author: DAVIS, Judge.

text:
    Robert ALORDA and Danielle Alorda-McKinnon, Appellants, v. SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D10-3966.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2012.
    Rehearing Denied Feb. 15, 2012.

      Michael V. Laurato of Austin & Laurato, P.A., Tampa, for Appellants.
    Francis E. Friscia and George D. Root, III, of Meirose & Friscia, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Robert Alorda and his daughter, Danielle Alorda-McKinnon (the Alordas), challenge the trial court’s final judgment awarding attorney’s fees and costs to Sutton Place Homeowners Association, Inc., in conjunction with the Association’s action for injunctive relief against the Alordas. In its order, the trial court found that the Association had prevailed in that action and thus awarded it attorney’s fees. However, because the Association could not be the prevailing party in an action seeking an equitable remedy when a remedy at law was available, we reverse.

The Alordas purchased a townhouse located in the Sutton Place subdivision on June 29, 2007. The subdivision is subject to the Declarations of Covenants, Conditions, Restrictions, and Easements filed in the public records of Hillsborough County. Section 9.04 of the Declarations requires that the owner of a residence in the subdivision maintain insurance on the residential property and annually provide notice of such coverage to the Association. Specifically, the provision states that at the time of purchase the owner must provide proof of such coverage and that on the purchase anniversary date each year, the owner must provide proof that such coverage has been renewed.

In June 2008, upon the first anniversary of the Alordas’ purchase, the Association did not receive any notice that the Alordas had renewed their insurance coverage. The Association therefore began to send them letters advising of the need to provide the required proof. The record indicates that letters were sent in May, July, and August of 2008. In September 2008, the Association sent its offer to engage in presuit mediation regarding the coverage issue. Although Mr. Alorda did agree at that time to provide the proof of coverage, he continued to fail to do so. This prompted a letter from the Association requesting his compliance with the prior agreement. When that did not resolve the matter, the Association tried one last time to obtain the proof of coverage by letter dated March 9, 2009.

When these efforts failed, the Association filed its complaint against the Alordas on April 9, 2009. By the complaint, the Association sought the equitable remedy of injunctive relief, specifically asking the trial court to “enter a permanent mandatory injunction requiring that the Defendant obtain the insurance coverages as are described in § 9.04 of the Declaration.” In response to the service of that suit, the Alordas’ attorney sent the Association’s attorney an email on May 6, 2009, advising that the Alordas did have the required coverage. Attached to the email was a copy of the declaration pages of the Alor-das’ insurance policy, showing that it went into effect March 19, 2009. Counsel for the Alordas also asked if the Association would dismiss its action “so that additional attorney time will not be expended on an appropriate response.”

After the Alordas did not receive a favorable response to their attorney’s email suggestion, they filed a motion to dismiss on May 11, 2009. In the motion, the Alor-das suggested that the Association had failed to plead sufficient facts to establish the needed elements for the trial court to enter an injunction. Specifically, the Alor-das argued that although a clear legal right had been violated, the Association had failed to sufficiently establish that it lacked an adequate remedy at law to justify injunctive relief.

In the memorandum of law attached to the motion, the Alordas maintained that the Association’s adequate legal remedy was expressed by the terms of the Declarations attached to the Association’s complaint. The memorandum quoted section 9.04 of the Declarations as follows:

The owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date thereof. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration.

(Emphasis added.)

Additionally, the Alordas argued that the Association could only obtain injunctive relief to prevent a threatened harm but not to redress harm that already had occurred. The Alordas maintained that because they had obtained insurance coverage effective March 19, 2009, i.e., prior to the filing of the complaint, there remained no threatened harm to be enjoined. And the Alordas further alleged that the issue was moot.

The trial court held a hearing on the motion to dismiss on September 9, 2009, and entered its order denying the motion on September 11, 2009. The Alordas then filed their answer and affirmative defenses on September 24, 2009. Included in the affirmative defenses were the previously raised arguments that the Association had an adequate remedy at law and that in-junctive relief was not proper when there was no threatened harm to enjoin where the Alordas already had obtained insurance coverage.

The trial court, however, granted the Association’s request that the issue be referred to mediation, which ultimately re-suited in an impasse. On November 16, 2009, the Association filed its notice requesting a nonjury trial, and the trial court, on December 16, 2009, entered its order setting nonjury trial for March 5, 2010. Prior to trial, the Alordas filed a motion for summary judgment, arguing again that as a matter of law the Association was not entitled to injunctive relief. In response to that motion, the Association filed the affidavit of Ronald Trowbridge, agent of the Association, who averred that the Alordas failed to provide the required notice of insurance coverage until after the complaint had been filed.

After considering the motion, the filed depositions, and Mr. Trowbridge’s affidavit, the trial judge sent a memo to the parties dated March 2, 2010. He advised that he was going to deny the motion for summary judgment but that he was dismissing the complaint as moot and that the March 5 trial date would be used to determine the prevailing party for the purpose of awarding attorney’s fees.

Following that hearing, the trial court entered its order determining that the Association was the prevailing party and awarding it $10,725 in attorney’s fees and $2106.40 in costs. The court based its conclusion on the finding that even though the Alordas eventually provided notice of their insurance coverage, the Association had been required to file the lawsuit to obtain that notice.

The Alordas argue on appeal that because injunctive relief was never available to the Association and the complaint should have been resolved on the original motion to dismiss, the Association cannot be considered the prevailing party.

We agree with the Alordas that the Association cannot be considered the prevailing party because it did not state a cause of action for injunctive relief in its complaint. See Shaw v. Tanvpa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007) (“ A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy of law.’ ” (quoting Dep’t of Health & Rehab. Servs. v. Weinstein, 447 So.2d 345, 345 (Fla. 4th DCA 1984))); see also Digaeteno v. Perotti, 374 So.2d 1015, 1016 (Fla. 3d DCA 1979) (concluding that “the trial judge erred in resorting to equity and entering the mandatory injunctions” where the plaintiff had “an adequate remedy at law”).

By its own pleadings, the Association acknowledged that it had an available remedy at law. The Declaration attached to the complaint provided the Association with procedures to follow if an owner failed to provide the required notice of insurance coverage. The procedures specifically include allowing the Association to obtain coverage and then assessing the cost of obtaining that coverage against the owner. The procedures also provide that the assessment can be recorded as a lien against the owner’s real property if the assessment is not paid within thirty days and that an action at law could then be filed against the owner to collect the assessment, including a foreclosure action on the real estate if necessary. Although the complaint makes a general allegation that the Association did not have an adequate remedy at law, the complaint failed to allege facts that would show how the specific legal remedies provided by the Declaration attached thereto were not available. See Coriat v. Global Assurance Grp., Inc., 862 So.2d 743, 743 (Fla. 3d DCA 2003) (“A trial court[,] when considering a motion to dismiss!,] must look only to the four corners of the complaint including the attachments .... ”).

Accordingly, the trial court should have dismissed the complaint at the September 5, 2009, hearing because the Association failed to allege a cause of action. See City of Coral Springs v. Fla. Nat’l Props., Inc., 340 So.2d 1271, 1272 (Fla. 4th DCA 1976) (“[T]he ... complaint did not state a cause of action for injunctive relief, and ... the appellant’s motion to dismiss should have been granted.... [T]he [complainant] must show that he has no adequate remedy at law.”). If the proper ruling had been entered on the Alordas’ motion to dismiss, the Association would have been precluded from being the prevailing party because it had failed to state a valid cause upon which it could prevail. Cf. McKelvey v. Kismet, Inc., 430 So.2d 919, 922 (Fla. 3d DCA 1983) (concluding that a defendant is entitled to prevailing party attorney’s fees where all of the counts in the plaintiffs complaint were either voluntarily dismissed or dismissed for the plaintiffs failure to state a cause of action); see also Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 991 (Fla. 4th DCA 2010) (“Although the dismissal order was not an adjudication on the merits, the [defendants] can nonetheless be considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed.”).

In reaching this conclusion, we are not unsympathetic to the Association’s having incurred unnecessary fees and costs in attempting to obtain the Alordas’ compliance with the terms of the Declaration. However, this opinion addresses only whether courts can award fees based on a prevailing party theory where that party can never prevail because the complaint, on its face, fails to state a cause of action. Because this impossibility prevents the award of fees to the Association in this action, we are compelled to reverse that award.

Reversed.

VILLANTI and MORRIS, JJ., Concur.

      . Although Danielle is on the title to the real estate with her father, she does not reside at the residence.

      . Our record does not include a transcript of the September 9, 2009, hearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas Abe HODGES, Petitioner, v. Misti Michelle HODGES, Respondent.
    No. 1D11-6026.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    William Bruce Muench of Muench & Luca, Jacksonville, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    William BOSHEARS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D11-6819.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 27, 2012.

      William Boshears, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


author: ALTENBERND, Judge,

text:
    Jonathan A. FUSS, Appellant, v. David C. GROSS, Appellee.
    No. 2D10-1151.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2012.
    Rehearing Denied March 16, 2012.
    Marie Tomassi and Adam S. Butkus of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant.
    Michael D. Allweiss and Allen P. All-weiss of Allweiss & Allweiss, St. Peters-burg, for Appellee.
    WHATLEY and CRENSHAW, JJ., Concur.
    ALTENBERND, J., Dissents with opinion.
   ALTENBERND, Judge,

Dissenting.

