author: LEWIS, J. CLARK, J.,

text:
    Robert McQUADE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D10-507.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.
    Rehearing Denied Jan. 25, 2011.

      William E. Strickland, Tallahassee, for Appellant.
    Sharon E. Cromar, Tallahassee, for Public Employees Relations Commission; Scott Shevenell, Tallahassee, for Department of Corrections.
   LEWIS, J.

Robert McQuade, Appellant, appeals the Public Employees Relations Commission’s (“the Commission”) final order dismissing his career service appeal from the termination of his employment as a correctional officer with the Department of Corrections (“the Department”), Appellee. Appellant argues that the Commission erred in not ordering the Department to reinstate him for failing to complete its investigation of his violation of the Department’s rules within 180 days of the date another correctional officer reported Appellant’s infraction to the warden. Appellant claims that reinstatement was required under section 112.532(6)(a), Florida Statutes (2008), a provision of the Law Enforcement Officers’ (“LEO”) Bill of Rights. For the reasons explained below, we affirm.

On December 18, 2008, the warden signed an incident report that had been prepared by another correctional officer. The report alleged that Appellant was in violation of the Department’s rules because he allowed a convicted felon to live in staff housing without permission, an infraction that had been discovered by the probation officer of the person who was living in staff housing without permission. Appellant was interviewed about the infraction on June 11, 2009, by the Inspector General’s Office, and on August 19, 2009, he received a predetermination letter informing him that disciplinary charges were being pursued. The letter advised that Appellant’s infraction could result in suspension or dismissal and that he would be permitted to respond on August 28, 2009, at a predetermination conference. Appellant participated in the conference on August 28, 2009, and on September 18, 2009, he was dismissed from his position as a correctional officer.

Appellant appealed his dismissal to the Commission, arguing that his dismissal was without just cause and was too severe a sanction. He did not mention any procedural concerns in his notice of appeal. However, at the formal hearing on November 13, 2009, Appellant argued that the Department should not have been permitted to “move forward” because “it violate[d] the Florida Statutes Correctional Officer’s [sic] Bill of Rights” and indicated that he would present additional arguments on this point at a later time. Appellant expounded on this point in his proposed recommended order in which he proposed, among other things, a conclusion that section 112.532(6)(a), Florida Statutes (2008), barred the Department from proceeding with discipline for the charge because more than 180 days had passed between the day the warden signed the incident report and the time the Department took disciplinary action.

The hearing officer issued a recommended order concluding that the Department had proven by a preponderance of the evidence that it had cause to discipline Appellant and that Appellant had failed to prove that mitigation of the Department’s discipline decision was justified. In response to Appellant’s concern about section 112.532(6)(a), the hearing officer noted that Appellant was correct that more than 180 days elapsed between the time the warden learned of Appellant’s alleged infraction and the time the Department gave Appellant a predetermination notice of disciplinary action. The hearing officer concluded, however, that the 180-day deadline did not apply because this case involved “an internal disciplinary matter arising from information provided by an Agency officer,” as opposed to a complaint made by a private citizen. Appellant’s exception to this conclusion was denied, and his appeal was dismissed.

In his appeal from the order of dismissal, Appellant argues that we should reverse because the Commission failed to apply the plain language of section 112.532(6)(a), which provides as follows:

Except as provided in this subsection, no disciplinary action, demotion, or dismissal shall be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct. In the event that the agency determines that disciplinary action is appropriate, it shall complete its investigation and give notice in writing to the law enforcement officer or correctional officer of its intent to proceed with disciplinary action, along with a proposal of the action sought. Such notice to the officer shall be provided within 180 days after the date the agency received notice of the alleged misconduct ....

(emphasis added). As a general rule, interpretation of a statute is an issue of law subject to de novo review. Brown v. State, Comm’n on Ethics, 969 So.2d 553, 556 (Fla. 1st DCA 2007). This standard of review is incorporated in the Florida Administrative Procedure Act, which states that an appellate court may set aside a final administrative order if the agency “has erroneously interpreted a provision of law and a correct interpretation compels a particular action.” § 120.68(7)(d), Fla. Stat. (2009); Brown, 969 So.2d at 556. However, this Court is required to give deference to an agency’s interpretation of a statute within its substantive jurisdiction. Brown, 969 So.2d at 557. When an agency interprets such a statute, this Court will not reverse based on that interpretation unless it is clearly erroneous. Id. In contrast, if the statute is outside the agency’s area of expertise, the standard of review is simply de novo. Id. In this case, under either standard of review, the Commission reached the result that was required by controlling precedent.

The Commission concluded that section 112.5S2(6)(a) did not apply to Appellant’s case because the complaint leading to his discipline was generated internally, rather than received from a person outside the Department. The Commission has espoused this interpretation in numerous other cases, including Henderson v. Department of Corrections, 24 F.C.S.R. 200 (2009), James v. Department of Corrections, 23 F.C.S.R. 41, 42 (2008), and Abbott v. Department of Corrections, 6 F.C.S.R. 190, 190 (1991). Those cases reveal that the basis for the Commission’s decision to interpret section 112.532(6)(a) results from its application of Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982), which was adopted as the Florida Supreme Court’s opinion in Migliore v. City of Lauderhill, 431 So.2d 986, 987 (Fla.1983). See, e.g., James v. Dep’t of Corr., 23 F.C.S.R. 41, 42 (2008) (citing Migliore to support the holding that section 112.532(6)(a), Fla. Stat. (2007), did not apply to discipline “stem[ming] from allegations of wrongdoing from within the [ajgency”).

In Migliore, four police officers filed petitions for writs of mandamus and, in the alternative, for injunctive relief after they were dismissed from a police department. 415 So.2d at 63. The events leading to their dismissal began when a convenience store clerk filed writ ten complaints against them. Id. During the internal investigation of the complaints, the officers were ordered to submit to a polygraph test, and they refused. Id. As a result of this refusal, they were dismissed from employment. Id. After their dismissal, the officers sought to have a “complaint review board” empaneled pursuant to section 112.532(2), Florida Statutes (1981). Id. In 1981, section 112.532(2) read as follows:

COMPLAINT REVIEW BOARDS. — A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members being selected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

415 So.2d at 63-64. The Migliore court observed that “neither the statute nor any other applicable law explicate^] the function of the board” and that there was “nothing to indicate that a policeman ha[d] a right to have his dismissal reviewed by the board.” Id. at 64.

The Migliore court then concluded that “the only statutory provision containing a possible explanation of the duties of the complaint review board” was section 112.538, Florida Statutes (1981), which provided, “Receipt and processing of complaints. — Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person.” 415 So.2d at 64 (quoting § 112.533, Fla. Stat. (1981)). The court further concluded that the significant language of this provision was “complaints received by such employing agency from any person,” and determined that this language indicated that the statute “pro-vid[ed] a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employed] him.” Id. The court explained that sections 112.532(2) and 112.533, Florida Statutes (1981), were “to be utilized for disposition of complaints made by outside persons and [were] not intended to provide a forum for any issue other than whether a complaint has a basis in fact.” Id. Based on this interpretation of the pertinent provisions of chapter 112, the Migliore court held that the officers “would have been entitled to a hearing on the basis of the original complaint against them” but that they were not entitled to “test the validity of their discharge” by the use of a complaint review board, particularly because they were not discharged on the basis of the complaint, but on the basis of “their refusal to obey the order of a superior officer.” Id. at 65-66. Migliore has been cited broadly for the proposition that the LEO Bill of Rights does not apply to investigations initiated by a complaint that originates from within the agency that employs the officer under investigation. See, e.g., Kelly v. Gill, 544 So.2d 1162, 1165 n. 5 (Fla. 5th DCA 1989) (citing Migliore, in dicta, for the proposition that “all of part VI, section 112.531, et seq., deals specifically with investigations, complaints, and disciplinary action as a result of claims made against an officer by persons outside the agency [that] employs him”).

