author: RAMIREZ, J. COPE, J., GREEN, J.

text:
    D.F., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-1478.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing and Certification
    Denied June 9, 2004.
    Karl E. Hall, Jr., Miami, for appellant.
    Calianne P. Lantz and Mercedes Scopet-ta, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

D.F. appeals the trial court’s April 21, 2003 final judgment for termination of the parental rights to her three children. We find that the trial court abused its discretion when it denied D.F.’s counsel’s repeated requests for a continuance of the final adjudicatory hearing and therefore reverse.

In April of 1997, the appellee Florida Department of Children and Family Services adjudicated D.F.’s three children dependent. After being reunited with her children and returned to State custody several times, on July 28, 2001, pick-up orders issued for the children based upon D.F.’s arrest and the department’s inability to locate the children. The department eventually located the children and determined that D.F. was incarcerated in Ala-chua County, Florida.

In January of 2002, the department filed a Termination of Parental Rights Petition on the grounds of abandonment, and it reported that D.F. was incarcerated. In May of 2002, the trial court granted the defense a continuance to August 5, 2002. On that same day, the court terminated the father’s parental rights by default. D.F. was thereafter reported to be in federal custody. Her location was unknown.

In September of 2002, the trial court granted the defense a second continuance. The trial commenced on October 8j and continued on October 9, 2002 and November 18, 2002. D.F.’s location in federal custody remained unknown during the first two days of trial during which defense counsel moved for another continuance. The trial court t denied the motion and agreed to allow D.F. to appear telephoni-cally. D.F.’s counsel eventually located D.F. on November 18, the day of the final adjudicatory hearing, and moved for a continuance. Defense counsel proffered that he had witnesses and relevant evidence to present at trial, and he expressed his need for more time within which to prepare D.F.’s case for trial. The trial court again denied the motion. Defense counsel then communicated with D.F. telephonieally for a period of twenty minutes prior to the presentation of D.F.’s case on the last day of the final adjudicatory hearing. The trial court thereafter entered its order terminating D.F.’s parental rights.' '

We sympathize with the trial court’s frustration with all the delays occasioned by D.F.’s incarceration and the apparent lack of cooperation by the federal authorities, but we conclude that the denial of defense counsel’s motions to continue on the last day of the trial mandate reversal. We are mindful that it is well within the trial court’s discretion to determine whether it should grant a request for continuance. See Bouie v. State, 559 So.2d 1113, 1114 (Fla.1990). This determination will not be disturbed unless justice requires. Id. See also Beachum v. State, 547 So.2d 288, 289 (Fla. 1st DCA 1989). It is- quite common, however, to grant a continuance before or during a hearing for good cause shown by any party. See e.g. Fla. R. Juv. P. 8.255(f).

The trial court had a number of options at its disposal to ensure that D.F.’s due process rights w;ere not violated. The trial court could have allowed D.F. to testify telephonieally, after a reasonable amount of time to confer with counsel, see C.W. v. Dep’t of Children & Families, 843 So.2d 362 (Fla. 3d DCA 2003)(permitting a telephone appearance) and M.R.L. v. Dep’t of Children & Families, 835 So.2d 1261, 1262 (Fla. 1st DCA 2003)(allowing the prisoner to appear telephonieally). The trial court could have permitted a reasonable period of time for D.F. to present her own witnesses. See § 39.013(10), Fla. Stat. (2002)(allowing for reasonable periods of delay that result from a continuance granted at the party’s request).

The trial court’s decision to deny defense counsel’s motions to continue in effect denied D.F. due process. At the time in which the trial court denied defense counsel’s motion on the final day of the final adjudicatory hearing, D.F.’s location had already been determined. The trial court did not allow for arrangements for D.F. to appear telephonieally. The court then only permitted defense counsel to confer with D.F. for an unreasonably short period of time given the circumstances. We reject the department’s argument that defense counsel had been provided with reasonable access to D.F. in light of the time constraints (twenty minutes on the last day of the trial).

This is not a case in which the parent neglected any court proceeding upon which the entry of default would have been proper. See § 39.801(3)(d), Fla. Stat. (2002)(stating that failure of a parent to personally appear' at the adjudicatory hearing constitutes consent for the termination of parental rights). See also J.B. v. Dep’t. of Children & Family Servs., 768 So.2d 1060, 1064-65 (Fla.2000)(discussing the statutory scheme which permits termination of parental rights based upon a parent’s neglect of the proceedings); J.T. v. Dep’t. of Children & Families, 800 So.2d 692, 693-94 (Fla. 5th DCA 2001)(upholding the termination of parental rights where the parents failed to appear at the termination hearing and counsel did not offer any grounds for the parents’ non-appearance). Nor is this a case where there was any need for expediency as there was no pending adoption. The status of the children’s custody or future would not have been affected by a short delay.

This is a case in which the parent’s failure to appear in court was due to incarceration. The court simply did not give D.F. a meaningful opportunity to appear and respond to the charges. The record is devoid of any evidence that reflects that D.F. had an unwillingness to appear at her trial. D.F. had also reunited with her children on at least two occasions and had custody of the children at the time of her arrest.

The trial court thus erred by denying defense counsel’s motions to continue. Although we find troublesome the difficulties encountered in locating a federal prisoner, we cannot allow this to trump the fundamental rights that are at stake in proceedings to terminate parental rights. We therefore reverse the final judgment of termination of parental rights of D.F.

Reversed.

COPE, J.,

concurs.

GREEN, J.

(dissenting).

Under the facts and circumstances of this case, I simply cannot find the trial court’s refusal to continue the trial terminating the appellant/mother’s parental rights to be an abuse of discretion. For that reason, I would affirm.

This case was filed in the dependency court in 1997. Since that time, the State has taken the children into custody but later reunified the mother with the children on several occasions. On the last such occasion, the mother and children were reunited on a Friday, but the mother was arrested and incarcerated on the following Monday in the federal penal system on a parole violation. It is significant to note that the mother’s trial counsel below has also represented the mother in the dependency proceedings for at least two years prior to her arrest and she was therefore very familiar with him. Despite this fact, she made no efforts whatsoever to contact her trial counsel after her arrest to apprise him of her whereabouts in the federal penal system or inquire about the status of her children in the state dependency .proceedings.

On January 17, 2002, a termination of parental rights petition was filed against the mother on the grounds of abandonment and case plan non-compliance under section 39.806(l)(e), Florida Statutes (2001), and noted that the mother was incarcerated. Prior to the commencement of this trial, this case was continued twice on the grounds that the mother could not be located in federal custody. Both the mother’s counsel and the appellee made efforts to locate the mother in the federal penal system prior to the trial but were unsuccessful. The only information conveyed by the authorities in the federal penal system regarding the mother’s whereabouts stated that she was “in transit.” The trial court continued the trial twice on the grounds that the mother’s whereabouts in federal prison remained unknown.

Finally, on October 8, 2002, the trial commenced in this cause over the defense’s- objection that the mother still had not been located. In denying the defense’s motion for yet another continuance, the trial court agreed to a procedure which attempted to maintain a balance between the due process rights of the mother and the need of the children for permanent placement. The trial court decided to proceed with the trial, but not rule on the same until after the mother’s counsel- was given a specified amount of additional time within which to get a transcript of the trial and attempt to contact the mother. Thereafter, if the mother wished to be heard by telephone or-any other means, the trial court agreed to hear from her prior to ruling on this case. The majority’s assertion to the contrary is' simply wrong. See Maj. Op. at 734.

Approximately one month later, on November 18, 2002, the trial was still pending. The mother’s counsel informed the trial court that he had located the mother in a correctional facility in Tallahassee by using the corrections website that morning. Because thé federal authorities do not transport their inmates to civil state court proceedings such as the terminations proceeding below, the trial court made arrangements with the federal correctional facility to permit the mother to participate telephonieally - in .the proceeding for approximately two hours. The trial court also permitted the mother’s counsel to speak privately to the mother during, the morning- hours' of the proceeding for approximately twenty minutes and during the afternoon hours of the proceeding for approximately twenty ■ minutes. After speaking to the mother, the defense counsel declined to present the mother’s testimony telephonieally based upon his asserted inability to adequately prepare her. On April 23, 2003, the trial court entered its Final Order terminating the mother’s parental rights, and this appeal followed.

