract. The Court, however, may not insert terms into a private contract that the parties did not choose, no matter how reasonable such terms might appear. Having failed to include a “mutual assent” requirement in any renewal clause in the Contract or any reference whatsoever to the Department in connection with any renewal option under the Contract, it would be improper for the Court to now add this term five years after the fact simply for the benefit of the Department.

(Citations and footnote omitted). The Department has appealed that final judgment.

The Option to Renew the Contract

The Department’s Invitation to Negotiate (ITN), which solicited proposals from vendors to print and distribute the Handbook at no cost to the State, provides:

8.2 TERM OF CONTRACT: The Contract shall be in effect for 5 years, with one (1) 5 year renewal option contingent upon satisfactory service, unless terminated earlier by the Department under the terms provided herein, subject to an annual appropriation by the State Legislature.

(Emphasis added, bold in original). NSC’s Best and Final Offer dated April 1, 2005, which is expressly incorporated into the Contract, similarly provides:

NSC will print and provide all handbooks for the 5-year contract period with an option to renew.

(Emphasis added).

The first page of the Contract between the parties provides:

CONTRACT PERIOD: This contract shall begin on the 1st day of July, 2005 and shall terminate on the 30th day of June, 2010. There is one renewal option for a five (5) year period.

(Emphasis added, bold in original). This same page of the Contract further states:

The Contractor agrees to provide the following services:
1. The Contractor will print and provide all handbooks for the 5-year contract period with an option to renew ....

(Emphasis added, bold in original).

While all three of these documents collectively set out the terms for renewal of the Contract, the Contract expressly establishes a hierarchy of terms, with the terms of the Best and Final Offer controlling:

This Contract is governed by the terms and conditions set forth in ITN No. 002-OS with exception of the terms submitted by the Contractor’s Best and Final Offer dated April 1, 2005.

The controlling provision in the Best and Final Offer is clear and unequivocal: “NSC will print and provide all handbooks for the 5-year contract period with an option to renew.” As the trial court noted in the final judgment, the Department is not mentioned in connection with the right to renew the Contract. Further, none of these provisions includes a clause requiring any renewal to be by “mutual agreement” of the parties. Both the Contract and the Best and Final Offer contain substantively identical renewal language and, in my view, make clear that renewal is at NSC’s option. The majority opinion, in effect, rewrites the Contract to add the phrase “by mutual assent” in the renewal provision, so that the renewal provision of the Best and Final Offer would read “NSC will print and provide all handbooks for the 5-year contract period with an option to renew [by mutual assent].”

The record reflects that the Department stipulated prior to trial that the renewal provisions of the Contract are unambiguous. “[I]t is well-settled that ‘[a] party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract.’ This principle applies even where the terms of the contract are ‘harsh’ or ‘out of the ordinary.’ ” St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728, 732 (Fla. 1st DCA 2009) (quoting Brooks v. Green, 993 So.2d 58, 61 (Fla. 1st DCA 2008)); see also Jenkins v. Eckerd Corp., 913 So.2d 43, 52 (Fla. 1st DCA 2005) (“[I]t is the obligation and right of the parties to negotiate and draft the provisions of the lease, not a court.”).

As the trial court recognized in its final judgment, it is apparent from the Contract itself that the Department was aware of the meaning and use of a “mutual agreement” clause. The words “mutual agreement” or “mutual consent” appear in other locations in the Contract, but not with respect to renewal. For example, the Contract provides that “with the mutual agreement of both parties” it may be terminated without penalty prior to the end of the Contract period. Had the parties intended to make the renewal of the Contract subject to “mutual agreement” they would have included that phrase in the Contract. See St. Johns Inv. Mgmt. Co., 22 So.3d at 733 (refusing to read into provision of contract language that was included elsewhere in contract stating that “[t]he parties used different language because they intended a different result.”).

More importantly, the trial court’s ruling is consistent with the law of option contracts. As stated in 1 Williston on Contracts § 5:16 (4th ed.):

The traditional view regards an option as a unilateral contract which binds the optionee to do nothing, but grants him or her the right to accept or reject the offer in accordance with its terms within the time and in the manner specified in the option. Thus, the optionee has the open discretion to take or to leave the proposal. An option to purchase or to sell is not itself the contract to purchase or to sell, and this is equally true of all transactions in which an option is sought or given. Its outstanding factor is that the optionee is not bound until it acts on the option one way or another. At the same time, during the period when the optionee is free to accept or reject, the optionor cannot act in derogation of the terms of the option. During the option period the irrevocable offer may only be modified, released or rescinded by agreement of the parties. It cannot be unilaterally withdrawn. Thus, the op-tionee has discretion in regard to the action that will be taken under the option, but the optionor does not.

In Polk v. BHRGU Avon Properties, LLC, 946 So.2d 1120, 1122 (Fla. 2d DCA 2006), the court adopted the definition in Restatement (Second) of Contracts § 25 (1981) as follows: “An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor’s power to revoke an offer.” While it is true that an option contract may be bilateral, 3 Corbin on Contracts § 11.2 (Rev. Ed.), that is usually because each party "has made a binding promise. Id. Here, the majority maintains the option was bilateral because it required the joint agreement of both parties to be effective. As the trial court found, however, the words “mutual agreement” or “mutual” are not contained in the renewal provisions of the contract.

On the face of the unambiguous contractual provisions at issue, the trial court properly concluded that it was without authority to add any additional terms to the Contract and refused to rewrite the Contract by adding a “mutual assent” requirement.

NSC’s Satisfactory Service

Under the Contract, NSC’s right to renew is “contingent upon satisfactory service.” The trial court correctly construed this phrase to mean satisfactory service by NSC in the performance of its contractual obligations. At trial, representatives of the Department testified that NSC had performed all of its obligations under the Contract and that the Department never conducted any evaluations of NSC’s performance under the Contract. Further, extensive evidence was presented at trial establishing that the Department’s decision not to renew the Contract was wholly unrelated to NSC’s service under the Contract, but instead was due to the Department’s “business decision” not to continue the Contract to “hit the restart button” and use a “different model.” It is apparent from the record that the officials in the Department believed they could decide not to renew the Contract for reasons wholly unrelated to NSC’s service under the Contract. For example, the executive director testified: “I didn’t terminate the contract due to a failure in the performance of the contract. I just simply didn’t renew it.” Thus, the trial court’s finding that a “satisfactory service” or “satisfactory performance” requirement would not alter the outcome, because the Department’s decision to dispute the renewal was based on grounds other than NSC’s performance under the Contract, was supported by the undisputed evidence in the record.

C & W Food Service is Not Controlling

The majority opinion mistakenly relies upon this court’s decision in Department of Corrections v. C & W Food Service, Inc. as requiring mutual agreement for the exercise of the renewal option here. Because C & W Food Service is construing a very different renewal provision than is before us and is addressing a different issue, C & W Food Service does not control the case under review. The contract at issue in C & W Food Service expressly provided that any renewal of the contract was to be based upon mutual agreement. C & W Food Service, 765 So.2d at 729. C & W Food Service sued the Department of Corrections when the Department did not renew the contract, arguing that the Department failed to negotiate in good faith for renewal. Id. In light of the express “mutual agreement” language in that contract, this court held that “the contract was not renewable as a matter of right” and reversed the trial court’s award of damages to C & W. Id. at 731.

C & W Food Service is distinguishable from the case under review both because the contract there expressly stated that renewal was only to be by “mutual agreement” and because the issue in C & W Food Service was materially different from the issue before the Court here. At issue in C & W was whether section 287.058(1)(f), Florida Statutes, requires an agency to negotiate in good faith for renewal under an agreement that expressly states it may only be renewed by “mutual agreement.” Id. at 730-31. On the other hand, the issue here is whether under section 283.58 a state agency may choose to enter into a binding agreement that gives a vendor a unilateral right to renew the contract where the vendor is incurring all costs associated with the contract and receives no payment of government funds.