In the absence of Migliore, we would be inclined to agree with Appellant that the plain language of section 112.532(6)(a) indicates that the 180-day rule for completing an investigation applies to the investigation of any allegation regardless of where it originates. We conclude, however, that the interpretation the Commission reached is compelled by Migliore. While Migliore did not address this specific provision, its holding was based on the interpretation of the term “receipt.” See 415 So.2d at 63-64. The Migliore court concluded that a law enforcement agency’s “receipt” of a complaint, as that language was used in section 112.534, Florida Statutes (1981), meant its receipt of a complaint from a person outside the agency. Under section 112.532(6)(a), the 180-day period for completing an investigation begins when the agency “receives notice of the allegation.” Thus, the concept of the agency’s receipt of an allegation or complaint is as vital to an interpretation of section 112.532(6)(a), Florida Statutes (2008), as it was to the Fourth District’s interpretation of section 112.534, Florida Statutes (1981). Because the Florida Supreme Court approved the Fourth District’s interpretation of the term “receipt” as used in the LEO Bill of Rights as indicating that a complaint comes from a source outside the agency, both we and the Commission are bound by that interpretation. Regarding the pertinent statutory language, Migliore is not materially distinguishable. Accordingly, based on the Migliore court’s interpretation of the term “receipt,” we are constrained to hold that section 112.532(6)(a)’s 180-day rule did not apply to the instant case, where Appellant’s violation of Department rules was discovered internally.

Moreover, even if we were to conclude that Migliore left room for an different interpretation of the term “receives” as used in section 112.532(6)(a), we would affirm because the Commission lacked authority to provide Appellant relief for a violation of the LEO Bill of Rights. Section 447.207, Florida Statutes (2009), establishes the Commission’s powers and duties. In pertinent part, it provides that “[t]he [C]ommission or its designated agent shall hear appeals arising out of any suspension, reduction in pay, demotion, or dismissal of any permanent employee in the State Career Service System in the manner provided in s. 110-227.” § 447.207(8), Fla. Stat. (2009). Section 110.227(6)(e) defines the scope of the Commission’s review in a career service appeal. Based on this provision, the Commission is to determine whether cause existed for the employee’s discipline or dismissal. See § 110.227(6)(c), Fla. Stat. (2009). As the Commission itself has recognized, the career service appeal process “is not a review of agency action toward its employees, but is a de novo proceeding in which the agency has the burden to establish facts which demonstrate cause for disciplining employees.” Gilbert v. Dep’t of Envtl. Prot., 17 F.C.S.R. 396, 398 (2002). For this reason, the Commission “has held that an alleged improper investigation pri- or to disciplinary action will not constitute the basis for reversing an agency’s discipline absent a showing that the employee was prejudiced in defending himself in a subsequent de novo career service appeal before the Commission.” Id.

The Commission’s interpretation of its role is consistent with the statutory mandates of sections 447.207 and 110.227. Section 447.207 gives the Commission the authority to hear career service appeals “in the manner provided in s. 110.227.” Section 110.227(6)(c) indicates that the Commission is to reverse it if finds a lack of cause for the agency’s action and that it may, in some circumstances, reduce the penalty imposed by the agency head. Section 110.227 does not indicate that a career service appeal is a plenary review of agency action. Therefore, the agency’s interpretation of its role, which is purely statutory, is correct.

The LEO Bill of Rights itself indicates that enforcement of its provisions is to be accomplished through the circuit court, rather than the Commission. Specifically, section 112.534(1), Florida Statutes (2008), provides the following remedy for all violations of the LEO Bill of Rights:

If any law enforcement agency or correctional agency fails to comply with the requirements of this part, a law enforcement officer or correctional officer employed by or appointed to such agency who is personally injured by such failure to comply may apply directly to the circuit court of the county wherein such agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to compel the performance of the duties imposed by this part.

This provision was applied in City of Miami v. Cosgrove, 516 So.2d 1125, 1126 (Fla. 3d DCA 1987), where a dismissed police officer sued for damages based on an alleged violation of the LEO Bill of Rights. The Third District held that the officer was not entitled to damages because section 112.534, which was “the only remedy provision of Part VI of Chapter 112, ... provide[d] only for a suit for an injunction, not for an action for damages.” 516 So.2d at 1127. For this reason, the Cosgrove court held that section 112.534 was “no more than a vehicle for enforcing the procedures established in the preceding sections of this part of the statute” and “not a vehicle for the restoration of substantive rights, whether the restoration is sought by mandamus, injunction, or ... an action for damages.” Id. at 1128. The Migliore court also addressed this provision, observing that it “operate[d] only to immediately restrain violation of the rights of police officers by compelling the performance of the duties imposed by [sections 112.531 to 112.533.” 415 So.2d at 65. Because the version of section 112.534 in effect in 2008 still provided only for injunc-tive relief through the circuit court, this remedy was the only one available to Appellant, per the decisions in Cosgrove and Migliore.

We recognize that the statutory remedy provided for violation of the LEO Bill of Rights gave Appellant a short window of opportunity for an officer to assert rights under section 112.532(6)(a). Nevertheless, based on the plain language of section 112.534 and the limitations on the Commission’s authority, it was the only remedy available to him. Because he did not seek an injunction from the circuit court before he was dismissed or show prejudice in the proceedings before the Commission resulting from the violation of the 180-day rule, he is not entitled to reinstatement on the basis of that violation.

For these reasons, the Commission’s final order dismissing Appellant’s career service appeal is AFFIRMED.

KAHN, J., CONCURS, and CLARK, J., DISSENTS WITH OPINION.

CLARK, J.,

dissenting.

I would reverse the PERC’s affirmance of the disciplinary action because section 112.532(6)(a), Florida Statutes is not limited to actions stemming from complaints from persons outside the agency. The Department of Corrections has erroneously interpreted a provision of law, and the PERC’s affirmance of this decision was likewise erroneous.

There was no dispute of fact and all parties agreed that more than 180 days elapsed between the filing of the “incident report” and the date of the notice to the employee of disciplinary action. Section 112.532(6), Florida Statutes clearly states:

(6) LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS.—
(a) Except as provided in this subsection, disciplinary action, suspension, demotion, or dismissal may not be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct. If the agency determines that disciplinary action is appropriate, it shall complete its investigation and give notice in writing to the law enforcement officer or correctional officer of its intent to proceed with disciplinary action, along with a proposal of the specific action sought, including length of suspension, if applicable. Notice to the officer must be provided within 180 days after the date the agency received notice of the alleged misconduct ... [with exceptions not applicable here].

The statute does not require a correctional officer to defend against untimely disciplinary action by filing an action for in-junctive relief in the circuit court. The provision in section 112.532(3) recognizing that correctional officers may bring suit for damages for violation of the officer’s civil rights has no effect on the limitations period for agency disciplinary action in section 112.532(6). The absence of a pending civil lawsuit for damages by the correctional officer to vindicate his or her civil rights does not extend the limitations period or otherwise make untimely agency disciplinary action timely.

