author: COHEN, J.

text:
    ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Appellant, v. TUSCAN RIDGE, LLC, et al., Appellee.
    No. 5D10-3470.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.

      Richard N. Milian and Edgar Lopez of Broad & Cassel, Orlando, and Beverly A. Pohl of Broad & Cassel, Fort Lauderdale, for Appellant.
    Craig B. Willis of Fixel, Maguire & Willis, Tallahassee, for Appellee, Joseph B. Doerr Trust, etc.
    No Appearance for Appellee, Tuscan Ridge, LLC.
    Alan E. Deserio, Stuart, Amicus Curiae for Pacific Legal Foundation.
    John A. Rogers, Tallahassee, Amicus Curiae for Florida Retail Federation.
    Sanford A. Minkoff, Tavares, Amicus Curiae for Florida Association of County Attorneys.
   COHEN, J.

Orlando/Orange County Expressway Authority (“OOCEA”) appeals a final judgment awarding attorney’s fees in the amount of $816,000 in an eminent domain proceeding. The primary issue on appeal concerns the lower court’s refusal to limit attorney’s fees awarded to the landowners to those permitted by section 73.092(1), Florida Statutes (2006), based on a pre-suit offer made by OOCEA. Because the issue involves the public interest, three amicus briefs have been filed in this action. We reverse.

OOCEA was involved in the construction of a project known as the John Land Apopka Expressway. This project was years in development and would have been widely known among the landowners impacted. OOCEA commenced a condemnation proceeding to acquire 9.81 acres of land identified as “Parcel 406” as part of the construction of the expressway. The owner of record was Joseph B. Doerr, as Trustee of The Joseph B. Doerr Revocable Living Trust dated 9/9/94 (“Doerr”).

On June 5, 2006, OOCEA made a pre-suit written offer to the known fee owner, Doerr, to “purchase Parcel 406 for $4,914,221.00, subject to all apportionment claims.” (Emphasis added). At the time of the offer, the property was occupied by Florida Container Services, Inc. (“Florida Container”), which leased the property on a month-to-month basis. In December 2005, Doerr had conveyed fifteen percent of the Trust’s interest in the subject property to Ministry Systems, Inc. (“Ministry”); however, the transfer was not recorded until July 31, 2006. The offer was not accepted by Doerr, and OOCEA filed suit to condemn the property in August 2006.

All parties agreed to a stipulated order of taking, which granted OOCEA immediate possession of the property but allowed Florida Container to remain on the property through January 5, 2007, provided certain conditions were met. Doerr and Ministry (collectively “Landowners”), the Appellees herein, filed a motion to withdraw the funds deposited by OOCEA. Their motion was uncontested and $4,712,883.32 was paid to Landowners, representing the good faith deposit less outstanding ad valorem taxes. In their motion, Landowners represented that they were the only parties of interest in the parcel, other than the Orange County Tax Collector. Doerr received eighty-five percent of the distribution and Ministry received fifteen percent, in accordance with the ownership percentages outlined in Ministry’s quitclaim deed.

Florida Container separately pursued its claims against OOCEA. Its claim was settled at mediation, and a stipulated final judgment entered on March 22, 2007, required OOCEA to pay the tenant $45,000, which was reported to represent compensation for any and all of the company’s claims.

Landowners’ stipulated order of taking did not resolve the value of Parcel 406. In July 2007, OOCEA apparently made a collective offer of judgment to Landowners in the amount of $5,500,000. The offer was not accepted by Landowners, and the compensation issue was tried before a jury in February 2008, approximately one year after Florida Container’s settlement. The jury found that Parcel 406 had a fair market value of $5,744,830.

Landowners were represented by the law firm of Fixel, Maguire & Willis (“FMW”). Both clients had virtually identical fee agreements with FMW that recognized the firm would be paid “statutorily calculated Attorney’s fees” by the condemning authority, plus a bonus of two percent of the award by Landowners if the award exceeded $5 million. The two-percent bonus, which totaled $117,861, was paid to FMW from the proceeds of the final payment made to Landowners. Following entry of the verdict, Landowners filed a separate motion to recover their “statutory” fees and/or any fees permitted by article X, section 6, of the Florida Constitution.

OOCEA sought to limit attorney’s fees to those permitted by section 73.092(1), Florida Statutes (2006), which requires the court to award fees “solely on the benefits achieved for the client.” Id. (emphasis added). Landowners argued they were entitled to the more generous “reasonable” attorney’s fees allowed by section 73.092(2), and/or the Florida Constitution. The issue was brought before the court on a motion filed by Landowners to preclude application of section 73.092(1). The trial court ultimately agreed with Landowners that section 73.092(1) could not be used to award fees in this case, but that fees should be awarded pursuant to the “reasonable fee” provision of section 73.092(2), using the factors set forth in the statute. As part of its ruling, the court rejected OOCEA’s argument that Landowners had waived the right to challenge an award of fees under the “benefits achieved” provisions of section 73.092(1). It further found that FMW’s fee agreement, which obligated the firm to accept “statutory” fees, did not limit it to fees pursuant to section 73.092(1). OOCEA’s argument that the separate bonus already paid to FMW must be deducted from any fee award was mooted by FMWs agreement to return the bonus to its clients. Because section 73.092(1) was found inapplicable, the trial judge did not reach Landowners’ argument that application of the statute would be unconstitutional under the facts and circumstances existing in this case.

At a hearing to determine the amount of fees to be awarded for both the valuation proceedings and supplemental proceedings, it became apparent that both sides had over-litigated the case, and each blamed the opposition for the oversized fees. For the valuation proceedings, FMW claimed it was entitled to be paid for 2,700.3 attorney hours at the rate of $350 or $375 per hour, and 460 paralegal hours at the rate of $120 per hour. Nearly 2,000 of the attorney hours pertained to services performed by Landowners’ lead counsel, who did not keep contemporaneous time records but reconstructed his time after the conclusion of the litigation. The court awarded Landowners a total of $816,000 as attorneys’ fees for the valuation proceedings and $194,000 relating to the supplemental proceedings. They were also awarded expert fees and costs of $277,422, plus $19,000 in reimbursements. The fees collected by OOCEA’s attorneys were similarly sizable.

OOCEA has now appealed the fees awarded to Landowners for the “valuation” portion of the proceedings. OOCEA argues that Landowners should have been limited to an award of attorney’s fees pursuant to subsection (1) of section 73.092. The statute instructs the court that, “except as otherwise provided in this section and section 73.015,” the sole factor to consider in awarding fees in an eminent domain proceeding is the “benefits achieved” for the client. § 73.092(1), Fla. Stat. Fees are calculated as a percentage of the “benefits achieved.” § 73.092(l)(c), Fla. Stat. The attorneys are entitled to thirty-three percent of any benefit up to $250,000, twenty-five percent of a benefit between $250,000 and $1 million, and twenty percent of any benefit exceeding $1 million. § 73.092(l)(c), 1.-3., Fla. Stat. ■

Subsection (1) of section 73.092 must be compared with subsection (2) of the same statute, which applies to “attorney’s fees incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for....” § 73.092(2), Fla. Stat. The subsection instructs the court that, with respect to these fees, the court is to consider a list of factors in making the award, which appear to be directed at producing a “reasonable fee.” The factors to be considered include: (1) the novelty, difficulty, and importance of the questions involved; (2) the skill employed by the attorney in conducting the cause; (3) the amount of money involved; (4) the responsibility incurred and fulfilled by the attorney; (5) the attorney’s time and labor reasonably required adequately to represent the client in relation to the benefits resulting to the client; (6) the fee, or rate of fee, customarily charged for legal services of a comparable or similar nature; and (7) any attorney’s fee award made under subsection (1). § 73.092(2)(a)-(g), Fla. Stat.

