text:
    David A. SIEGEL, Petitioner, v. Bettie I. SIEGEL, n/k/a Bettie Whitaker, Respondent.
    No. 5D04-37.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Victor Kline and Amanda L. Chapman of Greenspoon, Marder, Hirschfeld, Raf-kin, Ross & Berger, P.A., Orlando, for Petitioner.
    Mayanne Downs, Orlando, for Respondent.
   PER CURIAM.

In this post-dissolution proceeding, David A. Siegel (husband) petitions this court for a writ of prohibition seeking to prohibit the trial court from exercising its jurisdiction to issue a writ of execution, to release funds placed in the registry of the court without requiring respondent, Bettie I. Siegel (wife), to issue a satisfaction of judgment, and to waive a bond. Concluding that the trial court possesses jurisdiction to enter such orders, we deny the petition.

The parties resolved their dissolution of marriage action by entering into a marital settlement agreement. Said agreement was incorporated into a final judgment of dissolution. The husband subsequently sought to have the final judgment set aside pursuant to rule 1.540 of the Florida Rules of Civil Procedure. The trial court denied that motion, and the court’s ruling was affirmed on appeal. Since the wife was the prevailing party in that proceeding, she was entitled to recover reasonable attorney’s fees under the terms of the parties’ marital settlement agreement. On January 30, 2002, the wife was awarded attorney’s fees in the amount of $863,027.25 (the first order). In the order awarding said fees, the trial court reserved ruling on the issue of whether the wife was entitled to receive additional attorney’s fees for the time expended by her attorneys in litigating of the fee issue.

The husband appealed the first order but his appeal was dismissed without prejudice for lack of jurisdiction. This court determined that the order constituted a non-final, non-appealable order since additional judicial labor was necessary to determine the wife’s entitlement to recover additional fees beyond those awarded in the first order.

Subsequently, the trial court entered a second order on September 30, 2002 (the second order). That order awarded the wife her court costs, while denying her request for additional attorney’s fees. The husband appealed the second order, and included within the notice of appeal the first order as well. In that appeal, the husband addressed the merits of the awards entered in the first order as well as those entered in the second order. This court issued a per curiam affirmance in that case.

The husband deposited into the registry of the court the amount of costs awarded by the second order plus interest. However, he did not deposit any amount for the payment of the attorney’s fees awarded in the first order. Thereafter, the wife filed a motion for issuance of a writ of execution and a motion to release the funds placed into the registry of the court. Not surprisingly, she declined to accept the amount deposited into the court registry in full satisfaction of both orders. She instead claimed an entitlement to execute on the $862,027.25 award of attorney’s fees.

The husband responded by filing the instant petition for writ of prohibition, arguing that the trial court lacks jurisdiction to grant the wife’s motions. We disagree.

Once the trial court resolved the additional pending issues by entering in its second order, the husband was entitled to appeal all issues regarding attorney’s fees and court costs, which he did. This court’s affirmance in that case constitutes the law of the case on the issue of the wife’s entitlement to attorney’s fees and costs. Accordingly, the husband’s attempts to prevent the wife from executing upon the first order (which he has failed and refused to satisfy) is without merit.

PETITION DENIED.

SHARP, W., THOMPSON and PALMER, JJ., concur.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    James M. KARWOSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4642.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Rehearing Denied April 2, 2004.

      Richard G. Bartmon, Boca Raton, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final judgment finding James Karwoski guilty of computer pornography and child exploitation in violation of Florida Statute section 847.0135(3). Karwoski was sentenced to community control and placed on sex offender probation. For the reasons outlined below, we affirm the conviction and sentence.

On May 1, 2001, Officer Young, an officer who works in the juvenile division, went on-line posing as a fifteen year old male in an AOL chat room geared toward men seeking men. While in the chatroom, Young was contacted by someone with the username Crazyglu20. At trial, defense stipulated that Crazyglu20 was Karwoski. In the chatroom, Young told Karwoski he was a fifteen year old boy. Karwoski told Young he was thirty four years old, then asked to trade pictures. Karwoski asked Young if he was bisexual. In another online correspondence Karwoski told Young he liked boys better than girls, told him they could get together, and gave him his phone number.

In a subsequent conversation, Karwoski asked Young what he looked like. After Young told him he was five feet ten inches, Karwoski asked if he was muscular and if he was smooth or hairy. Karwoski then told Young that he likes to work his male genitalia at the gym, and engaged in a sexually oriented conversation. Karwoski then asked when they could get together. Young responded that he would tell his mom he was going out with a friend and that they might be able to get together that day. Young asked Karwoski what he wanted to do first when they did get together. Karwoski responded, have sex.

Another officer called the phone number Karwoski had given Young, posing as Pelle. Pelle was the name used by the officer during the online encounters. During the phone conversation Karwoski told Young to meet him at a Shell gas station and that he would be driving a white car. After the officers made contact with Kar-woski at the planned meeting location, officers moved in and arrested him.

After being arrested, Karwoski gave a statement. He explained that he was meeting someone there, but that he did not know how old the person was. Karwoski was found guilty as charged. This appeal timely follows.

On appeal, Karwoski contends that section 847.0135, Florida Statutes, is unconstitutionally overbroad, vague, and an impermissible content-based regulation in violation of his First and Fourteenth Amendment rights. The Florida Supreme Court has commented on the “strong presumption in favor of the constitutionality of statutes.” State v. Kinner, 398 So.2d 1360 (Fla.1981). Section 847.0135 reads, in part, as follows:

Certain uses of computer services prohibited. — Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 79k, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree ....

§ 847.0135(3), Fla. Stat. (2001) (emphasis added).

In defending the constitutionality of section 775.085, Florida Statutes, Florida’s Hate Crimes Statute, the Florida Supreme Court has held that “[w]hen protected speech translates into criminal conduct, even the Free Speech Clause balks. While the First Amendment confers on each citizen a powerful right to express oneself, it gives the [citizen] no boon to jeopardize the health, safety, and rights of others.” State v. Stalder, 630 So.2d 1072 (Fla.1994) (quoting Operation Rescue v. Women’s Health Center, Inc., 626 So.2d 664, 675 (Fla.1993)).

In this case, it is the speech itself that translates into the criminal conduct. It is speech that amounts to seduction, solicitation and enticement of a child to commit a crime that is prohibited. As a result, we find Karwoski’s overbreadth argument unpersuasive as well as his position that the statute is an impermissible content based regulation.

Karwoski also contends the statute is overbroad for failing to define the term child. Karwoski points to Mazzella v. Boinis, 617 So.2d 1156 (Fla. 4th DCA 1993). In Mazzella, this court discussed the Florida garnishment statute which does not define the term child. The Mazzella opinion explained:

In construing this statute, our first obligation is to give the words used by the legislature their plain meaning. For instance, without any words of limitation, a “child” commonly refers to any son or daughter, regardless of his or her age. See The American Heritage Dictionary 265 (2d ed.1982) (defining “child” to mean, inter alia, “A son or daughter; an offspring.”). Since it is also our obligation to construe section 222.11 liberally in favor of the debtor, it is reasonable to conclude the existence of a filial relationship is all that is necessary to qualify as a “child” under the statute. As Maz-zella points out, had the legislature intended to narrow the application of the word “child” to a certain age, it could have easily done so by providing words of restriction such as “minor” or “under the age of 18.” Absent such a qualification, a plain reading of the statute compels the conclusion that “child” includes both minor and adult children. After all, few of us, if asked the number of children we had, would limit our response to those children under the age of majority.

Id. at 1157.

Section 847.0135(3), Florida Statutes, is distinguishable from the statute at issue in Mazzella. Most importantly, the statute in Mazzella did not cross-reference any statutory sections that may have given the undefined term any meaning other than its plain meaning. However, section 847.0135 specifically points to chapter 794, chapter 800, and chapter 827 of the Florida Statutes. In fact, it is the chapters that are referenced that clarify what behavior the statute prohibits.

In the chapters referenced by this statute, the victim is defined by age in many of the individual criminal provisions. For example, section 794.011(2)(a) refers to sexual battery by a person over eighteen years of age on a person less than twelve and section 800.04(4) defines lewd or lascivious battery as twelve or over, but under sixteen. The statute also provides that lewd or lascivious molestation is a crime committed against someone under sixteen years of age. Further, by referencing chapter 827, this statute incorporates “any person under 18 years” as the definition of child. § 827.01(2), Fla. Stat. (1996). As a result, the analysis that this court engaged in in Mazzella is inapplicable to this case and we are unpersuaded by Karwoski’s contention.

The last argument raised by Karwoski on appeal is that the state failed to prove the elements of the charges beyond a reasonable doubt. “On review of a lower court’s ruling on a motion for judgment of acquittal, the appellate court determines whether the state introduced competent substantial evidence to support the guilty verdict. The defendant, as the moving party, admits all the facts introduced into evidence and all reasonable inferences that may be drawn therefrom in favor of the state.” Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002) (citing R.T.L. v. State, 764 So.2d 871, 872 (Fla. 4th DCA 2000)).

Initially Karwoski alleges that his conviction must fail as a matter of law since the charges were not, and could not, be established. Karwoski maintains that since the only alleged victim was an undercover police officer, the State failed to prove that anyone was seduced, solicited, lured or enticed as the statute requires. This argument overlooks the fact that the statute prohibits any attempt to seduce, solicit, lure, or entice. Therefore, the fact that the only potential victim was an undercover officer does not preclude a conviction under this statute.

