author: PER CURIAM.

text:
    Eli LEVY, Appellant/Cross-Appellee, v. Miriam LEVY, Appellee/Cross-Appellant.
    Nos. 3D03-0540, 3D02-2857, 3D02-2590.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.

      Ricardo E. Pines, Coral Gables, for appellant/cross-appellee.
    Bernardo Burstein, for appellee/cross-appellant, Miriam Bimblich, f/k/a Miriam Levy.
    Liliana V. Avellan, for cross-appellee, Dora Rubinstein de Levy.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Eli Levy (“former husband”) appeals from a final judgment dissolving his marriage to Miriam Levy (“former wife”). The former wife cross-appeals the same final judgment of dissolution and also appeals a separate final judgment determining the former husband’s child support obligation. We affirm.

The parties were married in 1986 in Caracas, Venezuela and have two minor children. By agreement of the parties, the former wife was a homemaker and primary caretaker for the family. She acquired no assets of her own and was entirely dependent economically on the former husband. In September 1999, the parties relocated to South Florida.

In February 2001, the former husband filed a petition for dissolution of marriage. That same day, the former wife filed an emergency petition for alimony and child support and an emergency motion seeking an ex parte temporary restraining order. The trial court issued an ex parte order which enjoined the former husband and his mother, Dora Rubinstein de Levy (“mother”), from transferring or dissipating any funds from either of their accounts. Subsequently, the trial court dissolved the temporary injunction with the exception of the Colonial Bank account that contained marital funds.

In September 2002, the trial court entered its first final judgment reserving jurisdiction on the issues of child support and attorney’s fees. The trial court concluded that the former husband had over one million dollars in liquid assets available to him and that he had distributed these funds beyond the reach of the former wife. The trial court imputed income to the former husband in the amount of $20,000 per month.

The trial court also determined that the former husband and former wife established a marital business, Astra Construction Corporation (Astra), capitalizing it with $300,000 of their funds. Astra was established for- immigration purposes to help the former husband obtain his L-1 immigration visa. The trial court awarded Astra to the former husband. The trial court then awarded the former wife the proceeds of the sale of the parties’ two homes ($250,000) and ordered the former husband to pay the former wife $75,000, in a lump sum alimony to balance the equitable distribution of assets. The trial court also ordered the former husband to pay all of the former wife’s attorney’s fees.

In a separate final judgment, the trial court determined that the former husband’s monthly child support and health insurance obligation was $1,354.00 per month. The court deviated from the child support guidelines and ordered the former husband to pay $1,000 per month in child support because the former husband was responsible for the children’s private school expenses.

As his first issue, the former husband contends that the trial court erred in awarding the former wife permanent alimony. The former wife contends 'on cross-appeal that the trial court erred in awarding her only $8,000 a month in permanent alimony. We disagree with both parties and find that the record supports the awarded permanent alimony.

The purpose of permanent alimony is to provide the needs and necessities as they have been established by the marriage of the parties. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Here, the parties were married fourteen years. For alimony purposes, this falls in the. upper portion of gray area marriages. See Thomas v. Thomas, 776 So.2d 1092 (Fla. 5th DCA 2001). In gray area marriages, there is no presumption for or against an award of permanent alimony. See Nelson v. Nelson, 721 So.2d 388 (Fla. 4th DCA 1998). Therefore, the trial court must utilize its discretion, in light of the statutory factors in determining whether an award of permanent alimony is appropriate.

The factors to be considered include the parties’ earning ability, age, education, the duration of the marriage, the standard of living enjoyed during its course and the value of the parties estates. See § 61.08(2), Fla. Stat. (2000). The trial court considered these factors and applied them to the facts. The trial court found the parties were married fourteen years and considered that to be a long term marriage. The trial court considered the parties’ earning ability and education and found the 'husband to be the sole income earner and found that, although the former wife had a college degree, she could not work lawfully in the United States in an income-producing job due to her immigration status. The trial court also concluded that the parties enjoyed a very comfortable standard of living, both parties were relatively young, the former wife was thirty-five and the former husband was forty-five, and both were in good health. We find the award of permanent alimony was within the discretion of the trial court. See Canakaris, 382 So.2d at 1202.

The former husband next contends that the trial court erred in its equitable distribution by awarding him the non-marital company, Astra and then balancing that award by giving the former wife marital assets. The former husband’s argument is not persuasive.

The trial court properly found that Astra was a marital asset capitalized with marital funds. The former husband informed the Department of Justice in his L-l Visa application that Astra was capitalized by the parties themselves, with $300,000 from their joint Swiss Lake Merrill Lynch account. We conclude that the trial court properly offset the award of the marital asset, Astra by awarding the former wife other marital property to balance the equitable distribution. See § 61.075(9), Fla. Stat. (2000); Canakaris, 382 So.2d at 1203 (Fla.1980).

The former wife contends on cross-appeal that the trial court erred in its equitable distribution by awarding her less than 50% of the proven marital assets. The gravamen of the former wife’s claim of error is that the trial court failed to consider the former husband’s dissipation of the parties’ marital assets when determining equitable distribution. The trial court found that the former husband dissipated marital funds and the court took this into consideration when determining the equitable distribution. This is evidenced by the trial court awarding the former wife the proceeds of the sale of the parties’ two homes and a lump sum amount. We will not disturb this sound exercise of the trial court’s discretion. See Canakaris, 382 So.2d at 1203.

The former husband’s third point on appeal is that the trial court erred in ordering the former husband to pay the former wife’s attorney’s fees. The trial court’s findings of fact support the award of attorney’s fees to the former wife. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

The trial court found that the former husband engaged in litigation misconduct including testifying in a misleading fashion, not being forthright with his financial state of affairs, and failing to abide by the court’s orders causing the wife to engage in unnecessary additional litigation. The court- also found that this litigation misconduct caused the former wife to incur substantial costs. The trial court further concluded that the former husband is in a superior financial position to pay the former wife’s attorney’s fees as the former wife did not work and was unable to work because of her immigration status. We find the trial court did not abuse its discretion in awarding attorney’s fees to the former wife. See Binker v. Binker, 781 So.2d 505 (Fla. 3d DCA 2001); Baker v. Baker, 754 So.2d 754 (Fla. 3d DCA 2000).

Next, the former wife contends the trial court erred in the amount of income it imputed to the former husband and in denying the former wife’s motion to deviate upwards from the child support guidelines. We disagree on both issues.

The court may impute income to a spouse based on past earnings and earning potential. See Warren v. Warren, 629 So.2d 1079 (Fla. 3d DCA 1994). Here, the court determined that the parties’ living expenses prior to separation were between $15,000.00 and $20,000.00 per month. The court also found that the former husband supplemented his income by withdrawing money from multiple off-shore accounts and that he received monthly funds from his mother. The former husband also listed an income of $20,000.00 on his mortgage loan application. Based on the foregoing, there was no error in the imputation of $20,000 per month in income to the former husband. See Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1998).

The trial court also did not err in determining child support. The determination of child support is within the sound discretion of the trial court, subject to the statutory guidelines and the test of reasonableness. See Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989). The trial court correctly calculated each parties’ obligations under the child support guidelines based on the former husband’s $20,000 per month imputed income. The court then deviated from the guidelines and ordered the former husband to pay $1,000 per month in child support, as opposed to $1,354 per month because the former husband pays for the children’s private school expenses. This was not error. See Thomas, 776 So.2d at 1094. The trial court’s finding will not be disturbed on appeal because no abuse of discretion has been shown. See Canakaris, 382 So.2d at 1203.

The former wife also contends on cross-appeal that the trial court erred in denying her claim for constructive fraud against the mother. In support of this claim, the former wife alleges that the mother was a director of one of the parties’ marital accounts, Swiss Lake Corporation and a signatory of another, Colonial Bank. The former wife alleges that the mother used these roles to dissipate these marital accounts and as such abused her fiduciary relationship with the former wife.

