text:
    Louis JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-4210.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 2002.
    Louis Jones, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Louis Jones challenges the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which alleged that his plea was involuntary because it was based on his trial attorneys’ mistaken advice that he would receive one-third gain time off his sentence if he entered the plea. We reverse and direct the circuit court to allow Jones to withdraw his plea and proceed to trial.

Jones pleaded guilty to two counts of burglary and two counts of sexual battery under an agreement calling for a 22-year sentence concurrent with a sentence imposed in the State of Georgia. One of the sexual battery offenses occurred on October 22, 1991, and the other on April 29, 1993. After Jones entered prison, the Department of Corrections informed him that he was ineligible for one-third basic gain time 'for a sexual battery offense committed after October 1, 1992. See § 794.011(7), Fla. Stat. (1992). Jones’s trial counsel investigated the matter and advised him that he was ineligible for gain time for the 1993 sexual battery and that he could withdraw his guilty plea and go to trial.

Jones filed a rule 3.850 motion in January 1998. At an evidentiary hearing on the motion one of his trial attorneys, Violet Assaid, testified that when Jones was considering the proposed plea agreement she telephoned the Department of Corrections to inquire about Jones’s eligibility for gain time. She was advised that Jones would be eligible for gain time, and she passed this information on to him. Assaid recalled that she made no personal assurances that Jones would receive one-third gain time off his sentence, but she conceded that their discussion probably led Jones to believe this. Jones’s other trial counsel, Bob McClure, testified that he remembered telling Jones that he would receive one-third gain time off his sentence if he took the plea deal. He did not think that he and Assaid made Jones aware that there would be a distinction between the sexual battery and the other offenses. Jones testified that he agreed to enter the plea because of the promise of the one-third gain time credit.

Notwithstanding this testimony, the court denied Jones’s motion. The court concluded that Jones entered a best interest plea with knowledge of paragraph 5 of the change of plea form, which read:

I understand that, depending upon the nature of the offense(s) to which I am changing my plea, and/or upon the nature of any prior convictions, I may NOT be eligible for certain credits which shorten the length of the sentence imposed. The credits to which I may NOT be entitled to include, but are not limited to, control release date (CRD) credits, and/or awards(s) of gain time while I am in prison. I further understand that I may serve more time on my sentence than I would if I were not convicted of offense(s) of a nature such as these.

Further, the court noted that the sentencing judge had specifically inquired about this subject. The transcript of the plea colloquy reflects that the judge asked Jones, “Did Ms. Assaid and Mr. McClure tell you that while in prison you might not get all the good and gain time that an ordinary convict gets?” Jones responded, “Yes, sir.”

Counsel’s misrepresentations about sentence length or eligibility for gain time can form the basis for postconviction relief in the form of leave to withdraw a guilty plea. State v. Leroux, 689 So.2d 235, 236 (Fla.1996); Simmons v. State, 611 So.2d 1250 (Fla. 2d DCA 1992). Here, neither the generic statement in the change of plea form, which merely advised that “depending on the nature of the offense(s)” the defendant “may not” receive “certain credits” against his sentence, nor the sentencing court’s vague inquiry whether Jones had been advised that he “might not” get “all” the gain time an ordinary convict receives, contradicted Jones’s proof that he relied on his attorneys’ mistaken advice that he would receive one-third gain time for his offenses. See Leroux, 689 So.2d at 237 (acknowledging that when responding negatively to sentencing court’s question whether any promises have been made to induce the defendant’s plea, defendant may not appreciate that reference includes his attorney’s expert advice about length of time he will serve); Hoch v. State, 679 So.2d 847 (Fla. 2d DCA 1996) (same). Thus, the uncontradicted evidence proved Jones’s entitlement to withdraw his plea.

We note that Jones, a pro se litigant, may not fully appreciate the ramifications of prevailing in this matter. “When an accused voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence. Having rejected the offer of a lesser sentence, he assumes the risk of receiving a harsher sentence.” Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988) (citation omitted).

Reversed and remanded with instructions that the court permit Jones to withdraw his plea and proceed to trial.

CASANUEVA and SILBERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. LEWIS, J.,

license: Public Domain

text:
    Miriam CRUTCHER, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY and Gallagher Bassett Services, Inc., Appellee.
    No. 1D01-3871.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2002.
    Rehearing Denied Jan. 16, 2003.
    Diane H. Tutt, of Diane H. Tutt, P.A., Plantation, for Appellant.
    Edward D. Schuster, of Massey, Coican & Schuster, LLC, Ft. Lauderdale, for Ap-pellee.
   PER CURIAM.

Appellant, Miriam Crutcher, appeals an order finding that her petition for workers’ compensation benefits was barred by the statute of limitations. For the reasons expressed below, we remand for further proceedings.

Section 440.19(4), Florida Statutes (Supp.1994), states:

Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 14-0.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence. (Emphasis added).

Appellant argues that the emphasized language must be read to say that the E/C’s failure to comply with either section 440.185 or section 440.055 estops the E/C from raising a statute of limitations defense. Under that view, no matter what the claimant may have known about her rights, the E/C can never raise a statute of limitations defense if it has failed to comply strictly with the provisions of either section 440.185 or 440.055. We disagree.

There is no dispute in this case that the E/C failed to comply with section 440.185(4). The E/C only sent a letter to Appellant in which she was advised that she was entitled to benefits, which included “paying all medical bills related to your injury, prescription at 100% and reimbursing you for travel expense to and from any medical facility at 29 cents per mile.” She was informed that treatment must come from an authorized physician and that she could request additional care or a second opinion by contacting the carrier. Appellant did receive medical benefits and was able to get the carrier to authorize three different physicians. She also briefly retained the services of an attorney. Her treatment ended in early 1997 when she declined to continue with the recommended course of treatment, which included injections. Appellant’s last indemnity benefit was furnished on March 10, 1997, and she did not file a petition for benefits until February 7, 2000. The E/C denied the claim on the grounds that it was barred by the statute of limitations.

A hearing was held solely on the issue of the statute of limitations. The Judge of Compensation Claims (JCC), relying on this court’s opinion in Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So.2d 961 (Fla. 1st DCA 1998), found that Appellant “was fully aware of her entitlement to medical benefits and chose not to request medical benefits after the last visit with Dr. Weiss on January 14, 1997. Hence, her present claims are time barred.” Additionally, the JCC found that Appellant’s “actual knowledge of entitlement to medical benefits is unmistakable from the record.”

While the JCC’s factual findings are supported by competent and substantial evidence, sole reliance on Hanssen was incorrect because that case dealt with a prior'version of section 440.19. In Tallahassee Memorial Healthcare, Inc. v. Coleman, 743 So.2d 1200 (Fla. 1st DCA 1999), this court addressed the post-1994 version of section 440.19. In Coleman, as in this case, the E/C had not apprised the claimant of all her rights, as required by section 440.185. This court, quoting Hanssen, repeated that the “two-year statutory limitations period is not tolled by failure to advise an injured worker that a statute of limitations exists.” Coleman, 743 So.2d at 1201. In both Coleman and Hanssen, as well as in this case, it was clear “that the claimant knew of her entitlement to medical benefits.” Id. However, because of the 1994 amendment to section 440.19, this court remanded in Coleman for the JCC “to determine whether she lacked actual knowledge of any other pertinent right under the workers’ compensation law and, if so, whether such ignorance ■ accounted for her failure to obtain care during the two years following her last visit to Dr. Loeb.” Coleman, 743 So.2d at 1201.

Implicit in this court’s decision in Coleman was a rejection of Appellant’s claim that a claimant need only show that the E/C failed to comply strictly with either section 440.185 or section 440.055 in order to estop the E/C’s statute of limitations defense. See also Health Central v. Cesar, 752 So.2d 97 (Fla. 1st DCA 2000). We read the statute to say that after the E/C raises a statute of limitations defense, the claimant must prove that the E/C should be estopped from raising the defense. The burden of proof on the claimant is a preponderance of the evidence, unless the E/C has complied with both sections 440.185 and 440.055, in which case the claimant has a higher burden of proof— clear and convincing evidence. Any other reading of the statute could lead to absurd results, such as forever barring a statute of limitations defense when the carrier sends the claimant an approved, informational brochure that contains all of the required information four days after learning of the injury, instead of within the required three days.

Because it is not clear from the order on review whether the JCC applied the correct law in determining that Appellant’s claim was barred in its entirety by the 'statute of limitations, we REVERSE and REMAND for the JCC to determine whether Appellant lacked actual knowledge of any pertinent right under workers’ compensation law, substantive or procedural, and, if so, whether such ignorance accounted for her failure to obtain care for more than two years after her last visit to an authorized physician. See Coleman.

MINER and BENTON, JJ., CONCUR; LEWIS, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

LEWIS, J.,

concurring in part and dissenting in part.

As the majority explains, the Judge of Compensation Claims (“JCC”) erred in relying on Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So.2d 961 (Fla. 1st DCA 1998), as that case addressed a previous version of section 440.19, Florida Statutes. I, therefore, join the majority in reversing the JCC’s order. However, I do not agree that section 440.19(4), Florida Statutes (1995), requires that the claimant must prove estoppel by a preponderance of the evidence unless the E/C complies with sections 440.185 and 440.055, Florida Statutes (1995).

