author: SCHWARTZ, Chief Judge.

text:
    CARIB OCEAN SHIPPING, INC., Appellant, v. Ismael ARMAS, Appellee.
    No. 3D02-346.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Sarnoff & Bayer and Neil Bayer, Coconut Grove, for appellant.

      James J. McNally, Coral Gables, for ap-pellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   SCHWARTZ, Chief Judge.

Carib Ocean Shipping, Inc. appeals from a substantial money judgment entered after a jury trial in favor of the plaintiff Armas, who was injured in an on-the-job accident caused by a co-worker’s negligent operation of Carib’s crane. We vacate for further proceedings because of the trial court’s error and abuse of discretion in failing to permit the defendant to amend its answer so as to raise the potentially conclusive defense of workers’ compensation immunity.

I.

Because (a) the plaintiff received comp benefits for his injuries as an employee of the Employer’s Services Contract, Inc., a “help-supply services company,” under section 440.11(2), Florida Statutes (2002), which also employed the person who improperly operated the crane, see Fleming Companies, Inc. v. Moreira, 690 So.2d 1367 (Fla. 3d DCA 1997); Caramico v. Artcraft Indus., Inc., 727 So.2d 348 (Fla. 5th DCA 1999); Maxson Constr. Co. v. Welch, 720 So.2d 588 (Fla. 2d DCA 1998), and (b) the only asserted basis of Carib’s liability to the plaintiff (and thus for the judgment below) was its claimed vicarious liability for that negligence as the owner of the crane under the dangerous instrumentality doctrine, it appears, on the face of it, that this present action simply cannot be maintained. In several cases, the Supreme Court has squarely held that the owner of a dangerous instrumentality is immune from such liability. Commercial Coatings, Inc. v. Pensacola Concrete Constr. Co., 616 So.2d 960 (Fla. 1993)(crane); Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.l966)(motor vehicle); see Sherrill v. Corbett Cranes Servs., Inc., 656 So.2d 181 (Fla. 5th DCA 1995); see also Caramico, 121 So.2d at 348; Maxson, 720 So.2d at 588; Fleming, 690 So.2d at 1367. Nevertheless, neither the court nor jury even considered the merits of this issue below. This is because, as a result of what appellant’s counsel concedes was pure negligence, the immunity defense was not pled, as required, in its answer. Athough, shortly before the scheduled trial date, the appellant Carib moved to amend so as to assert the claim as an additional affirmative defense, the trial court denied the motion. We hold that this ruling was an abuse of discretion which compels vacation of the judgment below.

Florida Rule of Civil Procedure 1.190(e) specifically provides that:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

In accordance with the language of the rule itself, see generally Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302 (Fla. 1st DCA 1991)(general rule favors amendment), it is clear that the “interests of justice” are far better served by determining a case on its substantive merits, rather than a mistake in pleading. See Dole v. Arco Chemical Co., 921 F.2d 484 (3d Cir. 1990)(leave to amend complaint should be granted where no bad faith or dilatory amendment by defendant or undue prejudice to opposing party); General Electric Co. v. Sargent & Lundy, 916 F.2d 1119 (6th Cir.l990)(untimeliness of motion to amend on eve before trial to add defense of privilege no bar to dismissal of suit where no prejudice caused by delay); State Federal Sav. & Loan Ass’n v. W.M. Campbell, 848 F.2d 1186 (11th Cir.1988)(leave to amend counterclaim day before trial permissible where no unfair surprise or prejudice by amendment); Estes v. Kentucky Utilities Co., 636 F.2d 1131 (6th Cir.l980)(discretionary to allow amendment of answer to assert workers’ compensation recovery; delay alone insufficient reason to deny amendment); Hawey v. United States, 481 F.2d 1187 (9th Cir.l973)(abuse of discretion to deny government’s motion for leave to amend third party complaint against contractor for indemnification five years after filing); Lynam v. Foot First Podiatry Centers, 919 F.Supp. 1141 (N.D.Ill.1996)(discretionary with district court to grant leave to amend answer; interest of fair, quick determination of every issue over prejudice from delayed motion); Fireman’s Fund Ins. Co. v. New York Mechanical Gen., Inc., 712 F.Supp. 312 (W.D.N.Y.1989)(deniaI of leave to amend answer to include affirmative defense of release for purpose of presenting real issues in case abuse of discretion); Rangolan v. County of Nassau, 51 F.Supp.2d 233 (E.D.N.Y.1999)(granting leave to amend complaint at close of evidence to add allegation of non-delegable duty in furtherance of justice); Cornell v. Chase Brass & Copper Co., 48 F.Supp. 979 (S.D.N.Y.1943)(motion for leave to serve amended answer to counterclaim to add statute of limitations defense properly granted where issue tried and decision on merits preferred), aff'd, 142 F.2d 157 (2nd Cir.1944); Lux v. Cox, 32 F.Supp.2d 92 (W.D.N.Y.1998)(delay in granting leave to amend answer to assert defense of release, central issue in case, no basis to deny amendment where no prejudice shown); Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. 405 (D.Del.l987)(amendment of complaint to assert new allegations facilitated decision on merits where not prejudicial and delay not undue); Anglo American Auto Auctions, Inc. v. Tuminello, 732 So.2d 1218 (Fla. 5th DCA 1999)(denial of leave to amend answer to include defense of statute of frauds at close of evidence abuse of discretion); Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235 (Fla. 3d DCA 1992)(denial of leave to amend abuse of discretion where proffered amendment demonstrates successful cause of action). While amendments may be denied when there is a sufficient showing of prejudice to the opposing party in preparing for the “new issue,” see Designers Tile Int’l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla. 1987), it is clear that the “justice factor” more than outweighs any such prejudice including that which may have been caused by the fact that the motion to amend was not filed until shortly before trial. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 225-26 (1962)(“In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”); Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419 (3d Cir.l981)(delay in and of itself insufficient basis for denial of motion to amend), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982); Butcher & Singer, Inc. v. Kellam, 105 F.R.D. 450, 453 (D.Del.l984)(delay in permitting amendment of answer “insignificant when measured against ... interest in seeing a proper decision on the merits”); see Childers v. Mineta, 205 F.R.D. 29 (D.D.C.2001)(motion to amend complaint not unduly prejudicial where new claims bear significant relationship to original claims and do not radically alter nature and scope of litigation); Avenada, Inc. v. City National Bank, 375 So.2d 883 (Fla. 3d DCA 1979)(abuse of discretion to deny motion to amend answer where judgment creditor would sustain no prejudice). Thus, the order denying leave to amend is unsupported by any pertinent consideration.

For this reason, we remand the cause to the trial court with directions to permit the amendment of the answer to assert the defense of workers’ compensation immunity, and for appropriate disposition of that issue by way of summary judgment or trial.

II.

If the issue is determined by either method in favor of the defendant, judgment must be entered in its favor. Otherwise, the plaintiffs judgment should be reinstated — with one qualification. Although we find no merit in any of the appellant’s other claims of trial error so that a new one would not be required as to any non-immunity issue, we do disagree with the trial court’s post-trial order setting aside the jury’s finding that the plaintiff was guilty of 20% comparative negligence and directing a verdict in his favor on that issue. In our view, the evidence as to the plaintiffs conduct at the time of the accident amply supported the jury’s conclusion that he was guilty of a failure to exercise reasonable care for his own safety which was a partial cause of his injuries. See Langmead v. Admiral Cruises, Inc., 610 So.2d 565 (Fla. 3d DCA 1992); see also Carnival Cruise Lines, Inc. v. Levalley, 786 So.2d 18, 18, 20 (Fla. 3d DCA 2001), review denied, 814 So.2d 438, 439 (Fla. 2002). Hence, any judgment in the plaintiffs favor must be reduced by 20% as found by the jury.

Vacated, reversed and remanded with directions.

      . [A] worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker’s compensation statutes. The central rationale of Smith is that leased equipment used on a job site in effect has become the working tool of the employer. Thus, the exclusivity principle of worker's compensation comes to bear.
      We see no reason why a different result should obtain in the present case. The only relevant differences between this case and Smith are that the dangerous instrumentality in this instance was informally borrowed .... We agree with the Fifth District that these differences are not sufficient to justify a different result than that in Smith.

        Commercial Coatings, 616 So.2d at 963.

        . Indeed, the plaintiff made no concrete showing to this effect at all. Furthermore, any prejudice which may be deemed to have existed ordinarily should be remedied, not by denial of the amendment, but by a continuance, see Batista v. Walter & Bernstein, P.A., 378 So.2d 1321 (Fla. 3d DCA 1980)(remedy for “surprise” is continuance, not disregard of newly raised issue), conditioned, if appropriate, upon the defendant's payment of any costs and expenses incurred by the plaintiff because of the delay. See Radecki v. Joura, 177 F.3d 694 (8th Cir.1997); Department of Children & Families v. M.G., 838 So.2d 703 (Fla. 5th DCA 2003); Flea Market, U.S.A., Inc. v. Cohen, 490 So.2d 210 (Fla. 3d DCA 1986). The trial judge recognized this fact by himself suggesting that a continuance of the trial was in order. Nevertheless, the motion to amend was denied after he unaccountably offered the plaintiff the option of choosing between a continuance or a denial of the motion to amend. The fact that the motion was denied only after the plaintiff, quite unsurprisingly, chose that option further demonstrates the incorrectness of the ruling in question. Finally, it should go without saying that the fact that the proposed amendment raises an issue that, on the merits, may constitute a complete defense to the cause of action "is not the type of prejudice that is considered by the court in making its determination in this matter.” Lynam, 919 F.Supp. at 1149 n. 7.; cf. Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 72 F.R.D. 556 (S.D.N.Y.1976).