The trial court found that the accounts were depleted in violation of the court’s injunction which ordered the former husband and the mother not to transfer or dissipate any funds from any of their accounts. However, the trial court found there was no evidence that the mother intended to become a fiduciary or assume a confidential relationship with the former wife and determined that the former husband was in control of the finances and dissipated the funds. We find the trial court properly decided this issue.

Constructive fraud occurs when a duty under a confidential or fiduciary relationship has been abused or where an unconscionable advantage has been taken. See Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998) citing Rogers v. Mitzi, 584 So.2d 1092 (Fla. 5th DCA 1991). Constructive fraud may be based on a misrepresentation or concealment, or the fraud may consist of taking an improper advantage of the fiduciary relationship at the expense of the confiding party. See Beers, 724 So.2d at 116.

Here, the court found that it was the former husband, and not the mother, who was in control of the finances and who orchestrated the dissipation. There is nothing in the record to refute this finding. Furthermore, where there is no specific transaction or agreement between the spouses, the dissolution of marriage statute provides the exclusive remedy where one spouse has intentionally dissipated marital property during the marriage. See Beers, 724 So.2d at 116. Here, there is no record of an agreement between the parties and the trial court amply compensated the former wife through equitable distribution for the former husband’s dissipation of marital assets. We find that the court did not abuse its discretion. There is no merit to this contention nor the remaining issues raised by the former wife in her cross-appeal.

In conclusion, finding no error in the former wife’s remaining issues and finding no abuse of discretion in the rulings below, we affirm the final judgment of dissolution of marriage in all respects and affirm the final judgment determining the former husband’s child support obligation.

Affirmed.

      . The former husband contends that under the Cuban Residency Act, the former wife could qualify to obtain employment but presented no evidence on the Act or its application to the former wife.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Alejandoro GOPAR-SANTANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5004.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.
    Rehearing Denied Nov. 18, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Alejandoro Gopar-Santana seeks review of his judgment and sentence for two counts of trafficking in and one count of possession of cocaine. Gopar-Santana argues that the trial court abused its discretion in allowing a detective who conducted the sting operation that led to his arrest to interpret the audiotapes of the Spanish conversations for the jury. We agree that the trial court abused its discretion in allowing the interpretation but conclude that the error was harmless.

The charges in this case arose after Detective Torres initiated a series of drug purchases from Gopar-Santana in Spanish. Detective Torres’ conversations with Go-par-Santana were audiotaped, and the final transaction was videotaped. When these tapes were played for the jury, Detective Torres was permitted to interpret them in English over the objection of Go-par-Santana, who himself had an interpreter present at trial. Detective Torres did not provide a literal interpretation of the tapes for the jury but instead filled in the gaps where the tapes were inaudible with his own description of what would have been happening.

A trial court’s decision to allow for the use of an interpreter is generally a discretionary matter; however, a trial court abuses its discretion if the interpreter is not qualified, sworn, and impartial. Ortega v. State, 721 So.2d 350, 351 (Fla. 2d DCA 1998); see also § 90.606(1)(a), (2), Fla. Stat. (2001) (requiring an interpreter to be “duly qualified” and sworn and providing that the interpreter will be subject to the rules of evidence relating to witnesses). Not only was Detective Torres not sworn as an interpreter, he was not impartial because he was the main participant in the sting operation that resulted in Gopar-Santana’s arrest. The danger of proceeding without a sworn and impartial interpreter is illustrated by the fact that Detective Torres paraphrased parts of the interpretation by offering testimony of his recollection of events instead of a true interpretation. While we agree with Gopar-Santana that the trial court abused its discretion in allowing the interpretation, we conclude that the error was harmless in light of the other admissible evidence to support the convictions.

Affirmed.

FULMER and SILBERMAN, JJ., Concur.

      . Section 90.606(3), Florida Statutes (2001), requires that the interpreter take an oath that he or she will make a "true interpretation” of the testimony.


text:
    Richard RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1175.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2003.
    Rehearing Denied Nov. 20, 2003.
   PER CURIAM.

Rivera challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment as to three claims and reverse as to the remaining claim.

As one ground for relief, Rivera alleged that the trial court deprived him of his right to counsel and violated his right to be free from double jeopardy by resentencing him without the presence of counsel more than sixty days after he was originally sentenced. The trial court summarily denied this claim on the basis that the proceeding was not a resentencing but rather was simply a clarification of the sentence to which defense counsel had stipulated prior to leaving the courtroom.

The record reflects that the proceeding was in fact conducted for the purpose of clarifying the sentences imposed. However, at the clarification hearing in response to a question by Rivera’s probation officer, the State told the trial court, “That was the other thing. You had ordered drug probation, but it’s also sex offender probation.” The trial court then agreed that “it’s both.” The amended sentence imposes sex offender probation in addition to drug offender probation.

The transcript of the original sentencing hearing reveals that the trial court imposed drug offender probation but did not impose sex offender probation. Instead, the trial court announced that Rivera would be on drug offender probation and that “[h]e is also to participate in the sex offender program, to successfully complete same. He is to have no contact with the victim.” The trial court never stated that it was imposing sex offender probation, and these two conditions are but two of the many conditions encompassed in the standard conditions of sex offender probation. See § 948.03(5), Fla. Stat. (2000). Thus, the amended sentence deviates from the trial court’s original pronouncement of sentence and increases Rivera’s sentence in violation of double jeopardy.

Because the amended sentence improperly deviates from the original oral pronouncement and constitutes an increased sentence, we reverse the denial of Rivera’s motion on this issue and remand for correction of the sentence to conform to the sentence as orally announced.

Affirmed in part, reversed in part, and remanded with directions.

FULMER, VILLANTI, and WALLACE, JJ., Concur.

      . We also have serious concerns about the propriety of defense counsel's stipulating to "clarifications” of a defendant’s sentence and then leaving the courtroom. This case illustrates what can happen when no one is present to represent the defendant's interests at a "clarification” hearing.


author: SALCINES, Judge.

text:
    STATE of Florida, Appellant, v. Marlon Deltwan ODOM, Appellee.
    No. 2D02-3270.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   SALCINES, Judge.

The State appeals an order granting Marlon Deltwan Odom’s motion for judgment of acquittal after a jury found him guilty of possession of cocaine. The trial court erred in granting Odom’s motion because the evidence was sufficient to support the jury’s verdict in light of the inferences or presumptions which arise from one’s exclusive possession of an automobile in which illegal contraband is found. See Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003). Hence, we reverse the order acquitting Odom of possession of cocaine.

Odom was found guilty, by a jury, of possession of cocaine as well as possession of marijuana. Following the reception of the verdict, Odom filed a motion entitled “Motion for Judgment Notwithstanding Verdict.” The argument contained within his motion challenged the sufficiency of the evidence to withstand his motions for judgment of acquittal for possession of cocaine. See Fla. R.Crim. P. 3.380. The trial court granted Odom’s motion and acquitted him of possession of cocaine.

On appeal, the parties maintain that the present case concerned Odom’s constructive, rather than actual, possession of cocaine in violation of section 893.13(1)(a), Florida Statutes (2001). The cocaine was found in an automobile in a closed black film cannister lodged between the driver’s seat and the console of the car. Odom was the driver and the sole occupant of the automobile when it was stopped.

In order to establish constructive possession, the State had to prove that Odom, whose offense took place on October 2, 2001, had dominion and control over the contraband, had knowledge that the contraband was within his presence, and had knowledge of the illicit nature of the contraband. See Garcia, 854 So.2d at 762-64; but see Lee v. State, 835 So.2d 1177, 1178 n. 1 (Fla. 4th DCA 2002) (noting that the legislature enacted section 893.101, Florida Statutes (2002), which has prospective application, to clarify that knowledge of the illicit nature of the controlled substance is not an element of possession but is, rather, an affirmative defense). As the sole occupant and driver of the vehicle, Odom had exclusive possession of the vehicle creating an inference of his dominion and control over the contraband contained therein particularly since the contraband was found lodged between the driver’s seat and the console of the car. See Lee, 835 So.2d at 1180. Likewise, knowledge of the presence of the contraband and its illicit nature could be inferred or presumed because Odom was in exclusive possession of the automobile when it was stopped. See Garcia, 854 So.2d at 762-64; see also Lee, 835 So.2d at 1180.

