author: CRAWLEY, Judge.

text:
    Raymond F. CRAWFORD, Jr. v. Patricia Ann CRAWFORD.
    2020489.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2003.
    J. Myron Smith, Prattville, for appellant.
    Louis C. Colley of Cleveland & Colley, P.C., Prattville, for appellee.
   CRAWLEY, Judge.

Raymond F. Crawford, Jr. (“the husband”), and Patricia Ann Crawford (“the wife”) were divorced after 30 years of marriage. The husband, a former railroad employee, is disabled and draws both disability benefits and railroad retirement benefits. The wife sought, and the trial court awarded her, a portion of the husband’s railroad retirement benefits. The trial court’s judgment awards the wife “33/6% of the husband’s railroad retirement.” It further states that “[t]he husband shall immediately begin paying jé of all railroad retirement benefits received by him to the wife.”

When the husband began paying the wife one-third of only a portion of his railroad retirement benefits, the wife objected and filed a motion to show cause. The husband responded to that motion, arguing that 45 U.S.C. § 231m(a), as construed by the United States Supreme Court in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), prohibits the division of a portion of his railroad retirement benefits, known as Tier I benefits. The husband further explained that he was paying one-third of the divisible benefits, known as Tier II benefits, to the wife. Because the wife’s motion was not a postjudgment motion that would toll the time for taking an appeal, the husband appealed the trial court’s divorce judgment.

The husband argues on appeal that the trial court’s judgment, insofar as it purports to award the wife one-third of all of his railroad retirement benefits, violates 45 U.S.C. § 231m(a). The wife concedes that an award to her of any of the husband’s Tier I benefits is prohibited by federal law. However, she argues that the trial court’s judgment awarding her one-third of the husband’s retirement benefits may properly be construed to award her an amount out of the husband’s Tier II railroad retirement benefits and his disability benefits equal to one-third of all of the husband’s retirement benefits. The wife’s construction of the trial court’s judgment would allow her to receive 100% of the husband’s Tier II benefits. The husband, in his reply brief, answers the wife’s argument by pointing out that such a construction would violate Alabama law. See Ala. Code 1975, § 30 — 2—51(b)(3) (restricting the award of retirement benefits to no more than “50 percent of the retirement benefits that may be considered by the court”).

To adequately understand the issue presented, we must first understand the husband’s railroad retirement plan and the history behind the Tier I and Tier II benefits.

“Retirement benefits for railroad employees are governed by federal statute .... [A] railroad employee ..., upon retirement, is entitled to benefits under the Railroad Retirement Act of 1974, (hereinafter the ‘Act’) 45 U.S.C. § 231 et seq. The Act’s scheme provides for two tiers of benefits which resemble both a private pension program and a social welfare plan. Tier I benefits are equivalent to those the employee would receive if covered by the Social Security Act, 42 U.S.C. § 401 et seq. See 45 U.S.C. § 231a(a)(l) and § 231b(a)(l). Tier II benefits are supplemental annuities which, like a private pension plan, are tied to earnings and career service. See 45 U.S.C. § 231a(b) and § 231b(e).
“In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) the United States Supreme Court considered whether an award of railroad retirement benefits to a spouse when dividing marital assets upon divorce was prohibited by the Act. The United States Supreme Court held that 45 U.S.C. § 231m specifically prohibited the division of benefits payable under the Act as property in a divorce. However, in 1983, Congress provided an amendment to § 231m which expressly permits characterization of Tier II benefits as property subject to distribution upon divorce. See 45 U.S.C. § 231m(b)(2). Notwithstanding the 1983 amendment, the holding in Hisquierdo is still controlling with respect to Tier I benefits. See Syl. Pt. 1, in part, McGraw v. McGraw, 186 W.Va. 113, 411 S.E.2d 256 (1991) (‘The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231m, expressly precludes from consideration as divisible marital property the basic railroad retirement annuity, which provides benefits equivalent to benefits under the Social Security Act.’).”

Pearson v. Pearson, 200 W.Va. 139, 146-47, 488 S.E.2d 414, 421-22 (1997) (footnotes omitted).

The trial court’s judgment in the present case awards the wife one-third of “all” of the husband’s retirement benefits. As the wife concedes, the husband’s Tier I benefits are not, pursuant to federal law, divisible as part of a property settlement. Despite the wife’s urging, we see no need to construe the unambiguous language of the trial court’s judgment to permit the wife to receive 100% of the husband’s Tier II benefits. Instead, we reverse the trial court’s erroneous award of a percentage of “all” of the husband’s railroad retirement benefits, and we remand the cause for the trial court to, in accordance with 45 U.S.C. § 231m, Hisquierdo, and § 30-2-51(b), consider only those retirement benefits subject to division in fashioning an award to the wife of a portion of the husband’s retirement benefits.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ, concur.

      . In addition to such an approach violating § 3 0-2-51(b)(3), we note that in Hisquierdo the United States Supreme Court considered and dismissed a similar approach as being in violation of 45 U.S.C. § 231m. Hisquierdo, 439 U.S. at 588, 99 S.Ct. 802 (rejecting a wife's request for an "offsetting award of presently available community property to compensate her for her interest in [her husband’s] expected benefits”). See Kendall v. Kendall, 106 Mich.App. 240, 243-44, 307 N.W.2d 457, 459 (1981), and the cases cited therein for the proposition that "railroad retirement benefits are not part of the marital estate and cannot be considered 'directly or indirectly' in the distribution of property.”


source: Caselaw Access Project

author: CRAWLEY, Judge. MURDOCK, Judge,

license: Public Domain

text:
    John Newton GODWIN v. Nora Marie Godwin BALDERAMOS.
    2020213.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Stephen R. Arnold, Birmingham, for appellant.
    Stephen W. Shaw and Laura S. Gibson of Redden, Mills & Clark, Birmingham, for appellee.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued August 22, 2003, is withdrawn, and the following is substituted therefor.

John Newton Godwin (“the father”) and Nora Marie Godwin Balderamos (“the mother”) were divorced in 1996; one of the alleged causes of the divorce was the father’s extramarital affair. The parties’ son was an infant when they separated in May 1996. After mediation, the parties entered into a separation agreement that was incorporated into the divorce judgment entered by the court. However, one portion of the divorce judgment contains provisions different than those in the separation agreement.

The divorce judgment awarded the parties joint legal custody of the son, with the mother having sole physical custody. In addition, it awarded to the mother the right to make all day-to-day decisions affecting the son, and, in the case of a disagreement between the parents, it awarded to the mother “final say” on all medical, religious, civic, and cultural issues. The father was awarded “final say” on all academic, athletic, and legal issues. The parties’ separation agreement, however, only addressed who had final decision-making authority on religious and athletic issues.

Despite the acrimonious circumstances under which the parties separated, they worked admirably well together as parents for their young son. The father exercised very generous visitation privileges, took care of the son when the mother took trips on weekends that were not the father’s scheduled weekends for visitation, and assisted with transportation to and from day care as needed. The son is well-adjusted and happy, and, until the mother decided to remarry and move to the Cayman Islands, the parties were apparently happy with their custody arrangement.

The mother met Frank Balderamos at a wedding on Grand Cayman in November 2000. They first engaged in a long-distance friendship, communicating via e-mail and by telephone; they began visiting each other as the relationship became romantic. The mother planned to take the son on a trip to the Cayman Islands in August 2001.

The father learned of the mother’s relationship and “heard a rumor” sometime in the summer of 2001 that the mother was contemplating relocating to the Cayman Islands. He filed a petition to modify custody and a motion for an ex parte restraining order in July 2001, alleging that the mother was planning to leave the country with the son, requesting a restraining order to prevent the mother from removing the son from Birmingham, and requesting that the parties be awarded joint physical custody because, he alleged, that had been the practice of the parties for several years. In October 2001, the mother testified in a deposition taken in relation to the father’s July petition that she was not planning to move to the Cayman Islands. The father and the mother entered into a consent judgment in December 2001. That consent judgment contained a provision requiring either party to give the other party 45 days’ notice of an intent to move more than 30 miles from Birmingham. In addition, the consent judgment made substantial changes to the visitation provisions of the original divorce judgment.

In November 2001, the mother and Balderamos became engaged. In January 2002. the mother notified the father that she and Balderamos would be married in June 2002 and that she and the son would be moving to Grand Cayman to live with her new husband. The father objected and refused to assist the mother with ob-taming a passport for the son. The mother then filed a motion to require the father to execute the necessary documents to obtain a passport for the son. The father filed a second petition to modify custody and a contempt petition, alleging in the contempt petition that the mother’s actions in deciding to move to Grand Cayman and to enroll the son in school there violated the provision in the divorce judgment granting the father the “final say” on academic and athletic issues.

Before trial, and before her wedding in June 2002, the mother relocated to Montgomery, where she moved in with her parents. According to the mother and Bald-eramos, Balderamos was willing to resign from his position as a finance manager at a private bank on Grand Cayman and to seek a similar position in the Southeastern United States if the trial court refused to permit the mother and son to move to Grand Cayman. Although she had enrolled the son in school on Grand Cayman, the mother also enrolled the son in school in Montgomery because she was unable to relocate until the trial court decided the case. At the time of the trial, the school year had not yet begun.

