text:
    CASTLE BEACH CLUB CONDOMINIUM, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORP., Appellee.
    No. 3D11-160.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Rehearing Denied Sept. 28, 2012.

      Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; The Schiffrin Law Firm, PLLC, and Michael Schiffrin, for appellant.
    Butler Pappas Weihmuller Katz Craig, LLP, and J. Pablo Cáceres, Tampa, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

This is a non-final appeal of the trial court’s order transferring venue from Miami-Dade County to Leon County. Castle Beach Club Condominium, Inc. (“Castle Beach”) sued Citizens Property Insurance Corp. (“Citizens”), a state entity, for breach of contract and an appraisal in Miami-Dade Circuit Court. The trial court transferred the case to Leon County based upon Citizens’ assertion of Florida’s common law home venue privilege. We affirm the trial court’s order because: (1) Citizens is a state entity protected by the home venue privilege; (2) Castle Beach concedes that no exception to the home venue privilege applies; and (3) Citizens did not waive the privilege.

In this case, the trial court’s venue determination was decided as an issue of law, and thus, our standard of review is de novo. Dep’t of Transp. v. City of Miami, 20 So.3d 908, 910 (Fla. 3d DCA 2009). Citizens did not answer the complaint, but moved to transfer venue. The trial court granted Citizens’ motion to transfer venue to its home venue of Leon County, citing the common law home venue privilege that applies to state entities.

Under Florida common law, the state and its agencies or subdivisions enjoy the home venue privilege. “The home venue privilege provides that, absent waiver or exception, venue in a suit against the State, or an agency or subdivision of the State, is proper only in the county in which the State, or the agency or subdivision of the State, maintains its principal headquarters.” Fla. Dep’t of Children & Fami lies v. Sun-Sentinel, Inc., 865 So.2d 1278, 1286 (Fla.2004). A trial court is required to honor an agency’s use of the privilege unless: (1) it is inapplicable, based upon an exception recognized by the Florida Supreme Court or by statute; or (2) it has been waived. Id. at 1287-88; see also Bd. of Trs. of the Internal Improvement Trust Fund v. Harvey W. Seeds Post No. 29, 948 So.2d 799, 800 (Fla. 3d DCA 2006) (“[I]t is an immutable principle that, under Florida’s home venue privilege, a state agency ... may be sued only at its headquarters ... unless one of the recognized exceptions to that rule applies.”).

Castle Beach concedes that no exception to the privilege applies here, but contends that: (1) based on the language in the enabling statute, the Legislature did not intend for the home venue privilege to apply to Citizens; (2) because Citizens is a state “entity,” not a state agency or a subdivision of the state, it does not enjoy the home venue privilege; and (3) Citizens waived the privilege by choosing to litigate other cases outside Leon County, including in Miami-Dade County.

As a state entity, Citizens presumptively holds the privileye

State entities presumptively hold the home venue privilege. See Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977). Therefore, Castle Beach bears the burden of demonstrating that Citizens, which is “a government entity that is an integral part of the state, and that is not a private insurance company,” § 627.351(6)(a)l., Fla. Stat. (2010), does not enjoy this protection.

Castle Beach has not met that burden. First, we note that Citizens’ enabling statute does not specifically express the Legislature’s intent to eliminate Citizens’ home venue privilege, which is available to all state entities under Florida’s common law, and Florida law disfavors abrogating a common law privilege by implication. Bush v. State, 945 So.2d 1207, 1213 n. 10 (Fla.2006); Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla.1990); Peninsular Supply Co. v. C.B. Day Realty of Fla., Inc., 423 So.2d 500, 502 (Fla. 3d DCA 1982). Thus, Castle Beach must demonstrate that the language the Legislature chose in Citizens’ enabling statute clearly reflects its intent to affect the privilege even though the privilege is not specifically referenced.

Castle Beach suggests that the Legislature’s mandate in section 627.351(6)(a)l., that Citizens “providfe] service to policyholders, applicants, and agents which is no less than the quality generally provided in the voluntary market,” by implication, abrogates the privilege because private insurers working in the “voluntary market” do not possess the privilege. However, under Florida law, “[ujnless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Thom-ber, 568 So.2d at 918. The language cited by Castle Beach is, however, neither repugnant to the common law privilege, because it relates to overall customer service but does not address procedure in lawsuits, nor unequivocal regarding elimination of the privilege, because it does not address venue or the privilege. We, therefore, reject Castle Beach’s argument.

The Legislature intended that Citizens be protected by the home venue privilege

Based on the plain and unambiguous language of Citizens’ enabling statute, section 627.351(6)(a)l., and our review of the case law, we conclude that the Legislature intended that Citizens be protected by the home venue privilege. In 2007, the Legislature amended Citizens’ enabling statute, specifically declaring that Citizens is “a government entity that is an integral part of the state, ... not a private insurance company,” created to provide affordable property insurance in this state. § 627.351(6)(a)l. The enabling statute further provides:

Because it is essential for this government entity to have the maximum financial resources to pay claims following a catastrophic hurricane, it is the intent of the Legislature that Citizens Property Insurance Corporation continue to be an integral part of the state and that the income of the corporation be exempt from federal income taxation....

Id.

Castle Beach contends that although Citizens is a state or governmental “entity,” it is not entitled to invoke the home venue privilege because it is not an “agency or subdivision of the state.” See Citizens Prop. Ins. Corp. v. Admiralty House, Inc., 66 So.3d 342, 345 (Fla. 2d DCA 2011) (finding that “Citizens qualifies as a public body”); Citizens Prop. Ins. Corp. v. Ashe, 50 So.3d 645, 647 (Fla. 1st DCA 2010) (stating that “Citizens is a governmental entity”); Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62, 66 (Fla. 5th DCA 2009) (holding that “the Legislature created Citizens as a state entity”). This Court, however, has found that governmental “entities,” under certain cireum-stances, are entitled to the home venue privilege. Two such examples are Boca Raton Housing Authority v. Carousel Development, Inc., 482 So.2d 543, 545 (Fla. 3d DCA 1986), wherein this Court held that Boca Raton Housing Authority was a governmental entity entitled to the home venue privilege, and Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81, 82 (Fla. 3d DCA 1975),. wherein this Court concluded that Jacksonville Electric Authority was a governmental entity entitled to the home venue privilege.

In Boca Raton Housing Authority, this Court’s finding was based on the fact that Boca Raton Housing Authority: (1) exercises “public and essential governmental functions”; (2) receives and expends federal funding; (3) has eminent domain powers; (4) must comply with the Public Records Act; (5) is subject to “Government in the Sunshine”; (6) enjoys limited sovereign immunity; (7) may participate in a government retirement system for the benefit of its employees; and (8) is exempt from taxation and special assessments. Boca Raton Hous. Auth, 482 So.2d at 545. Citizens, like Boca Raton Housing Authority, is “an integral part of the state,” § 627.351(6)(a)l., and exercises important public and governmental functions, received $715 million in public funds through an appropriation by the Florida Legislature as a result of an active hurricane season; is subject to the Florida Public Records Act; is subject to “Government in the Sunshine” laws; enjoys limited sovereign immunity; and is exempt from federal income taxation. Additionally, Citizens operates under the supervision of an eight-member board of governors appointed by four constitutional officers: the Governor, the Chief Financial Officer, the President of the Senate, and the Speaker of the House of Representatives. See § 627.351(6)(c)4.a. The board of governors is subject to Florida’s statutory code of ethics for public officers and employees, see § 627.351(6)(d)3.; Citizens operates under a plan approved by the Florida’s Financial Services Commission, see § 20.121(3), Fla. Stat. (2011); § 627.351(6)(a)2.; and is subject to audits by the Auditor General, which conducts audits of state government. See § 11.45(2), Fla. Stat. (2011); § 627.351.

This Court also found Jacksonville Electric Authority was entitled to the home venue privilege, with far fewer indicators: tax money could be used in its operations and its activities were governmentally supervised. Ven-Fuel, 332 So.2d at 82-83.

