author: JACOBUS, J.

text:
    Robert JORDAN, Linnie Jordan, et al., Appellants, v. ST. JOHNS COUNTY, et al., Appellee.
    Nos. 5D09-2183, 5D09-4378, 5D09-4379.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Rehearing Denied June 22, 2011.

      Thomas E. Warner and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for Appellants.
    Stephen B. Gallagher, Robert H. Stur-gess and Stella J. Lane of Marks Gray, P.A., Jacksonville, and Patrick F. McCor-mack, St. Augustine, for Appellee.
   JACOBUS, J.

The Appellants all own parcels of real property in Summer Haven, a subdivision located on a barrier island just south of the Matanzas Inlet. The only vehicle access to Summer Haven is by a county-owned road known as Old A1A. The underlying complaint centered around allegations that the Appellee, St. Johns County, failed to adequately maintain Old A1A. In this appeal, the Appellant property owners challenge the final summary judgments entered in favor of the Appellee County. For reasons we will explain, we affirm in part and reverse in part.

By way of background, in 1960 the State of Florida rerouted State Highway A1A approximately 800 feet to the west of its original location. The original shorefront roadway naturally became known as Old A1A. The state deeded the road to St. Johns County in 1979, together with the accompanying right-of-way. The 1.6-mile stretch of road was bordered on the east by the Atlantic Ocean and on the west by the Intracoastal Waterway. When the County took title to Old A1A, there were already a few beachfront homes and several platted lots abutting the road. The parcels ran from Block 3 in the north to Block 65 in the south. The County issued a number of building permits over the years, and several additional beachfront homes were built. Old A1A stood between the beachfront lots and the ocean, and it served as the only means of vehicular access to those parcels of property, which together came to be known as the Summer Haven subdivision.

Old A1A is subject to repeated damage from natural forces such as storms and erosion, which makes the road difficult to maintain. A group of Summer Haven property owners filed suit against the County, seeking relief for what they viewed as the County’s intentional failure to maintain the road in useable condition. Count I of the fourth amended complaint was for declaratory relief and sought a determination of whether the County had a duty to maintain the road. Count II requested a permanent injunction compelling the County to maintain the road at a certain level. Count III claimed inverse condemnation for the diminished access to Summer Haven. Counts IV and V, respectively, contained claims for declaratory relief and inverse condemnation based on a county ordinance that placed a temporary moratorium on the issuance of residential building permits for Summer Haven.

The County filed a counterclaim seeking a declaration that the County had the sole authority and discretion to determine what constituted reasonable road maintenance. In addition, the County filed a third-party complaint to ensure that all Summer Haven property owners were joined in the suit with the original group of plaintiff-owners. The third-party complaint contained five counts for declaratory relief, which roughly corresponded to the five counts of the fourth amended complaint.

Ultimately, the trial court entered final summary judgment in the County’s favor on all of the counts in all three pleadings. The Appellant property owners collectively challenge those three judgments in this consolidated appeal. We conclude that summary judgment was improvidently entered on Counts I and III of the fourth amended complaint.

We reverse the summary judgments on Counts I and III of the fourth amended complaint because we believe the trial court’s decision went too far. With regard to Count I, the trial court effectively held that the County had no duty to repair or restore Old A1A, except in its absolute discretion. This is basically the County’s position on appeal. The Appellants, on the other hand, argue that the County has a duty to repair and maintain its roads in “good order,” and that it has failed to do so.

To resolve the matter, we turn to the reasoning of our sister court in an analogous case. In Ecological Development, Inc. v. Walton County, 558 So.2d 1069 (Fla. 1st DCA 1990), a corporation sought damages, declaratory and injunctive relief, and a writ of mandamus, based on allegations that the county refused to maintain the public roads leading to certain subdivisions. Indeed, the county voted to terminate maintenance of the roads but did not formally abandon them. The county believed that considerable maintenance problems caused by improper construction justified its decision to refuse further repairs to the roads. The First District Court held that the county had no authority, after accepting designation of a public road, to disclaim responsibility for maintenance of that road except by following the formal statutory abandonment procedures. The court noted that “ ‘Boards of County Commissioners are given plenary power and authority over the location, building, repairing, and keeping in order the public roads in their respective counties, and it is made one of their continuous duties so to locate, build, repair, and keep said roads in good order.’ Id. at 1071 (quoting with emphasis State ex rel. White v. MacGibbon, 79 Fla. 132, 84 So. 91, 91 (1920)). The court concluded:

[A] county is not obligated, nor can it be compelled, to perform or provide for any particular construction or maintenance, except such as it voluntarily assumes to do. This is far removed, however, from the notion advanced by appellee [county] that it can accept established roadways within the county, undertake to maintain the same, and later by resolution or other official action (short of abandonment) relieve itself of all duties with respect to maintenance of such roads.

Id.

The court in Ecological Development held that the corporation was entitled to a narrow declaration that the county had no authority to place a public road on a “no maintenance” status while still retaining the county right-of-way for control and use as a public road. The relief granted did “not encompass any declaration by the court with respect to the county’s exercise of its discretion regarding the frequency, quality or extent of maintenance for the roads in question.” Id. at 1072. The court also found “no basis for relief by way of injunction or writ of mandamus to compel the county to immediately resume maintenance work, or to restore the roads to their prior condition.” Id. The court declined to decide whether the corporation might be entitled to further relief under different pleadings and evidence.

The present case is distinguishable from Ecological Development in two important respects. Most importantly, the posture of the appeal is different. The judgment appealed there was entered following a bench trial, while this appeal proceeded from a summary judgment. In addition, the county there formally voted to terminate road maintenance, while the County here did not. Still, both are cases in which a county allegedly ceased maintaining a public road without following the statutory procedures for abandoning it. We highlight the distinctions to clarify the scope of our decision.

We hold that the County has a duty to reasonably maintain Old A1A as long as it is a public road dedicated to the public use. We do not hold that the County has the duty to maintain the road in a particular manner or at a particular level of accessibility. However, the County’s discretion is not absolute. The County must provide a reasonable level of maintenance that affords meaningful access, unless or until the County formally abandons the road. The summary judgment was premature because disputed issues of material fact remain regarding the level of road maintenance the County has provided and the level of maintenance it should have provided.

The entry of summary judgment on Count III of the fourth amended complaint was also improper. Count III contained a claim for inverse condemnation based on the diminished access to Summer Haven. “Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken.” Osceola County v. Best Diversified, Inc., 936 So.2d 55, 59-60 (Fla. 5th DCA 2006). As the supreme court explained:

There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property, it can be said that the property owner’s right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist.

Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989).

In this case, the Appellants argue that the County has so failed in its duty to reasonably maintain and repair Old A1A that it has effectively abandoned it, thereby depriving them of access to their property without compensation. This is a cognizable claim. We conclude that governmental inaction — in the face of an affirmative duty to act — can support a claim for inverse condemnation. Disputed issues of material fact regarding the cause and degree of the diminished access preclude summary judgment. For example, it is undisputed that natural forces have played a role in the degradation of the road and that the County has performed some level of maintenance — however, whether the level of maintenance provided has been reasonable or whether it has been so deficient as to constitute a de facto abandonment of the road remain hotly contested issues. Disputed factual issues such as these should be left to the finder of fact.

In sum, we conclude that a governmental entity has a duty to reasonably maintain its public roads. Material issues of disputed fact remain in this case regarding whether the County has fulfilled that duty or abandoned it. We therefore reverse the summary judgment entered on Counts I and III of the fourth amended complaint. As a result, the summary judgment entered on the corresponding counts, Counts II and V, of the third-party complaint is also reversed, as is the summary judgment entered on the counterclaim. These reversals do not extend to the portions of the aforementioned counts, and judgments thereon, relating the County’s duty to provide emergency services or access for emergency vehicles — no issue challenging that aspect of the summary judgments is before this court on appeal. We affirm the summary judgments entered on all of the other counts without further comment. We remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, J„ and SCHWARTZ, A., Senior Judge, concur.

      . We are mindful that Count I of the fourth amended complaint can be read as requesting far more expansive relief. We nevertheless conclude the claim is sufficient to survive summary judgment, even if the Plaintiffs ultimately may not be entitled to the full relief requested.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    TOWN OF PONCE INLET, Appellant, v. PACETTA, LLC, et al., Appellee.
    No. 5D10-1123.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Rehearing Denied June 23, 2011.
    Clifford B. Shepard, Kalanit Oded, and Virginia Cassady, of Shepard, Smith, & Cassady, P.A., Maitland, for Appellant.
    C. Allen Watts and Michael J. Woods, of Cobb Cole, P.A., Deland, for Appellee.
   LAWSON, J.