There is no uncertainty in the language of section 112.532(6) which needs interpretation, and no language which restricts the application of the limitations period to those disciplinary actions resulting from complaints from outside the agency. The case of Migliore v. City of Lauderhill, 431 So.2d 986 (Fla.1983), upon which the PERC relied in this case, did not pertain to the limitations period for state agency disciplinary actions set out in section 112.532(6), Florida Statutes. In Migliore, city police officers who had been discharged sought the extraordinary writ of mandamus to compel the City of Lauder-hill to reinstate them, award them back pay, and to empanel a complaint review board as provided for in section 112.532(2), Florida Statutes (1981). The Florida Supreme Court held that complaint review boards under section 112.532(2) were not created to review agency disciplinary action taken against city police officers. The Court also ruled that the city police officers suing for reinstatement were required to exhaust their City of Lauderhill administrative remedies available from the city’s civil service board prior to seeking the extraordinary writ of mandamus or injunc-tive relief to compel official action. Nothing in the Migliore opinion indicates that section 112.532, Florida Statutes applies only in situations where members of the public file complaints against employed law enforcement or correctional officers, and not to investigations initiated by an incident report from within the agency.

The “outside complaint” limitation for complaint review board proceedings was suggested in the opinion of the Fourth District Court of Appeal, Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982). There, when speculating as to the function of a complaint review board as described in section 112.532(2), the District Court of Appeal looked to the phrase “receipt, investigation, and determination of complaints received by such employing agency from any person.” § 112.533(1)(a), Fla. Stat. Seeking an explanation of complaint review board duties, the court stated: “We interpret the statute as providing a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employs him.” Migliore v. City of Lauderhill, 415 So.2d 62, 64. This conjecture about the proper use of the statutory complaint review board by an officer seeking reinstatement after discharge has no application to the limitations period restricting the time for agency disciplinary action against a correctional officer.

Had the legislature intended to place a time limit only upon disciplinary actions resulting from external complaints and not upon disciplinary actions originating within the employing agency, it would have specified such differentiation in section 112.532. Because there is no language in the statute indicating any such division based upon the source of the allegation of wrongdoing by the correctional officer, the Department of Corrections’ refusal to apply section 112.532(6) in this case was an erroneous interpretation of the law and should have been reversed by the PERC. Accordingly, I dissent.

      . The parties have shown some confusion as to which version of the Florida Statutes applies to this case. The key dates in this appeal are December 18, 2008, which was the date the warden signed the incident report, and June 16, 2009, which was 180 days from that date. The 2009 amendments to chapter 112, Florida Statutes, were not effective until July 1, 2009, which was after the date Appellant claims his right to reinstatement was perfected under chapter 112. Therefore, the 2008 version of chapter 112 applies to the issue raised in this appeal.

      . Section 112.532(6)(a) then sets forth exceptions not applicable to this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis NETTINA, Appellant, v. CITY OF PEMBROKE PINES (FIRE DEPARTMENT), Gallagher Bassett Services, Inc., Appellees.
    No. 1D09-6463.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.
    Rehearing Denied Jan. 26, 2011.
    Kelli Biferie Hastings of Bichler & Kelley, P.A., Maitland, and Robert S. Winess of Bichler & Kelley, P.A., West Palm Beach, for Appellant.
    Edward D. Schuster and Gregory G. Coican of Massey, Coican, Schuster, Ried-hammer & King, LLC, Fort Lauderdale, for Appellees.
   PER CURIAM.

We affirm the Judge of Compensation Claims’ (JCC’s) denial of all benefits requested by Claimant. The JCC properly denied the request for authorization of a cardiologist to treat Claimant’s hypertension on the basis that Claimant failed to prove further evaluation and treatment by a cardiologist was medically necessary. We note, however, that the JCC’s alternative basis for denying the benefits claimed is contrary to City of Pembroke Pines v. Ortagus, 50 So.3d 31 (Fla. 1st DCA 2010), holding that once compensability is established, entitlement to medical benefits is not limited to the period of disability.

AFFIRMED.

DAVIS, HAWKES, and THOMAS, JJ., concur.


author: MONACO, C.J.

text:
    STATE of Florida, Appellant, v. Junior JOSEPH, Appellee.
    No. 5D09-1356.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, C.J.

The sole issue on this appeal is whether the trial court erred in granting the motion of the defendant, Junior Joseph, to suppress statements that he made to law enforcement officers. More particularly, the trial court was tasked with determining whether the Miranda warnings given to the appellant in both Creole and English were inadequate, thus rendering the waiver of his Fifth Amendment rights involuntary. Although the trial court found for the defense in this respect, we reverse.

The arrest affidavit indicated that the Orlando police were sent to investigate a purported shooting by an individual of his girlfriend. The shooter was then alleged to have left the scene on foot. The victim, who was six to eight months pregnant at the time, was found after having been shot on the landing of an apartment complex. Although she was transported to a hospital, she was later pronounced dead.

Mr. Joseph ran from the apartment complex, but was soon apprehended by the police. According to the documentation before the trial court, Mr. Joseph resisted arrest and attempted to shoot the arresting officer with a handgun. He was rapidly apprehended in a dumpster where he was attempting to hide.

After Mr. Joseph was transported to a police station he was read his Miranda rights in English by Detective Campbell on two occasions. Shortly after he was initially advised in English, another officer, Detective Verret, who was conversant in Creole, was called in as a precaution to translate the Miranda warnings into Creole and to readvise Mr. Joseph of his rights in that language. Mr. Joseph then agreed to talk to the officers and quickly admitted both to firing the shots that struck the victim, and to leaving the scene. The appellant asserted, however, that he was attempting to throw the handgun after being stopped by the pursuing officer, even though the officer thought that he was pointing the weapon at him. The interview was recorded and a transcript was provided to the trial court.

In due course Mr. Joseph was indicted for first degree murder, attempted first degree murder with a firearm, attempted first degree murder with a firearm on a law enforcement officer, and aggravated assault with a firearm on a law enforcement officer. Mr. Joseph filed a motion to suppress statements he made to the officers. The motion discussed the double reading of Fifth Amendment rights to Mr. Joseph, but argued that a discrepancy occurred when Mr. Joseph was advised with respect to his right to talk to a lawyer. In that regard the following conversation (with appropriate translation) took place between Mr. Joseph and the detectives:

Detective Campbell: You have the right to talk to a lawyer before and during questioning, do you understand?
Detective Verret: You have the right to talk with a lawyer before and after they ask you questions, do you understand? Mr. Joseph: Okay.
Detective Campbell: If you cannot afford a lawyer and want one, one will be provided for you before questioning, without charge. Do you understand?
Detective Verret: If you can’t ... if you don’t have money to pay an attorney and you need one, you want one, they’ll give you an attorney before they ask you questions without them charging ... charging you any money, understand?
Mr. Joseph: Okay.

Mr. Joseph posits that the Miranda warning given in Creole did not inform him that he could have an attorney present “during questioning,” as is required. He cited to State v. Powell, 998 So.2d 531 (Fla.2008), where the Florida Supreme Court affirmed a decision of the Second District Court of Appeal holding the Miranda warning was inadequate if the defendant was not informed of his right to have counsel present during questioning. In the transcript of the interview attached to the motion to suppress, Mr. Joseph acknowledged that he understood “some” English and could read English.

