author: ORFINGER, J. SHARP, W., J.,

text:
    Mary Lou LAYENI, Appellant/Cross-Appellee, v. Kehinde A. LAYENI, Appellee/Cross-Appellant.
    No. 5D01-3376.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Rehearing Denied April 23, 2003.

      Marcia K. Lippincott of Marcia K. Lip-pincott, P. A., Lake Mary, for Appellant/Cross-Appellee.
    Shannon McLin Carlyle and Gilbert S. Goshorn, Jr. of The Carlyle Appellate Law Firm, The Villages, for Appellee/Cross-Appellant.
   ORFINGER, J.

The former wife, Mary Lou Layeni, appeals the final judgment of dissolution of marriage terminating her marriage to Ke-hinde A. Layeni, the former husband. She argues that the trial judge erred by denying her request for permanent and rehabilitative alimony and by failing to properly value the former husband’s interest in his medical practice. She further contends the trial court erred in calculating the former husband’s income available for child or spousal support. On cross-appeal, the former husband alleges the trial court erred by requiring him to maintain a life insurance policy naming the former wife as the beneficiary. We affirm in part and reverse in part.

The parties were married for just over seven years. During the course of the marriage, two children were born. At the time of the final hearing, the former husband was a forty-two-year-old medical doctor specializing in cardiology. He worked in a professional association with two other doctors during most of the marriage. The former wife, forty-four years old at the time of the final hearing, did not work outside the home during the marriage. The parties enjoyed an upper-middle-class lifestyle with average gross earnings of approximately $375,000 per year. Throughout the parties’ marriage, the former wife was a full-time homemaker, devoting her efforts to caring for the family. Before the marriage, the former wife worked in New York as a cardiology technician earning $40,000 per year. However, due in part to one of the children’s special needs and the former wife’s impaired health as a result of several serious illnesses, her earning potential was imputed to be only $17,000 per year.

EQUITABLE DISTRIBUTION

We first consider whether the trial court erred in determining the value of the former husband’s medical practice. The parties’ disagreement turns on whether the former husband’s net accounts receivable should be included in calculating the value of his medical practice. Relying on Leone v. Leone, 577 So.2d 587 (Fla. 3d DCA 1990), the trial judge denied the former wife an equitable interest in the accounts receivable, concluding that it was from this income that the former husband would be required to make his support payments. We find the trial court erred in concluding that, as a matter of law, accounts receivable cannot be included in the valuation of marital assets. Staman v. Staman, 622 So.2d 1147 (Fla. 1st DCA 1993); Spillert v. Spillert, 564 So.2d 1146, 1148 (Fla. 1st DCA 1990); Carr v. Carr, 522 So.2d 880, 885 (Fla. 1st DCA 1988) (finding error in trial court’s exclusion from marital assets of the tangible assets of husband’s medical practice, including accounts receivable). We believe the holding in Leone was based on its unique facts. On remand, the trial court should include the net value of the former husband’s accounts receivable in determining the value of his medical practice so that the trial court can distribute the assets in an equitable manner, given the overall division of marital property. See § 61.075, Fla. Stat. (1998).

THE CALCULATION OF THE FORMER HUSBAND’S INCOME

The parties agree that the trial court erred by failing to consider automobile and insurance benefits paid on behalf of the former husband by his medical practice. Those payments, totaling $2,577.95 monthly, and representing automobile lease payments and insurance and health, dental, and life insurance, must be included as income to the former husband on remand. See § 61.30(2)(a)(13), Fla. Stat. (1998); Cozier v. Cozier, 819 So.2d 834, 836 (Fla. 2d DCA 2002) (although the value of family medical insurance provided by the husband’s employment and family business was properly added to the husband’s gross income as an employment benefit for the purpose of awarding alimony and child support, the trial court erred by failing to allow a corresponding deduction for the amount of the insurance).

PERMANENT ALIMONY

The former wife next argues that the trial court’s decision to deny permanent alimony was an abuse of the trial court’s discretion. While if permitted to reweigh the evidence we might have reached a different result on the issue of permanent alimony, we cannot conclude that the trial court abused its broad discretion in denying an award of permanent alimony to the former wife in this relatively short-term marriage. As we said in Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001):

In a dissolution proceeding, the trial court possess broad discretion to do equity between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Doyle v. Doyle, 789 So.2d 499, 501 (Fla. 5th DCA 2001). The standard of review is whether the trial court abused its discretion. Canakaris, 382 So.2d at 1202-03. In reviewing a dissolution judgment, this court looks at the judgment as a whole in determining whether the trial court abused its discretion. Hamlet v. Hamlet, 583 So.2d 654, 657 (Fla.1991). “It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.” Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983)).

We do, however, reach an opposite conclusion regarding the trial court’s denial of rehabilitative alimony to the former wife because we find the trial court misapplied the law.

REHABILITATIVE ALIMONY

The former wife argues that the trial court denied her request for rehabilitative alimony because she failed to present a written rehabilitative plan at the dissolution hearing. The former wife asserts that through her testimony, she presented an oral rehabilitative plan, and argues that this is sufficient.

A review of the record shows that the former wife testified that although she attempted to become employed as a cardiology technician, her efforts were unsuccessful. Therefore, she decided to go to college to become a medical records coder. The former wife testified in detail regarding her plans to attend school to pursue a career as a medical records coder, at a total cost of approximately $11,840, excluding spousal support during the rehabilitative period.

The former wife also offered the testimony of Ede Slovan, the coordinator of the New Directions program at Seminole County Community College. Slovan, the former wife’s counselor at the college, testified that the former wife took an eight-week remedial course, and then enrolled in some college courses. Slovan testified that the former wife did poorly on several tests administered by the program, particularly in her ability to read, write, and understand the English language. As a result, Slovan recommended that the former wife take certain remedial classes. Slovan testified that according to the school’s records, the former wife usually takes one to two classes per semester, and had completed her remedial classes. Slovan further testified that the former wife had begun taking college credit classes, and was taking them though the summer.

The former wife testified that she enrolls in one course per semester because her impaired health and the special needs of her children would not permit a more demanding schedule. The former wife’s therapist also testified that the former wife has made a good faith effort at her schooling, but that it has been difficult for her. He believed that the former wife was not capable of handling full-time employment in addition to her duties and responsibilities as a full-time mother.

The former husband argues that the trial court correctly denied rehabilitative alimony because the former wife failed to establish any rehabilitative plan, much less one in writing, as required. “The principal purpose of awarding rehabilitative alimony is to provide funds to the requesting spouse so he or she can establish the capacity for self-support, either through the redevelopment of previous skills or the provision of training necessary to develop potential supportive skills.” Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001). Rehabilitative alimony cannot be awarded absent a rehabilitative plan. Fullerton v. Fullerton, 709 So.2d 162, 164 (Fla. 5th DCA 1998). In Brock v. Brock, 682 So.2d 682 (Fla. 5th DCA 1996), this court, in setting forth the requirement of a written rehabilitative plan, said:

Rehabilitative alimony is for a time certain or until a specific goal has been met. Further, courts have held that a viable rehabilitative plan must be presented at the time the request for rehabilitative alimony is made. Since rehabilitative alimony is a projection based upon assumptions and probabilities, the plan must be in writing in the event the plan or goal is not achieved.

Id. at 683 (internal citations omitted). See Calderon v. Calderon, 730 So.2d 400, 402 (Fla. 5th DCA 1999). However, we have also recognized that a rehabilitative plan may be orally presented. See Beasley v. Beasley, 717 So.2d 208, 209 (Fla. 5th DCA 1998) (finding it was error to award rehabilitative alimony where wife did not present written or oral rehabilitative plan); see also Bryan v. Bryan, 765 So.2d 829 (Fla. 1st DCA 2000) (same).

An award of rehabilitative alimony should not turn on whether the rehabilitative plan is oral or written. Instead, such an award must be based on whether an adequate and credible rehabilitative plan is presented to the court, assuming that the requesting party also demonstrates his or her need and the other party’s ability to pay. See, e.g., Bryan; Calderon; Beasley; Fullerton. In the instant case, while no written rehabilitative plan was presented, the former wife did present an adequate rehabilitative plan at the final hearing through her testimony and the testimony of her witnesses. See Kalmanson v. Kalmanson, 796 So.2d 1249, 1250 (Fla. 5th DCA 2001) (stating that to establish entitlement to rehabilitative alimony, the spouse must present evidence establishing the rehabilitative plan, the objective of the rehabilitation, the areas in which rehabilitation was desired, and the actual amount of rehabilitative alimony necessary). The plan, if accepted by the court, could easily be incorporated into the final judgment or memorialized in a transcript filed with the court, providing the written record necessary for the court to determine if the projections and assumptions made in the plan have come to fruition.

Our review of the Amended Final Judgment and the trial court’s Memorandum of Findings makes it clear that the trial court did not consider the oral rehabilitative plan that was presented at the dissolution hearing. On remand, the trial court should consider the evidence presented and fashion a rehabilitative award for the former wife, if one is justified by the evidence, or deny rehabilitative alimony, and make specific findings in that regard.