The mother essentially asserts that her due ‘process rights were violated when she was given only two twénty-minute telephonic communications with her counsel to prepare and defend this termination proceeding. Under ideal circumstances, no one would dare disagree with her. No one can disagree, however, that the circumstances presented in this case are less than ideal as well. Through no fault of the trial court, .appellee or defense counsel, the mother was unable to be physically present at the trial of this cause. She was only able to be- present telephonieally at the latter stage of the proceedings. The trial court was faced with the dilemma of con-turning this trial still further with the very strong possibility that the mother might not be locatable in the federal penal system at the time of the next hearing or permitting the mother’s input, albeit limited, at the final hearing on November 18, 2002. The trial court’s decision not to continue this proceeding still further under such circumstances cannot be deemed an abuse of discretion particularly where the overwhelming evidence established by clear and convincing proof adduced by the appellee supports the Final Order terminating the mother’s parental rights. See Gore v. State, 599 So.2d 978, 984 (Fla.1992); C.J. v. Dep’t of Children & Families, 756 So.2d 1108, 1109 (Fla. 3d DCA 2000); see also F.A.F. v. Dep’t of Children & Family Servs., 804 So.2d 616 (Fla. 3d DCA 2002); T.C. v. Dep’t of Health & Rehab. Servs., 681 So.2d 893 (Fla. 4th DCA 1996). As I see it, a retrial of this ease is an exercise in futility and only prolongs and/or frustrates the appellee’s ability to secure adequate permanent placement for the minor children at issue in this case.

      . If this is a recurring problem, as suggested by the department, perhaps a better procedure can be devised between the department and the federal authorities.

      . Thus, contrary to the majority’s assertion, I do believe that this is precisely a case where the mother neglected this proceeding in part.

      . Indeed, the mother’s attorney’s Herculean efforts in this regard included writing letters to the President of the United-States and his brother, the Governor of the State of Florida,seeking assistance.

      . Even this limited information was gleaned from, an internet web search of a federal corrections database. ,

      . The court: What I am going to do is deny Mr. Metcalfe's motion for continuance at the moment and I am going to try the case. I am not going to rule on the case, b.ut I am going to give Mr. Metcalfe X amount of time to get a transcript and to contact his client if he can, and if she wishes to be heard by telephone or any other means, I will hear from her prior to ruling on the case. . ,
      I must confess to you that this is not my original idea, I understand it’s one that Judge Lederman uses sometimes in the same situation, and it sounds to me to be eminently fair. But it is far more unfair to deny these children permanency ad infinitum. This woman has her obligations as well, and I commend counsel, I think that the one thing that’s stipulated is that everyone has tried everything they can to locate her and haven't been able to do so thus far. Does anyone deny that?

      . Indeed, on the date of oral argument, the mother’s appellant counsel candidly acknowledged that neither he nor trial counsel knew of the current custodial whereabouts of the mother.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric S. WALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-326.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Rehearing Denied June 9, 2004.
    Eric S. Wallen, Clermont, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant .Attorney General, Daytona Beach, for Appellee. .
   PER CURIAM.

Eric S: Wallen appeals the summary denial of his Florida Rules of Criminal Procedure 3.800(a) motion in which he alleged that although he entered- into a plea agreement to serve a fifteen-year sentence for aggravated assault with a deadly weapon, the sentence is illegal.

Aggravated assault with a deadly weapon is a third-degree felony under section 784.021(l)(a), Florida Statutes (1991), with a statutory maximum of five years. It is not clear from the record whether Wallen was sentenced as an habitual felony offender or a violent felony offender for this offense, but the maximum sentence for the habitual felony offender is ten years with a five-year minimum mandatory sentence if he was found to be a violent felony offender. See § 775.084(4)(b)3, Fla. Stat. (1991). While Wallen agreed to the longer fifteen-year sentence, this does not bar him from attacking the same as an illegal sentence. See, e.g., Larson v. State, 572 So.2d 1368 (Fla.1991); Wheeler v. State, 864 So.2d 492 (Fla. 5th DCÁ 2004).

The . aggravated assault with a deadly weapon count was only one of- several counts that resulted in consecutive and concurrent sentences totaling seventy-five-years. We only vacate the sentence for the aggravated assault with a deadly weapon count, rejecting Wallen’s claim that his sentence for aggravated battery was also illegal. We remand to allow the State the option of agreeing to a legal sentence on the aggravated assault with a deadly weapon count or withdrawing from the plea agreement so that it may proceed to trial on all counts. See, e.g., Barthel v. State, 862 So.2d 28 (Fla. 2d DCA 2003) (holding where illegal sentence was imposed pursuant to plea bargain, state must be given option of-either agreeing to re-sentencing to legal sentence or proceed to trial on original charges); Tarlhert v. State, 766 So.2d 457 (Fla. 5th DCA 2000) (holding where defendant received illegal sentence under unconstitutional guidelines pursuant to a plea bargain, state has option of proceeding to trial or agreeing to have legal sentence imposed); Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000) (holding if state does not agree to re-sentencing defendant to legal sentence, state should be allowed to withdraw plea and matter may proceed to" trial on original charges).

‘SENTENCE VACATED IN PART; REMANDED.

PETERSON, GRIFFIN and THOMPSON, JJ., concur.


text:
    Dereck S. SAILOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4103.
    District Court of Appeal of Florida, First District.
    April 30, 2004.

      Nancy A. Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Barbara J. Yates, Assistant Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Dereck S. Sailor, was convicted by jury of attempted armed carjacking and manslaughter without a firearm. The trial judge initially imposed a sentence of fifteen years imprisonment followed by fifteen years probation. On appeal, the sentence was vacated and the case was remanded for sentencing under the 1994 guidelines. Sailor v. State, 816 So.2d 182 (Fla. 1st DCA), review denied, 833 So.2d 774 (Fla.2002). On resentencing, the scoresheet scored victim injury points for death twice. The total score allowed a sentence of up to 178 months. The trial judge sentenced appellant to fourteen years in prison for the attempted armed carjacking conviction followed by eight years probation for the manslaughter conviction.

Appellant argues on appeal that the trial judge erred in scoring victim injury twice because there was only one injury. We agree. Florida Rule of Criminal Procedure 3.702(d)(5), regarding victim injury, provides that victim injury “is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.... Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.”

The State’s reliance on Jupiter v. State, 833 So.2d 169 (Fla. 1st DCA 2002), is misplaced. Jupiter was convicted of conspiracy to kidnap, false imprisonment, and third-degree murder, all of which involved a single victim. The trial judge, relying on an earlier decision of this Court, assessed victim injury points only for the third-degree murder conviction. The issue raised by the State on cross-appeal was whether the “trial court erred when it refused to assess on the sentencing guidelines scoresheet victim injury points for distinct injuries sustained by a single victim as the result of separate offenses.” Id. (Emphasis added). The State contended victim injury points should be assessed for both the false imprisonment and the murder convictions. This Court considered the issue en banc and held that rule 3.703(d)(9) required the trial court to score victim injury points for injuries sustained by the victim and attributable to both the false imprisonment and the third-degree murder convictions. The decision in Jupiter recognized the effect of the 1991 rule amendment and held that victim injury points may be assessed for each offense resulting in. injury, even if there is only one victim.. The decision does not stand for the proposition that victim injury points may.be assessed for each offense for which a defendant is convicted, even though only one injury occurs.

In the present case, there was only one injury. Accordingly, the trial court erred in assessing victim injury points for death twice. Accordingly, we vacate appellant’s sentence and remand for resentencing.

BARFIELD, KAHN, and HAWKES, JJ., CONCUR.

      . The evidence at trial established that a gun was discharged one time during an attempted carjacking, and that the victim received one injury, the gunshot wound to the head that caused his death.

      . Appellant filed a motion to correct sentence, asserting the guidelines rules did not authorize scoring the same injury twice. This motion was not ruled on within sixty days and was thus deemed denied.

      . As noted in Jupiter, the pertinent portions of the criminal procedure rules prior to 1991 had been construed as prohibiting the scoring of points for more than one offense when only a single victim was involved. However, in 1991, the rule was amended to require that victim injury points be assessed for each count resulting in a physical injury whether there are one or more victims. Notwithstanding the amendment of the rule, this court in Hudson v. State, 765 So.2d 273 (Fla. 1st DCA 2000), reversed the assessment of victim injury points for each of three counts of sexual battery committed on a single victim in 1997, holding that points could be assessed for only one count. The Hudson court relied on a decision involving offenses occurring before the 1991 amendment. Therefore, the Court sitting en banc receded from the decision in Hudson.

      . The remaining issue raised on appeal is without merit.


text:
    Morris R. MATHIEU, Appellant, v. Kris MATHIEU n/k/a Kris Badzinski, Appellee.
    No. 5D03-2954.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied July 27, 2004.

      Hal Roen, of Hal Roen, P.A., Winter Park, for Appellant.
    Neva M. Kelaher, Winter Park, for Ap-pellee.
   PER CURIAM.