This case revolves around the statutory construction of section 440.19, Florida Statutes (1995). The claimant contends that because she never received the notice mandated by section 440.185, the JCC erred in determining that her claim for benefits was barred by the statute of limitations. As she raised estoppel in response to the E/C’s statute of limitations defense, she claims that she was not required to prove estoppel unless the carrier demonstrated that it provided the notice required in section 440.185. Therefore, the claimant argues that because the carrier failed to meet this burden, the carrier’s statute of limitations defense automatically fails. I agree. Thus, I respectfully dissent from the majority’s contrary interpretation.

Before 1989, section 440.185(3), Florida Statutes, provided that, within seven days of actual knowledge of an employee’s injury, the employer would provide a statement of rights, benefits, and obligations to the employee and provide notice to the Division of Workers’ Compensation. Section 440.185(4), Florida Statutes, required the division to mail an informational brochure to the employee immediately upon notice by the employer. Section 440.19, Florida Statutes, provided that the claimant had two years after the time of the injury in which to file a claim for benefits.

Section 440.19, prior to 1989, contained no express provision regarding the tolling of the statute of limitations should the carrier fail to provide the injured employee with the notice of rights and obligations required in section 440.185. Case law, however, did provide for such tolling. Where the employee had not been informed as required by section 440.185 and could demonstrate prejudice from the carrier’s failure to notify, the carrier. was estopped from raising a statute of limitations defense until the employee received actual knowledge of a possible entitlement to benefits. See Southern Bell v. MacDonald, 671 So.2d 207, 210 (Fla. 1st DCA 1996) (“If the employer breaches its duty to inform the employee of his rights, the running of the statute of limitations will be tolled until such time that the employee obtains actual knowledge from any source that he may be entitled to compensation benefits.”); Timmeny v. Tropical Botanicals Corp., 615 So.2d 811, 815-16 (Fla. 1st DCA 1993) (discussing and citing cases for the principle that, since 1979, courts have construed the Workers’ Compensation Act limitations to be tolled if the employer fails to comply with its statutory duty to inform an injured employee of benefits).

In 1989, the Legislature amended each subsection of section 440.19(1) to include the following provision:

This limitations period shall not be tolled or extended by the failure of the employer or carrier to file a notice of injury or any other report or notice required to be filed under this chapter or by the failure of the division, the employer, or the carrier to furnish to the employee or other claimant informational materials required under this chapter, unless such omission by the employer or carrier was intentional and done to deprive the employee of benefits due under this chapter.

See ch. 89-289, § 15, at 1763-64, Laws of Fla. By this amendment, the Legislature precluded any tolling of the statute of limitations even where the E/C failed to provide the necessary information to the claimant if the claimant could not meet the hefty burden of demonstrating that the E/C’s failure to provide the required information was intentional and done to deprive the claimant of his or her right to benefits. See Gaines v. Orange County Pub. Utils., 710 So.2d 139, 140 (Fla. 1st DCA 1998).

' Effective January 1, 1994, section 440.19 was again amended to remove the preclusion on the tolling of the statute of limitations imposed in the 1989 amendment. See ch. 93-415, §§ 23, 112, at 135, 215, Laws of Fla. The statute was reorganized, and the Legislature added section 440.19(4), Florida Statutes (Supp.1994), which provided, in pertinent part, that:

If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence.

See ch. 93-415, § 23, at 135, Laws of Fla. The Legislature also amended section 440.185(4) to require the carrier, rather than the division, to notify the claimant of her rights, benefits, obligations and procedures for obtaining benefits under the workers’ compensation statutes. See ch. 93-415, § 22, at 134, Laws, of Fla. Section 440.185(4) mandates that within three days after the employer or the employee informs the carrier of an injury, “the carrier shall mail to the injured worker an informational brochure approved by the division which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.” (emphasis added). As the claimant’s accident occurred in August 1996, these amendments are, applicable to this case., ■

Section 440.19(4) cites section 440.185; therefore, the statute must be read in pari materia with section 440.185. See State v. Fuchs, 769 So.2d 1006, 1010 (Fla.2000) (“[S]tatutes which relate to the same or closely related subjects should be read in pari materia”); Hertz Rent-A-Car v. Sosa, 670 So.2d 73, 75 (Fla. 1st DCA 1996). When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words. Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992). This Court must interpret statutes by the well-established norms of statutory construction which require rendering the statutory provisions meaningful. See Johnson v. Feder, 485 So.2d 409, 411 (Fla.1986). Statutory interpretations which render provisions superfluous are disfavored. Id.; see also Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999).

Pursuant to the 1994 amendment, once the claimant alleges that the E/C are es-topped from raising the statute of limitations defense, the statute requires the carrier to demonstrate that it provided the required notice under section 440.185. Only if the carrier makes this demonstration must the claimant offer proof to support an estoppel. However, if the carrier fails to make the required showing, the statute of limitations defense automatically fails.

In 1989, the Legislature took away a claimant’s estoppel claim against an E/C’s statute of limitations defense by requiring the claimant to show, in order to toll the statute of limitations, that the claimant did not receive the required notice and that the E/C purposely did not provide the notice with the intent to deprive the claimant of benefits. With section 440.19(4), the Legislature struck a balance between pre-1989 case law and the 1989 provision, which so burdened the claimant. If the carrier cannot demonstrate compliance with section 440.185, then its statute of limitations defense automatically fails. The use of the word “shall” in section 440.185(4) denotes a mandatory action by the carrier. Therefore, if the carrier fails to comply with section 440.185(4), it cannot seek the protection of the affirmative defense of statute of limitations under section 440.19. If the carrier can demonstrate that it has complied with this long standing notice requirement, the claimant can only establish estoppel to the statute of limitations defense with clear and convincing evidence.

Section 440.19(4) is not a codification of the pre-1989 judicial estoppel/tolling principle. The statute does not provide that if the carrier fails to make the required showing, then it can offer proof of the claimant’s actual knowledge to defeat the estoppel claim. Such evidence would only be relevant if the carrier made its initial demonstration and the claimant then carried his or her burden of proving estoppel by clear and convincing evidence.

Under the plain meaning of section 440.19(4), the E/C must prove that the carrier actually provided the required notice to the claimant pursuant to section 440.185. The statute does not state, as the case law construing the pre-1989 statute held, that if the E/C proves that the claimant had knowledge of some benefits, the E/C cannot be estopped. By the use of the word “shall” in section 440.185, the carrier has the responsibility to provide notice of workers’ compensation rights, benefits, and procedures to the claimant. Section 440.19 does not provide that if the E/C proves that the claimant had knowledge from some other source, then the carrier has met its burden. Under the plain meaning of sections 440.19 and 440.185, only if the carrier demonstrates that the carrier, itself, provided the claimant the notice required in section 440.185 must the claimant demonstrate estoppel to the carrier’s statute of limitations defense. If the carrier fails to demonstrate that notice, the carrier cannot defeat the claimant’s estoppel argument.

In construing section 440.19(4) in isolation, the majority renders the mandatory notice requirement in section 440.185(4) meaningless. Requiring a- claimant to prove estoppel regardless of whether the carrier provides the notice under section 440.185 negates the statutory language mandating that the carrier provide such notice. That is, the carrier could reap the benefit of the statute of limitations defense even where it failed to comply with the workers’ compensation law. This is manifestly unfair to the claimant. The majority seeks to impose unnecessarily an additional burden of proof in the statute where none exists. The majority’s interpretation of section 440.19 defeats the objective of the workers’ compensation law to facilitate the prompt receipt of benefits to claimants, which includes the prompt receipt by the claimant of the procedures to receive such benefits. See § 440.015, Fla. Stat. (1995) (“It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker.”); see also S & A Plumbing v. Kimes, 756 So.2d 1037, 1041 n. 2 (Fla. 1st DCA 2000).

Here, the E/C did not clearly demonstrate that they provided the notice required under section 440.185 within the mandatory three-day period. Therefore, under the plain meaning of section 440.19(4), the carrier cannot raise the statute of limitations defense. The statute only requires that the claimant prove es-toppel if the carrier has provided the requisite notice in section 440.185. Thus, the claimant’s actual knowledge of her rights is irrelevant where the carrier failed to provide the mandatory notice. Allowing the carrier to continue to assert a statute of limitations defense after failure to comply with this statutorily mandated requirement renders such requirement meaningless.

The majority relies on Tallahassee Memorial Healthcare, Inc. v. Coleman, 743 So.2d 1200 (Fla. 1st DCA 1999), for support in its remand. However, in Coleman, it is unclear whether the carrier failed to comply with the notice requirement in section 440.185. The JCC merely concluded that the claimant had not been apprised of her rights under the workers’ compensation law and that the omission was not “intentional and done to deprive the employee of benefits.” Id. at 1201. This Court rejected the JCC’s application of section 440.19(l)(a), Florida Statutes (1991), because the amended section 440.19(4), Florida Statutes (1994), applied even though the claimant’s injury occurred in 1992. Coleman, 743 So.2d at 1201 (citing Gaines, 710 So.2d at 139). This Court then remanded for the JCC to determine whether the claimant lacked actual knowledge of her rights under the workers’ compensation law. Id.

