author: ORFINGER, J.

text:
    Angela APOSTOLICO, etc., Appellant, v. ORLANDO REGIONAL HEALTH CARE SYSTEM, INC., etc., Appellee.
    No. 5D03-1505.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      Gregorio A. Francis of Morgan, Colling & Gilbert, P.A., Orlando, for Appellant.
    Bradley P. Blystone of Mateer & Har-bert, P. A., Orlando, for Appellee.
   ORFINGER, J.

Angela Apostólico, as personal representative of the Estate of Virgil Apostólico, appeals a final order dismissing with prejudice her wrongful death medical malpractice complaint for failure to comply with the presuit screening requirements of Florida’s Medical Malpractice Act, sections 766.201-.212, Florida Statutes (2002). The dismissal was based on the trial court’s ruling that Apostolico’s medical expert was not qualified to render the opinion that accompanied her notice of intent to initiate medical malpractice litigation. On appeal, Apostólico argues that the trial court erred in dismissing her action because (1) her notice of intent to initiate litigation and corroborating affidavit sufficiently placed Orlando Regional Health Care System, Inc. (“ORMC”) on notice of the allegations of the medical negligence action to allow a reasonable investigation of the matter; (2) the trial court employed the wrong standard in evaluating the pre-suit affidavit; and (3) there were other, less severe sanctions available for any alleged violations of the presuit requirements. For the reasons that follow, we reverse.

The complaint alleged that Virgil Apos-tólico, a 73-year-old man, went to ORMC’s emergency department, complaining of chest pain. He was admitted to the telemetry unit of the hospital to rule out a myocardial infarction and was advised to have a venous access port, known as a Peripherally Inserted Central Catheter (PICC line), inserted to receive antibiotics he required due to a urinary tract infection. The hospital record for the procedure performed on November 8, 2000, noted the placement of a “4 French PICC line” by Cindy Adams, a registered nurse. A PICC line, such as the one utilized on Virgil, is inserted into a vein in a patient’s arm and ends at the superior vena cava. Somehow, in Virgil’s case, the PICC line looped in the right subclavian artery and did not fully extend to the intended position in the superior vena cava. The procedure was corrected the next day after an x-ray revealed the loop.

Following the repositioning of the PICC line, Virgil was transferred emergently to the coronary care unit where he died several days later. The death certificate completed by Virgil’s attending physician attributed Virgil’s death to congestive heart failure following an acute myocardial infarction stemming from 'his prolonged history of ischemic cardiomyopathy.

Following Virgil’s death, Apostólico served ORMC with a Notice of Intent to Initiate Medical Negligence Litigation in accordance with section 766.106, Florida Statutes. Along with the Notice of Intent, Apostólico provided the affidavit of Miriam Headley, a registered nurse, to corroborate the medical negligence action, as required by section 766.203(2), Florida Statutes (2002). In her affidavit, Nurse Headley opined that ORMC and its staff failed to meet the standard of care in the insertion and care of the PICC line by the registered nurse and that the nurse designated to insert and care for the PICC line failed to measure the length of the catheter prior to repositioning it in its proper place within the superior vena cava. Finally, Nurse Headley concluded that within a reasonable degree of medical probability, Virgil died as a result of the deviations from the prevailing standards of care by ORMC and its staff.

Shortly thereafter, ORMC notified Apostólico that it believed Nurse Headley lacked the requisite qualifications to render an opinion relating to the insertion and care of Virgil’s PICC line and its relationship to his death, and, as such, Apostólico had not conducted a “reasonable investigation” to pursue this claim. ORMC inquired during presuit discovery whether Apostólico intended to have this matter reviewed by a cardiologist in order to determine whether there were reasonable grounds to pursue the claim in satisfaction of the investigation requirements of section 766.203(2). Apostólico responded, “Objection, work product.”

At the conclusion of the ninety-day investigatory period, ORMC rejected Apos-tolico’s claim. In doing so, ORMC presented a corroborating expert affidavit from a board certified cardiologist, Stephen P. Glasser, M.D. In his affidavit, Dr. Glasser opined:

Based upon my review of the records, it is my opinion that the care and treatment rendered to Virgil Apostólico by the nursing staff and employees of Orlando Regional Healthcare System, Inc. d/b/a Orlando Regional Medical Center met the applicable standard of care throughout his hospitalization. In particular, it is my opinion that the nursing staff and employees met the applicable standard of care in maintaining the PICC line, and nothing involving the positioning of the PICC line caused or contributed to the decedent’s death.

Apostólico then filed an action for wrongful death medical malpractice against ORMC. ORMC-served its motion to dismiss, arguing that Apostólico failed to conduct a “reasonable investigation” of the claim because Apostolico’s nursing expert was not qualified to render an opinion as to proximate cause. ORMC argued that because Apostólico failed to correct this deficiency with a review by a cardiologist within the statute of limitations despite adequate notice as to the deficiency of its nursing affidavit, her action should be dismissed with prejudice.

After a hearing, the trial court concluded that Apostólico failed to comply with the reasonable investigation requirements of section 766.201-.212, Florida Statutes (2002). Specifically, the trial court found that a nurse does not possess the medical training or expertise to determine cause of death, and, therefore, concluded that Apos-tólico failed to conduct a reasonable pre-suit investigation since she did not satisfy the causation prong of section 766.203(2). As a result, the trial court dismissed Apos-tolico’s cause of action with prejudice pursuant to section 766.206(2), concluding that the deficiency could not be rectified within the then expired statute of limitations. This appeal followed.

We review a trial court’s disposition of a motion to dismiss de novo. As a result, we do not defer to the trial court on matters of law. See Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001).

Florida courts are required to construe the Medical Malpractice Act “so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.” Kukral v. Mekras, 679 So.2d 278, 284 (Fla.1996); see Musculoskeletal Inst. Chartered v. Parham, 745 So.2d 946 (Fla.1999); Fort Wal ton Beach Med. Ctr., Inc. v. Dingler, 697 So.2d 575 (Fla. 1st DCA 1997). Presuit notice and screening requirements are “not intended to deny access to the courts on basis of technicalities.” Dingler, 697 So.2d at 579 (citing Archer v. Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994)). “Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts.” Id. (citing Patry v. Capps, 633 So.2d 9, 13 (Fla.1994)).

ORMC correctly observes that section 766.203(2), Florida Statutes (2002), provides that a claimant must establish both negligence and causation to support a claim for medical negligence. See also § 766.102(1), Fla. Stat. (2002) (“any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider”) (emphasis added). Further, both elements of negligence and causation must be corroborated by a qualified expert. § 766.203(2), Fla. Stat. (2002). Specifically, section 766.203(2) provides:

Prior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

§ 766.203(2), Fla. Stat. (2002).

ORMC appears to concede that Nurse Headley was qualified to render an opinion on the nursing staffs standard of care. However, ORMC argues that Nurse Head-ley was not qualified to render an expert opinion as to causation. ORMC argues that while physicians are specifically recognized to have the capability to diagnose and treat any mental or physical human ailments, nurses are limited to observing, assessing and evaluating physical or mental conditions, and then following the treatment plan authorized by physicians. ORMC concludes that because nurses cannot diagnose patients or prescribe treatment plans for their patients, they do not have the ability to determine a patient’s cause of death, especially in a patient such as Virgil, who suffered from several serious cardiac and neurological conditions.

While section 766.203(2) directs the claimant to conduct an investigation to ascertain that there are reasonable grounds to believe that the defendant was negligent, it does not require the claimant to establish the defendant’s negligence or prove its case during the presuit screening process. Maldonado v. EMSA Ltd. P'ship, 645 So.2d 86, 88 (Fla. 3d DCA 1994). Section 766.203(2) simply requires a corroborating opinion from a medical expert, as defined in section 766.202(5); it does not require a corroborating opinion from a medical expert as more narrowly defined by section 766.102(6). Id.

