author: FLEMING, J., Associate Judge.

text:
    Lawrence V. TILTON, Donna W. Tilton, et al., Appellants, v. James E. GARDNER, Jr., etc., et al., Appellees.
    No. 5D09-1097.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.
    Rehearing Denied Feb. 02, 2011.

      Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellants.
    Loren E. Levy and Ana C. Torres, of The Levy Law Firm, Tallahassee, for Ap-pellees.
   FLEMING, J., Associate Judge.

Landowners appeal a final judgment affirming a property appraiser’s denial of an agricultural classification in 2006. The issue raised is one of first impression: Whether the trial court erred in its application of section 193.461(3)(e), Florida Statutes (2006), in determining that the landowners were not entitled to an agricultural classification in 2006, after having been granted such classification by a Value Adjustment Board in 2004, because landowners had abandoned or discontinued such agricultural use. We conclude that the trial court properly applied the statute and that its decision was supported by competent, substantial evidence. Greenwood v. Oates, 251 So.2d 665 (Fla.1971). Accordingly, we affirm.

Appellant Tilton bought 279 parcels of land (totaling 346 acres) for $13,000 in 1998. The parcels were scattered throughout an undeveloped residential subdivision known as Flagler Estates. Til-ton, who is experienced in timber and has run a sawmill since 1979, harvested timber on the land from 2000 to 2003.

In 2004, Tilton applied for the land to be classified as agricultural. Flagler County Property Appraiser, John Seay, denied the agricultural classification, stating there was “[n]ot a bona fide commercial agricultural endeavor as contemplated by Chapter 193, Florida Statutes.” Tilton appealed to the Flagler County Value Adjustment Board (“VAB”). After a hearing, a special magistrate resolved the conflicting testimony in Tilton’s favor and recommended granting the agricultural classification. He concluded that Tilton had established “credible use of the property as a legitimate agricultural operation at the present time,” noting that Tilton was knowledgeable and although his operation was not highly profitable, there was no such requirement under Florida law. The VAB granted the agricultural classification and the property appraiser did not appeal.

In 2005, the newly elected property appraiser, James Gardner, continued the agricultural classification without further inspection of Tilton’s land. However, in 2006, Gardner denied Tilton’s agricultural classification, finding: (1) “[^Insufficient evidence of care for the land in accordance with accepted agricultural practices;” (2) “[wjhile there is evidence of some agricultural activity, it is not sufficient to qualify as bona fide commercial agricultural use;” and (3) “[n]o evidence of an economically feasible operation to qualify as good faith commercial agricultural use under the law.”

Tilton again appealed to the VAB. After a hearing, a special magistrate recommended that the VAB sustain the property appraiser’s denial of agricultural classification, which the VAB followed. The special magistrate found that “the weight of the evidence in favor of the petitioner was not sufficient to overcome the conclusion that, as of January 1, 2006, the commercial agricultural use had been abandoned or discontinued .... ”

Tilton then filed suit against the property appraiser and the VAB in circuit court, pursuant to chapter 194, Florida Statutes, challenging their denial of the agricultural classification. At trial, Tilton argued that section 193.461(3)(e), not section 193.461(3)(b), controlled the classification in this case. Because Tilton had obtained an agricultural classification from the VAB in 2004, he argued that he was entitled to an agricultural classification in subsequent years as long as he continued the same use of the property approved by the VAB in 2004. More precisely, Tilton argued that the VAB’s determination of bona fide agricultural use in 2004 was “res judicata” for purposes of future classifications and that the property appraiser was limited to determining whether such previously approved use had been abandoned, discontinued or diverted. Gardner countered that section 193.461(3)(e) did not remove his authority to make an annual determination pursuant to the factors listed in section 193.461(3)(b).

After hearing evidence and argument, the trial court ruled in favor of the property appraiser. The court focused on evidence of Tilton’s use of the land on January 1, 2006, observing that the only two uses of the land between 2004 and 2006 were continued harvesting of timber and buying and selling of parcels. Based on the testimony of Gardner’s experts, the court concluded that Tilton’s harvesting of timber alone, without any effort to promote regeneration evinced an abandonment, discontinuation of diversion to nonagricultural use. Specifically, in harvesting timber, Tilton did not leave sufficient seed trees to regenerate the harvested areas but failed to harvest water oaks, whose canopies inhibited regeneration. In addition, the court found that the condition of the property in relation to natural regeneration had deteriorated because Tilton had allowed underbrush to flourish, which further inhibited natural regeneration, instead of eradicating it by-chopping, applying herbicide or burning it. With specific regard to burning, the court noted that Tilton’s efforts to have the Forestry Service burn the underbrush were commendable but nevertheless unsuccessful and that “whether or not the lands are classified agricultural depends on what is done, not on what is intended to be done.” (Emphasis in original). In contrast, the Court noted that most of what Tilton’s expert, Scott Sager, observed regarding activity to promote regeneration occurred after Gardner’s 2006 denial.

With regard to buying and selling parcels, the court noted in August 2005, Tilton contracted to sell his property — 332 tracts for $30,000 a tract — but the contract expired in December with Tilton having closed on 56 tracts. The court saw this activity as evidence that Tilton was no longer using the land for agricultural purposes under section 193.461(4)(a)(2), Florida Statutes. The court concluded as follows:

Since Plaintiffs’ lands were classified agricultural in 2005 what changed?
In 2006 Denton [Chief Forester of Greenbelt Consultants] and Hunter [Gardner’s Agricultural Supervisor], who the Court found to be highly credible, observed insufficient activity existed well before January 1st, 2006, to convince them and Gardner that the lands were being used primarily for bona fide agricultural purposes. In the six years Plaintiffs had owned most of the tracts the only forestry activity which had occurred was harvesting of trees. There had been no activity to ensure the natural regeneration process until after the 2006 denial. As testified by Denton the operation was a “cut and get out” forestry operation not consistent with good forestry practices. In those six years Plaintiffs had only harvested timber and bought and sold parcels of property. [Emphasis in original.]
As found by the Special Magistrate the Court finds that the weight of the evidence in favor of Plaintiffs is not sufficient to overcome the conclusion that as of January 1st, 2006, the agricultural use of the property had been abandoned or discontinued which was also probably true in 2004 and 2005. Pursuant to Section 193.461(4)(a)(2), F.S. the Property Appraiser reclassified the lands as nonagricultural. Greenwood v. Oates, 251 So.2d 665 (Fla.1971).
This appeal followed.

Both sides agree that section 193.461(3)(e) controls, but Tilton claims the trial court incorrectly denied him an agricultural classification using section 193.461(3)(b), instead. Tilton acknowledges that normally the standard of review is whether competent, substantial evidence supports the trial court’s fact-findings. Love PGI Partners, LP v. Schultz, 706 So.2d 887 (Fla. 5th DCA 1998). In this case, however, he argues for a de novo standard to the extent this Court needs to construe 193.461(3)(e) as a pure question of law. Id. at 893.

Tilton’s argument ignores the fact that the trial court applied section 193.461(3)(e) when it found “that the weight of the evidence in favor of Plaintiffs is not sufficient to overcome the conclusion that as of January 1, 2006, the agricultural use of the property had been abandoned or discontinued’ .... ” In so finding, the trial court expressly acknowledged that section 193.461(3)(e) applied, noting that the section provides for an automatic extension “unless certain changes have occurred.” The court then recounted the changes it found had occurred from 2004 to 2006.

While it is clear that the trial court applied the proper statute, the question remains was 193.461(3)(e) applied correctly? The section was enacted in 2002 and has not been discussed in any reported cases. Thus, its application is a matter of first impression.

By its plain terms, section 193.461(3)(e) applies to land that has received an agricultural classification from a VAB or court in a prior year, presumably resulting from a landowner’s successful challenge of a property appraiser’s denial of the classification. That is what occurred in the instant case. In 2004, the property appraiser denied Tilton’s application for an agricultural classification. He appealed to the VAB, and the VAB granted the classification. Thus, the portion of Til-ton’s land subject to the 2004 VAB classification was “entitled to receive such classification in any subsequent year until such agricultural use of the land is abandoned or discontinued, the land is diverted to a nonagricultural use, or the land is reclassified as nonagricultural pursuant to subsection (4).”

Tilton argues that section 193.461(3)(e) seeks to protect landowners like him who have already survived a VAB action by prohibiting the property appraiser from making a de novo determination of whether the land is being used for bona fide agricultural purposes in subsequent years. Instead, of determining “bona fide agricultural purposes” pursuant to section 193.461(3)(b), Tilton notes that section 193.461(3)(e) limits the scope of the property appraiser to determining whether “such agricultural use” has been abandoned, discontinued, diverted or reclassified. Tilton asserts that the phrase “such agricultural use” does not mean “bona fide agricultural purposes” based on the factors listed in section 193.461(3)(b). Instead, Tilton claims that the property appraiser can only look at the actual use that was previously approved by the VAB and determine whether that use has been abandoned, discontinued, diverted or reclassified.

