author: LAWSON, J.

text:
    Jerry L. DEMINGS, Sheriff of Orange County, et al., Appellant, v. ORANGE COUNTY CITIZENS REVIEW BOARD, et al., Appellee.
    No. 5D08-1063.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.
    Rehearing Denied July 16, 2009.

      Eric D. Dunlap, Assistant General Counsel, Orange County Sheriffs Office, Orlando, for Appellant Jerry L. Demings.
    Stewart Cohen of Stewart Cohen, P.A., Orlando, for Appellant Steven Jenny.
    G. “Hal” Johnson, General Counsel, Florida Police Benevolent Association, Inc., Amicus Curiae for Appellant Steven Jenny.
    Thomas B. Drage, Jr., County Attorney, and Linda Brehmer Lanosa, Assistant County Attorney, Orlando, for Appellee Orange County.
    Earnest DeLoach, Jr., of DeLoach Law LLC, Orlando, for Appellee Orange County Citizen’s Review Board.
   LAWSON, J.

Orange County Sheriff Jerry Demings (“Sheriff’) and Deputy Steven Jenny (“Jenny”) appeal from an amended final summary judgment in favor of Orange County (“County”) and the Orange County Citizen’s Review Board (“CRB”). In that order, the trial court upheld sections of the Orange County charter and ordinances establishing the CRB and authorizing it to review and investigate citizen complaints of excessive force and abuse of power. Particularly at issue is the CRB’s power to compel the Sheriffs deputies to appear and testify in CRB investigations by subpoena. We agree with Sheriff Demings and Jenny that the county charter and ordinance provisions creating the CRB and authorizing it to investigate citizen complaints against the Sheriffs deputies are unconstitutional, and reverse the order on appeal.

Jurisdiction and Standard of Review

Jurisdiction exists under Florida Rule of Appellate Procedure 9.030(b)(1)(A). The issues were preserved below, and the de novo standard of review applies.

Background and Relevant Facts

Under Florida’s Constitution, the state is divided into political subdivisions called counties, Article VIII, Section 1(a), Florida Constitution, so that much of the state’s “police power” can be controlled and exercised at the community level. Generally, the constitution provides for non-charter counties, which are permitted to exercise only those powers expressly authorized by the Legislature through general or special laws, Article VIII, Section 1(f), Florida Constitution, and charter counties, which are broadly granted “all powers of local self-government” not inconsistent with general or special law. Art. VIII, § 1(g), Fla. Const. Additionally, under Florida’s constitution, certain responsibilities of local governance are separately entrusted to independent constitutional officers who, at least in non-charter counties, are not accountable to the county’s governing board, but derive their power directly from the state. Art. VIII, § 1(d), Fla. Const. These officers are independently accountable to the electorate unless otherwise provided by law. Id.

In charter counties, the electorate has an option of either maintaining these independent constitutional offices or abolishing them and transferring their responsibilities to the board of the charter county or to local offices created by the charter. Id. However, the constitution does not allow for the piecemeal transfer of responsibilities from an independent constitutional officer. Id.; Cook v. City of Jacksonville, 823 So.2d 86 (Fla.2002); Dade County v. Kelly, 99 So.2d 856 (Fla.1958). Therefore, if the electorate wants to transfer any responsibility from a constitutional officer to the county’s governing board, it can do so only by abolishing the constitutional office altogether. Id.

On November 4, 1986, a majority of Orange County’s electorate approved a charter form of government for the County, which left the independent constitutional office of sheriff intact.

On November 3, 1992, a majority of the County’s voters then approved a charter amendment abolishing the constitutional office of sheriff and creating a sheriffs department headed by a county charter office of sheriff. At the same time, the electorate added a charter provision creating the CRB to investigate citizen complaints against the deputies working in the new county department, and to review the sheriffs internal departmental investigations into those complaints. Art. VIII, § 801, Orange County Charter. The charter provides for a CRB composed of seven to eleven members, and requires the sheriff to appoint two of the members. The remaining members are appointed by the board of county commissioners. To aid the CRB in “conducting [its] investigations,” the charter grants it the power to “subpoena witnesses, administer oaths, take testimony and require production of evidence.” Id. By ordinance, the board has set the number of CRB members at nine, and confirmed the CRB’s “duty” to “review citizen complaints ... regarding the alleged use of excessive force or abuse of power by any officer or employee of the office of sheriff.” Ch. 2, Art. V, Div. 6, §§ 2-193, 2-196, Orange County Code.

On November 5, 1996, a majority of the County’s voters approved a charter amendment abolishing the charter office of sheriff, re-establishing the Sheriff as an independent constitutional officer, but leaving the CRB intact. This structure still exists, as it did when the events arose which relate to deputy Jenny, on May 7, 2004. On that day, Jenny was on duty, assigned to the Sheriff’s Juvenile Arrest and Monitor Unit. He was investigating a complaint that J.M., a seventeen-year-old juvenile male on probation for aggravated assault with a deadly weapon, was in violation of his court-ordered curfew. Jenny ultimately arrested J.M. for the curfew violation, and J.M. later filed a complaint alleging that Jenny had used excessive force during the arrest. The Sheriffs Professional Standards Division investigated the complaint and determined that J.M.’s complaint was meritless.

After completion of the Sheriff’s internal investigation, the CRB initiated its own independent investigation, issuing a subpoena to Jenny and ordering him to appear before the CRB for questioning by the entire board. Jenny contested the validity of the subpoena, filing a petition for emergency writ of prohibition or alternative petition for writ of certiorari and contending that the CRB lacked the power to subpoena him as a matter of law. This petition was rejected on procedural grounds, and the CRB served Jenny with a second subpoena. Jenny’s counsel then appeared at the CRB hearing, again objecting to issuance of the subpoena and refusing to subject Jenny to questioning by the CRB. In response, the CRB filed an action in circuit court seeking to enforce its subpoena.

Independently, the Sheriff filed a complaint for declaratory judgment and supplemental relief, also challenging the CRB’s authority to independently investigate J.M.’s complaint against Jenny. The two cases were consolidated, and decided on summary judgment in the order on appeal, which held that the CRB was authorized to independently investigate J.M.’s complaint against Jenny. This appeal followed.

Relevant Statutes

Pursuant to the Orange County Career Service Act, chapter 89-507, Laws of Florida, the Sheriff possesses the authority to receive, investigate, and dispose of complaints against his personnel. Section 30.53, Florida Statutes, also preserves the Sheriff’s independence in selecting, retaining, or firing personnel and setting salaries. Finally, section 112.533 requires the Sheriff to establish and operate a system for receiving and investigating complaints against his deputies that fully complies with the procedures set forth in section 112.532, Florida Statutes. These latter statutes, together with the other provisions in part VI of chapter 112, are commonly referred to as the Law Enforcement Officer Bill of Rights. Hinn v. Beary, 701 So.2d 579, 580 (Fla. 5th DCA 1997).

Enacted in 1974, section 112.533 was amended in chapter 2003-149, Laws of Florida, which explains in the title that the procedure set forth in these statutes “shall be the- exclusive procedure used by law enforcement and correctional agencies for investigation of complaints against law enforcement ... officers.” Id. (emphasis added). The amendment clarified that a law enforcement agency’s internal investigation “shall be the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, uotivithstanding any other laiv or ordinance to the contrary.” § 112.533(1)(a), Fla. Stat. (2008) (emphasis added).