The Town of Ponce Inlet (“the Town”) appeals a final summary judgment entered in favor of Pacetta, LLC (“Pacetta”), which invalidated a town charter amendment (adopted by referendum placed on the ballot through a citizens’ initiative petition) and conforming ordinance that elevated land use restrictions already in place on Pacetta’s property to the status of immutable charter provisions, most notably barring or restricting the construction and operation of dry boat storage facilities on the property. We review the matter de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (holding that the de novo standard of review applies to a trial court’s decision to grant or deny summary final judgment); City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla.2006) (applying de novo standard of review to lower court’s determination of validity of city ordinance). Finding that summary judgment was properly entered in Pacet-ta’s favor, we affirm.

On appeal, the Town first argues that a genuine issue of material fact existed regarding the number of “parcels” affected by the charter amendment. This issue was significant because section 163.3167(12), Florida Statutes (2008), prohibits local initiatives or referenda in regard to development orders or comprehensive amendments affecting five or fewer “parcels,” as defined by section 163.3164(16). Cf. Preserve Palm Beach Political Action Comm. v. Town of Palm Beach, 50 So.Sd 1176, 1179 (Fla. 4th DCA 2010) (“The right of the people to vote on issues they are entitled to vote on is one of utmost importance in our democratic system of government. But there are issues — such as the right of a small landowner to use his property subject only to government regulations — which should not be determined by popular vote. Section 163.3167(12) rightfully protects the small landowner from having to submit her development plans to the general public and ensures that those plans will be approved or not, instead, by the elected officials of the municipality in a quasi-judicial process.”).

Although the number of parcels involved an issue of fact, Pacetta submitted uncon-troverted evidence that its land constituted a single parcel as defined in the Growth Management Act. Section 163.3164(16), Florida Statutes (2008), defines “parcel of land” as:

[A]ny quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which is designated by its owner or developer as land to be used, or developed as, a unit or which has been used or developed as a unit.

In support of its summary judgment motion, Pacetta filed an affidavit, a deposition with exhibits, and sworn testimony from a hearing. Together, these clearly show that although the land was originally owned in smaller tracts by various prior owners, Pacetta purchased these tracts, which together comprised contiguous holdings of over sixteen acres, on which it sought to build a single, planned mixed-use development. The various deeds, legal descriptions and drawings submitted with the sworn testimony conclusively demonstrate that Pacetta’s land was “capable of being described with such definiteness that its locations and boundaries can be established.” The submissions also established, without contradiction, that the land had been “designated by its owner,” Pacetta, “as land to be used, or developed as, a unit.”

The Town argues, first, that the trial court should have looked only at the prior or existing uses of the property (i.e., whether it had been developed as a unit in the past); second, that Pacetta could not establish that it had designated the land to be used for its stated purpose because it had not yet applied to the Town for permits to construct the development; and, third, that a mixed-use development cannot qualify as a “parcel of land” because of its multiple intended uses. We reject these arguments as inconsistent with the plain language of the statute. Section 163.3164(16) plainly defines “parcel” to include land “to be used, or developed, as a unit.” This language clearly contemplates consideration of a planned future use of the property, does not require that the owner file applications as a prerequisite to establishing its intended use of the property, and in no way limits the development “unit” to single uses.

Because the evidence was uncontrovert-ed that the citizens’ initiative referendum affected five or fewer parcels, the trial court correctly determined that the referendum violated section 163.3167(12), and declared it invalid. With respect to the ordinance conforming the comprehensive plan to the referendum, it only makes sense to hold the ordinance invalid as well — as this would be the only way to give effect to section 163.3167(12). In reaching this conclusion, we have considered and rejected the Town’s argument that even if the referendum is declared invalid, the court is powerless to invalidate a legislative action of the board under the “fairly debatable” standard typically applicable to this type of board action. See Martin County v. Yusem, 690 So.2d 1288, 1294 (Fla.1997) (holding that “amendments to a comprehensive plan are legislative decisions subject to the fairly debatable rule”). This case is distinguishable from Yusem, which involved a governing board’s routine exercise of its normally broad discretion in enacting legislation. Here, the Board was taking the only course of action which appeared open to it by adopting a comprehensive plan amendment that mirrored the referendum enacted by the electorate. The Board had nothing to debate, and its perfunctory action in adopting the ordinance does not merit the deference that would be afforded to a board’s legislative determination that one of multiple available courses of action would best serve the needs of the public.

Finally, we note that although the trial court found the referendum and ordinance invalid on other grounds as well, we need not reach any other issue having found that summary judgment was properly entered — and the referendum and ordinance were properly held invalid — based on the application of section 163.3167(12).

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.

      . The ordinance amended the Town's comprehensive plan ("comp plan”), to include the land use restrictions adopted by the electorate in the referendum.

      . This statute is part of Florida's "Growth Management Act,” chapter 163, Florida Statutes (2008), a comprehensive scheme governing land use regulation originally adopted as chapter 85-55, Laws of Florida.

      . As we understand this argument, an owner who planned to build a ten-acre single-use multifamily residential development (e.g., apartment buildings) could count the development as a "unit” because it involves only one "use.” However, if the owner planned to use the same ten acres to construct a development that combined single-family and multifamily dwellings with restaurants and shops, the owner would have to count each "use” as a separate "unit” of development.

      . We also note that Pacetta had been working successfully with the Town to secure comprehensive plan amendments that would have fully accommodated its planned mixed-use development, until that effort was thwarted by the citizens' initiative referendum. It would not have made sense for Pacetta to apply for approvals to build a development that it recognized to be inconsistent with elements of the existing comprehensive plan. Additionally, the Town had a building moratorium in effect at the time that would have independently served as a basis for denial of any permits for construction of Pacetta's planned development.

      . The uncontroverted evidence established that part of the referendum affected only Pa-cetta’s land and that another section affected only Pacetta’s land and two other parcels.


author: COHEN, J.

text:
    Kimberly POE, Appellant, v. Kurtis POE, Appellee.
    No. 5D10-1926.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.

      Linda Drew Kingston, Apopka, for Appellant.
    Lindsay C.T. Holt of Williams, Smith & Summers, P.A., Tavares, for Appellee.
   COHEN, J.

Kimberly Poe, former wife, appeals the granting of former husband’s supplemental petition for modification which reduced his child support obligation for the parties’ three minor children. She argues that the trial court erred in finding a substantial change in circumstances, failing to impute income to former husband, and imputing income to her.

To justify a modification of child support, a movant must show: (1) a substantial change in circumstances, (2) the change was not contemplated at the time of the divorce judgment, and (3) the change is sufficient, material, involuntary, and permanent. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). “[A] showing of permanent change requires proof that the change is not temporary or transient, but rather encompasses an extended period of time.” Bennett v. Dep’t. of Revenue on Behalf of Bennett, 664 So.2d 33, 34 (Fla. 5th DCA1995).

In this case, the parties disputed whether former husband’s layoff from his job was an unanticipated change in circumstances. Former wife testified that the layoff occurred the day before the parties signed their marital settlement agreement and, therefore, did not constitute an unanticipated change of circumstances warranting modification of his child support. Former husband testified he was laid off approximately one month after signing the marital settlement agreement. The president of the company where former husband had worked testified he was laid off on a date preceding the signing of the agreement.

Given the choice between the disinterested company president or the interested party, the trial court chose to accept the former husband’s testimony. The credibility of witnesses is within the trial court’s exclusive purview. Maliski v. Maliski, 664 So.2d 341, 343 (Fla. 5th DCA 1995). Having found that the change in circumstances was not contemplated when former husband executed the marital settlement agreement, the tidal court concluded that former husband met his burden of showing a substantial change of circumstances, and we find no abuse of discretion in the trial court’s conclusion.

Likewise, we find no error in the trial court’s failure to impute income to former husband based on loans from his parents. The testimony reflected these loans were not intended to be continuing and ongoing, but only temporary in nature. See Vorcheimer v. Vorcheimer, 780 So.2d 1018, 1019 (Fla. 4th DCA 2001).

We do, however, conclude that the trial court erred in imputing income to former wife. While former wife testified as to her previous year’s income, she also uncontrovertedly testified that she no longer was earning that amount, in part because she was receiving fewer hours as a substitute teacher. Former wife’s prior year’s tax return did not refute this testimony.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

TORPY and LAWSON, JJ., concur.