This is the appeal of an amended final judgment of dissolution of marriage. The former husband, Morris Mathieu [“Math-ieu”], has raised five claims of reversible error in the final judgment. A significant theme running throughout is that inadequate findings of fact were, made by the trial court. We disagree. because the required findings are either express or apparent within the judgment, and our review is not hampered.

After the trial court issued its judgment below, Mathieu’s trial counsel, an experienced marital lawyer, filed a detailed motion for rehearing, raising multiple issues of law and asserting that several of the court’s findings were not supported by the evidence at trial. Notably, however, the only issue about which the inadequacy of the court’s findings was raised was attorney’s fees.

It commonly happens in appeals from final judgments in dissolution of marriage cases that the appellant will urge reversible error based on inadequate findings of fact, yet the claim of inadequate findings is often not brought to the attention of the trial court by way of a motion for rehearing. Rather than bring the fact-finding defect to the trial court at the time the' decision is made so that the same judge who decided the case can correct the omission while the case is fresh in his mind, often the defect is not ascertained on appeal until many months have elapsed. At best, the trial court has to recall facts that have receded in memory. At worst, the case may land in the lap of a different judge, who has to start all over.

The Third District Court of Appeal has taken the approach that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing. Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001). This strikes us as sensible and we adopt this' approach. In the usual case, we will treat the lack of adequate findings as an unpreserved error unless previously brought to the trial court’s attention.

AFFIRMED.

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

      . Our decision is subject to one caveat: Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings.


author: BROWNING, J.

text:
    Barnett SOCOLOW, Appellant, v. FLANIGANS ENTERPRISES and Protegrity Services, Appellees.
    No. 1D03-1378.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Rehearing Denied July 28, 2004.

      Edward Schroll, Miami, for Appellant.
    Janet Poluse of Matusek, McKnight, Po-luse & Cangro, P.A., St. Petersburg, for Appellees.
   BROWNING, J.

Appellant seeks review of a final order denying his claim for home attendant care from August 1, 1988, through January 18, 2002; granting his claim for home care since January 18, 2002; and ordering compensation at the federal minimum wage for 61 hours a week of care. For the.reasons below, we affirm the order to the extent that it grants compensation, and reverse in part the order to the extent that it denies the claim for compensation.

- Appellant was injured at work on September 20, 1979, and again on May 14, 1980. To treat these injuries, he underwent spinal surgery on December 13,1982. In 1986, Appellant was found by a JCC to be permanently and totally disabled. This Court affirmed that order per curiam. See Flanigan’s Enterprises v. Socolow, 505 So.2d 1343 (Fla. 1st DCA 1987). In 1999, Appellant filed a petition for benefits seeking medical expenses for continuing home attendant care from.August 1, 1988, costs, and attorney’s fees.

To uphold an order granting or denying workers’ compensation benefits, a reviewing tribunal need only determine that the record contains competent substantial evidence supporting the JCC’s conclusion; the JCC is not required to explain why he or she disregarded contradictory evidence. Chavarria v. Selugal Clothing, Inc., et al, 840 So.2d 1071 (Fla. 1st DCA 2003) (en banc). However, when the question presented in review of a workers’ compensation appeal is one of .law, review is de novo. Amato v. Winn Dixie Stores, 810.So.2d 979, 981 (Fla. 1st DCA 2002). Here, the record contains competent substantial evidence to support most, but not all, of the JCC’s findings, and case law supports the JCC’s ruling only to a certain extent. Ultimately, the JCC’s award of benefits from January 18, 2002, is proper, but the JCC also should have awarded compensation for attendant care rendered from January 1997 through May 1998 and should reconsider an award for care rendered from August through October 1988.

Appellant began living with his son, Sam, and Sam’s then-fiancee, Kelli, in August 1988. In October 1988, Sam and Kelli wed. Thereafter, Appellant sometimes lived with Sam and Kelli, sometimes lived alone and accepted their assistance, and, for a short time, lived alone too far away for Sam and Kelli to look after him. The JCC found that Kelli had helped cook Appellant’s meals, clean the home, and wash Appellant’s laundry since August 1988, and that the care given from August 1988 through January 18, 2002, is not compen-sable because it “constitutes quality of life activity, household services, and gratuitous family assistance.”

The JCC is partially correct as to the law. Housekeeping, transportation other than to a doctor, and other normal household duties that reflect on quality of life rather than medical necessity are generally considered gratuitous and not com-pensable. See, e.g., Montgomery Ward v. Lovell, 652 So.2d 509, 511 (Fla. 1st DCA 1995); Marlowe v. Dogs Only Grooming, 589 So.2d 990 (Fla. 1st DCA 1991); Sealey Mattress Co. v. Cause, 466 So.2d 399 (Fla. 1st DCA 1985). Care is compensable only if it is “medically necessary.” § 440.13(2)(b), Fla. Stat. (1997). Generally, attendant care considered medically necessary includes only bathing, dressing, administering medication, and assisting with sanitary functions. See, e.g., Lovell, 652 So.2d at 511.

Kelli provided cooking, cleaning, and laundry services to Appellant from August 1988 to October 1988, before she married his son. The applicable statute for awarding compensation for attendant care is the statute in effect at the time the compensable care was given. Walt Disney World Co. v. McCrea, 754 So.2d 196, 197 n. 2 (Fla. 1st DCA 2000). In 1988, section 440.13 specified that family members could not be compensated for attendant care services that would normally be provided by family members gratuitously. § 440.13(2)(d), Fla. Stat. (Supp.1988). Kelli became Appellant’s family member, as defined by section 440.13, only after her marriage to Sam. See § 440.13(2)(e), Fla. Stat. (Supp.1988); Lemus v. Ocala Star Banner, 672 So.2d 76 (Fla. 1st DCA 1996) (upholding award of compensation at federal minimum wage to claimant’s adult son who provided assistant care as a family member). Cf. Walt Disney World Co. v. McCrea, 754 So.2d 196, 198 (Fla. 1st DCA 2000) (noting that the definition of “child” provided in section 440.02(5) applies to the provision of death benefits only).

Because Kelli was not a family member during the first two months of care, she is entitled to compensation for any compen-sable care she provided. See DeLong v. 3015 West Corp., 491 So.2d 1306 (Fla. 1st DCA 1986) (holding that care provided by claimant’s son’s girlfriend was compensa-ble). It is true that housekeeping services historically have not been compensable as attendant care. Lovell, 652 So.2d at 510-11. However, the JCC did not explain whether his denial of compensation was based on a finding that Kelli’s services consisted only of housekeeping duties, as opposed to “gratuitous family assistance.” Therefore, we remand to the JCC for a determination of whether any services provided by Kelli before she was married are compensable, and an appropriate award of compensation if justified.

We also remand for an appropriate award of compensation for services provided from January 1997 through May 1998. The JCC’s factual findings as to that time period are not supported by competent substantial evidence. The record shows that Kelli provided cooking and cleaning services off and on from August 1988 forward, but also provided additional services from January 1997 through May 1998, including help with bathing, dressing, taking medication, and promoting personal hygiene. Under Lovell, Marlowe, and Gause, such care is compensable.

The JCC’s' finding that there was no medical need for attendant care before June 14, 2001, is no barrier to an award of compensation for care rendered before that time because the finding is not supported by competent substantial evidence. Dr. Collier testified that he prescribed home attendant care on June 14, 2001. However, he did not testify that there was no need for attendant care before the date of the prescription. Although the doctor initially testified that the first time he thought attendant care was “medically necessary” was the date of the prescription, he subsequently clarified that Appellant needed attendant care even before that date.

The care rendered since January 18, 2002, is clearly compensable as home assistant care because, as the record indicates, it also comprises assistance with bathing, dressing, bathroom functions, and giving medicine.

Appellant argues that the care found to be compensable should not have been limited to 61 hours per week. However, Kelli’s testimony that she provides 61 hours of care each week constitutes competent substantial evidence to support the award of compensation for attendant-care for 61 hours a week. Thus, the JCC did not err in limiting the award to compensation for 61 hours per week of care since January 18, 2002, and we affirm that determination.

Appellant also argues that the compensation awarded should not have been limited to the federal minimum wage. However, this was not error. In 2002, the relevant portion of section 440.13- required that compensation be paid to family members at this wage if the- family member is not employed. § 440.13(2)(b), Fla. Stat. (2002). The record indicates that Kelli’s most recent job before January 18, 2002, was working for a church in 2000 and simultaneously cleaning offices. This is competent substantial evidence to support the award. However, the same statute, also in effect in 1997, provides that a family rhember who is employed, and chooses to leave that employment to provide attendant care, will he entitled to compensation at “the per-hour value of the family member’s former employment, not to exceed the per-hour value of such care available , in the community at large.” § 440.13(2)(b), Fla. Stat. (1997). Accordingly, a wage other than the federal minimum wage may be appropriate for compensation for care provided from January 1997 through May 1998.