Read together, these subsections appear to contemplate two forms of fees awards in condemnation cases. Attorney’s fees for valuation proceedings are to be awarded using the “benefits achieved” formula of subsection (1), while “reasonable fees” are available under subsection (2) for fees incurred in supplemental proceedings, such as apportionment proceedings between landowners. The statute nonetheless appears to contain a “gap.” See Sarasota Cnty. v. Curry, 861 So.2d 1239 (Fla. 2d DCA 2003); Fla. Dep’t of Transp. v. Smithbilt Ind., Inc., 715 So.2d 963 (Fla. 2d DCA 1998). The gap arises because section 73.092(1) requires a condemning authority to make a written offer to a landowner, before its limiting provisions can come into play, due to the definition of “benefits achieved” set forth in the statute. The definition states:

(a) As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

§ 73.092(l)(a), Fla. Stat. (emphasis added). Moreover, section 73.092(2) is limited by its terms to fees incurred “in defeating an order of taking and in supplemental proceedings, when fees are not otherwise provided for.” The gap occurs with respect to fees incurred in valuation proceedings, when no written offer is made. Curry, 861 So.2d at 1242 (explaining “section 73.092 contains a ‘gap’ by failing to provide a method for calculating attorney’s fees in cases in which the benefits analysis is not applicable and the proceeding is not a supplemental one.”); Smithbilt, 715 So.2d at 966 (stating “the statute contains a gap because it contains no method to establish fees in the event that the condemning authority makes no written offer and the proceeding is not supplemental in nature.”). As to these cases, courts have determined that fees should be awarded pursuant to subsection (2), even though the statute does not appear to apply by its terms. See, e.g., Curry, 861 So.2d at 1242.

The dispute in this case over the application of section 73.092(1) centers on whether a valid written offer was made to Landowners, so as to permit the lower court to ascertain the “benefits achieved” by Landowners under section 73.092(1), when measured against the final verdict of $5,744,830. OOCEA, of course, argues that a valid written offer was made. It primarily relies on a pre-suit written offer it made to Doerr on June 5, 2006, to “purchase Parcel 406 for $4,914,221.00, subject to all apportionment claims.” The trial court struck the offer for purposes of the statute, finding it “insufficiently certain and/or definite,” and accepted Landowners’ argument that the offer was insufficient to permit the court to calculate the “benefits achieved” by each defendant in the final judgment, so as to permit a fee award under section 73.092(1). The lower court found that Landowners were entitled to an award of reasonable attorney’s fees pursuant to section 73.092(2).

OOCEA argues in this appeal that the only “written offer” required by section 73.092(1) is a written offer to Landowners for the entire fee, and that the statute cannot be construed to require it to separately state the interests of each individual condemnee, as this conflicts with the pre-suit offer requirements imposed on condemning authorities by section 73.015, Florida Statutes (2006). OOCEA theorizes that the pre-suit written offer made to Doerr on June 5, 2006, to “purchase Parcel 406 for $4,914,221.00, subject to all apportionment claims,” constituted a written offer for purposes of section 73.092(1), that simply made clear the offer was intended to cover all who held an interest in the property.

Landowners agree that the offer in this case was a “unified” offer for the entire fee, despite the limiting language that it was subject to apportionment. As such, Landowners contend that the offer did not meet the requirements of section 73.015, which requires the condemning authority to “provide a written offer of compensation to the fee owner as to the value of the property sought to be appropriated .... ” § 7S.015(l)(b), Fla. Stat. In opposition to Florida’s “unity rule,” Landowners insist that the offer required by section 73.015(l)(b) is an offer for the value of the fee owner’s interest, exclusive of the leasehold or other interests of third parties in the fee. Regardless, they contend that the offer that was made cannot be used as the basis of a “benefits achieved” fee award under section 73.092(1). They insist that because of the failure to specify a dollar amount for the Landowners’ interests, as distinguishable from those of Florida Container, the “benefits achieved” by Landowners in the valuation proceedings cannot be calculated, precluding a fee award pursuant to section 73.092(1).

We reject the argument that section 73.015, the pre-suit offer statute, contemplates a separate offer to a fee owner for the value of his or her property excluding other interests. A lessee is plainly an “owner” of property protected by the constitutional guarantee in article X, section 6(a) of the Florida Constitution against the taking of private property without just compensation. Trump Enters., Inc. v. Publix Supermkts., Inc., 682 So.2d 168, 169 (Fla. 4th DCA 1996). However, Florida follows the “unity rule” or “undivided fee rule.” Fla. Dep’t of Transp. v. Powell, 721 So.2d 795, 797 n. 2 (Fla. 1st DCA 1998); Div. of Admin., Fla. Dep’t of Transp. v. Allen, 447 So.2d 1383, 1385-86 (Fla. 5th DCA 1984). The rule requires the jury in an eminent domain proceeding to value the property as a whole, irrespective of the interests held in the parcel. The trial court then determines in a summary, supplemental proceeding the portion to be awarded to all interested parties, including lessees. Allen, 447 So.2d at 1385-86; accord Porter v. Columbia Cnty., 75 So.2d 699 (Fla.1954); see also Carter v. State Rd. Dep’t, 189 So.2d 793, 794 n. 1 (Fla.1966) (stating a leasehold is encompassed within property being appropriated and must be included in valuing the property as a whole).

Section 73.015 was added to the eminent domain statutes in 1999 as part of a legislative overhaul of the eminent domain process and appears to be consistent with the unity rule. See Ch. 99-385, § 57, at 56, Laws of Fla. (effective Jan. 1, 2000). It requires the condemning authority to “negotiate in good faith with the fee owner of the parcel to be acquired,” and to make an “attempt to reach an agreement concerning the amount of compensation to be paid for the parcel.” § 73.015(1), Fla. Stat. (emphasis added). Among other things, it requires the condemning authority to “provide a written offer of compensation to the fee owner as to the value of the property sought to be appropriated.” § 73.015(l)(b), Fla. Stat. (emphasis added). This is consistent with section 73.071, which requires the jury during the “compensation” portion of the proceedings to determine, among other things, the “value of the property sought to be appropriated.” § 73.071(3)(a), Fla. Stat.

The pre-suit offer made to Doerr was, in fact, a unified offer which included the value of the entire fee. By definition, it included amounts for Florida Container’s interest in the property. Allen, 447 So.2d at 1385-86. The leasehold was, at best, minimally compensable because it was a month-to-month lease terminable upon condemnation of the property. However, the company had a right to compensation for its trade and other fixtures under both the common law and the lease, because a condemnation clause is generally held not to affect a claim for non-removed fixtures. 2 Nichols on Eminent Domain § 5.02[6][f] (3d ed. 2006).

Despite the unified offer made in this case, we reject Landowners’ argument that OOCEA’s pre-suit offer does not permit an award of fees based on the “benefits achieved ” by Landowners, as required by section 73.092(1). The statute initially defines “benefits” to mean “the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney.” § 73.092(l)(a), Fla. Stat. The obvious purpose of the statute is to compute the financial benefits achieved by a condemnee in going to trial, as calculated by subtracting an early written offer made by the condemning authority from the amount ultimately awarded by the jury or accepted in settlement by the condemnee. Fees are to be calculated against this amount.

We specifically reject the argument that making the written offer “subject to apportionment” rendered it too indefinite for use in determining the benefits achieved by Landowners. The “subject to apportionment” language was obviously included in an attempt to limit the condemning authority’s liability.

We agree with OOCEA that no apportionment issues exist in this case that would preclude the trial court from calculating the benefits achieved by Landowners. It is clear that all of the “benefits achieved” in this case were attributable to Landowners, and not to the tenant, which settled its claim prior to trial. Moreover, there were no apportionment issues between the two Landowners, whose ownership interests represented a straight eighty-five to fifteen percent division of the entire fee. This means that one hundred percent of the benefits achieved in this case were attributable to Landowners, who were, in any event, represented by the same counsel.

