author: SAWAYA, C.J.

text:
    Tony ELOZAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3732.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied May 18, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Tony Elozar appeals the sentences imposed upon remand from this court in Elozar v. State, 825 So.2d 490 (Fla. 5th DCA 2002) (Elozar I). He raises two issues that have merit: 1) the trial court erred in imposing consecutive minimum mandatory sentences for two counts of robbery with a firearm; and 2) the sentences for both robbery with a firearm and possession of a firearm during the commission of a felony violate the double jeopardy clause of the Florida and federal constitutions. See U.S. Const, amend. V; Art. I, § 9, Fla. Const. Because the factual background is not important to the resolution of these issues, we will immediately proceed to address each issue in the order presented.

Resolution of the first issue revolves around the provisions of section 775.087(2)(d), Florida Statutes (1999), which states:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

In order to determine whether this statute requires imposition of consecutive minimum mandatory sentences, even for crimes arising from the same criminal episode, the courts have struggled to discern the Legislature’s' intent in enacting this statute. “To determine legislative intent, [a court] must consider the act as a whole- — ‘the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject.’ ” State v. Webb, 398 So.2d 820, 824 (Fla.1981) (emphasis deleted) (quoting Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951) (quoting Curry v. Lehman, 55 Fla. 847, 47 So. 18, 19 (1908))); see also State v. Patterson, 694 So.2d 55, 58 (Fla. 5th DCA 1997).

It is rather obvious from the provisions of section 775.087(2)(d) that the evil to be corrected is the use of firearms by felons during the commission of certain crimes. Consideration of this factor would certainly lead to the conclusion that the Legislature intended that minimum mandatory sentences be imposed consecutively rather than concurrently so that the harshest penalty could be imposed on felons who use firearms. However, when the state of the law at the time the statute was enacted is considered along with the statutory language that intent becomes far less obvious.

Prior to the enactment of section 775.087(2)(d), the Florida Supreme Court in Palmer v. State, 438 So.2d 1 (Fla.1983), addressed the issue of stacking minimum mandatory sentences under the 1981 version of section 775.087(2), which provided, in pertinent part, that any person convicted of certain specified felonies

who had in his possession a “firearm,” as defined in s. 790.001(6) ... shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.

§ 775.087(2)(b), Fla. Stat. (1981). The court held that the minimum mandatory sentences under section 775.087(2), Florida Statutes (1981), could not be imposed consecutively for offenses that arose out of the same criminal episode. The court arrived at this conclusion after it discovered that “[n]owhere in the language of section 775.087 do we find express authority by which a trial court may deny, under subsection 775.087(2), a defendant eligibility for parole for a period greater than three calendar years.” Palmer, 438 So.2d at 3. The court also analyzed the provisions of section 775.021(4), Florida Statutes (1981), and likewise found nothing indicating the Legislature’s intent to allow consecutive minimum mandatory sentences for offenses that arose out of the same criminal episode.

In State v. Christian, 692 So.2d 889 (Fla.1997), the Florida Supreme Court addressed the issue of stacking minimum mandatory sentences in cases where one firearm is used in a continuous criminal episode. The court analyzed the provisions of sections 775.087 and 775.021(4)(a), Florida Statutes (1993), but found nothing in either statute that would indicate the Legislature’s intent that stacking of minimum mandatory sentences should be required. Therefore, the court looked to caselaw for the answer, including its prior decision in Palmer, and held:

As a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim. The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.

Christian, 692 So.2d at 890-91 (footnotes omitted). This was the state of the law prior to enactment of section 775.087(2)(d) in 1999.

What is significant about Palmer and Christian, besides the fact that they both pre-date section 775.087(2)(d), is the court’s clear holding that it could not find any legislative authority in the statutes it analyzed for stacking minimum mandatory sentences arising out of the same episode. Recent decisions of the Florida courts that have specifically interpreted and applied section 775.087(2)(d) do not find such legislative authority in that statute either. See Arutyunyan v. State, 863 So.2d 410 (Fla. 4th DCA 2003); Perreault v. State, 853 So.2d 604 (Fla. 5th DCA 2003); Green v. State, 845 So.2d 895 (Fla. 3d DCA 2003); Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003); Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003); Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002); see also Williams v. State, 820 So.2d 1000 (Fla. 3d DCA 2002).

These decisions, after considering all of the language of section 775.087(2)(d), focused on the language that expressly provides that “[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” § 775.087(2)(d), Fla. Stat. (2003) (emphasis added). In Mondesir v. State, 814 So.2d 1172, 1173 (Fla. 3d DCA 2002), the court held that “[mjerely on the face of the statute, the reference to ‘any other ’ felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution.” (Footnote omitted). The court indicated that this interpretation was especially appropriate in light of the doctrine of lenity that requires that any doubts about statutory interpretation be resolved in favor of the defendant. See § 775.021(a), Fla. Stat. (2001). In adopting the rationale in Mon-desir, this court and others have held that consecutive minimum mandatory sentences for offenses arising out of the same criminal episode are forbidden; but if the offenses do not arise out of the same episode, then the trial court has discretion to impose concurrent of consecutive sentences. Perreault; Wilchcombe; Cunningham; Stafford; see also Smith v. State, 867 So.2d 406 (Fla. 1st DCA 2003). Hence, after analyzing the language of the statute and the state of the law at the time it was enacted, the courts are still unable to find legislative authority in section 775.087(2)(d) for consecutive minimum mandatory sentences for offenses arising out of the same criminal episode. Therefore, the rationale of the court in Christian and Palmer remains applicable when determining whether consecutive minimum mandatory sentences for firearm offenses are appropriate. See Perreault (citing Cook v. State, 775 So.2d 425 (Fla. 5th DCA 2001)); State v. Parker, 812 So.2d 495 (Fla. 4th DCA 2002).

Here, the State does not contest Elo-zar’s contention that the robbery offenses arose out of the same criminal episode and that there were no injuries to multiple victims or multiple injuries to a single victim. Therefore, Elozar’s sentences for the two robbery convictions must be re-, versed and this case remanded so the trial court can impose concurrent minimum mandatory sentences for those two. offenses.

As to the second issue) Elozar asserts, and the State properly concedes, that a double jeopardy violation occurred when Elozar was convicted and sentenced for both the robbery with a firearm count and the count charging him with possession of a firearm during the commission of a felony. We agree based on precedent from this court and others. See Cleveland v. State, 587 So.2d 1145 (Fla.1991) (reversing, on double jeopardy grounds, a conviction for use of a firearm during the commission of a felony where the defendant was convicted of, and sentenced for, the crimes of attempted robbery with a firearm and use of a firearm while committing a felony stemming from a single act); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2003); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002) (observing that the supreme court had determined “that when a felony conviction is reclassified and enhanced under section 775.087(2) ... due to the defendant’s use ’ of a firearm in committing a crime, the single act of using that same firearm in the commission of the same felony cannot form the basis of a separate sentence and conviction for use of a firearm while committing a felony under section 790.07(2)....”); Hall v. State, 752 So.2d 1245, 1246 (Fla. 3d DCA 2000).

Accordingly, we reverse the conviction for possession of a firearm during the commission of a felony. We also reverse the consecutive minimum mandatory sentences for. the two robbery offenses and remand this case to the trial court for the imposition of concurrent minimum mandatory sentences for those two offenses.

AFFIRMED in part; REVERSED in part.

PLEUS and ORFINGER, JJ„ concur.

      . The provisions of section 775.087(2), Florida Statutes (1999), are commonly referred to as the "10/20/Life” statute. See Olivo v. State, 823 So,2d 872, 872 (Fla. 5th DCA 2002), review denied, 845 So.2d 891 (Fla.2003).

      . Parenthetically, we note that the provisions of section 775.021(4)(b), Florida Statutes, at first blush, might indicate that the doctrine of lenity should not be applied to resolve the issue of stacking minimum mandatory sentences. However, the court in Jackson v. State, 659 So.2d 1060, 1062 (Fla.1995), held that ''[t]he subsequent addition of subsection (b) to section 775.021(4) was designed to overrule this Court's decision in Carawan v. State, 515 So.2d 161 (Fla.1987), pertaining to consecutive sentences for separate offenses committed at the same time, and had nothing to do with minimum mandatory sentences.” (Footnote omitted).

      . We reject the State's argument that we should affirm the sentences based on the law of the case doctrine.

      . Elozar also argues that the consecutive life sentences he received for each count of robbery with a firearm constitute cruel and unusual punishment because his cb-defendants were not sentenced that harshly and the sentences he received resulted from judicial vindictiveness. Having concluded that these issues have no merit, we affirm as to each.


source: Caselaw Access Project

license: Public Domain

text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2775.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman and Anthony J. Golden, Assistant Attorneys General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING EN BANC

SAWAYA, C.J.

The motion for rehearing en banc filed by the appellant, Richard Jones, is hereby granted.