The trial court concluded that “[tjhere is [sic] totally been an absence of anything from which one could reasonably conclude that Mr. Karwoski had any reason to think that he was dealing with anything other than a 15 year old boy.” Due to the record evidence indicating that the officer clearly portrayed himself as a fifteen year old boy, and the necessity to draw all inferences in favor of the State, we agree with the conclusion of the trial court and find Karwoski’s arguments challenging the sufficiency of the evidence to be without merit. We therefore affirm the order of the trial court.

AFFIRMED.

KLEIN and HAZOURI, JJ., concur.


author: VAN NORTWICK, J.

text:
    STATE, DEPARTMENT OF TRANSPORTATION, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS and Clinton Curtis, Appellees.
    No. 1D02-3463.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.

      Pamela S. Leslie, General Counsel, and Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for Appellant.
    Cecil E. Howard, General Counsel, and Elizabeth A. Miller, Florida Commission on Human Relations, Tallahassee, for Ap-pellees.
   VAN NORTWICK, J.

The Florida Department of Transportation (DOT) seeks reversal of a final order which temporarily reinstates Clinton Curtis “to his former contract provision with the Florida Department of Transportation,” on the authority of the Florida Whistle-blower’s Act, sections 112.3187-112.31895, Florida Statutes (2002). This order was entered following a complaint by Curtis to the Florida Commission on Human Relations (FCHR) in which he alleged that he had been separated from employment as a result of retaliatory action by DOT. Curtis alleged that DOT took such retaliatory action because he had reported that DOT was overcharged by an independent contractor for whom Curtis was formerly employed. Without reaching the question of whether Curtis’ employment status entitled him to the remedies available under the Whistle-blower’s Act, we hold the matter should not have proceeded to the circuit court because Curtis’ complaint to FCHR was untimely on its face.

Section 112.31895(l)(a) provides that a complaint alleging retaliatory action by an employer must be filed no later than 60 days after the retaliatory act. Here, on the face of Curtis’ complaint, the alleged retaliatory action occurred on April 1, 2002, and the complaint was filed on July 10, 2002, more than 100 days after the alleged act. Further, the date of Curtis’ complaint cannot be related-back to the date a similar complaint was filed by a DOT employee, Mavis Georgalis, because the administrative rule providing for this relation back doctrine, rule 60Y-5.001(4), Florida Administrative Code, is adopted pursuant to the Florida Civil Rights Act, section 760.06(12), Florida Statutes (2002), and is applicable to proceedings under that act. We agree with the argument of the DOT that no provision of the Whistle-blower’s Act indicates that the legislature has given the FCHR rule-making authority under the Whistle-blower’s Act. See §§ 112.3187-112.31895, Fla. Stat. Thus, because Curtis did not timely file his complaint, FCHR lacked jurisdiction over Curtis’ complaint and lacked the authority to file the petition seeking reinstatement of Curtis. See St. Petersburg Motor Club v. Cook, 567 So.2d 488 (Fla. 2d DCA 1990).

Accordingly, the order of the circuit court granting temporary reinstatement of Curtis is REVERSED.

KAHN AND BENTON, JJ., concur.


author: KAHN, J. ERVIN, J.,

text:
    DUVAL COUNTY SCHOOL BOARD and Johns Eastern Co., Inc., Appellants/Cross-Appellees, v. David GOLLY, Appellee/Cross-Appellant.
    No. 1D02-3605.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Richard A. Mullaney, General Counsel, and Douglass E. Myers, Jr., Assistant General Counsel, and Scott D. Makar, Division Chief, Appellate Division, of the Office of General Counsel, Jacksonville, for Appellants/Cross-Appellees.
    Kristy J. Gavin and Kevin Blazs of Go-belman, Love, Gavin, Blazs & Mathis, Jacksonville, for Appellee/Cross-Appel-lant.
   KAHN, J.

This is a workers’ compensation action originally brought by Appellee David Golly, an employee of Appellant Duval County School Board. Mr. Golly suffered a severe closed head injury when he fell on a concrete walkway at Terry Parker High School in Jacksonville. The fall resulted from a medical condition not related to the workplace. In an extremely thorough and detailed compensation order, the Judge of Compensation Claims (JCC) found that, despite the idiopathic nature of the fall, because Mr. Golly suffered injuries from impact with a concrete walkway, the injuries must be compensable. The JCC reached his ruling by applying Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944), which held that a concrete floor was a special hazard of employment. We reverse. We affirm on the issue raised on cross-appeal because the JCC’s findings are supported by competent substantial evidence.

On March 3, 2000, Mr. Golly was employed as a teacher at Terry Parker High School. While standing on a level concrete walkway during a planning period, Mr. Golly fell to the ground and sustained a severe closed head injury and broken left thigh. The medical testimony in the case concluded that Mr. Golly’s fall was due to a seizure and syncopal episode. The JCC found, and competent substantial evidence supports, that the seizure and syncopal episode resulted from alcohol withdrawal syndrome, unrelated to Mr. Golly’s employment as a high school teacher. Quite obviously, Mr. Golly’s serious injuries did not result simply because he lost consciousness. Instead, these injuries resulted from his impact with the concrete walkway. The question in this case is, thus, whether a workplace impact with a level concrete surface, following a fall precipitated by an idiopathic or pre-existing condition, is compensable as a matter of law. This question has to do with what has been called the increased or special hazard doctrine in Florida law. Because the JCC concluded, as a matter of law, that the concrete floor should be considered a special hazard of employment, we review this matter de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002).

In Cline, the 67-year-old claimant suffered a fainting spell, apparently related to a heart problem, and fell, striking his head against a concrete floor causing a skull fracture and death. 16 So.2d at 343. The supreme court characterized the issue as whether “the injury arises out of and in the course of the employment.” Id. The court then described the public policy behind the Worker’s Compensation Act in 1944:

The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expenses.

Id. The court built upon this pronouncement by observing, “In this critical war period, industry requires the services of the aged and infirm. The Compensation Law is based primarily on social responsibility of one to another.” Id. The court sustained recovery. Id. Importantly, the court characterized the appeal as “a border line case.” Id. Underlying the ruling is the court’s conclusion, apparently arrived at based upon its own knowledge, rather than evidence in the case, that although Mr. Cline might have fallen and sustained a fatal injury in his own house, such would be less likely had he remained “in the quiet of his own home, for without the physical exertion encountered in his work by a man of his age and physical condition, the chances of his falling were less likely.” Id.

In Foxworth v. Florida Industrial Commission, claimant, an employee of the Industrial Commission, blacked out, fell and struck a hotel lobby floor. 86 So.2d 147 (Fla.1955). The court examined the doctrine of increased hazard as applied to an idiopathic fall onto a level floor, and noted that area is “highly controversial.” Id. at 151. The court noted that, following Cline, Florida has “favored the more liberal view allowing recovery.” Id. Nevertheless, the court characterized the Cline facts as “the outer limits of the doctrine.” Id. “To extend the rule further would be to eradicate completely the statutory requirement that the injury must be ,one arising out of the employment. The employment in some manner must contribute an increased hazard peculiar to the employment.” Id. The court upheld the denial of benefits. Id. at 152.

In Lovett v. Gore Newspapers, the supreme court upheld recovery for a worker who, while working an overtime shift, felt ill, and then fell to a “tiled concrete floor” aggravating a pre-existing back condition. 419 So.2d 306, 308 (Fla.1982). The supreme court allowed a recovery, applying the special hazard doctrine. Id. The court also noted, in a comment that we do not find extraneous, “petitioner was required to work two hours beyond her normal eight-hour shift despite her protestations that she was not feeling well.” Id. This factor, combined with the fall to a concrete floor, led the supreme court to conclude, “[I]t cannot fairly be said that petitioner would just as likely have sustained an injury such as the one that occurred if she had been in her own home.” Id.

In addition to relying upon the foregoing supreme court cases, appellee also relies upon our decision in Haynes v. World Color Press, 794 So.2d 674 (Fla. 1st DCA 2001). Claimant Haynes had a syncopal episode resulting in a fall, apparently, to a concrete floor, resulting also in the entanglement of her leg in a machine. Id. at 675. On appeal, Haynes argued that the JCC’s finding that the syncopal episode, rather than a slip on water, caused the fall was not supported by competent substantial evidence. Id. This court rejected that contention. Id. Haynes also argued that even if she had a syncopal episode, the JCC should have allowed compensation based upon the special hazard doctrine of Cline and Foxivorth. Id. This court found the second issue to be unpreserved and therefore did not reach it. Id. Here, ap-pellee Golly grasps upon the language used by the Haynes court to characterize the unpreserved argument. This court described the unpreserved allegation as an “increased hazard” posed by “the concrete floor upon which she fell, or the machine in which her leg was entangled.” Id.

This court, of course, continues to recognize the special or increased hazard doctrine. Discussing Foxworth, this court has noted, “When the fall is onto a level surface, compensability is justified when the surface itself is an unusual hazard, such as a hard concrete floor.” Hernando County Sch. Bd. v. Dokoupil, 667 So.2d 275, 276 (Fla. 1st DCA 1995). Although we observed in Dokoupil that a concrete floor had been previously held an unusual hazard, we directed that the JCC must now apply the major contributing cause test required by section 440.02(32), Florida Statutes (Supp.1994). Id. at 277. That statute provides:

“Arising out of’ pertains to occupational causation. An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.