At the motion hearing Detective Campbell testified that he did not think Joseph fully understood his Miranda rights the first time they were given in English, so. he called for a translator. He noted that he again gave the Miranda warnings in English off his card, and then the translator repeated them in Creole. Another witness, a housekeeping manager of a hotel under whom Mr. Joseph worked for six to eight months, testified that she always spoke English to the appellant during the workday, and that he always understood. Moreover, Mr. Joseph only-spoke English to her. The director of human resources at the hotel where Mr. Joseph was employed related that the appellant’s employment paperwork indicated that he preferred to receive communications in English. Although Mr. Joseph also wrote the word “Creole” next to the line as well, the witness testified that it was apparent that Mr. Joseph was able to read and understand all of the employment paperwork in English.

The defense argued that although Mr. Joseph was properly advised of his Miranda warnings in English, he was mi-sadvised of them in Creole. The State responded that there was virtually no contradiction between the two versions. The trial court, however, granted the motion to suppress, holding that the translation in Creole did not adequately advise the defendant of his right to talk to an attorney or have an attorney present during questioning. The State timely filed this appeal.

Unquestionably, for the purpose of evidentiary admission of confessions by criminal defendants the State bears the burden to establish by a preponderance of the evidence that the confession was freely and voluntarily given. See Miller v. State, 42 So.3d 204 (Fla.2010). Pursuant to Miranda, the Fifth Amendment rights that police officers must convey to a suspect prior to a custodial interrogation to ensure the voluntariness of a confession are that: (1) the suspected person has a right to remain silent; (2) that anything the suspect says will be used against him or her in court; (3) that he or she has a right to the help of a lawyer; and (4) that if the person cannot pay for a lawyer, one will be appointed for him or her. It is the third requirement that is implicated in this case.

The Florida Supreme Court unpacked what the term “lawyer’s help” means many years ago in Traylor v. State, 596 So.2d 957, 966 n. 13 (Fla.1992). There, the court held that a criminal suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation. Obviously, the issue before us is whether Mr. Joseph was sufficiently apprised of his right to have legal assistance during the time that he was interrogated by law enforcement.

The Florida Supreme Court has noted, however, that there is no “talismanic” incantation required to ensure the warnings are sufficiently conveyed. See Anderson v. State, 863 So.2d 169, 182 (Fla.2003), cert. denied, 541 U.S. 940, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004). Rather, the inquiry is simply whether the warnings reasonably conveyed to the suspect his or her rights as required by Miranda. In other words, the crucial test is whether the words in the context used, considering age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his or her rights. See Coyote v. United States, 380 F.2d 305, 308 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967).

Recently, the decision of the Florida Supreme Court in Powell was reversed, at least in part, by the United States Supreme Court in Florida v. Powell, — U.S. -, 130 S.Ct. 1195, — L.Ed.2d - (2010), which held that Miranda is satisfied when a suspect is informed that he has the right to talk to a lawyer before answering any of the law enforcement officer’s questions and that he can invoke this right at any time during the interview. See State v. Owens, 41 So.3d 352 (Fla. 5th DCA 2010); see also Rigterink v. State, 2 So.3d 221, 254 (Fla.), cert. granted, judgment vacated by Florida v. Rigterink, — U.S. -, 130 S.Ct. 1235, 176 L.Ed.2d 175 (2010).

In the present case the trial court found that Mr. Joseph relied on the Creole translation in an attempt to understand the Miranda warnings. Indeed, there are facts that suggest that Mr. Joseph may not have fully understood the valid English version of the warnings that were first given to him. Thus, we examine whether the translation satisfied Miranda, in light of Powell.

Mr. Joseph was advised by the Creole translator that he had a right to talk to an attorney “before and after they ask you questions.” In Powell, the United States Supreme Court realized that the totality of the warnings accorded to the defendant reasonably conveyed to him his continuing right of access to counsel throughout the interrogation.

They informed Powell that he had “the right to talk to a lawyer before answering any of [their] questions” and “the right to use any of [his] rights at any time [he] want[ed] during th[e] interview.”

Powell, 130 S.Ct. at 1204. In other words, the warning communicated that Powell could consult with a lawyer before answering any particular question, and the catchall statement confirmed that he could exercise that right while the interrogation was underway. Thus, in combination, the two warnings reasonably conveyed the defendant’s right to have an attorney present, not only at the outset of the interrogation, but during the interrogation, as well.

During the course of its discussion of the adequacy of the warnings, the Powell majority applied something of a common sense test to its conclusion that the warning and the catch-all phrase were constitutionally sufficient. It noted that,

To reach the opposite conclusion, i.e., that the attorney would not be present throughout the interrogation, the suspect would have to imagine the counter-intuitive and unlikely scenario that, in order to consult counsel, he would be obliged to exit and reenter the interrogation room between each query.

Powell, 130 S.Ct. at 1199.

The issue, thus, evolves into whether the combination of the warnings given to Mr. Joseph would reasonably convey to him that he could exercise his right to consult with counsel during the interview. We think the warning sufficiently transmits that information at least as efficiently as the catch-all phrase highlighted in the federal Powell decision. Using the common sense approach suggested by the United States Supreme Court, we might note that to conclude that the Creole language warning under consideration is inadequate it would have to be understood to allow Mr. Joseph to talk to a lawyer only before a question or questions are asked; then to compel him to answer the question out of the presence of the lawyer; then to accord him an opportunity talk to the lawyer again after the question is answered. Presumably, he could exercise this right before and after each question is asked. What would be the point, however, of having a right to talk to the lawyer after the question or questions are already answered? We think that common sense dictates a conclusion that the words used sufficiently conveyed the idea that Mr. Joseph could have counsel present during the interrogation.

While the translation of Mr. Joseph’s Miranda rights into Creole could unquestionably have been more precise, we think it reasonably and adequately conveyed to him that he could have a lawyer before and during any interrogation. See Anderson. Accordingly, we reverse the order suppressing the confession of Mr. Joseph and remand to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We recognize that there is authority to the effect thát if warnings are given in two versions (e.g., written and oral), and one version is incomplete, courts have held that so long as one of the versions is complete and correct, the warnings are sufficient. Wayne R. LaFave, 2 Criminal Procedure § 6.8(c) (3d Ed. 2007)(at p. 810). Because of the disposition in this case, however, there is no need to address this issue.


text:
    Amos Dehontiquan SNOWDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5570.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2010.
    Rehearing Denied Jan. 14, 2011.
    Amos Dehontiquan Snowden, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: THOMAS, J.

text:
    ARBOR PROPERTIES, INC., Summerfield PUD, LLC, and Summerfield PUD II, LLC., Appellants, v. LAKE JACKSON PROTECTION ALLIANCE, INC.; Jeffrey S. Phipps; Joanne E. Kowal; C. Tomoka Brady; and C. Perry Brown, Appellees.
    No. 1D09-5211.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Rehearing Denied Jan. 26, 2011.

      W. Douglas Hall and Christine Davis-Graves of Carlton Fields, P.A., Tallahassee, for Appellants.
    Terrell Arline, Panama City; George E. Lewis, II, Tallahassee, for Appellees.
   THOMAS, J.

We have before us the trial court’s order purporting to invalidate the Leon County Commission’s development order approving Appellant’s Planned Unit Development (“PUD”) concept plan known as Summer-field. We reverse and remand with directions that summary judgment be entered in Appellants’ favor.

