text:
    Julio C. CAPO, Petitioner, v. Donald L. BERG, et al., Respondents.
    No. 3D03-1259.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Rehearing and Rehearing En Banc Denied Aug. 20, 2003.
    Brian W. Pariser, and Nelson C. Keshen, Miami, for Petitioner.
    Jeffrey B. Crockett; and Pete DeMahy; and Arnold R. Ginsberg, Miami, and Paul H. Bass, for Respondents.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Petitioner seeks a writ of certiorari to prevent the discovery of an agreement entered into at a mediation in a separate action between the petitioner and a co-defendant. This agreement was already the subject of two prior petitions for writ of certiorari, in case numbers 3D03-452 and 3D03-438, which resulted in the denial of the petitions. Although the petitioner argues that those two prior petitions were denied without a written opinion and thus do not constitute either res judicata or the law of the case, we decline, in the exercise of our discretion, to contemplate a third petition.

We therefore deny the petition in this case. The prior stay order is hereby lifted. The motion to appear as amicus curiae filed by the Florida Academy of Professional Mediators, Inc. is denied as moot.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Wesley CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1547.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Rehearing Denied Aug. 15, 2003.
    John Wesley Campbell, Defuniak Springs, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

DISMISSED for lack of jurisdiction. See Childs v. State, 649 So.2d 349 (Fla. 1st DCA 1995).

SHARP, W., ORFINGER and TORPY, JJ., concur.


text:
    Kelvin BOWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1729.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Rehearing Denied Aug. 21, 2003.
    Kelvin Bowman, Chipley, pro se.
    No appearance for Appellee.
   PER CURIAM.

The Appellant, Kelvin Bowman, appeals the summary denial of his belated Rule 3.850 post-conviction motion. Bowman’s motion is not only untimely, as it was filed well beyond two years after the judgment and sentence in his case became final, but is also successive, as he raises claims of trial court error and ineffective assistance of counsel which could have been raised in a prior 3.850 motion. See Fla. R.Crim. P. 3.850(b) and (f). Accordingly, his motion for post-conviction relief was properly denied.

AFFIRMED.

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


author: PETERSON, J.

text:
    STATE of Florida, Appellant, v. Daniel Ray ERICKSON, Appellee.
    No. 5D02-2637.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Rehearing Denied Aug. 19, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    Daniel R. Erickson, Spring Hill, pro se.
   PETERSON, J.

The State of Florida appeals the trial court’s denial of its request to amend its information against Daniel Ray Erickson, formerly known as John William Dickey.

The State originally charged Erickson with failure to register as a sexual offender as required by section 943.0435, Florida Statutes (2002). Erickson subsequently filed a pro se motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), “for failing to allege every element of the crime charged.” The State’s response indicated that there remained material issues of fact in dispute.

At the hearing on the matter, Erickson argued that no predicate offense had been established that would require him to register as a sexual offender pursuant to section 943.0435, Florida Statutes (2002), and that, in order to be required to comply with that statute, the State had to prove that he had committed a qualifying sex offense on or after October 1, 1997 or that he was still under some sanction for a qualifying sex offense committed prior to October 1, 1997. The lower court agreed with Erickson’s interpretation and requested the State to provide evidence of a qualifying sex offense. During a continuation of the proceedings, the State’s subsequent investigation confirmed that Erickson had at least three prior sex convictions involving children and that at least one of these convictions was an out-of-state conviction. The State then sought to amend its information to allege that Erickson qualified as a “sexual predator” pursuant to section 775.21(5)(d), Florida Statutes (2002), which includes those offenders who had been designated or could be designated as a sexual predator or offender in another state, and were required to register pursuant to section 943.0435. The State pointed out that if a person is a sexual predator pursuant to section 775.21(5)(d), there is no qualifying date. The lower court found the State’s actions “amount[ed] to a new substantive offense under a new statutory provision,” and without determining whether Erickson was prejudiced thereby, refused to allow the State leave to amend. The lower court then granted Erickson’s motion to dismiss and declared the State’s proposed amendment to the information to be improper. This appeal ensued.

It is well-settled that the state may amend its information pre-trial or even during trial, either as to substantive or non-substantive matters, unless the defendant is prejudiced thereby. E.g., Lackos v. State, 339 So.2d 217 (Fla.1976); State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); State v. Garcia, 692 So.2d 984 (Fla. 3d DCA 1997); Sanders v. State, 669 So.2d 356 (Fla. 5th DCA 1996). In the instant case, the State originally charged Erickson with failure to register as a sexual offender pursuant to the requirements of section 943.0435, Florida Statutes (2002). Then, after receiving copies of documents pertaining to Erickson’s criminal history in other states, the State sought pre-trial to amend its information to charge Erickson with the failure to comply with the registration requirements of section 943.0435, Florida Statutes (2002), which pursuant to section 775.21(5)(d) required him to register as a sexual predator. Section 775.21(5)(d) includes those offenders who had been designated or could be designated as a sexual predator or offender in another state, and are required to register pursuant to the requirements of section 943.0435. The State’s proposed amendment to its information would have only caused the information to read correctly based on the particular facts of Erickson’s case. Whether Erickson qualified as a sexual offender under section 943.0435 as originally charged or as a sexual predator under section 775.21, he would have still been required to abide by the registration requirements of section 943.0435. Accordingly, Erickson could not have been prejudiced by the proposed amendment. Indeed, at the continued hearing on the matter, Erickson was prepared to argue why he did not come under provisions of section 775.21, the added statute violation referred to. in the State’s amended information. See, e.g., Lenoir v. State, 804 So.2d 507 (Fla. 3d DCA 2001) (amendment of information to include citation to reclassification of offense for use of firearm statute did not prejudice defendant as to any claimed defense, and thus was harmless, where language of original information stated that defendant attempted to kill the victim by shooting him with a firearm, and amendment caused information to read correctly); State v. Conte, 516 So.2d 1115 (Fla. 2d DCA 1987) (defendant did not show prejudice from State’s delay in adding conspiracy count to information charging trafficking in cocaine where the conspiracy count would have been proven with the same witnesses who had been listed for the trafficking charge a year earlier and no further preparation for trial was necessary). In sum, because Erickson has failed to articulate any prejudice that would have been suffered by him if the lower court would have allowed the State to amend its information, we find the lower court abused its discretion in denying the State’s request to amend its information. The order dismissing the information is vacated and remanded for further proceedings to include allowance of the amendment of the information by the State.

