author: ORFINGER, J.

text:
    A.L., Mother of S.L., J.L., M.L., and E.L., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-1927.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2010.

      Heather Morcroft, Orlando, for Appellant.
    Kelly A. Swartz, Rockledge, for Appel-lee.
    Barbara A. Eagan, of Eagan Appellate Law, PLLC, Orlando, for Guardian Ad Litem.
   ORFINGER, J.

A.L., the mother of S.L., J.L., M.L. and E.L., appeals from a final order terminating jurisdiction over this dependency action and permanently placing her children with their non-offending father.

This dependency action began when the Department of Children and Families (“DCF”) sheltered A.L.’s four children following a domestic violence incident. According to the shelter petition, concern existed that the mother, who was unemployed, had been evicted from a rooming house that she shared with the children. Due to the possibility that the mother would flee to Mexico with the children, DCF asked the court to place the children with the father. A guardian ad litem was appointed for the children and counsel was appointed for the mother and the father.

The mother consented to the dependency petition without admitting the allegations of the petition, believing it to be in the best interests of the children. The court ordered custody with the father pending a home study, and supervision and services to the mother and children. A case plan was formulated on October 6, 2009, requiring the mother to address her parenting skills, obtain counseling, employment, housing and other tasks with a completion date of June 16, 2010.

The mother’s counsel reviewed the tasks with the mother and DCF worked with the mother to provide referrals and to assist her with her tasks. On October 20, 2009, a status report was submitted, reflecting no problems with the mother’s supervised visits and that the mother was obtaining legal assistance regarding her immigration status. A December 17, 2009, judicial review/permanency report indicated the mother’s partial compliance with the case plan that “reunification continues to be the goal,” and that “the children are thriving with the father.” The order entered in connection with the December 17, 2009, permanency hearing reflected that the goals were reunification as well as to “maintain and strengthen.”

At the subsequent March 11, 2010 status hearing, the father requested that supervision and jurisdiction be terminated, and that the children remain in his sole custody. The father contended that the mother had not yet completed her case plan, and appeared unable to complete it by the June 16, 2010, expiration date. The mother argued that she should be allowed the full nine months to complete the case plan. An unidentified person attending the hearing advised the magistrate that when DCF enters into a “maintain and strengthen” case plan, it has the option of not providing the mother with a reunification plan. The mother told the magistrate that she had been working toward reunification and completing the tasks assigned to her. Further, she argued that if the case plan did not have reunification as a goal, DCF was required to show that reunification was not in the children’s best interests.

In his report, the magistrate found that the children had been placed with the father at least six months. Further, the magistrate determined that the mother was making progress, but lived in a single room that was inadequate to house four children, made minimum wage, and functioned at a borderline intelligence level, which created grave doubts that she would be able to implement changes in her life necessary to remedy the circumstances that led to dependency. The magistrate noted the psychological report recommended that the mother participate in mental health services, and determined that the mother would not likely achieve suitable housing or complete the necessary mental health services within the specified nine months from the shelter date, and that reunification with the mother would be detrimental to the children without these services. The magistrate further found that the mother and father’s twelve-year-old daughter was seven months pregnant, that the petition alleged that the mother knew the twelve-year-old child was dating a “24-year old,” who was the older brother of the mother’s former paramour. Lastly, the magistrate found that the children had achieved permanency while in the father’s custody. As a result, the magistrate recommended that supervision and jurisdiction be terminated.

The mother filed exceptions to the magistrate’s report and recommendations. The mother argued that “maintain and strengthen” is a “reunification” goal, and that she should have the full nine months to achieve reunification. The mother asked the trial court to reject the report and recommendations and continue the case to allow her to complete the case plan tasks. After a hearing, the court entered an order ratifying and approving the report and recommendation of the magistrate.

On appeal, the mother challenges the order terminating jurisdiction, claiming it fails to comply with Chapter 39, Florida Statutes (2009), as it relates to permanency determinations. Section 39.621, Florida Statutes, requires that permanency hearings be held at specified times. The statute explains that “[t]ime is of the essence for permanency of children in the dependency system” and that “[t]he purpose of the permanency hearing is to determine when the child will achieve the permanency goal or whether modifying the current goal is in the best interest of the child.” Permanency goals under the statute, in order of preference, include reunification, adoption, permanent guardianship, permanent placement with a fit and willing relative or placement in another planned permanent living arrangement. See § 39.621(2)(a)-(e), Fla. Stat. (2009). Here, the ease plan establishes a permanency goal of “maintain and strengthen,” not one of the statutory options.

It is not clear what the case plan goal of “maintain and strengthen” means. DCF took the position below that such a goal allows it the option of not providing the offending parent with a reunification plan. The mother, however, observes that “maintain and strengthen” is not a permanency goal recognized in section 39.621(2)(a)-(e). She notes that the December 17, 2009, judicial review permanency report states the permanency goal as “maintain and strengthen” but continues as to each child that “[tjermination of parental rights/adoption is not in the best interest of the child as reunification continues to be the goal.” The December 17, 2009, permanency order states the permanency goal as “reunification — maintain & strengthen.”

DCF counters that: (1) “maintain and strengthen” is equivalent to the permanency goal recognized in section 39.621(2)(d) of “permanent placement with the fit and willing relative”; (2) concurrent permanency goals may be pursued, here, either reunification as to the mother or maintain and strengthen as to the father; and (3) once one of these goals was reached, here, permanency with the father, DCF was under no obligation to continue with the other goal. DCF claims at that point, the trial court could terminate supervision in accordance with section 39.521(3)(d), Florida Statutes (2009) (“Protective supervision shall be terminated by the court whenever the court determines that permanency has been achieved for the child, whether with a parent, another relative, or a legal custodian, and that protective supervision is no longer needed.”).

At a minimum, it does not appear that DCF and the mother were operating with the same understanding as to the permanency goal. While DCF may be correct that under section 39.621 multiple permanency goals may be pursued, such goals must be clearly enunciated to those involved in the dependency action. DCF understandably emphasizes the directive in section 39.621(1) that “time is of the essence for permanency of children in the dependency system” but the utilization of vague and uncertain permanency goals as here, does not further the efficient and proper disposition of dependency proceedings.

The mother undertook to complete the tasks in the case plan. The case plan had a completion date of June 16, 2010. By the March 11, 2010 hearing, the mother was progressing well. While some tasks still needed to be completed, the mother had made meaningful progress in the five months since the case plan had been adopted. Despite this progress and the plan’s stated completion date of June 16, 2010, the mother was not given until then to reach compliance.

In K.E. v. Department of Children & Families, 958 So.2d 968 (Fla. 5th DCA 2007), this Court held that an offending parent who has substantially complied with a case plan that has the goal of reunification is entitled to reunification with the dependent child absent a determination that reunification would be detrimental to the child. See also M.M. v. Dep’t of Children & Families, 29 So.3d 1200 (Fla. 5th DCA 2010). Where the offending parent has not yet substantially complied with the case plan and the time for such compliance has not expired, if a party or the court concludes that reunification with the offending parent would no longer be appropriate, the proper procedure is to amend the case plan in accordance with section 39.6013, Florida Statutes, and Florida Rule of Juvenile Procedure 8.420(b). K.E., 958 So.2d 968; see, e.g., R.N. v. Dep’t of Children & Families, 25 So.3d 697 (Fla. 5th DCA 2010). That was not done here.

The magistrate did not find that the mother failed to substantially comply with the case plan, warranting an amendment to the case plan goal. Cf. M.I. v. Dep’t of Children & Families, 45 So.3d 878 (Fla. 4th DCA 2010) (holding that permanency goal properly changed where parent demonstrated failure to comply with case plan). Nor did the magistrate find that reunification would be detrimental to the children if the mother complied with the terms of the case plan, only that reunification would be detrimental if she did not comply with the case plan.

The procedure utilized in this case was confusing and counter to the mother’s reasonable understanding of the case plan. The procedures utilized in a dependency action must comport with due process principles. See, e.g., Dep’t of Children & Family Servs. v. M.L., 984 So.2d 606 (Fla. 3d DCA 2008). DCF asserts lack of significant prejudice to the mother, who did not lose her parental rights and who can move for modification if and when she achieves all the goals of the case plan. See Fla. R. Juv. P. 8.430(b). However, even if the mother could satisfy the standards for modification, the possibility of a future modification is not an excuse for utilizing confusing goals and procedures and failing to allow a parent a reasonable opportunity to complete a case plan in the absence of evidence that such opportunity would be fruitless or would be detrimental to the best interests of the children.

For these reasons, we reverse the order terminating jurisdiction and remand this matter to the trial court for a determination of whether an amendment to the permanency goal of the case plan was necessary, if not, the mother’s level of compliance with the case plan, and ultimately, what permanency disposition is appropriate.

REVERSED and REMANDED.

LAWSON and EVANDER, JJ., concur.

      . The parties also were provided with the assistance of a Spanish interpreter.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Francis BYSCZYNSKI, Appellant, v. UNITED PARCEL SERVICES, INC. and Liberty Mutual Insurance Company, Appellees.
    No. 1D10-2753.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Tara L. Sa’id of the Law Offices of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant seeks review of an order of the Judge of Compensation Claims (JCC) that denies authorization of a cervical spine fusion. We reverse and remand for entry of an order authorizing the surgery because all of the medical evidence established that the need for the surgery was brought about solely by occupational injuries and, thus, the JCC erred in applying the major contributing cause standard in section 440.09(l)(b), Florida Statutes (2006), to deny the surgery.