The lack of any apportionment issues clearly distinguishes this case from Curry. There, the court considered an award of fees in an eminent domain proceeding, where a collective offer of judgment of $30,025 had been made to three landowners who owned a single parcel of land. The offer was made six years after suit had been brought. It was accepted by the landowners and final judgment was entered in accordance with the offer. The court accepted the county’s contention that the offer of judgment constituted a “written offer” for purposes of section 73.092(1), but nevertheless found that fees could not be awarded to Curry, one of the landowners, under the subsection. The court con-eluded that it was impossible to determine how much of the joint offer of judgment was attributable to his interest, and it was therefore impossible to determine the “benefits achieved” from his final settlement, which resulted in a payment to him of $7,666.67. The Curry court went on to hold that under the circumstances of the case, fees should be awarded pursuant to section 73.092(2), despite recognition that “[a] plain language reading of that subsection suggests that it would be inapplicable in this case because the underlying action was not a ‘supplemental proceeding.’ ” 861 So.2d at 1242. The court nonetheless felt that application of subsection (2) was necessary in “gap” proceedings “to give effect to the legislature’s intent that the landowner receive attorney’s fees under section 73.092 based on the landowners’ constitutional right to full compensation in eminent domain proceedings.” Id.

The problem outlined in Curry does not exist in this case, because only Landowners went to trial, each landowner’s interest was readily discernible, and both were represented by the same attorneys so there was no need to allocate fees. We do note, however, that the offer of judgment cases, statutes and rules cited by the parties, and seemingly relied upon in Curry, are, for the most part, inapposite, not only because the statutes have changed, but because they involve different considerations. The offer of judgment statutes penalize a litigant for his or her unreasonable rejection of an offer of settlement. In derogation of the common law, they create a right to fees where none otherwise existed when an offer of judgment is unreasonably rejected. These statutes differ substantially from the one involved in the instant case, which limits claimants in a condemnation proceeding to a fee award based on the “benefits achieved.” The statute is not concerned with what was known by a claimant in rejecting an offer of judgment or with the claimant’s ability to evaluate and reject the offer. We reject Landowners attempt to graft a similar analysis as used in the context of Florida’s offer of judgment rule to eminent domain proceedings. The statute focuses solely on whether benefits were achieved. It plainly states that fees for the valuation portion of the proceedings are limited by the benefits achieved on behalf of those who choose to go to trial. Once these fee limits are determined, we see no reason why the trial judge cannot allocate the benefits among those who went to trial, much as he apportions the value of the property during supplemental proceedings. Nonetheless, we leave that issue for another day.

We believe that our construction of section 73.092(1) gives maximum effect to the legislature’s intent to limit fees during the valuation portion of the condemnation proceedings to those derived in achieving benefits on behalf of a landowner. This is our polestar in statutory construction. Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (stating that court’s purpose in construing a statute is to give effect to legislative intent). We also recognize that attorney’s fees statutes must be strictly construed. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). However, the principle is inapplicable in this case, where fees are not awardable against Landowners, but are payable by the authority as part of a condemnee’s constitutional right to full compensation. See Tosohatchee Game Pres., Inc. v. Cent. & S. Fla. Flood Control Dist., 265 So.2d 681, 683 (Fla.1972) (attorney’s fees are part of constitutional right to full compensation).

Because we agree with OOCEA that Landowners’ attorney’s fees are limited in this case to those permitted by section 73.092(1), we remand for further consideration of Landowners’ argument that applying section 73.092(1) to limit the fees sought in this case denies them their constitutional right to full compensation, because the condemning authority caused “excessive litigation.” The judge never reached this argument because he found that Landowners were entitled to reasonable fees pursuant to section 73.092(2).

Finally, our resolution of the issues raised in this case makes it unnecessary for us to consider OOCEA’s argument that the fees awarded to FMW improperly exceeded those agreed to by FMW and Landowners. The fees found to be due here are those which OOCEA argued were payable under the fee agreements.

REVERSED and REMANDED.

EVANDER and JACOBUS, JJ., concur.

      . The Florida Association of County Attorneys has submitted an amicus brief on behalf of OOCEA. The Florida Retail Foundation and the Pacific Legal Foundation have submitted amicus briefs in favor of Appellees.

      . John Land has been the long-serving mayor of Apopka.

      . Its claims included compensation for its leasehold interest, trade fixtures, and moving expenses.

      . The offer of judgment is not contained in the record on appeal.

      . For the valuation proceedings alone, OOC-EA incurred 2,888 attorney hours and 1,005 paralegal hours, for which it compensated its attorneys a total of $672,000. It was also paid $150,000 for the cost phase of the trial.

      . OOCEA does not challenge the fees awarded for the supplemental proceedings.

      . The Third District has also determined that fees in inverse condemnation cases, which obviously do not involve a written offer, are governed by section 73.092(2). City of N. Miami Beach v. Reed, 863 So.2d 351, 355 (Fla. 3d DCA 2003).

      . There seems to be no real complaint in this case regarding the failure to separate Ministry’s interests from Doerr's.

      . See Pensacola Scrap Processors, Inc. v. State Rd. Dep’t, 188 So.2d 38, 41 (Fla. 1st DCA 1966) (holding lessee of property who holds month-to-month tenancy-at-will is entitled to compensation for value of leasehold estate, including the cost of removal of personal property from the lands condemned); but see Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 375-76 (Colo.1990) (stating that majority rule is that an automatic termination clause forecloses a lessee from recovering for the value of his unexpired leasehold estate); 2 Nichols on Eminent Domain § 5.02[6][h];-5.02[6][j] (recognizing that month-to-month tenant and/or a tenant-at-will have no property interest that would entitle the tenant to compensation); 26 Am.Jur.2d Eminent Domain § 232 (2011) (recognizing that a mere tenant at will, at sufferance, or from month-to-month is generally not entitled to compensation for the taking of his or her interest).

      . A tenant has a claim for permanent fixtures or improvements integrated into a building to the extent that the fixtures or improvements have an enhancing effect upon the market or rental value of the premises. 2 Nichols on Eminent Domain § 5.03[5][c]. Similar, but more extensive, rights exist with respect to trade fixtures. Sweeting v. Hammons, 521 So.2d 226 (Fla. 3d DCA 1988); 4 Nichols at § 5.03[5][c];-13.09[2].

      . There is some doubt that this language can be used to successfully limit the condemning authority’s liability. The Fourth District Court of Appeal has held that a landowner (e.g., fee owner) does not have the power to negotiate on behalf of other owners, which renders apportionment language useless. This means that the condemning authority can be required to pay separate compensation to any claimant not a party to the settlement, even when the settlement states it is "subject to apportionment.’’ See Sunshine Props., L.L.C. v. Fla. Dep't of Transp., 900 So.2d 714 (Fla. 4th DCA 2005) (holding that written settlement with fee holder, which stated that it was subject to claims for appointment, if any, did not require fee holder to compensate tenant for its leasehold interest and trade fixtures, although these were included in the offer, since tenant had not joined in the settlement and had not had the opportunity to advocate its own interests); see also Tilden Groves Holding Corp. v. Orlando/Orange County Expressway Auth., 816 So.2d 658 (Fla. 5th DCA 2002) (refusing to set aside a settlement reached by a condemning authority with a landowner, which the condemning authority believed included compensation for the tenant's interest, although no limiting language was contained in settlement and tenant was not a party to settlement).

      . In this case, the total compensation paid for the property was $5,789,830. OOCEA's first written offer to Doerr (and the last before it hired an attorney) was the pre-suit offer of June 5, 2006, to "purchase Parcel 406 for $4,914,221, subject to all apportionment claims.” The difference between these two figures represents the "benefits achieved” by Landowners in going to trial.