In Dingier, the first district court, analyzed section 766.202(5), in detail and commented:

[T]he legislature has clearly provided for two alternative means for qualifying a “medical expert.” It begins by providing that to qualify under section 766.202(5) a “medical expert” must be “a person duly and regularly engaged in the practice of his profession who holds a health care professional degree from a university or college and has had professional training and experience.” The statute then sets forth an alternative qualification by the use of the disjunctive article “or” followed by the noun “one,” which can only, grammatically and logically in the context of section 766.102(5), be read in parallel construction with the noun “person.” To satisfy this alternative qualification, the expert must be “possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion.”

697 So.2d at 579.

We conclude that a plain reading of section 766.202(5) indicates that a nurse or any other medical professional, with appropriate experience or training, may, under the proper facts, be qualified to provide corroboration about medical causation for presuit purposes. See, e.g., Dingler (recognizing that under section 766.202(5), a person may qualify as a medical expert for purposes of providing a presuit corroborating opinion if the person possess special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion); Maldonado, 645 So.2d at 88 (finding that for presuit notice purposes, board-certified general surgeon was “medical expert” qualified to render opinion as to alleged negligence of emergency room physicians, and surgeon did not have to meet requirements of statute dealing with qualifications of expert witnesses in cases involving emergency medical services).

Admittedly, complex medical and factual issues are involved in a determination of proximate cause in a medical malpractice case. See generally Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct.App.1997). However, based on Nurse Headley’s extensive training and experience in critical care and cardiovascular services, she was a “medical expert” qualified to render opinion as to both the nursing staffs standard of care as well as the resulting death from the nursing staffs negligence. See § 464.003(3)(e), Fla. Stat. (2002) (defining the practice of “advanced or specialized nursing” as the practice of professional nursing as well as the performance of advanced-level nursing by virtue of specialized education, training and experience; which includes nursing diagnosis and treatment, and may also include medical diagnosis and treatment, prescription and operation, if approved by joint committee of Board of Nursing and Board of Medicine members).

Under the Medical Malpractice Act, a claimant must establish both negligence and causation to support a claim for medical negligence. See §§ 766.102, 766.203, Fla. Stat. (2002). The pertinent statutes clearly state that corroboration of reasonable grounds to initiate medical malpractice litigation may be provided by the claimant’s submission of a verified medical expert opinion from a medical expert, defined under the relevant statute, as “a person” (not a physician), who holds a health care professional degree from a university or college (not a medical degree) or skill upon the subject which he is asked to provide an opinion. See §§ 766.203(2), 766.205(5), Fla. Stat. (2002).

Based on the statute’s unambiguous and clear meaning, see In re McCollam, 612 So.2d 572, 573 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984), we conclude that for presuit purposes, a nurse or any other medical professional, with appropriate experience or training, may qualify as a medical expert to corroborate that there were reasonable grounds to initiate a medical malpractice action. Because the trial court did not use the correct legal principles in determining that Nurse Headley was not a qualified medical expert, as defined by section 766.202(5), Florida Statutes (2002), the order dismissing Apostoli-co’s wrongful death medical malpractice action must be reversed.

REVERSED AND REMANDED.

GRIFFIN and PLEUS, JJ., concur.

      . Chapter 766, Florida Statutes was revised, effective September 15, 2003. Ch.2003-416, § 87, Laws of Fla. However, the revisions apply only "to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.” Ch.2003-416, § 86, Laws of Fla. Thus, the revised statute does not apply here.

      . Apparently, the PICC line was not corrected until 23 hours after it was initially inserted by Nurse Adams. An x-ray showed the PICC line tip in the right atrium. The PICC line nurse was present and immediately pulled the catheter back approximately 5 cm. Virgil’s physician documented that Virgil's heart rate had increased to 120 beats per minute with resulting increase in myocardial workload.

      . In interpreting the Medical Malpractice Act, we are guided by legislative intent. But in doing so, we begin with the proposition that the statutory medical malpractice scheme must be interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses. Kukral v. Mekras, 679 So.2d at 278, 284 (Fla.1996). The presuit notice of intent under chapter 766 is designed to give the potential defendant notice of the incident in order to allow investigation of the matter and promote presuit settlement of the claim. The expert corroborative opinion is intended to prevent the filing of baseless litigation. Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So.2d 570, 572 (Fla. 1st DCA 1994). While it is true that the presuit requirements are conditions precedent to instituting a malpractice suit, the provisions of the statute are not intended to deny access to the courts on the basis of technicalities. Archer v. Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994). Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts. Patry v. Capps, 633 So.2d 9, 13 (Fla.1994).

        . The 2002 version of section 766.102(6), Florida Statutes, does not delineate the requisite qualifications of the medical expert offering a presuit affidavit. Instead, the 2002 version of section 766.203(2) provides, in pertinent part, that "[c]orroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5)....” Section 766.202(5), Florida Statutes (2002), provides that ‘‘[a]s used in ss. 766.201-766.212, the term ‘medical expert’ means a person duly and regularly engaged in the practice of his profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion.” These definitions lead us to conclude that section 766.202(5) provides a less stringent standard for qualification of experts in the medical malpractice presuit screening process than might be required of an expert to offer testimony at trial. See Faber v. Wrobel, 673 So.2d 871, 872-73 (Fla. 2d DCA 1995). This conclusion is buttressed by the legislative aim of preventing frivolous lawsuits while not unreasonably denying a claimant’s access to court. See id.

      . § 464.003(3)(a), Fla. Stat. (2002) (defining the practice of professional nursing as the performance of acts requiring substantial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences, which include, but are not limited to the observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care; health teaching and counseling of the ill, injured, or infirm; the administration of medications and treatments as prescribed or authorized by a duly licensed practitioner and the supervision and teaching of other personnel in the theory and performance of any of the above acts).

      . § 464.003(3)(d) & (e), Fla. Stat. (2002) (defining “nursing diagnosis” as the observation and evaluation of physical or mental conditions, behaviors, signs, symptoms of illness, and reaction to treatments, and "nursing treatment” as a nursing regiment that provides for the care and comfort of individuals, the prevention of illness, and the education, restoration, and maintenance of health).

      . It is parenthetically noted that ORMC’s reliance on Correa v. Robertson, 693 So.2d 619 (Fla. 2d DCA 1997), is misplaced. In Correa, the second district court held that hospital administrator was not qualified as a "medical expert” for purposes of medical malpractice presuit notice. In rendering this opinion, the court appeared to be stating that only "health care providers" could be the affiants signing presuit affidavits. Specifically, the court stated that "health care providers” as contemplated under section 766.202(5), "includes 'physicians licensed under chapter 458 ... nurses licensed under chapter 464,’ but does not include a hospital administrator...." Id. at 621 (citing Weinstock v. Groth, 629 So.2d 835, 836-37 (Fla.1993) (emphasis added)).


source: Caselaw Access Project

author: PER CURIAM. BOOTH J.,

license: Public Domain

text:
    Carol SINGLETARY, Appellant, v. YODER'S AND AMERITRUST INSURANCE CORPORATION, Appellees.
    No. 1D02-2965.
    District Court of Appeal of Florida, First District.
    March 26, 2004.

      Richard Lovesky, Esquire, Bradenton and Bill McCabe, Esquire, Longwood, for Appellant.
    Ben H. Cristal, Esquire of Sponsler, Bennett, Jacobs & Cristal, P.A., Tampa, for Appellees.
   PER CURIAM.

Carol Singletary appeals an order of a judge of compensation claims (JCC) denying workers’ compensation benefits for a left knee injury that she alleged occurred in the course and scope of her employment. Although the JCC did not credit her version of events, the employer and carrier waived the right to deny compensa-bility by failing “to deny compensability within 120 days after the initial provision of benefits....” § 440.20(4), Fla. Stat. (2002). We nevertheless affirm on the authority of section 440.09(4), Florida Statutes (2002).

