author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    T.L.S. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111073 and 2111074.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      Charlie Andrew Bottoms, Jr., Florence, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

T.L.S. (“the mother”) appeals from separate judgments of the Lauderdale Juvenile Court (“the juvenile court”) that terminated her parental rights to M.S. and K.S. (hereinafter referred to collectively as “the children”).

Procedural Background

In May 2009, after a teacher reported to the Lauderdale County Department of Human Resources (“DHR”) that K.S. had visible marks about his head and neck, DHR began investigating the mother for physical abuse. DHR instituted a safety plan at that time pursuant to which the mother’s mother assumed physical custody of the children and DHR began providing parenting services to the mother leading toward her reunification with the children. On August 28, 2009, DHR completed its investigation and “indicated” the mother for physically abusing K.S. On September 14, 2009, D.S. (“the father”) received custody of the children.

While in the custody of the father, M.S. revealed that she had been sexually molested by P.W., her stepfather. Ke.S., the children’s older sister, also disclosed that she had been sexually abused by P.W. K.S. indicated that he had witnessed the sexual abuse of his oldest sister and that D.M., another adult male relative, had sexually abused him. DHR investigated those allegations and filed “indicated” reports against P.W. and D.M. in 2010.

On June 24, 2010, the mother was convicted of violating § 26-15-3, Ala.Code 1975. She received a 36-month prison sentence, which was suspended, and she was placed on probation. Two months later, the father informed DHR that he could no longer provide care for the children because of their emotional and behavioral problems, which, he said, endangered his other two children. At that point, DHR placed the children in separate therapeutic foster-care homes. DHR continued providing services to the mother, but DHR eventually determined that, because the mother had been convicted of child abuse and had not demonstrated an ability to meet the special needs of the children, it would discontinue family-reunification efforts and pursue termination of the mother’s parental rights.

DHR filed petitions to terminate the mother’s parental rights to the children on December 9, 2011. Following a trial on June 8, 2012, the juvenile court entered separate judgments terminating the mother’s parental rights to M.S. and K.S., respectively, on June 19, 2012. The mother appealed to this court on June 29, 2012.

Analysis

The mother first argues that the juvenile court failed to use reasonable efforts to rehabilitate her and to reunite her with the children. DHR counters that, because the mother was convicted of child abuse, the juvenile court had no duty to use reasonable efforts to rehabilitate the mother and to reunite the family.

When a child is removed from the home of the custodial parent and placed in foster care, a juvenile court must make specific findings within 60 days of the removal regarding “whether reasonable efforts have been made to prevent removal of the child or whether reasonable efforts were not required to be made.” § 12-15-312(a)(2), Ala.Code 1975 (emphasis added). Within 12 months of foster-care placement, the juvenile court must document whether reasonable efforts have been made to finalize the existing permanency plan. § 12-15-312(a)(3), Ala.Code 1975. “Reasonable efforts” refers to, among other things, “efforts ... to make it possible for a child to return safely to the home of the child.” § 12-15-312(b), Ala.Code 1975. Reasonable efforts are not required if a parent has subjected a child or a sibling of the child to “aggravating cireumstance[s],” such as torture, and the risk of further abuse or neglect is too high to permit the child to be returned home. § 12-15-312(c)(1), Ala.Code 1975.

In this case, the children were removed from the home of the mother in May, 2009 but they were not placed into foster care until August 2010. Based on the statutory deadlines, the juvenile court had until October 2010 to determine whether reasonable efforts to rehabilitate the mother and to reunite the family were required. If the permanency plan called for family reunification, the juvenile court had until August 2011 to specify whether reasonable efforts had been made to achieve that goal. Thus, any issues as to whether reasonable efforts were required and, if required, whether reasonable efforts to reunite the family had been made, should have already been decided before DHR filed its petitions to terminate the mother’s parental rights. If that had occurred, the doctrines of collateral estoppel or res judicata would have barred the relitigation of those issues. See F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d -(Ala.Civ.App.2012).

The record does not contain any of the orders of the juvenile court entered before December 9, 2011. In its petitions to terminate the mother’s parental rights, DHR averred that it had used reasonable efforts to reunite the family; DHR did not allege that it had been excused from those efforts. During the trial, when the mother introduced evidence tending to question the reasonableness of the efforts to reunite the family, DHR did not object that the issue had already been determined. DHR also did not move the juvenile court to take judicial notice of any of its previous orders. In its final judgments, the juvenile court found that DHR had used “fair and reasonable efforts toward reunification of the minor children] with [their] parents ... and that such efforts had not been successful.” The record indicates that the parties and the juvenile court treated the issues surrounding reasonable efforts as if they had not been previously judicially determined. Because the parties litigated those issues and the juvenile court adjudicated those issues, we find that those issues can be considered in this appeal. See Gatlin v. Joiner, 31 So.3d 126 (Ala.Civ.App.2009).

As noted, DHR did not assert at any point during the trial that it did not have to use reasonable efforts to reunite the family. DHR raises that point for the first time in its brief to this court. An appellate court cannot consider an argument raised for the first time on appeal to reverse a judgment, but it can consider a new argument for affirming the judgment. See Verchot v. General Motors Corp., 812 So.2d 296, 305 (Ala.2001) (quoting Progressive Specialty Ins. Co. v. Hammonds, 551 So.2d 333, 337 (Ala.1989)) (“ ‘We can affirm a judgment on a basis not asserted to the trial court, and we can affirm a judgment if we disagree with the reasoning of the trial court in entering the judgment, as long as the judgment itself is proper.’ ”). That is so because a judgment can be affirmed on any valid legal ground, even one not considered by the trial court. See Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000). Hence, we must consider whether the circumstances dictate that no reasonable efforts were required to be made by DHR pursuant to § 12 — 15—312(c).

At trial, DHR introduced evidence indicating that the mother had been convicted by the Lauderdale Circuit Court of violating § 26-15-3. That conviction served as prima facie evidence that the mother had “torture[d], willfully abuse[d], cruelly beat, or otherwise willfully maltreat[ed]” a child. § 26-15-3; see generally Durham v. Farabee, 481 So.2d 885, 886 (Ala.1985) (“Generally, a person’s convic tion in a criminal case is admissible against him in a civil action to show that he did the act for which he was convicted.”). The parties did not delve into the circumstances giving rise to the mother’s arrest and conviction. The scant evidence in the record indicates that the mother became irate while disciplining K.S. and, as the mother stated, things “got out of control.” Some evidence indicates that the mother whipped K.S. about the head and neck with a leather strap or belt excessively, causing visible welts and scars. Other evidence suggests that the mother also choked K.S. “Torture” is defined as, among other things, “[t]he infliction of intense pain to the body or mind to punish....” Black’s Law Dictionary 1627 (9th ed.2009). We conclude that the record shows, without contradiction, that the mother did not merely use ordinary corporal punishment against K.S. but that she did, in fact, willfully torture K.S.

Under § 12-15-312(c), reasonable efforts are not required when a parent has tortured the child at issue or a sibling of the child at issue and the court also determines that the risk of further abuse or neglect is too high for the child to be returned home safely. See also New Jersey Div. of Youth & Family Servs. v. A.R.G., 361 N.J.Super. 46, 77, 824 A.2d 213, 233 (App.Div.2003) (“We conclude that the term ‘aggravated circumstances’ embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child, and would place the child in a position of an unreasonable risk to be reabused.”). Much of the trial centered on that particular point. DHR introduced evidence tending to prove that the mother lacked sufficient insight, judgment, and control to properly care for the children. The mother introduced conflicting evidence tending to prove that she had overcome her anger-management problem to the point that she could safely parent the children. The juvenile court did not specifically resolve that conflict, but the tenor and effect of its judgments suggests that the juvenile court was clearly convinced that the mother could not safely parent the children and that a return to her home would place the children at an undue risk of abuse or neglect. See A.E.T. v. Limestone Cnty. Dep’t of Human Res., 49 So.3d 1212, 1216 (Ala.Civ.App.2010) (“[W]hen the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence.”). Based on that factual determination, and the undisputed evidence indicating that the mother had tortured K.S., we conclude, as a matter of law, that the juvenile court and DHR did not have a duty to use reasonable efforts to rehabilitate the mother and to reunite the family. Hence, we find no merit in the mother’s argument that the juvenile court and DHR failed to use reasonable efforts to reunite her with the children or that the juvenile court and DHR had prematurely ended those efforts.