REVERSED and REMANDED.

ORFINGER and MONACO, JJ, concur.

      . Section 775.21, Florida Statutes (2002) ("The Florida Sexual Predators Act”), provides the process and criteria for designating persons convicted of various sex offenses as sexual predators and requires those so designated be subject to certain registration and community notification requirements. One criterion for those who offended in the state of Florida is that the qualifying sex offense was committed on or after a date specified in the statute. See § 775.21(4)(a), Fla. Stat. (2002); see also § 943.0435(l)(a)2, Fla. Stat. (2002). Since the courts of Florida have uniformly recognized that the Florida Sexual Predators Act is regulatory in nature and does not constitute punishment subject to constitutional ex post facto challenges, the need for a qualifying offense date within the Act is questionable. See, e.g., Fletcher v. State, 699 So.2d 346 (Fla. 5th DCA 1997) (ex post facto clause not violated when persons are designated as sexual predators under Florida Sexual Predators Act since this was neither a sentence nor a punishment, but was simply a status resulting from conviction of certain sex crimes). We call to the Legislature’s attention that if section 775.21, Florida Statutes (2002), remains the way it is written with a qualifying offense date ("offense committed on or after October 1, 1993”), then, despite the case law in this area holding that the ex post facto clause does not apply to the Act, certain convicted sex felons will continue to be beyond the reach of the Act. The purpose of the Act— to protect the public from repeat sex offenders, sex offenders who use violence, and those who prey on children — is not met by excusing those offenders whose past convictions would qualify them for registration requirements of the Act but for the date in which their offense(s) had been committed. See § 775.21(3), Fla. Stat. (2002).


text:
    David I. FRETWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-902.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Sept. 3, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

David Fretwell (“Fretwell”) was convicted by a jury of lewd and lascivious molestation of a person under twelve by a person over eighteen. He was sentenced to fifteen years of imprisonment to be followed by fifteen years of sex offender probation. Fretwell does not challenge his conviction, but appeals his sentence because it was based on a scoresheet he believes erroneously included forty points for sexual contact.

The eleven-year-old victim was browsing in the CD department of a K-Mart store when Fretwell approached her and brushed against her clothed buttocks. The victim moved away from Fretwell, and he followed and touched her buttocks with his hand. The victim moved away yet again, and Fretwell followed yet again, rubbing his hand against her buttocks and saying, “Hey, baby, what’s up?” At that point, the young victim ran crying to her mother in the toy department, and Fret-well ran from the store before pursuers could detain him. He was eventually identified by a number of witnesses and a warrant was issued for his arrest.

During sentencing for the molestation conviction, forty points were assessed on the guidelines scoresheet for sexual contact for touching the victim’s clothed buttocks. Fretwell objected to the assessment of these points, and the trial judge overruled the objection. Fretwell contends that the inclusion of the points was error under existing case precedent.

Florida Statutes section 921.0021(7) (2002) permits assessing sentence points for victim injury for incidences of sexual contact. However, the statute does not define sexual contact. In the absence of a definition, other sources of law, including statutes and cases, must be considered to determine the intended nature of sexual contact. See Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951).

Fretwell asserts that case law establishes that sexual contact does not include the touching of a victim’s buttocks. Indeed, this court has twice determined that touching the buttocks does not constitute sexual contact, in the cases of Borjas v. State, 790 So.2d 1114 (Fla. 4th DCA 2001) and Clark v. State, 808 So.2d 231 (Fla. 4th DCA 2001). However, there is also one exception to be found in the case law, the First District case of Seagrave v. State, 768 So.2d 1121 (Fla. 1st DCA 2000). The First District affirmed the assessment of victim injury points for rubbing the buttocks of a twelve-year-old girl. Id. at 1122-23. The First District certified a question on the buttocks issue within the broader framework of whether sexual contact points could be assessed only in cases constituting sexual battery. Id. at 1123. The Florida Supreme Court declined to address the buttocks issue standing alone because sexual contact points had also been assessed for penis touching in the case, and affirmed on the broad grounds presented, determining that sexual contact is not limited to sexual union or battery. Seagrave v. State, 802 So.2d 281, 282-83 (Fla.2001).

The State asserts that other statutes clearly indicate a legislative intention to define sexual contact to include touching the buttocks. For example, the statute under which Fretwell was convicted, provides:

A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them ... commits lewd or lascivious molestation.

§ 800.04(5)(a), Fla. Stat. (2002). The terms lewd and lascivious are indicative of sexual conduct, and are “synonyms that connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971) (citing Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946)).

We agree with the State’s contention; therefore, if touching the clothed buttocks of a child is lewd behavior, it is by definition, sexual behavior, and as such, can constitute sexual contact for the purpose of assessing victim injury points.

The law that controlled the decision in Borjas pre-dated a 1999 statutory change to section 800.04, which for the first time defined in detail the forms of touching proscribed as molestation under the statute. § 800.04, Fla. Stat. (2000). In light of the more specific definition in the present statute, sexual contact in Fretwell’s case does include touching the victim’s buttocks. Based on these now changed circumstances, Borjas and Clark are distinguishable.

