author: GEIGER, DWIGHT L„ Associate Judge.

text:
    Jerry W. GRIFFIN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D03-955.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      Jerry W. Griffin, Pompano Beach, pro se.
    John D. Maher, Tallahassee, for appel-lee.
   GEIGER, DWIGHT L„ Associate Judge.

This appeal arises from a final order denying unemployment benefits. After denial of his initial claim for unemployment benefits, Jerry W. Griffin appealed to the Florida Unemployment Appeals Commission. His appeal was dismissed by the referee on December 11, 2003, because Griffin failed to appear at a hearing. The notice of dismissal was mailed on December 12, 2002. Griffin appealed the dismissal on January 10, 2003. Because this was over twenty days after the initial dismissal, his appeal was dismissed as untimely on the authority of section 443.151(4)(b)3, Florida Statutes. For the reasons outlined below, we reverse the order of dismissal.

Prior to the final dismissal of his appeal, Griffin filed a letter with the Commission which explained that his late appeal was because of a post office mistake in handling his mail. He attached a form affidavit which was notarized and signed but was blank in the place provided for an explanation. He also attached a copy of a complaint he had submitted to the post office.

Section 442.151(4)(b)3 provides in part:

The parties shall be promptly notified of such referee’s decision; and such decisions shall be final unless, within twenty days after the date of mailing of notice thereof to the party’s last known address ..., further review is initiated.

Florida Administrative Code Rule 38E-5.007 states: “If the referee finds that the appeal was not filed within the time allowed by law, it shall be dismissed.” An exception to the twenty-day rule has been created by case law where delay in receipt of a notice from the unemployment commission affects due process rights. See Oliver v. Unemployment Appeals Comm’n, 616 So.2d 1088 (Fla. 4th DCA 1993).

In Oliver, this court reversed the dismissal of an unemployment claim where the appellant contended that he did not receive notice of the dismissal due to delays with the mail. Ultimately, this court sent Oliver back to the Commission for an evidentiary hearing concerning the date of Oliver’s receipt of his notice and the timeliness of filing the notice of appeal. Id.

The decision of the Unemployment Appeals Commission has due process implications and we thus reverse the order below for the Commission to hold an evidentiary hearing concerning the date of Griffin’s receipt of the initial notice of dismissal and the timeliness of his filing the notice of appeal. We do this in part because of Griffin’s pro se status. “In the history of jurisprudence, pro se litigants have frequently been granted leniency in technical matters.” Barrett v. City of Margate, 743 So.2d 1160 (Fla. 4th DCA 1999).

REVERSED AND REMANDED.

STEVENSON and SHAHOOD, JJ., concur.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Donald Alan TOBKIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1090.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Donald A. Tobkin, Hollywood, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for Appellee.
   KLEIN, J.

The trial court found appellant guilty of criminal contempt. The trial judge’s order to show cause why appellant should not be held in contempt was based on appellant’s wife’s unsworn motion stating that appellant had failed to comply with a court order requiring him to pay attorney’s fees. We agree with appellant that the proceeding failed to comply with Florida Rule of Criminal Procedure 3.840(a) which provides:

Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.

The order to show cause was neither on the judge’s own motion nor on an affidavit. This constitutes fundamental error requiring reversal. Mix v. State, 827 So.2d 397 (Fla. 2d DCA 2002). Reversed.

WARNER and POLEN, JJ., concur.


author: POLEN, J.

text:
    Doreen H. CAMPBELL, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Appellee.
    No. 4D03-1955.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    James R. Mitchell of Baker & Hostetler LLP, Orlando, for appellant.
    Juana Carstarphen Watkins, Tallahassee, for appellee.
   POLEN, J.

This appeal arises from a final order of the Department of Business and Professional Regulation (DBPR) suspending Doreen Campbell’s real estate license for one year and imposing an administrative fine of $2,500. For the reasons explained below, we reverse that order.

Doreen Campbell is a state certified real estate residential appraiser. She was charged with violating the standard for developing or communicating an appraisal and for failing to exercise reasonable diligence in developing the report. Campbell disputed some of the factual allegations in the complaint and the case was referred to the division of administrative hearings. After a hearing, the Department of Business and Professional Regulation suspended Doreen Campbell’s real estate license for one year and imposed an administrative fine of $2,500.

On appeal, Campbell asserts that disputed issues of material fact came up at the informal hearing that should have resulted in a formal hearing being conducted.

Section 120.57, Florida Statutes, provides the applicable procedures that apply in hearings involving disputed issues of material facts as well as hearings that do not. The statutory section that applies to hearings involving disputed factual issues provides in part that “an administrative law judge assigned by the division shall conduct all hearings under this subsection ....”§ 120.57(l)(a), Fla. Stat. (1996) The statute also provides that:

When, in any proceeding conducted pursuant to this subsection, a dispute of material fact no longer exists, any party may move the administrative law judge to relinquish jurisdiction to the agency. An order relinquishing jurisdiction shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting and opposing affidavits, if any, that no genuine issue as to any material fact exists. If the administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge.

§ 120.57(l)(i)(1996), Fla. Stat.

We find it telling that under the notes of the amendments to this statutory provision the original statute included the sentence: “[ujnless waived by consent of all parties and the agency involved, subsection (1) shall apply to the extent that the proceeding involves a disputed issue of material fact.” However, that sentence is no longer part of the statute. Rather, the statute now provides the procedures that shall apply when there is a disputed issue of material fact. As a result, we believe the legislature specifically intended the right to a formal hearing under this provision to not be subject to waiver.

In addition, Rule 28-106.35 of the Florida Administrative Code clearly states that if during an informal hearing a disputed issue of material fact arises, the proceeding shall be terminated and proceed as a formal hearing. As a result, we reject the Department’s contention that Campbell’s right to a formal hearing was waived.

Once a disputed issue of material fact came out at the informal hearing, Campbell was entitled to a formal hearing. For that reason, we reverse the order and send the case back for a formal hearing pursuant to section 120.57(1), Florida Statutes (1996).

We are unpersuaded by the other issues raised in this appeal.

REVERSED AND REMANDED.

WARNER and KLEIN, JJ., concur.


author: PER CURIAM.

text:
    EASTRICH NO. 157 CORPORATION, a Massachusetts corporation, d/b/a Park Terrace Apartments, AEW Capital Management, L.P., a Massachusetts Limited Partnership, d/b/a Park Terrace Apartments, and Gables Residential Services, Inc., a Texas corporation, f/k/a Trammel Crow Residential Services, Inc., a Texas corporation, d/b/a Park Terrace Apartments, Petitioners, v. Claudia C. GATTO, Respondent.
    No. 4D03-4443.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for petitioners.
    Steven H. Osber of Rothstein, Rosen-feldt, Dolin & Pancier, P.A., Fort Lauder-dale, for respondent.
   PER CURIAM.

Eastrich No. 157 Corporation seeks relief from an order that disqualified its counsel. See, e.g., Koulisis v. Rivers, 730 So.2d 289 (Fla. 4th DCA 1999). We grant the petition.