Because the carrier did not deny benefits until almost seven months after it initially accepted the injury as compensa-ble and began paying benefits, it waived its right to deny compensability. See Travelers Ins. Co. v. Collins, 825 So.2d 451, 451-52 (Fla. 1st DCA 2002) (affirming JCC’s finding that the employer/carrier waived the right to deny compensability because “they did not deny it within 120-days of commencing payment thereon” and that the statutory exception to the 120 day deadline was inapplicable because “a report from the physician ... put the employer and carrier on notice that claimant’s ... condition consisted of a pre-existing degenerative ... condition.... ”).

Medical records antedating the initial provision of benefits revealed the possibility that Mrs. Singletary’s knee pain was caused by a preexisting condition, rather than a work-related injury, and “should have prompted a timely, thorough, good-faith investigation.” Franklin v. N.W. Airlines, 778 So.2d 418, 422 (Fla. 1st DCA 2001). Section 440.20(4) provides:

The carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits .... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation ... waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period....

Everything on which the carrier based its eventual denial of benefits was known by or available to it within the 120-day period. The carrier did not prove anything came to light after the 120-day period had expired that gave it additional reason to doubt that the injury was job-related.

Even so, we must affirm the denial of benefits because “competent evidence of record furnishes substantial support,” Olavarria v. Okeelanta Corp., 741 So.2d 1249, 1250 (Fla. 1st DCA 1999), for the JCC’s finding that “[cjlaimant knowingly made false or misleading oral and written statements for the purpose of obtaining benefits.” In her order, the JCC found that

the claim should be denied in its entirety [because]_[t]he evidence in its totality establishes that .... [cjlaimant knowingly made false or misleading oral and written statements for the purpose of obtaining benefits [in violation of section 440.105, Florida Statutes, (2002) ].... Therefore, claimant is not entitled to benefits per section 440.09(4), Fla. Stat....
Claimant’s demeanor while testifying did not support the trustworthiness of her statements, and I accept the other witnesses’ testimony where it differs. Claimant could not remember any workplace injury until she was encouraged to report a work injury by her friend and employer, Anna Marie Yoder, which is supported by all of the other evidence, including her history to Dr. Swanson.

Section 440.09(4) precludes “compensation or benefits ... if any judge of compensation claims ... determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 for the purpose of securing workers’ compensation benefits.” Section 440.105(4)(b)(l), Florida Statutes (2002) provides that “[i]t shall be unlawful for any person ... [t]o knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.”

As was conceded by both parties at oral argument, the employer/carrier had the burden of proving a violation of section 440.105 by a preponderance of the evidence. On appeal, we are compelled to affirm so long as that “ruling ... is supported by competent substantial evidence ... even though there may be some persuasive evidence to the contrary.” Fla. Mining & Materials v. Mobley, 649 So.2d 934, 934 (Fla. 1st DCA 1995). Thus, “[e]ven though we might have reached a different result if the facts had been for us to find,” we are obliged to affirm the denial of compensation because there is competent, substantial evidence to support the finding that Mrs. Singletary made false or misleading statements concerning where the accident occurred for the purpose of obtaining benefits. Olavarria, 741 So.2d at 1250. See Vill. Apartments v. Hernandez, 856 So.2d 1140 (Fla. 1st DCA 2003).

Affirmed.

BENTON and LEWIS, JJ., concur; BOOTH, J., dissents with opinion.

BOOTH J.,

dissenting.

A review of the record does not reveal any evidence to support the JCC’s ruling that Claimant violated section 440.09(4) and is, therefore, precluded from receipt of benefits. The JCC, in its order, states that Claimant made false or misleading statements to obtain benefits but fails to indicate even one such statement. No such statements are apparent from the record.

The JCC, in the exercise of its discretion, determined that Claimant was not a credible witness and, based on this determination, held that Claimant was guilty of worker’s compensation fraud. Strickler v. Fla. Power Corp., 667 So.2d 239 (Fla. 1st DCA 1995). However, the JCC’s ruling on Claimant’s credibility is not sufficient, in and of itself, to support the conclusion that Claimant knowingly and intentionally made false statements to obtain worker’s compensation benefits. Whenever a witness’s testimony is rejected by the JCC, that witness would be guilty of making a fraudulent statement, and subject to sanctions, under section 440.105.

Furthermore, the evidence does not support the JCC’s determination that Claimant knowingly made false statements. See Steyr Daimler Puch of Am. v. A & A Bicycle Mart, Inc., 453 So.2d 1149, 1150 (Fla. 4th DCA 1984). Claimant’s failure to realize she had been injured at work until 7-10 days after the incident and her consequent delay in reporting her injury does not constitute, alone or together, evidence of fraud. An MRI, taken approximately 10 days after the incident, revealed an acute injury which was consistent with Claimant’s reported “twisting injury to the knee.”

Accordingly, I would reverse the JCC’s finding that Claimant knowingly made false and misleading statements for the purpose of obtaining worker’s compensation benefits.


author: PER CURIAM.

text:
    Jerome A. COOPER, Petitioner, v. James V. CROSBY, Secretary of the Florida Department of Corrections, et al., Respondents.
    No. 1D04-0741.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Rehearing Denied May 5, 2004.
    Jerome A. Cooper, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

DENIED. See Hardwick v. Dugger, 648 So.2d 100 (Fla.1994)(habeas corpus may not be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in post-conviction proceedings).

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Vivarine ECHOLS, Appellant, v. PALM BEACH SCHOOL DISTRICT and F.A. Richard & Associates, Inc., Appellees.
    No. 1D03-90.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Rehearing Denied May 6, 2004.

      Gilbert Panzer, West Palm Beach; Bill McCabe, Longwood, for Appellant.
    Mara Shlackman and Brian P. Knight of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the claimant seeks review of a final order denying requests for attorney’s fees for the services of her attorney in connection with claims related to her right hand; to her neck, back and right knee; and for EMG/ NCV testing. She also seeks review of the denial of her request for costs incurred in taking the deposition of her independent medical examiner.

We reverse the denial of the request for attorney’s fees for services in connection with the claim related to the right hand because it is not based on competent, substantial evidence. The undisputed evidence establishes that the claim was not timely accepted. The claimant is entitled to a fee pursuant to Gulledge v. Dion Oil Co., 605 So.2d 482 (Fla. 1st DCA 1992). The same is true as to the claim for EMG/NCV testing — the record clearly demonstrates that the testing ultimately received was the result of the efforts of the claimant’s attorney.

We also reverse the denial of the request for costs incurred in taking the deposition of the claimant’s independent medical examiner, Dr. Rubenstein. His testimony was clearly relevant to the com-pensability of both the claimant’s left and right hand conditions, on both of which she prevailed. Accordingly, she is entitled to tax the costs of securing the deposition. See, e.g., Raska v. Glasgow Contracting Co., 588 So.2d 307 (Fla. 1st DCA 1991). Finally, we affirm the denial of a fee for services attributable to the claim related to the neck, back and right knee because the reasons given are supported by competent, substantial evidence.

In summary, we reverse the denial of the request for attorney’s fees for services related to the right hand claim and the claim for.EMG/NCV testing; we reverse the denial of costs incurred in taking the deposition of Dr. Rubenstein; and we affirm the denial of the request for attorney’s fees for services related to the neck, back and right knee claim.

AFFIRMED IN PART and REVERSED IN PART.

WEBSTER, BENTON and PADOVANO, JJ., concur.


text:
    Charles JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0278.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Rehearing Denied May 6, 2004.
    Charles Johnson, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

We conclude that Charles Johnson’s claim of ineffective assistance of appellate counsel is premature inasmuch as the appeal that is the subject of his claim remains pending, and a review of the docket therein does not establish that his appellate counsel has unduly delayed the prosecution of that appeal.

PETITION DENIED.

. ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Cameron Dale TILLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4121.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied April 28, 2004.
    Cameron Dale Tilley, Malone, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Cameron Dale Tilley appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We believe Tilley’s motion is more -appropriately considered under Florida Rule of Criminal Procedure 3.800(a). Because we conclude that Til-ley’s sentence is illegal, we remand this matter to the trial court so that the sentence can be restructured.