After a trial, the trial court entered a judgment denying the father’s contempt petition and denying the modification petition, but restraining the mother from moving with the son to the Cayman Islands. After considering postjudgment motions, the trial court amended the divorce judgment by granting the father “final say” on only athletic issues and by setting out two minimum visitation schedules — one to be used if the mother and son continued to reside in Alabama, the other to be used if they moved out of the state. Either visitation schedule reduces the amount of visitation the father will have with the son.

The father appeals. He argues that the trial court used the wrong standard in determining whether to modify custody and that the trial court wrongfully based its reduction of the father’s access to the son on the father’s predivorce conduct. He also argues that the trial court erred by not enforcing the provision of the original divorce judgment granting him “final say” on academic matters and in failing to enforce what he calls a “geographic restriction” in the December 2001 consent judgment. We affirm.

The father first argues that the trial court incorrectly applied the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard in deteimining whether to modify custody. He argues that the “best interest” standard applies because this case involves a “custody dispute arising out of relocation” issues; he cites Murphy v. Murphy, 479 So.2d 1261 (Ala.Civ.App.1985), and Ex parte Couch, 521 So.2d 987 (Ala.1988), in support of this proposition. Murphy did not involve a request for modification of custody; instead, it involved whether the custodial parent should be permitted to relocate in light of the parties’ settlement agreement, which required the child to live within Tuscaloosa County unless the parents agreed upon or received judicial approval of a proposed relocation. Murphy, 479 So.2d at 1262.

In Murphy, this court noted that a parent requesting a change of custody from one parent to the other must meet the Ex parte McLendon standard. Id. at 1263. However, this court further explained that the issue at hand was not a change of custody, but instead an approval of a change of residence proposed by the custodial parent. Id. Thus, this court concluded that the trial court correctly granted the mother permission to relocate because “under these facts, the trial court should be guided by the best interests of the child.” Id.

While the facts of this case are similar to those in Murphy, the holding in Murphy is inapposite to the father’s argument on appeal. The father here sought not only to prevent a relocation, which might properly be reviewed under the best-interest standard, but to change custody on the basis of the mother’s expressed intent to relocate to Grand Cayman and upon her intermediate move to Montgomery. Even the Murphy court states that such a request is properly reviewed, in light of the award of physical custody to the mother, under the Ex parte McLendon standard. Id. at 1268.

Likewise, we find the father’s reliance on Ex parte Couch misplaced. While Ex parte Couch involved a move from Alabama to New York, the court was more focused on determining whether Ex parte McLendon standard or the “best interest” standard applied to the custody-modification request that was based upon the mother’s argument that the father had relinquished his right to “shared physical custody” under the parties’ separation agreement, which had been incorporated into the divorce judgment, by permitting the children to be in her physical custody since only a few months after the divorce. Ex parte Couch, 521 So.2d at 989. The supreme court commented that the father’s agreement to allow the children to remain in the mother’s custody suited the parties’ and the children’s best interest at the time. Id. The court also said that it did not wish to discourage parents from agreeing to an informal arrangement pertaining to custody, as circumstances and the best interests of the family dictated. Id. at 990. Thus, the court decided that the father’s actions, however inconsistent with his right to insist on “shared physical custody,” did not require application of the Ex parte McLendon standard because the divorce judgment incorporating the parties’ separation agreement did not favor one parent over the other. Id. The Ex parte Couch court did discuss how the policy considerations of Ex parte McLendon might be impacted by the facts of that particular case. Id. However, those statements, in light of the fact that the court clearly held in two separate portions of the opinion that Ex parte McLendon did not apply to the case, see Ex parte Couch at 989 and 990, were dicta.

The mother correctly points out that this court and our supreme court have consistently applied Ex parte McLendon standard to cases involving a request for a custody modification on the basis of an intended (or even completed) relocation of a custodial parent when the prior judgment favored one parent with sole physical custody of the children. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996); G.R.V. v. M.V., 825 So.2d 116 (Ala.Civ.App.2001); and Scacca v. Scacca, 694 So.2d 1 (Ala.Civ.App.1997). In fact, as the mother argues, Ex parte Bryowsky is indeed more applicable to this case than Ex parte Couch. In Ex parte Bryowsky, our supreme court reversed this court’s reversal of a trial court’s judgment denying a modification of custody on the basis of a custodial mother’s intended move to Mississippi. Ex parte Bryowsky, 676 So.2d at 1324. This court had determined that, pursuant to Ex parte Couch, the correct standard to be applied to the father’s modification petition was the “best interest” standard. Gann v. Bryowsky, 676 So.2d 1317, 1319 (Ala.Civ.App.1995). In its opinion reversing this court, the supreme court explained succinctly:

“The Court of Civil Appeals correctly noted that the McLendon standard does not always apply in joint custody sitúa-tions. However, Ex parte Couch involved joint legal custody and shared physical custody of the children where no judicial determination had been made preferring either parent. Therefore, when the father in Ex parte Couch sought custody, we applied the ‘best interest of the child’ standard because under the particular facts of that case both parents were on equal ground in attempting to gain custody of the children. In the present case, the parties had joint legal custody, but a previous judicial determination had granted physical custody to the mother. This distinguishes this case from Ex parte Couch.”

Ex parte Bryowsky, 676 So.2d at 1325. Thus, we disagree with the father’s argument that the trial court erred by requiring him to satisfy the burden imposed under Ex parte McLendon.

The father does not argue that he met the Ex parte McLendon standard. Our review of the evidence presented convinces us that it supports the trial court’s conclusion that the father did not meet that burden. As the mother noted in her brief, “[a] change in the custodial parent’s residence is only one factor to be considered in determining the outcome of a modification petition and does not necessarily justify a change in custody,” Scacca, 694 So.2d at 4. The trial court in the present case was presented with and considered a myriad of evidence concerning the parties’ actions and motivations and the son’s best interests; its conclusion based upon that evidence is entitled to great weight on appeal. Ex parte Bryowsky, 676 So.2d at 1326.

The father next argues that the trial court improperly considered evidence concerning his fault in the breakdown of the marriage and that it punished him for his extramarital affair by reducing the amount of time he is permitted to spend with his son. The father is simply incorrect in arguing that the trial court was precluded, in a case such as this where the divorce was never tried, from hearing evidence of the parties’ predivorce conduct. C.P. v. W.M., 806 So.2d 395, 396-97 (Ala.Civ.App.2001); Blume v. Durrett, 703 So.2d 986, 988-89 (Ala.Civ.App.1997). In addition, the father argues that comments by the trial court to the effect that the father’s choice to divorce the, mother would have as a consequence a reduction in the time he could spend with his son and a decrease in their physical proximity indicate a desire on the part of the trial court to punish the father for “causing” the divorce by carrying on an extramarital affair during the mother’s pregnancy and postpartum recovery; however, we do not read the trial court’s comments as being that pointed. The trial court was merely stating the obvious societal reality of divorce— that all divorces result in changes in a family’s physical proximity and in the family’s actual time spent together. In fact, the trial court refers to the loss of physical proximity as not only being a price the father might have to pay but as being one which he has already paid. In making its comments, the trial court was stating a universally known truth — that divorce has far-reaching consequences that impact every aspect of the future relationships between divorced parents and their children.

The father also appears to argue that the trial court’s establishing visitation schedules that are dependent upon the mother and son’s location is an abuse of its discretion; we see no reason to reverse the trial court’s judgment on this basis. The long-standing principle that a trial court has broad discretion in visitation matters applies to visitation-modification proceedings as well as original visitation determinations. Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala.Civ.App.1995); Wallace v. Wallace, 485 So.2d 740, 741 (Ala.Civ.App. 1986). Although the mother and son’s relocation away from Birmingham will reduce the father’s contact with the son, the trial court did not abuse its discretion in. “reducing” the father’s visitation when it fashioned a reasonable visitation schedule for parents who, at the time of trial, lived one and one-half hours away from each other.

Finally, the father argues that the trial court erred by failing to enforce the provisions on the original divorce judgment granting him “final say” on academic matters and in failing to enforce what the father calls a “geographic- restriction” in the December 2001 consent judgment. Those two arguments are interdependent because, according to the father, his authority over academic matters coupled with the 30-mile relocation-notification provision essentially formed a geographic restriction that assured him of having his son live in close proximity to him so that he could continue to be heavily involved in his son’s life. In its amended judgment, the trial court, at the request of the mother, removed the father’s “final say” over academic matters. Therefore, although the mother registered the son for school in both Grand Cayman and Montgomery against the father’s wishes before the trial, that particular issue is now moot. The father no longer has “final say” over academic matters, and he never had a geographic restriction preventing the mother and son from moving away from Birmingham.

Even if we were to agree with the father’s argument that the two provisions somehow “effectively imposed a geographic restriction,” we note that the trial court was not required to enforce that restriction. A geographic restriction may be upheld when the restriction promotes or protects the best interest of the child. Cohn v. Cohn, 658 So.2d 479, 481-82 (Ala. Civ.App.1994). “To find that a child must remain in one geographic area is a mere speculation of what the best interest of the child may be at a future date.” Wheeler v. Wheeler, 585 So.2d 51, 52 (Ala.Civ.App.1991). “An agreement that a child must remain in one area is conclusive of the child’s best interest only as long as the status of the parties at the time remains unchanged.” Wheeler, 585 So.2d at 52. When the restriction no longer serves the best interests of the child, “it is subject to be changed upon proper petition and proof.” McDaniel v. McDaniel, 621 So.2d 1328, 1330 (Ala.Civ.App.1993).