“Contracts are to be construed in accordance with the plain meaning of the words contained therein, and it is never the role of the trial court to rewrite a contract to make it more reasonable for one of the parties.” Ferreira v. Home Depot/Sedgwick, CMS, 12 So.3d 866, 868 (Fla. 1st DCA 2009); see also St. Johns Inv. Mgmt. Co., 22 So.3d at 731 (“[W]henever possible, contracts must be construed according to their plain language.”). In addition, a contract must be construed as a whole, giving effect to every portion of the contract. Hughes v. Prof'l Ins. Corp., 140 So.2d 340, 345 (Fla. 1st DCA 1962); see also Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So.2d 652, 654 (Fla. 2d DCA 2004) (“Courts must ‘construe contracts in such a way as to give reasonable meaning to all provisions,’ rather than leaving part of the contract useless.” (quoting Hardwick Props., Inc. v. Newbern, 711 So.2d 35, 40 (Fla. 1st DCA 1998))). In my view, the trial court correctly construed the Contract as whole, including those documents incorporated by reference into the Contract, and, in accordance with the plain meaning of the words contained in the Contract, correctly concluded that NSC has a unilateral right to renew the Contract for another five-year term.

I would affirm the final judgment on appeal.

      . English and Spanish versions of the "Official Florida Driver's Handbook,” the "Official Florida CDL Handbook” and the "Official Florida Motorcycle Handbook.”

      . In January 2010, the Department entered into a Settlement Agreement providing that the Department would not renew the contract with NSC. The Department further agreed to use its best efforts to produce a Handbook without advertisements for driver education and improvement courses, notify all driver improvement providers of any competitive procurement for the 2011 Handbook, and seek necessary funding from the Legislature if the 2011 Handbook were produced in-house. The final judgment on appeal states "the Department has no objection to the voiding of the Settlement Agreement....”

      . We note, as well, that under "Amendment No. 2” to the contract, executed in March 2008, the Department could not terminate the contract for convenience or in the best interests of the state — rights it had under the terms of the ITN.

      . See Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010).

      . We note that the parties’ contract resulted from a competitive solicitation conducted according to section 287.057, whether or not the Department was required to do so. Having submitted itself to chapter 287 in order to win the contract, NSC should not now complain if chapter 287 governs the contract.

      . Chapter 283.58, Florida Statutes (2004), authorizes the Department to contract for private publication of public information materials where the cost is borne by the vendor in return for the right of the vendor to advertise products or services in the publication.

      . The majority opinion alludes to "a cloud of suspicion about the propriety of the contract,” majority opinion, page 4. Yet, the trial court found that "the Department’s decision not to renew the Contract was a 'business decision' made by its Executive Director based upon certain structural and policy reasons as well as the Department's desire to start over with a ‘clean slate' in light of unproven allegations by [NSC’s] competitors.” (Emphasis added).

      . The renewal clause in C & W Food Service, 765 So.2d at 729, provides:
      This Contract may be renewed for two additional one-year periods after the initial Contract period, upon the same terms and conditions contained herein. Renewal will be based on mutual agreement, conditioned at a minimum, on satisfactory performance evaluations by the Department and subject to the availability of funds and shall be exercised no later than thirty (30) days pri- or to Contract expiration.
      (Emphasis added).

      . Section 287.058 does not apply here because by its own terms it applies only to "the procurement of contractual services in excess of the threshold amount in section 287.017 for CATEGORY TWO.” § 287.058(1), Fla. Stat. (2004). In 2005, the CATEGORY TWO amount was $25,000. § 287.017(l)(b), Fla. Stat. (2004). The provisions of chapter 287 make clear that a "procurement of contractual services” under section 287.058 must involve the expenditure of government funds. For example, section 287.057(5), states that competitive procurement is required "[w]hen the purchase price of commodities or contractual services exceeds the threshold amount provided in s.287.017 for CATEGORY TWO.” § 287.057(5), Fla. Stat. (2004). Similarly, section 287.0582, Florida Statutes, prohibits an agency from entering into a contract "for the purchase of services or tangible personal property” absent language expressly making the contract contingent upon a legislative appropriation. § 287.0582, Fla. Stat. (2004). As the trial court correctly found, there is no "purchase” or "purchase price” under the Contract because all costs are borne by NSC and the Contract does not include any appropriation of state funds.


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    Clinton COLSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2833.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Rehearing Denied Nov. 22, 2011.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Following convictions for attempted second degree murder, attempted felony murder, armed robbery and fleeing or attempting to elude a law enforcement officer, the appellant raises several issues on appeal. Only one merits discussion.

The appellant contends that a successor judge should not have ruled on the appellant’s motions for a new trial. Even though the appellant’s motions raised an issue as to the weight of the evidence, there was no significant issue of credibility in this case or any substantial dispute as to the material factual occurrences. The successor judge properly considered the appellant’s motions as matters within the judge’s lawful authority.

After the jury returned guilty verdicts, the appellant discharged his trial counsel and filed a pro se motion seeking to disqualify the presiding judge from further proceedings in the case. In response, the judge recused himself and the appellant filed a pro se motion for new trial. The case was assigned to a successor judge, who held a hearing on the motion for new trial. On the day of that hearing, the appellant submitted a second pro se motion for new trial. In his motions, the appellant asserted that the case involved circumstantial evidence and inferences, and issues of mental intent. In addition, the appellant suggested that police officers had not testified truthfully. At the hearing, the successor judge orally denied the appellant’s requests for a new trial and the appellant objected to the judge’s consideration of the matter.

The appellant contends that because the successor judge did not hear the evidence at trial, he could not make an assessment as to the weight of the evidence in connection with the motions for new trial. While cases such as Kelley v. State, 16 So.3d 196 (Fla. 1st DCA 2009), do recognize such a limitation, that restriction on the successor judge’s authority does not necessarily apply in situations where there is no legitimate issue regarding the credibility of live witnesses in their material testimony. See State v. May, 703 So.2d 1097 (Fla. 2d DCA 1997); see also Sanford v. State, 687 So.2d 315 (Fla. 3d DCA 1997). Because the decision of the trial court did not “require the successor judge to make any credibility determinations,” the successor judge properly considered the motions filed by the appellant after the appellant successfully moved to disqualify the original presiding judge. State v. May, supra.

The denial of the appellant’s request for a new trial, and the convictions on appeal are affirmed.

BENTON, C.J., and MARSTILLER, J., concur.


author: THOMAS, J.

text:
    Robert TAYLOR, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-2081.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Rehearing Denied Nov. 30, 2011.

      Robert Taylor, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   THOMAS, J.

Petitioner Robert Taylor seeks certiora-ri review of an order of the circuit court denying his petition for writ of habeas corpus, in which he challenged an order of the Florida Parole Commission revoking his conditional release supervision. We find that under the facts of this case as determined by the parole examiner, the Commission abused its discretion in revoking Petitioner’s supervision, resulting in a miscarriage of justice.

We recognize that in the exercise of second-tier certiorari review, we are not at liberty to enter judgment on the merits or direct the lower tribunal to enter any particular order. See Tedder v. Fla. Parole Comm’n, 842 So.2d 1022 (Fla. 1st DCA 2003). Instead, in finding that Petitioner has demonstrated an entitlement to relief, our only option is to grant the petition and quash the order to which it is directed. See Graham v. Fla. Parole Comm’n, 58 So.3d 316 (Fla. 1st DCA 2011). Accordingly, the order denying Petitioner’s petition for writ of habeas corpus is quashed, and the matter is remanded to the circuit court for expedited reconsideration of his petition.

PETITION GRANTED. This case is REMANDED with instructions consistent with this opinion.

ROBERTS and CLARK, JJ., concur.


author: WELLS, Chief Judge.

text:
    McKESSON MEDICATION MANAGEMENT, LLC., Appellant/Cross-Appellee, v. Amanda SLAVIN, Appellee/Cross-Appellant.
    No. 3D09-2077.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Rehearing Denied Dec. 22, 2011.

      Carlton Fields, Matthew J. Conigliaro, St. Petersburg, and Christine Davis Graves, Tallahassee; Clarke Silverglate & Campbell, Spencer Silverglate, Miami, and Karen H. Curtis, for appellant/cross-appel-lee.
    Colson Hicks Eidson, Julie Braman Kane, Joseph J. Kalbac and Barbara A. Silverman, Coral Gables; Ross & Girten and Lauri Waldman Ross, Miami, for ap-pellee/eross-appellant.
    Lawrence A. Gonzalez, and Lori K. Weems Tallahassee, Wilson, Elser, Mos-kowitz, Edelman & Dicker, Miami, Lori S. Nugent and Josh Kantrow, Chicago, amici curiae for the Florida Society of Health-System Pharmacists and Florida Pharmacy Association.
    Before WELLS, C.J., and RAMIREZ, and EMAS, JJ.
   WELLS, Chief Judge.