      . This was one of three jobs former wife was working to support the household, in contrast with former husband’s unemployment.


author: PER CURIAM.

text:
    Bruce GUARDADO, Appellant, v. ALLSTATE PAVING, INC. and FFVA Mutual Insurance Company, Appellees.
    No. 1D10-6320.
    District Court of Appeal of Florida, First District.
    May 20, 2011.
    Rehearing Denied June 21, 2011.
    Laurie Thrower Miles of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Brad T. Kandzer of Fulmer, Leroy, Albee, Baumann, PLC, Tampa, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Punsky v. Clay County Bd. of County Com’rs, 60 So.3d 1088,-(Fla. 1st DCA 2011).

WETHERELL, ROWE, and MARSTILLER, JJ., concur.


text:
    Douglas J. KONZ, Appellant, v. Patricia KONZ, Appellee.
    No. 4D09-4454.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied July 14, 2011.
    Troy W. Klein, West Palm Beach, for appellant.
    Ronald K. Lantz, North Palm Beach, for appellee.
   PER CURIAM.

We reverse the final judgment of dissolution in part and remand to the circuit court for recalculation of the equitable distribution.

The parties were married on November 17, 2001. At the time of the marriage, the husband owned a home which he said had a fair market value of $380,000, with a $25,000 mortgage. During the marriage, the couple demolished the home and paid off the mortgage. They built a new home on the same lot. There was no evidence that the husband used nonmarital assets to construct the new home and pay off the mortgage. The circuit court accepted the husband’s testimony that the fair market value of the home was $520,000. On the new home, there was a first mortgage of $168,000 and a second mortgage/line of credit of $224,900. During the marriage, income earned by the husband was the couple’s only source of income, so that marital income was used to pay the mortgages. The house and the first mortgage were solely in the husband’s name, but the wife was obligated on the line of credit. In the final judgment, the circuit court treated the entire home as a marital asset and equally divided the equity. The court found “insufficient evidence presented to establish any pre-marital value to the [hjusband.”

On appeal, the husband argues that the trial court incorrectly failed to award him a portion of the value of the marital residence as a nonmarital asset. We disagree. The burden of proof was on the husband to establish the value of the non-marital portion of the marital home. See Jahnke v. Jahnlce, 804 So.2d 513, 517 (Fla. 3d DCA 2001); Smith v. Smith, 971 So.2d 191, 193 (Fla. 1st DCA 2007) (stating that “the spouse trying to show that the marital residence acquired during the marriage is a nonmarital asset” has the burden of proof). The 2001 value of $380,000 was for a house on a lot. The house was torn down, so it was lost in a way that produced no return. There was no evidence to establish the value of the lot alone in 2001, which would have qualified as the nonmari-tal portion of the value of the marital home. This failure to prove the nonmari-tal value of the lot distinguishes this case from Oldham v. Oldham, 683 So.2d 579, 580 (Fla. 4th DCA 1996), where the $225,000 nonmarital value of a lot was established by evidence and then deducted from the proceeds of the sale of the marital home, which were equally divided.

We agree, however, with the husband that the trial court’s valuation of a house owned by Chris and Nancy Vaughn was not supported by competent, substantial evidence. The court found that the property was encumbered by a $145,000 mortgage; the only evidence at trial was that the mortgage had a current balance of $105,000.

Finally, the final judgment failed to sufficiently identify and equitably distribute certain marital assets and liabilities that were covered in the evidence: (1) the $200,000 debt owed by Chris and Nancy Vaughn to the parties, and (2) the Trailblazer and Yukon Denali vehicles. Although the court made the husband responsible for the mortgages on the marital home, it failed to assign a value to these marital liabilities. Also, the court failed to rule on the partition issue and failed to determine the percentage of the husband’s interest on the Vaughns’ house which is represented by his name on the warranty deed. On remand, the circuit court shall correct the deficiencies identified in this opinion and reconsider the equitable distribution. We find no reversible error in the trial court’s imputation of income to the husband.

Reversed in part, affirmed in part.

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Sandra Jo GULDEN, Appellee.
    No. 4D10-955.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d —, 2011 WL 2135646 (Fla. 4th DCA 2011).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    Anthony J. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4387.
    District Court of Appeal of Florida, First District.
    June 2, 2011.
    Anthony J. Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Anthony J. Davis challenges an amendment to his judgment and sentence for circuit court case number 03-166. By this amendment of July 23, 2010, the trial court reduced the amount of jail credit awarded by the original judgment and sentence of June 19, 2009. We have repeatedly held that jail credit cannot be rescinded after it has been awarded, even if the credit was awarded in error. See Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004), Palmer v. State, 22 So.3d 795 (Fla. 1st DCA 2009), and Session v. State, 37 So.3d 873 (Fla. 1st DCA 2010). Accordingly, we reverse and remand for entry of a judgment and sentence reflecting the original award of jail credit. In other respects, the amended judgment and sentence is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Kyle Warren FIKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3465.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

The issue in this appeal is whether Kyle Warren Fike’s Michigan conviction qualifies as a “violation of a similar law of another jurisdiction” under section 775.21(4)(a)l.b., Florida Statutes (2009), such that he could be designated a sexual predator. Reluctantly, we conclude it cannot.

This is Fike’s second appeal to this court. In his first appeal, this court reversed his convictions for sexual battery and two counts of lewd or lascivious molestation on his eleven-year-old daughter because the trial court erred in admitting evidence that Fike forced his former brother-in-law to perform oral sex on him when the boy was between three and seven years old. See Fike v. State, 4 So.3d 734 (Fla. 5th DCA 2009). On remand, Fike pled nolo contendere to one count of lewd or lascivious conduct. After accepting the plea and sentencing him, the trial court designated Fike a sexual predator based on his prior Michigan conviction for assault with intent to commit criminal sexual conduct involving penetration, in violation of MCL 750.520g(l).

Sexual predator designation is governed by section 775.21(4)(a)l.b. and requires a qualifying current felony conviction, which the parties concede was met when Fike pled to lewd or lascivious conduct — a violation of section 800.04, Florida Statutes. It also requires a qualifying prior conviction. A prior conviction qualifies when a defendant

has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent or guardian; s. 794.011, excluding s. 794.011(1), excluding 794.011(10); s. 794.05; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; or s. 985.701(1); or a violation of a similar law of another jurisdiction;

§ 775.21(4)(a)l.b.

What constitutes a “violation of a similar law of another jurisdiction” has not been addressed in the context of sexual predator designation. In the context of sentencing, however, the supreme court has required the elements of the out-of-state conviction be similar to those of a Florida statute. See Dautel v. State, 658 So.2d 88, 89 (Fla.1995); Forehand v. State, 537 So.2d 103, 104 (Fla.1989). While these decisions are persuasive, we do not find them to be binding because being designated a sexual predator does not implicate the same considerations or concerns involved in sentencing. Sexual predator designation is not a punishment, only a status. See § 775.21(d).

The meaning of “violation of a similar law of another jurisdiction” need not be fully defined or explored because Fike’s Michigan conviction does not qualify him for sexual predator designation. The assertion that the lewd or lascivious offenses listed in section 800.04 are similar is unpersuasive because these offenses require proof the victim was younger than sixteen years old. MCL 720.520g does not and, therefore, it is not a similar law. Consequently, we conclude that Fike did not qualify for sexual predator designation and the designation must be reversed.

REVERSED.

MONACO, C.J. and EVANDER, J„ concur.

      . The trial court's written order found Fike's prior conviction was a violation of MCL 750.520g(2), assault with intent to commit criminal sexual conduct in the second degree. Based on this court’s conclusion, we note, but do not need to address, this discrepancy.

      . The elements of an assault with the intent to commit criminal sexual conduct involving penetration are 1) assault; 2) intentionally touching the victim’s genital area, groin, inner thigh, buttock, breast, or the clothing immediately covering these parts; 3) the touching was done for sexual arousal, sexual gratification, a sexual purpose or in a sexual manner to exact revenge, humiliate, or out of anger; and 4) sexual intercourse (vaginal or anal), oral sex, or any other intrusion of a body part into the "genital or anal openings” of another. See MCL 750.520a(r), 750.520g(l); People v. Nickens, 470 Mich. 622, 685 N.W.2d 657, 661 (2004).


text:
    Michele A. PATRIZI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1159.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Michele A. Patrizi, Ocala, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2010-CF-001599, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Richard Berthold NILSEN, husband, Appellant, v. Candice Ann (Greenwell) NILSEN, wife, Appellee.
    No. 1D11-610.
    District Court of Appeal of Florida, First District.
    June 8, 2011.

