author: ORFINGER, J.

text:
    CITRUS COUNTY, Florida, Appellant, v. HALLS RIVER DEVELOPMENT, INC., Appellee.
    No. 5D08-975.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Rehearing Denied May 7, 2009.

      Michele L. Lieberman, of Law Office of Michele L. Lieberman, Inverness, for Appellant.
    Frederick T. Reeves, of Frederick T. Reeves, P.A., New Port Richey, and George T. Reeves, of Davis, Schnitker, Reeves & Browning, P.A., Madison, for Appellee.
   ORFINGER, J.

Citrus County appeals a non-final order determining that it had “inordinately burdened” real property owned by Halls River Development Inc., as that term is used in the Bert J. Harris, Jr. Private Property Rights Protection Act, section 70.001, Florida Statutes (2005). The County contends that the trial court erred in finding that Ordinance 2002-A-10 (“the Ordinance”) inordinately burdened Halls River’s use of its real property; that Halls River had a reasonable, investment-backed expectation to develop its property as a multifamily condominium; or that the Ordinance burdened Halls River’s existing use or vested right to use the property for a multifamily condominium resort. The County further argues that the trial court erred in holding that Halls River timely asserted its Harris Act claim. For the following reasons, we reverse.

BACKGROUND

Halls River purchased approximately eleven acres of real property located in Citrus County in January 2001 with the intention of building a condominium complex. At issue is the proposed development of that property, and more specifically, the interrelationship between the County’s Comprehensive Land Use Plan and its Land Development Code.

The Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 168, Part II, obligates local governments to adopt comprehensive land use plans to guide and control future land development. Galaxy Fireworks, Inc. v. City of Orlando, 842 So.2d 160, 165 (Fla. 5th DCA 2003); Home Builders & Contractors Ass’n of Brevard, Inc. v. Dep’t of Cmty. Affairs, 585 So.2d 965, 966 (Fla. 1st DCA 1991). By law, each comprehensive plan must be reviewed every seven years in an Evaluation and Appraisal Report (“EAR”). The EAR is intended to assess the progress made in implementing the comprehensive plan. See § 163.3191, Fla. Stat. (2005). A comprehensive plan may also be amended through this process if the amendment is approved by the Florida Department of Community Affairs (“DCA”). The land development code is the document that implements the comprehensive plan. If there is a conflict between the comprehensive plan and the land development code, the comprehensive plan prevails. See § 163.3194, Fla. Stat. (2005).

In 1989, the Board of County Commissioners (“the Commission”) adopted the County’s Comprehensive Plan (“the Plan”) in compliance with Chapter 163, after a series of public meetings. Prior to 1997, both the County’s Plan and its Land Development Code (“LDC”) were consistent, designating the property at issue as “Mixed Use” (“MXU”). This was a “catch all” multiple-use category, which permitted, among other uses, a multifamily condominium. Much of the other property in the vicinity of Halls River’s property was designated both in the Plan and the LDC as Low Intensity Coastal and Lakes (“CL”), restricting development to one unit per twenty acres of real property. However, the property contiguous to Halls River’s property was, and remains, a 360-unit R.V./mobile home park (of which the property was once a part), a restaurant and lounge. Protected wetlands and salt marshes are located across the Homosassa River from the Halls River property.

As required by law, the County prepared an EAR in 1996, and, based on that report, submitted various Plan changes to the DCA. After the DCA approved the 1996 EAR, the Commission adopted the 1996 EAR amendment in 1997. That Plan amendment included changing the Halls River property classification from MXU to CL. However, while the County changed the Halls River property classification from MXU to CL in the Plan and on the Generalized Future Land Use Map (“GFLUM”), the map that shows future land uses under the Plan, it unfortunately did not update the property’s designation in the LDC or the LDC zoning maps. Those documents continued to reflect that the property was zoned MXU. The LDC and its maps were not amended because the County believed, erroneously as all concerned would later discover, that the 1996 EAR amendment allowed it to continue to approve development at higher densities in the areas reclassified from MXU to CL. That mistaken belief would be the basis for the difficulties that would later ensnare the parties.

F. Blake Longacre, an experienced real estate developer, is the principal owner and president of Halls River. He wanted to build a condominium project in the Ho-mosassa River area and learned about the property from a local real estate broker. He determined that according to the LDC zoning map, the property was suitable for this use. Nonetheless, before entering into a contract to purchase the property, Mr. Longacre contacted the County Development Services Staff to confirm that Halls River could build its proposed project on the property. The County staff assured Mr. Longacre that development of multifamily condominiums was a proper use for the property. Mr. Longacre was further assured that if Halls River met all the LDC requirements, ie., setbacks, environmental concerns, etc.; obtained the necessary permits from the U.S. Army Corps of Engineers (“USACE”) and the Southwest Florida Water Management District (“SWFWMD”); and obtained the approval of the Commission after a public hearing, the project could be built.

In February 2000, Halls River entered into a contract to purchase the property. The contract included a due diligence period of 160 days to allow Halls River to “make inquiries to governmental authorities” to determine if the property was suitable for its intended purpose. Halls River retained a surveyor and an engineer to determine if a suitable project could actually be built on the property in compliance with the LDC and environmental concerns. Although the County staff and Halls River disagreed about the number of units that could be constructed on the property, the County staff agreed that multiple units could be built on the property if properly configured in conformity with the LDC.

Halls River closed on the property in January 2001. To address the County staffs concerns, Mr. Longacre continued to amend the project application and eventually got the County staffs approval as to the number of units as well as approvals from the USACE and the SWFWMD. On February 12, 2002, despite considerable public opposition, the Commission approved Halls River’s application by a 3-2 vote.

The project’s opponents made known their belief that Halls River’s application was inconsistent with the Plan’s CL designation for the property, and was unlawful, irrespective of the LDC’s MXU designation of the property. They threatened litigation and shortly after the Commission’s action, filed several lawsuits against the County in the trial court, challenging the project’s approval. In November 2002, the trial court overturned the Commission’s approval of the project, concluding that the Plan, which had designated the property as CL since 1997, controlled over the LDC’s MXU designation. The County’s petitions for writs of certiorari in this Court were denied. See Citrus County v. Save the Homosassa River Alliance, 5D02-3824 (Fla. 5th DCA Apr. 19, 2003); Citrus County v. Richards et al., 5D02-3820 (Fla. 5th DCA May 19, 2003) (unpublished orders).

In the meantime, the County adopted the Ordinance, effective April 23, 2002, which conformed the LDC and the zoning maps to the Plan. However, recognizing that Halls River might have some vested rights, the Ordinance expressly exempted the Halls River property from its operation. It is this Ordinance that Halls River asserts created an inordinate burden on its development rights.

After this Court denied the County’s requests for review of the trial court orders overturning the Commission’s approval of the project, Halls River resubmitted its application to the County. Halls River and the County believed that when the trial court overturned the project approval, the parties were restored to the position that they enjoyed prior to the Commission’s action, thereby, allowing Halls River to reapply. In response to the resubmitted application and the County’s exclusion of the property from the operation of the Ordinance, the project’s opponents again sought relief in the trial court, this time by filing a petition for a writ of prohibition. The petition sought to prohibit the County from approving any project on the property not authorized by the CL designation. The court granted prohibition, ruling that the Halls River project, as originally approved, was a violation of law. The trial court explained that the County’s approval of the project was “illegal ... because [the project] ... is inconsistent with the Citrus County Comprehensive Plan” and “proposes a density more intense than that allowed by the Comprehensive Plan.” The County then advised Halls River that because its resubmitted application was inconsistent with the Plan, it would not be considered.

Halls River notified the County of its claim for compensation under the Harris Act in April 2003. The County responded by issuing a “ripeness decision,” identifying the allowable uses of the property and informing Halls River that it would “effectuate no change in its actions with respect to this matter and w[ould] not extend an offer of settlement.”

Halls River then sued the County, alleging that the Ordinance inordinately burdened its property and sought compensation under the Harris Act. The complaint also asserted claims for declaratory relief pursuant to section 86.011, Florida Statutes (2005), and equitable estoppel. Specifically, the Halls River’s complaint alleged:

Count I
Harris Act
6. Halls River’s real property for many years had been zoned MXU under the Plan and the County’s LDC.
7. Prior to April 24, 2002, Citrus County Ordinance No. 2002-A-10, as amended, the County’s Plan and LDC permitted the Plaintiffs real property to be developed with an economically viable commercial, multi-family or residential land use densities of up to 20 units per acre.
8. That the Citrus County Ordinance No. 2002-A-10 contains new arbitrary, unreasonable and restrictive land use regulations and inordinately burdens the Plaintiffs real property.
9. That these specific actions of the County[] (Ordinance No. 2002-A-10) described above have directly restricted or limited use of the Halls River’s real property such that Halls River is permanently unable to obtain Halls River’s reasonable investment expectations for the use of Halls River’s real property as defined by F.S. 70.001(3)(b) or alternatively such that Halls River is left with existing “uses” as defined by F.S. 70.001(3)(b) that are unreasonable with the result that Halls River is permanently placed in a position of having to bear a disproportionate share of a burden imposed for the good of the public which, in fairness, should be borne by the public at large.
10.That specific actions of Citrus County alleged above inordinately burden, restrict, and limit the private property rights of the Plaintiff and unfairly affect Halls River’s real property.
Count II
Equitable Estoppel
21. On February 21, 2002, The Citrus County Board of Commissioners, at a scheduled meeting ... approved a development plan for Halls River to develop Halls River Retreat, a shared-ownership condominium consisting of 54 units located in 18 buildings.
22. In good faith reliance on the County approval referenced in paragraph 21 above, Halls River expended significant sums of money, incurred significant obligations, and substantially changed its position to its detriment such that it would be manifestly unfair and unjust to allow Halls River to forfeit or lose these monies as a result of the County’s actions set forth above.
23. The County’s amendments to the Plan and the LDC which deprived Halls River of its original, approved development order was [sic] arbitrary and capricious, and designed specifically to deprive Halls River of its approved development order and to prevent Halls River from constructing its planned 54 unit shared-ownership condominium on its real property.