The mother next argues that the juvenile court erred in changing the permanency plan from family reunification to termination of parental rights in June or July 2011 after the children had been in foster care for less than a year. The decision to modify a permanency plan for children in foster care should be made at a permanency hearing, pursuant to § 12-15-315, Ala.Code 1975. A parent aggrieved by the decision to change the permanency plan from family reunification to adoption by an unidentified resource with a termination of parental rights can appeal that judgment to this court. See F.V.O., supra. The record does not reveal whether the juvenile court followed the correct procedure in changing the permanency plan, so we do not know whether the mother had an opportunity to contest the change and to appeal the judgment making the change. However, we do know that, during the trial on the petitions to terminate the parental rights of the mother, the parties only tangentially referenced the change in the permanency plan in regard to DHR’s decision to terminate reunification efforts with the mother; the parties did not independently litigate the propriety of that change. See McCollum v. Reeves, 521 So.2d 13, 17 (Ala.1987) (holding that when evidence relates to an issue expressly contested by the parties, the same evidence does not support a theory that separate issue not raised in the pleadings had been tried by consent). Because the correctness of the change in the permanency plan was not an issue before the juvenile court in the termination-of-parental-rights trial, we decline to address that issue in this appeal.

The mother next argues that the record does not contain clear and convincing evidence of her current unfitness to parent the children, particularly in regard to K.S. We disagree. The evidence in the record shows that the mother tortured K.S. and that the mother downplayed the severity of her physical abuse. She noted that her parents had routinely beaten her with any nearby objects, and she considered it normal to do likewise to the children. After receiving education on appropriate discipline, the mother continued to defend her punishment of K.S. and attributed the marks on his head and neck solely to the fact that he was fair-skinned. Angel Geiske, who performed a parenting assessment of the mother in May 2011, testified that the mother has “a great deal of societal ideations,” meaning that the mother perceives abusive behavior to be acceptable and that the mother could not overcome those beliefs despite her best attempts. Geiske also testified that when a parent willfully abuses a child it is unlikely that the parent will ever properly parent the child.

Because of their abuse, both children suffer from emotional and behavioral problems. Due to the mother’s cognitive limitations, which were proven by intelligence testing, Geiske testified that the mother would not be a viable resource for ordinary children, much less children with specialized needs. Kimanthi Stewart, an employee of the Children’s Aid Society, also testified that, after working with the mother for three or four months in 2009, she did not foresee family reunification as an achievable goal due, in part, to the mother’s mental-health issues. Those mental-health issues remained unresolved at the time of trial.

Based on the above evidence alone, without considering any responsibility the mother may have had for allowing P.W. to return to the family home after receiving reports that he was sexually abusing her daughters, the juvenile court reasonably could have been clearly convinced that the mother lacked the appropriate protective capacities to properly parent the children. A juvenile court can terminate parental rights if clear and convincing evidence proves that the parent is “unable or unwilling to discharge their responsibilities to and for the child,” § 12-15-319, Ala.Code 1975, including the responsibility for protecting the child from physical or emotional harm. See B.B.T. v. Houston Cnty. Dep’t of Human Res., 89 So.3d 169 (Ala.Civ.App.2011). We find that the juvenile court did not err in finding that the mother lacked the ability to properly parent the children.

The mother next contends that the juvenile court prematurely terminated her parental rights. The mother points out that, at the time of the trial, she had moved into her own apartment, had obtained steady employment, had completed a parenting class, had attended mental-health counseling, and had paid child support. Jessica Riddle, an employee of Youth Villages, testified that, from May to September 2011, the mother had worked harder than any parent she had ever counseled and that the mother had improved her circumstances. Riddle testified that she had terminated her efforts to rehabilitate the mother only upon a change in the permanency plan and that, if she had been given an additional five years, she felt like the mother could have been reunited with the children.

Section 12-15-319 authorizes a juvenile court to terminate a parent’s parental rights if “the conduct or condition of the parent[ ] renders them unable to properly care for the child and ... the conduct or condition is unlikely to change in the foreseeable future.” Conceding, for the purposes of the present argument, that the mother could be completely rehabilitated in five years, that change would not occur “in the foreseeable future.” Concerned parents should rehabilitate as quickly as possible in order to resume custody of their children. The legislature has established that a 12-month period from the time a child enters foster care is “a presumptively reasonable time for a parent to rehabilitate.” M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008) (discussing former § 12-15-62(c), Ala.Code 1975, now codified at § 12-15-315(a), Ala.Code 1975). In this case, the mother is asking for a total of almost 75 months to rehabilitate. The juvenile court did not err by terminating the mother’s parental rights despite the possibility that the mother might sufficiently rehabilitate at the end of such a long period. See T.B. v. Cullman Cnty. Dep’t of Human Res., 6 So.3d 1195 (Ala.Civ.App.2008) (affirming judgment terminating parental rights when evidence indicated that it would take as long as three years to rehabilitate parent); cf. S.U. v. Madison Cnty. Dep’t of Human Res., 91 So.3d 716 (Ala.Civ.App.2012) (reversing judgment terminating parental rights when mother would be released from prison within three weeks and could assume care of children so that reunification was reasonably foreseeable at time judgment was entered).

Citing C.M. v. Tuscaloosa County Department of Human Resources, 81 So.3d 391 (Ala.Civ.App.2011), the mother next maintains that the juvenile court erred in terminating her parental rights because the children have no convincing prospects for adoption. In CM., the children suffered from emotional disorders. Because of her own mental disability, the mother in that case could not properly meet the special needs of the children. Nevertheless, the undisputed evidence showed that the children had a significant emotional bond with the mother and that, if they were unable to maintain visitation with her, the children would likely suffer adverse psychological impacts. This court held that, in those circumstances, the law requires juvenile courts

“ ‘to weigh the advantage of [some alternative-placement resource that would allow the child to visit periodically with the unfit parent] against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.’ ”

81 So.3d at 397 (quoting D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion)). Due to the special needs of the children in C.M., it was uncertain whether those children would be adopted. Given the clear evidence that the children would be harmed if they were not allowed to maintain their relationship with the mother, and the lack of evidence regarding their adoption prospects, this court held that the juvenile court had erred in terminating the mother’s parental rights.

In this case, the children suffer from severe emotional and behavioral problems stemming from their abuse. Both children reside in special therapeutic foster homes. Their foster parents have indicated to DHR that they are amenable to providing long-term care for the children, although neither has committed to adoption. In those respects, the children very much resemble the children in CM. because their prospects for adoption are uncertain. However, the lack of an identified adoptive resource does not'neeessarily preclude termination of parental rights. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). In C.M., this court held only that, in such circumstances, parental rights should not be terminated when preservation of a significant emotional bond with an unfit parent would better serve the interests of the children.

The mother in this case presented some evidence indicating that she shared a strong emotional bond with the children, but other evidence disputed that connection. Specifically, John Ruffin, M.S.’s current therapist, testified that although M.S. cared for and loved the mother, M.S. had rarely even talked about the mother and had not informed him that she wanted to return to the custody of the mother. At times, M.S. had informed other counselors that she did not want to live with the mother and that she was angry and confused by her mother’s refusal to believe that she was being sexually abused. During counseling in 2010, K.S. stated that he did not want to live with the mother and that he feared the mother. The record contains almost no evidence regarding KS.’s current feelings toward the mother. No evidence suggested that the children necessarily would be damaged by ending their relationship with the mother. Furthermore, some evidence indicates that the children would regress behaviorally after visiting the mother. Based on that evidence, the juvenile court reasonably could have been clearly convinced that it would not serve the best interests of the children to forgo termination of the mother’s parental rights even in the absence of an identified adoptive resource. Thus, we find C.M. to be distinguishable from this case and conclude that this case falls more clearly within the line of cases holding that, generally speaking, maintaining a child in indefinite foster care is not a viable alternative to termination of parental rights. See T.G. v. Houston Cnty. Dep’t of Human Res., 39 So.3d 1146, 1152-53 (Ala.Civ.App.2009).