The underlying action involves a premises liability claim. The employee at issue worked as a legal secretary for plaintiff/respondent’s counsel. After being terminated from her employment as a secretary with the plaintiffs firm, the employee at issue was given the opportunity to work part time for Eastrich’s attorney’s firm. As an independent contractor the former employee worked at the opposing firm for two days, for five hours each day entering billing data into the computer. The billing records did not concern the underlying case. Albeit reluctantly, the trial court looked to Koulisis, and granted the motion to disqualify defense counsel.

In Koulisis we held that once a party moving for disqualification had established a prima facie case for attorney disqualification, the burden of proof shifted to the law firm whose disqualification was sought. Its burden was to demonstrate by the greater weight of the evidence that the secretary had no actual knowledge of any confidential information material to the case. Through this petition, Eastrich asks this court to reconsider our opinion in Koulisis in favor of the view allowing for the screening of non-lawyer employees. See, e.g., Stewart v. Bee-Dee Neon & Signs, Inc., 751 So.2d 196, 198-99 (Fla. 1st DCA 2000); City of Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997); Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2d DCA 1988).

We adhere to our opinion as stated in Koulisis, but find it distinguishable from the case before us. As detailed above, the employee herein was not hired as an employee or legal secretary by the opposing party’s firm, nor did she perform any secretarial duties. Although there is no apparent dispute that during her employment at plaintiffs counsel’s firm she was privy to privileged information concerning the case, her brief, and now-completed, employment in opposing counsel’s firm, in a non-legal capacity, represents an exception to the rule in Koulisis.

CERTIORARI GRANTED AND ORDER QUASHED.

POLEN, KLEIN and TAYLOR, JJ., concur.


author: WELLS, Judge.

text:
    Marvalyn LONGMORE and Ernie Longmore, as personal representative of the estate of Romaine O. Longmore, deceased, Appellants, v. SAGA BAY PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 3D03-1456.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Stone & Pestcoe and David Stone and Scott Pestcoe; Thomas M. Pflaum, Miami, for appellants.
    Cole, Scott & Kissane and Betsy E. Gallagher and Dorothy C. Venable, Tampa, for appellee.
    Before COPE, LEVY, and WELLS, JJ.
   WELLS, Judge.

The parents of a drowning victim appeal dismissal of their wrongful death claim. We affirm on the authority of Saga Bay Property Owners Ass’n v. Askew, 513 So.2d 691 (Fla. 3d DCA 1987) (Saga Bay I).

While attending an after-school function, 16 year-old Romaine 0. Longmore drowned in Saga Bay Lake, a man-made lake located behind the home of another student. Romaine’s parents subsequently brought a wrongful death action against the Miami-Dade County School Board, two teachers employed by Romaine’s school, and Saga Bay Property Owners Association, Inc., the owner of the man-made lake in which Romaine drowned.

With regard to Saga Bay, the Long-mores alleged that Saga Bay knew that its lake had a precipitous drop-off (“from less than 69 inches (the height of decedent) to a depth in excess of 40 feet”), yet negligently failed to warn or provide life-guards to protect children from this “exceptionally dangerous concealed peril,” resulting in Romaine’s death.

The Longmores admitted at oral argument that there is a designated swimming area at Saga Bay Lake and that warning signs are posted in that area. Romaine was not, however, swimming at that area but was swimming at the lake-shore abutting a privately owned home.

Relying on Saga Bay I, the trial court dismissed the complaint. In Saga Bay I, we rejected the notion that a sudden drop off could constitute a dangerous condition or trap:

Thus, there is no liability for a child’s drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water or the water contains a dangerous condition constituting a trap. Allen v. William, P. McDonald Corp., 42 So.2d 706 (Fla.1949).... In the present case, none of the conditions which the Askews contend were so dangerous to their child provide a basis for owner liability.... Guillot v. Fisherman’s Paradise, Inc., 437 So.2d 840 (La.1983)(no liability for two-year-old’s drowning even though pond’s sides went straight down and surface covered with thick, green algae, trash and debris); Corcoran v. Village of Libertyville, 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978)(no liability where drainage ditch had deceptively steep slope, irregular embankment, an “unnaturally pocketed” bed causing excessive accumulation of water, rubbish and debris). The lake’s sharp change in depth is characteristic of lakes and does not constitute a concealed dangerous condition. Kinya v. Lifter, Inc., 489 So.2d 92 (Fla. 3d DCA 1986)(artificial bank’s slope not so different from natural bodies of water); Hendershot v. Kapok Tree Inn, Inc., 203 So.2d 628 (Fla. 2d DCA 1967)(sudden drop-off two feet from shore); Howard v. Atlantic Coast Line R.R. Co., 231 F.2d 592 (5th Cir.1956)(applying Florida law; straight sides do not constitute hidden danger); Cortes v. Nebraska, 191 Neb. 795, 218 N.W.2d 214 (1974)(public recognizes that bodies of water vary in depth and that sharp changes can be expected); Plotzki v. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (same). That on the opposite shore of the lake ... there was, as is common, an area cleared and set aside for swimming, does not mean, as appellees contend, that a person may have an expectation which the law will recognize that all parts of the shore will be the same as the cleared and developed swimming beach. See, e.g., Cooper v. Diesel Service, Inc., 496 S.W.2d at 384 (no liability for six year-old’s drowning even though gentle slopes on three sides of artificial pond might lead child to be unaware of fourth side’s steep drop). There is no other evidence concerning the lake or the circumstances of the drowning.

Saga Bay I, 513 So.2d at 693-94 (emphasis added) (some citations and footnotes omitted).

Likewise, in Navarro v. Country Village Homeowners’ Ass’n, 654 So.2d 167, 168 (Fla. 3d DCA 1995), we observed:

Under Florida law, the general rule is that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally. Kinya v. Lifter, Inc., 489 So.2d 92, 94-95 (Fla. 3d DCA), review denied, 496 So.2d 142 (Fla.1986). ‘The lake’s sharp change in depth is characteristic of lakes and does not constitute a concealed dangerous condition.’ Saga Bay, 513 So.2d at 693-94.

The Longmores concede that the owner of a body of water has a duty to warn of a peril “only if the peril has a character of a concealed trap or an unusual hazard not present in bodies of water generally.” They claim, however, that our statement in Saga Bay I that this “lake’s sharp change in depth ... does not constitute a concealed dangerous condition,” applies solely to the facts proved in Saga Bay I (that is, to a 45 foot drop off approximately 40 to 60 feet from shore) and not generally to man-made lakes. We disagree. As Navarro confirms, our conclusion in Saga Bay I that a sudden drop off in a man-made lake is characteristic of conditions existing in natural lakes and, therefore, not a dangerous condition constituting a trap applies generally and is not circumscribed by the evidence adduced in Saga Bay.

The Longmores also cite to Allen v. William P. McDonald Corp., 42 So.2d 706, 707 (Fla.1949), to distinguish the case at hand from Saga Bay I. However in Allen, the Florida Supreme Court did no more than conclude that a “spoil bank of white sand adjacent to” the lake amounted to “an unusual element of danger,” rendering it “more attractive than the ordinary pond,” allowing plaintiffs to proceed on an attractive nuisance theory. The attractive nuisance doctrine is not applicable here.