Appellant argues that even the cooking, cleaning, and laundry services provided by Kelli (after her marriage) while Appellant lived alone are compensable under Allied Discount Tires v. Cook, 587 So.2d 626 (Fla. 1st DCA 1991), and Walt Disney World Co. v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983). We disagree, as both cases are inapplicable to the instant case.

In Allied Discount, the claimant testified that his injury' prevented him from performing, routine household chores, and the claimant’s doctor and rehabilitation counselor both testified as to the medical need for housework including cooking and laundry. Moreover, there is no suggestion in Allied Discount that such care was, or would be, provided by family members. In the instant case, there is no evidence that household, cooking, or laundry services were medically necessary while Appellant lived alone, and such services were provided to Appellant during that time by family members rather than by an unrelated individual. Harrison is not controlling because the claimant there was required to wear a full body cast at all times, except while bathing or performing hygiene functions, for a full six weeks after her injury and, thus, was wholly incapacitated, whereas Appellant was not, and is not, restricted in such a manner.

Also, Appellant argues that the JCC erred in failing to adjudicate a claim for an electric cart or wheelchair. We disagree because the parties stipulated that this issue had been resolved. At the hearing, Appellant’s counsel stated that Dr. Collier had prescribed an electric wheelchair or electric cart, and that the carrier was willing to provide one when Appellant made his selection. Then, Appellee’s counsel affirmatively agreed to that statement on the record.

Finally, Appellant argues that the JCC erred either in citing section 440.13(3)(d) in the order, or in failing to implement the provisions of that section. We disagree, as the reference to section 440.13(3)(d) is a typographical error. The JCC stated that “the statutory provision as set forth in F.S. 440.13(3)(d) must be followed to determine what qualifies as compensable attendant or custodial care,” and recited case law to support the proposition that “[hjousekeep-ing services, such as making the bed, cleaning the home, washing clothes, and shopping, are not the responsibility of the Employer/Carrier.” The context of the citation indicates that the reference is to the statutes in effect at the times care was given. The relevant statute in 1988 is section 440.13(2)(d), Fla. Stat. (Supp.1988), the statute authorizing compensation for family members who give attendant care. This section was renumbered as (2)(f) by the 1990 amendments to the statute, renumbered as (2)(g) in 1993, and amended and renumbered as (2)(b) in 1995, remaining so in 1997 and 2002, but was never numbered (3)(d).

For the above reasons, we affirm the JCC’s order as to compensation for care rendered after January 18, 2002, but reverse the JCC’s order as to denial of compensation for prior care, and remand for a determination of the proper compensation consistent with this opinion.

BARFIELD and LEWIS, JJ., CONCUR.

      . There is no evidence that Kelli actually helped Appellant take medications before this time, but only evidence that she double-checked that Appellant had' correctly taken his medications.


text:
    FCCI MUTUAL INSURANCE COMPANY and Staffing Options, Inc., Appellants, v. Charles S. CREWS, Appellee.
    No. 1D04-0177.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Daniel T. Jaffe of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, Tampa, for appellants.
    Mark N. Tipton of Daniel L. Hightower, P.A., Ocala, for appellee.
   PER CURIAM.

Because the parties and the Judge of Compensation Claims have certified that claimant’s testimony cannot be reconstructed, this cause is reversed and remanded for a hearing de novo. See Arnold Lumber Co. v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

REVERSED AND REMANDED.

BARFIELD, DAVIS and POLSTON, JJ., concur.


text:
    Donald L. KELLUM, Appellant, v. Ray M. TATUM, Appellee.
    No. 5D03-2953.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    Rehearing Denied July 14, 2004.
    Donald L. Kellum, Gastonia, NC, Pro Se.
    John V. Baum, Maitland, for Appellee.
   PER CURIAM.

AFFIRMED.. See Tarken v. Dep’t of Transp., 629 So.2d 258 (Fla. 3d DCA 1993); Berenyi v. Halifax Hosp. Med. Ctr., 498 So.2d 655 (Fla. 5th DCA 1986).

PETERSON, ORFINGER and TORPY, JJ., concur.


author: COVINGTON, Judge.

text:
    STATE of Florida, Appellant, v. Anthony G. CHATTIN, Appellee.
    No. 2D03-164.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    Rehearing Denied July 9, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    Cedric P. Hay of Beil & Hay, P.A., Hudson, for Appellee.
   COVINGTON, Judge.

The State appeals from the trial court’s order granting Anthony G. Chattin’s motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we conclude trial counsel’s alleged omissions did not prejudice the outcome of the proceeding, we reverse.

Chattin was convicted of robbery in a 1998 jury trial. During the trial, Chattin’s counsel moved to strike five prospective jurors for cause because they stated they could not follow a jury instruction on voluntary intoxication. The trial judge struck three of those prospective jurors but neglected to strike the other two. Chattin’s counsel used peremptory strikes to remove those two jurors from the venire.

Subsequently the State peremptorily struck a prospective juror who was African-American. Chattin’s counsel objected on equal protection grounds. The trial court asked the State to give its reason for the allegedly racially discriminatory strike. The State responded that during voir dire the prospective juror was nonresponsive and seemed disinterested. The trial court accepted this reason, and counsel did not object further. At the conclusion of trial, Chattin was convicted of robbery and sentenced to fifteen years’ incarceration as a prison releasee reoffender.

On direct appeal of his conviction and sentence, Chattin argued that the trial court erred in failing to strike the two jurors for cause and in overruling his equal protection challenge to the State’s peremptory strike. Chattin v. State, 779 So.2d 415, 415-16 (Fla. 2d DCA 2000). This court found these two jury selection issues arguably had merit but affirmed because neither issue had been preserved for appellate review. Id. at 416.

Chattin filed a rule 3.850 motion alleging his trial counsel was ineffective for failing to preserve these issues for appeal. The trial court summarily denied both claims, ruling they were not cognizable on a rule 3.850 motion.

Chattin appealed the summary denial, and we reversed and remanded for an evidentiary hearing. Chattin v. State, 800 So.2d 665, 665-66 (Fla. 2d DCA 2001) (citing Thompson v. State, 796 So.2d 511 (Fla.2001) (holding failure to challenge a juror for cause is cognizable in a rule 3.850 motion), and Crumbley v. State, 661 So.2d 383, 384-85 (Fla. 1st DCA 1995) (“[T]he allegation of failing to properly preserve an issue which if well founded would result in a reversal has been held to constitute a preliminary basis for relief pursuant to rule 3.850.”)).

At the evidentiary hearing on remand, the trial court mistakenly concluded that the performance and prejudice prongs of Strickland had already been decided by this court in Chattin, 800 So.2d 665. Thus, it believed this court’s remand pursuant to Thompson gave it discretion only to decide whether counsel’s failures to preserve the jury selection issues were the products of reasonable tactical decisions. The court concluded that it could not rule counsel’s actions were reasonable tactical decisions because counsel could not remember the case and the State had not presented any evidence to show counsel’s actions were tactical. Consequently, the trial court .granted Chattin’s motion for postconviction relief and ordered a new trial. The State filed this appeal.

The State-argues on-appeal, as it did at the evidentiary hearing, that the trial court erred in granting Chattin’s rule 3.850 motion because his.counsel’s actions were tactical. The State further argues that even if the actions were not tactical, the post-conviction trial court on remand erred in failing to consider the prejudice prong of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We reverse based on the latter argument.

ANALYSIS

The first prong of the Strickland test for ineffective assistance of counsel is whether counsel’s performance fell “outside the wide range of professionally competent assistance.” 466 U.S: at 690, 104 S.Ct. 2052; see also Eure v. State, 764 So.2d 798, 801 (Fla. 2d DCA 2000). If counsel’s actions were the result of reasonable trial strategy, they cannot constitute ineffective assistance. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. It is the defendant’s burden to overcome the presumption that the challenged actions “might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

If the defendant shows that counsel’s allegedly deficient actions were not the product of reasonable trial strategy and his performance Was thus below reasonable professional standards, the defendant then must affirmatively prove the errors or omissions were so prejudicial that they undermine confidence in the outcome of the proceeding. Id. at 694, 104 S.Ct. 2052. Here we .apply’this second prong in the context óf a claim of ineffective assistance of counsel for failure to preserve issues for appellate review. Thus Chattin must show that had his counsel preserved the issues, this court likely would have reversed his conviction on direct appeal. See Eure, 764 So.2d at 801; Rhue v. State, 603 So.2d 613, 615 (Fla. 2d DCA 1992); Austing v. State, 804 So.2d 603, 605 (Fla. 5th DCA 2002); Vaz v. State, 626 So.2d 1022, 1023 (Fla. 3d DCA 1993). -

We address only Strickland’s prejudice prong because “[fjailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” See Strickland, 466 U.S. at 700, 104 S.Ct. 2052. See also Kennedy v. State, 547 So.2d 912, 914 (Fla.1989) (“A court considering a claim of ineffectiveness of - counsel need not make, a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.”); Griffin v. State, 866 So.2d 1 (Fla.2003). Since we conclude that neither of counsel’s alleged omissions meets the requirements of Strickland’s prejudice prong, we need not address whether counsel’s performance was deficient or was the product of reasonable trial strategy.