In evaluating whether the use has been abandoned or discontinued, or whether the land is no longer being utilized for agricultural purposes, the property appraiser must consider section 193.461(3)(e) in pari materia with the criteria listed in section 193.461(3)(b), which requires the property to be primarily used for bona fide agricultural purposes. Tilton’s construction of the phrase “such agricultural use” in subsection (3)(e) ignores that (3)(b) specifically defines “bona fide agricultural purposes” as “good faith commercial agricultural use.” (Emphasis added.) So when 193.461(3)(e) speaks of “agricultural use ” it is linked to a bona fide agricultural purpose. This reading is reinforced by the fact that subsection (3)(e) does not nullify 193.461(4)(a)2. which requires the property appraiser to classify as nonagricultural: “Land no longer being utilized for agricultural purposes.” (Emphasis added.) To the contrary, subsection (3)(e) expressly provides that land reclassified as nonagri-cultural pursuant to subsection (4) is not otherwise entitled to maintain its previous agricultural classification. In effect, subsection (3)(e) expands the property appraiser’s analysis to include “agricultural purposes” not just “agricultural use.” Finally, it should not escape notice that 193.461(3)(e) begins: “Notwithstanding the provisions of paragraph (a) ... ” (Section 193.461(3)(a) lays out the process by which the property appraiser classifies lands as agricultural.) The statute does NOT similarly provide that subsection (3)(e) is to be considered despite the provisions of (3)(b).

But if the property appraiser can consider bona fide agricultural purposes even after the landowner has prevailed in proceedings before a VAB or court, what is the landowner “entitled to” under 193.461(3)(e)? The answer lies in the approach the property appraiser is to take following a VAB or court determination that land is entitled to an agricultural classification. Clearly, a de novo determination by the property appraiser as to whether the land is being used for bona fide agricultural purposes would render section 193.461(3)(e) meaningless. To this extent we agree with Tilton’s position.

However, we disagree that “evidence of some agricultural activity,” which Gardner did acknowledge, is all that is required to entitle Tilton to keep his agricultural classification. This finding by Gardner is at the heart of Tilton’s claim that his agricultural use of the land had not been “abandoned or discontinued” as contemplated by section 193.461(3)(e). Although he won’t say as much, what Tilton is truly arguing is that only a finding of no agricultural use whatsoever would result in a loss of agricultural classification under the statute. In support of this extreme construction, he cites Webster’s Encyclopedic Unabridged Dictionary (1996 ed.) defining “abandoned” as “forsaken or deserted” and “discontinue” as “to put an end to; stop; terminate.” If so construed, an agricultural classification from a VAB or court would be akin to a license to use the land for virtually any purpose provided some meager agricultural use continues. In this regard, cutting down one tree a year and dragging it to “scarify” the land in hopes that a seedling might sprout would suffice. There is no reason to believe the legislature meant to confer a tax benefit under such a circumstance.

Construing section 193.461(3)(e) in pari materia with the other provisions of section 193.461, we conclude that the property appraiser is constrained to presume that land is still being used primarily for bona fide agricultural purposes and must limit the inquiry to what may have changed. If nothing has materially changed, then the property appraiser is powerless to deny an agricultural classification despite a belief that the current agricultural use is not bona fide.

On the other hand, if the land use has materially changed, then the property appraiser is free to consider the “bona fide” factors of section 193.461(3)(b) as they may relate to the changed condition in determining whether the agricultural use has been abandoned or discontinued. Thus, the trial court correctly asked: “Since Plaintiffs’ lands were classified agricultural in 2005 what changed?” The court was also correct in considering whether the changes meant the land was currently being used primarily for bona fide agricultural purposes.

Having determined that the trial court properly applied the correct law, we turn our attention to whether there was competent, substantial evidence supporting the trial court’s findings. Greenwood; RH Resorts, Ltd. v. Donegan 881 So.2d 1152 (Fla. 5th DCA 2004). In considering the sufficiency of such evidence it is important to consider that it is the physical use of the land, itself, that matters. “The favorable tax treatment provided by [section 193.461] is predicated on land use, that is, physical activity conducted on the land.” Straughn v. Tuck, 354 So.2d 368, 370 (Fla.1977) (citing Hausman v. Rudkin, 268 So.2d 407 (Fla. 4 th DCA 1972)).

In concluding that the agricultural use had been abandoned or discontinued, the trial court relied in part on the testimony of Gardner’s two experts, Denton and Hunter, who inspected the property in 2004 and 2006. In 2006, they observed that, like 2004, Tilton had done nothing but harvest timber. In fact, conditions on the property relating to natural regeneration were much worse than in 2004. He failed to leave seed trees to produce seeds for new trees. He failed to remove underbrush, which prevented the seeds from hitting the ground. He failed to disturb the ground and expose the soil so that it could better receive the seeds. He failed to remove water oaks, whose canopies inhibited natural regeneration and he failed to create firebreaks to prevent wildfires. In short, Tilton did nothing to promote natural regeneration in 2004 and 2005. As a result, in 2006 the land was less likely to produce timber than on January 1, 2004. The lack of sufficient natural regeneration and Tilton’s failure to promote regeneration supported the court’s conclusion that agricultural use had been abandoned or discontinued in 2004, 2005 and on January 1, 2006.

Despite the VAB’s caveat in 2004 that Tilton had established “credible use of the property as a legitimate agricultural operation at the present time,” Tilton contends that worsening conditions did not equate to abandonment or discontinuation of agricultural use. (Emphasis added.) Instead he claims that the worsened condition of the land was consistent with his timber management plan, was hampered by drought, and did not overcome his harvesting of timber. The trial court found otherwise, choosing to believe that the worsened conditions were caused by Til-ton’s failure to take any action to promote regeneration. The trial court also noted that Tilton’s expert, Scott Sager, did not inspect the property until 2007 and 2008, thus any activity to promote regeneration that he observed occurred after the 2006 denial.

There was also testimony that in 2005, Tilton had attempted to sell all of his land for almost $10 million and had actually sold 56 parcels for $1,100,000. The court deemed this evidence particularly significant in relation to section 193.461(4)(a)(2), which requires the property appraiser to reclassify the land if it is no longer being used for agricultural purposes. From this evidence, the trial court could infer that in late 2005, Tilton was trying to sell his land rather than use it for agricultural purposes. Tilton claims such an inference is precluded by direct evidence that he continued to harvest timber on the land subject to the sales contract. The trial court made short work of this notion stating,

... I’ll just make a determination now that a landowner who contracts to sell his land with no reservation of right to harvest timber prior to the sale has no legal right to cut timber off the land any more than he has the right to remove a house.

Thus, the sales contract, the actual sales and Tilton’s cutting of timber without a reservation of rights all support the trial court’s conclusion that Tilton was no longer using the land primarily for agricultural purposes.

Because the trial court properly applied section 193.461(3)(e) and its findings were supported by competent, substantial evidence, we affirm.

AFFIRMED.

EVANDER and COHEN, JJ., concur.

      . The landowners — Lawrence Tilton, his wife Donna Tilton, and his son Benjamin Tilton— are referred to collectively as "Tilton” because Lawrence Tilton is the major actor in the underlying events.

      .The pertinent portions of section 193.461, Florida Statutes (2006) are set forth below: 193.461. Agricultural lands; classification and assessment; mandated eradication or quarantine program

      (1) The property appraiser shall, on an annual basis, classify for assessment purposes all lands within the county as either agricultural or nonagricultural.

      (3)(a) No lands shall be classified as agricultural lands unless a return is filed on or before March 1 of each year. The property appraiser, before so classifying such lands, may require the taxpayer or the taxpayer's representative to furnish the property appraiser such information as may reasonably be required to establish that such lands were actually used for a bona fide agricultural purpose. Failure to make timely application by March 1 shall constitute a waiver for 1 year of the privilege herein granted for agricultural assessment. However, an applicant who is qualified to receive an agricultural classification who fails to file an application by March 1 may file an application for the classification and may file, pursuant to s. 194.011(3), a petition with the value adjustment board requesting that the classification be granted....

      (3)(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. "Bona fide agricultural purposes” means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
      1. The length of time the land has been so utilized;
      2. Whether the use has been continuous;
      3. The purchase price paid;
      4. Size, as it relates to specific agricultural use;
      5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
      6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
      7. Such other factors as may from time to time become applicable.

      3(e) Notwithstanding the provisions of paragraph (a), land that has received an agricultural classification from the value adjustment board or a court of competent jurisdiction pursuant to this section is entitled to receive such classification in any subsequent year until such agricultural use of the land is abandoned or discontinued, the land is diverted to a nonagricultural use, or the land is reclassified as nonagricultural pursuant to subsection (4)....

      (4)(a) The property appraiser shall reclassify the following lands as nonagricultural:
      1. Land diverted from an agricultural to a nonagricultural use.
      2. Land no longer being utilized for agricultural purposes.
      3. Land that has been zoned to a nonagricul-tural use at the request of the owner subsequent to the enactment of this law.

      . The VAB was later dismissed from the lawsuit.

      . Although predating the addition of subsection (3)(e), there is authority for construing the provisions of 193.461 in pari materia. Cases discussing subsection (4) have considered it in pari materia with subsection (3)(b). See, e.g., Markham v. Fogg, 458 So.2d 1122, 1126 (Fla.1984) (recognizing owner may rebut the mandatory reclassification by showing that the property is being used "primarily for bona fide agricultural purposes” in accordance with the seven factors in section 193.461(3)(b)); Straughn v. K & K Land Mgmt., Inc., 326 So.2d 421, 425 (Fla.1976) (recognizing owner may rebut the presumption of nonagricultural use created by a sale of the land for a purchase price of three or more times the agricultural assessment by coming forward "with evidence of 'special circumstances’ within the framework of section 193.461(3)(b), Florida Statutes, to establish that the land continues to be used for ‘bona fide agricultural purposes'.”).