After a hearing on largely uncontrovert-ed facts, the trial court determined that the County’s actions inordinately burdened Halls River’s property, finding:

The County does not deny that its agents consistently and unequivocally assured Owner that the County regulations would permit a development such as Owner intended, in fact[,] the County staff involved in the application process so candidly admitted. And the staff knew Owner was relying on their expertise. Mr. Maidhoff, who incidentally was offered by the County and received by the court as the County’s expert on its Comprehensive Plan and Land Development LDC, testified that it is not uncommon for owners to do so. It would be unreasonable for an owner not to rely on county staff. And these were not representations relating to law. They were statements of fact. Our regulations require this, comply and get Commission approval, and you can build your project.
The County asserts that the [trial court] ... ruling [overturning the Commission’s approval of the project] should not be construed as a belated application of the coastal lakes zoning but should relate back to the 1996/1997 amendment to the Comprehensive Plan[,] prohibiting Owner[’]s reliance from the beginning. The court finds this position entirely inequitable. When the County itself was in the dark, the court will not hold that Owner should have carried a flashlight. Neither could see (or should see) it coming and it is the County, as between the two, that should bear the consequences.
Owner relied on these representations, changed its position and suffered damages as a result of it. Owner purchased the property, hired an engineer and surveyor, drew plans and altered plans at the County’s insistence. The estimated cost of this reliance was one and a half million dollars. The County claims these damages are not recoverable under a Bert Harris action. Owner is not seeking such damages; this was shown only to establish reliance. The damage sought is the diminution of value to its property before and after its permit was withdrawn on a regulation passed for the public good.
At the hearing, Owner’s appraiser testified to a substantial loss suffered by Owner because the County withdrew its permit after the de novo ruling. Any remaining possible use of the property, the appraiser testified, would be inadequate to prevent the inordinate burden suffered by Owner. Although the County put on an appraiser, he did not appraise the property before and after the permit’s withdrawal; he merely appraised the Owner’s appraisal. The basic fact is that Owner was found to have met the Comprehensive Plan requirements, the Land Development LDC, received the approval of the Army Corp., and the SWFWMD, and obtained a ruling by the County Commission after a public hearing that it was entitled to build a 56 unit interval ownership project. This was taken away by the belated application of a zoning restriction of one unit per twenty acres passed for the public good. Owner is now limited to a single unit on eleven acres of riverfront property. This is an inordinate burden under the Bert Harris Act and the public should share the burden.

This appeal followed.

ANALYSIS

The Harris Act, enacted in 1995, created a new cause of action allowing property owners who suffer inordinate regulatory burdens to existing or reasonably foreseeable land uses to be compensated by the government entity creating the burden. § 70.001(1), (2), (5)(a), Fla. Stat. (2005). The law focuses on protecting real property owners’ rights to existing uses and vested rights to specific uses of their property. It creates a statutory remedy “when a new law, rule, regulation or ordinance ..., as applied, unfairly affects real property” by inordinately burdening an existing use or a vested right to use real property. § 70.001(1), Fla. Stat. (2005). The inordinate burden must be to such an extent that the property owner is permanently unable to attain the reasonable investment-backed expectations for the existing use (or vested right) of the property as a whole. § 70.001(3)(e), Fla. Stat. (2005); Palm Beach Polo Inc. v. Village of Wellington, 918 So.2d 988, 995 (Fla. 4th DCA 2006).

A Harris Act claim must be presented within one year from the time the law or regulation is first applied by the governmental entity to the property at issue. § 70.001(11), Fla. Stat. (2005). At least 180 days before filing a lawsuit, written notice of the claim must be given to the appropriate governmental entity. § 70.001(4)(a), Fla. Stat. (2005). When the presuit notice is received, the government has 180 days to consider its options, which include retracting or modifying its action, taking no action, or granting relief in a variety of ways and making an offer to settle. § 70.001(4)(c), Fla. Stat. (2005). Before the expiration of this period, unless a settlement offer is accepted by the property owner, the governmental entity is required to issue a written “ripeness” decision, identifying the allowable uses for the property. § 70.001(4)(a), (5)(a), Fla. Stat. (2005). “The ripeness decision, as a matter of law, constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies.” § 70.001(5)(a), Fla. Stat. (2005). If the governmental entity maintains its earlier decision, the property owner may file a claim for damages in the trial court. § 70.001(5)(b), Fla. Stat. (2005). Upon compliance with the procedural requirements of the Harris Act, the court must determine whether an existing or vested use exists and whether the regulation has “inordinately burdened” the real property. If the court so finds, a jury determines the amount of damages suffered by the property owner. § 70.001(6), Fla. Stat. (2005).

The County argues that the Ordinance did not inordinately burden Halls River’s property, as it specifically exempted the property. More specifically, the County contends that the only action it took regarding the property was in 1997, when it amended the Plan and adopted the 1996 EAR amendment, eliminating the MXU future land use designation from the Plan, while retaining the MXU zoning designation in the LDC. For this reason, the County argues that as the Harris Act only applies to “new” laws or regulations affecting real property and bars any Harris Act claim presented more than one year after the application of the new law or regulation to the affected property, the presuit notification would have been required in 1998. The County concludes that the Ordinance did not eliminate any development rights that Halls River had in the MXU designation because, as the trial court found, the MXU rights were eliminated by its 1997 adoption of the 1996 EAR amendment.

Before proceeding further, an understanding of the relationship between a comprehensive land use plan and zoning regulations is important. A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. § 163.3167(1), Fla. Stat. (2005); Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987). The comprehensive plan is similar to a constitution for all future development within the governmental boundary. Machado, 519 So.2d at 632. Zoning, or, in this case, the County’s LDC, is the means by which the Plan is implemented. See City of Jacksonville v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984). Zoning involves the exercise of discretionary powers within limits imposed by the comprehensive plan. A zoning action that is not in accordance with the comprehensive plan is unlawful. Machado, 519 So.2d at 632. Once a comprehensive plan has been adopted pursuant to Chapter 163, Part II, “all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan” must be consistent with that plan. § 163.3194(l)(a), Fla. Stat. (2005); see also § 163.3164(7), Fla. Stat. (2005).

In its complaint below, and on appeal, Halls River recognizes that the Ordinance expressly exempted its proposed development. However, Halls River claims that the “impact” of the trial court’s prohibition judgment invalidating the exemption, caused its property to be “inordinately burdened.” Halls River posits that the Ordinance directly restricts or limits its use of the property, and for the first time applied the 1996 EAR amendments.

The terms “inordinate burden” or “inordinately burdened” are defined in the Harris Act to mean a specific action by a governmental entity that directly restricts or limits the use of real property. To be actionable, the “inordinate burden” must be such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole. A property owner is also “inordinately burdened” if the property owner is left with existing or vested uses that are unreasonable, so that the property owner permanently bears a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. § 70.001(3)(e), Fla. Stat. (2005). The existence of a “vested right” is determined by applying the principles of equitable estop-pel and substantive due process under statutory or common law. § 70.001(3)(a), Fla. Stat. (2005).

At the time Halls River purchased the property in 2001, the “actual, present use” of the property was as a single family residence. However, Halls River argues that its intended use of the property for a multifamily condominium fell within the statutory definition of “existing use,” as such a use for the property was reasonably foreseeable and nonspeculative, suitable for the property, and was compatible with adjacent land uses. We are not persuaded by that argument, as Halls River’s intended use of the property for a condominium was not reasonable given the Plan’s CL designation for the property. Even though the County candidly admits that its staff misinformed Halls River regarding the allowable uses of the property, Halls River, like the County, should have known that the property’s CL designation in the Plan would control over the LDC’s MXU designation.