In sum, it was not error for the trial judge to assess forty points for sexual contact for touching the victim’s clothed buttocks. Therefore, Fretwell’s sentence is affirmed.

AFFIRMED.

GUNTHER, POLEN and TAYLOR, JJ., concur.


author: PALMER, J.

text:
    Harry James MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-879.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.
    Rehearing Denied Aug. 18, 2003.
    Harry James Marshall, Blountstown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Harry James Marshall (defendant) appeals the summary denial of his rule 3.850 motion for post-conviction relief. See Fla. R.Crim. P. 3.850. He raises several grounds for post-conviction relief. However, we find only one alleged error which merits discussion.

The defendant was convicted of committing two capital sexual batteries and three lewd and lascivious acts, all involving a ten-year-old female victim. He asserts that the three lewd and lascivious offenses should have resulted in only one conviction.

While the lewd and lascivious offenses appear to have been based on different activity, it is impossible to state with certainty that all of them occurred at different times, since the trial court did not attach a trial transcript to its post-conviction order. See King v. State, 834 So.2d 311 (Fla. 5th DCA 2003) (holding that where two lewd acts involved the same victim and there was no meaningful temporal break in the episode, only one conviction is permitted under the double jeopardy clause). The trial court based its denial of the defendant’s double jeopardy claim on the wording of the information which it attached to its order. However, the information does not conclusively show that the alleged lewd and lascivious acts were committed at different times. Accordingly, we must remand this matter to the trial court with instructions to either attach sufficient record evidence which supports the conclusion that the acts were committed at different times or to hold an evidentiary a hearing to determine whether it is necessary to vacate any of the convictions for lewd and lascivious acts as being double jeopardy violations.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and PLEUS, JJ., concur.


text:
    John BENTON, Appellant, v. ICR ELECTRIC and ITT Hartford, Appellees.
    No. 1D02-0226.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Rehearing Denied Aug. 18, 2003.

      Gerald A. Rosenthal of Rosenthal & Weissman, P.A., West Palm Beach; and Randy D. Eillison, West Palm Beach, for Appellant.
    Thomas W. Sculco of Pine & Bergier, Maitland, for Appellees.
   PER CURIAM.

This is a timely appeal from an order of the Judge of Compensation Claims dismissing a claim for death benefits with prejudice. Because the JCC erred in finding that the claim was barred by the statute of limitations and in denying the appellant’s motion for appointment of a personal representative to pursue the claims of the decedent’s minor survivors, we reverse.

Section 440.17, Florida Statutes (1997), provides that the JCC may require the appointment by a court of competent jurisdiction of a guardian or other representative. The decision on whether to require appointment of a guardian or representative is discretionary. See Allure Shoe Corp. v. Lymberis, 173 So.2d 702, 704 (Fla.1965); Cornelius v. Sunset Golf Course, 423 So.2d 567, 569 (Fla. 1st DCA 1982). However, the JCC has an obligation to ensure that the interests of minors are protected. See Cornelius, 423 So.2d at 569. Here, the petition sought benefits for the minor children of the decedent, and therefore the JCC should have permitted the appellant to petition a court of competent jurisdiction for the appointment of a guardian or representative before dismissing the claim with prejudice.

Furthermore, the statute of limitations did not bar the claim of any minor dependents of the decedent. Pursuant to section 440.19(5), Florida Statutes (1997), the two-year limitations period is tolled while a minor or mentally incompetent person has no guardian or authorized representative:

If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitations period is tolled while that person has no guardian or other authorized representative, but the period shall begin to run from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before the minor becomes of age, from the date the minor becomes of age.

Thus, the limitation period begins to run from the date of appointment of a guardian or representative, or from the date the minor becomes of age if no representative is appointed. Even if the petition for benefits was filed more than two years after the death of the claimant, a minor’s claim would not be barred by the statute of limitations. See Bailey’s Auto Serv. v. Mitchell, 85 So.2d 228, 229 (Fla.1956). In the present case, the limitations period for any minor dependents of the decedent will not begin to run until a guardian or representative is appointed or until they reach the age of majority.

Therefore, we reverse the order dismissing the claim with prejudice, and remand for the JCC to permit the filing of a petition in a court of competent jurisdiction for appointment of a guardian or representative for any minor children.

REVERSED AND REMANDED.

ERVIN, KAHN and PADOVANO, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Todd D. SMITH, Appellant, v. BANKERS LIFE & CASUALTY COMPANY and Unemployment Appeals Commission, Appellees.
    No. 2D02-3345.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
    Rehearing Denied Aug. 26, 2003.
    Enrique Escarraz III, St. Petersburg, for Appellant.
    Lawrence P. Ingram and Jessica E. Kirkwood of Phelps Dunbar LLP, Tampa, for Appellee Bankers Life.
    No appearance for Unemployment Appeals Commission.
   ALTENBERND, Chief Judge.

Todd D. Smith appeals an order of the Unemployment Appeals Commission (UAC) affirming the order of an appeals referee that denied Mr. Smith unemployment benefits on the ground that he was not “unemployed” when he was receiving training for a new position. Because certain procedural and substantive errors led to confusion over the issue presented to the appeals referee, the evidence before the appeals referee did not support a finding that Mr. Smith was employed or unemployed for a period in October and November 2001. We therefore reverse the order on appeal and remand the case for a proper determination in this regard.

Mr. Smith was employed by Staywell Health Plan until July 20, 2001. When his employment with Staywell Health Plan ended, Mr. Smith applied for and was awarded unemployment benefits. On October 8, 2001, Mr. Smith began training to become an insurance agent with Bankers Life & Casualty Company. He notified the Division of Unemployment Compensation of this development. The Division issued a notice of determination terminating Mr. Smith’s benefits as of October 8, 2001. The Division then changed the applicable employer in its documents to Bankers Life. As a result of this latter change, Staywell Health Plan was not notified of and did not participate in the further proceedings.