The only factual allegation which might arguably distinguish the instant case from Saga Bay I and Navarro, is the association’s superior knowledge of the drop off. Section 342 of the Restatement (Second) of Torts (1965) states:

Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

The Longmores claim that by virtue of the prior Saga Bay litigation, the homeowners’ association had superior knowledge of the steep drop and thus had a duty to warn. While it is true that no such superior knowledge was alleged in Saga Bay I, or Navarro, we did specifically observe that the sharp change in the water’s depth “did not constitute a concealed dangerous condition.” Thus we cannot see how we can apply Section 342, which requires a “condition ... that ... involves an unreasonable risk of harm,” to produce a different result.

Thus, in accord with Saga Bay I and Navarro, we affirm the order under review.

      FN7. It is thus apparent that there is no evidence that the lake contained a dangerous condition constituting a trap. For cases involving traps, see, e.g., Starling v. Saha, 451 So.2d 516 (Fla. 5th DCA 1984)(neighborhood child, who went into pond to swim, caught, held, and drowned by intake hose of drainage pump which was left running without supervision); Bichsel v. Blumhost, 429 S.W.2d 301 (Mo.Ct.App.1968) (child drowned after falling into a well covered by a concrete slab that had an opening eighteen inches square, and thus constituted an ultra-hazardous pitfall); Allen v. William P. McDonald Corp., 42 So.2d 706 (Fla.1949)(spoil banks from dredging hid steep drop into deep water and gave no warning to children playing on sand piles); Larnel Builders, Inc. v. Martin, 105 So.2d 580 (Fla. 3d DCA 1958)(same); Ansin v. Thurston, 98 So.2d 87 (Fla. 3d DCA 1957)(floating dock took child from shore out twelve feet over deep water to makeshift, tipsy raft).

       We also note that before dismissing their action, the trial court gave the Longmores the opportunity to amend their complaint, however they elected not to do so.


author: WEBSTER, J.

text:
    Bruce McCOLLOUGH, Appellant, v. Melvin BUSH, d/b/a Bush Logging and American Interstate Insurance and J.E. Estes Wood Company and Meadowbrook Insurance Group, Appellees.
    No. 1D03-2193.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Barry Silber of Barry Silber, P.A., Pensacola, for Appellant.

      George W. Boring, III, Maitland, for Appellees Melvin Bush, d/b/a Bush Logging, and American Interstate Insurance.
    Douglas F. Miller of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellees J.E. Estes Wood Company and Meadowbrook Insurance Group.
   WEBSTER, J.

In this workers’ compensation case, the claimant seeks review of a final order denying compensability and dismissing his claims and petitions with prejudice based upon the determination that the claimant was not an “employee” for purposes of the workers’ compensation act because he was not employed in the construction industry and his employer employed fewer than four people. Because we conclude that this case is controlled by section 440.10(l)(b), Florida Statutes (2002), and it is clear that more than four employees were employed by the contractor and various subcontractors, we conclude, further, that the claimant was an “employee” for purposes of the workers’ compensation act. Accordingly, we reverse.

On August 14, 2002, the claimant was working for Shirley Martin, doing business as Shirley Martin Trucking, when a log that had been loaded onto his truck fell on him, causing physical injuries. The claimant was the only employee of Martin, who had no workers’ compensation insurance. Martin had a contract with Melvin Bush, doing business as Bush Logging, to haul harvested wood to International Paper’s mill. Bush, in turn, had a contract with J.E. Estes Wood Company to cut and haul wood to the mill. He had at least four employees engaged in the contract work. Pursuant to his contract with Estes, Bush was required to have workers’ compensation coverage for all persons on the job site who were working for him. Bush did have insurance covering his employees. He did not, however, have coverage for Martin’s employees because Martin had told him it was unnecessary, since Martin had only one employee. However, neither Martin nor the claimant ever filed or delivered to Bush a certificate of exemption from workers’ compensation coverage. Finally, Estes had a contract with International Paper for the harvesting and delivery of wood to the mill.

At the beginning of the final hearing, Bush’s attorney conceded that, if the judge of compensation claims concluded the claimant was subject to the workers’ compensation act, Bush would be the claimant’s statutory employer pursuant to section 440.10(l)(b), Florida Statutes (2002). However, he argued that Bush could not be the statutory employer because the claimant worked for Martin, who had fewer than four employees and, therefore, was not subject to the act’s provisions.

Following the hearing, the judge of compensation claims entered an order denying compensability and dismissing the claims and petitions with prejudice. He found that, for purposes of section 440.10(l)(b), Estes was the contractor, Bush was Estes’ subcontractor, Martin was a sub-subcontractor, and the claimant was Martin’s employee. However, because Martin had fewer than four employees, the judge concluded that the claimant was not an “employee” for purposes of the workers’ compensation act and that, therefore, he was not entitled to benefits pursuant to the act. This appeal follows.

Section 440.10(l)(b), Florida Statutes (2002), reads:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

The judge of compensation claims correctly concluded that, for purposes of this provision, Estes was the contractor, Bush was a subcontractor, and Martin was a sub-subcontractor. However, he then concluded, further, that, because Martin employed fewer than four people, the claimant was not an “employee” for purposes of the workers’ compensation act and, therefore, not entitled to benefits pursuant to the act. This was error.

The judge of compensation claims based his decision on the following analysis. Section 440.02(15)(a), Florida Statutes (2002), defines an “employee” for purposes of the act as “any person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written.... ” In turn, section 440.02(17)(b)2 defines “employment” as including “[a]ll private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer.” Because the claimant was not working in the construction industry, and because it was undisputed that Martin employed fewer than four people, the judge reasoned that the claimant did not meet the definition of an “employee” and, therefore, was not entitled to any benefits pursuant to the act. In reaching his decision, however, the judge failed properly to consider the effect of the language of section 440.10(l)(b).

It is undisputed that Estes, as the contractor with International Paper, subcontracted a part of the contract work to Bush who, in turn, subcontracted a part of his work to Martin. It is also undisputed that Bush had at least four employees engaged in the contract work. In such a case, section 440.10(l)(b) provides that “all of the employees of [the] contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment .... ” We construe this language to require that all employees of the contractor and subcontractors be counted for purposes of determining whether the numerical requirements of section 440.02(17)(b)2 have been met.

Our supreme court has long construed this language as providing that all employees engaged in the same contract work shall be deemed employees of the general contractor for compensation purposes. See, e.g., Carter v. Sims Crane Serv., Inc., 198 So.2d 25, 27 (Fla.1967), receded from on other grounds in Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983); Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840, 842 (Fla.1950), receded from on other grounds in Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983); Brickley v. Gulf Coast Constr. Co., 153 Fla. 216, 14 So.2d 265, 266 (1943); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, 693 (1940), receded from on other grounds in Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983). Moreover, as we have previously stated in Roberts v. Gator Freightways, Inc., 538 So.2d 55 (Fla. 1st DCA), approved, 550 So.2d 1117 (Fla.1989), a case factually not unlike this one:

The purpose of section 440.10 is to insure [sic] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking. To construe section 440.10 as argued by [appellee] would afford many common carriers a convenient loophole through which to avoid the requirement of workers’ compensation coverage on many drivers delivering loads pursuant to the carrier’s contracts with its customers. The carriers could simply delegate responsibility for workers’ compensation coverage to small “independent contractors” who routinely do not comply with the carrier’s contractual stipulation to provide such coverage because they do not employ three or more employees, as in this case.