      . See generally Noble v. Martin Memorial Hosp. Assn, 710 So.2d 567 (Fla. 4th DCA 1997)(liberality in allowing amendment diminishes as case progresses to trial), review denied, 718 So.2d 169 (Fla.1998).

      . As indicated below, any subsequent trial will be limited to the immunity issue.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Gary MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4197.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Matthews appeals his sentence in case number 90-1156 on the ground that he was denied Tripp credit when he was sentenced for violating his probation. Although he has finished serving this sentence, he contends that he is entitled to have the appropriate credit applied to his sentence in case number 94-1592 because, as this sentence was consecutive to the sentence in the 1990 case, the error affected his release date in the 1994 case. We agree and reverse the order denying Matthews’ February 22, 2002, motion to correct an illegal sentence.

In 1990, Matthews pled guilty to (count I) battery on a law enforcement officer, (count II) resisting an officer with violence, and (count III) escape. For counts I and II, he was sentenced to serve concurrent terms of five years as a habitual felony offender with credit for time served. For count III, he was ordered to serve five years of probation consecutive to the prison sentence.

In 1994, while serving the probation portion of his sentence for count III, Matthews committed two new crimes. The court revoked Matthews’ probation in the 1990 ease and sentenced him to serve four and a half years in prison with credit for the 355 days he had served while awaiting sentencing. On that same day, Matthews was also sentenced for the substantive charges of sexual battery and false imprisonment in case number 94-1592. However, this sentence was reversed on appeal to this court and Matthews was re-sentenced in 1997.

Upon re-sentencing in case number 94-1592, Matthews was ordered to serve five years in prison as to count I and, as to count II, one year in prison followed by four years on probation, with 1,099 days credit for time served, plus all unforfeited gain time.

In 2001, Matthews violated his probation in the 1994 case and was re-sentenced. Matthews filed a rule 3.800(b) motion to correct sentence in case 90-1156, arguing that he should have received Tripp credit and, because he had completed the 1990 sentence, the credit should be considered relative to the date he commenced serving his 1994 sentence.

In Tripp, the defendant was originally sentenced to a term of imprisonment on one count followed by probation on another count. He violated his probation, and the supreme court ruled that credit must be awarded for the time served on the first count against the sentence imposed for the probation violation on the second count. In Palmer v. State, 804 So.2d 455 (Fla. 4th DCA 2001), we held that the Tripp rationale applies even where the defendant was sentenced as a habitual offender.

The record reflects that had Tripp credit been applied in the 1990 case, his sentence in the 1994 case would have started one year and 88 days sooner than it did. Prior to Palmer, case law indicated that Tripp credit would not be applied to a violation of probation from time served by the defendant on counts for which he was sentenced as a habitual felony offender. See Duncan v. State, 686 So.2d 701 (Fla. 2d DCA 1996)(holding that Tripp credit is not applicable to habitual felony offender sentence).

This court has determined that a prisoner is entitled to correct a credit for time served in an earlier case that impacts a subsequent release date. See Pizano v. State, 829 So.2d 396 (Fla. 4th DCA 2002). In Pizano, the appellant had completed his 1995 sentence when he argued that he was entitled to be re-sentenced under the 1994 guidelines pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The state argued that the issue was moot because he had already completed his sentence. This court rejected the state’s argument because he was still in prison serving sentences in two other cases that ran consecutive to the 1995 case. The 1995 sentence was combined with the other two concurrent sentences to calculate his release date. As a result, although he had completed his 1995 sentence, the error in that case continued to affect his release date. Therefore, this court reversed and remanded with instructions that the appellant be re-sentenced under the 1994 guidelines so that his release date could be recalculated. Id. at 397.

Here, as in Pizano, the failure to apply Tripp credit to his sentence in the 1990 case affected Matthews’ release date in the 1994 case. As Matthews’ sentence in 94-1592 commenced consecutive to his sentence in 90-1156, he is entitled to the Tripp credit. See Vellucci v. Cochran, 138 So.2d 510 (Fla.1962); Silvester v. State, 794 So.2d 683 (Fla. 4th DCA 2001)(Judge Klein concurring specially and interpreting Vellucci to mean that “if a defendant has wrongfully served the first of two consecutive sentences, the time he wrongfully served on the first sentence should be credited to the sentence which was to begin at the expiration of the first sentence.”).

As to the Tripp issue, we reverse and remand for further proceedings in accordance with this opinion. With respect to applying Tripp credit to habitual felony offender sentences, we stand by our decision in Palmer, and certify conflict with Duncan. As to all other issues raised, we affirm.

FARMER, C.J. and GUNTHER, J., concur.

      . Tripp v. State, 622 So.2d 941 (Fla.1993).

      . Matthews’ sentence, as to count II, was subsequently amended, resulting in a sen-ience of one year and one day followed by three years and 364 days of probation.


author: WARNER, J.

text:
    Charles GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-839.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal from a conviction and sentence for possession of cocaine and drug paraphernalia, appellant contends that the trial court erred in denying his motion to suppress. He claims that the officers who stopped him and arrested him for loitering and prowling, which arrest led to the discovery of the contraband, did not have probable cause. We agree and reverse.

Two Broward County Sheriffs deputies saw appellant and two other men walking away from a closed restaurant at the State Farmer’s Market in Broward around 3:47 one morning in March 2001. The men were about 250 feet east of the restaurant. Next to the restaurant is a building where truck drivers park. They come to the area to sleep at all times, day and night. Some of the area is kept lighted at night. “No Trespassing” signs are posted around the restaurant. These signs provide notice that if an officer instructs a person to leave the premises, failure to leave after warning could result in arrest for trespass.

The deputies separated the three men for questioning. Appellant did not attempt to flee, identified himself correctly and was cooperative. He told the deputy he was on the property looking for a place to park his truck, which he had left parked quite a distance away from the Farmer’s Market. The other men said that they were looking for gas for their vehicle.

The restaurant had been burglarized the night before, but the deputies did not see any evidence that appellant or the other two men were trying to burglarize the restaurant. They did not have any burglary tools and did not appear to be surveil-ling the area to find a way to break in. The deputies arrested all three men. The testifying deputy said he arrested appellant for loitering and prowling because when questioning appellant “in regards to why he was there, he was unable to dispel [the officer’s] alarm [as to] why he was on that property at that time and at that place.” The officer believed that appellant was an immediate threat to the safety of the property because the time was consistent with a prior burglary. The officer did not consider appellant a trespasser because the officer never directed appellant to leave. Based upon the evidence, the court denied the motion to suppress.

The crime of loitering and prowling consists of two elements: (1) the accused must loiter and prowl in a manner not usual for law abiding individuals; and (2) the loitering and prowling must be under circumstances that warrant concern for the public safety. See § 856.021(1), Fla. Stat. (2000); see also Von Goff v. State, 687 So.2d 926, 928 (Fla. 2d DCA 1997); Springfield v. State, 481 So.2d 975, 976-77 (Fla. 4th DCA 1986). “The gist of the first element is conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime and which must be alarming in nature, pointing toward an imminent breach of the peace or threat to public safety.” E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999). The officer must “ ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ a finding that a breach of the peace is imminent or the public safety is threatened.” State v. Ecker, 311 So.2d 104, 109 (Fla.1975) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Because loitering and prowl ing is a misdemeanor, both elements of the offense must be committed in the officer’s presence prior to arrest. See Erceg v. State, 697 So.2d 572, 572 (Fla. 4th DCA 1997); Freeman v. State, 617 So.2d 432, 433 (Fla. 4th DCA 1993).

The evidence presented in this case does not show the presence of either element of the crime of loitering and prowling. While the officers witnessed three men walking in the area of the Farmer’s Market in the early hours of the morning, the testifying officer admitted that truckers frequented the area at all times, day and night. Therefore, that observed fact plus any rational inferences to be drawn from it do not suggest that appellant was acting in an abnormal way at the time and place the officers encountered him. The fact that the restaurant in the vicinity had been previously burglarized does not alter this conclusion as “[sjtanding late at night or in the early morning hours in back of a closed business in a high-crime area or an area in which there had been burglaries does not, without more, amount to the crime of loitering and prowling.” C.H.S. v. State, 795 So.2d 1087, 1091 (Fla. 2d DCA 2001) (citations omitted); see also K.R.R. v. State, 629 So.2d 1068, 1070 (Fla. 2d DCA 1994). The behavior of appellant and the other two men was not “alarming in nature, pointing toward an imminent breach of the peace or threat to public safety,” E.C., 724 So.2d at 1244, by coming “close to, but falling short of, the actual commission or attempted commission of a substantive crime.” Id. The fact that the men gave the officers inconsistent explanations for their presence at the Farmer’s Market is irrelevant because the men’s actions were not alarming, thus there was no need for the men to dispel alarm. See R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000) (finding defendant’s inconsistent and puzzling answers to officer’s questions were irrelevant because there was no need for defendant to dispel any alarm).