Mr. Smith appealed the termination of his benefits. The subsequent notices on the proceedings listed Bankers Life as the employer, but indicated that the issue to be decided was whether Mr. Smith was “unemployed” and therefore whether he remained eligible for benefits that were initially attributed to his employment with Staywell Health Plan. To add to the confusion, Mr. Smith left his employment with Bankers Life while the appeal was pending and prior to the hearing before the appeals referee. Thus, when the hearing before the appeals referee occurred in March 2002, there were significant misunderstandings over the issue to be addressed. Mr. Smith began to present testimony suggesting that his decision to terminate his employment with Bankers Life was for good cause attributable to the employer, thus suggesting that he had a claim for unemployment compensation after leaving Bankers Life. See § 443.101(l)(a), Fla. Stat. (2001). Although the appeals referee appeared to understand that the issue properly before him was whether Mr. Smith was unemployed from October 8 when he began training with Bankers Life until he completed his training in November, the appeals referee apparently assumed that any employment, even if it was uncompensated, would disqualify Mr. Smith from unemployment benefits. As a result of this confusion, the record does not contain evidence sufficient to support the appeals referee’s determination that Mr. Smith was actually employed during this time. The record does not reveal the precise dates that Mr. Smith was in training, whether he was eligible for compensation at any time during those dates, and what specific employment arrangements he had with Bankers Life at that time. According to Mr. Smith, he was not paid for any of the time he participated in the training program.

A person is “totally unemployed” under the workers’ compensation statutes in any week during which he or she performs no services and with respect to which no earned income is payable to him or her. § 443.036(39), Fla. Stat. (2001). This court has held that a claimant who actually works for a business but does not earn any income from that work is “unemployed” pursuant to section 443.036(39), and therefore remains eligible to receive unemployment benefits. Momsen v. Fla. Unemployment Appeals Comm’n, 706 So.2d 927 (Fla. 2d DCA 1998); DeLisi v. Fla. Unemployment Appeals Comm’n, 646 So.2d 798 (Fla. 2d DCA 1994); see also § 443.111(4)(b), Fla. Stat. (2001) (providing for partial unemployment benefits when claimant earns income that is less than the amount of the weekly unemployment benefit).

According to Mr. Smith, Bankers Life did not pay him for the training and he did not become eligible for any pay until the training ended on November 25, 2001. As such, this training may qualify as an education program that, although tied to a prospective employer, did not change Mr. Smith’s status of being “unemployed.” This is an issue that was not adequately addressed by the appeals referee due to the procedural confusion that occurred at the hearing. We therefore reverse the order on appeal and remand to the appeals referee to address specifically whether Mr. Smith was “unemployed” from October 8, 2001, until he completed his training as an insurance agent and became eligible for compensation. In these future proceedings, Staywell Health Plan should be notified as the appropriate employer. See § 443.131(3)(a), Fla. Stat. (2001).

Finally, although Mr. Smith argued before the appeals referee that he should be entitled to benefits based upon his termination from his employment with Bankers Life, our record does not reflect whether Mr. Smith ever applied for benefits on that basis. Therefore, this issue was not properly before the appeals referee and is not properly before this court.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., Concur.

      . We note that this case does not involve a claim that Mr. Smith's training made him “unavailable" for work. See § 443.09l(l)(c), Fla. Stat. (2001).

      . It appears Mr. Smith received some form of compensation from Bankers Life on November 20, 2001.


author: VILLANTI, Judge.

text:
    Jeannette THOMPSON, as Plenary Guardian of Robert Magyar, and Cecilia Magyar, individually, Appellants, v. Jarrod S. DOUDS, Franklin M. Drees, Victor M. Gomez, Salvatore S. Mazza, Kevin J. Petry, Charles A. Trigo, and John Womack, Appellees.
    No. 2D02-3972.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
    Rehearing Denied Aug. 26, 2003.

      Michael J. Bradford, Rebecca O’Dell Townsend, Garry J. Rhoden, Daniel P. Mitchell, and Christine A. Marlewski of Gray, Harris & Robinson, P.A., Tampa, for Appellants.
    Donald S. Smith, Jr., and Gwendolyn R. Hollstrom of Smith & Tozian, P.A., Tampa, for Appellees.
   VILLANTI, Judge.

Jeannette Thompson, as plenary guardian of Robert Magyar, and Cecilia Magyar, individually (collectively “Thompson”), challenge the trial court’s order granting final summary judgment in favor of defendants, Jarrod S. Douds, Franklin M. Drees, Victor M. Gomez, Salvatore S. Maz-za, Kevin J. Petry, Charles A. Trigo, and John Womack (collectively “the individual officers”) in this excessive force case. Because the trial court applied the incorrect legal standard in granting summary judgment on Thompson’s constitutional law claim and because fact questions preclude summary judgment on the state law battery claim, we reverse.

FACTUAL BACKGROUND

Each of the individual defendants is a police officer with the City of Tampa Police Department. The facts as developed by the record show that on October 18, 1998, at around 11 p.m., Officer Salvatore Mazza received a report that a man was walking on the interstate. Mazza drove onto the interstate, where he found Robert Magyar crossing traffic. Mazza became concerned because Magyar did not appear to be aware of the traffic around him. Therefore, Mazza made contact with Magyar. Magyar told Mazza that he had diabetes and high blood pressure, that he was not feeling well, and that he was walking to the hospital. Mazza persuaded Magyar to get into his patrol car so that he could drive him off the interstate and summon an ambulance.