Pursuant to a plea agreement with the State, Tilley pled nolo contendere to three counts of lewd or lascivious assault upon a child, in violation of section 800.03, Florida Statutes (1994). Tilley and the State agreed to a seven-year prison sentence followed by ten years of sex offender probation. Pursuant to that agreement, a predecessor judge sentenced Tilley to concurrent terms of seven years in prison, followed by concurrent terms of ten years of sex offender probation. Because Til-ley’s crimes were each second degree felonies and his sentencing guidelines score-sheet did not authorize a greater sentence, Tilley should have received no more than a total of fifteen years in prison or probation for each offense. The seventeen-year sentences imposed (seven years prison and ten years probation) on each count is an illegal sentence. See § 775.082(3)(c), Fla. Stat. (1994).

For that reason, we remand this matter to the trial court for resentencing. Tilley is entitled to the benefit of the plea agreement, but nothing more. On remand, Til-ley’s sentence can be restructured in a manner that effectuates the plea agreement. For example, the court could sentence Tilley to seven years in prison on one count, followed by ten years of probation on the remaining two counts, concurrent with each other but consecutive to Tilley’s prison sentence. Such a restructuring would comply with the plea agreement and result in a legal sentence.

REVERSED AND REMANDED.

PLEUS, ORFINGER and MONACO, JJ., concur.


text:
    James JONES, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-5062.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Rehearing Denied April 30, 2004.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for Appellant.
    John R. Perry, Assistant District Legal Counsel, Department of Children and Families, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal of a final order of the Department of Children and Families which disqualified James Jones from employment, Jones argues the Department wrongfully disqualified him from his employment “as it had no statutory authority to do so.” This argument is without merit. Accordingly, the final order is AFFIRMED.

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


text:
    Joshua R. SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D02-4229, 1D02-5001.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Rehearing Denied May 5, 2004.
    Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this consolidated appeal, we affirm the appeal in Case No. 1D02-5001 without discussion. In Case No. 1D02-4229, appellate counsel filed a motion to correct sentencing errors pursuant to Florida rule of Criminal Procedure 3.800(b)(2) alleging that appellant’s new split sentences for attempted lewd acts were excessive and that sex offender probation could not be imposed for grand theft. The trial court agreed and orally pronounced a corrected sentence. The trial court, however, failed to enter a written judgment and sentence to reflect the corrected oral pronouncement of sentence. Accordingly, we reverse this sentence and remand for the entry of a corrected written sentence. See Montgomery v. State, 704 So.2d 548, 551 (Fla. 1st DCA 1997).

Appellant also argues that the trial court erred in declaring appellant to be a sex offender and rejecting his argument that section 943.0435, Florida Statutes (1998), which requires the registration of “sex offenders,” is unconstitutional on the ground that it denies procedural due process. Appellant’s argument is without merit. We have recently rejected the same constitutional challenge both under section 943.0435, see Ames v. State, 870 So.2d 203 (Fla. 1st DCA March 11, 2004), and under section 775.21, Florida’s sexual predator law. See Frazier v. State, - — • So.2d-, 2004 WL 221043, 29 Fla. Law Weekly D369 (Fla. 1st DCA, February 6, 2004), and cases cited therein. For purposes of appellant’s argument that a hearing is required before the stigma of sexual offender status is imposed, the two statutes are indistinguishable because they both require an automatic determination if one of the enumerated crimes has been committed, registration for life, and criminal prosecution in the event a defendant fails to register.

AFFIRMED in part, REVERSED in part, and REMANDED.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    MIAMI-DADE COUNTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-1091.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Robert A. Ginsburg, County Attorney, and William X. Candela and Lee Kraftch-ick, Assistant County Attorneys, for appellant.
    John D. Maher (Tallahassee), for appel-lee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. City of Ft. Lauderdale v. Florida Unemployment Appeals Comm’n, 536 So.2d 1074 (Fla. 4th DCA 1988).


text:
    Alvin JACKSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-1102.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Alvin Jackson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for respondent.
    Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

Alvin Jackson petitions for a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Petitioner Jackson entered a guilty plea to multiple criminal charges. In the plea colloquy, the petitioner waived the right to an appeal and no issue was reserved for appeal.

In the sworn petition for belated appeal, petitioner alleged that he asked his counsel to file an appeal from his guilty plea. Petitioner’s trial counsel denied that any such request for an appeal was made.

To resolve that factual dispute this Court appointed Honorable Mark King Leban to serve as a Commissioner of this Court to take testimony to resolve the factual dispute. See State v. Trowell, 739 So.2d 77, 81-82 & n. 5 (Fla.1999); Rios v. Moore, 765 So.2d 888 (Fla. 3d DCA 2000); Gonzalez v. Singletary, 763 So.2d 1282, 1283 (Fla. 3d DCA 2000). The Commissioner has submitted his report and recommendation, which is accepted with the thanks of the Court. The Commissioner resolved the dispute in testimony in favor of trial counsel, and concluded that the petitioner “did not ask his attorney to file an appeal.... ” That being so, the petition for belated appeal is denied.


author: LEWIS, J.

text:
    Donald WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0581.
    District Court of Appeal of Florida, First District.
    April 19, 2004.

      Donald Wilson, pro se, for Appellant.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Donald Wilson, appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, and reverse in part and remand for an evidentiary hearing.

Appellant previously challenged the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion, and this Court affirmed in part, reversed in part and remanded for further record attachments or for an evidentiary hearing. See Wilson v. State, 832 So.2d 883 (Fla. 1st DCA 2002). On remand, the trial court again summarily denied appellant’s motion and attached appellant’s judgment and sentence, criminal punishment code score-sheet, plea agreement, and plea colloquy in support of the denial. This appeal followed.

“Rule 3.850 explicitly requires that the record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing.” State v. Leroux, 689 So.2d 235, 237 (Fla.1996). Of the five claims appellant raised in his motion for postconviction relief, we find that two of the claims are not conclusively refuted by the plea colloquy or other record attachments. See State v. Coney, 845 So.2d 120, 134, 135 (Fla.2003) (citing LeCroy v. Dugger, 727 So.2d 236 (Fla.1998)).

Appellant’s entry of a plea, plea colloquy, and other record attachments do not conclusively refute his first claim that his counsel failed to investigate evidence that would have supported a motion to suppress incriminating statements he gave to police while in custody without being informed of his Miranda rights, and that his counsel should have filed a motion to suppress. Appellant alleges that he would not have entered a plea in the absence of these alleged failures. See Stano v. State, 520 So.2d 278, 280 (Fla.1988); Lester v. State, 773 So.2d 1188, 1190 (Fla. 2d DCA 2000); Fortner v. State, 538 So.2d 85, 86 (Fla. 2d DCA 1989) (holding that the allegation in the context of a plea that trial counsel failed to move to suppress an incriminating statement constituted a facially sufficient claim). The record demonstrates that between the time appellant entered his plea and the time that he appeared for sentencing, appellant expressed concern that his attorney had not filed a motion to suppress the statements appellant made to police officers. The record offers no indication that appellant’s attorney addressed this concern of appellant’s, or that appellant had been made aware of a potential suppression issue pri- or to entering his plea. See Jenrette v. State, 761 So.2d 414 (Fla. 2d DCA 2000) (holding that the appellant’s claim that his counsel was ineffective for failing to file a motion to suppress a confession the appellant gave without being informed of his Miranda rights was facially sufficient). Therefore, we reverse the trial court’s summary denial of this claim and remand for an evidentiary hearing.