Next, the mother maintains that the juvenile court erred in terminating the parental rights of the father, who, the mother contends, was a viable relative resource for the children. We disagree. The evidence shows that the father had married and was sharing a small home with his wife and their two children. After learning of the children’s plight, the father and his wife assumed their custody in the fall of 2009. The children soon exhibited dangerous propensities, sexually acting out and threatening the life or safety of the father’s other children. The father and his wife took the children to counseling throughout 2009 and 2010 in an effort to help them. They also instituted protocols within the home in an attempt to safeguard their own children. However, their efforts proved fruitless as the behavior of the children regressed under their care. The father and his wife decided that they could no longer properly care for the children, and they reached a boarding agreement with DHR in August 2010 to take the children. At trial, the father testified that he lacked the ability and willingness to meet the special needs of the children and that those needs were being met in the children’s current therapeutic foster-care arrangements. After receiving advice from counsel, the father consented to the termination of his parental rights.

Even if the mother had standing to contest the termination of the father’s parental rights, see D.C.L. v. Marion Cnty. Dep’t of Human Res., 9 So.3d 506 (Ala.Civ.App.2008) (one parent lacks standing to appeal the termination of the other parent’s parental rights), we would not conclude that the juvenile court erred in terminating the parental rights of the father and in refusing to return the children to his custody as a viable alternative to terminating the parental rights of the mother. It is clear from the father’s testimony that, despite his and his wife’s best efforts, the father could not meet the'special needs of the children in a safe environment and that the juvenile court had sufficient grounds to terminate his parental rights. Cf. C.C. v. State Dep’t of Human Res., 984 So.2d 447 (Ala.Civ.App.2007) (reversing judgment terminating parental rights of mother by consent when juvenile court failed to adduce evidence of grounds for termination). That same evidence proves that the father could not serve as a viable placement for the children. See J.B. v. Cleburne Cnty. Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008) (holding that relative is not a viable resource for dependent child if relative cannot meet needs of child during child’s minority). The evidence shows, without dispute, that the father’s decision negatively impacted M.S., who felt rejected by the father; however, the juvenile court reasonably could have been clearly convinced that it served the best interests of M.S. to sever her relationship with the father, given the circumstances.

Finally, the mother contends that K.D., the fiancée of the mother’s brother, testified at the trial that she would be willing to act as a placement for the children. Although K.D. knew of the children’s predicament, she did not come forth until the date of the termination hearing. See M.J.C. v. G.R.W., 69 So.3d 197 (Ala.Civ.App.2011) (holding that relative’s last-minute offers at termination trial to act as custodian was not a viable alternative). Moreover, K.D. has two small children of her own and works two jobs to support her family. K.D. leaves her children with relatives while she works. Although K.D. stated that she would modify her circumstances to help the children, it remains undisputed, that the children in this case have special needs that require constant attention and specialized knowledge. The juvenile court reasonably could have concluded that K.D. lacked the necessary time or skills to properly care for the children and that they would be better off in their current therapeutic foster homes until they could be adopted. See J.B., supra.

In summary, we conclude that the juvenile court and DHR had no duty to use reasonable efforts to reunite the mother with the children, that the juvenile court had clear and convincing evidence before it to terminate the parental rights of the mother, that the juvenile court properly considered all viable alternatives before terminating the parental rights of the mother, and that the juvenile court properly concluded that termination of the mother’s parental rights served the best interests of the children. We, therefore, affirm the juvenile court’s judgments.

2111073 — AFFIRMED.

2111074 — AFFIRMED.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs in the result, with writing.

THOMAS, J., concurs in the result, without writing.

THOMPSON, Presiding Judge,

concurring in the result.

I agree that the judgments of the juvenile court are due to be affirmed. However, the main opinion relies on F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d - (Ala.Civ.App.2012), to support some of its conclusions. I dissented in that case. Id. at -. For the same reasons expressed in that dissenting opinion, I disagree with relying on F.V.O. as a basis for affirming the judgments in this case.

      . “Indicated” means "[w]hen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.” § 26 — 14—8(a)(1), Ala.Code 1975.

      . Although the sexual abuse occurred while the children were in the custody of the mother, and although some of the acts of abuse occurred in her home, DHR did not cite the mother for abuse or neglect as a result of the actions of P.W. and D.M., and she was never charged with a crime in connection with the sexual abuse of the children.

      . Section 26-15-3, Ala.Code 1975, provides:
      “A responsible person, as defined in Section 26-15-2, [Ala.Code 1975,] who shall torture, willfully abuse, cruelly beat, or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be guilty of a Class C felony.”

      . The judgments also terminated the father's parental rights with his consent. The father has not appealed the judgments.


source: Caselaw Access Project

author: CONNER, J. DAMOORGIAN, J., CONNER, J.

license: Public Domain

text:
    Alan ROBERTS, Appellant, v. ALBERTSON’S INC., B.H.A., L.L.C., and Sebastian Rapisarda, Appellees.
    No. 4D10-2313.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.
    Rehearing and Rehearing En Banc Denied June 26, 2013.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Harry A. Shevin of Domnick & Shevin, PL, Palm Beach Gardens, for appellant.
    Kenneth W. Sukhia of Sukhia Law Group, PLC, and James H.K. Bruner Sr. of Affiliated Computer Services, Inc., Tallahassee, for appellees.
   CONNER, J.

In this appeal, we decide whether Florida law precludes the recipient of Medicaid benefits from seeking a judicial determination of what portion of a personal injury settlement is subject to a Medicaid lien and reimbursement to the state. Adhering to federal appellate precedent, we hold that a Medicaid recipient has the right to seek a judicial determination.

Factual Background and Trial Proceedings

Appellant, Alan Roberts (“Roberts”), was hit by a side view mirror of a dry cleaning van while walking. As a result, he was rendered a quadriplegic. Medicaid paid for all of Roberts’ medical care associated with the accident, which totaled $343,452.83. Roberts brought actions against four defendants, including Albert-son’s, Inc., for compensation of his injuries. Florida Agency for Health Care Administration (“AHCA”), the Medicaid administrator for Florida, filed a lien against the third-party benefits paid in settlement by the tortfeasors.

All parties, except Albertson’s, settled for their insurance policy limits. After asserting multiple defenses, Albertson’s settled for $2,735,000. The Albertson’s settlement agreement did not contain any allocation between medical expenses, other economic losses, or non-economic losses. AHCA did not participate in the settlement agreement.

Roberts filed a Motion to Determine Equitable Medicaid Lien Amount, asking the court to determine the amount of the settlement that was comprised of medical expenses and to limit recoupment of the Medicaid lien to that amount. Roberts claimed the true value of damages was $44.8 million. His expert submitted an affidavit claiming economic damages totaling $11.8 million, past non-economic damages in the amount of $8 million, and future human damages of $25 million. AHCA filed a response opposing a hearing because section 409.910(ll)(f), Florida Statutes (2010), provides the statutory formula to determine what portion of a personal injury settlement is subject to a Medicaid lien.

The trial court agreed to bifurcate consideration of the motion by first conducting a hearing on the legal issue of whether Roberts was entitled to an evidentiary hearing. The order on appeal determined that Roberts was not entitled to an eviden-tiary hearing, citing Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010). Based on the formula set forth in section 409.910(ll)(f), the trial court ordered that AHCA was entitled to a Medicaid lien for the full amount of Medicaid benefits provided to Roberts.

Appellate Analysis

“Medicaid is a cooperative federal-state welfare program providing medical assistance to needy people.” Agency for Health Care Admin. v. Estabrook, 711 So.2d 161, 163 (Fla. 4th DCA 1998) (cita tions omitted). Even though state participation in the program is voluntary, once a state elects to participate, the state must comply with federal Medicaid statutes. Id.; see Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 501, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Nonetheless, “[e]ach state has considerable discretion in designing the contours of its program within the guidelines established by 42 U.S.C. s 1396a.” Englich v. Agency for Healthcare Admin., 916 So.2d 994, 996 (Fla. 4th DCA 2005).

To better understand the issue we resolve in this appeal, a brief discussion of the history of some of the federal Medicaid statutes is needed.

The Federal Medicaid Anti-Lien and Anti-Recovery Statutes

In the early years of the Medicaid Program, Congress adopted 42 U.S.C. § 1396p(a)(l) of the Medicaid Act:

Liens, adjustments and recoveries, and transfers of assets
(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan
(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except-
(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or
(B) in the case of the real property of an individual-[who is in a nursing home and required by law to spend his own income on those expenses, and who cannot reasonably be expected to return home.]

This provision is known as the “anti-lien” provision of the Medicaid Act. Of equal importance to this appeal is 42 U.S.C. § 1896p(b)(l), known as the “anti-recovery provision:” “[n]o adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except [in limited circumstances not at issue in this case].”