In 2007, the statute was further amended to require “[a]ny political subdivision that initiates or receives a complaint against a law enforcement officer or correctional officer” to “forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation” within five business days of initiating or receiving the complaint. Ch. 2007-110, Laws of Fla.; § 112.533(l)(b)l., Fla. Stat. (2008). “Political subdivision” is expressly defined to include counties and any board, commission or other “agency or unit of local government created or established by law or ordinance” by a local government. § 112.533(l)(b)2., Fla. Stat. (2008).

Legal Analysis

A. Plain Meaning of Section 112.533, Florida Statutes.

“[I]n construing a statute, the courts must ‘look first to the statute’s plain meaning.’ ” Hennis v. City Tropics Bistro, Inc., 1 So.3d 1152, 1156 (Fla. 5th DCA 2009) (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996)). As explained in State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008):

The courts’ job in construing a statute is to give effect to the Legislature’s intent. State v. J.M., 824 So.2d 105, 109 (Fla.2002). To determine legislative intent, courts look first to the plain language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000).

Section 112.533, as amended in 2003 and 2007, is unambiguous. It conveys a clear and definite directive that when a complaint is registered against a law enforcement officer, the employing agency is the only local governmental entity authorized to investigate that complaint. This is clear from: (1) the title language of chapter 2003-149, designating the investigation required by chapter 112 as the “exclusive procedure” for investigation; (2) the language added to section 112.533 in 2003, mandating that the investigation authorized by chapter 112 “shall be the procedure” for investigating complaints against local law enforcement “notwithstanding any other law or ordinance to the contrary;” and (3) the language added to section 112.533 in 2007, directing any local governmental entity that receives or initiates a complaint against a local law enforcement officer to forward it to the employing agency for investigation in accordance with chapter 112.

B. Constitutional Limitation on the County’s Authority.

As previously noted, as a charter county, Orange County is constitutionally granted “all powers of local self government not inconsistent with general law,” and may only enact ordinances “not inconsistent with general law.” Art. VIII, Section 1(g), Fla. Const. The County is also prohibited from transferring any of the Sheriffs powers or duties to another county office, department or board, without abolishing the constitutional office of sheriff by charter. Art. VIII, § 1(d), Fla. Const.; Kelly, 99 So.2d at 858-59.

Based on these constitutional provisions, the question presented is whether the County charter and ordinance creating and authorizing an independent board to review citizen complaints against the Sheriffs deputies, without first abolishing the constitutional office of sheriff, is “inconsistent” with general law. The answer seems clear to us in light of the plain language of section 112.533, Florida Statutes. Because section 112.533 limits the investigation of complaints against law enforcement officers by local government to the employing agency’s investigation, the charter provisions and ordinance that establish an additional procedure for investigating these complaints necessarily and directly conflict with the statute.

We note that the Attorney General has reached a similar conclusion. In an informal opinion of the Attorney General of • Florida, dated March 22, 2004, the city attorney for Key West asked whether the city could create a board with the authority to “receive, investigate and make recommendations regarding complaints of police officer misconduct independent of the internal affairs procedures established by the [police department] pursuant to section 112.533(1), Florida Statutes.” Beginning with the presumption that such ordinances and charters were valid, the Attorney General concluded that the statute provided the “exclusive means to investigate complaints against law enforcement officers” and the Legislature’s prescription of such procedure effectively prohibited investigations from being done in any other manner. He also concluded that there did “not appear to be any provision for a citizens complaint review board to utilize the investigative procedures contained in Part VI, Chapter 112” or to “operate as the receiving entity for complaints against law enforcement officers” under that statute. Subsequently, in Opinion of the Attorney General of Florida 2006-35 (2006), the Attorney General reached the same conclusion in a formal opinion, finding that the Miami-Dade Police Department was the “exclusive” agency responsible for receiving, investigating and determining complaints against its officers pursuant to section 112.533. Although the County cites to two older opinions of the Attorney General, they both predate the 2003 and 2007 amendments to section 112.533, and can therefore offer no insight on a county’s authority under current law.

We have also considered the County’s citation to Timoney v. City of Miami Civilian Investigative Panel, 990 So.2d 614 (Fla. 3d DCA 2008), and find that case equally unhelpful. Timoney dealt with a city police chief, a law enforcement officer expressly exempted from the chapter 112 investigation. See § 112.531(1), Fla. Stat. (2008). Accordingly, from our reading of Timoney, it seems clear that the local board’s authority to investigate a complaint in light of section 112.533 was never raised as an issue in that case. In fact, section 112.533 is neither cited nor discussed in Timoney.

Finally, we note that the CRB’s argument in defense of its authority merits no serious analysis. The CRB’s argument is simply that it does not investigate complaints against the Sheriffs deputies. This argument completely ignores the record before us, as well as the CRB’s own organic documents. Article VIII, section 801A, Orange County Charter, expressly charges the CRB with “reviewing citizen complaints and departmental investigations thereof regarding the use of force or abuse of power by any officer or employee of the office of sheriff.” (Emphasis added). And, section 801B grants the CRB with subpoena and other powers for the express “purpose of conducting investigations pursuant to this section.... ”

C. Other Problems with the CRB Charter Provision and Implementing Ordinances.

As an independent constitutional officer, the Sheriff does not derive his authority from the County’s charter or the board of county commissioners, and is neither generally accountable to the Board for his conduct in office nor subject to the board’s direction in the fulfillment of his duties. Art. VIII, § 1(d), Fla. Const. In the event of misconduct or misfeasance by the Sheriff, it is Florida’s governor who is authorized to suspend the Sheriff from office — and not the County’s governing board. Art. IV, § 7(a), Fla. Const. And, ultimately, the Sheriff is independently accountable to the electorate of Orange County. Art. VIII, § 1(d), Fla. Const.; State v. Sheats, 78 Fla. 583, 83 So. 508 (1919) (explaining that the term “office” as used in the Florida Constitution “implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office” or “independent authority of a governmental nature”). Given this constitutional framework, we also find that the County cannot interfere with the Sheriffs independent exercise of his duty to investigate misconduct by his deputies either by forcing him to appoint members to the CRB or by mandating his participation in CRB proceedings, either in person or through his deputies or employees. Therefore, we agree with the Sheriff that the basic structure or composition of the CRB is constitutionally infirm, and with Jenny that those provisions of the charter and ordinance authorizing the CRB to compel the attendance of Sheriffs employees to appear for questioning by the CRB, or to produce documents, are also unconstitutional.

D. Doctrine of Severance and Relief Required.

“Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.” Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999). In this case, we have carefully considered the four-part test applied to determine whether portions of a statute or ordinance that have been declared unconstitutional may be severed from the rest. See Cramp v. Bd. of Pub. Instruction of Orange County, 137 So.2d 828, 830 (Fla.1962). Given the number of significant constitutional infirmities with the charter provision creating the CRB, and the ordinance implementing that provision, we simply see no practical way to sever out any part of the provision — and therefore declare article VIII, section 801 of the Orange County Charter, along with the ordinance implementing this charter provision, to be void as violative of article VIII, sections (l)(d) and (l)(g) of the Florida Constitution.