Our cases confirm that the present test is different from that used before the major statutory revision several years ago. “As this court has recognized, the 1994 amendments to the workers’ compensation law changed the prior case law definition of ‘arising out of as used in chapter 440.” Orange County MIS Dep’t v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998). We have characterized the pre-1994 law as follows:

In the absence of an idiopathic or preexisting condition, a claimant’s employment had to constitute only a contributing, competent, precipitating, or accelerating cause of the accident or injury. If the claimant had an idiopathic or preexisting condition, then for the injury to be compensable, the employment had to expose the claimant “to conditions that would substantially contribute to the risk of injury and to which the claimant would not normally be exposed during his nonemployment life.”

Vigliotti v. K-mart, 680 So.2d 466, 468 (Fla. 1st DCA 1996). Now, under the terms of section 440.02(32), “the claimant must establish that the employment occurrence is the most preponderant canse of the injury.” Hak, 710 So.2d at 999. The statutory changes, as we have construed them, very strongly suggest that a claimant must now make a specialized, fact-based showing, in order to succeed under the increased hazard doctrine.

Applying the major contributing cause statute to the present case, we cannot say that a fall to a level concrete floor is automatically compensable, irrespective of the cause of the fall. The statute now directs the JCC to make a determination of whether work performed in the course and scope of employment is the major contributing cause of the injury. The supreme court in 1944 had no major contributing cause statute with which to contend. Moreover, the supreme court, in an admittedly “border line case,” applied a paternalistic public policy that is no longer justified under the Florida Workers’ Compensation Act. Cline, 16 So.2d at 343. As is now well known, the Legislature, upon amending the Workers’ Compensation Act in 1993, set out a legislative intent that differed from that which had prevailed earlier. See Ch. 93-415, Laws of Fla. Among other things, the Legislature stated:

It is the specific intent of the Legislature that workers’ compensation cases shall be decided on their merits.... In addition, it is the intent of the Legislature that the facts in a workers’ compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer.... [T]he laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.

§ 440.015, Fla Stat. (1999).

The JCC in the present ease did not make a particularized finding of special or increased hazard. Instead, the JCC felt constrained by Cline to find that the concrete surface was, as a matter of law, an increased hazard. This conclusion is clearly set out in paragraph 8 of the compensation order. The major contributing cause statute, as applied by this court in Dok-oupil, requires a particularized finding of “whether the claimant’s conditions of employment created an increased risk of the injuries he sustained.” 667 So.2d at 277.

Accordingly, we REVERSE the order on appeal, and REMAND for further proceedings consistent with this opinion. We AFFIRM the issue raised on cross-appeal.

BOOTH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

It is unclear from the majority’s opinion whether it has concluded that the legislatures enactment of the major-contributing-cause (MCC) statutes has repealed the increased-hazard doctrine, recognized in this jurisdiction for 60 years. If the doctrine remains viable, I see no reason to remand for the judge of compensation claims (JCC) to determine whether the conditions of employment (here, a concrete walkway) created an increased risk to claimant. Remand for such purpose in Hernando County School Board v. Dokoupil, 667 So.2d 275 (Fla. 1st DCA 1995), was altogether appropriate in that, unlike the present case, there was no evidence of an increased hazard. The court specifically recognized that “[w]hen the fall is onto a level surface, compensability is justified when the surface itself is an unusual hazard, such as a hard concrete floor.” Id. at 276.

I confess my own uncertainty over the doctrine’s continued applicability; nevertheless, I see no need to reverse and remand for further proceedings, because, even assuming that the doctrine has been legislatively superseded, the order is, in my judgment, supported by competent, substantial evidence, and for that reason alone should be affirmed. While finding that the fall onto a concrete walkway was the “result” of a seizure and syncopal episode, the JCC also found that those conditions did not directly cause claimant’s injuries, but that his impact with the walkway was the MCC of the injuries. The judge next decided, after considering applicable case law, including Protectu Aiming Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944), that a concrete surface constitutes a special hazard of employment. I am therefore of the opinion that further remand for the purpose directed by the majority is unnecessary, because it appears that the JCC has already made such finding.

In determining that the surface with which claimant’s body collided was a special hazard of employment, the JCC was obviously attempting to comply with the legal test of causation, which has traditionally been applied to idiopathic injuries in this jurisdiction. The increased-hazard doctrine is one part of the legal/medical causation test Professor Larson has advocated for determining the compensability of injuries occurring during the course of employment in which a personal contribution is involved. In adopting this test in Market Food Distributors, Inc. v. Levenson, 383 So.2d 726, 727 (Fla. 1st DCA 1980), we made the following pertinent observations:

Professor Larson’s analysis of the problem relating to idiopathic cases is helpful. He suggests the problem can best be resolved by considering the legal cause of the injury, and then, its medical cause. IB A. Larson, Workmen’s Compensation Law, 38.83 at 7-233 (1980). The inquiry focuses first upon what kind of exertion satisfies the legal test, ie., whether the injury is one caused by the employment, and, if the exertion is legally sufficient to support compensation, next whether medically it caused the , injury. Id. at 7-235. As to the legal test, if the employee brings to the job some personal element of risk unrelated to his employment (for example, a preexisting condition), before the injury can be found compensable, the employment must involve an exertion greater than that normally performed by the employee during his non-employment life. But, if the employee has no prior weakness or disease, any exertion connected with the employment and causally connected with the injury as a matter of medical fact is adequate to satisfy the legal test of causation. In both cases it is still necessary for a claimant to establish that medically the particular exertion causally contributed to the injury. Id. at 7-237.

(Emphasis added.)

As applied to idiopathic-fall cases, the legal test is satisfied by proof showing that the employment contributes to the risk or aggravates the injury. See Foxworth v. Florida Indus. Comm’n, 86 So.2d 147, 151 (Fla.1955). This test, of course, was devised at a time when, as we observed in Orange County MIS Department v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998), a claimant was required to prove only that the employment was a “contributing, competent, precipitating, or accelerating cause of the accident or injury.” It is entirely possible that the separate legal test of causation is no longer applicable by reason of the legislative amendments. Nevertheless, it appears that the MCC statute in effect at the time of claimant’s accident, pertaining to injuries suffered at a workplace in which a personal element is involved, still requires proof that the employment in some way contributes to the risk or aggravates an injury. We have interpreted the statute to mean that the employment contribution must be greater than any other single cause. See Closet Maid v. Sykes, 763 So.2d 377, 381 (Fla. 1st DCA2000).

Thus, if the MCC amendments no longer demand the claimant to establish the legal cause of his injuries that were attributable in part to a preexisting condition, the claimant must still, in my judgment, supply sufficient medical proof that the workplace’s contribution to the risk was greater than any other single cause of the injuries suffered. Professor Larson explains the difference in proof between the two tests as follows:

Under the legal test, the law must define what kind of exertion satisfies the test of “arising out of the employment.”
Under the medical test, the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused this collapse.

2 A. Larson, Larsons Worker’s Compensation Law 46.03[1] (2003) [hereinafter Larson ].

Medical causation was proved in the case below not by the strength of a legal presumption, but through the testimony of witnesses relating that the concrete walkway on which claimant fell resulted in devastating injuries, and that it was a hazard he would not normally encounter in his non-employment life, where a fall would far more likely occur on a carpeted or linoleum-covered floor; hence, the injuries he suffered at the workplace would reasonably be expected to be greater than, say, had he fallen at home. Accordingly, it is my opinion that when a prior condition is involved, a claimant can establish that the employment was the MCC of injury by showing, through a combination of lay and medical proof, that the employment was the direct cause of the injury, and that it aggravated the claimant’s injuries or increased the risk of harm.

To explain my position further, I believe it helpful to examine the case law of the state of Oregon interpreting its MCC statutes. In Closet Maid, 763 So.2d at 389-91 (Benton, J., concurring and dissenting), it was pointed out that the Florida Legislature had modeled the MCC amendments after those in Oregon. In arguing that the majority’s construction of the Florida provisions should comply with the interpretations given the parallel statutes by Oregon courts, Judge Benton reiterated the time-honored rule recognizing that when a Florida statute is patterned after that of another jurisdiction, Florida courts will apply a similar interpretation to the Florida statute. Id. at 390, n. 14.

In obedience to the above rule, I have undertaken an examination of pertinent Oregon cases, and it appears from my review that in order for a work-related activity to be considered the MCC of an injury or condition to which a personal element may have contributed, the evidence must reveal that such activity was the immediate, direct cause of the injury, and not a cause that may have simply contributed to the injury. In Portland Adventist Medical Center v. Buckallew, 124 Or.App. 141, 861 P.2d 380 (1993), the issue before the court was whether the employee’s diabetes-related neuropathy was simply a predisposition to, or was a cause of, his occupational disease, Charcots joint, an arthritic condition in his ankles characterized by the destruction of joint surfaces. A referee found that the claimant’s work activity (his on-the-job walking) was the MCC of his arthritic condition, and that his neuropathy created a predisposition to the condition, but did not cause it. Id. at 381. The Oregon Workers’ Compensation Board affirmed, and the employer appealed, contending before the Court of Appeals that the evidence showed that the claimant’s neuropathy was, in fact, the cause of the disease.

