author: SAWAYA, J.

text:
    Scott ELLIS as Brevard County Clerk of Court, Appellant, v. Jack Watkins HUNTER, et al., Appellees.
    No. 5D08-162.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2009.

      Richard E. Stadler, of Stadler & Harris, P.A., Titusville, for Appellant.
    Howard M. Swerbilow of Law Office of Caruso & Swerbilow, P.A., Merritt Island, for Appellee Bernard W. Simpkins.
    No Appearance for other Appellees.
   SAWAYA, J.

This case involves application of section 903.286, Florida Statutes (2007), which provides in pertinent part that the clerk of court is to withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a licensed bail bondsman “any unpaid court fees, court costs, and criminal penalties.” The issues we must resolve are whether section 903.286 is constitutional and, if so, whether the statute should be interpreted to mean sums owed only in the particular case for which bond was posted or whether it encompasses all of a defendant’s cases. These issues come to us via the following certified question posed by the County Court: “Is Florida Statute 903.286 constitutional and if so [what] is the statutory interpretation as to the definition of ‘any costs and fees.’ ” We restate the questions as follows to more accurately reflect the specific issues raised:

Does section 903.286 violate the constitutional provisions relating to due process, equal protection, excessive bail, eminent domain, or the single subject rule?
Does section 903.286 apply to any unpaid fees, court costs, and criminal penalties in all of the defendant’s criminal cases?

Resolution of these issues does not require a detailed discussion of the underlying facts of the crime the defendant, Jack Hunter, was convicted of committing. Suffice it to say that after Hunter was charged with driving under the influence of alcohol, another individual, Bernard Simpkins, who was previously Hunter’s father-in-law, posted a cash bond in the amount of $5,000 to secure Hunter’s release from jail. The bond form Simpkins signed specifically provided:

1) Section 903.286, Florida Statutes, requires the Clerk of the Court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid court fees, court costs and criminal penalties.
2) A refund will only be made if the cash bond is more than what is owed on ALL of the defendant’s cases.

Specifically referenced in the bond is section 903.286, Florida Statutes, which provides:

Notwithstanding the provisions of s. 903.31(2), the clerk of the court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid court fees, court costs, and criminal penalties. In the event that sufficient funds are not available to pay all unpaid court fees, court costs, and criminal penalties, the clerk of the court shall immediately obtain payment from the defendant or enroll the defendant in a payment plan pursuant to s. 28.246.

§ 903.286, Fla. Stat. (2007). The statute was enacted effective July 1, 2005.

Hunter subsequently entered a plea to the DUI charge, and as part of his sentence the trial court assessed a total of $1,063.88 in fines, court costs, and fees. At the time of this assessment, Hunter had outstanding unpaid fines, costs, and criminal penalties in three other criminal cases totaling $3,936.12. Accordingly, the Clerk of Court deducted that sum, along with the $1,063.88 assessed in the instant DUI case, from the cash bond. After all the deductions, there was nothing to remit to Simp-kins.

Simpkins filed a motion protesting the Clerk’s refusal to return the cash appearance bond and requesting that the Clerk of Court be required to show cause why the bond should not be returned. A hearing was held, and the trial court concluded that section 903.286 is constitutional. The court further held that it only applies to costs, fees, and penalties associated with the case in which the bond was posted to assure the appearance of the defendant. Accordingly, the trial court ordered the Clerk to return to Simpkins any money deducted from the cash bond for unpaid costs, fees, or penalties not directly attributable to the specific case number for which Simpkins had posted the bond and certified to us the question previously quoted as a matter of great public importance.

The Clerk of Court appealed the final judgment, and this court accepted jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160 to answer the certified question posed therein. Because the issues reflected in the rephrased certified questions present purely legal questions that we must resolve, the appropriate standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”); Jones v. Mariner Health Care of Deland, Inc., 955 So.2d 43, 46 (Fla. 5th DCA 2007) (matters of statutory interpretation require application of the de novo standard of review); Dep’t of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 601 (Fla. 1st DCA 1999) (“A trial court decision on the constitutionality of a statute is reviewed by the de novo standard, because it presents a pure issue of law. The appellate court is not required to defer to the judgment of the trial court. Although trial court decisions are presumed to be correct, there is also a presumption in the law that a statute is constitutionally valid.”).

The Constitutional Challenges

The trial court considered several constitutional challenges to section 903.286 and rejected each. The trial court held that the statute did not violate the Due Process and Equal Protection Clauses of the Florida and Federal Constitutions, and further held that it does not allow an unlawful taking of property without just compensation. Simpkins raises other constitutional arguments, contending that the statute violates the single subject rule and allows for excessive bail. The first three constitutional challenges to section 903.286 were previously considered by this court and rejected in Biddle v. Ellis, 976 So.2d 103 (Fla. 5th DCA), review denied, 987 So.2d 79 (Fla.2008). Nevertheless, we will briefly discuss the constitutional challenges rejected by this court in Biddle and proceed to our discussion of the others. First, a brief discussion of some very general principles that will guide our analysis is in order.

Our analysis begins with a strong presumption in favor of the validity of legislative enactments. Statutes “should be held constitutional if there is any reasonable theory to that end.” Bonvento v. Bd. of Pub. Instruction, 194 So.2d 605, 606 (Fla.1967); see also Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925 (Fla.2005). The “unconstitutionality must appear beyond all reasonable doubt before [a statute] is condemned.” Bonvento, 194 So.2d at 606. In addition, courts will not declare a statute unconstitutional where the statute is capable of being construed in a constitutional manner. Sunset Harbour, Indus. Fire & Cas. Ins. Co. v. Kwechin, 447 So.2d 1337, 1339 (Fla.1983). Accordingly, a party “ ‘who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity.’ ” Dickerson v. State, 783 So.2d 1144, 1146 (Fla. 5th DCA 2001) (quoting Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999)).

Due Process

The basic due process guarantee of the Florida and Federal Constitutions is that “no person shall be deprived of life, liberty or property without due process of law.” U.S. Const. amend. XIV; Fla. Const. art. I, § 9. Fundamental to the concept of procedural due process is reasonable notice and opportunity to be heard. See, e.g., Dep’t of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991) (due process contemplates fair notice and a real opportunity to be heard).

The due process challenge Simpkins raised is based on the argument that he did not receive notice that the bond money would be used to pay all of Hunter’s outstanding obligations, nor did he have an opportunity to be heard and challenge the withholding of the return of the cash bail. We believe that this argument has very little merit. The record clearly shows that Simpkins was expressly notified of the provisions of section 903.286 in the bond form he signed. Moreover, the trial court, in rejecting this argument, also found that “[n]otice has been posted at the Brevard County Jail to advise arrested persons and their families about this statute.”

In rejecting a similar due process argument based on a statute similar to section 903.286, the Supreme Court of Wisconsin, in State v. Iglesias, 185 Wis.2d 117, 517 N.W.2d 175 (1994), explained that

with respect to providing adequate notice, “a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.... It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.”

Id. at 184 (quoting Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982)); see also Davis v. State, 928 So.2d 442, 448 (Fla. 5th DCA 2006) (rejecting the argument that the county violated the defendant’s due process rights when it failed to give him proper notice of code violations and an opportunity to correct them because “every person is presumed to know the law and ... ignorance of the law is no excuse.” (quoting Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 377 (Fla.2005))).

It is clear that section 903.286 does not prevent a person who posts a cash appearance bond from contesting the amount withheld or whether those amounts are properly owed by the defendant. Like we did in Biddle, we conclude that section 903.286 does not violate the Due Process Clause of the Florida or Federal Constitutions.

Equal Protection

The Equal Protection Clauses of the U.S. and Florida Constitutions protect against invidious discrimination from acts of the Legislature that, either by the language of their enactment or in their operation, create classifications of individuals. See FCC v. Beach, Commc’ns, Inc., 508 U.S. 307, 316, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); U.S. Const. amend. XIV; Fla. Const. art. I, § 2. Where, as in the present case, the statute at issue does not create a suspect classification (for example, a classification based on race), it is well settled that

the equal protection clause is violated only when the classification made by an act is arbitrary and unreasonable. When the differences in treatment between those included and those excluded from the class bear a real and substantial relation to the purposes sought to be attained by the act, the classification is valid as against an attack under the equal protection clause.