Therefore, even if the parties had had a geographic restriction, when the mother requested that she be allowed to relocate, the trial court would have had the duty to determine whether the proof submitted by the mother demonstrated that the son’s best interests would no longer be served by the restriction. Means v. Means, 512 So.2d 1386, 1389 (Ala.Civ.App.1987). “The best interest standard affords freedom for the trial court to consider numerous and varied factors.... [T]here are no specific rules or guidelines that will control every case.” Hodge v. Hovey, 679 So.2d 1145, 1148 (Ala.Civ.App.1996). Here, the trial court permitted the mother to move with the son; the trial court restricted that right by refusing to permit the mother and son to move to the Cayman Islands. Thus, if the trial court had been considering a geographic restriction in this case, it would have necessarily determined that such a restriction did not serve the best interest of the son at this time and conversely that relocation with the mother within the United States would be in his best interest. We likely would not have disagreed with its decision, and, even if we did, we could not substitute our judgment for that of the trial court, which heard the evidence and observed the witnesses. Hodge, 679 So.2d at 1148.

Accordingly, the trial court’s judgment denying the father’s petition for custody modification and permitting the mother to relocate, but prohibiting her from relocating to the Cayman Islands is affirmed. The appellee’s request for an attorney fee on appeal is granted in the amount of $4,000.

OPINION OF AUGUST 22, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

YATES, P.J., and PITTMAN, J., concur.

THOMPSON and MURDOCK, JJ., concur in the result.

MURDOCK, Judge,

concurring in the result.

This court has not previously determined that certain portions of the Supreme Court’s analysis in Ex parte Couch, 521 So.2d 987 (Ala.1988), are properly viewed as dicta, and I see no need to make that determination in order to decide the present case. Because I am not prepared to agree with this and other aspects of the main opinion’s analysis, I concur only in the result reached by that opinion.

      . The father’s appeal raises issues concerning only the denial of the modification petition.


author: BASCHAB, Judge.

text:
    Antonio MORRIS v. STATE of Alabama.
    CR-02-0679.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Antonio Morris, pro se.

      William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On March 24, 2000, pursuant to a negotiated agreement, the appellant, Antonio Morris, pled guilty to unlawful distribution of a controlled substance. The trial court sentenced him, as a habitual offender, to serve a term of ten years in prison. See § 13A-5-9(a)(2), Ala.Code 1975. It then split his sentence and ordered him to serve a term of two years in prison. The trial court also enhanced his sentence by five years because the sale took place within three miles of a school and an additional five years because the sale took place within three miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala. Code 1975. On June 28, 2002, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that “the Transcript of Record Conviction Report in this instant case erroneously shows that [he] was sentenced to a single twenty (20) year split sentence with twelve (12) years to serve, rather than the actual aggregate sentences which were imposed.” (Appellant’s brief at p. 4.) Specifically, he contends that the trial court “sentenced [him] to a ten (10) year split sentence with two (2) years to serve, as well as two (2) separate five (5) year sentences, for a total aggregate sentence of twelve (12) years.” (Appellant’s brief at p. v.) Therefore, he concludes that “his sentence is illegal and is not authorized by law because it does not conform to the oral pronouncement of sentence, as well as exceeds that authorized by law.” (Appellant’s brief at p. 4.)

Contrary to the appellant’s assertion, “ ‘[t]his Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Aa.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.’ State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001).” Calloway v. State, 860 So.2d 900, 902 (Aa.Crim.App.2002). Therefore, the appellant’s aggregate sentence was twenty years in prison. Accordingly, his argument that his total aggregate sentence was twelve years is without merit.

However, we conclude that the execution of the appellant’s sentence is illegal. On March 24, 2000, when the appellant was sentenced, § 15-18-8(a)(l), Ala.Code 1975, provided:

“(a) When a defendant is convicted of an offense and receives a sentence of 15 years or less in any court having jurisdiction to try offenses against the State of Aabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution or treatment institution for a period not exceeding three years and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best....”

Because the appellant’s aggregate sentence was twenty years in prison, the trial court did not have jurisdiction to split his sentence. See Calloway, supra.

“ ‘Matters concerning unauthorized sentences are jurisdictional,’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

Id. Accordingly, we remand this case to the circuit court with instructions that that court set aside the split portion of the appellant’s sentence. Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ.,'concur.

       Note from the reporter of decisions: On September 19, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: WISE, Judge.

text:
    William CAIN v. STATE of Alabama.
    CR-02-0694.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Billy Shaun McGhee, Dothan, for appellant.

      William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, William Cain, appeals from the circuit court’s denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 2002 guilty-plea convictions for five counts of distribution of cocaine and one count of possession of cocaine. Cain did not appeal from his conviction.

On September 12, 2002, Cain filed a Rule 32 petition, challenging his distribution and possession convictions. Cain alleged that the trial court erred in enhancing his sentence pursuant to § 13A-12-250, Ala.Code 1975, (1) because he “did not receive prior notice that the court would seek enhancement under Section 13A-12-250, Code of Alabama (1975)” and (2) because no evidence was presented during the guilty plea hearing tending to show that Cain was within three miles of a school as required by § 13A-12-250, Ala. Code 1975. On September 25, 2002, the State filed a motion for summary disposition, which contained a copy of the State’s November 1, 2001, notice to defendant of its intent to seek enhancement of his sentence under § 13A-12-250. Cain amended his petition at the beginning of the December 19, 2002, evidentiary hearing to include a claim of ineffective assistance of counsel. At the conclusion of the hearing, the trial court ruled by stating, ‘Well, I have either got to believe him or believe what the record says, and I choose to believe what the record says, so your petition is denied.” This appeal followed.

On appeal, Cain argues (1) that the trial court erred by not finding his counsel ineffective; (2) that the trial court failed to make specific findings of fact on his claim of ineffective assistance of counsel; and (3) that the trial court erred “by not informing the defendant of the five-year enhancement prior to the entry of his guilty plea, and therefore, lack an actual basis for the guilty plea.”

Rule 32.9(d), Ala. R.Crim. P., requires that after a hearing on a Rule 32 petition, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” “These findings of fact, which form the basis for the trial court’s denial of a petitioner’s Rule 32 petition, are necessary to afford the petitioner due process.” Brown v. State, 677 So.2d 1266, 1266 (Ala.Crim.App.1996). The trial court failed to make such findings.

Accordingly, we remand this cause for the trial court to enter a new order addressing the claims contained in Cain’s Rule 32 petition. In remanding this case, we ask the trial court to order that a transcript of Cain’s guilty-plea hearing be prepared and that a copy of that transcript be included in the court’s return to remand. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . A review of the record reveals that the trial judge who denied Cain's Rule 32 petition is not the same judge who accepted his guilty plea; thus, the trial judge did not have personal knowledge of the circumstances surrounding Cain's guilty plea or his allegation of ineffective assistance of counsel. Compare Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).

       Note from the reporter of decisions: On September 19, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: McMILLAN, Presiding Judge.

text:
    Larry L. DANIELS v. ALABAMA BOARD OF PARDONS AND PAROLES.
    CR-02-1585.
    Court of Criminal Appeals of Alabama.
    Sept. 9, 2003.
    Larry L. Daniels, pro se.
    William H. Pryor, Jr., atty. gen., and Gregory 0. Griffin, Sr., and Hugh Davis and Steven M. Sirmon, asst, attys. gen., Alabama Board of Pardons and Paroles.
   McMILLAN, Presiding Judge.

Larry L. Daniels filed a petition for a writ of certiorari, in which he challenged the revocation of his parole by the Alabama Board of Pardons and Paroles (“the Board”). The record indicates that Daniels was serving a 10-year sentence for a 1993 conviction for assault in the first degree. He was placed on parole on July 10, 2000, and his parole was revoked on February 7, 2001; moreover, when his parole was revoked, the Board ordered that Daniels’s parole revocation be given consideration again in February, 2006. Daniels then filed his petition with the Montgomery Circuit Court; that court summarily denied the petition. The court found that Daniels had been given proper written notice of the charge and of the hearing; that the fact-finder’s conclusion that Daniels possessed cocaine while on parole was supported by a police officer’s testimony regarding events the officer had personally observed; that § 15-22-32, Ala.Code 1975, authorized the Board to require Daniels to serve the balance of his original sentence or any part of that sentence; and that the fact-finder and the Board had acted within their discretion and jurisdiction in revoking Daniels’s parole.

Daniels’s probation officer and Dothan police officer Rhett Davis testified at Daniels’s revocation hearing. The hearing officer’s written findings reflect the following: Davis and another officer stopped Daniels on November 3, 2000, in response to a “suspicious persons” report. Daniels told them that his name was “Bob Smith,” and the officers placed him under arrest for giving a false name. They then patted him down for weapons and transported him to jail in their patrol car. During the trip to the jail, Officer Davis saw Daniels moving around in the backseat. When Daniels got out of the car, Davis pulled up the backseat and found a small plastic box containing several white rocks. Field tests of the rocks were positive for the presence of cocaine. Based on this evidence, the hearing officer found Daniels guilty of violating a condition of his parole and recommended a one-year revocation. The Board reviewed the hearing officer’s decision and imposed a five-year revocation.

The record indicates that the parole in question attached to a 10-year sentence for a conviction of assault in the first degree out of Houston County and that the date of that conviction was September 14, 1993. The same document states that Daniels’s sentence for that conviction will expire on April 9, 2013, 10 years beyond what would appear to be his expiration of sentence. Further, the five additional years of imprisonment would exceed Daniels’s 10-year sentence by three years.