Conversely, this Court declined to assign home venue privilege to the Florida Insurance Guaranty Association (“FIGA”) in Kuvin, Klingensmith & Lewis, P.A. v. Florida Insurance Guaranty Ass’n., 371 So.2d 214, 216 (Fla. 3d DCA 1979), after concluding that FIGA, which is composed exclusively of private insurers and is governed by a committee selected by the member insurers, is a business entity, not “an arm of the government.” Id. Additionally, FIGA has never been referred to as a governmental entity; it has not received public funding; its enabling statute, § 631.57(3)(d), Fla. Stat. (2011), prohibits the use of tax monies to fund it; it is not exempt from taxation; and it is not subject to “Government in the Sunshine” laws or an audit by the Auditor General.

We therefore conclude that, like Boca Raton Housing Authority and Jacksonville Electric Authority, two governmental entities this Court found were protected by the home venue privilege, Citizens is similarly protected.

Citizens’ litigation strategy in other cases does not affect the privilege here

Castle Beach also contends Citizens waived the privilege by litigating other cases, but not this case, outside its home venue of Leon County. Castle Beach contends that by taking actions that frustrate the privilege’s purpose of forcing cases against an agency into a single forum, Citizens has waived the privilege. This argument is persuasive, but unavailing.

The common law home venue privilege is intended to encourage uniform interpretation by one court, thus promoting efficient and uniform rulings and minimizing expenditure of public funds. See, e.g., Fla. Pub. Serv. Comm’n v. Triple “A” Enters., Inc., 387 So.2d 940, 943 (Fla.1980). However, waiver of the privilege only occurs through actions in the same case, not different cases. See, e.g., Dickinson v. Fla. Nat’l Org. for Women, Inc., 763 So.2d 1245,1248 (Fla. 4th DCA 2000) (concluding that actions in an earlier case did not affect the privilege in the present case); see also Dep’t of Agric. v. Middleton, 24 So.3d 624, 627 (Fla. 2d DCA 2009) (rejecting a waiver argument because throughout the proceedings in the trial court “the State Agencies consistently asserted their entitlement to the home venue privilege” and “[a]t no time did the State Agencies agree to submit to venue in Pinellas County or submit to the jurisdiction of the Circuit Court located in Pinellas County”); cf. Cnty. of Volusia v. Atl. Int’l Inv. Corp., 394 So.2d 477 (Fla. 1st DCA 1981) (finding the county had waived its home venue privilege by not asserting the privilege in its motion to dismiss). Consequently, the trial court correctly determined that other cases in Miami-Dade County involving Citizens do not implicate its ability to assert the privilege in this case because the privilege was not waived in this case. Accordingly, we affirm the trial court’s order transferring venue from Miami-Dade County to Leon County.

Affirmed.

      . Castle Beach also cites section 627.351(6)(a)4., which states the Legislature intends that "the corporation be held to service standards no less than those applied to insurers in the voluntary market by the office with respect to ... overall dealings with policyholders.... ” Castle Beach contends the language "overall dealings” includes lawsuits and, therefore, eliminates the privilege. We disagree, finding this language also does not show the Legislature intended to eliminate Citizens’ common law home venue privilege.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Troy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2158.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Rehearing Denied Sept. 19, 2012.
    Troy Jackson, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. In 1996, appellant was convicted of two counts of armed robbery in this case and sentenced as a habitual violent felony offender (HVFO) to life in prison. Appellant claims in this motion that he was not represented by counsel at a 1992 violation of probation (VOP) hearing that resulted in his adjudication of guilt in a 1989 case that was used as a predicate for the HVFO sentence. See State ex rel. Alton v. Conkling, 421 So.2d 1108 (Fla. 5th DCA 1982) (citing Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (“Previous convictions obtained without counsel or waiver of counsel may not be used to enhance punishment under a recidivist statute”)).

Appellant’s claim cannot be determined from the face of the record and is procedurally barred. Appellant did not timely challenge the 1992 revocation of his probation; nor did he challenge the use of the 1992 conviction as a predicate offense at sentencing. The issue should have been raised at sentencing, and on direct appeal if necessary, or in a timely motion for postconviction relief under Rule 3.850. Even if the claim was not barred, appellant’s motion is insufficient as appellant failed to allege that he did not waive counsel at the VOP hearing and that he did not otherwise qualify as an HVFO.

Affirmed.

STEVENSON, TAYLOR and GERBER, JJ., concur.

      . The law in effect in 1994, when appellant committed the armed robberies at issue, provided: "For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.” § 775.084(2), Fla. Stat. (1993) (emphasis supplied). The armed robberies were not committed during the probationary term.


text:
    Joshua P. KINCAID, a minor, by and through his parent and natural guardian, Christine C. FAIN, Appellant, v. Deon S. VANZYL, Appellee.
    No. 4D11-1788.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Rehearing Denied Sept. 21, 2012.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for appellant.
    Shea Moxon of Swope, Rodante, P.A., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Trout v. Apicella, 78 So.3d 681 (Fla. 5th DCA 2012).

GROSS, LEVINE, JJ., and ROSENBERG, ROBIN L., Associate Judge, concur.


author: SHEPHERD, J.

text:
    Ervin R. VILLALOBOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1264.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2012.

      Ervin R. Villalobos, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SALTER, and EMAS, JJ.
   SHEPHERD, J.

On May 8, 2012, Ervin R. Villalobos filed a Notice of Appeal from the April 12, 2012, trial court order denying his most recent motion for postconviction relief filed below on September 7, 2011. On June 18, 2012, we ordered Villalobos to show cause why he should not be prohibited from filing further pro se proceedings with this court concerning his January 15,1993, conviction and sentence for capital sexual battery on a minor in lower court case number 92-5384. After carefully considering Villalo-bos’ response, see State v. Spencer, 751 So.2d 47 (Fla.1999), and concluding his current appeal lacks merit and that good cause has not been shown, we now prohibit him from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

Villalobos originally was charged with two counts of capital sexual battery on a minor, and after jury trial was found guilty of one count of capital sexual battery on January 15, 1993. The trial court sentenced Villalobos to life in prison on January 20, 1993, with a twenty-five-year minimum mandatory provision. Thereafter, Villalobos filed a direct appeal to this court, which we affirmed. Villalobos v. State, 634 So.2d 822 (Fla. 3d DCA 1994).

Since his direct appeal, Villalobos has filed numerous postconviction motions or petitions for relief from his conviction and sentence. This court either has affirmed the lower court or denied direct relief on all these motions or petitions, after careful review revealed the issues raised were untimely, successive or without merit. See Villalobos v. State, 647 So.2d 121 (Fla. 3d DCA 1994); Villalobos v. Singletary, 662 So.2d 355 (Fla. 3d DCA 1995); Villalobos v. Singletary, 693 So.2d 558 (Fla. 3d DCA 1997); Villalobos v. State, 780 So.2d 83 (Fla. 3d DCA 2001); Villalobos v. State, 847 So.2d 481 (Fla. 3d DCA 2003); Villalobos v. State, 919 So.2d 455 (Fla. 3d DCA 2005); Villalobos v. State, 939 So.2d 109 (Fla. 3d DCA), rev. dismissed, 942 So.2d 414 (Fla.2006); Villalobos v. McDonough, 959 So.2d 1198 (Fla. 3d DCA 2007); Villalobos v. State, 963 So.2d 244 (Fla. 3d DCA 2007).

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except' perhaps the punishment of ... sanctions.”). As this court has stated on several occasions, “there comes a point where enough is enough.” Hicks v. State, 974 So.2d 1116, 1118 (Fla. 3d DCA 2008); Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007); Johnson, 915 So.2d at 684. We believe Villalobos has reached that point.

Accordingly, we affirm the trial court’s order denying Villalobos’ September 7, 2011, motion for postconviction relief. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions, or other papers relating to Villalobos’ conviction and sentence in case number 92-5384, unless they are filed by a Florida Bar member in good standing. Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Villalobos, pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2011), for the filing of a frivolous appeal.


author: POLEN, J.

text:
    Kevin M. WALTERS, Appellant, v. Linda Yacovone WALTERS, Appellee.
    No. 4D11-2073.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Rehearing Denied Sept. 21, 2012.