PREJUDICE

The trial court failed to address Strickland’s prejudice requirement because it misconstrued our prior decision in Chattin, 800 So.2d 665, as precluding it from doing so. Consequently, we must reverse. See State v. Stokes, 848 So.2d 1226 (Fla. 2d DCA 2003) (reversing because postconviction court misconstrued district court’s pri- or decision as precluding trial court’s consideration of prejudice prong). The record before us shows there is no reasonable probability that counsel’s failure to preserve the two issues for appeal prejudiced the outcome of the proceeding. Chattin’s claim with regard to the two prospective jurors whom the trial court failed to strike for cause cannot be deemed prejudicial because they ultimately did not serve on the jury. See Thompson, 796 So.2d at 517 n. 8 (declining to address trial counsel’s alleged deficient performance in failing to challenge potential juror who never served on jury).

Chattin’s remaining claim, that his counsel was ineffective for failing to preserve his objection to the State’s peremptory strike, also fails the prejudice prong. The record before us includes the voir dire transcript, from which we conclude that both counsel and the court followed the proper procedure regarding the disputed peremptory challenge. See Melbourne v. State, 679 So.2d 759, 764 (Fla.1996); Jeffries v. State, 797 So.2d 573, 580 (Fla.2001). Chattin’s counsel objected to the peremptory strike on equal protection grounds. The trial court asked the State to give its reason for the allegedly racially discriminatory strike. The State responded that during voir dire the prospective juror was nonresponsive and seemed disinterested.

The trial court accepted this reason, and Chattin’s counsel did not object further. We cannot say the trial court’s decision to accept the State’s race-neutral reason for the peremptory strike as genuine was clearly erroneous. See Estate of Youngblood v. Halifax Convalescent Ctr., Ltd., 874 So.2d 596, 601 (Fla. 5th DCA 2004) (affirming trial court’s decision to allow peremptory strike where counsel gave race-neutral reason that venireperson’s physical gestures showed bias, where gestures were not documented on record but were accepted by trial court); Jeffries, 797 So.2d at 580. Accordingly, we hold this claim fails to meet Strickland’s prejudice prong because there is no reasonable probability that had counsel preserved this issue, Chattin would have prevailed on appeal.

We reverse the trial court’s order granting Chattin’s motion for postconviction relief and remand with directions to reinstate his judgment and sentence.

ALTENBERND, C.J., and CANADY, J., Concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The trial court erred as a' matter of law in improperly shifting to the State the burden to prove that Chattin’s counsel’s actions were a product of reasonable trial strategy. ,The State was not required to present such proof since there is a "strong presumption of reasonableness” that must be overcome by the movant. See Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000). Because we decide this case on the prejudice prong, however,. we need not address whether, under the proper standard, counsel’s actions could have constituted reasonable strategy.

      . This case is distinguishable from Dorsey v. State, 868 So.2d 1192 (Fla.2003), in which the supreme court held that "a potential juror's nonverbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race neutral.” Here, opposing counsel did not dispute the existence of the nonverbal reason.


author: BENTON, J.

text:
    Adam Corey HOOVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4825.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Rehearing Denied July 28, 2004.
    Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public- Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

This is a direct appeal from convictions for first degree murder, armed carjacking, armed robbery, and armed kidnapping. We affirm all four convictions, but reverse appellant’s sentence in part and remand for entry of the correct mandatory minimum sentences for armed carjacking, armed robbery, and armed kidnapping, pursuant to section 775.087(2)(a)(3.), Florida Statutes (1999).

The information filed by the State charged that, while committing carjacking, robbery, and kidnapping, appellant carried a firearm, and killed James Edwards by discharging the firearm. After a jury trial, appellant was found guilty as charged, and duly adjudicated. He was sentenced to life in prison on each count. The life sentence for first degree murder was without the possibility of parole, and the life sentences for armed carjacking, armed robbery, and armed kidnapping, while concurrent with one another, were consecutive to' the life sentence fór murder. As to each; count, the trial court “ordered that the LIFE minimum imprisonment provision of section 775.087, Florida Statutes, is hereby imposed for the sentence specified in this count.”

, The trial cpurt did not err in imposing life sentences for first degree, murder, which is a .capital felony, see § 782.04(1), Fla. Stat. (1999), kidnapping while using a firearm, §■ 787.01(2), Fla. Stat. (1999) (“A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life.”); § 775.087(l)(a), Fla. Stat. (1999) (“Unless otherwise provided by law, whenever a person is charged with a felony ... and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony.”), armed robbery, § 812.13(2)(a), Fla. Stat. (1999) (“If in the course of committing the robbery the offender carried a firearm ... then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment.”), and armed carjacking. § 812.133(2)(a), Fla. Stat. (1999) (“If in the course of committing the carjacking the offender carried a firearm ... then the carjacking is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment.”).

While the mandatory minimum life sentence was required for first degree murder, see § 782.04(1), Fla. Stat. (1999); § 775.082(1), Fla. Stat. (1999), the trial court erred in “order[ing] that the LIFE minimum imprisonment provision of section 775.087, Florida Statutes, is hereby imposed” for the kidnapping, robbery, and carjacking counts. See generally Leonard v. State, 760 So.2d 114, 116 n. 4 (Fla.2000) (holding that though Leonard “suffered no prejudice from the erroneous imposition of this illegal sentence because it is to be served concurrently with other sentences that are unchallenged, ... [it] does not mean that it should remain uncorrected”). On those counts, the applicable mandatory minimum sentence is twenty-five years’ imprisonment, pursuant to section 775.087(2)(a)(3.), Florida Statutes. § 775.087(2)(a)(3.), Fla. Stat. (1999) (“Any person who is convicted of [robbery, carjacking, or kidnapping], regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony ... discharge^] a ‘firearm’ ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, ... shall be sentenced to a minimum term of imprisonment of not less than 25 years.”). The length of the mandatory minimum term does not depend on whether the non-capital felony is classified as first degree, first degree punishable by life, or life. The Legislature has provided in section 775.087(2)(c), Florida Statutes (1999), that “[i]f the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.”

Accordingly, we affirm the convictions, but reverse the mandatory minimum sentences for armed carjacking, armed robbery, and armed kidnapping, and remand for entry of the mandatory minimum sentences required by section 775.087(2)(a)(3.), Florida Statutes (1999).

BARFIELD and DAVIS, JJ., concur.


text:
    Ronnie COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1543.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.

      Ronnie Cooper, Malone, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 921.002(g), Fla. Stat. (2003); State v. Faulk, 840 So.2d 319 (Fla. 5th DCA 2003).

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


text:
    Mirit MENDELSON, Appellant, v. Yosi GIL, Appellee.
    No. 3D04-688.
    District Court of Appeal of Florida, Third District.
    June 3, 2004.
    Franklin & Criscuolo and Donald Cris-cuolo, North Miami Beach, for appellant.
    Büchbinder & Elegant and Ira-Elegant and E. Philip Green,' Miami, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.'
   PER CURIAM.

Mirit Mendelson, the former wife, appeals a visitation schedule ordered in post-dissolution proceedings. We affirm in part and reverse in part.

The former wife and Yosi Gil, the former husband, were divorced in 2000. There are three children of the marriage, ages thirteen, ten, and seven at this time. The former wife is the primary residential parent.

The judgment granted the former husband liberal visitation but did not spell out the details of the visitation schedule. As a result of visitation disputes, both parties petitioned the court to establish a visitation schedule. From the court’s ruling, ■the former wife appeals.

The parties agree that the former husband should have visitation with the children every other weekend. We therefore affirm that part of the visitation order.

As to weekday visitation, the trial court’s order specifies that the children will have overnight visitation with the former husband every Monday night and every Wednesday night. As we interpret the transcript, we agree with the former wife that the written order does not conform to the trial court’s oral pronouncement. As we read it, the oral pronouncement was for the former husband to have overnight visitation on alternating Mondays. Thus, following a weekend when the former husband did not have visitation, the children would have Monday night visitation with the former husband.

The more substantial issue presented below, and on this appeal, is whether the former husband should have any weekday visitation at all, or at least, while school is in session.