Jonathan A. Fuss appeals a final summary judgment entered in favor of David C. Gross concerning the sale of two funeral homes in June 1997. Mr. Fuss believes that Mr. Gross, as his partner in these sales, defrauded him and engaged in self-dealing. He believes that Mr. Gross should be required to pay him a larger share of the sales proceeds. The trial court granted summary judgment, finding that the claims were barred by a statute of limitations and that Mr. Gross was entitled to a judgment because there was no issue of fraud even if the time for the lawsuit had not expired. I disagree with both legal decisions.

For several years ending in 1997, Mr. Fuss and Mr. Gross jointly owned the Beth David Funeral Home. Mr. Gross solely owned the Gross Funeral Home. The men decided to sell these funeral homes and concluded that it would be better to sell them to one buyer at the same time. Mr. Gross allegedly assured Mr. Fuss that the two homes had approximately equal value of about $1.5 million. Mr. Fuss apparently cancelled one potential sale, and the two men agreed that Mr. Gross would take the lead in negotiating a future sale.

Mr. Gross located a willing buyer and arranged for the preparation of contracts of sale. The jointly owned funeral home was to be sold for approximately $1 million. Mr. Gross allegedly assured both Mr. Fuss and Mr. Fuss’s attorney that the two homes were being sold for essentially the same price, but he refused to give them a copy of the documents associated with the sale of his own funeral home. Mr. Fuss’s attorney advised him that it was very unusual for Mr. Gross to refuse to disclose the terms of the other sale and that it was up to Mr. Fuss to decide whether to trust Mr. Gross and proceed with the sale. Mr. Fuss decided to proceed with the sale.

Following the sale, Mr. Fuss did little or nothing to discover the terms of the other sale. In June 2002, during trial testimony in other litigation, Mr. Gross was required to answer a question, disclosing that he sold his own home for $2.1 million and the jointly held home for $1 million.

Mr. Fuss filed this lawsuit on May 12, 2008, alleging that he had been defrauded. An action for fraud must be filed within four years. § 95.11(3)(j), Fla. Stat. (1995). This period, however, is rarely measured from the accrual of the cause of action because an action for fraud can be tolled for as long as twelve years. § 95.031(2), Fla. Stat. (1995). It runs from the point when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action with the exercise of due diligence. Id. As a result, one measures a discovery statute of limitations backwards from the date the lawsuit is filed. Thus, the statute of limitations for fraud would bar this action only if it can be said that Mr. Fuss should have discovered that he had been defrauded before May 1999.

The trial court relied on Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288 (Fla. 3d DCA 2007), for the proposition that Mr. Fuss knew enough at the time of the closing for the statute of limitations to begin at that time. In Acosta, the documents provided at the similar closing revealed enough information to allow the plaintiff to perform a mathematical calculation and determine that he was being paid less than his fair share. By contrast, the information at closing in this case did not provide information disclosing any fraudulent conduct, much less that Mr. Fuss was being paid about $250,000 less than an even split.

I agree that Mr. Fuss was put on notice at the time of the closing that he may have a claim against Mr. Gross. His decision not to engage in further investigation at that time does not help his claim. Nevertheless, I disagree with the trial court and my colleagues that the statute of limitations in this case commenced as a matter of law at the time of the closing. Instead, I conclude that the issue is whether Mr. Fuss could have discovered the facts giving rise to his claim by the exercise of due diligence during the roughly twenty-three months between the closing and the commencement of the four-year period that is set by measuring back from the date when he filed his lawsuit.

This court has previously held that a movant must “conclusively demonstrate that there is no disputed issue of material fact as to when the non-moving party discovered or should have discovered the invasion of his or her legal rights.” Keller v. Reed, 603 So.2d 717, 719 (Fla. 2d DCA 1992). Ordinarily, when a person should have known such facts is a question for the trier of fact. Id. at 720; see also Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994); Aprile v. Suncoast Schs. Fed. Credit Union, 596 So.2d 1290, 1293 (Fla. 2d DCA 1992); Harr v. Hillsborough Cnty. Mental Health Ctr., 591 So.2d 1051, 1054 (Fla. 2d DCA 1991).

Mr. Gross simply has not established for purposes of summary judgment that Mr. Fuss could or should have discovered the facts of the alleged fraud during the relevant window of time. It is obvious from the earlier trial transcript that Mr. Gross was never going to volunteer these facts to Mr. Fuss. The record currently does not establish that the critical price disparity could have been discovered from any public record. It is unclear to me what type of lawsuit Mr. Fuss could have filed shortly after the closing as a vehicle to discover this information. Mr. Gross has not been a very cooperative defendant in this lawsuit, and I cannot conclude as a matter of law that Mr. Fuss would have discovered this information in another lawsuit within the relevant twenty-three months. Accordingly, I believe the trial court erred in relying on Acosta and that a summary judgment based on the statute of limitations was not authorized on this record.

The order on appeal also finds that Mr. Fuss did not “reasonably rely to his detriment on anything that [Mr. Gross] said or did.” The trial court explained that Mr. Fuss closed the transaction “with knowledge that the deal might not be what he believed it was.” I simply conclude that this reasoning is incorrect.

There clearly is an issue in this case as to whether Mr. Fuss sustained “detriment” as a result of the terms of the two sales. There appears to be a $250,000 imbalance between what Mr. Fuss was promised and what he received. It is at least an unresolved question of fact whether the buyer would have adjusted these terms to equalize the two sales if Mr. Fuss had known they were unequal. When a partner in such a transaction gives his word, I do not conclude that the law declares that the other partner is unreasonable, as a matter of law, in relying on his partner’s representations. There is an issue of fact whether Mr. Fuss reasonably relied to his detriment on the factual representations of Mr. Gross.

Accordingly, I would reverse and remand for further proceedings.

      . The transcript of this disclosure is revealing. The trial judge ordered Mr. Gross to answer the question with the jury in the box. He repeatedly refused to answer. The trial court removed the jury and had further discussions with Mr. Gross. Finally, Mr. Gross agreed he would answer the question, but that he "would have to think for a minute.” There are five pages of transcript between the question and the answer: “I believe it was two point one million.”

      . This is not a case involving "delayed discovery,” where the tort is deemed not to have accrued until the later date. It is a case in which the commencement of the limitations period is tolled due to the defendant’s fraudulent concealment of the necessary facts. Cf. Hearndon v. Graham, 767 So.2d 1179, 1185 n. 3 (Fla.2000) (discussing these concepts in another context).


author: GRIFFIN, J.

text:
    Leighdon HENRY, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D08-3779, 5D10-3021.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Rehearing Denied Feb. 24, 2012.

      Leighdon Henry, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
    Gerard F. Glynn, Barry University School of Law, Orlando, Sonya Ruden-stine, Gainesville, and Michael Ufferman, Tallahassee, Amici Curiae of The Juvenile Life Without Parole Defense Resource Center and The Florida Association of Criminal Defense Lawyers in Support of Appellant Henry.
   GRIFFIN, J.

Leighdon Henry [“Henry”] pro se appeals his judgment and sentence for three counts of sexual battery with a deadly weapon or physical force, one count of kidnapping with intent to commit a felony (with a firearm), two counts of robbery, one count of carjacking, one count of burglary of a dwelling, and one count of possession of twenty grams or less of cannabis. We find no error and affirm without comment on all issues except one. Henry contends that the sentences he received violate the constitutional prohibition against cruel and unusual punishment in light of the United States Supreme Court’s decision in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). At the time of his offenses, Henry was seventeen years old.

Henry’s convictions and sentences arose from the following facts: The victim entered her apartment and found her sliding door had been opened. She saw a stranger, Henry, standing in the hallway. She tried to run, but he grabbed her from behind, causing her to fall and injure her face. Henry put his hand over her mouth and told her to be quiet. He then showed her a gun and told her to get up. He took her into her bedroom, showed her the gun and slapped her face. He licked her genitals, penetrated her vagina and anus and put his penis in her mouth. He then made her shower. Henry took food from the victim’s kitchen and forced her to take him to an ATM machine and withdraw money. The victim was able to get away after they left the ATM.

At the time of his sentencing on October 17, 2008, the trial court found that Henry qualified as a sexual predator, and sentenced him as follows: Counts I, II, & III (sexual battery with a deadly weapon or physical force) — natural life on each count, Count V (kidnapping with intent to commit a felony) — thirty years, Count VI (robber-fifteen years, Count VII (carjacking) — thirty years, Count VIII (robbery) fifteen years, Count IX (burglary of a dwelling) — fifteen years, and Count X (possession of 20 grams or less of cannabis (marijuana) — 364 days in jail with credit for 364 time served. Counts I, II, III, V, and VI were ordered to run concurrently with each other; Counts VII, VIII, and IX were ordered to run consecutively with each other as well as consecutively to Counts I, II, III, V, and VI; and Count X was ordered to run concurrently to Count I. Thereafter, on October 20, 2008, the trial court entered an order, nunc pro tunc, correcting sentencing with respect to Count V, in which it directed that no minimum mandatory be imposed, pursuant to the jury verdict.

Henry filed a notice of appeal on October 24, 2008. Thereafter, Henry filed a rule 3.800(b) motion, and an amended rule 3.800(b) motion, to correct sentencing error, in which he argued that the imposition of life sentences constituted cruel and unusual punishment under Graham. After conducting a hearing, the trial court granted Henry’s motion and entered an order re-sentencing Henry on the sexual battery counts to thirty years on each count concurrent to each other, but consecutive to the remaining counts. Thus, Henry was sentenced to a total of ninety years in prison. In all other respects, the sentencing remained the same.

