author: COVINGTON, Judge.

text:
    Edward BOSTIC, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-4315.
    District Court of Appeal of Florida, Second District.
    June 23, 2004.
    Edward Bostic, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee', and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Respondent.
   COVINGTON, Judge.

Edward Bostic petitions for certiorari review of the trial court’s order denying his petition for a writ of mandamus. We treat his petition as an appeal and reverse. See Fla. R.App. P. 9.040(c); Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252 (Fla. 2d DCA 1989); Skinner v. Skinner, 561 So.2d 260 (Fla.1990).

Bostic wrote several times to the clerk of court requesting a certified copy of his arrest warrant. He sent payment to cover the cost of one copy plus certification. The clerk’s office sent Bostic the wrong documents and then refunded his payment. Despite numerous attempts over the course of more than two years, Bostic was unable to obtain a copy of his warrant from the clerk’s office. Bostic then filed a petition for a writ of mandamus in the trial court to compel the clerk’s office to send him the warrant copy. The trial court denied the petition, finding that Bostic was not entitled to relief.

In considering a petition for a writ of mandamus, the trial court first determines whether the complaint shows a prima facie case for relief by alleging “a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.” Fla. R. Civ. P. 1.630(d); Smith v. State, 696 So.2d 814, 816 (Fla. 2d DCA 1997). If so, “the trial court shall issue ... an alternative writ in mandamus that may incorporate the complaint by reference only.” Fla. R. Civ. P. 1.630(d)(3) (emphasis added); see also Moore v. Ake, 693 So.2d 697, 698 (Fla. 2d DCA 1997). Air alternative writ “is essentially an order to show cause why the requested relief should not be granted.” Conner, 541 So.2d at 1256. It is then the respondent’s burden to come forth with facts on which it based its refusal to perform its legal duty. Smith, 696 So.2d at 816. Depending on the response, the trial court then either grants or denies the mandamus petition. Id.

In this case, Bostic’s petition alleged a prima facie case for relief. It established a clear legal right to have the clerk provide the requested copy; an indisputable legal duty on the part of the clerk to provide it under Florida Rule of Judicial Administration 2.051, see T.T. v. State, 689 So.2d 1209, 1211 (Fla. 3d DCA 1997); and no adequate remedy at law. See also Tedesco v. State, 807 So.2d 804 (Fla. 4th DCA 2002). Therefore, the trial court erred in failing to follow the proper procedure by proceeding directly to hear and rule on the merits of the petition. See Conner, 541 So.2d at 1256.

Accordingly, we reverse and instruct the trial court on remand to issue an alternative writ in mandamus directing the clerk to respond with facts on which it based its refusal to provide the warrant copy. See Smith, 696 So.2d at 816. The trial court may again deny Bostic’s mandamus petition if the clerk’s office raises a valid defense other than nonpayment. Otherwise, the trial court shall grant the petition for writ of mandamus, in which case the writ may be fashioned “ordering production after [Bostic] has paid for copies.” Id.; see also T.T., 689 So.2d at 1211.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John FELSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3210.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Weiner & Ratzan and Jeffrey S. Weiner and Mycki Ratzan, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot (Ft. Lauderdale), Assistant Attorney General and Melissa Vaughan Rubin, Certified out-of-state practioner, for appellee.
    Before LEVY, GODERICH, and WELLS, JJ.
   PER CURIAM.

Appellant raises two issues on appeal. We affirm the trial court as to both. As to the first issue, concerning the question of the claim of newly discovered evidence, our affirmance is without prejudice to the appellant to file any motion that might be appropriate under Rule 3.850 of the Florida Rules of Civil Procedure.

In view of the fact that we find that appellant’s second point lacks merit, we do not further address it herein.


author: GROSS, J.

text:
    Douglas WHETSTINE, Appellant, v. Jayne Lynne STEINER, Appellee.
    No. 4D03-74.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.

      Ileana Haedo of Ileana Haedo, P.A., Fort Lauderdale, for appellant.
    Michael J. Dunleavy of Michael J. Dun-leavy, P.A., Pompano Beach, for appellee.
   GROSS, J.

Douglas Whetstine appeals a final judgment of paternity. We reverse and remand on one point.

The father contends that the trial court violated his due process rights, by granting sole parental responsibility of the child to the mother, even though she filed no pleadings requesting such relief. We do not read the final judgment as awarding sole parental responsibility. Although the court indicated that it was “not in the best interest of the minor child that the parties have shared parental responsibility,” the judgment recognized that no party sought that relief.

Instead, the judgment awarded shared parental responsibility to the parties. The judgment states “[e]ach parent shall share in all important decisions pertaining to the child’s health, education and travel. It is the intent of this final judgment that each parent shall fully cooperate with each other in making joint decisions relating to the child.” (Emphasis added). See § 61.046(15), Fla. Stat. (2003).

The father also contends that the following provision of the final judgment conflicted with the concept of shared parental responsibility: “[I]n the event the parties after discussing said issue are unable to agree on an issue which concerns the child’s health, education or travel, then it is the intent of the court order that the primary residential custodian has the right to make said decision without the necessity of court intervention.”

However, this court rejected a similar argument in Schneider v. Schneider, 864 So.2d 1193, 1194-95 (Fla. 4th DGA 2004). Here, while the mother has ultimate say over health, education, and travel issues when the parties cannot come to an agreement, the father is not precluded from seeking court intervention should the mother unreasonably wield this authority. Given the trial court’s observation of the hostility between the parties, this was a reasonable aspect of the final judgment.

The father next contends that the trial court erred in granting the mother’s motion to relocate with the minor child to the Tampa Bay area.

On this point, the father’s failure to produce a transcript of the trial, where evidence was taken, precludes appellate review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). This is not a case where an error of law appears on the face of the record. The trial court’s final judgment sets out a number of factual findings that support relocation.

Finally, the father argues that the trial court abused its discretion by ruling that he could not “drive an automobile with the minor child present unless another adult with a [valid] driver’s license” was present in the automobile. According to the final judgment, the trial court based this restriction on “the allegation concerning the father’s drinking habits.” The father’s drinking was a contested issue at trial. A restriction cannot be based on mere allegations. We remand this case to the trial court for reconsideration of this restriction, without prejudice to impose this or a similar restriction if supported by findings of fact. See Furman v. Furman, 775 So.2d 998 (Fla. 4th DCA 2000).

Affirmed in part, reversed in part, and remanded.

GUNTHER and POLEN, JJ„ concur.


text:
    Anna CARMODY, Appellant, v. CARNIVAL CORPORATION, Appellee.
    No. 3D03-1051.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Anna Carmody, in proper person.
    Fowler White Burnett and June Galko-ski Hoffman and Tarya A. Malkki, Miami, for appellee.
    Before COPE, RAMIREZ and WELLS, JJ.
   PER CURIAM.

Affirmed. See Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63 (2d Cir.1988).


text:
    Michael BARNES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1516.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Andrew F. Rier, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

Michael Barnes appeals from a conviction for attempted first degree murder with a deadly weapon. The Record reflects that on twenty-one separate occasions during cross-examination and closing argument, the trial court interrupted defense counsel with instructions such as “move on,” “next question,” “let’s go,” or “counsel sit down.” Barnes contends that these limitations prevented his counsel from addressing the credibility of the State’s key witness. We agree and reverse on the authority of Goodrich v. State, 854 So.2d 663 (Fla. 3d DCA 2003), which is directly on point.

In Goodrich, this Court reversed a defendant’s convictions after a trial in which this same trial judge instructed defense counsel on fourteen separate occasions “to either ‘move on,’ ‘move along,’ ‘let’s move,’ or ‘let’s go.’ ” Id. at 664. As in that case,

the credibility ... of the [State’s key witness was] central to the Defendant’s theory of the case. By preventing counsel from arguing those issues fully, the trial court denied the Defendant the right to effective assistance of counsel and certainly hindered the defense counsel’s ‘last clear chance’ to persuade the jury that there may be reasonable doubt of the defendant’s guilt.

Id. at 665.

We find no merit to any of the other arguments raised. Accordingly, Barnes’ conviction and sentence are reversed and the case remanded for a new trial.

       In fairness to the trial court, it should be noted that the opinion in Goodrich was not released until shortly after the conclusion of the trial in the instant case.


text:
    The STATE of Florida, Appellant, v. Jason ACEVEDO, Appellee.
    No. 3D03-1560.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Jason Acevedo, in proper person.
    Before COPE, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

We affirm on the authority of State v. Ackerman, 785 So.2d 1229 (Fla. 4th DCA 2001).


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Christopher KORTH, Michel Fernandez, Robernis Perez, Armando Devalle, Osvaldo Gonzalez, Guillermo Velarde, Alfonso Lazaro, Jonathan Guerrero, Jacob Tencher, Michelle Cordero, Jose Callava, Jose Aguilera, Raul Granada, Sandra Guardiola, Luis Murray, Joan Estadella, Appellees.
    Nos. 3D03-2247, 3D03-2246, 3D03-2245, 3D03-2244, 3D03-2243, 3D03-2088, 3D03-2086, 3D03-1965, 3D03-1956, 3D03-1953, 3D03-1952, 3D03-1951, 3D03-1948, 3D03-1946, 3D03-2085, 3D03-1950.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.

      Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellees Christopher Korth, Michel Fernandez, Robernis Perez, Armando Delvalle, Osvaldo Gonzalez, Guillermo Velarde, Alfonso Lazaro, Jonathan Guerrero, Jacob Tencher, and Sandra Guardiola.
    Helen Raisman for appellee Michelle Cordero.
    Maritza Alvarez, for appellee Jose Calla-va.
    Miguel Del Aguila, Miami, for appellee Jose Aguilera.
    Humberto Dominguez, Miami, for appel-lee Raul Granada.
    Paul Molle, Fort Lauderdale, for appel-lee, Luis Murray.
    Lewis Fishman, Miami, for appellee Joan Estadella.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   WELLS, Judge.

We accepted jurisdiction in these now consolidated appeals to address the following question certified as being of great public importance:

IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(l)(a), FLORIDA STATUTES?

This question has recently been answered by the Florida Supreme Court in State v. Bodden, 877 So.2d 680, 2004 WL 792826 (Fla. April 15, 2004), which holds that section 316.1932(l)(a)(l) of the Florida Statutes does not require that urine testing procedures be promulgated and “approved” by rule in accordance with Florida’s Administrative Procedure Act.

We therefore reverse the orders entered in each of these consolidated appeals which excluded the results of urine tests procured under the aegis of section 316.1932, the implied consent law relating to the operation of motor vehicles.

Reversed and remanded.

      . This question was also posed as follows by two different County Court judges:
      DOES AN ARRESTEE CONSENT, UNDER THE AUSPICES OF THE IMPLIED CONSENT LAW, § 316.1932(l)(a)l, FLA. STAT., TO HIS/HER SEIZURE OF URINE WHEN THERE IS NO APPROVED TEST FOR THE DETECTION THEREIN OF CHEMICAL OR CONTROLLED SUBSTANCES, OR THEIR METABOLITES?
      Can the State introduce urine test results of a defendant's urine sample obtained by law enforcement pursuant to Florida Statute, section 316.1932(l)(a), Florida’s implied consent law, where the officer who read the implied consent warnings to the defendant never expressly stated that the test being offered was an "approved” test, and the Florida Department of Law Enforcement (FDLE) has not promulgated rules governing urine collection and testing?

      . Since the implied consent law for operators of motor vehicles (section 316.Í 932(l)(a)) does not require that urine testing methods be approved, the questions certified in footnote 1 above must be answered in the affirmative. The orders precluding introduction of such test results in each of the cases in which these questions were posed, must, therefore, be reversed as well.


text:
    MIAMI-DADE COUNTY, Appellant, v. ASSOCIATED AVIATION UNDERWRITERS, et al., Appellees.
    No. 3D03-2415.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Greenberg Traurig and Elliot H. Scherker and Reginald L. Bouthillier Jr. (Tallahassee); Mitchell J. Rotbert (Rock-ville, MD), for appellant.
    Steel Hector & Davis and Alvin F. Davis and John T. Butler, Miami; Siboni Hamer & Buchanan and Michael C. Siboni (Ocala); Phelps Dunbar and Jay Russell Sever (New Orleans, LA); Lord Bissell & Brook and Gary Westerberg and Don W. Fowler and Christopher R. Barth (Chicago, IL); Herrick, Feinstein and Julius A. Rousseau, III (New York, NY), for appellee, Associated Aviation Underwriters
    Tew Cardenas and William G. Burd, Apo Aa, for appellee, American Home Assurance Company.
    Before SCHWARTZ, C.J., SHEVIN, JJ. and DAUKSCH, JR., JAMES C., Senior Judge.
   PER CURIAM.

Affirmed. See Miami-Dade County v. Associated Aviation Underwriters, 840 So.2d 264 (Fla. 3d DCA 2002), review dismissed, 846 So.2d 1148 (Fla.2003).


text:
    L.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-3075.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Dennis E. Berger, Miami, for appellant.
    Calianne. P. Lantz, and Hillary S. Kamb-our, Department of Children and Family Services, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See M.M. v. Dep’t of Children and Family Servs., 867 So.2d 573 (Fla. 3d DCA 2004); F.A.F. v. Dep’t of Children and Family Servs., 804 So.2d 616 (Fla. 3d DCA 2002).


text:
    Angela MINCEY, Appellant, v. ESTATE OF Atwood MINCEY, Jr, Appellee.
    No. 5D03-2546.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Jane E. Carey of Morall and Carey, Orlando, for Appellant.
    W.C. Airth, Jr., of W.C. Airth, Jr., P.A., Orlando, for Appellee.
   PER CURIAM.

After review of the record, it appears that the personal representative of the ap-pellee followed Rule 5.040(a) of the Florida Probate Rules to the letter, and that formal notice was properly given. We, accordingly, affirm the Amended Order Determining Homestead Status of Real Property.

AFFIRMED.

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


author: PLEUS, J.

text:
    Harry HAZELETT, Appellant, v. CITY OF ST. CLOUD, etc., Appellee.
    No. 5D03-2645.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Brian M. Mark of Brian Michael Mark, P.A., Kissimmee, for Appellant.
    Kevin Knight of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   PLEUS, J.

Hazelett appeals the denial of his emergency motion to vacate final judgment and lien sale. He argues that the final judgment and lien sale should have been vacated because his property was protected by homestead. The lower court conducted an evidentiary hearing on the homestead issue. As the property owner, Hazelett had the burden of establishing the homestead character of his property as of the time the lien attached. See Avila South Condominium Ass’n, Inc. v. Kappa Corp., 347 So.2d 599, 605 (Fla.1977). After conflicting evidence was presented, the trial court found that the property was not protected by homestead status. We have reviewed the trial court’s determination and find no error.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


text:
    Renard HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-347.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Renard Harrison, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Renard Harrison received a summary denial of his Florida Rules of Criminal Procedure 3.800(a) motion for additional jail time credit. Harrison alleged that he was entitled to 365 days credit in addition to the 265 days with which he was credited.

The State acknowledges that the order containing the summary denial does not have the required portions of the record supporting the denial.

We vacate the denial and remand to either grant relief or to attach copies of the record showing Harrison is not entitled to relief.

ORDER VACATED; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.


text:
    Waldo Mason WATTLES, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1413.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Rehearing/Certification Granted June 25, 2004.
    Waldo Mason Wattles, III, Bowling-Green, pro se.
    No Appearance for Appellee.
   ON MOTION FOR REHEARING/CERTIFICATION

PER CURIAM.

We grant rehearing, withdraw our previous opinion, and substitute the following:

We affirm on the authority of Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004). However, as we did in Martin and in Rickman v. State, 871 So.2d 310 (Fla. 5th DCA 2004), we grant Appellant’s motion for certification and certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

REHEARING and CERTIFICATION GRANTED.

PETERSON, ORFINGER and TORPY, JJ., concur.


text:
    Willie Charles GRANT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1628.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Willie Charles Grant, Jr., Raiford, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is facially insufficient because it was not made under oath. Fla. R.App. P. 9.141(c)(3)(F). Therefore, the petition is denied without prejudice for the petitioner to refile a proper sworn petition. Riley v. State, 866 So.2d 779 (Fla. 5th DCA 2004); Ezell v. State, 778 So.2d 1071 (Fla. 5th DCA 2001); Harris v. State, 769 So.2d 529 (Fla. 5th DCA 2000).

PETITION DENIED WITHOUT PREJUDICE.

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


text:
    David Victor MEWA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1436.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Dormezil v. State, 754 So.2d 168, 170 (Fla. 5th DCA 2000) (“The defense counsel’s objection to the single, isolated comment by the prosecutor was not preserved because defense counsel declined the trial court’s offer to make a curative instruction”) (footnote omitted).

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    Claude PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1201.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.
   PER CURIAM.

Affirmed. See Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003) (en bane). As this court did in Wright, we certify direct conflict with Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); and Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

Affirmed; conflict certified.

WHATLEY, SALCINES, and STRINGER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Timothy STANLEY, Petitioner, v. STATE of Florida; the Florida Civil Commitment Center; Robert Broidy, Director, Florida Civil Commitment Center; Department of Children and Family Services; and Jerry Regier, Secretary, Department of Children and Family Services. Respondents.
    No. 2D03-1619.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.
    Julianne M. Holt, Public Defender, and Jeanine Cohen, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Respondents.
   NORTHCUTT, Judge.

Timothy Stanley, a committed person under part V of chapter 394, Florida Statutes (2000), entitled “Involuntary Civil Commitment of Sexually Violent Predators” (the Act), seeks a writ of habeas corpus ordering his immediate release from confinement. Alternatively, he seeks a writ of mandamus ordering the trial court to comply with section 394.918(3) of the Act.

This case is governed by our holding in Allen v. State, 873 So.2d 576 (Fla. 2d DCA 2004). Accordingly, we deny the petition for writ of habeas corpus and grant the petition for writ of mandamus. We direct the circuit court to hold a limited probable cause hearing pursuant to section 394.918(3), with counsel representing Mr. Stanley as mandated, unless Mr. Stanley has been afforded such a hearing in the last calendar year.

Petition for writ of habeas corpus denied; petition for writ of mandamus granted.

CASANUEVA and SILBERMAN, JJ., concur.


author: SILBERMAN, Judge.

text:
    STATE of Florida, Petitioner, v. Kimberly HENDERSON, Respondent.
    No. 2D03-1353.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, and Bernie McCabe, State Attorney, and William H. Burgess, III, Assistant State Attorney, Clearwater, for Petitioner.
    No appearance for Respondent.
   SILBERMAN, Judge.