      .Gardner’s counsel attempted to persuade the trial court that section 193.46 l(3)(e) did not prohibit Gardner from making a de novo determination of bona fide agricultural purposes. Two cases were cited in support of this argument, both of which predated the statute. Container Corp. of America v. Long, 274 So.2d 571 (Fla. 1st DCA 1973), and Keith Investments, Inc. v. James, 220 So.2d 695 (Fla. 4th DCA 1969). Gardner does not cite these cases on appeal and it seems clear that section 193.461(3)(e) supersedes them where a VAB or court have granted an agricultural classification in a prior year.

      . At trial, Gardner was asked if he considered cutting over 700 tons of timber for profit as agricultural activity. He replied: “cutting wood for profit, yes. And you can consider that agricultural], I guess.”

      . Tilton asserted that simply harvesting timber helped "scarify” or prepare the ground for natural regeneration because the cut trees are dropped in a particular manner and then dragged or “skidded” over the land for removal.

      . Tilton’s 2004 application shows timber was harvested as far back as 2000. There was expert testimony that five years would be the limit for allowing natural regeneration to occur before it would be necessary to take more active management activities such as prescribed burns, mechanical chopping, or herbicide application. In this regard, because of natural processes on the land, a "change” in the use of the land may occur despite the landowner's activities (or lack thereof) remaining constant.

      . Tilton's 2004 timber management plan states: "Not planning to site prep and mechanically plant until the year 2010 and then only those areas that do not regenerate naturally.” The plan concludes with the curious statement: "Someone familiar with the natural regeneration program would be unable to recognize it and unqualified to judge it as a bona fide agricultural endeavor.”


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    Michael C. SIBONI, Appellant, v. William M. ALLEN and James Sonnier, etc., et al., Appellees.
    No. 5D10-1167.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.
    Rehearing Denied Feb. 07, 2011.

      Russell W. LaPeer of Landt, Wiechens, LaPeer & Ayres, Ocala, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

It is unnecessary to set out the underlying facts of this case in detail to understand and dispose of the issue presented. Appellees, plaintiffs below, filed an action seeking an accounting from Appellant, Michael Siboni, successor trustee of a land trust, as well as two other defendants. Appellant moved to abate the lawsuit pending indemnification from Appellees, which, under the terms of the trust, he viewed as a condition precedent to suit. Shortly thereafter, Appellees served what they labeled as a notice of voluntary dismissal, dismissing the action with prejudice as to Appellant. Over thirty days later, Appellant filed pleadings, some of which asserted an entitlement to attorney’s fees. The request for attorney’s fees was denied as being untimely. This appeal followed.

We agree with the trial court that Ap-pellees intended to drop one of several parties, instead of dismissing the action as to all parties. Thus, what Appellees labeled a notice of voluntary dismissal as to Appellant, should have been a notice of dropping party filed under Florida Rule of Civil Procedure 1.250(b). Nat’l Bank of Commerce v. Jupiter Mortgage Corp., 890 So.2d 553 (Fla. 2d DCA 2005). If there was only one defendant, or if Appellees intended to dismiss the action in its entirety, rule 1.420(a)(1) would have been the correct vehicle. Bay View Inn v. Friedman, 545 So.2d 417 (Fla. 3d DCA 1989). When Appellees filed their notice of voluntary dismissal against Appellant, the action remained pending against one of the original three defendants. Recognizing this, the trial judge correctly treated the notice of voluntary dismissal as if it had been filed under rule 1.250(b).

The issue to be decided by this court is whether Florida Rule of Civil Procedure 1.525 applies to a notice of dropping parties under rule 1.250(b). We find that it does and affirm. We read the applicable rules in pari materia to reach this result, mindful of the purposes sought to be accomplished. Rule 1.525 provides: “Any party seeking a judgment taxing costs, attorney’s fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”

Appellant is correct when he notes rule 1.525 does not explicitly mention dropping a party as a triggering event. He suggests that the proper doctrine to use in construing rule 1.525 is expressio unius est exclusio alterius, the expression of one thing is the exclusion of another. Black’s Law Dictionary 1635 (7th ed. 1999). However, rule 1.250(b) expressly incorporates the procedural aspects of Florida Rule of Civil Procedure 1.420(a)(1) governing voluntary dismissal by providing that parties may be dropped “in the manner provided for voluntary dismissal in rule 1.420(a)(1) subject to the exception stated in that rule.”

In Bay View Inn, 545 So.2d at 419, the Third District, relying on this language, held that a party dropped pursuant to rule 1.250(b) can utilize rule 1.420(d) to recover costs. The court explained that although rule 1.250(b) does not itself provide a basis for assessment of costs, it specifies that a party is dropped “in the manner provided for dismissal in Rule 1.420(a)(1).” Id. The Third District continued:

Appellant contends a dropped party may only apply for costs at the conclusion of the action, at which time the application would be made pursuant to rule 1.420. We conclude the application for costs was timely. Rule 1.250(b) provides in part that “[pjarties may be dropped by an adverse party in the manner provided for voluntary dismissal in rule 1.420(a)(1) subject to the exception stated in that rule.” Parties to an action dismissed under rule 1.420(a)(1) are entitled to costs under rule 1.420(d). Because rule 1.250 specifies that a party is dropped “in the manner provided for voluntary dismissal in Rule 1.420(a)(1),” we conclude that “the manner” includes the same entitlement to costs which would have been enjoyed had the dismissal occurred entirely under rule 1.420(a)(1). We can perceive no sound reason to proceed otherwise.

545 So.2d at 419.

We see no analytical difference in construing the rule’s application to requests for attorney’s fees. To find otherwise could result in a party litigating for years with a remaining party with the specter of an unknown award of attorney’s fees and costs unresolved. This is neither an efficient nor reasonable method of conducting litigation and contrary to the stated intention of rule 1.525. Accordingly, we hold that a party dropped from litigation under rule 1.250(b) is subject to the time limitation contained in rule 1.525 governing service of a motion seeking a judgment for costs and attorney’s fees. Because appellant did not comply with rule 1.525, we affirm the denial of his request for attorney’s fees.

AFFIRMED.

EVANDER, J., and FLEMING, J., Associate Judge, concur.

      . One of the two was "dismissed” from the case prior to development of the facts giving rise to this appeal.

      . The plaintiffs’ labeling of the pleading was not dispositive. See Frengut v. Vanderpol, 927 So.2d 148 (Fla. 4th DCA 2006).

      .This issue was anticipated, but not answered in Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003).

      . The exceptions, where property has been seized or is in the custody of the court, are inapplicable in the instant case.


text:
    Scott Alan SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1578.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.

      Scott A. Smith, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

We review the trial court’s order denying Appellant’s Florida Rule of Criminal Procedure 3.850 postconviction motion on the basis that Appellant waived any credit for time served before his arrest for violation of probation.

On October 20, 2003, Appellant was convicted in Lake County of two counts of burglary of a dwelling and one count of strong-armed robbery and sentenced to three years’ prison followed by three years’ drug offender probation. He served from January 5, 2004, until March 26, 2005, when he began probation. After a violation of probation, on July 23, 2007, he entered a plea agreement which terminated his probation and resulted in a new sentence of five years’ probation with the following pertinent condition: “five years DOC suspended (should [defendant] violate, susp. sent, begins from date of arrest on VOP).” On August 14, 2007, Appellant was arrested on charges of aggravated assault with a deadly weapon and reckless driving. He remained in the Orange County jail until May 12, 2008, when he pled guilty to the Orange County offenses, was sentenced to two years’ prison, and granted 272 days’ credit for time served in Orange County. Appellant has been incar-eerated since May 22, 2008. While serving his Orange County sentence, Lake County issued a detainer for Appellant.

On February 18, 2009, Appellant was transported from Marion Correctional Institute to Lake County to face the charge of violation of probation on the 2002 convictions. He remained in Lake County until April 1, 2009, when he pled guilty to the violation of probation and was sentenced to fifty-four months’ prison with 300 days’ credit for time served. The plea agreement states: “Admit / Adj. guilty / revoke & terminate!.] Defendant shall serve the prev suspended sentence of 54 months in the Dept, of Corrections w/ all CTS and GTC from date of arrest for VOP.”

Appellant’s rule 3.850 motion seeks credit: (1) for time served in 2002 and 2003 prior to his original sentencing; (2) for time served in prison from 2003 until March 26, 2005; and (3) for 593 days served from the date of his arrest for the violation of probation on August 15, 2007, to the date of his plea on April 1, 2009.

The trial court denied Appellant any relief, ruling that he

knowingly and voluntarily waived any previous credit both before he ever violated his probation, on July 23, 2007, [ ] and pursuant to his plea agreement, April 1, 2009. Therefore, [Appellant] is not entitled to any credit previous to his arrest on the VOP on August 15, 2007, as he agreed to in his plea agreements.

Appellant filed a motion for rehearing and/or clarification, indicating that the trial court’s ruling that he was not allowed credit prior to August 15, 2007, was consistent with his request for 593 days’ credit from August 15, 2007, to April 1, 2009. The trial court denied the motion for rehearing.

A sentence that does not mandate credit for time served is illegal because a trial court has no discretion to impose a sentence without crediting a defendant with time served. State v. Mancilo, 714 So.2d 429, 433 (Fla.1998). A defendant can, however, waive credit for time served as part of a plea agreement when such waiver is clearly shown on the record. Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000).

