author: DAMOORGIAN, J. GROSS, C.J., PER CURIAM. GROSS, C.J.,

text:
    William Martin MATHERS, Appellant, v. Nancy Virginia BROWN, Appellee.
    No. 4D08-1470.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 2009.
    Opinion Denying Rehearing Dec. 9, 2009.

      Barbara J. Compiani, Jane Kreusler-Walsh, of Kreusler-Walsh, Compiani & Vargas, P.A., and James R. Rich of the Law Office of James R. Rich, P.A., West Palm Beach, for appellant.
    John D. Boykin of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee.
   DAMOORGIAN, J.

William Mathers (the husband) appeals the trial court’s Final Judgment of Dissolution of Marriage between himself and Nancy Brown (the wife). We affirm.

The relevant facts are as follows. The parties met in 2001 at the husband’s college reunion. At the time, the husband was fifty-seven. The wife initially told the husband that she was forty-six, but later told him she was thirty-nine. The husband was excited to learn that she was only thirty-nine because he wanted to have children. After living with each other for a period of time, the parties decided to wed. One of the husband’s main reasons for marrying the wife was so they could start a family.

In January of 2008, the parties married. On the marriage application, the wife stated that she was born in 1961 and was forty-one. Unfortunately, the marriage failed and the parties separated less than four years later in November of 2006. In January of 2007, the husband learned for the first time that the wife was born in 1951, rather than 1961, making her forty-nine when they met, not thirty-nine.

A few months later, on March 13, 2007, a petition for dissolution of marriage was filed. The only issue before the trial court was the distribution of the parties’ assets, with the main dispute centering on the marital versus nonmarital status of the appreciation in the husband’s stock portfolio. While the parties essentially agreed as to the value of the husband’s portfolio at the start of the marriage and at separation, they disagreed as to the appropriate method for calculating the marital appreciation.

During a hearing on the petition for dissolution, the wife argued that the entire appreciation of the husband’s portfolio was a marital asset, while the husband argued that only the active appreciation was a marital asset. To determine the passive appreciation, the husband argued that the Standard & Poor’s 500 Index should be used as a benchmark.

At the close of the hearing, the trial court made initial findings that it would accept the date for valuation as the date of filing the petition. It then adopted the husband’s starting and ending valuation of the stock portfolio as $4,371,702 and $7,993,088, respectively. The trial court then excluded $788,569 from the portfolio as nonmarital, consisting of the husband’s $425,000 boat sale, $38,804 life insurance proceeds, $121,399 inheritance, $200,330 partnership income, and $3,036 certificates of deposit. The court did not rule on the $2,832,817 appreciated value in the husband’s portfolio until it announced its oral rulings on February 15, 2008. At that time, the court concluded that the entire increase in the husband’s portfolio was marital because he personally traded his portfolio.

On March 18, 2008, the trial court entered its final judgment of dissolution. The court found that the wife lied to the husband about her age, her assets, and her interest in having childi’en and her ability to do so. Because the husband believed these lies, he married the wife and did not insist upon a prenuptial agreement. The court noted that because the wife had withdrawn her alimony and attorney’s fees claims, the only issues to be resolved concerned equitable distribution, and the main dispute was the marital appreciation of the husband’s nonmarital stock accounts.

The trial court stated that the definition of marital assets in section 61.075(5)(a), Florida Statutes (2007), includes the enhancement of value of nonmarital assets resulting from the efforts of either party during the marriage. The trial court then explained that the burden is on “the spouse who wishes to show that an increase in the value of assets during the marriage is nonmarital property.” For such appreciation to be passive and, therefore, nonmarital, the increase in value must be “purely the result of time and market conditions.”

After recognizing that the husband conceded his active efforts contributed to the appreciation in his portfolio, the court rejected the husband’s argument that, under Chapman v. Chapman, 866 So.2d 118 (Fla. 4th DCA 2004), “the increase in value should be offset by an amount equal to the increase that stocks on the Standard & Poor’s 500 Index sustained over the period of the marriage.” The court reasoned,

The major problem with the Husband’s argument is that he did not, in fact, invest in a manner consistent with the S & P 500 Stock Index, inasmuch as he bought and sold only a few S & P 500 stocks after the initial sell-off of his managed nonmarital assets. Instead, he bought and sold many foreign stocks and foreign index funds throughout the world. He was also involved heavily in commodities and currency training. The Husband made over 700 separate trades during the marital time frame. The S & P 500 Stock Index assumes a buy/hold strategy where stocks are purchased, not sold, and are held for a long period of time. As a result, the Court finds that any index, whether it be the suggested S & P 500 Stock Index, or any other one available for analysis during the term of the parties’ marriage, would be entirely speculative. The Husband has also presented insufficient evidence that any increase in the value of his investments was purely the result .of time and market conditions. In light of the foregoing, the Court will not apportion and offset the growth from the Husband’s stock account by any index factor and, as a result, all of said $2,832,817.00 is a marital asset.

The trial court found justification for an unequal distribution of the marital value of the husband’s stock account based on: (1) the economic windfall to the wife that resulted solely from her having an outside management company trade her portfolio, while the husband personally traded his; (2) the lack of any showing that the parties intended the growth in their stock accounts to be treated differently; (3) the short duration of the marriage; (4) the acknowledged fact that the husband’s account would have passively grown hundreds of thousands of dollars in value, even if left as it was at the time of the marriage; (5) the possibility that the husband would have required a prenuptial agreement if the wife had not lied about her age and net worth; and (6) the fact that the husband’s accounts had supported the parties during the marriage, allowing the wife’s nonmari-tal account to grow without deduction. The court concluded that “it would be unjust and contrary to the concepts of equity to equally distribute the marital portion of the husband’s account, but keep the entire growth of the wife’s account during the marriage as a nonmarital asset.” The court ordered an unequal distribution of the marital growth of the husband’s brokerage account: $1,832,817 to the husband and $1,000,000 to the wife.

The court then awarded “prejudgment interest on [the wife’s] equitable distribution payment of $1,000,000 from the date of filing to the date of this judgment at the statutory rate of 11 percent. Further, that sum shall accrue at the rate of 11 percent until paid to [the wife] in full.”

On appeal, the husband contends that the trial court erred when it declined to apportion his portfolio’s appreciation among passive and active factors, as mandated by this Court in Chapman. The wife responds that the trial court correctly declined to apportion the appreciation because the husband invested in a manner inconsistent with the S & P 500 Index and presented no evidence of any other passive appreciation index. Any apportionment, therefore, would have been based purely on speculation.

While the standard for reviewing a trial court’s equitable distribution is generally abuse of discretion, Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003), the trial court’s determination is reviewed de novo when the issue on appeal, as here, concerns a pure issue of law. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (citation omitted).

Section 61.075(5)(a)(2), Florida Statutes (2007), defines a marital asset as “[t]he enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage.” Both parties in this case agree that the husband actively managed his stock portfolio and thus, the appreciation is at least in part a marital asset. The point of contention, however, concerns how much of this appreciation is a marital asset and how much is a nonmarital asset. Because the trial court determined that the entire amount of appreciation was a marital asset, the issue on appeal is whether the trial court erred in reaching such decision.

The basis for the trial court’s decision was that the husband failed to meet his burden in establishing that any portion of the increase in his portfolio was due to passive market conditions. See O’Neill v. O’Neill, 868 So.2d 3, 5 (Fla. 4th DCA 2004) (“[0]nce it is established that marital labor was used, the burden falls to the party claiming that the increase is nonmarital to establish whether any part of the increase was the result of passive market conditions and, thus, is exempt from equitable distribution.”); see § 61.075(7), Fla. Stat. (2007). We agree with the trial court that the husband failed to meet his burden. Although the husband argued that the S & P 500 Index should be used as a benchmark, he never presented any evidence explaining why this was an appropriate benchmark to determine the increase in the husband’s account due to passive market conditions. Rather, his accountant testified as to why that index would be proper to evaluate the husband’s overall investment performance, stating that the S & P 500 Index was a “very important benchmark” used by financial planners and brokerage houses “to measure individual portfolios as to performance.” Because of its widespread acceptability in both legal and financial arenas, she testified that it was “the most appropriate index under the circumstances.”

After hearing testimony from the accountant, the trial court voiced its concern regarding whether the S & P 500 Index “fairly reflect[ed] the growth of the husband’s portfolio,” which contained many foreign stocks. In response, the husband’s attorney cited Chapman for the proposition that the S & P 500 Index is always the benchmark for a stock portfolio. Although we approved the testimony of an expert who used the S & P 500 Index in that case to measure passive appreciation of a stock portfolio, we did not declare that the index was appropriate to evaluate passive appreciation in every stock portfolio. 866 So.2d at 118-19. On the contrary, the burden falls on the party claiming that the increase is nonmarital to establish by competent evidence why a particular index is appropriate to measure passive appreciation. O’Neill, 868 So.2d at 5. Because there was no testimony supporting the use of the S & P 500 Index in this case, the trial court did not err in refusing to rely on the index.