At the hearing below, the wife objected to the weekday visitation for the following reasons. (1) The former husband, an Israeli national, does not read English and is unable to help the children with their homework. (2) The former husband works long hours in his business and frequently comes late for visitation, sometimes by as much as three or four hours, and frequently cancels entirely. (3) The former husband frequently leaves the children with third-person caretakers rather than being present for visitation. As to the latter point, the former wife had subpoenaed the former husband’s former girlfriend, a neighbor, and a building security guard, proffering that this would be the witnesses’ testimony. However, because the time for hearing was about to expire, the witnesses were not allowed to testify.

The former husband replied as follows. (1) He acknowledges that he does not read English but stated, that he would hire a tutor to be present to help the children with their homework. (2) He did not dispute being late for visitation or canceling at the last minute, but says that the children have been willing to schedule alternative visitation on other weekdays. (3) He did not respond to the charge that he frequently leaves the children with third-party caretakers during his scheduled visitation.

A visitation schedule is appropriate if it is in the best interests of the children and appropriate for the children’s ages and circumstances. See Brown v. Smith, 705 So.2d 682, 685 (Fla. 4th DCA 1998).

The issues raised by the former wife are, in our view, substantial ones. It is not clear on the present record that the weekday visitation is, in fact, in the children’s best interest.

It is hard to see (at least on the present record) how the former husband’s visitation would work. The former husband maintains that he will provide a tutor, but does not dispute that he frequently picks up the children late (which would seem to render tutoring time unworkable) or not at all, and schedules visitation for a different day. If, as the former wife says, the former husband’s practice is to leave the children with third persons (including, potentially, the tutor) this too would not seem to be in the children’s best interests.

Because the former wife was not given an opportunity to present her witnesses, and the former husband’s testimony does little to respond to the former wife’s concerns, we reverse the order insofar as it provides for weekday visitation and remand for a new hearing to determine whether the former husband should have weekday visitation and, if so, how much. We acknowledge that the trial court was operating with the utmost of good motives in attempting to have a speedy resolution of all outstanding visitation issues, but under the facts of the present case, we conclude that a further hearing is called for on the issue of weekday visitation.

Affirmed in part, reversed in part, 'and remanded for further proceedings consistent herewith.

i


text:
    William W. WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1844.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Rehearing Denied July 15, 2004.
    James T. Miller, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is hereby denied on the merits. See Philmore v. State, 820 So.2d 919 (Fla.2002).

• BOOTH, POLSTON and HAWKES, JJ., concur.


author: GROSS, J.

text:
    Ronda McPHERSON and John McPherson, her husband, Appellants, v. Leigh PHILLIPS, M.D., Appellee,
    No. 4D03-1332.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Louis Thaler of Louis Thaler, P.A., Coral Gables, for appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

GROSS, J.

Ronda and John McPherson have moved for rehearing pursuant to Florida Rule of Appellate Procedure 9.330(a). Although we deny the motion for rehearing, we withdraw our per curiam affirmance and substitute the following opinion.

The McPhersons appeal a final judgment entered after a defense verdict in a medical malpractice action. We address three issues in this opinion: (1) the trial court’s rulings under section 766.106, Florida Statutes (2002); (2) whether the trial court erred in denying the McPhersons’ motions for mistrial and for new trial due to an improper closing argument; and (3) whether the trial court erred in granting the defense motion to tax costs, which was filed three months after the final judgment.

Chapter 766 Issues

On December 23, 1996, the McPhersons’ lawyer served appellee Dr. Leigh Phillips with a notice of intent letter containing a corroborating verified opinion of a medical expert. The expert, Dr. William L. Bacon, opined that:

Dr. Phillips failed to order appropriate test(s) and failed to make the diagnosis of osteomyelitis. Dr. Phillips also failed to order appropriate treatment and failed to monitor the patient’s condition. The failure to make the diagnosis of osteomyelitis in a timely manner was the direct cause of the amputation of the distal phalanx of the right index finger and permanent injury to Ronda McPherson.

The letter asked that Dr. Phillips provide certain information, such as copies of his records regarding the care and treatment of Ronda, the names and addresses of persons involved in Ronda’s care, and a transcription of any hospital or office notes.

Dr. Phillips did not respond to the notice of intent letter. On February 12,1997, the McPhersons’ counsel sent a second letter to Dr. Phillips noting that he had not responded to the previous letter. The letter requested a response. Dr. Phillips did not respond to the second letter. ', .

Between February Í2' and March 24, 1997, the McPhersons sent copies of other letters to Dr. Phillips which involved communications between the McPhersons and other potential defendants in the case.

On May 12,1997, the McPhersons filed a complaint for medical malpractice against Dr. Phillips, along with two other defendants.

On September 11,1997, Dr. Phillips filed his answer. On September 17, 1997, the McPhersons moved to strike Dr. Phillips’s pleadings,- based on his failure “to comply with the presuit screening requirements of Florida Statute Chapter 766.”

The trial court held a hearing on the motion to strike on November 21, 1997. Dr. Phillips appeared as a witness. He acknowledged that his address matched the address used in all correspondence sent by the McPhersons. He admitted .that people who worked in his office had apparently signed for the correspondence sent by the McPhersons.

■ While not disputing that his office had received all of the plaintiffs’' letters, Dr. Phillips denied seeing any of the correspondence until three days before the hearing, at his deposition. 'Dr. Phillips searched his office and could not locate any of the letters and records sent by the McPhersons.

An affidavit presented to the court represented that a woman who worked at the doctor’s office believed that the doctor’s medical malpractice liability insurer had received copies of all of the documents sent by the plaintiffs. The only document which the woman recalled receiving was the notice' of intent, but she understood that the insurer had already received this letter from plaintiffs’ counsel. The inference is that the office staff believed that the insurance carrier was handling the matter. ' ...

After the lawsuit was filed, -the insurer wrote to the McPhersons’ lawyer explaining there had been miscommunication, and asking to “engage in presuit.” The plaintiffs’. counsel responded that he had no desire or intention to engage in presuit, since he believed the trial court “will probably strike your pleadings.”

The trial court heard the argument of the attorneys. Dr. Phillips’s lawyer told the trial court that the intent of Chapter 766 was “not to play gamesmanship” and that the McPhersons'’ motion to strike the pleadings was tantamount to “gotcha” litigation tactics. He argued that there had been no unreasonable failure to respond because Dr. Phillips had never seen the documents and the individuals who received them were employed by a separate corporation that was not a defendant in the ease.

Plaintiffs’ counsel explained that he had not gone through presuit, in response to the insurer’s belated request, because “first of all, there was no obligation to do it and second, we didn’t want to delay the plaintiffs’ case and, third, we had already gone -through it ... with ' co-defendants .... ”

Without articulating its reasons,' the trial court denied the McPhersons’ motion to strike. In reviewing the trial court’s ruling, we are required to view the evidence taken at the hearing in the light most favorable to upholding the ruling. See Smith Barney, Inc. v. Potter, 725 So.2d 1223, 1224 (Fla. 4th DCA 1999) (“The hoariest principle of appellate review is that every presumption is in favor of the ruling of the trial court.”).

The McPhersons argue that because Dr. Phillips failed to comply with the presuit screening requirements of Chapter 766, “the only appropriate sanction” was to strike his pleadings. However, the law does not support such an automatic, draconian response to every Chapter 766 noncompliance.

Section 766.106, Florida Statutes (2002) provides the statutory framework for the presuit process in medical malpractice cases. After completing the presuit investigation, but before filing suit, a claimant must notify each prospective defendant, by certified mail, return receipt requested, of the intent to initiate medical malpractice litigation. See § 766.106(2)(a). No suit may be filed for a period of ninety days; during this period, the prospective defendant’s insurer “shall conduct a review ... to determine the liability of the defendant.” § 766.106(3)(a). No such review was conducted here.

At or before the end of the ninety days, the insurer “shall provide the claimant with a response,” either rejecting the claim, making a settlement offer, or making an offer of admission of liability and for arbitration on the issue of damages. § 766.106(3)(b)l.-3. Dr. Phillips did not comply with this statute.

Likewise, Dr. Phillips did not comply with the portion of the statute which states that, “[ujpon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.” § 766.106(6)(a).

Despite Dr. Phillips’s failure to comply with the statutory requirements, the trial court was within its discretion in denying the motion to strike his pleadings. It is well-settled that striking a defendant’s pleadings or affirmative defenses for failing to comply with Chapter 766 presuit requirements is an extraordinary sanction justified only in extreme situations.

The language of the statute demonstrates the discretion and flexibility accorded to a trial judge in fashioning a remedy for failing to comply with Chapter 766. While section 766.106(3) imposes mandatory obligations upon a defendant, it also states that, “[u]nreasonable failure of any party to comply with this section justifies dismissal of claims or defenses.” § 766.106(3)(a)4. (emphasis added).

