author: CASANUEVA, Chief Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Justin Scott SHIELDS, Appellee/Cross-Appellant.
    No. 2D09-1031.
    District Court of Appeal of Florida, Second District.
    March 31, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant/Cross-Appelleé.
   CASANUEVA, Chief Judge.

The issues presented in this appeal resulted from Appellee/Cross-Appellant Justin Scott Shields’ reckless operation of a motorcycle, which caused his passenger to fall from the motorcycle and sustain serious injuries upon impact with the ground. Mr. Shields entered guilty pleas to the crimes of reckless driving and leaving the scene of an accident. As part of sentencing, the State sought restitution on behalf of the victim for her past and future medical expenses and loss of past and future income. The State now appeals the circuit court’s restitution order, asserting two claims of error: that the restitution amount is insufficient and not based on the evidence adduced at the restitution hearing. Mr. Shields cross-appeals, claiming error in denying his motion to withdraw his plea. We review the order of restitution for abuse of discretion, see State v. Hawthorne, 573 So.2d 330 (Fla.1991), and reverse for the reasons discussed below. We affirm the cross-appeal without further discussion.

FACTS

The victim was injured on May 30, 2008. At a change of plea hearing in September 2008, the State mentioned that the victim had already incurred over $7000 in medical expenses and approximately $4000 in lost wages, with more expenses to come because she had not yet completed treatment or been released to return to work. At another restitution hearing in January 2009, the State produced evidence that her rehabilitation was further compromised by the fact that she had become pregnant, the child being due in May 2009, thus delaying surgery and recovery until at least February 2010. At the close of the January 2009 hearing, the circuit court asked for written argument from each party based on the evidence presented. In its written submission, the State sought $91,228.78 in restitution. Mr. Shields countered with a suggested restitution amount of either $13,991.28 or $24,510. The lower figure contemplated that Mr. Shields would still be responsible for supervision and court costs; the higher amount contemplated that costs of supervision would be waived. In its final order, the court required Mr. Shields to pay $14,191.28 at $120 per month, which was merely the amount of current medical expenses.

DISCUSSION

We conclude that each party has presented valid legal arguments. Initially, we agree with Mr. Shields that any increase in the victim’s monetary losses, most notably loss of income, caused by her post-injury pregnancy should not be borne by him. However, the State is correct that the amount of restitution awarded is inadequate and not supported by the preponderance of the evidence. See § 775.089(7), Fla. Stat. (2008); Hector v. State, 784 So.2d 1207, 1208 (Fla. 2d DCA 2001). Further, Mr. Shields’ ability to pay the amounts ordered is a factor to be considered at the time of enforcement, not at imposition. See Hector, 784 So.2d at 1208 (citing § 775.089(6)(b), Fla. Stat. (2000), and Pickett v. State, 678 So.2d 857, 858 n. 1 (Fla. 5th DCA 1996)).

We reverse the order on the main appeal and remand for reconsideration of the amount of restitution. Because of the passage of time, the victim’s recoverable expenses may be more accurately determined; thus, it may be advisable for the court to take further evidence on the issue. We affirm the cross-appeal.

KELLY and CRENSHAW, JJ., Concur.

      . The State calculated this figure to include loss of income during the victim's pregnancy.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Richard KITTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2269.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Richard Kittles, Milton, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Richard Kittles, timely appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. He contends that his sentence for misdemeanor crimes is illegal, because the trial court ordered it served in prison, while it could be served only in county jail under the facts of this case. We' agree and reverse, as a trial court does not have the authority to impose a state prison sentence for a misdemeanor conviction unless the misdemeanor sentence is imposed concurrently with a felony sentence.

In lower tribunal case number 01-18121 CF in the Circuit Court of Broward County, appellant was convicted of two felonies and a misdemeanor, for which he was sentenced to concurrent sentences in state prison. In lower tribunal case number 01-4270 CF, appellant was convicted of three misdemeanors for which he was sentenced to a term of one year in the Department of Corrections on .two of the counts and 60 days in Broward County Jail on the other. The sentences were to run concurrently with each other, but consecutive to the sentences imposed in case number 01-18121 CF.

Appellant filed a rule 3.800(a) motion to correct illegal sentence, claiming that his sentence in case number 01-4270 CF was illegal because those crimes carried only jail time. The state filed a response to appellant’s motion, arguing that summary denial was appropriate. However, while the state’s response addressed the permissibility of consecutive sentences, the state’s response never directly addressed whether it was permissible for the trial court to impose a one-year prison sentence, rather than one year in county jail, for appellant’s misdemeanor convictions in case number 01-4270 CF. Relying on the state’s response, the trial court summarily denied appellant’s motion, prompting this appeal.

Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo. See Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009). Florida Rule of Criminal Procedure 3.800(a) provides that “[a] court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief....” An “illegal sentence” for purposes of rule 3.800(a) is one which imposes a “kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” See Carter v. State, 786 So.2d 1173, 1181 (Fla.2001).

By definition, a “misdemeanor” is a criminal offense that is punishable by a term of imprisonment in a county correctional facility for a sentence “not in excess of 1 year.” § 775.08(2), Fla. Stat. (2001). While misdemeanors ordinarily are not punishable by imprisonment in a state prison, it is permissible for a court to impose a prison sentence for a misdemean- or if it is to be served in a state penitentiary concurrently with a felony prison sentence. See Anderson v. State, 617 So.2d 827, 828 (Fla. 1st DCA 1993) (holding that it was permissible for the trial court to impose one-year sentences for first-degree misdemeanors to be served in the custody of the Department of Corrections concurrently with a felony sentence); see also Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (“We reject the state’s argument that Daniels’ trespassing sentence cannot be concurrent with his felony sentences.”)

However, where the misdemeanor sentence is not to be served concurrently with a felony prison sentence, a trial court does not have the authority to impose a state prison sentence for a misdemeanor conviction. See Flores v. State, 974 So.2d 556, 559 (Fla. 5th DCA 2008) (stating that misdemeanors are not punishable by imprisonment in a state prison and that “when a defendant is convicted of both a felony and a misdemeanor, the trial court may properly sentence a defendant to county jail time on the misdemeanor to be followed by a prison sentence”); see also Giarraputo v. State, 447 So.2d 1033, 1033 (Fla. 4th DCA 1984) (“In this case, a trial judge sentenced the defendant to 364 days in ‘Florida State Prison;’ on appeal, the state concedes that a sentence for less than one year cannot be served in any state penitentiary”).

Here, the judgment of conviction and sentence reveals that the trial court sentenced appellant to a term of one year in the custody of the Department of Corrections for misdemeanor crimes in case number 01-4270 CF, to run consecutive to a prison sentence imposed for felony convictions in another case. Because the sentencing order on its face reflects that appellant’s misdemeanor sentences in case number 01-M270 CF were not imposed concurrently to any felony sentence at the time of their imposition, we conclude that it was impermissible to impose a sentence of imprisonment in a state prison for appellant’s misdemeanors in that case. Accordingly, we reverse the summary denial of appellant’s rule 3.800(a) motion and remand with directions for the trial court to correct the sentencing order. The sentence can be corrected either by ordering it concurrent with the felony sentences in case number 01-18121 CF or by ordering the sentence in case number 01-4270 CF to be served in the county jail, rather than one year in state prison.

Remanded with directions.

POLEN and STEVENSON, JJ., concur.


author: PER CURIAM.

text:
    Marie FRANCIS a/k/a Monica Bailey, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-547.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.

      Benjamin S. Waxman of Robbins, Tun-key, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING, TO WRITE OPINION, OR FOR REHEARING EN BANC

PER CURIAM.

Appellant Marie Francis’s motion for rehearing and for an opinion is granted. Her motion for rehearing en banc is denied. We withdraw our previous per cu-riam affirmance and substitute the following opinion in its place.