As the evidence did not demonstrate that appellant was engaged in activity which indicated an imminent breach of the peace or threat to public safety, the trial court erred in finding probable cause to justify appellant’s arrest. Therefore the motion to suppress should have been granted.

Reversed and remanded for discharge.

STONE and STEVENSON, JJ., concur.


author: PER CURIAM.

text:
    Gerald CICCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1159.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, and Gerald Ciccia, Rai-ford, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf and Georgina Jimenez Orosa, Assistant Attorneys General, West Palm Beach, for appel-lee.
   PER CURIAM.

In Appellant’s direct criminal appeal, the public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree there are no meritorious issues for appeal and affirm the judgment and sentence. However, Appellant correctly argues that the trial court erred in failing to give him notice and an opportunity to object to the amount assessed for the public defender’s fees, an issue which was preserved for appeal by the denial of his rule 3.800(b)(2) motion. The public defender’s fee and hen are therefore stricken, without prejudice to being reimposed on remand after the proper procedure is followed. See, e.g., Holm v. State, 784 So.2d 1185 (Fla. 2d DCA 2001); Fisher v. State, 697 So.2d 1291 (Fla. 1st DCA 1997).

Affirmed in part; reversed in part and remanded with instructions.

WARNER, SHAHOOD and GROSS, JJ., concur.


text:
    Terry GORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3002.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Terry Gore, Century, pro se.
    No appearance required for appehee.
   PER CURIAM.

Affirmed. See § 893.135(1)(b)1.c„ Fla. Stat. (1997).

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: BROWNING, J.

text:
    Matthew D. CHRIST, Appellant/Cross-Appellee, v. Kathryn K. CHRIST, Appellee/Cross-Appellant.
    Nos. 1D02-3514, 1D02-5038.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.

      Nancy N. Nowlis, Jacksonville, for Appellant/Cross-Appellee.
    Lyman T. Fletcher and Jeffrey A. Conner, of Fletcher & Conner, Jacksonville, for Appellee/Cross-Appellant.
   BROWNING, J.

In Case No. 1D02-3514, the former husband, Matthew Christ, appeals, and the former wife, Kathryn Christ, cross-appeals, certain portions of the final judgment dissolving their marriage. In Case No. 1D02-3514, Mr. Christ appeals the trial court’s orders awarding Mrs. Christ’s attorney’s fees and costs and temporary appellate fees. We affirm the orders granting Mrs. Christ’s trial fees and costs and temporary appellate attorney’s fees, as well as those parts of the final judgment dissolving the marriage and designating Mrs. Christ the primary residential parent (which was undisputed). However, we reverse the equitable distribution scheme and the ruling on visitation transportation expenses and remand for findings of fact and/or further proceedings in accordance with the guidelines set forth in this opinion. To effect a just and equitable result, the trial court may, on remand, adjust the parties’ overall financial arrangements as needed.

The parties were married in October 1993 in North Carolina and ceased living together in October 2000. The four children born of the marriage are currently of elementary-school age or younger. Mrs. Christ, who has a B.A. degree in English and does public-relations consulting work, lives in Jacksonville, Florida. Mr. Christ was in the United States Army but elected to leave military service in 1997 after he was not selected for a promotion to major. He went to work for the United States Department of State as a foreign-service officer. At the time of the dissolution trial, he was assigned to the operations center of the Secretary of State in Washington, D.C. Before the dissolution proceedings became final in the trial court, Mr. Christ received a two-year assignment transferring him to Tbilisi, Republic of Georgia, a part of the former Soviet Union.

The trial court found that Mr. Christ’s annual income was $76,296.00, comprising his base pay ($62,258.00), military voluntary separation incentive (VSI) ($11,-088.00), and consulting work ($3,000.00). The court imputed annual income to the former wife in the amount of $31,000.00 based on her earning capacity and educational skills as well as the fact that she had turned down a job opportunity paying that amount diming the pendency of these proceedings. Competent substantial evidence supports these findings.

Equitable Distribution

Mr. Christ contends that the trial court erred in its equitable distribution by awarding him his VSI while using the same asset as a source of income for purposes of calculating child support. In the cross-appeal, Mrs. Christ asserts that the court erred, inter alia, 1) in awarding her the marital furniture and furnishings and crediting this personal property’s $10,000.00 value to her share of the marital estate, when all the furniture and furnishings are in storage under Mr. Christ’s control and, without some financial assistance from him for moving expenses, she says she is effectively unable to gain possession of these items; and 2) in omitting from the equitable distribution plan the marital debt existing as of the filing date of the petition to dissolve the marriage.

The trial court awarded Mr. Christ his VSI yet also used this same asset as a source of income in calculating his child-support obligation. Mrs. Christ concedes this constitutes error as a matter of law. Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla.1986) (noting that “injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations”); Batson v. Batson, 821 So.2d 1141, 1142 (Fla. 5th DCA 2002) (finding that the law and principles of fairness required former husband’s pension to be treated either as income or as a marital asset, but not as both). However, she contends it is harmless error. Given the parties’ large, mounting debts and relatively few assets, this error cannot reasonably be deemed harmless. On remand, the trial court must make specific written findings regarding how long Mr. Christ was in the Army, how much of the VSI is a “marital asset” subject to equitable distribution, and what its present value is. § 61.075(3)(b) & (5), Fla. Stat. (2001).

We find no abuse of discretion in the trial court’s awarding Mrs. Christ the marital furniture and furnishings and crediting the $10,000.00 value of these items to her without also awarding her the costs of moving these things from Washington, D.C., to Jacksonville. At the dissolution trial, Mr. Christ did not contest Mrs. Christ’s entitlement to these things. Mrs. Christ’s allegations that it would be difficult or inconvenient for her personally to transport these items from the storage site to her Florida residence and too costly to have them shipped do not, by themselves, prove an error of law.

The trial court abused its discretion in omitting marital liabilities from the equitable distribution scheme. See § 61.075(1), (3)(c) & (5)(b), Fla. Stat. (2001). In the “equitable distribution” section of the final judgment, the court listed and valued the parties’ marital assets but failed expressly to address marital liabilities there or anywhere else in the judgment. Florida law provides that “[i]n distributing the marital assets and liabilities, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors,” including those factors set forth in section 61.075(l)(a) through (j)> Florida Statutes (2001); Collinsworth v. Collinsworth, 624 So.2d 287, 288-89 (Fla. 1st DCA 1993); Ervin v. Ervin, 553 So.2d 230 (Fla. 1st DCA 1989). Mr. and Mrs. Christ testified that they both have considerable balances on their credit cards. He testified also about a $5,756.00 outstanding loan on his truck. The trial court awarded Mr. Christ two automobiles and (apparently referring to the “truck” about which he had testified) ordered him to transfer to Mrs. Christ’s possession the 1997 Ford Expedition within 15 days of his having paid off the loan balance on the vehicle. We direct the court to address marital liabilities on remand and to make adequate factual findings in the event it determines that an unequal distribution is appropriate.

Visitation Transportation Expenses

Mr. Christ alleges error in the trial court’s limiting Mrs. Christ’s 50-per cent contribution to visitation transportation expenses only to that time period when Mr. Christ resided in Washington, D.C., and in refusing to address the children’s overseas visitation with their father. We remand for the trial court to make sufficient written findings of fact to explain and justify this limitation.

Mr. Christ’s employment in foreign service enhances the likelihood that he will continue to be assigned a considerable distance from his children’s Florida residence. It is good public policy, and in the minor child[ren]’s best interest, to devise a visitation plan “adequate to foster a continuing meaningful relationship between the child[ren] and the secondary residential parent.” § 61.13(2)(d)4., Fla. Stat. (2001); Russenberger v. Russenberger, 669 So.2d 1044, 1045 (Fla.1996) (stating “Florida has a strong policy of maintaining a close and continuing relationship between minor children and their divorced parents”); Willey v. Willey, 683 So.2d 647, 650 (Fla. 4th DCA 1996); Day v. LeBlanc, 610 So.2d 42 (Fla. 2d DCA 1992). In that regard, the trial court attached “Long Distance Visitation Guidelines” to the final judgment. The parties were ordered to divide equally the logistics and costs of any transportation to effect Mr. Christ’s visitation with the children. In his motion for rehearing, Mr. Christ argued that the court had erred by not specifically allowing overseas visitation. In her motion for rehearing, Mrs. Christ asserted error in the court’s failure to limit her potentially costly share of the visitation travel expenses, in light of the geographical breadth of Mr. Christ’s work assignments. The court issued a clarification order indicating that the 50/50 split in pickup and delivery travel expenses was intended to apply only for so long as Mr. Christ resided in or around Washington, D.C. Before the conclusion of the proceedings in the lower tribunal, Mr. Christ was transferred to the Republic of Georgia, a move that significantly increased the geographical distance between him and the children and almost certainly will result in greater visitation transportation costs.