At trial, Odom did not present any witnesses. Odom developed his defense theory during cross-examination of the State’s witnesses. Odom’s defense was based on the assertion that the automobile in which the drugs were found was a rental vehicle for which his sister , had signed the lease as a co-lessee. While the presumption of guilty knowledge may be overcome by evidence tending to show a lack of guilty knowledge, merely demonstrating that others theoretically had access to the automobile would not necessarily negate the presumption. See Garcia, 854 So.2d at 762-64. Indeed, such evidence appears to present a .jury question concerning whether the possession was exclusive. See Parker v. State, 641 So.2d 483 (Fla. 5th DCA 1994). In the present case, the jury rejected Odom’s defense theory. 762-64

In matters such as the present, which concern a trial court’s order granting a motion for judgment of acquittal entered after a jury’s verdict of guilt, this court conducts a de novo review of the record to determine whether sufficient evidence supports the jury’s verdict. See State v. Powell, 636 So.2d 138 (Fla. 1st DCA 1994) (finding competent substantial evidence in the record to support the jury’s guilty verdict, the court reversed order granting motion for judgment of acquittal).

A motion for judgment of acquittal is- designed to challenge the legal sufficiency of the evidence. State v. Williams, 742 So.2d 509, 510 (Fla. 1st DCA 1999). If the State presents competent evidence to establish each element of the crime, a motion for judgment of acquittal should be denied. Id. at 510. A trial court should not grant a motion for judgment of acquittal unless the evidence, when viewed in a light most favorable to the State, fails to establish a prima facie case of guilt. Id.

In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact finder might fairly infer from the evidence. Williams, 742 So.2d at 510 (citing Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). It is the trial judge’s task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. Williams, 742 So.2d at 510 (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)).

In the present case, there was sufficient evidence to support the jury’s verdict of guilt. Thus, the trial court erred in granting Odom’s motion for judgment of acquittal for possession of cocaine.

Reversed and remanded for further proceedings consistent herewith.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Odom was also found guilty of possession of marijuana but he does not challenge his conviction for that offense.

      . Odom was immediately arrested, after the vehicle was stopped, pursuant to an outstanding warrant apparently on an unrelated matter. The search of the vehicle was conducted incident to his arrest.


author: POLSTON, J.

text:
    Danny L. REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3505.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Rehearing Denied Jan. 5, 2004.
    Gary Lee Printy, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   POLSTON, J.

Appellant Danny L. Reeves appeals his conviction of one count of simple battery (a lesser-included offense to the charged offense of sexual battery on a child less than twelve years of age by a person eighteen years of age or older), one count of showing obscene material to a minor, and one count of lewd or lascivious conduct. Appellant argues that the trial court erred by admitting into evidence the child victim’s videotaped interview by a member of the child protection team. We reject this argument without further comment. Appellant also argues that the trial court improperly limited his cross-examination of the victim by granting the State’s motions in limine. Appellant sought to cross-examine the victim (i) regarding alleged false prior accusations of sexual misconduct that she had made against her father, and (ii) to attack the victim’s credibility by her statement that she saw Jesus. We affirm the trial court’s evidentiary rulings.

7. Prior False Accusations

Generally, other than evidence of prior convictions under section 90.610(1), Florida Statutes, credibility may not be attacked by proof that the witness has committed specific acts of misconduct which bear on the truthfulness of the witness. See Fernandez v. State, 730 So.2d 277, 282 (Fla.1999); Baker v. State, 804 So.2d 564, 567 (Fla. 1st DCA 2002); Charles W. Ehrhardt, Florida Evidence § 610.8 at 540-41 (2003 ed.).

However, appellant argues that an exception applies because the victim previously falsely accused her father of sexual misconduct, citing Cliburn v. State, 710 So.2d 669 (Fla. 2d DCA 1998) and Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988). In Cliburn and Jaggers, the victims admitted that they had previously made false statements. 710 So.2d at 670, 536 So.2d at 327. In this case, the victim has not recanted her statements, so the exception recognized by the Second District Court of Appeal is not applicable. Therefore, we do not address whether such an exception is appropriate. See Charles W. Ehrhardt, Florida Evidence § 610.8 at 541 (2003 ed.)(“Occasionally decisions ignore the limitation and permit impeachment with prior acts of misconduct of a witness when they involve prior false accusations of a crime by a witness,” citing Clibum and Jaggers).

II. Seeing Jesus

The appellant sought to cross-examine the victim about her statements in a deposition that when she told her mother what had happened to her, she saw Jesus standing in the room, demons were cast out of her, and she rolled on the floor and “spit out the evil that Uncle Dan [the appellant] put in me.” The appellant argued at trial that the trial court should allow this testimony because it demonstrated that the victim did not have the ability to perceive the difference between fantasy and reality. The trial court did not abuse its discretion by refusing to allow the cross-examination, pursuant to section 90.611, Florida Statutes.

Section 90.611 states that “[e]vidence of the beliefs or opinions of a witness on matters of religion is inadmissible to show that the witness’s credibility is impaired or enhanced thereby.” The appellant’s stated purpose in introducing this testimony was so the jury would find the victim’s experiences and practices so unusual that it would consider them “fantasy,” thereby impairing the victim’s credibility. Even though appellant considered seeing Jesus to be so unconventional or unusual so as to be “fantasy,” section 90.611 does not permit evidence to be admitted that discloses the witness’s practice of “unconventional or unusual religion.” See Charles W. Eh-rhardt, Florida Evidence § 611.1 at 543 (2003 ed.)(citing United States v. Sampol, 636 F.2d 621, 666 (D.C.Cir.1980)(ruling that “[t]he fact that [the witness] professed adherence to a religion which is not commonly shared does not prevent the application of the rule”)); see also United States v. Kalaydjian, 784 F.2d 53, 56 (2d Cir.1986)(rejecting attempt to distinguish between cross-examining a witness regarding his religious beliefs and cross-examining him regarding conduct that is significant because of the witness’s religious beliefs).

Therefore, we conclude that the trial court did not err by granting the State’s motions in limine.

AFFIRMED.

BOOTH and WEBSTER, JJ., concur.

      . On appeal, appellant argues that the trial court erred by refusing to allow the statement that the victim saw Jesus standing in the room, but does not raise the exclusion of the other statements as error.

      . Federal Rule of Evidence 610 is virtually the same as section 90.611. Therefore, federal decisions construing Rule 610 are persuasive. See Hall v. Oakley, 409 So.2d 93, 97 (Fla. 1st DCA 1982).


author: FULMER, Judge.

text:
    Scotty WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5617.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.
    Scott K. Spivack of Scott K. Spivack, P.A., Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Scotty Williams appeals his convictions for burglary with a firearm, aggravated assault with a firearm, and robbery with a firearm. We reverse and remand for a new trial because the trial court failed to conduct an adequate Nelson inquiry.

On the morning that jury selection was to begin, court-appointed counsel for Williams informed the court that Williams wanted to discharge counsel and ask the court for time to hire a private lawyer. Without making any inquiry as to the basis for the request, the trial court denied it, stating that Williams’ request was an ill-timed attempt to delay the case.

Because the trial court failed to ascertain a basis for Williams’ request to change attorneys, the denial of that request was an abuse of its discretion. See Rios v. State, 696 So.2d 469 (Fla. 2d DCA 1997) (reversing based on Nelson where the appellant was not given the opportunity to express a complaint about his counsel’s performance); see also Reid v. State, 826 So.2d 414, 415 (Fla. 2d DCA 2002) (“Reid was never given any opportunity to explain why he believed his counsel was not competently representing him.”). Our disposition on this issue renders moot the other issues raised by Williams on appeal.

Reversed and remanded for a new trial.