The plea colloquy and other record attachments do not refute the portion of appellant’s second claim in which he alleged that trial counsel failed to depose the police officers who coerced his confession while he was in custody without advising him of his Miranda rights, as that allegation relates to the suppression issue raised in appellant’s first claim. See Smith v. State, 815 So.2d 707, 707 (Fla. 1st DCA 2002) (holding that the appellant’s allegation that counsel failed to properly investigate a potential defense witness was facially sufficient and not negated by the appellant’s plea, as the appellant alleged that he would not have entered a plea in the absence of the alleged failure). As such, we reverse the trial court’s summary denial and remand for an evidentiary hearing as the record attachments do not conclusively refute this portion of appellant’s second claim. As to the portion of appellant’s second claim alleging that counsel was ineffective for failing to investigate and depose various other witnesses, we affirm the trial court’s summary denial, as appellant has not demonstrated how this alleged error affected the outcome of his proceeding.

With regard to appellant’s third claim, that trial counsel failed to prepare and develop viable defenses to the charges against him, it is apparent from the record that appellant had raised the issue of self-defense with his defense counsel prior to the entry of his plea. Cf. Stanley v. State, 703 So.2d 1156, 1157 (Fla. 2d DCA 1997) (noting defenses which were not brought to defendant’s attention cannot be waived); Seraphin v. State, 706 So.2d 913 (Fla. 4th DCA 1998) (reversing where defendant alleged counsel failed to advise him of a viable defense); McCoy v. State, 598 So.2d 169 (Fla. 1st DCA 1992) (reversing where appellant alleged counsel failed to consider a defense). Based on this previous discussion and the language contained in the plea agreement form, we determine that appellant knowingly waived the right to pursue a claim that his counsel was deficient for failing to investigate a “self-defense” defense. The plea agreement form specifically provides:

Consultation with Attorney:

We have fully discussed all aspects of this case, including all possible defenses to all charges, including self-defense and any defense based upon any disability disease, insanity, or intoxication. My attorney has given me the opportunity to ask questions and has answered all my questions fully and completely. My attorney has taken all actions requested by me, or has explained to my satisfaction and agreement why such actions should not be taken, and I concur with my attorney’s decisions in that regard. I am completely satisfied with the services rendered by my attorney on my behalf in this case.

(emphasis added). Additionally, during the plea colloquy appellant acknowledged that (1) each portion of the plea agreement form was explained to him; (2) he understood the plea form; (3) his attorney answered all of his questions; (4) he understood and was satisfied with what his attorney told him; and (5) he was satisfied with counsel’s services. He specifically acknowledged that' he was waiving his right to assert any defense.

THE COURT: You recognize and understand if you had any defense to this charge once I accept the plea that defense is no longer available to you?
THE DEFENDANT: Yes, sir.

We find that the specific language of the plea agreement and discussion at the plea colloquy, coupled with the fact that the issue of “self-defense” had been raised with counsel prior to the plea agreement warrants affirmance on this issue.

In appellant’s third claim for relief, he also claims that his trial counsel failed to conduct an adequate pre-trial investigation and prepare a viable defense concerning voluntary intoxication. The defense of involuntary intoxication is not available for general intent crimes, including the second-degree murder charge against appellant. See Jackson v. State, 699 So.2d 306, 308 (Fla. 1st DCA 1997). Voluntary intoxication is also not a defense to the general intent crime of manslaughter, the crime to which appellant pled. See Webster v. State, 744 So.2d 1034, 1035 (Fla. 1st DCA 1999). Appellant’s counsel could not be ineffective for failing to pursue this non-viable defense. We affirm the trial court’s denial of relief on the remaining claims without discussion.

AFFIRMED in part; REVERSED in part and REMANDED.

WOLF, C.J. and POLSTON, J., concur.


text:
    Jessie R. TEAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2727.
    District Court of Appeal of Florida, First District.
    April 19, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court erred in denying the appellant’s motion as successive and the appellant has a facially sufficient claim of an illegal sentence, we reverse.

On April 20, 1992, the appellant was convicted of (1) sale of cocaine within 1,000 feet of a school, (2) possession of cocaine within 1,000 feet of a school, (3) sale of cocaine within 1,000 feet of a school, and (4) possession of cocaine within 1,000 feet of a school and was sentenced as a habitual felony offender to consecutive terms of eight years’ imprisonment with consecutive three-year mandatory mínimums. The appellant subsequently filed a motion to correct his illegal sentence; and on September 8, 1995, the trial court entered an order finding that it was proper to run the appellant’s sentences consecutively, but it was improper for the appellant to receive mandatory minimum sentences on counts two and four because counts one and two and counts three and four were single criminal episodes. Thus, the trial court struck the mandatory minimum sentences on counts two and four.

On May 24, 2001, the trial court entered an order denying the appellant’s claim that his consecutive sentences on counts one and two and his consecutive sentences on counts three and four were illegal pursuant to Hale v. State, 630 So.2d 521 (Fla. 1993), reasoning that the claim should have been raised in a rule 3.850 motion. On January 18, 2002, the appellant filed a second rule 3.800(a) motion again alleging that he was entitled to relief pursuant to the decision in Hale. The trial court denied this motion as successive. The appellant is now appealing the summary denial of that motion.

The trial court erroneously denied the appellant’s motion as successive because it does not appear from the face of the record that the appellant’s claim has ever been addressed on its merits. A Hale claim is cognizable in a rule 3.800(a) motion as long as the fact that the multiple convictions arose from a single criminal episode is readily apparent from the face of the record. Valdes v. State, 765 So.2d 774, 776 (Fla. 1st DCA 2000). In the instant case, the trial court previously determined that only two criminal episodes occurred, each involving one sale and one possession of cocaine. Thus, the appellant has a facially sufficient claim that his four consecutive habitual felony offender sentences violate the decision in Hale. See Valdes.

We therefore reverse the trial court’s summary denial of the appellant’s motion and remand for the trial court to address the merits of the appellant’s claim.

REVERSED and REMANDED.

ERVIN and BOOTH, JJ., and SMITH, Senior Judge, concur.


author: VAN NORTWICK, J.

text:
    Keith DIRLING, Appellant, v. SARASOTA COUNTY GOVERNMENT and Integrated Administrators, Appellees.
    No. 1D03-1224.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Richard Lovesky, Bradenton and Bill McCabe, Longwood, for Appellant.
    Jorge L. Fernandez, County Attorney and Maria D. Korn, Assistant County Attorney, Sarasota, for Appellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Keith Dirling, claimant, appeals a final order of the Judge of Compensation Claims (JCC) which, among other things, denied as untimely the claimant’s request for a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), with respect to the opinion testimony of Dr. Howard Weiner and denied claimant’s petition for benefits based on findings founded in part on the acceptance of Dr. Weiner’s opinion testimony. Because it did not become apparent until the final hearing that Dr. Weiner’s opinion testimony was based in material part on scientific studies concerning an association between exposure to certain chemicals and chronic obstructive pulmonary disease (COPD), it was error to deny claimant’s Frye motion. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Claimant sought various workers’ compensation benefits from appellees, Sarasota County and Integrated Administrators, jointly the employer/carrier, on the theory that his COPD was the result of exposure to various chemicals and fumes at his employment as a mechanic and welder. At the request of the employer/carrier, Dr. Weiner performed an independent medical examination (IME) on claimant. In his IME report, Dr. Weiner noted claimant’s prior cigarette smoking; genetic factors; history of metal fume fever from employment as a welder; and potential exposure to numerous vapors, fumes and particles that could result in COPD. In the report, Dr. Weiner opined, as follows:

Mr. Dirling has severe COPD secondary to prior cigarette smoking and genetic factors. Mr. Dirling’s work site may have contributed to acute/chronic bronchitis and may have resulted in episodes of metal fume fever.
Based upon all of the records that I have reviewed as well as information that I have obtained directly during this IME, I conclude that Mr. Dirling’s work-site was a contributing factor to his total respiratory condition. It is unlikely that his work-site was a major contributing cause to his COPD. I conclude this with the assumption that Mr. Dirling’s work-site description is accurate. I state all of this within a reasonable degree of medical certainty.

No deposition was taken of Dr. Weiner.