The parties have four young children. It is a basic assumption of the child-support guidelines that the expenses of childrearing should be fairly and equitably shared by the parents according to their financial circumstances. See § 61.30, Fla. Stat. (2001); Coons v. Coons, 765 So.2d 167, 174 (Fla. 1st DCA 2000). “The expense of transporting the minor child for visitation is a childrearing expense like any other.” Drakulich v. Drakulich, 705 So.2d 665, 667 (Fla. 3d DCA 1998). Thus, a trial court is authorized to consider whether the costs of transportation for visitation are affordable to the parents in relocation cases and to make appropriate adjustments. It is inappropriate for a court, directly or indirectly, to impose unreasonable restrictions on a parent’s ability to move. See Mize v. Mize, 621 So.2d 417 (Fla.1993); Willey, 683 So.2d at 650. Mr. Christ, whose move overseas is work-related, argues the trial court abused its discretion in limiting Mrs. Christ’s equal contribution to visitation expenses only to that period when he lived in the nation’s capital. In Miller v. Miller, 826 So.2d 480, 481 (Fla. 1st DCA 2002), where the issue of visitation travel expenses arose in modification proceedings, we recognized the general rule that such expenses (like other childrearing expenses) should be allocated between the parties “in the same guidelines ratio as governed allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation ‘is needed to achieve an equitable result.’ ” See § 61.30(ll)(a)ll., Fla. Stat. (2001). If, on remand, the trial court elects not to order the parties to share financial responsibility for the children’s visitation travel expenses, it must set out specific written findings justifying its decision as it relates to the parties’ respective financial circumstances. See § 61.30(11), Fla. Stat. (2001); Miller, 826 So.2d at 481.

Child Support

Mrs. Christ contends that the trial court erred in denying her request for a retroactive application of the child-support award, even though the evidence established Mr. Christ’s ability to pay the amount and Mrs. Christ’s financial need. Whether to award child support retroactively to the filing date of the petition for dissolution is clearly discretionary. § 61.30(17), Fla. Stat. (2001). We find no abuse of discretion here. McArthur v. McArthur, 106 So.2d 73 (Fla.1958); Barrs v. Barrs, 590 So.2d 980, 981 (Fla. 1st DCA 1991). However, inasmuch as the reconsideration of the equitable distribution could affect the parties’ relative financial positions, the trial court may, on remand, make any appropriate adjustments concerning the amount of child support and whether it is retroactive in application.

Attorney’s Fees and Costs

Mr. Christ asserts that the trial court erred in granting Mrs. Christ’s motions for trial attorney’s fees and costs and temporary appellate fees, even though the evidence clearly demonstrated no financial disparity between the parties. Specifically, the court ordered him to pay $12,000.00 for her trial attorney’s fees and costs within 180 days; and to contribute $5,000.00 for her temporary appellate attorney’s fees and costs within 45 days. Competent substantial evidence supports the finding that although Mr. Christ’s nominal income has decreased and his telephone costs have risen significantly since his transfer to the Republic of Georgia, his employer’s payment of housing and other utilities expenses has helped offset the salary reduction. Mr. Christ was found to have a substantially higher income than Mrs. Christ, and she was found to be in need of financial support. Given the parties’ mounting credit-card debts and very limited assets, the trial court’s options for devising a fair and equitable plan for separate households were restricted, at best. Recognizing that fact, we find no abuse of discretion in the orders awarding attorney’s fees and costs. We stress again that the trial court may revise any aspect of the post-dissolution financial scheme in light of the changes to be made in the equitable distribution plan, so long as the final plan is fair and equitable and sufficient findings are made to justify any unequal division.

The final judgment is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. The court may receive additional evidence if necessary to devise an appropriate financial plan.

BENTON and PADOVANO, JJ., CONCUR.


text:
    Mike E. WHITAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2621.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim for jail credit, we reverse and remand with instructions to either grant relief or attach portions of the record conclusively refuting the appellant’s claim. See Thomas v. State, 634 So.2d 175, 177(Fla. 1st DCA 1994); Azevedo v. State, 769 So.2d 1112 (Fla. 2d DCA 2000).

REVERSED and REMANDED.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Brad Dimitri PORTERFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1430.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Brad Dimitri Porterfield, pro se, petitioner.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Brad Dimitri Porterfield is hereby afforded a belated appeal from judgment and sentence in case number 00-3794-CFA-01 from the Circuit Court in and for Escambia County. See State v. Trowell, 739 So.2d 77 (Fla.1999). Upon issuance of mandate in this cause, a copy of the opinion will be forwarded to the clerk of the circuit court to be treated as a notice of appeal. Fla. R.App. 9.141(c)(5)(D).

If petitioner qualifies for appointed counsel to represent him in the direct appeal, the trial court shall make such an appointment.

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


text:
    Elin MACHADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3487.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Darling v. State, 808 So.2d 145 (Fla.2002); Rogers v. State, 783 So.2d 980 (Fla.2001); Moore v. State, 790 So.2d 489 (Fla. 5th DCA 2001).

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


text:
    Gregory Donell POSTELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3915.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

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


text:
    William H. JOHNSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1001.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley,Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Rickey Lamonte OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-713, 5D03-776.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

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


author: HOLCOMB, C.M., Associate Judge.

text:
    Kenton A. SHEPHARD, Appellant, v. Claude R. OUELLETE, Appellee.
    No. 5D02-3344.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.

      Robert R. Foster, DeLand, for Appellant.
    Astrid DeParry, P.A., DeLand, for Ap-pellee, Claude R. Ouellette.
   HOLCOMB, C.M., Associate Judge.

This is a dispute between the two partners of a partnership as to the proper disposition of the partnership’s asset, a parcel of real estate. We conclude that the trial court’s ordered sale of the real property was in error and remand for further proceedings.

The order appealed from is entitled “Partial Final Judgment”. The order disposes of all of the counts raised as counterclaims by Appellee, but reserves ruling on all but one of the counts raised by Appellant until an accounting is done by a Special Master. Appellant correctly notes that partial final judgments are appealable prior to a final judgment being entered in an entire case. Fla. R.App. P. 9.110(k). The instant order, however, is not a partial final judgment. While the order being appealed in the instant ease was titled a “Partial Final Judgment”, it is the substance of the order that is controlling. Boyd v. Goff, 828 So.2d 468, 469 (Fla. 5th DCA 2002) (“This case is a good example of why it is important to understand what a court order does and not focus only on how the order is labeled.”) The order being appealed is not final, even in a partial sense, because it neither disposes of “an entire case as to any party” nor are the matters that are resolved by it independent of the matters left to be resolved. Cf. Campbell v. Gordon, 674 So.2d 783, 785 (Fla. 1st DCA 1996) (noting that while most partial judgments are interrelated with other portions of the case and thus not final, if a separate and distinct cause of action is pleaded that is not interdependent with other claims it should be immediately appealable).

Although the order appealed from is not appealable as a partial final judgment, we find that we do have jurisdiction to review the matter as a non-final order which determines the right to immediate possession of property because it calls for the judicial sale of property. The scope of this court’s jurisdiction, however, is limited to review of matters pertaining to the propriety of the ordered sale. Cascella v. Canaveral Port Authority, 827 So.2d 308, 309 (Fla. 5th DCA 2002) (“This court has jurisdiction because the non-final order determines the right to immediate possession of property. While damage claims have been alleged by both parties, our scope of review is limited to the propriety of the eviction order itself.”); Duke v. Reed, 396 So.2d 1218 (Fla. 3d DCA 1981) (jurisdiction existed for summary judgment on mortgage foreclosure count, but appeal from balance of rulings by trial court dismissed for lack of jurisdiction). Thus, while Appellant raises several issues in this interlocutory appeal, we address only the question of whether the ordered sale of the property is proper.

The parties share an interest in the partnership which owns the property in question by virtue of a partnership agreement between them. When this partnership began is a point of contention between the parties. However, in 1994, in an attempt to resolve past differences, Appellant and Appellee entered into a settlement agreement. This agreement provided that Appellant was to convey one-half of the subject property to Appellee and that upon this conveyance “the parties shall be partners in their ownership of the subject property and each shall timely pay one-half of all future expenses associated with ownership of the subject parcel.” In accordance with the agreement, Appellant, by quit-claim deed, conveyed a one-half interest in the property to Appellee. Although the quit-claim deed makes no mention of the parties’ partnership that was to exist upon this conveyance, there is no requirement that partnership property be titled in the name of a partnership. See, e.g., § 620.8203 and § 620.8204(3), Fla. Stat. (2001), part of Florida’s Revised Uniform Partnership Act of 1995 (“FRUPA”), which provides that “[pjroperty is presumed to be partnership property if purchased with partnership assets, even if not acquired in the name of the partnership .... ” (emphasis added). Property acquired by a partnership is property of the partnership and not of the partners individually. The parties clearly intended the property to be property owned by the partnership.

Faced with ongoing disagreements between the partners, the trial court in the present action ordered a dissolution and “winding down” of the partnership. §§ 620.8801-620.8807, Fla. Stat. (2001). The court also ordered a partition and sale of the partnership property pursuant to the request of Appellee and the provisions of the partition statutes, Chapter 64 of the Florida Statutes. Under Chapter 64, a partition action may be brought by “any one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.” § 64.031, Fla. Stat. (2001).

