author: PER CURIAM. SHARP, W., J.,

text:
    Kathleen T. HIGBEE, Appellant, v. Mark W. HIGBEE, Appellee.
    No. 5D02-3809.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 10, 2004.
    Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellant.
    Joan Stefanec Briggs of Adams, Briggs and Briggs, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

PETERSON and GRIFFIN, JJ., concur.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

In this post-dissolution appeal, the former wife argues the trial court erred in refusing to vacate the parties’ property settlement agreement and the final dissolution judgment which incorporated that agreement. The wife entered into the property settlement agreement before the dissolution action was filed and without the benefit of discovery and independent counsel. In these circumstances, the agreement should have been evaluated under the standards set forth by the Florida Supreme Court in Casto v. Casto, 508 So.2d 330 (Fla.1987). Because the trial court failed to apply Casto, but instead applied the more strict standard of review set forth in Rule 1.540,1 would reverse the order and remand for a new hearing in which the wife’s request to vacate the settlement agreement is properly evaluated.

The record in this case discloses that after a stormy sixteen-year marriage, the parties began discussing a divorce. At the husband’s request, his attorney prepared a formal agreement using the husband’s notes of their divorce discussions. The wife did not have her own attorney.

On January 12, 2001, the wife signed the agreement. Six days later, the husband filed for dissolution. Less than a month later, the final judgment which incorporated the parties’ agreement was entered.

Under the agreement, the wife was to transfer her interest in the marital home to the husband. The wife was to receive the husband’s interest in a vacant lot acquired during the marriage and $100,000 from the husband’s retirement account. The wife was to receive no spousal support even though her annual earned income was about $14,000, and her husband earned about $57,000. The wife was to receive no child support for the parties’ two teenaged daughters; they agreed to a split-custody arrangement.

A few months later, the wife filed a verified petition to vacate the final judgment on the grounds of fraudulent inducement and duress in executing the settlement agreement, and sought to modify the support and custody provisions of the final judgment. The wife alleged the husband misrepresented the value of the marital home, told her she was not entitled to child support and misrepresented the value of his retirement funds. As her share of the marital assets, the wife received primarily assets that were in retirement plans. To purchase a residence, the wife was required to liquidate a portion of her share of the retirement plan. She had to pay taxes on the funds she received from the retirement account, thus reducing her share of the net marital estate.

The wife also alleged that at the time she signed the agreement, she was fearful of the action the husband would take against her if she did not sign the agreement. The husband had previously threatened the wife that if she sought a divorce, he would burn the house down with her in it. He also told her he would blow her head off. The wife claimed she signed the agreement under duress.

In Casto v. Casto, 508 So.2d 330 (Fla. 1987), the Florida Supreme Court set out two separate grounds on which a trial judge may vacate or modify a post-nuptial agreement in a dissolution proceeding. Under the first ground, the spouse may establish that the agreement was reached under fraud, deceit, duress, coercion, misrepresentation or overreaching.

Under the second ground of Casto, the challenging spouse must establish the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. To establish an agreement is unreasonable, the spouse must present evidence of the parties’ relative situations, including their ages, health, education and financial status. With this information, the judge may determine that the agreement on its face does not adequately provide for the challenging spouse and consequently it is unreasonable. In making this determination, the judge must find that the agreement is disproportionate to the means of the defending spouse.

Once the spouse establishes the agreement is unreasonable, a presumption arises there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the parties’ finances at the time the agreement was reached. The burden then shifts to the defending spouse who may rebut these presumptions by showing that there was either 1) a full, frank disclosure to the challenging spouse before the signing of the agreement relative to the value of all marital property and the income of the parties or 2) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.

The court stressed that simply because one party to the agreement apparently made a bad bargain, by itself, is not a sufficient ground to vacate or modify a settlement agreement. The critical test in determining the validity of post-marital agreements is whether there was fraud or overreaching on one side or, assuming unreasonableness, whether the challenging spouse did not have adequate knowledge of the marital property and income of the parties at the time the agreement was reached.

The court also stressed that judges must recognize that parties to a marriage are not dealing at arms’ length prior to the time both parties have counsel, and the litigation has sufficiently progressed so as to have provided each with arms-length discovery and evaluation of the parties’ marital assets and relative financial status. Consequently judges must carefully examine the circumstances to determine the validity of these agreements.

In Macar v. Macar, 803 So.2d 707 (Fla. 2001), the Florida Supreme Court held that Casto does not apply to challenges to settlement agreements entered into after the start of divorce litigation and utilization of discovery procedures. The court explained that Casto applies only to agreements entered into prior to litigation and discovery. Before spouses file for dissolution, they engage each other as fiduciaries and therefore fraudulent behavior may be perpetrated more easily.

However, after a legal action has been started, both parties may employ counsel to engage in the discovery process to disclose all assets and relevant factors. Given the benefits available in contested legal actions, an ex-spouse should not be permitted to challenge settlement agreements in final judgments “under an umbrella as broadly based as those expressed in Casto.” Macar, 803 So.2d at 713. Rather, the more narrow provisions of rule 1.540 provide the more appropriate standards for challenging agreements entered into after litigation.

Here the trial judge ruled that Casto was inapplicable based on his belief the parties had been discussing settlement terms in an arm’s length posture, the filing for divorce was imminent and both understood the agreement would be presented to the court immediately after filing for dissolution. Instead the judge applied Macar which only allows a party to challenge ■ the agreement under rule 1.540. The judge found the only possible grounds available for relief to the wife under rule 1.540 were newly discovered evidence or fraud, and concluded she proved neither ground.

In Macar, the supreme court specifically held its decision limiting Casto only applied to cases where a contested action had been commenced and the parties had the opportunity to obtain full disclosure through various discovery mechanisms. Macar, 803 So.2d at 714 n. 7. Here the parties entered into the agreement prior to the start of any litigation. At this point, the parties still engaged each other as fiduciaries and “as such, fraudulent behavior may be perpetrated more easily.” Macar, 803 So.2d at 712.

Nor had the parties in this case engaged in any discovery or exchanged financial affidavits. During their marriage, the husband alone managed their financial affairs. The wife signed the parties’ joint tax returns but without reading them. The wife even signed over her income checks to the husband. The wife had no idea of the acquisition cost of their home and the parties did not have the house appraised. Thus the wife did not know the value of this asset when she agreed to transfer it to the husband.

Although the husband had retained an attorney, the wife was not represented by counsel. In fact, the wife specifically testified the husband told her he would make sure she was taken care of and that she should not hire a lawyer “because the lawyer would take all of the money.” Thus the wife did not have the benefit of litigation discovery through independently chosen counsel “to learn the full nature and extent of the finances of the other spouse.” Crupi v. Crupi 784 So.2d 611, 613 (Fla. 5th DCA 2001). In these circumstances, the trial judge committed clear legal error by failing to apply Casto to evaluate the wife’s request to vacate the agreement and the final dissolution judgment which incorporated that agreement.

It may be tempting to simply affirm this case (as the majority seems to have done) on the basis the error was harmless and the result most likely would have been the same even if the trial judge had applied Casto. But the judge limited the wife to the narrow rule 1.540 grounds of newly discovered evidence or fraud. Under Cas-to, the court may set aside an agreement on the grounds that it is unfair or unreasonable, without regard to any finding of fraud.

Here the agreement was clearly one-sided in favor of the husband. After a 16 year marriage, the husband had no spousal or child support obligation, despite the fact that he was earning more than four-times the wife’s income. The husband received a disproportionate share of the marital assets — perhaps as much as $80,000 more than what the wife received. The husband was not required to pay the wife’s attorney fees, although it seems she clearly had the need and he had the ability to pay.

Pursuant to Casto, the wife should have been entitled to have the agreement set aside on grounds much broader than those in rule 1.540. If she established fraud, deceit, duress, coercion, misrepresentation or overreaching, or an unfair agreement accompanied by concealment or lack of knowledge of the parties’ financial resources, the court should have set aside the agreement and the final dissolution judgment which incorporated that agreement. Since the result in this case, given this record, would likely be different were the proper standard applied, I dissent from the affirmance, and would remand for a new hearing.

      . Rule 1.540. Relief From Judgment, Decrees, or Orders
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons; (1) mistake, inadvertence, surprise, or excusable ne-gleet; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

        . The husband admitted behavior contrary to that expected of a fiduciary. For example, he admitted he told the wife he would burn their house down after she said she wanted a divorce. He admitted to drinking alcohol, being charged with DUI in the past and not always remembering what he does when he is under the influence. The husband admitted he slammed the side of the bed and broke his hand out of "frustration” while the wife was in the bedroom.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Abel TAVARES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2004.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Rehearing Denied May 6, 2004.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The primary issue presented in this case is whether the State or the defendant has the burden of proof in commitment hearings following a finding of not guilty of a crime by reason of insanity. We conclude that at the initial hearing following a trial at which the defendant is found not guilty by reason of insanity, the defendant bears that burden.