In this appeal, Henry contends that his current sentence constitutes a defacto sentence of life without the possibility of parole and that such a sentence meets the test of cruel and unusual punishment under Graham. Although the time that Henry is to serve can be shortened through incentive and meritorious gain-time, under Florida law, he must serve eighty-five percent; therefore, Henry should serve at least 76.5 years. Henry has filed a National Vital Statistics Report as supplemental authority, suggesting that his life expectancy at birth by race and sex is 64.3 years. Henry argues that because he is going to have to serve more years in prison than, statistically, he is expected to live, his sentence is an unconstitutional de facto life sentence.

In Graham, the United States Supreme Court addressed the issue of “whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.” 130 S.Ct. at 2017-18. The State of Florida imposed such a sentence, and the defendant “ehal-lenge[d] the sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, made applicable to the States by the Due Process Clause of the Fourteenth Amendment.” Id. at 2018. After the defendant was found to have “violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity,” he was adjudicated guilty of the earlier charges of armed burglary and attempted armed robbery for which he had been serving probation. Id. at 2019-20. The trial court “sentenced him to the maximum sentence authorized by law on each charge: life imprisonment for the armed burglary and 15 years for the attempted armed robbery.” Id. at 2020. Importantly, “[bjecause Florida ... abolished its parole system, see Fla. Stat. § 921.002(l)(e) (2003), a life sentence gives a defendant no possibility of release unless he is granted executive clemency.” Id.

The Supreme Court found:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Id. at 2034. With respect to the defendant, the Court said:

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Id. at 2033. The Court noted “the global consensus against the sentencing practice in question.” Id. It also noted that it “has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Id. at 2027. The Court observed that “[ljife without parole is an especially harsh punishment for a juvenile,” explaining:

Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only. See Roper,[] supra, at 572, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1; cf. Harmelin, supra, at 996, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (“In some cases ... there will be negligible difference between life without parole and other sentences of imprisonment — for example, ... a lengthy term sentence without eligibility for parole, given to a 65-year-old man”). This reality cannot be ignored.

Id. at 2028.

In his dissenting opinion, Justice Thomas discussed the evidence of the frequency of the sentencing practice at issue. Id. at 2052 (Thomas, J., joined by Scalia, J., and joined in Parts I and III by Alito, J., dissenting). He noted: “[I]t seems odd that the Court counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-yeárs sentences (e.g., 70 or 80 years’ imprisonment),” and asserted: “It is difficult to argue that a judge or jury imposing such a long sentence — which effectively denies the offender any material opportunity for parole— would express moral outrage at a life-without-parole sentence.” Id. at 2052 n. 11. Justice Alito, in-his dissenting.opinion, pointed out that “[njothing in the Court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole,” and that “[ijndeed, petitioner conceded at oral argument that a sentence of as much as 40 years without the possibility of parole ‘probably would be constitutional.” Id. at 2058 (Alito, J., dissenting).

The facts here are different from those in Graham. Here, unlike the defendant in Graham, Henry did not (in the end) receive a life sentence without parole for a nonhomicide offense; he received a lengthy aggregate term-of-years sentence without the possibility of parole for multiple nonhomicide offenses. This precise issue has not yet been addressed by a Florida court, although, very recently in two cases, the First District Court of Appeal did address the issue of a lengthy term-of-years sentence imposed on a juvenile in Gridine v. State, — So.3d-, 2011 WL 6849649 (Fla. 1st DCA 2011) and Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011). In Gridine, the sentence at issue was seventy years for attempted first degree murder, and in Thomas, the sentences were concurrent fifty years for armed robbery and aggravated battery. In neither did the First District find a constitutional violation based on Graham. See also Manuel v. State, 48 So.3d 94, 98 n. 3 (Fla. 2d DCA 2010).

Courts in other jurisdictions that have considered this issue have arrived at inconsistent conclusions. California has seen a significant split among its intermediate appellate courts on the application of Graham to lengthy term-of-years sentences.

In People v. Mendez, 188 Cal.App.4th 47, 114 Cal.Rptr.3d 870, 873 (Cal.App. 2010), Division 2 of California’s Second District Court of Appeal, applied the holding in Graham to a lengthy term-of-years sentence that it characterized as a de facto life sentence without the possibility of parole. Months later in People v. Caballero, 191 Cal.App.4th 1248, 119 Cal.Rptr.3d 920, 926 (Cal.App.2011), Division 4 of California’s Second District Court of Appeal, disagreed with the holding in Mendez, stating that it “declinefd] to follow Mendez’s holding that the principles stated in Graham bar a court from sentencing a juvenile offender to a term-of-years sentence that exceeds his or her life expectancy.” Thereafter, in People v. Ramirez, 193 Cal. App.4th 613, 123 Cal.Rptr.3d 155, 165 (Cal. App.2011), Division 4 of California’s Second District Court of Appeal, adhered to the view in Caballero. However, in People v. J.I.A., 196 Cal.App.4th 393, 127 Cal. Rptr.3d 141, 149 (Cal.App.2011), Division 3 of California’s Fourth District Court of Appeal, declined to follow Caballero, concluding that the defendant’s sentence was cruel and unusual punishment under Graham and Mendez where: “[ajlthough [the defendant’s] sentence [was] not technically an LWOP [“life without parole”] sentence, it [was] a de facto LWOP sentence because he [was] not eligible for parole until about the time he [was] expected to die.” Again, in People v. De Jesus Nunez, 195 Cal. App.4th 414, 125 Cal.Rptr.3d 616, 618 (Cal.App.2011), Division 3 of California’s Fourth District Court of Appeal, agreed with Mendez and disagreed with Ramirez, stating that it “perceive[d] no sound basis to distinguish Graham’s reasoning where a term of years beyond the juvenile’s life expectancy is tantamount to an LWOP term.” The California Supreme Court recently granted review of these decisions. See People v. Caballero, 123 Cal.Rptr.3d 575, 250 P.3d 179 (2011), People v. Ramirez, 128 Cal.Rptr.3d 271, 255 P.3d 948 (2011), and People v. Nunez, 128 Cal. Rptr.3d 274, 255 P.3d 951 (2011).

Unlike California, Georgia courts are, so far, consistent in their view that Graham is not implicated in a term-of-years sentence. See Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011) (holding that sentence of mandatory twenty-five years followed by life on probation for aggravated molestation of a four-year-old child does not implicate categorical Eighth Amendment restriction under Graham, nor is it grossly disproportionate for particular crime); Middleton v. State, 313 Ga.App. 193, 721 S.E.2d 111 (Ga.Ct.App.2011) (determining that aggregate sentence of thirty years without parole for armed robbery, two counts of aggravated assault, kidnapping and theft after sexual assault of a fifty-four-year-old woman and theft of her car and purse did not implicate Graham because the defendant received a term-of-years sentence).

The Arizona Court of Appeals also recently considered the application of Graham in a case involving convictions of six counts of arson of an occupied structure, one count of attempted arson, fifteen counts of endangerment, seven counts of criminal damage and two counts of arson of property, which, with a combination of enhanced and consecutive sentences, totaled an aggregate of 139.75 years. State v. Kasic, 265 P.3d 410 (Ariz.Ct.App.2011). The court rejected the “de facto life sentence” argument, saying that the Graham decision made clear that it applied only to juvenile offenders sentenced to life without parole for non-homicide offenses. The court also pointed out that Kasic was convicted of thirty-two felonies and the longest sentence Kasic received for any one offense was 15.75 years.

If we conclude that Graham does not apply to aggregate term-of-years sentences, our path is clear. If, on the other hand, under the notion that a term-of-years sentence can be a de facto life sentence that violates the limitations of the Eighth Amendment, Graham offers no direction whatsoever. At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is. We conclude that Henry’s aggregate term-of-years sentence is not invalid under the Eighth Amendment and affirm the decision below.

AFFIRMED.

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

      . Section 921.002(l)(e), Florida Statutes, provides:
      The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 percent of his or her term of imprisonment as provided in s. 944.275(4)(b) 3. The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.

      . Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

      . Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

      . One of the underlying premises of Graham, that juveniles, as a class, spend more time incarcerated than do adults because "life” for a juvenile is longer than "life” for an adult, breaks down when term-of-years sentences come into play.

      . But see U.S. v. Mathurin, 2011 WL 2580775 (S.D.Fla. June 29, 2011).


text:
    Timothy E. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4240.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Rehearing Denied March 27, 2012.
    Timothy E. White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. Petitioner’s motion to show cause is denied.

BENTON, C.J., CLARK and MARSTILLER, JJ„ concur.


text:
    Joseph D. HURT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.

      Joseph D. Hurt, Punta Gorda, pro se.
    No response required for appellee.
   PER CURIAM.

Joseph D. Hurt appeals the summary denial of his Rule 3.850 motion. Hurt claimed that counsel performed deficiently in failing to advise him sooner regarding how much time he would actually serve in prison pursuant to a plea offer that had been extended by the State. The State withdrew the offer before it was formally accepted by the court, and Hurt then entered a voluntary open plea to the court and received a legal sentence. We conclude that appellant failed to state a cognizable claim of ineffective assistance of counsel and affirm.