Claimant, while working as a delivery driver for the Employer, suffered a com-pensable accident and injury in 2005, resulting in an authorized cervical diskecto-my and fusion at the C5-6 level performed by Dr. Glasser, a neurosurgeon. This surgery necessitated the implantation of a fixation plate. Following this surgery, Claimant had “excellent” results and returned to full-duty work for the Employer. According to Dr. Glasser, Claimant neither required nor received any medical treatment for the injuries suffered in the 2005 accident subsequent to October 23, 2005, the date he reached maximum medical improvement (MMI) from the 2005 accident.

On February 21, 2007, while working on a loading dock, Claimant injured his right shoulder and reinjured his neck, when a chain he was pulling snapped. Approximately one hour later, Claimant lifted a ninety-pound package and felt immediate and severe pain in his neck and right shoulder. The Employer and its workers’ compensation carrier (E/C) again authorized medical treatment with Dr. Glasser, who diagnosed cervical strain and radiculi-tis.

Dr. Glasser initially referred Claimant to a shoulder specialist, who performed an authorized partial shoulder replacement in 2007. In 2008, the shoulder specialist referred Claimant back to Dr. Glasser because of Claimant’s persistent complaints of pain in the cervical region. Dr. Glasser then diagnosed a disc osteophyte complex and degenerative changes at C6-7, with mild collapse of both neural foramina. Dr. Glasser recommended a cervical fusion at C6-7 (a level below the previous fusion) and plate removal at C5-6 (the plate implanted in the 2005 procedure). Dr. Glas-ser ultimately opined that the 2007 work accident was the major contributing cause of the medical condition warranting surgery and that Claimant did not require further treatment for the injuries resulting from his 2005 accident until the need was brought about by his 2007 accident.

Claimant filed a petition for benefits for authorization of the surgery recommended by Dr. Glasser, which the E/C denied. The E/C obtained an independent medical examination with Dr. Cassidy, who opined that, although the surgery recommended by Dr. Glasser was medically necessary, the need for the surgery was a result of degenerative changes, not the 2007 accident. However, Dr. Glasser acknowledged that the degenerative changes were likely related to the prior fusion.

Based on an unopposed motion filed by the E/C, the JCC appointed an expert medical advisor (EMA) pursuant to section 440.13(9)(c) to resolve the perceived conflict between the opinions of Dr. Glasser and Dr. Cassidy. The JCC asked the EMA to answer the following question: “What is the major contributing cause of the claimant’s need for C6-7 partial cor-pectomy, fusion, and plate with removal of the C5-6 plate surgery?” In his report, the EMA stated that Claimant’s degenerative disc disease was the major contributing cause of Claimant’s need for the fusion.

At trial, the EMA clarified this statement, and testified that, although the injuries suffered as a result of the 2007 accident contributed to Claimant’s need for surgery, the 2005 fusion likely caused the significant degenerative process necessitating the surgery (because of increased stress caused by the fixed nature of the fusion), and was, thus, the major contributing cause of the “need” for surgery. The EMA also testified that although Claimant likely had some degenerative disc disease even prior to the 2005 accident (which the EMA stated could not properly be classified as a preexisting injury or anomaly because of its commonness and asymptomatic nature), this degenerative condition was neither the major nor a minor cause of “the need for surgery.” In conclusion, the EMA testified the injuries caused by the 2007 accident combined with the 2005 “problems” to cause the need for the surgery in question, and he could not say that Claimant would have required the surgery in question, absent the occurrence of the 2007 accident and resulting injuries.

In the merits order, the JCC denied the surgery. The JCC found, based on the EMA’s testimony, that Claimant had degenerative disc disease which predated both accidents and had continued to progress causing the need for the surgery, and thus, the major contributing cause of Claimant’s need for surgery was not the 2007 accident. The JCC rejected Claimant’s argument that the major contributing cause standard did not apply because the only causes contributing to the need for surgery were occupational in nature. This was error.

This case illustrates the complex nature of Florida’s current Workers’ Compensation Law, and the myriad of thorny legal and medical issues which accompany even the most fundamental decisions regarding an injured worker’s entitlement to, and a carrier’s liability for, medical treatment. Here, the JCC, by application of the major contributing cause standard in section 440.09(l)(b) denied a surgery (which was indisputably medically necessary) simply because the EMA opined that Claimant, who was fifty-six years old, had age-appropriate degeneration in his spine which preexisted both dates of accident. However, according to all of the medical evidence admitted into evidence, the degeneration in Claimant’s spine predating both accidents merely bespeaks Claimant’s age and, significantly, this condition did not (and, reasonably, would not) independently require any level of treatment either before or after Claimant’s two compensable accidents.

Moreover, all of the medical evidence, including the testimony of the EMA, was consistent in explaining that the significant and anomalous changes in the cervical spine which contributed to Claimant’s need for the surgery were the natural sequela of the compensable surgery for the 2005 accident and injuries, which our case law instructs becomes part of the compensable injury. See Spacal (Sutton) v. Marietta, 642 So.2d 46, 47 (Fla. 1st DCA 1994) (holding E/C is required to provide any remedial treatment and care which is necessitated by authorized surgery or complications thereof). Under these facts, the JCC erred by including Claimant’s normal, aged condition as a contributing, legal cause of Claimant’s need for surgery and then applying the major contributing cause standard to deny the surgery. See Pizza Hut v. Proctor, 955 So.2d 637 (Fla. 1st DCA 2007); Pearson v. Paradise Ford, 951 So.2d 12, 17 (Fla. 1st DCA 2007) (stating “it seems evident that the legislature intended [440.09](1)(b) to apply only when the claimant’s need for treatment or benefits is caused by the impact of an employment accident combining with a preexisting injury or condition that is unrelated to an employment accident”).

In sum, because all of the medical evidence establishes that the only contributing causes of Claimant’s need for the cervical spine fusion were occupational in nature, the JCC erred in applying the major contributing cause standard to deny the surgery. Accordingly, the order on appeal is reversed and this case is remanded for entry of an order authorizing the surgical spine fusion.

REVERSED and REMANDED with directions.

WETHERELL and ROWE, JJ., concur; BENTON, C.J., concurs in the judgment.


author: ROTHENBERG, J.

text:
    Marsha R. COHEN, Appellant, v. CHICAGO TITLE INSURANCE CO., et al., Appellees.
    No. 3D10-15.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.

      Assouline & Berlowe and Peter E. Ber-lowe and Meredith J. Gussin, Miami, for appellant.
    Holland & Knight and Rodolfo Sorondo, Jr. and Rebecca M. Plasencia, Miami, for appellees.
    Before RAMIREZ, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

Marsha R. Cohen (“the plaintiff’) appeals from a final order granting the defendants’ motion to dismiss Count I of her complaint with prejudice. Chicago Title Insurance Co. (“Chicago Title”), Lawyers Title Insurance Corp. (“Lawyers Title”), and Ticor Title Insurance Co. (“Tieor Title”) (collectively, “the defendants”) brought the motion to dismiss. On the authority of Hechtman v. Nations Title Insurance of New York, 840 So.2d 993 (Fla.2003), and Winkler v. Lawyers Title Insurance Corp., 41 So.3d 414 (Fla. 3d DCA 2010), we affirm.

In February 2008, the plaintiff contracted to purchase a parcel of real property in West Palm Beach. The plaintiff made two deposits with Flagler Title Company (“Fla-gler Title”), the designated escrow agent, in the amounts of $11,938.50 and $107,446.50. At the time, Flagler Title was a licensed title insurance agent, authorized to issue title insurance on behalf of all of the defendants in Florida. However, as to the plaintiffs transaction, Fla-gler Title received the deposits in its capacity as escrow agent. First American Title Insurance Co., not Flagler Title, was the designated title insurance agent that issued the title commitment involved in this transaction.

In June 2008, the plaintiffs attorney sent a letter to Flagler Title demanding delivery of the deposits. Flagler Title did not respond because Roger Gamblin, Fla-gler Title’s president, stole the plaintiffs deposits (along with millions of dollars from other Flagler Title accounts) and disappeared. The plaintiff served claims for a return of the deposits upon Chicago Title and Lawyers Title, underwriters for Fla-gler Title, but both parties denied liability.

The plaintiff sued Flagler Title’s underwriters, Chicago Title, Lawyers Title, and Ticor Title. Count I of the complaint sought a return of the deposits pursuant to section 627.792, Florida Statutes (2008). Section 627.792 provides in relevant part: “A title insurer is liable for the defalcation, conversion, or misappropriation by a licensed title insurance agent or agency of funds held in trust by the agent or agency pursuant to s. 626.8473.” The defendants moved to dismiss Count I, arguing that the deposits were not “funds held in trust,” because Flagler Title acted solely as an escrow agent, not as a closing or title-issuing agent. Therefore, they argued, section 627.792 did not apply. The trial court granted the defendants’ motion and ordered the dismissal of Count I with prejudice. This appeal followed.

In Winkler, 41 So.3d at 417, this Court, citing the authority of the Florida Supreme Court, recognized that section 627.792 imputes liability to a title insurer only in the limited situation where the title insurer’s agent misappropriates trust funds, as defined by section 626.8473. See Hechtman, 840 So.2d at 996 (“Not all title insurance transactions involve funds held in trust pursuant to section 626.8473, and if the funds are not held in trust pursuant to section 626.8473, we cannot impute liability to the insurer.”). Section 626.8473(1) specifically defines trust funds as funds received by a title insurance agent “from others to be subsequently disbursed by the title insurance agent in connection with real estate closing transactions involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title.”