Daniels v. O’Connor, 243 So.2d 144, 146 (Fla.1971). In other words, rational basis review applies and the statutory classification must merely be based on “some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed.” Rollins v. State, 354 So.2d 61, 63 (Fla.1978); see also Beach, 508 U.S. at 314-16, 113 S.Ct. 2096. Section 903.286 clearly does not violate these requirements by treating licensed bail bondsmen differently from those individuals who post a cash bond. As the trial court correctly observed in the final judgment:

The state created the classification of bail bondsmen to serve a legitimate state purpose and to serve the public interest. In exchange for the right to operate a profitable business and afford the opportunity for arrestees to obtain pre-trial release from incarceration when they do not have sufficient cash resources to meet bail, bondsmen operate under strict restrictions and regulations. See Chapter 648, Florida Statutes.

We agree with this reasoning and conclude that section 903.286 does not violate the constitutional guarantee of equal protection under the laws.

Eminent Domain

The constitutional provisions relating to eminent domain prohibit the government from taking private property, unless the taking is for public use and just compensation is given. See U.S. Const. amend. V; Fla. Const. art. X, § 6. It is readily apparent that section 903.286 does not violate the Takings Clause. As the trial court correctly concluded below: “The posting of bond for oneself or another, as in this case, is totally voluntary. No one can be forced to post a bond. Those posting the bond are presumed to have knowledge of Sec. 903.286. Under these circumstances there can be no unconstitutional taking.”

Single Subject Rule

Our standard for reviewing legislation to determine whether it violates the single subject clause found in article III, section 6 of the Florida Constitution is highly deferential. Franklin v. State, 887 So.2d 1063 (Fla.2004). This deference requires indulgence of a presumption in favor of constitutionality even when the full title of the act is lengthy. Id. at 1073-75. To overcome this presumption, the invalidity of a statute must appear beyond a reasonable doubt. Id.

The single subject clause contains three requirements: 1) a law shall embrace only one subject; 2) the law may include any matter properly connected with the subject; and 3) the subject must be briefly expressed in the title. Franklin v. State, 887 So.2d 1063, 1072 (Fla.2004). There is a proper connection between a provision and the subject “(1) if the connection is natural or logical, or (2) if there is a reasonable explanation for how the provision is (a) necessary to the subject or (b) tends to make effective or promote the objects and purposes of legislation included in the subject.” Id. at 1078. “[I]n determining whether a reasonable explanation exists for the connection between a specific provision and the single subject, the court may consider the citation name, the full title, the preamble, and the provisions in the body of the act.” Id.

In Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), for example, the supreme court affirmed this court’s decision in Department of Highway Safety & Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002), and held that chapter 98-223, Laws of Florida, violated the single subject rule because it unconstitutionally combined “the subject of assigning the collection of bad check debt to a private debt collector with the subject of driving, motor vehicles, and vehicle registration.” Critchfield, 842 So.2d at 786.

Unlike the law at issue in Cntchfield, the chapter law that enacted section 903.286 complies with all three requirements of the single subject clause. That law is chapter 05-236, Laws of Florida. Our review of the title shows that the subject is briefly expressed and no other subjects are stated. The short title of chapter 05-236 expresses that it is “[a]n act relating to the state judicial system.” A review of the full title and the substantive provisions of the act reveal that the title and provisions of the act relate logically and naturally to the funding and functioning of various aspects of the judicial system. For example, section 903.286 relates to securing adequate funding for the judicial system by ensuring that fines, costs, and penalties imposed on convicted criminal defendants are actually collected. Accordingly, neither section 903.286 nor the enacting legislation violates the single subject rule or any other provision of the Florida or Federal Constitutions.

We note, parenthetically, that even if a single subject violation had occurred, section 903.286 was enacted effective July 1, 2005, by chapter 05-236, Laws of Florida, and was reenacted by chapter 06-3, as part of the adoption act, which is now submitted to the Legislature annually. See § 11.2421, Fla. Stat. (2006); Linda S. Jessen, Preface to Florida Statutes at vi (2006). Because Simpkins posted bond for Hunter on January 22, 2007, any single subject violation in section 903.286 was cured before Simpkins posted bond. See Dep’t of Highway Safety & Motor Vehicles v. Johnson, 980 So.2d 1118 (Fla. 5th DCA 2008).

Excessive Bail

The Eighth Amendment to the U.S. Constitution prohibits excessive bail. Similarly, the Florida Constitution provides that, with certain specified exceptions, every person charged with a criminal offense shall be entitled to release on reasonable conditions. See U.S. Const. amend. VIII; Fla. Const. art. I, § 14. A review of the relevant authorities yields two principal conclusions relevant to our analysis of section 903.286. First, a cash appearance bond may be applied to the payment of fines or costs imposed following a criminal defendant’s conviction where expressly authorized by statute. Second, where a statute specifically permits or requires that sufficient funds to pay any unpaid court fees, court costs, and criminal penalties be withheld from the return of a cash appearance bond, the statute does not violate constitutional provisions relating to excessive bail (a) if the amount of the bond is not calculated based on the amount of fees, costs, and penalties, and (b) the purpose of granting bail is to secure the appearance of the defendant and to protect the public.

For example, in Gustafson v. State, 251 So.2d 689 (Fla. 4th DCA 1971), the Fourth District Court of Appeal held that where a defendant complies with the terms of his bond by appearing before the court, return of the defendant’s cash bail may not be withheld to satisfy fines and costs imposed by the court. The court stated that “application of a cash appearance bond to the payment of fines or costs imposed by the court may be had only where specifically authorized by statute.” Id. at 690. The court further observed: “Decisions in other jurisdictions sustaining application of bail money to satisfy fines and costs particularly note the express statutory provisions for their authority to so hold.” Id. Therefore, the court held that the defendant’s bail should have been refunded because, at that time, there was “no statutory authorization in Florida for deducting costs from cash bail deposited by a defendant.” Id.

In United States v. Cannistraro, 871 F.2d 1210 (3d Cir.1989), the Court of Appeals for the Third Circuit addressed the constitutionality of a local rule in the lower tribunal, a federal district-court, that provided any fines or costs imposed against a criminal defendant constituted a lien on the amount of the cash bond, freezing the funds until the government obtained a writ of execution. The local rule effectively permitted the government to collect unpaid court costs and fines from the cash bail deposited by the defendant. The defendant argued the rule violated the Eighth Amendment because it resulted in bail being used for a purpose other than securing the defendant’s appearance. The court rejected this argument and held the local rule was constitutionally permissible. The court concluded that the local rule “does not amount to an additional condition resulting in violation of the eighth amendment, but rather, is a temporary procedural shortcut which allows the government to avoid having to move for a freeze order while proceeding in its efforts to obtain a writ of execution.” Id. at 1213.

On November 29, 1990, not long after the Cannistraro decision, Congress enacted 28 U.S.C. § 2044, which expressly required federal courts, upon motion of the U.S. Attorney, to order any money deposited with the court as a criminal appearance bond to be paid to the U.S. Attorney “to be applied to the payment of any assessment, fine, restitution, or penalty imposed upon the defendant.” 28 U.S.C. § 2044 (1992). In United States v. Higgins, 987 F.2d 543 (8th Cir.1993), the Court of Appeals for the Eighth Circuit addressed whether the statute violated the Eighth Amendment’s Excessive Bail Clause and found that it did not. The court in Higgins explained:

Section 2044 does not precondition bail on the payment of any fine. It is a simple procedural mechanism by which the government, after the purposes of bail have been served, may make a motion as a judgment creditor that the court order the bond fund be delivered to it. Although garnishments of bail and the like have often been disallowed as interfering with the judicial process and harmful to the purposes of bail, see, e.g., Bankers’ Mortgage Co. v. McComb, 60 F.2d 218, 221 (10th Cir.1932), as we noted, courts have long had the discretion to order the disbursal of bond funds, after the defendant has appeared and the purpose of bail has been served, to those with superior claims on the funds. See id.; United States v. Rubenstein, 971 F.2d 288, 294 (9th Cir.1992); Landau v. Vallen, 895 F.2d 888, 892 (2nd Cir.1990); United States v. Cannistraro, 871 F.2d 1210, 1212-13 (3rd Cir.1989); United States v. $250,000, 808 F.2d 895, 901 (1st Cir.1987); Fed.R.Civ.P. 69(a). Section 2044 is merely a procedural variant of that post-appearance discretion, and therefore does not implicate the excessive bail clause of the Eighth Amendment.

Id. at 547-48.