Background

In May 1992, Hurt pleaded guilty to the following: (I) armed burglary; (II) burglary of a dwelling; (III) and (IV) grand theft; (V) resisting arrest without violence; (VI) fleeing and eluding a police officer; and (VII) operating a vehicle with no valid driver’s license. The court sentenced him as follows: (I) fifteen years in prison as a habitual felony offender; (II) fifteen years probation consecutive to Count (I); (III) and (IV) five years concurrent to Count (I); and (V), (VI), and (VII) time served. He did not appeal.

On October 22, 2008, he admitted violating probation for the burglary of a dwelling charge. The court sentenced him to fifteen years in prison which, according to the State’s response below, was a downward departure from the recommended seventeen to twenty-two year sentence under the guidelines and the possible twenty-(two to twenty-seven year sentence with the bump for the violation of probation.

On July 16, 2010, Hurt filed this Rule 3.850 motion. Hurt alleged that, on August 7, 2008, counsel conveyed the State’s eight-year plea offer. Hurt was allegedly concerned about how much time he would actually have to serve in prison. Counsel was not sure whether the 85% rule of the Stop Turning Out Prisoners Act would apply to the eight-year sentence under the plea offer. Hurt alleges that he declined the offer based on his lack of knowledge about the amount of time he would actually have to serve in prison.

At a September 4, 2008 hearing, defense counsel, at Hurt’s request, asked the State whether the offer was still open and how much time Hurt would actually serve. The offer remained open, but the State was also not sure whether the 85% rule would apply.

Finally, at the October 23, 2008 hearing, counsel gave Hurt “good news” that, because the offense was old, he would have to serve only 55 to 65% of the eight-year sentence offered in the plea deal. Hurt wanted to accept the deal, but the prosecutor would not agree to it and rescinded the offer. Hurt then admitted the violation.

In this post-conviction motion, Hurt claimed that his counsel was ineffective in failing to advise him sooner as to the amount of . time he would actually serve in prison. He alleges that he would have taken the eight-year plea offer if he had known he would have to serve only 55 to 65% of the eight-year offer. The State argued that the claim did not establish a basis for relief because Hurt had not alleged that counsel gave him any incorrect advice. The trial court agreed and denied the motion. Hurt appeals.

Analysis

In a plea ease, the prejudice necessary to establish an ineffective assistance of counsel claim is set out in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985): “[A] reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366. Hill recognized that the voluntary and intelligent character of a plea may be challenged on the ground that counsel failed to act within the range of competence required of criminal defense attorneys. Id. at 56, 106 S.Ct. 366. The focus when considering prejudice in a Hill claim is on the voluntariness of the plea and the waiver of trial and attendant rights. Florida, however, has recognized that Hill prejudice can arise from lost plea offers.

In Morgan v. State, 991 So.2d 835 (Fla.2008), the supreme court recognized that an attorney’s advice that a client reject a plea offer can state a sufficient claim of ineffective assistance of counsel. Id. at 840. The Morgan court reaffirmed the holding of Cottle v. State, 733 So.2d 963 (Fla.1999), that to establish an ineffective assistance of counsel claim regarding lost plea offers, the movant must show that: (1) counsel failed to convey an offer or misadvised the movant about the penalty faced; (2) the movant would have accepted the plea offer; and (3) the plea would have resulted in a lesser sentence. 991 So.2d at 839-40.

Here, the initial eight-year plea offer in Hurt’s case was not binding and, on its own, had no constitutional significance. The plea offer had no constitutional significance until accepted by the court: “A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.” Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), disapproved on other grounds, Puckett v. U.S., 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). See also Fla. R.Crim. P. 3.172(g) (“No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.”); Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984) (“[Fjormal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.”).

As this case illustrates, during negotiations, plea offers are often extended based on incomplete facts regarding the circumstances of the offense, the defendant’s prior record, the applicable laws, and other salient factors. As a result, plea offers are subject to withdrawal at any time before formal acceptance by the court. Counsel’s inability to immediately provide perfect advice about the wisdom of accepting a plea offer, which results in the loss of what in hindsight turns out to have been a favorable plea offer, does not result in the type of prejudice necessary to establish a violation of the Sixth Amendment right to effective counsel. The defendant has no constitutional right to enforcement of any plea bargain until the plea is formally accepted by the court.

Thus, even if counsel had obtained the information regarding the actual time Hurt might serve in prison sooner, and if Hurt had agreed to accept the eight-year offer, the State could still have rescinded the offer.

Here, unlike the claims recognized as sufficient in Morgan and Cottle, defense counsel did not fail to convey a plea offer, advise appellant to reject a plea offer, or misadvise the defendant about the maximum penalty faced.

Plea offers are not binding and a defendant has no vested right to any particular plea offer extended during negotiations. At best, defendant has an expectation that the offer will not be rescinded and will be accepted by the court. Further, the lost plea offer has no impact whatsoever on the defendant’s subsequent voluntary and intelligent plea. In addition to the problems illustrated by this case, courts have struggled to fashion an appropriate remedy in such cases. See Lester v. State, 15 So.3d 728, 730-32 (Fla. 4th DCA 2009). Reopening a case for further plea negotiations following a conviction after a fair jury trial is a result that is unfair to the State. See id. at 733-34 (Gross, J., concurring specially). The defendant may end up with no better sentence following renegotiation, and if plea negotiations fail, the State will have to retry a defendant who already received a fair trial. A lost plea offer should not be an actionable basis for an ineffective assistance of counsel claim.

Conclusion

We decline to extend the holding of Morgan to the situation presented here. Counsel did not advise Hurt to reject the eight-year plea offer. Counsel did not fail to convey the plea offer or misadvise Hurt as to maximum penalty faced. Hurt failed to establish that he was prejudiced by the alleged deficient performance of counsel.

Affirmed.

DAMOORGIAN, GERBER and LEVINE, JJ., concur.

      . Section 944.275(4)(b)3., Florida Statutes, provides in relevant part:
      For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain-time, except that no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner's release, prior to serving a minimum of 85 percent of the sentence imposed.

      (emphasis supplied).

      . Because it affects the wisdom and not the voluntariness of the waiver of the right to jury trial and other associated rights, a claim that counsel misadvised the defendant as to the amount of time that he or she might "actually serve” pursuant to a plea deal is also of questionable constitutional significance. See Gusow v. State, 6 So.3d 699, 702-03 (Fla. 4th DCA 2009) (citing United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971)). The sufficiency of such claims, however, has been recognized. State v. Leroux, 689 So.2d 235 (Fla.1996).


author: CASANUEVA, Judge.

text:
    Kirsten L. RIVEIRO, Appellant, v. J. CHENEY MASON, P.A., and Rose M. Marsh, P.A., Appellees.
    No. 2D10-4122.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.
    Rehearing Denied March 9, 2012.

      Virginia R. Vetter, Tampa, for Appellant.
    Rose M. Marsh of Rose M. Marsh, P.A., and J. Cheney Mason of J. Cheney Mason, P.A., Orlando, for Appellees.
   CASANUEVA, Judge.

This appeal arises from a proceeding ancillary to the dissolution action of the marriage between William R. Riveiro and Kirsten L. Riveiro. Mrs. Riveiro appeals the trial court’s order finding that the two law firms she hired, appellees J. Cheney Mason, P.A., and Rose M. Marsh, P.A. (hereinafter Mr. Mason and Ms. Marsh), were entitled to a charging lien of $76,357.61 plus prejudgment interest. The trial court ordered that the charging lien attach to Mrs. Riveiro’s interest on any and all real and personal property she owned relating to assets obtained or subject to the dissolution proceeding, whether she held the asset individually or jointly with any other person. We affirm in part and reverse in part.

Facts

In November 2008 Mrs. Riveiro executed a contract to retain the services of Mr. Cheney and Ms. Marsh in the dissolution of marriage action that Mr. Riveiro instituted. The agreed hourly rate was $400 for each attorney. The contract contained language that her counsel would aggressively pursue every aspect of seeking reimbursement or payment of her fees from Mr. Riveiro, if circumstances allowed. In addition to the $30,000 nonrefundable retainer, Mrs. Riveiro subsequently paid her two counsel substantial amounts for services rendered. In June 2009 Mr. Mason and Ms. Marsh filed a notice of a claim of attorneys’ charging lien, seeking a lien in the amount of $36,750.87 for fees owing and unpaid to that date, plus interest. The attorneys’ fees continued to mount, and in early September 2009, Mrs. Riveiro met with her husband — without either Mr. Mason or Ms. Marsh being present — and they reached a settlement agreement. In addition to deciding the amount of alimony that Mr. Riveiro would pay, the couple decided which portions of the marital real estate and personal property each would receive. The agreement also contained a provision that Mrs. Riveiro would not seek attorneys’ fees from Mr. Riveiro. A few days later, the trial court entered the final judgment of dissolution, incorporated the couple’s settlement agreement that equitably divided their real estate and personal property, and reserved jurisdiction to adjudicate Mr. Mason’s and Ms. Marsh’s claims of charging lien. After an eviden-tiary hearing in May 2010, the trial court found in favor of Mr. Mason and Ms. Marsh and ordered that a charging lien of the principal amount of $76,357.61 attach to 'the assets Mrs. Riveiro received in the final judgment of dissolution. As of May 31, 2010, the total amount including interest was $80,851.65. The trial court ordered that the principal amount continue to accrue interest at the statutory rate until paid. It is from this order that Mrs. Riveiro appeals.