We withdraw our previously issued opinion and substitute the following in its place. When he was originally sentenced, Jones received mandatory minimum sentences for two counts of aggravated battery on a law enforcement officer. These offenses were committed in February 2000, before the effective date of Chapter 02-209, Laws of Florida, which provides for the imposition of a mandatory minimum sentence for each of the offenses Jones committed. The issue in this appeal is whether the provisions of chapter 02-209 should be retroactively applied. Decisions from this court originally resolved this issue by holding that the statute may be' applied retroactively. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing); see also Carlson v. State, 27 Fla. L. Weekly D2162 (Fla. 5th DCA Oct.4, 2002). We believe it is time to acknowledge the error of that ruling. Accordingly, Jones’ sentences are reversed and this case is remanded for resentencing pursuant to section 784.07(2)(c), Florida Statutes (1997), which does not provide for imposition of a mandatory minimum prison sentence. We will now explain why we have come to the conclusion that our original ruling regarding the retroactive application of chapter 02-209 is erroneous.

Chapter 02-209, Laws of Florida, has its genesis in the unconstitutional enactment of Chapter 99-188, which provided for the imposition of mandatory minimum prison sentences for certain offenses. Specifically, section four of chapter 99-188 purported to amend section 784.07(2)(c), Florida Statutes (1997), to require imposition of a mandatory minimum prison term for the offense of aggravated assault on a law enforcement officer. However, when this court decided Hersey, we agreed with the holding in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), that chapter 99-188 was unconstitutional because it violated the single-subject rule of the Florida Constitution. We continue to adhere to that part of our original decision in Hersey that, based on Taylor, Chapter 99-188, Laws of Florida, was unconstitutionally enacted in violation of article III, section 6 of the Florida Constitution. Had this been the end of things, there would have been no question but that Jones’ sentences for the two counts of aggravated assault on a law enforcement officer could not include a mandatory minimum provision. However, it was not.

As observed by the court in Green v. State; 839 So.2d 748 (Fla. 2d DCA), review granted by Franklin v. State, 854 So.2d 659 (Fla.2003), the Legislature responded to Hersey and Taylor in 2002 by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, to reenact the provisions originally contained in chapter 99-188, but in such a way as not to run afoul of the single-subject rule. The' 2002 enactments were expressly made retroactive to July 1, 1999. Of specific importance to the instant case is Chapter 02-209, section two’s reenactment of section four of Chapter 99-188, which amended section 784.07(2)(c) to require imposition of mandatory minimum prison terms for the offense of aggravated assault on a law enforcement officer. Because of the retroactive application of the reenactment, a mandatory minimum provision was included on Jones’ sentence for aggravated assault on a law enforcement officer. We now hold that the retroactive application of Chapter 02-209 is an impermissible violation of the Ex Post Facto Clauses of the federal and Florida constitutions that entitles Jones to the relief he requests. Hence, we now recede from that part of Hersey to the contrary.

To say there is a lack of consistency in Florida law regarding whether chapter 99-188 was unconstitutional and whether the subsequent legislative reenactments may be applied retroactively is, perhaps, a gross understatement. As to the issue whether Chapter 99-188 violates the single-subject requirement, the First, Third and Fourth District Courts of Appeal say it does not. Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003); Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003). The Second District Court in Taylor, on the other hand, says that it does and as we have previously mentioned, we continue to adhere to that part of our prior decision in Hersey regarding this issue. Moreover, among those courts that say it does, there was disagreement whether the reenactment legislation may be applied retroactively. The Second District Court says it may not. Green (holding that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions). This court originally said it may be retroactively applied. Hersey. The Fourth District Court once followed this court. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002) (citing Hersey). However, upon further reflection, it receded from its prior opinions that relied on this court’s decision in ñersey and held that the sentencing provisions of chapter 99-188 may not be retroactively applied. Hemandez-Molina. We do likewise and eliminate our previous disagreement with Green regarding this issue.

A brief history of the procedural background of the instant case will be helpful. When this case first made its-way to this court, the original panel decision, issued on September 27, 2002, followed the decision in Taylor and held that Chapter 99-188 violated the single-subject requirement and remanded the case for resentencing. Almost at the same time, this court rendered its decision in Hersey, which held in accordance with the decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), that “the enactment of chapter 02-210, Laws of Florida, cured chapter 99-188’s constitutional infirmity” and “applie[d] retroactively.” Hersey, 831 So.2d at 680. Subsequently, the original panel’s decision in the instant case was withdrawn and, on the authority of Hersey, another opinion was rendered that affirmed the sentence. Jones v. State, 27 Fla. L. Weekly D2377 (Fla. 5th DCA Nov.1, 2002) (Jones II). Jones moved to have this court reconsider the decision in Jones II en banc, and a majority of the judges on this court decided to grant that request. So now we review Jones II en banc and determine, based on the Ex Post Facto Clauses of the federal and Florida constitutions, that chapter 02-209, Laws of Florida, should not be applied retroactively-

The problem with application of Dobbert to justify retroactive application of the reenacted legislation stems from the Florida Supreme Court’s pronouncement in Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000), that a single-subject rule violation by the Legislature renders an enactment void. Like the court in Green, we have difficulty accepting the notion that the Dobbert “operative fact” rationale, which essentially provides that the very existence of an unconstitutional statute provides notice to the defendant of the penalties that the State would seek to impose upon conviction, applies to a void enactment such as chapter 99-188, Laws of Florida.

The factual background in Dobberb clearly shows why the notice rationale is inapplicable to statutory reenactments of original legislation that have been found to be unconstitutional based on single-subject violations. In Dobberb, the United States Supreme Court was called upon to review a death sentence that Ernest Dobbert had received for first-degree murder. At the time Ernest Dobbert committed the murder, Florida law required imposition of the death penalty unless the jury recommended a life sentence. Unfortunately for Erriest Dobbert, the jury did not see fit to show him mercy, and the trial court sentenced him to death. As Dobberb explains, after Ernest Dobbert committed the murder, but before he was sentenced, the Court rendered its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which struck down Georgia’s death penalty statute because it violated substantive portions of the United States Constitution. Relying on Furman, the Florida Supreme Court rendered its decision in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), which recognized that pursuant to Furman, the death sentence was eliminated under Florida’s then existing statutory scheme. Very shortly after Donaldson was rendered, the Florida Legislature in 1972 enacted Chapter 72 724, Laws of Florida, which amended sections 775.082 and 921.141, Florida Statutes. In essence, the new legislation created a new procedure for imposition of the death penalty that required the jury to hear evidence of aggravating and mitigating circumstances and then make a recommendation of either death or life to the trial judge, who would then bear the ultimate responsibility, after appropriate consideration of the jury’s recommendation, to impose the sentence in the case based on his or her written findings. The constitutionality of these new procedures was upheld by the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied by Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

What is significant about the historical background of Dobbert is the fact that it involved a validly and constitutionally enacted statutory scheme regarding imposition of the death penalty that had been a part of Florida law long before Ernest Dobbert committed his murder. In Florida, the death penalty was eliminated pursuant to the Court’s holding in Furman that a similar statutory scheme in Georgia violated substantive provisions of the United States Constitution. As the United States Supreme Court explained, Florida’s death penalty law

clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.

Dobbert, 432 U.S. at 297, 97 S.Ct. 2290. The Court further explained that “ ‘[t]he actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored.’ ” Id. at 298, 97 S.Ct. 2290 (quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329 (1940)). Here, unlike Dobbert, we are reviewing legislation that was not constitutionally enacted. Hence, unlike the situation in Dobberb, the legislation we are considering in the instant case never “actually existed,” was never “on the statute books,” and was never a part of Florida law because its unconstitutional enactment rendered it void ab initio.

Moreover, chapter 99-188 effected a substantive change in the law, whereas in Dobbert, the Court was concerned with retroactive application of a statute that effected a procedural change. The Court in Dobbert was very careful to emphasize this fact:

In the case at hand, the change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. The following language from Hopt v. Utah[, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262], supra, applicable with equal force to the case at hand, summarizes our conclusion that the change was procedural and not a violation of the Ex Post Facto Clause:
“The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.” 110 U.S., at 589-590, 4 S.Ct., at 210.

Dobbert, 432 U.S. at 293-94, 97 S.Ct. 2290. This fact is significant because generally, a procedural change applied retroactively, such as a change in the roles of the court and jury in sentencing similar to that addressed in Dobbert, does not offend the Ex Post Facto Clause. See Weaver v. Graham, 450 U.S. 24, 32 n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Dobbert); see also Lynce v. Mathis, 519 U.S. 433, 447 n. 17, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

The Court in Dobbert was also very careful to point out that the change in the law could not violate the Ex Post Facto Clause because it was beneficial to Ernest Dobbert. The Court stated:

In this case, not only was the change in the law procedural, it was ameliorative. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.
Hence, viewing the totality of the procedural changes wrought by the new statute, we conclude that the new statute did not work an onerous application of an ex post facto change in the law.

Dobbert, 432 U.S. at 294, 296-97, 97 S.Ct. 2290. This fact is significant because both the United States Constitution and the Florida Constitution prohibit enactment of laws that increase the punishment for a criminal offense after the crime has been committed. See U.S. Const, art. I, § 10 (“No State shall ... pass any ... ex post facto Law....”); Art. I, § 10, Fla. Const. (“No ... ex post facto law ... shall be passed.”).

In the instant case, unlike in Dobbert, the sentences imposed on Jones via the retroactively-applied enactment increase the punishment for the crimes he committed. Jones is charged with two counts of aggravated assault on a law enforcement officer in violation of section 784.07(2)(c). Pursuant to the retroactively-applied reenactment, Jones received sentences that included a mandatory minimum prison sentence of three years for each count that was not required under the prior version of the statute. Hence, Jones did receive a more severe punishment under the reenacted statute in violation of the Ex Post Facto Clauses of both the Florida and federal constitutions.