Marie Francis, once known as Monica Bailey, appeals a trial court order summarily denying her motion for postconviction relief and a motion for rehearing which followed. In her motion, she alleged failure of the trial court to advise her during her 1984 guilty plea to possession of marijuana in excess of twenty grams that her plea could subject her to deportation. In a duly verified supplement to her motion, she added an allegation that her defense counsel affirmatively misadvised her that she would never be deported as the result of her guilty plea and conviction in this case.

When the trial court summarily denied relief, apparently it had not received or reviewed the supplement to the motion alleging affirmative misadvice of counsel, because the order stated that she had not alleged positive or affirmative advice of counsel. On rehearing, the trial court again denied relief, stating that even with the supplement alleging affirmative misad-vice of counsel, the motion should fail on its merits because deportation is a collateral consequence of a plea and a defendant is not entitled to relief when the court or counsel failed to advise her of the possibility of deportation. That rationale would apply if Francis were alleging only failure to advise of the deportation consequences rather than affirmative misadvice as well. The trial court noted that Fla. R.Crim. P. 3.172(c) was amended effective January 1, 1989 to add a subsection (8) which required that a defendant entering a plea to be advised of the possibility of deportation. Francis pleaded guilty in 1984, before this date, which does not apply retroactively. State v. Haddad, 950 So.2d 434 (Fla. 1st DCA 2007). Thus, the plea may be attacked in this case only if the defendant received positive or affirmative misadvice of counsel regarding immigration or deportation consequences. Id. at 436-37. Francis satisfied that pleading requirement.

Francis’s motion was filed within the two-year window period allowed for comparable claims in State v. Green, 944 So.2d 208 (Fla.2006). The state has argued in its response filed here, and for the first time, that laches should bar relief in this case since Francis entered her plea twenty-four years before filing her rule 3.850 motion. Laches is a defense requiring proof of lack of diligence by the party against whom the defense is asserted, and prejudice to the party asserting the defense. Resolution of a claim of laches often involves factual issues and requires an evidentiary hearing. Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002). See also Bain v. State, 9 So.3d 723 (Fla. 2d DCA 2009).

Here, an evidentiary hearing on laches as a defense for the state is warranted. Francis has advised that a transcript of her plea hearing is not available, but her claim is one of affirmative misad-vice of her counsel, which would not necessarily have been recorded in a hearing transcript. Her claim may require an evi-dentiary hearing in which she and her counsel testify as to what transpired in her case. She has not alleged, and the state has not alleged or demonstrated, that this testimony is not available. It remains possible that the state will be able to demonstrate prejudice below by the unavailability of a transcript which could refute any evidence presented on the claim of affirmative misadvice, but this will be for the trial court to determine. The claim of laches cannot be resolved in this court as a matter of law, but should be considered by the trial court on remand.

For these reasons we reverse the trial court’s order summarily denying relief on the merits and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


author: ROTHENBERG, J.

text:
    BRICKELL PLACE CONDO ASSOCIATION, INC., et al., Appellants, v. JOSEPH H. GANGUZZA & ASSOCIATES, P.A., Appellee.
    No. 3D09-1963.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.

      Alexis Gonzalez, Miami, and Albert E. Acuna, for appellants.
    Joseph H. Ganguzza and Paul McKenna, Miami, and Jennifer Ann Coya, for appel-lee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Two Florida condominium associations, Briekell Place Condominium Association, Inc. and The Clipper Condominium Association, Inc. (collectively, “the Associations”), appeal the denial of their emergency motion for injunctive relief in which the Associations sought to obtain a copy of their case files being retained by their former counsel Ganguzza & Associates, P.A. (“the law firm”).

As we find that the fee arrangement for collection and foreclosure matters was, in reality, a contingent fee arrangement and a law firm may not assert a retaining lien for fees owed in a contingency fee case until the contingency has occurred, we find that the retaining lien was unlawful.

The record reflects that the Associations employed the law firm for twenty years to represent them in (1) litigation and general matters; and (2) collection and foreclosure matters.

When Joseph H. Ganguzza, Esq., the law firm’s sole shareholder, died, the Associations terminated their relationship with the law firm, retained new counsel, and requested that the law firm transfer all of the Associations’ files to its new counsel. Instead, the law firm filed a retaining lien and refused to provide the Associations with a copy of their files unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current. The Associations filed the instant emergency motion for injunctive relief to obtain a copy of these files.

At the hearing on the Associations’ motion, the Associations argued that for collection and foreclosure matters, the Associations and the law firm operated under a contingency fee arrangement. The Associations, therefore, claimed that the law firm, could only recover the reasonable value for its services, limited by the maximum contract fee, upon the successful occurrence of the contingency. Because the contingency upon which the services were based has not yet occurred (the collection of the delinquent unit owners’ fees), the law firm is not yet entitled to be paid for its services and the retaining lien filed by the law firm cannot be legally or ethically maintained. We agree.

A retaining lien differs from a charging lien. A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit. Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61 (Fla. 4th DCA 1996); 7 Am.Jur.2d Atty’s at Law § 324 (1980). On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point. Wintter v. Fabber, 618 So.2d 375, 377 (Fla. 4th DCA 1993).

It is well recognized, and the Associations do not dispute, that an attorney may file and maintain a retaining lien against a client or former client’s legal files until the lawyer’s fees have been paid or an adequate security for payment has been posted. Andrew Hall & Assocs., 679 So.2d at 61; Wintter, 618 So.2d at 377.

American courts, with few exceptions, have held that in cases where the client, not the attorney, terminates the relationship, the client cannot compel his former attorney to deliver up papers or documents in the attorney’s possession that are secured by a retaining lien. Wintter, 618 So.2d at 377. The exceptions are where the client pays the fees due; the client furnishes adequate security for the payment which may be due or which is subsequently found to be due; there is a clear necessity in a criminal case and a defendant cannot post security; or a lawyer’s misconduct caused his withdrawal. Id. An additional exception is in contingency fee cases where the contingency has not occurred. See Fla. Bar Ethics Dep’t, Opinion 88-11 (Reconsideration) (1993) (holding that an attorney may not ethically assert a retaining lien for fees allegedly owed in a contingency fee case unless and until the contingency has occurred); Fla. Bar v. Doe, 550 So.2d 1111, 1112 (Fla.1989).

A contingency fee agreement is one in which the fee is made contingent on the outcome of the matter upon which the services are rendered. R. Regulating Fla. Bar 4-1.5(f)(l); see also Black’s Law Dictionary 320 (6th ed. 1990) (defining a contingency contract as “[a] contract, part of performance of which at least is dependent on the happening of a contingency. Sometimes used to refer to fee arrangement with attorney who agrees to accept his fee on the contingency of a successful outcome”). The arrangement between the law firm and the Associations for the collection of delinquent unit owner fees falls directly within these definitions. The law firm did not bill for nor get paid for its services in collecting these delinquent fees unless and until it was successful in collecting the amount due from the unit owner.

Rule 4-1.5, Rules Regulating the Florida Bar, requires that contingency fee arrangements be in writing. Agreements that fail to comply with the rule are void. Because the evidence reveals that the law firm was paid a flat fee for its services on collection matters if and when its collection efforts were successful, its fees were contingent on the outcome of the matter and the arrangement between the parties reflects that it was a contingency fee arrangement. An attorney or law firm may not assert a retaining lien for fees allegedly owed in a contingent fee case unless and until the contingency has occurred. Because the contingency has not occurred, the law firm could not assert a retaining lien for fees it contends it is owed on collection matters that were still pending when it was discharged. If the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to. See Rosenberg, 409 So.2d at 1020-21 (adopting “the modified quantum meruit rule which limits recovery to the maximum amount of the contract fee in all premature discharge cases involving both fixed and contingency employment contracts”). Accordingly, we reverse the order denying the Associations’ emergency motion for injunctive relief seeking discharge of the law firm’s retaining lien. Our ruling is without prejudice to the law firm’s right to file a charging lien to protect its right to recover the reasonable value of its services.