The italicized words make it clear that a trial court must evaluate each case on its facts. The word “unreasonable” indicates that not all failures to comply will result in dismissal; the word “justifies” means that an “unreasonable failure” to comply with Chapter 766 will support a judge’s decision to dismiss, not that dismissal is required in every case. “Failure to comply may be reasonable or, even if unreasonable, may not justify the ultimate sanction of dismissal.” Wainscott v. Rindley, 610 So.2d 649, 650-51 (Fla. 3d DCA 1992).

The McPhersons cite to Estevez v. Montero, 662 So.2d 1268 (Fla. 3d DCA 1995), where the third district affirmed the trial court’s decision to strike the defendants’ pleadings for failing to respond to the plaintiffs presuit notice of intent. That case demonstrates only that a trial court has the discretion to strike pleadings, not that the court abuses its discretion in failing to do so.

In Estevez, the defendant doctor received the notice of presuit and decided to conduct his own investigation, without following the statutory requirements. The trial court concluded that the doctor “had not made a good faith rejection of the malpractice claim against him.” Id. at 1269. For example, the doctor did not forward the notice of intent to his attorney, spoke with other doctors involved in the suit, consulted with an expert hired by another defendant, concluded that he had committed no wrongdoing, and took no further action required by statute. Id. This knowledge of the presuit documents and disregard for Chapter 766 requirements is quite different from this case, where the trial court accepted Dr. Phillips’s explanation that he had never seen any of the correspondence sent by the McPhersons’ counsel.

De La Torre v. Orta, 785 So.2d 553 (Fla. 3d DCA 2001), demonstrates that dismissal is a harsh sanction for noncompliance with presuit requirements that should be sparingly granted. In that case, prior to filing suit, plaintiffs’ counsel sent a notice of intent and a records request to the defendant doctor. The doctor did not respond. He admitted receiving both notices, but believed he had no obligation to reply because the claims were time-barred by the statute of limitations.

After a lawsuit was filed, the doctor notified his malpractice carrier, obtained counsel, filed an affidavit of a second doctor who opined that the doctor had met the relevant standard of care, and moved for summary judgment. The trial court granted the plaintiffs’ motion to strike the doctor’s pleadings, reasoning that the doctor had failed to respond to the request for documents and notice of intent to sue, and the plaintiffs had suffered prejudice by having their investigation impeded by the failure to respond.

The third district held that the trial court erred in striking the doctor’s pleadings. The court noted that less severe sanctions were a more viable alternative. Options included: reasonable fines, the preclusion of a doctor from enforcing the requirement of written medical corroboration against him, and the award of fees to the plaintiffs for any expenses incurred with the doctor’s non-compliance. The court also observed that the doctor had submitted an expert affidavit corroborating his defense that he was not negligent, and he raised a facially debatable defense regarding the statute of limitations.

To reach its conclusion, De La Torre relied on Kukral v. Mekras, 679 So.2d 278 (Fla.1996). There, the plaintiffs failed to conduct a proper presuit investigation and sent out a notice of intent to initiate litigation without any expert’s affidavit. The supreme court held that the trial court’s dismissal of the plaintiffs’ complaint was too extreme a sanction. The supreme court explained that the purpose of the presuit requirements was to weed out frivolous claims and defenses, as well as promote presuit investigation and settlement of claims. While recognizing the importance of complying with the statute, the supreme court recognized that the competing consideration of litigants’ right of access to the courts also must be preserved. See also Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (“[I]f a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.’*).

Applying Estevez, De La Torre, and Kukral, we hold that the trial court did not abuse its discretion in failing to strike the defendant’s pleadings.- The trial court believed that the doctor’s office staff did not make him aware of the presuit notices because they thought the insurance company was handling the matter. While the imposition of a less extreme sanction might have been appropriate, the McPher-sons did not seek any sanction below other than the striking of the pleadings. They did not specify to the circuit court the prejudice they suffered as a result of the doctor’s failure to comply with Chapter 766 presuit procedures.

In .their motion for rehearing, the McPhersons argue that Cohen v. West Boca Medical Center, 854 So.2d 276 (Fla. 4th DCA 2003), where this court affirmed the trial court’s decision to dismiss the plaintiffs claim for failing to comply with presuit discovery requirements, “cannot [be] distinguished from] the instant cage.” Crucial to Cohen was that a plaintiffs eventual compliance with Chapter 766 occurred outside of the statute of limitations period; we quoted the supreme court’s observation that a , ,

failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiffs claim so long as compliance is accomplished within the two year limitations period provided for filing suit.

Id. at 278 (quoting Kukral, 679 So.2d at 283). Involving a- different scenario than the instant case, Cohen was a case where the operation of the statute of limitations circumscribed the trial court’s discretion in dealing with a Chapter 766 noncompliance.

The Defendant’s Closing Argument

The inadequacy of the record on appeal prevents us from concluding that the trial court may have erred in overruling the McPhersons’ objection during closing argument to defense counsel mentioning the worker’s compensation benefits they received. As the supreme court has noted, “[u]pon proper objection, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources.” Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 (Fla.2001).

We cannot tell whether the trial court’s ruling was in error based on this record. The McPhersons provided no portion of the trial transcript except for Dr. Phillips’s closing argument. We do not know whether the evidence of worker’s compensation payments weiS| before the jury without objection or whether the plaintiffs otherwise opened the door to the argument. In response to the McPhersons’ objection during his closing, defense counsel argued that the “testimony ... in the case [was that] all of these bills have been paid for.” Also, we do not know from this record whether the McPhersons even presented a colorable case of negligence. With such an inadequate record, we cannot say that error occurred, much less reversible error.

The lack of a record similarly precludes reversal due to another inappropriate argument by defense counsel. It was improper for the defense to argue that the plaintiffs’ lawyer would be “delighted” if the jury awarded ten percent óf whatever was requested in their own closing argument. See Hartford Accident & Indem. Co. v. Ocha, 472 So.2d 1338, 1342 (Fla. 4th DCA 1985) (defense counsel wrongfully argued to the jury in closing argument that “any Plaintiffs attorney always asks for at least ten to fifteen times- what they want....”); Donaldson v. Cenac, 675 So.2d 228, 229 n. 1 (Fla. 1st DCA 1996) (defense counsel argument that it was “not uncommon for plaintiffs’ attorneys to put up some ridiculous number 50 times what they really do expect to get” was improper).

We did not treat the comments in Ocha as fundamental error mandating reversal. Instead, we engaged in a harmless error analysis and concluded that comments similar to the ones in this case were not “so highly prejudicial as to require [the appellate court] to overturn the trial court’s decision that a new trial was not mandated.” 472 So.2d at 1343. Given the lack of a complete record, we cannot say that reversible error occurred in this case. See § 59.041, Fla. Stat. (2002) (providing that “[n]o judgment shall be set aside or reversed ... on the ground of misdirection of the jury ... unless in the opinion of the court to which the application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice”) (emphasis added).

The Motion To Tax Costs

We do not reach the issue raised concerning the timeliness of the motion to tax costs, since it does not appear from this record that the trial court has entered a final order taxing costs. However, we direct the parties’ attention to Fisher v. John Carter &'Associates, Inc., 864 So.2d 493, 494-96 (Fla. 4th DCA 2004), decided during the pendency of this appeal.

WARNER and HAZOURI, JJ., concur.

      . In Plemendon v. Fernandez, 602 So.2d 1379 (Fla. 4th DCA 1992), this court denied a writ of certiorari sought by a plaintiff when the trial court refused to strike a defendant's .pleadings after, as here, the doctor failed to respond to the presuit notice. While the dissent contended that striking pleadings should be the presumptive rule for failure to respond, the majority apparently did not agree.


author: WARNER, J.

text:
    DEPARTMENT OF REVENUE, Appellant, v. SWAGO T-SHIRTS, INC., Appellee.
    No. 4D02-2852.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Rehearing Denied Aug. 11, 2004.
    Charles J. Crist, Jr., Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for appellant.

      Allen H. Libow and Jeffrey C. Weinstein of Libow & Muskat LLP, Boca Raton, for appellee.
   WARNER, J.

The Department of Revenue (“the Department”) appeals a final summary judgment abating sales and use taxes assessed against Swago T-Shirts, Inc. (“Swago”). The Department claims that the trial court did not have subject matter jurisdiction because Swago failed ,to satisfy the" statutory jurisdiction requirements to contest the legality of the assessment, because it did not pay the taxes due or obtain the Department’s approval of an alternative security arrangement., As the trial court approved an alternative security arrangement, we hold that the jurisdictional requirements were satisfied. We therefore affirm.

