author: SHARP, W., J.

text:
    Lawrence Dale KIDD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3196.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Kidd appeals from his judgment and sentence for having committed a lewd and lascivious battery against his then 14 year old son’s, 13 year old girlfriend, a second degree felony. The trial court sentenced him as an habitual felony offender to 30 years in prison, and designated him as a sexual predator pursuant to section 775.21(4)(a). He raises two points on appeal: the prosecutor made improper comments, meriting a new trial and he was improperly designated as a sexual predator. We find the first point without merit but remand for a hearing on the second point.

At the close of the trial, defense counsel outlined the victim’s less than commendable behavior which led to the circumstances in which the defendant was able to perpetrate the crime against her: she telephoned her boyfriend at midnight and talked to him for an hour and a half; she sneaked out of her house to meet her boyfriend and the defendant and others; she consumed a large quantity of alcohol and smoked pot, becoming very sick. During his closing argument, the prosecutor characterized defense counsel’s argument as having suggested the victim should not be believed because she was acting “trashy so she got what she deserved.”

Defense counsel objected to this characterization. The trial court sustained the objection. However, defense counsel did not ask for a curative instruction, nor did he move for a mistrial.

In order to preserve the issue of improper comment by a prosecutor for appellate review, defense counsel must make a contemporaneous objection to the improper comment and if the objection is sustained, counsel must move for a new trial or mistrial. Holton v. State, 573 So.2d 284 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991); Pedroza v. State, 773 So.2d 639 (Fla. 5th DCA 2000).

However, we reach this issue because Kidd filed a pro se motion for new trial, raising this issue, and the trial court addressed it at the sentencing/motions hearing following the trial. At the hearing, defense counsel adopted Kidd’s motion and argued the prosecutor’s improper comments merited a new trial. Thus, Kidd avoided the treatment of his pro se motion as a “legal nullity,” under the theory that a criminal defendant who is represented by counsel, cannot file pro se pleadings on his or her behalf, and the court must disregard them.

While we reach this point, we nevertheless affirm the trial court’s ruling. The comments were not so egregious as to merit a new trial and we find no abuse of discretion in denying Kidd a new trial. See McCarthy v. State, 773 So.2d 88 (Fla. 2d DCA 2000), rev. denied, 790 So.2d 1105 (Fla.2001); Perez v. State, 750 So.2d 161 (Fla. 3d DCA 2000).

With ? regard to the court’s designation of Kidd as a sexual predator, we conclude Kidd’s argument that he did not qualify for the designation because he had not been convicted of a prior felony may have merit. Kidd was convicted of a second degree felony in this case. The designation requirements of the statute are set forth in section 775.21(4)(a)l.b. This subsection requires proof of a prior felony conviction or plea to a prior felony before designating a defendant a sexual predator. See Nicholas v. State, 844 So.2d 826 (Fla. 5th DCA 2003).

Kidd filed a pro se motion to correct his sentence regarding the impropriety of the sexual predator designation within the time required for filing motions pursuant to Florida Rule of Criminal Procedure 8.800(b). The trial court denied relief, erroneously relying on section 775.21(4)(a)l.a., which applies to capital, life, or first degree felonies, and does not require proof of a prior felony. Because the court relied on the wrong subsection, it did not take testimony or evidence regarding the existence or non-existence of a prior felony in Kidd’s past.

The problem then arises in this case because Kidd’s defense counsel failed to join or adopt Kidd’s pro se motion, or to file one on his own. As we have already noted, ordinarily such a motion filed by a defendant while represented by counsel would be considered unauthorized and disregarded by the courts. However, for the reasons discussed below, we decline to treat Kidd’s pro se motion as a “legal nullity” and address the issue on the merits.

This court has chosen to treat a claimed error in making a sexual predator designation as an “error that occurs as part of the sentencing process,” whether or not it is actually a “sentence or a punishment,” and therefore, something that is properly addressed by the trial judge that makes the designation in the first place. Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003). This is contrary to the position taken by two of our sister courts who view sexual predator designations as civil in nature. See Smeltz v. State, 818 So.2d 588 (Fla. 2d DCA 2002) (trial court could treat a defendant’s rule 3.800 motion to correct illegal sentence attacking his sexual predator designation as a motion for relief from judgment under rule 1.540); Jackson v. State, 801 So.2d 212 (Fla. 2d DCA 2001) (claim that trial court erred in designating a defendant as a sexual predator could not be raised pursuant to either the rule governing motion to correct sentence or rule governing motions for post-conviction relief); Szuch v. State, 780 So.2d 290 (Fla. 4th DCA 2001) (order denying appellant’s post-conviction motion affirmed without prejudice to appellant to file a separate civil suit seeking injunctive or declaratory relief from his sexual predator designation).

At this point in time, how a defendant seeking to challenge a sexual predator designation should proceed, has yet to be clarified under the rules or case law. Under these circumstances, we are reluctant to apply the rule prohibiting hybrid representation in criminal matters to the facts of this case. To do so would disadvantage Kidd and like circumscribed defendants, by circumscribing their appellate remedies in an area that is not clearly criminal or civil.

In Nicholson, we took the position that a challenge to a sexual predator designation should be considered in the context of the sentencing process, be it a civil or a criminal matter, and that rule 3.800(b) applies. A timely motion was made in this case, which satisfies rule 3.800(b) and it was ruled on by the trial court. We conclude the correctness of the sexual predator designation was preserved for appellate purposes.

Because the trial court applied the wrong subsection to Kidd, we remand this case to the trial court to determine the applicability of the sexual predator designation to Kidd, pursuant to the proper subsection which requires proof of a prior felony conviction or plea to a felony.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

PETERSON and PLEUS, JJ., concur.

      . See § 800.04(4)(a), Fla. Stat.

      . Logan v. State, 846 So.2d 472 (Fla.2003); Smith v. State, 758 So.2d 741 (Fla. 5th DCA 2000).


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Terry IVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3932.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

This is the appeal of a judgment and sentence based on appellant’s contention that the trial court erred in denying his motion to strike a juror for cause. Because the record does not support the trial court’s decision to deny the challenge for cause, we reverse.

Terry Ivey [“Ivey”] was charged with armed burglary of a dwelling and obstructing an officer without violence. After a jury trial, the jury found Ivey guilty as charged.

At trial, during the State’s voir dire examination, the following occurred:

[State]: All right. The last thing I want to talk to you about is ability to convict. Some people for religious reasons, philosophical reasons, feel like they don’t want to sit in judgment of another person’s actions. And I want to be clear here. You are sitting in judgment of another person’s actions. You are determining facts. You don’t determine sentence. You don’t pass judgment on a person. You are determining facts and whether the state’s proved its case. Does anybody feel like for religious reasons, philosophical reasons, any kind of reason that they just really can’t sit and determine facts?
[Juror Anthony]: I don’t want to do that. I don’t think I should have to determine somebody if they are guilty or not guilty.

Later on in voir dire examination, Ivey’s defense counsel had the following dialogue with Juror Anthony:

[Defense counsel]: I know that you stated that you don’t think that you should be the one to determine guilt, that’s a moral objection that you have, ma'am?
[Juror Anthony]: Yeah.
[Defense counsel]: Based on what I stated earlier that it’s [the State’s] job to present [its] case and prove [its] case beyond and to the exclusion of a reasonable doubt, ultimately it would be up to Judge Monaco to determine what sentence would be appropriate in the case, could you be fair and impartial to both [the State] and Mr. Ivey?
[Juror Anthony]: I don’t know. I don’t know.

During jury selection, the following exchange was had:

[Defense counsel]: Judge, we would challenge Ms. Anthony for cause. She doesn’t think that she should determine guilt, doesn’t know if she would be fair and impartial.
[Court]: What’s the State’s say on it?
[State]: I thought actually [Defense counsel] rehabilitated her.
[Court]: I did, too, that’s why I’m asking.
[State]: I object.
[Court]: Yeah, I’m not going to grant her on that basis.
[Defense counsel]: We would excuse Ms. Anthony, Judge.

Subsequently, when discussing Juror Kim-mel, defense counsel requested an additional peremptory strike since the court denied his motion for cause on Juror Anthony. The court denied this request and Juror Kimmel was accepted by the State to become a member of the jury panel. Before the jury was sworn in, defense counsel objected to the jury panel based on the denial of the challenge for cause and the denial of the additional peremptory strike. This objection was also denied.

Ivey urges on appeal that the trial court erred in failing to strike Juror Anthony for cause because during voir dire examination she stated that she did not think she should determine guilt and she did not know if she could be fair. Ivey further argues that it was also reversible error to deny his motion to strike Juror Anthony for cause without granting him an additional peremptory challenge to strike Juror Kimmel. For its part, the State concedes what words were spoken, but argues that, unlike the appellate court, the trial court could observe the body language and inflection in Juror Anthony’s statements and may have found rehabilitation there.

Juror competency is determined by whether or not the juror “can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.” Kearse v. State, 770 So.2d 1119, 1128 (Fla.2000); Lusk v. State, 446 So.2d 1038 (Fla.1984). If there is reasonable doubt as to whether the juror has the ability to be impartial, that juror is incompetent and must be excused for cause. Id.; Bryant v. State, 656 So.2d 426 (Fla.1995).