      Ken W. Davis, Tallahassee; Richard W. Ervin, III of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Anthony L. Bajoczky and Christopher B. Norris of Bajoczky, Fournier & Norris, Tallahassee, for Appellee.
   PER CURIAM.

Richard Berthold Nilsen, the Husband, appeals a non-final order establishing temporary alimony and child support to be paid to Candice Ann (Greenwell) Nilsen, the Wife. The Husband argues that the child support award is invalid because it does not comply with the requirement of section 61.30, Florida Statutes (2010), that a trial court provide an explanation for why the guideline amount would be unjust or inappropriate. He also argues that the total support award is defective because it is not supported by competent, substantial evidence of his ability to pay. We agree that the trial court reversibly erred with respect to the child support guidelines, but we conclude that the Husband has not shown preserved, reversible error as to the finding that he has an ability to pay the amounts ordered. As a result, we affirm in part and reverse in part.

Following a hearing on the Wife’s Motion for Temporary Relief, the trial court ordered the Husband to pay $5,000 per month in support, plus additional expenses, without determining his income. The $5,000 support award was labeled as alimony in the Order on Motion for Temporary Relief, but the record reveals that this amount was intended as an unallocated award consisting of both alimony and child support. The trial court verbally acknowledged that it did not “allocate[] between alimony and child support.” In the order, the court noted that it was “difficult in this particular case to compute temporary guidelines child support.” Based on these statements and the lack of an express allocation in the order, we conclude that the trial court failed to state the amount it was ordering for child support.

A support award that fails to differentiate between child support and alimony is improper because it renders the appellate court unable to determine whether the trial court applied the statutory child support guidelines set forth in section 61.30. Blum v. Blum, 769 So.2d 1142, 1143 (Fla. 4th DCA 2000). Those guidelines must be applied, even for temporary support purposes. Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993). In this case, it is clear that the trial court failed to give sufficient consideration to the guidelines not only because it failed to state the amount of the award that was intended as child support, but also because it failed to calculate the Husband’s income. See Blum, 769 So.2d at 1143. Although the trial court may ultimately determine that the guideline amount is unjust or inappropriate, to make this finding the court must calculate what the guideline amount is. See § 61.30(l)(a) (“The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.”). This determination begins with a calculation of the parties’ incomes. § 61.30(2); see Shaw v. Nelson, 4 So.3d 740, 743 (Fla. 1st DCA 2009) (“In calculating child support, a trial court must determine each parent’s income.”). Because the trial court failed to give sufficient consideration to the guidelines, we must reverse this aspect of the order.

The Husband also contends that there is insufficient evidence that he has the ability to pay the total amount of support ordered. We disagree. The record reveals substantial capital assets, including an unencumbered second home in Weston, Florida, which is valued at approximately $7 million. The Husband currently has the Weston home listed for sale and has received an offer to purchase it for $7 million. As a general rule, capital assets may be considered when determining a spouse’s ability to pay alimony. See Chastain v. Chastain, 73 So.2d 66, 68 (Fla.1954). Nevertheless, the Husband argues that under the facts of this case he should not be required to sell the Weston home to support his wife and children. This specific argument was not preserved for review, even though the trial court suggested on more than one occasion that the Husband may have to sell the Weston home for this purpose. Although the husband generally maintained that he had no ability to pay, he did not respond to the specific points about the option to sell the Weston home. As a result, the argument that he should not be expected to sell that home cannot be considered on appeal. See Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987) (In order to preserve an issue for appellate l’eview, the specific legal argument or ground upon which it is based must be presented to the trial court.). When the evidence concerning the Weston home is considered, there is ample evidence that the Husband has the ability to pay the amounts of support ordered on a temporary basis.

For the foregoing reasons, we reverse the temporary order as to child support and affirm as to the finding of ability to pay. The case is remanded for reconsideration of the amount of temporary child support in light of the guidelines.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Thomas LAWS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2254.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Thomas Laws, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We conclude that there has been no unreasonable delay in disposition of the pending motion for postconviction relief. Accordingly, the petition for writ of mandamus is denied. See Turner v. McNeil, 46 So.Sd 99 (Fla. 1st DCA 2010).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    David B. BILLENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1251.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    David B. Billens, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. All pending motions are denied as moot.

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


text:
    Ervin James FINDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6547.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s order revoking probation, lifting a previous suspension of sentence, and sentencing the appellant to 36 months in prison. We remand this case to the trial court, however, to enter a corrected revocation order reflecting that at the violation hearing, the appellant admitted violating only Conditions (3) and (11) and then entered a plea of nolo con-tendere accordingly. Because the entry of the corrected order is merely a ministerial act, the appellant need not be present. See Enno v. State, 59 So.3d 149 (Fla. 1st DCA 2011); Stokes v. State, 1 So.3d 1141, 1142 (Fla. 1st DCA 2009).

AFFIRMED and REMANDED for entry of a corrected order.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Miracle SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5117.
    District Court of Appeal of Florida, First District.
    June 8, 2011.

      Miracle Sanders, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Miracle L. Sanders is hereby afforded belated appeal from judgment and sentence in Escambia County case number 2009 CF-004965 B. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Fitzroy BURTON, Appellee.
    No. 1D10-2969.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee; Donna G. Thurson, Assistant State Attorney, Jacksonville, for Appellant.
    James P. Hill, Jacksonville, for Appellee.
   PER CURIAM.

The State appeals the trial court’s summary grant of Fitzroy Burton’s Motion to Set Aside Conviction and Withdraw Plea pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the trial court erred in summarily granting Burton’s motion, and therefore, reverse and remand for further proceedings.

■ In his post-conviction motion, Burton asserted that his plea was not knowing and voluntary because his counsel failed to advise him that because he was not a United States citizen, his plea could subject him to deportation. In support of his motion, Burton cited the transcript of his plea colloquy which included no discussion of Burton’s citizenship or naturalization status or of the possibility that his plea might subject him to deportation.

Based on Burton’s motion and the record before it, the trial court summarily granted Burton’s motion. This was error. Burton’s motion was facially insufficient because he failed to allege an essential element necessary to entitle him to relief: namely that he would not have entered the plea if advised that it could result in deportation. State v. Green, 944 So.2d 208, 218 (Fla.2006). Because Burton’s motion is facially insufficient, on remand he should be granted leave to amend his motion within a reasonable time, if he can do so in good faith. See Spera v. State, 971 So.2d 754 (Fla.2007).

However, even if Burton is able to present a facially sufficient motion, the trial court may summarily deny the motion if it can attach documents that conclusively refute his entitlement to relief. See, e.g., Green, 944 So.2d at 219; State v. Gonzalez, 787 So.2d 917 (Fla. 3d DCA 2001) (reversing trial court’s summary grant of post-conviction relief where “defendant was not prejudiced by trial court’s failure to specifically inform him that his plea may subject him to deportation” where the plea agreement provided this information, defendant read the agreement, and trial court during plea colloquy established that defendant entered into plea freely and with understanding of plea agreement); Joseph v. State, 782 So.2d 895, 896 (Fla. 2d DCA 2001) (“A plea form containing the deportation warning together with record documentation that the defendant has intelligently consumed the written information contained on the form and understood it is ... sufficient [to conclusively refute the claim].”). If, on the other hand, the trial court is unable to attach portions of the record which conclusively refute his claims, Burton must receive an evidentiary hearing. Green, 944 So.2d at 219.

REVERSED and REMANDED.

WOLF, PADOVANO, and ROWE, JJ, concur.


author: HAZOURI, J.

text:
    A.L.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2278.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.

      Carey Haughwout, Public Defender, Patrick Delaney and Patrick B. Burke, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, A.L.T., was charged by way of a juvenile petition with two counts: (1) burglary of a residence; and (2) grand theft. The defense filed a motion to suppress the victim’s driver’s license and A.L.T.’s confession, contending that the search exceeded A.L.T.’s scope of consent. The trial court denied the motion, finding the issue dispositive, and A.L.T. appealed. We agree that the search exceeded A.L.T.’s scope of consent and reverse.

On May 30, 2009, Officer Travis Mandell of the Fort Lauderdale Police Department observed A.L.T. sitting on a bicycle. A Fort Lauderdale city ordinance requires that residents register their bicycles, and there is typically a red and white marking beneath the bicycle’s seat indicating registration. As Officer Mandell did not see the marking on the bicycle, he approached A.L.T. for questioning.