In State v. Iglesias, 185 Wis.2d 117, 517 N.W.2d 175 (1994), the Supreme Court of Wisconsin held that bond money posted by a third-party depositor was properly used to pay the costs and fines assessed against the convicted defendant because the use of the bond money in this manner was expressly authorized by state statute. The court further determined the state statute, Wisconsin Statute section 969.03(4), did not violate the prohibition on excessive bail contained in the U.S. or Wisconsin Constitutions. In reaching this conclusion, the court began by observing that bail is not excessive provided “it is used for a purpose which the legislature has deemed to be a compelling state interest. When the legislature identifies such an interest, the only constitutional limitation on bail is that its amount not be excessive relative to the interest sought to be furthered.” Id. at 181 (citing United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Relying on the reasoning in Higgins, the court determined the state statute in question did not render bail excessive because it did not even amount to a “use of,” or a precondition on, bail. The court explained:

Section 969.03(4) does not implicate the level at which bail is set, nor does it allow courts to set bail with an eye towards eventual imposition of a fine. Section 969.03(4) merely provides that once bail has been properly set, and after it has served its purpose of assuring the defendant’s appearance in court, the money can then be applied against the defendant’s fines. As the Higgins court explained, this does not constitute a “precondition” on or even a use of bail. Rather, it is simply a procedural mechanism by which the state can collect fines which have been duly imposed against the defendant. For these reasons, we do not believe sec. 969.03(4) violates the Excessive Bail Clause of the Eighth Amendment.

Id. at 182 (footnote omitted) (citing Higgins, 987 F.2d at 543).

Based on the foregoing, it is clear that section 903.286, Florida Statutes, does not violate the provisions of the U.S. or Florida Constitutions relating to excessive bail. There is nothing in the provisions of section 903.286 that requires or allows the trial court to consider the amount of unpaid fines, costs, or criminal penalties in establishing the amount of the bond, and there is absolutely nothing in the provisions of the statute that requires or allows the trial court to consider the fact that the defendant has unpaid fines, costs, or criminal penalties in granting the defendant bail. We note that in the instant case, the record does not reveal that the amount of the bond and the granting of bail were based on the fact that Hunter had unpaid fines, costs, and criminal penalties in other cases.

Statutory Interpretation

We now turn to the second certified question — the correct interpretation of the statute. Specifically, the issue is whether the language in section 903.286 pertaining to withholding unpaid fees, costs, and penalties from a cash bond should be interpreted to mean sums owed only in the particular case for which bond was posted or whether it encompasses all of a defendant’s cases. ‘When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). In instances where the statutory language is clear, we must read the statute as written and the statute’s plain and ordinary meaning must control. Id.

We believe that the trial court erred by narrowly interpreting section 903.286 to apply only to fines, costs, and penalties assessed in the case in which the bond was posted because the plain language of the statute declares that “sufficient funds to pay any unpaid court fees, court costs, and criminal penalties,” shall be withheld from the return of a cash bond. § 903.286, Fla. Stat. (2007) (emphasis added). The statute also clearly states that if the bond funds are insufficient “to pay all unpaid court fees, court costs, and criminal penalties, the clerk of the court shall immediately obtain payment from the defendant or enroll the defendant in a payment plan....” Id. (emphasis added). We believe that the statutory language clearly establishes the Legislature’s intention that the statute be applied to all of a defendant’s cases in which fines, costs, or criminal penalties remain unpaid.

If the Legislature intended to restrict section 903.286 to the case in which the bond was posted, it certainly knew how to employ the appropriate language to convey that meaning. Section 903.105, Florida Statutes, for example, allows a defendant to post an appearance bond by depositing a certain sum of money with the clerk or the sheriff. Section 903.105(5) specifically states:

If a final judgment for a fine and court costs, or either a fine or court costs, is entered in an action in which a deposit has been made in accordance with this section, the balance of such deposit, after deduction of bail costs as provided for herein, shall be applied to the satisfaction of the judgment.

§ 903.105(5), Fla. Stat. (2007) (emphasis added). This statute makes it apparent that the appearance bond will only be applied to satisfy fines, costs, or penalties associated with the case in which the bond was posted. However, when the Legislature drafted section 903.286, rather than include language similar to that used in section 903.105(5) to restrict application of the bond proceeds to the case in which the bond was posted, it included language that specifically states that the statute applies to “a cash bond posted on behalf of a criminal defendant” and further included very broad and all-inclusive language that the bond proceeds will be used to pay “any” and “all” of a defendant’s unpaid fines, costs or criminal penalties. § 903.286, Fla. Stat. (2007).

Our interpretation of section 903.286 is supported by the purpose for which it was enacted. Section 903.286 was enacted in 2005 as part of legislation aimed at fulfilling Revision 7 to Article V of the Florida Constitution, which allocated state court system funding among the state, counties, and users of the courts. See Fla. H.R. Judiciary Comm., HB 1935 (2005) Staff Analysis (April 26, 2005); see also Fla. Const. art. V, § 14(b) (“All funding for the offices of the clerks of the circuit and county courts ... shall be provided by adequate and appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions as required by general law.”). Thus, the purpose of section 903.286 is to secure adequate funding for the judicial system by ensuring that the costs, fees, and criminal penalties assessed against convicted criminal defendants are actually collected. Our interpretation of the statute directly advances this purpose.

Conclusion

We conclude that Simpkins has failed to meet his burden of overcoming the strong presumption of constitutionality that cloaks section 903.286. Having analyzed each constitutional challenge raised and the arguments in support thereof, we conclude that the first restated certified question should be answered in the negative. Based on our analysis of the clear and unambiguous language of the statute, we conclude that the second restated certified question should be answered in the affirmative.

Here, Simpkins knew full well when he signed the bond form that the money would be used to pay all of Hunter’s outstanding fines, costs, and criminal penalties in all of his cases. The bond form clearly informed Simpkins of that fact, and posting at the Brevard County jail advised inmates and their families that cash appearance bonds would be applied in that manner. Nevertheless, when Simpkins subsequently objected, he was afforded a full and fair hearing where those objections were considered by the trial court, and now, by this court. Having concluded that his constitutional objections fail and that his restrictive reading of section 903.289 is inappropriate, we affirm that part of the final judgment finding the statute constitutional and reverse that part of the judgment requiting repayment by the Clerk of the money used to pay all of Hunter’s fines, costs, and criminal penalties in any of his cases.

AFFIRMED in part; REVERSED in part.

ORFINGER, J. and PLEUS, R., Senior Judge, concur.

      . We note that effective July 1, 2008, the Legislature amended section 903.286. The amended statute makes minor grammatical changes to the previous version, which it designated as subsection 1, and adds subsection 2, which requires that cash bonds "prominently display a notice explaining that all funds are subject to forfeiture and withholding by the clerk of the court for the payment of court fees, court costs, and criminal penalties on behalf of the criminal defendant regardless of who posted the funds.” § 903.248(2), Fla. Stat. (2008). Simpkins argued to the trial court that since the bond was not posted by Hunter, it should not be used to pay his unpaid fines, costs, or criminal penalties in all of his cases. The courts that have considered this specific issue have upheld the application of the cash bond posted by third-party depositors to the payment of the defendant’s unpaid costs, fines, and penalties based upon statutory provisions similar to section 903.286. See, e.g., State v. Iglesias, 185 Wis.2d 117, 517 N.W.2d 175 (1994). However, Simpkins does not make that argument in the instant proceedings and we will not address it any further. We will apply the version of the statute prior to the 2008 revision.

      . Hunter owed $3,530.05 as restitution in case number 05-00-CF-042144 (third-degree grand theft); he owed $121.68 as attorney fees in case number 05-07-CT-050626 (reckless driving, possession of cocaine, and careless driving); and he owed $284.39 as attorney fees and court costs in case number 05-05-MM-035765 (prostitution, lewdness, and assignation).

      . The opinion in Biddle states that the trial court was correct in rejecting the constitutional challenge raised by petitioner to the validity of section 903.286. Biddle v. Ellis, 976 So.2d 103 (Fla. 5th DCA), review denied, 987 So.2d 79 (Fla.2008). It is appropriate for us to review our records in Biddle to determine what constitutional challenges were considered and rejected in that case. See Sinclair v. State, 853 So.2d 551, 552 n. 2 (Fla. 1st DCA 2003); Miami Stage Lighting, Inc. v. Budget Rent-A-Car Sys., Inc., 712 So.2d 1135, 1137 n. 2 (Fla. 3d DCA), review denied, 728 So.2d 200 (Fla.1998); In re Scala, 523 So.2d 714, 718 n. 1 (Fla. 4th DCA 1988) (Glickstein, J., dissenting); Arnold Lumber Co. v. Harris, 503 So.2d 925 (Fla. 1st DCA 1987); Gulf Coast Home Health Servs. of Fla., Inc. v. Dep't of Health & Rehabilitative Servs., 503 So.2d 415, 417 (Fla. 1st DCA 1987); Barry Hinnant, Inc., v. Spottswood, 481 So.2d 80, 81 n. 1 (Fla. 1st DCA 1986); see also Ashman v. State, 886 So.2d 1079, 1081 (Fla. 5th DCA 2004); Cooper v. State, 845 So.2d 312 (Fla. 2d DCA 2003). Having done so, it is clear from those records that the petitioner in Biddle challenged the constitutionality of section 903.286 on the basis of due process, equal protection, and eminent domain. The same arguments directed to each constitutional challenge that were considered and rejected in Biddle are raised in the instant proceedings.