      . See Allstate Indem. Co. v. Hingson, 808 So.2d 197 (Fla.2002), (holding that an offer of settlement made by a defendant to multiple plaintiffs had to state the amount and terms attributable to each plaintiff; court said, among other things, separate offers were necessary for each party to evaluate the offer as it pertains to him or her); Hartleb v. Fla. Dep’t of Transp., 677 So.2d 336, 337 (Fla. 4th DCA 1996) (holding that offer of judgment made to fee owner under statutes and rules no longer applicable did not cut off fee owner’s right to fees because offer did not state it was being made free and clear of the tenant’s claims and because, in any event, condemning authority had made substantial changes to the construction plans and design, which decreased the scope of the taking, thereby reducing the amount awarded to landowner at trial).

      . Of course, the "unified” offer contemplated by section 73.015 is addressed only to "fee holders,” and not to those with possessory interests, such as tenants, and therefore serves as a "written offer” only to the fee holders.

      . It may be that adjustments to the fees awarded are necessary in those cases in which the "benefits achieved” are more attributable to one patty than another. Suppose, for example, a condemning authority offers $1 million for property, but finds no value in certain claims made by tenant regarding value of fixtures, which the condemning authority says are worthless. If the tenant is able to prevail at trial, and the jury awards an additional $500,000, due mostly to the tenant's claims, it may not be fair to split the fees solely on the basis of each party’s final percentage of the overall recovery. Instead, the tenant should be permitted to introduce evidence showing that he or she was responsible for the "benefits achieved.” This may take the form of evidence showing the value placed on the tenant's interest by the condemning authority during pre-suit negotiations.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    Cameron BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1207.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.
    Candace A. Hawthorne, of Hawthorne Law Firm, P.A., Tavares, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Cameron Butler appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. The State concedes that the motion should have been granted with respect to Butler’s claim that his trial counsel was ineffective for failing to file a motion for discharge under Florida Rule of Criminal Procedure 3.191. We agree.

Butler was initially arrested on November 7, 2005, in Broward County, Florida, on an arrest warrant issued in Volusia County upon a finding that there was probable cause to conclude that Butler had committed the offenses of shooting into an occupied vehicle and attempted second degree murder. The offenses occurred on October 31, 2005. In a search incident to Butler’s lawful arrest on the Volusia County warrant, law enforcement discovered an amphetamine pill on Butler’s person. Although Broward County notified authorities in Volusia County of the arrest, they held Butler in Broward County while pursuing prosecution for Butler’s possession of the amphetamine pill. Ultimately, Butler was convicted and sentenced to prison on the Broward County possession charge, and was transported to the Department of Corrections to begin serving that sentence. However, Butler was not formally charged on the Volusia County offenses until after he completed his Broward County sentence. The State finally filed an information charging Butler with the Volusia County offenses on June 22, 2007.

Although Butler repeatedly attempted to assert his speedy trial right, pro se, his motions were stricken because he was represented by appointed counsel at the time. Butler was subsequently convicted on the Volusia County charges, and is currently serving concurrent sentences of fifteen and thirty years on them. At an evidentiary hearing on Butler’s 3.850 claims held below, his appointed trial counsel testified that he never filed a motion for discharge (despite Butler’s repeated requests that he do so) because he (mistakenly) believed that Butler had not been arrested on the charges until June 1, 2007, when he was transported from the Department of Corrections and booked into the Volusia County jail.

Failure to raise a speedy trial claim can constitute ineffective assistance of counsel. See, e.g., King v. State, 485 So.2d 877, 878 (Fla. 2d DCA 1986). In this case, as conceded by the State, the 175-day speedy trial period began to run on the Volusia County charges when law enforcement arrested Butler on November 7, 2005. See Fla. R.Crim. P. 3.191(a) (the time period in rule 3.191(a) “shall commence when the person is taken into custody as defined under subdivision (d)”); Fla. R.Crim. P. 3.191(d) (“For purposes of [speedy trial], a person is taken into custody ... when the person is arrested as a result, of the conduct or criminal episode that gave rise to the crime charged.... ”); Williams v. State, 757 So.2d 597, 599 (Fla. 5th DCA 2000) (“Under rule 3.191, the date of the original arrest is the focal point for speedy trial considerations.”); Trainer v. Broome, 666 So.2d 1019, 1020 (Fla. 4th DCA 1996) (“the act of booking or placing a person into custody for an offense clearly implies that an arrest has occurred”); Perkins v. State, 457 So.2d 1053, 1055-56 (Fla. 1st DCA 1984) rev. denied 464 So.2d 556 (Fla.1985) (“the time for speedy trial on the Duval County charge of escape ran from the date appellant was taken into custody, or booked on that charge — not from the date that he was transferred from state prison to Duval County and was there formally arrested for such offense”); see also, State v. Williams, 791 So.2d 1088, 1089 (Fla.2001) (the state cannot “effectively toll the running of the speedy trial period by allowing it to expire prior to filing of formal charges”).

Because the State did not file an information until June 22, 2007, well after the 175 day speedy trial period had expired, it was not entitled to the ten day recapture period under Florida Rule of Criminal Procedure 3.191(p). Williams, 791 So.2d at 1091. The State properly concedes this point as well. As such, if Butler’s appointed trial counsel had simply filed a motion for discharge, as Butler repeatedly requested, the charges in this case should have been dismissed. Id. Instead, Butler’s counsel pursued a “strategy” of preparing for trial. It is well established, in a number of contexts, that “a tactical or strategic decision is unreasonable if it is based on a failure to understand the law.” Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir.2003) (citing Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991)). Whether a strategic decision is reasonable is a question of law. Id. Under these circumstances, we find that counsel was ineffective for failing to file a motion for discharge. Accordingly, we reverse the order on appeal and remand to the trial court with directions to grant Butler’s motion, vacate his convictions and sentences on these charges, and dismiss the charges.

REVERSED and REMANDED with directions.

TORPY, J., concurs.

GRIFFIN, J., concurs specially in result only, without opinion.

      . Butler is represented by a different attorney in his postconviction proceedings.

      . The State also correctly concedes that Butler never expressly waived speedy trial. See, e.g., Bryant v. State, 650 So.2d 68, 70 (Fla. 5th DCA 1994); see also Flournory v. State, 322 So.2d 652, 654 (Fla. 2d DCA 1975) ("a waiver of a fundamental right, i.e., right to speedy trial in this case, cannot be ascertained from a silent record”).

      . "[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

      . We note that this result is dictated by binding precedent applying a purported procedural rule adopted by the Florida Supreme Court. Florida Rule of Criminal Procedure 3.191 has been criticized on grounds that it "eviscerates the statute of limitations enacted by the Legislature” and in doing so improperly ”creat[es] substantive law.” Bulgin v. State, 912 So.2d 307, 314 (Fla.2005) (Wells, J., dissenting). In our view, this case illustrates that point. There has been no demonstration that Butler's constitutional speedy trial rights were violated by the filing of an information in this case within two years of the offense date. Yet, our "procedural” rule acts to forever bar prosecution for these serious charges based upon arbitrary time standards set forth in the rule-effectively nullifying the longer statute of limitations period set by the legislature for these offenses.


author: MORRIS, Judge.

text:
    Askia Jahbred HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-366.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Askia Jahbred Holmes, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Askia Jahbred Holmes appeals the revocation of his probation and resulting sentences for numerous charges in circuit court case numbers 05-16428, 08-11064, and 08-11065. We affirm the revocation and sentences in those cases without further comment.

In circuit court case number 09-6141, Holmes appeals his convictions and sentences for armed burglary of a dwelling, robbery with a firearm, aggravated battery with a firearm, false imprisonment, and grand theft motor vehicle. We affirm the convictions and sentences, but we remand for correction of the written sentencing document to conform to the oral pronouncement on the sentences for armed burglary of a dwelling, robbery with a firearm, aggravated battery with a firearm, and grand theft motor vehicle.