Analysis

The law of charging liens has differing applications to real and personal property, both of which are at issue here. Our supreme court observed over a half century ago “that when a litigant contracts with an attorney to litigate a cause and pay him a percentage of the recovery for his fee, he is entitled to a lien on the judgment therefor.” Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894 (1943). In Miller, the plaintiffyappellant had employed a firm to bring an action against a defendant for breach of promise, agreeing to pay the firm fifty percent of all sums recovered. The plaintiff met secretly with the defendant and settled their differences out of court, with the defendant agreeing to pay the plaintiff over $8000. In holding that the firm could prosecute the case further to obtain remuneration under their contract for fees, the supreme court noted:

We do not deny the right of litigants to settle controversies out of court but any such settlement without the knowledge of or notice to counsel and the payment of their fees is a fraud on them whether there was an intent to do so or not. It has been said that honor may exist among thieves. When honor and good faith cease to be the very bed rock on which the law practice is anchored, the right of litigants will then cease to be actuated by right and justice and will turn on the practice of tricks and feats of legerdemain.

Id.

In the context of an action for dissolution of marriage, our supreme court reaffirmed this commitment in Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983). There, the petitioner, the Sinclair, Louis law firm, expressly contracted with Ruby Baucom to represent her in a dissolution proceeding against Phillip Baucom. After several years of dispute, the Baucoms met privately, without attorneys, and agreed to a settlement that included a provision that Mrs. Baucom be responsible for her own professional expenses, including attorneys’ fees, incident to their several disputes. Later, the law firm advised Mrs. Baucom not to sign the settlement agreement but sign it she did. Despite her counsel’s advice that the settlement agreement was more disadvantageous to her than she realized, Mrs. Baucom insisted on abiding by its terms. The law firm then orally and in writing gave notice of its intent to enforce a charging lien to secure payment of its fees and to continue litigation against Mr. Baucom for payment of those fees. Id. at 1384. The trial court denied the law firm’s claim to enforce its charging lien and the Third District affirmed. Baucom v. Baucom, 397 So.2d 347 (Fla. 3d DCA 1981). Ultimately, the supreme court disagreed and quashed the Third District’s opinion insofar as it denied enforcement of the charging lien against Mrs. Baucom. 428 So.2d at 1386.

The supreme court reiterated that a “charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Id. at 1384 (citing Worley v. Phillips, 264 So.2d 42 (Fla. 2d DCA 1972)). But there is no statutory guide to how to perfect a charging lien. Id. “Rather, the requirements have developed in case law which has delineated the equitable nature of the lien.” Id. at 1384-85. The court then proceeded to identify the requirements for a charging lien. First, there must be a contract between the attorney and the client, either express or implied. Id. at 1385. Second, “[tjhere must also be an understanding, express or implied, between the parties that the payment is either dependent upon recovery or that payment will come from the recovery.” Id. In Mrs. Baucom’s case, the “nature of the litigation involved and the relief sought in the suit between [Mrs. Baucom] and [her husband] evidence[d] a reasonable understanding that payment would either take the form of an award for attorneys’ fees against [Mr. Baucom] or be paid from [Mrs. Baucom’s] award.” Id. “Finally, the remedy is available where there has been an attempt to avoid the payment of fees” or where there is “a dispute as to the amount involved.” Id.

Unfortunately, neither the Third District’s opinion nor the supreme court’s opinion in Baucom describes what assets Mrs. Baucom received in the dissolution action from which she could pay the law firm’s fees. However, given the context of a marriage dissolution action, where the client receives property in equitable distribution, there is a reasonable understanding that such property will be the source of funds to pay the client’s attorney’s fees insomuch as it was the attorney’s efforts that secured that property. See Worley, 264 So.2d at 43 (“The creation of a charging lien upon the proceeds of any recovery by the client in an equity action is an acceptable method of providing security for the payment of the attorney’s fee.”). But, as will be seen below, there is a distinction as to which property a charging hen can attach.

We turn next to the distinction crafted between a charging lien on real property as compared to one on personal property. This court, in Lochner v. Monaco, Cardillo & Keith, P.A., 551 So.2d 581 (Fla. 2d DCA 1989), identified the distinction thusly:

This court has previously held that a charging lien in a divorce proceeding can be established against personal property without pleading or proving an agreement between the attorney and the client on that subject. Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1980), rev. den., 399 So.2d 1141 (Fla.1981). In Conroy, however, we expressly declined to extend this rule to real property. Id. at 937. Just as we found “little to commend” such a rule then, we find little to commend it now. The [T]hird [District has suggested that an attorney would be “well advised to provide for a lien on such property in the fee agreement with his client.” Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 91 n. 5 (Fla. 3d DCA 1987), rev. den., 525 So.2d 879 (Fla.1988). Such an express agreement avoids any confusion upon the part of the client, and eliminates an unnecessary source of conflict. Thus, we also find merit in this suggestion.

Id. at 583. The client in Lochner was awarded real property in the dissolution action against which the trial court imposed a charging lien. This court reversed the imposition of the charging lien on this real property because the attorney’s motion for a charging lien did not allege any agreement that his fee would be protected by a charging lien against any real estate involved in the divorce and neither did the record support such agreement. Id.

Applying Lochner and Conroy to the facts of Mrs. Riveiro’s case, we find the record does not disclose any agreement that Mr. Mason’s and Ms. Marsh’s fees would be secured by any real estate Mrs. Riveiro might be awarded in the dissolution action. Accordingly, we hold the trial court erred in imposing a charging lien against any and all real property owned by Mrs. Riveiro, individually or jointly, subject to the dissolution action. On remand, the charging lien on the real property she was awarded in the dissolution judgment must be dissolved.

But, also in accordance with Lo-chner and Conroy, this is not the case with the personal property Mrs. Riveiro received in the dissolution judgment. All the requirements for imposing a charging lien on personal property are present here. Mrs. Riveiro had a written contractual agreement regarding the payment of attorneys’ fees with Mr. Mason and Ms. Marsh. Thus, the trial court could properly conclude that an implied understanding existed that payment would come from her portion of the equitable distribution of personal property. And, fulfilling the last requirement to merit a charging lien, Mrs. Riveiro did attempt to avoid the payment of fees and did dispute the amount due. We conclude that the trial court did not err in awarding a charging lien against Mrs. Riveiro’s personal property. See Baucom, 428 So.2d at 1385.

Concluding that a charging lien was properly imposed on Mrs. Riveiro’s personal property, we turn next to Mrs. Riveiro’s final contention, i.e., that the trial court erred in awarding the amount it did, over $76,000 in unpaid fees. The trial court’s order only determined a total amount due to Mr. Mason and Ms. Marsh. It made no finding as to the reasonable hourly rate or the amount of hours reasonably expended in this case. This was error. It deprived Mrs. Riveiro of meaningful appellate review, hampering the task of this court. See Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011) (“The lack of findings ... precludes meaningful appellate review.”). Upon remand, the trial court shall make the necessary Rowe findings. See Dralus v. Dralus, 627 So.2d 505, 509 (Fla.2d DCA 1993).

In light of testimony offered on behalf of Mrs. Riveiro on this issue, revealing that the time records kept, particularly by Ms. Marsh, were lacking detail, it is necessary for the trial court on remand to examine the challenged billing entries. If the trial court should find that the challenged entries and any testimony offered in support of those entries are lacking in sufficient detail to establish either reasonableness or necessity, no award should be made. See Highlands Carpentry Serv., Inc. v. Con-none, 873 So.2d 611 (Fla. 2d DCA 2004). It is not necessary for the trial court to undertake another hearing. Because there is a record, the trial court needs only a clear recollection of the hearing proceedings. However, should the trial court deem it necessary to do so, a new, full evidentiary hearing may be in order.

We affirm that part of the final order imposing a charging lien on the personal property that Mrs. Riveiro received in the dissolution judgment, reverse and vacate that part of the final order related to a charging lien on her real property, reverse and vacate the amount of fees awarded, and remand with instructions to provide a final order with proper findings as to the amount of fees to which Mr. Mason and Ms. Marsh are entitled.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

      . Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).


text:
    Lula LONGLEY, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher Bassett Svcs., Appellees.
    No. 1D11-1467.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.
    Rehearing Denied March 29, 2012.

      William F. Souza of the Law Offices of William F. Souza, P.A., North Miami Beach, for Appellant.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying benefits on the ground the statute of limitations had run. Claimant asserts five distinct arguments for reversal; one has merit and, because it is dispositive, we need not address the other four.

FACTS

The facts of this case are undisputed. On March 30, 2009, prior to the final adjudication of all claims raised in a pending 2003 petition for benefits (PFB), Claimant filed another PFB seeking an appointment with an authorized orthopedist (specifically, either Dr. Brown or Dr. Hyde, both authorized in the past), and costs and attorney’s fees. The Employer/Carrier (E/C) filed a response asserting that it had set an appointment with Dr. Hyde, and defending against the costs and fees as not due or owing. Claimant attended the scheduled appointment on April 24, 2009.

On July 22, 2009, both parties’ counsel requested cancellation of a mediation set for July 23, 2009; their letter to the mediator states, in part:

The issue in that PFB was over the authorization and scheduling of an orthopedic appointment for the claimant with her authorized doctor, and that has since taken place and been resolved. Accordingly, there are no other outstanding issues other than attorney’s fees and costs, over which jurisdiction remains reserved in the JCC.