Parenthetically, we note that Jones entered a plea and apparently received the sentences for which he bargained. Although constitutional rights and protections may be waived pursuant to a plea agreement, a defendant cannot be bound by an agreement to accept an illegal sentence. Imposition of a mandatory minimum sentence that is not authorized by statute is an illegal sentence. Therefore, the plea agreement does not form a basis for affirmance.

For the reasons we have discussed, we agree with the rationale adopted by the Second District Court of Appeal in Green that retroactive application of the legislative reenactments of the provisions of chapter 99-188, which include chapter 02-209, could not occur without violating the Ex Post Facto Clauses. Therefore, Jones is entitled to be resentenced for the two counts of aggravated battery on a law enforcement officer without the mandatory minimum sentences.

REVERSED and REMANDED FOR RESENTENCING.

SHARP, W., PETERSON, GRIFFIN, THOMPSON, PLEUS, PALMER, ORFINGER, MONACO and TORPY, JJ., concur.

      . Pursuant to Carlson's motion for rehearing that has been pending in this court, we are withdrawing our previous opinion in Carlson and reversing Carlson’s sentence by separate opinion to be issued forthwith.

      . Art. Ill, § 6, Flá. Const. ("Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”).

      . See Lebron v. State, 799 So.2d 997, 1019 (Fla.2001) (“While this Court has held that a defendant can waive ex post facto protections as part of an agreed-upon bargain by both parties ....”) (citation omitted), cert. denied, 535 U.S. 1036, 122 S.Ct. 1794, 152 L.Ed.2d 652 (2002); Bowles v. Singletary, 698 So.2d 1201 (Fla.1997).

      . See Shelton v. State, 739 So.2d 1235 (Fla. 4th DCA 1999); Cheney v. State, 640 So.2d 103, 105 (Fla. 4th DCA 1994); Dyer v. State, 629 So.2d 285, 286 (Fla. 5th DCA 1993); Stephens v. State, 627 So.2d 543, 544 (Fla. 2d DCA 1993).

      . Kendrick v. State, 817 So.2d 951 (Fla. 2d DCA 2002); Williams v. State, 782 So.2d 980 (Fla. 1st DCA), review denied, 805 So.2d 811 (Fla.2001); Smith v. State, 654 So.2d 264 (Fla. 2d DCA 1995) (holding that there must be statutory authority for imposition of mandatory minimum sentence); see also Carter v. State, 786 So.2d 1173, 1181 (Fla.2001) (“[A] sentence is ‘illegal' if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances’ ....”) (quoting Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999)).


author: ORFINGER, J.

text:
    Kevin BEARY, Orange County Sheriff, Petitioner, v. Robin JOHNSON, Respondent.
    No. 5D03-3689.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied May 14, 2004.

      Keith C. Tischler of Allen, Norton & Blue, P. A., Tallahassee, for Petitioner.
    Gus R. Benitez of Benitez & Butcher, P. A., Orlando, for Respondent.
   ORFINGER, J.

Kevin Beary, Orange County Sheriff, seeks certiorari review of a circuit court order reversing Beary’s decision to terminate the employment of Respondent, Robin Johnson. We grant the petition and quash the circuit court’s order.

Robin Johnson was a deputy sheriff with the Orange County Sheriffs Office and enjoyed career service status. Christopher Hinn, who served with the Orange County Sheriffs Office in a reserve capacity, was the brother of Reverend Benny Hinn, a television evangelist. With Christopher Hinn’s encouragement, Johnson became involved in Reverend Hinn’s ministry. Johnson also provided security services for Reverend Hinn at the World Outreach Center.

A series of demonstrations against Reverend Hinn’s ministry took place during the time when Johnson was providing security. According to the circuit court’s opinion, during one demonstration, Johnson made an illegal traffic stop of protestor Chris Froman’s vehicle. Froman had been videotaping Christopher Hinn, and Johnson incorrectly told Froman that it was a felony to videotape a police officer. Either Johnson or Christopher Hinn asked Froman to erase the tape, and Froman did so, testifying that he believed he would go to jail if.he did not comply with the request.

Based on this incident and others not pertinent, an internal investigation of Johnson’s conduct ensued. Following the investigation, Johnson was administratively charged with unsatisfactory performance of his duties as a deputy for his actions toward the protestors, violation of the rules pertaining to the exercise of his legal authority, and conduct unbecoming an officer for participating in an illegal traffic stop. Johnson appealed, and the administrative review captain upheld the findings, and added a charge of violating the policy requiring deputies to conform to all laws. Johnson appealed that determination to the appeals board, which upheld the findings. The matter was then presented to Sheriff Beary, who upheld the appeals hoard ruling and terminated Johnson. Johnson then sought certiorari review of the termination in the circuit court. The circuit court rejected all of Johnson’s arguments, save one.

According to Orange County Sheriffs General Order 340(24)(D), during the appeals board hearing, a Level 2 Administrator in the appealing deputy’s chain of command is responsible for presenting management’s case. The parties agree that the Level 2 Administrator in Johnson’s chain of command did not attend the hearing, although another Level 2 Administrator did.

The circuit court concluded that as Johnson had a property interest in his job, when the sheriffs department failed to have the appropriate Level 2 Administrator attend the hearing, it ignored its own rules and violated Johnson’s due process rights. The circuit court granted Johnson’s petition and quashed the final order of termination “on the sole ground” that Beary had violated Johnson’s due process rights by failing to follow departmental rules. Beary now seeks certiorari review of the circuit court’s order, arguing that the circuit court’s decision departed from the essential requirements of law. Johnson has not sought review of the circuit court’s decision rejecting his other claims.

Beary concedes that Johnson had a property interest in his position and was entitled to due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, Beary argues that the circuit court’s order is a departure from the essential requirements of law in three respects. First, Beary argues that the circuit court misapplied the law in determining that Johnson’s due process rights were violated based on the failure to comply with General Order 340. Second, Beary argues that the circuit court departed from the essential requirements of law in holding that the procedures actually followed in Johnson’s case did not comply with due process. Finally, Beary contends that the circuit court misapplied the law in quashing Johnson’s termination, without considering whether the termination was within Beary’s discretion, regardless of the procedure afforded.

The Orange County Sheriffs Office is governed by Chapter 89-507, Laws of Florida, which provides that an Orange County deputy, who has successfully completed his or her probationary status, enjoys civil service status and may only be disciplined for cause. The special act provides for a factual review of disciplinary action by an employee relations director or the equivalent, with an opportunity for the accused to respond to the charges and request a meeting with the appropriate administrator prior to imposition of discipline. The administrator’s decision is ap-pealable to a disciplinary appeals board, which must hold a hearing, as specified by the procedure adopted by the Sheriff. The board then reports to the Sheriff regarding the merits of the appeal, and the Sheriff renders a written decision concluding the matter.

The Orange County Sheriffs Office adopted General Order 340, establishing a disciplinary procedure in compliance with Chapter 89-507. Section 24(D) of the General Order states that the chairperson of the Disciplinary Appeals Board of the Orange County Sheriffs Office shall have in attendance at a disciplinary appeal hearing, a management representative who is responsible for presenting the management’s case. The Order provides that the Level 2 Administrator in the appealing deputy’s chain of command shall be the management representative. It is undisputed here that the management representative in Johnson’s appeal board hearing was not a Level 2 Administrator in Johnson’s chain of command, and that Johnson objected to that failure. Nonetheless, Beary contends that the General Order does not create a protectable property interest or constitutional right.

Relying on Armesto v. Weidner; 615 So.2d 707 (Fla. 3d DCA 1992), the circuit court concluded that the failure to require Johnson’s Level 2 Administrator to act as the management representative at the appeals board hearing was a due process violation. The Armesto court explained that “[a]n agency violates a person’s due process rights if it ignores rules it promulgated which affect individual rights.” 615 So.2d at 709. In so stating, the Armesto court relied on Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), for the proposition that “[w]here the rights of individuals are affected, it is incumbent on agencies to follow their own procedures .... ” Id. (citing Morton, 415 U.S. at 235, 94 S.Ct. 1055).

While we do not disagree with Armesto as a general principle, we conclude it has no application here. Generally, the violation of an internal administrative rule does not constitute a violation of due process. The right to due process is conferred not by legislative grace, but by constitutional guarantee. Loudermill, 470 U.S. at 541, 105 S.Ct. 1487. The Fourteenth Amendment does not constitutionalize the violation of every right granted by state laws, but only those which deprive a person of some right secured by the constitution or laws of the United States. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

More on point is Tonkovich v. Kansas Board of Regents, 159 F.3d 504, 522 (10th Cir.1998), which held that an agency’s failure to follow established guidelines regarding a grievance does not, in itself, implicate constitutional due process concerns. See also Jackson v. Cain, 864 F.2d 1235 (5th Cir.1989) (finding that state’s failure to follow own procedural regulations does not establish violation of due process where constitutional requirements are nonetheless met). Unless the conduct complained of infringes on federal or state constitutional safeguards, there is no constitutional deprivation. See Franceski v. Plaquemines Parish Sch. Bd., 772 F.2d 197 (5th Cir.1985).