Without dispute, Flagler Title was a licensed title insurance agent, authorized to issue title insurance binders, commitments, policies, and guarantees on behalf of the defendants. However, it is similarly uncontested that in this case, Flagler Title received the plaintiffs deposits in its limited capacity as escrow agent, not as title-issuing or closing agent. In fact, paragraph 12 of the complaint concedes: “Pursuant to the Contract, [the plaintiff] was to make an initial deposit of $11,938.50 with Flagler Title as escrow agent, and an additional deposit within 10 days in the amount of $107,446.50.” (emphasis added). The complaint alleges that Flagler Title’s receipt of the funds was accomplished either pursuant to the Contract, or the Escrow Letter of February 20, 2008. Flagler Title is never alleged to have served as closing or title-issuing agent for the transaction. Furthermore, First American Title Insurance Co., not Flagler Title, issued the title commitment and was the designated title-issuing agent.

Nevertheless, the plaintiff argues that the funds received by Flagler Title, and later misappropriated by Flagler Title’s president, were trust funds as defined by section 626.8473(1), thereby exposing the defendants to liability pursuant to section 627.792. We disagree.

A similar scenario was presented in Winkler, where a title insurer obtained a final declaratory judgment finding that it was not liable, pursuant to section 627.792, for the alleged misappropriation of the purchasers’ escrow deposits held by Coastal Title Services, Inc. (“Coastal”). 41 So.3d at 415. Coastal was a licensed title insurance agent of the title insurer. Id. However, the trial court found that because Coastal was never designated as the title-issuing or closing agent, the funds it received were not funds held in trust as defined by section 626.8473, and therefore, section 627.792 did not impute liability to the title insurer. Id. at 417.

On appeal, this Court affirmed the judgment of the trial court because its findings were amply supported by the record. Id. at 418. Specifically, this Court noted that “[a]ll of the relevant documents designated Coastal as the ‘escrow agent,’ and established that the escrow deposits were received by Coastal in its limited capacity as escrow agent for the developer, pursuant to the escrow agreement.” Id. Thus, the rule of law embodied by Winkler is that where an otherwise-licensed title insurance agent receives escrow funds for a real estate transaction in its limited capacity as escrow agent, those deposits are not trust funds, as defined by section 626.8473. And in cases where such an escrow agent misappropriates those funds, the title insurer may not be held liable by operation of section 627.792.

In the instant case, accepting the facts alleged in the complaint as true, Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So.2d 654, 658 (Fla. 4th DCA 2008), the conclusion is inescapable that Flagler Title received the plaintiffs funds in its limited capacity as escrow agent. Accordingly, we hold that the Winkler rule is applicable, the funds received by Flagler Title were not section 626.8473 trust funds, and Fla-gler Title’s liability cannot be imputed to the defendants by operation of section 627.792. We therefore affirm the trial court’s order dismissing with prejudice Count I of the plaintiffs complaint.

Affirmed.


author: LAWSON, J.

text:
    GENERAL DYNAMICS CORPORATION, et al., Appellant, v. Wallace BROTTEM, et al., Appellee.
    No. 5D09-3719.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Mark D. Tinker, Charles W. Hall, and David C. Schwartz, of Banker Lopez Gassier, P.A., St. Petersburg, for Appellants.
    Paul M. Smith, Admitted Pro Hae Vice, of Jenner <& Block LLP, Washington, DC, and Chris C. Gair, of Jenner & Block LLP, Chicago, IL, for Appellants.
    Thomas A. Koval and Ricardo H. Piedra, Sarasota, for Florida Insurance Council, Amicus Curiae, and Tamela I. Perdue, Tallahassee, for Associated Industries of Florida, Amicus Curiae.
    Elizabeth K. Russo and Nicholas A. Shannin, of Russo Appellate Firm, P.A., Miami, Overchuch, DeMarco, Byron & Ov-erchuck, P.A., Winter Park, and Page, Ei-chenblatt, Bernbaum & Bennett, P.A., Orlando, for Appellees.
   LAWSON, J.

General Dynamics Corporation and General Dynamics Land Systems, Inc., (collectively “General Dynamics”), defendants below, timely appeal a non-final order denying their motion for final summary judgment asserting immunity from suit under Florida’s Workers’ Compensation Act, (the “Act”). The forty-one plaintiffs were all former General Dynamics employees (or their legal representatives), who sued under Florida’s Water Quality Assurance Act, (the “WQAA”), for personal injuries or wrongful deaths allegedly caused by occupational exposure to hazardous substances at General Dynamics’ telephone equipment manufacturing facility in Lake Mary, Florida. We hold that Defendants are entitled to workers’ compensation immunity and reverse.

Plaintiffs’ Claims

Plaintiffs allege that General Dynamics improperly stored, spilled, discharged, disposed of and dumped toxic chemicals in and around its Lake Mary facility, contaminating the facility (along with the land, water and groundwater at and around the facility) to levels hazardous to human health and safety. Plaintiffs claim damages for the physical illnesses (and, in some cases, death), caused by then* exposure to this toxic pollution while working at the facility.

Florida’s Water Quality Assurance Act

The WQAA, specifically section 376.313, provides a strict liability cause of action against owners of real property for damages caused by surface or ground water contaminants on the property. A person bringing a WQAA suit does not need to “plead or prove negligence in any form or manner ... [but] need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred.” § 376.313(3), Fla. Stat. (2008). This subsection then provides that “[t]he only defenses to such cause of action shall be those provided in s. 376.308.” Section 376.308 lists four basic defenses: “(a) An act of war; (b) An act of government ...; (c) An act of God ...; or (d) An act or omission of a third party, other than an employee or agent of the defendant....” § 376.308(2), Fla. Stat. (2008).

Florida’s Workers’ Compensation Act

Florida Workers’ Compensation Act sets forth a comprehensive scheme providing disability and medical benefits to workers injured during the course of their employment. See generally §§ 440.01-440.60, Fla. Stat. (2008); Bakerman v. Bombay Co., Inc., 961 So.2d 259 (Fla. 2007). Employees who fall within the Act’s scope are generally compensated irrespective of the employer’s fault in causing their injuries. See §§ 440.09, 440.10(2), Fla. Stat. (2008). In exchange, employers complying with the Act are given immunity from civil suit by the employee, except in cases where “[t]he employer deliberately intended to injure the employee” or “[t]he employer engaged in conduct that the employer knew ... was virtually certain to result in injury or death to the employee ....” § 440.11(l)(b), Fla. Stat. (2008). “The philosophy of workmen’s compensation is that when employer and employee accept the terms of the [A]ct their relations become contractual and other statutes authorizing recovery ... become ineffective.” Howze v. Lykes Bros., 64 So.2d 277, 277-78 (Fla.1953) (citations omitted). In this regard, the Act provides that workers’ compensation “shall be exclusive and in place of all other liability” for “anyone otherwise entitled to recover damages from [an] employer ... [for an employee’s] injury or death.” § 440.11(1), Fla. Stat. (2008).

It is undisputed that during all relevant timeframes, approximately 1969 through 1982, General Dynamics maintained workers’ compensation insurance coverage for its employees, including Plaintiffs. Further, Plaintiffs have not attempted to plead their cause of action as an intentional tort, so as to fall within the Act’s exception for intentional employer misconduct. And, Florida courts have consistently held that the Act applies to injuries caused by workplace exposure to hazardous substances. See, e.g., Czepial v. Krohne Roofing Co., 93 So.2d 84 (Fla.1957); Wilks v. Boston Whaler, Inc., 691 So.2d 629 (Fla. 5th DCA 1997); Eastern Airlines, Inc. v. Crittenden, 596 So.2d 112 (Fla. 1st DCA 1992); Wiley v. Southeast Erectors, Inc., 573 So.2d 946 (Fla. 1st DCA 1991); Brevard Co. Mental Health Ctr. v. Kelly, 420 So.2d 911 (Fla. 1st DCA 1982).

Apparent Conflict Between the Act and the WQAA

Sections 873.313(3) and 440.11(1), Florida Statutes, appear to conflict. Section 440.11(1) makes workers’ compensation the “exclusive” remedy for an employee’s injuries, “in place of all other liability” against his or her employer. Thus, section 440.11(1) would afford General Dynamics workers’ compensation immunity from Plaintiffs’ WQAA claims. However, section 376.313(3) limits defenses for a WQAA claim to “only” those listed in section 376.308. And, that section does not list workers’ compensation immunity as a recognized WQAA defense.

Analysis

Courts faced with conflicting statutes must attempt to “adopt an interpretation that harmonizes the related statutes while giving effect to each.” State v. Miller, 888 So.2d 76, 77 (Fla. 5th DCA 2004) (citations omitted). Toward that end, we have carefully considered the text of each statute and believe that there is a reasonable interpretation of the relevant WQAA text that does not conflict with the exclusive liability clause of the Workers’ Compensation Act. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 23 (Princeton University Press 1997) (“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means.”).

Our analysis focuses on what the WQAA means when it says that “the only defenses to such cause of action are those provided in s. 376.308.” In context, this language follows immediately after the strict liability language of the statute, which relieves a potential plaintiff of the burden to prove negligence “in any form or manner” by the defendant, and makes the defendant liable based solely upon proof that pollution occurred on its land. The “only defenses” language then creates exceptions to the rule of strict liability announced in the prior sentence for acts of God, acts of war, acts of the government and acts of others. Viewed in context, then, the “only defenses” language can reasonably be read as dealing with fault-focused defenses or, put another way, strict liability exceptions.