Based on this court’s recent opinion in Maddox v. State, 862 So.2d 783 (Fla. 2d DCA 2003) (certifying conflict with Dixon v. State, 812 So.2d 595 (Fla. 1st DCA 2002)), we grant the State’s petition for writ of certiorari and quash the trial court’s order in limine which prohibits the State from introducing a traffic citation, or any evidence referring to the citation, into evidence at Kimberly Henderson’s forgery trial.

Petition granted and order quashed.

ALTENBERND, C.J., and KELLY, J., concur.


author: WEBSTER, J.

text:
    MARTIN MEMORIAL MEDICAL CENTER, INC., et al., Appellants, v. TENET HEALTHSYSTEM HOSPITALS, INC., d/b/a Delray Medical Center, et al., Appellees.
    No. 1D03-4567.
    District Court of Appeal of Florida, First District.
    June 29, 2004.

      Thomas F. Panza, Mark A. Hendricks and Onier Llopiz of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for Appellants Martin Memorial Medical Center, Inc., Bethesda Healthcare System, Inc. and Boca Raton Community Hospital, d/b/a Boca Raton Community Hospital.
    John Beranek, C. Gary Williams and Stephen C. Emmanuel of Ausley & McMullen, Tallahassee, for Appellees Tenet HealthSystem Hospitals, Inc., d/b/a Del-ray Medical Center; Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital, and Laura Cilio. Stephen A. Ecenia and J. Stephen Menton of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for Appellees Lawnwood Medical Center, Inc.; Columbia/JFK Medical Center Limited Partnership, d/b/a JFK Medical Center, and Fawcett Memorial Hospital, Inc. Robert E. Puterbaugh and Stephen Senn of Peterson & Myers, P.A., Lakeland, for Appellee Lakeland Regional Medical Center, Inc.
    Elizabeth W. McArthur of Radey, Thomas, Yon & Clark, P.A., Tallahassee, for Appellee South Florida Hospital and Healthcare Association, Inc.
   WEBSTER, J.

Appellant hospitals seek review of a summary final judgment declaring chapter 2003-289, Laws of Florida (which authorized the Florida Agency for Health Care Administration (AHCA) to issue hospitals in Palm Beach, Polk, Martin, St. Lucie and Indian River Counties exemptions from certificate of need review for the establishment of open-heart-surgery programs when the applications for exemption complied with certain criteria), unconstitutional as a special or local law which had not been adopted in compliance with article III, section 10, of the Florida Constitution, and permanently enjoining AHCA from issuing any exemptions pursuant to that law. As an initial matter, appellees (who are primarily hospitals or healthcare-related entities) contend that, because the Attorney General of Florida (who represented AHCA in the trial court) has elected not to participate in this appeal in any capacity, section 86.091, Florida Statutes (2003), requires that we dismiss the appeal. We conclude that appellants are entitled to prosecute this appeal. However, on the merits, we conclude, further, that the trial court correctly held chapter 2003-289 unconstitutional. Accordingly, we affirm.

I.

Appellees sued AHCA, seeking (among other things) a declaratory judgment that chapter 2003-289, Laws of Florida was unconstitutional as a special or local law which had not been adopted in compliance with article III, section 10, of the Florida Constitution, and an injunction permanently enjoining AHCA from issuing any exemptions pursuant to that law. AHCA was represented by the Attorney General’s office. Appellants, who all alleged that they were hospitals qualified to receive certificate of need exemptions pursuant to chapter 2003-289, were granted leave to intervene, and aligned with AHCA.

Appellees filed a motion for summary judgment, as did appellants and AHCA. Prior to the hearing on the motions for summary judgment, appellees had filed motions to strike affidavits filed by AHCA which related to the intent and purpose of chapter 2003-289 as inadmissible as a matter of law. At the start of the hearing the Senior Assistant Attorney General representing AHCA stated that, because the issue before the trial court involved a pure question of law, the trial court should not consider any affidavits addressing such topics, but should decide the issue based solely on the language of the law. Although represented by independent counsel, appellants did not object to, or otherwise indicate disagreement with, the statements made by the Assistant Attorney General. Following extensive argument by all parties, the trial court granted appellees’ motion and denied the motion filed by appellants and AHCA, entering judgment accordingly. This appeal follows.

II.

We first address appellees’ contention that the appeal must be dismissed. They point out that neither AHCA nor the Attorney General has elected to participate in the appeal. According to appel-lees, because the Attorney General is not a participant in the appeal, we are obliged to dismiss for lack of either a necessary or an indispensable party. In support of their position, they rely on section 86.091, Florida Statutes (2003), and dicta in Brown v. Butterworth, 831 So.2d 683 (Fla. 4th DCA 2002), revieiv denied sub nom. Crist v. Brown, 862 So.2d 726 (Fla.2003). We find appellees’ argument unpersuasive.

In the first place, while AHCA has apparently elected not to participate actively in this appeal, by virtue of Florida Rule of Appellate Procedure 9.020(g)(2) it remains a party, as an appellee. Moreover, we can find no support in section 86.091 for the proposition that the Attorney General is either a necessary or an indispensable party to this appeal. To the extent pertinent, section 86.091 (which is a part of the chapter entitled “Declaratory Judgments”) reads merely that, “[i]f [a] statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.” The purpose of this statute would appear from its language to be relatively clear — to ensure that the state (in the person of the Attorney General or appropriate state attorney) is aware of any litigation in which a plaintiff seeks a declaratory judgment that any of the enumerated forms of legislation is unconstitutional, and afforded an opportunity to present the state’s position. There is nothing in the language of the statute which supports appellees’ argument that, should the Attorney General or appropriate state attorney elect, after service, not to participate, such litigation may not proceed — i.e., that one of the two is an indispensable party. In fact, placing such a gloss on the words used would permit the Attorney General and state attorneys to prevent any such challenge merely by declining to participate in the litigation. Surely, such an absurd result could not have been intended. Rather, it seems to us relatively clear that, once the Attorney General or appropriate state attorney has been served, he or she may choose either to appear or not. However, in the latter event, non-participation has no effect on the litigation.

Appellees point to dicta in Brown v. Butterworth, 831 So.2d 683 (Fla. 4th DCA 2002), review denied sub nom. Crist v. Brown, 862 So.2d 726 (Fla.2003), to "support their argument that ■ the Attorney General is an indispensable party, without whom the litigation may not go forward. It is true that, in Brown, the court said that “[t]he only truly ‘indispensable’ party to an action attacking the constitutionality of Florida legislation ... is the Attorney General,” id. at 689-90, and that it defined an “indispensable party” as “a party without whom the action cannot proceed.” Id. at 690 n. 9. However, the statement is pure dicta. Moreover, it is unsupported by any citation to authority other than section 86.091 which, as we have said, does not appear to support such a construction. In addition, the statement is directly contrary to positions taken in two prior decisions of our. supreme court construing substantively identical versions of the statute.

In Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 246 (1948), the court said that the statute “d[id] not prescribe that the Attorney General shall be a necessary party when the constitutionality of an act is assailed. It only provides that he shall be ‘heard.’ ” The court also said:

It is evident that the intent and purpose of this Section 87.10 [the predecessor to what is now section 86.091] ... was to provide an avenue for the interests of the State to be represented contingent (1) upon the Attorney General’s concluding that the State’s interests should be represented in such proceedings and (2) upon the Attorney General’s making a showing before the Court sufficient to warrant the Chancellor, in the exercise of sound discretion, in making an order permitting it.

Id. The court held that the trial court had not abused its discretion in denying the Attorney General’s request for leave to intervene. Id.

Similarly, in Mayo v. National Truck Brokers, Inc., 220 So.2d 11 (Fla.1969), the court denied relief to the appellants, who were challenging an adverse final declaratory judgment on the ground that the state attorney for the circuit in which the action had been filed had not been formally served, and did not participate. In doing so, the court said:

It is obvious from the provisions of Chapter 86 that neither the Attorney General nor the State Attorney of the circuit in which the action is pending are necessary parties in the strict sense of that expression.... The State Attorney, after having received a copy of the complaint, advised the court that he had waived final service and did not desire to participate further in the hearing. This he had the right to do.

Id. at 13.

At least one federal court has reached a similar conclusion regarding the purpose of the statute. In Mallory v. Harkness, 923 F.Supp. 1546, 1553 (S.D.Fla.1996), aff'd, 109 F.3d 771 (11th Cir.1997) (table), the court said:

The [Attorney General] intervened in this matter pursuant to Florida Statute § 86.091.... The [Attorney General] argues that § 86.091 imposes a statutory duty upon the state to defend all constitutionally challenged statutes. The Court, to the contrary, finds intervention by the [Attorney General] under § 86.091 to be discretionary. It has long been recognized that the [Attorney General] is not a necessary party each time the constitutionality of a statute is drawn into question. Watson v. ClaughTon, 160 Fla. 217, 34 So.2d 243 (1948). The [Attorney General] is thus not affirmatively required to intervene every time an entity challenges the constitutionality of a statute. Rosenfeld v. Lu, 766 F.Supp. 1131, 1133-34 (S.D.Fla.1991). Upon receipt of the complaint pursuant to § 86.091, the [Attorney General] could have filed with the Court a notice of acknowledgment declining to defend the statute as the [Attorney General] did in Rosenfeld.