A trial court is afforded great discretion in ruling on challenges of jurors for cause. Gore v. State, 706 So.2d 1328, 1332 (Fla.1997) (citing Pentecost v. State, 545 So.2d 861 (Fla.1989)). An appellate court will not overturn a trial court’s determination of competency in the absence of “manifest error.” Smith v. State, 699 So.2d 629 (Fla.1997). Manifest error occurs when “the trial judge fails to excuse a juror for cause when the juror responds with equivocal or conditional answers, thus raising a reasonable doubt as to whether the prospect possesses the requisite state of mind necessary to render an impartial decision.” Salgado v. State, 829 So.2d 342, 344 (Fla. 3d DCA 2002). A trial court’s decision to deny a challenge for cause will be upheld on appeal if there is competent record support for that decision. Gore, 706 So.2d at 1332-1333; Van Poyck v. Singletary, 715 So.2d 930 (Fla.1998). This is because “the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record.” Smith, 699 So.2d at 635-636 (citing Taylor v. State, 638 So.2d 30, 32 (Fla.1994)). Although we readily cede to the trial court the primacy of personal observation, these decisions are not completely unreviewable. Here, the record shows clearly that the answers given by Juror Anthony were equivocal: “I don’t know. I don’t know.” It is difficult to imagine how any observation of the witness as she spoke these words could convert them into an affirmative response or support the State’s claim of rehabilitation. We are bound, therefore, to reverse and remand for a new trial.

REVERSED and REMANDED.

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


author: PLEUS, J.

text:
    BEVERLY ENTERPRISES-FLORIDA, INC., Petitioner, v. Celia Mae LANE, Respondent.
    No. 5D03-2900.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    Daniel S. Green and Melody M. Dietsch of UUman & Kurpiers, L.L.C., Tampa for Petitioner.
    No Appearance for Respondent.
   PLEUS, J.

Beverly Enterprises-Florida, Inc., the defendant in a nursing home negligence action, seeks certiorari review of a non-final order reinstating the underlying action. The complaint was dismissed without prejudice for failure to prosecute. See generally Fla. R. Civ. P. 1.420(e). The circuit court later reversed its ruling and reinstated the action.

By nullifying its earlier ruling and reinstating the action, the trial court effectively denied Beverly’s motion to dismiss for lack of prosecution. An order which denies a motion to dismiss for lack of prosecution is not reviewable by certio-rari, but that issue can be raised on plenary appeal. See Lawrence v. Orange County, 404 So.2d 421 (Fla. 5th DCA 1981); Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980). The inconvenience and expense of proceeding to trial after the denial of a motion to dismiss does not constitute the type of material harm or irreparable injury for which certiorari relief is available. Unnecessary litigation will always be expensive and inconvenient, but the authorities are clear that such harm does not justify certiorari relief. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987).

An order setting aside a dismissal of an action for failure to prosecute is a non-appealable, non-final order. See Cape Royal Realty, Inc. v. Kroll, 804 So.2d 605 (Fla. 5th DCA 2002). Whether the trial court erred in reconsidering its earlier ruling and in reinstating the underlying action can likewise be raised on appeal from the final judgment. We therefore deny the petition without prejudice to raise these issues on a plenary appeal.

PETITION DENIED.

GRIFFIN and TORPY, JJ., concur.

      . Certain orders denying a motion to dismiss are reviewable by extraordinary writs, but the instant case does not involve any of these exceptions to the general rule. See, e.g., Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla. 5th DCA 1995) (recognizing certiorari as a remedy to review order denying motion to dismiss complaint for failure to comply with medical malpractice pre-suit requirements); Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984), rev. denied, 464 So.2d 555 (Fla.1985) (petition for writ of certiorari was treated as a petition for writ of prohibition to review order denying motion to dismiss that was based on statute of limitations defense).


author: LEWIS, J. ALLEN, J.,

text:
    Kenneth STEWART, Appellant, v. CRS RINKER MATERIALS CORP., Appellees.
    No. 1D02-1469.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.

      Mark Dickstein, Esq. of Feldman, Dick-stein & Getz, LLP, North Miami Beach; Jay M. Levy, Esq. of Jay M. Levy, P.A., Miami, for Appellant.
    Frank Angione, Esq. and April R. Bur-nette, Esq. of Benson, McGrath, Douglas, Angione, Phillips & Ross, P.A., Ft. Laud-erdale, for Appellees.
   LEWIS, J.

Claimant, Kenneth Stewart, seeks review of a workers’ compensation order and argues that the Judge of Compensation Claims (“JCC”) erred in denying temporary partial disability (“TPD”) benefits for the time periods from November 1, 2000, through December 10, 2000, and from January 4, 2001, through April 24, 2001, because the JCC improperly based her denial solely upon appellant’s termination from his employment. Because the JCC relied solely on claimant’s termination as a basis for the denial of TPD benefits for these time periods and failed to consider whether claimant satisfied his burden of establishing a causal connection between his work-related injury and his loss of earning capacity after his termination, we reverse the order and remand with directions. Claimant also contends that the JCC erred in denying TPD benefits for the time period from July 21, 2001, through September 23, 2001, because the JCC did not find that claimant’s relocation during this period was the product of an improper motivation on his part. We agree and, therefore, reverse the JCC’s denial of TPD benefits for this time period as well.

Claimant, who worked as a plant laborer for CSR Rinker Materials Corporation (“Employer”), which is located in West Palm Beach, Florida, suffered a compensa-ble work-related injury on October 5, 2000, when a heavy truss “slammed [him] to the ground.” During the hearing before the JCC, claimant testified that his plant laborer position had consisted of cutting steel, building trusses, loading and unloading trucks, and assisting in other work. While claimant initially earned $7.50 an hour in this position, he eventually began earning $8.00 an hour.

According to claimant, as a result of his work-related accident, he suffered serious pain down his back, buttocks, and through his left leg. On the day of the accident, claimant sought medical treatment and was prescribed pain medication. Claimant subsequently underwent an MRI and received physical therapy. Claimant further testified that, while he continued to work with the Employer after his work-related accident, the Employer modified his responsibilities to light-duty work such as cleaning the shop. Claimant worked for the Employer for approximately three weeks after his work-related accident until the Employer terminated him on November 1, 2000, for excessive absenteeism. According to claimant, his low back complaints worsened after his termination.

Subsequent to his termination, claimant unsuccessfully applied for different positions with three hospitals and various fast food restaurants and for vocational training. On May 23, 2001, Ocean Tree Condominium (“Ocean Tree”) initially hired claimant as a maintenance technician but eventually reassigned him to a housekeeping position as a result of his work restrictions. In July 2001, claimant relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” While there, claimant worked for the city of Pensacola as a laborer for eight hours one day and four hours the next, earning $6.25 an hour. Due to his inability to perform his job duties, claimant quit his job after those two days. Claimant returned to West Palm Beach in September 2001 and resumed working for Ocean Tree, where he was working at the time of the hearing, earning $9.50 an hour.

Via deposition, Dr. Musso testified that, after evaluating claimant on October 30, 2000, and conducting an MRI, his opinion was that claimant suffered from a lumbar disk herniation at L5-S1. Dr. Musso recommended that claimant begin a physical therapy program, placed claimant on light-duty work status, and maintained him on such after claimant’s November 13, 2000, visit. According to Dr. Musso, when he first evaluated claimant, claimant was on light-duty work status, with a maximum lifting restriction of twenty pounds, and was unable to return to work at that time. After recommending that claimant undergo a functional capacity evaluation (“FCE”) and after receiving those test results, Dr. Musso placed claimant at maximum medical improvement (“MMI”) on January 4, 2001, with a 7% permanent physical impairment rating. At that time, Dr. Musso did not place any work restrictions on claimant due to claimant’s uncoop-erativeness with the FCE. However, when Dr. Musso saw claimant on March 15, 2001, he “put him back to work” on modified-work duty.

Dr. Rubenstein, who performed claimant’s FCE on December 20, 2000, and who testified via deposition, opined that claimant was able to work in a sedentary to light-duty capacity. In his medical report, Dr. Rubenstein also opined that claimant was unable to return to his previous job description. Dr. Krost, who initially saw claimant on April 25, 2001, testified, via deposition, that claimant suffered a low back injury and concurred with claimant’s light-duty work status. While Dr. Krost did not believe that claimant had reached MMI at that time, he subsequently placed claimant at MMI on October 17, 2001. As a result of his Independent Medical Evaluation, which he conducted on May 17, 2001, Dr. Reuter opined that claimant suffered from cervical strain/sprain, lumbar strain/ sprain, lumbar disc herniation, and radicu-litis. Dr. Reuter further opined that claimant was able to work in a modified light-duty status with a lifting restriction of no more than fifteen pounds and with significant restrictions as to bending, sitting, and stooping.

While in Pensacola, claimant was authorized to be seen and treated by Dr. Buchalter, who agreed with a recommendation that claimant undergo epidural steroid injections and that he continue on light-duty work status. Dr. Buchalter released claimant to full-time maintenance work on a light-duty work status pending the completion of the injective therapy. He opined that claimant had not yet reached MMI.

In her order, the JCC set forth that, while the Employer terminated claimant on November 1, 2000, for violation of the Employer’s Absentee Policy, claimant could still be entitled to benefits if he satisfied the burden of showing that his work-related injury contributed to his wage loss after the termination. The JCC also set forth that, although a job search was no longer a requirement for TPD benefits, here, claimant testified that he unsuccessfully applied for various jobs following his termination. After setting forth the pertinent facts, the JCC determined that:

Claimant had demonstrated his earning capacity in the job with the Employer prior to his termination for excessive absenteeism. But for his excessive absences and tardiness, he would have remained an Employee of the Employer. Therefore, I find that for the period of November 1, 2000, through December 10, 2000, the Claimant failed to demonstrate that his loss of earnings was caused by an incapacity to earn because of the work injury, either in the job he had with the Employer or any other Employment. Accordingly, the claim for [TPD] benefits ... is denied.