Johnson did not argue, nor did the circuit court find, that using an appealing deputy’s Level 2 Administrator as the management representative directly implicated any property interest or protected right, or that the failure to use the designated administrator interfered with Johnson’s procedural due process right to notice and an opportunity to be heard. As a result, we conclude that the circuit court departed from the essential requirements of law in holding that Johnson’s procedural due process rights were violated as a result of the failure to follow the technical requirements of General Order 340.

Due process is a flexible concept and requires only that the proceeding affecting protected rights be “essentially fair.” See Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (recognizing that “[i]t is now well established that ‘due process unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances’ ”) (quoting Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)).

Based on our conclusion that there was no due process violation in this case, we find that the circuit court departed from the essential requirements of law. Accordingly, the petition for writ of certiorari is granted. The circuit court’s decision is quashed to the extent that it finds that Johnson’s procedural due process rights were violated by the failure to use the management representative required by the general order. Because of our disposition of this matter, we need not address the other issues raised by Beary.

CERTIORARI GRANTED, ORDER QUASHED IN PART.

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


author: PETERSON, J.

text:
    Armand RIVARD, Lake Aircraft, Inc., et al., Appellant/Cross-Appellee, v. G. Leonard GIOIA, M.D., etc., et al., Appellee/Cross-Appellant.
    No. 5D02-3112.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Clarification Denied May 19, 2004.
    David S. Cohen of Law Offices of David S. Cohen, LC, Orlando, for Appellant/Cross-Appellee.
    Gregory A. Anderson, Brett A. Hastings and Heatherann M. Solanka of Anderson St. Denis & Glenn, P.A., Jacksonville, for Appellee/Cross-Appellant.
   PETERSON, J.

Armand Rivard, Lake Aircraft, Inc., Ae-rofab, Inc., and Revo, Inc., (collectively “Lake Aircraft”), the defendants below, timely appeal a final judgment entered pursuant to a jury verdict in favor of G. Leonard Gioia, M.D., individually, and as an assignee of Archedyne Aerospace Corp., (collectively “Archedyne”), the plaintiff below. Lake Aircraft contends the verdict rendered by the jury was against the manifest weight of the evidence, that the damages awarded by the jury were clearly excessive, and that the jury was not afforded adequate time to properly evaluate the evidence presented at trial. Archedyne cross-appeals the trial court’s denial of its motion for leave to amend to allege punitive damages.

Archdyne’s complaint alleged several causes of action that grew from an “Option Offer to Purchase Certain Assets of the Lake Aircraft Group of Companies” for which Archedyne made a deposit of $500,000. The litigation was centered around Archedyne’s desire for the return of the $500,000 deposit and it even stipulated that it would not attempt to introduce evidence of incidental and consequential damages in excess of that amount.

During the trial, opposing counsel asked Dr. Gioia, in cross-examination, whether he had spent between $1 million and $1.25 million in pursuing a dream to develop an amphibian jet aircraft which was his reason for wanting to acquire the Lake Aircraft facility. Dr. Gioia replied that he did not know where counsel got that number and that he was not sure of the amount spent himself. Later, and during the same cross-examination, it came to light that the estimate came from Lake Aircraft’s counsel and Dr. Gioia simply agreed with it. Apparently, this discussion about Dr. Gi-oia’s out of pocket expenditures related to amounts spent prior to the time he was considering the acquisition of Lake Aircraft. Dr. Gioia never attempted to introduce any evidence that he had incurred any damages in excess of the $500,000 deposit. Nevertheless, and notwithstanding the earlier stipulation that nothing in excess of the return of the. deposit was being sought, the jury seized upon the higher number and awarded Archdyne $1.25 million. Lake Aircraft’s attempts to have the trial court grant a judgment notwithstanding the verdict, remittitur, or a new trial, were rejected.

A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial. E.g., McCarthy Bros. Co. v. Tilbury Const, Inc., 849 So.2d 7 (Fla. 1st DCA), rev. denied, 857 So.2d 197 (Fla.2003). If the jury verdict is excessive, remittitur is an appropriate remedy. Id. at 9. Because the evidence presented at trial indicates that the maximum allowable award was a refund of the $500,000 option fee, the trial court abused its discretion in denying Lake Aircraft’s motion for remitti-tur. We remand with instructions to allow Archedyne the opportunity to accept a reduction in the verdict to $500,000. If Ar-chedyne declines, the trial court shall order a new trial in the cause on the issue of damages only. Id. at 10. Finally, we find no error in the remaining issues raised by the parties.

REVERSED AND REMANDED.

PALMER and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    M.B., Mother of D.B., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-3045.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 18, 2004.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See § 39.01(30)(g)l., Fla. Stat. (2002).

“Harm” to a child’s health or welfare can occur when any person:
(g) Exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by:
1. Use by the mother of a controlled substance or alcohol during pregnancy when the child, at birth, is demonstrably adversely affected by such usage....

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    GADSDEN COUNTY, Florida, Petitioner, v. METROPOLITAN CATHEDRAL OF TRUTH, Respondent.
    No. 1D03-1868.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Rehearing Denied May 21, 2004.
    David A. Theriaque, Esq., Steve Pfeif-fer, Esq., and S. Brent Spain, Esq. of Theriaque & Pfeiffer, Tallahassee; Harold S. Richmond, Esq., Quincy, for Petitioner.
    Thornton J. Williams, Esq. and Paul Sexton, Esq. of Williams, Wilson & Sexton, P.A., Tallahassee, for Respondent.
   PER CURIAM.

Concluding that the circuit court applied the correct law in granting respondent’s petition for a writ of certiorari, we deny petitioner’s petition for a writ of certiorari. See Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000); City of Sarasota v. Pleasures II Adult Video, Inc., 799 So.2d 325 (Fla. 2d DCA 2001).

DENIED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Stephen Alan CANTRELL, Appellee/Cross-Appellant.
    No. 5D03-562.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Rehearing Denied May 21, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appel-lant.
   GRIFFIN, J.

The State of Florida appeals the downward departure sentence imposed by the lower court on defendant, Stephen Alan Cantrell [“Cantrell”]. Cantrell cross-appeals the lower court’s order denying his motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

On January 4, 2002, Cantrell was charged by information with Count I, grand theft, and Count II, criminal mischief — $200 or less. The charges arose from an incident where Cantrell, without permission, took a golf cart from the Legacy Club at Alaqua Lakes and damaged the golf course while driving the golf cart. After a jury trial, but before the verdict, Cantrell pled guilty as charged pursuant to a plea agreement. The court withheld adjudication and sentenced Cantrell to eighteen months’ probation on Count I and six-months’ probation on Count II, to be served concurrently.

On October 29, 2002, Cantrell was charged with violation of probation based in part on his arrest for aggravated assault with intent to commit a felony and carrying a concealed weapon. On November 18, 2002, Cantrell was charged by information with aggravated assault with a deadly weapon, to wit: a motor vehicle and/or a baton. On January 8, 2003, Cantrell admitted to the violation of probation and pled nolo contendere to aggravated assault.

At sentencing, the State presented the criminal punishment code scoresheet to the court, which showed the lowest permissible sentence was a prison sentence of 16.05 months and the maximum sentence was ten years. Counsel for Cantrell requested the court consider a downward departure from the guidelines based upon the fact that the crime was committed in an unsophisticated manner and was isolated. The court sentenced Cantrell to thirty days’ imprisonment followed by one year community control for grand theft as well as thirty days’ imprisonment for criminal mischief, to run concurrently. As to the aggravated assault charge, the court adjudicated Cantrell guilty and sentenced him to thirty days’ imprisonment followed by one year and eleven months of community control.

The State objected to the downward departure and asked the court for clarification as to why the downward departure sentence was imposed. The court stated, “Well, I do think it was a very unsophisticated offense, and impulsive, but it was very rare and very abnormal, and that’s the reason I’m departing.”

On February 19, 2003, the State appealed the downward departure sentence imposed by the court. On May 27, 2003, Cantrell filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asserting in relevant part:

6. No written order setting out the t departure reasons appears in the court file. The Florida Supreme Court requires such a written order to be filed in every departure case, either contemporaneously or nunc pro tunc where “neglect, and inadvertence” result in failure “to complete the ministerial act of actually placing [departure] reasons in a separate order.” Pease v. State, 712 So.2d 374, 376 (Fla.1997) (see attachments.)
7. Since the time of notice of appeal was filed in this case, the Fifth District Court of Appeal has held that “any downward departure based on [lack of sophistication, the isolated nature of the occurrence, and remorse] must be supported by written reasons or orally pronounced findings of fact on each of the three elements.” State v. Thompson, 844 So.2d 814, 2003 WL 21105368 (Fla. 5th DCA May 16, 2003) (emphasis added; see attachments.)

(footnote omitted). Cantrell requested the court enter written nunc pro tunc orders including findings of fact to memorialize its oral downward departure reasons.

On May 30, 2003, the court entered an order dismissing the motion to correct sentence, explaining: “The Court has no jurisdiction to hear this motion because it concerns the issue on appeal.”

Cantrell then filed a motion for rehearing on the above order dismissing his motion to correct sentence on the ground that Rule 3.800(b)(2) expressly authorizes criminal defendants to file motions during the pendency of appeals regarding sentencing issues, and that jurisdiction automatically returns from the appellate court to the trial court until an order is filed on the merits of a 3.800(b) motion or until sixty days elapses from the date the motion was filed.