Given the decisions in Watson and Mayo, we decline to follow the dicta from Brovm upon which appellees rely. It is apparent that the Attorney General participated in the litigation at the trial level, as counsel for AHCA, and that he is aware of this appeal. Accordingly, it is equally apparent that the requirements of section 86.091 have been met, and that the presence of the Attorney General is not required in this appeal. Appellees' motion to dismiss the appeal is denied.

III.

A.

The Health Facility and Services Development Act (§§ 408.031-408.045, Fla. Stat.(2002)) establishes a “certificate of need” (CON) system for the purpose of determining the need in Florida for certain healthcare services and facilities: The types of projects requiring a CON are identified in section 408.036(1) and (2). Among them are adult open-heart-surgery programs. AHCA is the state agency responsible for issuing, revoking or denying CON’s; and for issuing, revoking or denying exemptions from CON review. § 408.034(1), Fla. Stat. (2002). Pursuant to the Act, AHCA must review CON applications based on numerous statutory and rule criteria, including (but not limited to) those set out in section 408.035. The statutory and rule review criteria for CON applications are uniform throughout the state. Section 408.036(3) exempts certain projects from CON review. Prior to the adoption of chapter 2003-289, which amends section 408.036(3) by adding new paragraph (t) and subparagraphs 1 and 2 thereto, all exemptions were also uniform throughout the state.

Chapter 2003-289 creates a special exemption from CON review for hospitals in Palm Beach, Polk, Martin, St. Lucie and Indian River Counties desiring to establish open-heart-surgery programs. To the extent pertinent, it provides that, “[u]pon request,” projects “[f]or the provision of adult open-heart services in a hospital located within the boundaries of Palm Beach, Polk, Martin, St. Lucie, and Indian River Counties” shall be exempt from CON review “when the application for exemption ... complies with” certain enumerated criteria.

B.

Article III, section 10, of the Florida Constitution provides that:

No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected.

The constitution defines “special law” to mean “a special or local law.” Art. X, § 12(g), Fla. Const. Our supreme court has further defined “special law” and “local law” as follows:

“[A] special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; a local law is one relating to, or designed to operate only in, a specifically indicated part of the State, or one that purports to operate within classified territory when classification is not permissible or the classification is illegal.”

Dep’t of Bus. Regulation v. Classic Mile, Inc., 541 So.2d 1155, 1157 (Fla.1989) (quoting from State ex rel. Landis v. Harris, 120 Fla. 555, 562-63, 163 So. 237, 240 (1934)). Pursuant to article III, section 10, the legislature has enacted several statutes governing the publication of notice of special or local legislation. §§ 11.02, 11.021 & 11.03, Fla. Stat. (2003). It is undisputed that these statutory requirements were not complied with in this case, and that chapter 2003-289 was not conditioned to become effective only upon approval by vote of the electors of the area affected.

Our supreme court has held, further, that whether a law is special or general “is a pure legal question subject to de novo review.” Schrader v. Fla. Keys Aqueduct Auth., 840 So.2d 1050, 1055 (Fla.2003). Moreover, “[wjhether a law is special or general depends in part on whether the class it creates is open.” Ocala Breeders’ Sales Co., Inc. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 25 (Fla. 1st DCA 1999), affirmed, 793 So.2d 899 (Fla.2001). “If it is possible in the future for others to meet the criteria set forth in the statute, then it is a general law and not a special law.” Id. However, the supreme court has cautioned that “[a] special law is not converted into a general law by the legislature’s treating it and passing it as a general law.” Classic Mile, 541 So.2d at 1157. Accord Ocala Breeders’ Sales, 731 So.2d at 25 (“The legislature cannot enact a special law in the guise of a general law, because that would violate the procedural requirements of Article III, Section 10 of the Florida Constitution”). Although passed as a general law, by its express terms chapter 2003-289 creates an exemption that is available only to hospitals located in five counties, and there is no possibility of it applying to hospitals in any other counties. We conclude that, because it creates a closed class limited to five counties, the trial court correctly determined that chapter 2003-289 is a special or local law. See City of Miami v. McGrath, 824 So.2d 143 (Fla.2002) (holding that a statute authorizing cities with a population of 300,000 on a specific date to impose a parking tax was an unconstitutional special law because it applied only to a closed class of three qualified cities); Classic Mile, 541 So.2d at 1158 (holding that a statute relating to thoroughbred horse races which applied to only one county, with no possibility that it would ever apply to any other county, was a special law); Hous. Auth. of City of St. Petersburg v. City of St. Petersburg, 287 So.2d 307 (Fla.1973) (holding that statutes restricting the powers granted to the housing authority in Pinellas County only were unconstitutional special or local laws); State ex rel. Coleman v. York, 139 Fla. 300, 190 So. 599 (1939) (holding that a statutory exemption for dentists in counties having a certain population according to the 1930 federal census was an unconstitutional special law because it could only apply to two counties).

Contrary to appellants’ assertions, chapter 2003-289 cannot be treated as a general law. A general law “operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification.” Classic Mile, 541 So.2d at 1157. Chapter 2003-289 does not satisfy any of these criteria. Appellants cite a line of cases which have recognized that a valid general law can use a classification that is geographical in terms if the purpose of the statute is one of statewide importance and impact, and the classification is reasonably related to the law’s purpose. Schrader, 840 So.2d at 1055-56, and cases cited therein. However, as pointed out by appellees, this line of cases can be distinguished because the cases involved laws dealing with protected water bodies, water resource management, and transportation systems that had impacts far exceeding the limited geographic area identified in the laws themselves. No such impacts are involved in this case. Appellants’ arguments to the contrary are strained and unpersuasive.

C.

Appellants also argue that the trial court committed reversible error when it entered summary judgment in favor of appellees and denied the motion of AHCA and appellants without considering affidavits filed by AHCA and taking testimony. However, at the start of the hearing on the motions for summary judgment, the Senior Assistant Attorney General representing AHCA stated that, because the issue before the trial court involved a pure question of law, the trial court should not consider any affidavits addressing such topics, but should decide the issue based solely on the language of the law. Although represented by independent counsel, appellants did not object to, or otherwise indicate disagreement with, the statements made by the Assistant Attorney General. Accordingly, this argument has not been preserved.

IV.

In summary, we deny appellees’ motion to dismiss the appeal because the Attorney General has elected not to participate. On the merits, we affirm the trial court’s summary final judgment declaring chapter 2003-289, Laws of Florida, unconstitutional as a special or local law which had not been adopted in compliance with article III, section 10, of the Florida Constitution, and permanently enjoining AHCA from issuing any exemptions pursuant to that law.

AFFIRMED.

VAN NORTWICK and POLSTON, JJ., concur.


text:
    Kevin L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2750.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Kevin L. Thomas, appeals his convictions and sentences for first-degree murder and aggravated child abuse. We affirm appellant’s convictions without further discussion but reverse appellant’s sentence for the aggravated child abuse offense and remand for resentencing. On appeal, the State concedes that, because the offenses at issue were committed in January 1998, the trial court should have utilized a guidelines scoresheet pursuant to Florida Rule of Criminal Procedure 3.991 instead of a Florida Rule of Criminal Procedure 3.992 guidelines scoresheet in sentencing appellant for this offense. See Fla. R.Crim. P. 3.703(a) (prescribing that rule 3.703 applies to offenses committed on or after October 1, 1995, or as otherwise indicated, and that rule 3.703 is to be used in conjunction with the forms located in rule 3.991). The State also concedes that the sentencing guidelines do not apply to capital felonies and, as such, the trial court should not have included the first-degree murder offense in its calculation. See § 921.001(4)(b)2., Fla. Stat. (1997) (setting forth that the 1994 guidelines apply to sentencing for all felonies, except for capital felonies, committed on or after January 1,1994); see also Nixon v. State, 572 So.2d 1336, 1346 n. 5 (Fla.1990) (holding that a capital felony cannot be scored as an additional offense at conviction but may serve as a valid reason for a departure sentence); Seccia v. State, 786 So.2d 12, 15 (Fla. 1st DCA 2001) (holding that physical injury or death resulting from a capital felony should not "be scored as victim injury); Green v. State, 696 So.2d 488, 489 (Fla. 3d DCA 1997) (holding that the guidelines do not apply to capital first-degree murder convictions). On remand, the trial court may consider whether a departure sentence is appropriate for the aggravated child abuse offense and provide written reasons to support such a sentence. See Sailor v. State, 701 So.2d 673, 673 (Fla. 1st DCA 1997) (holding that the trial court, upon remand, could consider whether a departure sentence was appropriate because it did not appear that the trial court realized that its imposed sentence constituted a departure sentence); see also Moore v. State, 840 So.2d 274, 274 (Fla. 3d DCA 2003) (holding that, because it appeared that the trial court believed that the sentence imposed was within the guidelines and did not consider whether a departure sentence was warranted, the court was not precluded from considering whether a departure sentence was warranted on remand).

AFFIRMED in part; REVERSED in part and REMANDED for resentencing.

ERVIN, BENTON and LEWIS, JJ., concur.


text:
    Jeffrey A. SIMMONS, Appellant, v. James V. CROSBY, JR., Secretary, Department of Corrections, Appellee.
    No. 1D03-4578.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Jeffrey Simmons, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Peter BABALA, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D03-4740.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Peter Babala, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Anita Gwen KENT, Appellant, v. Timothy Carl KENT, Appellee.
    No. 1D04-1257.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Anita Gwen Kent, pro se, appellant.
    Timothy Carl Kent, pro se, appellee.
   PER CURIAM.