      Peter Ticktin, Jessica Ticktin and Benjamin Alexander of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    Rosemarie W. Guerini of D’Amore Law Firm P.A., Palm Beach Gardens, for appel-lee.
   POLEN, J.

Appellant, Kevin Walters (“Former Husband”), appeals the trial court’s final orders on his petition for modification of alimony and adjudging him in contempt of court. Former Husband appealed on six points: retroactive modification of alimony; amount of alimony in consideration of his net income; the trial court’s refusal to consider Linda Walters’ (“Former Wife”) current needs; clarification of the trial court’s temporary modification; the trial court’s failure to consider Former Husband’s health care payments for the parties’ children; and the trial court’s finding that Former Husband divested funds. We affirm as to the first two points on appeal and reverse and remand on the remainder of the points for the reasons set forth herein.

The Walters were married for approximately fourteen years, at which point they dissolved their marriage, citing that it was irretrievably broken. The couple have four children together, one of whom reached the age of majority by the time this appeal was filed, and another whom has now reached the age of majority.

Former Wife worked in hospitality at the beginning of the marriage, until she decided to focus on being a wife and mother while working part-time jobs and volunteering. Former Husband worked as the Vice President of Food and Beverages at The Breakers Hotel. The court calculated Former Husband’s annual base salary at $225,000.00 per year. Former Husband was also entitled to two different bonuses, which are estimated to equal approximately $300,000.00 per year on average. Therefore, the trial court found that Former Husband’s annual income was around $525,000.00. The court imputed Former Wife’s annual gross income at $31,000.00, anticipating that she would return to her previous salary of $51,300.00 within a few years.

The court awarded permanent periodic alimony to Former Wife, ordering payments of $5,625.00 per month, plus $60,000.00 on December 1 of each year, to be taken from Former Husband’s bonus. However, Former Husband’s income was decreased when the economy took a downturn. In 2008, Former Husband was able to pay the $60,000.00 alimony out of his bonus, but in 2009, his income was almost $100,000.00 less than what it was the year before. Despite this decrease, Former Husband still paid the total amount he was required to pay. In 2010, Former Husband’s position at The Breakers Hotel ceased to exist. At this point, while Former Husband was given a one-time severance payment and a bonus, that bonus was $54,000.00, making it impossible for Former Husband to pay $60,000.00. Instead, Former Husband paid Former Wife twenty percent of his bonus.

Upon hearing that his position was eliminated, Former Husband began to look for new jobs immediately. Former Husband looked for positions comparable to his job at The Breakers and attempted to do some consultation work to maintain an income. For one consulting job, Former Husband made $24,500.00, but was unable to secure any other work. Former Husband also started a company that bought and sold vintage luxury items for a profit. Even though Former Husband’s income substantially declined, he continued to pay the $5,625.00 per month in alimony and $1,520.00 per month in child support, as well as twenty percent of his bonus.

Former Husband filed a petition for modification of the final judgment of dissolution of marriage. In the petition, Former Husband sought a downward modification to be applied retroactively to the date he filed the petition, as well as a reduction or abatement of his obligations. Former Husband also requested a credit for any payments made after the petition was filed in excess of the modified amount(s). In response, Former Wife filed a motion for contempt and enforcement, alleging that Former Husband willfully and intentionally failed to pay the Former Wife the $60,000.00 payment which was due to her on December 1, 2010. The parties were ordered to mediation, which resulted in an impasse. A non-jury trial was held.

At the trial, the court informed Former Husband that his delay in notice for trial made it so the court would not retroactively apply any downward modifications to the time the petition was filed. Additionally, the court did not allow testimony as to the Former Wife’s current needs and allowed statements only about the status of the home. The court reasoned that Former Wife’s needs were already assessed at the time of final judgment and did not need to be reassessed at the time of the modification hearing. When Former Wife was asked about her new car and the costs associated therewith, the objection to discussing her needs was renewed and the trial court sustained the objection.

Following the trial, the court entered final judgment on Former Husband’s petition for modification and on Former Wife’s motion for contempt and enforcement. In the final judgment, the court expressed its concern that Former Husband made the

unilateral decision not to pay the Former Wife the full amount of alimony due, when at the time it was due he had over $60,000.00 in a Wachovia High Performance Money Market account. According to the Former Husband’s Financial Affidavit filed on December 22, 2010 he had cash available to him of $73,000.00, a retirement account worth $305,000.00 and he was earning $29,041.66 a month. He clearly had the ability to pay the $60,000.00 alimony payment to the Former Wife.

The court also expressed concerns with Former Husband’s expenditures related to his vintage business.

Ultimately, the court ordered a temporary suspension of the $60,000.00 alimony payment while monthly alimony in the amount of $5,625.00 was to continue. The trial court also denied Former Husband’s request for retroactive modification of the $60,000.00 alimony payment and child support back payments. This appeal followed.

A trial court’s order on modification of alimony is reviewed by the appellate court for an abuse of discretion. Roberts v. Roberts, 21 So.3d 888, 889 (Fla. 4th DCA 2009) (citing Cleary v. Cleary, 872 So.2d 299 308-04 (Fla. 2d DCA 2004)).

Retroactive Modification

Former Husband argues that the trial court erred in its determination that his notice to set cause for trial was unduly delayed, which resulted in the trial court’s denial of the request for retroactive modification.

Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted. However, it is within the trial court’s discretion to determine whether to make the modification retroactive, and we find no abuse of discretion on this record.

DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994). “[A]n award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay.” Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010). In Alpert v. Alpert, 886 So.2d 999 (Fla. 2d DCA 2004), the appellate court reversed as to the award of retroactive alimony because the record did not support the findings that the husband had the ability to pay the amount awarded. Id. at 1002.

This case is distinguished from Alpert where the trial court was unable to determine the sources and amount of the former husband’s income during the time period in question. Id. Here, the trial court found that Former Husband’s gross bonus from November 2010 was $78,245.00, with a net amount of $54,088.00. Additionally, Former Husband received $22,000.00 in November and December for consulting work. The court found that Former Husband’s gross income for the 2010 year was $333,039.00, including a gross bonus that was more than the $60,000.00. The annual amount of alimony owed to Former Wife was $127,500.00, which was just over one-third of Former Husband’s total gross income of $311,039.00 from his former employer. Accordingly, the trial court found that Former Husband was able to pay the full alimony owed to Former Wife for the 2010 year.

The trial court also found that the Former Husband made a unilateral decision not to pay the Former Wife the full amount of alimony due, despite several financial accounts that held ample funds to make the payment. Under this court’s holding in Siegel v. Siegel, 700 So.2d 414 (Fla. 4th DCA 1997), a court has the authority to look at all the assets from which an alimony amount may be obtained to determine if the former spouse had the ability to pay. Id. at 415. In this case, the trial court looked at all of Former Husband’s assets and determined that he was more than able to make the $60,000.00 payment on December 1, 2010. The trial court was well within its discretion to do so and, therefore, properly determined that Former Husband had the ability to pay his court-ordered amount of alimony to Former Wife at the end of 2010.

Additionally, it is not an abuse of discretion for the trial court to hold that a payor is in contempt for failing to pay the amount of court-ordered alimony to a payee. See Haymon v. Haymon, 640 So.2d 1204, 1205 (Fla. 2d DCA 1994). If the final judgment orders a particular amount to be paid, it is the responsibility of the person who is obligated to make that payment to seek suspension or termination of the alimony at the time he or she is unable to make payments. See id. Former Husband petitioned the court for a modification on November 30, 2010 and then made a payment that was less than the payment ordered in the final judgment on December 1, 2010. Without the court’s permission to pay less than the ordered amount, the trial court correctly determined Former Husband was in contempt. See id.

Amount of Alimony

Next, Former Husband argues that the trial court awarded Former Wife sixty-four percent of his net income because the court focused solely on his gross income of $333,089.00 in determining the amount of alimony.