Abel Tavares was charged by information with arson of a dwelling. The defense timely filed a notice of intent to rely on the defense of insanity, and presented expert evidence at the trial that Mr. Tavares suffered from a still unstabilized combination of bipolar disorder and schizophrenia. The defense evidence indicated that Mr. Tavares had been severely mentally ill for about 25 years, and that he had been previously hospitalized at a mental health facility as a result of these conditions. His behavior included “decompensating,” and being “paranoid, delusional [and] cautious.” His doctor testified that “Tavares does not have the mental equipment to cope with his mental disorder nor the typical activities of daily living. Medicated or unmedicated.” Moreover, the doctor testified that Mr. Tavares’ condition worsened during the course of the three interviews that he conducted with him, and that his thinking is “likely to be disoriented ... confusing ... bizarre.” The jury found Mr. Tavares not guilty by reason of insanity-

The trial court subsequently held a hearing pursuant to section 916.15, Florida Statutes (2003), and Rule 3.217, Florida Rule of Criminal Procedure. Mr. Tavares argued that he should be conditionally released and placed into an outpatient treatment program, while the State argued for involuntary commitment to an appropriate facility within the Department of Children and Family Services (“DCF”). The trial court agreed with the State and entered an order involuntarily committing Mr. Ta-vares to DCF. Mr. Tavares appeals the rendition of that order.

Following a verdict of not guilty by reason of insanity, a trial court can involuntarily commit a defendant for treatment by adhering to the requirements of section 916.15, Florida Statutes (2003). Subsection (1) of that statute states in pertinent part:

A defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant is mentally ill and, because of the illness, is manifestly dangerous to himself or herself or others.

See also Wisniewski v. State, 805 So.2d 901 (Fla. 2d DCA 2001). The trial court, thus, has the initial responsibility to determine if a defendant is (1) mentally ill, and (2) because of the illness, “manifestly dangerous to himself or herself or others.” If the defendant satisfies these criteria, then the judge is to commit the defendant to DCF. See Fla. R.Crim. P. 3.217(b). If the defendant does not meet these criteria, then the court must determine whether to discharge the defendant, or order the defendant to outpatient treatment at a specific appropriate facility. See Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); State v. Vigil, 410 So.2d 528, 530 (Fla. 2d DCA 1982); see also § 916.15, Fla. Stat. (2003). In making these decisions it is appropriate for the trial court to consider, among other things, the evidence obtained at trial and prior reports of psychologists, as well as any relevant evidence presented at the commitment hearing. See Vigil, 410 So.2d at 530.

At the commitment proceeding in the present case the State chose not to present any new evidence, but instead relied only on the testimony adduced at trial, as well as the written psychological reports that predated the trial. In addition to testifying himself, Mr. Tavares presented testimony of the mother of his girlfriend, and from an employee of an organization called “Circles of Care,” (which is apparently housed in the forensic department of the Brevard County jail), suggesting that he was no longer dangerous to himself or others. Mr. Tavares argued for a conditional release in accordance with section 916.17, Florida Statutes (2003). The trial court, however, decided to commit Mr. Ta-vares to DCF on the strength of the trial testimony and reports.

Mr. Tavares takes the position that the burden to demonstrate that he fits the section 916.15 criteria should fall on the State. He points out that in Baker Act proceedings, for example, the state bears the burden of proving by clear and convincing evidence that the statutory criteria for commitment are met. See Boller v. State, 775 So.2d 408 (Fla. 1st DCA 2000). Under the theory advocated by Mr. Ta-vares, he should not be committed because the State failed to produce any evidence demonstrating that he was, as of the date of the commitment hearing (as opposed to the date of the crime), a danger to himself or others. The State disagrees, and points to Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978), for support. Neither the statute, nor the rule address the issue. We, however, agree with the State.

In Addington v. Texas, supra, the United States Supreme Court held that to civilly commit a person for mental health reasons, the State is required by due process to prove by clear and convincing evidence the two fundamental preconditions to commitment: that the person being committed is mentally ill, and is a danger to himself or others. The Supreme Court later held in Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983), however, that if a person is found not guilty by reason of insanity, that person may be committed without satisfying the Addington requirements. The Jones court noted that such a verdict, “establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness.” Jones, 463 U.S. at 363, 103 S.Ct. 3043. Still later in Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), the high court noted that, “From these two facts, it could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed.” Accordingly, an automatic commitment without a prior hearing of an insanity acquittee does not violate the Due Process Clause, provided the person’s commitment is subject to periodic reviews. Jones.

If we can infer from the verdict of not guilty by reason of insanity that the defendant is still mentally ill, and is still a danger to himself or herself or others, then we can reason that the State at a post-trial commitment hearing is relieved of its usual burden of initially demonstrating those facts, provided that the commitment hearing is reasonably close in time to the trial and crime. If nothing is presented by the acquittee, the trial court may commit that person to the custody of DCF. Thus, the burden of proof is logically placed on the acquittee at the initial commitment hearing.

Indeed, this is a conclusion similar to one reached in 1978 by the First District Court of Appeal in Hill, supra, before it had the benefit of the United States Supreme Court decisions cited above. Mr. Hill was found not guilty by reason of insanity and was committed to a state hospital immediately after trial. He later sought conditional release. Obviously, we are not dealing now with the precise situation that was before the Hill court. Nevertheless, one holding in Hill is instructive:

But the burden of proof, in the sense of a risk of nonpersuasion, is on the acquit-tee. It is he who asserts that conditions have changed; it should be presumed, in the absence of countervailing evidence, that the condition which justified the original hospitalization order has continued (citations omitted); and there is general agreement that one who asserted his mental irresponsibility for a crime, winning hospitalization instead of jail or worse, should bear the burden of proving .grounds for release.

We, of course, do not mean to infer by our ruling that all persons who are acquitted of-a crime by reason of insanity are to be automatically committed to DCF. An involuntary commitment of a defendant acquitted of a crime by reason of insanity is not imposed as a punishment. Rather, the trial court must be satisfied in order to do so that the criteria enunciated in section 916.15 are first met. We mean only to say that at the outset it is the obligation of the acquittee to demonstrate that the conditions that led to his acquittal have changed, and that he is either no longer mentally ill, or that he is no longer a danger to himself or others. As always, we rely on trial judges to make the initial determination regarding whether commitment or some less restrictive alternative is appropriate.

In the present Case there was ample evidence from which the trial court could conclude that Mr. Tavares met the criteria for commitment, and we affirm that determination. Mr. Tavares argues, however, that the trial court failed to comply with Rule 3.217(b), Florida Rule of Criminal Procedure, because it did not enter an order containing “findings of fact relating to the issue of commitment or other court ordered treatment.” We agree with Mr. Tavares in this regard.

The commitment order in the present case fails to include findings of fact, and simply indicates that Mr. Tavares is mentally ill, and because of the illness, was a manifest danger to himself or others. The order is, therefore, deficient. See Wisniewski v. State, 805 So.2d 901 (Fla. 2d DCA 2001); Mannarelli v. State, 767 So.2d 480 (Fla. 4th DCA 2000). Accordingly, we remand for the trial court to include specific findings of fact in the commitment order.

While there are other issues raised by Mr. Tavares, our review reflects no other error committed by the trial court.

AFFIRMED, but REMANDED with instructions.

PETERSON and THOMPSON, JJ., concur.

      . Section 394.451, et seq., Fla. Stat. (2003).

      . The Foucha court held that a Louisiana statute allowing continued confinement of an insanity acquittee on the basis of his mental illness, despite the determination of a hospital review committee that there was no evidence of mental illness, violated due process.


author: PER CURIAM.

text:
    Andre P. ASSAM, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellee.
    No. 3D03-347.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Andre P. Assam, in proper person..
    John D. Maher, Tallahassee, for appellee Commission.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal by Andre Assam from a final order of the Florida Unemployment Appeals Commission (hereafter “Commission”) dismissing a notice of appeal filed by him on the ground of timeliness.

Andre Assam was employed as a telecommunications technician for Turnberry Country Club, a hotel and resort. As such, he worked throughout the hotel property, installing or repairing telephone equipment on an as needed or “on call” basis. Any period in his workday when he was not actively repairing and installing was referred to as “down time.” He had no fixed times for breaks and lunch, but rather was allowed breaks or meals by his supervisor, depending on workflow and completion of assignments.

In October 2001, Assam was spoken to regarding his personal use of the employer’s telephone during working hours. In February 2002, he was allegedly given a final warning after he had calls totaling 256 minutes to his flaneé over a period of approximately five weeks. On July 30, 2002, Assam punched in at work and could not be found. The battery on Assam’s pager had run out. Assam was discharged the next day, allegedly for logging 721 minutes of phone use to his fiancé during the prior five and one-half months. Assam urges that much of this usage, which averaged 66 minutes per month, occurred either on break time or because he was on-call 24-7 for one of those months while his supervisor was on vacation. None of the calls were made at the employer’s expense since he had a 1-800 number for calls to his fiancé. Assam suggests that the true reason for his dismissal was the result of low seasonal vacationing at the resort.

Assam’s claim for unemployment benefits was initially granted, but that determination was reversed by an appeals referee, who found that it was Assam’s misconduct that led to his discharge and disqualified him from receiving benefits. The appeals referee decision denying Assam benefits was mailed to Assam on November 26, 2002.

A few days later, on December 5, 2002, Assam was mailed a second determination stating that the State had overpaid him almost $4,000, and ordering him to return the monies to the Unemployment Compensation Fund. Each decision contained standard form language, advising Assam that he had twenty (20) days from the mailing date of the respective decisions to file an appeal of the decision. Fla. Stat. § 443.151(3) and (4)(2002). Rules promulgated by the Commission allow for appeals from both “determinations” and appeals referee decisions to be filed with the office of the Unemployment Appeals Commission. See Fla. Admin. Code R. 60BB-5.004(3) and R.60BB-5.004(3) (2002)respec-tively.

On December 23, 2002, Assam filed an appeal to the Commission. The notice of appeal was late as to the appeals referee decision by seven days, but timely as to the second determination. The notice appears to be in a different format than the form notice provided for use by the Commission, and was completed in substantial part by hand. The docket number was handwritten on the notice, but Assam did not identify whether he intended to appeal the first or second decision. Thus, one cannot determine from the face of the notice which order is intended to be the subject of the appeal.