Having considered appellant’s response filed May 10, 2004, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b).

KAHN, DAVIS and PADOVANO, JJ., . concur.


text:
    Orie KENNARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0546.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence imposed on September 8, 2003, in Leon County Circuit Court case number 2003-CF-608-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). In the event petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent petitioner on appeal.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Betty BEGOR, Appellant, v. ST. MARY’S HOSPITAL and Argonaut Insurance Company, Appellees.
    No. 1D04-1618.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Harvey Kaufman, Palm Beach Gardens, for appellant.
    Kraig N. Johnson and Brian C. Dowling, Winter Park, for appellees.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. The order being appealed merely grants the employer/earrier’s amended motion for summary final order. Accordingly, this court lacks jurisdiction to review the JCC’s order. See Fla. R.App. P. 9.180(b)(1).

DISMISSED.

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Benjamin DELAVEAUX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2267.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Bennett H. Brummer, Public' Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and WELLS, JJ.
   PER CURIAM.

Benjamin Delaveaux appeals his convictions for armed robbery. The trial court’s denial of the motion of defendant-appellant Delaveaux to suppress the show-up identification was in accordance with the relevant legal standards. See State v. Hernandez, 841 So.2d 469, 472 (Fla. 3d DCA 2002), review denied, 845 So.2d 890 (Fla.2003). We find no error in the trial court’s ruling. See Shepherd v. State, 732 So.2d 492 (Fla. 4th DCA 1999).

Affirmed.


text:
    Arlety MERCADO, Appellant, v. Bruce FITELL, P.A. and Tate Management, Inc., Appellees.
    No. 3D03-2036.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Friedman & Friedman, and John S. Sel-igman, Coral Gables, for appellant.
    Blaxberg, Grayson, Kukoff & Segal, and I. Barry Blaxberg, and Ian J. Kukoff, Miami, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

We reverse the trial court=s order denying the appellant’s right to pursue a negligence claim against a court appointed receiver. Because the appellant filed this negligence complaint within the four year statute of limitations contained in Section 95.11(3), Florida Statutes (2004), the trial court=s ruling to the contrary constitutes obvious error and requires reversal. See Hardy Equip. Co., Inc. v. Travis Cosby & Assoc., Inc., 530 So.2d 521 (Fla. 1st DCA 1988); Pezzi v. Brown, 697 So.2d 883 (Fla. 4th DCA 1997).

Reversed.


text:
    Angel RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D03-2557.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Angel Ruiz, pro se.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 831 So.2d 821 (Fla. 3d DCA 2002).


text:
    Ursula RIETTER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Charles Orvietto, Appellees.
    No. 3D03-1810.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Ursula Rietter, in proper person.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before LEVY, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Ursula Rietter appeals from a final order of the Unemployment Appeals Commission affirming the unemployment compensation appeals referee’s determination that Rietter was ineligible for benefits due to misconduct connected with her work. We affirm.

The standard of review of an administrative agency’s adjudicative findings is whether those findings are supported by substantial competent record evidence. See Gfrorer v. Unemployment Appeals Comm’n, 864 So.2d 1290 (Fla. 5th DCA 2004). Our review of the record reveals that there is substantial competent evidence supporting the referee’s finding that Rietter was dismissed for misconduct connected with her work and is thus ineligible to receive unemployment compensation benefits.

Rietter also contends that she was not given an opportunity at the hearing to offer her version of why she was dismissed from her job. However, the record shows that the appeals referee advised Rietter that she was entitled to ask questions and make statements on her own behalf. She was asked if she understood the hearing procedures to which question Rietter responded in the affirmative. The record shows that the appeals referee gave Riet-ter the opportunity to ask questions after the allegations of misconduct were presented; to offer additional testimony of her own; and to make a closing statement.

We therefore affirm the final order of the Unemployment Appeals Commission.


text:
    Lazaro COLL-PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1226.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Lazaro Coll-Perez, in proper person.
    Charles J. Crist, Jr., Attorney General, ■ and John D. Barker, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Demps v. State, 462 So.2d 1074 (Fla.1984).


text:
    M.D., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2895.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Kevin Coyle Colbert, for appellant.
    Calianne P. Lantz; Mercedes Scopetta, for appellee.
    Before COPE, GREEN and SHEPHERD, JJ.
   PER CURIAM.

M.D., the father, appeals a dependency order. We conclude that the order meets the statutory standards and is supported by the evidence. See F.R. v. Department of Children and Families, 826 So.2d 449 (Fla. 5th DCA 2002); E.B. v. Department of Children and Family Services, 733 So.2d 1145 (Fla. 3d DCA 1999).

Affirmed.


text:
    NOMO RESEARCH, INC., formerly known as Sea & Ski Corporation, Appellant, v. COMERCIAL E. IMPORTADA MMD, Appellee.
    No. 3D03-3033.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Payton & Carlson, Miami, and Amy Koltnow, for appellant.
    Broad and Cassel and Thomas J. Rebull, Miami, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Affirmed. Marsh Supermarkets, Inc. v. The Queen’s Flowers, Corp., 696 So.2d 1207 (Fla. 3d DCA 1997).


author: CASANUEVA, Judge.

text:
    M.L.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1483.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

M.L.C. was not quite thirteen years old when he allegedly committed several acts of lewd or lascivious molestation on two of his middle-school classmates. He contends that the trial court erred when it failed to grant his motion to dismiss the juvenile delinquency petition on the ground that the evidence did not demonstrate that he acted with lewd or lascivious intent. We agree in part and reverse the order placing M.L.C. on juvenile probation for two offenses but affirm as to two others.

Two girls, twelve and thirteen years old at the time of these incidents, testified that on separate occasions M.L.C. touched them on their clothed buttocks or breasts. M.F. described waiting for the school bus with M.L.C. at their middle-school bus ramp one afternoon. M.L.C. had his arm around her; then he moved his arm down and touched her buttocks over her clothing. V.D. testified that as she waited on the bus ramp with a group of friends, M.L.C. walked up behind her and slid his hand across her buttocks, in a quick second. This was the extent of the evidence undergirding counts one and four of the petition.

Lewd or lascivious molestation, as provided in section 800.04(5)(a),(c)(1), Florida Statutes (2002), proscribes the offender’s intentional touch of the victim’s buttocks or the clothing covering them “in a lewd or lascivious manner.” Here, however, there is no evidence of lewd or lascivious intent in M.L.C.’s split-second contact with the girls’ buttocks. Lewd and lascivious are terms undefined by the statutes but explored extensively in case law, and this court, in Egal v. State, 469 So.2d 196 (Fla. 2d DCA 1985), examined various judicial attempts to ascertain their meaning. As stated in Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971), lewd and lascivious generally refer to “unlawful indulgence in lust, eager for sexual indulgence”; and in Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946), the supreme court noted that “ ‘[l]ewd,’ ‘lascivious,’ and ‘indecent’ are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design” by an alleged offender. Egal, 469 So.2d at 197.

In this case, neither M.F. or V.D. related any facts from which the court could infer that M.L.C. acted lewdly or lasciviously when he touched their buttocks. Each contact was brief, unaccompanied by suggestive remarks or body language. As this court observed in Egal, a lewd or lascivious purpose “imports more than a negligent disregard of the decent proprieties and consideration due to others.” 469 So.2d at 197 (quoting McKinley v. State, 33 Okla.Crim. 434, 244 P. 208, 208 (1926) and citing Chesebrough, 255 So.2d at 675). The evidence is simply insufficient for a finding that M.L.C.’s conduct was grossly indecent, lustful, licentious, or unchaste. We therefore hold, as a matter of law, that the State did not prove that M.L.C. committed the delinquent acts as alleged in counts one and four of the petition. See Williamson v. State, 839 So.2d 921, 923-24 (Fla. 2d DCA 2003) (reversing a conviction for lewd and lascivious act “[bjecause there was no evidence from which the requisite intent could be inferred”); Durant v. State, 647 So.2d 163, 164 (Fla. 2d DCA 1994) (reversing the defendant’s conviction for a lewd or lascivious act when the circumstances did not demonstrate a “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator” (quoting Egal, 469 So.2d at 197)); Payne v. State, 463 So.2d 271, 272 (Fla. 2d DCA 1984) (holding, as a matter of law, that the defendant’s conduct was not lewd, lascivious, vulgar, or indecent). The evidence was sufficient, however, for the court to conclude that M.L.C. committed the lesser-included offense of misdemeanor battery in both instances.

As to the delinquent acts alleged in counts two and five, the evidence at trial supported the juvenile court’s findings that M.L.C. committed battery for touching M.F.’s breast and lewd molestation for touching V.D.’s breast, and we affirm as to those counts. However, we note that the juvenile probation order lists the degree of the crime in count five as a second-degree felony, but the offense alleged in the juvenile petition and proven at trial is a third-degree felony.

Affirmed in part, reversed in part, and remanded with directions to amend the juvenile probation order to reflect that the acts committed in counts one and four are misdemeanor batteries and that the charge in count five is a third-degree felony.

STRINGER and SILBERMAN, JJ., Concur.


author: STRINGER, Judge.

text:
    Anthony MIELE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5725.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.