Our conclusion that no part of the charter provision at issue can be salvaged is also influenced by the fact that article VIII, section 801 was added to the charter in tandem with the charter amendment abolishing the constitutional office of sheriff and creating a department of sheriff as part of the charter government. As previously discussed, that department was subsequently abolished by the voters of Orange County when they restored the constitutional office of Sheriff. Therefore, the department referred to in article VIII, section 801 — whose investigations the CRB is authorized to review — no longer exists. However, we note that we see no reason why a county cannot comment upon a sheriffs exercise of any constitutional duty affecting the county’s citizens, either through its board or with input from an independent board or commission. Nor do we see any constitutional impediment that would prohibit a county board from reviewing public records or considering testimony from anyone volunteering to appear and discuss issues related to the discharge of any responsibility entrusted to a constitutional sheriff by law. Therefore, in theory, we see no reason why the County could not create a board with more limited power to review and comment upon internal investigations conducted by the Sheriff. But, we will not speculate, in a vacuum, about how such a board might work, or the extent of the powers it could be granted without unconstitutionally interfering with the Sheriffs independent authority. In this case, it suffices to say that the charter provision before us so far exceeds the scope of that allowed by current law that it cannot stand.

Conclusion

For the reasons set forth above, we reverse the order on appeal and remand for entry of judgment consistent with this opinion.

REVERSED.

GRIFFIN and EVANDER, JJ., concur.

      . The de novo standard of review applies to a trial court's decision to grant or deny final summary judgment, Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001), as well as its ruling on the constitutionality of a county charter or ordinance. Cf. City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla.2006) (applying de novo standard of review to lower court's determination of validity of city ordinance).

      . See also City of Miami v. Lewis, 104 So.2d 70, 72 (Fla. 3d DCA 1958) ("counties derive their status as political subdivisions of the state through constitutional designation whereas the cities or municipalities are creatures of the statutes"); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307, 309 (1942) ("Municipalities in Florida are not subdivisions of the state as are counties.").

      . The statute does, however, provide an express exception authorizing investigation by the Criminal Justice Standards and Training Commission. § 112.533(l)(a), Fla. Stat. (2008). In addition, the Florida Police Benevolent Association notes that allegations of excessive force and abuse or power against Florida law enforcement officers are subject to possible investigation by the state attorney's office, state grand jury, slate criminal courts, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, Federal Bureau of Investigations, United States Department of Justice, federal grand jury and federal criminal courts.

      . The statute also requires that this investigation afford each officer the protections mandated by the Law Enforcement Officer's Bill of Rights. These include the rights to: (1) have the interrogation conducted at a reasonable hour, for a reasonable time, at the officer's place of employment; (2) be informed of all persons present, all complainants and the nature of the investigation; (3) be interrogated by one person; (4) review witness statements; have the entire interrogation taped; (5) be informed of constitutional rights; and (6) have an attorney or other representative present at all times whenever the interrogation relates to the officer's continued fitness for law enforcement. See § 112.532(1 )(a)-(j), Fla. Stat. (2008). Section 112.532 further provides an officer with the right to bring civil suit against complainants for knowingly filing false complaints, and establishes a 180-day limitations period to complete investigations of complaints. §§ 112.532(3) and (6), Fla. Stat. (2008).

      . County charters and ordinances may be inconsistent with general law in two ways. "First, a county cannot legislate in a field if the subject area has been preempted to the State.... Second, in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute." Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla.2008).

      . Based on our finding that the charter and ordinance directly conflict with the plain language of section 112.533, we need not conduct a separate preemption analysis.

      . Op. Att'y Gen. Fla. 74-41 (1974); Op. Att'y Gen. Fla. 97-62 (1997).

      . Timoney does contain language suggesting that nothing in chapter 112 prohibits an "independent, external investigation” by a local governing board of a complaint against a law enforcement officer. If this was an intended conclusion in Timoney, we believe it to be in error — -as inconsistent with the plain language of section 112.533. Again, however, the argument based upon section 112.533 does not appear to have been made in Timoney. Additionally, Timoney did not involve die relationship between a local governmental body and an independent constitutional officer. Rather, that case involved a city's authority to investigate its own employee.

      .The Senate is authorized to remove a suspended county officer from office. Art. IV, § 7(b), Fla. Const.


source: Caselaw Access Project

author: ALLEN, J.

license: Public Domain

text:
    FLORIDA HOME BUILDERS ASSOCIATION, INC., Tallahassee Builders Association, Inc., Hermitage Ventures, L.L.C., and Sue C. Boynton, Appellants/Cross-Appellees, v. CITY OF TALLAHASSEE, Appellee/Cross-Appellant.
    No. 1D07-6413.
    District Court of Appeal of Florida, First District.
    May 29, 2009.
    Rehearing Denied July 6, 2009.
    Barry Richard, of Greenberg Traurig, P.A., Tallahassee; Keith C. Hetrick, General Counsel, Florida Home Builders Association, Tallahassee; John W. Little, III, of Brigham Moore LLP, West Palm Beach, and Amy Brigham Boulris, of Brigham Moore LLP, Coral Gables, for Appellants/Cross-Appellees.
    James R. English, City Attorney, and Linda Hudson, Assistant City Attorney, City Attorney’s Office, Tallahassee; Major B. Harding and Kenneth R. Hart, of Aus-ley & McMullen, Tallahassee, for Appel-lee/Cross-Appellant.
    Valerie A. Fernandez and Steven Geoffrey Gieseler, Pacific Legal Foundation, Stuart, Amicus Curiae.
    Jaimie A. Ross, Affordable Housing Director, and Uma Outka, Legal Director, 1000 Friends of Florida, Inc., Tallahassee, Amicus Curiae.
   ALLEN, J.

The appellants challenge an order by which the trial court upheld the constitutionality of a municipal ordinance, upon the appellants’ request for a declaratory judgment and injunctive relief. The appellee has moved to dismiss this appeal, based on the appellants’ lack of standing to further maintain this action. Because the appellants have not established the requisite standing, the appeal is dismissed.

The disputed ordinance pertains to certain building projects within specified areas of the appellee City of Tallahassee, and the appellants were plaintiffs in the proceeding below. The appellant Sue Boynton was found to not have standing, and that ruling is not challenged in this appeal. The appellant Hermitage Ventures was found to have standing, with Hermitage Ventures having submitted an application for a building project that would be subject to the challenged ordinance. However, Hermitage Ventures has since withdrawn that application and has now announced its intent to build a different project which is not subject to the ordinance. Hermitage Ventures thus no longer has standing to pursue the legal challenge to the ordinance in this case.

The appellants Florida Home Builders Association and Tallahassee Builders Association are entities whose members are engaged in the construction business and related occupations. These associations’ standing to pursue this action is governed by Florida Home Builders Ass’n v. Dep’t of Labor & Employment Security, 412 So.2d 351 (Fla.1982). Among other requirements, Florida Home Builders establishes that for these associations to have standing to bring the legal challenge on behalf of their members, the associations must show that a substantial number of the members are sufficiently affected by the ordinance. And this action for a declaratory judgment and injunctive relief is dependent on 3, showing that there is a bona fide dispute with an actual present need for judicial intervention. See e.g. Spencer v. Gonzalez, 731 So.2d 111 (Fla. 1st DCA 1999); Britanico Underwriters, Inc. v. Central Jersey Investments, Inc., 632 So.2d 138 (Fla. 4th DCA 1994).