McKesson Medical Management, LLC (“McKesson”) appeals from a final judgment in favor of Amanda Slavin on a theory of negligence, claiming that the trial court erred in denying its motion for a directed verdict. Because we agree that Slavin’s claim against McKesson failed as a matter of law, we reverse. We also find no merit in Slavin’s cross-appeal.

McKesson provided pharmacy services to Mt. Sinai Medical Center pursuant to a Pharmaceutical Services Agreement. Under that agreement, McKesson operated an on-site twenty-four hour pharmacy, multiple on-site satellite pharmacies open during regular business hours, and locked medicine cabinets located in the hospital’s surgical suites. Each surgical suite was equipped with a telephone with direct access to the hospital’s on-site around-the-clock pharmacy.

On October 24, 2003, Amanda Slavin underwent exploratory surgery at Mt. Sinai to locate and repair a spinal fluid leak which presented following a prior spinal surgery. During surgery, Slavin’s neurosurgeon, Dr. Mario Nanes, instructed the circulating nurse, Waymond Jones, to obtain two ampules of methylene blue, a drug frequently used as a medical dye. Dr. Nanes, who was having trouble locating the source of the spinal fluid leak, did not advise Nurse Jones as to why he needed this drug or how he intended to utilize it. Nor did Nurse Jones question the neurosurgeon as to his purposes. Rather, he retrieved the methylene blue ordered by the physician from the locked medicine cabinet located in the surgical suite and gave it to the surgical assistant, who in turn gave it to the doctor, who injected it into Slavin’s spine.

Methylene blue, by all accounts, has been prescribed and utilized by physicians for numerous purposes for over a century. While frequently used as a dye marker or to locate leaks, it has long been (for over fifty years) contraindicated for intraspinal injection. As might be expected, as soon as Slavin regained consciousness following surgery, she presented classic signs of neurotoxic poisoning and ultimately developed a rare form of arachnoiditis, a painful condition which causes widespread damage to the nervous system — injuries which are progressive, intensely painful and irreversible.

Slavin subsequently brought suit against Dr. Nanes, Mt. Sinai, and McKesson alleging various negligence claims. As to McKesson, Slavin alleged, among other things, that it breached a duty of care to her by failing to establish appropriate procedures for the management, stocking and dispensation of the drugs stored in the surgical suite medicine cabinet, by failing to provide written or oral warnings of the contraindications of methylene blue to Dr. Nanes during surgery, and by failing to comply with its agreement with Mt. Sinai to adequately train and counsel hospital staff regarding medications retrieved from the medicine cabinet.

McKesson’s motion for summary judgment, which argued in part that its agreement with Mt. Sinai did not establish a duty of care to Slavin, was denied. Following a multi-day trial, a jury returned a verdict finding Dr. Nanes negligent in causing Slavin’s injuries. As to McKesson, the jury rejected both Slavin’s claim that McKesson breached a duty in stocking the drugs located in the medicine cabinet in the suite where Slavin underwent surgery and her claim that McKesson breached a duty to make -written and oral warnings of the contraindications of methylene blue available to Dr. Nanes during the intraspi-nal surgery:

VERDICT
2. Was there negligence on the part of Defendant McKesson Medication Management LLC which was a legal cause of loss, injury, or damage to Plaintiff Amanda Slavin with regard to:
the stocking of Methylene Blue ampules in the medication cabinet for the operating rooms
YES_ NO/
or
the availability of drug information or warnings
YES_ NO ¿

The jury did, however, find that McKes-son breached a duty to train the hospital’s staff with respect to obtaining information (i.e., contraindications) regarding drugs during surgery:

2. Was there negligence on the part of Defendant McKesson Medication Management LLC which was a legal cause of loss, injury, or damage to Plaintiff Amanda Slavin with regard to:
the training of the nursing or medical staff at Mt. Sinai Medical Center concerning the obtaining of information regarding medications utilized during surgery
YES J NO_

Damages in the total amount of $38,323,196 were assessed, with McKesson found responsible for fourteen percent of that award. McKesson’s motion for directed verdict was denied, final judgment was entered, and this appeal ensued. McKesson raises a number of issues on appeal, only one of which, relating to its lack of duty, need be addressed as it is dispositive.

As Clay Electric Cooperative, Inc., v. Johnson, 873 So.2d 1182, 1185 (Fla.2004), explains, a cause of action sounding in negligence is comprised of four elements: duty, breach of that duty, injury proximately caused by that breach, and a resulting damage or loss. See also Delgado v. Laundromax, Inc., 65 So.3d 1087, 1089 (Fla. 3d DCA 2011) (same). To recover on such a claim, the claimant must first demonstrate that the defendant owed an “obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007) (quoting Clay Electric, 873 So.2d at 1185). Determining whether the claimant has made a showing that such an obligation or legal duty exists is a question of law for a court to make:

The determination of the existence of a duty of care in a negligence action is a question of law. See McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992). “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” Id. at 502. A duty may arise from multiple sources: “(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (quoting McCain, 593 So.2d at 503 n. 2).

Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005).

In this case, any duty owed to Slavin would fall under the fourth category discussed in Clay Electric — that is, a duty arising from the general facts of the case. However, because the jury rejected Sla-vin’s claims that McKesson breached a duty in either the stocking of methylene blue in the surgical medicine cabinet or in making available the information and warnings about the drugs stocked in that cabinet, we need only address Slavin’s third claim, the one that the jury decided in Slavin’s favor, that McKesson had a duty to “train[ ] ... the nursing or medical staff at Mt. Sinai Medical Center concerning the obtaining of information regarding medications utilized during surgery.” According to Slavin, that duty arose of out of the Pharmaceutical Services Agreement that McKesson had with the hospital. As to this claim, we find no duty was demonstrated.

According to Slavin, McKesson’s duty to train the hospital’s nursing and medical staff about obtaining information on medications utilized during surgery stemmed from schedule 2.1F of the Mt. Sinai/McKesson Pharmaceutical Services Agreement. That schedule generally obligated McKesson to conduct education programs for Mt. Sinai’s staff “pertaining to pharmaceutical services.” More particularly, according to Slavin, schedule 2.1F obligated McKesson to provide those services set forth in two of McKesson’s corporate policies identified as PM125 and PM201. Slavin attempted to establish this claim through an expert witness who testified about what he thought the agreement and McKesson’s corporate policies said and what he believed they legally required.

Slavin’s expert witness testified that under the agreement, the two policies imposed a duty on McKesson to educate all of the hospital’s professional staff not only about the distribution of drugs, but also about the peculiarities and the specific properties of all drugs whenever that information was needed:

Q.... Now let’s shift over to education .... Would you please tell the jury how you came to your conclusions, how you went about the task of reaching your conclusion with respect to education, starting with the agreement between McKesson and Mount Sinai.
A. Well, I can’t cite chapter and verse, but contractually it’s my understanding that part of the services provided was [sic] to provide education to the professional staff of the hospital relative not only to the distribution of drugs but to the peculiarities and the specific properties of drugs when that information is needed.

(Emphasis added). With respect to the retrieval of drugs from the surgical suite medicine cabinet during a surgical procedure, Slavin’s expert testified that this duty to train included “emphasizing] the importance of knowing about those drugs and the aspects that might render those drugs appropriate or inappropriate for a given patient” — which in this case meant that McKesson should have trained Nurse Jones to learn the contraindications of methylene blue prior to giving the drug to the surgical assistant, who then gave it to Dr. Nanes for administration to Slavin.

However, PM125 and PM201 say no such thing. They also impose no duty on McKesson to either educate professional staff as to the “peculiarities and specific properties of drugs,” or to train “nursing or medical Staff at Mt. Sinai Medical Center concerning the obtaining of information regarding medications utilized during surgery” as Slavin’s expert opined.