The Department assessed sales and use taxes for a substantial period of time, claiming that Swago was not a registered dealer and had no tax exemption for the periods of the assessment. The total amount of those taxes was $760,034.88. Swago filed a three count complaint for declaratory relief against the Department, contending that no taxes were owed. At the same time, it filed a motion with the court to approve an alternative security arrangement under section 72.011, Florida Statutes (1995), to provide it with a security arrangement other than paying into the court' the entire amount of the taxes contested. Swago paid the amount of the assessment that it did not dispute. '

The trial court granted Swago’s motion and found that the circumstances of the case would make it unnecessary to pay the full tax, even though the Department intended to offer evidence of tax evasion. It ordered Swago to maintain the status quo with its business and forbade it to make any salary increases or encumber or transfer any asset.

The Department and Swago filed cross-motions for summary judgment on the merits of the case. The Department argued that because Swago was not registered as a dealer during the audit period as required by Chapter 212, Florida Statutes, its purchases of business materials were not exempt from sales tax. The Department claimed that Swago instructed it to cancel Swago’s dealer registration. Swago contended that it had never cancelled its dealer registration, and the Department could not prove that it did. After a hearing at which both parties contended that the evidence was undisputed, the trial court entered a final summary judgment finding that Swago was a registered dealer, and the Department bore the burden of demonstrating that Swago had cancelled its registration. It therefore abated the assessment, and the Department appealed.

The Department contends the trial court lacked subject matter jurisdiction over Swago’s complaint because Swago failed to comply with the jurisdictional requirements of section 72.011. By filing a motion for alternative security agreement, Swago satisfied the jurisdictional requirements of the statute.

“A taxpayer may contest the legality of any assessment or denial of refund of tax, fee, surcharge, permit, interest, or penalty ... by filing an action in circuit court; or, alternatively, the taxpayer may file a petition under the applicable provisions of chapter 120.” § 72.011(l)(a), Fla. Stat. (1995). Subsection 72.011(3) provides:

In any action filed in circuit court contesting the legality of any tax, interest, or penalty assessed under a section or chapter specified in subsection (1), the plaintiff must:
(a) Pay to the applicable department the amount of the tax, penalty, and accrued interest assessed by the department which is not being contested by the taxpayer; and either
(b)l. Tender into the registry of the court with the complaint the amount of the contested assessment complained of, including penalties and accrued interest, unless this requirement is waived in writing by the executive director of the applicable department; or
2. File with the complaint a cash bond or a surety bond for the amount of the contested assessment endorsed by a surety company authorized to do business in this state, or by any other security arrangement as may be approved by the court, and conditioned upon payment in full of the judgment, including the taxes, costs, penalties, and interest, unless this requirement is waived in writing by the executive director of the applicable department.
Failure to pay the uncontested amount as required in paragraph (a) shall result in the dismissal of the action and imposition of an additional penalty in the amount of 25 percent of the tax assessed. Provided, however, that if, at any point in the action, it is determined or discovered that a plaintiff, due to a good faith de minimis error, failed to comply with any of the requirements of paragraph (a) or paragraph (b), the plaintiff shall be given a reasonable time within which to comply before the action is dismissed.

(Emphasis added). The requirements of section 72.011 are jurisdictional. See § 72.011(5); see also Mirabal v. State Dep’t of Revenue, 553 So.2d 1297, 1298 (Fla. 3d DCA 1989) (affirming trial court’s dismissal for lack of subject matter jurisdiction where requirements of 72.011 were not satisfied). The fact that Swago’s action is one for declaratory relief does not excuse it from complying with these jurisdictional requirements. See State Dep’t of Revenue v. Ray Constr. of Okaloosa County, 667 So.2d 859, 868 (Fla. 1st DCA 1996) (finding language in 72.011(2) that jurisdictional requirement applies to an “action” includes actions for declaratory relief).

Swago complied with 72.011(3)(a) by paying to the Department the amount of the assessment that was not contested. At the same time it filed its complaint, Swago filed a motion for an alternative security agreement requesting that it not be required to pay the full amount of the portion of the assessment contested. The trial court granted the motion, ruling that Swago did not need to post a bond.

The Department argues that Swago did not satisfy the requirements of 72.011(3)(b) because it did not develop the alternative security arrangement with the Department. It claims that Swago should have first proposed the alternative arrangement to the Department so the Department would have the opportunity to waive the requirement. According to the Department’s interpretation of 72.011(3)(b)2., the trial court is only permitted to review whether the alternative agreement ensures “payment in full of the judgment, including the taxes, costs, penalties, and interest.” The Department also contends that by granting Swago’s motion for an alternative arrangement, the court impermissibly waived the requirements of 72.011(3).

The plain reading of the statute belies the Department’s interpretation. The language of 72.01 l(3)(b)2. clearly provides that the court may approve an alternative security arrangement to that listed in the statute. It also provides that the executive director of the Department may waive the requirement that the taxpayer file a cash or surety bond with the complaint or obtain an alternative security arrangement. The Department’s ability to waive the requirements does not limit the court’s authority to approve an alternative security arrangement. In Department of Revenue v. Nu-Life Health & Fitness Center, 623 So.2d 747 (Fla. 1st DCA 1992), the court considered whether section 72.011(3) was unconstitutional for denying access to the courts. It looked to North Port Bank v. Department of Revenue, 313 So.2d 683 (Fla.1975), where the supreme court considered a similar statute. In North Port, rather than finding section 199.242(3), Florida Statutes. (1975), unconstitutional for denying taxpayers access to courts by requiring the filing of a cash or surety bond at the time of filing the complaint, the supreme court read into the statute an alternative that the taxpayer can “petition the Court to fix the amount to deposit in the' registry of the Court or to post as bond pending the outcome of the litigation.”' Nu-Life, 623 So.2d at 749. The first district determined the legislature implemented the supreme court’s decision in North Port by providing the following two express alternatives in 72.011(3): “[t]he taxpayer may either obtain a written waiver of these requirements from the executive director of the Department or file a motion for an alternative security arrangement to be approved by the court.” Id.- (emphasis added). Thus, the court found 72.011(3)‘does not deprive taxpayers of the constitutional right of access to courts. See id. at 750. Because Nu-Life did not “satisf[y] any of the requirements of section 72.011(3) and did not attempt to obtain a written waiver from the director or file a motion for a court-approved security arrangement” the district court found the trial court did not have subject matter jurisdiction to enter the judgment finding the statute unconstitutional. Id. at 751 (emphasis added).

Similarly, in Don’s Sod Co. v. Department of Revenue, 661 So.2d 896 (Fla. 5th DCA 1995), the court also approved the right of a taxpayer to move the court to post a lesser bond or make alternative security arrangements. Id. at 900-01. The court-approved alternative security arrangement obtained by Swago was sufficient to satisfy the requirements of 72.011(3)(b)2. The statute does not require Swago to obtain the Department’s approval of the alternative agreement. The fact that the statute expressly provides that the director of the Department can waive the requirements in 72.011(3)(b)2. does not deprive the trial court of the discretionary power to approve an alternative arrangement. Because the court approved an alternative security arrangement, the jurisdictional requirements were met and the court had subject matter jurisdiction to hear the case.

All of the remaining issues raised by the Department in the case are premised on its contention that Swago was not a registered dealer, a fact that it contends was undisputed. However, the court found that the evidence showed that Swago was a registered dealer and was designated as such on the Department’s own records. The Department could not prove that Swa-go cancelled its registration. While on appeal,' the Department contends that the court erred in placing on it the burden of proving that Swago’s transactions were exempt. The Department is mistaken. The evidence showed that Swago was a registered dealer and therefore under the statutes would be exempt from the sales and use taxes assessed by the- Department. What the trial court found was that the Department failed to prove or offer competent evidence that Swago had cancelled its registration as the Department contended.

The Department does not argue that there were material issues of fact precluding entry of summary judgment. We therefore affirm.

STONE and STEVENSON, JJ., concur.


text:
    Linda S. DUNKELBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1405.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Rehearing Denied Aug. 12, 2004.
    Linda S. Dunkelberger, Fort Lauder-dale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. In her postconviction motion, appellant claims that her lawyer promised that the judge would impose a downward departure sentence. However, the plea colloquy conclusively refutes her claim. See State v. Leroux, 689 So.2d 235, 236 (Fla.1996) (stating “under the express provisions of [Florida Rule of Criminal Procedure] 3.850, relief may be summarily denied where the record conclusively refutes” claim that appellant’s counsel made misrepresentation as to length of potential sentence). The trial judge carefully questioned appellant about the sentence and specifically asked whether her attorney had made any promises regarding the sentence, to which she responded in the negative.

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