At trial, the trial court granted Holmes’s motion for a judgment of acquittal on the issue of whether Holmes actually carried a firearm during the commission of the armed burglary, robbery, aggravated battery, and grand theft motor vehicle. In doing so, the trial court recognized that the 10-20-Life enhancement pursuant to section 775.087(2), Florida Statutes (2008), would no longer apply. However, the written sentencing document reflected that the enhancement was applied to Holmes’s sentences for the referenced offenses.

Holmes preserved this issue by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) during the pendency of this appeal, and a filing by the clerk of the circuit court indicates that the postconviction court orally granted the motion. However the written sentencing document was never corrected, and in July 2011, this court entered an order deeming the rule 3.800(b)(2) motion to be denied.

The State concedes that the reference to the enhancement is improper. We therefore remand Holmes’s sentences for armed burglary of a dwelling, robbery with a firearm, aggravated battery with a firearm, and grand theft motor vehicle for the limited purpose of the correction of the written sentencing document to conform to the oral pronouncement by the deletion of the reference to the 10-20-Life enhancement. See Rivera v. State, 34 So.3d 207, 208 (Fla. 2d DCA 2010) (recognizing that written sentence must conform to oral pronouncement).

Affirmed but remanded for correction of the written sentences.

WHATLEY and KELLY, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Tod Redman STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1526.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Tod Redman Stewart appeals his judgment and sentence for second-degree felony robbery entered upon a jury’s guilty verdict. The only issue raised in this appeal concerns whether Mr. Stewart’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated. Prior to trial, the court offered Mr. Stewart a five-year term of imprisonment. After trial, the court imposed the maximum sentence of fifteen years’ imprisonment. The State candidly concedes error. The State’s concession of error is proper given that under the totality of the circumstances in this case there is a “reasonable likelihood” that the harsher sentence was imposed because Mr. Stewart insisted on proceeding to a jury trial, at which he represented himself, rather than accepting the trial court’s pretrial plea offer. See Harris v. State, 903 So.2d 363, 366 (Fla. 2d DCA 2005); Cambridge v. State, 884 So.2d 535, 537-38 (Fla. 2d DCA 2004). Accordingly, we affirm the judgment, reverse the sentence, and remand for resentencing before a different judge.

Judgment affirmed; sentence reversed; case remanded for resentencing.

SILBERMAN, C.J., and WALLACE, J., Concur.


author: PALMER, J.

text:
    Leonard LUCKEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2616.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.
    Leonard Luckey, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Leonard Luckey (defendant) appeals the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm and comment only on one of the defendant’s arguments.

The defendant argues that his appointed postconviction counsel was ineffective in failing to file an amended claim within the time period allowed by the trial court under Spera v. State, 971 So.2d 754 (Fla.2007). The proper procedural vehicle to raise such an argument is not an appellate claim of ineffective assistance of postcon-viction counsel, but instead, a petition for writ of habeas corpus filed in the trial court in which the defendant was convicted. See Steele v. Kehoe, 747 So.2d 931 (Fla.1999) (holding that where postconviction counsel agrees to file a rule 3.850 motion, defendant has a due process right that counsel do so timely; holding that proper remedy for counsel’s failure to do so is a habeas corpus petition in the trial court); Steele v. Kehoe, 724 So.2d 1192 (Fla. 5th DCA 1998) (stating that this right that counsel timely file applies in context of either retained or appointed counsel); Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003) (holding that habeas corpus petition relating to validity of conviction must be filed in circuit court where petitioner was convicted).

AFFIRMED.

SAWAYA and JACOBUS, JJ., concur.


author: PER CURIAM.

text:
    Hilda MEDINA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-533.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.
    Hilda Medina, Quincy, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence for violation of probation in case no. 08-CF-3445, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and COHEN, JJ., concur.


author: WETHERELL, J.

text:
    Alexander L. NIX, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-8.
    District Court of Appeal of Florida, First District.
    April 2, 2012.

      Jeffrey E. Lewis, Regional Conflict Counsel, Sheila Callahan, Assistant Regional Conflict Counsel, of the Office of Criminal Conflict & Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant raises three issues in this direct appeal of his conviction and sentence: 1) that section 893.13, Florida Statutes, is facially unconstitutional; 2) that the trial court erred in denying his motion for judgment of acquittal; and 3) that the trial court erred in imposing a discretionary fine and surcharge that had not been orally pronounced. We affirm the first issue based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), affirm the second issue without further comment, and reverse the third issue for the reasons that follow.

The jury found Appellant guilty of sale of cocaine and resisting an officer without violence. The trial court adjudicated Appellant guilty and sentenced him to 15 years on the cocaine offense and time served on the resisting offense. At sentencing, the court orally pronounced “costs and fines” of $1,522.50, along with $100 for cost of prosecution, $100 for “defense litigation fee,” and $50 for the public defender application fee.

Appellant did not object to the imposition of these costs and fines at sentencing. He did, however, file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in which he argued that the $1,050 fine and $52.50 surcharge reflected in the written judgment and sentence should be stricken because they were not specifically pronounced at sentencing. The trial court denied the motion, finding that this claim was waived.

The record does not support the trial court’s finding of waiver. Nor is there any merit to the State’s argument that this issue was not properly preserved for appellate review. Appellant preserved the issue through his rule 3.800(b)(2) motion. See Jackson v. State, 983 So.2d 562, 574 (Fla.2008); Carter v. State, 791 So.2d 525, 526-27 (Fla. 1st DCA 2001).

Statutorily-mandated costs may be imposed without notice and, thus, need not be specifically pronounced at the sentencing hearing. See Bradshaw v. State, 638 So.2d 1024 (Fla. 1st DCA 1994). By contrast, discretionary costs must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard. See Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997); Brooks v. State, 676 So.2d 48 (Fla. 1st DCA 1996) (citing Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995)).

Here, the trial court orally pronounced a lump sum of $1,522.50 of costs and fines. The oral pronouncement did not delineate the specific costs and fines included in this amount. The written judgment and sentence reflect that $420 of this amount was for statutorily-mandated costs. The remainder was comprised of a $1,050 fine pursuant to section 775.083(1), Florida Statutes, and the associated surcharge of $52.50 pursuant to section 938.04, Florida Statutes.

The fine authorized by section 775.083(1) is discretionary and, thus, it was error for the trial court to impose the $1,050 fine under this statute without specifically pronouncing the fine at the sentencing hearing. See Reyes, 655 So.2d at 116. Because this fine was erroneously imposed, the surcharge under section 938.04, which is based on the amount of fine, must also be reversed. See Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011).

On remand, the trial court may reimpose the fine and surcharge after providing notice to Appellant and following the proper procedure. Accord Williams v. State, 82 So.3d 186 (Fla. 1st DCA 2012) (reversing judgment for fines, costs and surcharges “because the trial court failed to delineate the discretionary fine(s) when announcing at sentencing that it would impose $1,522.50 in costs and fines,” and stating that the assessments may be reimposed on remand after giving Appellant notice and following the proper procedure); see also Oliver v. State, 75 So.3d 349, 350 (Fla. 1st DCA 2011) (reversing the imposition of discretionary fines and authorizing the court to reimpose the fines on remand “by following the proper procedure, which includes individually announcing each assessment and the authority for each”); Terry v. State, 791 So.2d 1162, 1163 (Fla. 1st DCA 2001) (reversing imposition of $2 discretionary cost and stating that the trial court may reimpose the cost “after complying with the ‘procedural safeguards’ set forth in Reyes ”); Smiley, 704 So.2d at 195 (reversing imposition of “a lump sum of $1,500 in ‘court costs and fines’ ” without prejudice to the trial court reimposing authorized sums after following the appropriate procedure).

AFFIRMED in part; REVERSED in part; and REMANDED.