Halls River also failed to establish a vested right to its intended use of the property based on a theory of equitable estoppel despite the County’s erroneous advice about the property’s permitted uses. The doctrine of equitable estoppel may be invoked against a governmental body when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights that the owner has acquired. Verizon Wireless Pers. Commc’ns, L.P. v. Sanctuary at Wulfert Point Cmty. Ass’n, 916 So.2d 850, 856 (Fla. 2d DCA 2005). However, estoppel should be invoked against the government only in exceptional circumstances. Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002). And, most importantly, the doctrine of estoppel does not generally apply to transactions that are forbidden by law or contrary to public policy. Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666, 668 (1923); Dade County v. Gayer, 388 So.2d 1292, 1294 (Fla. 3d DCA 1980). That is the case here as the Plan, which enjoys legal primacy regarding allowable land uses, prohibited the property’s use as a multifamily condominium.

In the final analysis, Halls River’s claim fails for several reasons. Initially, the Ordinance clearly did not create an inordinate burden on Halls River’s property since the Ordinance exempted the property. The inordinate burden, if one exists, was created by the 1996 EAR amendment and not by the Ordinance passed in 2002. As a result, the Harris Act claim was untimely. Once the Plan, as amended, was approved by the DCA in 1997, the County was without discretion to undertake development actions inconsistent with it. § 163.3194, Fla. Stat. (2005). Because the Plan, as amended, prohibited construction of multifamily dwellings on the property, Halls River cannot utilize the doctrine of equitable estoppel to compel the County to issue the necessary approvals for the project, despite the County’s willingness to do so.

Further, and contrary to the trial court’s determination, Halls River was not “found to have met the Comprehensive Plan requirements.... ” This case is based entirely on the fact that Halls River’s project does not comply with the Plan. As a result of the litigation brought by opponents of the project, it became clear that the Commission’s approval of the project was unlawful because it directly contravened the property’s CL designation in the Plan. The County acted beyond its lawful authority in approving the project. Inasmuch as the property maintained the CL designation since 1997, well before Halls River bought the property, Halls River never had a lawful right to the proposed use for a multifamily dwelling, the County staffs misadvice notwithstanding.

With some persuasive force, Halls River argues that since the Harris Act only allows as applied challenges, the mere enactment of a statute, ordinance or plan of general application such as the Plan and the EAR amendments, should not trigger the accrual of a Harris Act claim. See generally Susan L. Trevarthean, Advising the Client Regarding Protection of Property Rights: Harris Act and Inverse Condemnation, 78 Fla. B.J. 61 (2004). If correct, Halls River’s claim might be timely, as a Harris Act claim can be asserted within one year from the time the new law, rule, or plan is first applied to the property. Halls River argues that until an actual development plan is submitted, the impact of a governmental regulation cannot be determined. We agree that there may be some instances when the impact of a governmental regulation cannot be determined prior to the submission of an actual development plan. For example, if a comprehensive plan contains a clear height limit, the impact on a given parcel of property can immediately be determined. On the other hand, the impact of a generally applicable development standard discouraging urban sprawl may not be as readily apparent. But here, the impact of the CL designation of the property was readily ascertainable in 1997, ie., one housing unit per twenty acres of land. That the County and Halls River misper-ceived the legal effect of the 1996 EAR amendment is of no legal significance in determining the timeliness of Halls River’s claim.

Furthermore, contrary to Halls River’s argument, the County’s actions were not based on a unilateral mistake of fact. While Halls River relied on the County’s affirmative representations, see Branca v. City of Miramar, 684 So.2d 604 (Fla.1994), its reliance was based on the County’s misstatements of law. As the trial court recognized in its order, the County mistakenly believed and relayed to Halls River that it could lawfully “retain the authority to authorize a MXU PD overlay for a project in conformance with its amended ... Plan,” which “prevented [Halls River] from developing its property in accordance with its plans or, for that matter, developing its property in any fashion other than as a single family residential unit ...,” but that neither Halls River nor the County could have predicted the “belated application of the coastal lakes zoning.” Even if the County’s mistake is considered a mistake of fact, it was a mutual mistake of fact, as both the County and Halls River believed that the County had the authority to approve greater density than permitted in the property’s CL zoning under the Plan. In such circumstances, equitable estoppel will not lie. See, e.g., Nelson Richard Adver. v. Dep’t of Transp., 513 So.2d 181, 183 (Fla. 1st DCA 1987) (ruling that equitable estoppel will not lie for permit issued contrary to law as result of mutual mistake of fact).

We recognize that almost universally, the result in this case will be seen as unduly harsh. There is no doubt that Halls River was misled to its detriment by the County’s unintentional misadvice. However, by its express terms, the Harris Act requires the court to determine when the new law or regulation, as first applied, unfairly affected the property and requires a claim to be asserted within one year thereafter. On the facts presented in this case, it is clear that the adverse impact was caused in 1997 when the Plan changed the MXU designation to CL. We are not at liberty to modify the statutory scheme the Legislature created to remediate an unfair regulatory burden, though we recognize the equities clearly favor Halls River. See Gayer, 388 So.2d at 1294 (observing that “[w]hile at first blush it seems that the application of the rule [prohibiting relief based on equitable estopped] may be harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation” of law).

For these reasons, we reverse the non-final order, which determined that the County had inordinately burdened Halls River’s real property.

REVERSED.

SAWAYA and LAWSON, JJ., concur.

      . This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c)(viii).

      . Halls River intervened in the trial court actions, and was a party in the proceedings before this Court.

      . Halls River argues that as a remedial statute, the Harris Act should be liberally construed in favor of granting access to the legislatively provided remedy. See generally The Golf Channel v. Jenkins, 752 So.2d 561, 565-66 (Fla.2000). While Halls River is correct that remedial statutes are liberally construed in favor of access, Florida law is well settled that ambiguity is a prerequisite to judicial construction, and in the absence of ambiguity the plain meaning of the statute prevails. Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992); Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). We cannot construe the statute to create rights of action not within the intent of the lawmakers, as reflected by the language employed in the statute. Klepper v. Breslin, 83 So.2d 587, 592 (Fla.1955); Nolan v. Moore, 81 Fla. 594, 88 So. 601, 603. (1920).

      . The trial court recognized this mutual mistake, noting in its order, ”[t]his seems to be a case where both parties acted reasonably and in good faith but that something just went wrong. The shame is that one has to lose.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry BLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3786.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In view of the decision by the Florida Supreme Court in Martinez v. State, 981 So.2d 449 (Fla.2008), we have vacated and withdrawn our prior mandate issued in this cause, and have reconsidered the merits. In light of Martinez, we now conclude that the giving of the forcible felony instruction was not fundamental error under the facts of this case, and as it was unob-jeeted to in the present case, we find no error in that regard.

Our ruling on the double jeopardy violation described in the original opinion of this court will still require a reversal of the sentence and a remand for a new sentence. Mr. Blanton cannot be convicted of both an aggravated battery with a firearm and the related firearm possession offense.

Finally, while we continue to hold that it was error to allow the State to call and examine Mr. Blanton’s confidential mental health expert because Mr. Blanton had not waived the privilege associated with communications with that expert, our review of the limited testimony actually elicited from the expert leads us to conclude that the error was harmless beyond a reasonable doubt.

Accordingly, we reverse the judgment and sentence and remand this matter to the trial court for the imposition of a new sentence based on either the aggravated battery with a firearm offense or the firearm possession offense, but not both.

REVERSED and REMANDED with INSTRUCTIONS.

PALMER, C.J., SAWAYA and MONACO, JJ., concur.

      . Blanton v. State, 956 So.2d 480 (Fla. 5th DCA 2007), decision quashed by 999 So.2d 1061 (Fla.2009).


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. S.S., Appellee.
    No. 2D07-6066.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State argues that the trial court erred in failing to impose a mandatory six-month driver’s license suspension on S.S., a juvenile. We agree and reverse.

S.S. pleaded no contest in several cases, including one involving possession of marijuana. See § 893.13(6)(b), Fla. Stat. (2007). The trial court withheld adjudication and placed S.S. on probation. The State asked the trial court to impose the mandatory license suspension. See § 322.056(1), Fla. Stat. (2007). The trial court refused to do so, implying that the sanction was not required when adjudication was withheld.

Section 322.056(1) mandates suspension when a no contest plea is entered, adjudication is withheld, and the underlying offense is one enumerated under the statute — as is section 893.13. See State v. C.C.S., 779 So.2d 465 (Fla. 2d DCA 2000); State v. R.D.H., 779 So.2d 465 (Fla. 2d DCA 2000); State v. J.V.W., 739 So.2d 173 (Fla. 2d DCA 1999).

S.S. concedes that suspension is mandatory but argues that we should have dismissed the State’s appeal. We disagree. The State filed a premature notice of appeal after the trial court’s oral pronouncement of judgment but before rendition of a written judgment. Florida Rule of Appellate Procedure 9.110(i) allows a premature notice of appeal to vest jurisdiction in the appellate court when a final order is rendered before dismissal of the appeal or when the appellate court, in its discretion, permits rendition of a final order. See also State v. Blaney, 722 So.2d 220, 221-22 (Fla. 5th DCA 1998) (explaining that a notice of appeal filed after oral pronouncement of judgment, but before judgment is reduced to writing and entered, should not be dismissed on ground it is premature; rather, the notice of appeal prematurely filed should exist in a state of limbo until judgment is rendered, at which time the notice matures and vests jurisdiction in the appellate court). In this case, we exercised our discretion and permitted the rendering of the judgment.