In rejecting the argument, the court emphasized the medical testimony, which opined that while a combination of the claimant’s personal and work-related trauma brought about the disabling condition, the claimant’s idiopathic condition, neuro-pathy, only caused a loss of feeling and thereby made him more susceptible to injury. In other words, “[t]he loss of feeling does not itself create trauma; it is trauma [the work activity] that causes the Char-cots joint.” Id. at 382. The court explained the rationale why the employment should be deemed the MCC of the injury, rather than the idiopathic condition, which was only remotely connected to the injury:

“An employer is responsible for a disease that a claimant who has a particular susceptibility or predisposition develops due in major part to conditions at work. The predisposition to disease is not a bar to compensability, if work causes the disease. In that sense, the employer takes that employee as it finds her. If, in contrast, a claimant develops a disease in major part because of factors personal to her that are independent of any activities or exposures either off or on the job, the claim is not com-pensable, even if work contributed to some degree to causing the disease.”

Id. (quoting Liberty N.W. Ins. Corp. v. Spurgeon, 109 Or.App. 566, 820 P.2d 851 (1991)) (emphasis added).

The distinction between an immediate, direct cause that results in injury and a contributing cause is further illustrated by Georgia Pacific Corp. v. Warren, 103 Or. App. 275, 796 P.2d 1246 (1990), in which compensation was sought for the claimants carpal tunnel syndrome. In appealing the order of the Workers’ Compensation Board awarding compensation, the employer relied upon an opinion of an examining physician stating that the disease was the slowing of the median nerves in the claimant’s wrists, which was entirely idiopathic and not affected by the employment. The court approved the Board’s order, explaining that the-, treatment sought was not for the slowing of the nerves, but for the carpal tunnel syndrome, which first caused the condition to be symptomatic and disabling, and that the treatment did nothing to correct the underlying slowing of the median nerve. Id. at 1247. It further noted that the employer’s physician admitted that the carpal tunnel syndrome was brought on by the claimant’s work activity. Finding the Board’s order supported by competent, substantial evidence, the court affirmed it.

In the case at bar, while claimant’s idiopathic condition may have been a contributing factor in causing him to fall, just as the claimant’s preexisting conditions in Buckalleiv and Warren contributed to their compensable injuries, such personal element was not the MCC of his injuries, which the JCC explicitly found, based on the evidence, was the direct result of his collision with a hazard that clearly aggravated the extent of his injuries, a concrete walkway.

The analysis of the Oregon Court of Appeals, in focusing on the immediate cause of the injury as a means of ascertaining the MCC of an employee’s injuries, is consistent with that of the JCC below, as well as of the Florida Supreme Court in Cline, which primarily considered the claimant’s fall onto a hard, concrete floor to be the cause of his injury, a skull fracture, resulting in his death, rather than what may have been the cause of the fall. Cline instructs that in circumstances in which the employment aggravates the risk or contributes to the injury, the emphasis should be placed on the immediate cause of the injury, rather than the cause of the accident; an approach I consider to be more consistent with the no-fault concept of workers’ compensation, instead of the fault-based system of negligence.

The hardness of the surface on which an employee may fall has long been considered an added hazard of employment. See Larson, 9.01[4][e] (quoting from the Scottish case of Wright & Greig, Ltd. v. M’Kendry, 56 S.L.R. 39, 11 B.W.C.C. 402 (1918), wherein the court observed that the employee was required to work at a place “which turned out to be a place of special danger, because but for the hard concrete floor the fatality would not or might not have occurred[.]”).

In the case at bar, competent, substantial evidence clearly supports the judge’s finding, based on the totality of the evidence, that claimant’s injuries were a direct result of his impact with a concrete walkway, and that this impact was the MCC of his injuries. In reviewing questions pertaining to aggravations of prior weaknesses, the responsibility of an appellate court is as follows:

Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the commission based on any medical testimony ... will not be disturbed on appeal.

Larson, 9.02[5] (emphasis added) (quoted with approval in Haas v. Seekell, 538 So.2d 1333, 1335-36 (Fla. 1st DCA 1989)). More recently, in Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003) {en banc), we ruled that the findings of a JCC in resolving conflicting medical opinions will be affirmed if they are supported by competent, substantial evidence, and it appears the JCC did not overlook or ignore contrary opinions in the record. As I have stated, the JCC did all that any appellate court could reasonably expect him to do. Because I am of the firm belief that the order is supported by competent, substantial evidence, and the findings clearly display the reasons for his determination, I would affirm.

      . Section 440.09(l)(b), Florida Statutes (2000), provides:
      If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.

      . The statute has since been amended to require the employer to pay compensation or benefits "only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined[.]" 440.09(l)(b), Fla. Stat. (2003).

      . A closed head injury and a left femur fracture led the JCC to direct the employer/carrier to provide claimant with, among other things, permanent total disability and assisted-living or attendant-care benefits. Neither of these awards has been challenged in this appeal.

      . Claimant testified that the floor of his small apartment was 80 percent carpeted and 20 percent linoleum.

      . Four of five expert medical witnesses opined that the MCC of claimant's injuries was the fall and impact of his body on the concrete walkway. The fifth, the employer’s expert, neurosurgeon John S. Boggs, while testifying that the MCC of claimant’s injuries was the seizure he suffered, admitted that the trauma claimant experienced resulting from the collision of his head on the walkway was the cause of his head injury, and not the seizure itself.


author: PER CURIAM.

text:
    ABLE BODY TEMPORARY SERVICES and United Self Insured Services, Appellants, v. Kevin P. LINDLEY, Appellee.
    No. 1D03-1634.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    David A. Lamont, Clearwater, for Appellants.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland; and Susan W. Fox and Brendan M. Lee of Macfar-lane, Ferguson & McMullen, Tampa, for Appellee.
   PER CURIAM.

This is an appeal of a worker’s compensation order imposing penalties and interest against a carrier in receivership and calculating Claimant’s AWW based on a contract-for-hire basis. The JCC was made aware that the carrier was in receivership at the time of the hearing and that United Self Insured Services was handling Claimant’s claims. United Self Insured Services is a contract third-party administrator for the Florida Workers’ Compensation Insurance Guaranty Association, Inc. Therefore, section 631.913(2), Florida Statutes (1999), precludes the imposition of penalties and interest against United Self Insured Services. Accordingly, we reverse the JCC’s award of penalties and interest to Claimant.

The JCC also abused its discretion in using a contract-for-hire basis in calculating Claimant’s AWW. Jackson v. Hochadel Roofing Co., 657 So.2d 1266, 1267 (Fla. 1st DCA 1995). Section 440.14(1), Florida Statutes (1999), outlines the methods for calculating a claimant’s average weekly wage. In this case, Claimant did not work “substantially the whole of 13 weeks immediately preceding the injury” but was not a seasonal worker. The E/C also was unable to provide any evidence of a “similar employee.” Therefore, section 440.14(l)(d) requires that “the full-time weekly wages of the injured employee shall be used” to calculate the AWW.

For purposes of section 440.14(l)(d), case law clearly holds that a “full-time” work week need not be a 40-hour week. See generally Mauranssi v. Centerline Utils. Contract Co., 685 So.2d 66, 68 (Fla. 1st DCA 1996). Claimant’s work week should be determined prospectively by using either the contract of employment or the actual earnings on the job where Claimant was working at the time of the injury. Id.; Orange-Co of Fla. v. Waldrop, 454 So.2d 724 (Fla. 1st DCA 1984).

In the present case, competent, substantial evidence does not support the JCC’s conclusion that Claimant’s AWW should be based on a contract for hire of $6.00 per hour for a 40-hour week. The record contains no evidence of a contract for any length of time or a contract requiring 40 hours per week. The employer’s representative and Claimant both testified that the number of hours worked during a week depended on the job assignment. Claimant did not have any expectation of work beyond the job assigned; employment at that rate lasted for either a day or as long as the job assignment required. Claimant had no guarantee of a minimum work week. Therefore, the JCC should have used Claimant’s actual wages as set out in the wage statement presented by the E/C. Therefore, we reverse and remand for a determination of Claimant’s AWW consistent with this opinion.

REVERSED and REMANDED for further proceedings.

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


text:
    Donald REDPATH, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-333.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2004.
    Donald Redpath, Wewahitchka, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 591 So.2d 911 (Fla.1991).

SAWAYA, C.J., ORFINGER and TORPY, JJ., concur.


text:
    Orlando MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-408.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2004.
    Orlando Martinez, Sanderson, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Peterson v. State, 752 So.2d 114 (Fla. 5th DCA 2000).

SHARP, W., PLEUS and MONACO, JJ., concur.


author: STEVENSON, J.

text:
    Gary L. VELDE, Jeffrey L. Velde, Jennifer Haze Velde, Kimberly Lynn Velde Monroy and S. Thomas Hamilton, Jr., as Personal Representative of the Estate of W. Lynn Velde, deceased, Appellants, v. Marilyn W. VELDE and Kimberly K. Wheeler, Appellees.
    No. 4D02-436, 4D02-496.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Rehearing Denied March 31, 2004.

      Richard V. Neill, Jr., of Neill Griffin Fowler Tierney Neill & Marquis, Fort Pierce, for appellants Gary L. Velde, Jeffrey L. Velde, Jennifer Haze Velde and Kimberly Lynn Velde Monroy.
    Ralph L. Evans and John M. Stewart of Stewart & Evans, P.A., Vero Beach, and Jerald David August of August & Kulunas, P.A., West Palm Beach, for appellant S. Thomas Hamilton, Jr., as Personal Representative of the Estate of W. Lynn Velde, deceased.
    John W. Little, III, and Barbara Bolton Litten of Steel Hector & Davis LLP, West Palm Beach, and David M. Carter and Susan L. Chenault of Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Haff-ner, P.A., Vero Beach, for appellee Marilyn W. Velde.
   STEVENSON, J.