Officer Mandell asked A.L.T. specifically if he could “search him for weapons or drugs.” A.L.T. responded: “[Tjhat’s fine, I don’t mind.” Officer Mandell proceeded to search A.L.T. and removed a wallet from A.L.T.’s rear pocket, taking it to the other side of his police cruiser to search through. Explaining his rationale for removing the wallet, Officer Mandell stated that “narcotics can commonly be found within the billfold, underneath, and in front of the wallet.” Upon opening it, Officer Mandell found a Florida identification card belonging to an elderly female, a condom, and a picture of a young woman.

Officer Mandell then asked A.L.T. why he was carrying the identification card. A.L.T. claimed he found the wallet and was planning on returning it, but was afraid of being “hassled” by the owner because he had spent forty dollars within it. Officer Mandell had another officer perform a records check on the address shown on the identification card and learned a burglary had occurred at the residence six days prior. After approximately thirty minutes, Officer Mandell allowed A.L.T. to leave.

Officer Mandell then turned the investigation over to Detective Sean Reddish who issued a probable cause affidavit and a BOLO for A.L.T.’s arrest. Officer Man-dell located A.L.T., placed him under arrest, and transported him to the station where he was interviewed by Detective Reddish. Before the interview began, Detective Reddish read A.L.T. his Miranda rights. A.L.T. waived his rights and agreed to speak to Detective Reddish without an attorney present. During the interview, A.L.T. confessed to the burglary.

A.L.T. was charged with burglary of a residence and grand theft and moved to suppress the victim’s driver’s license and his confession. The trial court denied the motion. Thereafter, A.L.T. pled no contest to the burglary charge, reserving the right to appeal the denial of his motion to suppress.

“ ‘The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.’ ” Jean v. State, 987 So.2d 196, 197 (Fla. 4th DCA 2008) (citations omitted). Accordingly, a suppression order that turns on an issue of law is reviewed de novo. See, e.g., Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000).

“The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). Courts approve of consensual searches because it is “reasonable for the police to conduct a search once they have been permitted to do so.” Id. at 251, 111 S.Ct. 1801 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “The standard for measuring the scope of a consent under the fourth amendment is objective reasonableness-what the typical, reasonable person would have understood the exchange of words, under the circumstances, to mean.” Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005). “There is no bright-line test for determining the scope of consent to a warrantless search. Such a determination is made on a case-by-case basis.” Id. (citation omitted).

The trial court erred in denying A.L.T.’s motion to suppress because Officer Mandell exceeded the scope of consent.

Even if it is determined that the consent of the defendant or another authorized person was “voluntary” within the meaning of Schneckloth, it does not necessarily follow that evidence found in an ensuing search will be admissible. When the police are relying upon consent as the basis for their warrantless search, they have no more authority than they have apparently been given by the consent. It is thus important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.... As the Supreme Court concluded in Florida v. Jimeno, the standard is “that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?”

4 Wayne R. LaFave, SEARCH and SeizuRE § 8.1(c) (4th ed. 2010) (internal footnotes omitted).

The State cites Aponte v. State, 855 So.2d 148 (Fla. 5th DCA 2003), for the proposition that once a police officer has been given a general consent to search one’s person, the officer may seize objects found in that person’s pocket, and if they consist of closed containers, the officer may open them. However, Aponte is distinguishable from the instant case. A.L.T. consented to a search of his person for weapons and drugs; he did not give a general consent to search. Despite this, Officer Mandell removed A.L.T.’s wallet, rifled through the contents, and examined a photograph, condom, and identification card. This exceeded A.L.T.’s consent: all three items were neither weapons nor drugs and should not have been inspected.

Thus, Officer Mandell exceeded the scope of A.L.T.’s consent. The “typical, reasonable person” would have understood his agreement to a search for weapons and drugs to constitute just that: a search for weapons and drugs, not an open invitation to remove all of the contents from one’s wallet. See Allen, 909 So.2d at 438. Accordingly, we reverse the denial of A.L.T.’s motion to suppress and direct the trial court to vacate the disposition order.

Reversed and Remanded.

GROSS, C.J., and CIKLIN, J., concur.

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


author: DAMOORGIAN, J.

text:
    Robert S. McLEOD, Appellant, v. Marvin Adam BANKIER, an individual, Scott Allen Elk, an individual, Eric Christu, an individual, and Elk Bankier Christu, P.A., Appellees.
    No. 4D10-37.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Rehearing Denied July 14, 2011.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, and G. Ware Cornell, Jr., of Cornell & Associates, P.A., Weston, for appellant.
    Robert M. Klein, Houston S. Park and Jeanette A. Bellon of Klein Glasser Park Lowe & Pelstring, P.L., Fort Lauderdale, for appellees, Marvin Adam Bankier, Eric Christu and Elk Bankier Christu, P.A.

      . Scott Allen Elk, a third named partner, was dismissed due to his lack of representation of McLeod and he is not involved in this appeal.

   DAMOORGIAN, J.

Robert McLeod timely appeals the final summary judgment in favor of Marvin Adam Bankier, Eric Christu, and Elk Bankier Christu, P.A. (collectively “Elk Bankier”). We affirm because, as a matter of law, the trial court correctly determined that the applicable statute of limitations had expired before McLeod brought suit for legal malpractice against his former attorneys.

The following recitation constitutes the undisputed material facts upon which the trial court relied in reaching its conclusion. In 1998, McLeod hired attorney Thomas Tew to represent him in a claim against Fidelity Investments (“Fidelity”) for executing a wrongful margin call on his securities account, which resulted in the liquidation of his account. That case was ultimately settled, and the settlement agreement contained a general release in favor of Fidelity. Although not set forth in the settlement agreement, it was McLeod’s understanding that his account balance would be restored to the status quo ante. When that did not occur, he began to express concerns to Tew that Fidelity had not returned the funds to his account. The funds were never returned, and, in March of 2000, Tew severed his representation of McLeod.

In December 2002, McLeod hired Elk Bankier to file a claim against Fidelity through the National Association of Securities Dealers (“NASD”). McLeod did not retain Elk Bankier to pursue a legal malpractice claim against Tew. Elk Bankier filed McLeod’s claim through the NASD’s arbitration process. In November 2003, the arbitration panel ruled in favor of Fidelity and against McLeod, dismissing McLeod’s claim. Thereafter, Elk Bankier raised the possibility of McLeod suing Tew on a theory of professional negligence based on Tew’s recommendation that McLeod sign the settlement agreement with Fidelity. The firm referred McLeod to another attorney who specialized in legal malpractice. That attorney advised McLeod that he had no valid claim against his former legal counsel. In February 2004, Elk Bankier ceased to represent McLeod.

In 2004, McLeod sought the legal services of attorney William Isenberg to continue pursuing his claim against Fidelity. Attorney Isenberg recommended pursuing a legal malpractice claim against Tew rather than pursuing an appeal of the NASD arbitration panel’s ruling. McLeod ignored attorney Isenberg’s advice and took no action against any of his former attorneys until his filing of the malpractice action against Elk Bankier in January of 2008.

In his complaint, McLeod alleged that Elk Bankier negligently allowed the two-year statute of limitations to expire on his legal malpractice claim against Tew. In its motion for summary judgment, Elk Bankier argued, among other things, that the two-year statute of limitations on McLeod’s claim against Tew began to run on the date Tew terminated his relationship with McLeod (2000), but certainly no later than the date of the adverse NASD arbitration decision (2003). Accordingly, even under the most liberal application of the facts, McLeod had until November of 2005 to file an action against Tew.

Our standard of review on orders granting summary judgment is de novo. Furtado v. Yun Chung Law, 51 So.3d 1269, 1273 (Fla. 4th DCA 2011). Summary judgment should be granted ‘ “only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.’ ” Id. at 1274 (quoting Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004)).

The statute of limitations governing legal malpractice actions is section 95.11(4)(a), Florida Statutes (2008). See Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla.1990). Section 95.11(4)(a), provides in pertinent part:

(4) WITHIN TWO YEARS.—
(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

For purposes of determining when the limitations period begins to run, section 95.031(1), Florida Statutes (2008), provides that “[a] cause of action accrues when the last element constituting the cause of action occurs.”

A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client. Law Office of David J. Stern, P.A. v. Sec. Natl. Servicing Corp., 969 So.2d 962, 966 (Fla.2007) (citing Kates v. Robinson, 786 So.2d 61, 64 (Fla. 4th DCA 2001)).

The Florida Supreme Court recognized that “[gjenerally, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should know of either the injury or the negligent act.” Peat, Marwick, 565 So.2d at 1325; Glucksman v. Persol N. Am., Inc., 813 So.2d 122, 125 (Fla. 4th DCA 2002).