Reversed and remanded with instructions to impose the mandatory license suspension.

CASANUEVA and DAVIS, JJ., Concur.


author: WHATLEY, Judge.

text:
    Tommy Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-523.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Jones appeals his convictions pursuant to jury verdicts of possession of marijuana and driving while license suspended (DWLS). The jury also found Jones guilty of possession of MDA, but the trial court withheld adjudication on that count. We find no merit in Jones’ argument on appeal and affirm his convictions. However, we reverse the order of probation because it does not conform to the trial court’s oral pronouncement of disposition.

Sentencing was conducted at the conclusion of the jury trial. The jury found Jones guilty of possession of marijuana, possession of MDA, and DWLS. The trial court withheld adjudication on the possession of MDA count and placed Jones on two years’ probation for that charge. The court adjudicated him on the remaining two counts and placed him on one year of probation for each count. All terms were to run concurrently for a total probationary term of two years. The order of probation, however, states that Jones pleaded guilty to one count of possession of a controlled substance and was placed on three years’ probation. Accordingly, we remand with directions that the order of probation be corrected to conform to the trial court’s oral pronouncement. See Thomas v. State, 742 So.2d 508 (Fla. 2d DCA 1999).

Affirmed but remanded for correction of probation order.

NORTHCUTT, C.J., and LaROSE, J., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5365.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

Oscar Ray Bolin, Jr., challenges his conviction for second-degree murder on two bases. We affirm the denial of Bolin’s motion to inspect grand jury testimony without further comment. Nevertheless, we must reverse for a new trial because the trial court did not properly instruct the jury on a lesser included offense.

One morning in January 1986 a jogger discovered the body of a young woman, Natalie Holley, near a Tampa roadside. She had been stabbed at least eight times. On August 1, 1990, a grand jury indicted Bolin for first-degree murder, robbery with a weapon, and kidnapping in connection with Ms. Holley’s death. Bolin was twice tried and convicted of those charges, but his convictions were overturned by the Florida Supreme Court. Bolin v. State, 796 So.2d 511 (Fla.2001); Bolin v. State, 642 So.2d 540 (Fla.1994).

Before this third trial, the State entered a nolle prosequi on the kidnapping and robbery charges and proceeded only on the charge of first-degree premeditated murder. § 782.04(1)(a)(1), Fla. Stat. (1985). At the ensuing trial, the court instructed the jury on first-degree premeditated murder and the lesser included offenses of second-degree murder and manslaughter. The jury convicted Bolin of second-degree murder.

Bolin challenges the manslaughter instruction given by the court. Manslaughter is a necessarily lesser included offense of premeditated first-degree murder. See Rayl v. State, 891 So.2d 1052, 1055 (Fla. 2d DCA 2004). Courts are required to instruct the jurors on necessarily lesser included offenses. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986).

Unlike the instruction on a permissive lesser included offense, the instruction on a necessarily lesser included offense must be given regardless of the facts of the case. Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997). Still, the standard instruction for manslaughter requires the court to tailor the instruction to the case. As set forth in both the manslaughter statute, § 782.07, and in the standard jury instruction, the crime can be committed in three ways: by act, by procurement, or by culpable negligence. Thus, at the time of Ms. Holley’s death, the Florida Standard Jury Instruction on manslaughter read as follows:

MANSLAUGHTER
F.S. 782.07
Before you can find the defendant guilty of manslaughter, the state must prove the following elements beyond a reasonable doubt.
Elements
1. (Victim) is dead.
2. The death was caused by the
(a) act of (defendant).
(b) procurement of (defendant).
(c) culpable negligence of (defendant).

(Emphases supplied.) The instructions directed the court to “[g]ive 2(a), (b) or (c) depending upon allegations and proof.” (emphasis supplied.) See Fla. Bar re: Standard Jury Instructions Criminal Cases, 477 So.2d 985, 992 (Fla.1985).

Florida law distinguishes between voluntary manslaughter, which is committed by act or procurement, and involuntary manslaughter, committed by culpable negligence. Whereas voluntary manslaughter is a crime of intent, involuntary manslaughter is not. See Taylor v. State, 444 So.2d 931, 934 (Fla.1983). Thus, in 1986, when Ms. Holley was killed, it was clear that when the charged crime involved intent, as does premeditated first-degree murder, the lesser included offense instruction would have to include voluntary manslaughter. See id. Moreover, in Bo-lin’s case a voluntary manslaughter instruction was also supported by the fact that the victim had suffered multiple wounds, a fact that also precluded the possibility that the victim’s death was caused by negligence.

Given both the allegations of the indictment and the proof at Bolin’s trial, the court was required to instruct the jury on manslaughter by act. It did not. Instead, the court instructed the jury that it could find Bolin guilty of manslaughter if it determined, among other things, “that the death of Natalie Holley was caused by the culpable negligence of Oscar Ray Bolin.” (Emphasis supplied.) The court then defined culpable negligence for the jurors. Bolin raised no objection to this instruction.

Bolin asserts the court committed fundamental error when it failed to instruct the jurors on manslaughter by act, the only type of voluntary manslaughter that could apply in this case. Reed v. State, 837 So.2d 366, 370 (Fla.2002) (citing Castor v. State, 365 So.2d 701 (Fla.1978) for the proposition that “[instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred”). The failure to give a complete instruction on manslaughter is fundamental error when a defendant is convicted of a greater offense that is not more than one step removed, such as second-degree murder. State v. Lucas, 645 So.2d 425, 427 (Fla.1994). Although Bolin was charged with premeditated first-degree murder, the jury convicted him of second-degree murder. The court’s failure to properly instruct the jury on voluntary manslaughter, a crime one step removed from the crime for which the jury convicted Bolin, was fundamental and per se reversible error. See Lucas, 645 So.2d at 427; State v. Abreau, 363 So.2d 1063 (Fla.1978); Cox v. State, 618 So.2d 291 (Fla. 2d DCA1993).

The error was compounded by the court’s instruction on culpable negligence manslaughter, which was misleading in the context of Bolin’s trial. The definition of culpable negligence that the court read to the jurors states: “Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.” In re Standard Jury Instructions, 477 So.2d at 992 (emphasis supplied). In the absence of an instruction on manslaughter by act, the jurors essentially were told that they could convict Bolin of manslaughter only if they found he acted “without any conscious intention to harm.” Given the extent of Ms. Holley’s wounds, no evidence at trial supported that possibility.

Fundamental error occurs when a jury instruction contains an incorrect definition of a disputed element of a crime. See McCain v. State, 995 So.2d 1029, 1034 (Fla. 2d DCA 2008) (citing Reed, 837 So.2d 366). Here, the disputed issues were whether Bolin was the perpetrator and, if so, whether he acted with premeditation. Negligence simply was not at issue in this case.

Similar fundamental error occurred in Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988). Reed was charged with and convicted of second-degree murder. The trial court instructed the jury only on the lesser included offense of manslaughter by intentional act, although the evidence could have supported the lesser included offense of culpable negligence manslaughter. The Fifth District reversed, stating that an “instruction [must] be sufficiently complete and accurate so that it does not mislead the jury and negate the defendant’s theory of defense.” Id. at 360. We agree, and we likewise reverse Bolin’s conviction for second-degree murder and remand for a new trial.

Because Bolin will be tried once again, we briefly address the ever-evolving Florida Standard Jury Instructions on manslaughter. We previously have set forth the 1985 instructions applicable at the time the crime was committed. On appeal, Bo-lin contends the court should have given the revised manslaughter instructions approved in 1994. These would have instructed the jurors that the State must prove that Bolin “intentionally caused the death” of Ms. Holley and that “[i]n order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.” See Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502, 506 (Fla.1994). A sidebar to the instruction notes that the clarification of an “intentional act” is to be given “only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.” Id.

The 1994 instruction is merely a refinement of the instruction in effect when the charged crime occurred. Further, it more accurately describes the offense, the statutory definition of which has not changed since 1986. Therefore, we agree with Bo-lin that the more accurate instruction should be given at his retrial. Cf. Carpenter v. State, 785 So.2d 1182, 1198 n. 1 (Fla.2001) (remarking that defendant had not argued on appeal whether the new or the old jury instruction should have been given); Larman v. State, 724 So.2d 1230, 1232 (Fla. 5th DCA 1999) (noting that the defendant was not prejudiced when the court gave a more refined, more accurate instruction that was enacted four months after the crime was committed).

We further note that the placement of the language clarifying intentional act manslaughter was moved in the 2006 amendment to the manslaughter instruction. In re Standard Jury Instructions in Criminal Cases-No. 2006-1, 946 So.2d 1061 (Fla.2006). But the language of the instruction is the same as in the 1994 instruction that Bolin advocates.