Id. at 60. (At the time, section 440.02(13)(b)2 “define[d] employment as including ‘all private employments in which three or more employees are employed by the same employer.’ ” Id. at 60 n. 4.) The result reached by the judge here is the same as that we condemned in Roberts.

Bush argues that this case is controlled by our decision in Orlando Sentinel v. Wong-Chow, 652 So.2d 982 (Fla. 1st DCA 1995). According to Bush, Wong-Chow stands for the proposition that, unless the subcontractor employing the claimant has the requisite number of employees, section 440.10(1)(b) does not apply. We disagree with Bush’s reading of Wong-Chow.

In Wong-Chow, we approved the judge’s application of section 440.10(l)(b). In doing so, we quoted the same language from Roberts v. Gator Freightways that we have quoted above. Id. at 983. However, we noted that, because the judge’s order “ma[de] no findings concerning the number of employees that may be engaged by the contractor and subcontractor in the distribution of advertisements ..., [i]t [wa]s ... not clear on the face of the order that the Orlando Sentinel [wa]s subject to the mandatory provisions of the workers’ compensation law.” Id. at 984 (emphasis added). Accordingly, we remanded the case to the judge of compensation claims, with directions that she “determine the number of employees engaged by the contractor and subcontractor in the contract work.” Id. (emphasis added). It seems to us relatively clear that the purpose of the remand was to permit the judge to make findings regarding the total number of people employed in the contract work by the contractor and subcontractors. Bush contends that such could not possibly have been the intent, because “it is self-evident that the Orlando Sentinel had more than four employees.” However, Bush’s argument overlooks an important precept of appellate judging — appellate courts will not address for the first time on appeal factual disputes which have not been resolved by appropriate findings of fact. Rather, they will remand with directions that the unresolved factual disputes be addressed, and that findings adequate to permit intelligent appellate review be made. See, e.g., Mitchell v. S. Fla. Baptist Hosp., 805 So.2d 80 (Fla. 1st DCA 2002); Hillsborough County Sch. Bd. v. Williams, 565 So.2d 852 (Fla. 1st DCA 1990). We read the decision in Wong-Chow as adhering to that well-established precept, and nothing more. So read, it is perfectly consistent with Roberts, and with the result we reach here.

Because it is undisputed that Estes, Bush and Martin, together, employed at least four people who were engaged in the contract work, we hold that, pursuant to sections 440.10(1)(b), 440.02(15)(a) and 440.02(17)(b)2, the claimant was an “employee” pursuant to the workers’ compensation act. Bush has correctly conceded that, if the claimant is subject to the workers’ compensation act, Bush is the statutory employer for purposes of section 440.10(1)(b). See Fid. Constr. Co. v. Ar thur J. Collins & Son, Inc., 130 So.2d 612 (Fla.1961) (holding that, pursuant to section 440.10, when a contractor has subcontracted work to a subcontractor which has workers’ compensation insurance, the subcontractor is liable for work-related injuries sustained by an employee of a sub-subcontractor which did not have workers’ compensation insurance). Accordingly, we hold, further, that Bush is the claimant’s statutory employer.

The decision of the judge of compensation claims is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

ALLEN and BENTON, JJ., concur.


text:
    Marvin REICH, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D03-3119.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Robert J. Conroy and Kern Augustine of Conroy & Schoppmann, P.C., Bridgewater, New Jersey; Attorneys for Appellant.
    Pamela H. Page, Department of Health, Tallahassee, Attorney for Appellee.
   PER CURIAM.

This is an appeal from a final order of the Department of Health dismissing Appellant’s motion to vacate a final order. We reverse the final order of dismissal and remand for an evidentiary hearing.

In response to administrative complaints against Appellant, a consent agreement was presented to the Board of Medicine for its consideration. The Board rejected this agreement and proposed a counter consent agreement. The attorney representing Appellant at that time sent a letter to the Board indicating that Appellant accepted the counter consent agreement. A final order was entered on January 16, 2002, incorporating the terms of the counter consent agreement. On August 23, 2002, Appellant’s current attorney filed a motion to vacate the final order because Appellant never authorized his attorney to accept the terms of the counter consent agreement. On June 7, 2003, the Board dismissed the motion to vacate for lack of jurisdiction.

As a general rule, an agency has inherent or implied power to reheár or reopen a cause to reconsider the action taken therein, where the proceeding is in essence a judicial one. Smull v. Town of Jupiter, 854 So.2d 780, 782 (Fla. 4th DCA 2003). However, this power must be exercised before an appeal from the original order has been filed or before such an order has become final by the lapse of time to file a timely notice of appeal. Id. Appellant’s motion to vacate the order was filed after the time for a timely notice of appeal had expired.

However, at the hearing on the motion to vacate, Appellant stated that he did not know until August 2002 that a final order was entered in this case. The final order’s certificate of service shows that a copy of the order was mailed to Appellant’s correct address, which creates a presumption that Appellant received the order. W.T. Holding, Inc. v. State Agency for Health Care Administration, 682 So.2d 1224, 1225 (Fla. 4th DCA 1996). However, this presumption is rebuttable. Id. Appellant’s denial of receipt of the order does not automatically overcome this presumption, but it does create a question of fact that must be resolved through an eviden-tiary hearing. Id. The Board never provided Appellant an opportunity to prove that he did not receive the final order and that he was not on notice of entry of the final order. If Appellant was aware of the final order, his motion to vacate the final order would be untimely and the Board would have correctly determined that it was without jurisdiction to rule on the motion. However, if Appellant was unaware of the motion, the Board should have reissued the order and allowed Appellant to proceed on his motion to vacate. Id.

We, therefore, reverse the dismissal of Appellant’s motion and remand for an evi-dentiary hearing to determine whether Appellant was on notice of the entry of a final order in this case.

REVERSED and REMANDED.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: STONE, J.

text:
    Vernon CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4114.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Vernon Carter appeals a conviction of kidnaping, car jacking, attempted strong arm robbery, and battery upon a person sixty-five years of age or older. Specifically, he asserts that the trial court erred in denying his motion to suppress evidence discovered as a result of a “stop” which, he argues, was not based on reasonable suspicion. The “stop” consisted of the investigating officer’s patrol car blocking egress by Carter’s van. Here, we need not resolve whether the officer had a sufficiently founded suspicion to stop the van by blocking it because, regardless, we affirm the denial of the motion to suppress on the alternative ground of the inevitable discovery exception to the exclusionary rule.