THE LIFE INSURANCE POLICY

On cross-appeal, the former husband asserts that the trial court erred by ordering him to maintain a $500,000 life insurance policy naming the former wife as the designated “beneficiary.” “To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.” § 61.13(l)(c), Fla. Stat. (1998). As the statute requires, the circumstances must suggest a necessity for such protection, and, thus, the trial court should make appropriate findings regarding the necessity for insurance protection. Guerin v. DiRoma, 819 So.2d 968, 970 (Fla. 4th DCA 2002). In the instant case, the trial court failed to make any findings necessary to justify requiring the former husband to maintain his pre-existing life insurance policy. In Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla.1989), the supreme court held that section 61.08(3) permits the trial court to order an obligated spouse to purchase life insurance or other security to satisfy arrearages or to otherwise protect the receiving spouse in appropriate circumstances. See Richardson v. Richardson, 722 So.2d 280, 281 (Fla. 5th DCA 1998). On remand, the trial court must find whether appropriate circumstances exist to justify that the former husband maintain life insurance.

If on remand the trial court finds the existence of circumstances justifying the requirement to maintain life insurance, the former wife should not be named as the beneficiary of the policy. The wife has no protectable interest except as the obli-gee of child support payments. It should be made clear that the policy is for the benefit of the children and no one else.

CHILD CARE AND CHILD CONTACT PROVISIONS

The former wife argues that the trial court failed to take into consideration the cost of the children’s after school care. The former husband argues that it was within the trial court’s discretion to refuse to include such costs where it was uncon-troverted that the former wife was unemployed. We are unable to determine from the record before us whether the trial court considered day-care expenses. Section 61.30(7), Florida Statutes (1998), requires that seventy-five percent of day care costs be added to the child support obligation where day care is necessary due to employment, job search, and education. Here, because there were no findings in the final judgment regarding child-care expenses, we cannot meaningfully review this issue. On remand, the trial court shall determine the amount and necessity of child-care expenses and include that sum, if any, as required by section 61.30(7).

Finally, the former wife contends that the trial court referenced, but failed to include, a contact schedule in the final judgment. We agree. On remand, the court shall attach the appropriate contact schedule.

CONCLUSION

Finding no merit in the remaining issues raised by the parties, we affirm the final judgment in part, reverse in part, and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

GRIFFIN, J., concurs.

SHARP, W., J., concurs in part, dissents in part, with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

I concur with the majority’s conclusion that this case needs to be remanded on the issues specified in the opinion, but I think the trial court should also reconsider its denial of permanent, periodic alimony in light of the facts and findings made by the judge.

This was a medium-term (gray area) marriage, lasting a little over seven years at the time the parties separated in 1998. Two children were born to the parties: Jessica (in April of 1991) and Sabrina (in April of 1993). Both children need special care, which the wife has been providing. Jessica has learning disabilities and attends a special school. She has childhood depression, attention deficit disorder, adjustment disorder and an auditory processing disorder. The younger child, Sabrina, is also a special needs child who has a low I.Q. Although she does not need as much attention as Jessica, she too requires extra help outside school.

In addition, the record established that the then 44 year-old wife has a myriad of health problems. Her doctor, Dr. Ruiz, testified she has Hepatitis C, which was diagnosed in 1987. In fact, the record indicates that she was working part-time because of this illness at the time she met the husband. He claims that he did not know of this illness when they married, and that he would not have married her had he known. But the record shows that he conceded he knew about the illness during the wife’s first pregnancy when he reviewed her medical records.

In addition, Dr. Ruiz testified that the wife also has Cytomegalovirus (CMV); Epstein-Barr; and Chronic Fatigue Syndrome (CFS). The symptoms of Hepatitis C are loss of energy and appetite, and weakness. Ultimately her liver will fail and death will result. Together, the symptoms of CMV, Epstein-Barr, and CFS are fatigue, muscle weakness, achiness, arthritis, pain in the joints, difficulties with concentration, memory, irritability and confusion. Undoubtedly, these combined illnesses with similar symptoms magnify the effect on the wife’s health and her ability to be employed.

The trial court believed Dr. Ruiz when he testified that the wife had Hepatitis C, although it was not causing her medical problems at that time. The judge decided that because this was a “pre-existing condition,” and the husband said he would not have married her if he had known about it, the court could not consider this illness in awarding alimony or making an equitable distribution. This, in my view, is an outrageous principle of law without precedent or justification absent extreme evidence of misrepresentation or deceit, which does not exist in this case. Spouses do not come with special warranties. Do the vows “in sickness and in health” mean only “after-marriage acquired illnesses,” like medical insurance policies? Certainly not.

Also unacceptable, in my view, was the court’s view of Dr. Ruiz’ testimony regarding the health effects of CMV, Epstein-Barr and CFS, which appear to have been diagnosed during the marriage. The court said it did not believe Dr. Ruiz’ testimony on this point because the former wife exercised, took care of the children, did household chores, and had had a relationship with a boyfriend. However, the former husband presented no evidence the former wife did not suffer from these conditions, nor did he challenge that testimony.

The trial court denied the wife alimony of any kind based on the short-term duration of the marriage, and the fact that the wife had Hepatitis C when the parties married. The court found that the wife could earn the sum of $17,000 per year by working full time, and imputed that amount to her. The court also found that the husband’s income earned as a cardiologist and one-third owner of a cardiology professional association had decreased for the previous two years to only $250,000 per annum. However, there was evidence that his average gross income was $375,583.50. After the court imputed income to the wife, the husband’s net income was $12,951 per month, while the wife’s was only $1,142.

Even if the wife could earn $17,000 per year working full time, it seems disingenuous to say that the husband should not be responsible for at least part of the wife’s support, because one of her illnesses was diagnosed prior to the marriage and because the court refused to give weight to the fact she now suffers serious chronic illness post-marriage. This is particularly egregious under the circumstances of this case, since the trial court has also denied her an award for child care. Further, the record shows without dispute, the former wife has no current employment, her prior job skills are out-dated, and in order to gain employability she needs remedial pre-college courses, including English. The contrast between the parties’ financial situations is gross.

The judgment in this case conflicts with our recent decision in Reeves v. Reeves, 821 So.2d 333 (Fla. 5th DCA 2002), which involved a short term marriage of four and one-half years. The 32-year-old wife, who had been a school teacher, was in good health, and the trial court did not award her permanent alimony. Nevertheless, we reversed the denial of permanent alimony.

We noted that there is a presumption, only, against awarding permanent alimony in short-term marriages, but that presumption is rebuttable. Reeves; Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001). Permanent alimony can be awarded in cases involving a short-term marriage where events have occurred during the marriage, which preclude a spouse from earning as much as he or she did prior to the marriage. See generally, Adinolfe v. Adinolfe, 718 So.2d 369 (Fla. 4th DCA 1998). Similarly, where the parties agree that the wife would discontinue her career to provide care for a handicapped child, permanent alimony should be awarded. Reeves.

The facts of this care more strongly support an award of permanent alimony than those in Reeves. This was not a short-term marriage. Seven plus years falls into the “grey” area where there is no presumption for or against alimony awards. See Escudero v. Escudero, 739 So.2d 688 (Fla. 5th DCA 1999) (nine-year marriage falls into gray area); Bailey v. Bailey, 617 So.2d 815 (Fla. 2d DCA 1993) (eight-year marriage falls into gray area). See also Kellerman v. Kellerman, 659 So.2d 1390 (Fla. 3d DCA 1995) (less than seven-year marriage is a short term marriage). The former wife in Reeves enjoyed good health. The former wife in this case suffers from numerous serious medical conditions. Further, care of the two special needs children will necessarily interfere with her ability to hold down part-time employment, much less full time employment, or to seek current re-training which is essential for any kind of adequate paying job. Considering these combination of factors, it seems extremely unlikely that the wife will ever be able to return to full-time employment. And, even if she does, it is abundantly clear she will never be able to approach the standard of living enjoyed by the parties during the marriage. That is the appropriate standard to evaluate the wife’s needs for alimony purposes. See, e.g., Mallard v. Mallard, 771 So.2d 1138, 1139 (Fla.2000).

With regard to rehabilitative alimony, the purpose for such an award is to establish a spouse’s capacity for. self-support, either through re-development of previous skills or by providing training necessary to develop new work skills. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). When a trial court awards rehabilitative, as opposed to permanent alimony, “it is a reflection of the court’s optimism concerning the likelihood of future rehabilitation.” Kuvin at 204. In determining that the former wife has the ability to rehabilitate herself without any source of income, the trial judge appears to be a superb optimist, reminiscent of Dr. Pangloss in Voltaire’s Candide.

Although the trial judge has wide discretion in these cases, it is not unlimited. In discussing an appellate court’s obligation in abuse of discretion cases, we said in Parce v. Byrd, 533 So.2d 812, 814 (Fla. 5th DCA 1988):

We must take care to avoid a mechanical application of the abuse of discretion test to shrink from reviewing the incorrect application of clear legal standards or the application of the wrong standard — all in the name of deferring to the superior vantage point of the trial judge. To do so is to have the rule absorb the whole of judicial review-to have the branch assimilate the tree.

On remand, I think the trial judge should review first, the proper valuation and equitable distribution of marital assets. Then if it is apparent that the former wife will not receive sufficient assets to support herself, lacks the ability to work to support herself in the manner established during the marriage, and the former husband can financially afford to assist her (as was unquestionably established in this case), then the trial court should award permanent alimony or perhaps a combination of both permanent and rehabilitative alimony. To fail to do so in this case constitutes, in my view, a gross abuse of discretion. Hamlet v. Hamlet, 583 So.2d 654 (Fla.1991).

      . Slovan explained that New Directions is a program which aids single parents, displaced homemakers, and pregnant single teens to reenter the educational process. It encompasses an eight-week career counseling course in order to assist the participants in finding direction in their educational goals. It also supports the participants financially, if needed, with child care, and provides emotional support as they go through the educational process.