We also disagree with the husband’s contention that the trial court erred in awarding the wife prejudgment interest on her equitable distribution payment. The decision to award prejudgment interest is within the trial court’s discretion and will not be disturbed absent an abuse of such discretion. See Catalfumo v. Catalfumo, 704 So.2d 1095, 1100 (Fla. 4th DCA 1997) (citing Morris v. Morris, 724 P.2d 527 (Alaska 1986)). In exercising its discretion, a trial court should consider factors such as “the length of the separation, the time between the equitable divorce date and the final judgment, the amount of potential interest, whether the marital property itself earned interest during the separation, whether there was undue delay in bringing about the final judgment, and anything else it deems important.” Morris, 724 P.2d at 530 n. 10.

Taking into account the criteria set forth in Morris, we conclude that the trial court did not abuse its discretion in awarding prejudgment interest from the date the petition was filed. The trial court was entitled to compensate the wife from the time that she was entitled to but did not have access to the money. Catalfumo, 704 So.2d at 1100 (citing Morris, 724 P.2d at 529). As we explained in Catalfumo, “awarding prejudgment interest ‘is not to penalize the losing party, but rather to compensate the successful claimant for losing the use of the money between the date he was entitled to it and the date of judgment.’” Id. (citing Morris, 724 P.2d at 530). A corollary purpose is to “eliminate the incentives to litigate a case or prolong judgment.” Morris, 724 P.2d at 529. We caution, however, that “[a] party in a divorce proceeding is not ‘entitled’ to such interest in every case, because the trial court must have broad discretion to determine the most equitable distribution of marital property under the particular circumstances.” Id.

Accordingly, we affirm the trial court’s order in all respects.

GERBER, J., concurs.

GROSS, C.J., concurs specially with opinion.

GROSS, C.J.,

concurring specially.

The trial judge did not use the S & P 500 Index to measure passive appreciation of the husband’s premarital brokerage account, so the wife received assets that had appreciated not only “from the efforts” of the husband, but which had grown in value because of market forces. Because the husband presented no evidence justifying the use of the S & P 500 Index in this case, I agree with the majority that the trial judge did not abuse his discretion in refusing to apply it.

The husband actively traded in his brokerage account. After subtracting deposits from nonmarital sources, the amount by which the date of filing value of the husband’s brokerage account exceeded its value on the date of the marriage was “presumed” to be a marital asset. § 61.075(7), Fla. Stat. (2007). Since he claimed that a portion of the increase was non-marital, the burden was on the husband “to establish whether any part of the increase was the result of passive market conditions and, thus, is exempt from equitable distribution.” O’Neill v. O’Neill, 868 So.2d 3, 5 (Fla. 4th DCA 2004); § 61.075(7), Fla. Stat. (2007). Given the absence of testimony to support the use of the S & P 500 Index in this case, the trial judge did not err in refusing to rely on it.

In most cases, when there is expert testimony to support the use of a recognized stock index to measure passive appreciation in a portfolio, the party offering the index will satisfy its initial burden of proof to show that a portion of the account is nonmarital. When it comes to determining the effects of marital “efforts” on an asset under section 61.075(5)(a)(2), Florida Statutes (2007), a brokerage account containing stocks is unlike a small business owned by one of the spouses. The growth of a business run by a spouse is directly attributable to marital efforts. While a spouse may decide to purchase a stock in a brokerage account, unless the spouse is Warren Buffett, the appreciation in value of the stock is unrelated to the spouse’s decision to purchase it. A stock’s appreciation depends on the way in which the company is run and on how the market values the company’s prospects. A stock index is one way of measuring the effect of market forces which are unrelated to marital efforts.

In a rising world market such as the 2003-2007 one in this case, where the holdings in a brokerage account have appreciated in value, there will always be an element of passive appreciation due to market forces. For this reason, a recognized index such as the S & P 500 Index, the Wilshire 5000 Total Market Index, or the FTSE All-World Index should be used to measure passive factors influencing the appreciation of a stock portfolio. Stock indexes are commonly used by investment fund managers as an inexpensive way to buy a diversified portfolio of stocks. The price of a stock index fluctuates with the price of the underlying basket of stocks that the index represents. The S <& P 500 might well have been appropriate to measure passive appreciation in this case; that index includes 500 large-capitalization, actively traded common stocks, many of which have international operations, and is considered a bellwether for the American economy. However, the husband traded many foreign stocks and there was no testimony to allay the trial judge’s concern that that index was not proper here. This case thus turns on a failure of proof.

As the trial judge noted, our interpretation of Chapter 61 in this area has created a distinction between people who turn their premarital investments over to paid advisors and those who actively manage their brokerage accounts; the appreciation created by active managers is a marital asset, while those who rely on money managers, or who trade only a de minimis amount, maintain the non-marital status of the account.

Why we have adopted this distinction is unclear. The decision to hire an investment manager is a marital “effort” within the meaning of the statute, if only slightly so; the decision to purchase 1,000 shares of Apple stock in 2004 and to hold it until 2007 would have involved marital “effort” that generated a large gain, but it would fall under the one trade de minimis rule of Steele v. Steele, 945 So.2d 601 (Fla. 4th DCA 2006). Section 61.075(5)(a)(2). defines a “marital asset” as including an “enhancement in value and appreciation” resulting from “the efforts” of a party during the marriage; it does not distinguish between a great effort and a little one. Our decisions in this area appear to have departed from the language of the statute.

Here, the wife entered the marriage with $1,267,862 in premarital assets. All of her assets were managed by Bessemer Trust. At the time the divorce action was filed, the account was worth $2,067,044. Presumably because the wife did not actively manage her account, the husband made no claim on the appreciation of the wife’s holdings. As the trial judge observed, based on our decision in Steele, because the wife “allowed an outside management company to trade her portfolio,” the increase in value of her account was “non-marital to her.” The law has not led to a fair result in this case.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing and rehearing en banc is denied.

DAMOORGIAN and GERBER, JJ., concur.

GROSS, C. J., concurs specially with opinion.

GROSS, C.J.,

concurring specially in the denying of the motion for rehearing and rehearing en banc.

Appellant’s motion for rehearing en banc was directed at the issue of prejudgment interest. In the proper case, when the issue is before us, this court should recede en banc from Chapman v. Chapman, 866 So.2d 118 (Fla. 4th DCA 2004), and O'Neill v. O’Neill, 868 So.2d 3 (Fla. 4th DCA 2004). Read together, these cases hold that the appreciation in the value of a non-marital brokerage account during a marriage is a marital asset to the extent that it exceeds the passive appreciation in the brokerage account as measured by an appropriate stock index. These cases have gone beyond the language of the statute to create complexity where a spouse brings assets to a marriage.

Chapman and O’Neill involved the application of two subsections of section 61.075, Florida Statutes (2008). First, subsections 61.075(6)(a)l.a. and b. include in the definition of “marital asset”:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
b. [T]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

Second, under subsections 61.075(6)(b)l., and 3., “nonmarital assets” include:

1. Assets acquired ... by either party prior to the marriage, and assets acquired ... in exchange for such assets
3. All income derived from nonmari-tal assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset.

It is the individual securities in a brokerage account that are chapter 61 “assets,” not a brokerage account as a whole. Our case law improperly focuses on the appreciation of the account rather than the assets held in it.

These statutes do not require that appreciation of stocks in a non-marital brokerage account during a marriage be treated as marital assets. It is the individual stocks that are the “assets” in a brokerage account and the stocks do not appreciate as a result of marital effort. Chapter 61 does not define an asset. One common definition is an “item that is owned and has value.” Black’s Law Dictionary 125 (8th ed.2004). When it comes to a brokerage account containing individual stocks that a spouse brings into the marriage, it is the individual stocks that are the “assets” and not the brokerage account as a whole. The brokerage account is simply a convenient holding and trading mechanism for the many different stocks a person may own. The statute uses the term “asset” to connote something that can be “acquired,” something that can be bought and sold. It is the individual stocks that are “acquired” in the brokerage account, not the account itself. It is the individual stocks that appreciate. If a spouse owns stock in a non-marital brokerage account, unless a spouse is an officer or director of the company, the stock cannot be said to appreciate “from the efforts” of that spouse during the marriage. The stock does not know who owns it. Appreciation in the value of a typical stock is due to the management of the company and market forces, not to the spouse’s decision to include the stock in a portfolio. Until Chapman, a reasonable reading of the statute was that it covered the direct expenditure of “marital effort” on an asset, such as working in a small business or renovating a piece of real estate, and not the decision to own a stock.