      . Oddly, even though section 903.105 was enacted in 1982, it provides that it will become effective only if chapter 648, Florida Statutes, is repealed. Chapter 648 has not been repealed. Nevertheless, the provisions of section 903.105(5) clearly illustrate that the Legislature knows how to include provisions in a bond statute that restrict application of the bond proceeds to satisfaction of fines, costs, and criminal penalties imposed only in the case in which the bond was posted.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Steven Randall RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4700.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2009.
    Rehearing Denied March 3, 2009.

      Julianne M. Holt, Public Defender, and Joseph P. Kuss, Assistant Public Defender, Tampa, for Appellant.
   STRINGER, Judge.

Steven Ruiz seeks review of an order denying his “Motion for reconsideration of order denying motion for post-conviction relief and motion for court appointed attorney.” The motion was summarily denied as untimely pursuant to Florida Rule of Criminal Procedure 3.850(g). We reverse and remand for further proceedings to determine whether Ruiz’s time to file a post-conviction motion was tolled and, if so, whether Ruiz’s motion states grounds for relief.

Ruiz entered a plea to charges of organized scheme to defraud, conspiracy to commit racketeering, and racketeering and was sentenced on September 8, 1998, to eleven years’ imprisonment. Ruiz was transferred in December 1998 to Colorado to serve his sentence. No direct appeal was filed.

On September 5, 2006, Ruiz filed a rule 3.850 motion for postconviction relief and motion for court-appointed counsel. Ruiz’s motion asserted an ineffective assistance of counsel claim for failing to properly advise him regarding gain time eligibility and alleged a single subject rule violation regarding the statute under which he was convicted. On February 6, 2007, the motion was summarily denied as untimely because it was filed outside the two-year time limitation contained in rule 3.850(b). The motion for court-appointed counsel was also denied.

On August 30, 2007, Ruiz filed a motion for reconsideration of the order denying motion for postconviction relief and motion for court-appointed attorney. In this motion, Ruiz stated he was incarcerated outside of Florida, had no attorney, and had no access to Florida legal materials. Thus, Ruiz argued, the time to file a 3.850 motion should have been tolled pursuant to Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997). Ruiz realleged his claim of ineffective assistance of counsel, asserted his sentence was illegal or incorrect based on the gain time issue, and reasserted his request for counsel. Finally, Ruiz argued he should be allowed to withdraw his plea based on misadvice regarding his gain time eligibility.

On September 17, 2007, Ruiz’s motion for reconsideration was denied as untimely pursuant to rule 3.850(g). Ruiz filed a pro se notice of appeal, and his motion for appointment of counsel on appeal was granted by the lower court.

Florida’s “ ‘fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.’ ” Demps, 696 So.2d at 1297 (quoting Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). The court stated in Demps that a defendant who “is housed in an out-of-state facility without either legal reference materials of the state of conviction or reasonable alternative means of access” is deprived of access to Florida courts in violation of his constitutional rights. Id. at 1298. The court held that the two-year time period provided for in rule 3.850 was tolled for the time in which the defendant was deprived of access to the Florida courts. Id. at 1299.

This court adopted the Damps holding in Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007). In Ramsey, the postconviction court dismissed as untimely Ramsey’s rule 3.850 motion and subsequent motion for reconsideration without considering Ramsey’s allegations that the two-year time limit was tolled while he was incarcerated out of state, lacked access to Florida legal materials, and lacked representation by counsel. Id. We reversed and remanded, directing that the court hold further proceedings on the timeliness issue if necessary and directing that the court consider the motion on its merits if it was determined to be timely. Id. at 856.

As in Demps and Ramsey, it appears from Ruiz’s motion that the time for filing his rule 3.850 motion was tolled due to his continuous out-of-state incarceration. The court thus erred by summarily denying the motion without consideration of this argument, and we reverse and remand for further proceedings. Should the court determine Ruiz’s time to file a motion was in fact tolled, the court shall treat Ruiz’s motion for reconsideration as a second rule 3.850 motion and review it on the merits.

In light of the postconviction court’s order finding it was constitutionally necessary to appoint Ruiz counsel in this appeal and in light of his continued out-of-state incarceration, we direct the court to appoint counsel to assist Ruiz in any remand proceedings. See Bynum v. State, 932 So.2d 361, 362 (Fla. 2d DCA 2006).

Reversed and remanded with directions.

DAVIS and LaROSE, JJ., Concur.


author: VILLANTI, Judge.

text:
    Kevin E. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5896.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2009.
    See also 645 So.2d 473.
   VILLANTI, Judge.

Kevin Thomas appeals from the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court denied Thomas’s motion as untimely. Because the motion was not untimely under rule 3.853 or section 925.11, Florida Statutes (2007), we reverse and remand for consideration on the merits.

Thomas was convicted after a jury trial of multiple charges of sexual battery with a firearm, kidnapping with a firearm, burglary of a dwelling with assault with a deadly weapon, robbery with a firearm, grand theft motor vehicle, grand theft firearm, and conspiracy to commit armed burglary arising from events that occurred on April 20, 1992. He was subsequently sentenced to multiple consecutive lengthy sentences. On direct appeal, this court affirmed Thomas’s convictions and sentences without opinion. Thomas v. State, 645 So.2d 473 (Fla. 2d DCA 1994) (table decision).

On November 14, 2005, Thomas filed a motion pursuant to rule 3.853 seeking postconviction DNA testing of various evidence. Thomas filed the motion solely as to the two sexual battery convictions, and he alleged that DNA testing would establish that he was not the one who sexually battered the victims.

On October 25, 2006, the postconviction court dismissed Thomas’s November 14 motion as facially insufficient. The post-conviction court found that Thomas’s motion failed to include a statement of the facts and location of the evidence to be tested as required by rule 3.853(b)(1) and failed to include a statement that identification was a genuinely disputed issue at trial as required by rule 3.853(b)(4). In its order dismissing Thomas’s November 14 motion, the postconviction court “granted” Thomas thirty days in which to file a facially sufficient motion. Thomas did not file a facially sufficient motion within thirty days of the postconviction court’s October 25 order; however, the postconviction court never entered any further ruling on Thomas’s November 14 motion.

Subsequently on August 22, 2007, Thomas filed an amended motion for postconviction DNA testing under rule 3.853. In the amended motion, Thomas admitted that he filed a previous rule 3.853 motion and that the previous motion was dismissed as facially insufficient. Thomas also admitted that he was given thirty days to file a facially sufficient motion and that he failed to do so within that time frame. Thomas asserted that his amended motion should nevertheless be considered on its merits because neither rule 3.853 nor section 925.11 place any time limits on seeking postconviction DNA testing.

However, the postconviction court denied Thomas’s amended motion as untimely, presumably because Thomas failed to amend his original motion within the thirty-day time limit imposed by the court and not because of any time limit imposed by any rule or statute. The postconviction court provided no legal basis for its apparent belief that the thirty-day time limit it had imposed on Thomas superseded the unlimited time allowed Thomas by section 925.11 and rule 3.853. The postconviction court noted only that Thomas had provided no explanation for his “lengthy delay” in filing the amended motion and that filing the amended motion nine months after the thirty-day deadline imposed by the earlier order rendered it untimely. Thomas now appeals this ruling.

As Thomas correctly points out, neither section 925.11 nor rule 3.853 provide any time limit for filing motions seeking postconviction DNA testing. When initially enacted, section 925.11 provided a deadline of two years after a judgment and sentence became final or October 1, 2001, whichever was later. See Ch. 2001-97, § 1, Laws of Fla. The statute was subsequently amended in 2004 to extend the deadline to four years after a judgment and sentence became final or October 1, 2005, whichever was later. See Ch. 2004-67, § 1, Laws of Fla. Finally, in 2006, the legislature removed the deadline for seeking postconviction DNA testing altogether. See Ch. 2006-292, § 1, Laws of Fla. Thus, the statute now provides as follows:

A petition for postsentencing DNA testing under paragraph (a) may be filed or considered at any time following the date that the judgment and sentence in the case becomes final.