PM125 titled “Nursing Orientation to Pharmacy Services” states that its purpose is to “ensure that the nursing staff has undergone orientation, training, and education on pharmacy services and medication use processes in which they are involved.” To further this policy and accomplish its goal, the Director of Pharmaceutical Services is required to “collaborate” with the Department of Nursing to ensure that nurse orientation “include[s] at least the following topics”:

1. Pharmacy hours of operation
2. Medication Distribution System
B. Intravenous Admixture Service
4. Controlled Substance Procedures
5. Emergency medication procedures
6. After hours procedures
7. Food-drug interactions
8. Patient education
9. Formulary
10. Patient’s own medications
11. Stop Orders
12. STAT [emergency] versus routine orders
[And][b]ased on need, the Director of Pharmacy ... shall coordinate with the Department of Nursing to provide nursing education on new technology, processes, and information that impact nursing’s role in the medication use process.

(Emphasis added). Nothing in PM125 obligates McKesson to educate Mt. Sinai’s staff as to “the peculiarities and specific properties” of methylene blue — or to otherwise train Mt. Sinai’s staff “concerning the obtaining of information regarding medications utilized during surgery” as the jury found — when retrieving that drug from the surgical suite medicine cabinet during surgery. Certainly, PM125 did not obligate McKesson to train Nurse Jones to learn the contraindications of methylene blue during Slavin’s surgical procedure when Dr. Nanes ordered it.

PM201 similarly imposes no such duty to train on McKesson. PM201, titled “After Hours Retrieval of Medications,” states its purpose as ensuring “availability and proper retrieval of medications after normal Pharmacy hours,” and expressly states that the procedures it enumerates are to ensure controls when no on-site pharmacy is available:

Policy:

After hours procedures shall ensure adequate availability and control of medications when the pharmacy is closed. To deliver consistent quality, the organization has a means of providing pharmacy services when the on-site pharmacy is closed or not available.

(Emphasis added). The uncontested testimony was that the pharmacy never closed at Mt. Sinai. Thus, by its terms, PM201 did not apply here. The procedures delineated in PM201 confirm this conclusion, in pertinent part providing for retrieval of medications when an on-site pharmacy is closed. Despite the fact that PM201 is directed to medication retrieval when no pharmacy is open, Slavin relied on Procedure V of PM 201 to support her claim that McKesson had a duty to train Mt. Sinai’s nurses to ascertain the contraindications of all medications ordered by a physician during surgery. Procedure V provides:

V. All medications removed from the night locker or pharmacy after hours must be double checked for accuracy by another nurse or physician before being administered to the patient. Documentation of this activity should be made in the patient medication administration record (MAR).

(Emphasis added). Slavin’s expert opined that this procedure “put into place a double check and balance so that each individual has to check the other — that the medication is appropriate.” (Emphasis added). Procedure V neither says nor requires any such thing.

Procedure V, even if applicable, only required hospital staff to double check the “accuracy” of a drug being retrieved from the medicine cabinet, not the “appropriateness” of medications retrieved. Accurate and appropriate are two different words with entirely different meanings. Accurate is defined as being exact, correct, or precise. Accuracy Definition, Merriam-webster.com, http://merriam-webster.eom/ dictionary/accuracy (last visited Sep. 21, 2011). By contrast, appropriateness is defined as being suitable, compatible, or fitting. Appropriateness Definition, Merriam-webster.com, http://memam-webster. com/dictionary/appropriateness (last visited Sep. 21, 2011). Thus, double checking for “accuracy” means professional staff removing medications from the medicine cabinet must double check to confirm that the medication being dispensed is the same as that ordered — in this case methylene blue — and in the strength and dosage form required. There is no obligation to check for “appropriateness,” which would arguably require any professional staff removing medications from the medicine cabinet to double check to confirm that the medication being dispensed was suitable for the physician’s intended purposes.

While Procedure V expressly requires the former, it in no manner requires the latter. It also does not expressly require training of any sort, much less training a nurse who retrieves medications from the surgical suite medicine cabinet on a doctor’s orders during surgery to determine the appropriateness of the use of the drug ordered before handing it over. Absent evidence that the parties to an agreement intended to endow a special meaning to the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words utilized. See Wood/Fay Realty Grp., Inc. v. New Aquarius Corp., 842 So.2d 914, 917 (Fla. 3d DCA 2003); see also Bergman v. Bergman, 145 Fla. 10, 199 So. 920, 921 (1940). Thus, neither the Pharmaceutical Services Agreement nor any of McKesson’s policies or procedures obligated McKesson to train the hospital’s professional staff concerning the obtaining of information regarding medication utilized during surgery so as to double check the appropriateness of any medication ordered by a physician.

In sum, the duty claimed to be owed by this defendant was based on the misinterpretation of an inapplicable contract provision, and as such it cannot stand; the existence of a duty owed by McKesson to this plaintiff was not, therefore, demonstrated. As a matter of law, judgment in McKesson’s favor should have been granted. We further find Slavin’s cross-appeal to be without merit and affirm the trial court’s denial of her motion for a directed verdict without discussion.

Accordingly, the judgment entered against the pharmacy is reversed with this matter remanded for entry of judgment in its favor.

      . We thank the Florida Society of Health-System Pharmacists and Florida Pharmacy Association for the amici briefs filed herein.

      . Dr. Nanes testified that he intended to use the drug as a dye to locate the source of the spinal fluid leak.

      . Slavin settled with the hospital prior to trial.

      . Schedule 2. IF expressly provides that ''[McKesson] shall conduct in-service educational programs for appropriate committees and staff of the Hospital pertaining to pharmaceutical services on an as needed or as requested basis.”

      . This expert’s testimony with respect to a contract and corporate policies that he reviewed in order to reach his determinations, but to which he otherwise claimed no familiarity or knowledge of their custom and usage in the hospital pharmacy setting, amounted to an improper legal conclusion. As has been explained:
      While witnesses may be permitted, in a proper case, to give an opinion on an ultimate fact involved in the case, there is a strong consensus among the jurisdictions, amounting to a general rule, that witnesses may not give an opinion on a question of domestic law or on matters which involve questions of law.... The testimony of expert witnesses is, in general, confined to matters of fact, as distinguished from matters of law.... Basically expert or nonex-pert opinion that amounts to a conclusion of law cannot be properly received in evidence since the determination of such questions is exclusively within the province of the court.

        Bissell v. State, 605 So.2d 878, 879-880 (Fla. 5th DCA 1992) (Cowart, J., dissenting) (quoting 31A Am.Jur.2d Expert and Opinion Evidence, §§ 136-138); see Edward J. Seibert, A.I.A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc., 573 So.2d 889, 891-92 (Fla. 2d DCA 1990) ("An expert should not be allowed to testify concerning questions of law.”).

      . The evidence adduced below confirms that any such requirement would be unworkable. There is no testimony that a surgeon needs to explain his or her purposes or how he or she intends to use a medication when ordering it during surgery, making a propriety check difficult, if not impossible. Nurse Jones also testified that because he is outside the sterile field and also performing other responsibilities during a surgical procedure, he may have no idea how a doctor will use a drug requested during surgery and that he may not even be able to see how it is actually used. Marsha Parker, the only nursing expert who testified at trial, testified that nurses are not required to learn the contraindications of medications ordered by a physician during surgery, but are only required to obtain the correct medication in the requested dosage.

      . Slavin’s expert acknowledged a "surgery exception” to the general rule that any medication must be checked by a pharmacist before being dispensed.


author: PER CURIAM.

text:
    LBK, LLC, as Trustee, and Vortex Diving Center, Appellants, v. Denzell DOCKERY, Ruth Dockery, Connie Taylor and Daryl Dockery, Appellees.
    No. 1D10-6574.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Rehearing Denied Dec. 8, 2011.
    Charles G. Brackins of the Dowd Law Firm, P.A., Ft. Walton Beach, for Appellants.
    Clay B. Adkinson of the Adkinson Law Firm, LLC, DeFuniak Springs, for Appel-lees.
   PER CURIAM.