Around 11:00 p.m. on March 14, 2002, a police officer was dispatched to investigate a call from an area resident expressing concern over a suspicious van parked across the street from her apartment building in front of a closed doctor’s office. The resident reported that the van had been parked for a considerable period of time with the engine running, the headlights off, and with two occupants, one of whom was partially undressed and watching a television or computer screen.

The officer testified to having patrolled the same area for the past two years and that the only cars that ever parked at that location after hours were four or five white Ford Tauruses used by employees during the day. Upon arriving at the scene, the officer observed the van, pulled his patrol car behind the suspicious vehicle in a way that blocked it, and approached the van with a flashlight.

The officer greeted Carter, who was seated inside the van, and after observing that the van had a Wisconsin license plate, inquired as to whether Carter “liked cheese.” Carter responded suspiciously, explaining that he had a Florida identification card. The officer requested Carter produce the identification card and ran the card, whereupon he found there was a warrant for Carter’s arrest. Upon checking the van’s license plate, the officer further learned that the van had been recently stolen in a car jacking.

Pursuant to the inevitable discovery doctrine, a court may admit illegally obtained evidence if an independent source or activity would have inevitably disclosed the evidence. Moody v. State, 842 So.2d 754, 759 (Fla.2003).

We recognize that the supreme court, in Moody, ruled adversely to the state. Id. at 755. There, however, the stop was based on a “hunch” and led to a search of the car where a weapon, tying the appellant to another crime, was discovered. Id. at 758. In this case, the discovery of the crime was based on the license plate check, a process and means that is separate from, and not dependent upon, any unlawful police conduct. Here, any unlawful police conduct was patently unrelated to the ability of the police to discover the same information concerning the van as if no police overreaching had occurred. See, e.g., Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

In Nix, the police discovered the location of a body based on the defendant’s statements. Id. at 435. There, the Supreme Court accepted the trial court’s finding that if a search for the body had not been suspended by disclosures of unlawfully obtained information leading to discovery of the body, “the search would clearly have been taken up again ... and the body would [have] been found in short order.” Id. at 438. Further, in State v. LeCroy, 435 So.2d 354, 357 (Fla. 4th DCA 1983), we noted that the exclusionary rule is not applicable even when the unlawful act may have contributed to the discovery where the information would have been otherwise acquired lawfully.

This court has also recognized that there does not have to be an absolute certainty of ultimate discovery; rather, only a reasonable probability need exist. State v. Ruiz, 502 So.2d 87 (Fla. 4th DCA 1987). Common sense dictates that such reasonable probability existed here, and the state should not be shackled in its proof because the officer chose to initiate the investigation before checking the license tag.

There is no need to address the now moot issue of standing. As to all other issues raised, we find no reversible error, or abuse of discretion, and affirm.

GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Joel R. VALLONE, Appellee.
    No. 4D03-798.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellee.
   KLEIN, J.

The state appeals an order granting ap-pellee defendant’s motion to suppress evidence obtained under a search warrant. The trial court granted the motion because it concluded the affidavit on which the search warrant was based was given by a confidential informant and the affidavit did not include information about the reliability of the informant. We reverse.

The officer signing the affidavit for the search warrant identified the informant as D.C. The affidavit reflected that defendant, who had been a friend of D.C.’s since high school, had asked D.C. to help him transfer files from an old computer to a new one. D.C. complied and, while doing so, noticed that some of the files consisted of child pornography which was described in the affidavit.

D.C. informed a Stuart police officer, who was D.C.’s relative, but because the computer was outside of that officer’s jurisdiction, the officer contacted a sheriffs detective assigned to investigate computer crimes involving child pornography. The detective interviewed D.C., obtained the search warrant based on that information, and found the pornographic material where D.C. indicated it would be.

The trial court treated the motion to suppress as though the information received by the detective were from an anonymous tipster or confidential informant who could not be identified. The trial court may have erroneously made that assumption based on the fact that the informant’s initials were used in the affidavit rather than his name; however, that is not the criteria. Whether a person is a confidential informant depends on the facts. State v. Johnson, 285 So.2d 53 (Fla. 2d DCA 1973).

The identity of D.C. was easily ascertainable, as the affidavit stated that D.C. was a relative of a named Stuart officer who had referred him to the detective. An informant whose identity is readily ascertainable is not an anonymous tipster. State v. Maynard, 783 So.2d 226 (Fla.2001) (also holding that one officer’s knowledge of an informant’s identity is imputed to a different officer obtaining the warrant).

Because it was undisputed that D.C. was a citizen informant, which is sufficient to satisfy any questions about the informant’s veracity, State v. Novak, 502 So.2d 990 (Fla. 3d DCA 1987), the trial court erred in granting the motion to suppress. Reversed.

WARNER and POLEN, JJ., concur.


text:
    James GLYNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2612.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    James Glynn, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Glynn appeals an order denying his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a).

Glynn was convicted of two counts of sexual battery. On direct appeal, he did not challenge his sentence. This court affirmed. See Glynn v. State, 787 So.2d 203 (Fla. 4th DCA 2001).

In his rule 3.800(a) motion, Glynn argued that the trial court erred in sentencing him under the 1993 sentencing guidelines instead of the 1994 guidelines.

Count I of the underlying information charged Glynn with a sexual battery that occurred between October 1, 1993 and October 1, 1994; count II charged a sexual battery that occurred between October 1, 1993 and August 31, 1994. The testimony at trial did not narrow the time of the offenses. The jury was not asked to decide when the offenses occurred. The time frames for the charges overlap the effective date of the 1994 guidelines, which is January 1,1994.

We agree with Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 2003) (en banc), that Glynn is entitled to the “most lenient version of the guidelines in effect during the time frame alleged in the information.” Id. at 314; see also State v. Griffith, 675 So.2d 911 (Fla.1996); Maitre v. State, 770 So.2d 309 (Fla. 4th DCA 2000); Gilbert v. State, 680 So.2d 1132 (Fla. 3d DCA 1996).

We distinguish this case from Gross v. State, 820 So.2d 1043 (Fla. 4th DCA 2002), because that case involved a continuing criminal enterprise under the RICO statute. This case involves discrete acts, not a continuous or ongoing criminal offense.

We therefore reverse this case for re-sentencing under the 1994 sentencing guidelines.

STONE, GROSS and TAYLOR, JJ., concur.


text:
    Angel DIAZ, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4016.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Angel Diaz, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Petitioner was convicted after a trial conducted by Judge Lazarus, á county court judge who had been temporarily assigned to circuit court. After petitioner’s conviction was affirmed, he then moved for post-conviction relief, which was also assigned to Judge Lazarus. During the post-conviction proceeding, petitioner moved to disqualify Judge Lazarus for bias and because there was no order in effect assigning him to circuit court. We find no merit in the bias argument but grant the petition for writ of prohibition based on the lack of an order of assignment.

After filing his motion for post-conviction relief, petitioner obtained all orders assigning Judge Lazarus to circuit court and discovered there was no order currently in effect. Judge Lazarus denied petitioner’s motion to disqualify, however, citing Wasley v. State, 254 So.2d 243 (Fla. 4th DCA 1971). In Wasley, this court held that a temporary assignment of a circuit judge from a different circuit to try a case would extend through post-verdict motions; however, we also held that the assignment to try the case did not extend to a post-conviction motion filed after the conclusion of an appeal. Wasley accordingly supports petitioner’s position.