With regard to the time period from January 4, 2001, through April 24, 2001, the JCC rejected Dr. Musso’s initial opinion that claimant reached MMI on January 4, 2001. According to the JCC, she found Dr. Musso’s revised March 15, 2001, opinion of modified duty to be more consistent with the FCE results and the fact that claimant’s work injury warranted an impairment rating. The JCC then set forth that:

Therefore, I find that for the period of January 4, 2001, through March 15, 2001 and thereafter through April 24, 2001, the date before the Claimant was first seen by Dr. Krost, the Claimant was able to work with restrictions. However, I find that the Claimant failed in his burden to show that his loss of earnings for the period was caused by an incapacity because of the work injury. As I previously found, post-October 5, 2000, the Claimant demonstrated an earnings capacity with the Employer herein until he was terminated for cause on November 1, 2000. For the period prior to the termination, the only evidence put forth by the Claimant with respect to his diminished earnings, was lost time for attendance at doctor appointments and physical therapy, and allegedly being sent home due to side effects experienced from pain medication. He gave no testimony of any injury related physical problems in performing his light duty job of cleaning the shop.

Consequently, the JCC denied TPD benefits for this time period.

As to claimant’s claim for TPD benefits for the time period from July 21, 2001, through September 23, 2001, the JCC found that claimant remained in his position at Ocean Tree until July 20, 2001, when he relocated to Pensacola as a result of family/marital problems. Based upon claimant’s unrefuted testimony of physical problems experienced during his brief attempt at working for the city of Pensacola and Dr. Buchalter’s objective examination findings, the JCC awarded claimant TPD benefits for the two days claimant worked. The JCC then concluded that:

Therefore, but for his relocation to North Florida, [claimant] would have maintained the earning capacity he had established with Ocean Tree Condominium. Therefore, his loss of earnings after his employment with the city of Pensacola and before resuming work at Ocean Tree Condominium, is not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to. I therefore find no entitlement to disability benefits for the period of July 21, 2001 through September 23, 2001, with the exception of the [TPD] benefits I award for the Claimant’s loss of earnings with the city of Pensacola, which is two days, twelve hours at $6.25 per hour.

This appeal followed.

Claimant first contends that the JCC erred in denying TPD benefits for the periods from November 1, 2000, through December 10, 2000, and from January 4, 2001, through April 24, 2001, because the JCC improperly based her denial solely upon claimant’s termination from his employment with the Employer. Workers’ compensation benefits are not precluded merely because some portion of the wage loss is attributable to a reason unrelated to the injury, such as economic factors, a discharge for good cause, or seasonal layoffs. Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 683-84 (Fla. 1st DCA 1997) (en banc) (citations omitted). “A claimant may still be entitled to benefits if the compensable injury left the claimant in a condition which precludes employment within his or her abilities at his or her prior wage.” Id. at 684 (citation omitted). Even though a claimant may be terminated from his or her employment for insubordination, the claimant may still be entitled to benefits if he or she satisfies the burden of demonstrating that the injury contributed to the wage loss after the termination. Jefferson v. Wayne Dalton Corp., 793 So.2d 1081, 1084 (Fla. 1st DCA 2001) (citing Betancourt, 693 So.2d at 684) (emphasis added). Whether a claimant has demonstrated a causal connection between his or her compensable injury and the wage loss is a question of fact to be determined by the JCC upon a consideration of the totality of the circumstances. Id. (citations omitted).

In her order, the JCC, citing Jefferson as authority, acknowledged that claimant could still be eligible for TPD benefits if he satisfied his burden of showing that his work-related injury contributed to his wage loss after his termination. The JCC also set forth the pertinent facts including claimant’s light-duty work status and his unsuccessful job search. However, the JCC then denied claimant’s claim for TPD benefits for the period between November 1, 2000, and December 10, 2000, finding that, but for claimant’s absences and tardiness, he would have remained the Employer’s employee. With regard to the JCC’s denial of TPD benefits for the period between January 4, 2001, through April 24, 2001, the JCC similarly referred to claimant’s termination. The JCC also found that, with respect to the period prior to claimant’s termination, claimant gave no testimony of any injury-related physical problems in performing his light-duty job of cleaning the Employer’s shop.

Such conclusory findings regarding claimant’s termination contradict the JCC’s acknowledgment of the pertinent authority. Moreover, the JCC’s focus on what the evidence established prior to claimant’s termination demonstrates the significance that the JCC placed upon claimant’s termination in denying TPD benefits for periods subsequent to the termination. Once the JCC determined that claimant had been terminated, the question then became whether claimant satisfied his burden of showing a causal connection between his injury and loss of earning capacity after his termination. See Jefferson, 798 So.2d at 1084; Betancourt, 693 So.2d at 684. As such, the JCC’s finding that claimant was terminated for reasons unrelated to his work-related injury did not fully resolve claimant’s alleged entitlement to TPD benefits. See Ramos v. Wal-Mart Store, # 0817, 789 So.2d 1240, 1240 (Fla. 1st DCA 2001). Accordingly, we reverse the JCC’s order to the extent that the JCC denied TPD benefits for the periods from November 1, 2000, through December 10, 2000, and January 4, 2001, through April 24, 2001, and remand with directions to reconsider the evidence, such as claimant’s continued light-duty work status and his unsuccessful job search, in determining whether claimant is entitled to TPD benefits for these time periods in light of this opinion.

In his second issue on appeal, claimant avers that the JCC erred in denying TPD benefits for the time period from July 21, 2001, through September 23, 2001, because the JCC did not find that his relocation to Pensacola was the product of an improper motivation on his part. In support of his averment, claimant relies upon our decision in Hurley v. Stuart Fine Foods, 687 So.2d 310, 310-11 (Fla. 1st DCA 1997), wherein the claimant appealed the JCC’s order denying her claim for TPD benefits from August 2, 1994, and continuing and argued that the JCC erroneously found that the claimant had voluntarily limited her income by refusing a modified cashier’s position. In our opinion, we set forth that the JCC found that the claimant moved in with her parents in a different Florida city for financial reasons. Id. at 311 n. 3. We also determined that the JCC made no finding that the claimant’s move was the result of “ ‘improper motivation’ ” and that “ ‘there [was] no evidence that claimant’s relocation following h[er] injury was motivated by a desire to avoid work.’ ” Id. at 311 (quoting Genelus v. Boran, Craig, Schreck Constr. Co., 438 So.2d 964, 966 (Fla. 1st DCA 1983)). As such, we held that the JCC’s denial of benefits because the claimant voluntarily moved, without finding that the move was the product of improper motivation, had to be reversed. Id.; see also Dep’t of Transp. v. Montero, 568 So.2d 65, 65 (Fla. 1st DCA 1990) (holding that an injured worker is not confined to living in the pre-injury location and that, absent an improper motivation, a departure therefrom does not preclude compensation benefits); Jackson, 461 So.2d at 248-49 (affirming the JCC’s order granting the claimant benefits on the basis that her wage loss was related to her industrial injury and determining that, although the claimant obtained and accepted another job offer within Florida, her sudden and temporary departure from the state, which was due to her fiancé suffering a life-threatening accident in North Carolina, was not motivated by any desire to avoid work and did not show a lack of due diligence or voluntary limitation of income precluding an award of wage loss benefits).

Here, claimant’s hearing testimony established that he relocated to Pensacola because he and his wife were having marital problems and because he desired to be with his family. In denying claimant’s claim for TPD benefits for this time period, the JCC found that, but for claimant’s relocation to Pensacola, he would have maintained his earning capacity that he had established working for Ocean Tree. Similar to the JCC’s finding in Hurley, the JCC in the instant case found that claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work at Ocean Tree was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to,” and found no entitlement to disability benefits for this period, with the exception of the two days claimant worked in Pensacola. However, based upon the foregoing authority, because the JCC did not find that claimant was guided by an improper motivation, i.e., a desire to avoid work, in relocating to Pensacola, we also reverse the denial of TPD benefits for this time period.

REVERSED and REMANDED with directions.

ERVIN, J., CONCURS; ALLEN, J., DISSENTS WITH WRITTEN OPINION.

ALLEN, J.,

dissenting.

The judge of compensation claims correctly recited in her order that the relevant issue for her determination as to the claims for temporary partial disability benefits was whether the industrial injury was causally related to the claimant’s loss of wages. The judge’s order also reflected her understanding that neither the claimant’s termination from his employment due to his misconduct nor his later resignation from another job precluded him from receiving temporary partial disability benefits for the periods following the termination and resignation. But the judge properly recognized that the claimant would still be required to prove that the wage loss during these periods was caused by the industrial injury, rather than merely by the termination or resignation.

After considering the evidence presented, the judge found that the industrial injury did not cause the wage loss during the relevant periods. The judge found instead that the wage loss for the first two periods was caused by the termination and that the wage loss diming the third period was caused by the resignation. The majority does not suggest that the evidence presented to the judge precluded these findings. But the majority nevertheless reverses the denial of these claims and remands for further consideration because the judge observed in the course of making her rulings that, but for the termination and resignation, the claimant would have been working during all of the relevant periods of time. The majority perceives this observation as somehow inconsistent with the judge’s duty to determine whether the industrial injury contributed to the wage loss. I disagree.