Reversed and remanded with instructions.


author: SALTER, J. SHEPHERD J„

text:
    Desiderio CUEVAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-184.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Desiderio Cuevas appeals from a final order designating him a sexual predator under section 775.21, Florida Statutes (2006). The issue to be determined in this appeal is whether designation as a sexual predator may be ordered after a defendant has served his sentence and been released (rather than when “before the court for sentencing”).

Cuevas entered a plea of guilty to charges of lewd and lascivious molestation on a child under 12 and lewd and lascivious conduct on a child under 16, in violation of sections 800.04(5)(b) and 800.04(6)(b), Florida Statutes (2000). He was sentenced to a term of 56 months of incarceration, but he was not designated as a sexual predator in a written finding at the time of the sentencing. Cuevas concedes that the convictions qualified him for designation as a sexual predator under the criteria established in section 775.21(4)(a).

In July 2006, as Cuevas neared the end of his term of incarceration, the Department of Corrections sent a written inquiry to the office of the State Attorney to inquire whether Cuevas qualified as a sexual predator. The State Attorney replied that Cuevas did qualify and then filed a motion to designate him a sexual predator. In the interim, Cuevas was released. The State’s motion was then set for hearing. The trial court granted the State’s motion, and this appeal followed.

We have previously determined that section 775.21 is “regulatory and procedural in nature,” such that the provision does not violate the ex post facto clause or imper-missibly modify a criminal sentence or punishment. Gonzalez v. State, 808 So.2d 1265, 1266 (Fla. 3d DCA 2002). Cuevas’s case also is not one in which his offense was not a qualifying offense for the sexual predator designation at the time of his sentencing, as occurred in Therrien v. State, 914 So.2d 942 (Fla.2005).

The statutory analysis here is straightforward. Does the State lose its right — in fact, must it turn aside from its statutory duty — to seek the designation if it overlooks that right and duty at sentencing? Cuevas and the dissent apply a strict and inflexible interpretive analysis that might be considered if the question involved the reach of a statute imposing a criminal penalty. But section 775.21 is not such a statute, as we held in Gonzalez. The statute expresses no intention that the consequence of a failure to make a written sexual predator finding at the time of sentencing is a waiver of the right to make the finding in the future. Cuevas and the dissent read such an intention into the fact that two specific categories of “overlooked” defendants are described in section 775.21(5)(c), but we disagree with that inference. A careful reading of the special language applicable to the two categories (section 775.21(5)(a)l. and 3.) reveals that those are special notice and venue rules for those special cases, not exclusive descriptions of the only circumstances in which the State can perform its duty after the defendant is sentenced.

Nor would Cuevas’s argument establish a waiver of the State’s right to a tardy designation under the civil standard we described in Gonzalez. There is no evidence in this record that the State knowingly or intentionally waived its right to seek the designation, and Cuevas can hardly argue that he was prejudiced by the fact that he received the designation in 2006 rather than at sentencing four years earlier. Cuevas did not raise, and therefore we do not consider here, facts or issues relating to the doctrine of laches or to any statute of limitations.

Finally, the extensive legislative findings, purpose, and intent (expressly written into section 775.21(3)) also support our analysis. To conclude that a Legislature bent on addressing “an extreme threat to the public safety” intended to relieve Cue-vas from registration is to engage in statutory destruction, not construction.

Affirmed.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD J„

dissenting.

The issue in this case is whether the State of Florida can haul a sexual predator back into court, after he has completed his entire sentence, to declare him a sexual predator as defined by section 775.21(4)(a) of the Florida Sexual Predators Act (2006), in the absence of a statutory recapture provision. I find it cannot and would reverse the order on appeal.

On January 22, 2002, Desiderio Cuevas was sentenced to fifty-six months of incarceration pursuant to a guilty plea on the counts of lewd and lascivious molestation of a child under twelve years of age, § 800.04(5), Fla. Stat. (2000), and lewd and lascivious conduct on a child under sixteen years of age, § 800.04(6), Fla. Stat. (2000). It is agreed that Cuevas is a sexual predator within the meaning of the Florida Sexual Predators Act. See § 775.21(4)(a), Fla. Stat. (2006). The Act requires that for such individuals, the trial court “must make a written finding at the time of sentencing that the offender is a sexual offender.” See § 775.21(5)(a)2, Fla. Stat. (2006) (emphasis added). The trial court did not do so. In April 2003, the Florida Department of Corrections recognized it did not have a copy of such an order, and sent a letter to the Clerk of the Court requesting a copy. The Office of the State Attorney also received a copy of the letter. The record contains no evidence that either the Clerk or State Attorney took any action in response to this letter. On July 27, 2006, approximately sixty days before Cuevas’ release date, the Department inquired of the State Attorney concerning Cuevas’ statutory status. On October 27, 2006, the Office of the State Attorney responded to the Department’s July 27th request, stating only that Cuevas “does qualify as a sexual predator.” In the interim, on September 6, 2006, Cuevas completed his sentence and was released. Nevertheless, the State continued to press the matter, and on December 15, 2006, the court entered the statutory order prescribed by section 775.21(5)(a)2 over Cue-vas’ objection.

The State concedes there is no express statutory authority in the Florida Sexual Predators Act of 2006 to haul Cuevas back into court. However, the State argues a fair reading of the statute reveals “the legislature intended to create a mechanism” to do so, which it submits is sufficient. As support for its argument, the State cites two separate subsections of the Act. The first section, 775.21(4)(c), authorizes the recapture of “an offender [who] has been registered as a sexual predator by the Department of Corrections, the [Department [of Law Enforcement] or any other law enforcement agency ... if 1. The court did not, for whatever reason, make a written finding at the time of sentencing that the offender was a sexual predator.... ” (Emphasis added.) However, the State’s reliance upon this subsection of the Act is misplaced. It is undisputed Cuevas was never registered as a sexual predator pursuant to the Act. In fact, he was released without any judicial consideration concerning whether he should be designated a “sexual predator,” a clearly defined status within the meaning of the Florida Sexual Predators Act. See § 775.21(4)(a).

The other section of the Act upon which the State seeks affirmance of the trial court’s action in this case is subsection 775.21(5)(c). This provision states:

If the Department of Corrections, the [Department [of Law Enforcement], or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in sub-paragraph (a)l., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)3. The state attorney shall bring the matter to the court’s attention in order to establish that the offender meets the sexual predator criteria. If the state attorney fails to establish that an offender meets the sexual predator criteria and the court does not make a written finding that the offender is a sexual predator, the offender is not required to register with the department as a sexual predator.

§ 775.21(5)(c) (emphasis added). However, this provision likewise is inapplicable on its face because subparagraph (a)l pertains only to offenders who have been civilly committed under the Jimmy Ryce Act, § 394.910, Fla. Stat. (2000), and subpara-graph (a)3 pertains to persons who have committed a similar violation in another jurisdiction. By its terms, this subsection does not include offenders described in section 775.21(a)2, the category in which Cuevas falls.

The language of the statute we are called upon to apply in this case is plain and unambiguous. Our task in this circumstance begins and ends with the application of the plain language. “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.” See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). “[T]he legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.” Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960). Thus, the statute’s text is the most reliable and authoritative expression of the Legislature’s intent. See V.K.E. v. State, 934 So.2d 1276, 1286 (Fla.2006).

Moreover, there exists an articulable rationale for the statute as it appears. The Jimmy Ryce Act applies to “a small but extremely dangerous number of sexually violent predators.” See § 394.910. The Legislature’s desire to have registered sexual predators who commit crimes in other jurisdictions is plain. This rationale finds support in the 2004 amendments to the Sexual Predators Act. It was that year the Legislature redefined the (a)l offenders subject to post-sentencing designation as those falling under the Jimmy Ryce Act, and moved the Cuevas category of offenders, whose designation must be made at the time of sentencing, into sub-paragraph (a)(2) of the Sexual Predators Act. See § 775.21(5)(a)l, Fla. Stat. (2004). The amendment expressly deleted “offenders described in ... subparagraph (a)(2)” from the recapture portion of the statute. See S. Crim. Just. Comm. Rep. 2444-307, Reg. Sess. (Fla.2004). This was then and remains today the Cuevas category of offenders. See § 775.21(5)(a)2. It is not for us to judicially amend the Act. It may be that this unimpeachably obvious action of the State Legislature was improvident or unwise. However, we must apply the law we have, not the law we wish we had.