In the instant case, the property was not owned by two or more joint tenants, but by the partnership, a single and independent entity. The trial court’s order states that the requirements of setting forth a statutory partition claim were met. The trial court refers to the parties as co-tenants each owning a one half interest in the property. We conclude that this description is incorrect as the property was intended to belong to the partnership. The partition statute does not apply to property that is owned by a single entity. Because the property was owned solely by the partnership, a partition action did not lie.

The portion of the trial court’s order ordering a judicial sale of the property pursuant to Appellee’s request for a partition of the property is reversed. In finding that a judicial sale of the property pursuant to the partition statutes was not appropriate, we neither rule on nor foreclose the possibility of a judicial sale taking place as part of the ordered winding down and dissolution of the partnership.

REVERSED AND REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . Fla. R.App. P. 9.130(a)(3)(C)(ii).

      . Section 620.8201 of FRUPA specifically sets forth that “[a] partnership is an entity distinct from its partners.” A partnership can sue and be sued. § 620.8307(1), Fla. Stat. (2001).


text:
    Ronnie Ralph HINTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1227.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Ronnie Ralph Hinton, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Ronnie Ralph Hinton appeals the summary denial of his Rule 3.850, Florida Rules of Criminal Procedure, motion for post-conviction relief. Hinton was charged with two counts of battery on a law enforcement officer, resisting an officer with violence (a felony), resisting an officer without violence (a misdemeanor), and criminal mischief (a misdemeanor). A jury found him guilty of resisting an officer with violence, resisting an officer without violence, and criminal mischief. He was sentenced to five years incarceration as a prison releasee reoffender for the felony conviction of resisting an officer with violence, and received time served on the two remaining misdemeanors. We affirmed Hinton’s judgment and sentences on direct appeal. See Hinton v. State, 826 So.2d 317 (Fla. 5th DCA 2002).

Hinton now raises three issues in his 3.850 motion, only one of which is legally sufficient and not refuted by the record. He contends that his trial counsel was ineffective for conceding guilt to some of the charged offenses without his consent. During the opening statement and closing argument, defense counsel conceded Hinton’s guilt to resisting arrest without violence and criminal mischief. This court determined in Smallwood v. State, 809 So.2d 56 (Fla. 5th DCA 2002), that when counsel concedes guilt to a charged offense without his client’s consent, counsel is presumed ineffective, and a defendant seeking relief through a 3.850 motion need not establish prejudice. Smallwood’s counsel had conceded that his client was guilty of three of five charged felonies, but argued that he was not guilty of the other two charged felonies. See also Nixon v. Singletary, 758 So.2d 618 (Fla.2000) (holding that if counsel conceded defendant’s guilt to charged offenses in opening and closing argument without defendant’s consent, counsel is per se ineffective); Cooper v. State, 835 So.2d 1250 (Fla. 4th DCA 2003). In the instant case, it appears counsel conceded Hinton’s guilt to charged offenses. We instruct the trial court that in this situation pursuant to Smallwood, prejudice need not be shown when counsel makes a concession without the defendant’s consent.

We affirm the trial court’s order denying relief as to grounds one and two, but reverse the order denying relief as to ground three. We remand to the trial court for an evidentiary hearing to determine whether defendant consented to counsel’s concession of guilt.

AFFIRMED in part, REVERSED and REMANDED in part.

PETERSON, THOMPSON and TORPY, JJ., concur.


text:
    A.W., Natural Mother of K.S., C.S. and Z.S, Appellant, v. D.S., Natural Father of K.S., C.S. and Z.S., and Department of Children and Families, Appellees.
    No. 1D02-4315.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Randall A. Werre of Fitzgerald & Brooks, Milton, for appellant.
    John B. Carr, Pensacola, for appellee D.S.
    Josefina Tomayo, General Counsel, and Richard D. Cserep, Assistant District Legal Counsel, Pensacola, for appellee Department of Children and Families.
   PER CURIAM.

DISMISSED. In the Interest of E.P., 544 So.2d 1000 (Fla.1989); In re A.A., 543 So.2d 1256 (Fla.1989).

KAHN, PADOVANO and HAWKES, JJ., concur.


author: BOOTH, J.

text:
    Ronald MOORE, Appellant, v. PASCO COUNTY BOARD OF COMMISSIONERS and Commercial Risk Management, Appellees.
    No. 1D02-1711.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Michael Keough, Hudson, Florida; and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Nancy L. Cavey, St. Petersburg, for Ap-pellee.
   BOOTH, J.

This cause is before us on appeal from an order of the Judge of Compensation Claims (“JCC”) denying worker’s compensation benefits for Appellant’s cerebral dysfunction allegedly caused by his exposure to toxic chemicals. The JCC denied Appellant’s claim, finding that Appellant did not suffer a prolonged exposure.

Briefly, the facts are that on May 6, 1999, Appellant was operating a bulldozer at the county landfill in the course of his regular duties for Appellee Pasco County when a garbage truck arrived and dumped toxic wastes adjacent to the bulldozer driven by Appellant. The toxic wastes consisted of two open 55-gallon drums containing chemicals, tires and other waste saturated with the chemicals.

Appellant testified that he was immediately engulfed in fumes from the dumped chemicals and felt dizzy and lightheaded. He reported the dumping of the toxic wastes to his employer. Appellant’s testimony is corroborated by Stan Stoffan, Appellant’s supervisor, and George Jancaitis, one of the emergency responders, who both stated that upon their arrival they could smell noxious fumes which indicated the presence of toxic substances. It was determined that the dumped chemicals were hazardous and toxic.

Appellant subsequently complained of numbness in his right side, fatigue and clumsiness. He requested authorization from the E/C to receive medical treatment, but the E/C denied his request. On his own initiative, Appellant sought medical treatment from Dr. Leon Prockop, a neu-rotoxicologist. Dr. Prockop diagnosed Appellant as suffering from mild but definite cerebral dysfunction and stated that no specific therapy existed for such dysfunction.

The primary issue in this case is whether Appellant suffered a “prolonged exposure” as required by this Court’s opinion in Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). In J & J Enterprises v. Oweis, 733 So.2d 1149, 1150 (Fla. 1st DCA 1999), this Court held that the “prolonged exposure” factor can be satisfied by either a single-dose exposure or a repeated exposure and that Festa, supra, “does not impose a minimum temporal threshold” for determining a “prolonged exposure.” We also held in Florida Power Corp. v. Stenholm, 577 So.2d 977, 981-82 (Fla. 1st DCA 1991), that “the factor of ‘prolonged exposure’ may be satisfied in any given case by a showing of any exposure' — either a single dose exposure or a repeated exposure.”

In the instant case, the JCC specifically found that Appellant was exposed for approximately one hour to toxic chemicals in a concentration considered hazardous, but nonetheless denied compensation benefits on the ground that the exposure was not “prolonged.” The JCC interpreted this Court’s prior decisions as requiring more than an hour’s exposure. However, no minimum duration of exposure is required for the Festa, supra, test. Therefore, we hold that the JCC erred in finding no “prolonged exposure.” Accordingly, we reverse and remand for reconsideration in light of this opinion and the rule set forth in Festa, supra, and the authorities cited herein.

REVERSED and REMANDED for further proceedings.

BROWNING and POLSTON, JJ., concur.

      . Nine chemicals were present in the drums in sufficient quantity to be regulated as hazardous wastes. The chemicals were: Chromium, Selenium, Acetone, 2-Butanone (known as Methyl Ethyl Ketone), hexone (known as Methyl Isobutyl Ketone 4-Methyl 2-Pentanone), Toluene, Ethylbenzene, Xylene, and Benzene.


text:
    John David CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2462.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute the appellant’s claim that his sentences exceed the statutory maximum, we reverse. We affirm all other issues raised in the appellant’s motion without further discussion.

On October 23, 2002, the appellant was sentenced to concurrent terms of five years’ imprisonment followed by five years’ probation for false imprisonment and aggravated assault. Both false imprisonment and aggravated battery are third-degree felonies punishable by up to five years’ imprisonment. §§ 787.02; 784.02; 775.082(3)(d), Fla. Stat. (2001). Thus, the appellant’s sentences exceed the statutory maximum for a third-degree felony. See Butler v. State, 773 So.2d 1171 (Fla. 2d DCA 2000).

We therefore reverse the trial court’s summary denial and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to grant the appellant’s requested relief.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Gabrielle Heather FRIX, Appellant, v. ALL STATE INSURANCE and ITT Specialty Risk, etc., Appellees.
    No. 1D02-2771.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Christine Franco, Tampa and Bill McCabe, Longwood, for Appellant.
    Jimmie Butler of Barbas, Weed, Koenig, Nunez & Wheeley, Tampa, for Appellees.
   PER CURIAM.

We affirm, because, as found by the JCC, the Appellees’ failure to make payment of a settlement reached under section 440.20(ll)(c), Florida Statutes, within 14 days of the JCC’s mailing of her order approving Appellant’s attorney’s fees was not willful. We write only to dispel the misconception that sanctions in such case can be imposed on a non-fault basis under section 440.20(ll)(c), and to dispel any doubt pertaining to a JCC’s authority or jurisdiction to impose sanctions for late payment of settlements under such section for a willful violation.