Mazza took Magyar to an abandoned gas station that was a local meeting place for the police and called for an ambulance. While the two were waiting for the ambulance to arrive, Magyar began to make statements which indicated that he believed Mazza wanted to hurt him. Mazza tried to help Magyar remain calm and repeatedly assured Magyar that he was not going to hurt him. At some point, Magyar indicated that he felt ill, and Maz-za let him out of the patrol car to get some air. Magyar sat down on one of the pump islands. While Magyar did not try to leave at that point, he continued to make statements to the effect that Mazza was trying to hurt him.

When the ambulance failed to arrive promptly, Mazza made a second call for the ambulance. Sergeant Franklin Drees heard the call and drove to the abandoned gas station to assist Mazza. When he arrived, Magyar was still sitting on the same pump island. As Drees and Mazza talked, Magyar continued to make statements about the officers wanting to hurt him. Finally, Magyar got up and started to walk away. Mazza ordered him to stop, and Magyar returned to the same pump island. However, a short time later, Magyar got up again and began to walk away. This time, Magyar ignored Mazza’s command to stop and, instead, began to walk faster.

Mazza and Drees then chased Magyar down and grabbed his arms. Magyar began to struggle against the officers, saying that he had not done anything and that he wanted to go home. Drees then began doing “leg sweeps” in an effort to get Magyar to the ground. Ultimately, Magyar fell to his hands and knees. Mazza and Drees continued to struggle with him, and they were eventually able to get Magyar face down on the ground. When Magyar continued to struggle, Mazza called for backup. Mazza testified in an internal affairs interview and in his deposition that he was “on top” of Magyar during this struggle. Drees testified in Ms internal affairs interview that he was lying on the back side of Magyar’s right shoulder, using his body weight to keep Magyar down. Officer Victor Gomez, who arrived in response to the call for backup, testified in his internal affairs interview that both Mazza and Drees were lying on top of Magyar when he arrived at the scene. Gomez then lay across Magyar’s legs. Officer Kevin Petry, who also responded to the backup call, testified in his internal affairs interview that Mazza and Drees were “on top of the white male” when he arrived. Officer Jarrod Douds testified in his internal affairs interview that when he arrived, Drees was lying on Magyar’s right shoulder, and Douds stepped in and pinned Magyar’s left shoulder. Douds also held Magyar’s head to keep him from thrashing. Officer John Womack testified in his internal affairs interview that when he arrived at the scene, he could not see Magyar because Mazza and Drees were on top of him. Womack testified to using two or three “knee blasts” on Magyar to get his legs down. In addition, Douds testified to using two different “pain compliance techniques” on Magyar’s back in an effort to force Magyar to release his hands so they could be handcuffed.

This use of force did not stop once Magyar was handcuffed. Petry testified in his internal affairs interview that several officers continued to physically hold Magyar down after he was handcuffed and after his legs were bound with rope. Mazza testified that he sat on top of Magyar’s legs to keep him from rolling even after Magyar was already handcuffed and bound. Douds testified that he and Drees continued to lie across Magyar’s shoulders after he was handcuffed until he “went limp.” When the officers rolled Magyar over after he went limp, Magyar was not breathing, he was unresponsive, and his lips were blue. Several officers testified to seeing abrasions on Magyar’s face and blood coming from his nose when Magyar was first rolled over. While Magyar regained some level of consciousness in the ambulance, he was in total cardiac and respiratory arrest when he arrived at the hospital. Magyar has been in a persistent vegetative state since the night of the incident.

In their depositions, the individual officers gave accounts of their activities on the night in question that differed drastically from their internal affairs interviews. While the officers admitted at deposition that they used knee blasts and other pain compliance techniques to subdue Magyar, all of them denied ever sitting on Magyar or using their body weight to restrain him. All of the officers denied seeing any injuries to Magyar’s face when he was rolled over; Further, all of the officers denied using any force on Magyar once he was handcuffed and bound with rope. The officers offered no plausible explanation for the severity of Magyar’s injuries, variously attributing them to Magyar’s own actions in the ambulance, the actions of the paramedics in intubating Magyar, or the actions of the physicians in the emergency room in resuscitating Magyar.

In Thompson’s amended complaint, she asserted a claim against the individual officers pursuant to 42 U.S.C.. § 1983 for violation of Robert Magyar’s constitutional rights and a claim under state law for battery. In response to the section 1988 claim, the individual officers asserted that they were entitled to qualified immunity. In response to the battery claim, the officers asserted that they were entitled to statutory immunity under section 768.28(9), Florida Statutes (1997). After significant discovery, the individual officers moved for summary judgment based on these affirmative defenses. The trial court granted final summary judgment in favor of the officers as a group, finding as a matter of law that their actions were reasonable. The trial court made no findings of fact relating to the reasonableness of any individual officer’s conduct. It is this final summary judgment that Thompson challenges in this appeal.

SECTION 1983 CLAIM

Thompson first contends that the trial court erred in granting summary judgment in favor of the individual officers on the basis of qualified immunity. Thompson contends that the trial court used the improper legal standard when determining the qualified immunity issue. She also contends that even if the correct standard was used, summary judgment was inappropriate under the facts of this case. We agree.

Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It is an immunity from suit rather than a defense to liability. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus, entitlement to qualified immunity is generally a question of law for the court rather than a question of fact for a jury.

There are two questions that must be answered in order to determine whether a particular defendant is entitled to qualified immunity. First, taking all of the facts in the light most favorable to the plaintiff, the court must determine whether the facts as alleged demonstrate a violation of a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Second, assuming a constitutional right was violated, the court must determine whether that constitutional right was “clearly established.” Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

In granting the individual officers summary judgment on the qualified immunity issue, the trial court found that the cases cited by Thompson in opposition to the motion had facts “materially different from the facts herein.” Therefore, the trial court found that Thompson had failed to prove that the law was “clearly established.” However, as the Supreme Court recently held, whether cases exist with materially similar facts is not the disposi-tive legal inquiry. In Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), the Supreme Court specifically rejected any requirement that the facts of previous cases be materially similar to those of the case before the Court. The Supreme Court noted ■ that prior federal circuit court precedent had so held, but the Court stated that such holdings were “not consistent with our cases.” Id.