      James Marion Moorman, Public Defender, and Raymond Dix, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Anthony Miele seeks review of the judgment and sentence entered after a jury found him guilty of burglary of a dwelling. We reverse for a new trial because the State impermissibly commented on Miele’s failure to present evidence to refute an element of the charged crime. We affirm without comment the other issues raised by Miele on appeal.

The charges in this case arose when Renee Elder returned from work and found that someone had taken a five-gallon water jug containing between $300 and $500 in coins, gold coins, and $2 bills from her bedroom closet. Elder called the police and immediately went to the local convenience store where she learned that a man later identified as Miele had used $2 bills to make some purchases earlier that day. Elder told the police that she suspected that one of her daughter’s friends, Florence Brown, was involved in the crime. When the police questioned Brown, she confessed and told them that she had committed the burglary with Miele. At trial, Miele’s defense was that he did not commit the crime and that the $2 bills he spent at the convenience store came from a jug his father possessed and allowed him to access. To support his defense, Miele presented the testimony of Angelina Ar-izpe and Katrina Miele.

The State’s impermissible comments on Miele’s failure to present evidence occurred during the questioning of Angelina Arizpe and Katrina Miele. When cross-examining Arizpe, Miele’s former girlfriend, regarding her testimony that Miele’s father had given Miele and her $2 bills, the State asked her if Miele’s father was present in the courthouse. Defense counsel objected after the witness finished testifying on the basis that this question improperly shifted the burden of proof. This question was a comment on Miele’s failure to call his father as a witness to corroborate Arizpe’s testimony that Miele’s father’s money jug was the source of the $2 bills Miele had spent at the convenience store on the day of the burglary.

Katrina Miele, Miele’s older sister, testified that Miele sometimes used $2 bills and that they were taken from a stash of such cash kept by their father in a large jug. The State asked Katrina Miele if she had a camera, presumably to take photos of the jug. The court denied defense counsel’s objection and allowed the State to elicit testimony that while Katrina Miele did have a camera on February 11, 2001 (the date Miele first told police about the alternate source of the $2 bills), she did not take pictures of her father’s jug of money at that time. The State went even further, eliciting testimony that Katrina Miele did later photograph the jug of money and give the pictures to her father. This line of questioning was a comment on Miele’s failure to produce photographs of his father’s money jug.

It is not permissible for the State to comment on the defendant’s failure to present evidence refuting an element of the charged crime. Jackson v. State, 575 So.2d 181, 188 (Fla.1991); Janiga v. State, 713 So.2d 1102, 1103 (Fla. 2d DCA 1998). The only exception to this rule applies when the defendant assumes some burden of proof by offering an affirmative defense and the witness is not equally available to the State. Hayes v. State, 660 So.2d 257, 265 (Fla.1995); Jackson, 575 So.2d at 188.

In this case, the State commented twice on Miele’s failure to present evidence to refute an element of the charged crime. The exception to the rule prohibiting this sort of questioning does not apply because Miele did not raise an affirmative defense for which he assumed the burden of proof. Miele’s defense was that he did not commit the crime and that he was in possession of $2 bills because his father had given them to him.

This error was not harmless. Angelina Arizpe and Katrina Miele were Miele’s only witnesses. Brown was the only witness placing Miele at the crime scene, and her credibility was severely impeached. The only evidence connecting Miele to the burglary besides Brown’s testimony was the testimony that he had spent five $2 bills at a nearby convenience store shortly after the burglary. The State’s improper questioning suggested at best that Miele had a duty to present additional evidence to refute the State’s allegation that these $2 bills were retrieved during the burglary. At worst, the questioning suggested that Miele did not call his father to testify because he could not corroborate the defense witnesses’ testimony regarding the source of the $2 bills. Either way, the State has not shown beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the verdict.

Reversed and remanded for a new trial.

CASANUEVA and SILBERMAN, JJ., concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Regina SERRAGO, Appellee/Cross-Appellant.
    No. 2D03-776.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel and Helene S. Parnés, Assistant Attorneys General, Tampa, for Appellant/Cross-Appellee.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appel-lee/Cross-Appellant.
   DAVIS, Judge.

Regina Serrago was charged with numerous offenses arising out of a fatal traffic accident. During the course of the traffic accident investigation, both blood and urine tests were conducted on Serra-go, who moved to suppress the results of the tests. In this appeal, the State challenges the trial court’s order suppressing Serrago’s blood test results, and on cross-appeal, Serrago challenges the trial court’s denial of her motion to suppress the results of her urine test. We reverse on both claims.

The traffic accident that resulted in these proceedings involved four vehicles on Interstate 275 in Pinellas County. Witnesses observed Serrago driving erratically at speeds approximating eighty-five miles per hour and weaving in and out of traffic, into the median, through the shrubbery barrier, and out the other side into oncoming traffic. She then went airborne for about fifty feet and collided head-on with one vehicle. The front seat passenger of that vehicle was ejected, resulting in fatal injuries. Two additional vehicles were forced to take emergency evasive measures in an attempt to avoid the accident, resulting in serious bodily injury to four other people.

Serrago was transported to the hospital, as were the other individuals who were injured. About one and one-half hours after the accident, Florida Highway Patrol Trooper Burke began inspecting all of the vehicles at the scene. He detected a slight odor of alcohol emanating from the driver’s side of the passenger compartment of Serrago’s vehicle. Armed with this knowledge and knowing also that the crash involved serious bodily injury and possibly a death, Trooper Burke ordered a blood draw on Serrago. At trial, he testified that his request was based on the following: (1) his detection of a slight odor of alcohol in the driver’s side of the passenger compartment of Serrago’s vehicle, (2) Trooper Frurick’s statement to him that Serrago was combative at the hospital, (3) Trooper Hollis’ statement to him that Ser-rago had been unconscious at the scene, and (4) Serrago’s extremely erratic driving. When the initial blood draw yielded a blood alcohol level (“BAL”) of only .009, Trooper Burke ordered a second blood test and a urine test, which revealed the presence of illegal drugs, primarily cocaine.

Serrago moved to suppress the results of the blood and urine tests. Following a hearing, the trial court suppressed only the results of the blood test. Applying what it believed to be the correct statute, section 316.1932(1)(c), Florida Statutes (2000), the trial court found that although Trooper Burke had probable cause to order a blood draw, because a urine test had not been impractical or impossible, the requirements for ordering a blood draw had not been met. The court also found that the blood draw was not authorized by section 316.1933(1) because that statute did not apply to the instant facts. Finally, the court denied Serrago’s motion to suppress the results of the urine test because the court determined that the urine test met the requirements of what it deemed to be the applicable statute, section 316.1932(1)(c).

Although the trial court was convinced, as was the State, that section 316.1932(1)(c) was the correct statute to be applied in determining the validity of the blood draw, we disagree. We believe that the factual circumstances here require the application of section 316.1933. The statute that was incorrectly applied by the trial court, section 316.1932(1)(c), provides, in pertinent part:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person ivas driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or wine test is impractical or impossible.... Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test.

(Emphasis added.)

The statute that the court should have applied, section 316.1933(1), provides:

Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. The term “serious bodily injury” means an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

(Emphasis added.)

The trial court specifically found that section 316.1932(l)(c) applied here because “[i]t is the statute envisioned for use when a driver suspected of driving under the influence of alcohol or chemical or controlled substances has appeared for medical treatment.” While it is true that section 316.1932(l)(c) applies in such cases, the instant case presents the additional fact that the officer had probable cause to believe that the driver, while under the influence of alcohol.or drugs, caused death or serious bodily injury to another. This placed the case squarely within the intended purview of section 316.1933(1).

The trial court offered two reasons that section 316.1933(1) did not apply to the instant case. First, the trial court cited State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000). However, Kliphouse is distinguishable on its facts. The court in Klip-house concluded that section 316.1933(1) did not apply there because the statute requires that before a blood draw may be authorized, law enforcement must reasonably believe that the defendant caused the injuries. Because the officer there did not believe that Kliphouse had caused the injuries, one of the statutory criteria had not been met.

The contrary is true here. The trial court specifically found that the trooper had reasonable cause to believe that Serra-go was driving while under the influence of alcohol or drugs. We believe that, in view of Serrago’s erratic driving and Trooper Burke’s belief that he detected a slight odor of alcohol on the driver’s side of the passenger compartment of her car, the trial court was correct. In addition, the record not only supports the trial court’s conclusion that the trooper had the requisite reasonable cause under section 316.1932(l)(c) to believe that Serrago was driving under the influence of alcohol or drugs, but also supports the conclusion that he had the probable cause required by section 316.1933(1) to believe that while driving in such a condition, she caused the death or serious bodily injury of a human being. Therefore, Kliphouse did not support the trial court’s conclusion that section 316.1933(1) did not apply to the instant case.