At least one federal court has reached a similar conclusion in construing language in the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 43 U.S.C. § 9601, et seq., which contains a comparable provision allowing as the “only defenses” acts of war, acts of God and acts of third parties. See 42 U.S.C. § 9607(b). In Town of Munster v. Sherwin-Williams Co., Inc., 27 F.3d 1268, 1271-72 (7th Cir. 1994), the Seventh Circuit held that the comparable CERCLA language bars a defendant from raising equitable defenses to liability. Although beyond the necessary scope of the holding in that case, the Sher-win-Williams court further commented that it “doubt[ed] seriously” that the word “ ‘defenses’ as CERCLA employs that term” meant statutory or legal defenses “in a broad sense.” Id. at 1272. Rather, the court explained that the term “defenses” appears to be “addressing the causation element of the underlying tort” or defenses “negating the plaintiffs prima fa-cie showing of liability.” The court then concluded that the “only defenses” language could not reasonably be read as barring defenses which “interpose! ] a legal or statutory shield against having to litigate (or relitigate) the issue or case[,]” such as “res judicata, collateral estoppel,” and other similar defenses. Id.

Although this language from the Sher-win-Williams case is clearly dicta, even Plaintiffs concede that it would not be reasonable to read section 376.313(3) as barring all legal and statutory defenses not listed in section 376.308, Florida Statutes, as a bar to WQAA claims. For example, Plaintiffs concede that if they were to settle their WQAA claims with General Dynamics, and exchange releases, the releases could be raised as a defense to any further WQAA claims by Plaintiffs — even though release and settlement are not listed in section 378.308 as available defenses. Similarly, Plaintiffs concede that the “only defenses” language cannot reasonably be read as barring defenses such as improper venue, lack of personal jurisdiction, res judicata, and the statute of limitations. Of course, workers’ compensation immunity is similar to these other basic statutory or legal defenses in that workers’ compensation immunity acts as a shield against having to litigate the case in the first instance — the same distinction drawn by the Sherwin-Williams court.

Construing the “only defenses” language more narrowly, as addressing exceptions to the general rule of strict liability, and not as broadly referring to any and all statutory or legal defenses, resolves the apparent conflict between the WQAA and the Act. This is a more reasonable reading of the “only defenses” language, in context, and we therefore adopt it.

Our conclusion that the WQAA should not be read as barring the workers’ compensation immunity defense is bolstered by decisions from other Florida courts, which have consistently subjected statutory causes of action to the workers’ compensation exclusivity provision. For example, in Pacheco v. Florida Power & Light Co., 784 So.2d 1159 (Fla. 3d DCA 2001), the Third District considered an argument that section 553.84, Florida Statutes, expressly allowed anyone to sue for injuries resulting from a building code violation, in addition to other remedies available under Florida law. The language of the statute could have been read that broadly. It provided that “Notwithstanding any other remedies available” a person injured as a result of a building code violation “has a cause of action in any court of competent jurisdiction against the person or party who committed the violation.” § 553.84, Fla. Stat. (2001). Like the WQAA, the building code then provided a defense to liability, and nowhere acknowledged workers’ compensation immunity as a defense. In rejecting the argument that section 553.84 created a cause of action that was not subject to the workers’ compensation immunity provision, the Third District observed that the Workers’ Compensation Act provides “broad employer immunity from liability actions” and that despite plaintiffs contention that the building code trumped the Act, “[t]he law simply does not permit recognition of the immunity exception for which [plaintiff] contends.” Id. at 1162-63.

Similarly, in Crosby v. Regional Utility Bd., City of Gainesville, 400 So.2d 1024 (Fla. 1st DCA 1981), the First District held that a claim under the Hazardous Occupations Act, chapter 769, Florida Statutes, was subject to a workers’ compensation immunity defense even though that statute made no reference to workers’ compensation, and was expressly enacted to provide a cause of action for injured workers employed in specifically identified industries. In reaching its conclusion, the First District noted the importance of the Act, and that “ ‘immunity is the heart and soul of this legislation....’” Id. at 1026 (quoting Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427, 429 (Fla.1978)); see also Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972) (noting that the “exclusiveness of remedy embodied in ... [the Act] appears to be a rational mechanism for making the compensation system work in accord with the purposes of the Act” and that it is “fully within the power of the Legislature to provide for a Workmen’s Compensation system which supersedes other legislation affecting compensation or relief after death or injury”); Woodson v. Ivey, 917 So.2d 993, 996 (Fla. 5th DCA 2005) (“Florida courts interpret the Act broadly to preserve immunity ....”) (citations omitted).

Finally, we address Plaintiffs’ argument that the First District in Cunningham v. Anchor Hocking Corporation, 558 So.2d 93 (Fla. 1st DCA 1990), construed the WQAA “only defenses” language broadly, as barring a workers’ compensation immunity defense. Cunningham also involved a suit by employees for injuries allegedly caused by toxic substances in the workplace. Unlike this case, however, the Cunningham plaintiffs alleged that the defendants in that case had either intentionally exposed them to toxic substances “with a deliberate intent to injure them” or, alternatively, with knowledge that the intentional exposure “was substantially certain to result in injury to or the death of the plaintiffs.” Id. at 95. The primary holding in Cunningham is that the plaintiffs in that case had “alleged a cause of action in intentional tort outside the scope of the Workers’ Compensation Act.” Nevertheless, a close reading of the Cunningham opinion confirms Plaintiffs’ contention that the Cunningham court appears to have authorized a separate WQAA claim based upon that court’s conclusion, without analysis, that the “only defenses to such cause of action ...” [are] those specified in s. 376.308, id. at 99, which “does not list immunity under the Workers’ Compensation Act.... ” Id. at 99, n. 2.

Our analysis leads us to a different conclusion. As such, we certify conflict with Cunningham.

REVERSED; CONFLICT CERTIFIED.

EVANDER, J., and PERRY, B., Associate Judge, concur.

      . This is an appealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v). The case involves an issue of statutory construction, with a de novo standard of review. E.g., Am. Honda Motor Co. v. Cerasani, 955 So.2d 543 (Fla.2007).

      . General Dynamics refers to the 2008 version of the WQAA, and the 2003 version of the Workers’ Compensation Act. Plaintiffs provide no year citations for either the WQAA or the Workers’ Compensation Act and otherwise do not dispute the versions asserted by General Dynamics. Accordingly, we will refer to the 2008 version for both the WQAA and the Workers’ Compensation Act as the latter has not been amended between 2003 and 2008.

      . This reading is consistent with "the canon of statutory construction ejiisdem generis, which states that when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed.” State v. Hearns, 961 So.2d 211, 219 (Fla.2007) (citing Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1088-89 (Fla.2005)).

      . The WQAA is modeled after CERCLA. See State Dep't of Env. Protection v. Allied Scrap Processors, Inc., 724 So.2d 151, 152 (Fla. 1st DCA 1998). And, generally, "when Florida legislation is modeled upon federal law, the state courts should give the Florida legislation the same construction as the federal courts give the federal legislation.” Id. (citations omitted).

      . As noted previously, the Act contains an express exception for intentional torts. However, in this case Plaintiffs did not include an intentional tort cause of action in their complaint. Whether Plaintiffs should be permitted to amend the complaint to plead an intentional tort, at this stage of the litigation, is not an issue before us.


text:
    Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellant, v. Robert Edwin REICHMAN, a/k/a Robert Alexander Wilson, a/k/a Robert Edward Stillman, a/k/a Edward Stillman, Appellee.
    No. 4D10-3613.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.

      Sheron Wells, Tallahassee, for appellant.
    Robert Edwin Reichman, Florida City, pro se.
   PER CURIAM.

The Department of Corrections (DOC) sought emergency review of an order from the Nineteenth Judicial Circuit (the habeas court) granting a prisoner’s petition for writ of habeas corpus and ordering his release. The case was initially treated as a petition for writ of certiorari. However, because the state can appeal an order discharging a prisoner on habeas corpus, we redesignate this case as an appeal and treat the petition and response as the briefs and the appendix as the record on appeal. § 924.07(l)(f), Fla. Stat. (2010); Fla. R.App. P. 9.040(c).

The habeas court’s conclusion that the prisoner, Robert Reichman, was entitled to immediate release is erroneous as a matter of law. Further, the issue considered by the habeas court was already decided adversely to Reichman by the sentencing court in a rule 3.850 motion, and the habe-as corpus petition was procedurally barred. Accordingly, we reverse.

Facts

In 1984, a federal court sentenced Reichman to twenty years in prison for bank robbery. In 1989, he entered a negotiated plea in Escambia County circuit court case number 88-3633 to escape, burglary with an assault, and robbery. At the time of the plea, and unbeknownst to the sentencing court, Reichman also had a pending parole violation in a different federal case. After entering his state plea, he was released to federal authorities to serve the twenty-year bank robbery sentence. Later in 1989, pursuant to his plea agreement, he was sentenced in absentia in Escambia County to twenty-two years in prison. The sentencing order provided that the sentence was to run consecutive to “federal sentence now serving.”

In 1991, his federal parole was revoked, and he was required to serve the balance of the original sentence consecutive to the federal bank robbery sentence. He completed the federal bank robbery sentence on February 12, 2000 and began serving his federal parole revocation sentence. His federal parole sentence ended January 23, 2004, and on April 9, 2004, he was returned to Florida to serve his twenty-two-year state sentence.

Later in 2004, he filed a rule 3.850 motion in the sentencing court in Escambia County which treated his motion as timely filed. One of the claims raised in his motion was that his twenty-two-year state sentence was supposed to run consecutive only to his initial federal bank robbery sentence. He argued that he should have begun serving his state sentence when the first federal sentence ended on February 12, 2000 and he should receive credit towards his state sentence from that date.

In denying this claim, the sentencing court ruled:

The Court does not construe its instruction that the sentence be consecutive to the “federal sentence now serving” to mean that the state sentence began immediately upon the conclusion of Defendant’s initial federal sentence. Rather, it was the intent of the Court only that Defendant’s state prison sentence should not be served concurrently with his federal prison sentence and should be served at such time that Defendant was released from federal custody.