Apparently working on the assumption that Assam intended to appeal the first decision, the Commission ordered Assam to show cause why “the appeal” should not be considered untimely., Assam’s response indicated that he understood the mailing of the second decision to subsume and extend the time to appeal both decisions until December 25, 2002, the deadline for the latter. The claimant had apparently confused the appeal deadline date with the overpayment determination deadline date because of the closely dated, staggered mailings. The question before us, therefore, is whether the staggered mailing of the two decisions creating two different twenty-day appeal periods would be “cause” to excuse an otherwise untimely filed appeal.

We agree with the Commission’s position that courts only make exceptions for belated appeals where exigent circumstances justify a review or overturning of the referee. § 443.151(4)(b)(3), Fla. Stat. (2002). Due process violations or situations where the decision itself was not timely mailed warrant an exception to the dismissal rule for belated appeals. See Brumm v. Unemployment Appeals Commission, 680 So.2d 1123 (Fla. 1st DCA 1996); Applegate v. National Health Care Affiliates, Inc., 667 So.2d 332 (Fla. 1st DCA 1995); Landrum v. James Rummer Timber Harvesting, Inc., 645 So.2d 577 (Fla. 2d DCA 1994). Obviously, that is not the situation vexing Assam.

Nothing in today’s decision should be implied to take away from the iron-clad principle that untimely appeals to the Unemployment Compensation Commission are generally barred. Having said that, we sympathize here with the appellant’s position that had the Commission not mailed out two separate letters creating two different twenty day periods, there would not have been confusion as to the appeal deadline. Florida courts under similar circumstances have excused untimeliness when occasioned by the actions of the Commission. See Cornello v. Unemployment Appeals Commission, 624 So.2d 382 (Fla. 4th DCA 1993) (claimant-appellant was denied fundamental due process when applicant was twice misinformed as to his weekly benefit amount and correct information was not mailed to applicant until two days before deadline to file appeal); Pierre v. Oriente Sugar Cane Planting, Inc., 504 So.2d 431 (Fla. 4th DCA 1987) (unemployment compensation claimant, who did not timely receive initial notice of determination pursuant to a misunderstanding as to requirement that he notify claims office of change of address, was denied due process of law when he was thereafter determined to be untimely in his attempt to perfect an appeal of decision to repay money to state). In another case though not exactly on point, but yet involving multiple letters of determination, the Fourth District found that the claimant’s appeal was timely filed when a facsimile letter requesting an appeal had been sent between the time frame of the two determination letters. Brooks v. Unemployment Appeals Commission, 760 So.2d 1108 (Fla. 4th DCA 2000).

Here also, applying considerations of fairness and due process, we believe that the claimant Assam accurately and adequately perfected an appeal of the second overpayment determination, for it was timely filed in accordance with Commission rules. Using similar reasoning, Assam’s appeal of the first decision is untimely. However, because the overpayment determination is so inextricably intertwined with the initial decision denying benefits, we hold that the claimant is free to raise any and all factual defenses to the underlying decision to contest the overpayment determination. In other words, on the facts of this case, and while it may seem anomalous, it is nevertheless legally permissible on remand to find that the first appeals referee erred in reversing the initial eligibility determination, and thereby reverse the overpayment determination, but at the same time not overturn the underlying decision because that decision was not timely appealed.

Reversed and remanded with instructions.

      . Unemployment benefit claims are administered by the state's Agency for Workforce Innovation. A “determination'' is the first level decision that a claimant receives to an application for benefits. If a claimant is dissatisfied with the determination, he or she can appeal to an appeals referee appointed by the agency and thence to a three member Unemployment Appeals Commission. Fla. Stat. § 443.151(3) and (4).


text:
    Jose CHING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-539.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Jose Ching, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Jose Ching appeals the denial of his rule 3.850 motion for post-conviction relief. We affirm because Ching is not entitled to the mid-guidelines sentence he now seeks.

On May 21, 1998, Ching pled guilty to two counts of armed robbery, kidnaping with- a weapon, burglary with assault or battery therein with firearm, and attempted first degree murder. The plea agreement called for a sentence of twenty years in state prison. On September 3,1998, the State filed a motion to correct sentence because Ching had been sentenced under the 1995 Sentencing Guidelines that had been declared unconstitutional. He was sentenced on September 10, 1998 to 15.9 years with a three-year minimum mandatory for the use of the firearm. This sentence was modified on January 10, 2002 based on a recalculation of Ching’s score-sheet, which now called for a sentence of between 7.65 years and 12.75 years. Ching was sentenced to 12.75 years on February 20, 2002.

Ching then filed a motion for post conviction relief in the trial court, pursuant to rule 3.850, Florida Rules of Criminal Procedure. He argued that he should have received a middle-of-the-guidelines sentence, i.e., 10.2 years. The trial court held an evidentiary hearing, after which it denied Ching’s motion.

Ching contends that the trial court erred in denying his motion for post-conviction relief without attaching specific parts of the record to refute his claims. Ching’s contention is misplaced.

The attachment of portions of the record to the order of denial is necessary for this Court to perform its function of reviewing the trial court’s ruling. See Jackson v. State, 602 So.2d 696 (Fla. 4th DCA 1992). However, Florida Rule of Criminal Procedure 3.850(d) only requires the trial court to attach those portions of the record relied on when the trial court does not conduct an evidentiary hearing. When an evidentiary hearing is conducted, the appellate court can review the transcript of the hearing to determine the basis of the trial court’s ruling.

The record here includes the transcript of the evidentiary hearing that the trial court conducted on October 3, 2002, on Ching’s motion for post-conviction relief. As such, the trial court was not required to attach portions of the record to its order denying Ching’s motion for post-conviction relief.

In addition, a review of the plea-colloquy transcript of May 21, 1998 reveals that Ching negotiated for twenty years in state prison and not for a mid-guidelines sentence. He understood that he would be sentenced to twenty years in state prison, not that he would be sentenced to a middle-of-the-guidelines sentence. The plea colloquy shows that Ching entered into the plea freely and voluntarily. There is no mention anywhere in the plea colloquy about a mid-guidelines sentence.

Ching also contends that the trial judge acted vindictively in sentencing him. Again, the record does not support Ching’s position.

A review of the transcript reveals that in this case, the judge did not participate in the plea agreement in the original sentencing hearing on May 21, 1998. At the resentencing hearing in September 2003, the judge also did not participate in the negotiations and did not ask Ching to accept the plea. In addition, there was no disparity between the plea offer and the sentence imposed, since the sentence was exactly the same as the plea offer, twenty years in state prison, which Ching agreed to. Finally, there is no presumption of vindictiveness because the February 20, 2002 sentencing hearing was conducted by a different judge than the one at the original sentencing hearing on May 21, 1998 and the one at the resentencing in September 1998. Thus, it seems clear that no presumption of vindictiveness attached to the sentence imposed. See Wilson v. State, 845 So.2d 142 (Fla.2003); Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003).

The judge at the February 2002 sentencing sentenced Ching to the top of the guidelines. Ching had agreed to be sentenced to the top of the guidelines in September 1998. The original sentence of twenty years imposed on May 21,1998 was a negotiated plea and there was no mention of any guideline ranges. Ching here seeks a benefit to which he is not entitled, i.e., to be sentenced to a mid-guidelines sentence. In light of the foregoing, the trial court properly denied Ching’s motion for post-conviction relief.

Affirmed.

      . In cases where no presumption applies, Ching has the burden of proving actual vindictiveness. See Graham v. State, 681 So.2d 1178 (Fla. 2d DCA 1996). Ching cannot prove actual vindictiveness because the trial court sentenced him to the top of the guidelines where he had agreed to it in the previous resentencing. In addition, each judge gave Ching the chance to withdraw his plea, and Ching chose not to withdraw it.


text:
    The STATE of Florida, Appellant, v. Eduardo GIRALT, Appellee.
    No. 3D03-857.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied May 12, 2004.

      Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Venus Zilieris, and Adrienne Sampson, Certified Legal Interns (Fort Lauderdale), for appellant.
    Joel D. Robrish, Coral Gables; Arthur Joel Berger, Miami, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

The State appeals an order granting Eduardo Giralt’s (“defendant”) motion to dismiss, claiming there was a material fact in dispute and that the undisputed facts established a prima facie case against the defendant for trafficking cannabis. We agree and reverse.

In November of 2001, the police station received a call that the defendant’s home was being burglarized. The first police officer to respond to the call observed a vehicle parked in the defendant’s driveway, occupied by a white male. Two other males were walking along the side of the residence pulling a comforter containing objects, including marijuana, from inside the house.

A subsequent officer arrived on the scene and obtained a search warrant. Upon entering the defendant’s residence, he discovered a hydroponic lab and hydroponically grown marijuana. A further search of the premises revealed a plastic bag full of money and a total of 38.2 pounds of marijuana. Thereafter, the defendant surrendered to the police and was arrested.

The defendant was charged with trafficking cannabis, and sought to dismiss the constructive possession charge on the basis that the State’s case consisted only of the fact that the defendant was the joint owner of the home. According to the defendant, the undisputed facts did not set forth a prima facie case that the defendant was in actual or constructive possession of the marijuana. The State disagreed and filed a traverse. Following a hearing, the trial court granted the defendant’s motion to dismiss.