As we have explained, qualified immunity operates “to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S., at 206, 121 S.Ct. 2151, 150 L.Ed.2d 272. For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, [sic] n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Hope, 536 U.S. at 739, 122 S.Ct. 2508. Thus, the salient question for the court is whether the law in place at the time of the incident gave the officers fair warning that their treatment of the plaintiff was unconstitutional. Id. at 741, 122 S.Ct. 2508.

To be fair, the Hope decision was released one month after the trial court granted the individual officers summary judgment in this case. However, as the Hope case specifically points out, the decision is based on prior precedent from the Supreme Court. Therefore, the trial court applied the incorrect legal standard when it granted the individual officers’ motion for final summary judgment based solely on the lack of a materially similar case. Usually when a trial court applies the incorrect legal standard, we reverse and remand for a new hearing at which the trial court must reconsider its decision in light of the proper legal standard. However, because it is clear from the record that the individual officers are not entitled to qualified immunity as a matter of law at this stage of the proceedings, we simply reverse on this issue.

In applying the correct legal standard, the first inquiry in determining whether a government official is entitled to qualified immunity as a matter of law is whether the facts as alleged by the plaintiff show that the official violated a constitutional right. In making this decision, the trial court must consider all of the facts alleged in the light most favorable to the plaintiff and must determine whether those facts state a constitutional violation. Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002); Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996). It is immaterial whether the defendant offers a different version of the facts. Lee, 284 F.3d at 1190.

When a plaintiff alleges a violation of the Fourth Amendment, the question is whether the search or seizure was effected with reasonable force. Determining whether the force used in a particular seizure was reasonable requires consideration of “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). In balancing these interests, the court must consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. The force used must be reasonably proportionate to the need for that force, see id., and the question is whether the totality of the circumstances justifies the particular sort of seizure. Garner, 471 U.S. at 8-9, 105 S.Ct. 1694. Moreover, the reasonableness test is an objective one. Graham, 490 U.S. at 397, 109 S.Ct. 1865. Thus, while “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force,” neither will “an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id.

In this case, the officers’ laudable intentions are not questioned. Rather, the only question is whether the force used to effectuate these intentions was excessive. Our review of the record shows that the use of force was objectively unreasonable based on the information the individual officers had. First, Magyar was not suspected of committing any crime. At the most, he had committed an infraction that would subject him to a civil citation but not detention. At the least, he was simply waiting voluntarily with the police for an ambulance to arrive. When no crime has been committed, this fact weighs heavily in favor of finding the use of force excessive. Because serious force is appropriate for a more serious crime and less force is appropriate for a less serious offense, see Lee, 284 F.3d at 1198, the fact that Magyar had committed no offense at all militates against the use of any force — much less the force used in this case to effect Magyar’s detention. That Magyar was a “big guy,” a fact which was repeatedly stressed at oral argument, is irrelevant because the use of force was improper ab initio.

Second, taking the evidence in the light most favorable to Thompson, Magyar did not pose an immediate threat to either the officers or others. Clearly, when Magyar walked quickly away from the officers, he posed absolutely no threat to them. Further, there is no evidence that Magyar posed any immediate threat to others. While the individual officers asserted that Magyar might have been heading back onto the interstate where he might have caused an accident which might have injured others, this chain of speculation does not establish that Magyar posed an immediate threat to either others or himself. Further, the individual officers’ assertion that Magyar’s health might have resulted in him falling into a diabetic coma on the side of the road cannot change the fact that their use of force was unreasonable. As noted in Graham, the officers’ good intentions cannot make the use of unreasonable force constitutional.

Third, while there is evidence to show that Magyar was resisting the officers’ efforts to detain him, this fact simply does not warrant the amount of force used in this case. The evidence shows that the officers continued to exert force against Magyar even after he was handcuffed and after his legs were bound with rope. The use of the officers’ body weight to prevent Magyar from rolling when he was already handcuffed and bound was simply not necessary to effect his detention or to prevent harm to the officers or others. Taking the facts in the light most favorable to Thompson and balancing the three considerations set forth in Graham demonstrates that the individual officers used unreasonable force in detaining Magyar. Therefore, the facts as alleged support a finding that the individual officers violated Magyar’s Fourth Amendment rights.

Having established that the facts alleged show a violation of the Fourth Amendment, this court must consider whether that constitutional right was clearly established. The question is whether the individual officers should have known based on the state of the law at the time of the incident that their actions violated Magyar’s Fourth Amendment rights. This does not mean that the individual officers had to know of an actual case on point. Rather, the question is whether the individual officers had fair warning that their treatment of Magyar was unconstitutional. See Hope, 536 U.S. at 741, 122 S.Ct. 2508. Here, the law at the time of the incident was sufficiently clear to give the individual officers fair warning that their actions violated Magyar’s constitutional rights.

While no materially similar case is required, the facts in Graham are sufficiently similar to show that the law on this issue was clearly established. In Graham, Graham, who was diabetic, began to suffer from an insulin reaction. Graham, 490 U.S. at 388, 109 S.Ct. 1865. He asked a friend to drive him to a convenience store to buy juice; however, when they got to the store, the line was very long. Id. Therefore, Graham hurried out of the store and asked his friend to drive him to a friend’s house instead. Id. at 389, 109 S.Ct. 1865. A police officer saw Graham walk hastily in and out of the store and became suspicious that something had happened. Id. Therefore, the officer stopped Graham’s car and ordered Graham to wait while he found out what, if anything, had happened in the store. Id. When Graham explained that he was suffering an insulin reaction, the officer called for assistance, but he refused to allow Graham to obtain juice. Id. Graham then got out of the car, ran around it twice, and passed out. Id.