This narrow view of an “asset” finds support in Chapter 61. The statutory definition of non-marital assets contemplates that assets in a brokerage account can be bought and sold without altering the non-marital designation of the assets in the account. Non-marital assets include “assets acquired ... prior to the marriage, and assets acquired ... in exchange for such assets.” § 61.075(6)(b)l., Fla. Stat. (2008). If a non-marital stock is sold during the marriage, and other stocks, bonds, or mutual funds are acquired, they are acquired “in exchange” for the non-marital assets and should retain their non-marital character.

This was not a case where the husband’s premarital brokerage account swelled because of the contribution of marital funds. But for Chapman and O’Neill, I would reverse the trial court’s determination and hold that the entire amount of the husband’s account was non-marital.

      . While the husband actively bought and sold stocks, he did not engage in a computerized or other trading strategy that profited off short term price movements.

      . Barron's Dictionary of Finance and Investment Terms defines an "index” as a
      statistical composite that measures changes in the economy or in financial markets, often expressed in percentage changes from a base period or from the previous month.... Indices also measure the ups and downs of stock, bond, and commodities markets, reflecting market prices and the number of shares outstanding for the companies in the index. Some well-known in-dices are the Dow Jones Averages, the New York Stock Exchange Composite Index, the American Stock Exchange Composite Index, the Standard & Poor’s 500 Index, the NASDAQ Composite Index, the Russell 2000 Index and the Value Line Composite Index.
      John Downes & Jordan Elliot Goodman, Barron’s Dictionaiy of Finance and Investment Terms 273-74 (5th ed. 1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Meldon RICH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5976.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2009.
    Rehearing Denied Nov. 18, 2009.

      Meldon Rich, pro se, Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Meldon Rich appeals the denial of a petition styled “Emergency Petition for Writ of Habeas Corpus.” We affirm.

Rich is serving two concurrent terms of life imprisonment following his conviction for first degree felony murder and sexual battery with physical force. His conviction and sentence were affirmed by this court. Rich v. State, 791 So.2d 465 (Fla. 1st DCA 2001).

Rich filed an emergency petition for a writ of habeas corpus in the circuit court of Escambia County on September 22, 2008. A petition for a writ of habeas corpus generally may not be used to collaterally attack a conviction or sentence. Instead, a collateral challenge to a judgment of conviction and sentence must be raised in a motion filed under rule 3.850, Florida Rules of Criminal Procedure, and not in a petition for a writ of habeas corpus. See Baker v. State, 878 So.2d 1236 (Fla.2004). Rich has already sought relief pursuant to rule 3.850, and the merits of this petition were considered by a circuit court. Thus, even if the habeas petition were treated as a motion under rule 3.850, it would be impermissible as successive, Hutto v. State, 981 So.2d 1236 (Fla. 1st DCA 2008), and as untimely, since Rich’s convictions for murder and sexual battery became final in 2001. Rule 3.850(b) (imposing a two-year window of time to file a motion for post-conviction relief in a non-capital case).

Rich claims in his petition that he was convicted of a non-existent crime, and hence, fundamental error occurred. More particularly, Rich claims that because the prosecution argued that Rich strangled the victim to death and then sexually battered her, the prosecution did not prove sexual battery. Sexual battery cannot be committed on a deceased person. Jones v. State, 569 So.2d 1234 (Fla. 1990); Owen v. State, 560 So.2d 207 (Fla. 1990), vacated on other grounds, State v. Owen, 696 So.2d 715 (Fla.1997). The circuit court, in denying habeas relief, held that ample evidence was presented below which would allow the jury to find that the sexual battery commenced while the victim was alive. Indeed, Rich claimed at trial that the sexual encounter was consensual. The issue of whether the victim was dead or alive at the time of sexual union is an issue of fact to be determined by the jury. Davis v. State, 70S So.2d 1055 (Fla.1997). We find no error in the circuit court’s ruling or reasoning.

AFFIRMED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.

      . Rich's emergency petition reflects that at the time of its filing Rich was in custody in Hamilton County. A petition for habeas corpus should be filed in the circuit where the movant is located. See Heard v. Fla. Parole Comm’n, 811 So.2d 808 (Fla. 1st DCA 2002). Rich's petition should have been dismissed below because it was filed in a circuit which did not have jurisdiction over him.


author:
CANADY, Associate Judge.
      SILBERMAN, Judge,

text:
    Dwight E. BROCK, Clerk of the Circuit Court of Collier County, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, as ex-officio the Governing Board of the Ochopee Area Fire Control and Emergency Medical Care Special Taxing District a/k/a the Ochopee Fire District, a Municipal Services Taxing Unit pursuant to Section 125.01(l)(q), F.S., and on behalf of Collier County, a Political Subdivision of the State of Florida; Linda T. Swisher; and Paul Wilson, Appellees.
    No. 2D07-4549.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2009.
    Rehearing Denied Nov. 13, 2009.

      David P. Ackerman and Glory P. Ross of Ackerman Link & Sartory, P.A., West Palm Beach, Anthony P. Pires, Jr. and Steven V. Blount of Woodward, Pires & Lombardo, P.A., Naples, and Jon L. Mills and Timothy McLendon, Gainesville, for Appellant.
    Theodore L. Tripp, Jr. of Garvin & Tripp, P.A., Fort Myers, Jacqueline W. Hubbard of Office of the County Attorney, Naples, and Elisa S. Worthington of Elisa S.Worthington, P.A., Pineland, for Appel-lee Board of County Commissioners of Collier County.
    No appearance for Appellees Linda T. Swisher and Paul Wilson.
    Fred W. Baggett and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Amicus Curiae Florida Association of Court Clerks.
    Herbert W.A. Thiele, Tallahassee, for Amicus Curiae Florida Association of County Attorneys, Inc.
    Walter T. Dartland, Tallahassee, for Amicus Curiae Common Cause.

      . Judge Fulmer has been substituted for Judge Stringer, an original panel member in this proceeding, and she has viewed and listened to a recording of the oral argument.

   CANADY, Associate Judge.

In this case involving a dispute between appellant, the Clerk of the Circuit Court of Collier County (Clerk), and appellee, the Board of County Commissioners of Collier County, we consider questions concerning the scope of the powers exercised by the Clerk acting in his capacity as county auditor and custodian of all county funds.

The establishment by county employees of a checking account for a fire district controlled by the county precipitated the dispute underlying this litigation. Although the funds in the fire district checking account were ultimately surrendered to the Clerk, the litigation of a declaratory judgment action instituted by the Clerk and quo warranto proceedings instituted by the county moved forward. In the declaratory judgment action, the Clerk sought a determination that it was appropriate for him to make inquiries regarding an account such as the fire district account and to obtain custody of the funds contained in the account. In addition, the Clerk sought a determination that certain other actions were within the scope of his powers with respect to the county’s fiscal affairs. In the quo warranto proceedings, the county sought a judgment limiting the Clerk’s activities related to the county’s fiscal affairs.

In the consolidated declaratory judgment and quo warranto proceedings, the circuit court entered summary judgment in favor of the county. On appeal, the Clerk challenges the circuit court’s ruling on three issues. First, the Clerk challenges the ruling that the Clerk has no authority to investigate the status of county funds which were not in the actual custody of the Clerk. Second, the Clerk challenges the ruling that the Clerk is not authorized to conduct postpayment internal audits concerning county expenditures. Third, the Clerk challenges the ruling that the Clerk does not have independent authority to prepare the county’s financial statements.

With respect to the third issue, the trial court ruled that “the Clerk’s authority to prepare financial statements on behalf of the County is not derived from a specific grant of constitutional or statutory power, but rather is derived from a delegation of authority by the Board of County Commissioners” and that the “scope of this delegation is within the discretion of the Board of County Commissioners, and may be granted, removed or modified.” We affirm the trial court’s ruling on this issue without further comment. With respect to the other two issues, however, we reverse the trial court’s ruling for the reasons we explain below.

On the issue of the Clerk’s power to investigate county funds which are not in the Clerk’s custody, the circuit court ruled as follows:

[T]o the extent that the Clerk is the custodian of all County funds, he necessarily can only be the custodian of those funds to which he has been given custody, which would presumably encompass all County funds. Even if the Clerk becomes aware or suspects that there are County funds of which he has not been given custody, this Court is unaware of any constitutional or statutory authority that would allow the Clerk to initiate an independent investigation or attempt to recover those funds, absent instruction from the Board of County Commissioners.