Because the Coleman decision is unclear regarding the carrier’s compliance with section 440.185, I cannot agree with the majority that the decision implicitly rejected any “claim that a claimant need only show that the E/C failed to comply strictly with either section 440.185 or section 440.055 in order to estop the E/C’s statute of limitations defense.” Proof of a claimant’s actual knowledge of workers’ compensation rights and obligations is only relevant after the carrier demonstrates compliance with section 440.185.

Therefore, remand for the JCC to determine whether the claimant lacked actual knowledge of her rights under workers’ compensation law is neither necessary nor appropriate. I would hold that the claimant has estopped the E/C’s statute of limitations defense because the carrier failed to demonstrate compliance with section 440.185. Consequently, I would reverse and remand for the JCC to address the claimant’s petition for benefits on its merits.

      . Section 440.185(4), Florida Statutes (Supp. 1994), provides in pertinent part:
      Within 3 days after the employer or the employee informs the carrier of an injury the carrier shall mail to the injured worker an informational brochure approved by the division which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.


author: GREEN, J.

text:
    CIGNA PROPERTY & CASUALTY, Appellant, v. Teresa Villar RUIZ and Antonio Ruiz, Appellees.
    No. 3D01-3314.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2002.
    Rehearing En Banc and Certification Denied Jan. 15, 2003.
    Valle & Craig, P.A., and Lawrance B. Craig, and Frank J. Sioli, Miami, for appellant.
    Antonio Ruiz, in proper person
    Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, and Jose I. Valdes, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   GREEN, J.

This is an appeal from an income deduction order requiring Cigna Property & Casualty (“Cigna”) to withhold certain sums owing to its insured, Antonio Ruiz, and to remit the same to Teresa Villar Ruiz, as child support for the Ruiz’s minor child. Cigna maintains that because the anti-alienation provision of the Longshore and Harbor Worker’s Compensation Act (“LHWCA”) under which Antonio Ruiz was receiving his benefits from Cigna exempted all claims of creditors, the income deduction order is erroneous. We do not agree that the anti-alienation provision of LHWCA is applicable to Ruiz’s child support obligation at issue in this case. Accordingly, we affirm.

In 1981, Antonio Ruiz was injured while in the employ of Potashnick Construction. Ruiz filed a workers’ compensation claim under the Longshore and Harbor Workers’ Compensation Act (“Longshore Act”), and eventually entered into a Joint Stipulation and a Request for Order Awarding Benefits with his employer and its Long-shore Carrier, Cigna. Pursuant to the joint stipulation, Potashnick and Cigna accepted Ruiz as permanently and totally disabled as of March, 1985, and agreed to pay Ruiz permanent total disability benefits as of June, 1990.

Ruiz and his wife, Teresa Villar-Ruiz, were divorced in February 1992. The final judgment for dissolution of marriage obligated Ruiz to pay child support to Villar-Ruiz for the parties’ minor child. Thereafter, Ruiz sporadically paid his support obligation. Accordingly, in 1994, the trial court issued an Income Deduction Order, directed to Cigna, to withhold a portion of Ruiz’s benefits to pay for his child support obligations. Cigna abided with this order until late 1996 when it unilaterally decided to discontinue the payments.

Once again, Ruiz began a pattern of sporadic child support payments. The case was referred to Child Support Enforcement to no avail. The matter was thereafter referred back to the trial court which entered a new Income Deduction Order directing Cigna to withhold $628.00 per month from Ruiz’s monthly benefits and pay this money to Villar-Ruiz for “ongoing child support.” (emphasis added).

Cigna failed to comply with the order and noticed the matter for hearing. Following the hearing, the trial court denied Cigna’s objections to the Income Deduction order and held:

1. That CIGNA’s objection to the Income Deduction Order of May 8, 2001, is denied.
2. CIGNA shall forthwith comply with the Income Deduction Order and shall commence making payments forthwith to TERESA VILLAR RUIZ as directed in said order.
3. That in addition to the amounts to be paid under said order, CIGNA shall deduct and pay to TERESA VILLAR RUIZ an additional $200.00 per month in order to pay for the $3,140.00 in payments that CIGNA should have made between May and October 2001, but which it failed to do on the basis of its objections. Said additional payments be made for the next 15 months with an additional final payment of $140.00 on the sixteenth month.

It is from this order that Cigna appeals.

Cigna’s refusal to abide by the trial court’s order was premised upon section 16 of the LHWCA which provides that:

No assignment, release, or commutation of compensation or benefits due or payable under this Act, except as provided by this Act, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.

See 33 USCA § 916 (2001). By its own terms this statute only applies to “claims of creditors” or attachment or execution for “collection of a debt.”

It is clear, under Florida law, that a claim for child support is not the claim of a creditor. See Department of Revenue v. Springer, 800 So.2d 700, 701 (Fla. 5th DCA 2001) (holding that claims for child support arrearages not a claim of a creditor). See also Bryant v. Bryant, 621 So.2d 574, 576 (Fla. 2d DCA 1993) (holding that exemption of worker’s compensation claims from claims of creditors does not extend to claim based on award of child support). Both Springer and Bryant involved claims for child support arrearages. In this case, where the claim is for “ongoing child support,” it is clear that the deduction is not the claim of a creditor.

Moreover, it is equally clear that a child support obligation is not a debt. See Gibson v. Bennett, 561 So.2d 565, 570 (Fla.1990) (stating that: “a support obligation is viewed as a personal duty, not only to a former spouse or child, but to society generally.”) citing Bronk v. State, 43 Fla. 461, 31 So. 248 (1901). The Gibson court explained that:

In determining that a support decree was not such a debt, the Court distinguished an obligation to pay support from a debt arising from a business transaction or a contractual obligation:
[A] decree awarding alimony to the wife or children, or both, is not a debt which has been put into the form of a judgment, but is rather a legal means of enforcing the obligation of the husband and father to support, and maintain his wife and children. He owes this duty, not because of any contractual obligation, or as a debt due to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty, and enforces it against him by means of legal proceedings.

Gibson, 561 So.2d at 570, quoting Wetmore v. Markoe, 196 U.S. 68, 74, 25 S.Ct. 172, 49 L.Ed. 390 (1904).

In this case, it is clear on its face, that the statute upon which Cigna relies, is inapplicable to Ruiz’s child support obligation. Thus, the order of the trial court is affirmed.

      . Admittedly, the trial court’s order on Cig-na's objections to Income Deduction Order does require Cigna to pay an additional $200.00 per month to make up for those payments that Cigna should have made pursuant to the Income Deduction Order. Moreover, Cigna can not be heard now to complain about something that was of its own doing.

      . Cigna’s reliance on Spitalieri v. Spitalieri, 156 Misc.2d 317, 593 N.Y.S.2d 172 (N.Y.Sup.Ct.1993) and Thibodeaux v. Thibodeaux, 454 So.2d 813 (La.1984) is misplaced. These cases were decided prior to a 1996 amendment to the non-alienation provisions of the Social Security Act which has been held to have impliedly repealed the non-alienation provision of the LHWCA with regard to delinquent support obligations.


author:
GODERICH, Judge.
      JORGENSON, Judge,

text:
    H.A.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1049.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Rehearing and Rehearing En Banc Denied Jan. 15, 2003.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before JORGENSON, COPE and GODERICH, JJ.
   GODERICH, Judge.

A petition for delinquency was filed against H.A.P., a juvenile, alleging that he unlawfully resisted, obstructed or opposed law enforcement officers in the lawful execution of a legal duty without violence, in violation of section 843.02, Florida Statutes (2002). We affirm.

The evidence at the adjudicatory hearing established that approximately fifteen to twenty police and SWAT team officers went to a residence for the purpose of executing a narcotics search warrant. When the officers arrived, they encountered H.A.P., who was standing in parking spaces located in the apartment complex where he resides. H.A.P. was standing directly across the street from the front door of the residence that the police were going to search.

Detective Ellis Casanado, whose primary responsibility was the outer perimeter of the residence that was going to be searched, approached H.A.P. and ordered him to leave the area for his safety. At that point, H.A.P. began to shout profanities. Detective Viejo, the affiant on the warrant, stopped the execution of the warrant, approached H.A.P., and also ordered him to leave the area. H.A.P. once again refused to leave. Police officers ordered H.A.P. in excess of ten times to leave the area. Each time H.A.P. was ordered to leave, he shouted louder and became more profane resulting in a large crowd gathering near the apartment complex. As a result, the SWAT team’s execution of the search warrant was put on hold so that the officers could focus their attention on H.A.P. Thereafter, H.A.P. was ordered to leave the area or face arrest. H.A.P. remained defiant and was arrested.

Following the conclusion of the State’s case-in-chief and after the defense rested, the defense moved for a judgment of acquittal. The defense argued that “obstructive conduct,” not “offensive words,” is necessary for establishing the offense of resisting an officer without violence. The trial court denied H.A.P.’s motions. Thereafter, the trial court found that H.A.P. committed the charged offense, but withheld adjudication and imposed probation. This appeal followed.