When backup officers arrived, they rolled Graham over and handcuffed his hands tightly behind his back. Id. Several officers then lifted Graham up by his arms, carried him to the car, and laid him face down on the hood. Id. The officers later threw Graham headfirst into the back seat of a police car. Id. The officers refused Graham’s repeated requests for juice or sugar, as well as his request that they look in his wallet to see his diabetic decal. Id. At some point during this encounter, Graham suffered a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder. Id. at 390, 109 S.Ct. 1865. Ultimately, the police learned that nothing had happened at the convenience store, and they released Graham without charging him. Id. at 389, 109 S.Ct. 1865. Based on these facts, the Supreme Court held that the officers were not entitled to qualified immunity as a matter of law. It therefore remanded the case for further consideration.

In this case, Magyar, like Graham, was suffering from an insulin reaction. Unlike Graham, however, Magyar was not even suspected of having committed a crime. The Supreme Court found that the force used by the officers in Graham was arguably excessive under the circumstances presented, particularly because the officers were aware of Graham’s medical condition but chose to ignore it. Given that the force used in Magyar’s case was more extreme than that used in Graham in a situation that was much less compelling and given that Graham had been on the books for nine years before the incident with Magyar, the individual officers in this case had fair warning that their conduct was unlawful. This is particularly true because Graham held that the proportionality between the force used and the crime committed was the most important factor in determining excessiveness.

Further, there were at least two federal circuit court cases issued before the incident involving Magyar that held that the level of force used by the individual officers in this case was improper when the victim was not suspected of committing a crime. In Thornton v. City of Macon, 132 F.3d 1395, 1397-98 (11th Cir.1998), two officers were providing assistance to a woman who was trying to collect her belongings from her former boyfriend’s home. The police originally saw the boyfriend, Thornton, on the porch of his home. Id. at 1398. When the officer approached Thornton and told him why he was there, Thornton responded by saying that he had done nothing wrong, and he asked the officer to leave. Id. Rather than leaving, the officer called for backup. Id. Thornton then went inside and shut the door. Id. The officers then tried unsuccessfully to get Thornton to come out of the house. Id. Ultimately, when Thornton opened the door, the officers charged into the apartment, grabbed his arms, threw him to the floor, cuffed his hands behind his back, dragged him outside, and shoved him into a police car. Id. When a friend tried to assist Thornton, the officers slammed the friend onto the hood of the police car and handcuffed him. Id. In denying qualified immunity to the officers, the court noted that because neither Thornton nor his friend were suspected of any crime and because they posed no threat to anyone, the officers were not justified in using any force to arrest them, and a reasonable officer would have recognized the force used as excessive. Id. at 1400.

Similarly, in Spann v. Rainey, 987 F.2d 1110, 1112 (5th Cir.1993), officers were called to a doctor’s office when Spann arrived and allegedly began causing a “disturbance.” When the officers arrived, they were directed to Spann. When the officers asked for Spann’s identification, he did not respond. At that point, Officer Rainey grabbed Spann’s arm, and Spann then “lunged forward, grabbing Officer Kendrick in the neck/collarbone area.” Id. Officer Rainey then hit Spann over the head with a flashlight, causing Spann to fall. Id. When Spann attempted to get up, Officer Rainey hit him again. Id. Spann alleged that he was then kicked, stomped, beaten, handcuffed, and dragged down the stairs. Id.

In denying qualified immunity to Officer Rainey, the court stated:

[ W]e cannot conclude that a reasonable police officer would think the extent of force allegedly used was necessary under the circumstances. It is uncontested that the only charge ultimately filed against Spann was resisting arrest. He contends that he was not being arrested for any underlying crime and that no warrant for his arrest was outstanding. He further contends that he “was not violating any laws, was not attempting to interfere with any defendants’ execution of duties, and was not engaged in assaulting, threatening ... behavior toward the ... officers ... or any other citizen.”

Id. at 1116. Because the level of force used was not reasonable under the circumstances, Officer Rainey was not entitled to summary judgment on the issue of qualified immunity. Id.

In both Thornton and Spann, as in this case, the plaintiffs were not suspected of committing any crime. The case law clearly held that the level of permissible force is very low when there is not even a suspicion that a crime was committed. Spann was decided in 1993. Thornton was decided nine months before the incident involving Magyar. These cases provided fair warning to the individual officers in this case that the level of force they used with Magyar was unlawful.

Because the facts as alleged by Thompson show the violation of a constitutional right and because that right was sufficiently clearly established for the individual officers to have fair warning that their conduct was unlawful, the trial court erred in granting final summary judgment in favor of the individual officers on this issue.

STATE LAW BATTERY CLAIM

Thompson next contends that the trial court erred in granting final summary judgment in favor of the individual officers on the state law battery claim. We agree.

The parties do not dispute that the sovereign immunity statute, section 768.28(9)(a), Florida Statutes (1997), generally protects government officials from individual liability for ,damages. However, an exception to this statutory immunity applies when the governmental official “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9)(a). Here, while there is no evidence that the individual officers acted in bad faith or with a malicious purpose, there is a genuine issue of material fact as to whether the individual officers’ actions constituted a wanton and willful disregard of human rights. Therefore, the- trial court erred in granting final summary judgment on this basis.

There are two facts that are most telling on this issue. First, the level of force applied to Magyar by the officers arriving at the scene in response to the call for backup arguably shows a wanton and willful disregard for human rights. When Womack arrived at the scene, he gave Magyar two or three “knee blasts” without having any idea of why the officers were struggling with Magyar. Similarly, Douds used two “pain compliance techniques” on Magyar’s back without having any idea of the reason for the struggle. Drees testified in his deposition that he told the backup officers as they approached that they were not to hurt Magyar because they were only trying to get him to the hospital. Clearly, if the officers heard and ignored Drees’ warning, their actions constituted a wanton and willful disregard for human rights.