§ 925.11(1)(b), Fla. Stat. (2007). Rule 3.853(d) similarly provides that motions for postconviction DNA testing may be “filed or considered at any time.” Thus, it is clear that Thomas’s amended motion filed in August 2007 was not untimely under either the rule or the statute and should not have been denied on that basis.

In fact, it does not appear that the post-conviction court denied Thomas’s amended motion as untimely under either the statute or the rule. Instead, it appears that the postconviction court denied Thomas’s amended motion as untimely because he did not file the amended motion within thirty days of the order dismissing his initial motion. However, Thomas’s failure to file his amended motion within this time frame does not render his amended motion untimely for three reasons.

First, because Thomas’s November 14 motion was not denied on the merits, he was legally entitled to file a second motion attempting to allege sufficient grounds for relief until the time limit for filing new motions had expired. Cf. Spera v. State, 971 So.2d 754, 758-59 (Fla.2007) (holding that a trial court may not summarily dismiss a timely but successive motion for postconviction relief under rule 3.850 if that motion raises issues that were summarily dismissed based on legal insufficiency); Mancebo v. State, 931 So.2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”).

Here, Thomas’s November 14 motion was dismissed as being legally insufficient. There was no denial on the merits. Therefore, Thomas was allowed to file a second rule 3.853 motion in an attempt to allege legally sufficient claims any time before the time limit for filing under rule 3.853 had “expired.” Because rule 3.853 does not have a time limit, Thomas’s amended motion could not have been untimely as a matter of law.

Second, a postconviction court may not arbitrarily shorten the time allowed for filing a facially sufficient rule 3.853 motion in contravention of the plain language of section 925.11 and rule 3.853. In removing the time limit for filing rule 3.853 motions and opening the availability of the motion to all convicted persons, not just those who went to trial, the legislature codified a policy that DNA testing be “a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’ ” Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002) (quoting In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 636 (Fla.2001) (Anstead, J., concurring)). Permitting a postconviction court to impose an arbitrary time limit on a defendant to file an amended motion would not foster this policy.

Unlike the situation under rule 3.850 in which a postconviction court may, in its discretion, grant a defendant a limited time in which to amend a motion after the two-year time for filing has expired, allowing a postconviction court to set a deadline for filing an amended motion under rule 3.853 could only reduce the time the defendant has to seek relief, not expand it. While a postconviction court may have the discretion to expand the time a defendant has to seek postconviction relief, it does not have the discretion to reduce the time to something less than that provided for by the legislature. Enforcing an arbitrary deadline for filing an amended motion set by the postconviction court would undercut the purpose of the statute and rule and result in some defendants having less time to seek DNA testing than others. This inequitable result cannot be sustained even if the postconviction court specifically advises the defendant that failing to file an amended motion within the court-imposed time frame will result in the defendant being forever barred from seeking postconviction DNA testing.

We recognize that in Bain v. State, 963 So.2d 913, 914 (Fla. 2d DCA 2007), this court stated that Bain’s amended rule 3.853 motion could not be dismissed as untimely because “the postconviction court set no filing deadline” for the amended motion. However, that statement was dicta, and the primai'y holding was that Bain’s motion could not be denied because “no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005.” Id. Because the postconviction court in Bain had not set a filing deadline for the amended motion, the effect of any filing deadline that might have been set was not actually considered or ruled upon by this court. Therefore, the dicta in Bain does not control the resolution of this case, in which the post-conviction court purported to set just such a deadline in contravention of section 925.11 and rule 3.853.

Third, . contrary to the postconviction court’s ruling, Thomas had no obligation to justify his delay in filing the amended motion. In Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007), the First District rejected the State’s argument that a defendant who had waited seven years to seek postconviction DNA testing had an obligation to allege facts to justify his delay. In doing so, the First District noted that “nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant.” Id. at 734. The court also noted that “in light of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred.” Id.

Here, the postconviction court also attempted to place just such a burden on Thomas to justify the nine-month delay in filing his amended motion. However, as noted in Glenn, neither the rule nor the statute requires Thomas to justify his delay, and neither the postconviction court nor this court should require a defendant to do so.

Because section 925.11 and rule 3.853 do not place any time limits on a defendant’s right to seek postconviction DNA testing, the postconviction court could not legally deny Thomas’s amended motion as untimely. Therefore, we reverse the summary denial and remand for reconsideration of Thomas’s motion on the merits.

Reversed and remanded for further proceedings.

KELLY and KHOUZAM, JJ., Concur.


author: WHATLEY, Judge.

text:
    John J. McDOUGALL, as Sheriff of Lee County, Florida, Appointing Authority of the Lee County Civil Service Board, and John J. McDougall, as Sheriff of Lee County, Florida, Appointing Authority of an unnamed ad hoc disciplinary committee of The Office of the Sheriff of Lee County, Appellants/Cross-Appellees, v. Frances C. CULVER, Richard P. Snyder, Stephen A. Humfleet, Linda Kress, Matthew R. Leclair, Scott W. Massingill, Robert Wardrop, and All Others Similarly Situated, Appellees/Cross-Appellants.
    No. 2D07-5490.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2009.
    V. Stephen Cohen and Shane B. Vogt of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Appellants/Cross-Appel-lees.
    Richard G. Groff and Warren A. Pies of Dye, Deitrieh, Petruff & St. Paul, P.L., Bradenton, for Appellees/Cross-Appel-lants.
   WHATLEY, Judge.

John J. McDougall, as Sheriff of Lee County, appeals a final judgment finding that his office violated the Florida Sunshine Law, § 286.011, Fla. Stat. (1999), while conducting internal affair’s (IA) investigations of deputies employed by his office. The deputies, Frances C. Culver, Richard P. Snyder, Stephen A. Humfleet, Linda Kress, Matthew R. Leclair, Scott W. Massingill, and Robert Wardrop, filed a cross-appeal arguing that the trial court erred in entering summary judgment in favor of the Sheriffs Office as to their claim for damages. We conclude that the IA investigation procedures used by the Sheriffs Office did not violate the Sunshine Law and reverse.

The trial court conducted a bench trial and issued a final judgment containing the following findings of fact. In connection with IA investigations of the deputies, IA officials made findings and recommendations concerning each of the deputies and incorporated those findings and recommendations in written memoranda. The memoranda were given to the deputies’ commanding officers, who then forwarded the memoranda to senior officials in the Sheriffs Office for their review and comments. The memoranda were then given to McDougall and McDougall made the final decision regarding the appropriate disciplinary action. Thereafter, McDou-gall gave written notice of his decision to the deputies, which action concluded the investigations. The memoranda were not made public until the IA investigations were concluded.

In the final judgment, the trial court ruled that the circulation of the memoran-da from the senior officials in the Sheriffs Office to McDougall constituted a “meeting” under the Sunshine Law, and therefore, the failure of the Sheriffs Office to make the memoranda public during the IA investigations was a violation of the Sunshine Law. We conclude that the record supports the trial court’s factual findings; however, we hold that the memoranda did not constitute a meeting of a “board” or “commission,” and therefore, the Sheriffs Office did not violate the Sunshine Law. See Liner v. Workers Temp. Staffing, Inc., 990 So.2d 473, 476 (Fla.2008) (“We review the statutory interpretation conducted by the trial court to reach this ultimate ruling de novo, while we defer to those factual findings of the trial court that are supported by competent, substantial evidence from the record.”).

Section 286.011(1) provides as follows:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.

The present case is similar to Jordan v. Jenne, 938 So.2d 526, 527-28 (Fla. 4th DCA 2006), in which a group was responsible for reviewing investigative reports involving deputies with the Broward County Sheriffs Office and making a recommendation. After such recommendations were made, the deputy was then entitled to a pre-disciplinary conference where the deputy could present evidence. Id. at 528. Following the conference, the captain of the hearing made a recommendation to the inspector general. Id. The inspector general, a non-voting member of the group, made the determination on final discipline. Id.

The Fourth District stated that because the group

provided only a mere recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the [group] does not exercise decision-making authority so as to constitute a “board” or “commission” within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act.

Id. at 530.

This court has also held that meetings between an executive officer and his consultants, advisors, staff or personnel, which are held for the purpose of fact-finding to help him in the execution of his duties are not meetings as contemplated by the Sunshine Law. Bennett v. Warden, 333 So.2d 97, 99 (Fla. 2d DCA 1976). Bennett involved meetings in which the president of St. Petersburg Junior College and a group of employees, who were representatives of career employees at the college, discussed suggestions and problems relating to working conditions, wages, and hours. Id. at 98. This court held that such meetings did not violate the Sunshine Law. Id.