The consolidated appeals in this estate case concern whether the surviving spouse’s election to take elective share was timely even though filed after the normal four-month election period mandated by section 732.212, Florida Statutes (1997). Because the wife commenced a “proceeding” to determine the complete extent of the estate subject to the elective share before the time for election had expired, we affirm the trial court’s finding that the election was timely.

Warren Lynn Velde (decedent) died on October 9, 2000, and was survived by his spouse, Marilyn W. Velde (surviving spouse), four natural children, Jeffrey L. Velde, Gary L. Velde, Kimberly Lynn Velde Monroy and Jennifer Haze Velde (the Velde children), and the surviving spouse’s daughter, Kimberly K. Wheeler, whom the decedent adopted.

On October 31, 2000, the trial court admitted the will to probate, appointed the personal representative, S. Thomas Hamilton, Jr., and issued letters of administration. On November 4, 2000, the personal representative published the first notice of administration. The estate inventory was required by statute to be filed by the personal representative by January 2, 2001. The personal representative sought an extension beyond the statutory period to file an inventory due to the size of the estate and location of the assets. The court extended the time to file the inventory until April 1, 2001.

The surviving spouse was required by section 732.212 to file her election to take elective share by March 4, 2001. In light of the court’s order extending the time to file the inventory, the spouse sought an extension to take elective share, stating that her election was dependent upon the valuation of the estate as set forth in the inventory. Counsel for the personal representative advised the court that the estate did not object to the requested extension. On February 21, 2001, the court entered an order extending the time to make election until May 1, 2001. The Velde children allege that they were not provided notice of the surviving spouse’s petition seeking extension and the court order extending the time to make election. The record does not refute this allegation.

A copy of the inventory was provided to the surviving spouse on April 3, 2001. However, on April 20, 2001, she filed a second petition to extend the time to make an election, stating she had questions about the inventory’s “completeness” and had requested copies of the appraisals and other financial information relative to the estate’s outstanding liens and mortgages, which could alter the elective share value. The personal representative orally advised the court that he did not object to the extension and the court gave the surviving spouse until June 8, 2001, to take elective share. Copies of the petition and order were not served on the Velde children.

A package containing the estate’s asset valuation reports was provided to the spouse on May 15, 2001. On June 1, 2001, the spouse filed a third petition to extend the time to make election, stating that at least two of the items on the valuation summary sheet were estimates only, that a thorough review of the documents could not be accomplished by June 8, 2001, and attorneys for the estate and surviving spouse believed they could reach an agreement regarding elective share and/or distribution of certain estate assets. The attorney for the personal representative stipulated to the extension and the court extended the time to make election until June 25, 2001. The Velde children were once again not served with copies of the petition and order.

Each of the appellants subsequently filed petitions for declaratory relief, arguing that the surviving spouse did not make an election within four months of the first publication of notice of administration, or March 4, 2001, and her petitions for extension to take elective share could not toll the four-month statutory period because they were not “proceedings” within the meaning of section 732.212. The trial court disagreed, finding that the petitions seeking to extend the time to take elective share were “proceedings” as contemplated by section 732.212; that section 732.212 was not a non-claim statute and, as such, the court could exercise its discretion to extend the period of time; that the personal representative had the authority to act on behalf of all the beneficiaries in consenting to the extensions, thus, the Velde children were not entitled to notice; and that the personal representative was es-topped from challenging the validity of the orders extending time.

The governing provision, section 732.212, Florida Statutes (1997), provides:

The election shall be filed within 4 months from the date of the first publication of notice of administration, but, if a proceeding occurs involving the construction, admission to probate, or validity of the will or on any other matter affecting the estate whereby the complete extent of the estate subject to the elective share may be in doubt, the surviving spouse shall have 40 days from the date of termination of all the proceedings in which to elect.

The election in this case was filed on June 14, 2001, more than four months after the first publication of notice of administration. Thus, it is timely only if the period was extended by a “proceeding ... on any other matter affecting the estate whereby the complete extent of the estate subject to the elective share may be in doubt.” § 732.212. The surviving spouse takes the position that the term “proceeding” contemplates a broader, less adversarial application to the court than litigation requires and, under that theory, either the personal representative’s request for extension to file the inventory or her petitions for extension to make election are “proceedings,” tolling the March 4, 2001 deadline to take elective share.

Section 732.212 does not define the term “proceeding,” nor does it specify “when a proceeding occurs.” In defining “proceeding,” the tenets of statutory construction require that we give statutory language its plain and ordinary meaning, unless the word is defined in the statute or by the clear intent of the legislature. See Green v. State, 604 So.2d 471, 473 (Fla.1992). “When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). The word “proceeding” can be used to describe both the entire course of action at law or suit in equity; or any of the possible steps in an action. See BLACK’S LAW DICTIONARY 1204 (6th ed.1995).

Courts in general have given a broad interpretation to the term “proceeding.” See In re Wolverine Radio Co., 980 F.2d 1132, 1141 n. 14 (6th Cir.1991)(“‘[Anything that occurs within a case is a proceeding.’ ’’Xquoting the congressional history of the 1978 legislature); In re Wood, 216 B.R. 1010, 1013 (Bankr.M.D.Fla. 1998)(“ ‘[T]he term ‘proceeding’ is used to refer to the steps within the ‘case’ and to any sub-action within the case that may raise a disputed or litigated matter.’ ’’)(quoting In re Wolverine, 930 F.2d at 1141 n. 14); Jackson v. State, 416 So.2d 853, 854 (Fla. 1st DCA 1982)(finding that the term “proceeding” under section 934.09(8) included all adversary type hearings, including sentencing); Cooper v. Carroll, 239 So.2d 511, 512-13 (Fla. 3d DCA 1970)(finding that the filing of a notice of dismissal by plaintiff constituted a “proceeding” within the meaning of rule 1.540(b), which authorized the trial court “to relieve a party from a final judgment, decree, order or proceeding ”)(emphasis in original).

In In re Estate of Tensfeldt, 839 So.2d 720 (Fla. 2d DCA 2003), the court had to determine if and when a proceeding had occurred under section 732.212, Florida Statutes (1997). There, the children claimed that they were entitled to two-thirds of the estate because of an agreement to make a will, which the decedent had made in a divorce settlement agreement. Although the children filed a “statement of claim” for the amounts owed under the settlement agreement and the estate filed an objection thereto within the four-month election period, the children did not file a complaint to resolve the issue until a few days after the period had ended. The surviving spouse later filed an election to take elective share while the adversarial proceeding was still pending. See id. at 723.

The children argued that the election was untimely because the statutory period could not be extended due to the “statement of claim,” but could only be extended on the basis of the formal adversarial complaint, which was not filed until after the four-month election period had expired. The Second District rejected this argument and held that the children’s statement of claim and the estate’s objection thereto was a “proceeding,” which “occurred” at the time of the objection pursuant to section 732.212.

The specific question in this case is when a “proceeding occurs” under section 732.212. We have found no case squarely addressing this issue and we recognize that the amendments to the statutes will limit any precedential effect of this case. We conclude, however, that the probate court had the authority in this case to decide that the proceeding had “occurred” by the time the estate filed an objection to the children’s claim. Such an interpretation of the statute appears consistent with the intent of the statutory provision allowing extensions when the extent of the estate is in question and is also consistent with Florida’s strong public policy favoring protection of the surviving spouse.

839 So.2d at 726-27.

Returning to the instant case, we are mindful of appellants’ argument that section 732.212 has its origin in the Uniform Probate Code (UPC), which states that a “ ‘[proceeding’ includes action at law and suit in equity.” UNIF. PROBATE CODE § 1-201(37) (amended 1998), 8 U.L.A. 8 (Supp. I 2002). We first should point out that, while the word “proceeding” is defined generally for purposes of the UPC, it is not specifically used within the elective share section of the UPC, unlike section 732.212. See UNIF. PROBATE CODE § 2-205, 8 U.L.A. 310-11 (1998). Moreover, differences between the UPC and Florida’s Probate Code convince us that the UPC’s definition of “proceeding” is not controlling here.

In 1974, Florida enacted the Florida Probate Code (FPC) after a study commission was established to review the UPC adopted in 1969. See Henry A. Fenn & Edward F. Koren, The 1974- Florida Probate Code-A Marriage of Convenience, 27 U. FLA. L. REV. 1, 2 n. 8 (1974)(citing Ch. 74-106, Laws of Fla.). The FPC was organized and generally structured along the lines of both the UPC and existing Florida statutes. See id. Prior to the enactment of the FPC, Florida’s elective share or “dower” statute required the surviving spouse to take elective share within seven months of the first publication of notice to creditors. See § 731.35(1), Fla. Stat. (1973). This time period was tolled only in the event of certain litigation:

Should litigation occur involving a contested claim or the construction, admission to probate, or validity of the will, or on any other matter affecting such estate whereby the full and complete extent of estate assets subject to dower may be in doubt, the surviving spouse shall have seventy days from the date of the final termination of all proceedings in all courts in any such litigation in which to elect to take dower.

§ 731.35(2), Fla. Stat. (1973)(emphasis added).