Because as the record stands, Daniels appears due to be released on September 14, 2003, this cause is remanded for the circuit court to clarify Daniels’s sentence. Due return should be made to this Court before the close of business on Friday, September 12, 2003.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Although it is not a part of the record and thus cannot be considered on appeal, the clerk's office of this Court has indicated to this Court that the Administrative Office of Courts' state judicial information system reveals that Daniels was also convicted of robbery on the same date, September 14, 1993, in Henry County and was sentenced to 20 years' imprisonment on that conviction.

       Note from the reporter of decisions: On October 24, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: McMILLAN, Presiding Judge. WISE, Judge

text:
    Charles Edward HILL v. STATE.
    CR-02-1295.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Charles Edward Hill, pro se.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB and SHAW, JJ., concur in the result.

WISE, J., dissents, with opinion, which COBB, J., joins.

WISE, Judge

(dissenting).

I respectfully dissent from the majority’s decision in its unpublished memorandum affirming the circuit court’s denial of Charles Edward Hill’s Rule 32, Ala. R.Crim. P., petition for postconviction relief. Based on the record before us, I believe this case should be remanded for additional findings.

Hill alleged in his petition that his guilty pleas to the offenses of trafficking in cocaine and distribution of marijuana were not voluntarily and knowingly entered because, he said, the circuit court did not inform him of the potential minimum and maximum sentences he could have received on those charges.

Rule 14.4(a), Ala. R.Crim. P., provides, in pertinent part:

“[T]he court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.... ”

Since January 1, 1991, the effective date of Rule 14.4, Alabama law has consistently held that when an accused pleads guilty on the basis of misinformation as to the range of punishment, the guilty plea is involuntary. See, e.g., Cantu v. State, 660 So.2d 1026 (Ala.1994); Burns v. State, 778 So.2d 246 (Ala.Crim.App.2000); Handley v. State, 686 So.2d 540 (Ala.Crim.App.1996). Because the circuit court’s order states only that Hill’s claims are without merit and does not specifically address Hill’s claim that he was not advised of the potential minimum and maximum sentence he could receive upon pleading guilty, I would remand this case for the circuit court to make specific findings regarding this claim. Therefore, I must dissent.


author: BASCHAB, Judge. COBB, Judge,

text:
    Bruce WAGNER v. STATE of Alabama.
    CR-02-1309.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Allison Wallace, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Bettie J. Carmack, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, PH., and SHAW and WISE, JJ., concur; COBB, J., concurs specially, with opinion.

COBB, Judge,

concurring specially.

The prosecutor in this case made repeated comments in closing argument that a witness to the crime had been afraid of the defendant, Bruce Wagner, but no testimony in the record supported those statements. The trial court sustained one of defense counsel’s objections to the comments, and it overruled the remaining objections and denied Wagner’s motion for a mistrial. The prosecutor’s arguments about the witness’s fear were erroneous because they were unsupported by any evidence placed before the jury or by any reasonable inference from the evidence.

“It has been uniformly held that counsel should have wide latitude to draw reasonable inferences from the evidence but should not be allowed to argue as a fact that which is not supported by the evidence.” Brown v. State, 374 So.2d 391, 394 (Ala.Crim.App.), aff'd, 374 So.2d 395 (Ala.1979). Because the prosecutor’s comments about the witness’s fear of Wagner were not based on evidence in the record, the trial court should have sustained all of the objections to those remarks. However, this Court has often held that a motion for a mistrial should not be granted where the prejudicial qualities of improper comments can be eradicated by the trial court’s curative actions. E.g., Eaton v. State, 759 So.2d 562, 565 (Ala.Crim.App.1999). The trial court here instructed the jury repeatedly, including after the objectionable remarks were made, that the arguments of counsel were not evidence in the case. Furthermore, as the majority correctly noted in its unpublished memorandum, the decision on a motion for mistrial is a matter left to the trial court’s sound discretion. The trial court is in a better position to determine the effect, if any, an improper remark had on the jury’s ability to decide the case impartially. Id.

Therefore, although I believe the trial court should have sustained all of Wagner’s objections to the prosecutor’s improper remarks, I agree that the trial court did not abuse its discretion when it denied the motion for a mistrial. For the foregoing reasons, I concur with the majority’s unpublished memorandum.


author: PER CURIAM.

text:
    Luis A. LOPEZ, Appellant, v. AMERICAN AIRLINES and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-1129.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Rehearing Denied July 14, 2004.
    Luis A. Lopez, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Florida Unemployment Appeals Commission.
    Before SHEVIN, RAMIREZ and WELLS, JJ.
   PER CURIAM.

Luis Lopez appeals an order of the Florida Unemployment Appeals Commission dismissing as untimely Mr. Lopez’s appeal of the referee’s decision denying him benefits. We affirm.

The Commission correctly dismissed the appeal as Mr. Lopez did not file his appeal within twenty days of the date that the referee’s decision was mailed to him. § 443.151(4)(b)3, Fla. Stat. (2003). See Venero v. Winn Dixie Stores, Inc., 826 So.2d 495 (Fla. 3d DCA 2002). In addition, Mr. Lopez is not entitled to an evi-dentiary hearing on the timeliness issue. See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002);. Suarez v. Unemployment Appeals Comm’n, 871 So.2d 1039 (Fla. 5th DCA 2004). In some eases,-where “a party claims that a referee’s decision was either untimely mailed or not received, appellate courts have held, on due process grounds, that the claimant was entitled to an evidentiary hearing on the timeliness issue.” Guerrero v. Fla. Unemployment Appeals Comm’n, 855 So.2d 266, 268 (Fla. 3d DCA 2003); Abreu v. Krama Constr. Inc., 870 So.2d 917 (Fla. 3d DCA 2004); Frederick v. Fla. Unemployment Appeals, 834 So.2d 957 (Fla. 3d DCA 2003); Goldberg v. Unemployment Appeals Comm’n, 842 So.2d 952 (Fla. 4th DCA 2003). Here, however, Mr. Lopez does not assert that he never received the referee’s decision or that he received it too late to file a timely appeal. See Gutierrez v. Fla. Unemployment Comp., 837 So.2d 609 (Fla. 3d DCA 2003). Accordingly, the order is affirmed.

Affirmed.


author: MAY, J.

text:
    Saint Jean ISTACHE, Appellant, v. Antonio PIERRE and Allstate Insurance Company, Appellees.
    No. 4D03-1854.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Richard A. Sherman, Sr. of Richard A. Sherman, P.A., Fort Lauderdale, and Jack A. Nieland of Law Offices of Lawrence J. Signori, West Palm Beach, for appellant.
    Cymonie S. Rowe of Dickstein, Reynolds, Woods & Murasko, North Palm Beach, for appellee Allstate Indemnity Company, and Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellee, Antonio Pierre.
   MAY, J.

The defendant appeals a final judgment in an automobile accident case. He argues that the trial court abused its discretion when it failed to set aside responses to requests for admissions that had been filed in error and directed a verdict against him on the issue of causation. We agree and reverse for a new trial on causation and damages.

The facts of the underlying accident are rather straightforward. The plaintiff was a passenger in a car driven by the defendant. The defendant caused the car to swerve to avoid hitting another vehicle and crashed into a fire hydrant. The plaintiff sued to recover for injuries sustained.

At the beginning of trial, defense counsel moved to amend the responses to the plaintiffs request for admissions. He established that the wrong responses were filed due to clerical error. His paralegal had filed ten responses to the nine requests for admissions submitted to Allstate instead of the eight requests directed to the defendant. He argued that the plaintiff had to have known of the mistake because the pre-trial stipulation listed the issues as disputed and there were ten responses to the eight requests directed to the defendant. The erroneous responses admitted causation, permanency, and negligence. In short, the responses admitted all relevant issues to be tried. His paralegal testified regarding the mistake. Not only did defense counsel attempt to amend the responses, he moved for a mistrial at the start of trial. The court reserved ruling on the motion. Over defense objection, plaintiffs counsel advised the jury of the defendant’s admissions in opening statement.

Testimony revealed that the plaintiff had been a farm laborer for many years. He had injured his back six years before in another automobile accident, and. had also injured his back in a fall from a ladder. Medical testimony suggested that the plaintiffs injury .was unlikely to have been caused by a single traumatic event. The defense expert testified that the injuries were only temporary in nature. However, every medical witness testified that the plaintiff sustained some injury as a result of this accident.

At the close of the testimony, defense counsel again moved for a mistrial. The trial court, reserved ruling. The defendant renewed his motion to vacate or strike the responses and filed a new corrected response. The court again, reserved ruling.

The defendant then requested that the responses be removed from evidence. Finally, the trial court granted the motion and agreed to give a curative instruction. Plaintiffs counsel objected. He argued that such an instruction would make him look like a “buffoon” because he had not attempted to prove issues that he had told the jury were admitted. Nevertheless, the trial court instructed the jury to disregard the admissions referred to by plaintiffs counsel in opening statement and during trial “as if [they were] never, ever placed before you, and as if [they were] never in evidence.”

The trial court then directed a verdict for the plaintiff on negligence and causation. The jury returned a verdict finding the defendant 80% negligent and the plaintiff 20% negligent. It awarded the plaintiff $72,603.50 in damages.