At the final hearing, the employer/carrier presented Dr. Weiner’s testimony tele-phonically. On direct examination, when questioned about claimant’s exposure to chemical agents, pesticides, or herbicides, Dr. Weiner testified that there was no data that would establish that those chemicals caused COPD. Further, concerning the relationship between COPD and welding, Dr. Weiner explained the basis for his opinion:

One certainly can have lung reactions, and those reactions can include conditions such as metal fume fever, chemical pneumonitis[,] hypersensitivity pneumo-nitis, siderosis ... pneumonia, ... the issue of chronic obstructive pulmonary disease, there is no data which universally supports welders to have COPD on the basis of that occupation.
There are epidemiologic studies which suggest an association, and that association then projects that mild obstructive lung disease may be associated, but there are many studies which state the opposite.
There is no consensus on that at all. And of course, in persons who are smokers, it could be considered a compounding variable, and one would have to be very careful in interpreting any epidemiologic studies as causing COPD in persons who are also heavy smokers.

In response to questions about the scientific studies referred to in a report by another witness, Dr. Weiner stated that, although these types of studies can identify a possible association between exposure and disease, the studies do not conclude that there is any causation. When Dr. Weiner was directly asked if the claimant’s work environment could be even a minor contributing cause of the COPD, he opined that “the best I can say from a scientific standpoint is that there would be no consensus to support that it was a minor contributing cause either.” Dr. Weiner concluded that claimant’s “COPD was and is related to his excessive cigarette smoking and genetic predisposition and cannot attribute any documented causation to his work site.”

At that point, counsel for claimant objected to Dr. Weiner’s testimony and moved to strike the testimony because it lacked scientific foundation under the Frye standards. Counsel noted that, in his IME report, Dr. Weiner had stated that claimant’s COPD was related to his workplace exposure and now was testifying differently based upon scientific studies. In the order on appeal, the JCC denied the claimant’s request for a Frye hearing, ruling that the request was untimely.

In workers’ compensation cases, when determining the admissibility of expert opinion testimony based upon new or novel scientific principles or methodology, the JCC must determine whether such evidence is sufficiently reliable under the Frye admissibility standards. U.S. Sugar Corp. v. Henson, 823 So.2d 104, 106 (Fla.2002)(Henson II). In the context of a workers’ compensation proceeding, any Frye issue should be set forth in the pre trial stipulation, see U.S. Sugar Corp. v. Henson, 787 So.2d 3, 12-13 (Fla. 1st DCA 2000)(Henson I), approved 823 So.2d 104 (Fla.2002), and Frye objections should be raised at the deposition of an expert witness. Id. at 13; see also Hadden v. State, 690 So.2d 573, 580 (Fla.1997)(“[I]t is only upon proper objection that the novel scientific evidence offered is unreliable that a trial court must make this determination. Unless the party against whom the evidence is being offered makes this specific objection, the trial court will not have committed error in admitting the evidence.”). Further, “[t]he Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Henson II, 823 So.2d at 109. Thus, the JCC must make the threshold determination of whether the scientific principle or methodology underlying the expert’s opinion is “new or novel.” “[WJhere a scientific principle has been established and generally accepted in the relevant scientific community, and has also been Frye tested in the legal community, it is no longer new or novel and there is simply no need to reapply a Frye analysis.” Williams v. State, 710 So.2d 24, 30-31 (Fla. 3d DCA 1998); see generally, Charles W. Ehrhardt, Florida Evidence, § 702.3 at 627-28 (2003 Ed.). If new or novel scientific principles are at issue, the JCC should perform a Frye analysis following the four-step process set forth in Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995); see also Henson I, 787 So.2d at 14; see generally, Ehrhardt, Florida Evidence, § 702.3 at 630-33, and David W. Barnes, General Acceptance Versus Scientific Soundness: Mad Scientists in the Courtroom, 31 Fla. St. U.L.Rev. 303 (2004).

Here, the JCC denied claimant’s Frye request as untimely because the Frye issue was not included in the pretrial stipulation. Claimant argues that the Frye objection was timely, because it was impossible for the claimant to know prior to the final hearing that Dr. Weiner would provide expert testimony based upon new or novel scientific studies. Claimant notes that Dr. Weiner’s IME report gave no indication that he was relying on such studies and his report was favorable to claimant in concluding that claimant’s “work-site was a contributing factor to his total respiratory condition.” Claimant asserts that it was not until Dr. Weiner changed his opinion to conclude that workplace exposure was not even a minor contributing cause of claimant’s COPD that he extrapolated an opinion from scientific studies.

We agree with the JCC that in workers’ compensation cases Frye issues should generally be set forth in the pretrial stipulation and raised at the deposition of the expert. This procedural requirement “is based upon the nature of the trial procedure in a workers’ compensation proceeding.” Henson I, 787 So.2d at 14. Nevertheless, where, as here, the expert’s medical report did not disclose that the opinion was based upon scientific studies, no deposition of the expert was taken, and the final hearing is the first time the claimant knew or reasonably should have known that the expert’s opinion testimony would present a Frye issue, a Frye motion at the hearing is timely. See Helsman Mgmt. Services v. Garner, 725 So.2d 1188 (Fla. 1st DCA 1999).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

BOOTH and LEWIS, JJ., concur.


author: HAWKES, J.

text:
    L.P., father of J.Q., a child, Appellant, v. DEPARTMENT OF CHILDREN and FAMILIES, Appellee.
    No. 1D02-3950.
    District Court of Appeal of Florida, First District.
    April 20, 2004.

      Nancy Leonard Harvey, Quincy, for Appellant.
    Alexandria E. Walters, Dept. Of Children and Families, Quincy, for Appellee.
   HAWKES, J.

Appellant, a non-offending father, appeals from a non-final order denying him custody of his 17 month-old, developmentally disabled son. The question we are asked to resolve is whether the record contains competent, substantial evidence to support the trial court’s conclusion that it was not “suitable” for Appellant to rely on his disabled fiancée, relatives, and various social agencies to assist him with child care during his working hours. We find it does not, and reverse.

Following an adjudication of dependency, the child was removed from his mother’s custody and placed with his maternal grandmother. Appellant was never married to, nor does he reside with, his child’s mother. For the last 2years he has lived with his fiancée, who is confined to a wheelchair.

Following a dependency hearing, the trial court dismissed the dependency petition against Appellant, finding he neither abandoned his child nor failed to pay child support. Appellant sought custody, and a hearing was held. At the hearing, evidence was presented that Appellant had a stable job and home, but worked an evening shift, often until 11:00 p.m. Evidence was also presented that, between August 1994 and December 6,1999, all prior to the child’s birth, Appellant had five admissions to a detox facility for alcohol dependency, each admission lasting approximately two days.

Appellant underwent two home studies. The first recommended placement with Appellant, while the second did not recommend this placement solely because “no suitable or specific arrangements” had been made for the child’s supervision while Appellant was at work. However, it was uncontested that Appellant’s fiancée previously worked at the Center for Independent Living as their information and referral specialist, and was familiar with the various agencies and programs in Tallahassee that could provide assistance to Appellant and the child. Additionally, there was testimony that several family members were also available to assist with child care while Appellant worked in the evening.

Following the hearing, the trial court correctly noted that, because Appellant was a non-offending parent, the law requires he be granted custody unless it would compromise the child’s physical, mental or emotional health, safety or well-being. The trial court acknowledged Appellant had “done well in the last several years,” but that within the last eight years, Appellant was involved with drugs and alcohol, and had been in prison. The trial court noted Appellant’s last admission to a detox facility was in December of 1999, one month before the birth of his son. The trial court found Appellant had been “less than forthright in his testimony at times,” in that during the first proceeding he could not remember if he had been in detox, and at the second proceeding he remembered he had been three to four times.

The trial court further noted Appellant’s fiancée has physical limitations that prevent her from “chasing around” a two or three year old and, although Appellant made arrangements for child care in his home, in the court’s opinion, it would be difficult to keep someone full-time because of the late hours. For these reasons, the trial court denied Appellant’s motion for custody, concluding placing the child with Appellant would compromise the child’s safety and mental, physical, and emotional well-being. In so doing, the trial court erred.