      . There is some discrepancy among the district courts of appeal as to the correct standard applicable in determining whether a spouse should be ordered to purchase or maintain life insurance. Florida courts, including this court, have ruled that in the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing support obligations. See, e.g., Cozier v. Cozier, 819 So.2d 834, 836 (Fla. 2d DCA 2002); Pinion v. Pinion, 818 So.2d 557 (Fla. 2d DCA 2002); Baker v. Baker, 763 So.2d 493 (Fla. 4th DCA 2000); McDaniel v. McDaniel, 653 So.2d 1076, 1078 (Fla. 5th DCA 1995); Mitchell v. Mitchell, 477 So.2d 2, 3 (Fla. 5th DCA 1985) ("[T]here is nothing in the law that requires [a spouse] to maintain insurance unless special circumstances dictate its advisability.”). However, the supreme court in Sobelman v. Sobelman, 541 So.2d 1153 (Fla.1989), and this court in Richardson v. Richardson, 722 So.2d 280, 281 (Fla. 5th DCA 1998), have applied the "appropriateness” standard. Accordingly, that standard will be applied.

      . The evidence indicated that she would have earned approximately $40,000 if she was working full-time.

      . The duration of the marriage is but one factor to be considered in determining whether an award of permanent alimony is appropriate. See § 61.08; Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Angel LAGO, Appellant, v. CITY OF MIAMI.
    No. 3D01-1964.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Clarification Denied April 30, 2003.
    Ten Guttman Valdes, for appellant.
    Alejandro Vilarello, City Attorney; Lauri Waldman Ross, and Theresa L. Girten, for appellee.
    Before GERSTEN and WELLS, JJ„ and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Corbitt v. Kuruvilla, 745 So.2d 545 (Fla. 4th DCA 1999); Albelo v. Southern Bell, 682 So.2d 1126 (Fla. 4th DCA 1996).


author: SHARP, W., J.

text:
    Robert JAMES, et al., Appellants, v. Rosalie Kaye Bruno JAMES, Appellee.
    No. 5D02-1565.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Rehearing Denied April 23, 2003.

      Ric Woodward, Melbourne, for Appellants.
    Michael R. Riemenschneider and William H. Cantwell, II, of O’Brien, Riemen-schneider, P.A., Melbourne, for Appellee.
   SHARP, W., J.

Robert James, Cynthia A. Boehn, Sondra Toevs and David K. James III (appellants), the adult children of David R. James II (decedent) appeal from a summary final judgment entered in favor of Rosalie Kaye Bruno James (Rosalie), the decedent’s widow and appellants’ stepmother. Because we agree the record discloses no material issues of fact, the judgment below is affirmed as a matter of law, although we disagree with the reason given by the trial court.

The record discloses appellants filed suit against Rosalie in the county court to evict her from the residence property, in which she had resided with the decedent following their marriage on October 1, 2000. The decedent purchased the property on May 28, 1999, prior to his marriage to Rosalie. The decedent died on May 3, 2001.

Appellants alleged they owned the residence, having taken title pursuant to a quit claim deed executed and dated May 2, 2001. The deed recited that the decedent was a single man. A copy of the deed was attached to the complaint as an exhibit. Appellants also alleged the deed was executed by the decedent’s attorney-in-fact, David K. James III, acting under a power of attorney. A copy of the power of attorney was not attached to the pleadings. Appellants also asserted a damage claim against Rosalie for allowing the property to fall into disrepair and failing to maintain it.

Rosalie filed an answer, affirmative defenses and a counterclaim. Her first affirmative defense was that as the surviving widow of the decedent, her homestead rights could not be conveyed away without her joinder or signature. Second, she claimed fraud on the part of appellants in procuring the deed. Third she challenged the validity of the power of attorney to convey the property. She counterclaimed for cancellation of the quit claim deed for the reasons stated above. She further asserted the actions by appellants were taken to avoid provisions in the decedent’s will, which bequeathed the residence to Rosalie. Copies of the decedent’s probate proceedings containing a copy of the will filed in Pennsylvania were attached to her pleadings. Because of her requests to cancel the deed, the cause was transferred to the circuit court.

In the circuit court, Rosalie filed a motion for summary judgment and attached an affidavit in support. One basis for her motion was that the property was homestead and could not be conveyed without her joinder in the deed. §§ 732.401 and 732.4015, Fla. Stat. In the affidavit, she alleged she was married to the decedent until his death and the property involved in this suit was their marital residence and homestead at the time of the decedent’s death. She said that the statement in the deed that the decedent was single when the quit claim was executed was false and she asserted her homestead rights.

In her motion for summary judgment, she also challenged the transfer of the property as being beyond the scope of the power of attorney. She attached a copy of the power of attorney, which had been executed in 1995. Paragraph 16 of the power of attorney gave the attorney-in-fact power to make gifts to and on behalf of the decedent’s four children in amounts up to $10,000 per year per child so long as the gifts were consistent with “prudent estate planning and financial management, and after consultation with Mellon Bank ,NA.” Paragraph 17 empowered the attorney-in-fact to do any act in connection with the decedent’s property he could do himself.

Initially, the trial court denied the summary judgment motion. However, prior to trial the motion was renewed by different counsel. He argued there were no material facts in dispute and the validity of the quit claim deed should be resolved as a matter of law. First, the conveyance of the property without joinder of the decedent’s wife was contrary to Article X, Section 4 of the Florida Constitution, and second, the power of attorney did not permit execution of the deed under the circumstances.

Counsel for appellants claimed the record posed an unresolved material fact issue as to whether the property was in fact homestead. This issue was arguably created by the appellants’ denial in their response to interrogatories that the property concerned in the case was homestead property. Counsel asserted at the hearing Rosalie had purchased a different home during the marriage, which was her real residence when the decedent died. Unfortunately, the response is not in our record on appeal, although the facing sheet to that document is. But even if such a denial was made by a pleading, in order to properly counter Rosalie’s affidavit, which declares the property is homestead property, appellants should have filed a counter-affidavit challenging its homestead status. See First North American Bank v. Hummel, 825 So.2d 502 (Fla. 2d DCA 2002); Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp., 335 So.2d 600 (Fla. 3d DCA 1976).

Second, counsel for appellants argued that joinder by Rosalie in the deed was not required by homestead law because she had entered into a prenuptial agreement in which she waived her homestead rights and other statutory rights as widow of the decedent. Counsel conceded at the time of the summary judgment that the prenuptial agreement was not in the record, but he intended to present it at trial. The trial judge ruled that because the quit claim deed identified the decedent as a single man when it was executed, which was incorrect, that the deed was a nullity.

That fact alone would not be a sufficient basis to invalidate the quit claim deed. If Rosalie had executed a valid prenuptial agreement, she could have waived her homestead rights. See City National Bank of Florida v. Tescher, 578 So.2d 701 (Fla.1991); Jacobs v. Jacobs, 633 So.2d 30 (Fla. 5th DCA 1994); Wadsworth v. First Union National Bank, 564 So.2d 634 (Fla. 5th DCA 1990); Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983). The result of waiving homestead in a prenuptial agreement is that, for purposes of the constitutional restriction on devise of the homestead, the waiving spouse is deemed to have predeceased the decedent. See City National Bank; Topper v. Stewart, 449 So.2d 373 (Fla. 3d DCA 1984); Hulsh; DeGarcia’s Estate, 399 So.2d 486 (Fla. 3d DCA 1981). It follows that a waiving spouse’s joinder on a conveyance of homestead property by the owner is not required to pass title.

However, the salient fact in this case is that the prenuptial agreement was not in the record before the trial court nor was it asserted in appellants’ pleadings. Its existence was only argued at the nonevidentia-ry summary judgment hearing. Thus, it could not be considered by the trial court at the summary judgment hearing. Harris v. Wilson, 656 So.2d 512, 516 (Fla. 1st DCA 1995); City of Brooksville v. Hernando County, 424 So.2d 846, 848 (Fla. 5th DCA 1982).

We also agree with Rosalie that the summary judgment in her favor was properly entered because Paragraph 16 of the power of attorney limits the attorney-in-fact’s power to make gifts to himself and his siblings. It was not disputed in this record that the attorney-in-fact failed to consult with the Bank as was required in the power prior to making gifts, and that the value of the property exceeded the amounts set forth in the power ($10,000 per child). Construction of a power of attorney, like contract law, is a matter of law. Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977).

In general, an agent cannot make gifts of his principal’s property to himself or others unless it is expressly authorized in the power. See In re Estate of Bell, 573 So.2d 57, 58 (Fla. 1st DCA 1990). And such powers are strictly constructed. Vaughn v. Batchelder, 633 So.2d 526 (Fla. 2d DCA 1994); Kotsch v. Kotsch, 608 So.2d 879 (Fla. 2d DCA 1992).

Appellants argue that the broad general statement in Paragraph 17 provides the holder of the power of attorney with authority to execute this quit claim deed. However, if we construed Paragraph 17 as granting the holder of the power of attorney such broad powers, there would be no meaning left for Paragraph 16, or area for its operation. See St. Gaudens v. Southeast Bank, N.A., 559 So.2d 1259 (Fla. 3d DCA 1990)(written power of attorney is a contract to be interpreted as a matter of law); Premier Ins. Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994)(a contract interpretation which gives reasonable meaning to all provisions is preferred).