We address two issues: (1) the court’s initial refusal to set aside the defense responses to the request for admissions filed in error; and.(2) the directed verdict on causation.

Florida Rule of Civil Procedure 1.370(b) provides:

[T]he court may permit withdrawal or amendment [of a response to request for admissions] when the presentation of the merits of the action will be subserved by it and the party who obtained the admis-pion fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.

This court,.has recognized that the rule favors amendments to responses to ensure that a cause is decided on its merits. Ramos v. Growing Together, Inc., 672 So.2d 103 (Fla. 4th DCA 1996). In this case, the trial court ran afoul of the rule and its purpose. The trial court should have granted the defendant’s motion to amend its responses to the plaintiffs request for admissions.

The error began, when the court denied the initial request to amend the responses. The error was compounded when plaintiffs counsel told the jury in opening statement that the defendant admitted negligence, causation, permanency and damages, followed by defense counsel telling the jury that the majority of these issues were disputed. When the trial court reversed itself and struck the admissions, it .turned the- plaintiffs burden of proof on its head. In an apparent attempt to compensate, the trial court directed a verdict on the issue of causation.

When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light- most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.

Frenz Enters. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999). Here, the evidence conflicted as to whether the accident caused the plaintiffs injuries. Therefore, looking at the evidence in the light most favorable to the defendant, the trial court erred in directing a verdict on causation.

The two-fold error of denying the defendant’s request to amend his responses to the request for admissions, compounded by the entry of a directed verdict for the plaintiff on the issue of causation, warrants a reversal. The case is remanded for a new trial on causation and damages.

POLEN and SHAHOOD, JJ., concur.


text:
    5th AVENUE REAL ESTATE DEVELOPMENT, INC., a Florida corporation, and Willis Hale, Appellants, v. AEACUS REAL ESTATE LIMITED PARTNERSHIP, a Jersey Channel Islands limited partnership, Appellee.
    No. 4D03-1520.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellants.
    Norman L. Schroeder, II of Norman L. Schroeder, II, P.A., Lake Worth, for ap-pellee.
   PER CURIAM.

Appellants, 5th Avenue Real Estate Development, Inc. (“5th Avenue”) and Willis Hale, appeal the trial court’s entry of a Final Summary Judgment of Foreclosure and Final Summary Judgment on Guarantee of Notes. Because we find that there are issues of material fact, we reverse and remand.

This case began as an action by the Appellee, Aeacus Real Estate Limited Partnership (“Aeacus”), against 5th Avenue and Willis Hale, the vice president of 5th Avenue, to foreclose a mortgage that 5th Avenue executed and to collect on two promissory notes. On July 9, 1999, Aea-cus and 5th Avenue executed a promissory note in the amount of $980,000. Aeacus was the obligee on the note and 5th Avenue was the obligor. This promissory note was secured by a mortgage where Aeacus was the mortgagee and 5th Avenue was the mortgagor. The mortgage, also executed on July 9, 1999, was on property known as 1450 South Dixie Highway, Boca Raton, Florida. Another promissory note was also executed on the same day for $355,000 on which Aeacus was the obligee and 5th Avenue was the obligor. This $355,000 note was not secured by the mortgage. However, this note would later become secured by the mortgage in an agreement entered into by Aeacus and 5th Avenue entitled “Stipulation For Settlement and Modification of Mortgage” (“Settlement Agreement”). Both notes were personally guaranteed by Hale.

Paragraph five of the Settlement Agreement states:

Upon execution and delivery of this Agreement, and upon payment of the amount described in paragraph 1. above, AEACUS shall suspend its pursuit of the legal proceedings described herein. In the event of any default under this Agreement, AEACUS shall be entitled to the immediate entry of a final judgment of foreclosure, and a final judgment on the guaranties. 5TH AVENUE and WILLIS HALE, as part of the consideration passing to AEACUS under this Agreement, hereby waive all defenses, affirmative defenses, counterclaims, or other such matters asserted in the legal proceedings described above, or in any manner existing as of the date of execution and delivery of this Agreement. Notwithstanding the terms of this section # 5, 5th Av. And Willis Hale will be entitled to a 30 day curing period prior to entry of judgment of foreclosure or final judgment on the guaranties.

After Aeacus and 5th Avenue entered into the Settlement Agreement, Aeacus filed a motion for summary judgment against 5th Avenue and Hale. Aeacus also filed affidavits with the motion for summary judgment which alleged that the Appellants defaulted under the Settlement Agreement and that Aeacus gave the Appellants the requisite thirty days to cure. Aeacus then filed a Motion-for Approval of Stipulation for Settlement and Modification of Mortgage. The trial court granted the Motion for Approval of Stipulation for Settlement and Modification of Mortgage on March 3, 2003 and on March 19, 2003, the trial court issued its Final Summary Judgment of Foreclosure and Final Summary Judgment on Guarantee of Notes. The Appellants now appeal the trial court’s summary judgment.

The standard of review for an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. Here, the Appellants appealed several points relating to the trial court’s summary judgment; however, we reverse on only one issue relating to the thirty day cure period.

In reviewing a summary judgment, this court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001) (citing Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)). In this case, as quoted above, the Settlement Agreement stated that “[njotwithstanding the terms of this section # 5, 5th Av. And Willis Hale will be entitled to a 30 day curing period prior to entry of judgment of foreclosure or final judgment on the guaranties'” In Hale’s affidavit attached to 5th Avenue’s Opposition to Plaintiffs Motion for Final Summary Judgment Against Defendants 5th Avenue Real Estate Development, Inc. And Willis Hale, Hale states that he “never received a notice of default from Plaintiff, and as a result of Plaintiffs failure to communicate notice of default, he was unaware that the grace period to cure the event of default had been triggered.” In contrast, Aeacus specifically alleged in its affidavit that the Appellants were notified of their default and given thirty days to cure this default. As this right to cure had to be satisfied before entry of a final judgment, and there is a dispute about whether the Appellants knew that the thirty-day cure period was in effect, there still exists a genuine issue of material fact. Thus, summary judgment was improper on this point.

Accordingly, we reverse the trial court’s order for summary judgment and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

GUNTHER, STEVENSON, and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    ALLSTATES FIREPROOFING, INC., a Florida corporation authorized to do business in the State of Florida, Appellant, v. Angelina GARCIA, as Personal Representative of the Estate of Aaron Isais Garcia, deceased, and Angelina Garcia, individually and on behalf of Jose Juan Garcia, a minor, and Maritza Garcia, a minor, Appellees.
    No. 4D03-1243.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Charles M-P George, Coral Gables, and Christopher W. Wadsworth of Lydecker & Wadsworth, Miami, for appellant.
    Kelley B. Gelb and Joseph J. Slama of Krupnick, Campbell, Malone, Buser, Sla-ma, Hancock, McNelis Liberman & McKee, Fort Lauderdale, for appellees.
   POLEN, J.

Appellant, Allstates Fireproofing, Inc., has timely appealed a non-final order denying its motion for summary judgment based upon the affirmative defense of workers’ compensation immunity. This appeal arises out of an accident in which a scaffold fell on the decedent, Aaron Garcia, resulting in head injuries and his death several days later. Appellee, Angelina Garcia, the decedent’s surviving spouse, brought suit.

Allstates is engaged in the business of fireproofing structures by spraying a fire resistant papier máche material. Allstates usually deploys teams of three to four people for each job, consisting of a sprayer, a laborer, and a material feeder. The sprayer works from atop a rectangular scaffold. The height of the scaffold is important in determining, according to the mathematical formula, whether outriggers are required. After a section is completed, the laborer is supposed to sweep up all debris on the floor between the scaffold and the next section and thereafter move the scaffold forward lengthwise. Allstates’ normal practice of cleaning was to sweep the area clean, pushing all the leftover debris into piles out of the way of the scaffold’s path of movement, and thereafter remove the piles when the job is complete. The correct method, for-moving the scaffold is to either push or pull it on the shorter side. This entire process is repeated until the job is completed. All-states has sole discretion to modify or maintain its routine practices, and has used this procedure for ten: years without incident.

Aaron. Garcia, the decedent, had been employed by Allstates as a laborer for approximately six months. The decedent represented to Allstates that he had approximately five to ten- years of experience setting up scaffolds. Additionally, the decedent received training and instruction in the use of scaffolding, approximately thirty to forty minutes at a time; approximately fifteen to twenty times. Allstates also provided a safety manual, on-going safety meetings and written safety tests, designed to inform of the dangers associated with the use of scaffolding, to all employees, including the decedent. Allstates also inspects its scaffolding daily before use.

On the day of the accident, the scaffold in question was inspected to make sure that the wheels were cleaned, oiled, and rolling properly. The decedent successfully moved the scaffold twice before the accident. On the third move, the decedent improperly moved the scaffold sideways and the sprayer on top of the scaffold quickly screamed out “stop, you are doing it wrong.” The scaffold tipped over sideways and landed on the decedent, striking him just below his hard hat. The decedent died several days later.

The decedent’s estate is receiving workers’ compensation death benefit payments through Allstates. • In addition to that, Garcia filed suit against Allstates, claiming that Allstates’ actions were substantially certain to result in injury or death to the decedent. Garcia also filed claims against the general contractor, the scaffold distributor and the scaffdld manufacturer. All-states moved for summary judgment on the basis of the affirmative defense of workers’ compensation immunity. The trial court ultimately found that Allstates was “not entitled to workers’ compensation immunity as a matter of law at this time." (Emphasis supplied.)