The record must clearly show that the defendant waived his or her entitlement to such credit. Briggs v. State, 929 So.2d 1151, 1153 (Fla. 5th DCA 2006). Further, a waiver of jail credit will not be presumed and the State has the burden to clearly establish a waiver occurred. Id. The 2007 plea agreement’s language that the suspended sentence begins from the date of his VOP arrest appears to, but does not unequivocally demonstrate, Appellant’s clear intent to waive jail credit for earlier time served. See, e.g., Cheatum v. State, 992 So.2d 877, 878 n. 2 (Fla. 5th DCA 2008) (remanding, where plea colloquy not part of record, for attachments to demonstrate plea agreement’s statement that defendant’s agreement to a sentence from the date of arrest on the violation showed clear intent to waive jail credit prior to his arrest on the violation). The 2009 plea agreement which reads “Admit/ Adj. guilty/ revoke & terminate!.] Defendant shall serve the prev suspended sentence of 54 months in the Dept, of Corrections w/all CTS and GTC from date of arrest for VOP” also appears to support the trial court’s finding, but does not reflect which arrest for violation of probation and is unclear whether the phrase “from date of arrest for VOP” modifies credit for time served as well as gain time credit.

We cannot say with certainty that the record clearly shows a waiver of credit for time served. The order denying the motion does not include a transcript of either the July 23, 2007, or April 1, 2009, plea colloquies, either of which could well support the trial court’s determination that Appellant knowingly, voluntarily and with advice of counsel, waived his entitlement to credit for time served. When the plea form is unclear, as in this case, the plea colloquy might assist in clarifying whether Appellant waived any credit.

We recognize that even without a transcribed plea colloquy, a plea agreement may clearly demonstrate such a waiver. In Joyner v. State, 988 So.2d 670, 672 (Fla. 3d DCA 2008), the court affirmed the denial of credit because the plea agreement signed by defendant, defense counsel, assistant state attorney and the judge, provided an award of credit for time served from a specific date, effectively waiving any claim to credit for time served before that date. The waiver in Joyner was clear and unambiguous. The plea agreements in this case were not.

We disagree with Appellant’s claim for credit during the period from August 15, 2007, until his April 1, 2009, sentencing, because a defendant is not entitled to jail credit for the “period during which the detainer or hold is lodged.” Gethers v. State, 838 So.2d 504, 508 (Fla.2003). Appellant was not arrested for violating his probation until February 18, 2009, pursuant to an executed warrant for VOP of the Lake County convictions. Therefore, he is entitled to forty-three days’ credit from February 18, 2009, until April 1, 2009.

Finally, without stating that he has exhausted his administrative remedies, Appellant seeks credit for additional prison time from 2003 until March 26, 2005. Appellant must first seek administrative relief through the DOC before pursuing mandamus relief in the circuit court after the DOC process has been exhausted. See Gillespie v. State, 910 So.2d 322, 324 (Fla. 5th DCA 2005).

In sum, we reverse and remand for the trial court to award Appellant forty-three days’ credit for his jail time in Lake County from February 18, 2009, to April 1, 2009, and for the trial court to attach the July 23, 2007, and April 1, 2009, plea colloquies, and any other portions of the record that support a denial of Appellant’s claim for credit for time served in 2002 and 2003. Otherwise, the order is affirmed without prejudice to Appellant to seek administrative relief through the DOC regarding prison credits.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO, C.J., and JACOBUS, J., concur.


author: PALMER, J.

text:
    Newton W. McLEOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2440.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PALMER, J.

Newton W. McLeod (defendant) appeals his judgments and sentences on three counts of attempted second degree murder (with a firearm); and one count each of shooting at, within, or into an occupied vehicle, and possession of more than 20 grams of cannabis. We affirm the defendant’s convictions, but reverse the sentence that was imposed on one count of attempted second degree murder.

The State filed a seven count information charging the defendant with three counts of attempted first degree murder (with a firearm), two counts of aggravated battery (with a firearm), one count of shooting at, within, or into an occupied vehicle, and one count of possession of more than 20 grams of cannabis. The jury found the defendant guilty of the lesser included offense of attempted second degree murder with a firearm on count one, and found that the defendant actually possessed and discharged a firearm resulting in great bodily harm to the victim. The jury also found the defendant guilty of the lesser included offense of attempted second degree murder with a firearm on counts two and three, and guilty as charged on the remaining counts. The trial court adjudicated the defendant guilty on counts one, two, three, six, and seven; however, the trial court set aside the jury verdicts on counts four and five on double jeopardy grounds. Accordingly, the defendant was not sentenced on those counts. A later order by the trial court indicated that counts four and five were resolved “as they were merged with counts 1 and 2.” Relevant to this appeal, the defendant was sentenced to a term of life in prison with a mandatory minimum sentence of 25 years on count one.

The defendant argues that the trial court erred by failing to act on counts four and five, and improperly concluded that the counts were merged with counts one and two. We disagree. The trial court did not adjudicate the defendant guilty of counts four and five, and the court expressly stated that the counts were set aside due to double jeopardy considerations. By setting aside the jury verdicts, the court vacated the verdicts on counts four and five. See Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010).

The defendant also argues that the sentence imposed for his conviction on count one, attempted second degree murder with a firearm, is illegal. He maintains that the maximum sentence that could be imposed on count one was 30 years’ incarceration because his conviction for attempted second degree murder, which is classified as a first degree felony under section 775.087(l)(b) of the Florida Statutes (2007), carries a maximum sentence of 30 years under section 775.082(3)(b) of the Florida Statutes (2007). We agree, concluding that this court’s holding in Wooden v. State, 42 So.3d 837 (Fla. 5th DCA 2010), is controlling.

In Wooden, the defendant was convicted of attempted second degree murder with a firearm, and was sentenced to 50 years’ imprisonment, with a mandatory minimum term of 25 years. We reversed and remanded the defendant’s sentence, holding as follows:

Because the jury found that Wooden’s discharge of a firearm resulted in great bodily harm, the minimum mandatory range under section 775.087(2)(a)(3) was twenty-five years to life imprisonment. However, once the trial court imposed the minimum mandatory sentence of twenty-five years, it could not exceed the thirty year maximum penalty for a first degree felony under section 775.082(3)(b). The twenty-five year to life minimum mandatory range under section 775.087(2)(a)(3) does not create a new statutory maximum penalty of life imprisonment.

Id. In a footnote, we further stated:

Contrary to the State’s argument, our decision in Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008), rev. granted 26 So.3d 582 (Fla.2009) does not suggest a different result. In Menden-hall, we approved the imposition of a thirty-five year sentence on a first degree felony where the trial court also imposed a thirty-five year minimum mandatory sentence pursuant to section 775.087(2)(a)(3).

Id. at n. 1.

Thus, under Wooden, the defendant’s life sentence improperly exceeds the 30 year maximum sentence allowed under section 775.802(3)(b). Therefore, the defendant’s sentence for count one must be reversed and this matter remanded for the trial court to correct the defendant’s sentence.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY and LAWSON, JJ., concur.

      . See §§ 775.087(1), 775.087(2)(a)(2), 775.087(2)(a)(3), 777.04, 782.04, Fla. Stat. (2007).

      . See §§ 775.087(2) & 784.045(l)(a)(2), Fla. Stat. (2007).

      . See § 790.19, Fla. Stat. (2007).

      . See § 893.13(6)(a), Fla. Stat. (2007).


text:
    Anthony POLLIZZI, James P. Forensky, and Vander Wynn, Appellant, v. Craig PAULSHOCK, M.D., d/b/a Paulshock, etc., Appellee.
    No. 5D09-3906.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Lilliana M. Fariñas-Sabogal and Steven M. Davis of Becker & Poliakoff, P.A., Miami, for Appellant.
    Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, for Appellee.
   PALMER, J.

In this proceeding supplementary, Dr. Anthony Pollizzi, Dr. James Forensky, and Dr. Vander Wynn appeal the order entered by the trial court holding them jointly and severally liable to appellee, Dr. Craig Paulshock, in the amount of $102,000.00. Determining that the trial court did not err in finding the parties liable, but did err in finding them jointly and severally liable, we affirm in part and reverse in part.

Paulshock initially filed a complaint against Davenport Anesthesiology Associates (DAA), and the trial court ultimately entered a final judgment against DAA and in favor of Paulshock in the amount of $125,000.00. Paulshock thereafter filed a verified motion for “Proceeding Supplementary and Impleader of Third Party Defendants.” The motion requested that the trial court commence a proceeding supplementary pursuant to section 56.29 of the Florida Statutes (2009), and implead Pollizzi, Forensky, and Wynn as third-party defendants to the underlying lawsuit against DAA. The motion alleged that the third-party defendants “fraudulently and otherwise improperly transferred, among other things, approximately $150,000.00 in funds from DAA’s operating account” to themselves and to entities they owned and controlled. The motion cited to section 726.105(2) of the Florida Statutes (2009) to support Paulshock’s claim for liability against the third-party defendants.

The trial court entered an order granting Paulshock’s motion, which had been served on counsel for the third-party defendants. The matter then proceeded to a non-jury trial. At trial, one of Paulshock’s witnesses was a forensic accountant who opined that the third-party defendants’ payout of $102,000.00 in DAA funds to themselves in 2004 constituted a fraudulent transfer of assets.

Upon review of the evidence submitted by the parties, the trial court entered an order finding that the third-party defendants “each improperly received $34,000.00 in violation of Chapter 726, Florida Statutes, thus totaling $102,000.00.” The court further held that the third-party defendants were “jointly and severally liable for the $102,000.00 amount fraudulently transferred to them in violation of Chapter 736, Florida Statutes.” This appeal timely followed.