ALTENBERND, C.J., and WALLACE, J., Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Joseph JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-276.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2003.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr. Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Joseph Jones appeals a three-year minimum mandatory sentence for trafficking in cocaine under section 893.135(l)(b), Florida Statutes (2000), for an offense committed on February 19, 2001. The minimum mandatory sentencing provision was added by chapter 99-188, Laws of Florida, which this court declared unconstitutional as a violation of the single subject requirement. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (table decision). This court has also held that the subsequent reenactments of these provisions cannot be retroactively applied without violating the Ex Post Facto Clauses in the United States and Florida Constitutions. Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), review granted by State v. Franklin, Nos. SC03-413 & SC03-532 (Fla. Sept. 19, 2003). Because the offense date falls within the Taylor window, see Green, 839 So.2d at 750 n. 1, we reverse the minimum mandatory sentence. We also certify that Taylor and Green conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, Nos. SC03-413 & SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003).

Sentence reversed; remanded for resen-tencing; conflicts certified.

WHATLEY and COVINGTON, JJ„ Concur.


author: POLEN, J.

text:
    GREAT HARBOUR CAY REALTY AND INVESTMENT COMPANY LIMITED, Appellant, v. M. Phillip CARNES, Ann T. Carnes, and T.D. Fender, Appellees.
    No. 4D99-1615.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Rehearing Denied Jan. 22, 2004.

      Gerald F. Richman, Mark A. Romance, and Michael J. Napoleone of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., West Palm Beach, for appellant.
    Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., Edna L. Caruso and Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellees.
   POLEN, J.

This appeal arises from a jury verdict awarding three million dollars in damages against the appellant based on a severance provision in an employment contract. The trial court subsequently denied appellant’s motion for new trial, motion for judgment notwithstanding the verdict, and motion for remittitur. We affirm in part and reverse in part.

Great Harbour Cay Realty and Investment, Etc., (“Cay Realty”) is a Bahamian Corporation. The owner, sole shareholder and decision maker, of that company is T.D. Fender. In 1989 M. Phillip Carnes was hired by Fender to assist in the development of a Bahamian island. Carnes began working for Fender in 1989 pursuant to an oral agreement. On July 1, 1991 Carnes and Fender executed a written employment contract. In part, the employment contract contained a severance provision that read as follows:

A. This Employment Agreement may be terminated by GHCR & I by 30 day written notice to Executive with or without cause upon the following conditions:
1. If this agreement is not terminated by GHCR & I before October 1,1991, the Executive shall be entitled to the following upon termination:
i. $42,500.00 representing (6) months salary and $100,000.00, making a total of $142, 500.00 severance pay;
ii. The severance pay provided for in I) above shall be payable in a lump sum within 30 days of termination;
iii. If this agreement is not terminated by GHCR & I by October 1, 1991, Executive shall be entitled to a 10% interest in GHCR & I payable when T.D. Fender has returned to him his entire investment in the GHCR & I.
iv.In the event this Agreement is terminated by GHCR & I on or before October 1,1991, the parties hereto are relieved of any and all liability each to the other.

After Carnes was terminated he sought to collect on this severance provision. The issue at trial became the value of Cay Realty at the relevant time so that Carnes’ severance pay could be accurately calculated. Fender took the position that the company had no value and therefore Carnes was entitled to nothing. Carnes on the other hand argued that the company was worth 30 million dollars.

At the conclusion of the trial, the trial court determined that the jury needed to decide two issues: (1) whether Carnes proved the value of GH Realty as of September of 1992, and if so (2) what was that value? The court commented that

There’s very little evidence of what this ten percent is worth. I think that would be an appropriate interrogatory question for this jury to specifically answer, if that would be helpful.
There is very little evidence. What evidence there is is in conflict. And so we’ll let the jury decide that, as both sides have urged, as to whether Plaintiff has proven its case that it is entitled to, whether its ten percent of anything.
If they believe Mr. Fender it’s ten percent of nothing. It’s ten percent of a minus value. If they believe Mr. Carnes, it’s ten percent of 10 million or ten percent of 30 million, based basically on what Mr. Fender has said.

The jury returned a verdict finding that Carnes had proved the value of the company to be 30 million dollars. For the reasons explained below we reverse that judgment and send the case back to the trial court for a new trial.

Cay Realty raises three issues on appeal. First, it argues the trial court erred in denying the motions for directed verdict and motion for judgment notwithstanding the verdict. We are unpersuaded by this argument and affirm the court’s ruling in this regard without discussion. Cay Realty also argues that the trial court erred in dismissing its fraudulent inducement counter claim. We affirm the ruling of the trial court on that issue as well. However we agree with Cay Realty’s third argument that the trial court committed reversible error in its evidentiary rulings.

Cay Realty asserts, and we agree, that the trial court erred in preventing them from introducing evidence of a 1995 Crown Grant. A Crown Grant is a Bahamian document executed in land transfers. Carnes contended that a Crown Grant was executed in 1992 which evidenced large amounts of land owned by Cay Realty. However, Cay Realty contended the 1992 Crown Grant was improper and a correct Crown Grant, which actually transferred the property, was not executed until 1995.

At trial, Fender was asked if Carnes ever procured the Crown Grant. Plaintiffs counsel objected on relevance grounds. Ultimately the court concluded that the 1995 Crown Grant was not relevant as to any of the issues the jury would decide and prohibited Cay Realty from introducing it.

“As a general rule, relevant evidence is that which tends to prove or disprove a material fact. All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, or unless otherwise excluded by law.” Grau v. Branham, 761 So.2d 375 (Fla. 4th DCA 2000) (citing §§ 90.401, 90.402, 90.403, Fla. Stat. (1997)).

It is illogical to suggest that the 1995 Crown Grant was irrelevant to the issue of what Cay Realty was worth at the time Carnes was terminated. The jury was specifically charged with determining the value of Cay Realty. Certainly the nature of this document had bearing on the assets of the company and on the date at which those assets were acquired. Its relevance is evident by the fact that the property contained in the Crown Grant, the date the Crown Grant was procured, and the named corporate entity in the Crown Grant were discussed at length by both parties. Thus we conclude that the trial court abused its discretion in finding that the document was irrelevant. We find this conclusion further supported by the lack of documentary evidence as a whole in this trial.

Carnes contends that any error was harmless. “A trial court’s error in admitting or rejecting evidence does not necessarily constitute harmful error. The trial court’s judgment should be reversed only where it appears that such error injuriously affected the substantial rights of the complaining party.” Centex-Rooney Const. Co., Inc. v. Martin County, 706 So.2d 20 (Fla. 4th DCA 1997) (quoting Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So.2d 1369, 1372 (Fla. 1st DCA 1992) (internal citations and quotations omitted)).

In Dempsey v. Shell Oil Co., 589 So.2d 373 (Fla. 4th DCA 1991), where this court held that improper impeachment evidence was allowed in, this court also held that because the case turned on an issue of credibility, the error could not be deemed harmless.

The case at bar is akin to Dempsey in that it boiled down to an issue of credibility. Carnes relied nearly exclusively, and apparently most heavily, on Ms testimony of what Fender told him the company was worth. Although we recognize that testimony was elicited regarding Crown Grant, we find the trial court’s error was not harmless. It is pertinent that neither the 1992 or the 1995 Crown Grant was entered in to evidence. Moreover as the trial court aptly summarized, there was very little evidence in this case whatsoever. We conclude that the exclusion of this particular evidence injuriously affected the substantial rights of Cay Realty and therefore constituted harmful error mandating reversal.

Cay Realty next alleges the trial court erred by excluding the testimony of its Bahamian lawyer, Obie Pindling. We agree. One of Cay Realty’s assertions was that Cay Realty was a separate corporate entity from Fender’s other corporations. Carnes, on the other hand, asserted that Cay Realty was a parent corporation or at minimum that at some point it would become a parent corporation of Fender’s other corporations. The relationship of Cay Realty to Fender’s other corporations went directly to proving what assets Cay Realty had at the time Carnes was terminated.