I would reverse the order on appeal.

      . § 775.21(5)(a)2, Fla. Stat. (2006).

      . Section 775.2l(4)(a) imposes a mandatory duty ("an offender shall be designated ...”).

      . In the case of Section 775.21 (5)(a)l., a sexually violent predator under Section 775.2 l(4)(d), one of the three enumerated state offices must notify the state attorney who prosecuted the offense. In the case of Section (5)(a)3., a sexual predator who was convicted of a qualifying offense in another jurisdiction before establishing or maintaining a residence in a Florida county, notice is to be given to the state attorney of that new county. In the case of a person like Cuevas, indisputably qualified to be designated a sexual predator but not designated at sentencing as the Legislature directed, no special notifications or interjurisdictional rules are required, and Section 775.21(5)(c) then specifies (without limitation) that the ‘‘state attorney shall bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria.”

      . The Stale has at all times — here and below — proceeded on the strength of the Florida Sexual Predators Act of 2006. The defendant has at all times acquiesced in the application of this iteration of the Act. Because there is no ex post facto consequence to the application of the 2006 version of the Act to the facts of this case, see Gonzalez v. State, 808 So.2d 1265 (Fla. 3d DCA 2002), I accede to the parties' choice of governing statute in this analysis.

      . Section 775.2l(5)(a)2 reads in full as follows:
      An offender who meets the sexual predator criteria described in paragraph (4)(a) who is before the court for sentencing for a current offense committed on or after October 1, 1993, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator, and the clerk of the court shall transmit a copy of the order containing the written finding to the department within 48 hours after the entry of the order ...
      (emphasis added). This provision of the Act read the same in 2002, when Cuevas was sentenced, as it did in 2006, when he finally was declared a statutory sexual predator.

      . A careful reading of the Act leaves one puzzled how an offender in Cuevas' position can be lawfully ''registered” under the Florida Sexual Predators Act in the absence of an order declaring him a sexual predator within the meaning of the Act, unless, perhaps, the offender elects to voluntarily register himself. In seeming contradiction to section 775.2l(4)(c) of the Act, section 775.21 (5)(c) states, “The Department of Corrections, the department, or any other law enforcement agency shall not administratively designate an offender as a sexual predator without a written finding from the court that the offender is a sexual predator.” (Emphasis added.) Furthermore, the provisions requiring self-registration appear to apply only to "an offender designated as a 'sexual predator' under subsection (5)” — i.e., an offender for whom a written order is in existence. See § 775.21(5)(a)3, Fla. Stat. (2006) (emphasis added); Reyes v. State, 854 So.2d 816, 817 (Fla. 4th DCA 2003) ("A person who has been designated a sexual predator must register with the Department of Law Enforcement for the duration of his or her life.”).


text:
    Orlain VEGA, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-2872, 3D09-2873.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Marcia J. Silvers, Miami, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Mower v. State, 308 So.2d 586 (Fla. 1st DCA1975).


text:
    J.J., a juvenile, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D10-226.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for respondents.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

J.J., a juvenile, petitioned this Court for a writ of habeas corpus to release her from secure detention. The State responded, agreeing that this Court should grant the petition. Thereafter, the trial court entered an order authorizing J.J.’s immediate release. Thus, this petition is now moot so we dismiss the petition.

Because the parties contend that the situation herein has arisen before and may reoccur, we write briefly to explain why J.J.’s detention was improper. As this Court stated in B.M. v. Dobuler, 979 So.2d 308 (Fla. 3d DCA 2008), a child’s secure detention must follow strict statutory criteria. Section 985.24(2)(b), Florida Statutes (2009), prohibits detaining a child to permit administrative access to the child.

Here, at a juvenile status conference, the tidal court was informed that J.J., who is a 12-year-old dependent child, continually runs away from her foster homes and school. Her guardian and school principal were concerned for her safety and well-being. They indicated that J.J. needs medical and dental examinations, psycho-educational testing to determine appropriate school placement, and a psychiatric evaluation. However, J.J.’s conduct makes undergoing these examinations a problem. With the best of intentions, and in an effort to do what is in J.J.’s best interest, the trial court ordered her secure detention.

Although we sympathize with the trial court’s motive, i.e. getting J.J. to stay in one place long enough to get her the help she needs, detention is not authorized under these circumstances. Accordingly, we dismiss the petition.

Petition dismissed.


text:
    Abel GONZALEZ, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D10-686.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Lopez & Best and Virginia M. Best, for petitioner.
    Thomas L. Hunker, Miami, for respondent.
    Before COPE, SUAREZ and SALTER, JJ.
   PER CURIAM.

This is a petition for second-tier certio-rari in a case involving a claim for Personal Injury Protection (PIP) benefits. The petition is denied on authority of United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009), petition for review pending, No. SC09-2100, proceedings stayed (Fla. Jan. 5, 2010).

Petition denied.


text:
    Gerardo BOSQUES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1409.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.

      Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See A.F. v. State, 850 So.2d 667, 668 (Fla. 4th DCA 2003).


author: WEBSTER, J.

text:
    Stephanie SMITH, Appellant, v. GULF COAST HOSPITAL and Broadspire-Tampa, Appellees.
    No. 1D09-5161.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Michael J. Valen of Thomas J. Ueber-schaer, P.A., Pensacola, for Appellant.
    Tracey J. Hyde of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Panama City, for Appellees.
   WEBSTER, J.

In this workers’ compensation appeal, claimant seeks review of an order awarding her attorney fees based on the customary hourly rate in the area, rather than the fee schedule set out in section 440.34(1), Florida Statutes (1999). Because we conclude the judge of compensation claims abused her discretion by doing so, we reverse, and remand with directions that the judge award claimant’s attorney a fee in the amount established by applying the statutory fee schedule.

The judge of compensation claims considered the factors listed in section 440.34(1), concluding that two — the amount involved and benefits obtained, and the contingent nature of the fee — -were positive; that only one — the fee customarily charged in the area — -was negative; and that the rest were neutral. She determined that a fee based on the statutory fee schedule would amount to $35,367.55, or roughly $643.00 per hour. Solely because such a fee would result in an hourly rate “higher than is typically awarded in the district,” the judge concluded that the presumptive statutory fee would be inappropriate. Instead, she awarded $200.00 per hour for 35 hours, resulting in a fee of only $7,000.00.

The outcome of this appeal is controlled by our decision in Alderman v. Florida Plastering, 805 So.2d 1097 (Fla. 1st DCA 2002). In Alderman, the judge of compensation claims awarded a fee substantially lower than the presumptive fee established by the statutory fee schedule based principally on the conclusion that the presumptive fee (which worked out to $847.00 per hour) was excessive given the customary hourly rates in the area, which were between $150.00 and $300.00. We reversed, noting that, because “[t]he presumptive attorney’s fee authorized by section 440.34(1) is a contingent fee based on the value of the benefits obtained,” “the judge of compensation claims placed undue reliance on the customary hourly rate in departing from the statutory formula.” Id. at 1100. We said, further, that, while “[a] judge may properly consider the fee customarily charged in the locality for similar legal work, ... it is unlikely that this factor could provide the sole basis for a departure, particularly if the customary fee is based on an hourly rate,” because “[a] decision to displace the statutory calculation with a fee based on hourly rate would effectively defeat the contingent fee arrangement implemented by the statute.” Id. The same analysis here mandates the same result.