H.A.P. contends that the trial court erred by denying his motions for judgment of acquittal where his actions, the use of profanity and refusal to obey the police officers’ orders to leave a public place, were not punishable conduct under section 843.02, Florida Statutes (2002). We disagree.

In order to establish a violation of section 843.02, the State is required to establish that: “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of the lawful duty.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). At the adjudicatory hearing, the defense did not dispute the fact that the law enforcement officers were engaged in the lawful execution of a legal duty — the execution of a search warrant. However, the parties did not agree as to whether H.A.P.’s actions “constituted obstruction or resistance of the lawful duty.”

In arguing that his actions did not constitute obstruction or resistance of a law enforcement officer’s lawful duty, H.A.P. relies on this Court’s decision in J.G.D. v. State, 724 So.2d 711 (Fla. 3d DCA 1999). We find that H.A.P.’s reliance is misplaced.

In J.G.D., the police went to an apartment complex to investigate a burglary. By the time the police arrived, an unruly crowd had gathered at the apartment complex. J.G.D. began to loudly and profanely protest the manner in which the police were investigating the burglary. As a result, the police ordered J.G.D. to leave the apartment complex. After J.G.D. refused to leave, he was arrested and charged with resisting an officer without violence. On appeal, this Court reversed the adjudication of delinquency finding that the “record failfed] to show that the police order was, in these circumstances, justified by any cognizable wrongdoing on the part of the juvenile ... by his words....” J.G.D., 724 So.2d at 711-12.

J.G.D. is factually distinguishable from the instant case. H.A.P. was not arrested for merely cursing at law enforcement officers. H.A.P. was arrested because he refused to leave the nearby area where the SWAT team was attempting to execute a narcotics search warrant. It is important to remember that H.A.P. was standing directly across the street from the front door of the residence that the police were going to search. Therefore, he was in the direct line of fire if the occupants of that residence would have fired weapons upon the SWAT team’s execution of the narcotics search warrant. As such, prior to the execution of the search warrant, the police, in an attempt to secure the outer perimeter, believed, and rightfully so, that it was necessary for H.A.P. to leave the area. See Brown v. Miami-Dade County, 26 Fla. L. Weekly D2844, D2845 (Fla. 3d DCA Dec.5, 2001)(holding that “police officers do owe a duty to exercise reasonable care to protect innocent bystanders ... where their law enforcement activities create a foreseeable zone of risk.”). H.A.P.’s defiance resulted in the police delaying the execution of the narcotics search warrant. Thus, H.A.P.’s actions constituted an obstruction or resistance of a law enforcement officer’s lawful duty, and therefore, the trial court properly found that H.A.P. violated section 843.02, Florida Statute (2002).

We agree with the State that, based on Wilkerson v. State, 556 So.2d 453 (Fla. 1st DCA), review denied, 564 So.2d 1088 (Fla.1990), the trial court properly found that H.A.P. violated section 843.02. In Wilkerson, deputy sheriffs were attempting to arrest several individuals for selling narcotics and to determine whether these individuals had weapons. At that time, the defendant emerged from a crowd that had gathered yelling profanities. A deputy officer then ordered the defendant to leave the area because she was “interfering with their efforts to make the arrests.” Wilkerson, 556 So.2d at 454. After she refused to do so, the defendant was arrested and charged with violating section 843.02, Florida Statutes. In affirming the defendant’s conviction, the Second District Court of Appeal found that the defendant “was not arrested for merely yelling at and cursing officers,” but that she was arrested “because the officer considered her physical presence was obstructing or impeding him in the performance of his duty.” Wilkerson, 556 So.2d at 456. As the Second District held, “[p]olice officers may lawfully demand that citizens move on and away from the area of a crime without impermissibly infringing upon the citizen’s First Amendment rights.” Id.; M.M. v. State, 674 So.2d 883 (Fla. 2d DCA 1996); see also 16 Fla. Jur.2d Criminal Law § 4131 (2001)(“Police officers may lawfully demand that citizens move on and away from the area of a crime without impermis-sibly infringing upon Fúst Amendment rights, and failure to do so may constitute a violation of the statute which forbids resisting or obstructing an officer without violence.”)(footnote omitted).

In the instant case, as in Wilkerson, H.A.P. was not arrested for yelling profanities. Rather, H.A.P. was arrested because his actions interfered with the law enforcement officers’ execution of the search warrant. See Wilkerson, 556 So.2d at 456 (“Although a person’s speech may at times be implicated incidentally in the enforcement of [section 843.02, Florida Statutes], its plainly legitimate sweep is to reach conduct that physically obstructs or opposes an officer in the performance of lawful duties.”) As such, we affirm the order under review.

Affirmed.

COPE, J., concurs.

JORGENSON, Judge,

dissenting.

Until today I had thought that one could ignore the unlawful order of a police officer without incurring criminal liability. My colleagues think otherwise and therefore I respectfully dissent. Violation of section 843.02 requires that the respondent obstruct or oppose the officers in the execution of their duties. By any logical definition of those terms, that simply did not happen here. H.A.P. was lawfully standing in the parking lot of the apartment building in which he lives, across the street from the police activity. His presence there did not obstruct or impede the officers in their execution of the search warrant: he did not threaten — verbally or otherwise — -the officers in any manner; he did not throw anything at them; he did not block their, passage; he did not contaminate a crime scene; and he did not come into any physical contact with the officers prior to his arrest. Execution of the search, and any resulting danger to the officers, was delayed because of the officers’ own reluctance to immediately conduct the search where a bystander could be injured, not because the respondent prevented them from executing the search. The respondent was simply standing in a public area watching the police “who would certainly be a natural object of curiosity.” Alexander v. State, 693 So.2d 670, 673 (Fla. 4th DCA 1997). Clearly his conduct was transformed into a “criminal act” only when the officers requested that he leave the area, and he refused. “Thus, it is premised that under this statute the policeman can convert the character of an event from nonpunishable to punishable by proclamation alone.” State v. Manning, 146 N.J. Super. 589, 370 A.2d 499, 504 (A.D.1977) (Antell, J.A.D., dissenting).

Nor does Brown v. Miami-Dade County, 837 So.2d 414, 415 (Fla. 3d DCA 2001), cited by the majority, justify the respondent’s conviction on the basis that the government was trying to protect the potential plaintiff from injury and itself from liability; in other words, the majority implies, it’s better to arrest a potential plaintiff than face a civil suit. This is not the law. The respondent’s decision to remain in a potentially perilous situation was perhaps unwise, but not criminally punishable. If protection of the wayward bystander is necessary to properly secure a perimeter, the government must find a way of effecting this protection that does not require the arrest and criminal prosecution of those it means to protect, particularly those who are lawfully present on their property.

Because the officers had no legal authority to remove the respondent from the parking lot of his own apartment building, the respondent was well within his constitutional rights to protest their orders to leave the area. See L.A.T. v. State, 650 So.2d 214, 217 (Fla. 3d DCA 1995) (“As we all know, ‘[t]he freedom of individuals to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’ ”) (quoting City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)); J.G.D. v. State, 724 So.2d 711 (Fla. 3d DCA 1999) (“Because the order to leave and therefore the arrest for failure to obey that order were each unlawful, the juvenile had every right to resist without violence.”)- The respondent’s verbal protest and concomitant physical presence to voice that protest (so long as he does not physically obstruct the officers’ in the execution of their duties) was protected free speech. See City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

As the law is clear that offensive speech cannot constitutionally serve as a basis for violation of section 842.03, see, e.g., W.L. v. State, 769 So.2d 1132 (Fla. 3d DCA 2000) (holding that profane and offensive speech directed to officers is protected under the First Amendment to the United States Constitution), then surely mere presence cannot serve as such a basis. The majority’s construction of section 843.02 stands the statute on constitutionally unstable ground. Wilkerson v. State, 556 So.2d 453 (Fla. 1st DCA 1990), upon which the majority primarily relies, runs contrary to the Supreme Court’s decision in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). In Wilkerson, the defendant stood across the street from the scene of a narcotics investigation and arrest, cursing and yelling at the officers. Id. at 453. After the officers told the defendant to leave the area, and she refused, the officers arrested the defendant for violation of section 843.02. Id. The officers were not using the area in which she stood; there was no evidence located in the area where she stood; and she was not throwing anything at or coming into any physical contact with the officers. She was simply standing across the street, yelling obscenities. As clearly the officers in Wilkerson sought to remove the defendant from the area simply because she was a nuisance, Wilkerson is at odds with the explicit language used by the Supreme Court in Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987): criminal prosecution of speech is constitutional only where the accused’s actions “producefd] a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Wilkerson also conflicts with this court’s prior decisions. See, e.g., W.L. v. State, 769 So.2d 1132 (Fla. 3d DCA 2000) (“Respondent was ‘punished simply for asserting his right to free speech in what the police considered — and what may well have been- — an offensive manner. But the constitution does not permit that result.’ ”) (quoting L.A.T. v. State, 650 So.2d 214, 217 (Fla. 3d DCA 1995)); J.G.D. v. State, 724 So.2d 711 (Fla. 3d DCA 1999); S.D. v. State, 627 So.2d 1261, 1262 (Fla. 3d DCA 1993). See also R.S. v. State, 531 So.2d 1026 (Fla. 1st DCA 1988).