Second, the trial court stated that section 316.1933(1) did not apply because that section anticipated a conscious driver and required that a' law enforcement officer request the blood draw of the driver, neither of which occurred here. However, nothing in section 316.1933(1) refers to the driver’s consciousness. Furthermore, it appears that the statutory reference in section 316.1933(1) to the officer’s “request” that the driver submit to a test misled the trial court to conclude that the request must be made of the driver, who may then refuse the test. The remainder of the statute’s language belies that assumption. The statute specifically provides that where, as here, the officer has the required probable cause, the defendant “shall submit” to a blood test. The statute also refers to the officer’s ability to use reasonable force to require the person to submit to a blood test. See Cox v. State, 473 So.2d 778 (Fla. 2d DCA 1985) (stating that officer’s threat to hit defendant over head to obtain blood sample was not unreasonable force). As this court stated in Cox, “[a]s we read section 316.1933, where there is probable cause to suspect intoxication, consent and withdrawal of implied consent to the extraction of a blood sample are not options....” Id. at 780. In view of these provisions, we conclude that the statutorily-required request is not a request for the consent of the person to be tested; it is a request that the test be performed. See State v. Webb, 753 So.2d 145 (Fla. 3d DCA 2000). In the context of this statute, the officer’s request is the proverbial “offer that one cannot refuse.”

Having found no merit in the two reasons offered by the trial court for not applying section 316.1933, and finding that the trial court improperly applied section 316.1932, we conclude that the trial court erred in requiring the State to show that a breath or urine test was impractical or impossible before allowing admission of the blood test. We therefore conclude that section 316.1933 applies, that the requirements of section 316.1933 have been met, and that the results of the blood test should have been admitted. We accordingly reverse the trial court’s exclusion of the blood tests.

Turning to the question of the admissibility of the urine tests, the trial court concluded that section 316.1932(l)(c) authorized these tests. The trial court found that although this section specifically refers to blood draws, not urine tests, it impliedly allowed breath or urine tests if the same statutory requirements were met. We give de novo review to issues of statutory interpretation, BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287 (Fla.2003), and we cannot agree with the trial court’s interpretation here.

Our reading of section 316.1932(1)(c) leads us to conclude that it cannot reasonably be read to allow a urine test because it simply does not provide for same. Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances. Section 316.1932(1)(a) allows for breath and mine testing but does so only pursuant to a lawful arrest. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances: (1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible.

The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests. Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here.

This analysis is supported by case law, which has historically treated blood tests differently than breath and urine tests. In State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982), the Fifth District, in considering a breath test that was taken from an individual who was not under arrest, found that the legislative intent to treat blood tests differently from breath and urine tests was revealed in the legislature’s failure to change the law as it relates to breath and urine when it changed the law regarding blood tests. Id. at 758. In State v. Hilton, 498 So.2d 698, 700 n. 4 (Fla. 5th DCA 1986), the court observed: “We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest.” In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), as follows: “ ‘[T]he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.’ ” The court noted that since Barrett, the legislature had not substantially amended the statute, indicating its intent that prearrest breath tests should remain inadmissible.

Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it applied the blood test requirements portion of section 316.1932(1)(e) to Serrago’s urine test in order to And that it was admissible. Because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest, and because Serrago was not under arrest at the time that the urine test was taken, the urine test here was not admissible.

Having concluded that the trial court erred in suppressing Serrago’s blood tests and in refusing to suppress Serrago’s urine tests, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FULMER and SILBERMAN, JJ., concur.


author: CANADY, Judge.

text:
    Ronald G. WENDEL, Appellant, v. Cindy H. WENDEL, Appellee.
    No. 2D03-172.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    C. Steven Yerrid and Ralph L. Gonzalez of The Yerrid Law Firm, Tampa, for Ap-pellee.
   CANADY, Judge.

Ronald G. Wendel appeals an order finding him in contempt of a support order which was vacated in an earlier appeal. Because we conclude that the issuance of the contempt order was an abuse of discretion, we reverse the order.

I. BACKGROUND

On December 10, 2002, the circuit court entered an order finding Mr. Wendel in civil contempt for arrears on a prior support order of April 23, 2002. The contempt order provided that Mr. Wendel be incarcerated for thirty days and established a purge amount. On June 27, 2003, this court vacated the circuit court order of April 23, 2002, on the ground that the circuit court order was based on inadequate proof of Mr. Wendel’s ability to pay the support amount set by the order.

Mr. Wendel, who is licensed as an attorney in Florida and two other states and has worked in an investment firm, has been a real estate salesperson for more than three years. In an earlier appeal to this court, Wendel v. Wendel, 805 So.2d 913 (Fla. 2d DCA 2001), this court rejected the circuit court’s attribution of annual income of $79,159 to Mr. Wendel, which had been based on testimony by an economist that Florida attorneys with eight or more years of experience earn that amount. Mr. Wendel, who was fifty-three years of age at the time, had not worked as an attorney since 1994 and had never earned more than $65,000 as an attorney. In addition, the economist’s opinion testimony did not establish the prevailing earning level for attorneys in the local community. Accordingly, we held that the order imputing income was not supported by substantial evidence.

On remand, in the order of April 23, 2002, the circuit court attributed an annual income of $65,000 to Mr. Wendel, based on the same economist’s testimony that Mr. Wendel should be able to earn $120,000 a year, based on his experience and training as an attorney. This court reversed the order of April 23, 2002. Wendel v. Wendel, 852 So.2d 277 (Fla. 2d DCA 2003). Although the expert testified that there were numerous job openings in the Tampa area for attorneys, no evidence was presented that any of these jobs paid $120,000 a year or, for that matter, $65,000, and there was no showing of any kind that Mr. Wendel was qualified for any such positions. Mr. Wendel had testified before the circuit court that he was unable to find employment as an attorney and that he was working as a real estate salesperson, earning approximately $20,000 a year. Wendel, 852 So.2d at 284. This court specifically directed that on remand the circuit court calculate child support based on Mr. Wendel’s current income and employment. Id. at 285.

The hearing on the contempt motion on December 10, 2002, concerning Mr. Wen-del’s noncompliance with the circuit court order of April 23, 2002, was held prior to this court’s ruling — issued on June 27, 2003 — vacating that order. Mr. Wendel’s alleged arrearage was $1787 on the support order of $613 a month plus $100 a month on the prior arrearage. At the contempt hearing, no evidence whatsoever was offered as to Mr. Wendel’s ability to pay the amount set in the order of April 23, 2002, other than citation to excerpts of his deposition testimony on February 18, 2000, as to his income at that time. Mr. Wendel, appearing pro se, testified at the December 10, 2002, hearing that he was still a full-time real estate salesperson, his annual income for the last year was $24,532.80, he had last received $6000 for a closing in August 2002, had no other- closings, and anticipated one possible additional closing. Mr. Wendel had $150 in the bank and had borrowed $2000 against future commissions to pay his rent. His church paid his October rent. The high child support payments were a major factor causing his financial difficulties.

The circuit court found that Mr. Wendel was $1426 in arrears on monthly child support payments and also owed $1779.84 for his share of medical expenses pursuant to the parties’ marital settlement agreement. The circuit court set the total arrears at $3205.84. The circuit court found that Mr. Wendel had the present ability to pay the arrears, based on his income of $24,582, his ability in the past to borrow money on future commissions, his testimony that he had $150 in cash, his receipt of a $6000 commission in August 2002, his substitute teaching opportunities at a religious school (to which Mr. Wendel alluded in his testimony, without any indication.of frequency or payment rate), his education (B.S., J.D., and L.L.M. degrees), and his real estate sales license. The circuit court entered the contempt order providing for the incarceration of Mr. Wendel, although Cindy H. Wendel, the appellee, did not request an order of imprisonment. Counsel for Ms. Wendel stated that the incarceration of Mr. Wendel was not warranted under Lawrence v. Department of Revenue, 755 So.2d 139 (Fla. 2d DCA 1999). Shortly after being incarcerated, Mr. Wen-del paid the purge amount and was released.

II. ANALYSIS

The underlying circuit court support order of April 23, 2002, directing payment of $713 a month, has been reversed by this court for lack of any showing that Mr. Wendel had the ability to pay that amount. This court has already determined that there was no evidence to support the findings as to Mr. Wendel’s earning ability on which the support amount was based. Mr. Wendel should not be held in contempt for not making the payments required by an- order that was not based on any credible evidence of his ability to pay. “The contempt order entered against the husband for failing to pay those obligations which since have been vacated on appeal ... simply cannot stand.” Bellville v. Bellville, 758 So.2d 1255, 1256 (Fla. 4th DCA 2000). The presumption of the ability to pay normally arising from an outstanding order directing support payments, Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985), is completely undermined by the ruling of this court that there was no substantial, competent evidence to support the attribution of income on which the support order was based.

In addition, at the contempt hearing, Ms. Wendel offered no evidence of Mr. Wendel’s present ability to make the payment required by the support order, citing only to Mr. Wendel’s deposition testimony about two years before in which he indicated he had an annual income of about $20,000, not the $65,000 imputed annual income on which the circuit court order of April 23, 2002, was based. Mr. Wendel’s testimony at the contempt hearing indicated that he had an annual income of about $24,000. His unrefuted testimony at the contempt hearing established that he lacked the ability to pay the support order. The circuit court’s finding of Mr. Wendel’s ability to pay is founded on nothing more than baseless income imputation, already twice disapproved on appeal. There thus was no evidence that Mr. Wendel had the means to pay the purge amount established in the contempt order. The contempt order based on failure to fully pay the ordered support must therefore be reversed. See Bowen, 471 So.2d at 1277; Latorence, 755 So.2d at 140; Phillips v. Phillips, 588 So.2d 9, 10 (Fla. 2d DCA 1991); Cleveland v. Cleveland, 841 So.2d 648, 649 (Fla. 4th DCA 2003); Ugarte v. Ugarte, 608 So.2d 838, 841 (Fla. 3d DCA 1992).