The UPC, on the other hand, allows the trial court the discretion to extend the time to take elective share for cause shown and also allows the surviving spouse to withdraw her elective share election prior to the entry of the final judgment. While the 1974 version of the FPC modeled its elective share provision after the UPC, it omitted the provisions allowing the court to extend the time for cause shown or allowing the surviving spouse to withdraw her election. See § 732.202, Fla. Stat. (Supp.1974). Also, noticeably absent from the FPC was the UPC’s definition of “proceeding.” Instead, the 1974 version of the FPC reduced the time to take elective share to five months, but continued to provide that the time could only be tolled due to certain “litigation.” See id.

In 1975, the FPC was amended in various sections “to provide clarification.” See Ch. 75-220, at 499, Laws of Fla. At this juncture, the legislature removed all reference to “litigation” in the elective share statute, replacing it with the word “proceeding” and reducing the time to take elective share even further to four months. See § 732.212, Fla. Stat. (1975). The statute, however, continued to omit the provisions for extension or withdrawal of the elective share until the most recent amendment to the statute in 1999. We believe that the legislature’s omission of the latter provisions makes the FPC different from the UPC; thus, we must analyze the word “proceeding” in light of the provisions Florida opted to retain.

Choice is the principle upon which election depends.

[Cjhoice involves knowledge, a knowledge both of the facts and of the law applicable to the subjects matter in reference to which the choice is to be made. In the absence of either branch of this knowledge, ... it cannot as a matter of fact be said that a choice has been made

Stephens v. Gibbes, 14 Fla. 331, 358-59 (1873). Under Florida Probate Rule 5.340, the personal representative is allowed to seek as many extensions to file the inventory as the court will permit, even past the statutory period to take elective share, as was done in the instant case. The surviving spouse is, however, limited to the four-month period in which to make election, even where no inventory is filed, because section 732.212 does not allow for extensions. Florida courts have historically noted that it is inherently unfair to require the surviving spouse to make an elective share election under circumstances where she does not have full knowledge of the things between which she must choose. See Lopez v. Lopez, 96 So.2d 463 (Fla.1957). See also Exch. Nat’l Bank of Winter Haven v. Smith, 148 Fla. 473, 4 So.2d 675, 677 (1941)(“An unadvised election is upon the same basis as an election procured by fraud. It will not be of binding effect in equity, if she restores what she has received under the legacy, and others have not acted upon her election so as to be prejudiced by her dissent.”) (citations omitted); Stephens, 14 Fla. at 359 (stating that a court of equity will permit a party who has acted in ignorance either of rights or facts, and who has thus failed to exercise his right of election, to exercise it when that knowledge is acquired).

While the legislative history provides no guidance as to why “litigation” was replaced with “proceeding,” we believe that the legislature contemplated and intended the word “proceeding” to have a broader interpretation than the term litigation would require. After reading the FPC, the companion rules and case law, we believe that to interpret the tolling period to be triggered only by litigation would not give effect to the legislature’s intent and would yield an absurd result. See State v. Iacovone, 660 So.2d 1371 (Fla.1995). Thus, we hold that “proceeding” should be interpreted broadly enough to include proceedings such as the one at hand.

We believe that this broad interpretation serves the purpose for which the time restrictions in the FPC were adopted, which was to prevent delay in settlement as well as to allow executors and creditors to affirmatively ascertain the surviving spouse’s interest. See Stephens, 14 Fla. at 358. It is also consistent with Florida’s strong public policy favoring protection of the surviving spouse. See Tensfeldt, 839 So.2d at 727 (citing Via v. Putnam, 656 So.2d 460, 464 (Fla.1995)).

We also find that the petitions were matters calling into doubt the complete extent of the estate subject to the elective share. The personal representative acknowledged in his petition that this was not a typical estate, but consisted of “extensive” assets, some of which were located in foreign jurisdictions, and that “active investigation [was] underway to determine the extent of the assets.” The surviving spouse’s first petition, which was filed before the termination of the four-month statutory period, certainly raised doubts as to whether she should take elective share in light of the uncertainty of the extent of the estate. The surviving spouse’s other petitions, which were extensions of the first petition, made even clearer her concerns regarding the size and extent of the estate and the accuracy of the personal representative’s inventory. Overall, we believe that the petitions filed by the personal representative and the surviving spouse raised sufficient questions regarding the completeness of the estate to conclude that the tolling period under the statute was triggered.

Here, the surviving spouse took an available procedural step and sought information she was entitled to have to make an informed decision. This is particularly so because, prior to the 1999 amendments and under the circumstances of this case, Florida law suggests that the surviving spouse could not have withdrawn her election where the inventory was filed, and the withdrawal of election would have been after the four-month statutory period allowed under section 732.212. Compare Exch. Nat’l Bank of Winter Haven, 4 So.2d at 677 (stating that “a voluntary election by a widow to take under her husband’s will made within the period allowed by statute for dissenting therefrom may be retracted by her during such period, where it has not induced action on the part of others which would make it inequitable to allow her to elect differently”)(emphasis added), with Williams v. Williams, 114 Fla. 733, 154 So. 835, 837 (1934)(wherein the court held that an election to take under or against a will may not be changed, saying that to allow a withdrawal or revocation of the election would permit the party to take advantage of subsequent changes in the economic conditions and to select the most advantageous position), and Fla. Nat’l Bank of Jacksonville v. Tavel, 126 Fla. 415, 171 So. 231 (1936).

We find no merit in the Velde children’s argument that the surviving spouse should have filed an action pursuant to section 732.214, Florida Statutes (1999), to determine elective share, or challenge the inventory under section 733.604, Florida Statutes (1999). First, both provisions presuppose that the surviving spouse has already received the inventory. Here, the personal representative expressed to the court that it was impossible for him to prepare the inventory within the time specified by statute, and it ultimately was not filed until April 3, 2001. Secondly, even if these procedures were viable alternatives for the surviving spouse, we do not see them as precluding her from taking the steps she did to determine the extent of the estate.

We also agree that the Velde children’s lack of notice of the initial petitions for extension of time and orders thereon, although improper, does not mandate a different result. As the surviving spouse points out, if the Velde children had received notice of the petitions and objected at that time, or the personal representative had objected to her petitions, there would be no question that there was a controversy regarding the extent of the estate subject to elective share. The fact that the claim was not contested does not change the determination of whether the petitions constitute “proceedings” within the meaning of section 732.212. See In re Anders’Estate, 197 So.2d 837, 839-40 (Fla. 1st DCA 1967)(noting, in the context of the predecessor statute, that the executor’s cooperation with the surviving spouse in the course of her litigation against the estate did not remove her claim from the class of contested claims to which the statute is applicable).

Because the surviving spouse made an election within forty days of June 25, 2001, the date on which the order on the third petition for extension would have expired, we find her election to be timely. Accordingly, we affirm the decision of the trial court finding the surviving spouse’s election to be timely. As a result, we need not determine whether section 732.212 is a statute of limitation or statute of non-claim and subject to equitable defenses.

AFFIRMED.

HAZOURI and MAY, JJ., concur.

      . After the personal representative filed his petition for declaratory relief, the surviving spouse in an "abundance of caution” made what she deemed to be a "premature” election on June 14, 2001.

      . Prior to entry of the final judgment, the spouse was successful in obtaining an amendment to the inventory, reflecting over one million dollars in additional assets.

      . Section 732.212, the elective share statute, was substantially revised in 1999. See Ch. 99-343, § 15, at 3570, Laws of Fla.; § 732.2155, Fla. Stat. (1999). The new statute allows the surviving spouse to petition the court for an extension of time for malting an election and to withdraw an election within eight months of the decedent's death and before the court’s order of contribution. See § 732.2135, Fla. Stat. (1999). However, because the decedent died before the current statute took effect, this case is governed by the 1997 version of section 732.212.


author: MAY, J.

text:
    Harry J. BARCLAY, Appellant, v. QUAIL RIDGE PROPERTY OWNERS ASSOCIATION, and Florida Unemployment Appeals Commission, Appellees.
    No. 4D03-473.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.

      Harry J. Barclay, Boynton Beach, pro se.
    John D. Maher, Tallahassee for appellee, Unemployment Appeals Commission.
   MAY, J.

An employee appeals the denial of unemployment benefits. He argues, that he is unemployed through no fault of his own. We agree and reverse.

In January 1995, the employee was hired on a full-time basis. Nine months later, he reqüested to limit his work to Saturdays and Sundays. His employer agreed and changed his work schedule to include only Saturdays and Sundays.

Nearly eight years later, on July 29, 2003, the employer told him that he had to work on Wednesdays if he wanted to keep his job. The employee explained that it would be difficult for him because he cared for his elderly parents. Because he did not want to lose his job,- he acquiesced. He began to work on Wednesdays in addition to his weekend schedule.

One Wednesday while he was working, his 'mother injured herself, requiring surgery. The surgery was scheduled for September 11, 2003. The weekend before the surgery, the employee explained to his employer that his mother’s chances of surviving the surgery were 50/50. He provided the employer with Medicare statements proving that his father was a hospice home patient and that his mother used a wheelchair and hospital bed. The employee told the employer he could still work weekends, but. could not continue to work on Wednesdays until he could get help for his father.

The employer responded that he needed an employee who could work three days per week. He- wanted' the employee to work the upcoming weekend. It was then mutually agreed that Sunday would be the employee’s last day.