The interpretation of section 843.02 given by the majority in this case and the First District in Wilkerson renders the statute unconstitutionally overbroad and vague as to the respondent. I would reverse and certify conflict with Wilkerson.

      . As testified to by Detective Casanado, because the subject of the search warrant was still inside of the residence, H.A.P. "placed approximately twenty officers' lives in jeopardy along with himself and the crowd of people across the street."

      . See, e.g., Woodward v. Gray, 241 Ga.App. 847, 527 S.E.2d 595, 598 (2000) ("To obstruct, resist, or oppose for purposes of obstructing an officer implies forcible resistance and does not mean the refusal to merely obey the police officer's command to move more than eight feet from where the arrest was being made so that the police could perform their duties unimpeded.”).

      . By "mere presence,” I mean, of course, that type of presence which does not actually and physically obstruct an officer in the lawful execution of his or her duties. If the respondent had been, for example, blocking officers' access to a crime scene or contaminating evidence with his presence, his presence could be deemed a violation of section 842.03.

      . The only other case cited by the majority in support of its opinion is M.M. v. State, 674 So.2d 883 (Fla. 2d DCA 1996), which is factually distinguishable. In M.M., "[t]he officer and another witness testified that they thought the appellant was going to jump on the officer's back from the way she came at him. The officer told the appellant that she needed to back off, get away and leave him alone; he was taking care of an investigation and she should not interfere. She did not comply and continued to approach as the officer put out his hand to further indicate she should stop. A bystander became involved, and the situation threatened to escalate.” Id. at 884 (emphasis supplied). The defendant's threatening gestures toward the officer certainly distinguish M.M. from this case.


author: GREEN, Judge.

text:
    Junious HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2963.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2002.
   GREEN, Judge.

Junious Hayes challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the trial court’s order as it relates to one of the claims. We affirm, without comment, the denial of the other two claims.

In trial court case number 99-10915, Hayes pleaded guilty to one count of robbery and one count of robbery with a firearm. In his motion he claimed that counsel was ineffective for failing to move to suppress items found when the vehicle he was driving was illegally stopped and searched. Hayes alleged that the vehicle was stopped based on a BOLO but that the information contained in the BOLO did not provide legally sufficient grounds to stop the vehicle. He further alleged that after stopping his vehicle, the officers searched it without his permission and found the purse of the victim. Hayes alleged that if counsel had filed a motion to suppress, he would not have entered a plea to the charges but, instead, would have gone to trial. Hayes stated a facially sufficient claim for relief. See Jenrette v. State, 761 So.2d 414 (Fla. 2d DCA 2000).

The trial court denied this claim in Hayes’ motion, finding that he waived this claim by entering a plea to the charges. The trial court is incorrect. See id. Based on the record before us, we are unable to determine the merits of Hayes’ claim. We therefore reverse the denial of this claim, and remand for further proceedings. See id.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and STRINGER, JJ„ concur.


author: PER CURIAM.

text:
    Wm. Samuel McALILEY, Appellant, v. ST. JOHNS COUNTY, Florida, et al., Appellee.
    No. 5D01-3209.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2002.
    Rehearing Denied Jan. 6, 2003.
    Wm. Samuel McAliley, II, St. Augustine, Pro Se.
    James G. Sisco, Office of the County Attorney, St. Augustine, for Appellee, St. Johns County, Florida.
    Larry T. Griggs, P. A., St. Augustine, for Appellee, Jones Homes, Inc.
   PER CURIAM.

After a careful review of the record, we conclude that the trial court correctly ruled that Appellant’s claim regarding the existence of a public road over the land in which he claims title is barred by the doctrine of res judicata. We find no merit in the other issues raised on appeal.

AFFIRMED.

HARRIS, GRIFFIN and ORFINGER, R. B., JJ., concur.


author: CASANUEVA, Judge.

text:
    Jerry Ann WINTERS, Appellant, v. FLORIDA BOARD OF REGENTS and University Of South Florida, Appellees.
    Nos. 2D01-42, 2D01-4363.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2002.
    Rehearing Denied Jan. 21, 2003.

      Mark F. Kelly, Tampa, for Appellant.
    John W. Campbell, Michael D. Malfita-no, and Matthew S. Effland of Costangy, Brooks & Smith, LLC, Tampa, and R.B. Friedlander, University of South Florida, Office of the General Counsel, Tampa, for Appellees.
   CASANUEVA, Judge.

Jerry Ann Winters challenges the final agency order issued by the University of South Florida (“USF”), which upheld her dismissal as the head coach of USF’s women’s basketball team. Ms. Winters asserts that USF, as the agency, erred, first, in rejecting the finding of the administrative law judge (“ALJ”) that she did not retaliate against a player who had filed a complaint of racial discrimination against her and, second, in finding that USF improperly terminated her employment on the ground that she breached a clause of her contract by submitting an affidavit claiming that she did not know of the racial discrimination claim against her. Ms. Winters’ contention on retaliation has merit, and we reverse on that ground. We hold, however, that the agency did not err when it rejected the ALJ’s legal conclusion that the false affidavit did not constitute a ground for termination. The final agency order held that USF could determine, as a matter of policy, that Ms. Winters had breached her contract, a conclusion that we affirm. Because we have upheld only one aspect of the final order, however, we remand for USF to reconsider whether to sustain Ms. Winters’ termination on that sole ground.

The Agency Proceedings and Recommended Order

After USF decided to terminate Ms. Winters as head women’s basketball coach, she petitioned for formal administrative review, and she identified the disputed issue as whether cause as defined in her USF employment contract existed and, if such cause existed, whether the cause warranted the termination of her employment contract. The ALJ’s amended notice of hearing framed the issue similarly: whether cause existed to terminate petitioner’s employment with USF. After a de novo hearing on this issue, the ALJ made certain findings of fact, as recited below. USF then, sitting in its review capacity as the agency, rejected many of the crucial factual findings as well as the legal conclusions grounded upon those findings.

For twenty-four years Ms. Winters, a Caucasian female, had served as a head coach for women’s basketball teams. During that time players from different ethnic backgrounds had played on her teams, and before the allegations in this case arose Ms. Winters had never been charged with discriminatory conduct as a coach.

In April 1999, Melikki Dione Smith, an African-American member of USF’s women’s basketball team, filed a complaint with USF’s Office of Equal Opportunity Affairs (“EOA”) against Ms. Winters, alleging that the coach discriminated against players because of race. The complaint triggered an inquiry into the allegations.

Following the filing of the EOA complaint, Ms. Winters met with her players individually, as was her practice at the conclusion of every season, to assess team and individual performance. Most of the player-coach meetings for the 1998-99 team concluded within an hour. However, Ms. Smith’s meeting lasted several hours (charged in the final agency order to be over four hours), and was attended by an assistant coach and by Mr. Hiram Green, a USF athletic department employee. With her players’ consent, Ms. Winters made tape recordings of all meetings, as did Ms. Smith of her individual session. Ms. Winters’ recordings were admitted as evidence, but the ALJ found their general quality to be very poor; many of the remarks were unintelligible. Ms. Smith’s recordings were neither offered nor admitted into evidence by either party.

Based on a review of the tape recordings and other evidence of the meetings, the ALJ found that Ms. Winters was aware during the April 1999 meetings that allegations of discrimination because of race had been made by some of the African-American players, including an allegation in a letter that Ms. Smith had written to USF officials regarding the situation as she perceived it. No evidence existed suggesting that any player was unable either to leave or terminate her postseason interview, during which the African-American players raised issues with Ms. Winters regarding game playing time, practice situations, and team travel accommodations.

As for the Winters/Smith meeting, the ALJ characterized the interview as a “frank discussion between the coach and the player about the problems perceived by each,” rather than as evidence of “some type of disparate treatment.” Ms. Winters asked Ms. Smith about the alleged discriminatory conduct, and she responded to each proffered allegation. In a discussion of team discipline, the coach explained that because players are subordinate to the coaches, it was unacceptable for Ms. Smith to shout back at an assistant coach who had yelled at her.

Although the events of the following season established that it was difficult for Ms. Winters and Ms. Smith to work together, the 1999-2000 women’s basketball regular season and Conference USA tournament “passed without major incident.” As the team returned to USF following its last game of the season in March 2000, however, events took a significant turn. Various team members sang songs on a shuttle bus from the Tampa airport to the campus, creating verses as they sang. Although there was some dispute as to the exact words, Ms. Smith composed and sang a lyric to the effect of “we ain’t gonna have no coach no more.” Suddenly the formerly good mood on the bus turned tense. Ms. Winters interpreted the lyric as an insult; some players thought that the song reflected Ms. Smith’s lack of respect for the coach.

On April 10, 2000, Ms. Winters met with Ms. Smith to ask for an explanation of the meaning of the verse. Ms. Smith first questioned Ms. Winters’ ability to hear the lyric, then denied singing it, and finally offered a nonsensical explanation. During that meeting Ms. Smith also challenged the coach’s authority and criticized her for failing to call a team meeting. Because Ms. Smith’s reason for singing the song was unacceptable and because she was displeased with Ms. Smith’s criticism, Ms. Winters advised her that if she could not provide a rational explanation for the lyric, Ms. Smith would be removed from the team. Unlike the interview following the preceding season, only the coach and player were present at this meeting.