Finally, when the court instructed the jury on manslaughter at the trial below, it failed to repeat the instruction on justifiable and excusable homicide, which it had previously given in connection with the first-degree murder charge. On retrial, the court must also read this definition in connection with the lesser included manslaughter instruction. See Pignataro v. State, 834 So.2d 965 (Fla. 2d DCA 2003); see also Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004).

Affirmed in part, reversed in part, and remanded.

FULMER and SILBERMAN, JJ., Concur.

      . On appeal, Bolin argues that manslaughter by act was the only appropriate lesser included instruction. We note that if the court had given instructions on both culpable negligence manslaughter and manslaughter by act, we would find no error. See Roberts, 694 So.2d at 825 (noting that facts need not support a necessarily lesser included offense instruction).

      . The only exception to this rule is when the defense affirmatively agrees to an incomplete instruction. Lucas, 645 So.2d at 427. That exception does not apply in this case. See also Roberts, 694 So.2d at 826 (noting that mere acquiescence to instructions as given is not an affirmative agreement to the instruction).

      . This language remains, unchanged, in the present standard jury instruction, Fla. Std. Jury Instr. (Crim.) 7.7.

      . We also note that the 2002 schedule of lesser included offenses for first-degree murder lists only voluntary manslaughter, not involuntary manslaughter, as a necessarily lesser included offense to premeditated first-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.2 (Mar. 2004).


author: GEESTEN, C.J. RAMIREZ, Judge

text:
    Maiker VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2170.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rehearing Denied April 20, 2009.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez and Thomas Regnier, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SALTER, JJ.
   GEESTEN, C.J.

Maiker Vazquez (“the defendant”) appeals from his conviction and sentence for second degree murder and attempted kidnapping. We affirm.

As the trial testimony reveals, the defendant agreed to find a buyer for a large amount of Ecstasy pills that an acquaintance wanted to sell. Louis Vasquez (“Vasquez”) introduced the defendant to a buyer who took the pills without paying for them. Therefore, the defendant, his co-defendant, and the co-defendant’s girlfriend, Jackie Gonzalez, began looking for Vasquez to find the buyer.

In preparing to look for Vasquez, the co-defendant and Jackie traded in Jackie’s rental car for a van. Further, they removed the van’s tag and put it in the window. Additionally, the co-defendant carried a gun and put duct tape and a hammer in the van.

Thereafter, the defendant, the co-defendant, and Jackie began driving around all the while searching for Vasquez. Jackie and the defendant alternated driving, while the co-defendant sat in the back seat.

The threesome spotted Vasquez coming out of a gym. The co-defendant got out of the van, confronted Vasquez, and the two men wrestled. During the fight, the co-defendant shot Vasquez, and unsuccessfully tried to push Vasquez into the back of the van. At this point, the defendant drove off, picking up his co-defendant along the way.

The police later stopped the van, and the co-defendant and Jackie submitted to arrest. The defendant ran, but was finally arrested when he attempted to jump over a fence. Although all three were arrested, only the defendant and co-defendant were charged.

An issue at trial was whether the defendant had agreed with the co-defendant and Jackie to kidnap Vasquez, torture him, and get him to tell them the location of the drugs. Although at trial the defendant testified that he only intended to talk to Vasquez, in his statements to the police, he admitted knowing about his co-defendant’s preparation prior to looking for Vasquez.

On cross-examination of the lead detective, defense counsel asked: “Focusing on the notes and/or memory that you gained the night of November 2, 2001 as represented in your official and final report regarding this homicide investigation, that there is no specific reference or mention about a plan to kidnap as between my client and [the shooter]?” The detective replied: “That’s not what I was told by Jackie Gonzalez.” At this point, defense counsel objected on hearsay grounds because Jackie did not testify at trial. Defense counsel also requested a mistrial. The trial court denied the mistrial, but instructed the jury to disregard the statement.

On appeal, the defendant contends that the detective’s statement: (a) was inadmissible hearsay; (b) provided the only direct evidence that the defendant agreed to the plan to kidnap the victim; and (c) was so prejudicial that it vitiated the defendant’s right to a fair trial. The State asserts that the statement did not vitiate the entire trial. We agree with the State.

First, we are not convinced that the detective’s statement constitutes hearsay evidence. See § 90.801(1)(2), Fla. Stat. (2006). The statement was an attempt to answer defense counsel’s extremely confusing question. Defense counsel started out by referring to the contents of the detective’s report. Then, he vaguely mentioned a plan to kidnap between the defendant and the co-defendant. Defense counsel did not ask the detective if anyone stated that the defendant had agreed to the kidnapping. Thus, it is hard to determine what, if anything, was asserted for the truth.

Second, even if the jury could have understood the statement was asserted as truth that Jackie’s statement implied the defendant’s agreement to the kidnapping, the statement was isolated. Neither the detective nor the prosecutor referred to the statement again throughout the trial. Thus, the trial court’s prompt instruction that the jury disregard the statement was sufficient to cure any harm. See Barnes v. State, 470 So.2d 851 (Fla. 1st DCA 1985).

Finally, we find there was other competent, substantial evidence from which the jury could have inferred the defendant’s intent to participate in the kidnapping. See Jacobs v. State, 396 So.2d 713, 716 (Fla.1981). The defendant knew about, and even drove, the van with the removed tag and the duct tape and hammer. Additionally, the defendant admitted that he went with the co-defendant even after the co-defendant indicated he intended to torture Vasquez. In light of this evidence, the jury reasonably could have disbelieved the defendant’s trial testimony that he only intended to question Vasquez.

Accordingly, we affirm the judgment of conviction and sentence entered below.

Affirmed.

SALTER, J., concurs.

RAMIREZ, Judge

(concurring).

I concur in the result only as I believe the statement was hearsay.

Although the question could have been framed better, clearly counsel was asking: “... in your official and final report regarding this homicide investigation, that there was no specific reference or mention about a plan to kidnap as between my client and [the shooter]?” The response: “That’s not what I was told by Jackie Gonzalez,” is totally unresponsive. It was clearly a cheap shot by an experienced police officer. Obviously, the truth of the matter asserted is that while it was true that his report did not mention a plan to kidnap, he was told by Ms. Gonzalez that there was such a plan. This was Vazquez’s entire defense. The trial court quickly recognized the inadmissibility of the statement, sustained the objection and gave a curative instruction. It is totally unnecessary to our decision to muddy the law on hearsay by calling into question such a classic violation of the rule.


author: SCHWARTZ, Senior Judge.

text:
    ALL SEASONS CONDOMINIUM ASSOCIATION, INC., Appellant, v. Eduardo BUSCA and Flor D. Busca, his wife, Appellees.
    No. 3D08-2397.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rehearing Denied April 29, 2009.
    Pyszka, Blackmon, Levy, Mowers & Kelly and Cindy J. Mishcon, for appellant.
    Bradshaw W. Lotspeich, for appellees.

      Before RAMIREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In a suit by the owners of condominium units against the association for money damages arising out of the latter’s alleged failure properly to maintain and repair the common elements, see All Seasons Condo. Ass’n v. Busca, 985 So.2d 1143 (Fla. 3d DCA 2008)(reversing summary judgment for plaintiffs), the trial court appointed a receiver for the association, apparently in order to conduct that process more efficiently. See also Busca v. All Seasons Condo. Ass’n, 983 So.2d 1212 (Fla. 3d DCA 2008)(affirming denial of motion for receiver). The association appeals and we reverse with directions to vacate the order because there is simply no cognizable basis for such an appointment in such a case. Akers v. Corbett, 138 Fla. 730, 190 So. 28 (1939)(appointment of receiver must be pursuant and subsidiary to primary claim); County Nat'l Bank of N. Miami Beach v. Stern, 287 So.2d 106 (Fla. 3d DCA 1973)(same); Apalachicola N. R.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361 (1920)(appointment of a receiver improper in absence of fraud, self dealing, or waste of secured asset); McAllister Hotel v. Schatzberg, 40 So.2d 201 (Fla.1949) (same); Conlee Constr. Co. v. Krause, 192 So.2d 330 (Fla. 3d DCA 1966) (same).

Reversed.


text:
    Travis JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0742.
    District Court of Appeal of Florida, First District.
    March 30, 2009.
    Rehearing Denied May 20, 2009.
    Travis Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, KAHN, and BENTON, JJ., concur.


text:
    Alan ROLLS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 3D08-2957.
    District Court of Appeal of Florida, Third District.
    April 1, 2009.
    Rehearing Denied April 21, 2009.

      Alan Rolls, in proper person.
    Sarah J. Rumph, Tallahassee, Assistant General Counsel, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

We reverse the order dismissing Alan Rolls’ petition for writ of habeas corpus. The trial court should have treated it as a petition for writ of mandamus, and transferred the case to Leon County. Gibson v. Fla. Parole Comm’n, 895 So.2d 1291 (Fla. 5th DCA 2005).