Reichman appealed the sentencing court’s order, and the First District Court of Appeal affirmed without a written opinion. Reichman v. State, 905 So.2d 128 (Fla. 1st DCA 2005).

In 2008, while incarcerated in Okeechobee County, Reichman filed a petition for writ of habeas corpus in the Nineteenth Judicial Circuit which has jurisdiction over the prison where he was housed. Again, he argued that the intent of his plea agreement was that the twenty-two-year state sentence would commence when he completed the federal bank robbery sentence and not upon completion of his entire federal term. He argued that the DOC was not applying his sentence as intended by the sentencing court. According to Reich-man, he was entitled to immediate release because his Escambia County sentence should have expired. In his petition, Reichman did not advise the habeas court that he had litigated substantially the same issue in Escambia County and the First District Court of Appeal and that his claim was rejected.

After ordering a response from the DOC, on August 11, 2010, the habeas court issued an order agreeing with Reichman that the state sentences commenced on February 12, 2000 because the only federal sentence Reichman was “now serving” when he entered the plea in the Escambia case in 1989 was the federal bank robbery sentence. The federal parole violation was not mentioned during the Escambia County proceedings. Nothing in the record indicated the 1989 state sentences would run consecutively to the federal parole revocation sentence. The habeas court recognized that Reichman’s argument was previously rejected by the sentencing court and affirmed on appeal, but the order said nothing more about the sentencing court’s decision.

The habeas court held a hearing solely to determine how much gain time and credit Reichman had and whether he would be entitled to release. Following the hearing, the court ordered Reichman’s immediate release. This appeal followed, and the habeas court’s order was stayed.

Execution of the Sentences

The habeas court’s ruling is incorrect as a matter of law. Under both Florida and federal statutory law, sentences imposed at separate times in separate cases are presumed to run consecutively unless the court directs otherwise. 18 U.S.C.A. § 3584(a); § 921.16(1), Fla. Stat. (1989). Reichman is correct that the sentencing court could not order the Florida sentences to run consecutively to a parole revocation sentence that had not yet been imposed, but that does not resolve the issue in this case. Reichman agrees that the parole revocation sentence imposed in 1991 was not ordered to run concurrently with the Florida sentences. The plea transcript in this case reflects that the state sentences were to be consecutive to his “federal time.” There is no dispute that the federal and state sentences are consecutive. Rather Reich-man’s claim is that he was entitled to serve his state sentences immediately following the federal bank robbery sentence.

Reichman has not cited any authority that would have required federal officials to transfer him to state prison before he completed his federal sentences. A defendant who has received state and federal sentences has no due process or other constitutional right to serve the sentences in any particular order. Merchant v. State, 374 N.W.2d 245, 247 (Iowa 1985). “The order in which the sentences are served is a matter of comity between the sovereigns.” Id. (citations omitted). “The law of comity is such that the two sovereigns may decide between themselves which shall have custody of a convicted prisoner; however, the sovereign having prior jurisdiction need not waive its right to custody.” State v. Start, 229 Neb. 575, 427 N.W.2d 800, 803 (1988) (quoting Joslin v. Moseley, 420 F.2d 1204 (10th Cir.1970)).

In this case, the plea agreement was structured so that the federal authorities would commence his federal bank robbery sentence first, giving federal officials primary jurisdiction. Under the doctrine of primary jurisdiction, federal officials could maintain custody of Reichman until he completed the federal parole revocation sentence. See Merchant, 374 N.W.2d at 246. Reichman had no right to serve his consecutive sentences in any particular order.

Habeas Corpus and Collateral Challenges

Before 1963, habeas corpus was the primary vehicle for raising collateral challenges to a conviction or sentence. Following the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Florida Supreme Court anticipated a flood of postconviction challenges and in 1963 enacted a rule of criminal procedure to allow such challenges to be raised by motion in the sentencing court. In re Criminal Procedure, Rule, No. 1, 151 So.2d 634 (Fla.1963); Roy v. Wainwright, 151 So.2d 825, 828 (Fla.1963) (explaining that rule 1 “was promulgated to establish an effective procedure in the courts best equipped to adjudicate the rights of those originally tried in those courts”) (emphasis supplied). The supreme court intended rule 1 (now rule 3.850) to largely supplant the need for habeas corpus and provide a simplified, orderly, and efficient procedure for raising postconviction challenges. Baker v. State, 878 So.2d 1236, 1240 (Fla.2004).

The Florida Supreme Court has repeatedly recognized that like other constitutional rights, the right to habeas relief is subject to reasonable restrictions. Id. at 1241 (quoting Haag v. State, 591 So.2d 614, 616 (Fla.1992)). In enacting a rule of procedure to govern postconviction challenges, the Florida Supreme Court “struck the delicate balance necessary to protect both the right to habeas corpus relief in Florida and the institutional needs of the state courts system.” Baker, 878 So.2d at 1241. To preserve this balance, since its inception the rule has provided that habeas corpus is not available if a defendant has or had an adequate remedy by postconviction motion. Id. at 1241; see Fla. R.Crim. P. 3.850(h).

Under rule 3.850, collateral challenges to a conviction or sentence must be brought in the court that imposed the conviction and sentence, which is the court best equipped to adjudicate those rights. Habeas corpus cannot be used to obtain a second appeal or to relitigate issues that could have been or were raised in a rule 3.850 motion filed in the sentencing court. Baker, 878 So.2d at 1241. The Florida Supreme Court has made clear that “with limited exceptions, habeas corpus relief is not available to obtain collateral postcon-viction relief because most claims can be raised by motion pursuant to Florida Rule of Criminal Procedure 3.850.” Id. at 1242 (footnote omitted).

Habeas corpus remains available if the petitioner is not authorized to apply for relief under rule 3.850, such as when a person challenges pretrial detention or other detention for which rule 3.850 relief is unavailable.

Section 79.09, Florida Statutes, provides that when habeas corpus is sought in a circuit court the papers “shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.” § 79.09, Fla. Stat. (2010). This provision, however, cannot be used to circumvent the limitations on postconviction relief imposed by rule 3.850, and it does not permit a petitioner to seek postconviction relief through habeas corpus in whatever jurisdiction the petitioner happens to currently be.

If a prisoner attempts to use ha-beas corpus to raise a successive or untimely collateral attack on a conviction or sentence entered by another court, the petition should be dismissed under rule 3.850(f) or (b) or transferred to the sentencing court for consideration under rule 3.850 or 3.800(a). Batista v. State, 993 So.2d 93, 95 (Fla. 5th DCA 2008); Richardson v. State, 918 So.2d 999, 1001 (Fla. 5th DCA 2006); see also Davis v. State, 26 So.3d 647 (Fla. 2d DCA 2010) (recognizing that a challenge to the legality of a sentence could not be raised in a habeas corpus petition and had to be raised in a rule 3.800(a) motion filed in the sentencing court and directing the lower court to transfer the matter to the proper court). “Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence....” Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005).

While it is true that a petition for writ of habeas corpus alleging an entitlement to immediate release must be filed in the court with jurisdiction over the facility where the prisoner is housed, Bush v. State, 945 So.2d 1207, 1213 n. 11 (Fla.2006), the “entitlement to immediate release” cannot be a veiled collateral attack on the conviction and sentence which could have been, or was, raised in a rule 3.850 motion in the sentencing court. See also Brown v. State, 894 So.2d 137, 159 (Fla.2004) (explaining that habeas corpus “should not serve as a second or substitute appeal and may not be used as a variant to an issue already raised”).

As the Florida Supreme Court explained in Baker:

We must ... take this opportunity to remind those convicted of noncapital crimes in this state that, with limited exceptions, rule 3.850 is the mechanism through which they must file collateral postconviction challenges to their convictions and sentences. By promulgating rule 1 over forty years ago, we intended to direct such challenges to the sentencing courts of this state.... The remedy of habeas corpus is not available in Florida to obtain the kind of collateral post-conviction relief available by motion in the sentencing court pursuant to rule 3.850.

878 So.2d at 1245 (footnote omitted).

For obvious reasons, the court that imposed the sentence is best equipped to review postconviction challenges. The sentencing court has the complete official record including any corrected or amended orders and other postconviction motions the defendant may have filed. The court can take judicial notice of its own files, and even without ordering a response, the judge can review the court file and attach portions of the record that refute a defendant’s claims. If fact finding is necessary, the attorneys and witnesses involved in the case are more likely to be available for an evidentiary hearing in the jurisdiction where the crime occurred and the defendant was prosecuted.

Requiring postconviction challenges to be brought in the sentencing court and precluding relitigation of claims through habeas corpus also safeguards important legal principles that may be overlooked if a prisoner can file a new habeas petition each time the prisoner is transferred to a new territorial jurisdiction. Unless there is a manifest injustice, res judicata and collateral estoppel bar relitigation of issues that were already decided. But, the habe-as court may not be aware that a matter has already been decided by another court. Unlike the filing of a rule 3.850 motion, a prisoner filing a habeas petition does not have to swear to the contents and is not required to provide information about the procedural history of the case including whether previous postconviction motions were filed. This can result in conflicting rulings from sister courts in the same case.

Generally, “the circuit court is not empowered, through habeas corpus, to review the propriety, regularity or sufficiency of an order of a court over which no supervisory or appellate jurisdiction is had.” State ex rel. Renaldi v. Sandstrom, 276 So.2d 109, 110 (Fla. 3d DCA 1973); see also Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996); State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988).