The state has cited no authority which would authorize this judge to rule on the post-conviction motion, but argues that this court lacks jurisdiction to review orders assigning county judges to circuit court duty based on Wild v. Dozier, 672 So.2d 16 (Fla.1996). Wild, however, involved the validity of an administrative order assigning a county judge to circuit court duty. Our supreme court has exclusive jurisdiction over the assignment of judges under Article V, § 2(b), Florida Constitution. The present case is distinguishable from Wild in that it does not involve the validity of an assignment order, but rather whether, where an assignment order has expired, a county judge can rule on a motion for post-conviction relief. Under Wasley the court cannot. We therefore grant the petition and remand for consideration of the post-conviction motion by a circuit court judge.

FARMER, C.J., and HAZOURI, J., concur.


text:
    Angel DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1100.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2004.
    Angel Diaz, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Reversed. See Diaz v. State, No. 4D03-4016, 868 So.2d 1281, 2004 WL 626128 (Fla. 4th DCA Mar.31, 2004).

FARMER, C.J., WARNER and KLEIN, JJ., concur.


author: GRIFFIN, J.

text:
    Maurice GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-498.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.

      James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Maurice L. Gilbert [“Gilbert”] appeals his conviction of robbery with a firearm. He contends that the trial court erred in denying his motion for continuance and in allowing testimony regarding other crimes, wrongs or bad acts. We affirm.

The crime in this case involved the robbery of a RentWay store located in a strip mall in St. Johns County on January 8, 2001. An employee, Jason Sautter [“Saut-ter”], was behind the counter when an African-American male came into the store holding, a printer. The man said: “We have a problem,” and then reached underneath his sweater and pulled out a firearm. The employee was familiar with guns from being in the military. He said the man “cocked back the slide and actually chambered a round.” The robber was wearing what looked like a Tommy Hilfiger baseball cap, a gray or tannish-colored sweater, blue jeans and glasses. He estimated the man to be five feet ten inches tall. After the robbery, law enforcement drove him by a suspect who he identified as the man who had robbed him. Sautter identified Gilbert in the courtroom as that same man.

Gilbert told Sautter to put the money from the night deposit, money from the safe and jewelry from the case into a small rectangular trash can belonging to Rent-Way. Gilbert never touched any of the items. Gilbert then told Sautter to go into the bathroom and not to come out or Gilbert would kill him.

Sautter testified that the back door to the store was locked with a wooden bar across it so that the only way Gilbert could have left the store was through the front door. He also testified that during the robbery, Gilbert’s cell phone rang three or four times.

Once Gilbert had left the store, Sautter called the police to report the robbery. Deputy Anthony Wrightsman with the St. John’s County Sheriffs Office was dispatched to the RentWay and promptly issued a “BOLO” alert over the radio.

Angel Baxter [“Baxter”], a Publix employee in the same strip mall as the Rent-Way, was in the parking lot eating her breakfast prior to going into work and had a clear view of the RentWay. Baxter testified she observed a “black guy” exit the RentWay toting a “tall object” close to his chest. The man then got into a red Geo Metro with a paper license tag in the window and a doughnut back wheel with yellow trim like a spare tire. Baxter could not observe the man’s face well enough to make an identification, but she stated he was five feet nine inches to five feet ten inches tall.

William Brightwell [“Brightwell”], an assistant store manager with K-Mart, observed a black man running in the parking lot with something clutched to his chest, getting into his car and speeding away. The car the man got into was described by Brightwell as a red hatchback, older model Geo with a doughnut right rear tire with a tan colored hubcap. Brightwell testified the man was five feet ten inches to five feet eleven inches tall, wearing glasses, a black shirt and black pants. Brightwell was later taken by law enforcement to the location where Gilbert was pulled over on the highway and he identified Gilbert as the man he saw in the parking lot.

Deputy Scott Yeoman [“Yeoman”], with St. John’s County Sheriffs Office, was off-duty at the time of the robbery and driving in his personal vehicle, listening to a police scanner. He heard the BOLO alert for a red older model hatchback Geo with a black male driver. Yeoman spotted such a vehicle and called the sheriffs office to arrange for a marked police unit.

Deputy Gregory Suchy [“Suchy”] with the St. John’s Sheriffs Office testified that on the day of the incident he was patrolling in his police car and looking for the BOLO vehicle when he was notified that Yeoman was behind the vehicle. Suchy met up with Yeoman and pulled behind a red Geo vehicle with a paper tag in the back window and a yellow doughnut spare tire with a black male driver. Suchy identified Gilbert as the driver and learned the vehicle belonged to one Eric Green. The items found in the vehicle were a piece of paper, a cell phone and a pair of purple sunglasses. No jewelry or garbage can was found. Four hundred dollars was found on Gilbert’s person.

Gilbert’s wife, Tamara Monique Williams Gilbert, identified Gilbert’s cell phone number. She also testified that Eric Green called her the morning of the robbery looking for Gilbert. The cell phone records of Eric Green from January 8, 2001, the day of the robbery, were introduced in evidence and showed outgoing calls to Gilbert’s cell phone number at 7:46 a.m., 7:48 a.m., 7:52 a.m, and 7:54 a.m.

The testimony that is the subject of this appeal was that of Gregory Christopher Laseer [“Laseer”]. He testified he was employed at a RentWay in Jacksonville in December 2000 (nine days before the robbery in this case) when a black man came into the store around 7:55 a.m. After asking about computers, the man took out a black semiautomatic handgun and chambered a round, pointed it at Laseer, and said “Give me the money.” The man told Laseer to put the money and jewelry in a RentWay garbage can. Laseer and a coworker were then placed in the bathroom by the robber and given instructions to remain there or he would shoot them. He said the man was between five feet ten inches and six feet tall. Laseer later identified Gilbert from a photo lineup as the man who robbed him. Laseer also testified that Eric Green used to work with him at the Jacksonville RentWay.

Counsel for Gilbert objected to admission of Laseer’s testimony, but the court ruled that the two incidents were “shockingly similar” and allowed the testimony. We agree that the two were robberies sufficiently similar to warrant admission of Laseer’s testimony. See § 90.404(2)(a) Fla. Stat. (2001); Holland v. State, 466 So.2d 207 (Fla.1985).

AFFIRMED.

SAWAYA, C.J., and MONACO, J., concur.

      . Sautter testified he believed about $5,000.00 in cash was taken by the robber.


author: TORPY, J.

text:
    Cameron CUMMINGS, Appellant, v. Janice CUMMINGS, Appellee.
    No. 5D03-1330.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    G.P. Weidinger, Ocala, for Appellant.
    Larry Collins, Ocala, for Appellee.
   TORPY, J.