The court went on to state that this “does not preclude the Clerk from seeking authority to pursue these funds or making these funds known to any appropriate authority, but ... the Court cannot acquiesce to the Clerkfs] making unilateral investigations into these funds.” On the issue of the Clerk’s authority to conduct postpayment audits with respect to county expenditures, the circuit court ruled as follows:

[P]rior to signing any warrant for the payment of any claim, bill or indebtedness from county funds, the Clerk is required to insure that the payment is lawful. Consequently, any auditing necessary to insure the legality of the expenditure prior to the payment is proper. However, the Court is unable to find that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant is signed, unless so directed by the Board of County Commissioners.

Article 8, section 1(d) of the Florida Constitution provides that “[w]hen not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.” There is no special law or charter provision divesting the Clerk of the duties specified in this constitutional provision. As is the case with other state and county officers, the powers and duties of the clerk of the circuit court “shall be fixed by law.” Art. II, § 5(c), Fla. Const. Section 28.12, Florida Statutes (2007), provides that the “clerk of the circuit court shall be clerk and accountant of the board of county commissioners,” and that the Clerk “shall keep the minutes and accounts and perform such other duties as provided by law.” Section 136.08, Florida Statutes (2007), provides that the “accounts of each and every board and the county accounts of each and every depository ... shall at all times be subject to the inspection and examination by the County auditor.” Section 136.06(1) requires that checks or warrants drawn on county accounts shall be “attested by the clerk.” Section 129.09, Florida Statutes (2007), imposes both personal civil liability and criminal liability on any clerk of the circuit court acting as county auditor who signs a warrant for any illegal or unauthorized payment of county funds.

“A statutory grant of power or right carries with it by implication everything necessary to carry out the power or right and make it effectual and complete.” Deltona Corp. v. Fla. Pub. Serv. Comm’n, 220 So.2d 905, 907 (Fla.1969).

It is the well settled rule in this state that if a statute imposes a duty upon a public officer to accomplish a stated governmental purpose, it also confers by implication every particular power necessary or proper for complete exercise or performance of the duty, that is not in violation of law or public policy.

Peters v. Hansen, 157 So.2d 103,105 (Fla. 2d DCA 1963); see also Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789, 792 (1919).

We conclude that the trial court’s ruling prohibiting the Clerk from investigating county funds that have not been placed in his custody unduly limits the Clerk’s ability to carry out his responsibilities as the custodian of all county funds. A public officer with the right and responsibility to maintain custody of public funds necessarily has the authority both to investigate circumstances in which public funds have wrongfully been withheld from the officer’s custody and to seek to obtain custody of the withheld funds. Restricting the Clerk’s authority to do so is inconsistent with the goal of protecting public funds from misappropriation, and it is inconsistent with the effectual and complete exercise of the Clerk’s authority as custodian of all county funds. We make no comment on the availability of any specific legal processes that the Clerk may seek to utilize in investigating county funds that have been withheld from his custody.

Similarly, we conclude that the trial court’s ruling prohibiting postpayment audits is inconsistent with the Clerk’s statutory power to inspect and examine all county accounts at all times and with the Clerk’s statutory duty to ensure that all payments of county funds comply with applicable legal requirements. Postpayment audits to verify the legality of payments that have been made are necessary to effectively carry out the Clerk’s duty to ensure that county funds are expended only as authorized by law. Verification of the legality of payments already made — a process which tests the soundness of existing internal controls — is directly related to ensuring that future payments are legal. To deny the Clerk the ability to conduct such postpayment audits would compromise the Clerk’s duty and power to guard against the illegal use of county funds. Such audits are distinct from the “financial audits” of financial statements defined in sections 11.45(l)(c) and 218.31(17), Florida Statutes (2007).

Affirmed in part; and reversed in part.

FULMER, J., Concurs.

SILBERMAN, J., Concurring in part, dissenting in part, with opinion.

SILBERMAN, Judge,

Concurring in

part and dissenting in part.

The majority correctly states that the issues before us involve the scope of the power of the Clerk to perform certain functions. In my view, the trial court correctly resolved the questions before it. Thus, I concur in the majority’s decision to affirm on one of the issues, but I dissent from the decision to reverse on the remaining issues.

Background

Procedurally, the Clerk brought a declaratory judgment action against the Board of County Commissioners of Collier County (the county), as ex-officio the Governing Board of the Ochopee Area Fire Control and Emergency Medical Care Special Taxing District (the fee district), and county employees, Paul Wilson and Linda T. Swisher. Wilson is the fire chief of the fire district and he supervises Swisher, an administrative secretary. The trial court entered final summary judgment in favor of the county and its employees. In cases that were consolidated with the declaratory judgment action, the county and Wilson each instituted quo warranto proceedings against the Clerk, and the trial court entered final summary judgment in favor of the county and Wilson in those actions as well. All three cases deal with the scope of the Clerk’s authority in financial matters of the county-

This dispute arose when the Clerk discovered that county employees controlled a fire district checking account in the name of “Ochopee FCD Volunteers.” The Clerk did not have custody over the funds deposited in the account, and the account was not subject to the normal financial controls of the county. The county contended that only funds raised by volunteers were deposited in the account and that the funds were used to purchase equipment for the fire department. The Clerk sought a determination that it was appropriate for him to inquire into such an account and have the employees account for and return the funds to him. The Clerk also sought a determination of the general rights and duties of the Clerk. In the quo warranto action, the county sought to prohibit the Clerk from exercising powers to which he is not entitled relating to fiscal affairs of the county.

The trial court determined that there were no disputed issues of material fact and that the determination of the rights, powers, and duties of the Clerk involved issues of law. An appellate court’s review of a trial court’s ruling on a motion for summary judgment concerning issues of law is by the de novo standard of review. Pinellas County v. City of Largo, 964 So.2d 847, 851 (Fla. 2d DCA 2007).

The Clerk and the county agreed, and the trial court found as a matter of law, that “the Clerk is the auditor, recorder and custodian of all County funds, that the Clerk is the accountant for the Board of County Commissioners, and that the Clerk has the duty to determine the legality of all County expenditures before issuing a warrant for payment.” The Clerk challenges the trial court’s rulings that the Clerk’s powers do not include (1) preparing and certifying the accuracy of the county’s financial statements; (2) controlling funds not in his custody and conducting investigations of outside bank accounts that he suspects may contain county funds; and (3) conducting internal audits beyond the Clerk’s pre-audit function required before a warrant for payment is signed.

The Clerk argues that the powers at issue are necessarily implied from a constitutional or statutory source. In Coca-Cola Co., Food Division, Polk County v. State, Department of Citrus, 406 So.2d 1079, 1081-82 (Fla.1981), the Florida Supreme Court addressed implied powers and explained that they include powers that are necessary to accomplish a stated governmental purpose and those that are necessary to carry out a power and make it effectual and complete.

The county contends that the trial court ruled properly as a matter of law because the Clerk, as a constitutional officer, has no power that is not conferred upon him by the Florida Constitution or general law. See Escambia County v. Bell, 717 So.2d 85, 87 (Fla. 1st DCA 1998) (citing White v. Crandon, 116 Fla. 162, 156 So. 303, 305 (1934)). The Clerk “only has such authority as is clearly conferred by statute or is necessarily implied from express statutory powers or duties.” Id. (citing White, 156 So. at 305). In Escambia County, the court recognized that “‘while an express power duly conferred may include implied authority to use means necessary to make the express power effective, such implied authority may not warrant the exercise of a substantive power not conferred.’ ” Id. at 88 (quoting Op. Att’y Gen. Fla. 82-95 (1982)). “ ‘[W]here there is doubt as to the existence of authority, it should not be assumed.’ ” Id. (quoting White, 156 So. at 305). With these principles in mind, I would resolve each of the issues as follows.

Preparation of Annual Financial Statements

As to this issue, I agree with the majority’s decision to affirm. The Clerk is an elected county officer, and unless otherwise provided by county charter or special law, “the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.” Art. VIII, § 1(d), Fla. Const. The powers and duties of the Clerk, as a county officer, “shall be fixed by law.” Art. II, § 5(c), Fla. Const. Section 28.12, Florida Statutes (2007), provides, “The clerk of the circuit court shall be clerk and accountant of the board of county commissioners. He or she shall keep the minutes and accounts and perform such other duties as provided by law.” Section 125.17, Florida Statutes (2007), provides, “The clerk of the circuit court for the county shall be clerk and accountant of the board of county commissioners. He or she shall keep their minutes and accounts, and perform such other duties as their clerk as the board may direct.” Thus, other than keeping the minutes and accounts, the Clerk shall perform other duties only as provided by law or as the board directs.

The Clerk must keep “books of account and of record in accordance with s. 218.33.” § 116.07, Fla. Stat. (2007). Section 218.33(2), Florida Statutes (2007), provides that a “local governmental entity shall follow uniform accounting practices and procedures as promulgated by rule of the department to assure the use of proper accounting and fiscal management by such units. Such rules shall include a uniform classification of accounts.” Section 136.05, Florida Statutes (2007), provides that “[t]he board of county commissioners shall keep an accurate and complete set of books showing the amount on hand, amount received, amount expended and the balances thereof at the end of each month for each and every fund carried by” the board.