LBK, LLC and Vortex Diving Center, LLC (LBK) seek review of an order releasing funds, deposited into the court registry by LBK, to Denzel Dockery, Ruth Dockery, Connie Taylor and Daryl Dock-ery. As far as this court can determine, none of the issues presented in the two underlying circuit court cases has been decided, or even addressed. Absent some principled basis on which to order the disbursement, the trial court abused its discretion. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


author: WETHERELL, J.

text:
    Bob GRAHAM; Lou Frey, Jr.; Talbot “Sandy” D’Alemberte; Joan Ruffier; Bruce W. Hauptli; James P. Jones; Howard B. Rock; Eric H. Shaw; Manoj Chopra and Frederick R. Strobel, Appellants, v. Mike HARIDOPOLOS, President of the Florida Senate; and Dean Cannon, Speaker of the Florida House of Representatives, on Behalf of the Florida Legislature, Appellees.
    No. 1D11-384.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Rehearing Denied Nov. 22, 2011.

      Robin Gibson of Gibson Law Firm, Lake Wales, for Appellants.
    Daniel C. Brown and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Appellees.
   WETHERELL, J.

Appellants, citizens and taxpayers with various roles and interests in the state university system, brought a declaratory action against the presiding officers of the Legislature challenging the constitutionality of several statutes and a provision of the 2007-08 General Appropriations Act (collectively “the challenged statutes”) that restrict the universities’ expenditure of tuition and fees and condition the appropriation of funds to each university upon compliance with the tuition and fee policies established by the Legislature. The Board of Governors (Board) was originally a co-plaintiff, but it subsequently filed a notice of voluntarily dismissal of its claims and is no longer a party. The parties filed cross motions for summary judgment and the trial court granted summary judgment in favor of the Legislature. Appellants timely sought review in this court.

As they did below, Appellants contend on appeal that the challenged statutes are unconstitutional because they contravene the Board’s exclusive authority under article IX, section 7(d) of the Florida Constitution to establish and expend tuition and fees. The Legislature responds that the challenged statutes are constitutional because the Board’s authority to manage the university system is subject to the Legislature’s appropriation power. We agree that the challenged statutes are constitutional and, therefore, affirm the order on appeal.

In November 2002, the voters approved Amendment 11, which had been proposed by initiative petition. The amendment created article IX, section 7 of the Florida Constitution, which provides in pertinent part:

SECTION 7. State University System.—
(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida’s citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.
(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.
(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board’s management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair of the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board, (emphasis added).

Appellants contend that Amendment 11 effectively transferred the power to set and expend university tuition and fees from the Legislature to the Board. Appellants acknowledge the language in the article IX, section 7(d) referring to the Legislature’s power of appropriation, but draw a distinction between general revenue funds, which they concede still fall within the Legislature’s constitutional appropriation power, and tuition and fees, which they categorize as “agency” funds within the Board’s exclusive control. We do not see any constitutional or historical basis for the distinction that Appellants ask us to draw.

The Florida Constitution vests the “power of the purse” in the Legislature by-granting it exclusive and plenary power to raise and appropriate state funds. See Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260, 267 (Fla.1991) (“Under any working system of government, one of the branches must be able to exercise the power of the purse, and in our system it is the legislature, as representative of the people and maker of laws, including laws pertaining to appropriations, to whom that power is constitutionally assigned.”); State ex rel. Kurz v. Lee, 121 Fla. 360, 163 So. 859, 868 (1935) (observing that the Florida Constitution gives the Legislature the “exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government”); State v. Green, 95 Fla. 117, 116 So. 66, 69 (1928) (holding that “[t]he power to appropriate state funds for a lawful state purpose is legislative” and invalidating statute that purported to delegate this power by effectively giving a blank check to an executive branch entity and allowing it to fill in the amount); Cheney v. Jones, 14 Fla. 587, 610 (1874) (broadly construing the Legislature’s constitutional authority to raise revenue). These powers have been vested exclusively within the legislative branch since the time of the State’s first constitution. See art. VIII, §§ 1-3, Fla. Const. (1838).

The legislative power to raise funds is not limited to the imposition of taxes; it includes the power to impose fees necessary to offset the costs of using state government services. Likewise, the power of appropriation is not limited to certain types of funds; it extends to all funds in the State Treasury from whatever source. See Advisory Op. to the Governor, 200 So.2d 534, 536 (Fla.1967) (explaining that “the State Constitution requires legislative appropriation or authorization for the use of any funds from whatever source by a public agency or official for a public purpose”). Additionally, the appropriation power includes the authority to attach contingencies to the appropriation of funds that are reasonably related to the subject of the appropriation. See Fla. Dep’t of Educ. v. Glasser, 622 So.2d 944, 948 (Fla.1993) (rejecting constitutional challenge to provision of appropriation bill that capped the millage that local school boards were authorized to impose because, pursuant to Brown v. Firestone, 382 So.2d 654, 663 (Fla.1980), “a qualification or restriction in an appropriations act will pass constitutional muster if it directly and rationally relates to the purpose of the appropriation”); Op. to the Governor, 239 So.2d 1, 9 (Fla.1970) (“Appropriations may constitutionally be made contingent upon matters or events reasonably related to the subject of the appropriation, but may not be made to depend upon entirely unrelated events.”).

University tuition and fees are unquestionably state funds; they are collected by state universities for the use of their services and the monies collected are deposited into the State Treasury. See § 215.31, Fla. Stat. (requiring all revenue received under the authority of state law to be deposited into the State Treasury and then credited to the appropriate fund). The fact that the tuition and fees are deposited into a trust fund rather than the General Revenue Fund has no bearing on the Legislature’s plenary authority over those monies because a trust fund is, at its essence, nothing more than an accounting tool used to segregate monies within the State Treasury. See § 215.S2, Fla. Stat.; Secretary of State v. Milligan, 704 So.2d 152, 158 (Fla. 1st DCA 1997) (noting that a trust fund “merely segregates or earmarks funds” and holding that, when a trust fund is terminated but its funding source remains, the monies collected must be deposited in the General Revenue Fund).

In light of these principles, the validity of the challenged statutes boils down to whether Amendment 11 divested the Legislature of its “power of the purse” over state university tuition and fees by vesting that authority in the Board. Like the trial court, we see nothing in the language of Amendment 11 or its history that would suggest that such a fundamental change in the Legislature’s power was intended or effectuated.

Article IX, section 7(d) provides that the Board is “fully responsible for the management of the whole university system.” But this provision also makes clear that the Board’s management of the university system is “subject to the powers of the legislature to appropriate for the expenditure of funds.” Id. This express subrogation of the Board’s management authority to the Legislature’s appropriation power, coupled with the absence of any language in article IX, section 7 referring to tuition and fee setting, undermines Appellants’ argument that the intent of this provision was to grant the Board such authority.

Not only is there no reference to tuition or fees in the language of article IX, section 7(d), there was no indication in the ballot title or summary for Amendment 11 that the Legislature’s exclusive and plenary appropriations power was being in any way limited with respect to the state university system. In its entirety, the ballot title and summary for the amendment stated:

LOCAL TRUSTEES AND STATEWIDE GOVERNING BOARD TO MANAGE FLORIDA’S UNIVERSITY SYSTEM.
A local board of trustees shall administer each state university. Each board shall have thirteen members dedicated to excellence in teaching, research, and service to community. A statewide governing board of seventeen members shall be responsible for the coordinated and accountable operation of the whole university system. Wasteful duplication of facilities or programs is to be avoided. Provides procedures for selection and confirmation of board members, including one student and one faculty representative per board.

This language did not indicate, or even intimate, that the Board would have any authority over the establishment and expenditure of tuition and fees. The language does not refer to tuition or fees at all, and it certainly does not include the distinction advocated by Appellants between funds controlled by the Legislature and “agency” funds under the control of the Board. Additionally, after reviewing the proposed amendment, the Florida Supreme Court determined that, although the amendment affects more than one branch of government by virtue of its impact on the Legislature’s existing regulatory authority over the state university system, it does not “substantially alter[] or perform[ ] the functions of multiple branches of government in violation of article XI, section 3.” Advisory Op. to the Attorney Gen. re Local Trustees, 819 So.2d 725, 730 (Fla.2002). This holding undermines Appellants’ argument that Amendment 11 authorized the Board to perform the historically legislative function of raising revenues through the establishment of tuition and fees.