The appeals referee denied unemployment benefits. The Unemployment Appeals Commission [UAC] affirmed. However, the UAC Chair dissented.' It is from this decision that the employee appeals.

One of the circumstances under which the law allows for unemployment compensation is when the employer causes the employee to quit. See §' 443.101(l)(a)l, Fla. Stat. (2003). The issue then is whether the employee’s voluntary termination in this case was for good cause attributable to the employer. Good cause is defined as “those circumstances which would impel the average, able bodied, qualified worker to give up employment.” Manning v. Unemployment Appeals Comm’n, 787 So.2d 954, 955 (Fla. 4th DCA 2001) (quoting Ritenour v. Unemployment Appeals Commission, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990)).

The employee in this case complied with the employer’s demands. Under threat of termination, he began working Wednesdays, leaving his mother alone. After his mother fell while he was at work on the day that had been added to his schedule, the employer refused to adjust his work schedule back to weekends only, as it had been for nearly eight years. This left the employee with no option but to quit.

As the dissent noted in the UAC opinion:

[T]he claimant had only begun working on Wednesdays five weeks before his separation. He did so only upon being informed, “if he could not, his employment would come to an end.” If he had rejected the employer’s demand at that time and was subsequently separated as a result, the Commission would find that his separation was for good cause, as the employer’s mandate of an additional work day was a substantial change to the terms and conditions of the claimant’s employment.... By denying the claimant’s claim on the basis of his “accepting” the additional workday, the Commission is penalizing the claimant for his short-lived attempt to preserve his employment.

We agree with the observation made by the UAC Chair. Under the facts of this case, the employee’s termination was for good cause attributable to his employer. We therefore reverse the UAC decision and remand the case for an award of unemployment benefits.

REVERSED and REMANDED.

KLEIN J., and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Thomas V. MARTONE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-2392.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Rehearing Denied March 24, 2004.

      Thomas V. Martone, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Thomas Martone petitions this court for a writ of habeas corpus alleging his appellate counsel provided ineffective assistance. We grant, in part, and deny, in part, the petition as follows.

The petitioner is entitled to relief due to the fact his appointed appellate counsel was not furnished with the entire record during the pendency of petitioner’s appeal. It is important to note petitioner’s appellate counsel was not his trial counsel; thus, the missing records were especially damaging to petitioner’s direct appeal. See Hardy v. United States, 375 U.S. 277, 280, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) (“The right to notice ‘plain errors or defects’ is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.”).

Several important pieces of the record were never provided to the petitioner’s appellate counsel, thus “preclud[ing] appellate counsel from evaluating [these] portion[s] of the trial for error.” See Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001); see also Delap v. State, 350 So.2d 462 (Fla.1977); Lipman v. State, 428 So.2d 733 (Fla. 1st DCA 1983).

The record provided to the appellate attorney was missing testimony transcripts for two state witnesses, the charging documents, pre-trial and post-trial motions and hearings, and the jury instructions. We conclude these missing portions of the record were necessary for a complete review of the petitioner’s convictions. Cf. Velez v. State, 645 So.2d 42 (Fla. 4th DCA 1994); see Jones. Thus, the petition is granted.

However, granting a new trial is not necessary at this point, because the records do not appear to have been permanently lost or destroyed. Instead, the petitioner is entitled to have new appellate counsel appointed, the complete record furnished to said counsel, and a belated appeal on any meritorious issue raised from the missing portions of the record. See generally Fair v. Crosby, 858 So.2d 1103, 1103-04 (Fla. 4th DCA 2003).

Finally, the two remaining claims of ineffective assistance of appellate counsel are denied, without prejudice. Each claim of deficient assistance relates to an error, if it exists, that could have been noticed only had the full record been provided to the appellate attorney. Since these records were not provided to the attorney, the failure to advance these claims cannot be ineffective assistance of counsel. Instead, once the petitioner is appointed new counsel and the full record transmitted to said counsel, if the issues raised herein are of colorable merit, the petitioner shall be entitled to raise them once again.

STONE, KLEIN and MAY, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Carlos FLEITAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3022.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   SCHWARTZ, Chief Judge.

The appellant’s conviction on several counts of child molestation must be reversed for a new trial because the record below is riddled with prejudicial error. We find it necessary to discuss briefly only the most prominent.

I.

First, for what we think and hope is the first and last time in legal history, an assistant state attorney was permitted to be called as a witness in the case and to testify, allegedly as “background,” to her investigation of the case itself, her opinion concerning the defendant’s guilt, her assessment of the victim’s credibility, and that the defendant had committed many other uncharged crimes against the victim. Even an intimation in argument by the prosecutor of any one of these matters is patent reversible error. See, e.g., Ruiz v. State, 743 So.2d 1 (Fla.1999); Gore v. State, 719 So.2d 1197 (Fla.1998); Lewis v. State, 780 So.2d 125 (Fla. 3d DCA 2001); Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990); Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So.2d 1088 (Fla.1982). The prejudicial effect of

actual testimony by a prosecutor under oath as to all of them defies the most hyperbolic characterization.

II.

Although, because the victim was over eleven, child hearsay could not be admitted, the trial court permitted the investigating police officer — purportedly again as background or as a means of “understanding the event ... that he investigated — to testify extensively as to prior accusations made by the victim against the defendant. This, too was clearly error. See State v. Baird, 572 So.2d 904 (Fla.1990); Claridy v. State, 827 So.2d 1088 (Fla. 1st DCA 2002); Garcia v. State, 659 So.2d 388 (Fla. 2d DCA 1995); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), review denied, 411 So.2d 384 (Fla.1981).

Reversed and remanded.

      . Q. And during your meeting with her, all of the allegations in the case came out from her?
      A. Yes, they did.
      Q. Did they come in generalities or specific details?
      A. No. When we do a pre-trial conference, it is different than a statement that a police officer would take or a detective would in the case.
      We get into more detail, to find out, actually, what happened, how it happened, where she was in relation to the defendant, and we go into great detail.
      Q. Why is it important to get the great detail with the victim in the case like that?
      A. That is your opportunity to assess the credibility of the witness you are speaking to, and the more details that they give, you know, the more likely that they are credible.
      And we have to know, in order to make a filing decision, exactly what happened, does it meet the element of the crime.
      Q. In a case where a victim comes to you and doesn’t give you details, and doesn’t fit with other parts of the investigation, do you oftentimes not file the case?
      A. Oh, yes.

      Q. Did you become aware that an attorney was appointed in the case to represent "AV”, the victim in the case?
      A. Yes. And we actually did that, because we knew that if — once we learned that this was her signature, and because of my meeting with her, we had such a great meeting, I knew somebody had gotten to her. So in cases where—

      . Q. Ms. Fein, you were the prosecutor that made the charging decisions in this case; is that right?
      A. Correct.
      Q. And there were a number of assaults that were told to you about — correct?—by "AV”?
      A. Yes.
      Q. And the assaults started when she was ten years old in 1997 and it continued up until she was 13?
      A. Correct.
      Q. In the year 2000; is that right?
      A. Correct.
      Q. And some of these were occurring a couple of times a week, for weeks on end, throughout the year; is that right?
      A. That’s right.
      Q. I’m holding a copy of the Information in the case that has 16 counts; a number of lewd assault acts and the count of obscene material, protection of minor counts, as well as battery of a child with bodily fluid and false imprisonment.
      Do you recall them?
      A. Yes.
      Q. If you had all of these descriptions given to you of these various assaults throughout this three-year period, why isn't there a much larger charging document?
      MR. VAZQUEZ: Judge, I object.
      THE COURT: Sustained.
      BY MR. WEINTRAUB:
      Q. What was your thought process in making a determination as to how to charge this case?
      A. Well, we try to charge very conservatively. We don’t want a 600-page Information.
      MR. VAZQUEZ: I object.
      THE COURT: Overruled.
      THE WITNESS: I mean, if she told me three or four times a week, time that by 52 weeks, and we have about at least 200 times a year.
      We don't do that. We charge very conservatively. We charge from the dates that the child remembers, because it happened long ago. And we charge from set dates, and we try to be as conservative as possible.


author: COPE, J.

text:
    Daniel MACHIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3320.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Steven R. Berger, Assistant Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   COPE, J.

Daniel Machín appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The motion was denied after an evidentia-ry hearing.

Defendant-appellant Machín was convicted of sexual battery. By motion for postconviction relief, he maintained that his trial counsel had been ineffective for failing to present alibi witnesses at trial. The trial court heard testimony of trial counsel, the defendant, the defendant’s wife, and Mr. Rodriguez, who was a neighbor and close friend of the defendant.

The defendant contended that he was with Mr. Rodriguez during the time period the sexual assault occurred. After hearing Mr. Rodriguez’ testimony, the trial court ruled that Mr. Rodriguez was lying in an effort to assist his neighbor and close friend. Given this credibility determination, it was appropriate to deny the post-conviction motion insofar as it depended on Mr. Rodriguez’ testimony. See Butler v. State, 807 So.2d 88, 89 (Fla. 3d DCA 2001); Fica v. State, 549 So.2d 206 (Fla. 3d DCA 1989).

The defendant contended that his wife should have been called as an alibi witness. The court found the wife to be a credible witness. However, the court also concluded that the wife could only have testified about the time at which the defendant left for work on the day in question, and could not account for the defendant’s whereabouts at the time of the sexual assault.

The court found that overall timetable presented by the defendant for his whereabouts at the time of the sexual assault was physically impossible given the distances, traffic, and weather conditions.