This case presents three possible scenarios, any one of which results in McLeod’s claim for legal malpractice against Elk Bankier being barred. Under the first scenario, if the claim against Tew accrued at the point when he advised McLeod he was no longer going to represent him (March 2000), then McLeod had two years from that date to sue Tew (March 2002). McLeod did not retain Elk Bankier until December 2002, which was beyond the two-year statute of limitations period. Fla. Stat. § 95.11(4)(a) (2008). Therefore, no malpractice claim against Elk Bankier for failure to file an action against Tew can be shown as a matter of law.

Under the second scenario, the limitations period to file an action against Tew potentially began to run in 2003 when the NASD decision became final. Under this scenario, McLeod would have had until 2005 to sue Tew, and, in fact, he was advised of his potential claim against Tew by at least two attorneys before the expiration of the limitations period in 2005. As such, any action against Elk Bankier based on its failure to commence a proceeding against Tew would have expired in 2007. McLeod did not file his action until 2008.

Finally, even if one assumes that Elk Bankier had an obligation to advise McLeod of his potential malpractice claim against Tew, despite the fact that the firm was retained solely to pursue a claim against Fidelity, McLeod’s action against Elk Bankier accrued no later than 2004, which is the latest date that McLeod was definitively advised of the potential claim against Tew. McLeod did not commence his action against Elk Bankier until almost four years later, well beyond the two-year limitations period when he knew or should have known of his claims against his former attorneys.

Affirmed.

MAY and LEVINE, JJ., concur.


author: EMAS, J.

text:
    Joel and Marcia HOCHBERG, Appellants, v. THOMAS CARTER PAINTING, INC., The Place for Tile, Inc., Karlsen Corporation, d/b/a Window Professionals and General Caulking & Coatings Co., Inc., Appellees.
    No. 3D10-2386.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.

      Vezina, Lawrence & Piscitelli, Fort Lauderdale, and Mike Piscitelli, and Emily A. Troesch, for appellants.
    Gene D. Lipscher, Jupiter; Paxton & Smith, and Michele I. Nelson, West Palm Beach; Lydecker Diaz, and Onier Llopiz, Joan Carlos Wizel and Stephanie Pider-mann; Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, and Shannon P. McKenna, Hollywood, and Hinda Klein, for appellees.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Joel and Marcia Hochberg (“the Hoch-bergs”) appeal four final summary judgment orders entered individually in favor of The Place for Tile, Inc. (“The Place for Tile”), Thomas Carter Painting, Inc. (“Thomas Carter Painting”), Karlsen Corp. d/b/a Window Professionals (“Window Professionals”), and General Caulking & Coatings, Co. (“General Caulking”) (collectively referred to as “appellees” or “subcontractors”). The trial court granted each appel-lee’s motion for summary judgment based upon its finding that the statute of limitations had expired prior to the Hochbergs filing a complaint against the appellees. We affirm.

In 2000, the Hochbergs hired a general contractor, Miller Construction Company (“Miller”), to construct their new home. Miller then hired several subcontractors, including appellees, to undertake certain aspects of the construction. Sometime in 2003 the Hochbergs attempted to move into their new home, but were unable to spend even one night because an overwhelming smell of mold in the home triggered a severe reaction in Mrs. Hochberg. The Hochbergs also discovered damp carpeting in the master bedroom. They immediately contacted Miller and hired a mold remediation company to investigate. The mold remediation company found “significant mold” and “cracking in the finishes on the walls.” Several weeks later, following a storm, the Hochbergs discovered significant water intrusion in the new home.

On November 25, 2003, the Hochbergs hired an engineer to address concerns they had with the deficiencies in the construction of the house, including the issue of water intrusion. The engineer’s preliminary report, dated February 4, 2004, identified water intrusion in several locations within the home. Shortly thereafter, the Hochbergs served Miller with a Demand for Arbitration. On March 25, 2004, they served Miller with a Supplement to Demand for Arbitration. In that Supplement, the Hochbergs alleged that Miller breached the construction contract. The Supplement alleged: “Clearly, as is evidenced by the dearth of quality in the work performed by and on behalf of the Contractor [Miller], the pool of laborers utilized for the Hochbergs’ home was not as skilled as initially represented, nor were they supervised by the Contractor to ensure that the work that was performed was in keeping with the Contract Documents.”

The Supplement delineated twenty specific items constituting construction deficiencies; the relevant items for our purposes included:

“Water intrusion into various areas of the home”;
“Improper installation and damage to marble in the Master Bedroom”;
“Improper installation and cracking of pavers and stone”;
“Stone exterior fagade and exterior stucco are cracking and delaminating”;
“Improper preparation and application of exterior paint resulting in peeling and water intrusion”;
“Water intrusion from balcony railing posts and tile installed on the exterior balconies”;
“Improper preparation and application of paint finish to exterior and interior railings and gates”;
“Improper installation of the pool deck pavers and/or inferior paver materials installed.”

On July 24, 2008, the Hochbergs filed suit for negligence and building code violations against The Place for Tile arising out of the “numerous deficiencies” in the construction of their new home, leading to water intrusion and other problems. In February of 2009, The Place for Tile filed a third-party complaint against Thomas Carter, Window Professionals, and General Caulking. The Hochbergs thereafter filed a third-party complaint against Thomas Carter Painting, Window Professionals, and General Caulking.

Under section 95.11(3)(c), Florida Statutes, (2010) “an action founded on the design, planning or construction of an improvement to real property” must be brought within four years of the later date of the owner’s actual possession, the issuance of a certificate of occupancy, or the date of completion or termination of the contract. The statute provides a tolling provision: “[W]hen the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.” Id. This tolling provision recognizes that a plaintiff must be on notice of his right to a cause of action before the limitations period commences.

The Hochbergs acknowledge that they were aware since 2003 of the water intrusion and other construction defects. The Hochbergs contend that the four-year limitations period should have been tolled until they discovered the precise nature of the defects, or more specifically, until they discovered that it was the negligence of these subcontractors which caused the defects. However, Florida law is clear that “where there is an obvious manifestation of a defect, notice will be inferred at the time of manifestation regardless of whether the plaintiff has knowledge of the exact nature of the defect.” Performing Arts Center Auth. v. Clark Constr. Grp., Inc., 789 So.2d 392, 394 (Fla. 4th DCA 2001). See also Almand Constr. Co. v. Evans, 547 So.2d 626 (Fla.1989); Kelley v. Sch. Bd. of Seminole Cnty., 435 So.2d 804 (Fla.1983); K/F Dev. & Inv. Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA 1979). The Hoehbergs’ knowledge that their newly-constructed home had suffered from water intrusion and other obvious construction defects-knowledge which they had, at the very latest, by March 25, 2004, the date of the Supplement to Demand for Arbitration — was clearly sufficient to put them on “notice of an invasion of [their] legal rights” or “of [their] right to a cause of action” against appellees. Snyder v. Wernecke, 813 So.2d 213, 216 (Fla. 4th DCA 2002). The Hoch-bergs filed suit against The Place for Tile on July 24, 2008, and thereafter against the remaining appellees. The trial court correctly determined that the claims against each of the appellees were barred by the expiration of the statute of limitations.

Affirmed.

      . The record does not establish precisely when in 2003 the Hochbergs attempted to move into the new home. However, the record establishes that, in September of 2003, the Hochbergs sent a letter to Miller pointing out deficiencies in the construction of the home, including cracks and hollow areas in parts of the floor.

      . In fact, the Hochbergs' Supplement to Demand for Arbitration asserted that "as far back as May, 2002, the Hochbergs continuously and repeatedly advised [Miller] of the items that required completion and correction.”


text:
    Felicia HOUSTON, Appellant, v. PALM BAY CONDOMINIUM, INC., and Palm Bay Towers Condominium Association, Inc., Appellees.
    No. 3D10-3297.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    McGuinness & Gonzalez and Juliana Gonzalez, for appellant.
    Kubicki Draper and Betsy E. Gallagher, Tampa; Isriel Ponzoli Keller & Simpson and Ronald P. Ponzoli, Miami, for appel-lees.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Quintero v. Golfview Club, 929 So.2d 666 (Fla. 3d DCA 2006); Walker v. Mathis, 678 So.2d 2 (Fla. 3d DCA 1996); Echazabal v. El Toro Meat Packing Corp., 506 So.2d 1100 (Fla. 3d DCA 1987); see also McCarty v. Dade Division of American Hospital Supply, 360 So.2d 436 (Fla. 3d DCA 1978).


text:
    Dayne HOOKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1048.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Karlene L. Gray, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before WELLS, SHEPHERD, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011); Manzano v. State, 27 So.3d 781 (Fla. 3d DCA 2010).


author: JACOBUS, J. SAWAYA, J.,

text:
    Javier TREVINO, Maria I. Trevino and Joel Trevino, Appellants/Cross-Appellees, v. Rita MOBLEY, etc., Appellee/Cross-Appellant.
    Nos. 5D08-2626, 5D08-3731.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Kevin D. Franz of Lane, Reese, Summers, Ennis & Perdomo, P.A., Coral Gables, and James A. Edwards and Scott J. Edwards, of Zimmerman, Kiser, and Sut-cliffe, P.A., Orlando, for Appellants/Cross-Appellees.

      Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., and David A. Paul of Paul & Perkins, PA., Orlando, for Appel-lee/Cross-Appellant.
   JACOBUS, J.

This case emanates from a tragic and fatal accident that occurred on the night of July 29, 2006. Twenty-year-old Heather Mobley was killed instantly when the Ford Escort she was driving was struck head-on by a Hummer H2. The Hummer was owned by Maria and Joel Trevino and driven by their twenty-one-year-old son, Javier Trevino. At the time of the accident, the driver of the Hummer was speeding, driving without his headlights on, and passing another vehicle in a no-passing zone.

Rita Mobley, Heather’s mother and personal representative, filed a wrongful death action against Javier Trevino and his parents, Joel and Maria. This is an appeal by the Trevinos from the final judgments that were ultimately entered in Rita Mob-ley’s favor following the jury trial. Mob-ley cross-appeals.

The Trevinos raise four issues on appeal. They argue the trial court erred by: (1) entering a directed verdict that found Javier was driving the Hummer at the time of the accident; (2) allowing the jury to award punitive damages against Javier; (8) failing to grant a remittitur of the $5 million award of noneconomic damages; and (4) failing to grant a remittitur of the $10 million awarded in punitive damages. On cross-appeal, Mobley argues the trial court erred by entering a directed verdict in favor of the Trevinos on her negligent entrustment claims.

As to the issues raised by the Trevinos, we affirm. The uncontradicted evidence established that Javier was driving the Hummer, and the directed verdict on that issue was proper. The award of punitive damages against Javier is affirmed because there was ample evidence to support the grounds for the award found by the jury and to support the amount awarded by the jury. There was also competent substantial evidence to support the noneco-nomic damages awarded. In short, we find that the issues raised by the Trevinos on appeal are without merit.

The issue on cross-appeal is a different matter. Mobley’s argument challenging the adverse directed verdict on her negligent entrustment claims is well-taken. The negligent entrustment claims were against Maria and Joel Trevino (Counts IV and V of the complaint, respectively). These claims were to be tried in a third phase of the trial, after the jury decided the issues of compensatory and punitive damages. In granting the directed verdict, the trial court found that the negligent entrustment claims were concurrent theories of liability — that is, the claims would impose no additional liability because the jury had already found Maria and Joel Trevino vicariously liable for their son’s negligence under the dangerous instrumentality doctrine (Counts II and III, respectively).

The concept relied upon by the trial court comes from Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977). The court there concluded that negligent hiring and negligent entrustment claims were properly stricken from the plaintiffs complaint. The court recognized that such claims are generally cognizable in Florida, but it cautioned that there are circumstances in which the claims will not be allowed. The court explained:

Where these theories impose no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury. The reason for this is a very practical one: Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla. 3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”
Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geet-ing’s negligence under the vicarious liability doctrine. Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants.

Id. at 1220 (citations omitted).

Clooney was decided prior to the 1999 enactment of section 324.021(9)(b)3., Florida Statutes, which limits the noneconomic damages awardable against a vehicle owner for damages caused by the negligence of a permissive user. That provision concludes with a sentence that states: “Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.” § 324.021(9)(b)3., Fla. Stat. (2006).

Before section 324.021(9)(b)3. was enacted, a vehicle owner held vicariously liable under the dangerous instrumentality doctrine was liable to the same extent as the negligent permissive driver. Imposing direct liability against the owner for negligent entrustment in that situation would not increase the owner’s liability. The situation changed with the advent of section 324.021(9)(b)3. The statute limits a vehicle owner’s exposure for vicarious liability, but it does not apply to limit the owner’s direct liability for his or her own negligence. Thus, a negligent entrustment claim could subject the owner to additional liability. The liability of an owner found directly liable for negligent entrustment would still be restricted to his or her percentage of fault under comparative negligence principles, but it would not be limited by section 324.021(9)(b)3.

In the present case, the jury awarded a total of $5 million in noneconomic damages in favor of Mobley and against Javier, Joel, and Maria Trevino. Maria and Joel’s vicarious liability was capped at $100,000 in accordance with section 324.021(9)(b)3. For the reasons just explained, Mobley’s negligent entrustment claims had the potential to increase Maria and Joel’s liability for damages. Those claims should have been allowed to proceed because they were not concurrent theories of liability.

We remain mindful of the prejudice problems pointed out in Clooney. However, there are a number of procedural mechanisms that can be used to ensure that a defendant’s past driving record is excluded from the jury’s determination of the driver’s negligence, but included in the jury’s determination of the vehicle owner’s culpability for negligent entrustment. The type of three-phase trial agreed to by the parties in the present case is just one example.

For the foregoing reasons, we affirm as to the issues raised by the Trevinos on appeal. We reverse as to the issue on cross-appeal. That is, the directed verdict entered in favor of Maria and Joel Trevino on Rita Mobley’s negligent entrustment claims is reversed and the cause remanded for a trial on those two claims. We note that, due to the procedural posture of this case, the issue of damages has already been determined. The only matter to be tried is the direct liability, if any, of Maria and Joel Trevino. If they are found directly liable for negligent entrustment, Maria and Joel Trevino’s liability will be restricted to their percentage of fault under comparative negligence principles, but it will not be . limited by section 324.021(9)(b)3.

AFFIRMED in Part; REVERSED in Part; and REMANDED with instructions.

ORFINGER, J., concurs.

SAWAYA, J., concurs specially with opinion.

SAWAYA, J.,

concurring.

This case demonstrates why the decision in Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977), should be abandoned and no longer followed by the courts in this state.

      . This figure represented $2.5 million for Rita Mobley’s past pain and suffering from losing her daughter and $2.5 million for her future pain and suffering.

      . In other words, if the jury finds Maria and Joel Trevino liable for negligent entrustment, it should proceed to determine their percentage of fault and Javier's percentage of fault. Needless to say, this would have been a much simpler matter had the third phase of the trial been allowed to proceed as planned.


author: WHATLEY, Judge.

text:
    Edilberto BARRIOS-CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4774.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      Arturo R. Rios of Law Office of Arturo R. Rios, P.A., St. Petersburg, for Appellant.
   WHATLEY, Judge.

Edilberto Barrios-Cruz appeals the summary denial of two motions for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied Barrios-Cruz’s motions as untimely. For the reasons expressed below, we affirm.

I. Background

On January 27, 2004, Barrios-Cruz pleaded guilty to discharging a firearm in public, an offense for which he received one year of probation. On May 2, 2006, Barrios-Cruz pleaded guilty to possession of drug paraphernalia and to maintaining a structure for using, keeping, or selling drugs, offenses for which he again received one year of probation. On August 9, 2010, Barrios-Cruz, through counsel, filed his two motions for postconviction relief — one for each case — in which he alleged that his counsel was ineffective for failing to advise him of the deportation consequences of his pleas. In addition, he claimed that in his 2006 case, the trial court failed to advise him of the possibility of deportation during the plea colloquy. He asserts that his motions are timely under rule 3.850(b)(2) based on the retroactive application of the Supreme Court’s decision in Padilla v. Kentucky, — U.S. —, —, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), which creates a duty on behalf of counsel to advise their noncitizen clients that their criminal charges may subject them to adverse immigration consequences.

While some jurisdictions have begun to address the issue, this court has yet to resolve the question of whether Padilla applies retroactively. We now hold that Padilla should not be applied retroactively in postconviction proceedings and agree with the Third District’s opinion in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011). However, we recognize that courts are split on this issue, and our decision carries with it significant implications for the treatment of pleas entered prior to Padilla. Therefore, we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN PADILLA 7. KENTUCKY, — U.S.—, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

II. Retroactivity Analysis

We conclude that Padilla should not be applied retroactively based on the following analysis. First, it is important to consider the content of Padilla itself. The Supreme Court observes that “[i]t seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains” and rejects the notion that its decision would open the “floodgates,” possibly referring to the retroactive effect of its decision. 130 S.Ct. at 1484-85. However, at no point does the Court explicitly state a holding one way or the other. Id. Therefore, it is necessary to turn to a separate retroactivity analysis.