The anti-lien and anti-recovery provisions were intended to ensure that Medicaid recipients were not forced to directly bear the costs of their medical care during their lifetime. Tristani v. Richman, 652 F.3d 360, 370 (3d Cir.2011). Those provisions were brought forward from similar provisions of the Social Security Act adopted in 1960. Id. at 371. By enacting these provisions, Congress was concerned about protecting a Medicaid recipient’s personal assets, but not the recipient’s interest in recovering from third parties medical costs paid on his or her behalf. Id. at 372.

To keep the Medicaid program viable, Congress recognized that it is necessary to obtain reimbursement when a third party makes payment to the Medicaid beneficiary for medical care already paid for by Medicaid.

Federal Statutory Authority for Medicaid Liens

The first reimbursement provision of the Medicaid Act was enacted in 1967, several years after the adoption of the anti-lien and anti-recovery provisions. Id. It required states to “take all reasonable measures to ascertain the legal liability of third parties to pay for care and services” and “to seek reimbursement.” Id. The goal was to protect tax dollars while preventing Medicaid beneficiaries from receiving a windfall. Id. at 373. In 1977, Congress added a forced assignment provision to the Medicaid Act which required Medicaid recipients, as a requirement of eligibility, to assign to the Medicaid state agency the recipient’s rights to payment for medical care from third parties. Id. By conferring upon the states the right to forced assignment of medical care cost paid by third-parties, Congress intended to ensure that Medicaid recipients do not receive a windfall by recovering medical costs they did not pay. Id.

Florida’s Medicaid Third-Party Liability Act

The federal Medicaid program requires every participating state to implement a “third party liability” provision which requires the state to seek reimbursement for Medicaid expenditures from third parties who are liable for medical treatment provided to a Medicaid recipient. See § 42 U.S.C. 1396a(a)(25). To comply with federal mandate, Florida has enacted the Medicaid Third-Party Liability Act (“MTPLA”). See § 409.910, Fla. Stat. (2010).

MTPLA expressly states that Medicaid shall be “the payor of last resort.” § 409.910(1), Fla. Stat. To assure that, the act provides:

If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the Legislature that Medicaid be repaid in full and prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid.

Id. The act gives AHCA at least three mechanisms to recoup expenditures from third parties: (1) an automatic lien “upon the collateral, as defined in s. 409.901” for the full amount of medical assistance provided by Medicaid; (2) automatic subrogation to any rights of a recipient to third-party benefits; and (3) an automatic assignment of the recipient’s rights to any third-party benefits. 409.910(6)(a)-(c), Fla. Stat. (2010) Section 409.901(7)(b), Florida Statutes (2010) defines “collateral” as “[a]ll judgments, settlements and settlement agreements rendered or entered into and related to such causes of action [related to a covered injury necessitating Medicaid payments].” (emphasis added). “Third-party benefits” are defined by section 409.901(28), Florida Statutes (2010), to include “collateral.” Thus, settlements are clearly subject to Medicaid liens in Florida.

Section 409.910(ll)(e), Florida Statutes (2010) states that the entire amount of any settlement is subject to a Medicaid claim for reimbursement limited to the amount of Medicaid assistance provided. However, section 409.910(ll)(f), the section which is at the heart of this appeal, further limits the amount of reimbursement using a formula:

(f) Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows:
1. After attorney’s fees and taxable costs as defined by the Florida Rules of Civil Procedure, one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid.
2. The remaining amount of the recovery shall be paid to the recipient.
3. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient or his or her legal representative shall be calculated at 25 percent of the judgment, award, or settlement.
4. Notwithstanding any provision of this section to the contrary, the agency shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid. For purposes of this paragraph, “medical coverage” means any benefits under health insurance, a health maintenance organization, a preferred provider arrangement, or a prepaid health clinic, and the portion of benefits designated for medical payments under coverage for workers’ compensation, personal injury protection, and casualty.

Arkansas Department of Health & Human Services v. Ahlborn

In Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), the U.S. Supreme Court discussed the applicability of the federal Medicaid anti-lien provision to the Arkansas statute imposing an automatic reimbursement lien on settlements with third-party tortfeasors.

In Ahlborn, Medicaid paid a total of $215,645.30 to medical providers after Ahl-born suffered severe and permanent injuries in a car accident. When Ahlborn filed suit against two tortfeasors, the Arkansas Department of Health and Human Services (ADHHS) intervened to assert an automatic reimbursement lien on the proceeds of any third-party recovery. The case settled for a total of $550,000. The parties did not allocate the settlement between categories of damages, and ADHHS did not participate in the settlement agreement. Ahlborn then filed suit in federal court seeking a declaration that ADHHS’s lien for the full amount of Medicaid benefits paid violated federal Medicaid laws insofar as its satisfaction would require reduction of compensation for injuries other than medical expenses. To facilitate the litigation, Ahlborn and ADHHS stipulated that Ahlborn’s entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahl-born’s construction of federal law was correct, ADHHS would be entitled to only $35,581.47 as reimbursement for medical payments made. The Supreme Court construed the stipulation to mean that ADHHS agreed that only $35,581.47 of the settlement proceeds was attributable to medical expenses.

The Supreme Court framed the issue to be decided as “whether [ADHHS] can lay claim to more than the portion of Ahl-born’s settlement that represents medical expenses.” Id. at 280, 126 S.Ct. 1752. The Court determined that the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement which represents payments for medical care. Id. at 282, 126 S.Ct. 1752. The Court then specifically addressed the federal Medicaid anti-lien provision and said: “[T]he exception carved out by §§ 1396a(a)(25) and 1396k(a) [forced assignment of rights provisions] is limited to payments for medical care.” Id. at 284,126 S.Ct. 1752. Because the Arkansas statute allowed for an automatic reimbursement lien for the full amount of Medicaid payments, the Court held the Arkansas statute could not be enforced, and Arkansas was limited to a lien for the amount of the settlement proceeds it agreed was for medical expenses.

One of the arguments raised by ADHHS was that automatic reimbursement lien for the full amount of Medicaid payments was necessary to protect against the inherent danger of settlement manipulation in cases where the parties to a tort case settle without judicial oversight or input from the Medicaid agency. After observing the point was not squarely presented by the facts of the case (because there was a stipulation as to what portion of the settlement was for medical expenses), the Supreme Court was not persuaded by the argument and stated in dicta,

[T]he risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.

Id. at 288, 126 S.Ct. 1752. In a footnote to those statements, the Supreme Court acknowledged that some states have adopted special rules and procedures for allocating tort settlements. The Court stated it was not expressing a view on such rules and procedures and left open the possibility that such rules and procedures might be employed to meet concerns about settlement manipulations.

Trial Court Proceedings

In the trial court, Roberts argued that the federal Medicaid anti-lien provision and the Ahlbom decision entitled Roberts to an evidentiary hearing to determine what amount of his settlement is for medical expenses. Roberts contended that a judicial determination must be made to assure that the lien set forth in section 409.910(11)© does not exceed the third party’s payment for medical expenses.

At the preliminary hearing to determine whether an evidentiary hearing would be conducted, Roberts argued that similar to Ahlbom, AHCA’s lien for third-party benefits should be reduced in proportion to the ratio that the settlement recovery bears to the reasonable value of the case. By affidavit, Roberts proffered that the value of the case was $44 million. The settlement amount was $2,735,000.00. Thus, the ratio would be 2.75/44 and AHCA’s lien should be for $21,465.75 (6.25 percent of the $343,452.83 in medical expenses paid by Medicaid).

AHCA argued to the trial court that Ahlbom did not apply to this case because in Ahlbom the Medicaid agency stipulated to what portion of the settlement was for medical expenses, and in this case there was no such stipulation. AHCA further argued that section 409.910 controlled where there was no stipulation to determine the proper amount of settlement proceeds to be repaid to Medicaid.

The trial court denied the request for an evidentiary hearing, citing Russell, 23 So.3d 1266 (Fla. 2d DCA 2010). The trial court ordered that AHCA was entitled to a Medicaid lien in the full amount of Medicaid benefits provided to Roberts.