Under section 440.20(ll)(e), which requires that “[p]ayment of the lump sum settlement amount must be made within 14 days after the date the judge of compensation claims mails the order approving the attorney’s fees,” a JCC has the authority and jurisdiction to impose sanctions for a late payment of a settlement reached pursuant to such section. See Fla. R. Work. Comp. P. 4.150. However, sanctions under this rule can be implemented only upon a showing of willfulness. Winn Dixie Stores v. Lang, 673 So.2d 497 (Fla. 1st DCA 1996); Horizon Healthcare v. Murphy, 660 So.2d 1065 (Fla. 1st DCA 1995); Hanna v. Indus. Labor Serv., Inc., 636 So.2d 773 (Fla. 1st DCA 1994).

Here, the JCC, as an alternate basis for denial of Appellant’s motion for sanctions, found that Appellees’ failure to make timely payment was not willful. Appellant has failed to show the JCC abused her discretion by this factual determination, which impels an affirmance.

AFFIRMED.

BENTON, PADOVANO and BROWNING, JJ., concur.


text:
    DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellant, v. Larry Dee THOMAS, M.D., Appellee.
    No. 1D03-2570.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Pamela H. Page, Senior Attorney, Department of Health, William W. Large, General Counsel, Department of Health, and Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, Tallahassee, for Appellant.
    William R. Huseman and Romualdo C. Marquinez, Jr., Jacksonville, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated July 24, 2003, in which the appellant concedes that the instant order granting petition for attorney’s fees and costs without setting the amount is a nonfinal nonappealable order, the appeal is hereby DISMISSED. See Winkelman v. Toll, 632 So.2d 130 (FLA. 4th DCA 1994). This dismissal is without prejudice to appellant’s right to file a timely notice of appeal once a final order has been entered. All pending motions are denied as moot.

WEBSTER, DAVIS and BROWNING, JJ., concur.


text:
    Judy SPINELLI, Appellant, v. NATIONAL HEALTH CARE CENTER and Feisco Risk Management Services, Appellees.
    No. 1D02-3688.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.

      Robert W. Schoenfelder, Esquire, St. Petersburg, for Appellant.
    W. Rogers Turner, Jr., Esquire of Hurley, Rogner, Miller, Cox & Waranch, P.A., Orlando, for Appellees.
   PER CURIAM.

Judy Spinelli appeals denial of all the costs she listed in her Verified Petition for Attorney’s Fees and Costs (Petition). Entitled to costs as a prevailing party, see § 440.34(3), Fla. Stat. (2002), she filed her Petition in conformity with Fla. R. Work. Comp. P. 4.144, except that she did not verify the Petition. The judge of compensation claims specifically disallowed the costs she sought involving Dr. Stefopoulos as unreasonably incurred. The order under review denied all other costs on the stated ground that claimant’s counsel had “submitted no fisting or documentation.”

While the Petition itself itemized costs, and might have afforded adequate documentation, if it had been verified, it was not verified and no affidavits were attached or submitted in support. Accordingly, we affirm the order, both insofar as it denies costs involving Dr. Stefopoulos and otherwise, no error having been shown to appear.

Affirmed.

BENTON, PADOVANO, and BROWNING, JJ., concur.


text:
    Willie A. WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1557.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.

      Appellant Willie Andre Ward, pro se, Raiford.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Willie A. Ward appeals an order of the circuit court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 as well as several other post-conviction motions. We affirm all of the circuit court’s rulings except the order denying as untimely the Motion to Reduce or Modify Sentence, filed pursuant to Rule 3.800(c).

In denying the 3.800(c) motion, the circuit court made the following findings:

Motions to reduce or modify a sentence are governed by Florida Rule Criminal Procedure 3.800(c), which requires that the motion be filed within sixty (60) days of the date of the judgment and sentence. The time limit provided by the rule is jurisdictional. Therefore, Defendant failed to timely file his motion to reduce or modify his sentence and this Court was without jurisdiction to do anything but deny that motion.

(R. 64). On remand following his direct appeal, Ward was resentenced to a term of 25 years as an habitual felony offender in an order entered December 17, 2001. The next day, December 18, 2001, Ward served his Motion to Reduce or Modify Sentence, and it was stamped as filed with the court on December 21, 2001. Thus, the circuit court erred in finding the motion untimely.

“A trial court’s order denying, on the merits, a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence is not appealable.” Dams v. State, 745 So.2d 499, 499 (Fla. 1st DCA 1999). “However, an appellate court may exercise its certiorari jurisdiction to review a case where the motion was denied for, among other reasons, lack of jurisdiction based on the motion’s untimeliness.” Id. In this case, contrary to the court’s determination, it did have jurisdiction to consider the motion on the merits and its failure to do so constitutes.a departure from the essential requirements of law. See, e.g., Atkins v. State, 851 So.2d 829 (Fla. 1st DCA 2003); Jolly v. State, 803 So.2d 846 (Fla. 1st DCA 2001). Therefore, we treat the appeal of the denial of this order as a petition for writ of certiorari, quash the circuit court’s order denying the motion, and remand with instructions for the court to consider the motion on its merits. See, e.g., Jolly, 803 So.2d at 846-47.

AFFIRMED in part; QUASHED and REMANDED in part.

KAHN, WEBSTER, and POLSTON, JJ., concur.


text:
    John VEACH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2473.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    John Veach, petitioner, pro se.

      Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

John Veach’s direct appeal was dismissed when no response was received to an order requiring payment of the filing fee or the filing of an order of insolvency entered by the trial court. Because the appeal was dismissed through no fault of Veach, we grant his petition for belated appeal and hereby reinstate the appeal in case number 1D00-0849. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days, with directions to enter an order on the motion for determination of indigency and appointment of the public defender filed in that forum in February 2000.

WEBSTER, DAVIS and BROWNING, JJ., concur.


text:
    Charles Alan COOPER, Appellant, v. Robin L. GRESS, f/k/a Robin L. Cooper, Appellee.
    No. 1D02-4376.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.

      William D. Cochran, IV; and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    James T. Miller, Jacksonville, for Appel-lee.
   BROWNING, J.

Charles Alan Cooper, the former husband, appeals an order granting the supplemental petition filed by the former wife, Robin L. Gress (formerly known as Robin L. Cooper), seeking to modify the rotating-custody arrangement approved in the final judgment of dissolution of marriage. Concluding that the trial court applied the wrong legal standard to the modification question, and that the former wife failed to satisfy the extraordinary burden to warrant modifying custody, we reverse the order and remand with instructions to reinstate the original rotating custody plan and child-support obligation. See Ring v. Ring, 834 So.2d 216 (Fla. 2d DCA 2002) (holding that party seeking post-dissolution modification of custody has extraordinary burden to prove occurrence of substantial, material change in circumstances since final judgment that is detrimental to children’s best interests; and that parties’ continuing hostility and mutual failure to communicate did not constitute material change in circumstances justifying custody modification for three of parties’ four children).

The parties were married in February 1992 and have a daughter (born in March 1994) and a son (born in July 1996). In December 1998, the former husband petitioned to dissolve the marriage. At about the same time, the parties signed a stipulation and agreement asking the trial court to incorporate the whole agreement into its final judgment. In pertinent part, the parties agreed to rotate custody of the children to allow each parent an equal amount of custodial time. Each of the parties recognized that the other is a fit parent who has a unique contribution to offer the children. The parties agreed to share all decisions regarding the children’s health and medical and dental care, religious and secular education, vacations and travel, extracurricular activities, and general welfare and upbringing. While the parties .expressly agreed to work together cooperatively to realize the goals set forth in the stipulation and agreement, they acknowledged the possibility that the children’s custodial needs might change or that the parties might not be able to resolve “future controversy” in a mutually acceptable way. Accordingly, the “Split Custody” section of the stipulation and agreement includes the following language:

The parents are aware of the changing needs of their children, as well as their own changing lifestyles. Therefore, the parties shall renegotiate their timeshar-ing plans as needed to accommodate these changing needs.
The parents shall, if they cannot mutually resolve future controversy between them regarding their children and their relationship as parents, mutually seek an appointment with the Family Mediation Unit, or with any mediator of their choice, for assistance in resolving this controversy on a mutually acceptable basis.

The parties agreed on a plan under which the children would spend one week with one parent and then move to the other parent’s residence every Friday. Certain exceptions were contemplated for significant holidays and for school vacation periods.

The trial court issued a January 1999 final judgment dissolving the marriage and incorporating the specific terms of the parties’ stipulation and agreement in all material respects. Each party was made solely responsible for the payment of his or her own attorney’s fees and costs. The trial court retained jurisdiction to enforce or modify the judgment provisions as may be legally permissible and warranted.