The mediation was cancelled.

On March 3, 2010, Claimant filed a second PFB, seeking authorization of an “alternative orthopedist” or, “if carrier denies the request for the alternative,” a followup appointment with Dr. Hyde, as well as penalties, interest, costs, and attorney’s fees. In response, the E/C denied the entire claim as barred by the statute of limitations. In the order on appeal, the JCC agreed with the E/C that the statute of limitations barred the claim, reasoning in part that the 2009 PFB was no longer pending because the letter to the mediator “indieat[ed] a resolution of the issues” in that PFB and, therefore, the letter operated as a voluntary dismissal of the 2009 PFB. In support, the JCC cited Louis v. Hooters of West Palm Beach, 36 So.3d 701 (Fla. 1st DCA 2010), and Bednarik v. Ebasco Services, 527 So.2d 251 (Fla. 1st DCA 1988), for the proposition that a resolution of all issues serves as a voluntary dismissal of the claims.

APPLICATION OF LAW

Claimant’s March 3, 2010, PFB was not barred by the statute of limitations, because the parties had not settled the active claims for entitlement to attorney’s fees and costs brought by the 2009 PFB — the July 2009 letter plainly states this by the wording “no other outstanding issues other than attorney’s fees and costs,” and confirms this fact by noting that any ruling on fees and costs is reserved. The facts of the cases cited by the JCC, in contrast, are that all of the issues had been resolved. See Louis, 36 So.3d at 701-02 (noting claimant’s “Notice of Resolution of Issues” advised JCC “that the parties had resolved the claim”); Bednarik, 527 So.2d at 252 (noting “stipulation for cancellation of hearing” asserted that “the matters scheduled to be heard at that time have been resolved by the parties”). Because Louis and Bednañk are distinguishable on their facts, the JCC erred in analogizing the instant case to them.

More apt analogy is made to Airey v. Wal-Mart/Sedgwick, 24 So.3d 1264 (Fla. 1st DCA 2009), John Ringling Towers v. Klein, 573 So.2d 154 (Fla. 1st DCA 1991), and Gilman v. South Florida Water Management District, 584 So.2d 591 (Fla. 1st DCA 1991). In Airey, this court held the timely filed PFB, because it remained pending, “tolled” the statute of limitations. See 24 So.3d at 1265. In Klein, this court held that the statute of limitations “remained open” due to pending claims for “payment for prosthetic devices and medical care related to the amputation site.” See 573 So.2d at 155. The proeedurally more intricate case of Gilman indicates that, given the opportunity, this court will apply the reasoning in Airey and Klein equally where the pending claims are for attorney’s fees. See Gilman, 584 So.2d at 596. Applying these cases, we hold the proper outcome here is to permit the 2010 PFB to go forward, because it was not barred by the statute of limitations, as it was filed while the 2009 PFB was still pending.

The E/C argues that because no deadline (other than the statute of limitations) exists for the pursuit of attorney’s fees, see Villazano v. Horace Bell Honey Co., 928 So.2d 515 (Fla. 1st DCA 2006), or costs, see Shackleford v. CTL Distribution, 25 So.3d 667 (Fla. 1st DCA 2010), an active outstanding claim for such should not affect the statute of limitations. On the contrary, here, the fee claim, premised as it was on the benefit sought in the 2009 PFB, was ripe at the time the benefit was provided; Claimant sought fees in the 2009 PFB, but had she not sought fees at that time (or at some time prior to the resolution of the claim for the benefit) she would have waived entitlement to such. See Georgia-Pacific Corp. v. DeLoach, 603 So.2d 702 (Fla. 1st DCA 1992) (holding claimant waived right to fee for services resulting in order awarding appointment of physician, because motion for appointment of physician did not request fee, fee claim became ripe at time of hearing resulting in the award, and order did not address fee entitlement or reserve jurisdiction to do so at later date). Because that claim for fees and costs remains pending, the JCC erred in dismissing the 2010 PFB on the basis that it was barred by the statute of limitations.

REVERSED and REMANDED for further proceedings.

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: BLACK, Judge.

text:
    Kenneth INGRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4640.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2012.
    Rehearing Denied March 16, 2012.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Kenneth Ingraham, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Kenneth Ingraham challenges the sentence he received as a result of this court’s reversal and remand for resentencing. See Ingraham v. State, 32 So.3d 761 (Fla. 2d DCA 2010). We affirm Mr. Ingraham’s corrected sentence but note that the written sentence fails to conform to the trial court’s oral pronouncement of sentence. The trial court’s oral pronouncement included prison credit for Mr. Ingraham, to the extent that he was entitled to that credit; however, the written sentence does not reflect the award of any prison credit. See Downing v. State, 779 So.2d 562, 563 (Fla. 2d DCA 2001) (finding that the trial court may delegate the administrative task of calculating prison credit to the Department of Corrections but that the trial court is responsible for ordering such credit (citing Thistle v. State, 769 So.2d 1149, 1149 (Fla. 5th DCA 2000))). Additionally, the oral pronouncement indicates that Mr. Ingraham’s court costs total $675; however, the written sentence indicates $725 in costs.

Because Mr. Ingraham did not preserve these issues by objecting or filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), we affirm without prejudice to any right Mr. Ingraham may have to file a rule 3.800(a) motion. See Woodard v. State, 6 So.3d 726, 727 (Fla. 2d DCA 2009); see also Williams v. State, 957 So.2d 600, 605 (Fla.2007).

Affirmed.

DAVIS and KELLY, JJ., Concur.


text:
    Christopher MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6700.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2012.
    Rehearing Denied March 27, 2012.
    Christopher Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Timothy E. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5605.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2012.
    Timothy E. White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See State v. Gibson, 783 So.2d 1155 (Fla. 5th DCA 2001).

LEWIS, ROBERTS, and RAY, JJ., concur.


author: WALLACE, Judge.

text:
    Dawn Grace DiNARDO, Appellant/Cross-Appellee, v. Anthony DiNARDO, Appellee/Cross-Appellant.
    No. 2D10-3427.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.

      Mark V. Silverio of Silverio & Hall, P.A., Naples, for Appellant/Cross-Appellee.
    Ricardo A. Reyes and Brett J. Horowitz of Tobin & Reyes, P.A., Boca Raton, for Appellee/Cross-Appellant.
   WALLACE, Judge.

Dawn Grace DiNardo (the Wife) appeals the trial court’s order denying her motion for attorney’s fees and costs filed after the entry of a final judgment dissolving her marriage to Anthony DiNardo (the Husband). The Husband cross-appeals the trial court’s denial of his postjudgment motion for attorney’s fees and costs. On the Wife’s direct appeal, we reverse and remand for further proceedings because the trial court failed to take into account all of the Husband’s income in determining the relative financial resources available to the parties. On the Husband’s cross-appeal, we affirm the circuit court’s order. The circuit court did not abuse its discretion in declining to award fees and costs to the Husband for the Wife’s litigation conduct based on the factors outlined in Ro-sen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

I. THE FACTS AND PROCEDURAL BACKGROUND

The parties were married in 1984. They had two children. At the time of the final hearing in October 2006, one of the children had reached the age of majority. The other child was fifteen.

The Husband is a certified public accountant. During the marriage, he was employed by two successful real estate development companies. At the time of the final hearing, the Husband had been employed by his current employer for approximately thirteen years. The Husband’s base salary was $175,000. In addition to his base salary, the Husband received an automobile allowance of $6000 per year, an expense account at his employer’s club facilities, and other fringe benefits. The Husband also received bonus income. In its final judgment, the trial court made the following finding of fact concerning the Husband’s bonus income: “Although not guaranteed and in the sole discretion of his employer, the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed. His 2005 bonus, paid in Jan[.]Feb. 2006[,] was $110,000.” The trial court found that the Husband’s annual income was $291,000. The $291,000 figure included the Husband’s base salary of $175,000, the automobile allowance of $6000, and the bonus for 2005 of $110,000.

The Wife had not worked outside the home since the birth of the parties’ first child in 1988. However, the Wife had some expertise in photography. A vocational expert testified that the Wife could earn $24,000 per year from employment in a photography studio or $31,000 per year if she were self-employed. Nevertheless, the Wife would require some time and training to achieve either of these income levels. The trial court found that the Wife should be able to earn at least $15,000 annually for the three years after the dissolution of marriage while the parties’ younger child completed high school. In accordance with this finding, the trial court imputed $1250 per month income to the Wife following the dissolution of marriage.

Before the final hearing, the parties agreed to an equal division of their assets. In accordance with this equal distribution of property, each party was to receive assets valued at approximately $1,100,000. The trial court calculated the amount of the Wife’s passive income on the equitably divided assets as $780 per month.

Under the final judgment, the Husband was required to pay the Wife $2210 per month as support until the sale of the marital home. In addition, the Husband was required to pay $2400 per month in “carrying expenses” for the marital home — which the Wife would occupy — until the marital home sold. Finally, the Husband was required to pay the Wife $1400 per month in child support.

The petition for dissolution of marriage was filed in October 2005. During the course of the proceedings, the Husband voluntarily paid $15,000 toward the Wife’s attorney’s fees. The Husband also contributed an additional $5000 for the Wife to hire a certified public accountant. The Wife’s attorney’s fees and costs incurred through the entry of the final judgment were approximately $83,000.