PADOVANO and LEWIS, JJ., Concur.

      . The written judgment and sentence reflects that this is the indigent legal assistance fee mandated by section 938.29(1), Florida Statutes.

      . We question whether it is a prudent use of judicial resources to conduct further proceedings to impose an additional $1,102.50 on an indigent defendant who is serving a 15-year prison sentence, but we recognize that this is an issue for the trial court to consider in the first instance. If the trial court elects not to reimpose the fine and surcharge, it should enter a corrected judgment and sentence striking these amounts. Cf. Mallory v. State, 70 So.3d 738 (Fla. 1st DCA 2011) (remanding for entry of a corrected judgment striking improperly imposed fines); Pullam, 55 So.3d at 675 (same).


author: RAY, J.

text:
    Gloria DIANNE and Freddie L. Wingate, Husband and Wife, Appellants, v. Adrian and Charline WINGATE, Husband and Wife., Appellees.
    No. 1D11-2713.
    District Court of Appeal of Florida, First District.
    April 2, 2012.

      Ryan M. Barnett, of Whibbs & Stone, P.A., Pensacola, for Appellants.
    Adrian and Charline Wingate, pro se, Appellees.
   RAY, J.

Gloria Dianne and Freddie L. Wingate (Appellants) appeal a summary judgment in favor of Adrian and Charline Wingate (Appellees) ordering Appellants immediately to remove all speed bumps they had placed on the passageway at issue. Concluding that genuine issues of material fact preclude issuance of a summary judgment, we reverse and remand for further proceedings. Land Mgmt. of Fla., Inc. v. Hilton Pine Island, Ltd., 974 So.2d 532, 538 (Fla. 2d DCA 2008).

Procedural Background

In May 2010, Appellees petitioned to remove the speed bumps from the passageway. In support of their petition, Appellees alleged the following: (1) they possess and occupy a residence adjoining Appellants’ property in Santa Rosa County; (2) on February 1, 1999, Appellant Freddie L. Wingate and his (now deceased) wife, Peggy Ann Wingate, granted an easement over and across their property, providing ingress and egress to Appel-lees, which was recorded in the Official Record Book; (3) around October 21, 2009, Appellants willfully and intentionally placed speed bumps across a paved portion of the easement, which is used by Appellees to gain access to their residence, and placed concrete barriers on either side of the speed bumps to prevent vehicles from going around the speed bumps; (4) Appellees’ right to use this private easement is the same as the right of any other owner with permission to use the easement; (5) Appellees’ right is substantially diminished by the speed bumps whenever Appellees use the easement to access their property; and (6) the speed bumps are dangerous to drivers and their passengers and have damaged vehicles passing over the speed bumps. Claiming to have no adequate remedy at law to correct the derogation of their right to use the easement, Appellees demanded judgment for a permanent injunction restraining Appellants from keeping the speed bumps across the easement.

In their answer opposing the petition, Appellants acknowledged the existence of the easement and admitted placing the speed bumps across the passageway for the safety of small children who lived adjacent to the easement. Appellants asserted that the passageway sustained heavy traffic, some motorists used excessive speed, and over time, the posted speed limit signs were regularly ignored and ineffective. Appellants deny that the speed bumps are dangerous and/or substantially diminish Appellees’ rights.

Appellees moved for summary judgment under Florida Rule of Civil Procedure 1.510 and filed the depositions of Appellant Gloria Dianne Wingate and Appellees, Adrian and Charline Wingate, in support of their motion. The motion alleged that Ap-pellees are the owners of the written, recorded easement across Appellants’ property. Under the terms of the easement, the grantors gave, granted, sold, and conveyed to Appellees, as grantees, “a nonexclusive easement or right of way for ingress and egress, over, along, and across a strip or parcel of land,” which is legally described in the agreement. The agreement contained no restrictions and reserved no rights to place speed bumps across the easement. Appellees requested the immediate removal of the speed bumps.

At the motion hearing, Appellees’ counsel argued the speed bumps must be removed because, by their very nature, they impede ingress and egress along the easement, have no reflectors or other warning signs, and substantially diminish Appel-lees’ rights established under the easement agreement. Appellees contended that the placement of a fence along the passageway would be a less intrusive means of protecting people from vehicles crossing the easement, without impeding ingress and egress along the passageway.

Appellants’ counsel replied that the speed bumps serve a necessary safety function to reduce speeding and are permitted if they do not unreasonably interfere with the ability to cross over the easement. Appellants argued that genuine issues of material fact exist concerning whether the speed bumps constitute an impediment or interference that substantially and unreasonably diminishes Appellees’ rights, precluding resolution by summary judgment. The trial judge, acknowledging that a factual question may arise as to whether the speed bumps are a substantial interference, found it was not reasonable to place the speed bumps across the easement, where the agreement expressly granted Appellees the rights of ingress and egress. The court noted that the presence of large concrete blocks on both sides of the speed bumps prevents drivers from bypassing them. The court granted summary judgment and ordered the removal of the speed bumps.

Law and Analysis

We have de novo review of a summary judgment order. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Our task is to determine whether, after reviewing every inference in favor of Appellants as the non-moving party, no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id.

An easement is an incorporeal, non-possessory interest in land which entitles the owner of the easement to use the land of another for one or more purposes. Sears, Roebuck & Co. v. Franchise Fin. Corp., 711 So.2d 1189, 1191 (Fla. 2d DCA 1998). Although an easement is a real property interest in land, it is a right distinct from ownership of the land itself and does not confer title to the land on which the easement is imposed. Platt v. Pietras, 382 So.2d 414, 416 (Fla. 5th DCA 1980); Florida Power Corp. v. McNeely, 125 So.2d 311, 315-16 (Fla. 2d DCA 1960). The easement holder possesses the dominant tenement, while the owner of the land against which the easement exists possesses the servient tenement. Tyler v. Price, 821 So.2d 1121, 1125 (Fla. 4th DCA 2002), aff'd, 890 So.2d 246 (Fla.2004); Jones v. City of Tallahassee, 304 So.2d 528, 532 (Fla. 1st DCA 1974). The servient estate owner enjoys all rights to the property, except as limited by the easement, and may use the land burdened by the easement in any manner that does not unreasonably interfere with the lawful dominant use. Hillsborough County v. Kortum, 585 So.2d 1029, 1033 (Fla. 2d DCA 1991); Tortoise Island Communities, Inc. v. Roberts, 394 So.2d 568, 569 (Fla. 5th DCA 1981).

In the ease before us, the parties agree that a valid easement was created and recorded in 1999. To determine what rights were created by the easement agreement, we follow the rules of contract interpretation. Sandlake Residences, LLC v. Ogilvie, 951 So.2d 117, 119 (Fla. 5th DCA 2007). The clear, unambiguous language in the agreement gave the dominant estate owners (Appellees) a non-exclusive right-of-way for ingress and egress over and along the parcel of land that is used to access their residence.

Next, in determining the nature and scope of Appellees’ rights, we examine the intent of the original parties to the easement, as evidenced by the agreement itself. Sand Lake Shoppes Family Ltd. P’ship v. Sand Lake Courtyards, L.C., 816 So.2d 143, 145 (Fla. 5th DCA 2002). It is clear that the grantors intended for the grantees to have ingress and egress over the easement property. Where the parties want to keep an easement free of gates, speed bumps, signs, or other obstructions, they can specifically express such intent in their easement agreement. Gilliand v. Heiderich, 46 So.3d 1186, 1189 (Fla. 5th DCA 2010). That is not the case with the instant easement agreement, however, which is silent as to whether the servient estate owners (Appellants) have the right to place speed bumps across the easement.