We hold as a matter of law that the Special Development Zones defined in the Tallahassee/Leon County Comprehensive Plan (“Plan”) do not apply within the Sum-merfield land areas known as “closed basins.” Under the Plan, these areas are not subject to the more stringent provisions meant to control development in order to prevent discharge into Lake Jackson. The County’s ordinance was not unlawfully inconsistent with its Plan. Although the trial court commendably scrutinized the Plan’s text, the order incorrectly interpreted the text as a whole in relation to the governmental action.

The Comprehensive Plan and Land Development Code

The Plan established density and land use regulations within the Urban Service Area to promote the effective use of infrastructure and discourage urban sprawl by authorizing more development under certain conditions, where appropriate. The Plan’s Conservation Element created Special Development Zones within certain lands surrounding Lake Jackson; these areas were defined by elevation. Under Policy 2.2.12 of the Conservation Element, “Special Development zones with accompanying criteria shall be established and implemented through the [land development regulations] for ... Lake Jackson.” These Special Development Zones imposed development limitations on areas below certain elevations. Under Policy 2.3.1 of the Conservation Element, “Local government shall designate special development zones for Lake Jackson that restrict activities that impact the quality of stormwa-ter.” (Hereinafter “rainwater runoff.”) (Emphasis added.)

In the Plan’s Land Use Element, a special category called “Lake Protection” required development density limitations in certain areas which are relevant here. The Land Use Element provided that residential development clusters could be allowed on “portions of parcels not located within the Lake Jackson Special Development Zone and lying below [defined elevations] .... Future development will not be subject to the limitations of the Lake Protection category if ... competent scientific evidence [shows] that the development is located in a closed basin that does not ... discharge [rainwater runoff] to the larger Lake Jackson Basin.” (Emphasis added.) Policy 1.1.8 of the Land Use Element provided that “compliance with the Conservation Element shall be met prior to consideration of requirements in the Land Use Element.”

Leon County adopted a land development regulation, section 10-192(b)(3) of the Land Development Code. That section provided that closed basins within the Lake Jackson Basin lake protection area were not subject to Special Development Zone restrictions, if competent scientific evidence showed that the relevant land area did not discharge water into the lake, post-development runoff would be retained on-site or discharged into an approved runoff facility, and all other development standards within the Plan were met regarding land located below certain elevations.

Facts

Summerfield consists of about 107 acres located in the Urban Service Area southwest of Lake Jackson. It is separated from Lake Jackson by Highway 27, a four-lane divided road. Little Lake Jackson, an arm of Lake Jackson, is northwest of the property. The property is situated within a series of natural basins or depressions. It is undisputed that much of the property is located within “closed basins.” In a closed basin, the only outlet for rainwater is percolation, evaporation or transpiration; thus, these land areas cannot send water runoff into Lake Jackson.

Appellants applied for a conceptual site and development approval for the Sum-merfield PUD. The PUD process is a two-step function in which the local government approves a PUD concept plan. Approval of the PUD concept plan does not grant any right to develop the property; the owner must submit and receive approval of a final PUD concept plan before actually developing the land.

In 2004, Leon County adopted Ordinance 04-40, which rezoned the 107-acre parcel to mixed use and significantly increased permissible development in the closed basin areas. The County’s approval of the PUD imposed numerous conditions, including a requirement that any future application for final development approval must comply with all applicable requirements of the Land Development Code. We note that state law defines a “development order” as “any order granting, denying, or granting with conditions an application for a development permit.” § 163.3164(7), Fla. Stat. Development orders must be consistent with the local government’s comprehensive plan. § 163.3194(3)(a), Fla. Stat.

Appellees filed a complaint against the County under section 163.3215, Florida Statutes, seeking to invalidate the development order on the basis of inconsistency with the Plan. Notably, Appellees also sought certiorari review in the trial court regarding the County’s approval of the conceptual PUD; a different trial court denied relief, finding that under the County’s Land Development Code, the Special Development Zones did not apply to closed basins. This court subsequently denied certiorari in a second-tier certiorari proceeding. See Phipps v. Leon County, 935 So.2d 504 (Fla. 1st DCA 2006).

In 2005, Appellees moved for summary judgment. Appellants filed a cross-motion for summary judgment, arguing that the Special Development Zones did not apply to closed basins on their property, because the basins could not discharge rainwater runoff to Lake Jackson. Thus, Appellants asserted that under Policy 2.3.1 of the Plan, Special Development Zones only applied to “restrict activities that impact the quality of stormwater.” Appellants supported their motion with an affidavit from an engineer stating that the majority of their property was in a closed basin. Significantly, Appellants also submitted an affidavit from the Leon County Director of Environmental Compliance Division of Growth and Environmental Management stating that only the area designated “Basin 1” was not a closed basin.

In its order on summary judgment, the trial court found that the Special Development Zones applied to closed basins, but acknowledged that Appellants’ arguments were persuasive. It went on to find that it was undisputed that Appellants’ property contained elevations that triggered the Special Development Zones, and that the Plan did not contain an exception for closed basins, despite such language in the Land Development Code and the Land Use Element. The trial court was not persuaded by the argument that the Special Development Zones were established to “restrict activities that impact the quality of stormwater” under Policy 2.3.1, which would limit such Zones to open basins. Instead, the trial court found that because the plain language of Policy 2.2.12 which defined and established Special Development Zones did not contain any exception for closed basins in the Lake Jackson area, the development order allowing increased development in those areas in contravention of the Zones was purportedly invalid. We respectfully disagree with the trial court’s careful analysis, and find the better interpretation of the Plan as a whole, and the local government’s interpretation of the Plan, compels us to uphold the development order and the ordinance.

Standard of Review and Analysis

We have recently recognized that our standard of review of the consistency of a development order with a comprehensive plan is de novo. Bay County v. Harrison, 13 So.3d 115, 118 (Fla. 1st DCA 2009). We have further held that a development order is considered consistent with a comprehensive plan where the “ ‘land uses ... and other aspects of ... [the] order ... are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan....” Id. (quoting § 163.3194(3)(a), Fla. Stat. (2005)). The Florida Legislature has established that in reviewing consistency, a court may consider the “reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justici-ably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration.” § 163.3194(4)(a), Fla. Stat.

Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff.

Appellees make an interesting argument in this regard. They assert that Appellants’ argument would produce an absurd result because only Lake Jackson’s watershed is affected by the provisions of policy 2.3.1. Thus, Appellees argue that under Appellants’ view, the Special Development Zones would apply in closed basins around all other lakes except Lake Jackson. Ap-pellees’ argument might have merit if they were challenging the application of the Special Development Zones in those closed basins, but that argument is not presented here. Whether it is absurd to provide greater protections to water bodies other than Lake Jackson is not an issue raised here, and as we have recently held, we are extremely reluctant to apply the absurdity doctrine. See Nassau County v. Willis, 41 So.3d 270, 279 (Fla. 1st DCA 2010) (“Courts should exercise great caution before deviating from the plain text ... to purportedly avoid reaching what a court considers an ‘absurd result.’ ”). What is certainly not absurd, however, is to recognize that Leon County has determined that rainwater runoff policies and regulations should not apply where there is no discharge of runoff.