The third-party defendants first argue that the trial court’s order must be reversed because, by entering the order, the trial court “violated the fundamental principles of due process which require notice and a meaningful opportunity to be heard.” We disagree. The record establishes that the third-party defendants received adequate notice of the proceedings and had the opportunity to defend against Paulshock’s claims at trial. As such, the third-party defendants have failed to sustain their burden of proving that the trial court violated their due process rights by entering judgment against them. See Zureikat v. Shaibani, 944 So.2d 1019 (Fla. 5th DCA 2006)(holding that judgment debtor’s wife was not deprived of due process by the imposition of an equitable lien against homestead property without her having filed a written response to judgment creditor’s motion for supplementary proceedings to impose lien; wife was im-pleaded in the proceedings, had fair notice of creditor’s charges and allegations, and chose not to file a written response); Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984)(holding that court’s order impleading third party in supplementary proceedings and setting aside a conveyance to him by judgment debtor did not violate procedural due process of law where third party received a hearing before an impartial decision maker after fair notice of the charges and allegations and with an opportunity to present his own case).

The third-party defendants next argue that the trial court’s money judgment must be reversed because it improperly exceeds the authority granted the court under section 56.29 of the Florida Statutes. We again disagree.

Section 56.29 of the Florida Statutes provides, in relevant part:

56.29. Proceedings supplementary
(5) The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.
(9) The court may enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution.

§ 56.29(5X9), Fla. Stat. (2009). The Florida courts have consistently held that section 56.29 must be given a liberal construction in order to afford a judgment creditor the most complete relief possible. See Mejia v. Ruiz, 985 So.2d 1109 (Fla. 3d DCA 2008); Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984); Neff v. Adler, 416 So.2d 1240 (Fla. 4th DCA 1982). The trial court properly concluded that, under the facts of this case, such liberal construction enabled it to enter a money judgment against DAA’s shareholders/corporate officers who were found to have improperly transferred monies from the corporation’s accounts to themselves. See Allied Industries Intern., Inc. v. AGFA-Gevaert, Inc., 688 F.Supp. 1516 (S.D.Fla.1988)(holding that judgment creditor, in supplementary proceedings, was entitled to recover money judgment against impleaded judgment debtor’s sole shareholder for shareholder’s fraudulent transfer of corporate funds).

The third-party defendants next argue that the trial court’s judgment must be reversed because Paulshock failed to plead or prove fraud. We again disagree.

Paulshock’s verified motion for impleader expressly alleged that the third-party defendants had engaged in the fraudulent transfer of DAA funds. The motion also specifically cited to section 726.105 of the Florida Statutes. At trial, Paulshock presented the testimony of several witnesses which demonstrated that Paulshock stopped working for DAA in September 2003 because he had not been paid for his services, that he filed this lawsuit against DAA in October 2003, that the third-party-defendants decided to close DAA in 2003, that DAA stopped doing business in February 2004 due to financial difficulties, and that in March 2004 (while there were substantial debts outstanding including Paul-shock’s claim for compensation, and DAA was essentially insolvent) the third-party defendants (who were the sole shareholders and directors of DAA, a subchapter S corporation) withdrew $102,000.00 from the DAA operating account and distributed the money equally amongst themselves. This evidence was sufficient to prove that the third-party defendants’ transfers of DAA funds constituted fraudulent transfers since the transfers occurred after Paulshock filed his lawsuit and while the third-party defendants were aware that DAA was insolvent and was scheduled to terminate operations. See Mejia v. Ruiz, 985 So.2d 1109 (Fla. 3d DCA 2008)(holding that individual who obtained judgment against corporation that owned apartment complex established that sale of complex, distribution of proceeds to corporation’s two shareholders, and dissolution of corporation were done with fraudulent intent, and thus transaction would be set aside to extent necessary to satisfy judgment).

The third-party defendants next argue that the trial court’s order is procedurally invalid because “there was no pending motion, complaint or other request for relief at the time it was entered.” We disagree. The filing of a motion for impleader is a sufficient pleading in order to assert a valid claim against third-party defendants in a supplementary proceeding. Zureikat v. Shaibani, 944 So.2d 1019 (Fla. 5th DCA 2006). See also Regent Bank v. Woodcox, 636 So.2d 885 (Fla. 4th DCA 1994)(explaining that judgment creditor is not required to commence entirely new civil action simply to subject goods in hands of third party to unsatisfied writ of execution).

The third-party defendants lastly claim that the trial court’s order must be reversed because “there exists no basis for joint and several liability.” We agree.

Section 56.29 of the Florida Statutes provides that, in proceedings supplementary, the trial court may order any property of the judgment debtor in the hands of another person to be applied to the judgment debt. The undisputed evidence in this case was that each of the third-party defendants received $34,000.00 from DAA. Therefore, each third-party defendant could only be held responsible for returning that $34,000.00 to the judgment creditor. The procedures governing proceedings supplementary do not permit the trial court to impose this obligation jointly and severally among multiple third-party defendants.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO, C.J. and LAWSON, J., concur.

      . Section 726.105(l)(a) of the Florida Statutes (2009) provides in relevant part, as follows:
      726.105. Transfers fraudulent as to present and future creditors
      (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
      (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; ...

      . If die judgment creditor initiated an independent action against the third-party defendants to recover these monies through a cause of action such as fraudulent conveyance, fraud, or conspiracy, a basis might exist for joint and several liability.


text:
    Yougraj BEHARRY, Appellant, v. Jean Marie DRAKE, Appellee.
    No. 5D10-219.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Christie L. Mitchell of the Nazareth Law Firm, P.A., Orlando, and Patrick John McGinley of the Law Office of Patrick John McGinley, P.A., Winter Park, for Appellant.
    David W. Veliz of David W. Veliz, P.A., Orlando, for Appellee.
   PALMER, J.

Yougraj Beharry (father) appeals the final judgment of paternity entered by the trial court. Concluding that the trial court abused its discretion by ordering the father to secure a life insurance policy in the amount of $100,000.00, and that the final judgment contains a typographical error, we affirm in part and reverse in part.

The father filed a petition seeking a determination of paternity for his two children and for other related relief. After conducting a non-jury trial, the trial court entered a final judgment which, among other things, provided for the payment of child support, shared parenting between the father and appellee, Jean Drake (mother), and ordered the father to secure his child support obligation with a life insurance policy in the amount of $100,000.00, with the mother as the named beneficiary.

The first argument presented by the father on appeal is that the trial court improperly delegated its decision-making authority to the mother’s attorney by adopting the mother’s proposed final judgment verbatim. To support his argument, the father relies on the Florida Supreme Court’s ruling in Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004) in which the Court held:

When [a] trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

875 So.2d at 390. We conclude that Per-low is factually distinguishable from the present case.

Here, the trial court received proposed final judgments from both parties and did not enter its final judgment until six days after the submission of the proposed judgments. The record reveals no facts to support any claim of impropriety on the part of the trial court, and the record supports the trial court’s factual findings as set forth in the final judgment.

The second argument presented by the father is that the trial court abused its discretion by ordering him to secure his child support obligation with a $100,000.00 life insurance policy. We agree.

Section 61.13(1)(c) of the Florida Statutes (2007) authorizes trial courts to order a parent to carry a life insurance policy:

Support of children; Parenting and time-sharing; Powers of Court
(c) To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.

However, the amount of life insurance required by the trial court must be related to the extent of the obligation being secured. Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009) (citing Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004)).

The father argues that the amount of the $100,000.00 life insurance policy ordered by the trial court was in excess of the amount necessary to secure his child support obligation. According to the father, he is obligated to pay approximately $73,000.00 in child support payments. The mother does not dispute the father’s calculation of the total extent of his child support obligation, but, she argues that the difference between the amount of the policy and the father’s total child support obligation is minimal and, therefore, no reversible error has been demonstrated. We conclude that the trial court erred by requiring the father to purchase a life insurance policy in an amount which exceeds his child support obligation. Therefore, the final judgment is reversed and this matter is remanded with instructions to limit the amount of life insurance coverage required to the amount of the obligation it secures.

The father’s third argument is that the trial court erred by limiting his access to his children to five days a month. We disagree. The father mischaracterizes the time sharing arrangement established in the final judgment. The father was given alternating weekends (Friday after-school until Monday morning) of each month. The father was also given a third Friday overnight until Saturday at 4 p.m. due to the mother’s work schedule. The father and mother were given shared/alternating holidays and school vacations, and the father was given a month during the children’s summer vacations. A trial court’s custody or time sharing determination is reviewed under the abuse of discretion standard of review. Smith v. Smith, 39 So.3d 458, 460 (Fla. 2d DCA 2010) (citing Burnett v. Burnett, 995 So.2d 519, 524 (Fla. 2d DCA 2008)). We find no abuse here.

Lastly, the parties agree that the final judgment contains a typographical error with regard to N.B.’s birth date. On remand the error must be corrected.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO, C.J. and LAWSON, J., concur.

      . Our court has stated that a trial court may exercise its authority under section 61.13(l)(c) only in certain situations:
      The courts are statutorily authorized to order the obligor to maintain life insurance to protect alimony awards and child support obligations ... when "appropriate circumstances” exist to justify the award. “ ‘Appropriate circumstances’ may include the dire impact that the sudden death of the obligated parly would have on the receiving party.” In ordering this protection, the court should consider the "availability and cost of such insurance and the financial impact it will have on the former husband.” The final judgment should include appropriate findings regarding the availability and cost of insurance, the ability of the obligor to pay, and the appropriate circumstances that justify the insurance requirement.

        Rashid v. Rashid, 35 So.3d 992, 994 (Fla. 5th DCA 2010). However, the father does not argue that the trial court erred by ordering life insurance generally or by failing to include the appropriate factual findings as required by this court in Rashid. He limits his argument to the amount of the insurance.