Russell v. Agency For Health Care Administration

In Russell, the tort action was settled for $3 million and the lien asserted by AHCA was for $221,434.24. Russell’s experts opined her case was worth $30 million. Russell argued to the trial court and on appeal that “the formula [in section 409.910] for determining the amount [AHCA] can recover on its lien from a plaintiffs tort judgment or settlement ... has been tempered by” the decision in Ahlbom, which interpreted provisions of the federal Medicaid law. The Second District concluded Russell’s position was “based on an untenable reading of Ahlborn.” Russell, 23 So.3d at 1268.

The Second District concluded that in Ahlbom, the Supreme Court rejected a “rule of absolute priority” and held that the federal Medicaid law did not authorize Arkansas to assess a lien on Alhborn’s settlement beyond the stipulated amount attributable to medical expenses. Id. The Second District also concluded that Ahl-bom did not adopt the proportionality formula used by the parties to reach a stipulation of the portion of the settlement attributable to medical expenses.

In Russell, the Second District went on to write:

In Florida, a Medicaid recipient entering into a settlement of a tort claim with a third party does so against the backdrop of the fifty-percent allocation rule set forth in section 409.910(11)©. Here, the appellant failed to establish any basis for concluding that the lien asserted by AHCA extends to a portion of the settlement “meant to compensate the recipient for damages distinct from medical costs.” Ahlborn, 547 U.S. at 272, 126 S.Ct. 1752. Accordingly, Florida’s statutory allocation rule must prevail.

Id. at 1269 (emphasis added). The Second District left unclear how, in the context of a settlement, a Medicaid recipient could ever establish a basis for concluding an asserted Medicaid lien extends to proceeds meant to compensate the recipient for non-medical costs absent a stipulation by Medicaid as to an allocation of the settlement. It is important to note that the Second District in a footnote acknowledged the position of the Fifth District that “under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid hen amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.” Id. at 1269 n. 1 (quoting Smith v. Agency for Health Care Admin., 24 So.3d 590, 592 (Fla. 5th DCA 2009)). The Second District expressed “no view concerning whether the fifty-percent statutory allocation rule could be displaced based on parole evidence. Russell, 23 So.3d at 1269.

Smith v. Agency for Health Care Administration

Prior to Russell, the Fifth District decided Smith v. Agency for Health Care Administration, 24 So.3d 590. In Smith the guardian for the plaintiff settled a personal injury claim for $2,225,000 after Medicaid paid $122,783.87 in medical expenses for the plaintiff. The guardian argued the settlement represented one-third of the plaintiffs total damages and Ahl-bom required the trial court to reduce the Medicaid lien to one-third of the amount Medicaid paid. The majority of the court opined that the plaintiff misread Ahlbom by not understanding that the holding was limited by the fact that the Arkansas Medicaid agency stipulated to an amount of the settlement attributable to medical expenses, which was not the case in Smith. The Fifth District flatly rejected the notion that Ahlbom adopted a formula for determining what portion of a settlement is attributable to medical expenses. Id. at 591.

The majority went on to opine that the formula used by the parties in Ahlbom was problematic in that it assumes the Medicaid lien amount to be the only medical expense included by the plaintiff as part of his or her overall damage claim, which is not a reasonable assumption. Id. The majority stated, “[Wjithout knowing how much of a plaintiffs total damage claim is comprised of medical expenses, there is no way to calculate the medical expense portion of a settlement by simply comparing the damage claim to the ultimate settlement amount.” However, in rejecting the plaintiffs argument, the majority agreed that under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. Id. at 592.

Garcon v. Agency for Health Care Administration

After Russell, the Third District decided Garcon v. Agency for Health Care Administration, 96 So.3d 472 (Fla. 3d DCA 2012). In Garcon, the Third District agreed with the majority in Russell and held that section 409.910(1) is fully effective as a “special rule” referred to in Ahlbom which allows for AHCA to allocate what portion of a settlement is subject to its lien using a statutory formula. The Third District flatly rejected the plaintiffs assertion that he should be allowed to seek an allocation based upon a “fair evaluation” of his injuries. The Third District also asserted that the First District agreed with that position, citing Storey ex rel. Storey v. Hickcox, 44 So.3d 600 (Fia. 1st DCA 2010) (per curiam affd, citing Russell). The Third District apparently ignored the footnote in Russell that it was expressing no view that the statutory formula for allocation could be displaced based on parole evidence.

Tristani v. Richman

Tristani v. Richman, 652 F.3d 360 (3d Cir.2011) is the first federal circuit court opinion to address whether Ahlbom precludes the use of statutory formulas to determine what portion of a settlement is subject to a Medicaid lien. The opinion involved a class action suit. Like Florida, the Pennsylvania statute under review allowed a lien against fifty percent of the settlement, after reducing for attorney’s fees and litigation costs, up to the amount of benefits actually paid by Medicaid. Unlike Florida, an amendment to the Pennsylvania statute enacted after Ahlbom provided for an administrative appeal process if the plaintiff disagreed with the lien amount.

The class action plaintiffs contended that they settled their claims for less than full value and Medicaid reimbursement should be reduced correspondingly. The district court rejected that contention and concluded that the Pennsylvania statute validly adopted a default apportionment mechanism to divide settlements between medical costs and non-medical recoveries. The district court reasoned that the default allocation statute and the agency appeal provisions were “special rules and procedures” alluded to by Ahlbom that were consistent with the federal requirement that the State’s recovery not exceed the portion of the third-party recovery attributable to Medicaid-paid expenses. Id. at 377. The Third Circuit Court of Appeals agreed with the district court because the amended statutory framework provided for an appeal process if the plaintiff disagreed with the statutory default allocation. In holding the Pennsylvania statute valid, the Third Circuit said: “This mechanism is consistent with the Supreme Court’s holding in Ahlbom, and comports with the practice of other states.” Id. at 378.

Regarding the liens that arose prior to the amendment allowing administrative appeals, the Third Circuit held,

in determining what portion of a Medicaid beneficiary’s third-party recovery it may claim in reimbursement for Medicaid expenses, the state must have in place procedures that allow a dissatisfied beneficiary to challenge the default allocation. As the Beneficiaries point out, without such a rule nothing would prevent states from allocating 75%, 90% or even 100% of a settlement to medical expenses, thereby eviscerating the rule promulgated by Ahlbom.

Id. The Third Circuit remanded those claims for further proceedings. Id.

E.M.A. v. Cansler

In E.M.A. v. Cansler, 674 F.3d 290 (4th Cir.2012), cert. granted sub nom. Delia v. E.M.A., 567 U.S. -, 133 S.Ct. 99, — L.Ed.2d - (2012), the Fourth Circuit Court of Appeals agreed with the Third Circuit that in determining what portion of a Medicaid beneficiary’s third-party recovery a state Medicaid agency may claim as reimbursement for Medicaid expenses, the state must have in place procedures that allow a dissatisfied beneficiary to challenge a statutory default allocation. In reaching that conclusion, the Fourth Circuit also concluded that the North Carolina Supreme Court wrongly interpreted Ahlbom in upholding the validity of North Carolina’s statutory default allocation in Andrews v. Haygood, 362 N.C. 599, 669 S.E.2d 310 (N.C.2008), cert. denied sub nom. Brown v. North Carolina Department of Health and Human Services, 557 U.S. 904, 129 S.Ct. 2792, 174 L.Ed.2d 291, (2009). In the view of the Fourth Circuit, the unanimous decision in Ahlbom:

makes clear, federal Medicaid law limits North Carolina’s recovery to settlement proceeds representing payment for medical expenses. In the event of a lump-sum settlement, as in this case, the sum certain allocable to medical expenses must be determined, in the absence of a stipulation by the affected parties, by judicial determination or some similar adversarial process, before the state may recoup its Medicaid outlays. Accord Tristani ex rel. Karnes v. Richman, 652 F.3d 360, 378 (3d Cir. 2011) (interpreting Pennsylvania law).

Id. at 296 (emphasis in original). The Fourth Circuit emphatically stated:

The Supreme Court has characterized the third-party liability provisions in federal Medicaid law as an exception to the anti-lien provisions, stating that “[t]o the extent that the forced assignment [of payments that constitute reimbursement for medical expenses] is expressly authorized in §§ 1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision.” Ahlborn, 547 U.S. at 284, 126 S.Ct. 1752 (citing Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 383-85, & n. 7, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003)). At the same time, the Supreme Court has emphasized that this exception is strictly limited-a state cannot force assignment of, or place a lien on, any property that does not constitute reimbursement for medical expenses. Id. at 284-85, 126 S.Ct. 1752 (“[T]he exception carved out by §§ 1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.”).