General law does not specifically give the Clerk the duty to prepare the annual financial statements. Instead, it is the board’s duty to prepare and submit the annual financial statements. Section 218.32(l)(a) provides as follows:

218.32 Annual financial reports; local governmental entities.—
(l)(a) Each local governmental entity that is determined to be a reporting entity, as defined by generally accepted accounting principles, and each independent special district as defined in s. 189.403, shall submit to the department a copy of its annual financial report for the previous fiscal year in a format prescribed by the department. The annual financial report must include a list of each local governmental entity included in the report and each local governmental entity that failed to provide financial information as required by paragraph (b). The chair of the governing body and the chief financial officer of each local governmental entity shall sign the annual financial report submitted pursuant to this subsection attesting to the accuracy of the information included in the report. The county annual financial report must be a single document that covers each county agency.

In accord with section 218.39(1), unless the county is notified that the Auditor General will perform a financial audit in that fiscal year, the county must have an annual financial audit performed by an independent certified public accountant. Section 218.32(l)(d) requires that the county submit the audit report and financial report to the Department of Financial Services. The county argues that nowhere in the Florida Statutes is there a requirement that the Clerk prepare the financial report or that he serve as the county’s chief financial officer.

Therefore, any duty for the Clerk to prepare the financial statement is “as the board may direct.” § 125.17. Thus, the trial court properly determined that the Clerk’s authority to prepare financial statements is derived from a delegation of authority by the board and that the scope of that delegation is within the board’s discretion to grant, remove, or modify.

Power to Investigate Outside Accounts and to Collect and Deposit Funds

I disagree with the majority’s analysis of this issue and would affirm. In my view the county, and not the Clerk, has the power and the duty to investigate into accounts that are not maintained by the Clerk and to pursue remedies for wrongdoing.

The Clerk, as ex officio clerk of the board of county commissioners, is “custodian of all county funds.” Art. V, § 16, Art. VIII, § 1(d), Fla. Const. His powers and duties in this regard must be “fixed by law.” Art. II, § 5(c), Fla. Const. General law provides for county officers who are authorized to collect funds due to the county to pay those sums into the county treasury “not later than 7 working days from the close of the week in which the officer received the funds.” §§ 116.01(1), 219.07. All persons who receive county funds must turn them over to the Clerk by depositing the funds in a qualified county depository. See § 136.03. The Clerk’s duty is to keep accounts of the funds in county depositories. Section 136.08 provides that “[t]he accounts of each and every board and the county accounts of each and every depository, mentioned or provided for in this chapter, shall at all times be subject to the inspection and examination by the county auditor and by the Auditor General.” Thus, the Clerk, as county auditor, has the power to inspect and examine' the accounts in county depositories. This allows the Clerk to keep accounts of county funds.

As the county argues, the duty to collect and deposit county funds does not shift to the Clerk if the county officers fail to perform these duties. Section 219.08 provides that “[e]ach of the duties required to be performed or done under the provisions of this act which is not done or performed at or within the time or times herein prescribed shall continue to be the duty of the person charged therewith until it is actually and completely performed.” The Clerk has not pointed to any statutory provision that gives him the authority to collect funds or compel their collection, and in my view, it is not necessary to find that the Clerk has an implied power to undertake such actions when that responsibility is already specified by law as the responsibility of county officers. Therefore, I agree with the trial court’s ruling

that to the extent that the Clerk is the custodian of all County funds, he necessarily can only be the custodian of those funds to which he has been given custody, which would presumably encompass all County funds. Even if the Clerk becomes aware or suspects that there are County funds of which he has not be [sic] given custody, this Court is unaware of any constitutional or statutory authority that would allow the Clerk to initiate an independent investigation or attempt to recover those funds, absent instruction from the Board of County Commissioners.

The trial court further determined that “[t]his does not preclude the Clerk from seeking authority to pursue these funds or making these funds known to any appropriate authority, but as stated above absent any constitutional or statutory grant of power the Court cannot acquiesce to the Clerk making unilateral investigations into these funds.”

With respect to investigations, section 125.01 (l)(s), Florida Statutes (2007), gives the board of county commissioners, as governing body of the county, the power to “[m]ake investigations of county affairs; inquire into accounts, records, and transactions of any county department, office, or officer; and, for these purposes, require reports from any county officer or employee and the production of official records.” Further, section 125.01(l)(b) gives the board the power to “[p]rovide for the prosecution and defense of legal causes” on behalf of the county. Section 125.74(l)(g) gives the county administrator the power to “[supervise the care and custody of all county property.” The trial court correctly concluded, “This Court is unable to find any constitutional or statutory authority that would give the Clerk the power to investigate the nature of funds not currently in its custody or to supervise the care and custody of funds not currently in its custody or to file a lawsuit regarding those funds.”

Conducting Postpayment Audits

I also disagree with the majority’s conclusion as to this issue and would affirm. The Clerk contends that the trial court erred in concluding that the Clerk’s duty to determine the legality of payments ends once the warrant for payment is signed. The Clerk argues that no statute or case law places time limits on the actual exercise of his role to determine legality of payments. He further argues that, as a matter of modern accounting, this time restriction on his auditing role makes his job impossible. The trial court ruled as follows:

[T]he Court finds as a matter of law, that prior to signing any warrant for the payment of any claim, bill or indebtedness from County funds, the Clerk is required to insure that the payment is lawful. Consequently, any auditing necessary to insure the legality of the expenditure prior to the payment is proper. However, the Court is unable to find that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant is signed, unless so directed by the Board of County Commissioners.

The county contends that the supreme court’s decision in Alachua County v. Powers, 351 So.2d 32 (Fla.1977), supports the trial court’s ruling. In Alachua County, the supreme court addressed the clerk’s role as auditor. The Clerk contends, however, that because Alachua County determined that the clerk could not perform “post-audits” and that term has been replaced in the statutes by “financial audit” that Alachua County has no application to the internal audits the Clerk performs to assure good payment controls.

The Clerk’s constitutional and statutory l'ole as county auditor “shall be fixed by law.” Art. II, § 5(c), Fla. Const. The supreme court recognized that the clerk’s pre-audit function stems from the responsibility to refuse to sign illegal warrants and the corresponding civil and criminal liability imposed for violating this requirement. See 351 So.2d at 36; § 129.09. The court stated that “there must be some type of pre-audit review of the disbursement in order to be sure that the funds will not be used for an unlawful purpose.” 351 So.2d at 36. The court described the clerk’s role as pre-auditor of county funds but also recognized that “the board has the right to audit its own funds and make such investigations as may be necessary before the use of any public funds.” Id. at 37; see also § 125.01(l)(s) (providing for the board’s power to investigate county affairs and inquire into county “accounts, records, and transactions”); § 125.01(l)(x) (providing for the board’s power to employ an independent accounting firm to conduct audits). The court declared that

[t]he constitutional and statutory language discussed above require that the auditing function in making such an investigation be carried out by one of three entities: pre-auditing by the clerk in his capacity as county auditor, performance audit by an independent certified public accountant (or independent accounting firm), and post-audit by the auditor general or the independent auditing firm.

351 So.2d at 37. The supreme court further explained as follows:

The clerk has the authority and responsibility to perform the auditing functions both as an arm of the board in auditing the records of constitutional officers and as a watchdog of the board in the case of pre-auditing accounts of the board in determining legality of expenditure. The phrase “legality of expenditure” includes that the funds are spent for a public purpose, that the funds are spent in conformity with county purchasing procedures or statutory bidding procedures, that the expenditure does not overspend any account or fund of the budget as finally adopted and recorded in the office of the clerk. If the board becomes concerned, it has the authority to require a performance audit or post-audit by an independent accounting firm.

Id.

The term “postaudit” was defined in section 11.45(l)(c), Florida Statutes (1975), and is no longer in the statutes. Chapter 11 now contains the term “financial audit.” See § 11.45(l)(c), Fla. Stat. (2007). The Clerk does not claim to have authority to do a financial audit, because a financial audit is an external audit. Rather, he contends that Alachua County does not prohibit him from performing internal audits after transactions occur as part of determining the legality of payment. However, as the county points out, the Clerk cannot exercise any authority unless that authority is conferred upon him by law. In Alachua County, the court recognized that the clerk has the authority to inspect and examine county accounts. See 351 So.2d at 36; see also § 136.08 (“The accounts of each and every board and the county accounts of each and every depository, mentioned or provided for in this chapter, shall at all times be subject to the inspection and examination by the county auditor and by the Auditor General.”).