The judge of compensation claims relied principally on Trans World Tire Co. v. Hagness, 651 So.2d 124 (Fla. 1st DCA 1995), to support her decision. However, that case is readily distinguishable. There, the employer and carrier appealed a fee award to the claimant’s attorney, arguing that, because the award broke down to approximately $1,699.00 per hour, it was excessive. We affirmed the award. Although the judge of compensation claims had departed downward from the presumptive statutory fee by roughly 16 percent to arrive at the fee ultimately awarded, this downward departure was not an issue in the appeal. If anything, the decision in Trans World Tire supports the conclusion that the presumptive statutory fee in this case would not be excessive.

We reverse the award of attorney’s fees, and remand with directions that the judge of compensation claims award claimant’s attorney a fee in the amount established by applying the statutory fee schedule.

REVERSED and REMANDED, with directions.

PADOVANO and ROBERTS, JJ„ concur.


author: COHEN, J. LAWSON, J.,

text:
    T & W DEVELOPERS, INC., d/b/a Hollywood Estates, Appellant, v. Ray SALMONSEN, Richard Hayman, et al., Appellees.
    No. 5D08-3158.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.

      David D. Eastman and Carol S. Grond-zik of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Tallahassee, for Appellant.
    G. Philip J. Zies and Christopher C. Martin of Zies Widerman & Malek, Melbourne, for Appellees.
   COHEN, J.

We review the trial court’s order granting prevailing party attorney’s fees pursuant to section 723.068, Florida Statutes (2005), in favor of Appellees, .the Homeowners’ Association of Hollywood Estates and certain residents as class action plaintiffs. Although Appellant, T & W Developers, Inc. (“T & W”), challenges both entitlement to, and the amount of, attorney’s fees and costs awarded, we only address the issue of entitlement because we conclude that neither party was entitled to attorney’s fees. Accordingly, we reverse.

Hollywood Estates is an age-restricted mobile home subdivision governed by a deed of restrictions. In relevant part, the deed of restrictions requires T & W to provide certain maintenance services, trash collection, security patrol, and “Cable Television basic services.” In exchange for these services, the residents of Hollywood Estates pay a monthly fee to T & W. The deed of restrictions also created the Hollywood Estates Review Committee (“HERC”) to enforce certain of its provisions.

This litigation arose after Denley and Corina Daw purchased T & W’s outstanding stock. The Daws informed the residents of Hollywood Estates that the deed of restrictions violated federal and state fair housing laws because it did not validly qualify as an age-restricted community. As a result, the Daws informed the residents that Hollywood Estates would operate as an all-ages mobile home subdivision in the absence of an amendment. The residents were also informed that T & W was only required to provide basic cable television services, instead of the expanded cable services they were receiving.

In response, the residents amended the deed of restrictions to comply with the fair housing laws and preserve the age-restricted status of the mobile home subdivision. The amendment also empowered the Homeowners’ Association of Hollywood Estates with the right to approve any sale, conveyance, or transfer of a lot in order to maintain the age-restricted character of the mobile home subdivision. Still concerned it could face liability for a housing discrimination claim, T & W filed a three-count complaint seeking injunctive and declaratory relief.

Count I of the complaint sought injunc-tive relief and was denied. Count II sought a declaration that the amendment to the deed of restrictions was invalid because it unreasonably changed Hollywood Estates’ general plan of development and that HERC was the only entity empowered to enforce the deed of restrictions. Count III sought a declaration that the provision requiring it to provide “Cable Television basic services” was, alternatively, (1) unenforceable, (2) only required it to provide access to basic cable television but not pay each lot owner’s cable programming, (3) only required it to provide basic service programming as defined by the FCC, or (4) declare that section 723.037, Florida Statutes (2003), applied to the parties and permitted T & W to reduce or eliminate the cable television seivice it was providing.

After receiving cross-motions for summary judgment and hearing argument, the trial court granted summary judgment for Appellees on count II and for T & W on count III. On count II, the trial court ruled that the amendment to the deed of restrictions was valid and that the Homeowners’ Association, not HERC, had the power to approve the sale or transfer of any lot. As to count III, the trial court ruled that section 723.037 applied to Hollywood Estates. The trial court reserved jurisdiction to determine entitlement to, and the amount of, attorney’s fees and costs.

Both parties filed motions for attorney’s fees. The trial court found that Appellees prevailed on the substantial issues in the case and were entitled to attorney’s fees under section 723.068 as the prevailing party. Appellees subsequently filed a second motion for clarification after a dispute arose as to what fees they were entitled. T & W asserted that Appellees were not entitled to fees on count II because it did not implicate chapter 723. T & W also argued that because the trial court granted summary judgment in its favor on count III, Appellees were not the prevailing party and thus not entitled to fees. T & W instead asserted that it was the prevailing party and entitled to attorney’s fees under section 723.068. The trial court rejected both of these arguments and awarded Ap-pellees $61,940 in attorney’s fees and $795.60 in costs. This timely appeal followed.

Generally, a trial court’s determination of which party prevailed and its award of attorney’s fees is reviewed for an abuse of discretion. See Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007); Colonel v. Meyerson, 921 So.2d 690, 691 (Fla. 5th DCA 2006). However, when entitlement rests on the interpretation of a statute or contract, our review is de novo. Hinkley, 971 So.2d at 956.

Section 723.068 states, “[ejxcept as provided in s.723.037, in any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney’s fee.” It is the requirement that the action “enforce” provisions of chapter 723 that leads us to conclude that neither party is entitled to an award of attorney’s fees.

Appellees contend the trial court properly awarded them attorney’s fees on count II because T & W’s complaint alleged that this count, in part, arose under chapter 723, the deed of restrictions was amended in derogation of section 723.058, and the prevailing party was entitled to attorney’s fees pursuant to section 723.068. Were simply invoking chapter 723 sufficient to confer entitlement to attorney’s fees, we would be compelled to affirm the trial court. However, when we look at the true nature of the relief requested and argued by T & W, it is clear that count II was not an action to enforce any provision of chapter 723.

Count II challenged the validity of the amendment to the deed of restrictions. This count incorporated a number of general allegations supporting invalidation, some invoking provisions of chapter 723. However, the specific allegations of the count, when coupled with the argument proffered at the summary judgment hearing, indicates that the ultimate relief requested was invalidation of the amendment because it destroyed Hollywood Estates’ general plan of development and disregarded the intent of the deed of restrictions by empowering the Homeowners’ Association of Hollywood Estates, instead of HERC, with the authority to preserve Hollywood Estates’ age-restricted character. These issues do not raise violations of, or otherwise implicate chapter 723. Consequently, this count did not seek to enforce any provision of chapter 728 and Appellees were not entitled to attorney’s fees.

As previously set forth, Count III pled four alternative forms of relief. However, the only relief T & W argued and sought at the summary judgment hearing was a declaration that the procedure in section 723.037 applied to the parties and allowed it to reduce or eliminate the cable television services it was providing. The trial court framed the issue as “whether or not [T & W] can invoke the procedure ... in section 723.037,” and ruled that it could. Despite this favorable ruling, the trial court concluded that T & W was not the prevailing party because Appellees conceded that section 723.037 applied and it did not prevail on obtaining the other alternative relief it requested. This conclusion was incorrect for two reasons.

First, whether section 723.037 applied and T & W could use its procedure was not conceded by Appellees. At the summary judgment hearing, Appellees argued that T & W had to obtain approval from a majority of the lot owners, as required by the deed of restrictions, if it wanted to reduce or eliminate the cable television services it was providing. Second, the fact that T & W chose not to pursue the alternative relief pled in this count does not compel a conclusion that Appellees were the prevailing pai'ty. This is because a prevailing party is one who prevails on the “significant issues tried before the court.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). The only issue tried concerning count III was the applicability of section 723.037, and T & W’s right to use its procedure to reduce or eliminate cable television services. The trial court ruled that section 723.037 applied. Consequently, Appellees did not prevail on count III, and the trial court erred in finding that they were entitled to attorney’s fees as the prevailing party.