Reversed and remanded with instructions.


text:
    UTILITY WORKERS UNION OF AMERICA and UWUA Local 604, Appellants, v. CITY OF LAKELAND, Appellee.
    No. 2D08-2467.
    District Court of Appeal of Florida, Second District.
    April 3, 2009.
    Thomas W. Brooks of Meyer & Brooks, P.A., Tallahassee, and David R. Radtke of Klimist, McKnight, Sale, MeClow & Can-zano, P.C., Southfield, MI, for Appellants.
    Tony B. Griffin and Guiléne F. Theodore of Ruden, McClosky, Smith, Schuster & Russell, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Utility Workers Union of America and UWUA Local 604 (collectively, the Union) appeal an administrative order affirming the dismissal of their unfair labor practice charge against the City of Lakeland. We have jurisdiction. See Fla. RApp. P. 9.080(b)(1)(C). The Lakeland Public Employee Relations Commission (Lakeland PERC) failed to apply a status quo analysis and summarily dismissed the charge as premature. This was error. Accordingly, we reverse and remand.

In mid-2007, the City’s electrical department employees voted to be represented by the Union. Collective bargaining soon commenced. In the fall, the parties entered a ground rules agreement in which, among other things, they agreed to address noneconomic issues first during contract negotiations. Historically, but subject to budget constraints, the City had given its employees annual wage increases, usually in the fall. In October 2007, the City gave a modest wage increase to its nonunionized employees. The Union wanted the same for its members. The City declined, arguing that wage issues must be addressed in the collective bargaining process.

The Union filed an unfair labor practice charge with Lakeland PERC’s General Counsel. See Lakeland, Fla., Code of Ordinances, No. 3663, § 1.017 (1995). Because, by past practice, the City had given wage increases to its employees, the Union alleged that the City’s unilateral change in practice, disrupting the status quo, violated section 447.501(l)(a) and (c), Florida Statutes (2007). These provisions prohibit a public employer from

(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
(c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

The General Counsel dismissed the charge, relying on the ground rules agreement:

This assumes that the issue of wages including any [wage] increase will be addressed later.... Based on the agreements of the parties to address non-economic issues first and the documents reflecting that the parties are continuing to negotiate a collective bargaining agreement, the unfair labor charge against the City is immature. Accordingly, the evidence submitted by the Charging Party is insufficient to establish a prima facie violation of any unfair labor practice provisions.

Lakeland PERC affirmed the dismissal. Here, the Union argues that Lakeland PERC failed to consider whether the City impermissibly altered the status quo, as it related to annual wage increases, pending collective bargaining. Our review is de novo. Miami-Dade County v. Gov’t Sup’rs Ass’n of Fla., 907 So.2d 591, 593 (Fla. 3d DCA2005).

Generally, the “status quo period” refers to the gap between collective bargaining agreements, when one agreement has expired and another has not yet been executed. During this time, the terms of the first agreement govern the labor/management relationship. The employer cannot unilaterally alter material terms in the expired contract pending negotiation of a new contract. Fla. Pub. Employees Council 79, AFSCME, AFL-CIO v. State, 921 So.2d 676, 679 n. 1 (Fla. 1st DCA 2006). To do so is an unfair labor practice. City of New Port Richey v. Hillsborough County Police Benev. Ass’n, Inc., 505 So.2d 1096, 1097 (Fla. 2d DCA 1987). Even if the altered term or condition of employment is not expressly contained in a collective bargaining agreement, it may be impliedly included as part of the established status quo. Id.

Although the Union and the City were negotiating a collective bargaining agreement, some evidence before Lakeland PERC suggested that employees had received annual wage increases for about two decades. Faced with a bargaining unit in its electrical department, the City, according to the Union, abandoned its long practice of wage increases, at least as to these newly unionized employees.

No one disputes the existence and terms of the ground rules agreement. However, Lakeland PERC’s reliance on this agreement begs the question of whether the City unilaterally changed employment terms pending contract negotiations. Accordingly, we reverse and remand for application of a status quo analysis.

Reversed and remanded with directions.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.

      . As a result of our decision, we decline to address the remaining points on appeal.


author: LaROSE, Judge. SILBERMAN, Judge,

text:
    A.W. CUNNINGHAM a/k/a Wayne Cunningham, Appellant, v. MBNA AMERICA BANK, N.A., a National Banking corporation, Appellee.
    No. 2D07-2909.
    District Court of Appeal of Florida, Second District.
    April 3, 2009.

      Debra J. Sutton and Sara-Jean Palmer of Sutton Law Firm, Bartow; Neal L. O’Toole of Lilly O’Toole & Brown LLP, Bartow, for Appellant.
    Richard E. Landman and George N. Andrews of Akerman Senterfitt, Fort Lauderdale, for Appellee.
   LaROSE, Judge.

A.W. Cunningham appeals the trial court’s order granting MBNA America Bank, N.A.’s motion to dismiss his second amended counterclaim. Because the trial court erred in dismissing, with prejudice, two permissive claims, we reverse, in part, and remand for further proceedings.

This case has a lengthy history but can be summarized concisely. MBNA issued a credit card in Mr. Cunningham’s name, but allegedly without his knowledge, to a third party, presumably his ex-wife. Some two years later, MBNA placed the account in default for nonpayment. At about that time, Mr. Cunningham learned of the unpaid debt. Through counsel, he disputed liability.

MBNA tried to collect from Mr. Cunningham. Pursuant to the credit card agreement, MBNA instituted arbitration in Maryland before the National Arbitration Forum. Although he knew of these proceedings, Mr. Cunningham did not participate in the arbitration. The arbitrator entered an award of over $21,000 in favor of MBNA. Mr. Cunningham knew of the award.

MBNA filed a complaint and an amended complaint in the trial court seeking damages and domestication of the arbitration award. Essentially, MBNA sought confirmation of the award. See 9 U.S.C. § 9 (2000); § 682.12, Fla. Stat. (2001). Mr. Cunningham filed a counterclaim, twice amended, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 (2001), the Florida Consumer Collection Practices Act (FCCPA), sections 559.55 — .785, Florida Statutes (2001), and assorted claims of defamation, abuse of process, and negligence.

The trial court dismissed the counterclaim with prejudice. It ruled that the counterclaim was a disguised attempt to vacate the arbitration award and to reliti-gate issues that could or should have been raised in the arbitration proceedings. The trial court concluded that Mr. Cunningham had not sought to vacate the arbitration award in a timely manner under the Florida Arbitration Code. See § 682.13. Apparently, the trial court did not consider the factual allegations of the counterclaim or the events giving rise to the counterclaim.

The trial court did not enter a final judgment on MBNA’s main claim or otherwise confirm the arbitration award. See 9 U.S.C. § 9; § 682.12. Consequently, we must satisfy ourselves that the order before us is appealable. See Fla. R.App. P. 9.030(b). According to Mr. Cunningham, the counterclaim was permissive, making the trial court’s dismissal with prejudice a final appealable order. See Fla. R.App. P. 9.030(b)(1)(A). We agree, in part. An order dismissing a permissive counterclaim is a final order subject to appeal, provided the order otherwise meets the test of finality. See Philip J. Padovano, Florida Appellate Practice § 22.4, at 450 (2009 ed.) (citing Sarasota Cloth Fabric & Foam, Inc. v. Benes, 502 So.2d 1354 (Fla. 5th DCA 1987); Campbell v. Gordon, 674 So.2d 783 (Fla. 1st DCA 1996)); see also Yunger v. Oliver, 803 So.2d 884, 888 (Fla. 5th DCA 2002) (affirming order on appeal and holding that two permissive counterclaims were properly stricken by the trial court as sham pleadings; finding three counterclaims to be compulsory counterclaims that must await an appeal from the final judgment). In contrast, the dismissal of a compulsory counterclaim, with prejudice, is not an ap-pealable final order until a final disposition of the underlying case. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So.2d 507 (Fla. 2d DCA 1993).

Florida Rule of Civil Procedure 1.170 addresses the distinction between compulsory and permissive counterclaims:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim....
(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

Under Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992), the “logical relationship” test determines whether a counterclaim is compulsory:

A claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis for both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.

Simply stated, a compulsory counterclaim arises out of the same transaction or occurrence as the plaintiffs claim. Aguilar v. Southeast Bank, N.A., 728 So.2d 744, 746 (Fla.1999); Arch Aluminum & Glass Co., Inc. v. Haney, 964 So.2d 228, 286 (Fla. 4th DCA 2007).

We consider the allegations in the counterclaim as true and in the light most favorable to Mr. Cunningham. See Londono, 609 So.2d at 18; Pondella Hall For Hire, Inc. v. Lamar, 866 So.2d 719, 721 (Fla. 5th DCA 2004). Such a reading of the counterclaim demonstrates that Mr. Cunningham’s claims for violations of the FDCPA and the FCCPA, and for abuse of process, attack MBNA’s alleged misuse of the arbitration process to secure payment of a credit card debt. These counts are compulsory; they are inextricably tied to the transaction or occurrence underlying MBNA’s claim. Consequently, to the extent the trial court order dismissed those claims, the order is not appealable and we are compelled to dismiss the appeal as to those claims. See S.L.T. Warehouse, 304 So.2d at 99-100; W. Fla. Med. Clinic, P.A. v. Kumari, 996 So.2d 966 (Fla. 1st DCA 2008).