We conclude that David K. James III clearly exceeded his authority under this power of attorney by gifting decedent’s property involved in this case to his four adult children. Accordingly, the trial court correctly cancelled the deed transferring the property to appellants.

AFFIRMED.

GRIFFIN and ORFINGER, JJ„ concur.

      . Section 732.041 provides:
      (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes.
      (2) Subsection (1) shall not apply to property that the decedent and the surviving spouse owned as tenants by the entirety.
      Section 732.4015, provides:
      (1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.
      (2) For the purposes of subsection (1), the term:
      (a) 'Owner' includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.
      (b) 'Devise’ includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor's homestead.

      . We note, for purposes of clarification, that unless Rosalie waived her homestead rights in a prenuptial agreement, the issue of whether Rosalie herself owned homestead property is not relevant to the outcome in this case.


text:
    Owen Lloyd TUCKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2657.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2003.
    Rehearing Denied April 22, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Owen Lloyd Tucker, Jr., Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Brown v. State, 652 So.2d 488 (Fla. 5th DCA 1995).

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


text:
    Roger D. REAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-539.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Rehearing Denied April 25, 2003.
    Roger D. Ream, Bowling Green, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wilcox v. State, 783 So.2d 1150 (Fla. 1st DCA 2001).

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


text:
    Nathaniel A. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-762.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Rehearing Denied April 23, 2003.
    Nathaniel A. Jenkins, Raiford, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Section 921.0022, Fla. Stat. (2002).

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


author: HAWKES, J.

text:
    Charles DEMOSS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D01-3475, 1D01-3751.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Rehearing Denied May 1, 2003.

      Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Janelle Gillaspie, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant was convicted by a jury of grand theft over $100,000.00. Appellant appeals his conviction, arguing the trial court erred by admitting certain documentary evidence over defense objection; denying judgment of acquittal; and denying Appellant’s motion for new trial. The State cross-appealed Appellant’s downward departure sentence. We affirm the issues raised by Appellant without discussion. However, we find the trial court erred by imposing a downward departure sentence. Accordingly, we reverse and remand for re-sentencing pursuant to the sentencing guidelines.

I

Appellant was employed as the manager of one of the Tallahassee area Petro Mart stores. As part of his duties, Appellant manually prepared reports detailing all sales and cash transactions at his store. These reports were then compared to a computer generated report detailing daily sales at the store. This information was then entered into a data base. At the end of each month, manual “stick readings” were made to determine the actual inventory of gasoline in each tank at the store. All of this information was kept by Petro Mart for each of its stores at its home office.

When the various reports from the store managed by Appellant were reconciled, it was revealed that significant discrepancies were present between the book inventory of gasoline, based on Appellant’s reports, and the amount of gasoline actually present in the underground storage tanks, based on the “stick readings.” During the relevant time period, Appellant reported 321,065 gallons of gasoline were sold for a total of $402,328.45. However, the reconciliation indicated 436,895 gallons of gasoline were sold for a total of $550,511.40. This results in a difference of 115,830 gallons of gasoline with a value of $148,182.95.

The sentencing guidelines scoresheet required a minimum state prison sentence of 23.55 months and a maximum sentence of 30 years. The court adjudicated Appellant guilty and sentenced him to one year in county jail with credit for time served (22 days), 29 years of probation to run consecutively with the 1 year county jail sentence, and restitution in the amount of $148,183.00 to be paid at a rate of $425.82 per month. The trial court based this downward departure sentence on a finding that the need for restitution outweighed the need for incarceration.

II

“The primary purpose of sentencing is to punish the offender.” § 921.002(l)(b), Fla. Stat. (2001). A defendant’s minimum sentence is based on the crime he committed and the points he earned. Accordingly, departures below the lowest permissible sentence established by the Criminal Punishment Code must be articulated in writing and supported by a preponderance of the evidence. See § 921.002(l)(f) & (3), Fla. Stat. (2001). The imposition of a downward departure sentence is a two-part process. See Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, the trial court must determine “whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground.... ” Id. (emphasis in original). Second, the trial court must decide “whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant....” Id. at 1068 (emphasis in original). The trial court’s decision in the first step will be affirmed on appeal if the reason cited is a valid one, and if competent, substantial evidence supports that reason. In the second step, the trial court is afforded considerable discretion and its decision will not be overturned absent an abuse of discretion. See id.

A victim’s need for restitution is a valid reason for a downward departure sentence only if competent, substantial evidence shows the victim’s need outweighs the need for incarceration. See § 921.0026(2)(e), Fla. Stat. (2001). The test is the victim’s need, not the victim’s desire or preference. See Banks, 732 So.2d at 1068-1069; State v. Quintanal, 791 So.2d 23 (Fla. 3d DCA 2001). Thus, to satisfy this test there must be some evidence of the victim’s need. See Quintanal, 791 So.2d at 24-25 (reversing downward departure sentence where victims lost approximately $200,000.00 and preferred restitution over incarceration, but no evidence was presented as to victims’ need for restitution); State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000) (reversing downward departure sentence based on need for restitution outweighing need for incarceration, where defense counsel failed to present any evidence that victims requested restitution or expressed any particular need for restitution.).

In evaluating the need for restitution against the need for incarceration, the trial court must consider “the nature of the victim’s loss and the efficacy of restitution, and ... the consequences of imprisonment.” Banks at 1069. Merriam-Webster’s dictionary defines efficacy as “the power to produce an effect,” and restitution as an “act of restoring or a condition of being restored” or in a “legal action serving to cause restoration of a previous state.” Id. Thus, when the trial court considers the “efficacy of restitution,” as required by Banks, it must evaluate the power of the restitution plan to restore the victim to his or her previous state. This evaluation must include the defendant’s ability to pay restitution, and the impact of the restitution plan on the victim. When evaluating the nature of the victim’s loss, the trial court must consider the impact of the crime on the victim. If the harm suffered by the victim as a result of the theft was greater than normally expected, and restitution could mitigate that increased harm, then a downward departure sentence may be justified.

However, in this case, the victim is a corporation who averaged in excess of $135,000.00 per month in gasoline sales at the store managed by Appellant, and who operates 18 similar stores in the Tallahassee region. Grand theft of $148,183.00 is always significant. However, there was no evidence that the victim had a pressing need for restitution that would distinguish this case from other grand thefts of this magnitude so as to justify a downward departure sentence. Accordingly, under these facts, the victim suffered no hardship not contemplated by the legislature when it made theft of over $100,000.00 a first degree felony, and established the minimum sentence pursuant to the Criminal Punishment Code. Moreover, Appellant has been ordered to pay almost 20% of his gross pay — assuming he can duplicate his former salary. The plan requires 29 years of monthly payments in the amount of $425.82 to pay the $148,188.00. Setting aside any concerns of Appellant’s financial ability to comply, nominal payments over 29 years does not restore the victim to its former state, especially when the plan was neither requested nor approved by the victim. Although not dispositive, Petro Mart’s spokesman expressed a preference for incarceration.

Ill

Based on the foregoing, we affirm Appellant’s conviction for grand theft over $100,000. We reverse the downward departure sentence and remand for re-sentencing pursuant to the sentencing guidelines.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ALLEN, C.J., and BENTON, J., CONCUR.

      . Merriam-Webster's Collegiate Dictionary 367 (10th ed.2000).

      . If the victim were to borrow the $148,183 for 29 years, at only 5% interest and make monthly installments to repay the loan the victim would pay $132,788.72 in interest, for a total of $280,971.72.


text:
    UNIVERSITY MEDICAL CENTER, INC., and Florida Board of Education, Appellants, v. Kathryn BLANCHARD, as Personal Representative of the Estate of Joann G. Blanchard, deceased, Appellee.
    Nos. 1D02-0848, 02-0851.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Rehearing Denied April 29, 2003.
    Arthur J. England, Jr.; Paul C. Savage; Julissa Rodriguez of Greenberg Traurig, P.A., Miami and Brian E. Currie of Taylor, Day & Currie, Jacksonville, for appellants.
    Joel D. Eaton of Podhurst, Orseck, Jo-sefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami; Anderson & Howell, P.A.; Milton, Leach, Whitman, D’Andrea, Cha-rek & Milton, P.A.; and Harrell & Johnson, P.A., Jacksonville, for appellee.
   PER CURIAM.

We affirm as to all issues raised on appeal. Pursuant to our opinion in Lewis v. Bondy, 752 So.2d 1225 (Fla. 1st DCA 2000), we affirm the trial court’s use of a multiplier in determining attorney’s fees under the offer of judgment statute; however, we note conflict with Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001) (en banc), review granted, 826 So.2d 992 (Fla.2002).

BOOTH, WOLF and KAHN, JJ., concur.


author: DAVIS, Judge. ALTENBERND, Chief Judge,

text:
    Felix ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5209.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Rehearing Denied April 23, 2003.

      James Marion Moorman, Public Defender, Bartow, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Felix Ortiz challenges his convictions and sentences for resisting an officer with violence, possession of cocaine, and battery. We affirm Ortiz’s resisting arrest and battery convictions without comment but reverse on the possession charge.

Ortiz argues that the trial court erred in denying his motion for judgment of acquittal as to the cocaine possession charge. He maintains that the evidence was insufficient to support a conviction for possession of cocaine because the State failed to introduce the cocaine into evidence. We agree.