      . Since the father’s total child support obligation decreases over time, the amount of life insurance required should correspondingly decrease over time.


text:
    STATE of Florida, Appellant, v. Juvan Ashley NICHOLS, Appellee.
    No. 5D10-1266.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant
    Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the order entered by the trial court granting the motion to suppress filed by Juvan Nichols (defendant). Determining that probable cause existed to stop defendant and to pat him down, we reverse the court’s suppression order.

The State filed a two count information charging the defendant with possession of a firearm by a convicted felon, and carrying a concealed firearm. Thereafter, the defendant filed a motion to suppress in which he alleged that the State acquired evidence pursuant to an unlawful search and seizure of his person. Specifically, the defendant contended that he was unlawfully detained and subsequently searched by an officer following his alleged violation of a pedestrian traffic statute, section 316.130(12) of the Florida Statutes (2009). The defendant argued that he did not violate section 316.130(12) and, therefore, his seizure and subsequent search were unlawful.

At the hearing on the defendant’s suppression motion, the arresting officer testified that when he spotted the defendant crossing the street in a diagonal direction he activated his emergency lights, stepped out of his car, and made contact with the defendant. The officer stated that his intention was to stop the defendant for jaywalking; however, when the defendant raised his arms up, the officer immediately observed a bulge in the defendant’s waistband. The officer testified that the bulge led him to believe that the defendant may have been armed and, therefore, he patted the defendant down, and determined that the bulge was the grip of a pistol. The officer removed a Colt revolver from the defendant’s waistband.

Upon reviewing the evidence, the trial court granted the defendant’s motion to suppress, concluding that the stop was invalid. The court also found that the arresting officer did not have probable cause to conduct a pat-down search of the defendant. Specifically, the court ruled as follows:

THE COURT: I probably agree with the dissent in [Dobson v. State, 737 So.2d 590, 592 (Fla. 4th DCA 1999) (holding that the officer was justified to conduct a pat-down search when he observed a bulge in the defendant’s pocket and thought it could have been a weapon) ] more than I do with the majority ... because I don’t believe the officer had probable cause for a pat-down. And I don’t think he had probable cause, or even reasonable suspicion, to turn around and stop him, even if there’s a 10-foot discrepancy. He doesn’t know where he was going. He can’t say where the shortest route was.
And by [the defendant’s] testimony and by the officer’s testimony, he was acting in compliance with [section 316.130(10) ], which says, the passenger shall yield the right of way to vehicles upon the roadway.
[PROSECUTOR]: But that’s the dissenting opinion, Judge. That’s not controlling case law, if the ...
THE COURT: I’m not citing that as my reason. I’m citing the lack of the officer’s probable cause or reasonable suspicion to turn around and pull him over. He even had to go back and verify by measuring that at most, it was a 10-foot derivation ... And even if there’s a 10-foot discrepancy, no reasonable person would find that a 10-foot deviation in crossing the street, you know, is criminal or even non-criminal sanctionable activity. There’s absolutely no crosswalks, and nothing other than an open curving street.
And he’s crossing the street. He yields the right of way to the officer, who then does a U-turn and pulls him over. And I just don’t think there’s any probable cause for it ... So the motion to suppress is granted.

The State challenges the trial court’s suppression order, arguing that the trial court made incorrect conclusions of law. We agree.

First, the trial court erred in concluding that the arresting officer lacked probable cause to stop the defendant for jaywalking. The officer witnessed the defendant crossing the street in a diagonal direction. Section 316.130(12) of the Florida Statutes states that, when there is no available cross-walk, an individual must cross the street by a route at right angles to the curb or the shortest distance possible. A diagonal route across the street is not shorter than a direct route at right angles to the curb. Thus, the arresting officer had probable cause to stop the defendant to issue him a citation because the officer could have reasonably concluded that the defendant was jaywalking.

Second, the trial court erred in concluding that the officer did not have probable cause to conduct a protective pat-down search of the defendant. An officer is permitted to conduct a protective pat-down search of a suspect when the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or other persons. Dewberry v. State, 905 So.2d 963, 966 (Fla. 5th DCA 2005); see also § 901.151(5) Fla. Stat. (2009). Probable cause in the protective search context is more akin to a reasonable suspicion standard. State v. Webb, 398 So.2d 820, 822 (Fla.1981). Whether an officer has a reasonable suspicion that a suspect is armed is an objective standard. See Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Contrary to the trial court’s conclusion, the arresting officer was justified in conducting a protective pat-down in this case because the stop of the defendant was valid and the officer’s observation of a bulge in the defendant’s waistband created an objectively reasonable suspicion that the defendant was armed with a dangerous weapon and posed a threat to the officer’s safety. See R.R. v. State, 715 So.2d 1062, 1063 (Fla. 5th DCA 1998) (stating that “[bjecause of the valid traffic stop and the bulge in the appellant’s pocket, the deputy was entitled to conduct a protective pat down search for weapons.”) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Dobson v. State, 737 So.2d 590, 592 (Fla. 4th DCA 1999) (holding that the officer was justified in conducting a pat-down search when he observed a bulge in the defendant’s pocket and thought it could have been a weapon); State v. Vera, 666 So.2d 576, 577 (Fla. 2d DCA 1996) (reversing and remanding trial court’s order granting the defendant’s motion to suppress and holding that the officer had probable cause to search the defendant after a valid stop and viewing a bulge in the defendant’s back pocket which appeared to be a weapon); State v. Callaway, 582 So.2d 745, 745-46 (Fla. 2d DCA 1991) (reversing and remanding trial court’s order granting the defendant’s motion to suppress because the officer had probable cause to conduct a protective frisk when it appeared to the officer that the suspect had something in the pockets of his heavy coat that could threaten the officer’s safety).

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.

      . This court possesses jurisdiction pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure.

      . See § 790.23 Fla. Stat. (2009).

      . See § 790.01(2) Fla. Stat. (2009).

      . Section 316.130(12) of the Florida Statutes (2009) states, in pertinent part:
      Pedestrians; traffic regulations

      (12) No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb.


author: GRIFFIN, J.

text:
    ARGENT MORTGAGE COMPANY, LLC, Appellant, v. WACHOVIA BANK N.A., etc., Appellee.
    No. 5D09-4014.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Jeffrey R. Dollinger, of Scruggs & Carmichael, P.A., Gainesville, for Appellant.
    W. David Vaughn, of W. David Vaughn, P.A., Jacksonville, for Appellee.
   GRIFFIN, J.

Argent Mortgage Company, LLC [“Argent”] appeals the trial court’s entry of judgment in favor of Wachovia Bank National Association, as Trustee Under Pooling and Servicing Agreement Dated as of November 1, 2004, Asset Backed Pass-Through Certificates Series 2004-WWF1 [“Wachovia”]. Argent argues that the trial court erred by finding that the mortgage now owned by Wachovia has priority over Argent’s mortgage. We reverse.

On August 31, 2004, Gene M. Burkes and Ann Burkes [“the Burkes”] as borrower/mortgagor and Olympus Mortgage Company as lender/mortgagee executed a mortgage [“the Olympus Mortgage”] on real property as security for a $90,000.00 loan. The Olympus Mortgage was recorded on January 5, 2005. Subsequently, the Olympus Mortgage was assigned to Wa-chovia. As a result of default, Wachovia filed a complaint to foreclose the Olympus Mortgage and to enforce lost loan documents. Wachovia joined Argent as a defendant, alleging that Argent might claim some interest in or lien upon the subject property by virtue of a recorded mortgage.

On December 10, 2004, the Burkes as borrower/mortgagor and Argent as lender/mortgagee executed a mortgage [“the Argent Mortgage”] as security for a $65,000.00 loan on the same real property that is the subject of the Olympus Mortgage. The Argent Mortgage was recorded on January 31, 2005. Subsequently, Wells Fargo Bank became the owner of the Argent Mortgage. An action to foreclose the Argent Mortgage was initiated as a result of default.

Argent filed a motion for summary judgment in its favor, requesting that the trial court determine that the Argent Mortgage has priority over the Olympus Mortgage. Likewise, Wachovia filed a motion for summary judgment in its favor, requesting that the trial court determine that the Olympus Mortgage has priority over the Argent Mortgage. After conducting a hearing, the trial court entered an order on the competing motions for summary judgment as to priority. In the order, the trial court made findings on facts not in dispute, including the dates of execution and recordation of the two mortgages and Argent’s lack of actual or constructive notice of the Olympus Mortgage at the time of execution of the Argent Mortgage. Ultimately, the trial court deemed “the Florida statutes on recordation,” namely sections 695.01 and 695.11, Florida Statutes, “to be of the race-notice variety,” found that the Olympus Mortgage should have priority over the Argent Mortgage, and entered a partial final judgment in favor of Wachovia.

On appeal, Argent argues that the trial court erred by finding in favor of Wacho-via on the issue of mortgage priority because the trial court erred in concluding that sections 695.01 and 695.11, Florida Statutes when read together, create a “race-notice” scheme. Argent asserts that section 695.01, Florida Statutes, alone determines which mortgage has priority, that section 695.01 is, and, for over a century, has been recognized to be a “notice” statute, not a “race-notice” statute and that, under section 695.01, the Argent Mortgage has priority over the Olympus Mortgage.

Wachovia acknowledges that section 695.01, Florida Statutes, is a “notice” type of recording statute. However, Wachovia contends that amendments made to section 695.11, Florida Statutes, have converted Florida into a “race-notice” state.