Florida Home Builders and Tallahassee Builders Association assert that their memberships include the great majority of the builders and developers who are qualified and would be reasonably likely to build or develop projects that could be subject to the ordinance. But such speculative possibilities, based on factual assumptions pertaining to events that only might occur at some uncertain time in the future, do not create the necessary standing for declaratory or injunctive relief. See Dep’t of Ins. v. Guarantee Trust Life Ins. Co., 812 So.2d 459 (Fla. 1st DCA 2002). Because Florida Home Builders and Tallahassee Builders Association have not shown that a substantial number of their members are sufficiently affected to permit the action for declaratory or injunc-tive relief, Florida Home Builders and Tallahassee Builders Association have not satisfied the necessary criteria for standing under Guarantee Trust and Florida Home Builders.

As there is no party to this appeal with the requisite standing to maintain this action, the appeal is dismissed.

PADOVANO and ROBERTS, JJ., concur.


author: SHEPHERD, J. COPE, J.

text:
    Javis REDDIX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-49.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Javis Reddix, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

Defendant, Javis Reddix, appeals a trial court order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing the trial court failed to secure from him a waiver of credit for time served on the inearcerative portion of his original split sentence after he violated the probationary portion of that sentence and was sent back to prison. Because there does not appear of record a clear showing of express waiver, as permitted by our case law, or other record evidence sufficient for us to conclude that Reddix accepted an offer he was aware would include such a waiver, we reverse the order on appeal and remand the case for further proceedings.

FACTS

On February 26, 2007, Reddix was adjudicated guilty in two cases and sentenced to two years in state prison followed by one year of probation. He served the inearcerative portion of his sentence and was released. Thereafter, an affidavit of violation of probation was filed against him for, inter alia, leaving Miami-Dade County without first seeking the permission of his probation officer. In discussions preceding Reddix’s plea, the State noted that its offer was “five (5) years state prison with credit time served since the last time he was booked[,]” but that there was a “different court offer.” After more discussion, Reddix ultimately chose to accept “the Court’s offer[,]” which, to that point, had not been described on the record in any detail. Thereafter, the following exchange took place:

THE COURT: You can lower your hand. Tell me [your] full name, please, sir?
THE DEFENDANT: Javis Deon Reddix.
THE COURT: How old are you, sir?
THE DEFENDANT: Twenty-eight.
THE COURT: How far did you go in school?
THE DEFENDANT: Eleventh grade.
THE COURT: Tell me what you do for a living or what your last job was?
THE DEFENDANT: Construction labor pool.
THE COURT: Have you ever been treated for a mental illness?
THE DEFENDANT: No, sir.
THE COURT: Today, are you under the influence of any drugs, alcohol, or prescription medicine that might impair your ability to understand?
THE DEFENDANT: No, sir.
THE COURT: Has anyone made you any promises to get you to accept the plea offer other than the terms that have been announced on the record?
THE DEFENDANT: No, sir.
THE COURT: Has anyone threatened or forced you to accept these terms?
THE DEFENDANT: No, sir.
THE COURT: Have you had enough time to discuss [the terms] with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with your lawyer’s assistance as counsel?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you prefer to have a right to have a probation violation hearing before this court on both cases? At the hearing it would be the State’s obligation to prove to me, not to a jury, by a preponderance of the evidence the violation of probation[?]
THE DEFENDANT: Yes, sir.
THE COURT: You would have the right to bring in witnesses to testify, the right to confront or cross-examine the State’s witnesses, the right to testify yourself or not testify, which would be your decision alone to make, and finally, the right to take an appeal to a higher court should I find you to be in violation of your probation in any regard. Do you understand that if I go ahead and accept your plea here today, then there will be no probation violation hearing, and you would give up the rights that I have just described?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the maximum penalties that could have been imposed here if I found you to be in violation were — Can you tell me, Mr. Aroca, what he faced here?
MR. AROCA [Assistant State Attorney]: Forty-one (41).
THE COURT: Forty-one (41) years in state prison all together. Do you understand, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Are you admitting that you are the same Javis Reddix who was on probation in both of these cases and that you violated your probation by leaving Miami[-]Dade County without first getting the permission of your probation officer back on January 14th of 2008 by going to Broward County?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that by entering into the plea if you are not a U.S. Citizen, it is possible you could get deported?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that by entering into a plea you give up your right to have your lawyer investigate or continue to investigate any physical evidence from these cases that might, through DNA testing demonstrate that you didn’t commit the violation.
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you have any prior convictions for crimes that involve sexual violence or crimes that were sexually motivated, then it’s possible that a plea on these cases could result in your indefinite involuntary civil commitment under the Jimmy Ryce Act?
THE DEFENDANT: Yes, sir.
THE COURT: Very well. The Court does find the defendant is alert and intelligent. He’s made a knowing and voluntary plea, he has been assisted by competent counsel in whom he expressed his satisfaction, and he understands the nature and consequences of his plea.
Accordingly, I accept his admission of one of the violations alleged in each of these cases, that being leaving the county without getting permission. I’m going to revoke his probation in both cases. Sentence will be four (4) years state prison with all credit time served to which he is entitled since his booking date on these affidavits. That’s the time he gets credit for.
MR. AROCA: Your honor, that’s for the record verification, but taking the plea here means credit for time served only since the date he was booked on the violation of probation.
THE COURT: That is what I just said.
MR. AROCA: I’m getting motions from defendants.
THE COURT: So am I. They come in every day. My inbox has a stack of Rule 3 motions, and a lot of them are on this issue but I usually do explain to people and tell them the specific date from which they get CTS and that is the situation here as well.
CORRECTION OFFICER: You said four (4) years, right, judge?
THE COURT: Correct. With all CTS from 2/14/08 ... forward.

(emphasis added).

ANALYSIS

Absent: (1) clear record evidence of an express waiver of entitlement to credit time served by a defendant in his plea colloquy, see, e.g., Troutman v. State, 985 So.2d 1167 (Fla. 3d DCA 2008); Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005); (2) clear record evidence revealing a defendant understood he was waiving the credit time served in question as part of his new sentence, see, e.g., Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008); or (3) clear record evidence revealing that applying the credits to which a defendant now claims entitlement would lead to an absurd result clearly not within the contemplation of the parties at the time of sentencing, see, e.g., Rivera v. State, 954 So.2d 1216 (Fla. 3d DCA 2007); Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004) (Cope, J., concurring), a defendant is entitled to credit for the time he served on the original split sentence. See Isaac v. State, 992 So.2d 304 (Fla. 3d DCA 2008); Brownlee v. State, 899 So.2d 341 (Fla. 3d DCA 2005); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000).