I do not perceive the judge’s observation as reflecting any misunderstanding as to the relevant law. It seems to me that it merely reflects a truism logically flowing from the finding that the termination and resignation, and not the industrial injury, were the causes of the wage loss.

Because the judge correctly recited the relevant law to be applied in determining the claimant’s entitlement to temporary partial disability benefits, because the record provides support for the judge’s findings of fact, and because the judge’s observation does not suggest to me that she misapplied the law in making these findings of fact, I would affirm the order under review. I therefore respectfully dissent from the majority opinion.

      . The majority of claimant's absences and instances of tardiness occurred prior to his work-related accident.


author: PER CURIAM.

text:
    Cleveland BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4763.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant, and Appellant, pro se.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellate counsel filed a brief as permitted by In re Anders Briefs, 581 So.2d 149 (Fla.1991), noting that the written order of revocation of probation did not conform with the court’s oral pronouncement. Appellant filed a pro se brief seeking reversal of the probation violation order because (1) the trial court failed to state in the written order of revocation the specific conditions he was found to have violated, and (2) no showing was made that he willfully violated the terms of his probation. Competent, substantial evidence supports the court’s oral finding that appellant willfully violated his probation in a material respect by failing to make monthly reports to his probation officer between December 12, 2000, and April 4, 2001. We therefore affirm the revocation ruling. See State v. Carter, 835 So.2d 259, 261 (Fla.2002); Burgin v. State, 623 So.2d 575, 577 (Fla. 1st DCA 1993) (both stating that violation of the monthly reporting requirement is sufficient in and of itself to justify revocation).

Nevertheless, the written revocation order, which found appellant “in wilful violation of his probation as outlined in the affidavit,” does not conform to the trial court’s oral ruling. The affidavit alleged violations of eight conditions of probation and a violation of the restitution order, yet the trial court’s oral findings support a violation of only Condition 1, which required appellant to make a full and truthful report to his probation officer by the fifth day of every month. The case is therefore remanded to the trial court for entry of a written order that conforms to the oral pronouncement. Appellant need not be present. See Cozart v. State, 823 So.2d 234 (Fla. 1st DCA 2002).

AFFIRMED in part and REMANDED in part for entry of a conformed order.

ERVIN, BARFIELD and ALLEN, JJ., concur.


text:
    William T. HUNT, Appellant, v. Linda C. HUNT, Appellee.
    No. 1D02-1487.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Shonna Young Gay of Staats, White & Associates, Panama City, for Appellant.
    Appellee, pro se.
   PER CURIAM.

We affirm the trial court’s order finding appellant, William T. Hunt, to be in civil contempt of court for failing to pay alimony to his former wife, Linda C. Hunt. Mr. Hunt admitted under oath that he had not paid any alimony between October 2001 and February 2002. We reject Mr. Hunt’s argument that his failure to pay was not willful, in that, as he contends, he was required to pay Mrs. Hunt’s share of joint debts and property taxes and, therefore, he could not afford to pay the alimony, because the judgments do not establish that Mrs. Hunt was required to pay the specific business debts identified by Mr. Hunt, or the taxes owed to the Internal Revenue Service. Nor do they support appellant’s defense that Mrs. Hunt had defaulted on her obligation to pay a portion of ad valorem property taxes. To the contrary, the final judgment of dissolution provided that all property taxes on the marital home would be paid from the proceeds once the home was sold, and the marital home, as of the date of the order of contempt, had not yet been sold.

We likewise find no abuse of discretion in the trial court’s ruling on Mr. Hunt’s motion for contempt, because the evidence was insufficient to show that the sale of the trailer in question was contrary to the property distribution approved in the judgments. See Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998) (stating that when the judgment is not sufficiently explicit or precise to put the party on notice of what he or she may or may not do, it cannot support a finding of contempt). Additionally, Mr. Hunt failed to present sufficient evidence for the court to identify which, if any, of the firearms listed in the property distribution lists were not in his possession and remained in Mrs. Hunt’s possession after the reported theft of at least one of the firearms in question.

We also affirm the court’s denial of Mr. Hunt’s request for attorney’s fees and costs. In October 2001, the court awarded Mrs. Hunt 50 percent of her attorney’s fees and costs to be paid by Mr. Hunt. The record demonstrates no change in the parties’ financial position between the date of the award and the date of the contempt hearing in February 2002, other than the fact that Mr. Hunt refused to pay the required alimony. In so saying, we note that fees in contempt proceedings arising from dissolution of marriage lawsuits are decided under the same standards as the underlying dissolution: need and ability to pay. See id. at 844.

AFFIRMED.

ERVIN, ALLEN and LEWIS, JJ., CONCUR.


author: BENTON, J.

text:
    Jose RAMIREZ, Appellant, v. W.S. FARISH, Jr. d/b/a Lane’s End Farm and Brentwood Management Services, Inc., Appellees.
    No. 1D02-0670.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.

      Jason T. Selwood, Esquire of Hoffman, Moore, Baisden & Selwood, Lauderdale by the Sea, for Appellant.

      L.L. Roane, III, Esquire of Schofield & Wade, Pensacola, for Appellees.
   BENTON, J.

In this workers’ compensation case, Jose Ramirez, who worked as a groom, appeals the ruling that he was outside the course and scope of his employment when a motor vehicle ran him down early on the afternoon of January 14, 2000. At the time, he was riding a bicycle and had with him a sack filled with laundry, including “barn laundry” he had to wash for his employer, a horse farm. We reverse.

The employer does business as Lane’s End Farm (Lane’s End) in Versailles, Kentucky. At the time of the accident, Lane’s End was participating in a meet at Gulfstream Park in Hallandale, Florida. During the meet, Lane’s End housed Mr. Ramirez in a dormitory in or adjacent to stables at the racetrack. On the assumption that Mr. Ramirez traveled with the horses (and would not have been living at the stables if his permanent residence were elsewhere in or near Hallandale), Mr. Ramirez was a traveling employee.

“[A] traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in ... normal and necessary aetivities.” Leonard v. Dennis, 465 So.2d 538, 540 (Fla. 2d DCA 1985). “An employee who is required to travel in connection with his ... employment who suffers an injury while in travel status shall be eligible for benefits ... only if the injury arises out of and in the course of employment....” § 440.092(4), Fla. Stat. (2002). But a traveling employee is within the course and scope of employment “at all times during the trip other than when there is a distinct departure for a nonessential personal errand.” N. & L. Auto Parts Co. v. Doman, 111 So.2d 270, 271-72 (Fla. 1st DCA 1959). In contrast to injuries incurred “in the course of amusement ventures,”

[i]njuries incurred during such travel and while attending to the normal creature comforts and reasonably comprehended necessities ... are usually held to be compensable. Compensation in such areas is predicated on the premise that these acts do not take the employee out of the scope of employment because they are necessary to his health and comfort; that although such acts are personal to the employee, nevertheless they are expected incidents of his away-from-home employment and indirectly if not directly benefit the employer; that such acts, therefore, are not in fact deviations from the course of employment.

Id. at 272. When a traveling employee sustains an injury “at a time when the worker is not actively engaged in the duties of employment,” the injury is nevertheless compensable if it “arises out of a risk which is reasonably incidental to the conditions and circumstances of the employment. ...” Garver v. E. Airlines, 553 So.2d 263, 267 (Fla. 1st DCA 1989) (citations omitted). See also Leonard, 465 So.2d at 541 (“The traveling employee rule presupposes that the traveling employee is on his employer’s business while he is eating meals regardless of whether he is actually conducting business at the time.”). Thus, as a traveling employee, Mr. Ramirez would have been within the course and scope of his employment, even if he had been bicycling to or from lunch with no intention to wash the laundry en route, because he would have been “attending to [a] normal creature comfort[] and reasonably comprehended necessity]” when the accident occurred. N. & L. Auto Parts Co., 111 So.2d at 272.

In the order under review, the judge of compensation claims did not explicitly find that Mr. Ramirez was a traveling employee but did find — at least implicitly — that he was on his way to or from a laundromat near the stables at the time of the accident, in order to wash barn laundry, or having already washed it. The circumstantial evidence clearly supports such a conclusion. Specifically, the evidence showed that grooms were required to wash the barn laundry every day they worked; that Lane’s End provided buckets, soap, and clotheslines but that there was no washing machine or dryer on the racetrack grounds; that the claimant’s supervisors were well aware that grooms washed barn laundry (sometimes along with their own personal laundry) at Swinty’s 24-Hour Coin Laundromat “a couple of blocks” away (even though they did not reimburse the grooms); that the accident took place in the intersection of Northeast Eighth Avenue and East Hallandale Beach Boulevard at a time (the accident report was completed at thirty-five past one) when a groom going to or coming from the Laundromat might reasonably travel through the intersection; that the claimant had worked at the stables until about half past eleven that morning and had to be back there by half past two that afternoon; and that an oat sack was found at the accident scene containing three saddle towels, three girth covers, two chamois cloths that “go between the horse and the saddle so that the saddle will not slip,” polo bandages and rub rags (along with a shirt, a pair of pants and a pair of socks).