As an initial matter, it bears explaining that recording statutes are classified into three categories: race, notice, and race-notice. See Grant S. Nelson, William B. Stoebuck, and Dale A. Whitman, Contemporary Property 1004 (West Group 2d ed. 2002). These can generally be described as follows:

• Under a race recording statute, a subsequent mortgagee of real property will prevail against a prior mortgagee of the said real property if the subsequent mortgage is recorded before the prior mortgage.

• Under a notice recording statute, a subsequent mortgagee of real property for value and without notice (actual and constructive) of a prior mortgage of the said real property will prevail against the prior mortgagee.

• Under a race-notice recording statute, a subsequent mortgagee of real property for value and without notice (actual and constructive) of a prior mortgage of the said real property will prevail against the prior mortgagee if the subsequent mortgage is recorded before the pri- or mortgage.

Importantly, under either a notice or a race-notice recording statute, the subsequent mortgagee cannot be without constructive notice if the prior mortgage has been recorded as of the time of execution of the subsequent mortgage. See id. at 1004-07.

Application of each type of recording statute to the undisputed facts here yields the following results:

• Wachovia prevails under a race recording statute because the Olympus Mortgage was recorded before the Argent Mortgage;

• Argent prevails under a notice recording statute because it is a subsequent mortgagee for value and did not have notice of the Olympus Mortgage at the time of execution of the Argent Mortgage; and

• Wachovia prevails under a race-notice recording statute because, although Argent is a subsequent mortgagee for value and did not have notice of the Olympus Mortgage at the time of execution of the Argent Mortgage, the Olympus Mortgage was recorded before the Argent Mortgage.

Commentators appear uniformly to categorize section 695.01 as a “notice” type of recording statute. See 2-26 Ralph E. Boyer, Florida Real Estate Transactions § 26.02 (Matthew Bender & Co., Inc. 2010) (“Florida has a notice type recording statute [see § 695.01, Fla. Stat.] the primary function of which is to protect subsequent purchasers (which for purposes of this discussion includes mortgagees and creditors who are within the statute’s protection) against claims arising from prior unrecorded instruments .... ” (citations omitted)).

Florida courts over time have described and applied Florida’s recording statute in a manner that is consistent with a “notice” type of recording statute. See Lesnoff v. Becker, 101 Fla. 716, 135 So. 146, 147 (1931) (“ ‘Under our recording statutes, subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage, or transfer of real property, or any interest therein, will be protected against such unrecorded instrument, unless the party claiming thereunder can show that such subsequent purchaser acquired the title with actual notice of such unrecorded conveyance or mortgage; and the burden of showing such notice is upon the party claiming under such unrecorded instrument, the presumption in such case being that such subsequent purchaser acquired his title in good faith and without notice of the prior unrecorded conveyance.’ ” (quoting Rambo v. Dickenson, 92 Fla. 758, 110 So. 352, 353 (1926))); Morris v. Osteen, 948 So.2d 821, 826 (Fla. 5th DCA 2007) (“Generally, competing interests in land have priority in the order in which they are created;” “[t]he important caveat to this rule is that those acquiring rights later will have priority if they took without ‘notice of the first created rights.’ ” (citation omitted)); F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So.2d 748, 750 (Fla. 5th DCA 1989) (“The first rule is that competing interests in land have priority in order of their creation in point of time;” “[t]his rule is subject to the important exception created by the recording statute that notice of the first created rights must be available to those later acquiring rights in the same land;” and “[t]his normally means that unrecorded rights, titles or lien interests, such as the equitable rights of the beneficiaries of resulting trusts, constructive trusts and equitable liens, are generally held to be inferior to rights subsequently acquired without actual notice of the earlier created but unrecorded rights” (footnotes omitted)). Florida’s approach to the problem was succinctly described by the Florida Supreme Court in Van Eepoel Real Estate Co. v. Sarasota Milk Co., 100 Fla. 438, 129 So. 892, 895 (1930):

[I]t is generally held, in states having recording statutes similar to ours, that if A conveys lands to B, a bona fide purchaser for value, who does not go into possession and who failed to record his deed until after A conveys the same land to C, a second bona fide purchaser for value without notice of B’s interest, and B then records his deed before C records his, the title of C shall nevertheless prevail as between C and B, because it is the fault of B that he did not immediately record his deed, thereby permitting C to deal with the property and part with his consideration without knowledge of B’s interest. So B is es-topped and the equities are with C.

Section 695.01, notwithstanding, the trial court accepted Wachovia’s argument that a 1967 amendment to a different statute, section 695.11, Florida Statutes, entitled, “Instruments deemed to be recorded from time of filing” converted Florida from a “notice” to a “race-notice” jurisdiction. The earliest version of section 695.11 dates back to 1885. Examination of the language of the 1906, 1920, and 1935 iterations of section 695.11, make clear that this statute was intended to provide a mechanism for determining the time at which an instrument was deemed to be recorded. Nothing in the case law suggests that section 695.11 modifies section 695.01.

As a result of the 1967 amendment, section 695.11 now includes the following language: “The sequence of such official numbers shall determine the priority of recordation. An instrument bearing the lower number in the then-current series of numbers shall have priority over any instrument bearing a higher number in the same series.” (Emphasis added). Wachovia contends that the inclusion of this language converted Florida from a “notice” state to a “race notice” state. We disagree. The amendment to section 695.11 is designed to refine the test for determining the time at which an instrument is deemed to be recorded, not to alter the recording requirement found in section 695.01.

Section 695.11 also applies to indexing errors. To the extent that an instrument bears an official register number but has been indexed incorrectly, it is nevertheless deemed to be recorded. See Anderson v. N. Fla. Prod. Credit Ass’n, 642 So.2d 88, 89 (Fla. 1st DCA 1994) (“[A]n instrument is deemed to be ‘officially recorded’ when the instrument is accepted by the court clerk and is given ‘official register numbers.’ ... While indexing is required, priority is not contingent upon such, and the cases cited to us by appellants do not alter the plain language of th[e] statute which provides that ‘[t]he sequence of such official numbers shall determine the priority of recordation.’ ”); see also Orix Fin. Servs., Inc. v. MacLeod, 977 So.2d 658, 658 (Fla. 1st DCA 2008).

Wachovia relies on an earlier opinion of this Court, Rice v. Greene, 941 So.2d 1230 (Fla. 5th DCA 2006), in support of its contention that Florida has a race-notice type of recording statute. In Rice, this Court quoted section 695.01 and found:

In other words, “an unrecorded deed is not good or effectual in law or equity against creditors or subsequent purchasers for valuable consideration who are without notice of the transaction.” Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998). Therefore, because Mr. Greene had no notice of the earlier warranty deed between Mr. Rice and Mrs. Schwartz and paid valuable consideration for the property, Mr. Greene’s recording of his warranty deed before Mr. Rice gives Mr. Greene priority to the property.

Id. at 1282 (emphasis added). According to Wachovia, this language proves that priority in recording is key. Notably, however, Rice does not mention section 695.11 and recording was not an issue. The subsequent purchaser in Rice (Mr. Greene) had priority to the property under a notice type of recording statute because he paid value for the property and did not have notice (actual or constructive) of the earlier warranty deed at the time of the conveyance. The fact that Mr. Greene’s deed was recorded before Mr. Rice’s does not affect the outcome under a notice type of recording statute. Although a portion of the sentence in Rice, on which Wachovia relies, mentions recording, in that case, it was superfluous.

We conclude that Florida is, and remains, a “notice” jurisdiction, and notice controls the issue of priority. Since Argent is a subsequent mortgagee for value and did not have notice of the Olympus Mortgage at the time of execution of the Argent Mortgage, the Argent Mortgage has priority over the Olympus Mortgage. As such, the trial court erred by entering partial summary final judgment in favor of Wachovia on the issue of priority.

REVERSED and REMANDED.

PALMER, J., and PERRY, B., JR., Associate Judge, concur.

      . The trial court entered an order consolidating the two foreclosure actions.

      . Contrary to Wachovia’s contention, when read together, sections 695.01 and 695.11 do not appear to be similar to the wording of New Jersey’s race-notice recording statute on which the trial court relied in its decision.

      . Case law confirms that the purpose of section 695.11 is to determine the time at which an instrument is deemed to be recorded and to serve as notice. See Broward County v. Recupero, 949 So.2d 274, 276 (Fla. 4th DCA 2007) ("Florida Statutes section 695.11 provides that instruments are deemed to be recorded from the time of filing.”); Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So.2d 261, 266-67 (Fla. 4th DCA 2007) ("Section 695.11, Florida Statutes (2006) states that an instrument, like a lease, which is ‘authorized or required to be recorded’ by the clerk 'shall be notice to all persons' once it is ‘officially recorded’ pursuant to the statute.”); In re Forfeiture of $91,357.12, 595 So.2d 998, 999 (Fla. 4th DCA 1992) ("Section 695.11, Florida Statutes, specifically provides that the effective time of recording is the point at which the document is officially accepted and offi-

        dally recorded.” (emphasis in original)); Paterson v. Brafman, 530 So.2d 499, 500 (Fla. 3d DCA 1988) (“Our reversal is founded upon the basic, irrefutable principle that those who subsequently deal with real property are placed on constructive notice of the relevant contents of a properly recorded instrument ....” (citing section 695.11, Florida Statutes)). Section 695.11 has an important purpose to determine the priority between judgment liens. See Lamchick, Glucksman & Johnston, P.A. v. City Nat’l Bank of Fla., 659 So.2d 1118, 1119 (Fla. 3d DCA 1995); Dollar Sav. & Trust Co. v. Soltesiz, 636 So.2d 63, 66 (Fla. 2d DCA 1994); Martinez v. Reyes, 405 So.2d 468, 469 (Fla. 3d DCA 1981). Because a certified copy of a judgment must be recorded in order to create a lien on real property, a judgment that is recorded earlier in time, namely one that bears a lower official register number, will win priority.


author: EVANDER, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Michelle AUSTER, Respondent.
    No. 5D10-1932.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.
    Rehearing Denied Jan. 25, 2011.
    Robin Lotane, General Counsel, Michael J. Alderman, Acting General Counsel, and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, for Petitioner.
    David H. Novack, of Jaeger and Blank-ner, Orlando, for Respondent.
   EVANDER, J.