The record in this case clearly shows Reddix was never asked during his plea colloquy whether he consented to waive his credit for the two years he served on the incarcerative portion of his split sentence. The court only announced Reddix’s waiver after it accepted his plea to the violation. In this respect, this case is factually analogous to Ryan v. State, 837 So.2d 1075, 1076 (Fla. 3d DCA 2003), where the court explained it was offering the defendant “two years [of youthful offender incarceration] followed by two years community control!]” but did not engage in any discussion of what credit the defendant was entitled to until after it pronounced sentence.

The only material difference between this case and Ryan is a statement by the State in this case that its offer was “five (5) years state prison with credit time served since the last time he vras booked[,]” and that there was a “different court offer,” which Reddix ultimately accepted. This Court has explained that “[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements.” Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998). A contract-based analysis of this case reveals two separate offers of record, one by the State of five years in prison with credit for time served since “the last time he was booked,” and a second offer by the court of four years in prison that was silent as to what credit Reddix was required to waive until after Reddix accepted it. In order for us to affirm on consideration of this additional evidence, we would have to first infer that the proposed waiver in the State offer was imported into the court offer, and then infer that Reddix understood that to be the case. Such an analysis does not meet the requirement that a “waiver [of credit for time served] must be clearly shown on the record.” Ryan, 837 So.2d at 1076.,

On remand, the trial court should further examine the record to determine whether some other document or evidence of record exists which clearly demonstrates Reddix was aware he would be waiving two years of credit for time served when he accepted the trial court’s offer. See, e.g., Joyner, 988 So.2d at 671-72 (affirming where plea agreement signed by the defendant clearly indicated he was aware he would only be entitled to credit from a specific date); Rivera v. State, 954 So.2d at 1218 (affirming where “[granting] the requested additional credit here would reach an absurd result by undoing the amounts of time the defendant specifically agreed to serve”). If no such waiver can be shown or otherwise deduced, the court should enter an order crediting Reddix with the time served on the incarcerative portion of his original split sentence. See Isaac, 992 So.2d at 304; Cozza, 756 So.2d at 272.

Reversed and remanded for further proceedings.

SUAREZ, J., concurs.

COPE, J.

(dissenting).

Respectfully, I believe the transcript sufficiently supports the waiver of credit for time served prior to the last booking date.

This case came before the court for a probation violation hearing. The court inquired what plea offer had been made by the State. After a delay in the proceedings, the State said:

[ASSISTANT STATE ATTORNEY]: Yes, we were ready this morning. The State’s offer is five (5) years state prison with credit time served since last time he was booked. I know there’s a different court offer.

Over the next several pages it became clear that part of the negotiation involved the length of the sentence, and part of it involved which probation condition the defendant would admit that he violated. The defendant wished to agree to a ground which would not adversely affect him in a pending case against him in Broward County. None of the discussion between the parties and the court involved credit for time served.

At the end of the negotiation, it was agreed that the defendant would admit to committing a technical violation of probation and would receive a four-year sentence (instead of the five years the State had offered).

The judge stated:

Sentence will be four (4) years state prison with all credit for time served to which he is entitled since his booking date on these affidavits. That’s the time that he gets credit for.
[ASSISTANT STATE ATTORNEY]: Your Honor, that’s for the record verification, but taking the plea here means credit for time served only since the date he was booked on the violation of the probation.
THE COURT: That is what I just said.

(Emphasis added). There was no objection by the defendant or his counsel.

This colloquy is clear enough to document a waiver of credit for time served prior to the last booking date. Our court has said that “a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date.” Johnson v. State, 974 So.2d 1152, 1152 (Fla. 3d DCA 2008), review stayed, No. SC08-418 (Fla. March 18, 2008); Joyner v. State, 988 So.2d 670, 672 (Fla. 3d DCA 2008). The transcript sufficiently reflects such a waiver. We should affirm.

      . Defendant's plea colloquy reveals the affidavit of probation violation also listed as a ground that Defendant was arrested on new charges in Broward County. As a result of negotiations between the trial court and counsel for both parties, however, Defendant was not required to plead to this arrest as a factual ground supporting his violation. Thus, we do not consider it here.

      . In Rivera, this Court noted that:
      The defendant’s claim for an additional 732 days of credit for time served would mean that the defendant's incarceration would be limited to eleven months — which is totally inconsistent with the time frames to which the defendant previously agreed. An eleven-month term of incarceration would be less than the eighteen months required for the Modality Program — which was tire purpose of the downward departure — and is less than the two and a half year estimated incarceration to which the defendant agreed.

        Rivera, 954 So.2d at 1218.

      . The cases cited by the dissent, Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008), and Joyner, 988 So.2d at 670, arc inapposite. Both included written waivers of credit for time served.

      . Our case is similarly distinguishable from our recent release, Holmes v. State, 11 So.3d 444 (Fla. 3d DCA 2009) (stating that defendant’s express assent to proceed with plea colloquy after his counsel stated, “he [the defendant] just wants to be clear what he is getting credit for,”) id. at 445 n. 1, "conclusively demonstrates that Holmes waived ... credit for any additional time served.” Id. at 446.

      . If it is not already included, it may be prudent for the criminal division of the circuit court to consider including an insert in any model colloquy form that may exist in that court a prompt or question to assure that a defendant who is accepting a plea offer expressly acknowledges of record that the offer excludes some or all credit for time served before he or she accepts the offer of a plea.


author: PER CURIAM.

text:
    Arnold ANCRUM, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-5485.
    District Court of Appeal of Florida, First District.
    June 9, 2009.
    Rehearing Denied Sept. 1, 2009.
    Arnold Ancrum, pro se, Appellant.
    Bill McCollum, Attorney General, and LaDawna Murphy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

By timely petition for writ of certiorari, Arnold Ancrum seeks review of the denial of his petition for writ of mandamus, in which he sought an order directing that he be transferred to a correctional institution closer to his family. In accordance with Oscar v. Florida Department of Corrections, 973 So.2d 596 (Fla. 1st DCA 2008), we treat this proceeding as an appeal of a final order. On the merits, the circuit court correctly determined that Ancrum does not have a clear legal right to a transfer to any particular correctional institution, and that mandamus will therefore not lie to compel that result.

AFFIRMED.

WOLF, WEBSTER, and CLARK, JJ., concur.


author: ROTHENBERG, J.

text:
    Jose VIGO, Appellant, v. Maria Do Graca VIGO, Appellee.
    Nos. 3D08-1303, 3D08-1627.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Rehearing Denied Aug. 20, 2009.

      Perezr-Abreu & Martin-Lavielle, and Javier Perez-Abreu and Andy W. Acosta, for appellant.
    Paul Morris; Laline Concepcion-Veloso, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Jose Vigo (“Husband”) appeals from the amended final judgment dissolving his marriage to Maria Do Graca Vigo (‘Wife”), and from the amended order granting the Wife’s motion for relief from admissions. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Facts

Prior to the marriage, the Husband was diagnosed with a benign brain tumor, and began receiving disability benefits. In 1995, he underwent surgery for the tumor, and thereafter, he filed a medical malpractice action against the hospital. When the parties met in December 1997, the Husband was residing in New York, and the Wife was residing in Florida. Approximately one month later, the Wife moved to New York and began to reside with the Husband, and in December 1998, the parties married in Florida, and returned to New York. In July 2002, the Husband’s medical malpractice action settled, and he received an initial payment of $3 million, and began receiving monthly payments of $32,000, which will terminate in 2012. The settlement payments and disability benefits were deposited into accounts titled solely in the Husband’s name, and have not been commingled with any marital funds.