The Clerk cites to W & F Ltd. v. Dun-kle, 444 So.2d 554 (Fla. 4th DCA 1984), to support his view that he has the power to do more than pre-audit before a warrant is signed. In W & F Ltd., a board of county commissioners created a nonprofit corporation that controlled disbursements for a public construction project, and the trial court determined that the corporation was the alter ego of the county. Id. at 557. The Fourth District stated that the issue on appeal was “whether there is substantial competent evidence in the record, supported by applicable law, to justify affir-mance of the trial court’s determination that the appellee clerk has the authority to pre-audit the contemplated expenses of this project and to audit those which have been expended.” Id. at 557 (emphasis added). It appears that the clerk in W & F Ltd. never had the opportunity to perform his pre-auditing function as to funds that had already been expended. See id. at 556. This may explain the Fourth District’s determination that the clerk could audit expenses of the project that had already been paid.

In affirming the trial court’s judgment, the Fourth District quoted Alachua County, reiterating the role of the clerk, as county auditor, to perform pre-audit review of disbursements to ensure they are not made for an unlawful purpose. Id. at 557-58 (quoting Alachua County, 351 So.2d at 36). The W & F Ltd. court recognized that the legislature had “wisely not done anything since [the Alachua County ] decision to devitalize the caretak-ing of public funds.” Id. at 558. As noted, Alachua County recognized the clerk’s authority to inspect and examine accounts under section 136.08. See 351 So.2d at 36.

I would affirm the trial court’s ruling that any auditing by the Clerk “necessary to insure legality of the expenditure prior to the payment is proper” and, under the circumstances here, that the Clerk does not have the power to conduct a postpayment audit absent authorization by the county. I make one observation as to the following statement that the trial court made: “However, the court is unable to find that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant is signed, unless so directed by the Board of County Commissioners.” Concerning that statement, while the Clerk’s audit powers are limited by law, the Clerk remains entitled to inspect and examine county accounts. See § 136.08; see also § 125.17 (providing that, as accountant for the board, the clerk shall keep the board’s accounts). The statutory provisions contain no time limits; in fact, section 136.08 states “at all times” regarding the Clerk’s authority to inspect and examine county accounts.

For these reasons, I would affirm the final judgment.

      . Wilson and Swisher have not made an appearance in this appeal.

      . The county later had its employees turn over the remaining funds in the account to the Clerk and account for how funds had been spent.

      . Note, however, that section 218.31(15) defines "auditor” as "an independent certified public accountant licensed pursuant to chapter 473 and retained by a local governmental entity to perform a financial audit.” Thus, the Clerk’s role as "auditor” must have a different meaning because the Clerk is clearly not an external auditor as defined by section 218.31.

      . It seems sell-evident that the inspection and examination of accounts is less extensive than what is contemplated by an audit, a financial audit, an operational audit, or a performance audit, as those terms are defined in section 11.45(1 )(a), (c), (g), (h).


author: FULMER, Judge.

text:
    Tyrone James TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4813.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2009.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Tyrone J. Terry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Tyrone J. Terry appeals his resentencing on count two (simple robbery) of a judgment. In 1996, Terry was sentenced as a habitual offender to twenty years in prison on count two. After serving one year in jail, the remaining nineteen years were suspended and Terry was to serve ten years on probation. He violated his probation and was sentenced on count two to a nonhabitual sentence of nineteen years in prison. He then filed a successful motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging that the nineteen-year sentence imposed on count two was illegal because it exceeded the statutory maximum sentence for a second-degree felony. The trial court resentenced Terry on count two in 2007 to fifteen years, stating “15 years ... [n]ot as a habitual. It’s the guidelines, count two.”

On appeal, counsel for Terry filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Terry filed a pro se brief raising several claims, most of which are without merit. However, after considering additional briefing pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that Terry is entitled to a new sentencing hearing on count two using a corrected scoresheet.

First, Terry claims that the points for legal restraint — which were not on the original 1996 scoresheet — were improper. He cites Martinez v. State, 770 So.2d 211 (Fla. 4th DCA 2000), which holds that legal constraint points may only be included on a sentencing scoresheet at the violation of supervision stage if the defendant was under legal constraint at the time of the offense, not at the time of the violation.

The record reflects that Terry was re-sentenced to a guidelines sentence in 2007 and that the most recent guidelines score-sheet was prepared for use at Terry’s violation of probation sentencing. That applicable scoresheet shows that seventeen points for legal constraint were added to that scoresheet after the date of his original sentencing in 1996, and according to Martinez, those points were only appropriate if Terry was under legal constraint at the time of the offense.

Terry also contends that he was never convicted of aggravated assault, which is a conviction listed under prior record on the most recent scoresheet.

Terry properly preserved these score-sheet issues by raising them in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So.2d 562, 572 (Fla.2008).

Accordingly, we reverse and remand for a new sentencing hearing with a corrected scoresheet.

Reversed and remanded.

WHATLEY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . In the 2007 order granting resentencing, the trial court explained that resentencing was necessary because although the court had intended to impose the original suspended habitual sentence after Terry violated his probation, the court actually announced a nonhabitual guidelines sentence of nineteen years.


author: DAMOORGIAN, J.

text:
    NEW WHITE LINEN, INC., Appellant, v. COMMERCIAL LAUNDRY EQUIPMENT COMPANY, INC., Appellee.
    No. 4D09-1144.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 2009.
    Alan R. Thomas of Alan R. Thomas P.A., Aventura, for appellant.
    Stanley J. Narkier of Stanley J. Narkier, P.A., West Palm Beach, for appellee.
   DAMOORGIAN, J.

New White Linen, Inc. timely appeals the trial court’s order granting Commercial Laundry Equipment Company, Inc.’s Motion for Attorney’s Fees, arguing, among other things, that the trial court committed reversible error when it failed to set forth specific findings in the order regarding the time reasonably expended, the hourly rate, and other factors it may have considered. We agree that failing to include such findings was error. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1152 (Fla.1985); Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997). Because we do not have a transcript of the proceedings on appeal, we are unable to deem this error harmless as we did in Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1995), and must, although reluctantly, reverse and remand for the trial court to make such findings in the order. See Rosenbloom, 698 So.2d at 939. If there is no hearing transcript or the trial court cannot recall what occurred at the hearing, we direct the court to conduct a new evi-dentiary hearing. See id. at 940. We find no merit to the other issues raised on appeal.

Affirmed in part, Reversed in part, and Remanded.

MAY and CIKLIN, JJ., concur.


author: KELLY, Judge.

text:
    D.A., Appellant, v. E.S.B., Appellee.
    No. 2D08-3095.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2009.
    Rehearing Denied Dec. 2, 2009.

      Robert L. Donald of Law Offices of Sherman & Donald, Fort Myers, for Appellant.
    No appearance for E.S.B.
   KELLY, Judge.

The mother appeals a final judgment in a paternity action determining custody and establishing child support. She claims that the trial court abused its discretion by ordering rotating custody of the parties’ two children and by failing to include in the final judgment findings regarding the parties’ respective incomes, the amount of the parties’ support obligations, and provisions regarding health care coverage and uncovered medical expenses for the children. Based upon the record before us, we cannot conclude that the trial judge abused his discretion in ordering a rotating custody arrangement and therefore affirm the court’s custody determination. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). We find it necessary, however, to remand for clarification of the court’s child support award.

The mother argues that the trial court erred in not making a finding as to each party’s income for purposes of calculating child support and that it is difficult if not “impossible” to ascertain from the final judgment the exact amount of support awarded. The final judgment of paternity adopts and incorporates the father’s child support guidelines worksheet. This worksheet was prepared based on the rotating custody arrangement ordered by the court and reflects each party’s gross monthly income as well as the amount of child support awarded. However, also attached to the final judgment is a worksheet that calculates the parties’ support obligations based on their prior standard visitation schedule. It is not clear why the court attached this worksheet to the final judgment, and although the mother filed a motion in the trial court to clarify the issue of child support and child support arrears, it does not appear from the record that her motion was ever ruled upon. Therefore, to resolve any confusion, we remand to the trial court to clarify the final judgment by identifying the worksheet used to calculate the child support award and specifically stating each party’s support obligation and the amount of child support awarded.

Next, the mother argues that, assuming the father’s child support worksheet represents the trial court’s findings, the evidence is insufficient to support the child support award because the worksheet was never introduced into evidence at trial. See Reddick v. Reddick, 728 So.2d 374, 375 (Fla. 5th DCA 1999) (“Unless an unsworn child support guideline worksheet is offered into evidence pursuant to stipulation, and subject to a contemporaneous objection, such worksheet alone cannot form the basis for an award of child support.”). Although the father’s worksheet was never marked as an exhibit, both parties stipulated to the admission of their various financial affidavits and child support worksheets and agreed that these documents should be used by the court in calculating child support. The mother also contends that the father’s worksheet contains expenses for child care and support which are not supported by the evidence. However, an examination of the mother’s worksheets reveals that she lists these same sums as expenses of the father. The mother further stipulated to the use of these worksheets and did not complain to the trial court regarding the accuracy of any of the expenses. In light of her stipulation and lack of objection, the mother cannot now argue that the trial court erred in relying on this worksheet to determine the amount of child support. See id. at 376.