Id. at 297-98

The Fourth Circuit did not agree with North Carolina’s argument that its statute set a “reasonable cap” on the state’s recovery and therefore satisfied the federal anti-lien law. Id. at 308. Instead, the court concluded that North Carolina’s one-third cap on a Medicaid recipient’s settlement proceeds does not satisfy Ahlbom insofar as it permits North Carolina to assert a lien against settlement proceeds intended to compensate the Medicaid recipient for other claims, such as pain and suffering or lost wages. Id. at 307. The court declined to express a view as to whether allocation disputes must be adjudicated by a court, or may instead be resolved through other “special rules and procedures” alluded to in Ahlbom. However, the court held that in determining what portion of a Medicaid beneficiary’s third-party recovery the state may claim in reimbursement for Medicaid expenses, it must have in place procedures that allow a dissatisfied beneficiary to challenge the default allocation. Id. at 311. Because the North Carolina statute had no such provision, the court remanded the case back to the district court to make the allocation.

Conclusion

We hold that section 409.910, Florida Statutes, creates a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when AHCA does not participate in the settlement agreement. We agree with the Second and Third Districts that Ahlbom does not invalidate the allocation set forth in section 409.910. However, the statutory allocation is a default allocation, which could run afoul of federal anti-lien and anti-recovery statutes if, for example, the majority of an award (after attorney’s fees and costs) is not allocable to medical expenses. We do not agree with the Third District that Tristani supports the position that a Medicaid recipient cannot seek a judicial determination as to the allocation of what portion a settlement is subject to a Medicaid lien. Based on the appellate decisions of the Third and Fourth Circuit Courts of Appeal and the federal anti-lien and anti-recovery provisions of the Medicaid Act, we agree with the Fifth District in Smith and hold that a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. Because the trial court refused to afford Roberts an evidentiary hearing to prove the lien exceeds the amount recovered for medical expenses, we reverse and remand for further proceedings.

We certify conflict with Garcon v. Agency for Health Care Administration, 96 So.3d 472 (Fla. 3d DCA 2012), and with Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010) to the extent those cases stand for the proposition that a plaintiff is not entitled to an opportunity to prove the Medicaid lien exceeds the amount recovered for medical expenses. We agree with the statements in Smith v. Agency for Health Care Administration, 24 So.3d 590 (Fla. 5th DCA 2009) that a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.

Reversed and remanded for further proceedings.

WARNER, J., concurs.

DAMOORGIAN, J., dissents with opinion.

DAMOORGIAN, J.,

dissenting.

I dissent for the same reasons articulated by the Third District Court in Garcon. There, the court held that “section 409.910(l)(ll)(f) is not federally pre-empt-ed and is ... fully effective and enforceable.” Garcon v. Agency for Health Care Admin., 96 So.3d 472, 473 (Fla. 3d DCA 2012). Florida has adopted a special rule which provides an allocation formula to fix the lien. See Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 288 at n. 18, 126 S.Ct. 1752 (2006). I would apply the law as written and affirm the order on review.

ON MOTION FOR REHEARING

Victoria A. GIORGIONE, As Personal Representative of the ESTATE OF Alan ROBERTS, Appellant, v. ALBERTSON’S INC., b.h.a., L.L.C., Sebastian Rapisarda, and State of Florida, Agency for Health Care Administration, Appellees.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Harry A. Shevin of Domnick & Shevin, PL, Palm Beach Gardens, for appellant.

Kenneth W. Sukhia of Sukhia Law Group, PLC, Tallahassee, James H.K. Bruner Sr., Tallahassee, and Adam J. Stal-lard, Tallahassee, for State of Florida, Agency for Health Care Administration.

CONNER, J.

We deny the appellee’s motion for rehearing and motion for rehearing en banc. However, in light of the decision issued by the United States Supreme Court in Wos v. E.M.A., — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), we withdraw our previous certification of conflict with Garcon v. Agency for Health Care Administration, 96 So.3d 472 (Fla. 3d DCA 2012), and with Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010).

WARNER and DAMOORGIAN, JJ., concur.

      . The federal government insists on compliance with its statutes because it receives a portion of any funds recouped on behalf of a recipient. See § 409.910(7)(b)(2), Fla. Stat.

      . Section 409.910(6)(c)7., Florida Statutes (2010) and case law make it clear that a stipulation on allocation by a recipient and a tortfeasor is not binding on AHCA unless AHCA participates in the stipulation.

      . The applicable North Carolina statute set the default allocation at one-third of the gross amount of the recovery.

      . Appellant Alan Roberts passed away while this appeal was pending. We granted a motion to substitute his personal representative in his place.


author: MORRIS, Judge.

text:
    Justin ECHTERNACH, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-2910.
    District Court of Appeal of Florida, Second District.
    March 20, 2013.
    Rehearing Denied Aug. 14, 2013.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Richard M. Coin, Assistant General Counsel, Orlando, for Respondent.
   MORRIS, Judge.

Justin Echternach’s petition for second-tier writ of certiorari is denied. See Dep’t of Highway Safety & Motor Vehicles v. Robinson, 93 So.3d 1090 (Fla. 2d DCA 2012). However, as we did in Robinson and subsequently in Department of Highway Safety & Motor Vehicles v. Ramnarine, 104 So.3d 1144 (Fla. 2d DCA 2012), we certify the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY-DAY PERIOD FOR FORMAL ADMINISTRATIVE REVIEW?

Petition denied.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


author: PER CURIAM.

text:
    Martin L. CHRISTIANSON, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D12-4134.
    District Court of Appeal of Florida, First District.
    April 30, 2013.

      Martin L. Christianson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 9, 2011, order denying the defendant’s motion for postconviction relief, in Escambia County Circuit Court ease number 2010-CF-002400A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Philip PANCOAST, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-1778.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Philip Pancoast, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004). Petitioner is cautioned that the filing of any further unauthorized petitions with this court challenging his Pinellas County convictions and sentences may result in the imposition of sanctions against him.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    James B. FLYNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3589.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the state’s motion for rehearing and deny its motion for rehearing en banc. We substitute the following for the slip opinion issued on April 3, 2013.

Once jeopardy attaches, a trial court is prohibited from imposing a greater penalty on a defendant than he or she initially received. If furlough conditions are announced and agreed to by the defendant after the initial pronouncement of sentence, a greater sentence cannot be imposed after the defendant violates the furlough agreement absent the State filing a motion to vacate the plea and sentence pursuant to Florida Rule of Criminal Procedure 3.170(g) and the motion being granted. Because no motion to vacate the plea and sentence was filed and granted in this case, double jeopardy was violated when a longer sentence was imposed after the furlough violation. We reverse.

James Bernard Flynn was charged with burglary of a dwelling and grand theft. Flynn pleaded no contest to both charges. During the plea colloquy, there was no discussion of a furlough agreement between Flynn and the State, and Flynn’s written plea form says nothing about a furlough agreement. Rather, the subject of furlough arose after the court accepted Flynn’s plea, but just prior to the court announcing a sentence. At that point, Flynn’s attorney advised the judge: “we agreed he could stay out till [sic] Monday before the court imposes sentence.” The judge responded, “Certainly subject to certain terms and conditions,” to which Flynn’s attorney said, “Right.” The trial judge immediately proceeded to sentence Flynn to two nine-year terms, granted furlough, and ordered him to surrender on November 29,1999.

After sentencing, the court explained that failure to appear would result in his agreed sentence being vacated and the maximum sentences being entered for each of his charges. Flynn responded that he understood and agreed. Subsequently, he failed to return from furlough. Eleven years later, he was brought to the court; his nine-year sentences were vacated; and the maximum sentence for each charge was entered. Now, Flynn argues that his double jeopardy rights were violated because he was sentenced twice for each offense.

Double jeopardy bars a defendant from being convicted or punished twice for the same offense. Scott v. State, 937 So.2d 746, 749 (Fla. 4th DCA 2006). Once jeopardy attaches, a trial court is prohibited from imposing a penalty greater than the sentence already imposed. Ingraham v. State, 842 So.2d 954, 955 (Fla. 4th DCA 2003).