The next day Ms. Smith and Ms. Winters encountered each other at the USF basketball court. Ms. Winters restated her decision to dismiss Ms. Smith from the team unless an explanation for the lyric was forthcoming, but Ms. Smith never provided one. Later, Ms. Smith called a meeting with other players and told them that she had been dismissed from the team for her behavior on the bus — singing the lyric.

On April 26, 2000, Ms. Smith filed an “allegation” of retaliation by Ms. Winters with USF’s EOA office. The “allegation” was followed by the filing of a formal complaint on August 28, 2000, which precipitated an investigation and ultimately the issuance of a final investigative report to which Ms. Winters was asked to respond. Specifically, the allegations were that Ms. Smith had participated in a 1999 investigation conducted by Hiram Green regarding alleged race discrimination by Ms. Winters; that the coach knew that Ms. Smith had participated in the investigation; that Ms. Smith was dismissed from the basketball team on April 10, 2000; and that Ms. Smith was dismissed because of her participation in the 1999 investigation conducted by Mr. Green.

Ms. Winters’ affidavit of response to the allegations is crucial to this proceeding. In it she stated that she did not know whether Ms. Smith participated in the investigation nor did she know which team members participated in the investigation; that Ms. Smith was dismissed from the basketball team for her behavior on the bus trip and her conduct in the subsequent meeting to discuss the lyrics she sang; and that Ms. Smith’s dismissal from the team had nothing to do with her participation in any investigation.

At the hearing before the ALJ, USF contended that Ms. Winters was dishonest because she was in fact aware that Ms. Smith was one of the players who had filed a complaint against her in April 1999. Her affidavit of response thus formed the grounds for termination of her USF contract under section 8.c.(5), which defines “cause” as “[a]ny fraud or dishonesty of Coach while performing the duties required by this Agreement, including but not limited to, falsifying, altering or otherwise fraudulently preparing any docu-mentes) or record(s) of, or required by, the University.... ” On this issue, the ALJ found as fact that the “weight of the evidence establishes that Winters was aware in April 1999 that Smith had written a letter to USF officials regarding the alleged discrimination. It is reasonable to infer that Winters suspected that Smith participated in the investigation.” Based upon a review of the tapes from the April 1999 meetings, the ALJ also found that “Winters was aware during the April 1999 meetings that some of the African-American players were alleging discrimination because of race” and that Ms. Winters was “aware that Smith had written a letter to USF officials about the situation, although it is unclear whether Winters knew Smith had officially filed a discrimination complaint.”

The final concern in the agency proceeding was the situation surrounding the issuance of the EOA final investigative report. The report contained unsworn statements made to the EOA investigator, Camille Blake, by numerous witnesses including Hiram Green and Ms. Smith. The ALJ concluded that- Ms. Blake followed the appropriate EOA procedure in compiling the report, but her testimony at the hearing concerning the report was rife with uncorroborated hearsay. Although the report was admitted into evidence in the hearing before the ALJ, neither Ms. Smith nor Mr. Green was called to offer sworn testimony, and the ALJ accorded it no weight. Upon review, however, the agency concluded that it was admissible evidence.

Based upon the foregoing findings, the ALJ concluded that when Ms. Winters dismissed Ms. Smith from the team, she had not done so in retaliation for Ms. Smith’s earlier filing of a complaint alleging racial discrimination. Thus, USF had no cause to fire Ms. Winters based on retaliation. The second charge — that Ms. Winters acted dishonestly — was more problematic. As noted above, the ALJ found that Ms. Winters was aware that Ms. Smith had written a letter alleging racial discrimination, and from that knowledge inferred that Ms. Winters knew Ms. Smith had participated in the EOA investigation. The fact that Ms. Winters stated in her response affidavit that she was unaware of the charge was not of paramount significance, in the ALJ’s view. The ALJ found that there was nothing to refute Ms. Winters’ testimony that she responded as directed by her legal counsel, and he concluded that her written response was not an attempt to mislead USF officials or to otherwise deceive them. The ALJ concluded: “There is no evidence that the written response, without evidence of other cause, is sufficient to warrant termination of the head coaching agreement between Winters and USF.”

The Final Agency Order

After the recommended order was issued, USF filed a number of written exceptions. At the outset, USF argued that the ALJ had misstated the ultimate issue in the case, which was whether there was cause warranting termination of the coaching agreement based on Ms. Winters’ breach of contract. The retaliation and dishonesty issues, USF claimed, were elements of proof, but by framing the issue as whether USF was justified in terminating Ms. Winters on one or both of those grounds, the ALJ had imposed an improper burden of proof on USF. The agency in its final order granted this first and crucial exception and declared that both sides had agreed in a prehearing stipulation that the narrow issue was whether USF had sufficient cause, as the term is defined in Ms. Winters’ employment contract, for terminating her employment.

A number of other exceptions dealt with the ALJ’s findings of fact concerning the postseason interviews. The agency modified the ALJ’s findings about the length of the Winters/Smith meeting and declared that it lasted four and a half hours. Overall, the agency concluded, the interviews of those African-American players who complained of racial discrimination were longer than the others and were a form of retaliation for having filed those complaints. Furthermore, from its full review of the record and all of the tape recorded interviews, the agency concluded that the evidence revealed “that [Ms. Winters’] actions towards Ms. Smith were unreasonable — not so much for just what was said as for how [Ms. Winters] said it, and for how long.” From this disparate length of the Winters/Smith interview compared with the interviews of other players, together with the unreasonable nature of the interview, the agency found that Ms. Winters-acted unreasonably toward Ms. Smith in a desire to retaliate against her.

USF also challenged the findings in the recommended order concerning Ms. Winters’ alleged falsification of a document provided to the University as part of the ongoing investigation. In its final order the agency found that the wording of the recommended order on that issue was equivocal and improperly blended findings of fact and a conclusion of law. The agency agreed with the finding that it was reasonable to infer that Ms. Winters suspected that Ms. Smith participated in the investigation but rejected the conclusion that it was illogical to conclude that Ms. Smith’s answers were intended to conceal information from or to deceive USF officials. The agency characterized this as a legal conclusion and decided to disregard it.

Finally, the agency reviewed the record and found that Ms. Winters’ written response to the questions posed to her during the EOA hearing were “flatly inconsistent with” other statements she made in the tape recorded interviews and in other EOA investigative interviews and that this discrepancy resulted from Ms. Winters’ intentional acts, not from negligence or mistake. From that point, it became a matter of policy within the expertise of the agency, not the ALJ, to decide whether the intentional misstatements were sufficient grounds for Ms. Winters’ termination. Ultimately the agency concluded, from a full review of the record including the EOA final investigative report, that Ms. Winters engaged in retaliation and that she breached the trust expected of the head coach of the women’s basketball team. On those grounds the agency concluded that cause existed for USF to terminate Ms. Winters’ contract.

Discussion and Decision

This appeal presents three primary issues: whether there was retaliation as found by the agency; whether Ms. Winters was dishonest in her responses as found by the agency; and, if the answer to either or both of those issues is affirmative, whether either or both constitute cause for termination.

At the outset we note the limited scope of our review, which is provided by section 120.68(1), Florida Statutes (2000), for any “party who is adversely affected by final agency action.” A court is empowered to set aside agency action where the agency’s action is dependent on findings of fact that are not supported by competent, substantial evidence in the record of the hearing, or where the agency has erroneously interpreted a legal proposition, and a correct interpretation would compel a particular action. § 120.68(7).

Beginning with the retaliation claim, we reject the agency’s assertion that the issue is whether it had good cause to believe there had been retaliation. While that standard may support the commencement or continuation of an internal investigation, it does not constitute a basis for termination of the employment contract at issue here. Accordingly, the ALJ did not err in setting forth the issue for resolution as “whether there was cause under the terms of Winters’ contract of employment with USF to permit USF’s termination of the contract.”

Because the agency rejected the ALJ’s conclusion that the EOA investigative report should be disregarded, we next address the extent to which that report may be considered as evidence. The statements of the various witnesses in the EOA investigation were not made under oath. Before testifying in either a judicial or administrative hearing a witness is required to “declare that he or she will testify truthfully.” § 90.605(1), Fla. Stat. (2000). The general rule is that an un-sworn witness is not competent to testify. Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982).

A further infirmity was that the report consisted almost entirely of inadmissible hearsay. Its purpose was not to prove that the university followed proper protocol but rather to establish that its employee engaged in allegedly impermissible retaliatory behavior. Thus, it was offered to prove the truth of the matter being asserted by the university, and the many out-of-court statements it contained were made by declarants not present at the administrative hearing for cross-examination. Because the report was both unsworn and hearsay, the ALJ committed no error in failing to admit or to consider its contents. Conversely, the agency erred by concluding that the report constituted competent evidence upon which it could base its conclusion.