Section 39.521(3)(b), Florida Statutes (2002), provides that, following an adjudication of dependency,

(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.

Id.; see also M.M. v. Dep’t of Children & Families, 777 So.2d 1209 (Fla. 5th DCA 2001). The “best interest” standard does not apply under this section, and in the absence of evidence of endangerment, the non-offending parent is entitled to custody. See D.S. v. Dep’t of Children & Families, 832 So.2d 838 (Fla. 5th DCA 2002). A natural parent cannot be denied custody of his child unless evidence demonstrates compelling reasons that the parent is unfit or otherwise unable to exercise custody, and that placing the child with the parent would endanger the child’s safety and well-being. See In the interest of M.K.S., 726 So.2d 309 (Fla. 2d DCA 1998).

Here, the trial court’s findings do not demonstrate “compelling reasons” which indicate Appellant is unfit or that the child would be endangered if placed in his custody. There was no evidence that Appellant currently has an alcohol problem, became intoxicated after 1999, or that he ever had a drug problem. Significantly, there is no evidence that Appellant became intoxicated at all after the birth of his son in January, 2000, much less that his intoxication would endanger the child. Neither home study indicated Appellant’s home was inappropriate. The only concern about placing the child with Appellant related to available evening child care. However, the uneontested evidence was that several family members were available to assist Appellant and his fiancée with evening child care, and child care was also available through various agencies Appellant’s fiancée knew quite well. The trial court’s opinion that it would be difficult to keep someone full-time was based on speculation, not on any evidence presented. As an aside, we note that many single, .working parents face similar child care problems. Surely, these problems do not render their children dependent on the State of Florida.

Because there are no compelling reasons demonstrating the child would be endangered if placed in Appellant’s custody, the trial court abused its discretion by denying Appellant custody of his child. Accordingly, we reverse and remand for the trial court to place Appellant’s child in his custody.

REVERSED and REMANDED for proceedings consistent with this opinion.

DAVIS, J., concurs in result; VAN NORTWICK, J., concurs.


text:
    Deborah A. BUSCHOR, Appellant, v. IDC REALTY SERVICES, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-1214.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Deborah A. Buschor, in proper person.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Deborah A. Buschor appeals the denial of unemployment compensation benefits. In the present case conflicting testimony was offered by the parties. It was the responsibility of the referee to resolve the conflicts, which he did in this case in favor of the employer. See Wallace v. Zahn Dental Co., Inc., 618 So.2d 382 (Fla. 3d DCA 1993). This court is not allowed to overturn the referee’s factual findings, as long as there was competent, substantial evidence at the hearing which supports the findings. See Gonzalez v. Master Flowers, Inc., 605 So.2d 180 (Fla. 3d DCA 1992). As we see no legal basis on which to disturb the referee’s findings, the order is affirmed. See also St. Augustine Church v. Florida Unemployment Appeals Comm’n, 754 So.2d 183 (Fla. 3d DCA 2000); Stahl v. Florida Unemployment Appeals Comm’n, 502 So.2d 78 (Fla. 3d DCA 1987).

Affirmed.


text:
    Eduardo POL, Appellant, v. The STATE of Florida, Appellee.
    No. 03-743.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Bennett H. Brummer, Public Defender and J. Rafael Rodriguez, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney Zack, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Following a jury trial Eduardo Pol was charged with and convicted of one count of first degree murder for the stabbing death of his estranged wife. The trial court sentenced Pol to life in state prison. We affirm.

The evidence adduced against Pol at trial consisted of his confession as well as ample physical evidence. After careful and thorough consideration of the record, we find no error below, and affirm Pol’s conviction and sentence.

Affirmed.


author: SHARP, W., J.

text:
    STATE of Florida, Appellant, v. Laban Jasper EARWOOD, Appellee.
    No. 5D03-1129.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. KrechowsM, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellee.
   SHARP, W., J.

The state appeals from an order which dismissed the charge of failing to register as a convicted sex offender filed against Earwood. This appeal involves the same issue, the interpretation of the sexual offender registration statute, section 943.0435, Florida Statutes, which was addressed in State v. Mounce, 866 So.2d 132 (Fla. 5th DCA 2004). Accordingly, we reverse and remand this case for further proceedings, pursuant to Mounce.

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ„ concur.

      . § 943.0435(2), Fla. Stat. (2002).


text:
    Paul D. RICKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2073.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Paul D. Rickman, Bristol, pro se.
    No appearance for Appellee.
   PER CURIAM.

Paul D. Rickman appeals his designation as a sexual predator pursuant to section 775.21, Florida Statutes (2002), Florida’s Sexual Predator Act, (“FSPA”). Rickman relies on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), in support of his allegation that the FSPA violates procedural due process by not providing a hearing before classifying a defendant as a sexual predator.

All of the other district courts have disagreed with Espindola and have certified conflict as we do now in the instant case. See Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Frazier v. State, — So.2d -, 2004 WL 221043, 29 Fla. L.Weekly D369 (Fla. 1st DCA Feb.6, 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004); Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), rev. granted, 859 So.2d 514 (Fla.2003). See also Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

The designation is affirmed.

AFFIRMED; CONFLICT CERTIFIED.

PETERSON, PALMER and ORFINGER, JJ., concur.


text:
    M.D., Mother of J.A. and E.A., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2885.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Jodi Seitlin of the Department of Children and Families, St. Augustine, for Ap-pellee.
   PER CURIAM.

M.D. (mother) appeals the final order entered by the trial court terminating her parental rights to her twin children, J.A. and E.A., born on July 31, 2002. We affirm.

The trial court terminated the mother’s parental rights on the basis that the parent-child relationship threatens the life, safety, well-being, or health of the children, and on the basis of the mother’s egregious conduct. The mother challenges the court’s ruling, arguing first that the trial court erred in terminating her parental rights based upon a finding of “egregious conduct” because the Department of Children and Families (DCF) never alleged egregious conduct as a basis for termination. DCF properly responds by conceding error on this issue and, therefore, we strike the portions of the termination order which cite to the issue of egregious conduct.

The mother also argues that the trial court erred in terminating her parental rights on the basis that the parent-child relationship threatens the well-being of the children. Our review of the record reveals that sufficient evidence was presented during the termination hearing to support the trial court’s decision that termination was warranted in this case. As such, the court’s ruling is affirmed.

Accordingly, the trial court’s termination order is affirmed in all aspects, except that portion finding clear and convincing evidence of egregious conduct, pursuant to section 39.806(l)(f), Florida Statutes, which is stricken, in that such conduct was not alleged in the petition for termination. See R.C. v. Dep’t of Children and Families, 867 So.2d 580 (Fla. 1st DCA 2004)(holding that portion of trial court’s termination order finding clear and convincing evidence of egregious must be stricken because such conduct was not alleged in the petition for termination).

AFFIRMED, as modified.

PLEUS, PALMER and ORFINGER, JJ., concur.

      . See § 39.806(1)(c) & (f), Fla. Stat. (2001).


author: SHARP, W„ J.

text:
    Thomas DESPART, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-731.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Thomas Despart, Arcadia, pro se.
    No Appearance for Appellee.
   SHARP, W„ J.

Despart appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. Because his appeal is untimely, we dismiss without prejudice to Despart to file a petition for a belated appeal. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

DISMISSED.

PETERSON and ORFINGER, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    John ROSS, Appellant/Cross-Appellee, v. JIM ADAMS FORD, INC., Appellee/Cross-Appellant.
    No. 2D03-2265.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.

      Clement L. Hyland of Morgan, Colling and Gilbert, P.A., Orlando, for Appellant/Cross-Appellee.
    Jerome B. Blevins of Bradham, Blevins & Bayliss, P.A., St. Petersburg, for Appel-lee/Cross-Appellant.
   ALTENBERND, Chief Judge.