Even before the enactment of rule 1, historically a writ of habeas corpus was available only in limited circumstances and could not be used to second-guess the decision of another court of equal jurisdiction or to raise ordinary legal errors. Ex parte Bowen, 25 Fla. 214, 6 So. 65 (1889) (explaining that a writ of habeas corpus cannot be used to raise mere irregularities or procedural errors, which can be raised in a direct appeal, and concluding the writ properly issues only where the error renders the judgment or order causing detention void). The scope of habeas corpus was limited to situations where the petitioner can show that the restraint complained of is “without authority of law.” State v. Hardie, 108 Fla. 133, 146 So. 97 (1933).

“[JJurisdiction to issue a writ of habeas corpus confers no jurisdiction to thereafter order a prisoner released or discharged to the prejudice of the lawful exercise of jurisdiction by a co-ordinate court.” State v. Browne, 105 Fla. 631, 142 So. 247, 248-49 (1932). A circuit court judge in one county can discharge a person held pursuant to an order from another county if the court issuing the order was absolutely without jurisdiction or the order is void. Id at 250.

When considering a habeas corpus petition from a prisoner held pursuant to an order from another circuit court, the scope of habeas review is extremely limited. State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973).

[T]he circuit court is Not empowered generally to review by habeas corpus the orders of courts over which the circuit court does not have appellate jurisdiction, particularly as to the legal sufficiency of the order sought to be reviewed, although the circuit court may entertain such a proceeding and discharge a petitioner held under an illegal or void order.

Id. at 412 (citations omitted); Murray v. Regier, 872 So.2d 217 (Fla.2002); see also Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996).

As demonstrated by Stang v. State, 24 So.3d 566 (Fla. 2d DCA 2009), rev. dismissed, 41 So.3d 206 (Fla.2010), problems can occur if a court with habeas jurisdiction reconsiders a sentencing issue previously resolved by the trial court or grants a petition without an adequate response or adequate record to review the petitioner’s claim. Stang, described by the trial judge as a “consummate conman,” submitted incomplete documentation with his petition for writ of habeas corpus. Based on the limited record provided, the Second District granted his petition, reducing a lawful twenty-two-year sentence to approximately two months. The Florida Supreme Court declined to accept jurisdiction. In dissent Justice Perry explained why the Second District’s decision was incorrect based on the trial court’s pronouncement of the sentence and how the habeas proceeding had resulted in a miscarriage of justice.

As previously noted, part of the problem with a defendant challenging a sentence by a habeas petition in the jurisdiction where he is incarcerated is that the habeas courts do not have ready access to the same records that the sentencing court has. The sentencing court can look at the court file in ruling on a postconviction motion and the appellate court in that jurisdiction similarly has access to its own records, which may include records from a direct appeal or other postconviction motions addressing the sentence.

The party responding to the habeas petition (in this case the DOC) may not have the same access to records as the state attorney and assistant attorney general in the sentencing court’s jurisdiction. It is not as easy for the responding party in another jurisdiction to inspect the court file and obtain records to refute the claim. Because habeas corpus is an original proceeding, the parties are creating the record before the habeas court. Stang, who was sentenced in Palm Beach County, attached only records that supported his claim, and the Assistant Attorney General in Tampa did not produce sufficient records to refute the claim and show that the written order Stang relied on was a scrivener’s error. Likewise, in this ease, the habeas court and this court may not have a complete picture of Reichman’s sentence and his prior challenges.

Reichman did not challenge the jurisdiction of the sentencing court or allege that his sentence is void or illegal. His allegation that his sentence was not executed as intended by the trial court is properly raised in a rule 3.850 motion. See, e.g., Sadler v. State, 980 So.2d 567 (Fla. 5th DCA 2008); Cruz v. State, 976 So.2d 695 (Fla. 4th DCA 2008). The sentencing court has already determined that Reich-man’s state sentences did not begin immediately upon completion of the federal bank robbery sentence. Contrary to Reichman’s arguments, the order denying his rule 3.850 motion reflects that the sentencing court did review the plea agreement. The court noted in the order that the plea agreement was attached and explained that the records were of poor quality because they were copied from microfiche due to the age of this case. The sentencing court also cited and attached the plea and sentencing transcripts. Reichman appealed, and the First District affirmed the denial of his rule 3.850 motion. Reichman had an adequate remedy under rule 3.850 and habeas corpus is not available to relitigate this issue. Fla. R.Crim. P. 3.850(h).

Res Judicata

Even before the enactment of rule 1, successive habeas corpus petitions were prohibited. “The rule in this State is that denial of application for habeas corpus precludes a subsequent application for ha-beas corpus in the same cause on the same facts and issues.” Moat v. Mayo, 82 So.2d 591 (Fla.1955); § 79.10, Fla. Stat. (1951); see also Scaldeferri, 285 So.2d at 411; D'Alessandro v. Tippins, 102 Fla. 10, 137 So. 231 (1931). Once fully litigated, the matter is res judicata, and section 79.10, Florida Statutes, enjoins a prisoner from relitigating the issue in a different forum. State ex rel. Miller v. Kelly, 88 So.2d 118 (Fla.1956); see also Graziano v. State, 305 So.2d 867 (Fla. 3d DCA 1975).

Reichman’s claim regarding the order of his sentences was already decided against him and affirmed on appeal. Even if he somehow believes that the plea agreement provided he would serve the state sentences immediately after the federal bank robbery sentence, there is no prejudice or manifest injustice in refusing to reconsider this issue because he is presently serving the same amount of time as if he had served the sentences in that order. See State v. McBride, 848 So.2d 287, 291-92 (Fla.2003) (discussing the manifest injustice exception to collateral estoppel). If Reichman had served the state sentences second and the remainder of the parole sentence third, he would still be incarcerated in federal prison. All of the sentences were to run consecutively and even if Florida courts had any influence over the order of the sentences, at this point, there is no way to change the order in which they were served. See McCall v. State, 475 So.2d 1364 (Fla. 2d DCA 1985) (concluding defendant’s challenge to his indefinite Florida sentence was moot because he completed the sentences from the other jurisdiction and was now serving his Florida sentence). By raising this issue after he completed his federal sentences, Reichman is simply trying to make his state sentences run concurrently with the federal parole sentence.

Conclusions

The Florida Supreme Court has cautioned against improvidently granting habeas corpus in unclear cases: “The power to discharge from custody by writ of habeas corpus is one that should be exercised with extreme caution and only in a clear case. It should not be so exercised as to needlessly embarrass the administration of justice. Reffkin v. Mayo, 115 Fla. 214, 155 So. 674.” Taylor v. Chapman, 127 Fla. 401, 173 So. 143, 145-46 (1937). “The purpose of a habeas petition is not to challenge the judicial action that places a petitioner in jail; rather, it challenges the detention itself.” Jones v. Fla. Parole Comm’n, 48 So.3d 704 (Fla.2010).

Since the enactment of rule 1 and later rule 3.850, nearly all collateral criminal challenges must be brought in the sentencing court, the court best equipped to review such challenges. Circumstances that may warrant .raising a postconviction claim in a petition for habeas corpus should be exceedingly rare. An allegation of “entitlement to immediate release” does not permit a prisoner to circumvent the limitations of the postconviction rules or to relit-igate issues in the jurisdiction where the prisoner happens to be housed.

By operation of law, the sentences at issue in this case did not run concurrently and federal authorities had no obligation to release Reichman before he completed his federal sentences. He is not entitled to immediate release. In addition, his claim is procedurally barred because he had an adequate remedy under rule 3.850 and this matter was already decided against him in the sentencing court and affirmed on appeal.

The circuit court’s order granting the petition for writ of habeas corpus and discharging Reichman is reversed. Reich-man shall remain in the DOC’s custody to complete his Escambia County sentences.

Reversed.

POLEN, HAZOURI and MAY, JJ., concur.

      . A state court cannot compel a federal court to make its sentence concurrent with a state sentence. Perkins v. State, 696 So.2d 1343 (Fla. 2d DCA 1997). Reichman knew that he was charged with a federal parole violation when he entered the state plea. He did not bring the pending parole violation to the sentencing court's attention or negotiate to have his state sentences run concurrent with any sentence imposed in the parole case. If he had negotiated for a concurrent sentence, state sentencing could have been deferred until he was sentenced for the parole violation. He cannot, through his silence and inaction, now cause these sentences to run concurrently. See Lindsey v. Mayo, 153 Fla. 465, 14 So.2d 809, 810 (1943).

      . Justice Lewis concurred with the majority decision to decline jurisdiction and, in responding to some of Justice Perry's arguments, concluded the Second District followed clear appellate rules and "acted within its permissible scope of review.’’ However, it is worth noting that the Second District was not acting in its review capacity because it had decided to treat Stang’s certiorari petition as an original petition for habeas corpus in the district court. Because this was an original petition, the Second District was not limited to the record before the Tenth Circuit Court and could have directed the parties to file any portions of the record necessary, including die sentencing transcript, to decide whether Stang was actually entitled to release. Fla. R.App. P. 9.220.


author: GERBER, J. DAMOORGIAN, J.,

text:
    LAND & SEA PETROLEUM, INC., Appellant, v. BUSINESS SPECIALISTS, INC. and Continental Business, Inc., Appellees.
    No. 4D09-995.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.

      Shawn R. Horwick and Gregory J. Rit-ter of Ritter, Chusid, Bivona & Cohen, LLP, Coral Springs, for appellant.
    Stanley Dale Klett, Jr. and Jill G. Weiss of Rutherford Mulhall, P.A., Palm Beach Gardens, for appellees.
   GERBER, J.