Even if not a traveling employee, Mr. Ramirez proved that he was injured in the course and scope of his employment. Transporting bam laundry to and from the laundromat was part of, not a deviation from, his employment. Although the laundry could have been washed by hand and hung out to dry at the stables, Lane’s End required only that it be washed somewhere; and acquiesced in the grooms’ practice of washing the barn laundry at the laundromat nearby. See B & B Cash Grocery Stores v. Wortman, 431 So.2d 171, 172-73 (Fla. 1st DCA 1983) (affirming decision that injury arose out of and in the course of employment where claimant, while “travelling between job sites,” was injured and the “injury ... occurred while he was on the employer’s payroll, when he was engaged in a common practice of the boys on the ground maintenance crew, doing an activity which he had the implied consent of his supervisor to do, which activity increased the productivity of the employees and was incidentally beneficial to the employer.”).

The order under review denied compensation on the supposed authority of the going and coming rule. Codifying the going and coming rule, section 440.092(2), Florida Statutes (2002), provides: “An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment....” But the “going and coming rule ... does not apply in the present case because Mr. [Ramirez] was neither going to work (from home) or coming home from work.” Evans v. Handi-Man Temp. Servs., 710 So.2d 132, 134 (Fla. 1st DCA 1998).

The accident did not occur while Mr. Ramirez was traveling to or from work within the meaning of the going and coming rule, since neither the stables nor the laundromat was his home or a venue for purely personal endeavor. The accident happened while he was at work, transporting barn laundry from one work site to another. See Dade County Sch. Bd. v. Polite, 495 So.2d 795 (Fla. 1st DCA 1986) (affirming order compensating teacher for injuries sustained in a vehicular accident while traveling from a track meet to school for the purpose of returning track equipment); Moody v. Baxley, 158 Fla. 357, 28 So.2d 325 (1946) (affirming order compensating employee for injuries sustained while traveling from restaurant where he worked to employer’s farm to install a lock for employer). See generally Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So.2d 441, 442 (1946) (stating “that when the contract of employment contemplates that the employee shall sleep on the employer’s premises, as an incident to the employment, and is injured while not engaged on a purely personal mission, the injury is compensable”); Hamilton v. Workers’ Comp. Appeals Bd., 231 Cal.Rptr. 917 (App. 2 Dist.1986) (unpublished opinion applying bunkhouse rule and personal comfort doctrine to award benefits to resident employee injured off premises).

Accordingly, the order under review is reversed, and the cause is remanded for further proceedings.

PADOVANO and BROWNING, JJ., CONCUR.

      . See American Airlines v. LeFevers, 674 So.2d 940, 942-43 (Fla. 1st DCA 1996) (affirming order compensating a flight attendant injured during a layover while swimming in a pool at a hotel the airline paid for, saying “the claimant was actively engaged in the duties of her employment ... at the time of her accident”); Garver v. E. Airlines, 553 So.2d 263, 264, 268 (Fla. 1st DCA 1989) (reversing order denying compensation "based upon a finding that ... [a flight attendant] was engaged in a substantial deviation from her employment,” where the flight attendant’s injury engendering activity during a layover — riding in a car to a social visit immediately following lunch — was not an unreasonable or unforeseeable activity); Gray v. E. Airlines, Inc., 475 So.2d 1288, 1290 (Fla. 1st DCA 1985) (reversing order denying compensation for injuries a flight attendant sustained while playing a pick-up basketball game during a layover because "exercise at a ... [YMCA near the hotel room provided by the airline] should be regarded as ... reasonably required for personal health and comfort.”).

      . The order denying compensation finds and concludes: (1) "[T]he use of the Laundromat was solely for the claimant's convenience”; and (2) "The act of going to the Laundromat was not [an] integral part of the employer’s successful business practice.”

      . Incapacitated by the accident, Mr. Ramirez did not testify at the hearing below.


author: SHEVIN, Judge.

text:
    Melissa LACKEY, Appellant, v. BRIDGESTONE/FIRESTONE, INC., d/b/a Dayton Tire Company, a Tennessee corporation; Ford Motor Company, Inc., a Michigan corporation; Bella Automotive Group, Ltd., a Florida limited partnership, d/b/a Headquarter Toyota; and Bella Automotive Group, Inc., a Florida corporation, individually and as general partner of Bella Automotive Group, Ltd., d/b/a Headquarter Toyota, Appellees.
    No. 3D02-1009.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.

      Michael M. Tobin, Coral Gables; Caruso, Burlington, Bohn & Compiani and Philip Burlington, West Palm Beach, for appellant.
    Marc Cooper and Ervin Gonzalez, Coral Gables, for Colson Hicks Eidson and Turner & Associates.
    Lauri Waldman Ross and Theresa L. Girten, Miami, for Friedman & Friedman, appellees.
    Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   SHEVIN, Judge.

Melissa Lackey appeals an order disbursing settlement funds and approving the division of attorneys’ fees. We affirm in part, reverse in part, and remand.

Melissa Lackey was a passenger in a Ford Explorer driven by her boyfriend, Kelvin Naranjo. She was injured when the Explorer rolled over after a rear tire blew out. Naranjo retained Marvin Friedman to represent him. Thereafter, Lackey also retained Friedman and entered into a contingent fee agreement with him. Friedman referred the case to Mike Eid-son, of the Colson Hicks Eidson firm. Eidson testified that when he met Lackey, he told Lackey that Tab Turner, an Arkansas attorney, would be involved in the case. Lackey did not sign a retainer agreement with either Eidson or Turner. Eidson’s firm sued Firestone/Bridgestone, Ford Motor Company and Naranjo on Lackey’s behalf. The case against Ford was settled. However, Lackey was dissatisfied with the attorneys’ fees detailed in the closing statement. It allocated 40% of the first million dollars as fees, pursuant to the Friedman contingent fee agreement, to be split among the three attorneys. Thereafter, Lackey discharged the attorneys.

The attorneys petitioned the court to approve the fee division and to disburse settlement funds as fees. Lackey asserted that the attorneys were only entitled to 33 1/3% of the first million dollars recovered. She challenged the fee request alleging that Friedman should be disqualified from recovering a fee because a conflict of interest existed between Lackey and Naranjo, and because portions of the agreement violated the Rules Regulating the Florida Bar. Lackey also argued that Eidson and Turner were not entitled to participate in the fee as she had not entered into a written agreement with them. After a hearing, the court approved Friedman’s requested fee, and approved Eidson and Turner sharing in that fee. Lackey appeals.

First, we address the issue of whether Friedman was entitled to recover fees under the contingent fee agreement. We are not persuaded that the inclusion of the infirm clauses renders the agreement void and forecloses Friedman from recovering his fee: the offending clauses are not at issue here. Hence, this is not a case where an attorney is seeking to recover fees under a void provision in a contingent fee agreement. Cf. King v. Young, Berkman, Berman & Karpf, P.A., 709 So.2d 572 (Fla. 3d DCA 1998)(attorney can’t recover under “bonus fee” clause as it violates Florida Bar Rules prohibition against contingent fees in divorce cases). See Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla.1995)(attorney fee agreement void as non-Florida lawyer lacked capacity to contract to represent Florida litigant). In this case, Friedman seeks to recover under the contingent fee clauses of the agreement, which are not infirm. We will not hold that the inclusion of the unenforceable terms voids the entire contract. See King, 709 So.2d at 574 n. 2 (“illegal terms may be refused enforcement without wholly avoiding the contract.”).

We believe this result follows from the dictates of Chandris. The Chandris Court addressed the validity of a contingent fee agreement executed by a non-Florida lawyer. The Court declared that agreement void because a non-Florida lawyer lacks the capacity to represent clients in Florida. That is not the case here. The contingent fee clauses in Friedman’s agreement do not violate the rules governing contingent fees, as cautioned by Chandris, 668 So.2d at 185-86. Although the non-complying clauses on other matters are unenforceable, they do not render the agreement void. Therefore, the offending provisions may be severed allowing for enforcement of the agreement. See King, 709 So.2d at 574 n. 2. Thus, we affirm the award of Friedman’s fee under the agreement.

We next address the issue of whether Eidson and Turner may partake in the contingent fee. Under Florida law, an attorney who has no contingent fee agreement with a client is only entitled to recover on a quantum meruit basis. Chandris, 668 So.2d at 186 n. 4; Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla.1995). Hence, in this case, where Lackey never signed any agreement with Eidson and Turner, quantum meruit is the only recourse available to them. However, the record demonstrates that there is insufficient evidence to support the amount awarded by the trial court as a quantum meruit award. Eidson’s testimony did not specify the time he expended on the case or his hourly rate. Turner did not appear at the hearing and was not represented. In Searcy, the Court held that a trial court must consider the amount of time the attorneys devoted to the representation and a reasonable hourly rate as factors in computing an award, as well as the totality of the circumstances surrounding the client/lawyer relationship in awarding fees. Searcy, at 369; Frank J. Pepper, Inc. v. Vining, 788 So.2d 1160 (Fla. Sd DCA 2001). Here, although the trial court considered the latter, there was no testimony as to the former factors. We therefore reverse the portion of the order awarding fees to Eidson and Turner. On remand, the court must hold an evidentiary hearing to take testimony on the Searcy factors sufficient to support an award.

Based on the foregoing, we affirm the award to Friedman, reverse the award to Eidson and Turner, and remand for further consistent proceedings.

      . Turner and Eidson were involved in the federal multi-district litigation against Ford Motor Company.

      . The Chandris requirements for contingent fee agreements are found at R. Regulating. Fla. Bar 4-1.5(f).