Similarly, in Knox v. District School Board of Brevard, 821 So.2d 311, 312-13 (Fla. 5th DCA 2002), an area superintendent with the school board met with a group of five school board employees and interviewed candidates for a principal’s position. Based on input from the group, she recommended two applicants to the school board superintendent, but all of the applicants’ names were given to the superintendent. Id. at 313. The Fifth District held, “A Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties.” Id. at 315; see also Molina v. City of Miami, 837 So.2d 462, 463 (Fla. 3d DCA 2002) (holding that meetings of the Discharge of Firearms Review Committee were not subject to Sunshine Law where committee makes factual findings and passes those findings on to chief of police).

In the present case, the memoranda were reviewed by senior officials in the Sheriffs Office, who could write comments on the memoranda, and the Sheriff then reviewed the memoranda. However, the Sheriff alone made the final decision regarding the appropriate disciplinary action. As was the case in Bennett, Jordan, Knox, and Molina, the senior officials provided only a recommendation to the Sheriff but they did not deliberate with him nor did they have decision-making authority. Therefore, we conclude that the use of the memoranda did not violate the Sunshine Law. Cf. Dascott v. Palm Beach County, 877 So.2d 8, 12 (Fla. 4th DCA 2004) (holding that pre-termination panel was a “board” pursuant to the Sunshine Law because it exercised decision-making authority).

Further, because the memoranda were related to an IA investigation, they were confidential. Section 112.533(2)(a), Florida Statutes (2008), discusses IA investigations and states as follows:

A complaint filed against a law enforcement officer or correctional officer with a law enforcement agency or correctional agency and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential and exempt from the provisions of s. 119.07(1) until the investigation ceases to be active, or until the agency head or the agency head’s designee provides written notice to the officer who is the subject of the complaint....

In this case, the memoranda were confidential until the IA investigations were concluded.

Accordingly, the trial court erred in ruling that McDougall, as Sheriff of Lee County, violated the Florida Sunshine Law in failing to make public the memoranda until the IA investigations were concluded, and we reverse the final judgment. Because the final judgment is reversed, the cross-appeal regarding damages is moot.

Reversed.

STRINGER, J., and WILLIAMS, CHARLES E., Associate Judge, Concur.


author: PER CURIAM.

text:
    Robert Lee GOODEN, Petitioner, v. M. FLORES, Warden, BKCI, State of Florida, Respondent.
    No. 1D08-6350.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2009.
    Rehearing Denied March 4, 2009.
    Robert Lee Gooden, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, LEWIS, and ROBERTS, JJ., concur.


author: STEVENSON, J.

text:
    Stephen MAILLOUX and Simone Mailloux, Appellants, v. BRIELLA TOWNHOMES, LLC, a Florida limited-liability company, Appellee.
    No. 4D08-430.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2009.
    Rehearing Denied March 9, 2009.

      Joseph Stern of Saraga & Lipshy, P.A., Delray Beach, for appellants.
    Adam G. Rabinowitz and Beverly A. Pohl of Broad and Cassel, Fort Lauder-dale, for appellee.
   STEVENSON, J.

The Maillouxes, purchasers of a proposed condominium unit, appeal a final summary judgment entered in favor of the developer, Briella Townhomes, LLC, wherein the trial court found the sale exempt from disclosure requirements set forth in the Interstate Land Sales Full Disclosure Act (“ILSA”), 15 U.S.C. §§ 1701-20 (2006), since construction was required to be completed within two years. The trial court also found that Briella’s failure to provide an ad valorem tax disclosure summary pursuant to Florida Statutes section 689.261 (2006), did not provide the Maillouxes with a private cause of action. We affirm, concluding that (1) the contract’s act of God, impossibility of performance and frustration of purpose clauses did not render the obligation to complete the condominium within two years illusory and (2) Florida’s ad valorem tax disclosure statute neither provides nor implies a private cause of action for noncompliance.

The material facts are not contested. The Maillouxes executed a contract for the purchase of a condominium in Boynton Beach from Briella, but later, they sought to revoke and terminate this contract, citing Briella’s failure to comply with ILSA’s registration and reporting requirements. A developer need not furnish a printed property report to a purchaser of land under a contract obligating the seller to erect a building thereon within a period of two years. 15 U.S.C. § 1702(a)(2). However, the Maillouxes contend that Briella failed to unconditionally obligate itself to complete construction within two years because the contract for sale permitted delays associated with acts of God, impossibility of performance, and frustration of purpose.

The Department of Housing and Urban Development (“HUD”) has issued Guidelines to assist with interpreting ILSA. Guidelines for Exemptions Available Under the Interstate Land Sales Full Disclosure Act, 61 Fed. Reg. 13596 (Mar. 27, 1996). Pertinent to the instant issue, the Guidelines provide:

Contract provisions which allow for nonperformance or for delays of construction completion beyond the two-year period are acceptable if such provisions are legally recognized as defenses to contract actions in the jurisdiction where the building is being erected. For example, provisions to allow time extensions for events or occurrences such as acts of God, casualty losses or material shortages are generally permissible.... Although the factual circumstances upon which nonperformance or a delay in performance is based may vary from transaction to transaction, as a general rule delay or nonperformance must be based on grounds cognizable in contract law such as impossibility or frustration and on events which are beyond the seller’s reasonable control.

Guidelines, 61 Fed. Reg. at 13603.

In Florida, acts of God, impossibility of performance, and frustration of purpose are well-recognized defenses to nonperformance of a contract. See, e.g., Fla. Power Corp. v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671, 675 (1944) (recognizing that an act of God which is extraordinary and unprecedented such that human foresight could not guard against it provides legal justification for nonperformance of a contract); Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th DCA 1998) (explaining that impossibility of performance can provide a defense to nonperformance of a contract where facts making performance impossible were not available to promisor prior to execution of contract); Equitrac Corp. v. Kenny, Nachwalter & Seymour, P.A., 493 So.2d 548, 548 (Fla. 3d DCA 1986) (noting that doctrine of frustration of purpose can render a contract unenforceable). Nonetheless, the Maillouxes rely on Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla.1990), for the proposition that a “contract must unconditionally obligate the developer to complete construction within two years.” Id. at 1098.

In Samara, our supreme court held that a contractual limitation on a purchaser’s remedies of specific performance or damages rendered a purchase contract obligating the developer to complete construction within two years “illusory.” Id. at 1101. The instant case is distinguishable as it concerns recognized defenses to nonperformance as opposed to the limitation of remedies. Therefore, in accordance with the Guidelines and Florida contract law, we hold that the well-recognized defenses to contractual nonperformance which are included in the contract at issue do not render Briella’s obligation to complete construction within two years illusory within the ILSA context.

In the alternative, the Maillouxes sought to revoke their purchase contract pursuant to section 689.261, Florida Statutes (2006), which provides that at or before the execution of a contract for sale, either the seller or the contract itself must disclose to the prospective purchaser that the property may be subject to higher property taxes after purchase. Briella admitted failing to provide the Maillouxes with the tax disclosures required by this statute, but noted that the statute fails to provide for a private cause of action.

The Legislature did not include a private cause of action in this statute. “Whether a violation of a statute can serve as the basis for a private cause of action is a question of legislative intent.” Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004). Of note, a review of the legislative history reveals that a purchaser’s remedy was contemplated but ultimately removed from the statutory text. Compare Fla. Staff Analysis, S.B. 2444 (Mar. 23, 2004), with Fla. Staff Analysis, S.B. 2444 (Apr. 20, 2004). It remains for the Legislature to create a private cause of action, and this court will not imply one in this instance. Accordingly, we affirm the trial court’s award of final summai’y judgment in favor of Briella.

Affirmed.

DAMOORGIAN, J., and PHILLIPS, CAROL-LISA, Associate Judge, concur.


text:
    Robert CARTER, Jr., Petitioner, v. Kerrie S. CARTER, Respondent.
    No. 4D08-3756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2009.
    Matthew S. Nugent and Adam M. Zbo-rowski of Law Offices of Matthew S. Nu-gent, North Palm Beach, for petitioner.
    Jonathan S. Root of Law Offices of Jonathan S. Root, P.A., Boca Raton, for respondent.
   PER CURIAM.

Robert Carter, Jr. (the husband), the respondent in a petition for dissolution of marriage pending below, seeks review of a nonfinal order which denied his objections and motion for protective order, and required him to file a line-item response to the wife’s request to produce. We grant the petition.