Land & Sea Petroleum, Inc. (the “seller”) appeals the denial of its motion to recover its attorney’s fees and costs from brokers Business Specialists, Inc. (“Specialists”) and Continental Business, Inc. (“Continental”). We find that the seller is entitled to recover its attorney’s fees and costs from the brokers on various grounds. Thus, we reverse.

The seller and Specialists entered into a written contract providing that Specialists would broker the sale of the seller’s business and land in exchange for a commission. In the contract, the seller acknowledged that Specialists could co-broker the listing. Specialists then entered into a separate co-brokerage agreement with Continental.

The brokers later produced a buyer who entered into a contract with the seller. The seller, however, did not close on the contract, claiming that essential terms were not agreed upon. The brokers then filed a complaint against the seller for breach of the brokerage commission contract. The brokers argued that they fully performed the brokerage commission contract by producing a ready, willing and able buyer. The brokers sought the unpaid commission plus attorney’s fees and costs pursuant to the following provision in the brokerage commission contract:

If a suit is filed to enforce Broker’s rights hereunder and the Broker is the prevailing party, the Seller will pay the Broker its full commission, legal fees & costs incurred in any litigation and one (1) percent monthly interest pre and post judgment.

The seller responded that the brokerage commission contract was unenforceable because its contract with the buyer was unenforceable. Then, after serving discovery on the buyer, the seller served proposals for settlement on the brokers pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442 (2004). The seller’s proposal to Specialists stated, in pertinent part:

1. The party making this [Proposal for Settlement] is Defendant, LAND & SEA PETROLEUM, INC. The party to whom this [Proposal for Settlement] is made is Plaintiff, BUSINESS SPECIALISTS, INC.
2. This Proposal for Settlement is made for the purpose of resolving all claims as well as any and all claims that could have been or should have been brought by Plaintiff, BUSINESS SPECIALISTS, INC., against Defendant, LAND & SEA PETROLEUM, INC.
3. This Proposal for Settlement is inclusive of all damages and attorneys’ fees, whether recoverable or not in this action, as well as any pre-judgment or post-judgment interest or costs.
4. The total amount of this Proposal for Settlement is FIVE HUNDRED DOLLARS ($500.00), inclusive of any punitive, compensatory or other damages and attorney’s fees, whether recoverable or not in this action, as well as any pre-judgment interest or costs.

The proposal to Continental was identical except that the seller substituted Continental’s name for Specialists’. Neither Specialists nor Continental accepted the respective proposals.

The seller later moved for summary judgment against the brokers. The circuit court granted the motion. We affirmed. Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So.3d 693 (Fla. 4th DCA 2010).

While the brokers’ appeal of the summary judgment was pending, the seller filed a motion to recover its attorney’s fees and costs pursuant to: (1) section 768.79 and rule 1.442, both allowing for recovery of attorney’s fees and costs pursuant to proposals for settlement; (2) section 57.105(7), Florida Statutes (2004), allowing for reciprocal recovery of attorney’s fees pursuant to a contractual prevailing party provision; and (3) section 57.041(1), Florida Statutes (2004), allowing a prevailing party to recover its costs.

A magistrate heard argument on the motion. Regarding the seller’s reliance on the proposals for settlement, the brokers argued that the proposals were invalid for two reasons: (1) the proposals were ambiguous because they did not specify which side would pay the $500 and did not specify the claims which the proposals would settle; and (2) the seller made the proposals in bad faith because it requested discovery only from the buyer before making nominal offers of only $500.

Regarding the seller’s reliance on section 57.105(7), Specialists acknowledged that the statute allowed for the reciprocal recovery of attorney’s fees pursuant to a contractual prevailing party provision. However, Continental argued that it was not bound by the prevailing party provision because it was not an intended third-party beneficiary of the contract. Regarding the seller’s reliance on section 57.041(1), neither of the brokers opposed that claim.

The magistrate issued a report recommending that the circuit court deny the seller’s motion for attorney’s fees and costs in its entirety. The only finding which the magistrate included in the report was that Continental was not obligated as a third-party beneficiary to pay the seller’s attorney’s fees and costs. The circuit court thereafter denied the seller’s motion in its entirety.

This appeal followed. The seller argues: (1) its proposals for settlement were unambiguous because there is no question that it was offering $500 to each of the brokers and there was no claim to resolve other than the brokers’ breach of contract claim; (2) its proposals were in good faith as shown by the fact that it obtained a summary judgment; (3) it should recover its attorney’s fees pursuant to section 57.105(7) against Specialists because Specialists did not oppose that claim and against Continental because Continental was an intended third-party beneficiary of the brokerage commission contract; and (4) it should recover its costs against the brokers pursuant to section 57.041(1) because the brokers did not oppose that claim.

We agree -with each of the seller’s arguments except for the argument that it should recover its attorney’s fees from Continental as an intended third-party beneficiary. We address each argument in turn.

Ambiguity

The standard of review in determining whether a proposal for settlement is ambiguous is de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891 (Fla. 4th DCA 2010).

We agree with the seller that the proposals were not ambiguous. Our supreme court has held that “given the nature of language, it may be impossible to eliminate all ambiguity” in a proposal for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). “The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. “Therefore, parties should not ‘nit-pick’ the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the proposal for settlement.” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (quoting Nichols, 932 So.2d at 1079).

Applying those principles here, we find that the absence of language stating which side would pay the $500 did not make the proposals for settlement ambiguous. The seller complied with rule 1.442(c)(2)(A) and section 768.79(2)(b) by naming itself as “the party ... making the proposal” and naming the brokers as “the parties to whom the proposal is being made.” Fla. R. Civ. P. 1.442(c)(2)(A) (2004); see also § 768.79(2)(b), Fla. Stat. (2004) (an offer of judgment must “[n]ame the party making it and the party to whom it is being made”). The context of the case — that the brokers were suing for a commission and that the seller raised no counterclaim — makes it apparent that the seller was offering to pay each of the brokers $500 in exchange for resolving the brokers’ respective claims. The brokers’ reliance on the fact that the seller did not expressly state that it would be the party paying the $500 seems to be the type of “nit-picking” which the second district cautioned against in Carey-All.

Regarding the specificity of the claims which the proposals would settle, our supreme court has held that “settlement proposals must clarify which of an offeree’s outstanding claims against the of-feror will be extinguished.” Nichols, 932 So.2d at 1080. Here, the proposals for settlement clarified that they were “made for the purpose of resolving all claims as well as any and all claims that could have been or should have been brought by [the brokers] against [the seller].” That language complied with rule 1.442(c)(2)(B) by “identifying] the claim or claims the proposal is attempting to resolve.” More importantly, because the only relationship which existed between the brokers and the seller arose from the brokerage commission contract, there were no other possible claims which could have existed between the parties either within or outside of this action. See Ambeca, Inc. v. Marina Cove Vill. Townhome Ass’n, Inc. 880 So.2d 811, 813 (Fla. 1st DCA 2004) (“[Although the language may require releases for claims not raised or set forth in the pleadings, it does so only to the extent those claims would arise from the facts giving rise to the underlying litigation.”).

The brokers, however, argue that paragraph 2 of the proposals did not clarify whether the proposals applied to claims “in this action” as opposed to claims which may have accrued in the future. We are unmoved by that argument. The brokers plainly were aware that the only relationship which existed between the brokers and the seller arose from the brokerage commission contract. Thus, we cannot foresee how the absence of the phrase “in this action” in paragraph 2 of the proposals reasonably would have affected the brokers’ decision on whether to accept the proposals, especially when the phrase “in this action” appeared in both paragraphs 3 and 4 of the proposals. The fact that no other possible claims could have existed between the parties either within or outside of this action distinguishes this case from other cases which have found proposals for settlement to be deficient where the proposals may have extinguished other pending unrelated claims. See, e.g., Nichols, 932 So.2d at 1079 (“At the time of the offer, [the plaintiff] not only had a pending PIP claim against [the defendant], but also a UM claim arising from the same accident and of greater value.”); Palm Beach Polo Holdings, Inc. v. Vill. of Wellington, 904 So.2d 652, 653 (Fla. 4th DCA 2005) (“[T]he offer was legally deficient because plaintiffs acceptance could have extinguished other pending unrelated claims.”).

Good Faith

The standard of review upon a finding that a proposal for settlement was not made in good faith is abuse of discretion. Sharaby v. KLV Gems Co., 45 So.3d 560, 563 (Fla. 4th DCA 2010); accord § 768.79(7)(a), Fla. Stat. (2004) (“[T]he court may, in its discretion, determine that [a proposal] was not made in good faith.”) (emphasis added); Fla. R. Civ. P. 1.442(h)(1) (2004) (same). “‘The offeree bears the burden of proving the offeror’s proposal was not made in good faith.’ ” Sharaby, 45 So.3d at 563 (citation omitted).

We agree with the seller that the brokers did not meet their burden in the circuit court. The primary argument which the brokers presented in an attempt to meet their burden was that, after the seller served discovery only on the buyer, the seller’s “$500 offer on a commission claim that was basically $300,000” could not have been in good faith. However, “[o]ffers are not suspect merely because they are nominal.” State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So.2d 1263, 1264 (Fla. 4th DCA 2006). As we stated in Sharkey:

Offers, nominal or otherwise, must bear a reasonable relationship to the amount of damages or a realistic assessment of liability. The rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal. The offer need not equate with the total amount of damages that might be at issue.

Id. (internal citations and quotations omitted).