In Decker this court held that:
Although each award of alimony and child support, standing alone, may not be objectionable, it is the cumulative effect of these awards which makes the trial court’s judgment an abuse of discretion. As was noted in the similar case of Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980), compliance with the final judgment will leave the appellant destitute and unable to provide even the most basic living expenses. This court has stated that an award to a wife should permit her to retain some semblance of her former life style “while at the same time ensuring that the husband is not strapped so that his incentive to strive forward and his lust for life are seriously impaired.”

Decker v. Decker, 660 So.2d 1162, 1164 (Fla. 4th DCA 1995) (quoting Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990)).

Based on Former Husband’s receipt of severance, a bonus, and money for consulting work, the trial court found that he was able to pay the full alimony owed to Former Wife for the 2010 year. In making his arguments on appeal, Former Husband does not include his additional assets in his calculations. This court has held that varying percentages — typically over fifty percent — of net income for alimony may be excessive, but the key in each of these cases has always been the payor’s ability to survive economically, despite the payment to the payee. See Decker, 660 So.2d at 1164; Thomas v. Thomas, 418 So.2d 316, 317 (Fla. 4th DCA 1982). In Decker, the former husband was left with just over $14,000.00 of his $75,000.00 net income after paying alimony and child support to his former wife. Decker, 660 So.2d at 1164. This court found that this was “glaring and unfair” and that the former husband would be adversely affected by the amount of money he had left for himself. Id.

This case is distinguished because Former Husband had more than just his income from the Breakers; he also had assets that the trial court was able to consider in determining the proper amount of alimony. See Siegel, 700 So.2d at 415. In considering these assets, the trial court was well within its discretion. Accordingly, we hold that the trial court did not abuse its discretion in ordering Former Husband to pay the amount of alimony previously ordered when Former Husband had received severance pay and a bonus, and retained several different money accounts otherwise.

Consideration of Former Wife’s Current Needs

Next, Former Husband argues that the trial court must have reassessed Former Wife’s needs upon the filing of his petition for modification of alimony. The trial court stated at the hearing on Former Husband’s petition for modification that Former Wife’s needs were already established at the time of dissolution of marriage and need not be reestablished for purposes of modification of alimony.

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.

Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). “Current necessary support rather than the accumulation of capital is the purpose of permanent periodic alimony.” Mallard v. Mallard, 771 So.2d 1138,1140 (Fla.2000). When considering a modification to alimony, “the recipient’s need [is] controlling and that to hold otherwise would grant the recipient a continuing interest in the former spouse’s good fortune.” Bedell v. Bedell, 583 So.2d 1005, 1007 (Fla.1991).

Here, the trial court failed to reconsider Former Wife’s needs at the time Former Husband’s income substantially changed. The Third District Court of Appeal, in Lopez v. Lopez, 970 So.2d 388 (Fla. 3d DCA 2007), held that a trial court should consider the needs of the recipient of alimony when ruling on a petition requesting downward departure. Id. at 392 n. 2 (citing Pimm v. Pimm, 601 So.2d 534 (Fla.1992)). Following the instruction provided in Bedell and Lopez, public policy suggests that it is unjust to allow a former spouse to continue receiving the same amount from the payor if substantial changes have occurred and the payee’s needs are not the same as their needs at the time of trial. While the trial court was correct to modify the Former Husband’s alimony obligation, the amount of such modification must be based on both his diminution in income, and Former Wife’s current needs.

As such, we hold that the trial court abused its discretion when it failed to reassess Former Wife’s needs at the time Former Husband proved that his income had substantially changed. We reverse as to this issue and remand with a direction to the trial court that it should consider both Former Husband’s change in circumstances and Former Wife’s needs from the time the petition for modification was filed.

Temporary Modification Suspending Payment

Former Husband next argues that the trial court’s ruling temporarily suspending the $60,000.00 payment due on December 1, 2010 lacked specificity in its terms. Therefore, Former Husband was not given sufficient notice of the requirements in order to comply.

In Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975), the Third District Court of Appeal explains that

[A] party should not be held to be in contempt for violation of an order, or provision of a judgment, which is not clear and definite, so as to make the party aware of its command and direction, as applied to a given circumstance upon which such party is called upon to act, or refuse to act.

Id. at 139. Kranis further explained that a trial court’s order should be specific in its commands so the parties would know what is required of them in order to comply.

Former Husband contends that the final judgment was unclear as to the end of the suspension. Former Husband requested a significant reduction to the alimony payment from the 2010 bonus, and elimination of any and all future alimony payments from bonuses, as they have been eliminated. The language of the final judgment is that the $60,000.00 payment due December 1, 2011 is temporarily suspended. While the final judgment made it clear that the $60,000.00 payment is, at least, currently suspended for a temporary period of time, it did not specifically delineate the confines of that suspension. Accordingly, we also reverse as to this issue and remand for clarification.

Consideration of Health Insurance Payments

In his next point on appeal, Former Husband argues that the trial court erred by not considering the amounts he paid in health insurance for his children as child support. It is undisputed that Former Husband did not receive a $475 credit toward his child support obligation, pursuant to section 61.30(8), Florida Statutes. The trial court denied Former Husband’s request to credit him for retroactive child support payments.

Section 61.30(8), Florida Statutes, states that

Health insurance costs resulting from coverage ordered pursuant to s. 61.13(l)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis. After the health insurance costs are added to the basic obligation, any moneys prepaid by a parent for health-related costs for the child or children of this action shall be deducted from that parent’s child support obligation for that child or those children.

§ 61.30(8), Fla. Stat. (2011).

In Willey v. Willey, 703 So.2d 1234 (Fla. 4th DCA 1998), this court cited to section 61.30(8), Florida Statutes, and reversed an order modifying child support because of the failure “to deduct the father’s payment of the child’s health insurance from his child support obligation.” Id. at 1234. Section 61.30(8) provides that “any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation.” § 61.30(8), Fla. Stat. (2011) (emphasis added). Failure to deduct those amounts from the child support order is erroneous and an order that does not reflect the application of those amounts to the child support payment should be reversed. See Willey, 703 So.2d at 1234.

Here, Former Husband sought to have the child support amount revisited because of his undisputed payment of $475 per month for the children’s health insurance. Failure to deduct that amount from Former Husband’s overall child support payment is contrary to the Florida Statutes. Therefore, we reverse and remand for a re-calculation of child support.

Divestment of Funds

Lastly, Former Husband argues that the trial court erred in its finding that he divested all his funds when he purchased vintage automobiles for his new business. Former Husband contends that he did not divest his funds and, rather, converted them into valuable vintage vehicles to be repaired and resold for profit.

Divestment is “[t]he complete or partial loss of an interest in an asset.” Black’s Law DictionaRY 512 (8th ed. 2004). The Fifth District held in Laliberte v. Laliberte, 698 So.2d 1291 (Fla. 5th DCA 1997), that it is improper to punish a former husband for an economic downturn he had no control over and which did not occur so he could avoid paying his court-ordered payments. Id. at 1293. The true question is whether the former husband, in good faith, attempted to obtain employment that would enable him to continue meeting his court-ordered financial obligations. See id.

Here, there is no evidence that Former Husband “divested” his funds that should have been used for alimony and child support, thereby completely or partially losing those funds. Instead, he converted those funds to begin his own business in order to obtain an income to continue to support his family. Thus, we hold the trial court improperly found that Former Husband divested his funds where he invested money into a business in hopes of obtaining a sizeable income to maintain his alimony and child support payments.

We hold that the trial court correctly denied retroactive modification of alimony and determined that alimony should be reduced in consideration of Former Husband’s net income. However, we hold the trial court abused its discretion when it refused to consider Former Wife’s current needs, failed to consider Former Husband’s health care payments for the parties’ children, and found that Former Husband divested funds. We further hold that the trial court’s temporary modification was unclear and requires clarification of the terms of suspension. As a result, we affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.

Affirmed in part; Reversed and Remanded in part.

GROSS, J., and BLOOM, BETH F„ Associate Judge, concur.


text:
    Calvin JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2300.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Rehearing Denied Oct. 8, 2012.

      Calvin Jackson, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Calvin Jackson appeals the denial of his Rule 3.800(a) motion to correct illegal sentence in two cases. We affirm because the claim is not cognizable in a Rule 3.800(a) motion and is without merit.