We are unaware of any entity other than the Legislature in the history of our state that has been authorized by the Florida Constitution to exercise the quintessential legislative power of raising and appropriating state funds. Thus, if as Appellants contend, such authority was vested in the Board by Amendment 11, it would be an unprecedented change in our state’s government.

The fact that such a fundamental change in the Legislature’s powers was in no way described in the ballot title or summary is a strong indication that it was not an intended result. Indeed, had that been the intent of the amendment, the Florida Supreme Court likely would have found the ballot summary to violate the single-subject requirement for initiative petitions. See, e.g., Advisory Op. to the Attorney Gen. re Tax Limitation, 644 So.2d 486, 494 (Fla.1994) (striking initiative petition from the ballot because the summary did not explain that the amendment substantially affected other constitutional provisions, in-eluding the Legislature’s power under article VII, section 1, and observing that the summary’s failure to do so “violate[d] the principle we clearly established in Fine [v. Firestone, 448 So.2d 984 (Fla.1984),] that the electorate must be advised of the effect a proposal has on existing sections of the constitution”) (emphasis in original).

Appellants point to judicial decisions from other states that have constitutional provisions establishing a university governance structure similar to that in article IX, section 7 to support their argument that the Board has the power to set and expend tuition and fees independent of the Legislature. But even if we were inclined to rely on out-of-state decisions to interpret the Florida Constitution, we would not do so here because of material differences in the language of the other states’ constitutional provisions and the language of article IX, section 7.

Finally, Appellants argue that this court’s analysis of article IX, section 7 in NAACP v. Florida Board of Regents, 876 So.2d 686, 639-40 (Fla. 1st DCA 2004), definitively resolves this case their favor. However, that case has no bearing on the issue currently before the court.

NAACP involved an administrative challenge to Board rules governing admission standards that had originally been adopted by the Department of Education (DOE). Id. at 637. The issue in that case was whether the Board’s adoption of the DOE rules mooted the rule challenge because the Board’s rulemaking authority flowed from the constitution and, thus, was not subject to the Administrative Procedure Act. Id. at 689. The case did not address the Board’s power to establish tuition and fees. Although the decision referred to the “broad grant of authority” provided to the Board by article IX, section 7, the decision pointed out that this authority was subject to the Legislature’s authority to appropriate funds, to confirm the Board’s appointed members, and to set members’ staggered terms. Id. at 639-40. In fact the decision specifically noted that “[ajrticle IX, section 7, clearly contemplates a significant role in the management of the state university system for the Legislature, through its power over appropriations.” Id. at 640. Thus, our determination in this case that the challenged statutes are constitutional is not inconsistent with our holding in NAACP.

In sum, for the reasons stated above, we hold that article EX, section 7(d) of the Florida Constitution does not grant the Board authority to set and appropriate tuition and fees; rather, as it was prior to the adoption of Amendment 11, that power is vested exclusively in the Legislature under article VII, section 1(c) and (d) of the Florida Constitution. Accordingly, because the challenged statutes do not contravene the Board’s authority under article' IX, section 7(d), the trial court properly granted summary judgment in favor of the Legislature.

AFFIRMED.

THOMAS, and SWANSON, JJ., concur.

      . §§ 1011.41,1011.4106, 1011.91, Fla. Stat. (2007).

      . Ch. 2007-72, § 2, item 156, Laws of Florida.

      . Art. VII, § 1(d), Fla. Const. ("Provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period.”).

      . Art. VII, § 1(c), Fla. Const. ("No money shall be drawn from the treasury except in pursuance of appropriation made by law.”).

      . We recognize the list of the Board's responsibilities in article IX, section 7(d) is nonexclusive, but the listed executive and regulatory powers are materially different in type than the quintessential legislative power of raising and appropriating state funds.

      . The Michigan Constitution, for example, requires the legislature to appropriate moneys to maintain the public universities in the state, see art. VIII, § 4, Mich. Const., but it also expressly provides that the universities’ governing boards "shall have general supervision of its institution and the control and direction of all expenditures from the institution’s funds." Art. VIII, §§ 5, 6, Mich. Const, (emphasis added). Language such as this is notably absent from article IX, section 7 of the Florida Constitution.

      . Appellants also make passing reference to this court’s decision in Fla. Public Employees Council 79, AFSCME, AFL-CIO v. Public Employees Relations Comm'n, 871 So.2d 270 (Fla. 1st DCA 2004). That case has no bearing on the issues here; the narrow issue resolved in that case was whether, the Public Employees Relations Commission (PERC) properly denied the union's request to designate the Board as the public employer of the universities, rather than the boards of trustees of each university. Id. at 271. The court affirmed the PERC order, noting that the Board adopted a resolution pursuant to its constitutional authority to manage the university system designating the boards of trustees as the public employers for the universities. Id. at 274-75. The case had nothing to do with the Board's authority over tuition and fees.


author: PER CURIAM. MARSTILLER, J.,

text:
    Larry CAMPBELL, As Sheriff of Leon County, Florida, Appellant, v. RACETRACK BINGO, INC., Larry L. Masino, Joshua M. Masino, Kelly Masino, Gabriel Masino, Dixlar, Inc., Caxambas Pass II, Tallahassee Bingo Associates, Ltd., Ft. Walton Beach Charities, L.L.C., Tallahassee Charities, L.L.C., and The National Council on Alcoholism, Appellees.
    No. 1D10-5536.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Rehearing Denied Dec. 13, 2011.

      Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, Louis F. Hubener, III, Chief Deputy Solicitor General, and Terrell Madigan of Madigan Law Firm, Tallahassee, for Appellant.
    David L. McGee of Beggs & Lane, R.L.L.P., Pensacola and Gregory R. Miller, Tallahassee, for Appellees.
   PER CURIAM.

Larry Campbell, Sheriff of Leon County, Florida, appeals the circuit court’s order directing the sheriff to return seized property upon the circuit court’s finding of no probable cause that the property was used or intended to be used in violation of the Florida Contraband Forfeiture Act, sections 932.701-932.706, Florida Statutes (“FCFA”). Because the circuit court did not err as a matter of law, the order is affirmed.

Forfeitures are not favored, and “forfeiture statutes must be strictly construed against the government.” In re Forfeiture of $91,357.12, 595 So.2d 998, 999 (Fla. 4th DCA 1992); see also Gomez v. Village of Pinecrest, 41 So.3d 180, 185 (Fla.2010) (“this Court has long followed a policy that it must strictly construe forfeiture statutes.” quoting Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 961 (Fla.1991)).

The property seized in this case consisted of several bank accounts owned by various members of the Masino family and companies associated with the Masinos and them businesses, including Racetrack Bingo, Inc. Under the procedures set out in section 932.703, Florida Statutes, Sheriff Campbell obtained a Forfeiture Seizure Warrant for the subject accounts, and the owners of the accounts were notified of the action and their right to a hearing on the matter. The issue to be determined at the hearing was “whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used, in violation of the Florida Contraband Forfeiture Act.” § 932.703(2)(c), Fla. Stat.

The sheriff presented evidence to the trial court to show that bingo operations were conducted in violation of several provisions of section 849.0931, Florida Statutes. The trial court surmised that the sheriff had shown probable cause to believe that there were multiple violations of the statute regulating bingo, but correctly noted that the determination of whether the Masinos or any other persons were guilty of violating section 849.0931 (the bingo statute) was not before the court in the forfeiture proceedings under section 932.703. The trial court appropriately limited its ruling to whether there was probable cause to believe the bank accounts were “used, in violation of the Florida Contraband Forfeiture Act.”

Despite the sheriffs argument to the contrary, property connected to a violation of gambling laws, such as section 849.0931, is not per se “used, in violation of’ the FCFA (§§ 932.701-932.706, Fla. Stat.). Section 932.703(l)(a), Florida Statutes, provides for forfeiture only of property “used in violation of’ the FCFA or “by means of which any violation of’ the FCFA takes place.