A similar situation existed in BHB Development, Inc. v. Bonefish Yacht Club Homeowners Ass’n, Inc., 691 So.2d 1174 (Fla. 3d DCA 1997), where a homeowners’ association obtained a private right-of-way easement for ingress and egress over a portion of BHB Development’s property. Id. at 1175. Subsequently, BHB Development erected a locked gate across the easement for security purposes and offered keys to the homeowners’ association members. The issue was whether the easement allowed BHB Development to install the gate. The trial court issued a final judgment in favor of the homeowners’ association, directing BHB Development to remove any gates existing across the easement and forbidding the future installation of gates. Id. at 1176. The Third District Court stated the general rule as follows:

[T]he grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from doing so, and unless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way, if they are constructed so as not to interfere unreasonably with the right of passage.

Id. (emphasis in opinion) (citing 20 Fla. Jur. 2d Easements § 36 (1980)). The evidence in BHB Development established that having to unlock and open the gate and having to carry a key or have an access code caused inconvenience. The appellate court concluded that the trial court did not err in finding that the locked gate substantially and unreasonably interfered with the homeowners’ association’s right of passage. The final judgment was affirmed. 691 So.2d at 1176-77.

As in BHB Development, the essential question in this case is whether the speed bumps substantially or unreasonably interfere with the easement holders’ right of passage. Sandlake Residences, 951 So.2d at 120; Sand Lake Shoppes, 816 So.2d at 145; BHB Dev., Inc., 691 So.2d at 1176; Tortoise Island Communities, 394 So.2d at 569. To conclude as the trial court did, and hold that the speed bumps are impermissible as a matter of law, would effectively grant the easement holders absolute ownership of the easement property contrary to well-established property law. See Tortoise Island Communities, Inc., 394 So.2d at 569 (noting that the rights of easement owners over a servient estate are not absolute, but are “limited so that each party may reasonably enjoy his respective property rights”).

Whether a particular action by a servient tenement holder constitutes unreasonable interference is ordinarily a question of fact. See, e.g., Preshlock v. Brenner, 234 Va. 407, 362 S.E.2d 696, 698 (1987); Everglades Pipe Line Co. v. Trujillo, 534 So.2d 881, 881 (Fla. 3d DCA 1988); Toups v. Abshire, 979 So.2d 616, 618 (La.Ct.App.2008). In resolving the question of reasonableness, significant factors the courts may consider include the number of speed bumps, their height, the spacing between speed bumps, the necessity for their placement in the particular area, and their effect on vehicles and traffic flow. Marsh v. Pullen, 50 Or.App. 405, 623 P.2d 1078, 1079-80 (1981). At this stage of the proceedings, the pleadings, exhibits, and depositions in the record reveal the existence of triable issues of fact regarding whether the speed bumps constitute an interference that substantially or unreasonably diminishes Appellees’ rights. Because genuine issues of material fact remain, we reverse summary judgment and remand for further proceedings.

BENTON, CJ., and WETHERELL, J„ Concur.

        Cf. VanCleve v. Sparks, 132 S.W.3d 902 (Mo.Ct.App.2004) (affirming declaratory judgment based on finding that two speed bumps no more than 4-1/2 inches in height, installed to curb excessive speeds on shared driveway, did not substantially and unreasonably interfere with dominant estate owners’ use of ingress and egress easement), and Wilson v. Palmer, 229 A.D.2d 647, 644 N.Y.S.2d 872 (N.Y.App.Div.1996) (concluding that a speed bump across a common right-of-way did not substantially interfere with landowners’ reasonable use and enjoyment of their easement, where their path remained otherwise unimpeded and the speed bump doubtless encouraged slower speeds but did not bar landowners from using easement), and Marsh v. Pullen, 623 P.2d at 1078 (concluding that speed bumps — installed to deter speeding, limited to a height of seven inches, and subject to certain spacing limits — did not unreasonably interfere with rights to ingress and egress on shared residential roadway subject to an easement), with Beiser v. Hensic, 655 S.W.2d 660, 663 (Mo.Ct.App.1983) (concluding that evidence supported findings that all parties had an easement for ingress and egress over the road, none of them could impede its use by erecting speed bumps or other surface obstructions, and the placement of speed deterrents on the road was an unnecessary, unreasonable interference with the use of the road), and Monell v. Golfview Road Ass’n, 359 So.2d 2 (Fla. 4th DCA 1978) (reversing final judgment denying a request for a mandatory injunction in a dispute over whether a homeowners’ association should be required to remove four speed bumps constructed on the private road where uncontroverted evidence demonstrated that the construction of the speed bumps substantially diminished the objector’s right to the easement and dramatically reduced traffic on the road).


author: KHOUZAM, Judge.

text:
    Joseph W. FINFROCK, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4004.
    District Court of Appeal of Florida, Second District.
    April 4, 2012.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Joseph W. Finfrock appeals following his conviction for battery of a staff member at a sexually violent predator detention facility, in violation of section 784.074, Florida Statutes (2009). Because we agree with his assertion that the trial court erred by failing to inquire into his requests to discharge his attorney, we reverse and remand for a new trial.

Prior to the date of his jury trial, Finfrock filed two pro se motions. The first was a “Motion to Appoint Conflict Free Attorney,” requesting that the court “appoint conflict free counsel” because Finfrock’s appointed counsel was also representing a defendant in another pending case where Finfrock was the victim. The second was a “Motion for Nelson Hearing,” alleging multiple grounds for discharge and asking the court to “grant said hearing and act in accordance to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).” Among the grounds alleged were that an “irreconcilable difference in the case” existed between him and his counsel, that counsel violated the Professional Rules of Conduct by being unprepared, and that counsel acted with indifference towards Finfrock’s wishes with respect to discovery and other matters. On the morning of trial, the trial judge summarily dismissed with prejudice these motions on the ground that they were nullities because Finfrock was represented by counsel who had not adopted them.

Also on the morning of trial, Finfrock’s counsel orally notified the court of Fin-frock’s request for a Nelson hearing. Counsel stated “My client has a motion for a Nelson hearing. He has some things — ” but was interrupted by the judge’s assertion that “[w]ell, I don’t think there’s a basis for that because he’s represented, unless he fires you. Are you going to fire [appointed counsel] and represent yourself?” After Finfrock replied in the negative, the judge continued: “That’s the only reason you do you [sic] a Nelson/Faretta hearing.” Finfrock attempted to clarify that a “Nelson hearing is to state your dissatisfaction with the representation,” but during his explanation he was cut off when the judge declared, “We are not going to try [appointed counsel] here this morning.” After some more discussion, the trial commenced, but at no time did the judge ask Finfrock the basis for his dissatisfaction. Finfrock was ultimately convicted as charged and sentenced to ten years’ imprisonment as a habitual offender. He timely appealed.

Finfrock argues on appeal that the lower court reversibly erred in failing to make a full Nelson inquiry. The Florida Supreme Court has adopted the procedure described in Nelson for addressing a criminal defendant’s request to discharge court-appointed counsel prior to trial. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), superseded by rule, Fla. R.Crim. P. 3.111(d)(3), on other grounds as recognized in McKenzie v. State, 29 So.3d 272, 281 (Fla.2010). The first step in a Nelson inquiry is to “determine whether the defendant’s request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request.” Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010).

Although “general allegations of dissatisfaction” are insufficient to trigger the need for a full Nelson hearing, Penn v. State, 51 So.3d 622, 623 (Fla. 2d DCA 2011), “[w]hen a defendant requests that the trial court discharge his court-appointed attorney for ineffective assistance, the court is obligated to determine whether adequate grounds exist for the attorney’s discharge,” Trease v. State, 768 So.2d 1050, 1053 (Fla.2000). And while generally pro se pleadings from a represented defendant are a nullity, a motion to discharge counsel is a recognized exception to the rule. West v. State, 958 So.2d 1156, 1157 (Fla. 2d DCA 2007) (citing Logan v. State, 846 So.2d 472, 476 (Fla.2003)).