Cay Realty sought to have its lawyer, Pindling, testify regarding the relationship of Cay Realty and Fender’s other corporate entities. However Pindling was unavailable that day and out of state. After Carnes refused to agree to permit Pindling to testify via telephone, Cay Realty sought to publish excerpts of Pindling’s deposition testimony or in the alternative sought a one-day continuance to allow Pindling to testify. The court denied both requests.

The proffered portion of Pindling’s deposition included Pindling’s testimony that Cay Realty was never the parent corporation of Fender’s other corporations and that the land transfer through the Crown Grant did not occur until 1995. The trial court sustained the relevance objection, determined that the proffered testimony did not go to the valuation of the company, and that prohibiting the testimony would not limit the defense’s ability to present evidence regarding the value of the company because Fender had the opportunity to testify on the same matter.

In Ziegler v. Klein, 590 So.2d 1066 (Fla. 4th DCA 1991), this court stated:

A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal. However, when undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error.

Once again, we feel compelled to refer to the trial court’s recognition of the lack of evidence presented in this case. The proffered testimony makes abundantly clear that Pindling was going to provide further insight in to the assets owned, or not owned, by Cay Realty at the time of Carnes’ termination. This issue was relevant and the failure to grant a one day continuance, or at minimum to permit the admission of the deposition testimony, was an abuse of the trial court’s discretion, as it prevented Cay Realty from fairly presenting its case.

Last, Cay Realty claims the trial court erred as a matter of law in dismissing its fraudulent inducement claim. On its cross-claim, Cay Realty sought to rescind the employment contract based on allegations that Carnes fraudulently induced Cay Realty to enter into the contract by misrepresenting his qualifications. The trial court dismissed this claim based on the trial court’s conclusion that it appeared to be a legal impossibility to rescind the contract and place the parties where they would have been had there been no contract.

In, Anchor Bank, S.S.B. v. Conrardy, 763 So.2d 360 (Fla. 4th DCA 1998), this court held that it is: well-settled law in Florida that a condition precedent to rescission is that the other party be returned to his status quo. Generally, a contract will not be rescinded even for fraud when it is not possible for the opposing party to be put back into his pre-agreement status.

The general rule is subject to an exception when the inability of one party to restore is caused by the very fraud perpetrated by the other party. In this situation, the defrauded person is excused from restoration if the inability to restore is caused by the wrongdoer’s conduct (quoting Bass v. Farish, 616 So.2d 1146, 1147 (Fla. 4th DCA 1993))

In dismissing the fraud claim, the trial court noted that neither counsel was able to show the court a case where an employment contract had been rescinded. On Appeal Cay Realty asserts error based on the trial court’s failure to recognize the exception to the status quo precedent noted above. However, Cay Realty is unable to demonstrate recision or the exception being applied in an employment contract situation. As a result, we find no error in the trial court’s dismissal and affirm that ruling.

REVERSE IN PART, AFFIRM IN PART, and REMAND for further proceedings consistent with this opinion.

FARMER, C.J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.


author: MONACO, J. GRIFFIN, J.,

text:
    Edwin TORO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-902.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Rehearing Denied Jan. 9, 2004.

      Brett McIntosh of Sypula — McIntosh, Sarasota, for Appellant.
    Edwin Toro, Bushnell, Pro Se.
    No appearance for Appellee.
   MONACO, J.

In 1993, Edwin Toro was convicted of three counts of sexual battery, 28 counts of sexual activity with a child, and one count of battery. He was acquitted for four other charges. The victim was his minor stepdaughter. Mr. Toro’s plenary appeal from his judgment and sentence was affirmed in Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). In 1996, he filed a Rule 3.850 motion with the trial court asserting that his trial counsel conducted an inadequate pre-trial investigation. The trial court denied the motion, and this court affirmed. Toro v. State, 689 So.2d 1086 (Fla. 5th DCA 1997). A petition by Mr. Toro for a writ of habeas corpus was denied in 1998. Mr. Toro now appeals the order of the trial court summarily denying his second Rule 3.850 motion, in which he alleges that his sentence should be vacated in light of newly discovered evidence. Because the evidence is not newly discovered, we affirm.

At trial, Mr. Toro’s stepdaughter testified in excruciating detail, covering at least 100 pages of transcript, concerning the sexual crimes purportedly committed by Mr. Toro and suffered by her from the time she was nine years old until she was 15 years old. She testified further that she had not been sexually active with any other person during that time. The defense brought forth evidence, however, that the victim had been sexually involved with a boyfriend. Specifically, a medical professional employed by the Department of Health and Rehabilitative Services said that when the victim sought an abortion, the victim reported that she had sexual relations with a boyfriend. A second witness, an expert on sexual abuse, also testified that the victim told her she was having relations with a boyfriend. All of this testimony was before the jury when it evaluated the evidence.

In Mr. Toro’s current Rule 3.850 motion he attaches a sworn statement from a gentleman named Oscar Ortiz acknowledging that Mr. Ortiz had a sexual relationship with the victim during a four month period near the end of the alleged abuse of the victim by Mr. Toro. Mr. Toro says in his motion that the affidavit shows that “someone other than the defendant could have been responsible for [the victim’s] pregnancy,” and that it is “directly inconsistent with [the victim’s] statement that prior to her abortion in 1989, she had had no sexual relations with anyone other than the defendant.”

The fact is that the victim in the present case was cross-examined by Mr. Toro’s counsel regarding her other sexual activities, and other witnesses testified that she told them that she had relations with a boyfriend. Setting aside the fact that having sex with a boyfriend does not mean that Mr. Toro was not also forcing himself upon the victim, simply putting a name to that boyfriend, does not amount to new evidence.

Moreover, as the trial court pointed out, Mr. Toro fails to establish that the “newly discovered evidence” could not have been earlier ascertained through the exercise of due diligence. See generally, Jones v. State, 591 So.2d 911 (Fla.1991). Although Rule 8.850 claims that could have been raised in a prior postconviction motion are, as a general proposition, procedurally barred, the supreme court has held that a defendant may file successive postconviction relief motions that are based on newly discovered evidence. See White v. State, 664 So.2d 242, 244 (Fla.1995). In order for the purported evidence to be “newly discovered,” however; a defendant must show that the facts upon which the motion is premised could not have been discovered with due diligence and raised in an initial Rule 3.850 motion. See Owen v. Crosby, 854 So.2d 182 (Fla.2003).

The record before us demonstrates that Mr. Toro was aware of the possible relationship between Mr. Ortiz and his stepdaughter as early as July of 1995. We know this because Mr. Toro’s earlier Rule 3;850 motion asserted, that if his counsel had been more diligent in his pretrial investigation, he “would have discovered that [the victim] was sexually active with boyfriends Oscar Ortiz and Hilton Ayala at relevant times.” Thus, the very issue now raised under the newly discovered evidence theory was considered and rejected by this court in 1996 under an inadequacy of counsel theory.

In the final analysis, the jury heard extensive testimony from the victim, the defendant, two witnesses who said the victim was having unprotected sex with other persons, a witness who saw Mr. Toro on top of his stepdaughter apparently having sex, and many others. The fact is that the jury believed the stepdaughter, despite the allegations of her other sexual activities, and did not believe Mr. Toro. Nothing Mr. Toro has brought to us in the current Rule 3.850 appeal compels us to second-guess the jury’s determination at this late date.

AFFIRMED.

THOMPSON, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

Edwin Toro [“Toro”] appeals the denial of his motion for post-conviction relief based on newly discovered evidence. The motion was denied without a hearing. Because I conclude this claim merits a hearing, I would reverse.

Background

In 1979, Toro, at age sixteen years old, met twenty-year-old Madeline Muniez [“Madeline”] in New York. Madeline at that time had two children, D.T. and J.T. Toro’s relationship began with Madeline and they moved in together in New York and eventually were married to each other in Milford, Massachusetts in 1984. They moved to Orlando, Florida, in 1985 and remained married until 1990. Both J.T. and D.T. were formally adopted by Toro during the marriage. They also had a son, E.T., born during the marriage. In 1993, Toro was convicted of multiple counts of sexual battery on a child and sexual activity with a child and sentenced to life in prison., D.T. was the alleged victim.