“[W]hen a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence but ... a defendant who fails to object to its nonintroduction may not be heard to complain of the error on appeal.” G.E.G. v. State, 417 So.2d 975, 977 (Fla.1982). Here, defense counsel raised the nonintroduction of the cocaine, and neither the FDLE lab chemist nor the officer who discovered the cocaine testified that the cocaine was not available. See also Mack v. State, 711 So.2d 1154, 1154 (Fla. 2d DCA 1998) (“After [defense] counsel made this argument, the State offered no excuse or explanation why it had not introduced the cocaine.”).

Accordingly, we reverse Ortiz’s cocaine possession conviction but affirm his resisting an officer with violence and battery convictions.

Affirmed in part, reversed in part.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Dissents with opinion.

ALTENBERND, Chief Judge,

Dissenting.

I understand why the court feels compelled to reverse the conviction for possession of cocaine. This court extended the rule announced in G.E.G. to possession of cocaine in a case in which I participated. See Mack v. State, 711 So.2d 1154 (Fla. 2d DCA 1998). Nevertheless, I dissent because I conclude that Mr. Ortiz did not adequately preserve this issue and that the evidence introduced by the State established a prima facie case of possession of cocaine.

Mr. Ortiz was arrested for offenses unrelated to this cocaine. When his wallet was inventoried during the booking process, an officer discovered a dollar bill folded into a small rectangle. When the officer unfolded the dollar, a white powdered substance fell out. The substance field tested positive for cocaine. The evidence was preserved and sent to the FDLE laboratory. The laboratory tests confirmed that the substance was cocaine.

At trial, the officer who discovered the cocaine was allowed to testify without objection that she discovered the dollar bill, that the powder looked like cocaine from her experience, and that it field tested positive for cocaine. The State presented testimony from a crime laboratory analyst. Without objection, she testified that she received and tested the powder. In her expert opinion, the substance was cocaine. She identified her written laboratory report, which was admitted into evidence without objection.

After the State rested, Mr. Ortiz moved for a judgment of acquittal. His motion was based on Davis v. State, 784 So.2d 1225 (Fla. 2d DCA 2001), and Lord v. State, 616 So.2d 1065 (Fla. 3d DCA 1993), which stand for the proposition that trace amounts of cocaine on common items are not sufficient to prove knowing possession of cocaine. Only in passing, and as part of his reply to the State’s response, did Mr. Ortiz’s lawyer mention that the State did not put the cocaine into evidence. Neither G.E.G. nor any of the similar cases were discussed at that time. No one suggested that the State had some burden to explain what had happened to the cocaine after it was tested by FDLE. The trial court denied the motion for judgment of acquittal because the officer’s testimony established more than trace, amounts of cocaine on the dollar bill. My disagreement in this ease is both legal and practical. From a legal standpoint, I do not believe the defendant has preserved this issue. It is arguable that neither the officer nor the analyst should have been permitted to render an opinion about the nature of the substance before it was admitted into evidence. However, by permitting both the officer and the technician to testify that the substance was cocaine, I believe that the defendant waived his option to demand that the substance be placed in evidence. See Houston-Hult v. State, 843 P.2d 1262 (Alaska Ct.App.1992); but see Marrisette v. State, 780 So.2d 1020 (Fla. 4th DCA 2001). Moreover, G.E.G., which attempted to create a “Solomonic” solution, requires that the defendant put the trial court on notice of this issue so that the State can reopen its case, if necessary, to introduce the drugs. G.E.G., 417 So.2d at 977-78. Just as the defendant in G.E.G. failed to preserve the issue by an express objection, I believe Mr. Ortiz failed to preserve this issue.

From a practical perspective, powdered cocaine is somewhat different from the marijuana involved in G.E.G. A jury might conceivably be able to examine a quantity of alleged marijuana during its deliberations and decide that this evidence could be tobacco or some other similar substance. It requires expertise to distinguish powdered cocaine from other similar white powders. Virtually all trial judges prohibit juries from taking powdered cocaine into the deliberation room. Even if the powder is available to the jury, it will be sealed in an opaque plastic container. The defense in this case never requested any opportunity to - test the evidence to confirm the tests performed by the officer and the technician. Thus, the jury was required to rely upon the testimony of the officer and the laboratory technician when deciding that the powder was cocaine.

The only realistic argument that a defendant can make in this type of case is that the cocaine was not in his billfold and that the police obtained the illegal drug from some other source. It may be somewhat easier to make that argument if the State does not introduce the actual cocaine into evidence, but I fail to see why a prima facie case of possession is not established by the evidence presented in this case.

Although I have not performed exhaustive research on this subject, I would note that support exists for the proposition that the State can prove a prime facie case of drug possession based on the type of evidence presented in this case. See Houston-Hult, 843 P.2d 1262; Rogers v. State, 656 S.W.2d 511 (Tex.Ct.App.1983).

I would hold that, in the absence of some indication of bad faith, the State proves a prima facie case of possession of cocaine when it presents, without objection, testimony establishing a chain of custody of cocaine from the defendant to the laboratory analyst and expert testimony that the substance tested positive for cocaine. I would not permit G.E.G. to control the outcome unless the defendant expressly objected to this procedure or sought unsuccessfully to test the evidence prior to trial.


text:
    Wallace C. JONES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-145.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Reconsideration and Rehearing Denied April 30, 2003.
    Wallace C. Jones, Jr., in proper person.
    Susan Schwartz, Assistant General Counsel (Department of Corrections)(Tallahassee), for appellee.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Campbell v. Florida Parole Comm’n, 630 So.2d 1210, 1211 (Fla. 1st DCA), rev. denied, 639 So.2d 976 (Fla.1994), vacated, 514 U.S. 1094, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995), reinstated, 657 So.2d 67 (Fla. 1st DCA 1995)(observ-ing that authority of court to issue writ of habeas corpus is limited to court’s territorial jurisdiction and court lacked jurisdiction where writ would have to be executed outside court’s jurisdiction); see also Hidalgo v. State, 729 So.2d 984, 987 (Fla. 3d DCA 1999)(concluding that before seeking judicial relief, in form of additional credit for time served after sentencing, defendant would be required to exhaust administrative remedies by raising issue with Department of Corrections).


author: PER CURIAM. GREEN, J.,

text:
    Steven B. WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2203.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Steven B. Washington, in proper person.
    Charlie Crist, Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the appellant’s motion for rehearing, withdraw our prior opinion and substitute this opinion in its stead:

Based upon our recent decision in State v. Franklin, 836 So.2d 1112 (Fla 3d. DCA 2003), we affirm the lower court’s denial of the appellant’s Motion to Correct Illegal Sentence pursuant to Rule 3.800, Fla. R.Crim. P., and certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.,

specially concurring.

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution, accord Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002).


text:
    Cynthia Ann BOYKIN, Appellant, v. Robert Brian BOYKIN, Appellee.
    No. 1D02-3392.
    District Court of Appeal of Florida, First District.
    April 8, 2003.

      John S. Mills, Esq. of The Mills Firm, Jacksonville, for Appellant.
    Terrance A. Jones, Esq., Orange Park, for Appellee.
   PER CURIAM.

Appellant, the former wife, challenges an order modifying the final judgment of dissolution of marriage changing primary custody of the parties’ child from her to appellee, the former husband. The former wife raises several arguments on appeal. She first argues that the trial court erred in basing its modification of custody on the general master’s finding that the former husband met his extraordinary evidentiary burden for granting the modification, as the record is devoid of competent, substantial evidence to support a finding of a substantial and material change in circumstances. Because the general master’s report lacked competent, substantial evidence of a substantial and material change in circumstances to support a change of custody, the trial court erred in basing its final judgment modifying custody upon such. We, therefore, reverse the final judgment. As we reverse, we decline to address the former wife’s remaining issues on appeal.

On December 30, 1999, the trial court entered the final judgment of dissolution of the parties’ marriage. The final judgment provided for shared parental responsibilities between the parties and granted the former wife primary residential custody of the child. Prior to entry of the final judgment of dissolution, the former wife began residing with her boyfriend, who was the father of her second child. The former wife and the child continued to reside with the former wife’s boyfriend until December of 2000, when the former wife asked the former husband, who had remarried, to care for the parties’ child until the end of the school year as a result of the former wife’s decision to relocate due to domestic problems. During the period of time that the former husband was primarily caring for the child, the former wife, who was no longer living with her boyfriend, exercised regular visitation with the child.

On June 1, 2001, the day that the former wife had planned to pick the child up to resume primary care, the former husband filed an emergency motion for temporary custody of the minor child and a petition to modify the final judgment of the dissolution of marriage. The trial court granted the former husband’s emergency motion for temporary custody ex parte on June 1, 2001, based upon the former husband’s allegation that the former wife was involved in an abusive relationship that placed the child in danger.

The trial court referred the former husband’s motion for modification of final judgment of the dissolution of marriage as to child custody to a general master for an evidentiary hearing. During the hearing, the former husband testified as to the former wife’s poor housekeeping skills and the “atrocious” state of the former wife’s home. The former husband testified that the former wife had asked him to care for the child while the former wife “was getting her life together,” which included moving out of her boyfriend’s house and returning to school. The former wife’s father and stepmother stated in an affidavit that the former wife was not properly caring for the child, that her home was ill-kept, and that the former wife’s boyfriend had used physical violence against the former wife. The former husband provided testimony suggesting instability in the former wife’s relationship with her boyfriend. He also testified that in early December, the former wife called him stating that her boyfriend had struck her and threatened to evict her from the house. The child was in the former husband’s care at the time of this incident.