In June 2000, the former husband filed an emergency petition to enforce his visitation rights while the children were residing with their mother. He alleged that she was restricting and trying to control his visitation and was speaking disparagingly to the children about him and his new wife. The former wife (who also had remarried) responded by filing a supplemental petition to modify the final judgment by designating herself as the primary residential parent, by allowing the former husband frequent and liberal visitation, and by ordering him to pay her for. child support and attorney’s fees and costs. The former wife’s motion alleged that she had agreed to the rotating-custody arrangement because the former husband promised mutual cooperation on all issues concerning their children. She alleged that his cooperation had ceased and that the parties’ ability to communicate had diminished. The motion alleged, further, that a serious illness had recently befallen the former husband, sometimes rendering it impossible for him to provide personal care for the children. The former wife alleged “[tjhere has been a substantial and material change in circumstances since the entry of the Final Judgment, specifically: 1) the parties do not communicate with each other; 2) the former husband sometimes is unable to care for the children; 3) the children desire to live with their mother full-time; 4) it would be in the children’s best interests to reside primarily with their mother; and 5) the former wife needs child support from the former husband. The motion alleged that the former wife is unable to pay her attorney’s fees and costs and that the former husband has the financial means to pay.

The former husband filed an answer and a supplemental counter-petition asking the court to designate him as the primary physical residential parent. Like the former wife, he conceded that the parties’ ability to communicate with each other has deteriorated since the entry of the final judgment of dissolution. To support his counter-petition, the former husband alleged that the former wife had failed to abide by the terms of the final judgment by interfering with, restricting, and trying to control his visitation; that she had spoken disparagingly to the children about him and his current wife; that the former wife had harassed him with numerous emails and telephone calls; and that she had refused to keep him informed about the children’s whereabouts outside Florida and about their medical care.

Significantly, a different circuit judge from the one who had entered the final judgment of dissolution incorporating the rotating-custody plan presided over the modification hearing. The trial court found that the children’s best interests and welfare will be served by granting the former wife primary residential custody. The court found that the children seem “somewhat happy” but “act too serious.” They appear to be edgy and pensive when both parents are present; ■ the children seem not to have the freedom to enjoy themselves when the former husband is present. They appear to bear a heavier burden to please their father. The court found that due to the parties’ inability to communicate effectively, the children have been denied normal socialization opportunities and participation in youth activities involving their church and choir, T-ball, Girl Scouts, karate, and summer camp, and have suffered because of the parties’ behavior toward each other. Despite their mutual inability to communicate effectively, both parties were found to be very committed, devoted parents who appear to seek the best for their children. Tracking the factors set forth in section 61.13(3), Florida Statutes (1999), which are typically used to make initial custody determinations, the trial court made findings regarding each party and designated the former wife as the primary residential parent. The court reserved jurisdiction to decide child support and attorney’s fees and costs, which it subsequently awarded.

The former husband contends that the trial court applied the wrong legal standard to the issue of whether to modify the custody arrangement. We have de novo review over this question of law. See Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002). Clearly* “[a] trial court’s authority and discretion in a modification proceeding are more restricted than at the time of the initial custody determination.” Newsom v. Newsom, 759 So.2d 718, 719 (Fla. 2d DCA 2000); Young v. Young, 732 So.2d 1133 (Fla. 1st DCA 1999); Jablon v. Jablon, 579 So.2d 902 (Fla. 2d DCA 1991); Zediker v. Zediker, 444 So.2d 1034, 1036 (Fla. 1st DCA 1984) (describing movant’s “extraordinary burden” to satisfy “substantial change in circumstances” and “children’s best interests” tests to justify modification). In seeking a modification of custody, the movant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Newsom, 759 So.2d at 719; Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996). Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992).

Although the former wife’s supplemental petition for modification invoked the “magic words,” alleging a substantial change of circumstances since the final judgment, in fact the general allegations are insufficient as a matter of law to satisfy the “substantial change” prong, and the trial court reversibly erred in holding the former wife to a significantly lower burden to prove only the “best interests” prong. The fact that the parties had a rotating-custody arrangement, or that both parties were seeking designation as the primary physical residential parent, did not lessen the evi-dentiary threshold, given the facts in this case.

The custody evaluation that preceded the modification hearing clearly documented the pattern of friction between the parties. The parties’ mutual inability to get along is evident also from the testimony presented at the hearing. ■ The court sua sponte appointed a licensed clinical psychologist, Dr. McGowan, to conduct a custody evaluation. One of Dr. McGowan’s recommendations was that the parties continue to share residential responsibility for the children, in light of her finding that both parents have been primary caretakers and have discharged their parenting duties adequately. The trial judge’s cousin, Dr. Soud, who had been the children’s treating pediatrician since 1998, was offered as a witness without an objection. He testified that at a conference with both parties, he had indicated that he “was not all that sure” that the week-to-week rotating-custody arrangement was “an ideal custody situation” for the children’s well-being. He acknowledged that he is not a believer in any sort of 50-50 custody split because, in his opinion, it does not work very well for children. The doctor expressed concern that the rotating plan did not provide the children with an opportunity to have one place to call home or to develop close neighborhood relationships. He preferred the more traditional arrangement where one parent is the primary residential custodian but both parents remain actively involved in issues concerning their children’s care. The witness opined that the parties’ problems communicating with each other would exist irrespective of the particular custody plan in place. Dr. Soud testified that, typically, he can get more reliable medical treatment information about a child from the parent who, as the primary residential custodian, spends more time with the child.

Although this record is replete with instances of the parties’ mutual failure to communicate effectively, the former wife failed to allege and prove an unanticipated substantial, material change in circumstances since the entry of the final judgment. See Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) (finding that trial court abused its discretion in modifying custody to institute annual rotating-custody plan, where neither parent had sought rotational residential custody, no evidence was presented indicating that children were being harmed by parents’ hostile treatment of each other, and fact that parents could not get along post-judgment, without more, failed to show substantial or material change in circumstances warranting modification); Newsom, 759 So.2d at 719 (stating “[t]he fact that the parents cannot communicate and get along does not constitute a material change in circumstances to warrant modification of custody”); Zediker, . 444 So.2d at 1034. The parties’ failure to communicate with each other, without some other material, unanticipated change since the final judgment, is not a proper legal ground for modifying custody. See Perdices v. Perdices, 800 So.2d 289, 291 (Fla. 3d DCA 2001) (holding trial court abused its discretion in modifying custody based on sole allegation that parents’ ability to cooperate with each other had deteriorated, which did not constitute substantial change in circumstances); Boardman v. Roy, 775 So.2d 334 (Fla. 2d DCA 2000).

Section 61.121, Florida Statutes (1999), states that “[t]he court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.” Even' so, nothing in this plain statutory language indicates the Florida Legislature intended to eliminate the longstanding presumption that rotating custody is not in a minor child’s best interest. See, e.g., Mandell v. Mandell, 741 So.2d 617 (Fla. 2d DCA 1999); Ruffridge v. Ruffridge, 687 So.2d 48, 50 (Fla. 1st DCA 1997). To support affirmance of the modification order, the answer brief emphasizes the presumptive disapproval of rotating-custody plans. However, the former wife’s reliance on the presumption against rotating custody misses the mark, as applied to the modification proceedings at hand, for the approval of the parties’ requested rotating-custody plan was memorialized in the final judgment of dissolution.

The posture of a modification proceeding is entirely different from that of an initial custody determination, and the party seeking to modify custody has a much heavier burden to show a proper ground for the change. The trial judge’s personal observation, stated in the record, that rotating custody arrangements never work, does not justify modifying the custody plan, absent a substantial change of circumstances resulting in the modification’s being in the children’s best interests. Voorhies v. Voorhies, 705 So.2d 1064, 1065 (Fla. 1st DCA 1998). There is no bright-line rule disfavoring rotating-custody plans, yet the instant trial court appears to have crafted one. The Third District Court in Quinn v. Settel, 682 So.2d 617, 619 (Fla. 3d DCA 1996), recognized that “certain particular circumstances will tend to ameliorate some of the perceived undesirable effects of such arrangements.” The existence of the presumption against rotating custody in an initial custody determination, or the fact that a trial judge disapproves of rotating-custody arrangements in general, cannot be allowed to undermine the long-established requirement that the party seeking to modify custody satisfy the extraordinary burden set forth in the two-part test. To hold otherwise would render any rotating-custody scheme in a final judgment inherently unstable. The parties’ rotating-custody plan was already in place, in accordance with their own stipulation and agreement, incorporated into the final judgment of dissolution. Whether or not splitting custody 50-50 was appropriate had already been adjudicated; thus, the presumption against such arrangements had been overcome by agreement of the parties and with the agreement of the original trial judge.

Thus, the pertinent question before the trial court in considering the petition was whether any modification was warranted, not whether the former wife is the better primary custodial parent. In fact, the relative fitness of the parties as parents was not the focus of the hearing. The court and Dr. McGowan opined that both parties are fit, loving parents who simply cannot seem to carry out the terms of their original custody agreement without acrimony. Given these findings, competent substantial evidence would support either party’s being the primary physical residential parent if a proper basis for modifying the rotating-custody plan were alleged and proven. However, no such threshold ground was alleged or established. Accordingly, there is no ground for changing the custody plan at all.

It is telling that the children’s pediatrician observed that their place of residence is not the issue; that is, changing the custody arrangement will not resolve the underlying parental communications problems. While the supposed “cure” imposed by the trial court involves a more conventional plan giving one of the parents primary physical residential status, the “illness,” comprising the parties’ mistrust and miscommunication, is likely to persist under the new arrangement, for the real problem has not been resolved. Although the record is sketchy on this matter, it appears that some effort was made to resolve the parties’ post-judgment communications problems through counseling, but that the sessions failed to effect long-term, positive changes.