D.T. testified at trial that the sexual abuse or assaults upon her by Toro began at nine years of age in Milford, Massachusetts, which included acts of oral sex, both fellatio and cunnilingus, vaginal sexual intercourse and anal sexual intercourse. She testified that these above described sexual activities occurred several times a week or daily, and all of these types of sexual activity occurred during most of her sexual encounters with Toro. She testified there were a couple of periods of inactivity when Toro, Madeline, D.T. and brother J.T. moved from Milford, Massachusetts, to Orlando, Florida. In March 1986, the family moved to a single-family residence on Moonglow Boulevard in Orlando. The amended information alleged that Toro committed thirty-seven counts of sexual battery on D.T. at this residence.

D.T. testified that, at this residence, Toro had sexual relations with her from 1986 through May 21, 1990, on an average of approximately three hundred days a year. She described having sexual relations on a daily or every other day basis with Toro. She described having oral sex, both fellatio and eunnilingus, vaginal intercourse and anal or rectal intercourse on most of these occasions. She said they had sexual intercourse in most of the rooms of the house.

On May 28, 1990, while D.T. and her school girlfriend, Cynthia Serrano, were skipping school, D.T. told Cynthia that Toro had been sexually molesting her. D.T. testified that prior to this date, she had not been permitted to date or have boyfriends and that she never had sexual relations with anyone other than Toro. D.T. said that she had kept quiet about the abuse because he was violent toward her and other family members and she was afraid.

Madeline, D.T.’s mother, testified at trial that she was never aware of any sexual abuse or molestation until her daughter’s call to her at work from Cynthia Serrano’s home on May 23, 1990. D.T. was hysterical and crying and told her mother over the telephone of Toro’s sexual assaults. The police were called on this date and the investigation began.

For reasons never satisfactorily explained, D.T. was not medically examined. There is some suggestion that this was because the child protection team did not like to examine children older than seven or because D.T. had reported to Linda Harju [“Harju”], the HRS case worker, that she had recently begun having sex with a “boyfriend.” At trial, D.T. denied making this statement to Harju.

Because there was no physical evidence, the State’s case depended on D.T.’s testimony and her credibility was critical. Toro testified at trial, denying that he ever had sexual relations of any sort with D.T. and denying any wrongdoing with regard to her.

Toro’s claim of “newly discovered” evidence consisted of a sworn statement given by one Oscar Ortiz [“Ortiz”], who described an active sexual relationship with D.T. beginning in February 1989 and continuing through the events of May 1990 and beyond. The significant factual content of this sworn statement by Ortiz was summarized by Toro in his motion:

a. He began dating [D.T.] in February 1989;
b. [D.T.] was 14 at the time;
c. [D.T.] had been going out with another gentleman by the name of Hilton Ayala;
d. Hilton Ayala had indicated to Oscar that he and [D.T.] had had sex;
e. Oscar Ortiz began having sex with [D.T.] approximately two days after they began dating;
f. Oscar Ortiz and [D.T.] continued to have a sexual relationship from February 1989 to June 1989, and then after;
g. Oscar and [D.T.] would have sex every day or every other day;
h. Oscar and [D.T.] would skip school to have sex;
i. Oscar would also sneak into the Toro home to have sex;
j. Oscar and [D.T.] were having unprotected sex;
k. [D.T.] was happy-go-lucky and did not indicate problems with Edwin Toro;
l. Edwin Toro was strict with [D.T.] about school and imposed rules against dating;
m. After [D.T.’s] allegations, Edwin Toro was gone
n. When Edwin Toro moved out, Oscar Ortiz moved in at the request of [D.T.’s] mother;
o. After Edwin Toro left, [D.T.’s] mother was often out at clubs;
p. After Edwin Toro left, [D.T.] was able to date freely and quit school;
q. Oscar Ortiz did not learn that Edwin Toro had been arrested until 1995;
r. Ortiz was previously approached by a detective working on behalf of Edwin Toro, but claimed to know nothing;
s. After seeing a transcript of [D.T.’s] untruthful testimony at trial, Oscar Ortiz decided to come forward.

If believed, the testimony of Oscar Ortiz would fundamentally impact the State’s case.

There was additional testimony thát the State relied upon at trial to corroborate D.T.’s accusations, all of which was problematic. In April 1989, D.T. had a second trimester abortion, unknown to her mother who was in New York nursing her sister, Yvette, who was dying of AIDS. D.T. alleges she became pregnant as a result of her sexual encounters with Toro and was emphatic that she had not had sex with anyone else.

Clinic records showed that Toro had taken D.T. to the abortion clinic. He testified he took her because she came to him for help. She was afraid she was pregnant from sexual activity with her boyfriend. Toro claims D.T. told him that she was afraid to tell her mother about it because of how she would react and she did not want to burden her mother at a time when her sister was dying of AIDS. Clinic records indicate that neither he nor D.T. attempted to conceal their identities. Toro used his real name and represented himself to be her father.

A portion of the clinic records apparently were not given to Toro’s attorney prior to trial. These records contain the notation that D.T. told clinic personnel that she had been sexually active for one and one-half years prior to April 1989. This record surfaced when the abortion clinic record custodian testified for the State. The untimely production of this record at trial was a major issue dealt with at length by the parties and by the trial court. Toro sought a mistrial because he did not have the record or an opportunity to explore its implications, but the trial court refused.

The second corroborating event came from testimony by Madeline and D.T. According to Madeline, Toro picked her up after work on the day she had spoken to D.T. about the sexual assaults. On the way to pick up D.T., Madeline confronted Toro with D.T.’s accusations. When D.T. got into the car, she repeated hér accusations, but he denied them. Madeline and D.T. testified that Toro became violent, struck D.T. and drove off, never to be seen again by D.T. or Madeline. The State contended that Toro’s departure was “flight” from the scene, evidencing Toro’s guilt.

Toro testified that this confrontation never happened. He denied he drove Madeline from work to pick up D.T. He said his wife drove her own car as usual that day to her travel agency business. He simply left the marital relationship that day due to an ongoing antagonism between himself and Madeline. He claimed that he had been dating another woman for some time. Madeline acknowledged that their relationship had already been “on the rocks” for over a year, and she and Toro were heading for a divorce prior to D.T.’s allegations.

The third event involved the testimony of Steven Carmoaga, the son of Madeline’s sister, Yvette, who died of AIDS. He was living in the home of Madeline and Toro on May 23, 1990, and had been there for approximately one year prior to D.T.’s accusations of abuse. He testified that he observed Toro one morning shortly before D.T.’s accusations at approximately 5:30 a.m. on top of D.T. as she lay in her bed in her bedroom, apparently having sexual intercourse with her. Carmoaga testified he told D.T. and Madeline about his observations on May 23, 1990, when D.T. made her original accusations, but this evidence was not brought to the prosecution’s attention until just prior to the trial.

The credibility of Carmoaga’s testimony was in issue because he never told Department of Health and Rehabilitative Services workers, investigators, law enforcement officers or the prosecutor about his incriminating observations. HRS case worker, Linda Harju, who investigated the alleged sexual abuse of D.T. by Toro, testified that she had interviewed Carmoaga, who told her he was unaware of any sexual abuse of D.T. Also, it was undisputed that a source of the serious arguments between Madeline and Toro was the issue of housing Yvette, Carmoaga’s mother, in their home after Toro became aware of Yvette’s AIDS diagnosis. Toro had insisted that Madeline have her sister return to New York, where Yvette died shortly thereafter.

Finally, and perhaps most troublesome, to corroborate D.T.’s accusations, the testimony of Dr. Deborah Day, a clinical psychologist, was introduced. Dr. Day testified that, based on her interviews with D.T. and her review of the depositions of D.T. and Madeline, D.T. fit the criteria for a diagnosis of post-traumatic stress disorder and, based on D.T.’s version of events, opined that the cause of the disorder was chronic sexual abuse.