      . We are not persuaded that Turner is barred from partaking in the fee by virtue of the fact that he is a non-Florida attorney. Chandris states that "a non-Florida attorney can join with a Florida attorney in a joint representation of a client in Florida on the basis of a contingent fee agreement that complies with the rules.” Chandris, 668 So.2d at 186. That is the situation here, as Friedman’s contingent fee agreement is enforceable.


author: STEVENSON, J.

text:
    Stanley HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1067.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Rehearing Denied Nov. 3, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marni A. Bryson, Assistant Attorney General, Fort Lauderdale, for appellee.
   STEVENSON, J.

Stanley Hall was tried by jury and convicted of carjacking. At trial, Hall’s taped statement to police was played for the jury. According to Hall, there was an audible reference to his prior incarceration and such reference entitles him to reversal. We disagree and find that, under the facts of this case, any error was harmless. See Mathis v. State, 760 So.2d 1121 (Fla. 4th DCA 2000)(re-affirming the principle that a reference at trial to a prior incarceration of the defendant is subject to a harmless error analysis).

Here, the record reflects that much of the taped statement was inaudible or at least difficult to hear and neither the trial judge nor the prosecutor heard the “prison” reference during the initial playing of the tape. The defendant alone contended he heard such a reference. In fact, even after the tape had been replayed for the judge so that she could hear the words, she expressed doubt as to whether the word “prison” could be understood. Further, even if one of the jurors believed they heard a reference to “prison” during the tape’s initial playing, any prejudice would have been largely eviscerated when the tape was replayed at the jury’s request and the section where the word “prison” would have been uttered had been redacted.

AFFIRMED.

POLEN and KLEIN, JJ., concur.

      . Whether defense counsel initially heard the word "prison” on the tape is unclear since he merely stated that "[m]y client tells me that he heard himself on the tape say that he was in prison, so I’ll go over it with him later.”


author: THOMPSON, J.

text:
    Dennis Wayne SERVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1474.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 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 Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Dennis Wayne Servis appeals his conviction for DUI manslaughter. Because of the cumulative effect of the prosecutor’s improper comments during closing arguments, we conclude that Servis was denied a fair trial and reverse.

Servis was charged with DUI manslaughter after he was involved in an automobile collision which resulted in the death of Anthony Foster. The case was originally tried on 31 August 2000, and Servis was convicted. The case was appealed to this court, and this court reversed and remanded the case for a new trial. See Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001).

At the second trial, there was testimony that on the day of the accident, Servis ran a stop light in his truck, and that as a result of the ensuing collision, Servis’s truck hit a motorcycle driven by Foster and a vehicle driven by Charles Kauffman. Upon impact, Kauffman’s vehicle became airborne and overturned in the median. Foster was thrown from his motorcycle and landed in the road. Witnesses testified that Servis appeared distraught and concerned. An eyewitness to the accident, Jimmy Crabtree, testified that Servis’s speech was not slurred and that he did not smell alcohol on Servis’s breath.

Traffic homicide investigator Leroy Alfred testified that after an investigation of the accident, he concluded that Servis looked down for some papers as he approached the intersection and struck the passenger side of Kauffman’s vehicle. At the same time, Foster’s motorcycle struck the passenger side of Servis’s vehicle. Alfred testified that there was no indication that Servis applied his brakes before the crash. After being advised of his Miranda rights by Alfred, Servis admitted that he drank beer during his lunch, and stated that he was sorry for killing Foster. Alfred testified that Servis’s eyes were watery, glassy, and red, that Servis’s speech was slurred, and that he smelled of alcohol. Alfred obtained a blood sample from Servis after Servis consented, but Servis was allowed to leave the scene of the accident without a field sobriety or breathalyzer test and was not arrested that day.

FDLE crime lab analyst Dennis Siewert testified that an analysis of Servis’s blood sample indicated that Servis had a blood alcohol level of .119. Medical examiner Dr. Sarah Irrgang testified that a blood alcohol level of .119 would cause a decrease in coordination and would affect one’s ability to drive.

Wayne Morris testified as an expert on behalf of Servis. Morris testified that his review of Siewart’s FDLE file on Servis’s blood analysis indicated that there was cross contamination among the various blood samples. Morris also testified that based on the food Servis ate, the amount he drank, and the times of consumption, Servis’s blood alcohol level at the time of the accident would have been between zero and .038.

To rebut Morris’s testimony, the state recalled Dennis Siewart who testified that he did not agree with Morris’s testimony that the blood samples were contaminated because if one sample were contaminated, they all would have been contaminated.

On appeal, Servis argues that the state’s closing arguments were improper and denied him a fair trial. We agree. Because Servis did not object to some of the comments about which he appeals, and because other objections were general, we must determine whether the comments were so prejudicial as to constitute fundamental error. Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998); Caraballo v. State, 762 So.2d 542, 548, n. 18 (Fla. 5th DCA 2000). “Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

In the instant case, the state disparaged the defense on several occasions:

I told you when I came back I was going to tell you about a second tragedy. And the second tragedy in this case is the defense doing all they can to throw whatever they can against the wall and see what sticks.
What they have done is try to tell you we don’t know what the blood alcohol level is in this case. And we do know what the blood alcohol level in this case is because you heard it. And you heard it from the only one that’s qualified to testify as to the blood alcohol level.

(emphasis added).

The state continued its attack by stating several times “the defense wants you to believe ...” and concluding with the comment, ‘Well, I mean, I don’t know what trial that we’re listening to here.”

The state further commented on the defense and defense strategy:

You talk about the defense wants to make Mr. Kauffman and Mr. Foster at fault here, that they had no skid marks. Wonder why. They had the right of way. When you’re driving a vehicle, and there is a stop sign there, the person on the other side is supposed to stop. They didn’t have time to react. It wasn’t because they were impaired, because they weren’t. And it wasn’t because they were driving improperly. It was because the defendant was at a fault here, and he admits that. And it’s very important that you take that into consideration.
The defense wants to also make a big deal about when the defendant was arrested. Well, he was arrested—he couldn’t be arrested until after the blood test came in. And of course, that takes time to go through the process and to be tested. So, he wants to talk about injustice. He was arrested after the results of the blood alcohol were available. There wasn’t any injustice in there. The injustice here today is that the defense wants you to rely on the facts that just aren’t there. Woulda, coulda, shoulda, doesn’t cut it here.

(emphasis addfed).

A prosecutor may not ridicule a defendant or his theory of defense. See Riley v. State, 560 So.2d 279, 280 (Fla. 3d DCA 1990). It is improper for an attorney to give a personal opinion as to the justness of the cause, and in the instant case, the state’s comments resulted in an impermissible attack on the defense theory and defense counsel. See D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) (stating that “repeatedly referring to the defendant’s defense as innuendo, speculation, and a ‘sea of confusion’ that defense counsel prays you get lost in [was] an improper attack of the defense and defense counsel”).

Furthermore, while attacking the defense, the state told the jury that Kauff-man and Foster had not been impaired or driving improperly, and that the reason Servis was not arrested the day of the incident was because it takes time to receive the blood results. These statements were improper because counsel is not permitted to suggest that evidence which was not presented at trial provides additional grounds for finding the defendant guilty. Ruiz v. State, 743 So.2d 1, 4 (Fla.1999).

Second, the state attempted to bolster the credibility of the medical examiner, Dr. Irrgang, by asserting:

[W]ell, in this case, who has more to gain or lose in this case? Dr. Irrgang? She’s coming up and answering the questions. She has nothing to gain here. Everything she said here is from her background in pharmacology, about someone with a .119 here. And you have the defendant taking the stand.

Defense counsel’s objection was overruled.

You have Dr. Irrgang who just explained her autopsy. Explained everything what somebody would have with a .119. They don’t have any interest in how this case is decided. And I would submit to you that the only one who does have an interest in this case is the defendant. And just as the instructions would show, you need to follow that in weighing the evidence and give the proper amount of weight to that testimony based on the interest.

(emphasis added).

Except to the extent that an attorney bases his or her opinion on the evidence of the case, an attorney may not express a personal opinion on the merits of the case or the credibility of witnesses. Ruiz, 743 So.2d at 1; see also Caraballo, 762 So.2d at 546. In the instant case, the state sought to bolster its witnesses stating that they had no interest in the case.

Third, the state sought to bolster the credibility of the police officers:

Let’s talk about, we have law enforcement here that came in and testified and left. That’s their job is to investigate an accident, and they came in here and told you what happened. They have no interest in how it’s decided.

This attempt to bolster the officers’ testimony was impermissible. Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993); see also Clark v. State, 632 So.2d 88 (Fla. 4th DCA 1994) (although the comments were not an affirmative statement of the prosecutor’s belief in the veracity of the police officer -witnesses, the prosecutor’s argument constitutes an inappropriate attempt to persuade the jury that the police officer’s testimony should be believed simply because her or she is a police officer), overruled on other grounds, T.B. v. State, 669 So.2d 1085 (Fla. 4th DCA 1996).

Fourth, the state misstated the law by implying to the jury that they could find Servís guilty as long as his blood alcohol level was .08 at some point during the night rather than that his blood alcohol level was .08 at the time he was driving:

And, the Judge is going to instruct you that the only thing the State has to prove is that the defendant was driving an automobile, that he caused the death of Anthony Foster, and either his normal faculties were impaired by alcohol or he had a blood alcohol at a .08. There is nowhere in the instructions that says that the blood alcohol level at the time of driving has to be—

(emphasis added).

The trial court overruled the defense’s objection that this was a misstatement of law.