We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v). Although the trial court’s order stated that Allstates “is not entitled to worker’s compensation immunity as a matter of law at this time,” the record before us, in addition to counsels’ briefs and oral arguments, reveal no factual dispute. There are no additional facts which would prove helpful in the determination of this legal question. Accordingly, we find sufficient crystallization of the facts to conclusively and finally determine Allstates’ entitlement vel non to workers’ compensation immunity as a matter of law. Thus, we reverse the trial court’s order for the reasons that follow.

Workers’ compensation benefits generally constitute the exclusive remedy available to an injured employee as provided in section 440.11, Florida Statutes (2003). However, the supreme court recognized an intentional tort exception in Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000). The “test for determining whether an employer’s conduct comes within the intentional tort exception to Workers’ Compensation immunity requires an analysis of the circumstances of the case to determine whether a reasonable person would understand that the employer’s conduct was substantially certain to result in injury or death to the employee.” Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 587 (Fla. 2d DCA 2003). “A strong probability that an employer’s acts will result in injury is not sufficient to overcome the immunity afforded by the statute.” Clark v. Gumby’s Pizza Sys., Inc., 674 So.2d 902 (Fla. 1st DCA 1996), abrogated on different grounds by Turner, 754 So.2d 683 (citation omitted) (abrogated for use of the elevated standard of “virtual certainty”). Likewise, an employer’s mere knowledge and appreciation of risk is not intentional conduct, thus falling short of a substantial certainty. Clark, 674 So.2d at 904. “The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but is not an intentional wrong.” Id.

The case law is well established that conclusory allegations unsupported by ultimate facts are insufficient to overcome the exclusivity of workers’ compensation immunity. Likewise, even gross negligence is insufficient because it fails to constitute an intentional act. A substantial certainty was found in Turner when the employer allegedly knew of previous explosions as a result of chemical mixtures and nevertheless instructed employees to continue to mix those specific chemicals while intentionally concealing such dangers and failing to provide adequate safety procedures. 754 So.2d at 684-85. Other cases where a substantial certainty of injury has been found are Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), and Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990). In Connelly,

there was evidence that [an] airplane was routinely overloaded and poorly maintained with known mechanical deficiencies. Problems with different parts of the aircraft were ignored and other malfunctioning items were reported only on in-bound trips to eliminate costly non-base repair expenses.... Further, the court also found that where an employer withholds from an employee knowledge of a defect or hazard which poses a grave threat of injury ... the employer will be considered to have acted in a belief that the harm is substantially certain to occur.

Turner, 754 So.2d at 690 (citations omitted). Similarly, in Cunningham, a substantial certainty of injury was found when

the employer removed warning labels on toxic substance containers, misrepresented the toxic nature of the substances, [ ] knowingly provided inadequate safety equipment ... diverted a smokestack, resulting in fumes flowing into rather than outside of the plant, and [ ] periodically turned off the plant ventilation system thereby intensifying the level of exposure.

Turner, 754 So.2d at 690-91.

On the other end of the spectrum, there are also cases where courts have held that an employer’s conduct, though negligent or reckless, was not substantially certain to cause injury or death. In Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857, 859-861 (Fla. 2d DCA 2002), there was an accident involving a forklift. The layout of a factory included an aisle which was more narrow at ground level than some of the supplies transported through that aisle. Id. As a result, forklift operators were instructed to raise the supplies high enough in the air to pass through the aisle, and to honk their horns while proceeding through the aisle to warn other employees. Id. Notwithstanding these safety precautions, employees were instructed to proceed through the aisle whether employees moved out of the way or not, and simply report any encountered problems to management. Id. The accident occurred when some supplies struck a pipe and then a column of the building, and rolled off of the forklift striking an employee, causing death. Id. Though management was aware that as the raised supplies passed through the aisle, they occasionally bumped into a column or pipe of the factory, there was no evidence that any supplies had ever fallen from a raised forklift or injured an employee. Id. The plaintiff in Fleetwood alleged that this accident was inevitable and therefore substantially certain to cause injury or death, and the trial court denied summary judgment for the defendant concluding that if this method of transport were used long enough, an accident would be inevitable. The second district reversed, and held:

We do not believe that the supreme court in Turner intended to allow a plaintiff to add together small risks of injury in order to reach a combined total where the likelihood of injury to some employee sometime was substantially certain. If that were the case, then many injuries that occur while roofing or while performing any other moderately dangerous, repetitive job would be classified as the result of intentional torts.

Id. at 869.

Additionally, in Pacheco v. Power & Light Co., 784 So.2d 1159, 1163 (Fla. 3d DCA 2001), when considering the intentional tort exception, the third district noted that “the cases which have actually applied the Turner doctrine, including Turner itself, have characteristically involved a degree of deliberate or willful indifference to employee safety.” In doing so, Pacheco held that either forgetting or neglecting to tell the power company to de-energize the power lines or to tell their workers they had failed to do so, though serious and resulting in tragic consequences, does not rise to the level of an intentional tort required to invoke the Turner exception. Id. Likewise, Tinoco v. Resol, Inc., 783 So.2d 309, (Fla. 3d DCA 2001), held that even though the employee alleged that he was never warned about a defect that caused an excavator to lurch forward when moved, the defect was obvious to all working in the vicinity of the machine. The injury in Tinoco occurred when the employee’s foot was crushed by the excavator when he stepped in front of it and into the operator’s blind spot. The court held that the employer’s conduct may have demonstrated negligence, “[b]ut under the case law, a showing of negligence, or even gross negligence, is not enough” to come within the intentional tort exception to workers’ compensation immunity. Id. at 310-311.

At bar, Garcia alleges an intentional tort on the part of Allstates by failing to properly train the decedent on the proper method of: (1) erecting a scaffold, which sometimes requires the use of outriggers, (2) cleaning the excess debris off of the floor, and (3) moving a scaffold. Furthermore, Garcia alleges this conduct was substantially certain to result in injury or death. We find the facts at issue here are more analogous to Fleetwood, Pacheco, and Tinoco and less like Turner, Connelly, and Cunningham. That is to say, All-states did not attempt to conceal, or fail to warn, the decedent of the danger involved with scaffolds. The material facts show that Allstates provided a safety manual and an abundance of safety training. Moreover, it should have been obvious to the decedent that there was a danger of the scaffold tipping over and landing on him, and that this danger was more likely if someone was atop the scaffold or if the scaffold’s path of movement was not clean and clear. As such, Allstates did not prevent the decedent from making an informed decision on whether or not to expose himself to the risk. Furthermore, as stated in Fleetwood, Garcia cannot add together all of the small risks of injury created by Allstates’ conduct “in order to reach a combined total where the likelihood of injury to some employee sometime was substantially certain.” 833 So.2d at 869. Consequently, the facts of this case do not rise to the level of an intentional tort to qualify as an exception under Turner, 754 So.2d at 686. We therefore reverse and remand with instructions to enter summary judgment granting Allstates workers’ compensation immunity.

REVERSED.

SHAHOOD and MAY, JJ., concur.


author: FARMER, C.J.

text:
    Vincent A. LLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-184.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Paul Morris of the Law Offices of Paul Morris, P.A., Miami, and R.N. Eoblegard, III, of Fee, Koblegard & DeRoss, Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng and Myra Fried, Assistant Attorneys General, West Palm Beach, for appellee.
   FARMER, C.J.

In this appeal from a conviction for purchase of cocaine and possession of drug paraphernalia, defendant contends the trial court erred in denying his motion for admission into drug court because it misconstrued section 948.08(6)(a). The trial judge found defendant ineligible. Defendant argues that he was in' fact eligible because, as he explains in his brief, unlawful sexual activity with a minor does not equate with the term “sexual battery” or “any other crime involving violence.” We hold that the issue was not preserved and affirm.

In arguing that defendant waived this issue and did not preserve it for review, the state' points out that he never asserted this argument in the trial court. Defendant had in fact filed a motion for admission into the drug'program early in the case, but he argued merely that he met all eligibility requirements. The state objected, pointing out that there were pending charges against him for sexual activity with a minor. Defendant’s only argument in response was that the state had no right to object to his admission. In denying his motion, the trial court explained:

“The defense’s position is, to put it succinctly, that the defendant would be eligible to enter the PTI program under F.S. 948.08, even without the State’s consent, because he is charged with offenses that are PTI eligible under F.S. 948.08(6)(a), i.e. Purchase and Possession of Cocaine and even though that program has been abolished via Administrative Order in the 19th Circuit, the Drug Court Program is the functional equivalent of the PTI program. Therefore, if he is otherwise eligible for the PTI program, he is eligible for Drug Court upon his request for entry into such program even over the State’s objection .... ”

Defendant did not seek a rehearing of the order to bring to the attention of the trial court the statutory construction argument he makes for the first time here. He also did not raise the issue in any other way during the four-month interval between the order and the sentencing. Nor did he raise the issue at sentencing. In short, he simply never presented his argument on statutory construction to the trial court.