Kerrie S. Carter (the wife) filed a petition for dissolution of the parties’ marriage in 2006. A temporary relief order was entered in September 2006. On October 31, 2006, both parties, while under the advisement of counsel and in their counsel’s presence, entered into a handwritten settlement agreement, resolving the parties’ financial and custody issues. The parties never obtained a final judgment incorporating the agreement, although from time to time the wife has asked the court to compel the husband’s compliance with it.

In 2007, the wife retained new counsel and moved for modification of the temporary relief order. She also asked the court not to approve the terms and conditions of the settlement agreement, which the husband meanwhile has sought to enforce. Thereafter, the wife changed counsel again and, in 2008, she served on the husband a request to produce, seeking extensive financial information concerning him and the family business.

Subsequently, the wife also moved to set aside the settlement agreement, based in part on conclusory allegations that the husband’s disclosure of his income on his financial affidavit was “fraudulent.” She now takes the position that the discovery previously sought is necessary for her to litigate this motion.

Whether the trial court departed in ordering that discovery is the issue presented by the instant petition. While personal financial information is fully discoverable when relevant to the subject matter of the pending action, it may cause irreparable harm to a person who is forced to disclose it when the information is not relevant, Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189 (Fla.2003), or is overbroad, Redland Co. v. Atl. Civil, Inc., 961 So.2d 1004, 1005 (Fla. 3d DCA 2007).

Under the circumstances of this case, we agree with the husband’s position that he should not be compelled to produce the discovery requested by the wife unless and until the court first determines the validity of the parties’ settlement agreement. See generally Kuchera v. Kuchera, 983 So.2d 776 (Fla. 4th DCA 2008), rev. denied, 996 So.2d 212, 2008 WL 4768069 (Fla. Oct. 28, 2008); and Petracca v. Petracca, 706 So.2d 904 (Fla. 4th DCA 1998), which explain that when parties enter a settlement agreement after participating in contested litigation, having had the opportunity to make use of the procedural rules for discovery of financial resources, courts do not consider the fairness, to the challenging spouse, of a litigation settlement agreement pursuant to Casto v. Casto, 508 So.2d 330 (Fla.1987).

Although in this case the wife claims the agreement was procured by fraud or misrepresentation by the husband, the record before this court does not demonstrate that she pleaded such with specificity.

Unless and until the trial court invalidates the parties’ marital settlement agreement, the husband’s private financial information should remain private. Accordingly, the petition is granted and the order directing discovery is quashed.

WARNER, HAZOURI and DAMOORGIAN, JJ., concur.

      . Essentially, she claims the husband's financial affidavit does not reflect that a substantial portion of his personal living expenses are paid through the family business. However, in her verified motion for temporary support served in June 2006, she alleged similar facts as to the parties' personal living expenses during the marriage.


author: ALTENBERND, Judge.

text:
    Edna L. KIRKLAND; Janice M. Ward, Trustee under that certain land trust dated August 4, 2000 and numbered 102923000000013040; Brenda Gordon, Successor Trustee of the Marjorie C. Kirkland Revocable Living Trust dated March 13, 2007; James Eddie Ward, Jr.; Janice Marie Ward; Jaime Kirkland Tyler; James L. Kirkland; and Nelson Kirkland, Appellants, v. CITY OF LAKELAND, Appellee.
    No. 2D08-2961.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2009.
    Rehearing Denied March 13, 2009.

      David W. Holloway, Odessa, for Appellants.
    Monterey Campbell, Mark N. Miller, and Kristie Hatcher-Bolin of GrayRobin-son, P.A., Lakeland, for Appellee.
   ALTENBERND, Judge.

Edna L. Kirkland and other members of the Kirkland family who own land south of Waring Road in Polk County challenge the trial court’s orders allowing the City of Lakeland (the City) to take portions of their land by eminent domain to create a right-of-way that will allow for the extension of Waring Road from Old Medulla Road to West Pipkin Road. This eminent domain proceeding, requesting a taking for a road right-of-way, is unusual only because the City is taking land in Polk County that is entirely outside and not even contiguous to the City’s boundaries. We conclude under the circumstances of this case that the City had the power to take this land by eminent domain and that it presented sufficient evidence of a public purpose and a reasonable necessity to support the order of taking. Accordingly, we affirm the trial court’s orders of taking.

The road project in question is a short distance east of the Lakeland-Linder Regional Airport, which is inside the boundaries of the City. This is a developing area. An effort to annex this region of Polk County into the City of Lakeland failed at an election several years ago, and the Kirklands undoubtedly see the expansion of the road as a method to achieve by eminent domain that which failed at the ballot box. The Kirklands’ pioneer homestead and the family history that it represents will allegedly be lost or irreparably damaged by the extension of Waring Road. We are not untouched by their- attachment to this land, but such factors are not a legal basis for a court to override a valid exercise of the power of eminent domain.

There is no dispute that the City of Lakeland has been delegated the State’s power of eminent domain in its charter and by virtue of section 166.411(3), Florida Statutes (2007). The language of that delegation is broad enough to permit such a taking outside the boundaries of the City even for the purpose of building a road. This court has previously upheld the exercise of eminent domain powers delegated to Polk County to permit that county to take land inside Hillsborough County, at least when Hillsborough County voiced no objection. See Prosser v. Polk County, 545 So.2d 934 (Fla. 2d DCA 1989). Likewise, in this case, Polk County does not object to the taking.

It is noteworthy that the City’s decision to take this land was based in large part upon an interlocal agreement between the City and Polk County. Under that agreement, executed in 2003, both governmental entities recognized that this road project was “necessary to provide adequate capacity to the area road system.” A substantial portion of the funding for this project came from the Florida Department of Transportation and that funding had been provided to the City of Lakeland. In the interlocal agreement, Polk County and the City agreed to evenly split the remaining cost of this project.

In an eminent domain proceeding, “[t]he burden is on the condemning authority to establish a public purpose and reasonable necessity for the taking.” Baycol, Inc. v. Downtown Dev. Auth. of City of Fort Lauderdale, 315 So.2d 451, 455 (Fla. 1975) (citing Canal Auth. v. Miller, 243 So.2d 131 (Fla.1970); Ball v. City of Tallahassee, 281 So.2d 333 (Fla.1973), receded from on other grounds by City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977); City of Lakeland v. Bunch, 293 So.2d 66 (Fla.1974)). We determine that the evidence presented at trial was sufficient to meet the City’s burden to establish a public purpose and a reasonable necessity. We are not convinced in light of the inter-local agreement that the City was required to establish a public purpose that was exclusively or even primarily a municipal purpose of the City, as contrasted to a public purpose benefitting both the City and Polk County.

Finally, the Kirklands argue that section 335.0415, Florida Statutes (2007), which addresses the jurisdiction of the state, county, and municipal governments over public roads, is applicable to this case and prevents the City from taking land for a road that the Kirklands maintain must be under the jurisdiction of Polk County after it is completed. We reject the argument that section 335.0415 regulates a county or municipality’s powers of eminent domain. Whatever its effect may be on governmental jurisdiction over the extension of Waring Road after it has been constructed and completed is not a matter that prevents the entry of the order of taking that has been appealed in this case.

Affirmed.

FULMER and WALLACE, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Gary Sheldon WHITE, Appellant, v. Linda J. WHITE, Appellee.
    No. 2D07-5013.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2009.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Kathy C. George of Law Offices of Boake & George, St. Petersburg, for Ap-pellee.
   CASANUEVA, Judge.

Gary Sheldon White appeals an order denying his petition to reduce or eliminate his permanent periodic alimony obligation to his former wife, Linda J. White. Because the trial court improperly relied upon a defense not pleaded or otherwise raised before trial in denying the petition, we reverse.

In the petition, Mr. White sought to modify his permanent periodic alimony obligation to his former wife on two bases. First, Mr. White claimed that the parties’ relative financial circumstances had changed. Second, Mr. White asserted that Ms. White had established a supportive relationship with another man with whom she resided.

After a lengthy hearing, the trial court made the following pertinent findings:

B. The Former Husband has demonstrated that the Former Wife has a “supportive relationship” as envisioned by § 61.14, Florida Statutes. The supportive relationship involves living with a certain “Charles Murphy,” and the supportive relationship would lead the Court to conclude that alimony should be modified on a downward basis or terminated.
C. The Former Husband, however, comes before the Court with unclean hands. The Former Husband has not done equity and therefore cannot come into a Court of equity requesting that his alimony be decreased or eliminated. The Former Husband has not made a good-faith effort to pay the alimony as previously ordered and has substantial arrearages. Moreover, the Former Husband has not made any meaningful effort to provide health insurance for the Former Wife as provided in the Final Judgment of Dissolution of Marriage.
D. Because the Former Husband has unclean hands, the Former Husband is not entitled to relief and his Supplemental Petition for Modification will therefore be denied.