In this post-dissolution proceeding, Appellee sought to enforce the terms of a mediated agreement under which Appellant was obligated to pay her one-half of the balance of a certain bank account. The dispute culminated in an evidentiary hearing during which Appellee attempted to prove the amount due without the appropriate records from the bank account. Appellee attempted to excuse the failure to bring the records to court by asserting that Appellant ignored her production requests. However, it is undisputed that Appellee neither served a subpoena on the bank nor moved to compel production of the records after Appellant failed to bring the records with him to his deposition. At the evidentiary hearing Appellant again failed to bring the bank records with him. Appellee did not ask the trial court for a continuance or other relief but instead proceeded to put on her proof. Unfortunately, the only competent evidence of the amount came from the testimony of Appellant. Nevertheless, the court awarded the amount requested by Appellee, which was not supported by the evidence, under a theory that Appellant had the burden to counter Appellee’s claim by producing the records. This conclusion is erroneous because the burden of proof was upon Appel-lee as movant.

Appellant concedes, however, that the evidence does support an award to Appel-lee of $6500.00. Accordingly, the judgment is vacated and this cause is remanded with instructions that the court enter judgment in favor of Appellee in the amount of $6500.00

Appellant also challenges the court’s determination that Appellee is entitled to attorney’s fees. Because the court’s order only determined entitlement but did not set the amount of such fees, the issue is not ripe for determination at this time. See Ritchie v. Ritchie, 687 So.2d 1358 (Fla. 4th DCA 1997).

REVERSED AND REMANDED.

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


text:
    Janelle McMILLAN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-2510.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Janelle McMillan, pro se.
    Sandra Piligian, Assistant District Legal Counsel, Florida Department of Children and Families, Miami, for Appellee.
   PER CURIAM.

Janelle McMillan challenges two final orders of the Department of Children and Families, each rendered on May 21, 2002, which upheld the Department’s denial of Medicaid benefits based upon the determination of the Social Security Administration (SSA) that McMillan did not meet SSA eligibility requirements. See 42 C.F.R. § 435.541 (a state agency “may not make an independent determination of disability if SSA has made a disability determination within the time limits set forth in section 435.911 on the same issues presented in the Medicaid application” and a “SSA disability determination is binding on an agency [of the State] until the determination is changed by SSA.”). Because McMillan has not demonstrated that the orders are contrary to law or are unsupported by competent substantial evidence, we affirm the final orders. See Axilrod v. State, Dept. of Children and Family Services, 799 So.2d 1103, 1108 (Fla. 4th DCA 2001).

AFFIRMED.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Donna L. PACE and Philip J. Feldman, Appellants, v. MIAMI-DADE COUNTY SCHOOL Board and Gallagher Bassett Services, Inc., Appellees.
    No. 1D03-1674.
    District Court of Appeal of Florida, First District.
    April 6, 2004.

      Jay M. Levy, P.A., Miami, and John J. Feldman of Feldman & Getz, LLP, North Miami Beach, for Appellants.
    Steven P. Kronenberg of Kelley, Kro-nenberg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellees.
   PER CURIAM.

Appellants challenge an order of the JCC that denied their motion for entry of a final order, found appellant’s attorney in violation of the Florida Rules of Professional Conduct, and sanctioned the attorney for such violations. We reverse all but the denial of the motion for entry of a final order.

A JCC has no jurisdiction to sanction an attorney for violations of the Florida Rules of Professional Conduct. A JCC is “vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits.” Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182, 184 (Fla.1983). “A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.” Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999). “Unlike a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440.” McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991); see Salony v. S. Fla. Pub. Communication, 734 So.2d 544, 545 (Fla. 1st DCA 1999) (noting that a “JCC lacks contempt authority”). Nothing in chapter 440 gives the JCC the authority, power, or jurisdiction to conduct an attorney disciplinary proceeding or sanction an attorney for a violation of the Florida Rules of Professional Conduct. See § 440.33, Fla. Stat. (2002) (concerning “powers of judges of compensation claims”).

Further, as this court has recognized, “the Supreme Court of Florida has exclusive jurisdiction over the discipline of attorneys.” Bammac, Inc. v. Grady, 500 So.2d 274, 278 (Fla. 1st DCA 1986). See Art. V., § 15, Fla. Const. (“Attorneys; admission and discipline. — The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”). See also, e.g., The Fla. Bar v. Flinn, 575 So.2d 634 (Fla.1991) (approving referee’s findings of fact and discipline recommendation in lawyer disciplinary proceeding involving, among other things, actions taken by attorney in workers’ compensation case); The Fla. Bar v. Kirtz, 445 So.2d 576, 577 (Fla.1984) (approving referee’s finding and discipline recommendation concerning attorney’s misconduct in workers’ compensation case).

Therefore, because the JCC acted beyond his jurisdiction here, we reverse the order on appeal to the extent that it finds appellant’s attorney in violation of Florida Rules of Professional Conduct and imposes sanctions because of such violations.

REVERSED.

KAHN, WEBSTER and BROWNING, JJ., Concur.


text:
    Colby SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3457.
    District Court of Appeal of Florida, First District.
    April 6, 2004.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Colby Allen Smith appeals the sentences imposed on remand following this court’s opinion in Smith v. State, 844 So.2d 755 (Fla. 1st DCA 2003), for crimes he committed on March 17, 1997. We REVERSE and REMAND for resentencing using an appropriate scoresheet that reflects the proper scoring of Smith’s attempt offenses at two levels below the completed offenses, pursuant to the guidelines in effect prior to the 1995 guidelines. See § 777.04(4)(a), Fla. Stat. (1993) (“Except as otherwise provided in s. 921.0012, the offense of criminal attempt or criminal solicitation is ranked on the offense severity ranking chart in s. 921.0012 two levels below the offense attempted or solicited is, was, or would have been ranked on the offense severity ranking chart.” (emphasis added)); Reid v. State, 799 So.2d 394, 400 (Fla. 4th DCA 2001) (“Prior to the enactment of chapter 95-184 ..., section 777.04(4)(a), Florida Statutes (1993), provided that the severity level of second degree murder was dropped by two levels for an attempt. Section 95-184 changed the law to require that one level be dropped for an attempt. However, in Heggs v. State, 759 So.2d 620 (Fla.2000), the supreme court held that chapter 95-184 violated the single subject rule and was thus invalid with respect to crimes committed between October 1, 1995 and May 24, 1997. Since appellant committed the charged crimes on April 30, 1997, the amended version of the statute, which would have reduced appellant’s offense by only one level for an attempt, does not apply.” (citation omitted)).

KAHN, WEBSTER and BROWNING, JJ., concur.


text:
    Berkeley F. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0029.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Berkeley F. Thompson, pro se, petitioner.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 11, 2003, order rendered in Clay County. Circuit Court case number 98-708-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Barbara Anne HOEFER, Appellee.
    No. 1D03-4714.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for appellant.
    James T. Miller, Jacksonville, for appel-lee.
   PER CURIAM.