On June 25, 2003, the court entered an amended order denying the motion to correct sentence, stating, “The failure to set forth written reasons for a departure sentence or a revocation of probation is not a scrivener’s error that can be corrected nunc pro tunc by the Court and, therefore, cannot be corrected through a Motion to Correct Sentence.” .Cantrell then filed a notice of cross-appeal of the amended order on his motion to correct sentence.

The State correctly urges on appeal that the record does not, support the orally stated downward departure reasons and that they are insufficient as a matter of law. See State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003). The downward departure sentence must be vacated and remanded so that the lower court can re-sentence- Cantrell in accordance with the guidelines.

SENTENCE VACATED and REMANDED.

PLEUS and ORFINGER, JJ., concur.

      . The offense arose from a "road rage” incident during which, according to the arrest report, Cantrell repeatedly swerved towards the victim’s vehicle after she may have cut him off in traffic. The arrest report further stated that Cantrell drove his vehicle into the passenger side of her vehicle, exited his vehicle armed with an expandable baton and threatened her. The victim drove her vehicle away from him, but he followed her to a supermarket where he jumped onto the hood of her vehicle and beat the windshield with his fists. Upon his arrest, law enforcement searched his vehicle to find a hunting knife and an expandable baton.

      . Given our disposition, the issue on cross-appeal, though interesting, is moot.


author: SHARP, W., J.

text:
    Carolyn R. WADE f/k/a Carolyn R. Hirschman, Appellant, v. Michael D. HIRSCHMAN, Appellee.
    No. 5D03-2797.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Rehearing Denied May 18, 2004.

      Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Linda Logan Bryan of Miller, Shine & Bryan, P.L., St. Augustine, for' Appellee.
   SHARP, W., J.

Carolyn Wade, the former wife and mother, appeals from an order of the trial court modifying the parties’ prior dissolution decree, which had incorporated a split rotating custody agreement, by granting the primary residence of the parties’ minor son to Michael Hirschman, the former husband and father. Finding no abuse of discretion, we affirm.

The parties were divorced in October 2000, and neither was named primary residential custodian of their child. After mediation, the parties agreed to a split rotating custody and parenting coordinator plan. It was approved by the court on November 8, 2001, and the parties were ordered to abide by its terms. However, Wade refused to sign the mediated agreement. As noted by the court in its decree, Wade said she objected to all paragraphs of the agreement. The court found her disagreements “unreasonable.” Wade did not appeal from this decree.

In this modification proceeding, the parties both alleged there had been a substantial change in circumstances and both sought primary residential custody of the child. After an evidentiary hearing, the trial court determined that the split rotating custody plan had failed because Wade consistently refused to abide by the plan, she refused to work with the parenting coordinators, she frustrated their efforts, and she was “totally disruptive.” However, the trial court was uncertain as to which legal standard should be applied to this modification proceeding.

Three different standards were potentially applicable, and the court questioned which approach to take. Should it be the “extraordinary burden test” of establishing a substantial and material change of circumstances and the best interest of the child, which some courts say also requires the finding or evidence in the record that there would be some detriment to the child in leaving him or her in the custody arrangement established by the decree sought to be modified?

Or, should the standard be the arguably lesser proof requirements of section 61.13(4)(c)(5), which gives the judge the option to award custody to the “non-custodial” parent upon the non-custodial parent’s request, if the “custodial parent” refuses to honor the other parent’s visitation rights, and if the award is in the best interest of the child? There was little evidence in the record that Wade substantially interfered with Hirschman’s visitation rights so we do not address this ground. Further, in this case, there is no “custodial” or “non-custodial” parent.

Or, since this proceeding involves a split rotating custody arrangement and there is no parent with primary residential custody, should the court, after determining that the split rotating custody arrangement is unworkable and doomed to future failure, make an analysis based on the criteria set forth in section 61.13(3)(a), which are applicable in an original child custody determination and to which appellate courts give much greater deference? The trial court in this case made sufficient fact findings to cover all bases.

Wade’s primary argument on appeal is that the trial court was required to base its decision on the substantial change in circumstances test and best interest of the child, in the sense that it would be detrimental to the child to leave him in the original rotating custody arrangement. This standard has been adopted by all of the Florida appellate courts in an effort to forestall repeated child custody modification proceedings being filed and to achieve stability and finality in child custody degrees. It is not in the best interest of children or their parents to have constant protracted litigation concerning child custody or primary residency.

If this standard were applied by the trial court, Wade argues, Hirschman failed to establish that there was a substantial change in circumstances due to Wade’s disruption of the split rotating custody arrangement and parenting plan involving parenting coordinators, because she had engaged in all of the kinds of behavior relied upon by the court in finding a substantial change of circumstance, long before the court rendered its final decree which imposed the split rotating custody/parenting coordinator agreement on her. For example, she involved the child in the parties’ disputes, was mentally unstable and too attached to the child, she disparaged the father to the child and others, and she coached the child to Wade’s advantage. The record bears out her arguments. Many of these behaviors had been ongoing prior to the decree incorporating the split rotating custody arrangement.

Further, Wade argues, there was no evidence adduced at trial that the child had suffered any detriment while in her care or that her behavior had negatively impacted the child in any way. The record indicates that the child was not negatively impacted by Wade’s actions. Dr. Risch, a psychologist who counseled with the child before the modification hearing, testified the child had no diagnosable emotional distress, and Dr. Hoza, a clinical psychologist, testified the child was well adjusted, no longer needed therapy, was “happy go lucky,” and resilient. The child’s teachers agreed, and he was doing well in school.

We do not need to address the issues of whether Hirschman sufficiently established a substantial change of circumstances and that the change of custody was in the child’s best interest, including whether a detriment to the child was established if left in the original rotating custody arrangement, because we do not think that test is applicable in a case like this one where there is no primary residential parent, and the parties have split rotating custody. Once it is established through substantial and competent evidence that the split rotating custody plan has failed and is doomed to future failure, for whatever reason (the child’s obtaining school age, or one party’s complete refusal to adhere to the plan), then the court should be free to redetermine custody based on the considerations set out in section 61.13, as though it were making an initial custody determination. The trial court addressed all of the factors set forth in section 61.13(3)(a) through (j) and (m). They are supported by competent and substantial evidence in the record. We cannot say the trial judge abused his discretion in making this custody decision.

More than hostility between the parties and them inability to get along or communicate was established in this case. The court found that Wade undermined, alienated and refused to cooperate with the parenting coordinators, whose responsibility it was to make the rotating custody plan work. Although not essential to our ruling, it is instructive that the Order of the court dated November 2001, which approved the parties’ split rotating custody agreement, warned that “[fjailure to comply with the parenting plan may be considered contempt and could affect the parties’ visitation and/or custody rights.” The court approved the split rotating custody plan, based on its understanding that the parties would comply with the plan and cooperate with the parenting coordinators. When that assumption was not fulfilled, it is sensible to let the court return to “square one.”

Wade also argues in this appeal that the court erred in denying her visitation with the child, supervised or unsupervised, until she had undergone a complete psychological evaluation update with regard to the safety of the child, with a court-appointed doctor, and until the appointed doctor’s report had been filed and considered by the court. By the time briefs were filed in this case, the evaluation had been performed and unsupervised visitation was restored to Wade. Under the circumstances of this case we think the court’s ruling was a fair “judgment call” and was not an abuse of discretion. See Scheer v. Scheer, 132 So.2d 456 (Fla. 3d DCA 1961).

AFFIRMED.

GRIFFIN and PLEUS, JJ., concur.

        .See Knipe v. Knipe, 840 So.2d 335 (Fla. 4th DCA), rev. denied, 849 So.2d 1088 (Fla.2003); Wyckoff v. Wyckoff, 820 So.2d 350 (Fla. 2d DCA), rev. denied, 821 So.2d 305 (Fla.2002); Glover v. Glover, 820 So.2d 324 (Fla. 5th DCA 2001); Perez v. Perez, 767 So.2d 513 (Fla. 3d DCA 2000); Greene v. Suhor, 783 So.2d 290 (Fla. 5th DCA), rev. denied, 796 So.2d 538 (Fla.2001); Schweinberg v. Click, 627 So.2d 548 (Fla. 5th DCA 1993); Zediker v. Zediker, 444 So.2d 1034 (Fla. 1st DCA 1984).

      . Wyckoff; Perez; Burger v. Burger, 862 So.2d 828 (Fla. 2d DCA 2003); Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996); Wages v. Wages, 660 So.2d 797 (Fla. 5th DCA 1995)

      . See Williams v. Williams, 676 So.2d 493 (Fla. 5th DCA 1996).

      . See, e.g., Miller v. Miller, 671 So.2d 849 (Fla. 5th DCA 1996); Ackerson v. Murphy, 622 So.2d 154 (Fla. 5th DCA 1993).

      . See Hammac v. Hammac, 866 So.2d 191 (Fla. 1st DCA 2004) (Wolf, J., concurring). Knipe v. Knipe, 840 So.2d 335 (Fla. 4th DCA 2003); Perez v. Perez.