On appeal, Mr. White argues that the trial court erred in applying the “unclean hands” doctrine because it is an affirmative defense and had not been pleaded.

There is no mention of “unclean hands” in any of the pleadings, motions, or pretrial statements in the record before this court. The pretrial conference order álso contains no mention of this defense. The first time the defense appears to have been raised was during trial, when Ms. White sought to introduce certain documents into evidence to support the defense. Mr. White objected on the basis that “[cjlean hands is an affirmative defense [and tjhere are no affirmative defenses in this case.” The trial judge overruled the objection on Ms. White’s assurances that there was case law “to support being able to raise the question of Clean Hands even though [she had] not pled it as an affirmative defense.”

Florida Rule of Civil Procedure 1.140(h)(1) provides:

A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).

Because Ms. White did not plead this defense or raise it in a pretrial motion, she waived it pursuant to rule 1.140. Moreover, because Mr. White timely objected once Ms. White announced her intention to raise “unclean hands” as a defense, it was not tried by consent. See Paul Gottlieb & Co. v. Alps S. Corp., 985 So.2d 1, 5 (Fla. 2d DCA 2007) (holding that it is an exception to the pleading requirement when there is no objection to evidence introduced solely to prove an unpleaded issue). “It is axiomatic that a party may not be held liable on an issue that was neither pleaded nor tried by consent.” Aills v. Boemi, 990 So.2d 540, 548 (Fla. 2d DCA 2008). Therefore, the trial court abused its discretion in relying upon the “unclean hands” defense and denying the petition. See Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007) (“If the trial court determines that a ‘supportive relationship’ exists, we review the trial court’s decision to reduce or terminate alimony for abuse of discretion.”).

Ms. White did not challenge the trial court’s finding in paragraph B of the order on appeal that she is in a supportive relationship that supports reducing or eliminating alimony under section 61.14(b)(1). Regardless, after applying the appropriate standard of review to any questions of fact and law, we believe the finding to be correct. See Buxton, 963 So.2d at 953 (holding that a decision under section 61.14(b) “presents a mixed question of law and fact, which calls for a mixed standard of review”).

Accordingly, we reverse the denial of Mr. White’s petition. On remand, the trial court shall enter an order consistent with its findings in paragraph B of the order on appeal by determining whether Mr. White’s permanent periodic alimony obligation should be reduced or eliminated entirely.

Ms. White’s Motion for Attorney’s Fees

Ms. White seeks an award of appellate attorney’s fees. Florida Rule of Appellate Procedure 9.400(b) requires a party to file a motion stating “the grounds on which” an award is sought. The “grounds on which” an award is sought requires a party to identify a source of entitlement to an award of fees. “Virtually all claims for attorney’s fees rest on contract or statutory bases.” Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001) (citing Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 406 (Fla.1999)).

Here, the motion cites neither a statutory nor a contractual basis for entitlement to an attorney’s fee award. Instead, it claims an entitlement based on Rados. The Rados opinion is not a basis for entitlement to attorney’s fees. Therefore, Ms. White’s motion for appellate attorney’s fees and costs is denied.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.

      . Section 61.14(1)(a), Florida Statutes (2006), states that “[if] the circumstances or the financial ability of either party changes ... either party may apply to the circuit court ... for an order decreasing or increasing the amount of ... alimony[.]"

      . Section 61.14(b)(1) provides that "[t]he court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.”

      . Florida Family Law Rule 12.140 provides that "[djefenses shall be governed by Florida Rule of Civil Procedure 1.140.”


text:
    Benjamin Turner BOONE, Appellant, v. Luana Faye BOONE, Appellee.
    No. 2D07-4973.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2009.

      Robert L. Valentine, Lakeland, for Appellant.
    No appearance for Appellee.
   VILLANTI, Judge.

Benjamin Turner Boone, the former husband appeals the trial court’s order reducing but not terminating his alimony obligation to Luana Faye Boone, the former wife. We reverse and remand.

Initially, we note that the final hearing on the former husband’s petition for modification was not transcribed. Without a transcript, this court’s review is limited to any errors that appear on the face of the trial court’s order. See Marshall v. Marshall, 953 So.2d 23, 25 (Fla. 5th DCA 2007) (“In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed.”). Because in this case error is apparent on the face of the trial court’s order, we reverse. See Schmidt v. Schmidt, 997 So.2d 451 (Fla. 2d DCA 2008) (reversing trial court’s order despite lack of trial transcript where error was apparent on the face of the judgment).

The record reflects that the parties’ marriage was dissolved in 1996, with the former wife receiving an award of permanent alimony of $800 monthly. The alimony award was modified in 2003, from $800 to $500 monthly. On September 22, 2005, the former husband filed the petition for modification at issue in this appeal, requesting that alimony be terminated. The petition alleged that his health was deteriorating and that he was unable to work as a result of prostate cancer, dementia, and the onset of early Alzheimer’s Disease. On September 19, 2007, the trial court declined to terminate alimony, instead reducing the former husband’s alimony obligation from $500 to $400 monthly. This appeal followed.

Once a party’s entitlement to permanent alimony has been established, the primary basis for establishing the amount of alimony is the needs of one spouse and the ability of the other spouse to pay. Gildea v. Gildea, 593 So.2d 1212, 1213 (Fla. 2d DCA 1992); Schlesinger v. Emmons, 566 So.2d 583, 584 (Fla. 2d DCA 1990) (noting that same criteria apply in alimony modification proceedings); Laurenzo v. Laurenzo, 522 So.2d 1065, 1066 (Fla. 3d DCA 1988) (stating that, in modification proceedings, the receiving spouse’s needs and the paying spouse’s ability to pay are “still the most important factors”). In this case, the trial court’s order reflects that, at the time of the final hearing, the former husband was sixty-nine years old and the former wife was sixty-five years old. The financial affidavit filed by the former wife prior to the final hearing reflected net income of $844.67 and expenses of $905, for a deficit of $60.33. However, the income reflected in the former wife’s affidavit did not include alimony payments, which the trial court’s order later set at $400 monthly. The trial court’s order reflects that the former wife testified at the final hearing that she was receiving an additional $450 monthly in Social Security benefits which were not reflected in her financial affidavit. When the $400 alimony award and the $450 Social Security benefits are taken into account, the former wife has a surplus of approximately $790 per month. Thus, based on the affidavits and testimony received by the trial court, the former wife does not need alimony. See Zeballos v. Zeballos, 951 So.2d 972, 975 (Fla. 4th DCA 2007) (holding that trial court erred in not reducing alimony award to $1 where record reflected that wife did not need alimony).

By contrast, the former husband’s financial affidavit reflected Social Security income of $747 and expenses of $877.12, for a deficit of $130.12 before paying alimony. After paying $400 in alimony, the former husband’s deficit would be $530. Therefore, the former husband’s financial situation is worse than the former wife’s. The order failed to make any specific findings regarding the former wife’s need or the former husband’s ability to pay alimony, and the record does not otherwise support a finding that the former husband has the ability to pay $400 monthly in alimony. Thus error is apparent on the face of the trial court’s order.

Moreover, we note that the trial court’s order found a “substantial change of circumstances” but reduced monthly alimony by only $100, from $500 to $400. The court did not explain how it arrived at this amount. The decision to reduce alimony by only $100 is inconsistent with the court’s findings regarding the former husband’s ailing health and the parties’ respective incomes. Although the order mentioned that the court considered the fact that the former husband’s current wife was contributing to his living expenses, it did not explain how that consideration affected the court’s ruling. Given the facts and the parties’ financial affidavits, the trial court’s order making a minimal reduction of alimony is inconsistent on its face.

On comparable facts, the Fourth District in Zeballos reversed a similar order and instructed the trial court to enter an order reducing that husband’s alimony obligation to $1 per year. 951 So.2d at 975. Likewise, we reverse and remand for the trial court to enter an amended order reducing alimony to $1 per year.

Reversed and remanded.

NORTHCUTT, C.J., and DAVIS, J., concur.

      . The trial court's order noted that, while the former wife was unemployed at the time of the final hearing, she would be returning to work soon.

      . This finding has not been challenged on appeal, and the record supports the finding, as the husband's deteriorating health renders him unable to work.