We conclude that the argument on appeal was not preserved either by being raised before sentencing or by a post-sentencing motion under rule 3.800(b). It is well settled that arguments raised for the first time on appeal are not preserved and are therefore waived. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (recognizing exception that in some circumstances, even though trial court’s ruling is based on improper reasoning, ruling will be upheld if any theory or principle of law in record would support ruling); Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981) (holding it improper to raise issue for first time on appeal); Universal Underwriters Ins. Co. v. Tucker, 736 So.2d 778, 779 (Fla. 4th DCA 1999) (argument not having been raised in trial court is waived); Bennett v. State, 641 So.2d 938, 938-39 (Fla. 5th DCA 1994) (appellate court should confine itself to only those questions that were before the trial court). We have held that even fundamental sentencing errors must be preserved by raising them in the trial court first, either by objection or by filing a motion to correct sentence under rule 3.800(b). Drayton v. State, 791 So.2d 522, 524 (Fla. 4th DCA 2001) (consecutive five-year sentences clearly exceeding statutory maximum could not be raised on direct appeal when defendant did not object to sentence at trial court level or file motion to correct sentence); see also Fla. R.Crim. P. 3.800(b).

We therefore have no choice but to reject his attempt to raise it here for the first time.

AFFIRMED.

SHAHOOD and TAYLOR, JJ., concur.

      . § 948.08(6)(a), Fla. Stat. (2003) ("a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893 ... who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence ... is eligible for admission into a pretrial substance abuse education and treatment intervention program approved by the chief judge of the circuit..-..”).


text:
    Shawna PARKERSON, Appellant, v. Padget NANTON and Trailer Bridge, Inc., a foreign corporation licensed to do business in the State of Florida, Appellees.
    No. 1D03-0991.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Rehearing Denied July 15, 2004.

      James H. Daniel and Howard C. Coker, Jacksonville, and Howard S. Grossman of Grossman & Goldman, P.A., Boca Raton, for Appellant.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellees.
   PER CURIAM.

Shawna Parkerson, the plaintiff below in this personal injury action arising out of a motor vehicle accident in which she was injured and her father was fatally injured, appeals an order in the favor of Padget Nanton and Trailer Bridge, Inc., appellees, which denied appellant’s renewed motion for directed verdict and her motions for entry notwithstanding the verdict, for ad-ditur, and for new trial. We affirm all issues raised on appeal.

We find that there was competent substantial evidence upon which the jury could have concluded that appellant’s post-traumatic stress disorder was not permanent. Thus, we find no error in denying the appellant’s motions. See Howell v. Winkle, 866 So.2d 192, 195 (Fla. 1st DCA 2004)(viewing evidence in light most favorable to nonmoving party, if there is any evidence upon which a jury could lawfully find for nonmoving party, a verdict should not be directed); Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998)(jury could find that an award of economic damages for palliative care was reasonable, while at the same time finding that an award for future pain and suffering either was not proven by greater weight of evidence or was otherwise not compensable); Republic Servs. of Florida v. Poucher, 851 So.2d 866, 870 (Fla. 1st DCA 2003)(additur not appropriate where the jury could have reached its verdict in a manner consistent with the evidence adduced).

Appellant also asserts that a directed verdict was required because certain statements of appellees’ counsel made in opening and closing argument constituted a judicial admission as to the permanency of appellant’s post-traumatic stress disorder. Although we recognize that this theory has been adopted in other jurisdictions, see, e.g., Childs v. Franco, 563 F.Supp. 290, 292 (E.D.Pa.1983); Larson v. A.T.S.I., 859 P.2d 273, 275 (Col.App.1993); Lowe v. Kang, 167 Ill.App.3d 772, 118 Ill.Dec. 552, 521 N.E.2d 1245, 1247-48 (1988); Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 967 (Me.2000); Kohne v. Yost, 250 Mont. 109, 818 P.2d 360, 362 (1991); and Francis v. Pountney, 972 P.2d 143, 147 (Wyo.1999); but see Kuzmic v. Kreutzmann, 100 Wis.2d 48, 301 N.W.2d 266 (Ct.App.1980), we decline to adopt it under the circumstances here. Further, under Florida law, absent a stipulation, statements of counsel not made under oath are not evidence. See Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995); State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003); and Sloan v. Sloan, 393 So.2d 642, 644 (Fla. 4th DCA 1981); see also section 1.1. Florida Standard Jury Instructions in Civil Cases (“The statements that the attorneys now make and the arguments that they later make are not to be considered by you ... as evidence in the case ... ”).

Finally, the trial court did not abuse its discretion in admitting into evidence the appellant’s use of marijuana and alcohol. Unlike Nichols v. Benton, 718 So.2d 925, 926 (Fla. 1st DCA 1998), where we held that the trial court abused its discretion in admitting similar evidence because there was no record evidence establishing relevancy, here the evidence of marijuana and alcohol use was relevant to appellant’s depression which was an element of her post-traumatic stress syndrome. The medical testimony in the record shows that the use of marijuana and alcohol could contribute to a person’s symptoms of depression and affect negatively the effectiveness of anti-depression medication.

AFFIRMED.

WOLF, C.J., ERVIN AND VAN NORTWICK, JJ., CONCUR.


author: POLSTON, J.

text:
    Rosemary MOSHER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5569.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Rehearing Denied July 21, 2004.

      Peter P. Sleasman, Southern Legal Counsel, Inc., Gainesville, for Petitioner.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.
   POLSTON, J.

Petitioner Rosemary Mosher was charged on March 21, 2002, with aggravated battery. Experts performed psychological evaluations and diagnosed Mosher as having schizophrenia, undifferentiated type. The trial court found Mosher incompetent to stand trial and committed her to the forensic unit of Florida State Hospital. See Fla. R.Crim. P. 3.212(c); § 916.13, Fla. Stat. (2002).

The second six-month report issued by the hospital continued to indicate that Mosher was incompetent to stand trial and that prognosis for restoration of competency in the foreseeable future was extremely unlikely. After the trial court issued an order continuing Mosher’s involuntary commitment, her lawyers filed a motion for release from involuntary commitment. The motion alleged that Mosher did not meet the criteria for involuntary commitment required by section 916.13(l)(c) and Fla. R.Crim. P. 3.212(c)(3)(B) because there was no substantial probability that her mental illness would respond to treatment and she would not attain competency to proceed in the reasonably foreseeable future.

At the motion hearing, Mosher’s lawyers ore terms amended their motion to request that the charges against her be dismissed. The trial court denied the motion, ruling that Fla. R.Crim. P. 3.213 and section 916.145, Florida Statutes (2002), relate to the dismissal of charges that have been pending for more than five years and that neither was applicable to Mosher. The trial court also ruled that Mosher would continue to be involuntarily committed at the hospital because she met the criteria for involuntary treatment. Mosher argues that the trial court erred and seeks her release or the dismissal of charges and the institution of civil commitment proceedings pursuant to the Baker Act. We grant in part the petition for a writ of certiorari and quash the trial court’s order continuing Mosher’s involuntary commitment.

The trial court correctly ruled that Fla. R.Crim. P. 3.213 and section 916.145, by their plain language, relate to the dismissal of charges at any time after five years have elapsed from the time the person is determined incompetent to proceed. Because the five-year period of time has not yet passed, we find no error in the trial court’s ruling that the charges against Mosher should not yet be dismissed pursuant to Fla. R.Crim. P. 3.213 and section 916.145. We reject Mosher’s argument that Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), requires dismissal of the charges. The Court in Jackson specifically did not address the disposition of charges. 406 U.S. at 739, 92 S.Ct. 1845. However, we agree with Mosher that Jackson requires that either civil commitment proceedings be instituted or she be released. The Court in Jackson held:

[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.

406 U.S. at 738, 92 S.Ct. 1845 (emphasis added). Because it was determined at the hearing that there is not a substantial probability that Mosher will regain competency to proceed in the reasonably foreseeable future, she no longer meets the criteria for involuntary commitment required by section 916.13(l)(c). Therefore, pursuant to Jackson, the State must either institute civil commitment proceedings or release her. We grant Mosher’s petition relating to the trial court’s ruling that Mosher meets the criteria for involuntary treatment and remand for further proceedings.

GRANTED in part; DENIED in part and REMANDED with instructions.

BOOTH and HAWKES, JJ., CONCUR.

      . See Fla. R.Crim. P. 3.212(c)(5).

      . The Balter Act contemplates involuntary placement while criminal charges are pending. See § 394.469(l)(a), Fla. Stat. (2002)("At any time a patient is found to no longer meet the criteria for involuntary placement, the administrator shall: Discharge the patient, unless the patient is under a criminal charge, in which case the patient shall be transferred to the custody of the appropriate law enforcement officer.”).


text:
    David C. POWELL, Appellant, v. MIAMI DADE COUNTY, Appellee.
    No. 1D04-1312.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    David C. Powell, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. Appellant’s pending motions are denied as moot.

DISMISSED.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: SHARP, W., J.

text:
    Henry WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3955.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.
    Rehearing Denied July 15, 2004.
    Henry Washington, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Washington appeals from the denial of his petition for habeas corpus in which he seeks to collaterally attack his judgment and sentence for burglary of a structure, possession of burglary tools and petit theft, He was tried on January 20, 2000 and was found guilty on all three charges. We affirm.

The basis for our denial is primarily procedural. A petition for habeas corpus may not be used to collaterally attack a criminal judgment and sentence because Florida Rule of Criminal Procedure 3.850 has superceded habeas corpus as the only means to raise such issues. See Baker v. State, 878 So.2d 1236, 2004 WL 439879 (Fla. March 11, 2004); Spratling v. State, 851 So.2d 228 (Fla. 1st DCA 2003).