The prosecutor continued:

There is nothing in the instructions that says that the State has to prove that his blood alcohol level was .08 at the time of driving. For whatever reason, that’s the law. And that’s what I have to prove. So, the defense wants you to believe we don’t have anything at the time of driving. Well, let’s see, let’s put a law enforcement officer in every person’s vehicle so when they have an accident, they will have the blood collection kit. And let’s have the paramedic there, too, and let’s take blood there. No, that’s not how it works. That’s not how it works. And the reason why the law is the way it is because of that. And the blood was drawn approximately two hours after the—

(emphasis added).

When the defense objected, the trial court overruled the objection and told defense counsel to, “[s]it down. I’ve already instructed the jury that they are to follow the law. Didn’t I do that? ... As I instruct them and not what you say or what Mr. Diaz [prosecutor] says. I don’t feel I have to repeat the instruction every five minutes.” Contrary to the prosecutor’s statement, under section 316.193, Florida Statutes, to be guilty of driving with an unlawful blood alcohol level, Servis must have had a blood alcohol level of .08 while driving or in physical control of the car, see Rodriguez v. State, 493 So.2d 1067 (Fla. 3d DCA 1986), and it was error for the trial court to overrule the defense’s objections.

Further, the state commented on Servis’s guilt:

Now, we also talked about in voir dire that, to be impaired, and you all agreed that you don’t need to be falling down drunk. Okay? We did not have that in this case. But became you’re not falling down drunk, doesn’t mean that you’re not impaired. You are impaired when you have a decrease in, a reduction in those areas. And we have shown that by the defendant’s actions. The defendant himself, when I asked him if he felt he had a decrease in response time? No. Did you have a decrease in response time? No. Did you have a reduction in alertness? No. Do you have any reduced ability to judge distance? No ... Of course he’s going to say that. What is he going to say? Oh yeah, I had a decrease in coordination.

(emphasis added).

This court has previously held that it is improper for counsel to give a personal opinion as to the guilt or innocence of the accused. D'Ambrosio, 736 So.2d at 48. In the instant case, the prosecutor’s comments not only insinuated that Servis was lying, but it also explicitly expressed an opinion that Servis was guilty by stating that it had shown that Servis was impaired.

Finally, the state gratuitously showed the jury an autopsy photograph of Foster:

What I want to leave you with, and the only person that did not testify here today is Mr. Foster. Now, this is an autopsy photo of Mr. Foster. And I’m sure if he were here he’d want you—

The defense objected and stated that this was an improper comment and inflammatory, but the objection was overruled.

And the reason why he didn’t testify here today is because he was killed by the defendant. Now, we’re not here to have sympathy for anyone here today. But you’re going to take all this evidence back into the jury room, and I want you to avoid a third tragedy in this case.

The test for admissibility of photographic evidence is relevance. Dennis v. State, 817 So.2d 741 (Fla.2002). To be relevant, a photograph of a deceased victim must be probative of an issue in dispute. Hertz v. State, 803 So.2d 629, 642 (Fla.2001). Autopsy photographs are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial. Rose v. State, 787 So.2d 786, 794-795 (Fla.2001). Further, closing arguments must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response rather than a logical analysis of the evidence and the applicable law. Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). In this instance, Foster’s autopsy photograph had no bearing on the state’s closing argument, and we agree that its use was inflammatory and prejudicial, especially when coupled with the state’s comment that the jury should avoid a third tragedy in the case. See Gomez v. State, 415 So.2d 822, 823 (Fla. 3d DCA 1982) (holding that it was improper to say, “Don’t let [the victim] with three children and a wife walk away without justice in this case”).

Because the cumulative effect of the state’s numerous improper comments denied Servís a fair trial, the judgment is reversed and the cause is remanded for a new trial. In light of this reversal, we do not address the other issues on appeal.

REVERSED and REMANDED for new trial.

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

      . § 316.193(3)(c)(3), Fla. Stat.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The jury instructions provided that pursuant to section 316.193, Florida Statutes, to find Servís guilty, the state had to prove beyond a reasonable doubt that:
      1. Servís drove or was in actual physical control of a vehicle.
      2. White driving or while actually in physical control of the vehicle, Dennis Ser-vís
      a. was under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired, or
      b. had a blood alcohol level of 0.08 percent or higher, (emphasis added).

      . While the trial court expressed annoyance when the defense objected to the state's incorrect pronouncements on the law, when the state objected to defense counsel’s argument, the court told the jury that it would instruct them on the law:
      Defense: Remember, if some of you think his normal faculties were impaired and some of you think his blood alcohol level limit was over the legal limit, that is not a unanimous verdict. You must be unanimous and why—
      State: Judge, I’m going to object. That's a misstatement of law.
      Court: Members of the jury, I’m going to instruct you on the law. Any conflict that you find between what the attorneys tell you and what I instruct you is to be resolved in favor of the instructions that I give you. That’s probably the best instruction that I can give you at this time.

      . See, e.g., Caraballo v. State, 762 So.2d 542 (Fla. 5th DCA 2000).


text:
    Kelvin CONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1790.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Kelvin Coney, Clermont, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Kelvin Coney appears in this court for the fourteenth time seeking review of two 1994 convictions. His convictions have been repeatedly affirmed by this court. Though he has not yet been successful, Coney is persistent. However, our patience and our resources are limited, and continued frivolous challenges by Coney will simply exhaust both.

We previously warned Coney that his petitions to this court were “successive and constitute^] an abuse of procedure.” See Coney v. State, 833 So.2d 290, 291 (Fla. 5th DCA 2002). Nonetheless, Coney persisted. We then issued an order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), asking Coney to show cause why further pro se filings should be permitted. We find no merit in Coney’s response, and, hold, as we have before, that his successive petitions constitute an abuse of the judicial system. See e.g. Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003).

In accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve limited judicial resources, we prohibit Coney from filing any further pro se appeals, pleadings, motions, petitions or papers relating to his convictions and sentences in Orange County Circuit Court case Nos. 94-6376 and 94-7275. Any further papers, petitions or pleadings filed in this court relating to those matters must be reviewed and signed by an attorney, licensed to practice law in this state. The Clerk of this Court is directed not to accept any further pro se filings or pleadings from Coney regarding these cases.

PETITION DENIED.

SAWAYA, C.J., SHARP, W. and ORFINGER, JJ., concur.

      . The trial court cases were in the Circuit Court of Orange County, Nos. 94-6376 and 94-7275.


author: PALMER, J.

text:
    Christina L. MOULLET, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2706.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Christina L. Moullet, Lowell, pro se.
    No Appearance for Appellee.
   PALMER, J.

We affirm the trial court’s summary denial of appellant’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) based on Mersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). However, we certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED. CONFLICT CERTIFIED.

PLEUS and MONACO, JJ., concur.


text:
    J.A.D., on Behalf of J.G.D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3202.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    James B. Gibson, Public Defender and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The defendant pled nolo contendere to, and was adjudicated delinquent on, the charge of battery by a detained person in violation of section 784.082, Florida Statutes. The trial court determined that the defendant met the criteria for being a “serious or habitual juvenile offender” and therefore committed him to a maximum risk residential program until his 21st birthday. See § 985.03(48), Fla. Stat. (2001). However, the disposition order contains a scrivener’s error in its reference to section 985.08(48)(a)(13), Florida Statutes since subsection (a)(13) refers to lewd and lascivious acts and the defendant was not charged with committing a lewd or lascivious act. The State properly eon-cedes the existence of this error, explaining that the statutory reference should be to section 985.03(48)(b), which applies to juveniles who have committed at least two previous delinquent acts. We affirm the instant disposition order but remand to the trial court for correction of the statutory reference.

AFFIRMED and REMANDED.

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    David ROSADO, Appellant, v. Ibet Norma ROSADO, Appellee.
    No. 5D02-1400.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.

      Gregory E. Tucci, Ocala, for Appellant.
    Mark D. Shelnutt of'Mark D. Shelnutt, P.A., Ocala, for Appellee.
   THOMPSON, J.

David Rosado, the former husband, appeals a final order of dissolution of marriage. We reverse the awards of alimony and attorney’s fees, and remand for reconsideration of the alimony award.

The parties were married in 1978 and have two grown children. Their incomes and assets are modest. The former wife earns $1,240 net monthly, while the former husband has a net income of $2,497, including $1,810 from employment and $687 in disability payments. The major marital asset was the former husband’s military pension of $688 per month, which the court distributed equally. We find no abuse of discretion in the distribution of marital assets.

The final judgment provides: “As permanent periodic alimony, the Wife shall receive one-half ... of the Husband’s Military Disability Benefits, to-wit: the sum of $343.00 per month.” Although we conclude that there was no abuse of discretion in the amount of the alimony award, $343 per month, the court erred in using the former husband’s disability benefits as the source of the alimony. This arrangement is forbidden under Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). See also Abernethy v. Fishkin, 699 So.2d 235, 239 (Fla.1997) (holding that the division of veterans’ disability benefits, whether through court order or settlement agreement, is preempted by federal law). The alimony award must therefore be reversed.

We do not agree with the suggestion that to correct the error in awarding the wife half of the disability benefits that the trial court on remand should simply award the former wife the entirety of the retirement benefits. First, the pension benefit was equally divided as a marital asset, so the former husband’s share may not be used as a source of alimony. See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986) (holding that an injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations). Second, under Mansell, a court may not award a former spouse more than 50% of the military member’s retirement pay. 490 U.S. at 589, 109 S.Ct. 2028. The court could, however, instead of treating the retirement pension as a marital asset, consider it income to the former husband and thus a source of alimony payments. See Bujarski v. Bujarski, 530 So.2d 953 (Fla. 5th DCA 1988).