The FCFA is violated by any of the acts listed in section 932.702, Florida Statutes. Acquisition of property may be a violation of the FCFA if the property was acquired with proceeds from “a violation of the Florida Contraband Forfeiture Act.” § 932.702(5), Fla. Stat.; see also § 932.701(2)(a)5., Fla. Stat. (defining contraband as property “acquired by proceeds obtained as a result of a violation of’ the FCFA). However, the Act does not prohibit acquisition of property from proceeds from violation of the gambling laws, nor does the act subject property so acquired to forfeiture.

The only other violation of the FCFA which could apply in this case is the possession of contraband, prohibited by section 932.702(2), Florida Statutes. Section 932.701(2)(a)2. defines contraband as any money “used ... attempted, or intended to be used, in violation of the gambling laws of the state.” Strictly construing this statutory definition of contraband, in order for the bank accounts at issue to meet the statutory definition, some association with violations of the gambling law is not enough — the accounts must have been “used” to carry out the violations of section 849.0931. Whether such “use” occurred is a fact question properly determined by the trial court, not a matter of law contained in the statutory language.

Accordingly, a showing of probable cause that the owners of the bank accounts in question may have violated the bingo regulations in section 849.0931, Florida Statutes does not automatically establish that the accounts are “contraband” as defined by the FCFA, subject to forfeiture under section 932.703, Florida Statutes. Moreover, we note that although the sheriff returned the money to appellees and the money is now gone, this is not moot. The FCFA provides that upon seizure of contraband, “[a]ll rights to, interest in, and title to contraband articles used in violation of s.932.702 shall immediately vest in the seizing law enforcement agency.” § 932.703(l)(c), Fla. Stat. Additionally, the court can “order the forfeiture of any other property of a claimant ... up to the value of any property subject to forfeiture” if any of the property “[cjannot be located.” § 932.703(5)(a), Fla. Stat., (emphasis supplied). Accordingly, if the sheriff had ultimately prevailed in the forfeiture proceeding, he would have been entitled to forfeit other property of appellees. Because the trial court committed no error as a matter of law, the order directing return of the seized funds is AFFIRMED.

BENTON, C.J. and CLARK, J., concur.

MARSTILLER, J., concurring specially.

MARSTILLER, J.,

concurring specially.

I agree with the majority opinion that Appellees’ money is not subject to forfeiture under the plain language of the Florida Contraband Forfeiture Act, although I arrive at the conclusion somewhat differently. But this court should refrain from opining on the merits of this appeal and instead should dismiss it because the issues raised are moot.

“A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Here, the trial court’s final order directed the Sheriff to “return all monies seized ... within ten (10) days of entry of this Order.” Notably, the order also states, “This Order will be automatically stayed if Petitioner timely appeals this Order and, contemporaneously with the filing of an appeal, files a Bond with the Court covering all monies seized....” The Sheriff returned the money to Appellees and did not file a bond. At oral argument counsel for both parties acknowledged that the money previously seized is now gone.' Consequently, any opinion from this court — reversal or affir-mance — would only serve to advise the Sheriff on future forfeiture efforts under circumstances similar to those in this case.

“It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.” Montgomery, 468 So.2d at 1016-17. “‘An appeal should be dismissed where no practical result could be attained by reviewing the questions therein contained. Under such circumstances the appeal may be dismissed of the court’s own motion.’ ” A.G. v. Dep’t of Children & Family Servs., 932 So.2d 311, 314 (Fla. 2d DCA 2006) (quoting DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258, 259 (1943)).

      . We note that currency or other means of exchange connected with violations of chapter 893, Florida Statutes (“Drug Abuse Prevention and Control”) is considered contraband if "a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.” § 932.701(2)(a)l„ Fla. Stat. (2010). See Miami-Dade Police Dep’t v. Forfeiture of $15,875.51, 54 So.3d 595 (Fla. 3d DCA 2011) ("seized property does not have to be traced to any specific violation or violations, but rather reasonably linked to an illegal narcotic activity”). In the present case, however, a showing that the accounts in question are reasonably linked to violations of the gambling law is not enough.


author: PER CURIAM. BENTON, C.J.,

text:
    Jeffrey Milton COX, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2104.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Rehearing Denied Dec. 15, 2011.
    M. James Jenkins, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General; and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal of a judgment and sentence entered after the appellant pled nolo contendere, while expressly reserving his right to appeal the denial of his disposi-tive motion to suppress items recovered during a warrantless vehicle search. Pursuant to the “tipsy coachman” doctrine, we affirm the convictions and sentences because the evidence supported the trial court’s correct ruling. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002).

In the process of executing a valid arrest warrant for the appellant’s 2006 offenses, law enforcement stopped the appellant’s truck and read his constitutional rights, which the appellant acknowledged understanding. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When FDLE Special Agent Lawson asked whether he had drugs or anything else in his vehicle that could get him in trouble, the appellant answered that he had Dilaudid in his gym bag. Hydromor-phone, also known as Dilaudid, is a Schedule II controlled substance. § 893.03(2)(a)l.k., Fla. Stat. (2008); Todd v. State, 648 So.2d 249 (Fla. 3d DCA 1994); State v. Gillum, 428 So.2d 755 (Fla. 2d DCA 1983). A subsequent search of the gym bag disclosed drug paraphernalia and a pill bottle containing Dilaudid, on which the State based new charges. Because the appellant admitted the presence of the drug contraband in the bag inside his truck, the warrantless search was proper and no basis existed to suppress the fruits of the search. See United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (holding that a war-rantless search of a vehicle supported by probable cause is not unreasonable if based on facts that would justify issuance of a warrant); Minnis v. State, 577 So.2d 973, 975-76 (Fla. 4th DCA 1991); Rivera v. State, 373 So.2d 64, 66 (Fla. 3d DCA 1979) (concluding that where defendant was properly stopped for erratic driving, officer had probable cause to search the vehicle after defendant admitted having a pistol next to the driver’s seat); State v. Patterson, 309 So.2d 555, 557 (Fla. 2d DCA 1975) (noting that “[ajdmissions of crime ... carry their own indicia of credibility”).

The trial court correctly denied the motion to suppress, accepted the valid plea, and sentenced the appellant for the 2006 crimes as well as the new offenses.

Accordingly, we AFFIRM the judgment and sentence.

ROBERTS and RAY, JJ., concur.

BENTON, C.J. Concurs in Judgment.

BENTON, C.J.,

concurring in the judgment.

The appellant was arrested, while driving an automobile, pursuant to a warrant the validity of which has not been called into question. Even if such a search would now be invalid under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), we have held that the evidence should not be excluded. See State v. Harris, 58 So.3d 408, 409 (Fla. 1st DCA), review granted, Harris v. State, 61 So.3d 410 (Fla.2011).


text:
    Ivory MILES, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5332.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    Rehearing Denied Dec. 7, 2011.
    Ivory Miles, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Keidrick L. EWING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5314.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    Rehearing Denied Dec. 13, 2011.

      Keidrick L. Ewing, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Yvelan PIERRE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5286.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    Rehearing Denied Dec. 8, 2011.
    Yvelan Pierre, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    HILLSBOROUGH COUNTY AVIATION AUTHORITY and Preferred Governmental Claim Solutions, Appellants/Cross-Appellees, v. Leroy GROOM, Jr., Appellee/Cross-Appellant.
    No. 1D10-4676.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2011.
    Rehearing Denied Dec. 13, 2011.
    Lauren M. Levy and Adam Levy of Levy & Levy, LLC, Tampa, for Appellants/Cross-Appellees.
    Bill McCabe, Longwood, and Christopher M. Costello, Lake City, for Appel-lee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See Homler v. Family Auto Mart, 914 So.2d 1071 (Fla. 1st DCA 2005).

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    W. FRANK WELLS NURSING HOME, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D11-0505.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Rehearing Denied Dec. 13, 2011.
    John D. Buchanan, Jr. and Laura Beth Faragasso, Henry, Buchanan, Hudson, Sú-ber & Carter, P.A., Tallahassee, for Appellant.
    Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   CLARK, J.

W.Frank Wells Nursing Home (“the nursing home”) appeals the final order of the Agency for Health Care Administration (“AHCA”) upholding the Notice of Deficiencies and class III citation issued to the nursing home for a violation of section 394.463(2), Florida Statutes. Because the undisputed facts fail to establish that a violation of section 394.463(2) occurred, the agency’s final action must be set aside.