In determining whether prohibited retaliation occurred, federal judicial opinions shed light on the issue of whether the timing of the conduct permits an inference of a causal connection between a protected act and an act of retaliation. In Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998), the court considered a thirteen-month interval between the employee’s charge and his alleged retaliatory termination. “A thirteen month interval between the charge and termination is too long to establish causation absent other evidence of retaliation.” A similar result was reached by the Eleventh Circuit Court of Appeals in Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir.1999), where the court found that intervening time periods of fifteen and twenty-one months “were isolated events that had no temporal relationship to Appellant’s protected activity. The more than 15-month period that elapsed between Appellant’s grievance and the alleged adverse employment actions belies her assertion that the former caused the latter.”

Here, the time between the player’s grievance and her discharge from the team exceeded a year. In fact, Ms. Smith played for the team during the intervening season. Because there was no other competent admissible evidence of retaliation adduced in the administrative hearing, the ALJ’s finding of no retaliatory conduct was correct; the agency’s conclusion to the contrary was error as it was based on the EOA investigative report and not on competent or substantial evidence.

The final evidentiary factor is the significance of the individual players’ interviews. The meeting between Coach Winters and Ms. Smith lasted over four hours and was attended by an assistant coach and by Hiram Green, an athletic department employee. As previously noted, neither Mr. Green nor Ms. Smith testified before the ALJ. This assumes a greater importance because the ALJ found that the tape recordings were of poor quality. Nevertheless, from those inadequate tapes the agency concluded that the long duration of the Winters/Smith interview when compared to the shorter duration of the interviews of players who had not complained about the coach was evidence of the interview’s unreasonable nature, and, thus, that the coach acted unreasonably toward the player. Because this conclusion flows from the weight to be given the testimony, the agency was without authority to reject the ALJ’s evidentiary finding, and thus we set aside the agency’s finding on retaliation.

The second issue is whether the agency erred in concluding that Ms. Winters’ responses to the university investigation were dishonest. As recently stated,

[a] reviewing court may set aside agency action when it finds that the action is dependent on any finding of fact that is not supported by competent substantial evidence in the record, a material error in procedure, an incorrect interpretation of the law, or an abuse of discretion.

Gross v. Dep’t of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002). After carefully scrutinizing the record and applying this standard, we affirm the final agency action in this regard.

The remaining issue is the propriety of the agency’s rejection of the ALJ’s recommendation that Ms. Winters be reinstated to her position because her conduct-supplying the university with dishonest answers in the EOA investigation— was not sufficient to warrant termination of her employment. USF correctly asserts that the determination of whether conduct constituting a breach of the employment contract is grounds for termination is within the reviewing agency’s authority. On issues of law, an agency is not required to defer to the administrative law judge. State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So.2d 607, 609 (Fla. 1st DCA 1998). Thus, where the matter under review “is infused with overriding policy considerations, the issue should be left to the agency.” Pillsbury v. State, Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1042 (Fla. 2d DCA 1999).

In these situations the agency should decide personnel decisions such as whether to terminate employment or to impose other lesser punishment for a breach of contract or other employment standards. Here, the parties bargained for a contract provision that mandated honesty and candor in university matters. Section 8,c.(5) of the contract, as found by the ALJ, provides that any fraud or dishonesty in the performance of coaching duties, including falsifying any report or record required by the university, constitutes “cause,” which is a basis to terminate the contract. This falls within the sphere of policy, and it is the university’s prerogative to exercise its discretion and impose what it deems to be appropriate disciplinary action, including employment termination. Therefore, we hold that the agency did not err in concluding that “as a matter of policy, based upon the public trust obligations of public employees, this Agency holds that Petitioner’s actions in falsifying those answers are grounds for termination. As a result, cause, as defined by Petitioner’s employment contract, existed for USF to terminate the contract.”

The agency’s final decision concludes, in part, that “for the reasons herein discussed, the Agency hereby finds that cause did exist for USF to terminate the employment contract of women’s basketball coach, Jerry Ann Winters.” Because it appears that the agency’s decision to terminate the contract rested upon both “reasons ” — retaliation and dishonesty — we are unable to ascertain whether the same discretionary sanction would have been imposed by the agency on the sole ground upheld by this court. We recognize that the severity of Ms. Winters’ penalty may transcend this case and affect other university personnel decisions. Therefore, in light of the language in the final agency decision, we remand for further proceedings for the agency to determine the appropriate action consistent with this court’s determination that only one basis for cause has been established.

Affirmed in part, reversed in part, and remanded.

STRINGER and SILBERMAN, JJ., Concur.

      . In this appeal we will refer to the University of South Florida in its capacity as a party as "USF” or "the university.” The University of South Florida is also the agency that reviewed the administrative law judge's recommended order, and we will refer to the university as "the agency” for its actions in that capacity.

      . Ms. Smith did not state at this meeting that her dismissal from the team was related to her filing a complaint against the coach a year earlier.

      . Had these witnesses been called, the ALJ would have had an opportunity to measure their credibility and perhaps make further findings of fact. The believability of a witness is often determined after cross-examination. For example, the record includes allegations that Ms. Smith had threatened another team member with physical violence after the team member had met with USF athletic department officials and that Ms. Smith had undermined the coach’s authority. Unfortunately, as Ms. Smith was never called to testify, neither the allegations nor her responses could be evaluated by the ALJ.


author: SALCINES, Judge.

text:
    EXTENDICARE, INC.; Extendicare Health Services, Inc.; Extendicare Health Facilities, Inc.; Seminole Care, LLC; Northern Health Facilities, Inc.; and Tandem Health Care of Florida, Inc. (as to Arbors at St. Petersburg), Petitioners, v. Susan JOHNSON, Executor de son Tort of the Estate of Norma J. Johnson, Respondent.
    No. 2D01-4949.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2002.
    Marie A. Borland, Donna J. Fudge, and John L. Holcomb, Tampa, for Petitioners.

      Brian L. Thompson and Susan B. Morrison, Tampa, for Respondent.
   SALCINES, Judge.

Extendicare, Inc.; Extendicare Health Services, Inc.; Extendicare Health Facilities, Inc.; Seminole Care, LLC; Northern Health Facilities, Inc.; and Tandem Health Care of Florida, Inc. (as to Arbors at St. Petersburg) (hereinafter collectively “Extendicare”) have filed a petition for writ of certiorari to quash a pretrial discovery order requiring them to disclose allegedly confidential information about employees of a nursing home. We deny the petition.

The Florida Supreme Court has recently issued an opinion in Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla.2002), which held that a private employer, not subject to the Public Records Act, does not have standing to challenge a discovery request based exclusively upon the privacy interest of nonparty employees in their personnel files. In their petition for writ of certiorari, Extendicare is attempting to challenge the discovery order on this very basis. Because Extendicare has no standing, the trial court could not have departed from the essential requirements of law when it granted the Estate’s motion to compel and ordered the disclosure of the requested information. Accordingly, we deny the petition for writ of certiorari.

The petition for writ of certiorari is denied.

STRINGER and SILBERMAN, JJ., concur.


text:
    Steacyanne REIGHN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-984.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2002.
    Rehearing Denied Jan. 10, 2003.
    Steacyanne Reighn, pro se.
    Robert A. Butterworth, Attorney General, James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Steacyanne Reighn, appeals the trial court’s order summarily denying her postconviction motion as successive under Florida Rule of Criminal Procedure 3.850, contending that she instead filed it pursuant to Florida Rule of Criminal Procedure 3.853. Although the trial court erred by treating Reighn’s petition as having been filed under rule 3.850, we nevertheless affirm, because the motion was barred by section 925.11, Florida Statutes (2002).

Section 925.11(l)(a) provides that a defendant may file a postsentence motion requesting DNA testing if the defendant “has been tried and found guilty of committing a crime,” whereas Reighn pled nolo contendere before trial. We therefore affirm the trial court’s summary denial as right, but for the wrong reason. See Howard v. State, 462 So.2d 31 (Fla. 1st DCA 1984) (observing that even if the trial court denies relief based upon an incorrect principle, the appellate court will affirm if the right result was obtained); State v. R.M., 696 So.2d 449 (Fla. 4th DCA 1997).

AFFIRMED.

ERVIN, BARFIELD and WOLF, JJ., concur.


text:
    ALACHUA COUNTY HEALTH DEPARTMENT (ACHD), Appellant, v. Barbara Rochelle CUMMINGS, Appellee.
    No. 1D02-1019.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2002.
    Rehearing Denied Jan. 13, 2003.
    Robert A. Butterworth, Attorney General, and Mark S. Dunn, Assistant Attorney General, Tallahassee, for Appellant.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, for Appellee.
   PER CURIAM.

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vii) does not provide a basis for exercise of appeal jurisdiction in this case. See State Board of Education v. Azer, 832 So.2d 787 (Fla. 1st DCA 2002). Because we decline to review the case pursuant to our certiorari jurisdiction, the case is dismissed.

ERVIN, BARFIELD, and WOLF, JJ., concur.


text:
    Timothy E. WHITE, Appellant, v. Michael MOORE, Appellee.
    No. 1D02-2943.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2002.
    Rehearing Denied Jan. 10, 2003.
    Appellant, pro se.