Jackson is serving life sentences in these cases as a habitual felony offender. He contends that his life sentences are illegal because the lack of a term of years prevents the Department of Corrections from establishing a “tentative release date” for purposes of conditional release supervision under section 947.1405, Florida Statutes (1991).

An illegal sentence that can be corrected at any time under Rule 3.800(a) “must be one that no judge under the entire body of sentencing laws could possibly impose.” Wright v. State, 911 So.2d 81, 83 (Fla.2005) (citing Carter v. State, 786 So.2d 1173, 1178 (Fla.2001)). Jackson does not establish that his life sentence is illegal within the meaning of this rule.

Further, the claim lacks merit. Because Jackson is serving a life sentence, and not a term of years, he is not entitled to a tentative release date. See Tal-Mason v. State, 700 So.2d 453, 455-56 (Fla. 4th DCA 1997). Section 944.275(3)(a) provides: “The department shall also establish for each prisoner sentenced to a term of years a ‘tentative release date’ which shall be the date projected for the prisoner’s release from custody by virtue of gain-time granted or forfeited as described in this section.” (emphasis added). Simply stated, a defendant serving a life sentence does not qualify for conditional release, that is, early release due to gain time. Conionilli v. State, 58 So.3d 380, 381 n. 1 (Fla. 2d DCA 2011); see also Wemett v. State, 567 So.2d 882, 884 (Fla.1990) (stating “nor does guidelines sentencing allow Wemett to benefit from gain-time while serving a life sentence”).

Jackson’s claim that his inability to obtain early release pursuant to the gain time statute is unconstitutional cannot be raised in a Rule 3.800(a) motion. Thomas v. State, 778 So.2d 429, 430 (Fla. 5th DCA 2001).

Affirmed.

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Thonian CYRILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1186.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Martin L. Roth of Martin L. Roth, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Smith v. State, 85 So.3d 551 (Fla. 4th DCA 2012); see also McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

GROSS, HAZOURI and CIKLIN, JJ., concur.


text:
    Larry Keith JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1628.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Rehearing Denied Sept. 25, 2012.
    Larry Keith Jackson, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned once again that the filing of any future conviction and/or sentencing challenges in this case which attempt to litigate baseless claims or claims previously raised and rejected may result in issuance of an order to show cause and prohibitions under State v. Spencer, 751 So.2d 47 (Fla.1999), as well as recommendations of disciplinary sanctions pursuant to section 944.279, Florida Statutes (2012). We acknowledge that we previously cautioned appellant in Case No. 4D10-3134, but recognize that the motion before this court was filed well before that August 16, 2010 order.

Affirmed.

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    Rudolph A. BURKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3391.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Rehearing Denied Sept. 21, 2012.

      Rudolph A. Burke, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief. Appellant raises two claims regarding his conviction for attempted first degree murder of his ex-wife. First, he claims that counsel was ineffective, having failed to move pre-trial to attack the information, which failed to include the word “premeditation.” Trial counsel made the challenge, and appellate counsel raised the issue on appeal. We considered the merits of the claim and affirmed. Burke v. State, 989 So.2d 648 (Fla. 4th DCA 2008). Thus, this point serves as no ground for postconviction relief.

Second, appellant claims that his counsel was ineffective for failing to request a “heat of passion” jury instruction. “In order for the defense of crime of passion to be available there must be adequate provocation ... as might obscure the reason or dominate the volition of an ordinary reasonable man.” Douglas v. State, 652 So.2d 887, 891 (Fla. 4th DCA), rev. denied, 661 So.2d 823 (Fla.1995) (internal quotations and citation omitted). We have reviewed the facts of this case and conclude that the jury instruction was not supported by the evidence.

Affirmed.

WARNER, GROSS and LEVINE, JJ„ concur.


author: WHATLEY, Judge.

text:
    Isaac SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-99.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Rehearing Denied Sept. 20, 2012.
    James Marion Moorman, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Isaac Sutton challenges his convictions for sale or delivery of a controlled substance within 1000 feet of a school and possession of cocaine. He also challenges his sentence for the possession conviction. Although we agree with Sutton that the trial court made an evidentiary error, we find that error harmless and affirm his convictions, but we reverse his sentence for possession of cocaine and remand for resentencing.

The trial court erroneously precluded Sutton’s sister from giving her lay opinion that the voice of the man on the videotape who agreed to sell the undercover officer cocaine was not her brother’s. The trial court was of the belief that the sister’s testimony would invade the province of the jury to determine the ultimate issue of identity by viewing the videotape for themselves. “However, if an opinion is otherwise admissible, it is not objectionable just ‘because it includes an ultimate issue to be decided by the trier of fact.’ ” State v. Cordia, 564 So.2d 601, 602 (Fla. 2d DCA 1990) (quoting section 90.703, Florida Statutes (1989), which is identical to the version of the statute applicable here). Nevertheless, our careful review of the videotape and the trial transcript reveals that the court’s error in this regard was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The State concedes that Sutton was improperly sentenced as a habitual offender for possession of cocaine. See § 775.084(l)(a)(3), Fla. Stat. (2007); Winthrop v. State, 974 So.2d 512 (Fla. 2d DCA 2008). Accordingly, we reverse Sutton’s sentence for possession of cocaine and remand with directions to the circuit court to strike the habitual offender designation on that conviction and resentenee Sutton pursuant to the guidelines.

Affirmed in part; reversed in part; and remanded with directions.

ALTENBERND and DAVIS, JJ„ Concur.


text:
    Bernard DOUGHERTY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2755.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Rehearing and Rehearing En Banc Denied Sept. 28, 2012.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal, only one of which merits discussion. Appellant challenges his conviction, claiming that he was never declared competent to proceed after a period of incompetency. Concluding that Appellant was adjudicated competent by oral pronouncement of the trial court based upon the stipulation of defense counsel, we affirm the conviction but remand this cause for entry of a written order effective to September 10, 2003.

On August 21, 2002, the court found Appellant incompetent to proceed and committed him to the Department of Children and Families. He was initially placed in a mental institution, but subsequently released and transferred to the county jail when the facility’s staff determined that he no longer met the criteria for involuntary commitment. The court set a competency review hearing for February 27, 2003. At the competency hearing, immediately following the court’s calling of the ease, defense counsel stated:

Your Honor, this is Mr. Dougherty who just returned from the State Hospital. This would be a comp review.
Apparently, the hospital feels Mr. Dougherty is capable of going forward and we would request that since they feel he’s capable of going forward, I talked to Mr. Dougherty briefly this morning, and he feels he’s ready to go forward. We would like to have this set for the next docket sounding.

The State did not object and the court set the case for docket sounding on April 21, 2003.

Approximately four months later, defense counsel filed a motion to determine Appellant’s competency. The trial court appointed three experts to evaluate Appellant and scheduled a hearing for September 10, 2003. At the hearing, defense counsel stipulated that Appellant was competent to proceed. The transcript of the hearing reveals the following:

THE COURT: This is the matter of the State of Florida versus Bernard Dougherty. Who’s got that case?
[STATE ATTY.]: Judge, Ms. Cob-rand and I. It should not be that complicated.
[DEFENSE ATTY.]: Mfe did get the evaluation back from the three doctors, so we will stipulate he is competent to proceed.
THE COURT: Very good. We’ll put it on just the regular docket sounding then.

(Emphasis added). Thereafter, the case proceeded to trial without any further mention of Appellant’s competence.

Appellant now contends that the lack of a written order adjudicating him competent requires that we reverse his conviction and order a new trial. Appellant also argues that he did not receive a proper and sufficient competency hearing, again necessitating a new trial. We disagree. It is apparent from the record that the trial court found Appellant competent to proceed based upon the representation and stipulation of defense counsel. The lack of a written order may be cured without the need for a new trial. Martinez v. State, 851 So.2d 832, 833-34 (Fla. 1st DCA 2003). Appellant’s contention that the hearing was insufficient is also without merit. Because Appellant stipulated to the written reports at a properly scheduled competency hearing, the trial court was authorized to base its competency finding on the written reports. Molina v. State, 946 So.2d 1103, 1105 (Fla. 5th DCA 2006). The eases cited by Appellant are distinguishable.