The trial court’s declaration that T & W could use the procedure in section 723.037 does not compel the conclusion that T & W is entitled to prevailing party attorney’s fees, pursuant to section 723.068. The primary issue that was litigated concerning count III was the procedure T <& W was required to use in order to reduce or eliminate the cable television services it was providing. T & W argued that section 723.037 set forth the proper procedure. Appellees asserted that the deed of restrictions controlled. Consistent with its argument to the trial court, T & W contends it was the prevailing party, now entitled to attorney’s fees, on the issue “of the application of section 723.037 to reduce or change services.” The flaw with this argument is that section 723.037 does not provide for reducing, changing, or eliminating any services.

If a mobile home park owner wants to increase the lot rental amount, reduce services or utilities, or change the mobile home park’s rules and regulations, the Legislature has created a dispute resolution process. See § 723.037. This process mandates the park owner notify the affected homeowners of the proposed change. § 723.037(1). Subsequently, the park owner and a committee formed by the affected homeowners meet to discuss the proposed change. § 723.037(4)(a). If an agreement cannot be reached, then either party can petition the Department of Professional and Business Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, to mediate the dispute. §§ 723.037(5)(a), (b). Alternatively, either party may file suit. The refusal of a party to mediate forecloses any recovery of that party’s attorney’s fees pursuant to chapter 723. See § 723.037(6).

T & W’s argument might have persuasive force if the crux of the dispute was whether the parties had to engage in the statutory dispute resolution process. However, the issue was whether T & W could reduce or eliminate providing cable television services by using the procedure in section 723.037. By its express terms, section 723.037 neither authorizes, nor prohibits a park owner from reducing or eliminating the services it provides to the homeowners. Instead, it provides a method whereby the mobile home park owner and the residents may attempt to informally resolve any dispute arising from a proposed lot rental increase, reduction of service or utilities, or change in the mobile home park’s rules and regulations. Thus, obtaining a declaration that it could use the procedure in section 723.037 granted T & W only the right to begin the dispute resolution process. This is a far cry from the relief T & W ultimately desired: reducing or terminating the cable television services it was providing.

Based on the foregoing, we reverse the trial court’s award of attorney’s fees and costs to Appellees.

REVERSED.

SAWAYA, J., concurs.

LAWSON, J., dissents, with opinion.

LAWSON, J.,

dissenting.

I would affirm the award of attorney’s fees to Appellees. Section 723.058(1), Florida Statutes, provides, in relevant part, that:

No mobile home park owner or subdivision developer shall make or enforce any rule, regulation, or rental agreement provision which denies or abridges the right of any mobile home owner or owner of a lot in a mobile home subdivision to sell his or her mobile home within the park or mobile home subdivision ...

In its complaint below (count II), Appellant challenged the amended deed restrictions on grounds that they unlawfully denied or abridged the right of Hollywood Estates owners to sell their mobile homes. In short, Appellant alleged that before the amendment, Hollywood Estates was not an “age 55” community, and owners could sell to younger buyers. Because the amendment “transform[ed] Hollywood Estates from an ‘all-ages’ community to a '55 or older’ community,” the amendment denied or abridged the right of Hollywood Estates owners to sell their property in violation of section 723.058(1). On these grounds, Appellant’s complaint sought to have the amendment declared invalid. Because Appellant was seeking “to enforce” this provision of chapter 723, the complaint alleged that Appellant would be entitled to an attorney’s fee award if it prevailed.

As noted by the majority, section 723.068 provides for the award of prevailing party attorney’s fees in any proceeding “to enforce provisions of this chapter[.]” Because count II of the complaint sought to enforce section 723.058(1), and because Appellees prevailed on that count, fees were properly awarded.

      . The trial court's ruling on the motions for summary judgment is not being challenged.

      . Our conclusion is bolstered by the Legislature's subsequent amendment providing that the "meetings and discussions are intended to be in the nature of settlement discussions prior to the parties proceeding to mediation of any dispute.” § 723.037(4)(e), Fla. Stat. (2005).


author: VILLANTI, Judge.

text:
    Michael C. ADDISON and Richard T. Petitt, for themselves and all others similarly situated, Appellants, v. CITY OF TAMPA, Florida, Individually, and as representative of all other Florida municipalities similarly situated, Appellee.
    No. 2D09-3574.
    District Court of Appeal of Florida, Second District.
    April 7, 2010.
    F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppell & Burns, LLP, Clear-water; Stephen A. Scott of Stephen A. Scott, P.A., Gainesville; Joseph C. Moffa of Moffa & Gainor, P.A., Fort Lauderdale; Brett Alan Panter and David Sampedro of Panter, Panter & Sampedro, P.A., Miami; and Herbert T. Schwartz of Bailey & Ga-lyen, Houston, Texas, for Appellants.
    Chip Fletcher, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, and Melvia B. Green, Assistant City Attorney, for Appellee.
   VILLANTI, Judge.

Michael C. Addison and Richard T. Pet-itt, for themselves and all others similarly situated (Appellants), appeal the trial court’s order that decertified the defendant class in this action concerning the constitutionality of imposing certain occupational license taxes on attorneys. This decertification order was based on an earlier ruling that had relied on the home venue privilege to dismiss all of the members of the defendant class that were not located in Hillsborough County. Appellants sought review of the trial court’s venue order in Addison v. City of Tampa.

In the pleadings filed in this case, Appellants conceded that if this court affirmed the dismissal of the non-Hillsborough County defendants in case number 2D09-1968, this court should also affirm the ruling decertifying the class in this case because a “class” of four defendants would be improper. See Fla. R. Civ. P. 1.220(a)(1) (defining the “numerosity” requirement for class certification as arising when “the members of the class are so numerous that separate joinder of each member is impracticable”). In Addison v. City of Tampa,, No. 2D09-1968, — So.3d -, 2010 WL 1328939 (Fla. 2d DCA Apr. 7, 2010), this court affirmed the dismissal of the non-Hillsborough County defendant class members. Accordingly, we affirm the order decertifying the defendant class as well.

Affirmed.

WHATLEY and SILBERMAN, JJ., Concur.


author: TAYLOR, J.

text:
    Pierre ELLIOTT and Lisa Elliott, Appellants, v. AURORA LOAN SERVICES, LLC, Mortgage Electronic Registration Systems, Inc., as nominee and Stonebrook Estates Community Association, Inc., Appellees.
    No. 4D08-4362.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Nathaniel E. Green of Nathaniel E. Green, P.A., Fort Lauderdale, for appellants.
    Patricia A. Arango of the Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for Appellee-Aurora Loan Services, LLC.
   TAYLOR, J.

Pierre and Lisa Elliott appeal a final judgment of foreclosure entered for Aurora Loan Services, LLC (Aurora). Because the trial court erred in denying the El-liotts’ verified motion to vacate default and, consequently, erred in entering the final judgment of foreclosure, we reverse.

On March 7, 2008, Aurora filed a complaint against the Elliotts to foreclose on their mortgage. The Elliotts received the summons and complaint on March 11, 2008. According to their verified motion, on March 11, 2008, Lisa Elliott contacted Aurora’s attorney, as directed in a letter attached to the complaint. The attorney instructed they call Aurora directly. The Elliotts did so and they then began a workout agreement. Lisa Elliott, in the verified motion, stated that they reached a proposed “Special Forbearance Agreement” with Aurora, dated June 27, 2008.

Due to the Elliotts’ failure to file any papers, Aurora moved for an entry of default against the Elliotts, which was entered on May 21, 2008. Further, on May 21, 2008, Aurora filed a Motion for Summary Judgment and Motion for Attorneys Fee’s and Memorandum (along with supporting affidavits).

Lisa Elliott stated in the verified motion that they discovered the entry of default for the first time on August 27, 2008. They filed then* Verified Motion to Vacate Default with Proposed Answer and Affirmative Defenses on September 3, 2008.

At the hearing on September 24, 2008, the trial court denied the Elliotts’ verified motion to vacate default and granted Aurora’s motion for summary judgment. The court then entered the final judgment of foreclosure.