Ms. Wendel argues that a contempt finding was warranted because an erroneous court order should be obeyed until it is reversed. See Kaylor v. Kaylor, 466 So.2d 1253, 1254 (Fla. 2d DCA 1985); Robbie v. Robbie, 726 So.2d 817, 819 (Fla. 4th DCA 1999). This argument ignores the fact that in this case the support order with which Mr. Wendel did not fully comply was reversed because it was not based on evidence that Mr. Wendel had the ability to comply with the support order. This was also the precise issue in the contempt proceeding. The factual basis for the contempt order was the same as the factual basis for the support order. Just as we previously concluded that the factual basis for the support order was insufficient as a matter of law, so we also now conclude that the factual basis for the contempt order was insufficient as a matter of law.

Ms. Wendel also erroneously argues that Mr. Wendel’s purging of the contempt by payment warrants affirmance of the contempt order. But the payment of the purge amount does not establish that Mr. Wendel had the ability to pay under the applicable legal standard. The one-time payment does not establish the ability to pay the order on an ongoing basis. Sokol v. Sokol, 441 So.2d 682, 685 (Fla. 2d DCA 1983); cf. Lawrence, 755 So.2d at 140 (“In this case Lawrence’s ability to pay the purge amount is not at issue because he paid the $500 after the court found him in contempt. However, Lawrence did present evidence to rebut the [ ] assertion that he had the ability to pay the established bi-weekly child support. Accordingly, the trial court erred in finding Lawrence in contempt.”).

The source of Mr. Wendel’s purge payment is unknown. Mr. Wendel’s payment of the purge amount to obtain release from jail does not show an ongoing ability to pay the order out of his own assets. Mr. Wen-del is not required to borrow beyond his means of repayment in order to pay a support order which is excessive because it is not based on his actual financial resources. See Breitenbach v. Breitenbach, 838 So.2d 1266, 1268 (Fla. 2d DCA 2003), citing Perez v. Perez, 599 So.2d 682, 683 (Fla. 3d DCA 1992) (stating that theory that husband had a present ability to pay an order by obtaining a loan from relatives was “outrageous”).

III. CONCLUSION

The order of December 10, 2002, finding, Mr. Wendel in contempt of the support order of April 23, 2002, therefore is reversed.

COVINGTON and KELLY, JJ., Concur.


text:
    Eric MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5693.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.

      James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Eric Mills appeals his convictions for first-degree murder and home-invasion robbery, asserting that the trial court committed two errors, either of which requires a new trial. He first contends that it was error for the trial court to deny him a mistrial when the State did not present a witness whose anticipated testimony the prosecutor had detailed in his opening statement. Second, he claims prejudicial error in the trial court’s refusal to give his requested independent act instruction to the jury. Finding merit only in his first contention, we reverse and remand for a new trial.

The evidence presented at trial showed that four persons, three masked men and a woman, participated in the home-invasion robbery of Leo Dempsey. Of the four, Mr. Dempsey could only identify the woman, Erica Brown, from a previous acquaintance. Mr. Dempsey testified that while the four were still in his home, a neighbor, Dwight Fleming, came to the rear door seeking Mr. Dempsey. Before Mr. Fleming was allowed in, one of the men took Mr. Dempsey and Ms. Brown to another room, pulled a shirt over Mr. Dempsey’s head, and held the two at gunpoint. Mr. Dempsey told the jury that he heard a scuffle near the rear door, then two back-to-back gunshots. After the shots were fired, Ms. Brown and the three men fled. Mr. Dempsey found Mr. Fleming in a pool of blood and called 911. Mr. Fleming died from two gunshot wounds, one to his head and one to his neck.

A few days later, Mr. Mills confessed to the home-invasion robbery, but at trial he retracted his confession. He explained to the jury that he had confessed only to help out Ms. Brown, who was his sister, and his brother Michael, who had been charged with committing these crimes; the three of them believed he would be treated more leniently because he had no prior record. During his interview with the detective investigating the crimes, he repeated his confession on tape because he had been told by police officers that he would not be charged with the murder, just the robbery. His taped confession, including how he was holding Mr. Dempsey at gunpoint in another room when Mr. Fleming was shot, was played for the jury. Despite his confession, he maintained to the jury that he was not present during this criminal episode.

During his opening statement, the prosecutor had extensively detailed the facts of Ms. Brown’s expected testimony. The prosecutor told the jury that Ms. Brown had pleaded guilty to the second-degree murder of Mr. Fleming in return for her truthful testimony and that she would serve twenty years in prison. He described in detail Ms. Brown’s version of the planning and execution of the robbery, including the fact that Mr. Mills was holding Mr. Dempsey at gunpoint in another room when Mr. Fleming was shot. Later, when the State called her to testify, Ms. Brown refused, invoking her Fifth Amendment privilege, and the trial court declined to compel her testimony. Because the State was unable to provide her as a witness, defense counsel moved for a mistrial following the close of the State’s case. Defense counsel .asserted that because the prosecutor outlined Ms. Brown’s testimony in his opening statement about Mr. Mills’s participation, and because she did.not then testify, Mr. Mills was severely prejudiced. The trial court denied the motion for mistrial, and prohibited defense counsel from commenting in closing argument on Ms. Brown’s failure to testify.

Additionally, at the charge conference, defense counsel sought an independent act jury instruction. The defense theory was that the independent act of one of the other coperpetrators caused the victim’s death because the evidence showed that Mr. Mills 'neither intended for a death to occur nor participated in the murder of Mr. Fleming.

The resolution of the first and dis-positive issue is governed by Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002). See also Maddox v. State, 827 So.2d 380 (Fla. 3d DCA 2002), review denied, 845 So.2d 891 (Fla.2003). In Jackson, a case involving the stop of the defendant’s car, the prosecutor told the jury in opening statement that the evidence would show the passenger indicated to the officer that the defendant had contraband concealed in his groin area. The State did not call the passenger to testify, nor did the officer testify about any statements or gestures by the passenger. This court found prejudicial error in the combination of the prosecutor’s suggestion in opening statement that additional evidence would corroborate the officer’s testimony and the State’s failure to place those facts in evidence. Thus, the alleged corroborating evidence was never subjected to cross-examination by the defense and evaluation by the jury. Jackson, 818 So.2d at 542 (concluding that the error was not harmless because the case boiled down to a credibility contest between the defendant and the police officers).

In Maddox, the Third District reversed a conviction because the prosecutor alleged in opening that the defendant had made an incriminating statement to a police officer but the officer never testified. The court held, citing Jackson, 818 So.2d at 542, that the “foregoing facts prejudiced Maddox because the State basically suggested that there was other evidence in support of its case, but then failed to offer it and subject it to cross-examination by Maddox and evaluation by the jury.” Maddox, 827 So.2d at 381.

Similarly, we conclude that it was error for the court to deny the motion for mistrial when the State failed, through no fault of its own, to present Ms. Brown as a witness after the prosecutor had extensively recited during opening statement her anticipated testimony implicating Mr. Mills. Both Jackson and Maddox compel reversal.

Mr. Mills’s second issue is that the trial court erred when it refused to give an independent act instruction. The independent act doctrine triggers a special jury instruction when evidence is presented that the defendant, who previously participated in the common plan with cofelons, did not participate in the cofelons’ acts that were alien to the original collaboration. “Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.” Ray v. State, 755 So.2d 604, 609 (Fla.2000). However, the doctrine does not apply if the murder is committed in furtherance of the initial criminal scheme. Pittman v. State, 841 So.2d 690, 692 (Fla. 2d DCA 2003) (citing Ray, 755 So.2d at 609). If any evidence supports the defendant’s theory that the act resulting in the charged crime was independent of and not committed in furtherance of the joint felony, the instruction is mandated. Id. (citing Bryant v. State, 412 So.2d 347, 349-50 (Fla.1982)); see also Upshaw v. State, 871 So.2d 1015 (Fla. 2d DCA 2004) (accord).

Here, however, the evidence demonstrated that the murder of Mr. Fleming occurred in the course of and in furtherance of the home-invasion robbery, while Mr. Mills and his cofelons were still inside the home. In Ray, the evidence showed that the murder took place while the felons were in flight from the crime scene; the court thus concluded that the independent act instruction was not warranted because the murder took place during the course of the robbery. Ray, 755 So.2d at 609. The evidence at Mr. Mills’s trial showed that when Mr. Fleming was murdered, Mr. Mills was still at the scene holding Mr. Dempsey at gunpoint. This conduct can only be described as “during the course of’ the home-invasion robbery and “in further-anee of it.” Like the defendant and his eofelon in Ray, Mr. Mills and his cofelons had secured weapons, displayed and used them during the course of the home-invasion robbery, and took advantage of the homicide by fleeing. Id. (“Only a finding that the criminal episode had ceased might give significance to Ray’s ‘[cofelon] as the shooter’ argument[.]”) Contrary to Mr. Mills’s contention, we conclude that the trial court did not err by refusing to give the requested independent act jury instruction.

Because of the prejudicial error raised in Mr. Mills’s first issue, we reverse and remand for a new trial.

FULMER and WALLACE, JJ., Concur.

      . The group wanted to maintain the fiction that Ms. Brown was an unwitting victim. She had, in reality, gone into the home on a pretext to verify that Mr. Dempsey was alone and signaled to the others that the coast was clear to invade the home.