However, Mr. Cunningham’s claims for defamation and negligence appear permissive. The allegations, though sketchy, suggest that those claims arise out of events not necessarily related, temporally or on the merits, to MBNA’s efforts to secure compensation through arbitration. Thus, we conclude that the order granting MBNA’s motion to dismiss is appealable as to those claims. See Johnson, 621 So.2d at 508. Those claims should have been dismissed with leave to amend. See generally Innovative Med. Servs., Inc. v. Reitz, 793 So.2d 125, 127 (Fla. 2d DCA 2001) (explaining that appellate court reviews counterclaims de novo and determines, as a matter of law, whether each count states a cause of action).

Dismissed in part, reversed in part, and remanded.

NORTHCUTT, C.J., Concurs.

SILBERMAN, J., Concurs in part and dissents in part with opinion.

SILBERMAN, Judge,

concurring in part and dissenting in part.

I concur with the majority that Mr. Cunningham’s counterclaims for violation of the Fair Debt Collection Practices Act, violation of the Florida Consumer Collection Practices Act, and abuse of process are compulsory counterclaims that are not reviewable in this appeal. However, I disagree that the counterclaims for defamation and negligence are permissive rather than compulsory and that they are reviewable in this appeal.

The defamation and negligence counterclaims, like Mr. Cunningham’s other counterclaims, are logically related to MBNA’s complaint for damages and domestication of its arbitration award. MBNA is seeking payment that is allegedly due as a result of transactions made on a credit card issued in Mr. Cunningham’s name. MBNA obtained an arbitration award for nonpayment of the transactions and then filed suit in the trial court to recover its damages. Mr. Cunningham’s counterclaims, as pleaded, all arise from the same core of operative facts that give rise to MBNA’s claim: MBNA issued a credit card in Mr. Cunningham’s name; it allowed credit transactions to be made on the card; it pursued collection efforts, including arbitration proceedings, to recover payment; and it instituted suit to recover payment. In addition, the defamation and negligence counterclaims assert legal rights that would not have arisen had MBNA not pursued payment for the credit card transactions. For example, in the defamation counterclaim, Mr. Cunningham asserts that MBNA engaged in misconduct by falsely notifying credit reporting agencies that he had defaulted and had failed to pay the financial obligations arising from the credit card transactions. In the negligence counterclaim, Mr. Cunningham asserts that MBNA breached statutory and other duties by opening the credit card account and extending credit in his name; in allowing the unauthorized use of his “identification and information without verification”; in harassing him to collect the unpaid charges; in pursuing “an unauthorized and invalid Arbitration Award” against him; and in filing suit against him while knowing that he was not liable for the indebtedness.

Based on the operative facts giving rise to Mr. Cunningham’s counterclaims, I cannot agree that the defamation and negligence counts are permissive counterclaims. In my view, all of Mr. Cunningham’s claims are compulsory counterclaims that must await an appeal from the final judgment. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974); Yunger v. Oliver, 803 So.2d 884, 887 (Fla. 5th DCA 2002). Accordingly, I would dismiss this appeal.

      . We note that the arbitration agreement is governed by the Federal Arbitration Act. See 9 U.S.C. §§ 1-16 (2000).


text:
    Richard Arthur BERTKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1347.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Rehearing Denied May 12, 2009.
    Jill S. Barger, St. Augustine, for Appellant.
    Richard Arthur Bertke, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case was remanded by the Florida Supreme Court to this court for reconsideration of our prior opinion, Bertke v. State, 949 So.2d 1118 (Fla. 5th DCA 2007), in light of the supreme court’s holding in Martinez v. State, 981 So.2d 449 (Fla.2008). Bertke v. State, 999 So.2d 1061 (Fla.2009). Having reconsidered this case in light of Martinez and after a thorough review of the record herein, we affirm Richard Bertke’s conviction for aggravated battery with a firearm.

AFFIRMED.

PALMER, C.J., SAWAYA and MONACO, JJ., concur.


author: SAWAYA, J.

text:
    Jeryl Mitchell VICKERY, Appellant/Cross-Appellee, v. Tom Rusk VICKERY, Appellee/Cross-Appellant.
    Nos. 5D07-2499, 5D07-4217.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Rehearing Denied May 12, 2009.
    John S. Mills, of Mills Creed & Gowdy, P.A., Jacksonville, for Appellant/Cross-Ap-pellee.
    Albert Datz, of Datz & Datz, P.A., Jacksonville, for Appellee/Cross-Appellant.
   SAWAYA, J.

Jeryl Mitchell Vickery, the former wife, timely appeals the Supplemental Final Judgment on Equitable Distribution, Alimony, and Related Relief.

Based on our thorough review of this record and the concessions made by the parties in these proceedings, we conclude that the trial court erred in failing to distribute the parties’ Ponte Vedra Inn and Club membership and by designating the former wife’s car as a marital asset. We also conclude that the trial court abused its discretion in awarding attorney’s fees to the former husband given that he has substantially more assets than the former wife and in light of the fact that the marital property was distributed equally.

Accordingly, we remand with instructions to the trial court to: (1) value and distribute the parties’ Ponte Vedra Inn and Club membership and recalculate the former wife’s equitable distribution equalizing payment accordingly; and (2) order the former husband to reimburse the former wife in the amount of $3,000, which represents the amount the former wife should be reimbursed for her nonmarital 2006 Acura being included as a marital asset in equitable distribution. In all other respects, the Supplemental Final Judgment is affirmed. We reverse the Order on Attorney’s Fees awarding the former husband one-half of his attorney’s fees.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . The former husband cross-appeals, claiming the trial court incorrectly interpreted and applied section 61.075(6), Florida Statutes (2005), in identifying and valuing the marital assets in certain checking accounts, the former wife’s Merrill Lynch CMA accounts, and the Merrill Lynch Beyond Banking account. As to these issues, we affirm without further discussion.


author: GRIFFIN, J.

text:
    Roger L. DINGESS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1173.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Rehearing Denied May 5, 2009.
    Jerome Rotenberg, of Carney & Associates, P.A., Crystal River, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Roger L. Dingess [“Dingess”] appeals the trial court’s judgment and sentence that followed a violation of probation [“VOP”] hearing. On appeal, Dingess argues that the State failed to carry its burden of establishing that he willfully and substantially violated conditions three and five of the order of probation.

We conclude the trial court did not err by determining that Dingess willfully and substantially violated conditions three and five of the order of probation. There was substantial competent evidence to establish that Dingess (1) left Citrus County on May 15, 2007 in violation of condition three and (2) committed the offense of trafficking in methamphetamine in violation of condition five. It was up to the trial court to weigh the credibility of the testimony. Also, under the facts, we find no abuse of discretion in the trial court’s denial of Dingess’ motion for continuance to subpoena a witness.

AFFIRMED.

PALMER, C.J. and SAWAYA, J., concur.


text:
    David James WILKINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-4964.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    David James Wilkinson, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence rendered on September 3, 2008, in Okaloo-sa County Circuit Court case number 2008-CF-0943. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, KAHN, and BENTON, JJ., concur.


author: RAMIREZ, J.

text:
    Darren MATHIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1214.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Carlos J. Martinez, Public Defender, and Jessica Zagier, and Andrew Stanton, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Darren Mathis appeals the denial of his motion to suppress cocaine found on his person pursuant to an illegal search. Because we conclude that under the totality of the circumstances the officer lacked probable cause to search Mathis, we reverse.

At the hearing on the motion, the arresting officer testified that he first became aware of Mathis through a tipster. He described the informant as someone that he knew for approximately two years. He also testified that he had received forty to sixty calls from the same informant. The informant had never given the officer information that did not later match up at the scene.

On this occasion, the informant told the officer that there was a man standing on a specific street corner selling narcotics. The informant described the man, including what the man was wearing. The informant also told the officer that the narcotics were inside Mathis’ left front pocket. On cross-examination, the officer described the tip as “a call of an alleged hand-to-hand transaction.” Based on this, the officer stopped Mathis, reached into Mathis’ left front pocket, and retrieved a sandwich bag with sixteen suspected rocks of crack cocaine.

The trial court determined that the officer had probable cause to stop Mathis and conduct a search based on State v. Butler, 655 So.2d 1128 (Fla.1995). Indeed this case is similar to Butler, where the officer was contacted by a known, reliable confidential police informant. Id. at 1124. The informant told the officer that a black male was selling powdered cocaine at a particular location known to officer to be part of an area with a high volume of street level drug sales. Id. at 1125. In fact, the officer had seized crack cocaine two months earlier at this exact location. Id. The informant described the suspect and how he had wrapped cocaine inside rolled-up one-dollar bills and placed them in his pants pocket, ready to sell. Id.