The Elliotts argue the court erred by denying their verified motion to vacate default. “ ‘An order denying a motion to vacate a default is reviewed under an abuse of discretion standard.’ ” Jeyanandarajan v. Freedman, 863 So.2d 432, 433 (Fla. 4th DCA 2003) (quoting Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001)).

Florida Rule of Civil Procedure 1.500(a) (2008) provides that a clerk may enter a default against a party who fails to file any papers or pleadings. The court may set aside this default, however, under Rule 1.540(b). Fla. R. Civ. P. 1.500(d). “ ‘Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits.’ ” Jeyananda- rajan, 863 So.2d at 433 (quoting Lloyd’s Underwriter’s, 801 So.2d at 139).

Rule 1.540(b) provides that if the terms are just, the court may relieve a party from a final order for mistake, inadvertence, surprise, or excusable neglect. To set aside the default pursuant to this rule, the court must determine: “(1) whether the defendant has demonstrated excusable neglect in failing to respond[;] (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, had demonstrated due diligence in seeking relief.” Halpern v. Houser, 949 So.2d 1155, 1157 (Fla. 4th DCA 2007) (citing Schwartz v. Bus. Cards Tomorrow, Inc., 644 So.2d 611, 611 (Fla. 4th DCA 1994)). Because the Elliotts demonstrated these elements, the court abused its discretion in denying their motion to vacate the default.

Excusable neglect is found “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985). Although ignorance of the law and failure to understand consequences are not viable excuses, “a reasonable misunderstanding between attorneys regarding settlement negotiations does constitute excusable neglect sufficient to vacate a default.” Gables Club Marina, LLC v. Gables Condo. & Club Ass’n, Inc., 948 So.2d 21, 23-24 (Fla. 3d DCA 2006). In Gables Club, the parties’ attorneys were engaged in settlement talks, and the court found it reasonable that the defendant believed it need not file an answer to the plaintiffs complaint. Id. at 24.

“ ‘Excusable neglect must be proven by sworn statements or affidavits.’ ” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998)). Here, the Elliotts filed a verified motion containing properly sworn statements, as follows:

2. Defendants were served with summons and complaint on or about March 11, 2008.
3. On or about March 11, 2008 I, Lisa Elliott, contacted the attorney for AURORA at 305-670-2299 to discuss resolution of the complaint. I was instructed to contact the lender.
4. I contacted AURORA and began a workout agreement which lead to a proposed “Special Forbearance Agreement” dated June 27, 2008. See attached letter from Aurora Loan Services marked Exhibit “A”.

Aurora filed no refuting affidavits or other evidence to rebut the Elliotts’ claims that the parties were engaged in settlement negotiations.

In Gibson Trust, Inc. v. Office of the Attorney General, 883 So.2d 379, 382 (Fla. 4th DCA 2004), we vacated the default entered by the trial court, stating that “[b]ecause the defendants’ affidavits were uncontradicted and established that there was a ‘misunderstanding’ regarding whether an extension had been agreed upon, we conclude that excusable neglect was shown.” Similarly, here, the Elliotts’ verified motion indicates they began a workout agreement with Aurora, which led to a proposed “Special Forbearance Agreement.” Aurora failed to file any affidavits refuting this. Therefore, the Elliotts’ un-contradieted verified motion established excusable neglect.

A meritorious defense is established where a “proposed answer [is] attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses.” Fortune Ins. Co. v. Sanchez, 490 So.2d 249, 249 (Fla. 3d DCA 1986). We similarly held that where a party “immediately filed a proposed answer with affirmative defenses upon receipt of the plaintiffs’ motion to set the cause for trial on damages,” the meritorious-defense and due-diligence elements were met. Broward County v. Perdue, 432 So.2d 742, 743 (Fla. 4th DCA 1983). The Elliotts’ verified motion to vacate default contained a proposed answer and affirmative defenses, which met the meritorious-defense element.

Finally, due diligence, which is a test of reasonableness, must be evaluated based on the facts of the particular case. Franklin v. Franklin, 573 So.2d 401, 403 (Fla. 3d DCA 1991). Due diligence must be established with evidence, which includes a sworn affidavit. Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 17 (Fla. 5th DCA 2009).

Here, although the default was entered on May 21, 2008, Lisa Elliott, in the verified motion, stated that they discovered the default for the first time on August 27, 2008. Again, this sworn allegation was not refuted by Aurora. Upon discovering the default, the Elliotts filed the verified motion to vacate the default, along with the proposed answer and affirmative defenses; it was dated August 28, 2008, but not rendered with the clerk of court until September 3, 2008. Only six days elapsed between the time the default was discovered and the time the motion to vacate was filed. It has been held that six-day, seven-day, and fifteen-day time lapses between the discovery of a default and the filing of a motion to vacate that default showed due diligence. (See Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 303 (Fla. 2d DCA 2004) (citing Goodwin v. Goodwin, 559 So.2d 109 (Fla. 2d DCA 1990) (six-day delay)); Coquina Beach Club Condo. Ass’n v. Wagner, 813 So.2d 1061 (Fla. 2d DCA 2002) (seven-day delay); Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990) (fifteen-day delay)). Thus, the Elliotts exercised due diligence by filing the motion to vacate the default within six days of discovery of the default.

Because the Elliotts demonstrated the elements necessary to set aside the default, the trial court abused its discretion in denying their motion and subsequently entering the final judgment of foreclosure.

Accordingly, we reverse the final judgment of foreclosure and order denying the Elliotts’ motion to vacate the default.

Reversed and Remanded.

FARMER and MAY, JJ., concur.

      . The foreclosure sale was set for November 26, 2008, but the parties agreed to stay the case and cancel the sale pending this appeal.

      . Although the Gables Club court states that there must have been a "reasonable misunderstanding between attorneys,” this is met because the Elliotts were proceeding pro se.


author: FARMER, J.

text:
    McLAUGHLIN, INC., Appellant, v. RIC-MAN INTERNATIONAL, INC., Appellee.
    No. 4D08-3703.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      George P. Ord of Murphy & Reid, LLP., Palm Beach Gardens, for appellant.
    Lori R. Shapiro and Ira L. Libanoff of Ferencik, Libanoff, Brandt, Bustamante & Williams, P.A., Fort Lauderdale, for appel-lee.
   FARMER, J.

We affirm the final judgment in all respects except for the issue of prejudgment interest.

Préjudgment interest is proper for a recovery based on quantum meruit. McCarthy v. Estate of Krohn, 16 So.3d 193, 195 (Fla. 4th DCA 2009) (law firm entitled to quantum meruit fee after being discharged in contingent fee case is entitled to prejudgment interest from date fee due); Rohrback v. Dauer, 528 So.2d 1362, 1364 (Fla. 3d DCA 1988) (court erred in refusing prejudgment interest on quantum meruit recovery).

In Florida, damages are liquidated when a verdict fixes the date of loss. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla.1985). The date of loss for prejudgment interest is the date payment was due. Id. at 215. When losses occur on separate dates prejudgment interest should be calculated from the date each is due. Herrero v. Pearce, 571 So.2d 96, 97 (Fla. 1st DCA 1990) (past due child support, prejudgment interest calculated from date when father should have made each payment); Metro. Dade County v. Bouterse, Perez & Fabregas Architects Planners, Inc., 463 So.2d 526, 527 (Fla. 3d DCA 1985) (breach of contract for progress payments, prejudgment interest calculated from date each payment due).

In this case, the court awarded direct job costs incurred by McLaughlin based on two invoices and testimony. The first invoice was in April 2002 and the second in May 2002. McLaughlin’s out-of-pocket loss is certain as of these dates. On these two invoices, the court should have awarded prejudgment interest from the date of each.

Reversed only as to prejudgment interest; remainder affirmed,.

GROSS, C.J., and CIKLIN, JJ., concur.


author: GROSS, C.J.

text:
    Yuri JESUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4552.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, C.J.

After a jury trial, appellant was convicted of attempted burglary of a structure and possession of burglary tools. The trial court sentenced him to concurrent terms of one year and one day in prison. The judgment entered by the court stated that appellant had been convicted of attempted burglary as a second degree felony. Appellant filed a notice of appeal four days later. After the filing of the notice, the trial court entered a corrected judgment finding appellant guilty of burglary as a third degree felony.