        .Mooney v. Mooney, 729 So.2d 1015 (Fla. 1st DCA 1999). But see Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003); Ring v. Ring, 834 So.2d 216 (Fla. 2d DCA 2002); Newsom
        v. Newsom, 759 So.2d 718 (Fla. 2d DCA 2000); Cassin v. Cassin 726 So.2d 399 (Fla. 2d DCA 1999); Skirko v. Skirko, 677 So.2d 885 (Fla. 3d DCA 1996), rev. denied, 689 So.2d 1071 (Fla. 1997); Brenda M. Abrams, 4 Florida Family Law, § 81.01 [6] at 81-11 (Mathew Bender 2003).

      . Some of the testimony revealed that Wade's actions reflected potentially a serious mental illness and that she might unintentionally injure (he child.


text:
    Paul R. CONLEY, Petitioner, v. STATE of Florida and Florida Department of Corrections, Respondents.
    No. 1D04-0553.
    District Court of Appeal of Florida, First District.
    April 13, 2004.

      Paul R. Conley, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000)(holding that the denial of a request to proceed as an indigent does not result in irreparable harm which cannot be remedied on appeal and is therefore not reviewable by a writ of certiorari, nor is the order a final order or an appealable, nonfinal order).

ERVIN, WEBSTER and DAVIS, JJ., concur.


text:
    James F. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1010.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Rehearing Denied May 26, 2004.
    James F. Brown, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. Harris v. State, 580 So.2d 243 (Fla. 1st DCA 1991).

ALLEN, PADOVANO and HAWKES, JJ., concur.


author: KELLY, Judge.

text:
    COOPERATIVE LEASING, INC., a Florida corporation, and Truman Roosevelt Domer, Individually, Appellants, v. Irma L. JOHNSON, Appellee.
    No. 2D02-1505.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Nancy Little Hoffman, P.A., Pompano Beach, and Mike Snowden of Neale, Deal-meida & Snowden, Fort Lauderdale, for Appellants.
    Dylan M. Snyder, P.A., and James T. Butler of James T. Butler & Associates, P.A., Tampa, for Appellee.
   KELLY, Judge.

The appellants, Cooperative Leasing, Inc. and Truman Roosevelt Domer (the defendants in the trial court), challenge the final judgment entered in favor of the appellee, Irma Johnson, in an action for personal injuries. The appellants contend that the trial court erred in allowing Johnson to admit into evidence bills for medical expenses for which she never incurred liability and in allowing her to recover an amount in excess of benefits paid by Medicare as an element of compensatory damages. We agree and reverse.

Johnson was injured when she was hit by an automobile driven by Domer and owned by Cooperative Leasing. Johnson’s medical providers billed her a total of $56,950.70. Johnson’s personal injury protection carrier paid $15,000 of her medical expenses and her medical providers accepted $13,461 from Medicare as payment in full for their services. Johnson’s medical providers cannot collect the balance of $28,489 because federal law prohibits them from attempting to recover any further amounts from Johnson or any other source. See 42 U.S.C. § 1395cc(a)(l). Thus, Johnson never was and never will be legally obligated to pay more than $13,461 for medical services.

Before trial, the appellants moved in limine to prevent Johnson from introducing into evidence the full amount of her medical bills. They contended that the amount representing the difference between the amount charged and the amount paid by Medicare should not be included in Johnson’s compensatory damages because she never became liable for those charges. The trial court denied the appellants’ motion and allowed Johnson to present all her medical bills to the jury. The jury returned a verdict in Johnson’s favor, awarding her the full amount of her medical bills. After trial, the appellants sought to have that amount reduced to the amount that Medicare had actually paid on Johnson’s behalf. The trial court denied this motion as well, finding that Johnson was entitled to recover the full amount charged.

The issue in this case is the appropriate measure of compensatory damages for past medical expenses. “The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Mercury Motors Express, Inc., v. Smith, 393 So.2d 545, 547 (Fla.1981). “[T]he primary basis for an award of damages is compensation.” Fisher v. City of Miami, 172 So.2d 455, 457 (Fla.1965). In this case, Johnson sought to collect the “additional value of medical services reasonably made necessary” by the appellants. We conclude, however, that Johnson was not entitled to recover for medical expenses beyond those paid by Medicare because she never had any liability for those expenses'and would have been made whole by an award limited to the amount that Medicare paid to her medical providers.

The Fourth District Court of Appeal recently addressed this issue and concluded that the difference between the amount paid by Medicare and the amount charged by medical providers should not have been admitted into evidence. Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547, 550 (Fla. 4th DCA 2003), clarified on motion for rehearing (Mar. 10, 2004). In reaching its conclusion, the Fourth District relied on Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984). In Stanley, the court quoted at length from Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 29 Ill.Dec. 444, 392 N.E.2d 1 (1979). The issue before the court in Peterson was whether the plaintiff. could recover the value of. free medical services. The court stated that “[a]n individual is not entitled to recover for the value of services that he has obtained without expense, obligation, or liability.” Id. at 5. The court went on to contrast the situation before it with a situation in which a defendant is precluded by the collateral source rule from seeking a reduction in damages because the plaintiff has received insurance benefits. The court reasoned that in the situation in which the injured party incurs no expense, obligation, or liability, there was no justification for adhering to the collateral source rule because it would permit the plaintiff to “exceed compensatory limits in the interest of insuring an impact upon the defendant.” Id. The court reiterated that the purpose of compensatory damages is to compensate, not to punish defendants or bestow a windfall on plaintiffs. Id.

In Florida an injured party is entitled to recover the reasonable value of medical care resulting from the defendant’s negligence. In essence, both Lasky and Peterson stand for the proposition that the “reasonable value” of medical services is limited to the amount accepted as payment in full for medical services. Further support for this limitation is found in Restatement (Second) of Torts § 911 comment h (1997), which states:

When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.

Courts elsewhere that have considered this issue have likewise concluded that the difference between. the amount paid by Medicare or Medicaid and the amount charged by medical providers is not com-pensable. In Hanif v. Housing Authority, 200 Cal.App.3d 635, 640, 246 Cal.Rptr. 192 (1988), the court framed the issue as whether the “reasonable value” measure of recovery means that an injured plaintiff may recover from the tortfeasor more than the actual amount he paid or for which he incurred liability for past medical care and services. Under California law, as in Florida, an injured party is entitled to recover the “reasonable value” of medical care resulting from the defendant’s negligence. The California court concluded that “reasonable value” is a term of limitation, not aggrandizement. Id. at 641, 246 Cal.Rptr. 192. Accordingly, the court held that it was error to award the plaintiff an amount greater than accepted by the health care providers and paid by Medi Cal. See also Moorhead v. Crozer Chester Med. Ctr., 564 Pa. 156, 765 A.2d 786 (2001).

In Bates v. Hogg, 22 Kan.App.2d 702, 921 P.2d 249 (1996), superseded by statute on other grounds as recognized in Frans v. Gausman, 27 Kan.App.2d 518, 6 P.3d 432 (2000), the trial court prohibited the plaintiff from presenting the full value or market value of medical treatments she received as a result of the accident, and limited her to presenting evidence of what Medicaid actually paid on her behalf. The plaintiff appealed, contending that this was a violation of the collateral source rule. The court concluded that although the collateral source rule permits an injured party to recover full compensatory damages irrespective of the payment of those damages by a source independent of the tort-feasor, that rule was not applicable to the question before it. The court reasoned that since a medical provider may not charge Medicaid patients for the difference between their customary charge and the amount paid, the amount allowed by Medicaid becomes the “customary charge.” Id. at 253. Hence, the plaintiff was recovering full compensatory damages. This same reasoning has been applied to Medicare benefits. Wildermuth v. Staton, No. CIV.A.01-2418-CM, 2002 WL 922137 (D.Kan. Apr.29, 2002); Suhor v. Lagasse, 770 So.2d 422 (La.App.2000).

This limitation on compensatory damages is also in accord with the policy expressed by the legislature in section 768.76, Florida Statutes (1997). Section 768.76 abrogated the common law collateral source rule and replaced it with a statutory provision that allows certain payments from collateral sources to be set off from a plaintiffs recovery. § 768.76(1). This alteration in the common law collateral source rule evinces the legislature’s intent to prevent plaintiffs from receiving a windfall by being compensated twice for the same medical bills by both their insurance company and by the tortfeasor. Our holding in this case likewise allows an injured party to receive compensation for médical expenses for which they have become liable, but does not permit the plaintiff to receive a windfall by recovering “phantom damages.” Cf. Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003) (holding that under section 768.76, Florida Statutes (1999), a tortfeasor was entitled to a setoff for medical bills that were written off by medical providers pursuant to their contracts with a health maintenance organization to protect the insurer from having to pay “phantom damages”), review granted, 865 So.2d 480 (Fla.2004).

We reject Johnson’s characterization of the issue as whether the amount “written off’ by Medicare providers can be set off from the amount of past medical expenses a plaintiff recovers. Johnson contends that sections 768.76(1) .and 768.76(2)(b), Florida Statutes (1997), preclude the trial court from reducing her recovery by the amount of benefits she has received from Medicare. Those sections provide:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all Goliat-eral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists....
(2)(b) Notwithstanding any other provision of this section, benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiffs recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health and Rehabilitative Services shall not be considered a collateral source.

Johnson correctly contends that “benefits received” under Medicare are not a collateral source under section 768.76(2)(b) and therefore cannot be set off from her recovery under section 768.76(1). Where we differ with Johnson is in how to properly construe “benefits received.” She argues that “benefits received” includes not only the amount paid to her medical providers, but also the amount “written off’ by her medical providers. We cannot agree with Johnson’s interpretation of the statute.