It is well settled under Florida law that a legally sufficient sworn motion to dismiss must allege that material facts are undisputed, describe what those facts are, and “demonstrate that the undisputed material facts fail to establish a prima facie case of guilt against the defendant.” Fla. R.Crim. P. 3.190(c)(4); see State v. Sedlmayer, 375 So.2d 887 (Fla. 3d DCA 1979). In assessing a motion to dismiss, all facts and inferences are to be reviewed in the light most favorable to the State. See State v. Kalogeropolous, 758 So.2d 110 (Fla.2000); State v. Ortiz, 766 So.2d 1137 (Fla. 3d DCA 2000). Even in cases involving purely circumstantial evidence, the issue of whether such circumstantial evidence excludes all reasonable hypotheses of innocence “may only be decided at trial, after all of the evidence has been presented.” State v. Ortiz, 766 So.2d at 1142.

Here, the defendant admitted in his motion to dismiss that he and his wife were the legal owners of the house. Men’s and women’s clothes were found in the residence along with bills and documents solely in the defendant’s name. The hydroponic laboratory and marijuana were found in one of the bedrooms and it is undisputed that the defendant knew the illicit nature of the marijuana and had been in the home earlier that same day.

Construing these facts in the light most favorable to the State, it is not inconceivable that a reasonable jury would find that the defendant occupied the home, and had knowledge and control over the marijuana and hydroponic lab. Accordingly, we reverse the order below, finding the constructive possession issue should have been presented to the jury, and that the trial court erred in granting the motion to dismiss. See State v. Kalogeropolous, 758 So.2d 110 (Fla.2000); State v. Rodriguez, 640 So.2d 206 (Fla. 4th DCA 1994); Jean v. State, 638 So.2d 995 (Fla. 4th DCA 1994).

Reversed.


author: FARMER, C.J.

text:
    Sandra JOSEPH, Appellant, v. Mark JOSEPH, Appellee.
    No. 4D03-1331.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Evan H. Baron of Baron & Schantz, P.A., Weston, for appellant.
    Felix F. Saborio of Zimmerman, Joseph & Bayne, P.A., Tamarac, for appellee.
   FARMER, C.J.

We reverse a final order modifying child support. The issue on appeal is whether the trial court abused its discretion in ordering a decrease in child support from $826 to $400, without making any findings and conclusions to explain its ruling. Without explicit findings as to the parties’ respective incomes, and explicit legal conclusions as to how the court decided that a reduction was required and an explanation as to how the court calculated the modified amount of child support, the outcome seems arbitrary, especially as it reduced the father’s support obligation by more than fifty percent.

As this court held in Jones v. Jones, 636 So.2d 867 (Fla. 4th DCA 1994):

“While we give full weight to the exercise of the trial court’s sound discretion, the only way to evaluate its discretion is for the trial court to make explicit findings either on the record or by written order. The child support statute mandates this and meaningful appellate review requires it.”

636 So.2d at 869; see also Deoca v. Deoca, 837 So.2d 1137 (Fla. 5th DCA 2003) (order modifying child support payments failed to include finding as to amount of income used to calculate child support, and thus remand was necessary for purpose of making such finding).

We therefore reverse for the entry of an order making explicit findings and conclusions to enable us to review the order. Because of the amount of time elapsing since the evidentiary hearing, the trial court is authorized to receive additional evidence updating the critical facts.

GUNTHER and GROSS, JJ., concur.


author: FLETCHER, Judge.

text:
    Max L. BRAZLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2644.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Max L. Brazley, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

In 1996, Max Lee Brazley was charged with first degree murder (count I), armed robbery (count II), attempted armed robbery (count III), attempted armed burglary (count IV), unlawful possession of a firearm while engaged in a criminal offense (count V), and possession of a firearm by a convicted felon (count VI). Braz-ley agreed to plea guilty to a reduced charge of second degree murder for count I in exchange for a sentence of forty years in state prison and dismissal of other charges pending against him in a separate criminal case. The trial court imposed a general sentence of 40 years concurrent, covering all six counts.

Brazley filed a motion to correct his sentence alleging that was an illegal general sentence. The state conceded error. The trial court then corrected the sentence on three of the six convictions as they were well over the statutory máximums for those offenses by virtue of across-the-board application of 40 years to all counts. Brazley now appeals from the trial court’s order of August 15, 2003, correcting his illegal general sentence as to counts III, IV, and V. We reverse and remand for resentencing.

The state correctly concedes that general sentences for multiple convictions are improper. Fla. R.Crim. P. 3.701(d)(2). The trial court merely adjusted downward those sentences that were beyond the statutory maximum for the offense (counts III, IV, and V), and failed to discuss the remaining counts, which were within the statutory maximum (counts I, II, and VI). The sentences for all six convictions now appear to be within the statutory máxi-mums for each offense.

However, the trial court initially erred in not vacating the entire general sentence, which encompassed all six counts. The trial court then should have imposed a distinct sentence for each convicted offense, including those counts for which the sentences were not over the statutory maximum. See Scott v. State, 747 So.2d 1018 (Fla. 3d DCA 1999)(defendant entitled to vacation and remand of general sentence so that the sentencing order reflects a separate, legal sentence for each offense therein); Hooks v. State, 613 So.2d 607 (Fla. 3d DCA 1993)(same); Lewis v. State, 567 So.2d 50 (Fla. 5th DCA 1990)(same).

Brazley has challenged only the sentences imposed and has not moved to withdraw his plea. We therefore reverse the order granting partial relief from Brazley’s illegal general sentence, vacate the entire sentence and remand to the trial court for resentencing, with instructions to enter a distinct and individual sentence for each felony conviction. Brazley does not need to be present at resentencing. Awad v. State, 364 So.2d 516 (Fla. 4th DCA 1978)(at resentencing necessitated by the trial court’s error in imposing a general sentence, it is not necessary that the defendant be present unless the trial court requires it).

      . Counts II through VI remained as charged.

      . Notwithstanding that the general sentence has already been “corrected” in part below.


author: GRIFFIN, J. PLEUS, J.,

text:
    Paul O. SUPPA, Appellant, v. Donna L. SUPPA, Appellee.
    No. 5D03-2027.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2004.
    Richard Prospect, P.A., Port Orange, for Appellant.
    Garrick N. Fox, New Smyrna Beach, for Appellee.
   GRIFFIN, J.

This is the appeal of a final judgment setting aside a property settlement agreement.

Petitioner below, Paul 0. Suppa [“Husband”], and respondent below, Donna L. Suppa [“Wife”], were married in 1962. The parties entered into a “Marital Settlement Agreement for Divorce, Consent to Jurisdiction, Waiver of Service of Process and Waiver of Notice of Hearing” on June 23, 2000. Neither party was represented by counsel when entering into the agreement, and the agreement indicated they were assisted by S.L. Silvestro, a paralegal, in filling out the agreement form. The agreement included a division of possessions and debts. No alimony was to be paid to either party. Child support was no issue as the parties had no minor children.

Soon after the agreement was executed, a petition for dissolution of marriage was filed. After a hearing on the petition, a “Final Judgment of Dissolution of Marriage with Marital Settlement Agreement” was entered on July 25, 2000. The court ordered that the marriage be dissolved, ratified the marital settlement agreement, and reserved jurisdiction to enforce or modify the terms of the order or the agreement.

On August 22, 2000, Wife, now represented by counsel, filed a “Motion to Set Aside Final Judgment for Dissolution of Marriage and Marital Settlement Agreement.” The motion recited that it was “made pursuant to the Rules of Civil Procedure” — which appears to mean pursuant to Florida Rule of Civil Procedure 1.540. Wife made, inter alia, the following allegations:

3. During the course of the marriage [Wife] was never gainfully employed.
4. Throughout the entire duration of the marriage [Husband] was the “bread winner” of the marriage.
5. Since the date of marriage [Husband] has worked for the Federal Government and is now receiving a pension.
6. The Parties obtained the services of a paralegal, STEPHEN L. SILVES-TRO, a non-lawyer.
7. During the course of the negotiations [Husband] informed [Wife] that she was not entitled to his Government Pension. That is in fact a lie.
8. That lie was used to induce [Wife] to sign away her rights to the Pension. [Wife], as a matter of law, has a one-half interest [in] [Husband’s] Pension.
9. During the course of the negotiations, [Husband] threatened [Wife] with putting her in abject poverty if she did not sign the “divorce papers.”
10. [Husband] threatened [Wife] that if she did [not] sign the papers, he would delay the divorce and make the divorce out to be [Wife’s] fault.
11. [Wife] is uneducated in this area in that she has been a homemaker for many, many years. In that position she has been sheltered from the world, thus [Husband] is in a superior, emotional and knowledge stand point.
12. Due to [Husband’s] threats and intimidation [Wife] was induced into signing the Agreement.
13. During the negotiations [Husband] surreptitiously removed from the parties (sic) joint savings bonds in the approximate amount of $100,000.00. [Wife] did not receive any of those funds in the divorce settlement.
14. [Husband] also “short changed” [Wife] in the equitable distribution of their money market, annuities and other financial accounts. [Husband] did this in a secretive way.
15. The Settlement as entered into by the Parties is uncongenial for the following reasons, but not limited to:
a) [Wife] was induced into giving up a Pension that has an approximate value of $600,000.00.
b) [Wife] was induced into giving up bonds in the approximate amount of $100,000.00 by direct fraud and thievery of [Husband].
c) [Husband] did not equitably divide the financial accounts as he promised.
d) [Husband] defrauded [Wife] into signing the contract thus the contract was fraudulent (sic) obtained.
e) There was no financial disclosure ' as required by the Rules of Civil Procedures (sic). [Husband] requested this in order to conceal his fraud.