We find that the seller’s proposals bore a reasonable relationship to the amount of damages and a realistic assessment of liability. The seller never wavered from its argument that the brokerage commission contract was unenforceable because its contract with the buyer was unenforceable. The seller needed very little, if any, discovery to support that argument because the lack of essential terms in the contract with the buyer was apparent from the face of that contract. See Bus. Specialists, 25 So.3d at 695-96 (“Here, as the trial court found, the buyer and seller had agreed on some terms for the sale of the business and land, but had not agreed on all of the essential terms, which included not only the terms of the seller financing, but the continued employment of the seller’s principal.”). Because of the absence of any evidence that the seller did not make its proposals in good faith, the circuit court erred in denying the seller’s motion to recover its attorney’s fees and costs from the brokers pursuant to the proposals for settlement.

Section 57.105(7)

The issue of entitlement to attorney’s fees based on the interpretation of a statute or contract is a pure matter of law involving de novo review. Save on Cleaners of Pembroke II, Inc. v. Verde Pines City Ctr. Plaza LLC, 14 So.3d 295, 297 n. 4 (Fla. 4th DCA 2009).

We agree with the seller that it was entitled to recover its attorney’s fees against Specialists pursuant to section 57.105(7). That statute provides, in pertinent part:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

Because Specialists acknowledged that the statute allowed the seller to recover its attorney’s fees pursuant to the prevailing party provision in the brokerage commission contract, the circuit court should have awarded those fees in the judgment.

We disagree with the seller that it was entitled to recover its attorney’s fees against Continental as an intended third-party beneficiary pursuant to section 57.105(7). A party is a third-party beneficiary of a contract only if both parties to the contract express an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong. Esposito v. True Color Enters. Constr., Inc., 45 So.3d 554, 554 (Fla. 4th DCA 2010). Here, the contract between the seller and Specialists did not express an intent to primarily and directly benefit Continental. The contract merely mentioned that Specialists could co-broker the listing. Therefore, Continental is not an intended third-party beneficiary of that contract. In turn, Continental is not required to pay the seller’s attorney’s fees under the prevailing party provision of the contract. See Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d 589, 591 (Fla. 4th DCA 1983) (“Although the principals to the agreement made provision for payment of the broker’s commission, such a provision does not make the broker a formal party to the contract. Therefore the broker cannot ... be held liable for attorney fees arising out of the contract.”).

The seller argues that Continental should be judicially estopped from denying its status as a third-party beneficiary of the contract because Continental, in the complaint, alleged that it was a third-party beneficiary of the contract. However, judicial estoppel does not apply here because Continental did not successfully maintain that position in the circuit court. See Bueno v. Workman, 20 So.3d 993, 997 (Fla. 4th DCA 2009) (judicial estoppel prevents litigants who have successfully maintained a position in one proceeding from taking an inconsistent position in a later proceeding in which the same parties and questions are involved).

Section 57.04.1(1)

We find that the circuit court erred by denying the seller’s motion for taxable costs against the brokers pursuant to section 57.041(1). That statute provides, in pertinent part: “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment....” Under section 57.041(1), a judge has no discretion to deny recovery of costs to the prevailing party. Oriental Imps., Inc. v. Alilin, 559 So.2d 442, 443 (Fla. 5th DCA 1990). Because the seller was the party recovering judgment, the seller was entitled to recover all of its costs, which the circuit court should have included in the judgment.

In reaching our conclusions above, we reject without further comment the brokers’ arguments that the seller failed to provide an adequate record for review and that the seller’s failure to file exceptions to the magistrate’s report precluded appellate review. We remand for the circuit court to set an evidentiary hearing to determine the reasonable amount of attorney’s fees and costs, incurred both in the circuit court and in this appeal, which the seller is entitled to recover from the brokers.

Reversed and remanded.

HAZOURI, J., concurs.

DAMOORGIAN, J., concurs specially with opinion.

DAMOORGIAN, J.,

concurring specially.

I concur and write only to emphasize Judge Gerber’s point that the offeree should be required, by statute or rule, to notify the offeror of any real or perceived ambiguity in a proposal for settlement. The very notion that ambiguity can be raised as a defense after the time for acceptance of the offer has passed makes no sense. This “gotcha” tactic has plagued the courts for far too long and is a waste of judicial resources. The fix is quite simple. If the offeree does not specifically identify the ambiguity within a fixed period of time from the date of the offer, any objection based on ambiguity is waived.

      . This case adds to the growing list of cases addressing the alleged ambiguity of a proposal for settlement. We believe this issue continues to arise because neither section 768.79 nor rule 1.442 requires the offeree to notify the offeror when the offeree considers a proposal to be ambiguous. Requiring parties to resolve ambiguities in proposals for settlement upon service of the proposals would better serve the purpose for which the statute and rule were intended, that is, "to encourage litigants to resolve cases early to avoid incurring substantial amounts of court costs and attorney’s fees.” Eagleman v. Eagleman, 673 So.2d 946, 947 (Fla. 4th DCA 1996). If the legislature and our supreme court were to amend the statute and the rule to include such a requirement, then perhaps the ambiguity issue would arise less often. See Nichols, 932 So.2d at 1078 (" 'A proposal for settlement is intended to end judicial labor, not create more.’ ”) (citation omitted). We encourage the Florida Bar’s civil rules committee to consider proposing such an amendment.


text:
    Roberto JANERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3098.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.

      Roberto Janero, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Roberto Janero appeals the summary denial of his motion for postconviction relief. For the reasons that follow, we reverse and remand for correction of the judgments and sentences entered in case numbers F04-5333, F04-9021(A), F05-35116, and F06-14287(A), or for an eviden-tiary hearing.

The record reflects that on October 19, 2009, Janero entered into a negotiated plea with the State wherein he admitted to violating his probation in case numbers F04-5333 and F04-9021(A). His probation was revoked and he was sentenced as follows:

Case No. FOi-5333
Count 1 (burglary unoccupied dwelling): 15 years.
Count 2 (grand theft third degree): 5 years.
Case No. F0U-9021(A)
Count 1 (burglary occupied dwelling): 15 years.
Count 2 (possession burglary tools): 5 years.

Janero also pled guilty to the charges filed in case numbers F05-35116 and F06-14287(A) and he was sentenced as a habitual felony offender as follows:

Case No. F05-35116
Count 1 (burglary unoccupied dwelling): 15 years followed by 10 years probation.
Count 2 (grand theft third degree): 10 years.
Case No. F06-U287(A)
Count 1 (second degree felony murder): 15 years followed by 10 years probation.
Count 2 (armed home invasion robbery): 15 years followed by 10 years probation.
Count 3 (possession of a firearm by a convicted felon): 15 years followed by 10 years probation.

Janero filed the instant motion seeking postconviction relief on the basis of ineffective assistance of counsel. The trial court summarily denied the motion, finding that Janero freely and voluntarily entered his plea to the charges. The plea transcript clearly supports the trial court’s finding as to all but one ground raised by Janero. The sole issue requiring reversal, however, appears to be one of clerical error rather than ineffective assistance of counsel. Although the intent of the parties and the trial court appears to have been to run the sentences as to each count and each case concurrently, that intent is not reflected on the judgments and sentences. Thus, the Department of Corrections is treating the sentence imposed in case number FOG-14287 as consecutively ordered.

We have reviewed the sentencing transcript and the Clerk’s minutes on each case. While the sentencing transcript clearly reflects that the sentences in each count and the sentences in case numbers F04-5333, F04-902KA), and F05-35116 were ordered to run concurrently, the trial court inadvertently failed to make a clear record as to whether the sentence in case number F06-14287 was to run concurrent or consecutive to the other three cases. The Clerk’s minutes, however, clearly reflect that the sentence in F06-14287(A) was to run concurrent to the sentence in case number F04-5333. The sentencing transcript appears to support the Clerk’s minutes that it was the intent of the parties and the trial court to run all of the sentences concurrently and that the defendant serve a single fifteen-year sentence (as a habitual offender in case numbers F05-35116 and F06-14287(A) and as straight time in the 2004 cases), followed by one ten-year habitual offender probation for the 2005 and 2006 cases.

We therefore treat that portion of Jane-ro’s motion as a motion to correct the judgment and sentence in accordance with the plea, and reverse and remand for further proceedings. If the State, after review of its flies, agrees that the intent of the parties was to run all sentences concurrently, the trial court is directed to amend the judgments and sentences to clearly reflect that intent, and to send the corrected sentencing documents to Janero and the Department of Corrections. Jane-ro need not be present to make this correction. If there is a disagreement or uncertainty as to the intent of the parties, then an evidentiary hearing will be required to determine whether Janero entered into a free, voluntary, and knowing plea.

Accordingly, we affirm the trial court’s order regarding all of the claims raised by Janero in his motion for postconviction relief except for the claim regarding whether the sentence in case number F06-14287(A) should reflect that it be served concurrent or consecutive to the other sentences imposed.

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


text:
    Cory SAINTIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3289.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Cory Saintil, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before, CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. Howard v. State, 642 So.2d 77 (Fla. 3d DCA 1994); See §§ 775.082(3)(c); 810.02(3)(b), Fla. Stat. (2005).


text:
    Yaakov VANN, Appellant, v. Lee GREENBERG, Appellee.
    No. 4D09-4214.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Rehearing Denied March 1, 2011.
    Yaakov Vann, Boca Raton, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

GROSS, C. J., MAY and DAMOORGIAN, JJ., concur.


text:
    Yaakov VANN, Appellant, v. Margot GREENBERG, Appellee.
    No. 4D09-4213.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Rehearing Denied March 1, 2011.
    Yaakov Vann, Boca Raton, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

GROSS, C. J., MAY and DAMOORGIAN, JJ., concur.


text:
    Amado PARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1819.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.

      Amado Parra, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Swafford v. Dugger, 569 So.2d 1264, 1266 (Fla.1990).