Section 768.76 excludes Medicare benefits as a collateral source because the federal government has a right to reimbursement from Johnson’s recovery for payments it has made on her behalf. Under federal law the government’s right to reimbursement does not extend to amounts never actually paid to medical providers. See 42 U.S.C. § 1395y(b)(2)(B)(i). If we adopted Johnson’s construction of “benefits received” she would be entitled to recover an amount equal to the full amount of her medical bills, including the amount for which she never became liable and for which the federal government has no right to reimbursement. This would result in a windfall that is contrary to the legislative policy evidenced by section 768.76. Consequently, the amount that was written off by her medical providers cannot be considered “benefits received” under section 768.76(2)(b).

Accordingly, we hold that the appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiffs medical bills. The trial court should have granted the appellants’ motion in limine and prohibited Johnson from introducing the full amount of her medical bills into evidence.

The judgment in favor of Johnson is reversed and remanded for recalculation of damages in accordance with this opinion.

Reversed and remanded.

SALCINES and SILBERMAN, JJ„ Concur.

      . On the contrary, under the rationale of this court’s decision in Goble it would constitute an "amount ... paid for the benefit of the claimant” under section 768.76(1), and therefore could properly be set off from her recovery. See 848 So.2d at 409 (holding that the difference between the amount paid to medical providers under an HMO contract and the amount billed by those providers constituted a "payment[ ] made to the claimant, or made on the claimant's behalf” under section 768.76(2)(a) and it could therefore be set off from the plaintiff's recovery).


author: FARMER, C.J.

text:
    Boyd JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4958.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied May 21, 2004.

      Richard D. Kibbey of Kibbey & Barlow, Stuart, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

Defendant seeks reversal of an order denying the suppression of evidence. He argues that the affidavit on which a search warrant was issued was fatally defective in not specifying when the informant met with defendant. He also contends that the police search was improper because the officers violated the “knock and announce” statute in not waiting longer than 20 seconds before breaking down his door. We affirm on both grounds.

The text of the affidavit in question is as follows:

“During the week ending 3/22/02, your affiants met with a[n] [informant] at a pre-determined location, the [informant] stated he was approached by a Hispanic male to help find about ten pounds of marijuana. The [informant] said the Hispanic male had ten thousand dollars in cash for the purpose of purchasing marijuana to take back to North Carolina. The [informant] stated the Hispanic male said he wanted the [informant] to check the marijuana for him to ensure its quality. The [informant] met the Hispanic male and drove to the aforementioned address. The [informant] said they went into the house where they met [a man known only as] Gustavo. Gustavo went to a shed behind the residence and brought back what was approximately twenty pounds of marijuana. Gustavo told the Hispanic male he was in possession of about forty eight pounds of marijuana which he kept in the shed. The [informant] said the Hispanic male bought about two pounds of the marijuana for two thousand dollars. The [informant] stated they personally handled the marijuana and positively identified the green substance as marijuana. The [informant] met with me and gave me a description of the residence. The [informant] said the shed was behind the house and that the house sat back off the road. The [informant] said the driveway had a green sign that had the letters ‘MC’ next to a metal tube gate. Det. Davis, Flowers and I followed the [informant’s] directions and found the description to be true and accurate.”

Defendant argues that there is nothing stating or implying when the informant met with the person selling the contraband described. The only date or time frame referred to in the body of the affidavit is “the week ending 3/22/02” — when the officers met with the informant to discuss a drug transaction he claimed to have witnessed. March 22, 2002 is also the date on which the officers applied for the search warrant. The affidavit does not state an exact date when the informant allegedly saw contraband at defendant’s residence.

We begin to assess the sufficiency of this affidavit by recognizing:

“a magistrate’s determination of probable cause should be paid great deference by reviewing courts. After the fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. The duty of the reviewing court is to insure that the magistrate who has issued the search warrant had a substantial basis for concluding that probable cause existed.” [c.o.]

Schmitt v. State, 563 So.2d 1095, 1099 (Fla. 4th DCA 1990), quashed on other grounds, 590 So.2d 404 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992); see also Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). In reviewing this warrant, we also recognize:

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Schmitt v. State, 590 So.2d 404, 409 (Fla. 1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992). The evidence in the affidavit need not be conclusive; nor must it meet the “technical requirements of elaborate specificity” imposed upon legal pleadings. Schmitt, 563 So.2d at 1098.

In this case, although the affidavit fails to state the specific date the informant allegedly saw contraband at defendant’s residence, it sets forth sufficient circumstances to justify the issuance of a search warrant. First, in paragraph 2, the affidavit sets forth a basis for accepting the informant’s reliability:

“The [informant] has provided your affi-ants with information on numerous known drug traffickers in St. Lucie County. The [informant] has provided information on no less than ten different occasions, during these occasions the [informant] provided information regarding in excess of fifteen individuals and their activities involving narcotic trafficking in St. Lucie. The information regarding each individual has been corroborated as accurate and reliable.... The [informant] has made twenty controlled buys of cocaine and marijuana. The information provided by the [informant], has been investigated by your affiants and determined to be reliable and accurate. The [informant] has provided information which has resulted in more than five arrests. A result of the arrests has led to the seizure of cocaine, marijuana, U.S. currency and vehicles.... The [informant] has handled narcotics and can identify narcotics such as marijuana.... As a result of the information provided by the [informant], the Police Dept, has arrested more than five individuals .on assorted narcotic violations.”

Moreover, it is plausible to conclude that the phrase, “during the week ending 3/22/02,” refers to the time when the informant went to defendant’s residence where the informant saw the contraband and drug transaction. Yet it may also mean something else. In this regard the affidavit is merely ambiguous. If so, we are charged to defer to the trial court’s probable cause determination, for:

“[a]lthough ... it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference accorded to warrants.”

Doorbal v. State, 837 So.2d 940, 952 (Fla. 2003); Illinois v. Gates, 462 U.S. 213, 232 n. 10, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Indeed, great deference is accorded to the trial court’s probable cause determination. See Doorbal, 837 So.2d at 954; Terry v. State, 668 So.2d 954, 958 (Fla.1996).

We are aware, however, of cases from the Second District holding that an affidavit in support of search warrant is deficient when it fails to allege the specific time/date the contraband was seen on the premises to be searched. See Getreu v. State, 578 So.2d 412 (Fla. 2d DCA 1991); Rand v. State, 484 So.2d 1367 (Fla. 2d DCA 1986); King v. State, 410 So.2d 586 (Fla. 2d DCA 1982). We could merely distinguish these decisions on the basis that here the affidavit is merely ambiguous as to time but is otherwise supported by sufficient facts from which the magistrate could find probable cause. To the extent, however, that this distinction is not true, we certify conflict with any inexorable rule intended by these cases.

Even if we were to find the warrant facially invalid, it qualifies for the good faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the United States Supreme Court held that suppression of evidence was not required when police act in good faith on a warrant they have no reason to believe is invalid. The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 923 n. 23, 104 S.Ct. 3405.

As we have said, the affidavit in this case is at worst ambiguous as to temporal context but otherwise supplies sufficient facts from which a magistrate would have a substantial basis for concluding that probable cause existed. As such, its temporal deficiency is more likely than not a matter of poor drafting rather than bad faith. See, e.g., State v. Enstice, 573 So.2d 340, 343 (Fla. 5th DCA 1990). We therefore conclude that defendant has failed to show error with regard to the sufficiency of the affidavit.

As for the 20-second “knock and announce” violation, this issue is effectively put to rest by the recent decision in United States v. Banks, 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003). The time interval here between knocking and breaking is nearly identical to the Supreme Court case. The Court held that interval of 15 to 20 seconds, from the time that the police officers conducting an afternoon execution of a narcotics trafficking search warrant loudly knocked on the apartment door, until they forcibly entered after getting no response, was reasonable. The Court relied on the exigency of possible destruction of narcotics evidence during any longer delay.

This exigency was not negated by the fact that the resident was in the shower at the time of the knock and would have had time to answer the door if he had heard the knock. The Court emphasized the facts known to the officers at the time determined the reasonableness of the “wait” time. As the Court also stressed, the entry was not justified based on any implied refusal of entry but rather on this exigency. These considerations apply with equal force to the present case. The exigency of the possible destruction of the contraband evidence justifies the refusal to wait any longer for a response.

AFFIRMED.

GUNTHER and TAYLOR, JJ., concur.


author: THOMPSON, J.

text:
    Jessie James MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-179.
    District Court of Appeal of Florida; Fifth District.
    April 16, 2004.
    Rehearing Denied May 21, 2004.
    Jessie James Milton, Miami, pro se.

      No Appearance for Appellee.
   THOMPSON, J.

Jessie Milton appeals an order denying him post-conviction relief. We affirm.

Milton first contends that the trial court erred in summarily denying him relief based on his claim that counsel’s failure to call a witness was ineffective assistance. We disagree. To set forth a facially sufficient claim, a post-conviction motion must allege that the witness was available to testify. Edwards v. State, 859 So.2d 588 (Fla. 4th DCA 2003); Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002), rev. granted, 837 So.2d 411 (Fla.2003). In the instant case, Milton failed to allege or establish that the witness was available to testify. As this court reasoned in Nelson, a defendant must allege that the witness had been available to testify at trial because counsel’s failure to call an unavailable witness could not logically prejudice the outcome of a defendant’s trial. Id. at 696 (citing Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA 1993)).