(emphasis in original). Wife requested the agreement be set aside and Husband be ordered to pay attorney’s fees.

Although there were apparently two hearings during which testimony of the parties and other witnesses was taken and exhibits were placed into evidence, Husband has only included in the record an excerpt of the hearing on November 4, 2002, containing the oral findings and the ruling of the court. The trial judge began by explaining that the case was controlled by Casto v. Casto, 508 So.2d 330 (Fla. 1987). The trial court declined to find fraud, but ruled that there was a lack of disclosure by Husband and a lack of understanding by Wife. The judge said:

Otherwise, there’s no way, a 38-year marriage, together five years before that, absolute by law entitlement to either permanent alimony or one half of the pension. That’s — that would not even be — the lawyers wouldn’t even be here debating that. She would absolutely be entitled to that.
So I do — I do think the Casto case controls as far as the fact that the basic inherent unfairness of the agreement brings me to the fact that she either.— there was either concealment or lack of knowledge on her part. And, therefore, the burden would shift to [Husband], that he did explain everything to her fully; that she understood it and knowingly and willingly signed that, notwithstanding she gave up so many rights. And I don’t think that burden has been met. '

Counsel for Husband objected that Wife had only alleged fraud or duress and, because the court found there was no fraud or duress, Wife did not properly plead grounds to set the agreement aside. The Court responded:

Well, the argument is she was without adequate knowledge because of fraud or duress. I’m finding that she was without adequate knowledge, without specifically finding fraud or duress. And I think under Casto you don’t have to find fraud or duress, if I make the finding that there is a basic inherent unfairness.

Counsel for Wife then moved to amend the pleadings to conform with the evidence, which the court granted, and thereafter, ordered the settlement agreement set aside.

We find no error in the decision to set aside the agreement. Husband urges one single point on appeal, that Wife had only alleged fraud in her rule 1.540 motion, and so granting relief on any other basis was not permissible.

First, we note that lack of financial disclosure was alleged in the Wife’s motion to set aside the agreement. Also, it was not an abuse of discretion to allow an amendment to conform to the evidence.

Finally, the trial court correctly applied the test set forth in Casto to the facts of this case. The Casto court explained:

[T]he fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement. The critical test in determining the validity of marital agreements is whether there was fraud or overreaching on one side, or, assuming unreasonableness, whether the challenging spouse did not have adequate knowledge of the martial property and income of the parties at the time the agreement was reached.

Id. at 333-334 (citations omitted) (emphasis added). This case is controlled by Cas-to. The trial court expressly found that this was not an arms’ length negotiation and that Wife did not know her rights.

AFFIRMED.

THOMPSON, J, concurs.

PLEUS, J., concurs and concurs specially with opinion.

PLEUS, J.,

concurring specially.

I concur completely with Judge Griffin’s analysis and conclusion, and write only to observe that this is a classic case of why parties to a divorce need competent legal advice. When you hire a non-lawyer paralegal, you get what you pay for.

      . In accordance with Florida Family Law Rule 12.540, relief from judgment in family law cases is governed by Florida Rule of Civil Procedure 1.540.

      . Husband’s actual date of retirement does not appear in the briefs or the appendix, and is unknown.


author: GRIFFIN, J.

text:
    James P. MERTING, Appellant, v. Candice J. MERTING, Appellee.
    No. 5D03-969.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2004.
    James M. Campbell, Orlando, for Appellant.
    Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Clermont, for Appellee.
   GRIFFIN, J.

This is an appeal of an order on petition for modification and petition to enforce final judgment, which we affirm in part and reverse in part.

The final judgment of dissolution of the marriage of Candice J. Merting [“Wife”], petitioner below, and James P. Merting [“Husband”], respondent below, was entered on August 26, 1998. Prior to the entry of final judgment, Husband and Wife entered into a marital settlement agreement dated July 81, 1998 [“the Agreement”], and that Agreement was incorporated into the final judgment of dissolution of marriage. This Agreement had at least two peculiar characteristics. First, it contemplated that in order for Husband and Wife to meet them goal of shared parenting of their two minor children, Husband would continue to reside -in the marital residence with Wife -until Three months after the youngest child graduates from high school, at which time he was obliged to leave. This Agreement gave Wife the right of possession of the home and contained elaborate terms concerning which rooms Husband could access and when, who did which chores and how meals would be handled. The Agreement provided that Husband had the right to remain in the marital home under the Agreement unless his behavior- was inappropriate, he caused “undue” -stress to Wife or there were problems relating to the minor children due to the arrangement.

The other unusual thing about the Agreement is that Husband agreed to pay specified child support calculated in the Agreement to be “all the bills and expenses associated with the former marital residence as they have been customarily incurred in the past.” These expenses are listed in detail and totaled $4,731.69. Additionally, Husband'agreed to pay medical and hospitalization expenses for the children, life insurance and college. The Agreement recognizes that this agreed-to child support exceeded the child support guidelines. Especially odd was the fact that, given Husband’s income, it was beyond his ability to pay.

The Agreement also made provision for alimony as follows:

11. PERMANENT PERIODIC ALIMONY: As long as the Wife resides in the former marital home, the Husband agrees to pay all the Wife’s expenses and bills consistent with past expenses and bills as set forth in the Wife’s Financial Affidavit dated January 30, 1998 including medical insurance, household expenses and automobile expenses as set forth in Paragraph 7 above as well as the following monthly expenses ...
The Wife shall also receive incidental benefits of use of the former marital residence, other monies spent .in the household and automobile expenses as set forth in Paragraph 7 above. The parties agree that alimony is not taxable to the Wife and shall not be deductible from the Husband’s income.
On the first day of the first month following the sale of the former marital residence pursuant to the terms as set forth in Paragraph 12 below, the Husband shall pay permanent periodic alimony to the Wife in the minimum amount of $2,000.00 per month and $2,000.00 shall continue to be payable from the Husband to the Wife on the first day of each and every month thereafter until the Wife remarries or dies or the death of the Husband. In the event the Husband’s gross income exceeds $100,000.00 in any given year, alimony shall automatically be increased by 25% of the Husband’s income that is greater than $100,000.00, said 25% shall be payable to the Wife in twelve equal monthly installments during the following year in addition to the $2,000.00 permanent periodic alimony as set forth above.

The total alimony to be paid by Husband per month as set forth above was $790.00.

Paragraph 12 of the Agreement referred to in the above provisions concerned equitable distribution:

12. EQUITABLE DISTRIBUTION:
As and for equitable distribution of the marital assets of the parties, the parties agree as follows:
(a) Marital Home: The marital residence of the parties is and has been located at 10823 Crescent Lane, Cler-mont, Florida 34711. The parties agree to remain joint owners of said residence and agree to put said residence on the market to sell at a mutually agreeable price three months after the graduation of the youngest child from high school. The Husband shall pay all expenses relating to said residence until said residence is sold....

The final judgment provided that “The Martial Settlement Agreement dated July 31st 1998 is hereby approved and incorporated into this Final Judgment of Dissolution of Marriage by reference, and the parties are ordered to comply with same.”

It should be noted that prior to the signing of the Agreement in July 1998 and the entry of the final judgment in August 1998, Husband filed a family law financial affidavit which showed his current income was $26,000.00 per year ($2,000.00 per month plus commissions) with an automobile allowance of $250.00 per month and up to $125.00 per month for a cell phone. Husband also stated his net income for the last calendar year, 1997, was $41,572.36.

The record suggests that Husband moved out of the marital home in January 2000. Husband then filed an initial petition for modification of the final judgment, although the record before us does not reflect the date of the petition. In his letter dated September 26, 2000, explaining his decision to deny the petition, the judge said:

[The marital settlement agreement] called for child support in the amount of $4,731.61 [sic] per month, alimony of $790 per month along with other financial obligations. The alimony is without taxable consequence. Suffice it to say that every provision in the Final Judgment is heavily weighted in favor of [Wife]. At the time of entry into the marital settlement agreement [Husband] was unrepresented. The agreement contemplates payments for [sic] greater than [Husband’s] income and ability to pay. [Husband] seeks relief from that judgment.
[Wife] wins. She has objected to granting [Husband] any relief. [Husband] has the burden of proving a substantial change in circumstances. The evidence was insufficient to carry this burden. At the time [Husband] entered into the marital settlement agreement he lacked the ability to meet his financial obligations. His income at the time he entered into the marital settlement agreement was less than his current income. While he was living in the marital residence at the time the agreement was executed, his leaving that residence was contemplated within the agreement. [Husband] made a bad deal. The agreement could well be considered unconscionable. However, the law is clear that the court is not authorized to rewrite or renegotiate the agreement. Only the parties can do that.
[Wife] realizes [Husband] does not have the ability to comply with the court ordered obligations. [Husband] is significantly in arrears however, [Wife] has not sought to having [sic][him] held in contempt of court. Instead of attempting to negotiate some workable compromise, [Wife] has simply objected to [Husband’s] Petition for Modification. The result is a situation where [Husband] is unable to meet his own basic needs. How long [Husband] can maintain is speculative. The court hopes this doesn’t get to the point where [Husband] gives up and leaves the jurisdiction. Certainly [Wife] and the parties [sic] children will not benefit if this occurs. However, the court cannot protect the parties from their own choices and decisions.