Finally, the mother argues that the trial court erred in not including in the final judgment provisions regarding health insurance or uncovered medical expenses for the children. See §§ 61.13(l)(b); 61.30(8), Fla. Stat. (2005). The child support worksheet utilized by the court reflects that health insurance is included in the child support award. Additionally, uncovered medical expenses are addressed in the report of the court-appointed parenting evaluator which is incorporated into the final judgment. That report provides that the parties “should equally share any and all uncovered medical, dental, and vision expenses.” Although technically this is sufficient, we believe that the better course would have been for the trial court to make specific provisions in the final judgment to ensure that both parties understand their obligation for these expenses. Accordingly, on remand, the trial court shall clarify the final judgment by specifically including provisions for the children’s health insurance and uncovered medical expenses and allocating responsibility for the cost of each between the two parties. See Morrow v. Frommer, 913 So.2d 1195, 1198 (Fla. 4th DCA 2005) (holding that the trial court erred in failing to make a determination as to each party’s specific obligation for the child’s medical insurance); Forrest v. Ron, 821 So.2d 1163, 1168 (Fla. 3d DCA 2002) (remanding for clarification as to the father’s obligation for uncovered medical expenses).

Affirmed; remanded in part with directions.

NORTHCUTT and LaROSE, JJ., Concur.


author: WELLS, Judge.

text:
    PARTNERS IN HEALTH CHIROPRACTIC, a/a/o Neocles Lebrun, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D08-2080.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.

      Dean A. Mitchell, Ocala, for petitioner.
    Michael J. Neimand, Miami, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   WELLS, Judge.

Partners in Health Chiropractic, a/a/o Neocles Lebrun, petitions for second tier certiorari review of a decision from the Circuit Court Appellate Division reversing a trial court judgment in its favor. We find no departure from the essential requirements of the law and thus we deny the petition. However, we write to address the discord that has manifested itself in the county courts relating to the interpretation and application of two portions— sections 627.736(4)(b) and 627.736(7)(a) — of Florida’s personal injury protection (PIP) statute.

Facts

Neocles Lebrun, the insured, was injured in an automobile accident on March 7, 2002, and between March and June of 2002 received medical care from Partners in Health. Partners in Health submitted its bills for chiropractic services rendered to Lebrun to Lebrun’s insurer, United Automobile Insurance Company. None of these bills were paid.

Proceedings in the Trial Court

In July 2005, Partners in Health brought suit to obtain payment for the services of its physicians. United Auto defended, claiming that the medical treatment provided was not reasonable, related or necessary and submitted both a physician’s report dated August 23, 2004 and an affidavit executed in 2006 by chiropractor, Dr. Neil Fleischer, to this effect. In response, Partners in Health argued that because Dr. Fleischer’s August 23, 2004 report was prepared more than thirty days after United Auto received its bills, that report could not be considered as constituting reasonable proof that United Auto was not responsible for payment of its bills. Partners in Health also argued that Dr. Fleischer’s August 23, 2004 report was invalid because Dr. Fleischer had not personally examined Lebrun purportedly as required by section 627.736(7)(a) of the Florida Statutes. Summary judgment in Partners in Health’s favor was granted without explication.

Proceedings in the Appellate Division of the Circuit Court

The Appellate Division of the Circuit Court reversed the summary judgment in Partners in Health’s favor. It did so for two reasons: first, because it concluded that under section 627.736(4)(b), an insurer does not forfeit the right to challenge whether a claim is reasonable, related or necessary, where it fails to obtain proof of same within thirty days of receipt of a claim; and second because it found that to be valid, a section 627.736(7)(a) physician’s report, need not be predicated on a physical examination performed by the physician making the report.

While we agree with both conclusions, we write to confirm (1) that in a section 627.736(4)(b) case such as this, section 627.736(7)(a) does not apply to mandate a physician’s report; and, (2) that a section 627.736(7)(a) report need not be predicated on a physical examination of the insured by either the reporting physician or by any physician on behalf of the insurance company.

Denial of Benefits vs. Withdrawal of Payment to a Treating Physician

We begin by drawing a distinction between an outright denial of all or some benefits — which is governed by subsection 627.736(4) of the Florida Statutes — and a withdrawal of payment from a treating physician — which is governed by subsection 627.736(7). See State Farm Mutual Automobile Insurance Co. v. Rhodes and Anderson, 18 So.3d 1059 (Fla. 2d DCA 2008). If an insurer either denies a claim completely, that is refuses to make any payments whatsoever, or denies one or more discrete charges or claims (whether for a treating physician’s services or otherwise), the insurer’s actions constitute a “denial” of benefits and section 627.736(4) of the Florida Statutes applies. If, however, the insurer has paid benefits to a treating physician, and then seeks to withdraw or terminate further payment to that physician, the insurer’s actions constitute a “withdrawal” of further benefits and section 627.736(7) applies.

Because the instant case is a denial case, section 627.736(4) applies.

Application of Section 627.736(4)(b)

Section 627.736(4) governs when personal injury protection (PIP) benefits must be paid by an insurer such as United Auto. Under this provision, such benefits are payable as the loss accrues, when the insurer receives proof of losses which are covered under the insured’s policy:

(4) Benefits; when due. — Benefits due from an insurer .... shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy....

§ 627.736(4), Fla. Stat. (2009).

Under subsection (b) of this provision, PIP benefits are due to be paid within thirty days following receipt of written notice of a covered loss by the insured, and, are “overdue” if not paid within that time:

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a cover loss and of the amount of same.

§ 627.736(4)(b), Fla. Stat. (2009).

While payment of a claim may be technically “overdue” if not paid within thirty days of receipt, the insurer may “at any time,” reject such a claim on the grounds that it is neither reasonable, related, nor necessary:

This paragraph does not preclude nor limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable .... Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.

Id.

Thus, to reject or deny a claim, all an insurer need do is provide “an itemized specification of each item that the insurer [has] reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge.” Id. And where the insurer has “reasonable proof’ to establish that it is not responsible for payment, payment will not be deemed overdue even if not made within thirty days of notice of the claim. Id.

In short, an insurer may deny a PIP claim in whole or in part either before or after that claim becomes “overdue [because not paid within thirty days]” provided it has “reasonable proof’ that it is not responsible for payment. And, while such proof may come in the form of a report described in section 627.736(7)(a), such a report is not necessary to deny a claim under section 627.736(4)(b):

Amici Allstate Insurance Company and Geico Casualty Company point out that [the] requirement of a medical report is not mentioned anywhere in section 627.736(4).... Amici are correct. The statute does not mention “medical report” in this regard; the statute [section 627.736(4) ] simply says that the insurer must pay benefits within thirty days unless the insurer “has reasonable proof to establish that the insurer is not responsible for the payment.” The statute does not limit “reasonable proof’ to a “medical report.” Thus, to the extent that the present district court opinion defines “reasonable proof’ to mean only a medical report, the district has rewritten the statute. This too was error.

United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla.2001) (footnotes omitted); Rhodes and Anderson, 18 So.3d at 1064 (holding that denial of a “single claim for payment” does not implicate section 627.736(7)(a) so as to require a report); see also United Automobile Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc., 12 So.3d 242, 246 (Fla. 3d DCA 2009) (confirming that based on the unambiguous language of section 627.736(4)(b) and applicable case law, an insurer may challenge treatment at any time and may rely on a section 627.736(7)(a) report, even if that report is obtained more than thirty days after the claim is submitted).

Nothing in our decisions in United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), and United Automobile Insurance Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008), hold otherwise. In Viles, the insurer had made payments for some of an insured’s chiropractic services before refusing to pay for the remainder of those services. There, we treated the insurer’s action as a withdrawal or refusal to pay further benefits to a treating physician under section 627.736(7)(a) and held that a valid physician’s report had to be provided by the insurer before payment could be terminated:

[W]e agree with the trial court’s well reasoned analysis concluding that United Auto was required to first obtain a physician’s report before refusing to pay further medical bills. The statute [section 627.736(7) ] plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.

Viles, 726 So.2d at 321 (citation omitted) (emphasis added).