In February 2003, the Husband purchased a condominium in Miami Beach with monies from one of his separate accounts, and shortly thereafter, the parties moved to Miami Beach, and the condominium became the parties’ principal residence. The Husband paid all expenses related to the condominium with funds from his separate accounts.

On July 12, 2006, the Husband filed a petition for dissolution of marriage. Thereafter, the Wife answered the Husband’s petition and filed a counter-petition and amended counter-petition for dissolution of marriage, seeking, in part, a distribution of all marital assets and an award of alimony.

At the final hearing, the Wife argued, in part, that she was entitled to an award of alimony, and that the condominium was a marital asset, subject to equitable distribution, because the Husband intended to gift a one-half interest in the condominium to her. The trial court heard testimony from several witness, including the parties, a vocational evaluation specialist hired by the Husband, a rehabilitation consultant hired by the Wife, and one of the Wife’s physicians. Numerous exhibits, including reports from the Wife’s physicians, the parties’ financial affidavits, documentation as to the Husband’s finances, and the reports issued by the vocational evaluation specialist and rehabilitation consultant, were admitted into evidence.

In April 2008, the trial court entered its amended final judgment of dissolution of marriage, finding, in part, that the settlement award was a nonmarital asset, and therefore, not subject to equitable distribution. As to the condominium, the trial court found that the Wife carried her burden of establishing that the Husband intended to gift a one-half interest in the condominium to the Wife, and therefore, the condominium was a marital asset subject to equitable distribution. The trial court awarded the condominium and its contents to the Husband, and awarded the Wife $250,000 in lump sum alimony, which represents one-half of the equity in the condominium. Finally, as to alimony, the trial court, after weighing the statutory factors set forth in section 61.08(2), Florida Statutes (2008), awarded permanent periodic alimony to the Wife in the amount of $5,500 per month.

II. Issues on Appeal

The Husband has raised two issues on appeal meriting discussion. First, whether the trial court abused its discretion by finding that the Husband intended to gift a one-half interest in the condominium to the Wife, and awarding $250,000 in lump sum alimony to the Wife, in order to achieve equitable distribution of the marital asset. Second, whether the trial court abused its discretion by awarding permanent periodic alimony to the Wife, and if the trial court did not abuse its discretion, was the amount awarded an abuse of discretion.

HI. Analysis

A. Whether the Trial Court Abused its Discretion by Finding that the Husband Intended, to Gift an Interest in the Condominium to the Wife, and by Awarding Lump Sum Alimony to the Wife to Achieve Equitable Distribution

The Husband contends that the trial court abused its discretion by finding that the Wife met her burden of establishing that the Husband intended to gift a one-half interest in the condominium to the Wife. Based on our review of the record, we cannot conclude that the trial court abused its discretion.

In the instant case, it is undisputed that the condominium was purchased during the marriage with the Husband’s nonmari-tal funds and that the condominium was titled solely in the Husband’s name. The monthly expenses related to the condominium, including the mortgage payments, condominium association fees, and insurance payments, were also paid with the Husband’s nonmarital funds. Therefore, at trial, the Wife was required to establish that the Husband intended to gift to her a one-half interest in the condominium, by demonstrating “(1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift.” Mills v. Mills, 845 So.2d 230, 233 (Fla. 3d DCA 2003); see also § 61.075(6)(a)(l)(c), Fla. Stat. (2008) (providing that marital asset includes “[ijnter-spousal gifts during the marriage”).

The evidence at trial was that the Husband agreed to purchase the condominium and move to Miami Beach because the Wife wanted to relocate to Miami to be close to her grandchild; the Wife attended the closing and signed the mortgage on the property; the Husband informed the Wife that he purchased the condominium for both of them; the Husband and Wife are named on the homeowner’s insurance policy; the parties’ names appear on sales receipts for the purchase of approximately $25,000 in furniture and accessories used to furnish the condominium; and the condominium became the parties’ marital residence, which the Wife assisted in maintaining for the parties. Based on the evidence presented at trial and after judging the credibility of the witnesses, the trial court found that the Husband intended to deliver to the Wife a one-half interest in the condominium; the Husband intended to divest himself of all dominion and control over a one-half interest in the condominium; and that the Wife accepted a one-half interest in the condominium. As the trial court’s findings are supported by the record and we cannot find that the trial court abused its discretion, we affirm the trial court’s finding that the Husband intended to gift a one-half interest in the condominium to the Wife. Moreover, we affirm the award of $250,000 in lump sum alimony to the Wife, as the award was made to achieve equitable distribution of the marital assets, and the evidence presented at trial demonstrates that the Husband has the ability to pay the lump sum alimony. See Glazner v. Glazner, 693 So.2d 650, 652 (Fla. 5th DCA 1997) (“[T]o ensure equitable distribution of assets, lump sum alimony is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment “without substantially endangering his or her economic status.’ ”) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980)); see also Miulli v. Miulli, 832 So.2d 963, 964 (Fla. 2d DCA 2002) (holding that lump sum alimony may be awarded “for the purpose of achieving equitable distribution”).

B. Whether the Trial Court Abused its Discretion by Awarding Permanent Periodic Alimony to the Wife and Whether the Amount Awarded was an Abuse of Discretion

The Husband contends that based on the statutory factors set forth in section 61.08(2), Florida Statutes (2008), the trial court abused its discretion by awarding permanent periodic alimony to the Wife. We agree.

“Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established during the marriage of the parties.” Rosecan v. Springer, 845 So.2d 927, 928 (Fla. 4th DCA 2003) (quoting Zeigler v. Zeigler, 635 So.2d 50, 53 (Fla. 1st DCA 1994)). At trial, the undisputed evidence demonstrated that the parties’ marriage lasted approximately 7.5 years and produced no children, and at the time of the final hearing on the petition for dissolution of marriage, the Wife was fifty-four years old and the Husband, who was permanently disabled, was sixty-two years old. During the first 3.5 years of the parties’ 7.5 year marriage, both parties supported the marital household — the Wife by working as a housekeeper earning approximately $400 per week and the Husband by contributing his disability benefits. After the Husband received the medical malpractice settlement in 2002, the Wife did not work for approximately two years, and in 2004, she opened and operated a used car business that she closed in 2005. For the remainder of the 7.5 year marriage, the Husband supported the Wife. While in New York, the parties lived in a humble apartment and maintained a modest lifestyle.

Approximately seven months after receiving the settlement, the Husband purchased the condominium in Miami Beach to appease the Wife’s desire to live close to her grandchild. Although the condominium was relatively expensive (valued at approximately $715,000 at the time of the final hearing), it was undisputed that the parties continued to maintain their modest lifestyle while living in Florida.

At the final hearing, the Wife presented evidence as to her physical health. The trial court found that the Wife has “serious chronic health problems,” including knee problems, which will likely require a bilateral knee replacement; thyroid disease; calcaneal spur and Achilles tendinitis on her left foot; anxiety; and high blood pressure. The trial court found that the Wife’s “serious chronic health problems” will “sharply limit her earning ability,” and that the Wife “has no real transferable work skills.” Based on the Wife’s needs and the Husband’s ability to pay, the trial court awarded the Wife $5,500 per month in periodic permanent alimony.