Upon consideration, the court has determined that the order being appealed is not an order appealable by the state. See § 924.07, Fla. Stat. (2003); Fla. R. of App. P. 9.140(c)(1). Accordingly, appellee’s motion to dismiss is granted and the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


author: FARMER, C.J.

text:
    J.B.P., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-83.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Ileana Haedo, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Lori R. Shapiro and Jeffrey P. Bassett, Assistant Attorneys General, Fort Lauderdale, for appellee.
   FARMER, C.J.

We affirm the trial court’s explicit finding that:

“The Department of Children and Families, by clear and convincing evidence proved the Termination of Parental Rights Petition, and have proven the grounds for Termination of Parental Rights and the' Manifest Best Interest as required under Ch. 39 of Fla. Statutes.”

Although the record supports the trial court’s finding that termination of the mother’s parental rights is in the child’s manifest best interests, the termination order fails to set forth any specific findings. The final order of termination is therefore not in compliance with section 39.809(5), Florida Statutes (2002), which provides that “[t]he judge shall enter a written order with the findings of fact and conclusions of law.” As such, this court could vacate the order and direct the trial court to comply with section 39.809(5). See, e.g., P.J. v. Dep’t of Children & Families, 783 So.2d 1148 (Fla. 5th DCA 2001); J.R. v. Dep’t of Children & Families, 773 So.2d 661 (Fla. 5th DCA 2000).

Because the complete record is sufficient and enables us to review the final order of termination, even with only a single omnibus finding, we have elected not to reverse in this case. We caution the Judges in this District presiding over termination of parental rights cases, however, not to infer that the failure to make specific factual findings will always be harmless. In most cases — although not in this one — such findings are indispensable.

AFFIRMED.

GUNTHER and GROSS, JX, concur.


text:
    Royal JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-97.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

The state concedes that defendant could not be adjudicated for both attempted first degree premeditated murder and attempted felony murder for the same killing. See Gordon v. State, 780 So.2d 17 (Fla.2001) (noting that dual convictions for attempted premeditated murder and attempted felony murder violate double jeopardy). We accept the state’s concession. As the state apparently recognizes, this constitutional problem cannot be avoided by simply making the alternative ways to commit first degree murder an attempt rather than the completed act. We therefore reverse the attempted premeditated murder conviction.

We reject the double jeopardy argument as to the convictions involving sexual acts. The dual convictions for sexual battery and unlawful sexual activity with a minor involve different elements. Sexual battery requires a lack of consent and the use, or threat of use, of a weapon or the actual use of force likely to cause personal injury. Unlawful sexual activity with a minor does not involve any issue of consent or threats or force. Therefore, on all other issues we affirm defendant’s multiple convictions.

GUNTHER and TAYLOR, JJ„ concur.


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    Rebecca GALANTE and Christopher Galante, Appellants, v. USAA CASUALTY INSURANCE CO.; Catherine M. Chapin; and Allstate Insurance Co., Appellees.
    No. 4D03-247.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Helene Hvizd Morris, West Palm Beach, and John F. Romano of Romano, Eriksen, Cronin & Mullins, P.A., West Palm Beach, for appellants.
    Betsy E. Gallagher and Dorothy C. Venable of Cole, Scott, Kissane, P.A., Tampa, and Patrick M. Cusak of the Law Office of James G. Gilmour, Plantation, for appellee USAA Casualty Insurance Company.
   FARMER, C.J.

We affirm the final judgment in this negligence action. Our affirmance is without prejudice to the right of the Galantes to recover attorney’s fees in any action against their insurer for bad faith in refusing to settle. See McCleod v. Cont’l Ins. Co., 591 So.2d 621, 626 (Fla.1992), superseded by statute as stated in Time Ins. Co. v. Burger, 712 So.2d 389 (Fla.1998) (“we hold that the damages recoverable in a first-party suit under section 624.155 ... are those amounts which are the natural, proximate, probable, or direct consequence of the insurer’s bad faith actions.... Such damages may include ... attorney’s fees incurred by the plaintiffs. The attorney’s fees recoverable shall also include any fees incurred in the original underlying action as a result of the insurer’s bad faith actions”).

GUNTHER and MAY, JJ., concur.


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    Benjamin Levi JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2531.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Benjamin Levi Johnson, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to Appellant to file an appropriate motion for postconviction relief.

SAWAYA, C.J., GRIFFIN and MONACO, JJ., concur.


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    Don ZABAWA, Appellant/Cross-Appellee, v. Gaeton “Guy” Della PENNA, Lee A. Siler, et al., Appellees/Cross-Appellants.
    No. 5D03-1466.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Opinion filed April 8, 2004.
    Richard A. Stephens, Boca Raton, for Appellant/Cross-Appellee.
    William T. Kirtley of William T. Kirtley, P.A., Sarasota, for Appellees/Cross-Appel-lants.
   PER CURIAM.

Appellant sought to confirm an arbitration award pursuant to section 682.12, Florida Statutes (2002). Although confirming the award as to persons not involved in this appeal, the lower court vacated the award as to Appellees and remanded the cause back to the arbitration authority for a new arbitration hearing before new arbitrators. Appellant seeks to invoke this court’s jurisdiction pursuant to Article V, section 4(b)(1), of the Florida Constitution, and rule 9.030(b)(1)(A), Florida Rules of Appellate Procedure, which authorize appeals from final orders. The order at issue here, however, as it relates to these Appellees, is a non-final order and is therefore not appealable on this basis. Central Florida Police Benevolent Ass’n, Inc. v. City of Orlando, 614 So.2d 1203 (Fla. 5th DCA 1993); City of Fort Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So.2d 162 (Fla. 4th DCA 1991). The fact that the order is labeled “Second Amended Final Judgment” does not control. It is the substance of the order, not the label affixed to it, that determines its nature for purposes of section 4(b)(1) and rule 9.030(b)(1)(A). Boyd v. Goff, 828 So.2d 468 (Fla. 5th DCA 2002).

Appellant alternatively asks that we treat his Notice of Appeal as a petition for writ of certiorari pursuant to rule 9.030(b)(2)(A), Florida Rules of Appellate Procedure. As a condition precedent to invoking a district court’s certiorari jurisdiction, however, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998). Appellant’s claim of irreparable harm is the fact that he will expend time and money on an unnecessary arbitration. This is an insufficient showing of irreparable harm to justify certiorari review. See Stoever v. Vedder Homes, Inc., 697 So.2d 1247, 1248 (Fla. 5th DCA 1997).

Accordingly, the appeal is dismissed. Appellees’ cross-appeal, which challenges the same order, is likewise dismissed for the same reasons.

SHARP, W„ MONACO and TORPY, JJ., concur.


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    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. N.P. and K.F., Parents of K.F., a Child, Appellees.
    No. 5D03-778.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Mark A. Skipper, Senior Attorney for the Department of Children and Families, Sanford, for Appellant.
    Thomas C. Greene, Sanford, for Appel-lee N.P.
    No Appearance for Appellee K.F.
   PER CURIAM.

We affirm the trial court’s order denying the petition to terminate parental rights as to the mother. We remand this case to the trial court to rule on the petition to terminate parental rights as to the father.

AFFIRMED IN PART and REMANDED.

SAWAYA, C.J., PLEUS and ORFINGER, JJ., concur.