Viles does not, therefore, hold that a 627.736(7)(a) report is a condition precedent to a total refusal to pay an insured’s bills or claims or to a refusal to pay (denial of) some of an insured’s bills or claims. See Rhodes and Anderson, 18 So.3d at 1063-64 (confirming that Viles “only applies to the withdrawal or termination of payments or to the withdrawal or termination of authorization for treatment” and that “denial of a single claim for payment does not constitute the withdrawal of a physician’s ‘treatment authorization’ ” which does not implicate section 627.736(7)(a) because that section “does not address situations in which one charge for treatment has been denied by the insurer”).

Bermudez also does not stand for the proposition that a 672.736(7) report is a condition precedent to denying or reducing some or all of an insured’s bills or claims. Bermudez dealt with a withdrawal of benefits under section 627.736(7)(a) and not with a denial of a claim or claims under section 627.736(4)(b). While dicta in Ber-mudez appears to suggest that Viles stands for the proposition that section 627.736(7)(a) applies to all reasonable, related, necessary claim denials, it nonetheless re-confirms the holding in Viles. In any event, any confusion caused by that portion of Bermudez relating to denial or reduction of benefits has now been resolved.

In United Automobile Insurance Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So.3d 60 (Fla. 3d DCA 2009) this court in an en banc decision receded from the following language in Bermudez:

[A]s clearly stated in the certified question, the holding in Viles applied to “reduction, withdrawal or denial ... on the grounds of reasonableness, necessity or relationship[.]” Id. Nevertheless, State Farm limited the holding in Viles to cases where an insurer only withdraws payments or treatment authorization as opposed to an insurer’s reduction or denial of a claim. State Farm, 18 So.3d at 1062-63. Viles asserted no such limitation. Thus, we affirm our holding in Viles that a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits on grounds of reasonableness, necessity, or relationship. Viles, 726 So.2d at 321.

Bermudez, 980 So.2d at 1216.

Thus, neither Viles nor Bermudez, as these cases now stand, require a 627.736(7)(a) report as a condition precedent to either the complete denial or partial reduction of an insured’s bills or claims.

The Appellate Division of the Circuit Court was, therefore, correct in concluding that United Auto did not have to obtain “reasonable proof’ that Partners in Health’s claim was not reasonable, related or necessary within thirty days of receipt of that claim. And, because section 627.736(4)(b) requires only “reasonable proof’ that a claim is not reasonable, related or necessary, the physician’s affidavit provided by Dr. Fleischer satisfied the requirements of section 627.736(4)(b). There was, therefore, no need for the Circuit Court to either look to section 627.736(7)(a) or to determine whether the report submitted by Dr. Fleischer complied with the requirements of that provision. See Santa Fe Medical Center, 21 So.3d 60.

Application of Section 627.736(7)(a)

We also note that while not necessary to resolution of this case, the Appellate Division also correctly concluded that the section 627.736(7)(a) report prepared by Dr. Fleischer did not have to be based on a physical examination that he conducted. In Bermudez this court addressed this precise issue:

We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A). We rephrase the certified question to read as follows:

WHETHER A MEDICAL REPORT ISSUED FOR THE WITHDRAWAL OF PERSONAL INJURY PROTECTION BENEFITS PURSUANT TO SECTION 627.736(7)(a), FLORIDA STATUTES MUST BE BASED UPON A PHYSICAL EXAMINATION OF THE INSURED THAT IS PERSONALLY CONDUCTED BY THE PHYSICIAN ISSUING THE REPORT.
We answer the rephrased question in the negative....

980 So.2d at 1214.

Although the report at issue in Bermu,-dez was premised on a physical examination conducted at the request of the insurer by a physician other than the physician preparing the report, that is, it was premised on an IME, nothing in section 627.736(7)(a) mandates an IME as a predicate to such a report. While much has been made of recent amendments to this provision purportedly for the purpose of doing away with reports based solely on review of a treating physicians records, section 627.736(7)(a) still expressly defines a “valid report” as “one that is prepared and signed by a physician examining the injured person or reviewing the treatment records of the injured person.” § 627.736(7)(a) (emphasis and underline added).

Where, of course, a statute is clear and unambiguous, courts will not “look behind the statute’s plain meaning for legislative intent or resort to rules of statutory construction to ascertain intent.” Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64-65 (Fla.2005)) (citation omitted). Thus, irrespective of the legislature’s purported intent to do away with reports based on no more than review of a treating physician’s records, the statute in its current state is clear and does not require a valid section 627.736(7)(a) report to be premised on either a physical examination by the reporting physician or an examination conducted on the insurer’s behalf (an IME).

To summarize:

• a claim may be rejected more than thirty days after submission to the insurer notwithstanding being “overdue”;
• where no payment whatsoever has been made and the insurer rejects all claims or bills from a particular provider or treating physician as being unreasonable, unrelated or, unnecessary, section 627.736(4)(b) applies;
• where some but not all claims or bills from a particular provider or treating physician are being rejected or reduced as unreasonable, unrelated, or unnecessary, section 627.736(4)(b) likewise applies;
• Section 627.736(4)(b) requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; while a section 627.736(7)(a) report may be utilized for this purpose, such a report is not required for this purpose;
• where an insurer withdraws (that is, terminates) payments being made to a treating physician or withdraws or terminates authorization for further treatment by a treating physician, a section 627.736(7)(a) report must first be obtained;
• such a section 627.736(7)(a) report does not have to be predicated on either a physical examination by the reporting physician or on a physical examination conducted on behalf of the insurer (an IME) but may be premised on review of the records of the insured’s treating physician.

In this case, the insurer made no payments, claiming that no treatment was reasonable, related or necessary. The Appellate Division therefore correctly concluded that this action was governed by section 627.736(4)(b) and that the trial court erred in refusing to consider either the affidavit or the report submitted by United Auto in support of its denial of Partners in Health’s claim. Although United Auto was not obligated to provide a section 627.736(7)(a) report to support its rejection of Partners in Health’s claim, the Appellate Division was correct in determining that the report was valid even though not based on a physical examination conducted by the reporting physician.

For these reasons, and those stated in this opinion, the petition is denied.

      . Partners in Health cites to a senate staff analysis accompanying the 2001 amendment to section 627.736(7)(a) which states:
      The effect of this provision is to help remedy the current practice of PIP insurers utilizing what are termed "paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.


author: COPE, J.

text:
    Christopher HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-185.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Rehearing Denied Dec. 3, 2009.

      Christopher Harris, Boca Raton, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order denying a “Request for Inspection of Public Records Pursuant to Government in the Sunshine Law.” We affirm.

On November 12, 2008, defendant-appellant Harris filed a document in the form of a pleading bearing the above title. He filed the pleading in the closed file of his criminal case, Miami-Dade County Circuit Court case number 92^41749. The pleading requested inspection of several documents relating to the defendant’s plea of January 27,1995.

As the State points out in its response, where the defendant requests public records, the correct procedure is to submit a written request by letter to the agency or agencies from whom the defendant desires to receive the documents. Filing a pleading in the defendant’s original 1992 case does not effectively convey the request for records to the appropriate agency, such as the State Attorney or the Clerk of the Circuit Court. We therefore affirm the order now before us, without prejudice to the defendant to send an appropriate request for public documents to the appropriate agency. Requests of executive branch agencies are governed by chapter 119, Florida Statutes (2008). Payment for copying costs may be required. See Roesch v. State, 633 So.2d 1 (Fla.1993); State v. Williams, 678 So.2d 1356 (Fla. 3d DCA1996).

Affirmed.


author: SCHWARTZ, Senior Judge.

text:
    Georgina MATHIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2627.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.

      Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The conviction on appeal for possession with intent to sell cocaine within 1000 feet of a child care facility, as found by the jury, may not stand because the court fundamentally erred in omitting that part of the standard jury instruction which concerned the necessity that any possession be “with the intent to sell” the contraband. § 893.13(l)(c)(l), Fla. Stat. (2006). Although the omission was not objected to below, the failure to instruct on an essential element of the offense, which was a hotly disputed issue at trial and resulted in the possibility that the defendant was found guilty of a non-existent offense, “simple possession of contraband within 1000 feet of a child care facility,” mandates reversal. See State v. Delva, 575 So.2d 643 (Fla.1991); James v. State, 16 So.3d 322 (Fla. 4th DCA 2009); Wolfork v. State, 992 So.2d 907 (Fla. 2d DCA 2008); Castillo v. State, 929 So.2d 1180 (Fla. 4th DCA 2006); Pratt v. State, 601 So.2d 619 (Fla. 2d DCA 1992); Mercer v. State, 656 So.2d 555 (Fla. 1st DCA 1995).

Because the sentence actually imposed — 259 days on probation and 259 days in jail with 258 days of credit for time served — fell within the permissible limits for the third degree felony of simple possession, it is necessary only, as the appellant suggests, to reduce the adjudicated crime to simple possession, of which the jury necessarily found her guilty. A new trial will not be required.

Affirmed as modified.