In this appeal, the Husband disputes the trial court’s findings that the Wife has “serious chronic health problems,” observing that the Wife did not seek medical care for the majority of her complained-of maladies until after the Husband petitioned for divorce in July 2006. We agree with the Husband’s characterization of the timing of the Wife’s medical attention, but nonetheless agree that the evidence reflects that the Wife does have health problems. Significantly, however, the Wife’s physician testified that, even taking into account the Wife’s physical condition, the Wife is still capable of working in a sedentary occupation.

Although the trial court focused on the Husband’s financial resources, the trial court ignored the Wife’s ability to secure employment and earn a living. The trial court heard testimony from the vocational evaluation specialist hired by the Husband and the rehabilitation consultant hired by the Wife. Both experts opined that the Wife is employable in jobs rated as having sedentary physical demands, and that the Wife, even taking into consideration her health and limited skills, is capable of earning approximately $19,000 per year without training. Moreover, the Wife’s expert testified that the Wife is capable of earning approximately $28,000 per year with training, which would include the Wife taking one year of English courses and acquiring either an Associate’s Degree or a Certificate of Competency. The Wile’s expert also testified that the Wife’s work life expectancy would be extended by four years if she is retrained. Furthermore, the record demonstrates that the Wife is capable of being retrained. For example, the Wife took numerous English courses, passed the GED test in English, and passed the United States Naturalization test in English. In addition to working as a housekeeper and owning and operating a used car business, the Wife has worked as a nurse assistant, a seamstress, an independent sales consultant for a cosmetics company, and a masseuse. While we recognize that many of these occupations may not be feasible due to her medical issues, her employment history indicates that she is capable of being retrained.

In challenging the award of permanent periodic -alimony and the amount awarded, the Husband also argues that the final financial affidavit submitted by the Wife, which is titled “Second Amendment to Wife’s Preliminary Family Law Financial Affidavit,” inaccurately reflects her monthly expenses. We agree.

A review of the Wife’s financial affidavit reflects a monthly housing expense of $3,569.06, which includes the mortgage, homeowner’s insurance, special assessment, maintenance, and master assessment on the condominium. As the Husband correctly points out, this figure does not accurately reflect the Wife’s monthly housing expenses because the Husband paid all expenses related to the condominium while the divorce proceeding was pending, and does not accurately reflect her future housing expenses as the condominium was ultimately awarded to the Husband. Furthermore, the record does not reflect that the Wife made any attempt to estimate her monthly housing expenses if required to live anywhere but the condominium. Finally, without conducting a detailed analysis of the Wife’s claimed monthly expenses, clearly, the financial affidavit contains exaggerations and does not accurately reflect the Wife’s monthly expenses. For example, at the final hearing, the Wife acknowledged that the monthly food expense on her financial affidavit was based on their joint food expenses during the marriage.

Finally, we note that the record on appeal indicates that, although the Wife does have medical problems, the Wife continues to maintain a relatively active life. For example, the Wife, who was awarded the parties’ vehicle, still drives; attends church about three times a week, three hours per visit; takes her dog to the park for two hours each day; goes to the beauty salon (spending $310 per month); and shops.

Based on the evidence presented, we conclude that the trial court abused its discretion by awarding permanent periodic alimony to the Wife where this was a short-term marriage, see Green v. Green, 672 So.2d 49, 51 (Fla. 4th DCA 1996) (holding that, as to short-term marriages, “permanent alimony is inappropriate unless a genuine inequity is created by the dissolution”); the Wife was awarded $250,000 in lump sum alimony; no children were born of the marriage; the parties maintained a simple and modest lifestyle; the Wife, even taking into consideration her health and limited skills, is immediately employable or can be retrained over a three to four year period; and the Wife continues to maintain a relatively active life. Accordingly, we reverse the award of permanent periodic alimony, and remand for the trial court to consider an award of rehabilitative alimony.

IV. Conclusion

Based on the record before this Court, we conclude that (1) the trial court did not abuse its discretion by finding that the Husband intended to gift a one-half interest in the condominium to the Wife, and by awarding $250,000 in lump sum alimony to the Wife to achieve the equitable distribution of the marital assets, and therefore, affirm that portion of the amended final judgment; (2) the trial court abused its discretion by awarding permanent periodic alimony to the Wife, and therefore, reverse that portion of the amended final judgment, and remand to the trial court to consider rehabilitative alimony; and (3) the trial court did not err in entering the amended order granting the wife’s motion for relief from admissions.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The Husband raised an issue as to this order, but we conclude that the issue lacks merit.

      . Section 61.08(2) provides as follows:
      (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
      (a) The standard of living established during the marriage.
      (b) The duration of the marriage.
      (c) The age and the physical and emotional condition of each party.
      (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
      (e)When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
      (0 The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
      (g) All sources of income available to either party.
      The court may consider any other factor necessary to do equity and justice between the parties.

      . As we have reversed the award of permanent periodic alimony, we do not address whether the amount awarded was an abuse of discretion.


author: SALTER, J. SHEPHERD, J.,

text:
    Cesar RIVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-340.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Rehearing Denied July 13, 2009.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   SALTER, J.

Cesar Rivero appeals a circuit court order denying his motion for relief under Florida Rule of Criminal Procedure 3.850 without an evidentiary hearing. We affirm.

Rivero claimed in a motion filed in August 2007 that “newly discovered evidence” regarding plea negotiations in 1999 warranted an evidentiary hearing. The procedural history of his trial and conviction, together with the equivocal nature of the comments alleged to constitute the “newly discovered evidence,” demonstrate that no new evidentiary hearing was required.

In 1999, Rivero was convicted of second-degree murder with a firearm and was sentenced to 34 years in state prison. This Court affirmed the conviction and sentence the following year. Rivero v. State, 763 So.2d 336 (Fla. 3d DCA 2000). In 2002, Rivero filed a motion under Rule 3.850 claiming ineffective assistance of his trial counsel. During an evidentiary hearing on that motion in 2005, Rivero’s trial counsel said:

But again, your plea was, at the time I think was very high. I even thought it was high, and I tried to get it lower. You wouldn’t go lower. I think we even approached Judge Rothenberg at the last minute, but she wasn’t very receptive to offering something, and Mr. Rivero was not interested in taking a plea. I mean, obviously if it was probation or five years, maybe he would have taken it, but if I go off memory, I think your plea offer was maybe you went down to 18 years. Pm not sure, but it was around 20 years, around there (emphasis supplied).

Following the evidentiary hearing, the trial court denied the motion. Rivero appealed, and we affirmed. Rivero v. State, 939 So.2d 109 (Fla. 3d DCA 2006).

In 2007, Rivero filed another motion under Rule 3.850, this time alleging that his trial counsel’s 2005 testimony was newly-discovered evidence of ineffective assistance of counsel during the 1999 plea negotiations. The motion included affidavits from Rivero, his mother, and his sisters, all of which stated that they were advised of pretrial plea offers carrying a sentence of more than 20 years, particularly in a range from 24 to 32 years, and that they were never advised of an offer carrying an 18 to 20 year sentence. No affidavit from Rivero’s trial counsel was attached to confirm with any degree of certainty that a plea offer of 18, 20, or any other number of years less than 24, was ever made by the State.