Generally, this court reviews whether a trial court conducted an adequate Nelson hearing under the abuse of discretion standard. Torres, 42 So.3d at 912. However, where the defendant has clearly alleged attorney incompetence and has unequivocally expressed his desire to discharge his counsel, then the court’s failure to conduct a Nelson inquiry is reversible error. West, 958 So.2d at 1157 (citing Reid v. State, 826 So.2d 414, 415 (Fla. 2d DCA 2002)).

Here, the trial court failed to conduct a preliminary Nelson inquiry despite multiple unequivocal statements by the defendant that he wanted to discharge his attorney for incompetence. Finfrock’s pretrial motions alleged multiple grounds for discharge and were detailed enough that any reader should have understood he was dissatisfied with his representation. In addition to the pro se motions, Finfrock’s counsel also orally alerted the court that a Nelson issue existed. Even when Finfrock attempted to explain the purpose of a Nelson hearing, the trial court failed to ask why Finfrock was dissatisfied with his appointed counsel’s representation.

On these facts, the trial court committed reversible error in failing to conduct the preliminary Nelson inquiry to determine the reason for Finfrock’s request. Once the court was made aware of Finfrock’s desire to discharge his appointed counsel for incompetence, the court was required to inquire as to its basis. Regrettably, the court did not do so. Therefore, we reverse the judgment and sentence and remand for a new trial.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.

      . Finfrock also raises a Florida Rule of Criminal Procedure 3.800(b) claim alleging entitlement to more credit for time served than awarded. In light of our holding, we need not reach the merits of this claim.


author: STEVENSON, J.

text:
    Gustavo RAMIREZ, Appellant, v. Diana RAMIREZ, Appellee.
    No. 4D11-3818.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Anne V. Alper and Damian J. Turco of Turco Legal, Palm Beach Gardens, for appellant.
    No appearance for appellee.
   STEVENSON, J.

In this dissolution proceeding, appellant, Gustavo Ramirez, challenges a non-final order finding him in contempt and ordering incarceration as a sanction for failing to make support payments to appellee, Diana Ramirez, pursuant to a previously-entered temporary relief order. We reverse because the order on appeal fails to include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fails to contain a recital of the facts on which those findings were based. See Fla. Fam. L.R.P. 12.615(d)(1) (2011). Additionally, if incarceration is ordered as a sanetion as in the instant case, the trial court must include in the order “a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.” Fla. Fam. L.R.P. 12.615(e). Those findings were also not included in the order on appeal. Compare Larsen v. Larsen, 854 So.2d 293, 294-95 (Fla. 4th DCA 2003) (reversing order finding appellant in contempt and recommending incarceration where order failed to find that appellant had the ability to comply with prior order or had the present ability to comply with the purge).

Accordingly, we reverse the order finding appellant in contempt. Further, on remand we direct that a new evidentiary hearing be held because appellant, over objection, was prevented from presenting rebuttal evidence before the contempt order was entered. A person facing civil contempt is entitled to notice and an opportunity to be heard. See Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000). Although appellant had been called to the witness stand by appellee and testified on direct and cross-examination, he was not allowed to present his own case in rebuttal. By preventing appellant from presenting any rebuttal evidence, he was denied the opportunity to be heard. See Hipschman v. Cochran, 683 So.2d 209, 211 (Fla. 4th DCA 1996) (“There must be a hearing before incarceration, where a con-temnor may challenge the allegation of noncompliance and defend on the ground that he does not have the present ability to pay....”).

Reversed and remanded for further proceedings.

WARNER and CONNER, JJ„ concur.


text:
    Olivia ZIADIE, as plenary guardian of the person and property of Francis Ziadie, incapacitated, and for Francis Ziadie, as parent and legal guardian of Philip Ziadie and Paul Ziadie, Appellants, v. David M. FELDBAUM, M.D. and Surgery Group of South Florida, Inc., Appellees.
    No. 4D10-3043.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Crane A. Johnstone of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellant.
    Roberta G. Mandel of Roberta G. Man-del, P.A., Miami, for appellees.
   PER CURIAM.

We reverse an order awarding attorney’s fees pursuant to several proposals for settlement to all of the plaintiffs/appellants. The defendants offered each plaintiff $1,000 to settle this medical malpractice action, conditioned upon the plaintiffs signing releases, indemnity agreements, and confidentiality agreements. None of the agreements were attached to the proposals, nor were their terms included in the proposals. After a trial at which the defendants prevailed, they moved for attorney’s fees pursuant to the proposals for settlement, which the trial court granted and for which it awarded fees. The trial court erred, because the proposals for settlement did not comply with Florida Rule of Civil Procedure 1.442. Without the attachment of the agreements for release, indemnity, and contribution, or an inclusion of their terms in the proposals of settlement, the proposals did not satisfy the particularity requirement of Rule 1.442(c)(2), which requires the settlement proposals to “state with particularity any relevant conditions” and “non-monetary terms.” See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). Thus, they are “too ambiguous to satisfy rule 1.442.” Id.

Reversed.

WARNER, STEVENSON and CONNER, JJ., concur.

      . Although appellants also argue that the indemnity and confidentiality agreements could constitute monetary terms, we do not address this question, as that would depend on the terms of the agreement, which were not disclosed.


text:
    Leo Richard BERUBE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4385.
    District Court of Appeal of Florida, Second District.
    April 4, 2012.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Leo Richard Berube appeals his judgment and life sentence for second-degree murder. This court reversed an earlier judgment and sentence and remanded the case for a new trial. See Berube v. State, 5 So.3d 734, 736 (Fla. 2d DCA 2009). We affirm the new judgment and sentence in all respects. We write only to certify that this decision conflicts with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), concerning the jury instruction on the lesser included offense of manslaughter. For the reasons set forth in this court’s decision in Daniels v. State, 72 So.3d 227, 230 (Fla. 2d DCA 2011), this jury instruction did not constitute fundamental error.

Affirmed; conflict certified.

SILBERMAN, C.J., and WALLACE, J., Concur.


text:
    Rita HARTMAN, Appellant, v. Don Leslie HARTMAN, Appellee.
    No. 4D11-2258.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Rita Hartman, West Palm Beach, Pro Se, and R. Flint Crump of The Law Office of Crump & Dubose, P.A., Gainesville, for appellant.
    Nancy Guffey and Peter M. Feaman of Peter M. Feaman, P.A., Boynton Beach, for appellee.
   PER CURIAM.

The former wife appeals a non-final order denying her motion to hold the former husband in contempt for failing to pay his one-half share of the college expenses of the parties’ oldest son, pursuant to the parties’ Marital Settlement Agreement. We reverse because, absent a pending motion to modify, the trial court lacked authority to modify the terms of the marital settlement agreement by ordering that the former husband be required to reimburse the former wife for only one-half of the cost of the oldest son’s college education, based on what the cost would have been if the child had attended a state university in Florida on his Bright Futures scholarship. See Chaphe v. Chaphe, 19 So.3d 1019, 1023-24 (Fla. 1st DCA 2009) (holding that where there was no motion pending before the trial court for modification of the martial settlement agreement or the judgment of dissolution, the trial court lacked jurisdiction to reduce the father’s obligations for the children’s educational expenses). A trial court is without jurisdiction to modify a final judgment where no petition for modification has been filed. Torres v. Marzelli, 657 So.2d 943, 943 (Fla. 4th DCA 1995); Leibowitz v. Leibowitz, 611 So.2d 629, 629-30 (Fla. 4th DCA 1993); Sentz v. Sentz, 548 So.2d 297, 297 (Fla. 4th DCA 1989); Anthony v. Snell, 630 So.2d 606, 606 (Fla. 1st DCA 1993).

Reversed and Remanded for further proceedings consistent with this opinion.

POLEN, TAYLOR and HAZOURI, JJ„ concur.

      . The oldest son went to an out-of-state university.