This case is somewhat factually similar to Ingraham. In Ingraham, the defendant and the State agreed to a 36.45 month prison sentence and a three-month furlough for medical reasons. Id. The furlough conditions were discussed by the court prior to the trial court accepting the defendant’s plea. Id. The defendant signed a waiver form explaining that if he failed to return from furlough, the court could enter a substantially greater sentence. Id. at 954-55. The trial court accepted the plea as agreed and imposed the agreed upon sentence at the plea conference, but then stayed and suspended execution of the sentence until the date the defendant’s furlough was to end. Id. at 955. On the same day of the plea conference, the trial court entered a written judgment and sentence. Id. After the defendant failed to surrender as ordered, the trial court vacated the original sentence and imposed a longer sentence.

We explained that the crucial moment when jeopardy attaches is when the trial court orally pronounces the defendant’s sentence. Id. at 955. This submits the defendant to jeopardy, and his sentence cannot be increased without violating principles of double jeopardy. Id. Here too, jeopardy attached when the trial court orally pronounced Flynn’s sentence to each nine-year term.

What we wrote in Ingraham applies to this case as well:

This is not a case where the court deferred sentencing until appellant returned from his furlough. Nor is it a case where the state moved to vacate the plea pursuant to Florida Rule of Criminal Procedure 3.170(g).

Id. (citations omitted).

The State’s answer brief makes a one-sentence argument that Flynn waived a double jeopardy claim: “Additionally, [Flynn] waived any double jeopardy claim when he agreed to the ‘failure to appear’ provisions.” The State supports the argument with a citation to Judge Stevenson’s concurring opinion in Adams v. State, 780 So.2d 955, 959 (Fla. 4th DCA 2001). We first note that the majority in Adams did ground its decision in part on the fact that the furlough agreement was part of a plea agreement and “it became a part of the court’s acceptance of the plea.” Id. at 958. Likewise, the two cases cited in the concurring opinion in support of a waiver argument, Novaton v. State, 634 So.2d 607 (Fla.1994) and West v. State, 758 So.2d 1232 (Fla. 4th DCA 2000), involved written plea agreements in which the defendant implicitly waived a double jeopardy argument by negotiating for a specific sentence. The State makes no argument, in its answer brief or motion for rehearing, that Flynn agreed to the furlough as part of his plea agreement. If the furlough was a part of Flynn’s plea agreement, then the State should have moved to vacate the plea and sentence pursuant to Florida Rule of Criminal Procedure 3.170(g).

It is also difficult to square the waiver argument with our holding in Ingraham. In Ingraham, the furlough agreement was in uniting and discussed with the trial court prior to the court accepting the plea, whereas in this case, the furlough agreement was discussed verbally after the trial court accepted the plea. If the waiver argument was not persuasive in Ingraham, it is less persuasive on the facts of this case.

In the motion for rehearing, the State asserts Flynn had no legitimate expectation of finality in the original sentence pronounced when he agreed, as part of the furlough, that the sentence could be longer if he failed to surrender on time. Without a legitimate expectation of finality, double jeopardy was not violated by the longer sentence. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). However, the State did not make this argument in its answer brief. Thus, the argument cannot be raised on rehearing. Ayer v. Bush, 775 So.2d 368 (Fla. 4th DCA 2000) (“It is a rather fundamental principle of appellate practice and procedure that matters not argued in the briefs may not be raised for the first time on a motion for rehearing.”).

Reversed and remanded for further proceedings.

STEVENSON, CIKLIN and CONNER, JJ., concur.

CIKLIN, J., did not serve on the original panel, but has had the opportunity to review the entire case.

      . Because the issue was not raised or argued on appeal, we do not address whether a defendant's consent to furlough conditions after the initial pronouncement of sentence may constitute a modification of the plea agreement.


text:
    Nyka O’CONNOR, Appellant, v. Sergeant WATT, Appellee.
    No. 1D12-4099.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Rehearing Denied Aug. 27, 2013.

      Nyka O’Connor, pro se.
    Pamela Jo Bondi, Attorney General, C. Ian Garland, Assistant Attorney General, and Jennifer Parker, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

On April 15, 2013, this court issued an order which identified sixteen cases, including this one, which had been initiated by Nyka O’Connor in this court since 2009. The order further provided:

The court notes that Appellant has unsuccessfully sought relief in multiple cases which challenge the circumstances of his confinement with the Department of Corrections. Appellant has failed to obtain relief by appeal or extraordinary writ petition in case numbers 1D08-1102, 1D10-5664, 1D11-2873, 1D11-3470, 1D11-3650, 1D11-4424, 1D11-4981, 1D12-1748, 1D12-4074, and 1D12-4665. Appellant additionally is currently seeking relief from this court in case numbers 1D13-529, 1D13-596, 1D13-653,1D13-790, and 1D13-863.
Accordingly, Appellant shall show cause within 10 days of the date of this order why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging the circumstances of his confinement with the Department of Corrections, unless Appellant is represented by an attorney in good standing with The Florida Bar. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (recognizing the potential for abuse of the right to pro se access to the courts but declaring “it is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence”); Butler v. State, 953 So.2d 12, 13 (Fla. 5th DCA 2007) (requiring a Spencer order before barring either future pro se pleadings or imposing other sanctions).

O’Connor was granted an extension of time to respond to the show cause order. His response attacked this Court’s authority to prevent abuse of the legal system by restricting frivolous pro se filings because he obtained the relief he sought in numerous cases. This response in fact demonstrates the frivolous nature of many of O’Connor’s filings, which frequently requested this Court order the lower tribunal to rule on his pending frivolous motions; the filings in this Court were often made within days after the filings in the lower court. Numerous other cases have been dismissed for failure to pay a filing fee or submit an order determining indi-gency. We note that in the instant case, O’Connor attempted to use the same frivolous procedure with this Court. During its pendency, this case has already been appealed to — and summarily dismissed by— the Florida Supreme Court.

In this and other cases, O’Connor has repeatedly suggested that being on “Psycho Medications” for various mental illnesses has contributed to the “shortcomings and deficiencies” in his filings. We agree with O’Connor that mental illness should not bar the courthouse doors to a litigant; we cannot conclude, however, that mental illness provides a blanket exception to the Rules of Appellate Procedure or laws of Florida. This Court has accommodated O’Connor’s requests for extensions of time and to construe improperly filed petitions for certiorari as initial briefs; has provided forms for proper filings where O’Connor’s filings are improper; and has directed the lower tribunal to provide necessary rulings for O’Connor’s appeals, where necessary. These accommodations adequately compensate for any illness-related difficulty O’Connor might have in following the rules of procedure. O’Con-nor’s alleged mental illnesses do not excuse his actions in bringing frivolous appeals.

We find appellant’s pro se activities have substantially interfered with the orderly process of judicial administration in this Court. In the exercise of our inherent power to prevent abuse of court procedure, it is hereby ordered that Nyka O’Connor, in proper person, is henceforth prohibited from filing any document in this Court on his own behalf, in this or any other case, as appellant or petitioner. The Clerk of this Court is directed to refuse and return any document filed by or on behalf of Mr. O’Connor unless signed by a member in good standing of the Florida Bar. Appellant shall have thirty days from date of this order to secure the services of counsel, who shall file a notice of appearance, in any other active case before this Court where Mr. O’Connor is currently representing himself. Any case in which such a notice is not timely filed will be dismissed by order of this Court. This case is affirmed without further comment.

AFFIRMED.

LEWIS, C.J., THOMAS, and MAKAR, JJ., concur.

      . O’Connor v. Watts, 110 So.3d 441 (Fla.2013) (dismissing case for lack of jurisdiction). The petition for review in the supreme court was filed before O’Connor's Initial Brief in this case was filed.


author: DAVIS, Chief Judge.

text:
    Stephen SINATRA and Janice Sinatra, Appellants, v. Arthur BUSSEL, Lori Ann Bussel, John A. Balog, and Somers Title Company, Appellees.
    No. 2D12-1031.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.

      Timothy W. Weber of Weber, Crabb & Wein, P.A., St. Petersburg, for Appellants.
    Charles F. Johnson and Marisa J. Davies of Blalock Walters, P.A., Bradenton, for Appellees.
   DAVIS, Chief Judge.