Petitioner, Department of Highway Safety and Motor Vehicles (DHSMV), seeks second-tier certiorari review of a decision of the circuit court sitting in its appellate capacity pursuant to section 322.2615(13), Florida Statutes (2008). The circuit court granted Respondent Michelle Auster’s petition for writ of certiorari and quashed an order of the DHSMV hearing officer which had upheld the suspension of Auster’s driver’s license for refusal to submit to a breath test. In doing so, the circuit court determined that the hearing officer had departed from the essential requirements of law and had denied Aus-ter due process by refusing to issue a subpoena for the breath test technician. Although we disagree with the circuit court’s analysis, we agree with the ultimate conclusion and deny DHSMV’s petition.

Auster was arrested for the offense of driving under the influence on July 29, 2008. Her driver’s license was subsequently suspended pursuant to section 322.2615(l)(a) for refusal to submit to a test of her breath-alcohol level. Auster requested a formal review hearing, which was held on August 27, 2008.

Prior to the hearing, Auster requested the hearing officer issue a subpoena for breath technician Osvaldo Caner. The request was denied. At the onset of her hearing, Auster renewed her request for the issuance of a subpoena arguing, inter alia, that she wished to examine Caner on the issue of whether Auster had timely recanted her refusal to submit to a breath test. Without providing any explanation, the hearing officer again denied Auster’s request.

After reviewing the DUI citation, the arrest affidavit, the DUI work sheet, and the “refusal to submit” affidavit submitted by the arresting officer, the hearing officer entered an order upholding the suspension of Auster’s driver’s license. The hearing officer found that 1) the arresting officer had probable cause to believe that Auster was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substance, 2) Auster refused to submit to a breath test after being requested to do so by a law enforcement officer subsequent to a lawful arrest, and 3) Auster had been advised that if she refused to submit to such test her privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of eighteen months.

In quashing the hearing officer’s order, the circuit court erroneously asserted that in Dep’t of Highway Safety & Motor Vehicles v. Amodeo, 711 So.2d 148 (Fla. 5th DCA 1998), our court had “squarely and unequivocally held that a hearing officer has absolutely no discretion whatsoever to refuse to issue a subpoena for a fact witness to attend a formal driver’s license suspension hearing.” In fact, our Amodeo decision was simply a denial, without a written opinion, of a petition for writ of certiorari brought by DHSMV. As such, it had no precedential value. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So.2d 310 (Fla.1983).

We do agree, however, with the circuit court’s conclusion that it was error for the hearing officer to refuse to issue the requested subpoena. A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)00, Fla. Stat. (2008). Here, Caner was identified in these documents. Furthermore, according to DHSMV’s own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). The question of whether Auster timely rescinded her refusal to submit to a breath test is a relevant issue. See, e.g., Larmer v. Dep’t of Highway Safety & Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988) (defendant could, after refusing to take breath test, rescind that decision and avoid penalties for refusal where defendant’s retraction of initial refusal came moments after refusal while defendant was continuously in presence of police officers and in circumstances where no inconvenience would result by permitting defendant immediately thereafter to take test).

DHSMV cites to Dep’t of Highway Safety & Motor Vehicles v. Chamizo, 753 So.2d 749 (Fla. 3d DCA 2000), for the proposition that the hearing officer has the discretion to grant or deny a request for the issuance of a subpoena. In Chamizo, the defendant submitted to a breath test and the result reflected a breath-alcohol level well above the legal limit. The defendant unsuccessfully requested the issuance of a subpoena for Officer Perez, a backup officer who had arrived at the scene after the traffic stop had already been made. In explaining the purported need for Perez’ testimony, the defendant proffered that Perez would testify regarding the issues of whether the defendant had been rude to the arresting police officer and whether there had been a conversation between Perez and the defendant regarding the breath test. The proffered testimony appeared to be irrelevant to the issues that would be within the limited scope of Chamizo’s formal review hearing; to wit:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in section 316.193.

§ 322.2615(7)(a), Fla. Stat. (2008). The Chamizo court went on to say that although it was “inclined to think ... there was no error in quashing the subpoena ... we need not now decide the point. Assuming it was error to quash the subpoena, the error was harmless.” Chamizo, 753 So.2d at 752.

We agree with the general proposition that a hearing officer has discretion to grant or deny a subpoena request. However, that discretion is limited. Where the witness’ expected testimony would be relevant to the issues within the limited scope of the review hearing and would not be clearly cumulative, due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so.

Unlike Chamizo, the instant case involves a defendant alleged to have refused to take a breath test. Thus, pursuant to section 322.2615(7)(b), the scope of review was limited to the issues of:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

Auster wished to examine the breath technician on an issue clearly within the scope of the review hearing. Furthermore, the hearing officer could not have concluded from the record before him that the breath technician’s testimony would be cumulative. Accordingly, Auster should have been afforded the opportunity to present the witness’ testimony.

Petition for Writ of Certiorari is DENIED.

COHEN and JACOBUS, JJ., concur.

      . The extent of our published decision in Am-odeo was as follows:
      The respondent's motion for rehearing is granted. The opinion dated February 27, 1998, is withdrawn and the decision of the circuit court is affirmed.
      Because Amodeo involved a second-tier petition to our court, the petition should have been “denied” as opposed to the lower court's decision being "affirmed.”

      . Although unnecessary to the resolution of the instant case, we agree with our sister court's holding in Lee v. Department of Highway Safety & Motor Vehicles, 4 So.3d 754 (Fla. 1st DCA 2009) that section 322.2615(6)(b) does not limit a hearing officer's authority to issue subpoenas to only those witnesses identified in documents named in subsection (2).


author: SHEPHERD, J.

text:
    Charles L. DAWKINS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1635.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.

      Charles L. Dawkins, Jr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

Charles L. Dawkins appeals from the trial court’s order denying his petition for writ of habeas corpus for a belated appeal. In his petition, filed with the Eleventh Judicial Circuit, Dawkins swore he submitted to a South Florida Reception Center officer a timely notice of appeal for his conviction and sentence entered on October 15, 2009, for mailing on November 11, 2009, but through no fault of his own, was never received by the circuit court. The trial court denied Dawkins’ petition on the merits. This was error. The trial court should have denied his petition based on the trial court’s lack of jurisdiction to determine the petition and instruct Dawkins to file the motion with the Third District Court of Appeal. See Fla. R.App. P. 9.141(c)(2) (“Petitions seeking belated appeal ... shall be filed in the appellate court to which the appeal was or should have been taken.”).

Because Dawkins filed his petition for writ of habeas corpus for a belated appeal in the wrong court, we treat this appeal as a petition for writ of habeas corpus for a belated appeal, and grant the petition. See Fla. R.App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.”).

We reverse the trial court’s order denying Dawkins’ petition for writ of habeas corpus. In accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D), this opinion shall be filed with the lower tribunal and treated as the notice of appeal for Dawkins’ conviction and sentence rendered on October 21, 2009.

We also appoint the Office of the Public Defender to determine the indigent status of the defendant for this appeal.


author: SCHWARTZ, Senior Judge.

text:
    Dwain W. HIGGINBOTHAM, Appellant, v. Elsa HIGGINBOTHAM, Appellee.
    No. 3D10-2310.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.

      Cynthia J. Dienstag, Miami, for appellant.
    Peter H. Kircher, Miami, for appellee.
    Before GERSTEN and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Although we agree that the wife was not limited to the $5,000 cap on attorneys’ fees provided by the parties’ ante-nuptial agreement, even though the agreement as a whole was upheld below, see Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Johnson v. Johnson, 946 So.2d 1132 (Fla. 1st DCA 2006); Mulhern v. Mulhern, 446 So.2d 1124 (Fla. 4th DCA 1984); Blanton v. Blanton, 413 So.2d 453 (Fla. 5th DCA 1982); Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975), we find the $305,640.00 in “temporary” fees granted her, essentially for litigating the validity of the prenup, excessive under the pertinent circumstances. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997). This is the case particularly in light of (a) the “results obtained,” Id. at 698; and the rules (b) that such fees should not be awarded for time and services in excess of those required for the representation in question, see Miller v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1992); and (c) that the purpose of such awards in domestic cases is to accord the respective parties an approximately equal ability and opportunity to retain counsel. See Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Bagley v. Bagley, 720 So.2d 582 (Fla. 4th DCA 1998); Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980). (In this regard, we note that the fees paid to the husband’s lawyer for (successfully) representing him as to the same issues were $138,442.00). Accordingly, the order on appeal is reversed and the case is remanded for substantial reduction of the fee award under review.

Reversed and remanded.

      . As to the primary factor in such a determination, Rosen, 696 So.2d at 700, there is no doubt that there is a vast disparity in the financial resources of the parties. The wife has obvious needs and the husband, an eminent ability to pay.

      . We do not disturb the $18,963.16 granted for costs.