John Ross appeals a summary final judgment dismissing his suit against his former employer, Jim Adams Ford, Inc., in which he alleged a violation of the Florida Civil Rights Act of 1992. See § 760.10(l)(a), Fla. Stat. (1993) (prohibiting employers from discharging employees based upon handicap). We affirm because the statute of limitations set forth in section 95.11(3)(f), Florida Statutes (1993), bars this action. See Joshua v. City of Gainesville, 768 So.2d 432 (Fla.2000) (holding four-year statute of limitations in section 95.11(3)(f) applies to claims under Florida Civil Rights Act when Commission on Human Relations fails to make reasonable cause determination within 180 days). Although Mr. Ross was required to file an administrative complaint as a prerequisite to this action, see § 760.11, Fla. Stat. (1993); Sweeney v. Fla. Power & Light Co., 725 So.2d 380 (Fla. 3d DCA 1998), the four-year statute of limitations ran from the accrual of the cause of action and was not tolled by the administrative process. See Farancz v. St. Mary’s Hosp., Inc., 585 So.2d 1151 (Fla. 4th DCA 1991).

Jim Adams Ford hired Mr. Ross as its service director in October 1994. On November 16, 1994, Mr. Ross broke his leg in a work-related accident. The fracture was quite serious and took a long time to heal. Mr. Ross attempted to return to work part-time in a wheelchair, but this was not acceptable to his employer. As a result, Mr. Ross stayed away from work and collected workers’ compensation benefits.

Jim Adams Ford placed Mr. Ross on “medical leave” in March 1995, telling him not to return until he was completely healed. Mr. Ross considered himself terminated at that time. Ultimately, several years later, Mr. Ross returned to work at another dealership as a service manager.

In February 1996, Mr. Ross filed an administrative complaint with the Florida Commission on Human Relations pursuant to section 760.11, claiming that Jim Adams Ford had discriminated against him as a result of a handicap when it terminated him in March 1995. The Commission took no action during the next 180 days. As he was entitled to do, Mr. Ross withdrew this complaint and the Commission issued a notice of dismissal on December 11, 1996.

Mr. Ross did not file his lawsuit against Jim Adams Ford until July 21, 2000. His complaint contained two counts. In count II, he alleged that he had been terminated in retaliation for filing a workers’ compensation claim. See § 440.205, Fla. Stat. (1993). The trial court dismissed this count because it was filed more than four years after Mr. Ross’s termination and was barred by the statute of limitations provided for statutory claims in section 95.11(8)(f). See Scott v. Otis Elevator, 524 So.2d 642 (Fla.1988) (holding four-year period for statutory actions applies to section 440.205 claims). Mr. Ross does not challenge this ruling on appeal.

In count I, Mr. Ross alleged that Jim Adams Ford had discriminated against him because of a handicap in violation of the Florida Civil Rights Act of 1992. See §§ 760.01-.il, Fla. Stat. (1993). Jim Adams Ford attempted to obtain a summary judgment as to this claim both because it did not believe Mr. Ross’s leg fracture was a handicap and because the claim was barred by the applicable statute of limitations. The trial court denied the request for summary judgment based on the statute of limitations but concluded that Mr. Ross’s broken leg did not qualify as a handicap.

Whether Mr. Ross’s broken leg qualified as a handicap is a close question. Claims under the Florida Civil Rights Act are analyzed in the same manner as claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213. See Wimberly v. Sec. Tech. Group, Inc., 866 So.2d 146 (Fla. 4th DCA 2004). Mr. Ross argues that questions of fact remained as to whether Jim Adams Ford regarded Mr. Ross as having a disability. See 42 U.S.C. § 12102(2)(c); Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184, 193, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see also Carruthers v. BSA Adver., Inc., 357 F.3d 1213 (11th Cir.2004). Although Mr. Ross’s leg fracture eventually healed and thus would not appear to qualify as a disability, it is arguable that a question of fact remains as to whether Jim Adams Ford terminated Mr. Ross at a time when it believed the fracture was or would result in a permanent disability. Because we conclude that the statute of limitations bars this claim, we do not determine whether Mr. Ross’s broken leg constituted a disability under federal or state law.

Both parties agree that the four-year statute of limitations for statutory causes of action controls this case. See § 95.11(3)(f); Joshua, 768 So.2d 432. When the four-year period commenced or whether it was somehow tolled is the disputed issue of law. Jim Adams Ford maintains that the statute of limitations ran continuously from when Mr. Ross’s employment was terminated and therefore expired in March 1999. Mr. Ross maintains that it commenced on August 3, 1996, 180 days after he filed his administrative complaint without the Commission taking any action, and therefore did not expire until August 2000. We reject Mr. Ross’s position. We conclude that this cause of action accrued on the date Mr. Ross was terminated, and that the administrative process did not toll the running of the statute of limitations.

Section 760.11 establishes administrative and civil remedies for violations of the Florida Civil Rights Act. Although this statute states that a complaint “may” be filed with the Commission, it is clear that such a complaint must be filed either with the Commission or its federal counterpart by anyone who wishes to pursue either a lawsuit or an administrative proceeding under this act. See, e.g., Sweeney, 725 So.2d 380. The Commission does not enter a final resolution of the complaint but merely determines whether there is reasonable cause to believe that the complaint has merit. See § 760.11(3).

Section 760.11(1) requires a party to file a complaint with the Commission within 365 days of the alleged violation. Section 760.11(3) contemplates that the Commission will investigate the complaint and submit a decision within 180 days, determining whether there is reasonable cause to support the claim. If the Commission issues a determination supporting the aggrieved person, that person has one year in which to file a lawsuit. See § 760.11(5). Unfortunately, there are many complaints that are not processed within 180 days by the Commission. As to those complaints, the supreme court has held that the four-year statute of limitations in section 95.11(3)(f) applies. See Joshua, 768 So.2d 432. However, the supreme court did not expressly state when the four-year period commenced or whether it was tolled by the administrative process.

Section 95.031, Florida Statutes (1993), provides that a statute of limitations runs from the time the cause of action accrues unless otherwise provided by statute. No one argues that a special statutory exception exists in this case. “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1). Here, Mr. Ross’s cause of action accrued when he was allegedly terminated based upon a real or perceived disability in March 1995. The administrative process required by section 760.11 is a presuit procedure, not an element of the cause of action. There is no authority in chapter 95 or in the Florida Civil Rights Act to suggest that this presuit procedure permits a rule regarding the statute of limitations that is different from any other statutory claim.

Further, there is no statutory or case law authority for tolling the statute of limitations for these claims. See § 95.051(2), Fla. Stat. (1993) (stating, “No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law”). Compare § 766.306, Fla. Stat. (2003) (expressly providing that statute of limitations for filing civil action by infants suffering from birth-related neurological injuries is tolled during administrative process for such claims). Given that the 180-day time period within which the Commission must act upon a civil rights complaint leaves sufficient time for a claimant to file suit before the four-year statute of limitations expires, there is also no basis for an equitable tolling of the limitations period.

In some respects, section 760.11 is similar to the waiver of sovereign immunity in section 768.28, Florida Statutes (2003). A claim under section 768.28 can be maintained only if an aggrieved party provides written notice to the relevant state agency within three years. See § 768.28(6)(a), Fla. Stat. (2003). The party must wait up to six months for a response. See § 768.28(6)(d). Nevertheless, the four-year statute of limitations runs from the accrual of the cause of action, not from the conclusion of the condition precedent. See § 768.28(6)(b), (14). Admittedly, section 768.28 contains its own separate statute of limitations and is not controlled by section 95.11(3)(f), but the length and operation of the two statutes are identical and the same policies should apply to both absent clear legislative intent otherwise.

Accordingly, we hold that Mr. Ross’s claim for a violation of the Florida Civil Rights Act accrued on the date of his alleged wrongful termination and that the running of the four-year statute of limitation in section 95.11(3) was not tolled while Mr. Ross pursued his administrative complaint with the Commission. Accord Farancz, 585 So.2d 1151. We therefore affirm the summary final judgment dismissing his complaint against Jim Adams Ford.

Affirmed.

KELLY and WALLACE, JJ„ Concur.