      Robert A. Butterworth, Attorney General, and Louis A. Vargas, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 3, 2002, the Court has determined that the appeal was not timely filed. Accordingly, the appeal is hereby dismissed for lack of jurisdiction. Furthermore, the appellant’s motion to relinquish jurisdiction, filed on October 18, 2002, is denied as moot.

DISMISSED.

BROWNING, LEWIS and POLSTON, JJ., concur.


author: GREEN, Judge. BLUE, Chief Judge,

text:
    William Charles HALE, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-604.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2002.
    Rehearing Denied Jan. 9, 2003.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for Appel-lee.
   GREEN, Judge.

In this civil commitment action instituted pursuant to the Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act, more commonly known as the Jimmy Ryce Act, sections 394.910-.931, Florida Statutes (1999), the appellant, William Charles Hale, appeals the trial court’s final judgment and order declaring him to be a sexually violent predator and committing him indefinitely to the custody of the Department of Children and Family Services. Based on the Florida Supreme Court’s recent decision in Westerheide v. State, 831 So.2d 93 (Fla.2002), we affirm.

Hale raises several points on appeal, only two of which merit discussion. Hale contends that the instruction given by the trial judge in this case was wrong when given and is now determined to be insufficient by the majority ruling of the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). In Crane, the Court held there must be a finding that the subject has serious difficulty in controlling his or her behavior. Id. at 870.

The trial judge gave, in,pertinent part,, the following instruction:

To prove the Respondent, William Charles Hale, is a sexually violent predator, the State must prove each of the following three elements by clear and, convincing evidence:
1. William Charles Hale has been convicted of a sexually violent offense.
2. William Charles Hale suffers from a mental abnormality or personality disorder.
3. The mental abnormality or personality disorder makes William Charles Hale likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care[,] and treatment.
A “mental abnormality” means mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.
“Likely to engage in acts of sexual violence” means a person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

Mr. Hale requested the following instruction, which was refused:

To prove its case, the State must prove each of the following three elements by clear and convincing evidence: .
• (b) William Charles Hale suffers from a mental abnormality or personality disorder ' that makes it difficult!,] if not impossible, for him to control his dangerous behavior arid,

We determine that the instruction given was adequate. In effect, the jury in the instant case was instructed that it must consider Mr. Hale’s “emotional or volitional capacity which predisposes” him to commit sexually violent offenses. In rejecting a similar argument by Westerheide, the supreme court held: “[W]e do not find that Crane requires a specific jury instruction, but rather that there must be proof of ‘serious, difficulty in controlling behavior’ in order to civilly commit an individual as a sexually violent predator.” Westerheide, 831 So.2d at 107.

In Crane, the Supreme Court explained that when-it approved Kansas’s sexually violent predator act in Kansas v. Hendricks, 521, U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), it did not give “lack of control” a -particularly narrow or technical meaning because inability to control behavior is not demonstrable with mathematical precision. Crane, 122 S.Ct. at 870. The Court further explained that the Constitution’s liberty safeguards in the area of mental illness are not best enforced through bright-line rules.- The Court in Crane also-noted that states retain considerable leeway in defining the mental abnormalities'and personality disorders that make an individual eligible for commitment.

Despite this reasoning, in Crane the Court held there must be proof of serious difficulty in controlling behavior. The instruction given in this case encompassed the requirements for civil commitment and contained the definitions for mental abnormality or personality disorder and likely to engage in acts of sexual violence. We conclude the jury was adequately instructed with respect to Hale’s volitional capacity to control his behavior.

We also disagree with Hale’s claim that the Act violates the double jeopardy and ex post facto clauses of the Florida and federal Constitutions. See Westerheide.

Affirmed.

COVINGTON, J, Concurs.

BLUE, C.J., Concurs specially with opinion.

BLUE, Chief Judge,

Concurring.

Based on the supreme court’s decision in Westerheide, I reluctantly concur' in this decision. I have sympathy for any court called on to decide the issue in this case. Wé are required to reach a decision based on Crane, a United States Supreme Court case which at best lacks clarity.

In order to understand the problem this case presents, it is necessary to understand what the Act does not do. The Act does not provide a solution to criminals who willfully commit sexual crimes. because they are -evil. ■ Our Constitution does not allow the further confinement of criminal defendants after completion ■ of their prison sentences if they are fully capable of controlling their criminal acts. This would constitute double jeopardy. To continue the confinement, it must constitute a civil remedy, which cannot be imposed for criminal conduct without a psychological component. According to the United States Supreme Court, the constitutionally required psychological component is “serious difficulty in controlling behavior.” Crane, 122 S.Ct. at 870. The proof of this “must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Crane, 122 S.Ct. at 870.

The difficulty in understanding Crane results from the insistence of that Court’s majority opinion to reaffirm its prior holding in Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501, where the Court found constitutional the same Kansas statute considered in Crane. Just five years after Hendricks, however, the Supreme Court found constitutionally inadequate a jury instruction that failed to separate criminals from those properly subjected to the civil remedy of indefinite confinement. How, one might ask and I do, can a statute be constitutional when its terms, without additional verbal description, fail to separate constitutional and unconstitutional confinement? This is not an original question, but appears to be the basis of Justice Scalia’s dissent. Crane, 122 S.Ct. at 872 (Scalia, J., dissenting).

That brings us to the question in this case. Did the jury instruction used below allow the' jury to qualify Mr. Hale for further confinement because he committed serious criminal offenses or because he has serious difficulty controlling his behavior? But for the Florida Supreme Court’s recent decision, I would conclude that the instruction does not meet the standard set out in Crane. ' The instruction allows for commitment of the defendant if he is “likely to engage' in acts of sexual violence” because of personality disorder or mental abnormality. The instruction goes on to provide that • a “mental abnormality” affects a person’s emotional or volitional capacity. I agree that the term “volitional” relates to ability to control; it may even be the equivalent to serious difficulty in controlling. However, the term appears in this instruction in the disjunctive. Thus, the instruction does not require a jury to find lack of volitional capacity before deciding that further confinement is required. If the defendant is capable of controlling his inclination toward crimes of sexual violence, the jury’s decision would compel confinement for criminal propensity, which is not allowed. There must be serious difficulty in controlling his conduct to meet constitutional muster.

I would follow the reasoning and outcome of the First District’s opinions on this question of jury instructions. See, e.g., Hudson v. State, 825 So.2d 460 (Fla. 1st DCA 2002); White v. State, 826 So.2d 1043 (Fla. 1st DCA 2002); Converse v. Dep’t of Children & Families, 823 So.2d 295 (Fla. 1st DCA 2002). But given the supreme court’s decision in Westerheide, these cases do not state the law in Florida. Therefore, reluctantly, I concur.

      . As the Supreme Court explained in Crane, the discussion in Hendricks was limited to volitional disabilities. "The Court in Hendricks had no occasion to consider whether confinement based solely on 'emotional’ abnormality would be constitutional, and we likewise have no occasion to do so in the present case.” 122 S.Ct. at 872.


author: DAVIS, Judge.

text:
    Rosendo RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2335.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2002.
    Rosendo Ramos, pro se.
    Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   DAVIS, Judge.

Rosendo Ramos appeals the dismissal of his petition for a writ of habeas corpus. The circuit court dismissed the petition on a finding that Ramos has not exhausted all available administrative remedies. We allowed the Florida Parole Commission to intervene and it concedes that there are no available administrative remedies to address the parole issues raised by Ramos. Therefore, we reverse the order of the circuit court and remand for the circuit court to consider Ramos’ petition on the merits. We do not address whether or not Ramos’ petition has any merit.

Reversed and remanded for further proceedings.

FULMER and GREEN, JJ., Concur.


text:
    Lisa Marie ADAMS, Appellant, v. Bruce L. NARKIEWICZ, Appellee.
    No. 3D01-3420.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2002.
    Rehearing Denied Jan. 15, 2003.

      Lisa Marie Adams, in proper person.
    Kurt R. Klaus, Miami, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   On Motion to Dismiss

PER CURIAM.

Appellant Lisa Marie Adams appeals from an order striking her Motion to Set Aside Order of Child Support. We dismiss the appeal as untimely.

Adams was ordered to pay child support by the Final Judgment entered in 1994. Adams filed a Motion to Remove Any Order to Compel Payment of Child Support on November 30, 1998. The trial court’s order of December 28, 1998, which ratified the general master s report enforcing payment of child support served as a denial of that motion. Adams did not appeal that order.

Adams’ argument on appeal is that she was not properly noticed for the September' 10, 1997 hearing at which her former husband first sought enforcement of the Final Judgment and should therefore be excused from paying child support. This issue was already resolved by the December 28, 1998 order. Thus, Adams’ motion was actually a motion for rehearing and her appeal is untimely pursuant to Florida Rule of Appellate Procedure 9.110(b). Her time to appeal this issue expired January 27, 1999. See Bertrand v. Bertrand, 828 So.2d 436 (Fla. 3d DCA 2002), (citing Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). Since Adam’s Motion to Set Aside Child Support is also duplicative of her motion of November 30, 1998, the trial court properly struck the motion as repetitive. See Veloso v. Trustcorp Capital Leasing, 791 So.2d 1138 (Fla. 3d DCA 2001).