According to State v. Fleming, 61 So.3d 399, 403 (Fla.2011), “[t]o determine whether a new rule applies retroactively to final cases in postconviction proceedings, ... courts in Florida conduct a retroactivity analysis under Witt v. State, 387 So.2d 922 (Fla.1980).” While federal courts and many state courts prefer to use the newer retroactivity standard articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Florida Supreme Court continues to stand by Witt because it “provides more expansive retro-activity standards than those adopted in Teague.” Johnson v. State, 904 So.2d 400, 409 (Fla.2005).

Under Witt, a change of law will not be applied retroactively “unless the change: (a) emanates from [the Supreme Court of Florida] or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” 387 So.2d at 931. Because Padilla is a United States Supreme Court decision that is constitutional in nature, the first two elements of this analysis have been satisfied. Accordingly, the question becomes whether Padilla represents a development of fundamental significance. Witt divides such developments into two categories: “those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties,” and “those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ] and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)].” Id. at 929, 85 S.Ct. 1731. Because the holding in Padilla does not fall within the first category, the analysis turns upon the three factors presented in Stovall and Linkletter. These factors include: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of the retroactive application of the new rule.” Id. at 926, 85 S.Ct. 1731.

A. The Purpose to be Served by the New Rule

The purpose of the Padilla decision is to extend the Strickland ineffective assistance of counsel standard to ensure that noncitizen defendants receive an appropriate warning from counsel when their pleas are likely to result in deportation. In Hughes v. State, 901 So.2d 837 (Fla.2005), the Supreme Court of Florida used the Witt standard to assess whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), should be applied retroactively. The purpose of Ap-prendi was to determine whether, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In holding that Ap-prendi should not be applied retroactively, the Florida Supreme Court noted that the purpose of Apprendi “does not affect the determination of guilt or innocence.” Hughes, 901 So.2d at 841. The court went on to state that “[Apprendi ] does not address a miscarriage of justice or effect a judicial upheaval to the degree necessary to require its retroactive application.” Id. at 842.

Because the Padilla decision concerns only a specific set of plea agreements, it represents a more minor change than that of Apprendi, one with implications that are significantly more unique and narrow. As such, it is less suited for retroactive application. What it does share in common with Apprendi — that it is a change that does not affect guilt or innocence or represent a judicial upheaval — only bolsters this assertion. To illustrate, Witt holds that new rules generally should not be applied retroactively unless they involve “fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding.” 387 So.2d at 929. In so holding, Witt examines the opposite end of the spectrum: “In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards ... for procedural fairness ... and for other like matters. Emergent rights in these categories ... do not compel an abridgement of the finality of judgments.” Id. The intent of Padilla — to extend the scope of Strickland in the interest of procedural fairness-falls under the latter category rather than the former.

Finally, we note that Padilla was decided in the evolving landscape of “changes to our immigration law [that] have dramatically raised the stakes of a noncitizen’s criminal conviction.” 130 S.Ct. at 1480. Thus, the Padilla decision constitutes an evolutionary refinement designed to correspond to new developments in an ever-changing area of law. As such, the purpose of the Padilla decision does not compel retroactive application.

B. The Extent of Reliance on the Old Rule

Strickland, decided in 1984, provided the well-established standard for ineffective assistance of counsel, and it did not include any discussion of a defendant’s residency status. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accordingly, prior to the decision in Padilla, no formal duty existed for counsel to advise clients of the immigration consequences of a plea. However, pursuant to Florida Rule of Criminal Procedure 3.172(c)(8), Florida courts are required to notify defendants during the plea colloquy that their pleas may subject them to deportation. See In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992, 992 (Fla.1988). This rule has been in effect since 1989, and it will continue to have significance, even in light of the Padilla decision. See, e.g., Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010) (noting that even if counsel performed deficiently under Padilla, the defendant was unable to establish prejudice because during the plea colloquy, the trial court advised the defendant that his plea might result in his deportation and the defendant admitted that he understood). The longstanding, reasonable reliance upon this rule weighs heavily against the retroactive application of Padilla. See Williams v. State, 421 So.2d 512, 515 (Fla.1982) (holding that reasonable reliance upon the old rule “is an important factor supporting prospective application of the new rule”). Finally, as noted above, the Padilla decision represents a response to recent changes in immigration law, changes which have implications that could not have been accounted for in the past.

C. Effect of Retroactive Application on the Administration of Justice

In discussing Apprendi, the First District theorized that the impact of retroactive application on the administration of justice “would be monumental.” Hughes v. State, 826 So.2d 1070, 1074 (Fla. 1st DCA 2002). As stated above, Padilla likely has fewer far-reaching implications than Apprendi. However, Padilla does carry with it the potential for the same sort of complications. Of paramount concern is the likelihood that courts would be faced with a great number of postconviction motions stemming from past convictions, some of which would be decades old. Addressing motions challenging convictions that have long since been final would present a logistical nightmare for the courts, with the proceedings themselves potentially raising more questions than they would be able to answer. Furthermore, “the passage of time between the guilty plea and the postconviction motion puts the State at a great disadvantage in seeking to try the case to conviction.” State v. Green, 944 So.2d 208, 216 (Fla.2006). As such, it appears evident that applying Padilla retroactively to expand the two-year time-frame for filing a rule 8.850 motion “would undermine the perceived and actual finality of criminal judgments and would consume immense judicial resources without any corresponding benefit to the accuracy or reliability of [the plea] proceedings.” Johnson, 904 So.2d at 412.

III. Conclusion

We conclude that the three Witt factors weigh against the retroactive application of Padilla. While we recognize that Padilla represents an important development enumerating both a new right for defendants and a new duty for counsel, we do not find that it rises to the level of those rare “fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding.” Witt, 387 So.2d at 929. We therefore hold that Padilla does not apply retroactively. Because Barrios-Cruz’s most recent conviction was final almost four years prior to the Padilla decision, the postconviction court correctly denied his motions as untimely. Furthermore, even when considered under the timeframe announced in State v. Green, 944 So.2d 208 (Fla.2006), Barrios-Cruz’s motions are still untimely.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      . Courts that have concluded that Padilla should be applied retroactively include: People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696 (N.Y.Crim.Ct.2010); Marroquin v. United States, 2011 WL 488985 (S.D.Tex. Feb.4, 2011); United States v. Hubenig, 2010 WL 2650625 (E.D.Cal. Jul.l, 2010); United States v. Chaidez, 730 F.Supp.2d 896 (N.D.Ill.2010); Martin v. U.S., 2010 WL 3463949 (C.D.Ill. Aug.25, 2010); and Al Kokabani v. United States, 2010 WL 3941836 (E.D.N.C. Jul.30, 2010). Courts that have reached the opposite conclusion include: People v. Kabre, 29 Misc.3d 307, 905 N.Y.S.2d 887 (N.Y.Crim.Ct.2010); United States v. Macedo, 2010 WL 5174342 (N.D.Fla. Dec.15, 2010) (holding simply that Padilla "was not made retroactive to cases on collateral review” without further analysis); United States v. Hough, 2010 WL 5250996 (D.N.J. Dec.17, 2010); Miller v. State, 196 Md.App. 658, 11 A.3d 340 (2010); United States v. Perez, 2010 WL 4643033 (D.Neb. Nov.9, 2010); United States v. Gilbert, 2010 WL 4134286 (D.N.J. Oct.19, 2010); Haddad v. United States, 2010 WL 2884645 (E.D.Mich. Jul.20, 2010); and Gacko v. United States, 2010 WL 2076020 (E.D.N.Y. May 20, 2010).

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . In Green, 944 So.2d at 219, the Florida Supreme Court provided a defendant whose case was already final at the time of the opinion with two years from the date of Green to bring a claim that the trial court failed to advise him of the possible immigration consequences of his plea. Because Barrios-Cruz’s case was final at the time of the Green decision, he had until October 26, 2008, to file a timely postconviction motion raising such a claim. Id.; Ventura v. State, 977 So.2d 794, 796 (Fla. 2d DCA 2008). Any motions filed beyond this date would need to fall under one of the exceptions in rule 3.850(b) to be considered timely. Green, 944 So.2d at 218. A defendant cannot satisfy this requirement by simply claiming that he learned of the possibility of deportation only upon the commencement of deportation proceedings; he must allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his residency status. Id.

      . Barrios-Cruz’s motions, both filed in 2010, are beyond the October 26, 2008, extension offered by Green. In addition, they do not allege any affirmative steps to discover the effect of the plea on his residency status. As such, they are barred as untimely under Green.