The former wife’s father testified that there had not been any significant changes in the former wife’s lifestyle before or after the divorce became final in December of 1999. The former wife’s stepmother and the former husband stated that the former wife’s living conditions began to deteriorate at the time she began residing with her boyfriend in St. Augustine, prior to December 1999. They also acknowledged that even when the parties were married, the former wife was never a good housekeeper.

On September 26, 2001, after hearing all of the evidence, the general master issued his Report for General Master Regarding Former Husband’s Motion for Modification of Final Judgment of Dissolution of Marriage. The general master made factual findings that the former wife’s residence was in disarray, her children were unkempt, and that the former husband testified that the change in the former wife’s living conditions was a developing pattern not present at the time of the divorce. The general master found that “the Wife is unstable as to her living conditions, that her judgment used was, and is, poor, and her children and residence were ill-kept,” that “the minor child ... has a close bond with both of her parents and both should remain as an integral part of her life,” and that “evidence does justify a change in custody to best protect the minor child’s best interest.”

The former wife timely filed exceptions to the general master’s report, which the trial court denied. On July 18, 2002, the trial court entered its Amended Order on Former Husband’s Motion for Modification of Final Judgment of Dissolution of Marriage, changing the primary residential custody of the parties’ minor child from the former wife to the former husband. This appeal followed.

In her first argument, the former wife contends that the former husband failed to meet his extraordinary burden of proving a substantial and material change in circumstances. We begin our analysis with the established principle that the trial court does not have the same broad discretion to modify custody that it exercises in initial determinations of custody. See Neely v. Neely, 691 So.2d 39, 40 (Fla. 1st DCA 1997); Dobbins v. Dobbins, 584 So.2d 1113, 1116 (Fla. 1st DCA 1991); Zediker v. Zediker, 444 So.2d 1034, 1037 (Fla. 1st DCA 1984); Walfish v. Walfish, 383 So.2d 274, 275 (Fla. 3d DCA 1980). The party seeking a modification of custody carries an extraordinary burden of proving both elements of a two-pronged test. The party must demonstrate that there has been a substantial and material change of circumstances since the time of the final judgment of dissolution and that the welfare of the child will be promoted by the change in custody. Young v. Young, 732 So.2d 1133, 1134 (Fla. 1st DCA 1999); Zediker, 444 So.2d at 1036. A trial court reviews a general master’s report to determine whether the report was clearly erroneous or misconstrued the law. De Clements v. De Clements, 662 So.2d 1276, 1282 (Fla. 3d DCA 1995).

In Young, this Court reversed the trial court’s order modifying custody, thereby returning custody to the former wife. 732 So.2d at 1134. The trial court had relied on the facts that the former wife had had another child out of wedlock and that the living conditions of the former wife and child were “less than ideal” to conclude that the father would be “better” for the child. Id. at 1135. This Court held that no evidence was presented that the care or living conditions provided by the former wife were detrimental to the child. Id. Similarly, in Wolfish, the Third District reversed a modification of custody where the trial court made findings that “the mother’s home had been dirty and that the children had been unkempt.” 383 So.2d at 275. The Third District determined that under such circumstances modification of custody was an abuse of the trial court’s discretion. Id.

The facts in Young are very similar to the facts here, where the former wife was also living with the father of her second child in conditions aptly described as “less than ideal.” Here, the general master made findings that the former wife’s “children and residence were ill-kept,” just as the trial courts in Young and Wolfish had. Yet, based upon these cases, such facts are not sufficient to constitute a substantial and material change in circumstances and, thus, do not support a modification of custody. See also Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997) (holding that the trial court’s conclusion that the mother’s “poor” parenting skills were a sufficient basis for modifying custody was an abuse of discretion); Kelly v. Kelly, 642 So.2d 800, 802 (Fla. 2d DCA 1994) (reversing modification of custody because evidence that the mother moved and changed jobs frequently and had lived with an abusive boyfriend was not sufficient to warrant modification without evidence that the mother was failing to meet the child’s needs); Ours v. Ours, 515 So.2d 281, 283 (Fla. 1st DCA 1987) (reversing modification of custody where there was no evidence that the mother’s live-in relationships had adversely affected her children). Therefore, while the evidence in the instant case establishes that the former wife’s home had at times been poorly kept and that her children were unkempt, these circumstances alone do not constitute a substantial and material change in circumstances, especially when the general master failed to make any findings that the child was harmed by such circumstances.

Furthermore, in alleging changed circumstances, the former husband asserted in his emergency motion for temporary custody and motion to modify custody that the change in circumstances arose from the former wife being in an abusive relationship that would cause harm to the child. However, the testimony presented at the hearing focused on the cleanliness of the former wife’s children and residence, as reflected in the general master’s findings that the former wife’s children were “dirty and unkempt” and the former wife’s home was “ill-kept.” The general master’s report briefly mentions the former wife’s relationship with her boyfriend but makes no reference to that relationship’s impact on the child. Where the trial court does not make findings regarding the allegations asserted in the petition to modify custody, those allegations have no bearing on the trial court’s decision to modify custody. See Bartolotta, 687 So.2d at 1387. Where there are no findings as to the effect of the former wife’s relationship or living conditions on her child, a substantial and material change in circumstances cannot be found. See id. at 1387. Because the trial court did not make any findings regarding the effect of the former wife’s relationship upon the child, that relationship cannot provide evidence of a substantial and material change in circumstances.

For these reasons, the trial court’s modification order, which is based upon the general master’s findings, lacks a legally sufficient basis for modifying custody as the general master’s factual findings are legally insufficient to establish the substantial and material change of circumstances required to modify primary residential custody. Accordingly, we reverse.

REVERSED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: LEWIS, J.

text:
    Linda SMITH, Appellant, v. POLK COUNTY BOARD OF COMMISSIONERS, et al., Appellees.
    No. 1D02-1368.
    District Court of Appeal of Florida, First District.
    April 16, 2003.

      Laurie Thrower Miles, of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland; Betsy E. Gallagher, and Dorothy C. Venable, of Gallagher & Howard, P.A., Tampa, for Appellant.
    Ellen H. Lorenzen, of Dixon & Loren-zen, P.A., Tampa, for Appellees.
   LEWIS, J.

Linda Smith (“claimant”) seeks review of the Judge of Compensation Claims’ (“JCC”) order modifying his initial order in which the JCC found claimant to be permanently and totally disabled as a re-suit of a 1993 industrial accident. On appeal, claimant argues that the JCC erred in basing his findings of a mistake in a determination of fact and a change in condition upon surveillance video of claimant that was taken after the initial hearing and that was introduced by the employer/carrier (“E/C”) during the modification hearing and upon claimant’s felony convictions. Because the surveillance evidence was not relevant to the issue of whether the JCC made a mistake in a determination of fact, and because claimant’s felony convictions introduced during the modification hearing constituted cumulative evidence that could have been discovered pri- or to the initial hearing and entry of the initial order, we agree that the JCC erred in basing his finding of a mistake in a determination of fact upon such evidence and reverse the modification order on this ground. As we reverse the modification order on this ground, we remand for further consideration with directions that the JCC reconsider the surveillance evidence in evaluating whether a change in claimant’s condition has occurred in view of our ruling that the JCC erred in finding a mistake in a determination of fact.

FACTUAL AND PROCEDURAL BACKGROUND

Following the initial hearing, which was conducted on February 8, 2001, the JCC, who found claimant to be truthful and credible, determined that claimant was permanently and totally disabled in an order dated March 7, 2001, which we affirmed. See Polk County BOCC, et al. v. Smith, 842 So.2d 116 (Fla. 1st DCA 2003). On October 8, 2001, the E/C filed a petition to modify the JCC’s initial order, alleging that they had newly discovered evidence that indicated that claimant’s physical abilities and emotional status were radically different from that which she testified to during the initial hearing. During the modification hearing, which the JCC conducted on February 28, 2002, the E/C presented the JCC with video surveillance of claimant that had been taken after the initial hearing on ten different days from February 28, 2001, through September 29, 2001. In the modification order, the JCC set forth that the surveillance videos showed claimant sitting and walking with ease, getting up from a sitting position on the ground with no difficulty, standing for a long period of time while braiding hair, raking the yard for a long period of time with “great vigor,” and engaging in other activities inconsistent with her testimony at both trials.

Over claimant’s objection, the E/C also introduced a certified copy of claimant’s 1997 felony convictions at the modification hearing. When asked by the JCC why they did not raise claimant’s prior convictions at the initial hearing, the E/C’s counsel replied that she really did not have an explanation. According to counsel, claimant’s credibility was not so put into issue at the initial hearing as the E/C were attempting to do at the modification hearing.

Dr. Baker, an orthopedic surgeon who testified at the initial hearing, testified via deposition that he reevaluated claimant on January 7, 2002. During this visit, claimant informed Dr. Baker that she still had back pain and could not work or participate in athletics. Her pain was aggravated by walking, standing, and sitting. Claimant could, however, walk one or two blocks. Dr. Baker found that claimant walked with an antalgic gait on her left side, that she could not heel walk, and that she had a full range of motion in her lumbar spine, hips, and knees. Claimant also had a decreased sensation on her left side at L5. Dr. Baker determined that claimant’s symptoms corresponded with his objective findings, as he had done after claimant’s first evaluation. He again diagnosed claimant as having a failed back surgery.