Within fifteen minutes of receiving this tip, the officer approached the only person matching the description. Id. This person was Butler. Id. He initially turned as if to walk away, but then stopped. Id. The officer patted Butler down on the outside of his clothing and felt a large, soft bulge in his pants pocket, which he believed to be money. Id. The officer asked Butler about the bulge, and Butler responded that it was twenty-eight one-dollar bills. Id. The officer then reached into Butler’s pocket and retrieved the folded money (i.e., twenty-seven or twenty-eight bills), but found no cocaine. Id. However, when the officer reached into the pocket again, he retrieved another folded dollar bill which contained powdered cocaine as the informant had described. Id.

Our case is similar to Butler in that the informant was reliable and credible. The critical difference is that the informant here did not describe the type of drugs sold or the method of delivery. In fact, all we know is that the informant observed a hand-to-hand transaction. As such, our case is more analogous to Chaney v. State, 956 So.2d 535 (Fla. 4th DCA 2007), where the court held that the evidence should have been suppressed. There, the officer was just leaving police station when she was approached by an unknown person. Id. at 536. He told her that while he was working that day, he witnessed what he believed to be several drug transactions across the street. Id. He described the location and told the officer that he saw several people drive up and walk over to a man, who, in exchange for money, gave those individuals some items. Id. He told the officer he believed those items were drugs, although he did not specify the type of drugs. Id. He did not recognize any of the participants in the transactions. Id. He described the scene and the suspect as a black male wearing a red jersey shirt sitting in front of the house, accompanied by a black female wearing white. Id. He said the couple had chairs set up inside a fence. Id. He said he saw the male conduct several hand-to-hand transactions throughout the day and that he kept the “items” in the back pocket of his pants. Id.

The Chaney court determined that this constituted information from a “citizen-informant” at the high end of the tip-reliability scale, but its concern centered on whether the content of this particular tip was sufficient under the totality of the circumstances to provide the officer with probable cause to search Chaney. Id. at 538. “Observations by an untrained layperson of multiple hand-to-hand transactions, standing alone, do not necessarily provide sufficient information for detention or arrest by a police officer.” Id. Even if the hand-to-hand transactions had been observed by a trained police officer, Florida courts have considered several factors in determining whether observation of such transactions create reasonable suspicion or probable cause. “These factors include the experience and training of the officer in narcotics investigations, reputation of the location for drug activity, history of previous arrests from that site, prior knowledge of the suspects, quality and extent of surveillance, and detailed description of the event.” Id. at 539. We conclude that observations by informants, even reliable ones, should at least meet the same standards as observations by trained police officers.

Our case is similar to Chaney in that the record is devoid of any testimony that the location described by the informant had any prior history of drug transactions or arrests or that the police officer had any prior knowledge of the defendant’s involvement in drug dealing. In both cases, the officer was uncertain whether the citizen informant could actually see any drugs being exchanged for money, and did not conduct any surveillance or acquire additional information to confirm the informant’s report of suspected drug activity. In both cases, the officers corroborated the tip only as to physical description of the location and the suspects. Our case is even weaker than Chaney in that the informant only described one hand-to-hand transaction. See also Ford v. State, 783 So.2d 284, 286 (Fla. 2d DCA 2001) (holding that detention of the defendant was not justified where the officer did not observe the transaction and could not testify that the manner of exchange resembled a drug deal; the officer did not know the defendant or the other man who handed him something; - and there was no testimony about the reputation of the area for drug transactions).

We conclude that the State failed to meet its burden to prove that the officer had probable cause to reach into Mathis’ pocket and seize its contents. The confidential informant’s report of observing a hand-to-hand transaction, standing alone, was insufficient under the totality of the circumstances to provide the officer with probable cause to search Mathis. Accordingly, we reverse the order denying his motion to suppress the evidence.

Reversed and remanded.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Timothy Lee JACOBS, Appellee.
    No. 4D08-416.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals a trial court order granting a prisoner’s motion for postcon-viction relief and awarding a new trial on the crime of possession of a firearm by a convicted felon. At the original trial, the trial court instructed the jury to make a finding as to whether the defendant possessed a firearm but did not specifically instruct that the jury must find this element beyond a reasonable doubt. The trial court did give the standard instruction requiring the jury to make all findings beyond a reasonable doubt. In his motion for posteonviction relief, the defendant claimed that his counsel was ineffective for failing to include an instruction on reasonable doubt connected with the instruction on possession. As a consequence, he claimed he was entitled to a new trial. Although the trial court so found, we disagree.

This case is controlled by Ruger v. State, 941 So.2d 1182 (Fla. 4th DCA 2006). In that case, the defendant was charged with second-degree murder with a weapon, and the instructions required the jury merely to “find” that the appellant used a weapon in order to find him guilty of the charged crime. The defendant argued that the instruction allowed the jury to find him guilty by applying a burden of proof less than beyond a reasonable doubt. We rejected this contention.

We think this contention of error is mer-itless. The general instruction on reasonable doubt provides, in pertinent part: “The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the Information, through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.” (Emphasis added). This instruction tells the jury to apply the same burden of proof to all aspects of the case which the state is required to prove. Considering the instructions as a whole, they are not error, let alone fundamental error.

Id. at 1185 (emphasis supplied).

We reach the same conclusion in this case. Counsel was not ineffective because there was no error in the instructions given.

Further, the trial court never determined how the failure to provide the correct instruction constituted prejudice under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In fact, the court expressed considerable skepticism that the failure to instruct made any difference at all. This does not show Strickland prejudice.

For the foregoing reasons, we reverse the order granting postconviction relief.

STEVENSON and DAMOORGIAN, JJ., concur.


author: TAYLOR, J.

text:
    Adrienne CURCIO as Personal Representative of the Estate of Angelina Lanzetta, Deceased, and Adrienne Curcio, personally, Appellants, v. SOVEREIGN HEALTHCARE OF BOYNTON BEACH L.L.C. d/b/a Boynton Beach Nursing and Rehab Center, Appellee.
    No. 4D08-1947.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.

      Diana L. Martin of Leopold-Kuvin, P.A., Palm Beach gardens, and Joseph C. Schulz of Vastóla, Schulz, Harvey & Crane, North Palm Beach, for appellants.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for appellee.
   TAYLOR, J.

Plaintiff, Adrienne Curcio, appeals the trial court’s order granting the defendant’s motion to compel arbitration and dismiss her lawsuit. Because the trial court failed to conduct an evidentiary hearing pursuant to section 682.03(1), Florida Statutes (2005), on plaintiffs unconscionability challenge to the enforceability of the arbitration provision, we reverse and remand for such a hearing.

The plaintiff, as personal representative of the Estate of Angelina Lanzetta and in her personal capacity, sued Sovereign Healthcare of Boynton Beach, L.L.C. d/b/a Boynton Beach Nursing and Rehab Center (“Boynton Rehab”) after her mother died from a neck injury she received while residing at the facility. Boynton Rehab moved to dismiss the action and to compel arbitration based on an arbitration provision in the Resident Admission and Financial Agreement signed by Lanzetta. In opposition to the motion to compel arbitration, plaintiff argued that the arbitration provision was unconscionable because the decedent had no choice but to sign the arbitration agreement in order to obtain necessary medical care and treatment and because the decedent did not understand the agreement or the rights she was waiving by signing the agreement. The trial judge did not hold an evidentiary hearing under section 682.03(1), Florida Statutes, to resolve these disputed issues concerning the validity of the arbitration agreement before granting the defendant’s motion to compel arbitration and dismissing plaintiffs case.

Section 682.03(1), Florida Statutes, states:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.03(1). Florida courts have determined that this statute requires an expedited evidentiary hearing if a substantial disputed issue exists concerning the making of the agreement. Linden v. Auto Trend, Inc., 923 So.2d 1281, 1282 (Fla. 4th DCA 2006) (citing Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 129 (Fla. 4th DCA 1982)). Such a hearing is mandatory in nature. Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532 (Fla. 2d DCA 2005).

Here, plaintiff demonstrated through her written response in opposition to the motion to compel and her arguments at the non-evidentiary hearing on the motion that she disputed the “making of’ the arbitration agreement. The trial court implicitly acknowledged that there were issues in dispute regarding the making of the Agreement and “retain[ed] jurisdiction to reconsider the dismissal of th[e] case pending the development of sufficient grounds during the arbitration process.” The court, however, was required by statute to conduct an evidentiary hearing to resolve the disputed issues before sending the case to arbitration. We therefore reverse the trial court’s order compelling arbitration and remand for an evidentiary hearing. On remand, if, after holding an evidentiary hearing, the court decides to grant the defendant’s motion to compel arbitration, it should stay rather than dismiss the plaintiffs case. See Liberty Commc’ns, Inc. v. MCI Telecommunications Corp., 733 So.2d 571, 573 (Fla. 5th DCA 1999) (holding that when an order for arbitration is entered, the cause should be stayed rather than dismissed).

Reversed and Remanded.

STEVENSON and MAY, JJ, concur.