Q. Were you able to reach any conclusions with regard to [D.T.] and the issue of sexual abuse?
A. Yes, sir, I was.
Q. And what is that conclusion; what is that opinion?
A. My opinion is that D.T. fits the symptom pattern we see in children who have been chronically sexually abused.

Dr. Day performed no psychological tests on D.T., nor did she review any medical reports or HRS reports to reach her conclusions.

Dr. Day’s testimony was the subject of this court’s extensive opinion on the direct appeal of Toro’s conviction. Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). Although we affirmed the conviction based on then-prevailing Florida law, we urged reconsideration of case law that allowed a psychologist to offer an expert opinion in Florida’s courts that the alleged victim “had • suffered sexual abuse” or that the victim’s behavior was “consistent with sexual abuse victimization.” We suggested in Toro that Florida’s approach, which was not approved in the majority of jurisdictions, was unsound and dangerous. Other opinions in a similar vein followed from other district courts of appeal, and in 1997, the Supreme Court of Florida held that Florida would no longer permit an expert to testify that a victim exhibited symptoms consistent with sexual abuse. Hadden v. State, 690 So.2d 573, 580 (Fla.1997).

Toro did offer a defense at trial in addition to his own testimony. He presented the testimony of an HRS supervisor, Carole Fleming, who had interviewed D.T. twice, once on April 27, 1990, and again on May 9,1990. These interviews, which predated D.T.’s allegation of sexual abuse on May 23, 1990, had taken place in connection with an investigation of an earlier allegation of physical abuse perpetrated by Toro on J.T., in the context of excessive discipline. She had met with D.T., J.T. and Carmoaga without the parents present. In those interviews, all three told her they were unaware of any physical abuse in the Toro home.

Proceedings on the motion for post-conviction relief based on newly discovered evidence

The trial judge denied the motion for post-conviction relief without a hearing on the ground that the Ortiz evidence was not “newly discovered.” The trial court noted that in 1995, Toro had based his motion for post-conviction relief for ineffective assistance of counsel on trial counsel’s failure to discover D.T.’s sexual partners. Toro’s motion attached a report of a private investigator who had interviewed a number of people about this issue, including two men, Ortiz and Hilton Ayala [“Ayala”], who acknowledged being sexual partners of D.T. It is unclear whether, in denying Toro’s motion, the trial judge meant that if this evidence could be discovered in 1994, it could have been discovered in 1993, or if he meant that because it was known in 1994, it was too late to raise it in 2003.

The difficulty with the trial court’s reasoning is chronology. Recall that D.T. was adamant in her testimony that she never had sex with anyone other than Toro before May 23, 1990. The important period, therefore, is late 1988 to April 1989, when D.T. had the abortion, and from April 1989 til May 23,1990.

In the 1995 post-conviction proceeding, even after hiring a private detective to find D.T.’s “boyfriends” and discovering Ortiz and Ayala, Ortiz reported to the investigator that his relationship with D.T. was “around 1991.” In his sworn statement given on October 21, 2001, Ortiz said that when the private investigator approached him in 1999, he didn’t care about Toro’s problem and “blew [the investigator] off.” In his 2001 sworn statement, he says that he was having sex regularly with D.T. by early 1989, that he was aware that Ayala was sleeping with her before that and there was at least one boyfriend that he knew of before Ayala. Contrary to the view of the majority, the record does not demonstrate that Ortiz’ involvement with D.T. could have been discovered with the exercise of reasonable diligence. The record shows that in 1995, reasonable diligence did not uncover Ortiz’ sexual relationship with D.T. during the relevant times. What eventually led to the discovery of Ortiz’'evidence (as far as the record shows) was Ortiz’ decision several years later to come forward. At the very least, whether the sexual relationship between Ortiz and D.T. could have been uncovered in the exercise of reasonable diligence is a question of fact that should be decided only after a hearing.

The majority’s other stated justification for concluding that the evidence was discoverable in the exercise of reasonable diligence was the testimony of Harju and Dr. Day that D.T. admitted to them that she had been having sex with a boyfriend but, as noted above, nothing links this sexual activity to the relevant periods before May 1999. In fact, in her testimony at trial, D.T. indicated that her denial of having sex with others only held true up to the date of her accusation of Toro, not thereafter. What is apparent from the record is that the defense at trial was woeful on this critical point. Defense counsel’s attack on this critical issue basically consisted of asking D.T. if she was having sex with others, which only elicited her denial. The name of only two possible “boyfriends” were thrown out to D.T., Pedro Perez and Albert Field, not Ortiz. This again elicited D.T.’s denial. We ought not just assume that trial counsel was not reasonably diligent in failing to uncover Ortiz; a hearing should be held to determine whether defense counsel was reasonably diligent.

When the trial judge denied Toro’s 1995 motion for post-conviction relief based on his claim of ineffective assistance of counsel for failing to find D.T.’s other sexual partners, the court, in a one-page order, suggested that evidence of D.T.’s relationship with Ortiz or others would not have mattered to the trial’s outcome. For this proposition, he referred generally to the testimony of D.T., Dr. Day and Linda Har-ju. This has to mean either: (a) that the evidence was overwhelming, which we now know it was not, or (b) evidence identifying sex partners of D.T. was not material in light of D.T.’s having told Harju that she was sexually active with a boyfriend. The problem again is the chronology. The defense of Toro at trial centered on the proposition that Toro was never a sex partner of D.T.’s; and that D.T. had to have had a boyfriend with whom she was having sex in 1988 and 1989, which would explain her pregnancy. The defense never offered any evidence, however, of who this hypothetical boyfriend might be and D.T. herself consistently denied it.

The premise that there were no other sex partners made the abortion testimony especially compelling. In the absence of any corroborating physical evidence, the abortion proved she was having sex, that she had not just made up an accusation, and if there was no evidence that it was anyone else, then it had to be Toro. This made Toro doubly culpable for abusing his child and then cold-bloodedly taking her off to abort his child that she was carrying.

It is, of course, entirely possible that Ortiz has lied in his statement and that D.T. was truthful in her testimony that she never had sex with anyone before May 23, 1990, other than Toro. Ortiz is a convicted felon. He may have a motive to lie. There are discrepancies with the statement previously given to the private investigator. It is also possible that Ortiz is telling the truth about D.T. and that D.T. is telling the truth about Toro. There are many reasons why she may have lied about her sexual history. Nevertheless, if what Ortiz says is true, the fundamental premise on which the trial and conviction of Toro were based collapses. For that reason, it is important that this issue be fully aired in a hearing. This evidence of Ortiz should be heard and cross-examined and evaluated. If believed, its impact on the verdict needs to be carefully considered. For a variety of reasons, there never has been any post-conviction hearing in this case. In the years since the verdict, however, enough has developed to warrant such a re-examination.

      . William Anderson, a forensic pathologist associated with the Orange County Medical Examiners Office in the Ninth Judicial Circuit, who performs examinations of sexual battery and assault victims and who also performs examinations in conjunction with the Child Protection Team on alleged victims of sexual assault and abuse, testified that D.T. should have been examined for evidence of sexual assault since the last alleged sexual battery occurred less than forty-eight hours before her May 23, 1990, accusations. He further testified that her history of having been repeatedly anally penetrated from age nine years through age fifteen, as well as vaginal sexual intercourse, called for her to be examined because signs of trauma from such events would still be present.

      . Toro points out that one of the facts important to Dr. Day’s opinion that D.T. suffered from post-traumatic stress disorder was D.T.'s failing grades in school. If Ortiz is believed, the falling grades are equally well explained by skipping school to have sex with Ortiz.


author: KAHN, J.

text:
    Howard W. DOIG, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Sears Roebuck and Company, Appellees.
    No. 1D02-4036.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Rehearing Denied Jan. 5, 2004.
    Appellant Howard W. Doig, pro se, Melbourne.
    John D. Maher and Geri Atkinson-Ha-zelton, Tallahassee, for Appellee.
   KAHN, J.