On April 5, 2002, Husband filed a second petition for modification of the final judgment of dissolution of marriage. Husband alleged that there had been a substantial change in circumstances warranting a modification because Wife had sold the marital home on November 1, 2001, and, with the sale of the house, Wife no longer had the household expenses set forth in the Agreement. Also, although Husband’s income level at the signing of the Agreement was projected to be $75,000.00 per year, through no fault of his own, he never reached that income level, and Wife was now employed full-time. Finally, one of the two minor children had reached the age of majority. Husband requested child support be modified pursuant to the guidelines for the payment of only one child, and he requested a downward modification of alimony.

The order on Husband’s petition for modification and Wife’s petition to enforce final judgment was denied in part and granted in part on February 28, 2003. The court made the following findings:

1. A Final Judgment of Dissolution of Marriage (“Final Judgment”) was entered on August 26, 1998, which incorporated a July 31, 1998 Marital Settlement Agreement (“MSA”) and which required [Husband] to pay child support and alimony under certain terms and conditions.
2. The MSA provides that the child support will not be paid in accordance with the Uniform Child Support Guidelines, but would be payable based on certain monthly household obligations of [Wife] in the amount of $4,731.69 and until the youngest child graduated from high school or until said minor child attains the age of 19, whichever occurs first.
4. The MSA and Final Judgment also require [Husband] to pay $790.00 a month until the former marital home is sold, after which [Husband] must pay permanent periodic alimony to [Wife] in the amount of $2,000.00 per month, subject to increases if [Husband’s] income exceeds $100,000.00 a year.
5. When [Husband] agreed to the terms of the MSA his income was $25,000.00 per year, which was insufficient to meet the financial obligations that he had agreed to in the MSA.
6. [Husband] previously filed a Supplemental Petition to Modify the Final Judgment (“Supplemental Petition”), which was denied because, inter alio, [Husband] was earning more wages at the time of filing his Supplemental Petition then [sic] he did at the time of signing the MSA and, because the Court has no authority to renegotiate or rewrite parties’ agreement or save him from what [Husband] claims to be an unfair agreement.
7. [Husband] has failed to pay the required child support or alimony and is in arrears with his child support obligations in the amount of $47,385.92 and in arrears with his alimony obligations in the amount of $36,590.00.
8. [Husband] argues that a significant change in circumstances has occurred requiring a reduction in child support and alimony because in January 2003 his employment with Wayne Automatic, where he was earning approximately $86,000.00 a year, was terminated and he is presently only earning approximately $56,000.00 a year.
9. [Husband’s] reduction in income, however, is not a significant change in circumstances because he is presently-earning more than twice the amount he was earning at the time he signed the MSA and at the time his Supplemental Petition was denied.
10. [Husband] further argues that a significant change in circumstances has occurred because he is no longer residing in the former marital home, and because the monthly child support obligation he agreed to in the MSA was based on the understanding that [Husband] would continue to reside in the former marital home.
11. [Husband], however, has not resided in the former marital home since January 2000, which was approximately ten months before the court denied [Husband’s] Supplemental Petition. Therefore, as a matter of law, [Husband’s] vacation of the marital home does not constitute a significant change in circumstances.
12. [Wife’]s sale of the former marital home in March 2002, is a substantial change in circumstances, because by relocating, [Wife] has been able to reduce her monthly household obligations to $3,996.00 from April 1, 2002 to February 2003 and further reduce the same obligations to $3,596.00 as of March 1, 2003.
13. In addition, [Wife’s] sale of the former marital home requires that [Husband’s] monthly alimony be increased to $2,000.00 a month as provided in the MSA.
14. As to whether or not the alimony is income to [Wife] and an income tax deduction to [Husband], the clear language of the MSA states that alimony is not taxable to [Wife] and shall not be deductible from [Husband’s] income.
* * *
17. [Husband] has no ability to pay attorneys’ fees.

Based on these findings, the lower court ordered that child support obligations be reduced to $3,996.00 per month from April 1, 2002 to February 1, 2003, and he received ten months’ credit for the reduction. His child support obligations were also reduced to $3,596.00 per month commencing March 1, 2003. Husband’s alimony obligation was increased to $2,000.00 per month retroactive to April 1, 2002.

Husband argues on appeal that, although the lower court found that there had béen a substantial change in circumstances due to the fact that Wife sold the marital home, had become employed, and the oldest child had reached the age of majority, the lower court erred in failing to order support in accordance with the child support guidelines. See Bunassar v. Diaz, 804 So.2d 487 (Fla. 3d DCA 2001).

Wife contends that the lower court correctly upheld the Agreement incorporated into the final judgment by ordering child support to be paid in accordance with Wife’s current monthly household expenses rather than the uniform child support guidelines and by requiring $2,000.00 in alimony as provided in the Agreement after sale of the marital home. Wife emphasized that the trial court had ruled in 2000 that the Agreement between the parties was enforceable and could not be remade, and that this unappealed order was controlling. This case does not involve “remaking” the Agreement, however, but ascertaining what it means and how it applies to the changed circumstances. We consider this question de novo, and we conclude that Husband is correct.

The provision in the Agreement regarding child support provided:

E. SUPPORT FOR THE MINOR CHILDREN:
It is the goal of the parties for [Wife] and [Husband] to reside amicably, however, separately in the former marital residence ... in order for both parties to fully participate in shared parenting. To accomplish this goal, [Husband] shall pay child support in excess of the child support guidelines. [Husband] shall pay all the bills and expenses associated with the former marital residence as they have been customarily incurred in the past.
Child support shall continue to be payable as set forth above until the youngest minor child graduates from high school or until said minor child attains the age of nineteen, whichever event shall first occur.

The trial court correctly found that the sale of the marital residence was a substantial change in circumstances, but the trial court incorrectly adjusted child support based on Wife’s testimony of her current monthly expenses since sale of the home. The Agreement does not, however, provide for what happens to the child support upon sale of the former marital residence before the date referenced in the Agreement — three months after the youngest child’s eighteenth birthday. The Agreement appears to contemplate only that child support will be based on the financial assumptions tied to Wife’s residing in the marital home until after the youngest child’s graduation. Although the parties addressed the sale of the home in the Agreement as it affected alimony, the parties did not address the sale of the home as it concerned child support. Plainly, this was because the marital home was not to be sold until no more child support was payable. By simply substituting Wife’s current living expenses in the new home for the expenses relating to the marital home, the court did exactly what Wife urged could not,. be done — the court remade the Agreement. Because there was no agreement by the parties as to the amount of child support in the event the home was prematurely sold, the modification should have been determined based upon the ehild support guidelines in section 61.30, Florida Statutes (2002). See Bunassar. We accordingly remand to the lower court with instructions to calculate Husband’s child support obligations pursuant to the guidelines.

Husband also contends the trial court erred in modifying alimony upward. He urges that, from reading the entire Agreement, it is clear that Wife’s alimony was to increase to $2,000.00 upon sale of the marital home after the youngest child reached the age of majority. Once the youngest child reached the age of majority, there would be no more child support, the house would have been sold, and the $2,000.00 would be for Wife’s permanent support. Husband urges that the trial court’s conclusion that, by the simple act of selling the home, Wife became entitled to an increase in alimony was illogical. He asserts that, under the Agreement, the alimony should not increase from $790.00 to $2,000.00 per month until such time as the child support obligation terminates. We agree. Under the Agreement, Husband is to continue paying alimony in the amount of $790.00 per month, plus child support, until the youngest child has graduated from high school, at which time it will increase to $2,000.00 per month.

AFFIRMED in part; REVERSED in part and REMANDED.

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

      . There is no paragraph 3 in the order, which appears to be a typographical error.


author: SHARP, W., J.

text:
    Penelope KLOEPPER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-1194.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2004.

      Penelope Kloepper, Kissimmee, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   SHARP, W., J.

Kloepper appeals from an order of the Unemployment Appeals Commission which reversed the decision of the appeals referee and held Kloepper was not entitled to unemployment benefits. Because we conclude that the Commission ignored and modified the referee’s fact findings on critical matters, we reverse.

Kloepper was a front-desk agent at a Ramada Inn in Kissimmee, Florida, operated by Fountain Park Hospitality, Inc. In October 2002, Kloepper quit her job. She requested unemployment benefits and they were denied. She requested a hearing at which she testified she left her position as a front desk agent because she was being “forced” out, her work hours were being cut, and she was constantly becoming ill'due to unhealthy conditions in her work site.

The testimony at the hearing was controverted. The appeals referee ruled in favor of Kloepper, making the following findings and conclusions:

Findings of Fact: The claimant was employed as front desk help beginning on March 1, 1997. The claimant never told the supervisor that she had medical problems and dissatisfactions with the job. The claimant was diagnosed with bronchitis four times and pneumonia as result of the work environment. The claimant advised the employer of her medical diagnoses. The employer did not address the claimant’s concerns until after OSHA inspected the jobsite. The employer stated that he purchased the job site in the condition that caused the claimant’s medical problems. The claimant was dissatisfied with the working conditions and quit the job on October 24, 2002.
Conclusions of Law: The law provides that a claimant who has voluntarily left work without good cause as defined in the statute shall be disqualified from receiving benefits. “Good cause” includes only such cause as is attributable to the employing unit or which consists of an illness or disability of the claimant requiring separation from the work. The term “work” means any work, whether full-time, part-time or temporary.
The record and evidence in this case show that the claimant was dissatisfied with the working conditions and voluntarily quit the job.
An individual who leaves work voluntarily, as the claimant did, carries the burden to show that the leaving was with good cause attributable to the employer, in order to qualify for unemployment compensation benefits.
That burden has been met in this case. The claimant had a duty to and did advise the employer of any concerns in order to give the employer an opportunity to address them. The claimant asked the employer for help in making the job suitable. The claimant made reasonable efforts to preserve the employment. The claimant has shown that the employer violated the agreement of hire, that the separation was attributable to the employer, or that working conditions were so harsh as to require separation from employment. Moreover, the steps taken to preserve the employment requires the referee to conclude that the claimant voluntarily quit the job with good cause attributable to the employer, or for reasons of health. Therefore, it is concluded that the claimant is not disqualified from the receipt of benefits.
There were conflicts in testimony which came before the referee for resolution. All relevant conflicts were resolved in favor of the claimant, based upon the candor of the parties at the hearing.