The circuit court denied the 2007 motion because there was no allegation or proof that the “newly discovered evidence” was unknown to the court, parties, or counsel at the time of trial and could not have been discovered with due diligence within the two year period allowed by Rule 3.850. Morgan v. State, 912 So.2d 642 (Fla. 5th DCA 2005) (citing State v. Gunsby, 670 So.2d 920 (Fla.1996)). We agree.

Affirmed.

CORTINAS, J., concurs.

SHEPHERD, J.,

dissenting.

For the reasons set forth below, I would reverse the summary denial of Rivero’s Florida Rule of Criminal Procedure 3.850 motion for further proceedings.

In 1999, Rivero was convicted of second-degree murder with a firearm and was sentenced to thirty-four years in state prison. On June 28, 2000, we affirmed Rivero’s conviction and sentence. Rivero v. State, 763 So.2d 336 (Fla. 3d DCA 2000). Our mandate issued on July 18, 2000. In October 2002, Rivero filed a Rule 3.850 motion, alleging his trial counsel was ineffective by failing to adequately develop his defenses and failing to present a self-defense theory at trial. On September 15, 2005, the trial court held an evidentiary hearing on the motion. While testifying at the hearing, Joel Defabio, Rivero’s trial counsel, remarked, “[I]f I go off memory, I think your plea offer was maybe you went down to 18 years. I’m not sure, but it was around 20 years, around there.” (emphasis added). The trial court denied the pending motion, and we affirmed. See Rivero v. State, 939 So.2d 109 (Fla. 3d DCA 2006).

A year later, on August 31, 2007, Rivero filed another Rule 3.850 motion, this time alleging newly discovered evidence on the ground that Defabio never conveyed a plea offer to him in the range stated at the September 15, 2005 evidentiary hearing, and that he first became aware of this fact on that date. He further alleged that if his attorney had communicated the offer to him before trial, he would have accepted it. Four affidavits were attached to Rivero’s motion — his own, his mother’s, and his two sisters’ — all of which stated they were advised of plea offers carrying a sentence of more than twenty years, particularly in the range from twenty-four to thirty-two years, but were never advised of an offer carrying an eighteen to twenty-year sentence.

The trial court denied Rivero’s Rule 3.850 motion without evidentiary hearing. In its written order, the trial court noted “there is no newly discovered evidence.” In support of its finding, the court placed its sole reliance upon Morgan v. State, 912 So.2d 642 (Fla. 5th DCA 2005). The majority does the same here. However, as the State concedes, Morgan does not support affirmance in this case.

In Morgan, Morgan claimed the court should have considered his claim of “ ‘newly discovered evidence,’ based upon his allegation that the [Sjtate presented him with a plea offer of 17 to 22 years, but his trial counsel failed to communicate the offer to him and had he done so, Morgan would have accepted it.” Id. at 643. The Fifth District Court of Appeal expressed no concern over the “degree of certainty” of the offer. See supra p. 627. Instead, the court focused on the second prong of the “newly discovered evidence” exception to the two-year limit for filing a motion to vacate a judgment under Florida Rule of Criminal Procedure 3.850(b), whether the evidence “could ... have been ascertained with the exercise of due diligence.” Morgan, 912 So.2d at 643. Noting that “Morgan’s motion was filed fourteen years ... after the issuance of the mandate” in the case, and that “Morgan offer[ed] no allegation about how he obtained the information about a plea offer[or] why he could not have obtained it earlier,” the court affirmed the trial court’s denial of relief. See id. at 643. In our case, of course, Rivero acted well within two years after he knew of the alleged failure of his counsel and fully explained why he could not have ascertained the alleged failure at an earlier time. Morgan is not apposite.

As an alternative ground for affir-mance, the State argued below that the statement by Defabio, and those contained in the affidavits, do not demonstrate the State made a firm offer that was not communicated. Although not relying on this argument for affirmance, the majority expresses a similar discomfort. The range expressed by counsel for Rivero was less than half of that alleged by Morgan in Morgan, the case relied upon by the majority. While it is true Rivero did not obtain an affidavit from his former trial counsel, there is nothing to be made of that at this point — absent perhaps engaging in impermissible evidence weighing or a credibility ascription. Unlike in Morgan, here, the defendant states he was unaware of the eighteen to twenty-year plea offer at the time of trial and only became aware of it September 15, 2005. Neither the trial court order nor the attachments refute his claim.

On appeal from a summary denial, this Court must reverse unless the record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A). I would reverse and remand for an evidentiary hearing to resolve whether a firm offer was made, and, if so, the credibility of Rivero’s contention that he was unaware of the offer until September 15, 2005. ' I would further order the trial court to attach record excerpts conclusively showing Rivero is entitled to no relief if it were to again summarily deny the postconviction motion. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006).

      . The 2005 testimony “going off memory” and "around 20 years, around there” was actually unrelated to the subject matter of the first Rule 3.850 motion (decisions by counsel during the trial six years earlier). Rivero’s trial counsel did not provide an affidavit to reflect any review of his file or notes, or to add specificity to his unrefreshed 2005 recollection about the plea negotiations.

      . In this case, Rivero and his second set of attorneys (who filed the first motion under Rule 3.850 in 2002) also did not explain how the alleged miscommunication of a more favorable plea offer was missed in their interviews with trial counsel as they drafted the 2002 motion and prepared for the evidentiary hearing on the motion.

      . In so doing, the trial court apparently did not consider that the motion was, in any event, untimely.

      . Rivero meets the requirement that motions based upon newly discovered evidence be made within two years of the time the facts become known or the defendant discovers such facts, since his motion was filed on August 31, 2007, within two years of the September 15, 2005 evidentiary hearing. See Slaton v. State, 985 So.2d 1151 (Fla. 3d DCA 2008).

      .Florida Rule of Criminal Procedure 3.850(b) reads as follows:
      (b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case ... unless it alleges that
      (1) the facts on which the claim is predicated were unknown to the movant or the mov-ant's attorney and could not have been ascertained by the exercise of due diligence.... (emphasis added). Of course, counsel's knowledge of a plea offer cannot be used to defeat a defendant's claim that he was unaware of a plea offer when the basis for the motion is that counsel was ineffective for failing to timely disclose the offer. See Osborne v. State, 958 So.2d 1017, 1019 (Fla. 5th DCA 2007); Heard v. State, 824 So.2d 965, 965 (Fla. 4th DCA 2002).

      . Rivero did aver that immediately upon hearing the testimony of Defabio at the 2005 post-conviction hearing, he told his counsel for that hearing — who was different than his initial defense counsel — that the offer had never been presented to him, but counsel advised him that "[it] was not the proper time to address the matter."

      . It is perhaps noteworthy that Morgan likewise did not include an affidavit from his former defense counsel in his filing, a fact of no moment to the Morgan court. Ordinarily, defense counsel are called to testify at the evidentiary hearing to either support or refute the defendant's claim. Defense counsel are under no legal obligation to provide affidavits in support of a former client's pro se postcon-viction motion.