On remand, the court should make findings regarding the husband’s claim that the former wife is underemployed. After making that determination, if the court deems the wife entitled to an alimony award, it may make an award from the husband’s employment income, or, it may treat the pension as a source of income instead of as a marital asset.

Finally, we must reverse the award of attorney’s fees to the former wife. The parties are in similar financial circumstances, except that the former husband was awarded a greater proportion of the marital liabilities, so the award was not warranted. See e.g. Schiller v. Schiller, 625 So.2d 856 (Fla. 5th DCA 1993).

REVERSED and REMANDED.

COBB, W., Senior Judge, ROUSE, R., Associate Judge, concur.


text:
    Jeffrey DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1935.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Jeffrey Davis, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 857 So.2d 861, 2003 WL 21511313 (Fla. July 3, 2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings”).

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

      . We note that this court has precluded Davis from filing any additional pro se appeals, motions, or petitions pertaining to his convictions and sentences in case No. GO-7844, unless reviewed by an attorney licensed to practice in the State of Florida, see Davis v. State, 852 So.2d 963 (Fla. 5th DCA 2003); however, Davis filed this appeal prior to issuance of that mandate.


text:
    Robert A. ARGUELLES and, Angela G. Arguelles, Appellants, v. CITY OF ORLANDO, Appellee.
    No. 5D02-2200.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Brian D. Stokes of Unger, Aeree, Wein-stein, Marcus, Merrill, East & Metz, P.L., Orlando, for Appellants.
    Steven F. Lengauer and Susan T. Powell of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for Appellee.
   PALMER, J.

Robert and Angela Arguelles (hereinafter collectively “Arguelles”) appeal a final summary judgment entered in favor of the City of Orlando in their suit for declaratory relief, injunctive relief, and compensatory damages. Concluding that the case was not ripe for disposition by summary judgment in light of the fact that discovery requests to the City were still outstanding, we reverse.

This case arises out of a long standing dispute between Arguelles, as homeowners, and the Orlando Code Enforcement Board. The dispute began after Arguelles constructed a concrete slab adjacent to their driveway and parked their boat thereon. Arguelles did not request nor obtain a permit from the City to perform the construction work because of their understanding that a permit was not required. The City maintained that a permit was required.

The first action between the parties was an administrative action brought by the Orlando Code Enforcement Board against Arguelles seeking enforcement of a traffic citation issued to them by a municipal parking officer for the boat parked on their property. That action was resolved in favor of Arguelles by the circuit court, sitting in its appellate capacity, based upon a finding that the municipal parking officer lacked the authority to issue a traffic citation for the boat because it was parked on private residential property. However, while that appeal was pending, the City issued a notice of code violation to Arg-uelles and scheduled a hearing before the Code Enforcement Board. Arguelles sought to depose two of the City’s employees, but the City took the position that such depositions were not allowed in connection with the violation proceeding. As a result, Arguelles commenced the instant action in the circuit court seeking declaratory and injunctive relief as well as damages resulting from a lien which was placed by the City on their home.

After the commencement of this lawsuit, proceedings were held before the Code Enforcement Board. Arguelles were found to be in violation of the relevant code sections, ordered to comply by a date certain, and assessed a fine of $50.00 per day if they failed to do so.

On April 19, 2002, this case was set for jury trial during a two-week docket commencing August 6, 2002. On May 13, 2002, Arguelles served a notice on the City seeking to depose the chief of the Code Enforcement Board on June 19, 2002. The City responded by filing a motion for summary judgment, and notice of hearing thereon for June 11, 2002. Arguelles requested a delay in the hearing date based upon the upcoming deposition, but the trial court denied that request, held the hearing on June 11, 2002, and entered a final summary judgment in favor of the City. In so ruling, the court set forth no finding of facts or conclusions of law in its summary judgment order. This appeal followed.

Entry of summary judgment in this case was premature because discovery had not been completed. In UFF DAA, Inc. v. Towne Realty, Inc., 666 So.2d 199 (Fla. 5th DC A 1995), this court held that it was reversible error to enter summary judgment when relevant discovery was in progress and a deposition of a party was pending. See also Villages at Mango Key Homeowners Assoc., Inc. v. Hunter Development, Inc., 699 So.2d 337 (Fla. 5th DCA 1997)(holding that summary judgment should not be granted when depositions are pending unless protective order is sought or entered).

Because Arguelles were entitled to complete their pending discovery before the court considered the City’s motion for summary judgment, we reverse and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA, C.J., and COBB, W., Senior Judge, concur.

      . Since the trial court failed to provide any findings of fact or conclusions of law in its summary judgment order (which makes effective appellate review impossible), we are unable to determine whether the pending discovery would have been irrelevant to the grounds utilized as the basis for the summary judgment so as to render the entry of summary judgment proper. See A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So.2d 301 (Fla. 5th DCA 2001).


text:
    Robert S. URBAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3993.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    James F. Spindler, Jr. of James F. Spin-dler, Jr., P.A., Crystal River, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Urban appeals from a final judgment entered after he pled nolo contendere to the offenses of trafficking in oxycodone, and sale of clonzaepam. He contends that he was “entrapped” by law enforcement officers, and that their egregious conduct violated his constitutional due process rights under article I, section 9 of the Florida Constitution, and amendments 5 and 14 of the United States Constitution. In order to prevail on this ground, Urban must demonstrate that law enforcement’s conduct was so outrageous and egregious it constituted entrapment, as a matter of law, regardless of his predisposition to commit the crime charged. Munoz v. State, 629 So.2d 90 (Fla.1993).

After reviewing the record in this case, we do not agree that the conduct of law enforcement shown at the hearing regarding Urban’s motion to dismiss rises to that level. Rather, we agree with the State that the actions of the law enforcement in this case were similar to the conduct discussed in State v. Sargent, 617 So.2d 1115 (Fla. 5th DCA 1993), approved, 629 So.2d 847 (Fla.1994). In that case, this court held the activities engaged in by the police did not violate the defendant’s due process rights.

AFFIRMED.

PETERSON and TORPY, JJ., concur.

      . §§ 893.135(l)(c), 893.03(2)(a)l„ Fla. Stat. (2002).

      . §§ 893.13(l)(a)2„ 893.03(4)(j), Fla. Stat. (2002).


text:
    Keith D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-175.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Keith D. Johnson, Gainesville, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Johnson’s conviction and sentence without prejudice to Johnson’s ability to raise the issues asserted in his pro se brief in a timely motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c) or in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    DEPARTMENT OF REVENUE, o/b/o Richard A. SKIRKO, Appellant, v. Joanne SKIRKO, Appellee.
    No. 5D03-546.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, for Appellant, Department of Revenue.
    No Appearance for Appellee.
   PLEUS, J.

The Department of Revenue (DOR), on behalf of Richard Skirko, appeals an order denying its petition to increase child support. DOR argues that the trial court erred in deviating from child support guidelines without written reasons or record support. We reverse.

Joanne and Richard Skirko were divorced in 1995. Mr. Skirko was awarded custody of their son but was not awarded child support because of Mrs. Skirko’s lack of ability to pay. In 1999, a Dade County circuit court modified the final judgment, awarding Mr. Skirko $200 a month in child support. In 2001, DOR, on behalf of Mr. Skirko, petitioned the circuit court in Bre-vard County to adopt the 1999 Dade County child support order and increase child support because of Mrs. Skirko’s increased income.

Based on evidence adduced at the modification hearing, the hearing officer found that Mrs. Skirko’s child support obligation under the statutory guidelines should be $380 per month. However, he recommended leaving it at $200 per month because of his conclusion that if he raised her child support obligation, “it would be almost impossible for her to five without public assistance.” The trial court adopted the hearing officer’s recommendations, leaving the child support obligation at $200 per month.

The guidelines amount constitutes a substantial change in circumstances under section 61.30(l)(b), Florida Statutes (2002), because it is a substantial increase over the existing obligation of $200 per month. The child support guidelines apply to petitions for modification. Pitts v. Pitts, 626 So.2d 278, 284 (Fla. 1st DCA 1993). Section 61.30(1)(a) permits a court to deviate more than five percent from the presumptive guideline amount “upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.” The trial court’s failure to supply written reasons for a substantial deviation from the guidelines is reversible error. Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003); Pitts. Without such findings, meaningful appellate review is not possible. Niemann; Pitts.

Accordingly, we reverse and remand with directions to enter an amended order “explaining why the trial court found the child support guideline amount unjust or inappropriate, or for entry of an amended order awarding the child support guideline amount.” Pitts at 284. If the trial court chooses to continue to downwardly deviate it should “set forth in its order the guideline support amount, the amount of downward deviation from the guideline amount, and the reasons for that deviation, so that proper review by this court can be made.” Niemann at 332.

REVERSED AND REMANDED.

THOMPSON and ORFINGER, JJ., concur.

      . That subsection provides:
      The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.

      . DOR makes additional arguments regarding the lack of record support for a downward deviation. Specifically, DOR argues that the trial court’s apparent concern for Mrs. Skir-ko’s ability to provide for her three other children was improper under section 61.30(12) because at least two of those children were born prior to the 1999 child support order and should not be considered. DOR also argues that the trial court’s comments regarding the cost of day care in New Jersey and Mrs. Skirko having to live on welfare if forced to pay the guidelines amount was speculative. We believe it is premature to address these arguments before affording the trial court an opportunity to either follow the guidelines or give written reasons for its downward departure.