An employee who voluntarily leaves her employment without good cause attributable to her employer is not eligible to receive unemployment compensation benefits. § 443.101(l)(a), Fla. Stat. This subsection only protects workers of employers who wrongfully cause their employees to “voluntarily” leave their employment. The burden is on the claimant to show that her voluntary departure from employment was attributable to the wrongful conduct of her employer. Brown v. Unemployment Appeals Com’n, 633 So.2d 36 (Fla. 5th DCA), rev. denied, 642 So.2d 1362 (Fla.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995).

“Good cause” for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment. The standard for determining good cause is a standard of reasonableness applied to the average man or woman, and not to the supersensitive. Brown; Ritenour v. Unemployment Appeals Commission, 570 So.2d 1106 (Fla. 5th DCA 1990).

However, once the referee makes a determination regarding a claim, the Commission reviews that decision to determine whether the referee’s findings of fact were based on competent substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law. Where there is competent substantial evidence to support the referee’s findings of fact, the Commission may not reweigh the evidence and substitute its findings of fact for those of the referee: Kelly v. Unemployment Appeals Com'n, 823 So.2d 275 (Fla. 5th DCA 2002); Anderson v. Unemployment Appeals Com’n, 822 So.2d 563 (Fla. 5th DCA 2002).

The Commission may reach a different conclusion of law from that of the referee. Ritenour. However, the Commission may not modify a referee’s -findings of fact to reach a different legal conclusion nor rely on facts that were not established at the hearing conducted by the referee. Kelly; Anderson.

Here the Commission seems to have relied on “facts” not established nor found by the appeals referee in order to reach a different legal conclusion. The Commission states Kloepper complained to the employer about her working conditions and the employer responded to her complaints and the subsequent OHSA investigation “by, among other efforts, replacing the office carpet and wallpaper and by cleaning the office.” (emphasis added).

Kloepper testified her employer, Guala-no, had the office cleaned, the carpet replaced and the wallpaper stripped down. However, there seems to be no testimony Gualano did anything else. In other words, there were no “other efforts” as the Commission states.

The Commission also states it was not specifically established that the employer refused to specifically resolve any of Klo-epper’s complaints. However, the appeals referee found the employer did not. address Kloepper’s concerns until, after OSHA. inspected the jobsite. Furthermore, the employer did not present evidence its remodeling resolved Kloepper’s health problems. Kloepper testified her doctor said her illnesses were caused by mold and mildew in the office, poor air-conditioning and the ventilation system. There was no evidence the air-conditioner and ventilation systems were cleaned.

The Commission further states it was' not established that the employer violated Kloepper’s terms of employment by cutting her hours or by requiring her to wear her work uniform while on duty. However, the appeals referee made no findings on these two issues, both of which were disputed by the parties. The appeals referee did note that all relevant conflicts in the evidence were resolved in Kloepper’s favor.

Finally, the Commission states the evidence indicates Kloepper “worked under essentially the same conditions for more than the last year of her employment. Thus the claimant did not meet her burden of establishing that health reasons required her to quit.”

Kloepper testified she had pneumonia twice and bronchitis at least twice in 2002, the last year she was at the hotel. Kloep-per also testified she filed a worker’s compensation claim for pneumonia and/or bronchitis. Kloepper admitted she would have continued to work at the hotel if she did not find another job because she had to have the money and benefits. The fact that Kloepper stayed on the job does not mean the unhealthy conditions, were remedied — only that she needed the pay and benefits.

Spangler v. Unemployment Appeals Com’n, 682 So.2d 98 (Fla. 5th DCA 1994), is very similar to this case. Spangler worked as a stoeker at a Wal-Mart store. She was required to move overstocked goods which had been stored for more than two years. The cartons were covered with rodent droppings, blood and urine. She developed a rash and upper respiratory illness, which she thought had been caused by the unsanitary conditions. She complained about the conditions and asked for gloves and a mask but was told she would have to provide these items for herself. When she refused to work in the storage area, she was sent home, and not paid. Later Spangler was told to work in the storage area again and when she complained, the manager told her she would have to “clock out” or go home. Her supervisor told her there were no other job openings in the store, and that as part of her assignment, she would be expected to work in the storage area. Spangler then resigned.

The hearing officer determined that the conditions in the storage area in which Spangler was required to work were unsanitary, and that no employee should be required to work in such conditions. However, the hearing officer concluded Span-gler was not entitled to unemployment compensation because she did not allow her employer sufficient time to remedy the situation. The Commission affirmed.

On appeal, this court held the record supported the hearing officer’s finding that no individual should be required to work around rodents or rodent droppings against her will. However, the record did not support the hearing officer’s conclusion that had Spangler’s employer been given more time, something would have changed to ameliorate her working conditions, and that she was unreasonable for not waiting longer for her employer to change her job situation. Although an employee should be expected to make reasonable efforts to preserve her employment, there was nothing Spangler could have done to remedy the unsanitary and unhealthy working conditions. Nor did her employer offer her any hope of a transfer or other remedy.

Here the appeals referee specifically found that Kloepper was diagnosed with bronchitis and pneumonia as a result of the work environment. Just as Spangler should not be required to work around rodents or rodent droppings, Kloepper should not have to work in an environment which causes bronchitis and pneumonia. Although Kloepper’s employer did take some steps to correct the problem, the appeals referee did not find these steps actually corrected the problem.

The two cases the Commission relies on to support its decision — Brown v. Unemployment Appeals Com’n, 633 So.2d 36 (Fla. 5th DCA), rev. denied, 642 So.2d 1362 (Fla.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995) and State Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977) — are distinguishable. In both cases, the employer corrected the unsuitable work condition. Brown (employer offered to transfer employee who was sexually harassed to another building, away from harasser); Dietz (employee, who was disgruntled because he was assigned to lesser paid work, was told by his supervisor that if he returned to work he would, upon request, be reassigned to his previous position). Here the employer took some steps to remedy the problem but did not establish that the problem was in fact remedied.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.


author: SHEPHERD, J.

text:
    Jose Luis RODRIGUEZ, Appellant, v. Charles McRAY, Acting Director Miami-Dade County Corrections and Rehabilitation, and the State of Florida, Appellee.
    No. 3D04-797.
    District Court of Appeal of Florida, Third District.
    April 16, 2004.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   SHEPHERD, J.

Petitioner, JOSE LUIS RODRIGUEZ, seeks a writ of habeas corpus as a result of the denial of his motion for bond reduction. See Fla. R.Crim. P. 3.131(d)(3).

Petitioner is presently being held under an increased bond in the sum of $75,000 for the offense of one count of aggravated battery, and one count of animal cruelty. When originally arrested, he was released from custody upon the posting of a below standard bond in the sum of $4,500.00.

It appears from the record that the augmentation of the bond was driven by the fact that two alias capias warrants had issued for the accused in the underlying proceeding since the date of his initial arrest-one for failing to appear at a hearing and one for the failure of petitioner to appear on a scheduled trial date. However, the record also reveals that both had been quashed-the first because petitioner was unavoidably hospitalized at the time of the hearing and the second because petitioner was incarcerated in the Broward County jail on the day of his scheduled trial as a result of a probation violation triggered by the instant charges. His probation from his offense in Broward County has since been reinstated.

Because both of petitioner’s failures to appear as required below were unavoidable, we determine that the trial court abused its discretion in increasing the amount of petitioner’s bond to $75,000. State ex rel. Smith v. Untreiner, 246 So.2d 158, 159 (Fla. 1st DCA 1971)(applying abuse of discretion as the appropriate standard of review). According to representations made by counsel for the defendant, the petitioner is a lifelong resident of Miami-Dade ‘County, his mother and his four children live in Miami-Dade County, and his income has been approximately $250.00 per week from a landscaping business owned and operated by him. “The object of bail in a criminal case is to put the accused as much under the power 'of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and to do what the law may require of him.” Matera v. Buchanan, 192 So.2d 18, 20 (Fla. 3d DCA 1966). At the same time, bail may not be used to punish an accused. Untreiner, 246 So.2d at 159. Moreover, depending on the financial circumstances of the defendant, excessive bail can be tantamount to no bail at all. Good v. Wille, 382 So.2d 408, 410 (Fla. 4th DCA 1980). We believe that these precepts are the guiding ones that should govern this case.

Except for the fact that petitioner has one prior conviction in Broward County, this case is similar on its facts to those in Rawls v. State, 540 So.2d 946 (Fla. 5th DCA 1989) ($20,000 bond for indigent charged with possession of cocaine and marijuana but who had substantial community ties found excessive). Although mindful that the judgment of the trial judge should not be lightly set aside and that each case must be considered on its own facts, we nevertheless conclude here that the increased bond established by the trial court is excessive. Cf. Matera, 192 So.2d at 21 (“Where only one conclusion can be drawn, the appellate court is obligated to afford petitioner his relief’). Accordingly, we reverse and remand this case for the trial court to re-evaluate and reduce petitioner’s bail to an amount that is consistent with the guidance provided herein.