As to the surveillance videos, which Dr. Baker watched in their entirety, his observations of the tapes did not change his prior opinion that claimant could not engage in light-duty work on a continuous and uninterrupted basis. According to Dr. Baker, the surveillance showed claimant limping on her left side. Claimant’s behavior of rocking back and forth, which Dr. Baker viewed as a pain behavior, went along with claimant’s story that she felt better when she flexed. Regarding claimant’s raking of her yard, Dr. Baker testified that she was not using her back at all; claimant’s ability to flex forward matched her physical examination. Dr. Baker further testified that instead of sitting for long periods of time, claimant’s behavior of being on her feet and moving around matched her symptoms. He did not see anything on the tapes that he did not see during claimant’s first examination. With regard to claimant’s hair braiding, Dr. Baker testified that claimant shifted positions frequently. He ultimately testified that he saw nothing on the videos that was inconsistent with his examinations of claimant.

Dr. Gonzalez, a medical doctor specializing in psychiatry who also testified at the first hearing, testified via deposition that he reevaluated claimant on January 15, 2002. According to Dr. Gonzalez, surveillance tapes are a weak point for him because a claimant’s behavior may depend on how he or she is feeling on a particular day, the medications that the claimant took that day, or even the weather. In other words, such videos tell psychiatrists very little.

After viewing the videos, Dr. Gonzalez testified that none of his previous opinions had changed, including his opinions that claimant was depressed and that a job search would have been futile as claimant could not perform any work on a continuous and uninterrupted basis. He further opined that claimant remained the same from a psychiatric standpoint. On the videos, Dr. Gonzalez observed claimant limping and holding her back while walking, which, according to him, is not a routine way of walking. With regard to claimant’s braiding of the man’s hair, Dr. Gonzalez testified that he thought such behavior was healthy, in that it kept claimant socializing. This socializing did not diminish Dr. Gonzalez’ assessment of depression. Moreover, such behavior “fit” with a ten percent impairment rating.

Dr. Martinez, claimant’s neurologist who testified at the initial hearing, testified via deposition that he reevaluated claimant on February 2, 2002. During this visit, claimant was still complaining of low back pain radiating down both of her legs with tingling in her legs and feet. She still complained of sleep problems as well. Dr. Martinez observed claimant walking “fairly normal.” He testified that she still had tenderness in her back with muscle swelling. According to Dr. Martinez, there had not been a substantial change in claimant’s condition as compared with her 1999 visit.

As to his previous four visits with claimant, Dr. Martinez testified that he had noticed a variation in claimant’s pain level from day to day; she had good days and bad. On a good day, Dr. Martinez opined that claimant could possibly walk without a limp, bend down, or sit on the ground. When questioned about his reaction to the surveillance videos, Dr. Martinez testified that he saw no action that was inconsistent with claimant’s examination. On the days in question, claimant could have been having a good day based upon a good night’s sleep, little or no activity on the previous days, or anti-inflammatory drugs. According to Dr. Martinez, his previous opinions that claimant could not engage in light-duty work on a continuous and uninterrupted basis and that she suffered from a sixteen percent impairment rating had not changed after his viewing of the tapes.

Dr. Weller, a medical doctor who specializes in psychiatry and who testified during the initial hearing, testified via deposition that he reevaluated claimant on February 15, 2002. With regard to his opinion on the video surveillance, Dr. Weller testified that it showed what claimant had told him personally; there was nothing there that was new. Nor did the tapes contradict claimant’s medical history or his reports. Dr. Weller still opined, within a reasonable degree of medical certainty, that claimant suffered from depression and was not capable of engaging in work from a psychiatric standpoint.

Dr. McCrane, a medical doctor specializing in psychiatry who first evaluated claimant on January 29, 2002, testified via deposition that he viewed the video tapes before seeing claimant. Based upon his testing during claimant’s visit, Dr. McCrane diagnosed claimant as suffering from severe depression. According to Dr. McCrane, claimant also suffered from some histrionic personality traits.

During the modification hearing, claimant, when questioned as to her activities on the videos, repeatedly stated that those are all things that she “tries” to do. Claimant also testified that her pain level varies from day to day. Consistent with her previous testimony, claimant testified that she has problems sleeping and wakes up every hour. When asked if there was any type of work that she could do, claimant replied, “I would try to do anything.” She then testified that she did not think that she could work every day because there are days in which she cannot get out of bed.

Gerri Pennachio, the vocational expert who also testified at the initial hearing, next testified. Pennachio reevaluated claimant on January 11, 2002. Pennachio testified that claimant told her that she gets out of bed around 11:00 a.m. and does not sleep for more than an hour at a time. She does some fight straightening up and tries to do a little yard work. She also occasionally goes shopping, visits neighbors, and walks in the evenings. According to Pennachio, claimant had told her “pretty much the same thing” during her initial evaluation.

Pennachio further testified that when she saw the videos, she was astonished because of how dramatic claimant had been during her assessments. Claimant looked much better on the videos than Pennachio would have expected. According to Pennachio, she noticed only one or two days in which claimant exhibited any pain behaviors. To Pennachio, the tapes demonstrated a contradiction in claimant’s behavior. However, based on claimant’s medical information and reports, Penna-chio testified that she had not changed her initial opinion that claimant could not obtain or maintain any employment on a continuous and uninterrupted basis. Pen-nachio further testified that, from a physical standpoint, if claimant was able to do some activity every day, she could probably work part-time in a fight-duty job. However, her conclusion that claimant ultimately could not work was based on claimant’s psychiatric condition. Penna-chio testified, within a reasonable degree of vocational certainty, that there had been no change in claimant’s condition because no doctor had released claimant for work.

In the JCC’s modification order, the JCC noted that claimant displayed substantial pain behavior at the initial hearing. According to the JCC, the video surveillance showed that claimant was capable of substantially greater activity than that which she displayed at the initial hearing. Because the surveillance was conducted on numerous days over a period of several months, the JCC found that it was sufficient for him to reach a fully informed conclusion regarding claimant’s physical capabilities. The JCC concluded that, taken as a whole, the videos indicated that claimant was not credible in her live testimony at both hearings and was not forthcoming. During the modification hearing, the JCC observed that claimant showed no physical problems until she took the stand to testify, where she displayed great pain behavior, cried, and, at one point, got down on her knees and leaned against the witness stand.

In finding the physicians’ testimony to be inconsistent with the actual activities he observed on the videos, the JCC rejected the testimony. Because claimant engaged in activities with others while talking and laughing, the JCC determined that claimant’s statements to her psychiatrists were inconsistent with her behavior. The JCC also rejected Pennachio’s testimony because of her reliance on the physicians’ testimony.

The JCC concluded that he made a mistake in a determination of fact at the initial hearing. He specifically rejected his earlier finding that claimant was a truthful and credible witness. Therefore, he determined that claimant was not permanently and totally disabled at the time of the initial hearing. The JCC also found that there had been a change in claimant’s condition since the time of the first hearing as the videos clearly showed that claimant had made a substantial recovery from her 1993 injury. The JCC ordered that the initial order was thereby modified to reflect that claimant was not permanently and totally disabled as of the initial hearing, and that her claim for PTD benefits and permanent total supplemental benefits was denied. The JCC also denied claimant’s motion for attorney’s fees. This appeal followed.

ANALYSIS

Claimant argues that the JCC erred in granting the E/C’s petition to modify as the evidence produced at the modification hearing was no more than additional evidence on the issues that had been previously determined. Section 440.28, Florida Statutes (1993), provides, in pertinent part, as follows:

Upon a judge of compensation claims’ own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the judge of compensation claims may ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.

Section 440.28 was not intended to afford a claimant a vehicle to relitigate an identical issue that has been previously determined solely upon an increase in the quantum and probative force of evidence in support of a conclusion that is contrary to the conclusion reached in the prior determination. S. Bell Tel. & Tel. Co. v. Blackstock, 419 So.2d 360, 362 (Fla. 1st DCA 1982) (citing Hall v. Seaboard Mar. Corp., 104 So.2d 384, 387 (Fla. 1st DCA 1958)).

In limited situations, a petition based upon a mistake of fact may be brought when material evidence that adds something new becomes available after the entry of an order, which could not have been discovered at the time of the original hearing and entry of the original order. Blackstock, 419 So.2d at 362 (citing Hughes v. Denny’s Rest., 328 So.2d 830, 838 (Fla.1976)) (other citation omitted); see also Alachua County Adult Bet. Ctr. v. Alford, 727 So.2d 388, 391 (Fla. 1st DCA 1999) (noting that the E/C had the burden of presenting the JCC with new evidence that could not have been discovered during the earlier proceeding). However, evidence that is merely cumulative to the evidence previously offered upon an identical issue and that adds nothing new is insufficient to show a mistake of fact. Blackstock, 419 So.2d at 362.

Here, according to the surveillance video that is part of the record on appeal, the first day of the E/C’s surveillance of claimant occurred on February 28, 2001, only twenty days after the initial hearing had been conducted, and only one week before the JCC entered his initial order. There is no record evidence that the E/C conducted any surveillance in preparation for the initial hearing, notwithstanding the fact that claimant’s industrial accident occurred in 1993, and that she was placed at MMI in 1994. Nor did the E/C present any evidence as to why they could not have conducted any surveillance video of claimant in the normal course of her life in support of their arguments at the initial hearing.