The incident which led to the citation took place on August 14, 2006 in a facility housing both the nursing home and the Ed Frazer Memorial Hospital (“the hospital”). The nursing home and hospital were separately licensed but were owned by the same corporation. On August 14, 2006, the nursing director for the nursing home called the resident’s attending physician for instructions on how to deal with the resident’s behavioral downturn. The attending physician issued a verbal order, noted by the nursing staff, to “Send to ER for mental eval.” Based on this instruction, the nursing director and a social worker familiar with the resident’s case accompanied the resident about 300 feet through the building to the hospital area’s emergency room. There, the emergency room physician evaluated the nursing home resident’s condition and determined that further evaluation by a professional from Northeast Florida State Hospital was needed. At this point, the procedures required by section 394.463(2)(b) were undertaken: a mental health professional from NEFSH was called to the hospital to examine the resident and the attending physician was again contacted by telephone and issued a second verbal order, this time directing staff to “Transfer resident to NEFSH.” The nursing home resident was transported to the State Hospital later that evening.

Section 394.463(2)(b), Florida Statutes, prohibits nursing homes and assisted living facilities from removing residents and transporting them “to a receiving facility for involuntary examination” without first obtaining “an ex parte order, a professional certificate, or a law enforcement officer’s report.” There was no question of fact in this case that the nursing home resident was taken from the nursing home area of the facility to the hospital area before any of the listed documents was prepared. However, this movement of the resident did not trigger section 394.463(2)(b) because the resident was not discharged from the nursing home or otherwise removed from resident status at this point. Furthermore, the hospital emergency room was not a Baker Act “receiving facility” designated by AHCA, and the physician’s order was for a general “mental evaluation,” not an involuntary examination defined by section 394.455(34) as one “to determine if an individual qualifies for involuntary inpatient treatment under s. 394.467(1).” The “mental evaluation” first ordered by the attending physician was not equivalent to the “involuntary examination” described in section 394.455(34) and governed by section 394.463. The undisputed facts showing that the procedures required by section 394.463 were followed later that evening, resulting in the resident’s transport NEFSH (the only designated receiving facility in the county), reinforce the nursing home’s position that it did not commit any violation of section 394.463(2).

We are mindful of the important rights of nursing home residents which AHCA is charged with protecting, including the right to be transferred or discharged only for certain reasons after appropriate procedures are followed. §§ 400.022 & 400.0255, Fla. Stat. However, in light of the circumstances and undisputed facts of this case, the agency’s final order upholding the citation of the nursing home for violation of section 394.463 is a clearly erroneous application of section 394.463(2) to those facts. See § 120.68(7)(d) & (7)(e)4., Fla. Stat. The final order is therefore SET ASIDE and matter is REMANDED to AHCA for the removal of the citation from the nursing home’s record of regulatory action.

DAVIS and VAN NORTWICK, JJ., concur.


text:
    Frederick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1972.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Rehearing Denied Dec. 13, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); see also Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, VAN NORTWICK, and THOMAS, JJ., concur.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Rolando VALERA, Appellee.
    No. 4D10-486.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 29, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, West Palm Beach, for appellee.
   LEVINE, J.

In this case we are confronted with the issue of whether the trial court, which has terminated appellee’s probation unsuccessfully, is required to sentence appellee to at least the minimum sentence the court would have originally imposed before placing appellee on probation. We find the trial court erred when it terminated appel-lee’s probation and released him from custody instead of sentencing him to at least a three-year minimum mandatory sentence.

In June 2008, appellee was charged with conspiracy to traffic in cannabis in excess of twenty-five pounds. Pursuant to the plea agreement, appellee pled to five years’ probation, and the state agreed to waive the three-year minimum mandatory sentence.

Six months later, appellee violated his probation, and the court reinstated it. In September 2009, appellee was again charged with a violation of probation. The probation officer recommended that appel-lee’s “probation be revoked and his probation be terminated unsuccessfully.”

The trial court conducted a hearing on appellee’s violation of probation. The state was represented by an assistant state attorney instead of someone from ' the statewide prosecutor’s office, which was the prosecution office of record. Due to the fact that an assistant statewide prosecutor was not present at the hearing, the assistant state attorney asked that the hearing be reset so that a representative from the Office of Statewide Prosecution could be present. The trial court went forward with the hearing and terminated appellee’s probation unsuccessfully and released him from custody. Nothing in the record indicates that the trial court imposed any sentence, such as time served. The assistant state attorney objected to the trial court proceeding without the assistant statewide prosecutor, but did not object specifically to the court’s sentence of unsuccessfully terminating appellee’s probation without any additional term of incarceration.

On appeal, appellant contends that the trial court imposed an illegal sentence. The standard of review for the legality of a criminal sentence is de novo. Grosso v. State, 2 So.Sd 362, 364 (Fla. 4th DCA 2008). Although the state did not specifically object to sentencing appellee below the guidelines, where there is an illegal sentence, such as an unauthorized departure from the sentencing guidelines, and the error is apparent on the face of the record, a contemporaneous objection is not required to preserve the issue for appeal. Taylor v. State, 601 So.2d 540, 541 (Fla.1992). “The sole exception to the contemporaneous objection rule applies where the error is fundamental. For example, ‘[ijllegal sentences necessarily constitute fundamental error, and may therefore be challenged for the first time on direct appeal.’ ” State v. Calvert, 15 So.3d 946, 949 (Fla. 4th DCA 2009) (citations omitted).

The trial court erred by sentencing appellee to a sentence below the minimum mandatory in contravention of section 948.06(2)(b), Florida Statutes. That statute provides: “If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense ... and impose any sentence which it might have originally imposed before placing the probationer on probation.” In this case, appellee had to be sentenced to a minimum mandatory three-year prison term. Only originally, as a result of a plea agreement and with the consent of the state, could appellee have received a sentence that waived the minimum mandatory term of incarceration. As a result of the unsuccessful termination of probation, the trial court was required to sentence appel-lee to the minimum mandatory sentence that could have been “originally imposed before placing the probationer on probation.”

Further, the trial court also contravened section 921.0024(2), Florida Statutes, which generally requires that the trial court sentence the offender to no less than the lowest permissible sentence as calculated on the scoresheet, unless there is evidence that supports a valid downward departure. Significantly, there is no evidence in the record indicating that this was a downward departure or supporting a downward departure. Thus, where a “trial court imposes a sentence that is shorter than the required mandatory minimum sentence, ‘the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence.’ ” State v. Strazdins, 890 So.2d 334, 335 (Fla. 2d DCA 2004) (quoting State v. R.F., 648 So.2d 293, 294 n. 1 (Fla. 3d DCA 1995)); see also State v. Scanes, 973 So.2d 659, 661 (Fla. 3d DCA 2008).

In conclusion, we find the trial court erred in sentencing appellee to a sentence below what was mandated by law, i.e., a three-year minimum mandatory. We reverse and direct the court to sentence appellee to any sentence which he could have received before being placed on and violating probation.

Reversed and remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Appellant also objects to the trial court proceeding with an assistant state attorney and not a representative of the Office of Statewide Prosecution. Based on our decision, we need not reach the merits of this issue. We do note that the Office of the Statewide Prosecution, of the Office of the Attorney General, is a separate and distinct office from the Office of the State Attorney for the Fifteenth Judicial Circuit. The former derives its authority from article IV, section 4(b) of the Florida Constitution and section 16.56, Florida Statutes, while the latter’s authority is derived from article V, section 17 of the Florida Constitution and section 27.01 et seq., Florida Statutes. Further, the assistant state attorney would normally have no personal knowledge of a case prosecuted by a representative of the Office of Statewide Prosecution.

      . We also note that to allow the trial court to terminate appellee’s probation unsuccessfully and sentence him below the guidelines, without regard to any minimum mandatory sentence, would have the absurd result of rewarding a probationer who has been unsuccessfully terminated from probation. The state agreed to waive the minimum mandatory with the expectation that appellee would successfully perform each and every condition of probation. To allow appellee to receive the benefit of this bargain, without requiring him to satisfy all of the conditions of the plea bargain, would be unjust and unenforceable. Cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (holding that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”).