The case went to final hearing before Judge Daniel R. Monaco in October 2006. The trial court entered the final judgment of dissolution of marriage on November 15, 2006. An amended final judgment was entered on June 4, 2007. The Wife took an appeal from the final judgment, and this court affirmed. See DiNardo v. DiNardo, 989 So.2d 1190 (Fla. 2d DCA 2008) (table decision).

In the final judgment, the trial court reserved jurisdiction to consider the issue of attorney’s fees and costs. The parties promptly filed their fee motions, but the trial court did not hear the motions until January 2010, more than three years after the entry of the final judgment. In the interim, Judge Monaco had retired; a different judge heard the fee motions.

The Husband’s motion requested an award of attorney’s fees and costs based on his claim that he had “incurred a substantial amount of needless and unnecessary attorney’s fees, suit monies!,] and costs caused by [the] Wife’s bad faith litigation tactics and unnecessary delays.” The Wife based her claim on her need and on the Husband’s ability to pay.

The trial court conducted an evidentiary hearing on the parties’ respective fee motions. In a written order entered after the hearing, the trial court denied the Husband’s request for fees and costs. The trial court found that the Wife had caused some delays in resolving various matters, thereby increasing the amount of litigation necessary to resolve the matter. However, the trial court found the existence of extenuating circumstances that explained at least some of the delays. Ultimately, the trial court ruled that the circumstances did not rise to a level sufficient to warrant the assessment of fees and costs against the Wife based on her litigation conduct.

The trial court also denied the Wife’s motion for fees and costs because it found that the financial resources of the parties were “relatively equal.” The critical portion of the trial court’s ruling in the order under review concerning the financial resources of the parties is the treatment of the Husband’s bonus income. In support of its conclusion that the parties’ resources were “relatively equal,” the trial court made the following finding: “[T]he bonuses [sic] the [H]usband received prior to trial were put into [a] bank account that will be ultimately equally divided.”

II. THE PARTIES’ ARGUMENTS

On appeal, the Husband argues that the trial court abused its discretion in ruling that the Wife’s litigation conduct did not warrant requiring her to pay the Husband’s attorney’s fees and costs based on the Rosen factors. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in declining to assess all or a portion of the Husband’s fees and costs against the Wife. The Husband’s argument on this point does not warrant further discussion.

The Wife observes that — in the order under review — the trial court misapprehended the income available to the Husband at the time of the entry of the final judgment. According to the Wife, this mistake caused the trial court to conclude — incorrectly—that the financial resources available to the parties for the payment of attorney’s fees and costs were relatively equal. We agree with the Wife, and we write to explain our reasoning below.

III. THE APPLICABLE LAW

Section 61.16(1), Florida Statutes (2005), addresses the subject of attorney’s fees, suit money, and costs in proceedings under chapter 61. The statute provides, in pertinent part:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.

(Emphasis added.) Under the statute, the primary factor,to be considered in determining whether to award attorney’s fees and costs to one party is the relative financial resources of the parties. Rosen, 696 So.2d at 700; Humerickhouse v. Humerickhouse, 932 So.2d 1142, 1145 (Fla. 2d DCA 2006).

In assessing the financial resources of the parties, the trial court must determine the parties’ income as well as their assets. “The extent of the parties’ incomes from all sources and the reasonable income-earning abilities of the parties[] are essential parts of the equation ... in determining the parties’ comparable financial circumstances, to justify or deny an attorney’s fee and costs to the spouse with less resources.” Brock v. Brock, 690 So.2d 737, 742 (Fla. 5th DCA 1997). The trial court should determine the relative financial positions of the parties as of the time of the entry of the final judgment dissolving the marriage. See Rashid v. Rashid, 35 So.3d 992, 995 (Fla. 5th DCA 2010); Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005); Duchesneau v. Duchesneau, 692 So.2d 205, 207 (Fla. 5th DCA 1997).

The purpose of section 61.16 is “to ensure that both parties will have similar ability to secure competent legal counsel.” Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980). Thus “[a]n award of attorney’s fees in domestic support cases is not dependent on one party’s success in the litigation but rather upon the parties’ relative financial resources.” Humerickhouse, 932 So.2d at 1145 (citing Bullock v. Jones, 666 So.2d 224, 225 (Fla. 2d DCA 1995)). “It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees.” Canakaris, 382 So.2d at 1205. With these general principles in mind, we turn to the facts of this case.

IV. DISCUSSION

We begin by noting the disconnect between the trial court’s findings in the final judgment concerning the Husband’s income and the trial court’s findings in the order under review on the same subject. In the final judgment, the trial court found that “the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed.” The trial court also noted that the Husband’s 2005 bonus was $110,000. The trial court found that the Husband’s annual income — composed of his base salary, automobile allowance, and bonus — was $291,000. These findings are amply supported by the record. At the time of the final hearing, the Husband had received a substantial bonus for each of the preceding six years of his employment. Based on our calculations, the bonuses for these six years averaged $121,667 per year. Over the thirteen years of the Husband’s employment with his current employer, his bonus income averaged $74,077 per year.

However, in the order under review, the trial court did not take the Husband’s bonus income into account in determining the amount of his income. Instead, the trial court considered only the Husband’s base salary and his automobile allowance. The trial court based this treatment of the Husband’s income on its finding that his 2005 bonus— amounting to $110,000 — was deposited into a bank account that was to be divided equally between the parties. This finding is correct as far as it goes. The Wife does not dispute that the bonus for 2005 was deposited into the account in question. But the order under review treats the receipt of the $110,000 bonus for 2005 as if it were a singular event. In fact, the trial court had already found in the final judgment that the Husband was receiving bonuses that were regular and continuous. That finding was never modified or vacated. Therefore, the trial court was required to take the Husband’s bonus income into account in assessing his financial resources available for the payment of attorney’s fees and costs. Cf. Drew v. Drew, 27 So.3d 802, 802-03 (Fla. 2d DCA 2010) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purposes of alimony and child support); Parry v. Parry, 933 So.2d 9, 16 (Fla. 2d DCA 2006) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purpose of child support); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (holding that the trial court properly included the husband’s bonus income for the purpose of determining monthly support amounts); Crowley v. Crowley, 672 So.2d 597, 600 (Fla. 1st DCA 1996) (holding that the trial court erred in excluding the husband’s bonus income in determining his ability to pay alimony and child support).

It is true that the equitable division of the parties’ assets and liabilities would leave them in a substantially equal position with regard to the property owned by each. But the omission of the Husband’s bonuses from the determination of his income dramatically understated his income relative to the Wife’s more modest income. When the Husband’s bonus income is added to his base salary, it is apparent that his available income substantially exceeds the income available to the Wife. It follows that the trial court’s denial of the Wife’s motion for attorney’s fees and costs was based on an incorrect finding that the financial resources of the parties were “relatively equal.” “[W]here, as here, the record establishes that the parties’ past, present[,] and anticipated earnings are not substantially equivalent, it may be inequitable to force the lower earning party to deplete her share of the otherwise equally divided assets to pay attorney’s fees.” Nisbeth v. Nisbeth, 568 So.2d 461, 462 (Fla. 3d DCA 1990).

V. CONCLUSION

On the Wife’s direct appeal, we reverse the order under review to the extent that it denied the Wife’s motion for attorney’s fees and costs. We remand this case to the trial court for further proceedings. On remand, the trial court shall reconsider the Wife’s motion for fees and costs, taking into account all of the financial resources available to the parties, including the Husband’s bonus income. The trial court shall make appropriate findings to facilitate appellate review of its decision. On the Husband’s cross-appeal, we affirm the order under review to the extent that it denied the Husband’s motion for attorney’s fees and costs.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . After the marital home was sold, the “carrying expenses” would end. But the Husband's alimony obligation was scheduled to increase to $4100 per month for a period of three years. After the initial three-year period, the alimony would decrease to $2700 per month.


text:
    Micah TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3256.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    Rehearing Denied March 19, 2012.

      Micah Turner, Avon Park, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Appellant’s Petition for Writ of Certiora-ri is treated as an appeal, and is AFFIRMED.

GRIFFIN, TORPY and JACOBUS, JJ„ concur.


text:
    Raymond ROBERTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6360.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.
    Rehearing Denied March 19, 2012.
    Raymond Robertson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(5)(A).

VAN NORTWICK, LEWIS, and SWANSON, JJ., Concur.


author: DANIEL, JAMES H., J., Associate Judge.

text:
    Robyn RUSH, Appellant, v. HIGH SPRINGS, Florida, Appellee.
    No. 1D11-3714.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Rehearing Denied March 27, 2012.

      Joseph W. Little, Gainesville, for Appellant.
    Leonard J. Dietzen, III, and Linda Bond Edwards of Rumberger, Kirk & Caldwell, Tallahassee, for Appellee.
   DANIEL, JAMES H., J., Associate Judge.

This appeal concerns whether Appellee City of High Springs (hereinafter the City) violated the Public Records Act by redacting questions and answers from a pre-employment polygraph report before releasing it to Appellant (hereinafter Rush). The trial court found that the City had properly redacted the material pursuant to section 119.071(l)(a), Florida Statutes (2010). This provision exempts from the Public Records Act any examination questions and answers prepared and received by a government agency for the purpose of employment. Given the plain meaning of the language contained in the exemption, we agree with the trial court that the City properly redacted the questions and answers from this particular pre-employment polygraph examination.