Howard W. Doig appeals an order of the Unemployment Appeals Commission (Commission). The Commission affirmed the appeals referee’s determination that Doig voluntarily left part-time work without good cause attributable to the employer, Sears Roebuck and Company, and therefore was overpaid more than $2000 in unemployment benefits which are subject to recovery. We reverse.

The record indicates that Mr. Doig was dismissed from his full-time job with Volt Telecommunications on March 5, 2001, and he began collecting unemployment benefits. He started working part-time at Sears in May 2001 and continued there until October 2001; he then worked part-time at Home Depot from October 2001 until March 2002. He began working full-time for another employer in April 2002. During his part-time employment, Mr. Doig collected a reduced benefit. See § 443.111(4)(b), Fla. Stat. (2000).

After a telephone hearing, the appeals referee rendered an order in Tallahassee and made findings of fact:

The claimant began his employment with Sears Roebuck and Company in May 2001 and was working as a part-time sales associate in the tool department at a store in Melbourne, Florida. In October 2001 the claimant applied for a part-time job as a sales associate at Home Depot, with the intention of working both part-time jobs concurrently. However, Sears Roebuck and Company has a conflict of interest policy which does not allow a sales associate to work for a competitor. Therefore, the claimant was told that he would have to give up his job at Sears if he accepted employment with Home Depot. The claimant choose [sic] to accept the job with Home Depot because it offered better pay and benefits so he quit his employment with Sears Roebuck and Company on October 19, 2001.
The claimant filed an initial claim for benefits effective March 4, 2001, which established a weekly benefits [sic] of $175. From the benefit week ending October 20, 2001 through the week ending March 2, 2002, the claimant received partial benefits totaling $2052.

From these findings, the referee concluded that Mr. Doig voluntarily left part-time work without good cause attributable to the employer and, therefore, was overpaid $2,052 in unemployment benefits:

The record shows that the claimant quit his employment with Sears Roebuck and Company in order to accept a job at another retail store. There was some discussion at the hearing by the parties about the employer’s conflict of interest policy which prevented the claimant from accepting another part-time job with a competitor. The claimant contented [sic] that he was going to be working in the electrical department at Home Depot rather than selling tools so there was no conflict of interest. Nevertheless, it was the claimant’s choice to leave his position with Sears Roebuck and Company to accept another job offer. The claimant also mentioned other factors which caused him dissatisfaction with his job at Sears such as the loss of sales commissions when cashiers rang up sales, and having his performance judged by meeting a standard for sales of maintenance agreements. However, the claimant’s own testimony establishes that the [sic] did not leave his job for these reasons because he was willing to remain employed with Sears if the company had allowed him to do so. The only reason he did not continue working part-time was the employer’s policy, which prevented him from working concurrently with a competitor.
* * *
The record shows that the claimant received benefits totaling $2052 for benefit weeks during the period of October 2001 to March 2002. An overpayment was created because he was disqualified for the period of time he was originally paid. That disqualification has been affirmed in this decision. Therefore, it is held that the claimant was overpaid benefits and this sum is subject to recovery by the Agency.

On appeal, Mr. Doig argues that while working for Sears, he was receiving partial unemployment benefits as a result of losing his full-time job with his previous employer (Volt Telecommunications), and his benefit status should not have changed when he left one part-time job (with Sears) for another (with Home Depot). We agree.

The relevant statute does not specifically address this particular situation:
An individual shall be disqualified for benefits:
(l)(a) For the week in which he or she has voluntarily left his or her work without good cause attributable to his or her employing unit or in which the individual has been discharged by his or her employing unit for misconduct connected with his or her work, if so found by the division. The term “work,” as used in this paragraph, means any work, whether full-time, part-time, or temporary.
1. Disqualification for voluntarily quitting shall continue for the full period of unemployment next ensuing after he or she has left his or her full-time, part-time, or temporary work voluntarily without good cause and until such individual has earned income equal to or in excess of 17 times his or her weekly benefit amount; the term “good cause” as used in this subsection includes only such cause as is attributable to the employing unit or which consists of illness or disability of the individual requiring separation from his or her work. No other disqualification may be imposed. An individual shall not be disqualified under this subsection for voluntarily leaving temporary work to return immediately when called to work by the permanent employing unit that temporarily terminated his or her work within the previous 6 calendar months.

§ 443.101, Fla. Stat. (2000). In a similar case, however, this court reversed a claimant’s disqualification from unemployment compensation benefits. See Stewart v. Dollar Tree, 635 So.2d 73 (Fla. 1st DCA 1994).

In Stewart, the claimant had been terminated from full-time employment and approved for unemployment benefits. See id. at 73. The claimant then accepted a part-time job and worked at that job for four weeks, at which point she quit to accept another' part-time job that paid more money and had the prospect of eventual full-time employment. See id. She could not keep both part-time jobs because the hours conflicted. See id. The referee determined that the claimant voluntarily left her first part-time job without good cause attributable to her employer and concluded that she was disqualified from receiving benefits. See id. The UAC affirmed. See id. On appeal, this court concluded that section 443.101(l)(a) did not apply on these facts:

It seems relatively clear to us that, given the facts of this case, the “work” referred to in section 443.101(l)(a) would be the full-time job from which appellant was terminated because of lack of work, not the part-time job which she later accepted in an effort to mitigate her misfortune.

Id. at 73-74. The court further explained its decision:

The facts of this case graphically illustrate the absurdity of the Commission’s position. Appellant, clearly entitled to benefits because of the termination of her full-time employment, accepted a part-time job to try to make ends meet. Assuming that the earnings from that part-time employment met the threshold, their receipt would reduce the amount of benefits to which appellant would be otherwise entitled. § 443.111(3), Fla. Stat. (Supp.1992). In an effort to improve her economic situation, appellant left the first part-time job for another which paid a greater hourly wage, permitted her to work more hours each week and offered the prospect of eventual full-time employment at a rate of pay reasonably close to that of the full-time job from which she had been terminated. In response, rather than commending her efforts to improve her economic position and, thereby, to reduce the amount of benefits to which she would be entitled, the Commission concluded that appellant had disqualified herself from receiving any further benefits. Clearly, the legislature did not intend such a result.

Id. at 74. The court also relied on reasoning in another case involving part-time employment, Neese v. Sizzler Family Steak House, 404 So.2d 371 (Fla. 2d DCA 1981), but the holding in that case has since apparently been superseded by an amendment to section 443.101(l)(a). See Rochussen v. Unemployment Appeals Comm’n, 795 So.2d 1075, 1077-79 (Fla. 2d DCA 2001). Nevertheless, Neese is not critical to the holding in Stewart and is distinguishable from that case. The claimant in Neese was employed concurrently in a full-time job and a part-time job when she lost her full-time job and qualified for unemployment benefits; she subsequently quit her part-time job and moved to another city. See Neese, 404 So.2d at 871.

Finally, this case is also distinguishable from the two main cases relied on by the UAC: Rochussen and Groudas v. Pinellas County School Board, 793 So.2d 983 (Fla. 2d DCA 2001). Like the claimant here, in both Groudas and Rochussen, the claimants qualified for unemployment compensation benefits after being terminated from full-time employment and, thereafter, accepted temporary part-time work. See Rochussen, 795 So.2d at 1076; Groudas, 793 So.2d at 984. Like the claimant here, in both Groudas and Rochussen, the claimants later quit the part-time work. See Rochussen, 795 So.2d at 1076; Groudas, 793 So.2d at 984. Unlike the claimant here, however, the claimants in Groudas and Rochussen did not immediately begin work in another part-time job; rather, they sought to resume collection of their full unemployment compensation benefits. See Rochussen, 795 So.2d at 1076; Groudas, 793 So.2d at 984.

The claimant here, like the claimant in Stewart, merely left one part-time job for another and was never completely unemployed; indeed, his jobs actually overlapped for two days. In this regard, as in Stewart, section 443.101(l)(a) does not apply, as indicated above.

REVERSED.

ERVIN and BOOTH, JJ., concur.