AFFIRMED AND REMANDED.

TORPY, LAWSON and COHEN, JJ., concur.


author: ALTENBERND, Judge.

text:
    LTCSP-ST. PETERSBURG, LLC; Long Term Care Institute of St. Petersburg, LLC; Senior Health Management-Florida, LLC; Senior Health Management, LLC; Daniel R. Davis; and Olayinka Oyekoya (as to Long Term Care of St. Petersburg), Appellants, v. Johnnie Earl ROBINSON, as Personal Representative of the Estate of Glenda J. Robinson, Deceased, Appellee.
    No. 2D11-3473.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Rehearing Denied Sept. 25, 2012.
    George M. Vinci, Jr., and Cory L. Chandler of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

The defendants in this nursing home wrongful death action (collectively referred to as “LTC”) appeal an order denying their motion to compel arbitration. The Estate of Glenda J. Robinson filed the action, alleging negligence not resulting in death, for events that occurred while Mrs. Robinson was a resident of Long Term Care of St. Petersburg in 2008. Mrs. Robinson was admitted to and discharged from the nursing home on more than one occasion in 2008. We conclude that the trial court erred in refusing to enforce the arbitration agreement as it applied to Mrs. Robinson’s initial stay in the nursing home. But we conclude that the trial court did not err in refusing to enforce the agreement as to Mrs. Robinson’s readmission on April 2, 2008, and on all occasions thereafter because LTC did not comply with its own contractual requirements.

For the portion of this lawsuit that is controlled by the arbitration agreement, each of the named defendants is involved in ownership or management of the nursing home and, under the plain language of the agreement, it is clear that the right to arbitrate inures to the benefit of all of the named defendants. However, the provision of the agreement limiting liability is unenforceable under the Florida Supreme Court’s decision Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011). Nonetheless, the provision that limits liability can be severed from the agreement.

Mrs. Robinson was approximately sixty-five years old and suffered from numerous ailments, including depression, when she was first admitted to Long Term Care of St. Petersburg in February 2008. Although she was not legally incompetent, she had given her husband, Johnnie Earl Robinson, a durable power of attorney to act on her behalf. The power of attorney authorized her husband to act on her behalf in broad terms and allowed him to “perform all and every act or acts, thing or things, in law needful and necessary to be done in and about the premises, as fully, completely, and amply, to all intents and purposes whatsoever as I might or could do if acting personally.” Relying on the power of attorney, Mr. Robinson and LTC signed the various admission forms associated with Mrs. Robinson’s first visit to the nursing home on March 6, 2008. Among the forms was an arbitration agreement.

When the Estate filed this action, the defendants timely requested arbitration. The Estate argued that the arbitration agreement was unconscionable and otherwise unenforceable. In an order that did not explain its reasoning, the trial court denied arbitration.

There is no evidence that the signing of these documents involved procedural un-conscionability, and the trial court did not find that any procedural unconscionability occurred in this case. From the transcript of the hearing, it appears the trial court held that the agreement was unenforceable because it was substantively unconscionable. We conclude that the trial court erred in this ruling. See FL-Carrollwood Care, LLC v. Gordon, 72 So.3d 162 (Fla. 2d DCA 2011) (holding that arbitration agreement was not unconscionable where agreement did not limit punitive damages and limitation of liability provision was severa-ble if unenforceable).

In addition to providing for arbitration as a method to resolve disagreement, the arbitration agreement contains a limitation of liability. Because this provision “substantially diminishes or circumvents” the statutory remedies available to nursing home residents under section 400.023, Florida Statutes (2007), this provision is unenforceable. See Shotts, 86 So.3d at 474. The agreement, however, also contains a very broad severability clause, allowing any offending “sentence, word, phrase, paragraph or portion of the Agreement” to be severed if it is ever held to be invalid. As a result, we conclude that the limitation of liability provision of the arbitration agreement can be severed and is not a ground to declare the entire agreement invalid.

After Mrs. Robinson’s first stay at LTC, she was discharged and readmitted on several occasions. Upon each subsequent readmission, Mrs. Robinson signed her own paperwork. LTC’s readmission form is a very short one-page document. It states in bold letters:

THIS AGREEMENT ' MUST BE SIGNED BY ALL THE SAME PERSON/S WHO SIGNED THE ORIGINAL ADMISSION AGREEMENT, OR A NEW ADMISSION AGREEMENT MUST BE SIGNED.

Despite this bold provision, LTC did not have Mr. Robinson, the signatory on the original admission agreement, sign the agreement. Moreover, LTC did not use a new admission agreement by which Mrs. Robinson could have agreed to arbitration in her own right. Rather, LTC had Mrs. Robinson sign the readmission form.

LTC has cited to no case that holds that a person who elects to return to such a nursing home is bound on readmission to terms agreed to during an earlier visit by a person holding their power of attorney. LTC has not cited, nor have we found, any controlling precedent for the proposition that the holder of a power of attorney is unambiguously the “same person” as the person granting the power for these or similar contractual purposes. We conclude that the agreements drafted by LTC should not be construed in its favor. See RX Solutions, Inc. v. Express Pharmacy Servs., Inc., 746 So.2d 475, 477 (Fla. 2d DCA 1999). The readmission agreement requires that it be signed by the “same person/s who signed the original admission agreement.” It was not. If LTC wanted Mrs. Robinson to be bound by an arbitration agreement, it should have had her sign such agreement in her own right. It is conceivable that LTC could have drafted the readmission agreement to inform such a nursing home resident that she was bound by earlier agreements signed by another person holding her power of attorney, but it did not do so.

From the complaint in our record, we cannot determine how our holding affects this lawsuit. If the Estate claims that the negligence occurred only during the later admissions, it may be able to avoid arbitration. If the Estate claims that LTC was negligent during the first admission, it will need to submit to arbitration as to the claims arising from that time period. On remand, it may be useful for the trial court to require the Estate to plead its claim in sufficient detail to resolve this issue.

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . The durable power of attorney was prepared and executed in Tennessee. Accordingly, the validity of the agreement is controlled by Tennessee law. See Carroll v. Gore, 106 Fla. 582, 143 So. 633, 637 (1932). Following supplemental briefing by the parties, this court concludes that the power of attorney is valid. Mr. Robinson was authorized by virtue of that power of attorney to sign the admission papers, including the arbitration agreement. We are not convinced that the law of Tennessee that governs the scope of a power of attorney or, alternatively, the right of third parties to rely upon Mr. Robinson as the agent for his wife under a power of attorney is different from the law of Florida, at least as it relates to his authority to admit his wife to a nursing home in Florida and to execute an arbitration agreement as part of that admission. As a result, we decline to decide whether the issue is one of Florida or Tennessee law.

      . The powers described within "the premises” of this power of attorney are extensive, including "in general, to see that my needs are met and that I am provided for in the event I am unable to take care of myself.” The powers are not restricted to specific types of transactions or tasks. See Estate of Smith v. Southland Suites of Ormond Beach, LLC, 28 So.3d 103, 104 n. 1 (Fla. 5th DCA 2010) (distinguishing McKibbin v. Alterra Health Care Corp., 977 So.2d 612 (Fla. 2d DCA 2008)).


text:
    Lamont TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4179.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Rehearing Denied Oct. 1, 2012.
    Lamont Taylor, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Lamont Taylor appeals the denial of his 3.850, Florida Rule of Criminal Procedure, postconviction motion after an evidentiary hearing. For the reasons explained below, we dismiss the appeal for lack of jurisdiction.