We find that under any proper interpretation of the Plan, the Special Development Zones do not apply to closed basins within Summerfíeld. Furthermore, we note that the Special Development Zones applied different elevations to other water bodies, and apparently do not apply at all to water bodies not listed, so we decline to speculate regarding how Appellees’ argument would apply in such cases where a landowner asserted that a closed basin was entitled to an exemption from the Special Development Zones. We agree with Appellants that under Conservation Element Policy 2.3.1 and the similar provisions in the Land Use Element regarding the Lake Protection category, as well as the regulations promulgated in the Land Development Code, it is clear that the Special Development Zones were drafted to protect Lake Jackson and other receiving water bodies from polluted rainwater runoff. To accomplish this, the Plan established polices that prohibit disturbance of vegetation and natural features within certain elevation Zones near those water bodies. The Plan expressed a repeated provision that these Zones were created to ensure cleaner runoff from development. If land cannot discharge runoff into Lake Jackson, landowners are provided some relief, based on the appropriate conclusion that the more stringent Zones were designed to protect water bodies, and not to impose general environmental controls unrelated to water quality.

REVERSED and REMANDED with directions to enter judgment in favor of Appellants.

HAWKES and MARSTILLER, JJ., concur.


author: GROSS, C.J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PALM CHIROPRACTIC CENTER, INC., a/a/o Joyce Thomas, Respondent.
    No. 4D10-3145.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Rehearing Denied Feb. 2, 2011.

      Thomas L. Hunker, Miami, for petitioner.
    Dean A. Mitchell, Ocala, for respondent.
   GROSS, C.J.

United Automobile Insurance Company petitions this court for a writ of certiorari to quash an order by the circuit court, in its appellate capacity, affirming the county court’s grant of final summary judgment in favor of Palm Chiropractic Center. Although we conclude that the circuit court committed legal error, we find neither a violation of a clearly established principle of law, nor the occurrence of a miscarriage of justice. For these reasons, we deny the petition.

Joyce Thomas was involved in an auto accident and suffered injuries for which she received treatment at Palm. She assigned her right to Personal Injury Protection (PIP) benefits to Palm. United Auto paid certain benefits to Palm with a letter advising that, based on an independent medical examination, further chiropractic treatment was not necessary and that it would not pay further benefits. The check tendered to Palm along with the letter contained the following notation: “Pay to the order of PALM CHIROPRACTIC CTR FOR FULL & FINAL PAYMENT OF PIP BENEFITS F/A/O JOYCE THOMAS.” Palm cashed the check.

Palm continued to treat Thomas and United Auto refused to pay the PIP benefits for the additional treatment. Palm sued United Auto in county court. Both sides moved for summary judgment. United Auto claimed that Palm’s acceptance of the check constituted an accord and satisfaction; Palm’s motion contended that the accepted check was but a partial payment for services rendered. The county court denied United Auto’s motion and granted Palm’s motion, entering a final judgment in favor of Palm for $2,154.03 and $55,000 in attorney’s fees, taxable costs, and prejudgment interest.

United Auto timely appealed to the circuit court, which affirmed the county court’s judgment, relying on St. Mary’s Hospital, Inc. v. Schocoff, 725 So.2d 454 (Fla. 4th DCA 1999).

The posture of this case as a second tier certiorari is crucial to the outcome. The Florida Supreme Court has repeatedly emphasized the narrow scope of a district court of appeal’s certiorari review of an appellate decision of a circuit court. Most recently, in Custer Medical Center v. United Automobile Insurance Co., — So.3d -, -, 2010 WL 4340809 (Fla.2010), the Supreme Court engaged in this analysis:

This Court has continually applied certain fundamental principles for the use of certiorari to review decisions rendered by the circuit court acting in its appellate capacity from the time common-law certiorari jurisdiction was first recognized in 1855. We have consistently observed that “[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.” Therefore, when a district court considers a petition for second-tier certiorari review, the “inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,” or, as otherwise stated, departed from the essential requirements of law. The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error. Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice. In Haines City Community Development v. Heggs, [658 So.2d 523 (Fla.1995) ] this Court clarified and narrowed the scope of common law certiorari jurisdiction by clearly stating that
[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.
Furthermore, the district courts should consider the nature of the error and grant a petition for writ of certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Thus, the district court’s exercise of its discretionary certiorari jurisdiction should
depend on the court’s assessment of the gravity of the error and the adequacy of other relief. A judicious assessment by the appellate court will not usurp the authority of the trial judge or the role of any other appellate remedy, but will preserve the function of this great writ of review as a “backstop” to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.
In other words, this Court has definitively expressed that certiorari cannot be used to grant a second appeal to correct the existence of mere legal error. This is necessary because, unlike an appeal, common-law certiorari is an entirely discretionary exercise of jurisdiction by the court and is not taken as a matter of right. A reviewing court on appeal may correct any and all errors below, whether jurisdictional, procedural, or substantive, and may modify, reverse, or remand a judgment. In contrast, a district court cannot correct just any error that may have occurred below through a second-tier certiorari proceeding. This proceeding is considered original in the sense that the subject-matter of the action or proceeding before the court is not to be reinvestigated, tried, and determined upon the merits generally as upon appeal at law or writ of error. Hence, a circuit court appellate decision made according to the forms of law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to facts, is not a departure from the essential requirements of law remediable by certiorari.
The policy behind prohibiting certiora-ri to function as a second appeal is that the circuit court possesses final appellate jurisdiction in eases originating in the county court. See art. V, § 5, Fla. Const. As this Court articulated in Haines, if the role of certiorari were expanded to review the correctness of the circuit court’s decision, it would amount to a second appeal that usurps the final appellate jurisdiction of the circuit court in contravention of the Florida Constitution. This would deprive litigants of final judgments obtained in the circuit court and ignore “societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals.” A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of general jurisdiction.

(footnote omitted) (citations omitted).

Here, the circuit court incorrectly applied the correct law. An accord and satisfaction results as a matter of law “when the creditor accepts payment tendered on the expressed condition that its receipt is deemed to be a complete satisfaction of a disputed issue.” St. Mary’s Hosp., 725 So.2d at 456. This court has long held that cashing a check containing language that it is in full payment of the debtor’s obligations creates an accord and satisfaction with regard to the claim for which payment was tendered. See Eder v. Yvette B. Gervey Interiors, Inc., 407 So.2d 312 (Fla. 4th DCA 1981); Ennia Gen. Ins. Co., Ltd. v. Auld, 506 So.2d 62 (Fla. 4th DCA 1987); see also Mortell v. Keith, Mack, Lewis & Allison, 528 So.2d 1362 (Fla. 3d DCA 1988). At the time the check was tendered in this case, there were sessions for which United Auto was not offering to pay. The check and the cover letter clearly indicated the insurer’s position that no further payments would be made. The St. Mary’s Hospital case relied upon by the circuit court did not control the outcome here because it did not involve a check with limiting language which made “explicit, without question, the insurer’s position [that] there are no further benefits due under the policy and it does not intend to make any further payments.” 725 So.2d at 456.

However, the “mere legal error” in this case is not a departure from the essential requirements of law remediable in a second tier certiorari. In the words of Custer Medical Center, this was a “circuit court appellate decision made according to the forms of law and the rules prescribed for rendering it, although it [was] erroneous in its conclusion as to what the law is as applied to the facts.” — So.3d at -. In addition, we find no miscarriage of justice. The circuit court decision is fact dependent; it does not establish an incorrect legal principle that will deleteriously affect a great number of cases. Although United Automobile has suffered a money judgment against it, something more is required for there to be a miscarriage of justice.

The petition for writ of certiorari is denied.