This opinion shall take effect immediately, notwithstanding the filing or disposition of any motion for rehearing.

Reversed and remanded with directions.

      . The better practice would have been for the defendant to offer sworn proof in support of his motion since the burden of proof to show reversible error is on him. However, we have also held that "In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.” Matera, 192 So.2d at 20-21, citing Anglin v. Mayo, 88 So.2d 918 (Fla.1956). On remand, the defendant should be offered the opportunity to offer sworn proof in support of reduced bail.


text:
    Adrian MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5180.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct illegal sentence in which he alleged that the 80-month sentence he received upon violating probation following his successful completion of boot camp is illegal. Because the record conclusively establishes the facial sufficiency of the motion and the appellant’s legal entitlement to relief, we reverse.

On October 14, 1999, the appellant was sentenced to 55 months’ imprisonment for the offenses of aggravated-battery with a firearm and possession of a firearm by a minor. The court did not explicitly sentence him as a youthful offender but recommended that he be sent to a facility for youthful offenders. While incarcerated, the Department of Corrections (“DOC”) recommended and accepted the appellant into the boot camp program. After the appellant successfully completed the program, DOC filed a motion to modify the appellant’s sentence pursuant to section 958.045, Florida Statutes (1999), and his sentence was modified from 55 months’ imprisonment to 4 years’ probation. The appellant subsequently admitted to violating his probation, his supervision was revoked, and he was sentenced to 80 months’ incarceration with credit for time served.

The appellant filed a motion to correct illegal sentence, alleging that upon his violation of probation, he could not be sentenced to a term of incarceration exceeding 364 days pursuant to sections 958.045(2)(b) and 958.045(5)(c), Florida Statutes (1999). See Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002); Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000). Although the trial court acknowledged the applicability of these authorities, the trial court reasoned that, pursuant to State v. Meeks, 789 So.2d 982 (Fla.2001), if an appellant commits a substantive violation of his probation, a trial court can revoke youthful offender status and sentence the appellant to the maximum sentence authorized for the offense of which he was found guilty. Meeks, however, is inapplicable to the current case because the appellant therein did not complete boot camp whereas the appellant in the instant case did. Upon violation of probation, Meeks was subject to resen-tencing pursuant to section 958.14, Florida Statutes, which is the general youthful offender law that the supreme court interpreted in Meeks. Here, however, the appellant completed boot camp, and therefore, upon his resentencing for violation of probation, he was subject to section 958.045(5)(c), which is a specific law pertaining to sentencing youthful offenders after boot camp completion. Well established principles of statutory construction require the specific statute to control over the general statute. See State v. J.M., 824 So.2d 105, 112 (Fla.2002). Therefore, the supreme court’s interpretation of section 958.14 in Meeks is inapplicable to the appellant’s present sentence.

We accordingly reverse the trial court’s summary denial of the appellant’s motion and remand for sentencing consistent with Bloodworth and Thomas.

REVERSED AND REMANDED.

ALLEN, PADOVANO and LEWIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Marie ISAAC, Appellant, v. GREEN IGUANA, INC., d/b/a Medical Billing Group, and Associated Industries Insurance Company, Inc., Appellees.
    No. 1D03-2198.
    District Court of Appeal of Florida, First District.
    April 19, 2004.

      Joseph Bilotta, Palm Springs, for Appellant.
    Mary Ann Stiles and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tallahassee, for Appellees.
   VAN NORTWICK, J.

The claimant in this workers’ compensation appeal, Marie Isaac, appeals a final order of the Judge of Compensation Claims (JCC) which finds that she is guilty of fraud within the meaning of section 440.105(4)(b), Florida Statutes (1999), and therefore not entitled to any past or future benefits from appellees Green Iguana, Inc., d/b/a Medical Billing Group, and Associated Industries Insurance Company, the employer and carrier respectively (employer/carrier), pursuant to section 440.09(4), Florida Statutes (1999). Claimant does not challenge the JCC’s decision to deny the past benefits claimed, which decision is based upon competent substantial evidence other than the alleged fraud. She argues that it was a violation of due process for the JCC to consider a denial of benefits under section 440.09(4) without giving her prior notice and an adequate opportunity to defend the charge. Under the circumstances below, we agree. Accordingly, we reverse and remand to the JCC to delete the finding of a violation of section 440.105(4)(b), Florida Statutes, and remove any reference to claimant’s inability to pursue future benefits.

Claimant injured her knee while working for the employer. Shortly thereafter, she was terminated for absenteeism. Her orthopedist diagnosed a torn ACL and medial meniscus, and the carrier began paying temporary benefits. During the period she was receiving benefits she began working for a different employer. She continued to collect workers’ compensation benefits for two months while so employed. These facts were known by the employer/carrier at least eight months before the final merits hearing and at the time of the pre-trial conference; yet, the employer/carrier failed to raise a defense based upon sections 440.09(4) and 440.105(4)(b) prior to the merits hearing. On the day of the merits hearing, the employer/carrier sought to raise a fraud defense for the first time. Claimant objected on the grounds of due process. The JCC agreed the defense was untimely raised and ruled that it would be disallowed.

During the hearing and over objection, the JCC nevertheless allowed the employer/carrier to elicit testimony concerning the alleged fraud. Claimant attempted to explain her actions. Thereafter, the JCC entered a final order denying the past benefits claimed based upon the claimant’s voluntary limitation of income, among other reasons. Further, in the order, the JCC acknowledged the earlier ruling sustaining the claimant’s objection to a fraud defense, but sua sponte reconsidered and reversed the earlier ruling. The JCC ruled that claimant was not prejudiced because she had an opportunity to explain her actions. The JCC found that claimant’s actions constituted an alternative ground to deny benefits, ruling as follows:

In addition to the previous grounds for denial of Claimant’s claim, the Court finds an independent ground exists as per § 440.105(4)(b), that Claimant knowingly engaged in prohibited activity for the purposes of obtaining payment of indemnity benefits. Therefore, pursuant to F.S. § 440.09(4) she is not entitled to compensation or benefits under chapter 440, and the Claimant’s claim is DENIED IN ITS ENTIRETY.

Section 440.09(4) provides that an employee will not be allowed compensation benefits if the JCC “determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 for the purpose of securing workers’ compensation benefits.” Section 440.105(4) (b) contains numerous examples of false, fraudulent or misleading activity which are prohibited.

An injured employee’s right to receive workers’ compensation benefits is a property right protected by procedural due process safeguards including notice and an opportunity to be heard. Rucker v. City of Ocala, 684 So.2d 836, 840-41 (Fla. 1st DCA 1997). To ensure that due process is accorded, Florida Rule of Workers’ Compensation Procedure 4.045 provides for a detailed pre-trial procedure. Pursuant to that rule, the parties are required to set forth their claims, defenses and issues at the pre-trial conference. Fla. R. Workers’ Comp. P. 4.045(h)(1). It is undisputed in this case that, even though the employer/carrier had knowledge of the facts which they now argue constituted fraud, the employer/carrier failed to raise the defense of fraud at the pre-trial conference or in the pre-trial stipulation. Thus, it was contrary to the procedural due process established for workers’ compensation cases for the employer/carrier to seek to amend the pre-trial stipulation to include the affirmative defense of fraud at the time of the final merits hearing.

While rule 4.045 contemplates that a JCC may permit an amendment to the pre-trial stipulation or pre-trial order to prevent injustice, see rule 4.045(n)(2), the employer/carrier demonstrated no injustice here. The JCC was correct in finding in the initial ruling that it was unreasonable to expect the claimant to be able to defend against the defense and in disallowing the defense as untimely raised. This ruling was consistent with the purposes and intent of rule 4.045. The JCC, having once determined it was a violation of due process to allow the employer/carrier to proceed with the fraud defense, erred in reversing that ruling without giving claimant notice and an opportunity to be heard. See Area Electric Service, Inc. v. Cunningham, 538 So.2d 471, 472-73 (Fla. 1st DCA 1989)(hoIding that it was prejudicial to a claimant for the employer/carrier to raise a defense of fraud in the procurement of employment two days before trial, when the employer/carrier failed to raise that defense at the pre-trial conference).

In an opinion of this court issued subsequent to the final order in this case, we explained the requirements which must be met before section 440.09(4) can be invoked. See Village Apartments v. Hernandez, 856 So.2d 1140, 1141-42 (Fla. 1st DCA 2003). Section 440.09(4) contemplates that, before benefits may be denied pursuant to the statute, there must be a showing that the claimant made “oral or written statements concerning facts material to [her] claim that [she] knew were false, misleading or incomplete at the time the statements were made.” Id. at 1142. Before the statute may be employed to deny benefits, a section 440.09(4) defense either must be raised by the employer/carrier pursuant to the applicable rules of procedure, if the facts supporting the defense are known by the employer/carrier; or must be raised by the JCC, if the actions violating section 440.105 occur before the JCC. In either event, a fact-finding hearing must be held providing the claimant notice and an opportunity to be heard. Id.; accord CDL v. Corea, 867 So.2d 639 (Fla. 1st DCA 2004); compare Medina v. Florida East Coast Railway, L.L.C., 866 So.2d 89 (Fla. 3d DCA 2004)(due to the severity of dismissal as a sanction for a plaintiffs perpetration of fraud on the court, employee was entitled to notice and an opportunity to be heard and court should have granted plaintiffs request for an evidentiary hearing).

Accordingly, this cause is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

BOOTH and LEWIS, JJ., concur.