Procedural Histo'ry

Taylor pled no contest, without a plea agreement, and was sentenced to a total of twenty-two years in prison on four counts: trafficking in 400 grams or more of cocaine, possession of cocaine with intent to sell or deliver, possession of more than 20 grams of marijuana, and possession of paraphernalia. We affirmed Taylor’s convictions and sentences. Taylor v. State, 923 So.2d 514 (Fla. 5th DCA 2006). Taylor then timely filed a postconviction motion with four grounds. The trial court summarily denied Grounds 1 and 2, and ordered an evidentiary hearing on Grounds 3 and 4. At the evidentiary hearing, the State conceded that Taylor was entitled to be resentenced based on a double jeopardy claim in Ground 3. On March 31, 2009, the trial court entered an “Order Denying in Part and Granting in Part motion for post-conviction relief After Evidentiary Hearing.” On Ground 3, the court found that defense counsel had not misadvised Taylor that trafficking and possession with intent to sell did not constitute a double jeopardy violation, as Taylor alleged. Instead, the court found that the State had inadvertently nolle prossed the wrong count at the original sentencing. It nolle prossed the delivery of cocaine count instead of the possession with intent to sell or deliver. Because the error changed the minimum guideline sentence, the court granted relief in part on Ground 3, ruling that Taylor was entitled to be resentenced. It set resentencing for April 21. The court denied Ground 4, Taylor’s remaining post-conviction claim.

Fifteen days later (on April 15, 2009) and before resentencing, Taylor filed a “Motion for Rehearing from Postconviction Denial of 3.850 Motion.” In it, Taylor challenged the summary denial of Grounds 1 and 2 and the denial of Ground 4 after an evidentiary hearing. He did not challenge the trial court’s ruling on Ground 3.

On April 21, 2009, Taylor was resen-tenced to fifteen years in prison. He filed a timely notice of appeal, stating in pertinent part, “The nature of the judgement [sic.] appealed is a final order sentencing the defendant and the decision, this case concerning that sentence. Defendant’s sentence/resentence on 4-21-09 only.” On March 8, 2011, this Court affirmed the new sentence. Taylor v. State, 56 So.3d 785 (Fla. 5th DCA 2011).

On July 10, 2011, Taylor filed an “Amended Motion for Rehearing of Post-conviction Denial for 3.850.” The trial court denied the amended motion for rehearing from the original March 31, 2009 order as untimely. Taylor then filed an “Emergency Motion for Clarification” pointing out that he had earlier filed a timely motion for rehearing from the March 31, 2009 order on April 15, 2009. He explained that he had filed the amended motion because the court never ruled on the original motion for rehearing (filed more than two years earlier). On October 13, 2011, the trial court entered an order denying the emergency motion for clarification. It acknowledged that the original motion was missing from the court file and it had only become aware of it when Taylor filed a copy of it with the motion for clarification. Accordingly, the court addressed the merits of the original motion for rehearing and then denied rehearing. On November 10, 2011, Taylor filed a notice of appeal of the orders denying his motion for postconviction relief (3-31-2009), motion for rehearing (4-15-2009), and amended motion for rehearing (7-10-2011).

Discussion

The appellate courts of this state uniformly agree that the common postcon-viction orders which summarily deny some grounds and set others for evidentiary hearing are not final, appealable orders. See, e.g., Libertelli v. State, 775 So.2d 339 (Fla. 2d DCA 2000); Diaz v. State, 686 So.2d 679 (Fla. 3d DCA 1996); Gowins v. State, 662 So.2d 1348 (Fla. 5th DCA 1995). The order on appeal in this case is not that type of order. It denied one ground after evidentiary hearing and partially granted one ground to the extent that a subsequent resentencing was required to cure a sentencing error. Two cases have addressed the appealability of such orders, reaching opposite conclusions.

In Cooper v. State, 667 So.2d 932 (Fla. 2d DCA 1996), the Second District Court of Appeal held that a similar order was a final, appealable order. In that case, Cooper filed a postconviction motion alleging two counts of ineffective assistance, one related to his conviction and one related to his sentence. After an evidentiary hearing, the trial court agreed with Cooper’s sentencing claim and rejected the claim related to his conviction. Id. at 933. Three months later, Cooper filed a motion for leave to file a belated appeal, asserting that he had advised his attorney he wished to appeal that part of his postconviction motion that had been denied. The trial court denied the motion for belated appeal on the ground that the order denying in part and granting in part his postconviction motion was not a final, appealable order. The second district disagreed, reasoning as follows:

An order which denies a claim in a postconviction motion and grants an evi-dentiary hearing on a different claim in the same motion is not appealable until all issues raised have been ruled upon by the court. Judicial economy favors this rule which forbids piecemeal appeals until all pending matters raised in a single motion have been resolved and which can then be efficiently reviewed in one appellate proceeding. An order denying in part and granting in part relief, however, marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes. And, as here, if the part of the motion which is granted requires subsequent action on the principal case under attack, such as resentencing, we perceive no jurisdictional impediment imposed by the appeal from the postcon-viction motion to prevent that action.
The state’s right to appeal the ruling affording Mr. Cooper a new sentencing hearing accrued at the time the motion for postconviction relief was granted in part. State v. Michael, 530 So.2d 929 (Fla.1988), confirms the state’s right to seek review of an adverse ruling finding ineffectiveness of trial counsel mandates a new sentencing hearing. And Florida Rule of Criminal Procedure 3.850(g) provides for the appellate remedy to aggrieved movants. Either party could have sought review of the order denying in part and granting in part the postcon-viction motion.

Id. Consequently, the court held that the order was appealable and therefore reversed and remanded for reconsideration of the motion for leave to file belated appeal. Id.

This Court reached the opposite conclusion in Cervino v. State, 785 So.2d 631 (Fla. 5th DCA 2001). In that case, the defendant raised two postconviction claims, one pertaining to his sentence and one raising several instances of ineffective assistance. The trial court granted the defendant’s sentencing-related claim and scheduled a resentencing hearing, but denied his ineffective assistance claim. The defendant appealed from that order and this court dismissed the appeal, sua sponte, reasoning as follows:

The trial court’s order is not appeal-able because it does not constitute a final order. By its own terms, the order contemplates future action on Cervino’s motion because it calls for a resentenc-ing hearing with regard to the first claim. Therefore, the judicial labor in the trial court has not ended. Under similar circumstances, this court has dismissed rule 3.850 appeals. See, e.g., McGriff v. State, 721 So.2d 839 (Fla. 5th DCA 1998); Wood v. State, 720 So.2d 312 (Fla. 5th DCA 1998); Gowins v. State, 662 So.2d 1348 (Fla. 5th DCA 1995). This court in Gowins quoted the following language from White v. State, 450 So.2d 556 (Fla. 2d DCA 1984):

[T]he question [arises] as to the ap-pealability of an order partially disposing of a Rule 3 motion. If this were purely a civil case, such a partial order would not be appealable unless it disposed of claims unrelated to the remaining claims. An order or judgment is not considered final until it disposes of all the issues presented. The same policies against allowing piecemeal appeals apply here. We see no reason not to apply this principle to orders entered on Rule 3 motions. (footnotes omitted)[.]

Gowins, 662 So.2d at 1349 (quoting White, 450 So.2d at 557). Accordingly, we dismiss this appeal sua sponte for lack of jurisdiction. Cervino would of course be free to appeal once the trial court disposes of his motion in its entirety.

Id. at 632 (emphasis in original).

The test to determine finality is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Both Cervino and Cooper narrowly focused on whether further judicial labor was contemplated on the defendant’s postconviction motion, rather than then entire “cause” between the parties. The courts disagreed on the effect of ordering resentencing. This court held that ordering resentencing contemplated further judicial labor on the motion while the Second District held that it did not. This court’s holding in Cervino is more faithful to the traditional finality test because ordering a resentencing contemplates further judicial labor in the cause between the parties. See State v. Huerta, 38 So.3d 883 (Fla. 3d DCA 2010) (rejecting defendant’s argument that state appeal from resentencing order was untimely; state not required to appeal from earlier order granting rule 3.800 motion because judicial labor was not complete until resen-tencing); State v. Rudolf, 821 So.2d 385 (Fla. 2d DCA 2002) (dismissing state appeal from order granting rule 3.800 motion because said motion “did not create a new, separate proceeding. Instead, it is a motion filed in a continuation of the original criminal proceeding,” thus order granting motion was not final” because resentencing had not yet occurred); but see Slocum v. State, 95 So.3d 911 (Fla. 1st DCA 2012) (dismissing appeal of denial of postconviction claims from resentencing order for lack of jurisdiction because earlier order denying in part and granting in part the postconviction claims “finally concluded collateral proceedings” and the resentenc-ing in the original case was a “de novo proceeding ... legally discrete from the collateral proceeding.”); Jordan v. State, 81 So.3d 595 (Fla. 1st DCA 2012) (finding state’s motion for reconsideration filed 77 days after order granting rule 3.800 motion but before resentencing was untimely because order was final, bringing postcon-viction proceeding to an end). We also believe that Cervino is more faithful to the policy of not allowing piecemeal appeals. Where Cooper would require an appeal from an order granting in part and denying in part postconviction relief, and a separate appeal from a subsequent resen-tencing if necessary, Cervino recognizes that a defendant should simply raise all issues in one appeal after resentencing.