STEVENSON and CIKLIN, JJ., concur.


author: RAMIREZ, C.J.

text:
    CDC BUILDERS, INC., Petitioner, v. RIVIERA ALMERIA, LLC, et al., Respondents.
    No. 10-1197.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.
    Rehearing and Rehearing En Banc Denied Feb. 4, 2011.
    Siegfried, Rivera, Lerner, De La Torre & Sobel and Michael J. Kurzman and Tiffany Hurwitz, Plantation, for petitioner.

      Daniels, Kashtan, Downs, Robertson & McGirney, and Richard J. Daniels, Madelyn Simon Lozano, Coral Gables, Jeremy C. Daniels and Ari A. Sweetbaum, Coral Gables, for respondents.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   RAMIREZ, C.J.

CDC Builders, Inc., appeals the trial court’s order granting partial summary judgment. We treat this as a petition for a writ of certiorari. CDC Builders alleges that the trial court erred when it held that the filing of inaccurate interim payment affidavits in violation of chapter 713, Florida Statutes, allows for the discharge of a lien as a matter of law. We agree and therefore grant the petition.

1. Factual Background

Petitioner CDC Builders, Inc. is a general contractor. Respondents Riviera Almería, Riviera Biltmore, and Riviera Sevilla (collectively “developers”) are three entities involved in developing three parcels of property in Coral Gables, Florida. In February of 2006, CDC Builders and the developers entered into substantially similar construction agreements wherein the parties were to construct twenty-five homes/townhomes in Coral Gables, Florida. The estimated construction cost of these twenty-five units was $40,000,000.

The developers directed CDC Builders to commence construction on eight of the twenty-five homes. Midway through the construction of the eight homes, the developers, citing insufficient financing and lack of sales, exercised its contractual right to terminate CDC Builders for convenience. Although it terminated CDC Builders, the developers nonetheless requested CDC Builders to complete the construction of the eight homes already in progress. CDC Builders continued the work on the eight homes but sought convenience compensation on the seventeen cancelled homes. In January of 2008, CDC Builders filed the underlying action to recover contractual compensation for the developers’ termination for convenience. Subsequently, the developers stopped paying CDC Builders for labor, materials, and services being provided on the eight homes under construction. Both the developers and CDC Builders claim different reasons for this sudden termination of payments. The developers claim that they discovered CDC builders was overcharging its contractor’s fees and the cost of work, and therefore it was contractually entitled to hold back funds to partially recoup the overcharges. CDC Builders, however, claims that the developers withheld payment in response to the lawsuit, and further in an effort to hedge its contractual exposure for termination for convenience compensation on the seventeen cancelled homes.

CDC Builders ultimately completed all construction on the eight homes and obtained certificates of occupancy from the city of Coral Gables. Subsequent to this, CDC Builders recorded claims of lien pursuant to chapter 713, Florida Statutes (2006), in order to recover sums due to it for the work performed on the eight homes. The developers filed counterclaims alleging breach of contract, fraudulent lien, and violations of FDUTPA. Both parties filed motions for summary judgment, including a motion for partial summary judgment filed by the developers. The motion for partial summary judgment, seeking discharge of CDC Builder’s claims of lien, is the subject of this appeal.

In its motion for partial summary judgment, the developers claimed that CDC Builder’s submitted false interim payment affidavits in violation of chapter 713. Specifically, the developers argued that by: (1) withholding entire payments from subcontractors, and (2) keeping excess retain-age from subcontractors, CDC Builders enjoyed a surplus of money. The developers further argued that because CDC Builders had been paid in full (evidenced by the surplus of money), and because of material breaches of the Florida Lien Statutes, the liens against its properties were invalid and fraudulent under Florida Law.

The trial court found that chapter 713, when read as a whole, requires a contractor to comply with all statutory provisions, including abstaining from knowingly or intentionally filing false information about the payment status of subcontractors. Relying on evidence before it, the court found there were no questions of material fact that CDC Builders had filed false interim payment applications. Thus, the court agreed with the developers, finding the liens violated chapter 713, and its strict compliance requirement. The trial court granted the developers’ motion for partial summary judgment and discharged the hens. CDC Builders appealed this order.

2. Analysis

Because we do not agree with the trial court’s interpretation and application of chapter 713, we need not address the summary judgment issue. The issue we address is whether chapter 713 allows for the discharge or invalidation of an otherwise valid construction lien, where the lienor filed an inaccurate interim payment request. Specifically, we are concerned with the deleterious impact the trial court’s interpretation of chapter 713 would have upon the construction industry as a whole.

We disagree with the trial court’s ultimate determination that CDC Builder’s actions amounted to a violation of sections 713.345 and 713.35, Florida Statutes (2006). When CDC Builders submitted the payment applications in question, it was not doing so pursuant to a statutory requirement. Rather, it did so because it was contractually required to do so.

Additionally, we do not believe CDC Builders acted incorrectly when it withheld a retainage from its subcontractors. This is because the contract between CDC Builders and the developers allowed CDC Builders to retain money from its subcontractors. Section 12.1.8 of the agreement states: “[ejxcept with the [ojwner’s prior approval, and as provided in [§ ]12.1.7, payments to [subcontractors shall be subject to retainage of not less than five (5.00%).” A plain reading of this section indicates that not only was CDC Builders allowed to withhold a retainage; it was contractually required to do so. In fact, one of the statutory sections developers rely on contemplates contractual agreements whereby one party can withhold payment. Section 713.345(l)(a) states in pertinent part: “[t]his paragraph does not prevent any person from withholding any payment, or any part of a payment, in accordance with the terms of a contract for services, labor, or materials, or pursuant to a bona fide dispute regarding the amount due, if any, for such services, labor, or materials.” At bottom, it seems that the developers had sufficient knowledge as to the issue of retainage, whether or not it was expressly stated in the interim payment requests.

However, even if this Court agreed with the trial court’s factual determination, such violations would only justify criminal sanctions as outlined in the statute. Therefore, while a violation of either section 713.345 or section 713.35 would expose an individual to criminal sanctions, we cannot agree with the trial court that either statute — or chapter 713 interpreted as a whole — would justify the discharge or invalidation of an otherwise valid lien. In fact, in its order discharging the liens, the trial court acknowledges that neither section 713.345 nor section 713.35 allow for discharge. Referring to section 713.35, the trial court stated “[tjhere is no language or provision contained therein which would mandate this [cjourt finding that the ultimate claims of lien filed herein, because the interim payment affidavits were false, necessitate the discharge of the liens for noncompliance. The same analysis holds true for section 713.345.” Instead, the trial court relied on its interpretation that chapter 713, when read as a whole, “requires a contractor to comply with all provisions contained therein.” However, this interpretation neither comports with the statutory language nor with precedent in this state.

Section 713.37 expressly states that Part I, chapter 713 “shall not be subject to a rule of liberal construction in favor of any person to whom it applies.” See also Zalay v. Ace Cabinets of Clearwater, Inc., 700 So.2d 15 (Fla. 2d DCA 1997) (echoing the language of section 713.370). Additionally, as the Florida Supreme Court stated in Home Electric of Dade County, Inc. v. Gonas, 547 So.2d 109, 110 (Fla.1989), “[construction] liens are purely creatures of the statute” and as a “statutory creature, the [construction] lien law must be strictly construed.”