Aside from the mutual breakdown in communications, another alleged ground for modification was the former husband’s serious illness, which at one time resulted in an extended period of hospitalization and rendered him unable to provide personal care for the children. This ground seems moot, given the unrefuted testimony that his condition is in remission. Although the petition alleged that the.children desired to live with their mother full-time, there is no evidentiary basis for this assertion. In any event, the trial court found that the reasonable preference of the children should not be considered in light of their young ages.

The former wife argues that where both parents share custody and allege a substantial change of circumstances, the “playing field” is level again, so that the modification question should be treated de novo, as in an initial custody determination. We disagree. The cases on which she relies for this proposition are factually distinguishable in several material respects and, thus, are not controlling here. See, e.g., Greene v. Suhor, 783 So.2d 290 (Fla. 5th DCA 2001) (stating that father seeking primary residential custody of child was not required to prove substantial change in circumstances at modification hearing, and hearing should have been treated as initial custody determination using “best interests” standard, where original custody order provided for rotating custody and expressly provided that either parent could seek reconsideration of residential-custody issue without showing change in circumstances); Mooney v. Mooney, 729 So.2d 1015 (Fla. 1st DCA 1999) (finding neither party bore higher burden of proof in custody modification proceeding, where final judgment of dissolution had provided for weekly rotating custody, and parties had agreed originally that child’s starting kindergarten would constitute change of circumstances requiring custody question to be revisited); Skirko v. Skirko, 677 So.2d 885 (Fla. 3d DCA 1996) (indicating that custody modification proceeding can be treated as initial custody determination where both parents allege and prove substantial change of circumstances, and statutory factors normally used for initial custody decision can be applied to evaluate what is in child’s best interests). Because the instant facts materially differ from the specific circumstances in those cases that warranted a de novo modification determination, those decisions do not support the ruling designating the former wife as the primary residential parent. The parties’ motions alleged nothing more than their inability to communicate and cooperate. The trial court failed to hold the parties to the extraordinary burden of proof required under the law, and the factual allegations in their motions for modification are facially insufficient as a matter of law to justify any modification of custody.

Accordingly, we REVERSE the order and REMAND with instructions to reinstate the rotating-custody plan and the original child-support obligation. We note that the reversal of child support is not retroactive.

KAHN and VAN NORTWICK, JJ., CONCUR.


author: HAWKES, J.

text:
    JEFFREY’S STEEL and AIG Claim Services, Inc., Appellant, v. CONIBEAR EQUIPMENT, INC., Claims Center and Curtis Register, Appellee.
    No. 1D02-0811.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.

      Wayne Johnson of DeCiccio & Johnson, Winter Park for Appellant.
    Harold E. Barker of DiCesare, Davidson & Barker, P.A., Lakeland for Appellee.
   HAWKES, J.

Appellants, Jeffrey’s Steel and AIG Claim Services, Inc. (Steel), appeal from an order of the Judge of Compensation Claims (JCC) which held Steel liable to Appellees, Conibear Equipment, Inc. and Claims Center (Conibear) for 20 percent contribution for the benefits and attorney’s fees for which Conibear is liable to claimant, Curtis Register. The JCC based its ruling, in part, on grounds that Steel’s statute of limitations defense was waived because it was not timely raised, and Steel failed to file a 120 day letter. We reverse. Steel did not waive its statute of limitations defense, and contribution liability between carriers exists only if each carrier is liable for benefits to the claimant. In light of our reversal on these issues, and because Conibear’s claims on cross-appeal are not preserved, those issues are not addressed.

In 1995, while employed by Steel, Claimant received treatment for hand and wrist pain consistent with repetitive stress injury, which was authorized and paid for by Steel. However, Claimant did not file a petition for benefits (PFB) related to his hand and wrist injury until July 1999, approximately four years after he was first treated for his injury, and approximately two and one-half years after he left Steel’s employment. Thus, unless Claimant’s claim against Steel falls under a statutory exception, it is barred by the statute of limitations. See § 440.19(1), Fla. Stat. (Supp.1994).

Payment of indemnity benefits or furnishing remedial treatment, care, or attendance pursuant to a notice of injury or a PFB will toll the limitations period for one year from the date of payment. See § 440.19(2), Fla. Stat. (Supp.1994). Claimant sought remedial treatment in November 1997, during his employment with Conibear, but Steel did not pay for that treatment. Because Claimant did not seek remedial treatment for over two years after Steel’s last payment for treatment, his claim against Steel did not fall under a statutory exception. Thus, the statute of limitations was not tolled.

However, “Notwithstanding the provisions of section [440.19], the failure to file a[PFB] within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the [PFB]....” § 440.19(4), Fla. Stat. (Supp.1994). A review of the record reveals Steel timely asserted the statute of limitations defense in each of its Notices of Denial. Thus, its statute of limitations defense was not waived, and the JCC erred by concluding otherwise.

The JCC also misapplied the law by finding Steel’s statute of limitations defense “failed” because Steel did not provide Claimant with a 120 day letter. Provision of the 120 day letter is only required where the carrier is uncertain of its obligation to provide benefits, and begins paying benefits while it investigates the com-pensability of an employee’s injury. See § 440.20(4), Fla. Stat. (Supp.1994). Under such circumstances, the carrier is required to admit or deny compensability and provide the employee with such notice within 120 days after the initial provision of benefits. See id.; see also Moore v. CTL Distrib., Inc., 790 So.2d 1215 (Fla. 1st DCA 2001). Here, Steel denied the claim as soon as Claimant formally sought benefits.

Finally, section 440.42(3), Florida Statutes, controls the division of liability between carriers for benefits due under Chapter 440. See Forklifts of Cent. Fla. v. Beringer, 560 So.2d 1362, 1363 n. 2 (Fla. 1st DCA 1990). “The determinative factor in placing liability under Section 440.42(3) is whether the second compensable accident causes injury which is independent from or an exacerbation of the first com-pensable accident. Section 440.42(3) thereafter allows the [JCC] to divide liability according to each carrier’s responsibility.” B & L Servs., Inc. v. Coach USA, 791 So.2d 1138, 1143 (Fla. 1st DCA 2001) (quoting U.S. Elec. Co. v. Sisk Elec. Serv., Inc., 417 So.2d 738 (Fla. 1st DCA 1982)). Where liability is divided among two or more carriers pursuant to section 440.42(3), attorney’s fees should be apportioned accordingly. See B & L Servs., Inc., 791 So.2d at 1143. Therefore, section 440.42(3) can be applied only when each of the contending employer/carriers is hable to the claimant for a portion of the benefits which have been determined under other provisions of chapter 440. See Cruise Quality Painting v. Paige, 564 So.2d 1190, 1197 (Fla. 1st DCA 1990).

Accordingly, pursuant to the plain language of section 440.42(3), Conibear is only entitled to contribution from Steel if Steel is liable to Claimant for payment of benefits. Here, Steel is not liable for payment of benefits to Claimant, because Claimant’s claim against Steel was barred by the statute of limitations. The JCC erred by ruling Steel was required to reimburse Conibear for 20% of Claimant’s indemnity and medical expenses. Because Steel is not liable for contribution to Coni-bear for partial payment of Claimant’s benefits, it is not liable for payment of any portion of Conibear’s obligation to pay Claimant’s attorney’s fees.

The compensation order is REVERSED, and the case REMANDED for entry of a compensation order consistent with this opinion.

VAN NORTWICK and LEWIS, JJ., Concur.


text:
    SIEMENS INFORMATION & COMMUNICATIONS NETWORK and Travelers Property Casualty, Appellants, v. Guy COLLINS, Appellee.
    No. 1D02-1558.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Eric R. Eide and Earl I. Higgs, Jr. of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P. A., Orlando, for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.
   PER CURIAM.

The employer/carrier in this workers’ compensation case appeal a final order of the judge of compensation claims (JCC) awarding the claimant medical and indemnity benefits. They argue that the JCC erred by denying their motion for the appointment of orthopaedic and psychiatric expert medical advisors as untimely. Our review of the record reveals that the employer/carrier timely requested the appointment of expert medical advisors once the disagreements in the opinions of the healthcare providers in this case became apparent and did not delay the discovery of these disagreements. See Palm Springs General Hospital v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997); see also Helmsman Management Services v. Garner, 725 So.2d 1188 (Fla. 1st DCA 1998). Accordingly, the order under review is reversed and this case is remanded.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Kristoffer Daniel CARVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5067.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Reyes v. State, No. 4D02-1897, 854 So.2d 816, 2003 WL 22082192 (Fla. 4th DCA Sept.10, 2003).

STONE, WARNER and HAZOURI, JJ., concur.


text:
    Sylvia R. GOODMAN, Appellant, v. Charles M. GOODMAN, Appellee.
    No. 4D02-4244.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Sylvia Goodman, Boynton Beach, pro se.

      Curtis L. Witters of Glickman, Witters and Marell, West Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

STONE, WARNER and HAZOURI, JJ., concur.