A petition based upon a mistake in a determination of fact may be brought when material evidence that adds something new becomes available after the entry of the order, which could not have been discovered at the time of the original hearing and entry of the original order. Blackstock, 419 So.2d at 362. Here, because the surveillance evidence did not exist prior to the initial hearing and entry of the initial order, it did not disclose claimant’s condition prior to these occurrences. Therefore, such evidence was not relevant to the issue of whether the JCC made a mistake in a determination of fact. Furthermore, the E/C cannot utilize the provisions in section 440.28 to relitigate the issue of claimant’s permanent and total disability based solely on an increase in the quantum and probative force of evidence in support of their argument, which is contrary to the JCC’s initial determination. See id. As such, the JCC erred in basing his finding of a mistake in a determination of fact upon the surveillance evidence.

Claimant also contends that the JCC erred in finding that he made a mistake in a determination of fact at the initial hearing based upon claimant’s 1997 criminal convictions admitted at the modification hearing, as they could have been discovered prior to the initial hearing. During the modification hearing, when questioned by the JCC as to why they had not introduced the convictions at the initial hearing, the E/C’s counsel replied that she really had no explanation. She then stated that claimant’s credibility was not so put into issue at the first hearing as the E/C were attempting to do at the modification hearing. However, while claimant’s criminal convictions were admissible for the purpose of determining claimant’s credibility at the modification hearing, because claimant’s criminal convictions could have been discovered prior to the time of the initial hearing and entry of the initial order, such evidence was not admissible for purposes of the JCC’s finding that he made a mistake in a determination of fact at the initial hearing. See Housing by Vogue v. Caswell, 421 So.2d 556, 558 (Fla. 1st DCA 1982) (holding that evidence regarding an individual’s job status could have been discovered at the time of the original hearing). Accordingly, because the JCC erred in basing his finding of a mistake in a determination of fact upon both the surveillance video and claimant’s criminal convictions, we reverse the modification order as to this finding.

Turning now to the issue of a change in condition, the party claiming such a change must demonstrate by new and positive evidence that the claimant’s condition has changed so that the conditions that were the foundation of the prior order no longer operate. See Thatcher Glass Co. v. Joseph, 424 So.2d 68, 69 (Fla. 1st DCA 1982). Modification based upon a change in condition is distinguishable from modification for mistake of fact as an error or mistake of fact refers to the initial or former determination, while modification based upon a change in condition refers to events happening after an earlier determination or adjudication. See Agrico Chem. Co. v. Tucker, 511 So.2d 672, 673-74 (Fla. 1st DCA 1987). When ruling on a modification petition, it is appropriate in a proper case for a JCC to give greater weight to physical evidence and lay testimony than he or she accords to the experts’ scientific opinions. Jeffers v. Pan Am. Envelope Co., 172 So.2d 577, 578 (Fla.1965). This Court reviews the JCC’s modification as a result of a change in appellant’s condition for competent, substantial evidence. See Stevens v. Pursell’s Wrecker & Road Serv., 645 So.2d 13, 15 (Fla. 1st DCA 1994).

As to his determination of a change in appellant’s condition, the JCC found that claimant’s condition had changed since the time of the first hearing and that the surveillance videos clearly showed that claimant had made a substantial recovery from her work-related injury. The JCC then modified his initial order to reflect that claimant was not permanently and totally disabled as of the date of the initial hearing and that her claim for PTD benefits was denied. However, the JCC’s modification date is in conflict with the definition of a change in condition, which refers to events occurring after the initial determination, while a finding of a mistake in a determination of fact refers to the initial determination. See Tucker, 511 So.2d at 673-74.

CONCLUSION

Accordingly, because the JCC found both a mistake in a determination of fact and a change in condition, findings that appear to be inconsistent with each other, and because we conclude that the JCC erred in finding a mistake in a determination of fact, we reverse the modification order. As such, we remand for further consideration with directions that the JCC reconsider the surveillance evidence in evaluating whether a change in claimant’s condition has occurred in view of our ruling that the JCC erred in finding a mistake in a determination of fact. Upon remand, the JCC is free to use claimant’s criminal convictions in determining claimant’s credibility at the modification hearing. If, upon remand, the JCC concludes that appellant is no longer permanently and totally disabled warranting the termination of her PTD benefits, the JCC is directed to specify the date in which the change occurred for purposes of calculating claimant’s PTD benefits prior to such date.

REVERSED and REMANDED with directions.

BARFIELD and BROWNING, JJ., CONCUR.


text:
    Stevie A. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3636.
    District Court of Appeal of Florida, First District.
    April 16, 2003.

      Nancy A. Daniels, Public Defender; Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal, filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the appellant challenges his third-degree felony conviction for workers’ compensation fraud and the sentence imposed thereupon. Specifically, the appellant seeks review of the preserved and dispositive issue of the trial court’s denial of the appellant’s motion for discharge under the speedy trial rule. See Fla. R.Crim. P. 3.191. Because we conclude that the trial court erred when it denied the motion for discharge, we reverse the appellant’s conviction and sentence.

■ While the appellant was serving an unrelated prison sentence in Bay County, the Gadsden County trial court found probable cause to issue a warrant for the appellant’s arrest on charges of workers5 compensation fraud. An investigator from the Department of Insurance traveled to Bay County and served the arrest warrant on the incarcerated appellant. The investigator then read the appellant his Miranda rights, after which the appellant elected not to speak. Because the appellant would not talk to the investigator, she left the warrant with the appellant’s prison counselor and left the prison without fingerprinting or booking the appellant. The investigator never actually filed the arrest paperwork.

When the appropriate time passed without further prosecution, the appellant filed a notice of expiration of speedy trial period and moved for discharge. The appellant’s motion for discharge was denied on the basis that the investigator’s actions did not constitute an arrest. The appellant also filed a petition for writ of prohibition with this Court. Although the appellant’s petition was denied on procedural grounds, see Brown v. State, 795 So.2d 178 (Fla. 1st DCA 2001), the denial of a petition for writ of prohibition in which a speedy trial claim is raised does not prevent the claim from being raised on direct appeal. See Cappetta v. State, 471 So.2d 1290, 1291 (Fla. 3d DCA 1985), review den. 480 So.2d 1296 (Fla.1985).

The trial court’s ruling presents mixed questions of law and fact. Therefore, the trial court’s ultimate ruling is subjected to de novo review, but the court’s factual findings must be sustained if supported by competent substantial evidence. See State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001). Applying this standard, we conclude that the appellant was indeed arrested on May 18, 2000, and that his motion for discharge should have been granted.

Florida’s speedy trial rule is triggered when a person is arrested as a result of the criminal conduct which gave rise to the crime charged. See Fla. R.Crim. P. 3.191(a)(4). Formalities such as booking and fingerprinting are not necessary to begin the speedy trial clock. See Williams v. State, 757 So.2d 597, 598 (Fla. 5th DCA 2000). In fact, only four elements are necessary for an arrest to trigger the speedy trial rule. See Brown v. State, 515 So.2d 211, 212 (Fla.1987).

First, the arresting agent must have intended to effect an arrest under a real or pretended authority. Id. In this case, the investigator conceded that she has arrest powers and that she intended to arrest the appellant. Second, the arresting agent must have actually or constructively seized or detained the person to be arrested. Id. We conclude that the appellant was constructively detained because, although the appellant’s actual custody remained vested in the Department of Corrections, the appellant had no option but to submit to the investigator’s visit and to accept the arrest warrant from her. Third, the arresting agent must have communicated to the person being arrested an intent to arrest the person. Id. Again, the investigator conceded that she told the appellant that she was there to serve an arrest warrant. Finally, the fourth requirement is that the person being arrested must have understood that it was the intention of the arresting agent to arrest and detain him then and there. Id. The appellant testified that he did believe that he had been arrested. All four prongs of the Brown test have been met. Therefore, we hold that the appellant’s speedy trial clock began to run when the investigator served the arrest warrant on him in the prison. See also, e.g., State v. Fives, 409 So.2d 221, 221 (Fla. 4th DCA 1982).

Because the appellant was not brought to trial in a timely fashion, the appellant’s motion for discharge should have been granted and his discharge ordered. We accordingly reverse the appellant’s conviction and sentence.

REVERSED and REMANDED.

BARFIELD, WOLF and DAVIS, JJ., CONCUR.


text:
    Jose Luis GARZA, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1633.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    Jose Luis Garza, pro se.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

BARFIELD, WOLF and DAVIS, JJ., concur.


text:
    Salem LEFILS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-880.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    Salem Lefils, Indiantown, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003); Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992).

SHARP, W., PETERSON and SAWAYA, JJ., concur.


text:
    Juan BARRIERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-877.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    Juan Barriera, Chipley, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. Bellamy v. State, 834 So.2d 897 (Fla. 5th DCA 2002).

THOMPSON, C.J., PETERSON and MONACO, JJ., concur.


text:
    Jesse James HILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-846.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    Jesse James Hill, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

SHARP, W., PETERSON and GRIFFIN, JJ., concur.


text:
    Roger MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-514.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    Roger Morrison, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gorby v. State, 819 So.2d 664 (Fla.2002); Robinson v. State, 692 So.2d 883 (Fla.1997); Wright v. State, 834 So.2d 879 (Fla. 3d DCA 2002); Chavez v. State, 698 So.2d 284 (Fla. 3d DCA 1997).

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


text:
    Parese WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3075.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and SAWAYA, JJ., concur.


text:
    Keith Karlton KEENE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2995.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

THOMPSON, C.J., PETERSON and MONACO, JJ., concur.


text:
    Alonzo HIGHTOWER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2780.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Alonzo W. Hightower, Zephyrhills, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and TORPY, JJ., concur.