This Court is well aware of the impact this decision could have on the construction industry as a whole. If we were to agree with the trial court, the purpose of liens would be undercut as hens could be subject to attack for inaccuracies or simple mathematical errors. This is not what the legislature intended when it enacted the construction lien law, and therefore it is not an outcome this Court can allow. Recently, in Trytek v. Gale Industries., Inc., 3 So.3d 1194, 1199 (Fla.2009), the Florida Supreme Court reaffirmed the dual purpose of the Construction Lien Law. First, “[construction] liens protect suppliers who furnish labor or material to the property by assuring them of full payment.” Second, construction liens protect “owners by requiring subcontractors to provide notice of possible liens, thereby allowing owners to prevent double payment to both a contractor and a subcontractor, material supplier, or laborer, for provision of the same services or materials when the contractor and subcontractor are not in privity.” See also Fla. Steel Corp. v. Adaptable Devs., Inc., 503 So.2d 1232, 1234 (Fla.1986) (stating one of the principal purposes of the Construction Lien Act is to “prevent[ ] the unjust enrichment of owners at the expense of lienors”). Adherence to the trial court’s opinion would frustrate the first purpose outlined in the Trytek opinion. In essence, contractors could lose protection by committing errors in calculations, submitting inaccurate payment claims, or as in this case adhering to contractual duties.

3. Conclusion

Because the contract binding the parties expressly provided that CDC Builders could withhold a retainage from its subcontractors, and because developers had copies of the contracts between CDC Builders and the subcontractors, we find developers had sufficient knowledge that CDC Builders was withholding said retainage. Additionally, we hold the trial court incorrectly applied chapter 713 when it held that the filing of inaccurate payment claims warrants the discharge of any subsequent liens. To agree with the trial court’s application of the statute would mean that otherwise valid liens would violate the lien law. This would go against the spirit and purpose of Florida’s Construction Lien law.

Petition for writ of certiorari granted.

      . Florida Deceptive and Unfair Trade Practices Act.

      . On July 21, 2010, this Court treated the Notice of Appeal and the Initial Brief as a Petition for Writ of Certiorari.


author: ALTENBERND, Judge.

text:
    Regina POWERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D09-4571, 2D09-4572.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, for Appellee.
   ALTENBERND, Judge.

In these consolidated appeals, Regina Powers challenges two consecutive sentences of five years’ imprisonment imposed upon revocation of her probation. As Ms. Powers correctly argues, and the State concedes, the trial court erred in sentencing her to terms of incarceration greater than the remaining balance of her suspended sentences. We therefore reverse Ms. Powers’ sentences and remand for resentencing.

In February 2006, in case numbers 05-92CF and 05-593CF, Ms. Powers pleaded no contest to two third-degree felonies. The court imposed concurrent sentences of forty-eight months’ imprisonment, with the sentences suspended and served as two years’ probation. Later that year, Ms. Powers violated her probation and the court sentenced her to thirty months’ incarceration followed by eighteen months’ probation. In 2010, having completed the incarcerative portion of her sentences, Ms. Powers was charged with several new violations of her probation. After accepting Ms. Powers’ admissions to these violations, the trial judge sentenced her to consecutive terms of five years’ imprisonment, for a total sentence of ten years’ imprisonment.

Ms. Powers’ February 2006 sentences were “true split sentences.” See Poore v. State, 531 So.2d 161, 164 (Fla.1988), superseded by statute on other grounds as recognized in Crews v. State, 779 So.2d 492, 493-94 (Fla. 2d DCA 2000); Wardlaw v. State, 832 So.2d 258, 259 (Fla. 2d DCA 2002). By imposing this type of sentence, the original sentencing judge predetermined the sanction Ms. Powers would incur upon a violation of probation. See Poore, 531 So.2d at 164-165. Upon any such violation, the trial judge was limited to imposing sentences that would not exceed the remaining balance of the concurrent, forty-eight month suspended sentences. See Towbridge v. State, 564 So.2d 604 (Fla. 3d DCA 1990) (holding that after revoking defendant’s probation, trial court was required to reimpose original sentences as concurrent, not consecutive, when defendant initially received concurrent “true split sentences”).

The trial judge who imposed the sentences on appeal was not the trial judge who had imposed the two earlier sentences. The judge was aware that Ms. Powers’ original sentences were true split sentences in which the terms of imprisonment were fully suspended. The judge concluded that the sentences imposed on the first violation were not true split sentences and that the court was, thus, free to impose these longer consecutive sentences.

Admittedly, there are times when a defendant loses the benefit of a true split sentence by accepting a more favorable sentence on an initial violation of probation. This occurs when the more favorable sentence is not compatible with the terms of the true split sentence. See Lee v. State, 666 So.2d 209, 210 (Fla. 2d DCA 1995). As the State concedes, however, the short term of imprisonment followed by probation imposed on the first violation of probation in this case was not incompatible with the longer term of imprisonment that had been originally suspended. See Lawton v. State, 711 So.2d 142, 143 (Fla. 2d DCA 1998). Accordingly, Ms. Powers did not lose her right to receive the incarcerative portion of the true split sentences at the sentencing hearing that is challenged in this appeal.

We therefore reverse and remand for resentencing that does not exceed “the full original sentence of incarceration with credit for time served.” Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007) (quoting Crews, 779 So.2d at 493).

Reversed and remanded.

SILBERMAN and BLACK, JJ., Concur.


author: MARSTILLER, J.

text:
    Judith Jean EAST, Appellant, v. CVS PHARMACY, INC., Gab Robins, Appellees.
    No. 1D10-0398.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Catherine F. Agacinski of Silver & Aga-cinski, P.A., Tampa, for Appellant.
    Cheryl L. Wilke of Hinshaw & Culbertson, LLP, Fort Lauderdale, for Appellees.
   MARSTILLER, J.

The claimant in this workers’ compensation case appeals an order denying her petition for permanent total disability (“PTD”) benefits. We affirm the order because the claimant failed to prove she would be permanently disabled after reaching overall maximum medical improvement (“MMI”).

The claim for PTD benefits arose from compensable injuries (fractured right kneecap and left elbow, and injured low back) the claimant sustained when she fell from a ladder while at work. She had received temporary partial disability (“TPD”) benefits for the full 104-week period allowed under section 440.15(4), Florida Statutes, and sought PTD benefits beginning December 25, 2008. When the claimant filed her petition in May 2009, an orthopedic surgeon, a pain management specialist and a psychiatrist were treating her. As of the December 2009 hearing, the orthopedic surgeon restricted the claimant to sedentary work, requiring her to sit with her leg elevated and ice her knee frequently. But the surgeon would not impose permanent physical and work restrictions or find MMI until the claimant completed physical therapy. And the psychiatrist would not put the claimant at MMI for depression, anxiety and insomnia secondary to chronic pain until she reached orthopedic MMI. Only the pain management specialist deemed her at MMI for chronic knee and leg pain. But he would not assign work restrictions until the orthopedic surgeon placed the claimant at MMI and she underwent a functional capacities examination.

A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI. See Crum v. Richmond, 46 So.3d 633, 637 (Fla. 1st DCA 2010); City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). At the time of the hearing, the claimant here was not at overall MMI. And although the orthopedist’s restrictions resulted in total disability, he would not find MMI, impose permanent restrictions, or even know what those restrictions would be until the claimant completes the full course of physical therapy. Thus, the claimant did not prove her disability would continue after reaching full MMI. For this reason, the Judge of Compensation Claims correctly denied the claimant’s petition for PTD benefits.

AFFIRMED.

, PADOVANO and ROBERTS, JJ., concur.