Next, Milton argues that the trial court erred in finding that counsel was not ineffective for failing to object to certain prosecutorial comments and failing to move for a mistrial. After a review of the record, we agree with the trial court that counsel’s failure to object to certain comments made by the prosecutor was neither deficient performance nor prejudicial to Milton. The cited comments were not directed at Milton, but were made in the context of explaining the officers’ questioning techniques during the taped interviews with Milton or in response to the defense’s closing arguments attacking the officer’s questioning techniques.

Additionally, the evidence supported the trial court’s finding that counsel did not object to every allegedly improper comment as a matter of strategy. See Brown v. State, 846 So.2d 1114 (Fla.2003) (affirming denial of relief where prosecuto-rial comments did not undermine confidence of trial and defense counsel testified that he was being judicious with his objections in order to avoid antagonizing the jury and losing credibility). We agree that counsel’s performance was not deficient or prejudicial. Moreover, after reviewing the record and the prosecutor’s comments, we conclude that in light of Milton’s confession, even if the prosecutor’s comments were inappropriate, they were not so prejudicial as to vitiate the entire trial. See Chandler v. State, 702 So.2d 186, 191 n. 5 (Fla.1997) (holding that the prosecutor’s comments about defendant and his counsel were “thoughtless and petty,” but were not so prejudicial as to vitiate the entire trial).

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.


author: SHEPHERD, J.

text:
    Gyuri GARCIA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D03-154.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.

      Gyuri Garcia, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Commission.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal of a decision denying claimant compensation benefits for misconduct based on alleged failure to adhere to employer’s policy for cashing double endorsed checks. We reverse.

The claimant, Gyuri Garcia, was a teller supervisor of Total Bank, who had been employed by the Bank since 1996 and worked his way up the ranks. The Bank had a policy requiring that double endorsed business checks (those with two endorsements on the back) presented for deposit at the Bank have both a guarantee by another bank and the approval of the branch manager or an officer of a rank of vice-president or higher before acceptance for encashment. The claimant received training on processing double endorsed business checks and was well aware of the policy.

In August 2001, the claimant was presented a check in the amount of $14,697.50 for deposit into the corporate account of Bank customer, Ramirez Super Motors, Inc. (Ramirez Motors) by Jose Ramirez, a principal of the corporation. Ramirez Motors is an automobile dealership located in Miami-Dade County. The check was drawn upon the account of the American Diabetes Association and made payable to a Nigerian corporation. The check bore an apparent endorsement by the Nigerian corporation and was double endorsed to Ramirez Super Motors. Garcia accepted the check for deposit and encashment.

Unfortunately, the Nigerian endorsement was subsequently discovered to be a forgery and the Ramirez Motors account was briefly overdrawn. Nine months later, on May 3, 2003, after a brief investigation that began only days earlier, the Bank confronted Garcia and fired him for accepting the check in violation of bank policy. If it were true, this would have been claimant’s only policy violation of this nature.

Garcia applied for unemployment benefits, but was denied on the grounds of employee misconduct, by a determination dated June 27, 2002. Garcia then sought an the evidentiary hearing before an appeals referee to review the determination.

Before the appeals referee, the Bank presented testimony from two witnesses, Bank Executive Vice President Barbara Hernandez and Robert Revilla, who was at the time of his testimony the branch manager of Garcia’s former branch. However, neither of these witnesses had personal knowledge of the incident involving Garcia’s acceptance of the subject check. Garcia, on the other hand, presented his own testimony and called two other witnesses with personal knowledge of the incident. Garcia testified that he did, in fact, obtain approval to accept the check from Bank Senior Vice President, Ambrosio Rodriguez, the officer in charge of the Ramirez Motors account, before cashing the check. To buttress his position, Garcia called Ramirez who testified that he had pre-cleared the deposit with Rodriguez before taking it to the Bank and even faxed a copy of the check to him. The testimony of Mary Pellerano, who was the manager of the branch at which Garcia worked at that time, provided circumstantial support for Garcia’s position. Pellerano recalled the incident and testified that Ramirez complained loudly to her that Garcia was being a stickler about not accepting the check without proper authorization. Pellerano added that Garcia was “an excellent employee” and that she was “pretty sure” Garcia did get “an approval,” and it was “sad to see a good employee like that lose his job over this.” According to Garcia, the only inadvertence was his failure to note the verbal approval from Rodriguez on the check, purportedly because the Bank was short-handed during the lunch hour, and he wanted to act quickly. There was no competent testimony to dispute Garcia’s position. Indeed, the Bank offered no direct testimony that Rodriguez’ approval had not been garnered prior to encashment. Nor did the Bank offer any explanation as to why it waited nine months before commencing an investigation of the incident.

Despite the fact that there was no evidence to controvert the testimony of Garcia and his corroborating witnesses that Garcia had acted properly, the appeals referee concluded that Garcia must have been guilty of misconduct since Rodriguez had not been called as a witness. Though the testimony of Mr. Ramirez that he had pre-cleared the check with Mr. Rodriguez and that of Ms. Pellerano about Garcia’s refusal to the customer in her presence to cash the check without appropriate approval were perfectly consistent with Garcia’s claim that he received approval from Rodriguez, the referee chose to believe that Garcia’s evidence was self-serving. At the same time, the referee completely glossed over the fact that the bank chose to mysteriously investigate this matter and terminate Garcia nine months after the Bank’s acceptance of the forged check.

The Commission affirmed stating that it could not substitute its judgment for that of the appeals referee, nor could it accept additional evidence from claimant. The Commission also found that the referee’s conclusion was a reasonable application of the pertinent law to the facts of the case— that claimant’s failure to follow employer’s policy constituted a substantial disregard of the employer’s interest tantamount to misconduct. We disagree.

On appellate review, the Commission’s order, which adopted the decision of the appeals referee, is entitled to a presumption of legal correctness. See Sekinger v. Heritage Insurance, Inc., 718 So.2d 358 (Fla. 2d DCA 1998); Kelle v. D.H. Holmes Co., Ltd., 658 So.2d 1161 (Fla. 2d DCA 1995). To successfully challenge any finding of the appeals referee, the appellant must show that it is not supported by competent, substantial evidence in the record. See Ford v. Southeast Atlantic Corp., 588 So.2d 1039 (Fla. 1st DCA 1991); Perez v. State Dept. of Labor and Employment Sec. Appeals Comm’n, 377 So.2d 806 (Fla. 3d DCA 1979); Fla. Stat. §§ 120.57(l)(e)(i )(f) and 120.68(7)(b) (2003). The appellant-claimant here has demonstrated reversible error.

The Florida Unemployment Compensation Statute defines “misconduct” as follows:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer had a right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

§ 443.036(29), Fla. Stat. (2003).

In interpreting this statute in a similar circumstance, we have reversed a referee and found for the claimant. See Menendez v. River Orchids Inv. Corp., 653 So.2d 470 (Fla. 3d DCA 1995) (where employee was absent from work to care for her daughter without proper notification to an executive, but had spoken with the executive assistant, referee erred by finding claimant misconduct).

We find that there was no misconduct on the part of Garcia. He claims that he did speak with Rodriguez to get approval per the bank policy. Ramirez’ testimony ratifies Claimant’s version of the story. The employer has produced no evidence to contradict same. Thus, we find that Garcia actually followed his employer’s policy on double endorsed checks, and therefore, was not guilty of misconduct. Nothing in the record sub judice supports the referee’s conclusion that Garcia’s testimony and evidence were self-serving. See Recio v. Kent Security Services, Inc., 683 So.2d 164 (Fla. 3d DCA 1996) (record did not support referee’s statement that claimant’s answers to questions were “elusive and evasive”).

Even if Garcia should have been more wary of this double endorsed check, his acceptance was an error in judgment, not an intentional disregard of his employer’s interest, especially since the record supports claimant’s defense that he received Rodriguez’ blessing. Where the employee’s downfall is the result of an error in judgment as opposed to intentional disregard of duties and obligations, there is no misconduct. See Bigler v. Florida Unemployment Appeals Comm’n, 841 So.2d 610 (Fla. 3d DCA 2003) (no misconduct where employee gave store merchandise, a “tester,” to employees of another business in appreciation of services provided to the store); Bates v. Unemployment Appeals Comm’n, 655 So.2d 1242 (Fla. 2d DCA 1995) (referee erred in concluding that claimant’s failure to call in sick on a daily basis constituted misconduct connected to work, when employee had already called in at the start of the week).

Lastly, the fact that this was Garcia’s one blunder over a six year career weighs in favor of finding that the claimant was not one to wilfully and wantonly disregard his employer’s interests. Where employee’s conduct is an isolated incident in an otherwise immaculate work performance record, finding misconduct is rare. Lamb v. Unemployment Appeals Comm’n, 424 So.2d 197 (Fla.5th DCA 1983).

The order of the Unemployment Appeals Commission affirming the appeals referee’s denial of unemployment benefits is reversed, and the case is remanded with directions for the Commission to award claimant full benefits.

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).

      . Neither party called Ambrosio Rodriguez as a witness. Garcia indicated that he did not subpoena Rodriguez because he understood that he could only subpoena non-party witnesses and that the Bank was therefore responsible for bringing Rodriguez to the hearing.