Stephen Sinatra and Janice Sinatra, his wife, appeal the final summary judgment entered in favor of John A. Balog in their declaratory action against Mr. Balog. The Sinatras and Mr. Balog purchased separate condominium units from Arthur and Lori Ann Bussel. Based on the deeds involved in the transactions, both the Sina-tras and Mr. Balog believed that they had purchased a dock and boat slip as part of their individual transactions with the Bus-sels. The trial court determined that as a matter of law the Bussels did not have authority to convey their interest in the dock and boat slip to the Sinatras and that title vested in Mr. Balog. We affirm.

The Bussels owned a condominium unit in a development phase known as The Sterling. As the owners of the unit, they also owned interest in a dock and boat slip that are described in The Sterling’s recorded Declaration of Condominium as a limited common element. This dock and boat slip was designated as appurtenant to the Bussels’ unit for their exclusive use. The Declaration of Condominium provided that ownership of individual docks and boat slips could be transferred without having to transfer ownership of the condominium unit but only to an owner of another unit in The Sterling.

Several years after the development of The Sterling, a second phase of development was constructed and named Sunset Watch. The Bussels purchased a second condominium unit in Sunset Watch. As a part of the development of Sunset Watch, the Declaration of Condominium was amended to allow for the leasing of docks and boat slips assigned to units in The Sterling to owners of units in Sunset Watch. The Bussels later sold their unit in Sunset Watch to the Sinatras. As a part of that transaction, the Bussels gave to the Sinatras a quit claim deed purportedly transferring their ownership interest in the dock and boat slip assigned to then-unit in The Sterling.

Subsequently, the Bussels sold their unit in The Sterling to Mr. Balog. The deed in that transaction included a description of the limited common element of the dock and boat slip. Mr. Balog then sought to exclude the Sinatras from the use of the dock and boat slip. The Sinatras filed a complaint for declaratory judgment, seeking to establish that title to the dock and boat slip vested in the Sinatras pursuant to the quit claim deed executed in their favor prior to the deed of conveyance given to Mr. Balog. Both the Sinatras and Mr. Balog filed competing motions for summary judgment, agreeing on the facts and requesting that the issue be decided as a matter of law. Attached to the Sinatras’ motion was an amended Declaration of Condominium, which had been recorded in 2001.

At the hearing on the motions, Mr. Ba-log argued that the Bussels were without authority to transfer their interest in the limited common element to anyone other than another owner of a unit in The Sterling. He argued that because there was no authority given to “strip” the ownership of the dock and boat slip from The Sterling unit and transfer it to a person who was not an owner of another unit in The Sterling, the quit claim deed was a nullity and the deed transferring The Sterling unit and the limited common element appurtenant to it vested title of the dock and boat slip in his name.

The trial court gave the Sinatras an opportunity to submit any other recorded amendments to the original Declaration of Condominium that would allow the Bussels to transfer their interest in the limited common element to a Sunset Watch unit owner. The Sinatras failed to submit such an amendment following the hearing, and the trial court therefore granted Mr. Ba-log’s motion for summary judgment. A final judgment declaring that title to the dock and boat slip vested in Mr. Balog was entered. It is this final judgment that the Sinatras currently appeal.

On appeal, the Sinatras argue that the dock and boat slip do not fit the definition of a limited common element. They note that section 718.401(1), Florida Statutes (2005), provides that for a declaration of condominium to be effective on leased land, the lease must be for a minimum of fifty years. They argue that because the submerged land lease from the State of Florida to The Sterling was for a term of only five years, the land — and the dock and boat slip located thereon — do not meet the definition of a limited common element. However, they maintain that the submerged land lease gave the condominium association the right to grant a license for the dock and boat slip and that because the condominium association approved the Bussels’ quit claim deed to the Sinatras, that deed essentially was a valid license. Thus, the Sinatras argue that the trial court erred in determining that Mr. Balog had exclusive use of the dock and boat slip by virtue of his ownership of the interest in the limited common element. However, because the Sinatras did not raise the issue in the trial court, we cannot address it on appeal. See Presley v. Szerdi, 708 So.2d 335, 336 (Fla. 4th DCA 1998) (“Appellants’ theory ... was not raised below and therefore cannot be raised on appeal.”).

The only remaining issue that must be resolved is whether the Bussels had authority to transfer their ownership interest in the limited common element to the Sinatras. Our analysis starts with the general principle that an interest in a limited common element is not subject to separation from interest in the unit to which it is assigned and cannot be transferred apart from transferring ownership of the unit to which the limited common element is assigned. See Brown v. Rice, 716 So.2d 807, 809 (Fla. 5th DCA 1998).

However, section 718.106(2)(b) provides as follows:

(2) There shall pass with a unit, as appurtenances thereto:
(b) The exclusive right to use such portion of the common elements as may be provided by the declaration, including the right to transfer such right to other units or unit owners to the extent authorized by the declaration as originally recorded, or amendments to the declaration adopted pursuant to the provisions contained therein.

The subsection goes on to describe the conditions required for “the transfer of use rights with respect to limited common elements.” Id. This subsection provides for the possibility of the transfer of the rights in the limited common element without the necessity of transferring the ownership interest in the unit itself. Id.

As previously described, The Sterling’s original Declaration of Condominium only provided for the independent transfer of the limited common element to another unit owner in The Sterling. The Sinatras argue that the amendment to The Sterling Declaration. — recorded prior to the Bus-sels’ executing the quit claim deed — provided the Bussels, as owners of the unit in The Sterling to which the interest in the limited common element was assigned, the authority to independently transfer their interest in the dock and boat slip to the Sinatras as owners of a unit in Sunset Watch. The analysis then turns on the provisions of the amendment attached to the Sinatras’ motion for summary judgment.

This amendment to The Sterling’s Declaration of Condominium was recorded in the official records of Pinellas County in 2001. The amendment provides authority for a unit owner in The Sterling to lease the dock and boat slip to an owner of a unit in the “Phase II” property, which is understood to be Sunset Watch. The amendment further specifies that the lease must be for a term that does not exceed the term of the submerged land lease and that the leasing of the limited common element does not “release or discharge unit owner(s) to whom such boat slip has been assigned as a limited common element from compliance with all obligations and duties, including without limitation the timely payment of any assessments and special assessments pertaining to the boat slip.” By the clear language of the amendment, it does not provide for the transfer of the ownership interest in the limited common element, as was attempted by the Bussels in this case.

Accordingly, the Bussels were without authority to transfer their ownership interest in the dock and boat slip to the Sina-tras. As a result, the quit claim deed purporting to transfer ownership of the dock and boat slip from the Bussels to the Sinatras is a nullity, and the ownership interest remained with the Bussels. See generally Wilson v. Kelley, 226 So.2d 123, 128 (Fla. 2d DCA 1969) (“A quitclaim deed only purports to transfer whatever interest the grantor may have had in the land.”); see also Brown, 716 So.2d at 808 (noting that a condominium owner generally does not possess the authority to convey a limited common element without also conveying its attached unit). The subsequent execution of the deed in favor of Mr. Balog with the interest in the limited common element described therein properly conveyed that interest along with the ownership interest in their unit in The Sterling to Mr. Balog as permitted by the relevant statutes and the recorded Declaration. The trial court therefore was correct to grant final judgment in favor of Mr. Balog and vest title in his name.

Affirmed.

WALLACE and MORRIS, JJ., Concur.

      . The dock and boat slip are constructed over submerged lands to provide access to navigable waters, and thus they are located on property owned by the State of Florida and leased to the condominium. But because the tangible dock and boat slip is a limited common element that is appurtenant to an individual condominium unit, pursuant to section 718.103(19), Florida Statutes (2005), the unit owner has a property interest in the dock and boat slip that is transferable as contemplated by the Declaration of Condominium.

      . It is alleged that the inclusion of this interest was by mistake and that the bill of sale clearly indicated that the interest in the dock and boat slip was not included in the purchase of the unit.


text:
    Mark Andrew KALINA, Petitioner, v. The SECOND JUDICIAL CIRCUIT COURT, The Honorable Judge Terry R. Lewis, Respondents.
    No. 1D13-1818.
    District Court of Appeal of Florida, First District.
    July 11, 2013.
    Rehearing Denied Aug. 22, 2013.
    Mark Andrew Kalina, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    William R. BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2677.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Aug. 28, 2013.
    William R. Bryant, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED.

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Eric THEORGOOD, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-2978.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Aug. 22, 2013.
    Eric Theorgood, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Arthur COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2973.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Aug. 27, 2013.
    Arthur Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

WOLF, ROBERTS, and RAY, JJ., concur.