Because Cervino appears to more faithfully follow the supreme court’s rule of finality and policy preventing piecemeal appeals, and without a meaningful distinction between Cervino and the instant case, we follow Cervino and conclude that the trial court’s March 31, 2009, order was not a final, appealable order. As such, Taylor’s motion for rehearing did not toll the time for appeal — and Taylor should have raised any issues related to the trial court’s March 31, 2009 order on appeal after his resentencing — as this court instructed in Cervino.

It could be argued that following Cervi-no created a trap for Taylor resulting in the denial of his ability to obtain appellate review of the denial of his postconviction claims. The March 31, 2009 order appeared to be final, and even notified Taylor of his right to appeal as required under rule 3.850(f). Taylor filed a timely motion for rehearing and the court did not rule on the motion until long after resentencing.

However, Cervino was the law in this district at the time and it clearly held that such orders are not final. Cervino also recognized that the defendant would be “free to appeal once the trial court disposes of his motion in its entirety!,]” meaning after resentencing. 785 So.2d 631. Thus, Taylor could have challenged the denial of his postconviction claims in his appeal from the resentencing, but expressly limited his appeal to the resentencing. We also note that by waiting more than two years to pursue the matter further, Taylor lost his ability to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c), which might have been available as a remedy for any confusion as to the appeal deadline had Taylor acted more diligently.

Accordingly, we dismiss Taylor’s appeal for lack of jurisdiction, and certify conflict with Cooper and Slocum.

APPEAL DISMISSED; CONFLICT CERTIFIED.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.

      . See Fla. R.App. P. 9.020; Caufield v. Cantele, 837 So.2d 371, 376 n. 3 (Fla.2002). In addition, Taylor’s notice of appeal of his re-sentencing arguably constituted an abandonment of his motion for rehearing. Cf. Cabrera v. State, 623 So.2d 825 (Fla. 2d DCA 1993).


author: SALTER, J.

text:
    The STATE of Florida, Petitioner, v. Mark BELIDOR, Respondent.
    No. 3D12-1336.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2012.

      Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Brian Ellison, Assistant Public Defender, for respondent.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

The State of Florida seeks a writ of certiorari quashing a circuit court order declining to hold the respondent in contempt for refusing to answer deposition questions as a material eyewitness in a criminal case. The State granted the respondent use immunity regarding the subject matter of the testimony sought to be elicited. After an in camera hearing with the respondent and his counsel, the trial court concluded that the respondent had validly asserted his Fifth Amendment rights and was not in contempt of court. Finding that this conclusion departed from the essential requirements of the law and would irremediably prejudice the State’s prosecution in which the testimony was critical, we grant the writ and quash the order.

Background

While in federal custody for a prior conviction, the respondent provided an eyewitness account, ultimately including a recorded statement, to a state prosecutor. The statement was taken in connection with the prosecution of three defendants in a pending murder case in Miami-Dade County. At a later deposition commenced at his correctional facility, however, the respondent refused to participate. The State petitioned for an order to show cause why the respondent should not be held in contempt. The circuit court issued a writ of habeas corpus ad testificandum directing that the respondent be transported to Miami-Dade County for the purpose of testifying on behalf of the State. The trial court directed that he be sworn, and that the deposition resume.

The respondent asserted his Fifth Amendment privilege in response to any and all questioning. The prosecutor then agreed to give the respondent use immunity for any testimony related to the time during which the alleged murder was alleged to have been committed. The respondent continued, however, to assert his Fifth Amendment privilege based on what he said might be different charges emanating from other jurisdictions. The respondent’s counsel argued that the use immunity might be insufficient and requested a hearing in camera to present those concerns to the court.

Following the hearing, the trial court denied the State’s motion for an order to show cause why the respondent should not be held in contempt for his continued refusal to answer questions. The State then filed its petition for certiorari here.

Analysis

The State may seek certiorari from certain pretrial orders in criminal cases. State v. Richards, 843 So.2d 962, 968 (Fla. 3d DCA 2003). The order at issue is precisely such an order, because it prejudicially impairs or effectively negates the State’s ability to prosecute. State v. Pettis, 520 So.2d 250, 253 (Fla.1988). The order departs from the essential requirements of section 914.04, Florida Statutes (2012), which subjects the respondent to the court’s contempt power following the grant of immunity. State v. Mitrani, 19 So.3d 1065 (Fla. 5th DCA 2009); Grant v. State, 832 So.2d 770 (Fla. 5th DCA 2002). Section 914.04 also squarely addresses and eliminates the respondent’s vaguely-referenced concerns regarding perjury; the respondent’s only exposure from the testimony sought by the State would relate to “perjury committed while giving such testimony” or for later perjury. It is equally well settled that the immunity extends to other prospective prosecuting authorities, including the federal authorities. Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

The respondent maintains for the first time here that he was not duly served with a subpoena. The record, however, establishes the issuance of the writ of habeas corpus ad testificandum, a direction by the court that the respondent be sworn and that his deposition commenced, and a waiver by counsel of service of the subpoena. The respondent’s remaining arguments are also without merit.

For these reasons, we grant the petition and quash the order of April 24, 2012, in order that the trial court may correctly compel the respondent’s testimony subject to the State’s grant of immunity.

Petition granted; order quashed.

      . The transcript of the in camera hearing was filed here under seal.

      . The respondent's counsel first requested an in camera hearing without a court reporter, but ultimately assented to the presence of the court reporter and transcription of the hearing.

      . The sealed transcript of the in camera hearing of April 13, 2012, not only fails to establish any articulable category of inculpation that might exceed the scope of the respondent’s immunity, it also fails to explain the respondent’s blanket invocation of the Fifth Amendment privilege as opposed to a question by question response.

      .Any prior statement that hypothetically may have been untruthful is not protected now and is unaffected by the statutory immunity granted. State v. Richards, 457 So.2d 1124, 1125 (Fla. 3d DCA 1984).


author: SUAREZ, J.

text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. METROPOLITAN MORTGAGE COMPANY, etc., Annia Acosta, et al., and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1178.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 25, 2012.
    Richard T. Donelan, Jr., Tallahassee, Chief General Counsel, Department of Financial Services, for petitioners.
    Kevin Coyle Colbert, Miami, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). Further, the trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zone, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2011) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.


text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. HOMESIDE LENDING, INC., f/k/a BancBoston Mortgage Corp., Mario Abascal and Georgina Abascal, etc., and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1115.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.
    Richard T. Donelan, Jr., Tallahassee, Chief General Counsel, Department of Financial Services, for petitioners.
    Kevin Coyle Colbert, Miami, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). Further, the trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund_) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn, by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2011) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[u]nless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.


text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. CITIBANK FEDERAL SAVINGS BANK, Jorge Martin, Lourdes Martin, and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1057.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.
    Lori L. Jobe, Tallahassee, Assistant General Counsel, Department of Financial Services, for petitioners.
    Kevin Coyle Colbert, Miami, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, upon request of the trial court, this Court relinquished jurisdiction to the lower tribunal to vacate its order to show cause entered on March 21, 2012. The trial court vacated the order to show cause; therefore, the contempt issue of the Chief Financial Officer’s failure to appear is now moot. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). The trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2012) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Prohibition granted.