More importantly, the petition is successive and thus an abuse of process. See Spaziano v. State, 545 So.2d 843 (Fla.1989); Torres v. State, 554 So.2d 1230 (Fla. 2d DCA 1990). After Washington appealed from the criminal judgment and this court affirmed without opinion, he filed a motion for post-conviction relief, asserting twenty grounds for finding ineffective assistance of trial counsel. The trial court summarily denied some, conducted an evi-dentiary hearing on one ground, and denied relief on that ground. He appealed and this court affirmed without opinion. In this petition, Washington either restates many of the issues pertaining to ineffective assistance of trial counsel presented in his prior 3.850 proceeding, or grounds which could or should have been addressed in the previous Rule 3.850 motion.

We caution Washington against filing additional successive and improper collateral attacks on this criminal judgment. If he persists, this court may bar him from filing any additional pro se pleadings in this court seeking to collaterally attack the judgment and sentences. See State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED.

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

      . §§ 810.02(1), 810.06, 812.014(1), Fla. Slat. (1999).

      . See Washington v. State, 792 So.2d 475 (Fla. 5th DCA 2001).

      . Ibid.


text:
    Theodore WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4702.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Rehearing Denied Aug. 4, 2004.
    Kathleen M. Williams, Federal Public Defender, and Peter Birch, Assistant Federal Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm an order denying Williams’s rule 3.850 motion premised on a claim of newly discovered evidence. Williams was convicted in 1988 of one count of second-degree murder and one count of aggravated battery in a “drive by” shooting. A co-defendant, Vincent McDaniels, was also convicted and has now executed an affidavit recanting his testimony with respect to who fired the weapon.

We recognize that the trial court failed to conduct an evidentiary hearing before rejecting the recanting affidavit of a co-defendant. See generally Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999). We are, nevertheless, satisfied upon a full review of the record, including jury instructions and testimony of other witnesses, that, taking the affidavit as true, it cannot be said that the new testimony would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.), cert. denied, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998). Compare Padron v. State, 769 So.2d 432 (Fla. 2d DCA 2000)(absenee of record attachments made it impossible for appellate court to provide meaningful review of finding that recantation of co-defendant would not produce an acquittal).

FARMER, C.J., STONE and STEVENSON, JJ., concur.


author: GREEN, J.

text:
    Timothy SNEED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-3618.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.

      Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   GREEN, J.

Timothy Sneed appeals his conviction for second degree murder, arguing that the State used illegally obtained hospital records to convict him. We reverse Sneed’s conviction and sentence, and remand for a new trial in which Sneed’s hospital records must be excluded from the State’s ease-in-chief.

Timothy Sneed was charged with second degree murder for the shooting death of Cory Thompkins. The day after the shooting, Sneed appeared at Pan American Hospital complaining of a gunshot wound. The police obtained Sneed’s medical records from the hospital without giving notice to Sneed or his attorney, in violation of section 395.3025(4)(d), Florida Statutes (1998). The State later filed a notice of intent to subpoena Sneed’s medical records, this time following the proper statutory procedure.

Sneed moved to suppress the hospital records, arguing that the taint from the original illegal seizure could not be cured by a later, proper request. The trial court denied the motion. At trial, Sneed pled self-defense and testified in his own behalf. The State used the hospital records to cast doubt on Sneed’s credibility. He was found guilty and sentenced to thirty-five years in prison, with a three-year minimum mandatory.

On appeal, Sneed argued that the trial court erred in admitting the hospital records, where they had first been obtained in violation of section 395.3025(4)(d). We affirmed the conviction and sentence but certified conflict with State v. Rutherford, 707 So.2d 1129 (Fla. 4th DCA 1997), Klossett v. State, 763 So.2d 1159 (Fla. 4th DCA 2000) and State v. Johnson, 751 So.2d 183 (Fla. 2d DCA), review granted, 767 So.2d 461 (Fla.2000). Sneed v. State, 802 So.2d 458 (Fla. 3d DCA 2001).

The Florida Supreme Court resolved this conflict among the districts in State v. Johnson, 814 So.2d 390 (Fla.2002), by holding that hospital records obtained in violation of section 395.3025 were admissible where the State had made a good faith effort to comply with the statute. Id. at 394. As a result of that decision, the Supreme Court quashed our earlier decision in this case and remanded to us for reconsideration. See Sneed v. State, 821 So.2d 301 (Fla.2002) (table). We, in turn, relinquished jurisdiction to the trial court for a factual determination of the good faith issue in accordance with Johnson.

Upon relinquishment of our jurisdiction, a successor trial judge found that the police had not acted in good faith. The judge, however, did not hold an evidentia-ry hearing or cite to any competent, substantial evidence to support the finding. See Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999) (holding standard of review for findings of fact is whether competent, substantial evidence supports findings). We therefore vacated the trial court’s finding and again relinquished jurisdiction for an evidentiary hearing on the issue of whether the State (including the police as an arm of the State) acted in good faith when it obtained Sneed’s hospital records. Sneed v. State, No. 3D00-3618, — So.2d -, 2004 WL 242088 (Fla. 3d DCA February 6, 2004) (per curiam).

This time, the parties stipulated that an evidentiary hearing was unnecessary and agreed that the court could base its factual determination on the affidavit of Detective Rolando Garcia, the police officer who initially obtained Sneed’s hospital records. Garcia averred in his affidavit that he had been unaware of the law protecting patients’ medical records at the time he procured them, stating:

While at [the Pan American Hospital], I obtained Mr. Sneed’s medical records from the hospital. This was not done at the request or with the knowledge of any Assistant State Attorney. I did not know that there were requirements which had to be fulfilled before acquiring a Defendant’s medical records. Had I known, I would certainly have followed those requirements.

Based on this affidavit, the trial court found that the police had not acted in good faith:

Detective Garcia’s ignorance of the statutory requirements for compelling disclosure of a defendant’s medical records does not make for good faith. Further, prior to obtaining Sneed’s medical records, Detective Garcia made no attempt to contact an attorney for the state to verify the legal procedures for obtaining those records.

The State now argues on appeal that (1) the trial court’s findings of fact are not based on competent, substantial evidence and (2) the evidence does not support the finding that the State did not act in good faith. We disagree with both contentions.

First of all, Detective Garcia’s sworn affidavit provides sufficient competent, substantial evidence for the court to make its determination on the good faith issue. See Dep’t of Highway Safety & Motor Vehicles v. Swegheimer, 847 So.2d 545 (Fla. 5th DCA 2003) (finding policeman’s affidavit constitutes competent, substantial evidence). See also Duval Util. Co. v. Fla. Pub. Serv. Comm’n, 380 So.2d 1028, 1031 (Fla.1980) (defining “competent, substantial evidence” as evidence that will establish a substantial basis of fact from which the fact at issue can be reasonably-inferred, or such relevant evidence as a reasonable mind would accept as adequate to support a conclusion). The State obviously agreed when it stipulated with the defense for the use of the affidavit by the trial court and cannot be heard to complain now. See Eblin v. State, 677 So.2d 388, 390 (Fla. 2d DCA 1996) (“The state cannot claim error in a ruling it invited the court to make.”).

Furthermore, the evidence supports the trial court’s finding that Detective Garcia did not act in good faith, as Florida law holds that police officers are charged with knowledge of the law. See Doctor v. State, 596 So.2d 442, 447 (Fla.1992). Moreover, the “good faith” exception is based on an objective standard and expects officers to know the law. Stone v. State, 856 So.2d 1109, 1113 (Fla. 4th DCA 2003). See also Hilgeman v. State, 790 So.2d 485, 487 (Fla. 5th DCA 2001) (“Reasonable suspicion to seize ... did not arise based on the officers’ misapprehension of the law.”). Consequently, a law enforcement officer’s ignorance of the law is not tantamount to good faith.

Based upon the court’s finding that the State did not act in good faith, we hold that the original trial court erred in admitting Sneed’s illegally obtained medical records. See Johnson, 814 So.2d at 394 (finding that a court may exclude medical records where the State has without good faith violated the statutory procedure in obtaining them). Indeed, suppression of medical records in this case would serve the exclusionary rule’s historic purpose by encouraging police officers to become familiar with the proper legal procedures before impulsively seizing private patient records. See State v. White, 660 So.2d 664, 666-67 (Fla.1995).

Having found error, we must next determine whether that error was harmless— that is, whether we can say that there is no reasonable possibility that the error contributed to the conviction. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). As there were no independent witnesses to the death of the victim, the State’s evidence against Sneed was entirely circumstantial. According to Sneed, he went to the victim’s apartment, where the victim pulled a gun on him. He and the victim struggled; the gun went off, killing the victim. Thus, Sneed’s testimony was crucial, and the jury’s verdict depended largely on its view of his credibility. Moreover, the State argued in closing that Sneed should not be believed, in part because of discrepancies between his statements in the hospital records and the testimonies of the nurse and the doctor who had treated him. Based upon this, we cannot find the error to be harmless. We therefore reverse Sneed’s conviction and sentence and remand for a new trial consistent with this opinion.

Reversed and remanded for new trial.

      . The shooting occurred on or about October 5, 1998.

      . The statute provides, in pertinent part:
      (4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent ...:

      (d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.
      § 395.3025(4)(d), Fla. Stat. (1998).

      . See State v. Alfonso, 478 So.2d 1119, 1121 (Fla. 4th DCA 1985) ("[Information within the possession, of the police is considered to be in the possession of the prosecution.”).