Once the notice of appeal was filed, the trial court lacked jurisdiction to enter the corrected judgment nunc pro tunc to the date of the first judgment. See Kosa v. State, 923 So.2d 1285 (Fla. 4th DCA 2006); State v. Offill, 837 So.2d 533 (Fla. 2d DCA 2003); Campbell v. State, 789 So.2d 1213 (Fla. 1st DCA 2001). Thus, the only order on appeal is the original judgment.

The evidence at trial established only that appellant attempted to enter a structure. The evidence thus supports a conviction of attempted third degree burglary. “[A]n attempted burglary and a completed burglary of an unoccupied structure are both third-degree felonies.” Mejias v. State, 731 So.2d 728, 732 (Fla. 3d DCA 1999) (Cope, J., dissenting) (citations omitted). We reverse the original judgment and remand to the circuit court for the entx-y of a corrected judgment indicating that appellant was convicted of attempted third degree burglary, a third degree felony. See §§ 810.02(4)(a), 777.04(4)(d)2, Fla. Stat. (2007).

POLEN and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., Pediatrix Medical Group, Inc., Marga Figueroa-Marquez, M.D., Educardo Otero, M.D., Galdino Silva-Neto, M.D., and Luciano Tanfulla, M.D., Petitioners, v. Mia FALCONER, a minor, by and through Cassandra Robles and Marlando Falconer, her parents and natural guardians, Cassandra Robles, individually and as parent of Mia Falconer and Marlando Falconer, individually and as parent of Mia Falconer, Respondents.
    No. 4D09-3584.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Thomas C. Heath of Heath & Carciop-polo Chartered, Fort Lauderdale, for petitioners.
    Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, for respondents.
    David W. Black and Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for Amicus Curiae Florida Birth-Related Neurological Injury Compensation Association.
   HAZOURI, J.

Pediatrix Medical Group of Florida, Inc., and several neonatologist doctors individually (Pediatrix), petition for certiorari review to quash a trial court order which denied their motion for summary judgment. Pediatrix argues they are immune from suit under the exclusiveness of remedy provision of the Florida Neurological Birth-Related Injury Compensation Plan (NICA or “the plan”). § 766.303(2), Fla. Stat. (2009) (explaining that rights and remedies under the plan “exclude all other rights and remedies ... against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury”).

Because this case involves a claim of statutory immunity from suit, certiorari jurisdiction is appropriate. Orlando Reg’l Healthcare v. Alexander, 932 So.2d 598, 600 (Fla. 5th DCA 2006) (explaining that certiorari lies to review claims of immunity under NICA).

We grant the petition and remand for further proceedings consistent with Florida Birth-Related Neurological Injury Compensation Ass’n v. Department of Administrative Hearings, 29 So.3d 992 (Fla.2010), which was decided while this petition was pending.

The relevant facts are as follows: the parents of a severely brain damaged child who suffered birth-related neurological injuries sued Pediatrix. They alleged that the neonatologists were negligent in failing to properly manage the child’s care while she was in the intensive care unit at the hospital after delivery. The parents also sued the delivering doctor and hospital.

Under NICA, an administrative law judge (ALJ) is to make the initial determination of whether a claim is compensable under the plan. § 766.304, Fla. Stat. (2009). In the administrative proceedings, the parties stipulated that the claim was compensable because the delivering doctor was a participating physician, and the doctor and hospital had complied with the notice provisions of NICA. The parents accepted NICA benefits and did not object to summary judgments entered for the delivering doctor and hospital.

Thereafter, Pediatrix moved for summary judgment based on the exclusiveness of remedy provision of section 766.303(2). The circuit court denied summary judgment, finding that the Pediatrix doctors were not immune from suit, as the exclusivity provision did not apply to them because they are not “participating physicians” under the plan. § 766.302(7) (defining a “participating physician” as one who practices obstetrics or “performs obstetrical services” and who has paid the yearly assessment required for participation). This petition followed.

In Florida Birth-Related Neurological Injury Compensation Ass’n v. Department of Administrative Hearings, 29 So.3d 992 (Fla. 2010), the Florida Supreme Court held that, to be entitled to NICA protections, both a participating physician and a hospital with a participating physician on its staff, were required to provide notice under section 766.316, Florida Statutes (2009). Id. at 998. The court went on to clarify, however, that NICA protections were “severable” as to the defendants and explained:

Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and, forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed, to give notice and forgo any remedies under NICA.

Id. (emphasis added). This makes clear that, once a claimant accepts NICA benefits for a compensable claim, the claimant forgoes any civil suit against “any person or entity [including non-covered persons or entities] directly involved with the labor, delivery, or immediate postdelivery resuscitation.” § 766.303(2). When a claim is compensable under NICA as to some persons or entities involved, but not others, a claimant must elect to accept the NICA no-fault benefits or to pursue a civil action against any non-covered persons or entities. The remedies are mutually exclusive.

The plain language of section 766.303(2) bars double recovery for a com-pensable injury under NICA. See also § 766.304, Fla. Stat. (2009) (“If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under § 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of § 766.303.”); Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705, 711 (Fla.2007) (“If the ALJ determines that a claim is compensable, compensation under the NICA Plan becomes the claimant’s exclusive remedy. A claimant may not bring or maintain a civil suit in violation of NICA’s exclusive remedy provision.” (citation omitted)). An ALJ’s interpretation of the plan is reviewed de novo, while its findings of fact are upheld if supported by competent, substantial evidence. Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002). Had the plaintiffs not accepted the NICA benefits, they could have pursued a claim against a non-covered provider of obstetrical services, such as a non-participating physician or one that failed to provide required notice.

The trial court departed from the essential requirements of law in failing to properly implement the exclusiveness of remedy provision of section 766.303(2). The trial court was under the mistaken impression that a claimant could accept NICA benefits as to the covered parties and still proceed in a civil action against a nonparticipating physician for a covered injury.

The plaintiffs also argued that NICA does not apply, and that they were entitled to pursue a civil action against Pediatrix, because Pediatrix’s alleged negligence caused injury to the child that did not occur during “the labor, delivery, or immediate postdelivery resuscitation.” The trial court did not rule on this point. Pediatrix administered postdelivery care in the pediatric intensive care unit. Whether an injury occurred during resuscitation in the immediate postdelivery period requires a case-by-case analysis. See Orlando Reg’l Healthcare Sys., Inc. v. Fla. Birth-Related Neurological, 997 So.2d 426, 430 (Fla. 5th DCA 2008).

On remand, the trial court should consider plaintiffs argument that Pediatrix’s alleged negligence caused injury outside the covered period and, therefore, NICA would not be their exclusive remedy. The question of whether the claim against Pe-diatrix is compensable under the plan may need to be referred to the ALJ for a determination if that determination has not already been made. § 766.304 (explaining that ALJ has exclusive jurisdiction to determine whether claim is compensable and that “[n]o civil action may be brought until the determinations under § 766.309 have been made by the administrative law judge”); § 766.309(l)(a) (requiring ALJ to find whether injury claimed is a “birth-related neurological injury”). In the administrative proceedings, plaintiffs stipulated that their claim was compensable under NICA as to the delivering doctor and hospital. The record is silent as to whether compensability of the claim made against Pediatrix was considered or determined in the administrative proceeding.

The petition is GRANTED, and this matter is remanded for further proceedings consistent with this opinion.

FARMER and STEVENSON, JJ., concur.

      . We reject petitioner’s argument that the exclusiveness of remedy provision protects all physicians involved in a birth, or immediate post-delivery resuscitation, as long as one physician participates in the plan. To be entitled to the plan's protections, each physician practicing obstetrics or performing obstetrical services must pay the yearly assessment. § 766.302(7), Fla. Stat. (2009). A contrary reading would render the definition of a "participating physician” nugatory and would undermine funding for the plan.