The trial court found that if alibi witnesses had been presented, they would have helped the prosecution by confirming that the defendant was very close to the site of the sexual assault at the time it occurred. The judge stated that if the alibi witnesses had been presented, “you would have put yourself within five blocks of the actual scene, at the time of the incident, and quite frankly driving past the bus stop where the victim claims she was attacked. This would not have affected the outcome of the trial. It probably would have resulted in a quicker verdict [of conviction].” R. 441. The court concluded that trial counsel had provided effective assistance, id., and as already stated, that there was no probability of a different outcome had the proposed alibi witnesses been presented. See Strickland v. Washington, 466 U.S. 668, 694,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The defendant argues that reversal is required under Light v. State, 796 So.2d 610 (Fla. 2d DCA 2001), but that case is very different from this one. In that post-conviction case, the critical question was whether the defendant had pointed a gun at a police officer. At the postconviction evidentiary hearing, three witnesses testified that they saw the encounter between the defendant and the police. One of the three testified that the defendant did not point a gun at the police officer. Id. at 615. There was also significant impeachment evidence in the police officer’s personnel file which original trial counsel had failed to discover and use at the original trial. Id. The Light court concluded that the Strickland standard had been satisfied and that there must be a new trial. No such facts exist here.

In the present case the trial court concluded that the Strickland standard was not met, and that finding is supported by competent substantial evidence.

Affirmed.

      . The defendant was the godfather of Mr. Rodriguez' son.


text:
    Juan BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1205.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.

      Appellant, Pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant Juan Bentley appeals the denial of various postconviction claims, three of which were denied summarily and four of which were denied after an eviden-tiary hearing. We affirm without discussion as to all but one claim. Because the appellant’s fifth claim is facially sufficient and is not conclusively refuted by the record, we reverse the trial court’s summary denial of this claim.

The appellant’s fifth claim alleged that defense counsel was ineffective for failing to impeach Sheddrick Bentley, the appellant’s cousin and a key witness for the State, who testified that the appellant confessed to the crime on two separate occasions. Sheddrick testified that the appellant first confessed to the robbery while the appellant was living with him, that the appellant owned a chrome revolver, and that the appellant had a lot of money after the robbery. Sheddrick also testified that the appellant repeated his confession while the two were in jail. The confession in jail was detailed and described how the robbery took place. On cross-examination, defense counsel questioned Sheddrick about a prior felony conviction and the fact that he was facing other charges at the time of trial. The appellant claims that defense counsel should have impeached Sheddrick based on the fact that Shed-driek and the appellant were never incarcerated together and the fact that Shed-driek was given a copy of Detective R.P. Crews deposition describing the details of the robbery.

The trial court summarily denied the appellant’s claim because defense counsel impeached Sheddrick based upon his prior convictions and motives and, therefore, any further impeachment would have been cumulative. This was error. If the appellant’s allegations are true, defense counsel was ineffective for failing to sufficiently impeach the State’s key witness with noncumulative impeachment evidence. See Ventura v. State, 794 So.2d 553, 567 (Fla.2001); Williams v. State, 673 So.2d 960, 961-62 (Fla. 1st DCA 1996); Nixon v. State, 773 So.2d 607 (Fla. 4th DCA 2000); Porter v. State, 626 So.2d 268, 269 (Fla. 2d DCA 1993). Therefore, the appellant stated a facially sufficient claim.

In response to a show cause order pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the State argues that the record conclusively refutes the appellant’s claim. The State points out that Shed-drick first spoke with Detective Crews on November 12, 1997. It was therefore totally impossible, argues the State, for Shed-drick to rely on a deposition of Detective Crews that was not taken until March 20, 1998. Therefore, the State asserts, defense counsel could not have been ineffective for failing to impeach Sheddriek based on the deposition, and the appellant’s claim is frivolous.

We disagree with the State that the record conclusively refutes the appellant’s claim. It is unclear from the available record when the appellant’s alleged jailhouse confession took place. The second of two confessions to Sheddriek, the jailhouse confession was allegedly much more detailed, describing the manner in which the robbery took place. If the detective’s deposition was provided to Sheddriek before the alleged jailhouse confession, then Sheddrick’s testimony becomes suspect and subject to impeachment. Moreover, the appellant claims that he and Sheddriek were never together while incarcerated. The available record is silent as to this allegation.

Accordingly, because the appellant has stated a facially sufficient claim that is not refuted by the record, the trial court’s summary denial of the appellant’s fifth claim is reversed and remanded for the attachment of record portions conclusively refuting the appellant’s claim or for an evidentiary hearing. See Lucas v. State, 841 So.2d 380, 388-89 (Fla.2003).

Affirmed in part; Reversed in part and Remanded with directions.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Philip N. PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2224.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General, Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the order by which the trial court denied his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging two claims of ineffective assistance of counsel. We affirm and certify conflict with Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001).

On November 9, 1994, the appellant robbed the First Union Bank in Tallahassee, Florida. The bank robbery remained unsolved until November 3, 1999, when an anonymous tip indicated that the appellant committed the robbery. An information was filed on November 4, 1999, charging the appellant with robbery with a deadly weapon and grand theft of over $100,000. The appellant was arrested in Chicago, Illinois, on the following day and then transported to Tallahassee. Pursuant to a negotiated plea agreement, the appellant pled nolo contendere to both charges and was sentenced to five years of imprisonment, followed by ten years of probation. The appellant now alleges that his counsel was deficient for failing to move for dismissal of the charges because the information was filed after the statute of limitations had expired.

Prosecution for the offense of robbery with a weapon must be commenced within four years, and within five years for the offense of first-degree grand theft. §§ 775.15(2)(a), 812.035(10), Fla. Stat. (1993). The time period begins to run the day after the offense is committed. Id. § 775.15(4). The commencement of prosecution begins when the indictment or information is filed, provided that process is issued and executed without unreasonable delay. Id. § 775.15(5). Therefore, the appellant contends that the state had until November 10, 1998, to file an information charging him with robbery, and until November 10, 1999, to file an information charging him with grand theft. However, the information filed on November 4, 1999, was timely as to both charges because the statute of limitations was tolled due to the appellant’s continuous absence from the state, pursuant to section 775.15(6), Florida Statutes (1993). Section 775.15, Florida Statutes, provides in pertinent part:

(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered....
(6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonable ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

Neither subsection requires that the defendant’s absence from the state must have hindered the state from proceeding with the prosecution. Instead, case law from the second district added this requirement first to section 775.15(5), and later to section 775.15(6). See State v. Miller, 581 So.2d 641, 642 (Fla. 2d DCA 1991)(holding where the defendant’s absence from the state is not the fault of defendant and does not hinder prosecution, the statute of limitations is not tolled pursuant to section 775.15(5), Florida Statutes); Netherly v. State, 804 So.2d 433, 436-37 (Fla. 2d DCA 2001)(holding where the state is unable to demonstrate that the defendant’s absence from the state delayed prosecution, the statute of limitations is not tolled pursuant to section 775.15(6), Florida Statutes). The second district’s holding in Miller appears to be proper because the dispositive issue under section 775.15(5) is whether the state’s delay in prosecution is reasonable. Thus, in considering the reasonableness of the delay, it is appropriate to look to whether the defendant’s absence from the state hindered the prosecution. However, we disagree with the second district’s holding in Netherly because section 775.15(6) does not require that the delay in prosecution be reasonable in order for the statute of limitations to be tolled. Therefore, we reject the holding in Netherly and apply section 775.15(6) as written. Based on the express language of section 775.15(6), prosecution in this matter was timely commenced, as the appellant was continuously absent from the state and his absence resulted in the tolling of the statute of limitations. Thus, the appellant’s first claim of ineffective assistance of counsel must fail as being without merit.

The appellant next alleges that his trial counsel was deficient for failing to move for dismissal of the grand theft charge on double jeopardy grounds. See Sirmons v. State, 634 So.2d 153 (Fla.1994). The state contends that the appellant’s claim is barred pursuant to Novaton v. State, 634 So.2d 607 (Fla.1994), where the supreme court held that a defendant who knowingly enters a bargained-for plea agreement concerning both the charges and sentences waives any double jeopardy objections. However, a negotiated plea does not preclude an ineffective assistance of counsel claim based on counsel’s failure to challenge the charged offenses on double jeopardy grounds. See Deloach v. State, 831 So.2d 691 (Fla. 3d DCA 2002); Weitz v. State, 795 So.2d 1021 (Fla. 2d DCA 2001); Hubbard v. State, 662 So.2d 746 (Fla. 1st DCA 1995). Nevertheless, the appellant’s claim is conclusively refuted by the record. The appellant was charged with two first-degree felonies, which are each punishable by up to thirty years of imprisonment. However, his negotiated plea agreement provided for a relatively lenient sentence of five years of imprisonment, followed by ten years of probation, in exchange for his plea of nolo contendere to both charges. Counsel cannot be deemed deficient for failing to challenge the charges on double jeopardy grounds, as the transcript reveals that the state was insistent upon the appellant entering a plea to both offenses in order to reap the benefits of the favorable plea agreement. Thus, appellant’s second claim of ineffective assistance of counsel must also fail as being without merit.

Accordingly, we affirm the trial court’s order summarily denying the appellant’s rule 3.850 motion and certify conflict with Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001).

AFFIRMED.

WOLF, C.J., ALLEN and DAVIS, JJ., Concur.