The City ordered the report in question as part of the pre-employment process for a candidate applying to become a reserve police officer. The examiner conducted the polygraph and released a three-page report to the City. The first two pages of the report detailed some of the questions asked and answers given during the examination, as well as the examiner’s observations of the applicant’s demeanor. The third page contained the results of the examination, which the examiner indicated were “inconclusive.”

Rush then filed several public records requests related to the report, initially requesting only the “results” section of the report and later requesting the “comments and findings” section. In response to these requests, the City redacted the questions and answers from the report, claiming they were exempt from the Public Records Act pursuant to section 119.071(l)(a). It then released the redacted report to Rush.

Rush disagreed with the City’s decision to redact the report. After unsuccessfully trying to obtain the full report, she filed a four-count complaint demanding, among other things, that the City release the report in its complete, unredacted form. In the complaint, she claimed section 119.071(l)(a) was not meant to apply to pre-employment polygraphs. Both parties moved for summary judgment on each count of the complaint.

Ultimately, the trial court agreed with the City that section 119.071(l)(a) covers those questions asked and the answers given during a pre-employment polygraph. For this reason, it granted summary judgment to the City on those counts of the complaint alleging it had improperly redacted the report. Rush now appeals the order entering final judgment to the City on those counts.

The question presented in the instant appeal is essentially one of statutory interpretation, namely whether the exemption to the Public Records Act contained in section 119.071(l)(a) applies to questions and answers contained in a pre-employment polygraph report. Because the issue is one of statutory interpretation, and the order on appeal is a grant of summary judgment, review is de novo. See Hill v. Davis, 70 So.3d 572, 575 (Fla.2011); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

With respect to any question that involves statutory interpretation, “[legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” See Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984), quoting American Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968). “Thus, if the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.” GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007).

Section 119.071(l)(a) states:

Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from section 119.07(1) and section 24(a), Article I of the State Constitution. A person who has taken such an examination has the right to review his or her completed examination.

Rush argues that this Public Records Act exemption is inapplicable to the redacted portions of the pre-employment polygraph examination report, citing the maxim that exemptions to the Public Records Act should be narrowly construed and limited to their exact purpose. See Christy v. Palm Beach County Sheriff’s Office, 698 So.2d 1365, 1366 (Fla. 4th DCA 1997); Tribune Co. v. Public Records, P.C.S.O. No. 79-35504 Miller/Jent, 493 So.2d 480, 483 (Fla. 2d DCA 1986); see also Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775, 780 n. 1 (Fla. 4th DCA 1985) (stating that when in doubt as to an exemption’s application, a court should “find in favor of disclosure rather than secrecy”). However, there is nothing ambiguous about the language contained in this exemption and there is no reason for this Court to give it any construction, narrow or otherwise, beyond its plain meaning.

Without limitation, the exemption applies to “examination questions and answer sheets of examinations administered by a governmental agency” for the purpose of “licensure, certification, or employment.” The exemption makes no distinction in its application as to the subject matter being tested, nor does its application depend upon what type of examination—written or oral—is being administered by the governmental agency. The exemption applies if a document (1) consists of examination questions or answers; (2)the questions or answers were part of an examination administered by a governmental agency; and (3) the examination was given for purposes of “licensure, certification, or employment.” It requires nothing more.

Given this plain language, the trial court was correct in finding the exemption applied to the redacted questions and answers in this pre-employment polygraph report. The instant case provides a clear example of the exemption’s application. It is undisputed that the polygraph examination here was given by a governmental agency—the City—and was comprised of questions and answers. Moreover, deposition testimony indicated the polygraph examination was intended exclusively for employment purposes as the City required applicants for employment as reserve police officers to undergo such testing. Both the polygraph examiner and a representative from the City stated the polygraph tested the applicant’s ability to be honest and accurate, which they claimed were essential traits of law enforcement officers. The redacted questions and answers contained in the pre-employment polygraph report, therefore, fit each of the criteria given in section 119.071(l)(a).

It makes no difference that the polygraph report here contained a summary of pertinent questions and answers, rather than detailing each question and answer verbatim. See Dickerson v. Hayes, 543 So.2d 836, 837 (Fla. 1st DCA 1989) (applying the exemption to short summaries of answers given by applicants to questions that were part of an oral examination administered for the purpose of determining promotion). Similarly, the exemption applies notwithstanding the fact that the City utilized a polygraph examiner employed by an outside law enforcement agency to actually perform the examination. The exemption requires only that the examination be “administered” by a governmental agency, and the term “administer” has been defined as “to manage or supervise the execution, use or conduct of.” See Memamr-Webster’s Collegiate Dictionary 16 (11th ed. 2003). Depending on the nature of the testing and the resources available to it, a government agency may very well require a third party to assist in the examination process, but the government agency is still “managing or supervising the execution, use or conduct of’ the examination.

Despite its plain language, Rush argues that section 119.071(l)(a) applies only to pre-employment examinations that test an applicant’s technical knowledge or skills, and not to examinations — such as the polygraph in this case — that explore an applicant’s mental state or individual character traits. Rush maintains that the exemption was enacted to prevent prospective applicants from cheating on pre-employment examinations by looking at past questions and answers. She claims the release of questions and answers from examinations that test for mental capacity or character traits, instead of technical knowledge or skills, would in no way serve this purpose.

However, the language of section 119.071(l)(a) does not limit its application to any certain type of examination or subject matter that might be explored in a pre-employment examination. And while the exemption certainly prevents other prospective applicants from gaining an edge in the employment application process through advance notice of test questions and possible answers, there is nothing in section 119.071(l)(a) that states that this is its exclusive purpose.

Furthermore, this Court has extended coverage under section 119.071(l)(a) to examinations that test for more than purely the applicant’s skills or knowledge. In Dickerson, an unsuccessful applicant for promotion at a county detention facility requested copies of the “rating sheets” used to assess all of those that applied for a promotion. See 543 So.2d at 836. The county provided the ratings sheets, but redacted the portion that contained a list of ten questions asked of each applicant and a summary of their responses. Id. at 836-837. In affirming the county’s decision to redact these portions of the records, this Court applied the precursor to section 119.071(l)(a), finding the redacted questions and answer summaries were part of an examination that “tested the applicants’ response both as to style and content.” Id. at 837 (emphasis added). In other words, the examination in Dickerson focused not only upon the applicants’ technical skill or knowledge (“content”), but also upon personal character traits reflected in the manner in which the applicants expressed themselves (“style”).

Rush also claims that the exemption should not apply because the polygraph examiner testified that he utilized a standardized exam called the Law Enforcement Pre-Employment Test (hereinafter LEPET) to develop the redacted questions. The parties do not dispute that the LEPET is available to the general public through the internet and other sources. Rush contends, therefore, that the polygraph examination in this case should be considered public record. However, the polygraph examiner provided additional testimony that he relied on the LEPET primarily to determine the proper sequence in which he should ask questions during the polygraph (i.e. asking an irrelevant question first to catch an applicant off-guard) and that he included only some of the suggested questions contained in the LEPET. The examiner also testified that, consistent with his usual practice, he developed his own questions for this particular exam and tailored them to the applicant in this case based on the applicant’s pre-test admissions and information given by the applicant in a pre-test interview. In short, the polygraph examination here was unique to this applicant and has not become part of the public domain.

The City’s decision to redact the portions of the polygraph report containing examination questions and answers was reasonably based on section 119.071(l)(a). A plain reading of this exemption shows that it applies to the redacted questions and answers contained in the pre-employment polygraph examinations given by the City. Accordingly, we find the trial court properly granted summary judgment to the City on those counts of the complaint alleging it had improperly redacted the report. The order entering final judgment in favor of the City on those counts is AFFIRMED.

PADOVANO and SWANSON, JJ., concur.

      . The trial court went on to grant partial summary judgment to Rush, but only inasmuch as the complaint alleged that the City had unreasonably delayed in releasing the polygraph “results” to her. The record indicates the City released the page of the report containing the "results” prior to releasing the redacted version of the report. The trial court found the City's response was tardy, as over a week elapsed between the time that it received the report and the time that it released the “results” page. This portion of the trial court’s decision is not contested on appeal.

      . This is not to say that section 119.071(l)(a) may be extended to the questions and answers in any polygraph report. Of note, the exemption does not extend to polygraph reports prepared in criminal investigations, which have been found to be public records subject to disclosure upon request. In Wisner v. City of Tampa Police Dep't, 601 So.2d 296, 297-98 (Fla. 2d DCA 1992), the Second District determined that questions and answers from a polygraph given to an individual seeking to bring criminal charges were public record. Similarly, in Downs v. Austin, 522 So.2d 931, 932-33 (Fla. 1st DCA 1988), this Court found that a polygraph of a criminal defendant could be released and examined by a co-defendant seeking to prepare a post-conviction motion. However, Wisner and Downs involved polygraphs prepared during criminal investigations and can thus be distinguished from the polygraphs described in section 119.071(l)(a), which are prepared "for the purpose of licensure, certification, or employment.”

      . We recognize that Rush has also raised arguments concerning the timeliness and nature of the City's response to her public records requests, including whether the City properly identified an exemption justifying the eventual redactions. After considering these arguments, we reject them without further comment.