Second, several officers continued to hold Magyar down with their body weight after Magyar was handcuffed and bound with ropes. Douds testified in his internal affairs interview that he and Drees continued to use their body weight across Magyar’s shoulders after Magyar was handcuffed and that they did not let up until Magyar “went limp.” Mazza testified that he lay across Magyar’s legs after Magyar was handcuffed and bound to keep Magyar from rolling. Clearly, having at least three officers use their full body weight to hold down a handcuffed and bound suspect raises a question as to whether their actions constituted a wanton and willful disregard for human rights and safety.

The individual officers assert in their brief that there is no evidence that they engaged in any of this behavior, relying solely on their deposition testimony. While many of these facts are not included in their deposition testimony, these facts are documented in the transcripts of their internal affairs interviews. Standing alone, the fact that the substance of the internal affairs interviews conflicts with the substance of the officers’ deposition testimony raises a genuine issue of material fact on the issue of the force used as well as on the issue of the officers’ credibility.

The individual officers also argue that there can be no genuine issue of material fact because their testimony is unrefuted. They assert that Thompson cannot raise an issue of material fact because neither she nor anyone else was present to dispute the individual officers’ version of events. This argument suffers from at least two deficiencies.' First, the fact that there are conflicts between the officers’ internal affairs interviews and their deposition testimony raises questions concerning their credibility at deposition. Thompson is entitled to rely on these discrepancies to establish a lack of credibility and to argue that the internal affairs interviews, given the morning after the incident, are more credible than deposition testimony given two years later.

Second, there are photographs in the record that depict injuries more severe than those testified to by the individual officers. This photographic evidence, while not dispositive of any issue, is certainly sufficient to raise a question of fact as to the severity of Magyar’s treatment at the hands of the individual officers.

The officers argue that these photographs may not be used to create a fact question when their testimony is otherwise undisputed, relying on Wood v. City of Lakeland, 203 F.3d 1288 (11th Cir.2000). However, the facts of Wood are distinguishable. In Wood, a violent, suicidal individual was barricaded in his bedroom with a knife. Id. at 1290. Officers arrived at the request of the family to assist in getting the individual out of the bedroom. Id. When the officers entered the room, the individual allegedly lunged at them with a knife. Id. The officers responded by shooting the individual, killing him. Id. The family argued that the use of force was excessive, relying on an autopsy report which allegedly showed that the angle of the bullet wounds contradicted the officers’ version of events. Id. at 1290-91. The court, however, held that the autopsy report, standing alone, was insufficient to create an issue of material fact as to qualified immunity. Id. at 1291. The court noted that while the autopsy report showed that the individual’s right arm was flexed and raised when the bullets passed through it into the chest, this did not contradict the officers’ version of events. Id. Therefore, the autopsy report was insufficient to establish a fact question that would defeat summary judgment on the issue of qualified immunity. Id.

In this case, unlike in Wood, Thompson does not rely solely on nontestimonial evidence to raise questions of fact. While the photographs do appear to conflict with the officers’ testimony, they are not the only source of the dispute. Rather, the discrepancies in the officers’ testimony also create issues of fact. Thus, Wood is not controlling in this case. Moreover, to the extent that Wood can be read to stand for the proposition that photographs and other nontestimonial evidence can never be used to dispute the testimony of officers present at the scene, we disagree. To ignore the photographic evidence simply because the victim is unable to give verbal testimony that refutes the officers’ version of events would not serve either public policy or justice.

Because the record shows that there are genuine issues of material fact as to whether the officers acted with wanton and willful disregard of Magyar’s rights and safety, the trial court’s decision to grant summary judgment on the basis of statutory immunity was improper.

CONCLUSION

Based on the record as it exists, the individual officers are not entitled to either qualified immunity or statutory immunity as a matter of law. Rather, the question of whether the individual officers should be subject to liability for their actions on October 18, 1998, is one for the jury. Therefore, we reverse and remand for further proceedings on both claims.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.

      . The record shows that Magyar’s home was approximately three blocks from the abandoned gas station where this incident occurred.

      . At oral argument, counsel for the individual officers insisted that the internal affairs interview transcripts were not record evidence. However, these transcripts were attached to requests for admissions served on the individual officers in June 2000, and each officer admitted in August 2000 in response to these requests that the interview transcripts were authentic, were public records, and contained statements actually made by the officers. Therefore, these interview transcripts are, in fact, record evidence that was before the trial court when the ruling on the summary judgment motion was made.

      . The complaint also asserted various causes of action against the City of Tampa. These counts were not affected by the summary judgment in favor of the individual officers and remain pending in the trial court.


text:
    Timothy Clarence BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1282.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Rehearing Denied Aug. 20, 2003.
    Timothy Clarence Baker, in proper person. Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   PER CURIAM.

Timothy Clarence Baker appeals an order denying his motion to correct illegal sentence. We have taken judicial notice of this court’s file Baker v. State, 741 So.2d 504 (Fla. 3d DCA 1999). The claims in the present case are substantially identical to those rejected in the earlier appeal. Further, review of the transcript of the sentencing hearing reveals that the defendant admitted the existence of the convictions necessary to qualify him as a habitual offender, the trial court’s oral pronouncement adequately adjudicates him a habitual offender, and the sentence imposed is the sentence announced by the trial court.

Affirmed.


text:
    Anthony Cortez DEES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0920.
    District Court of Appeal of Florida, First District.
    July 28, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of a decision of the circuit court sitting in its appellate capacity. We construe the appellant’s notice of appeal to be a petition for certiorari and deny the petition. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Armstrong v. State, 656 So.2d 455 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983).

BOOTH, DAVIS and PADOVANO, JJ., concur.


author: STONE, J.

text:
    R.C., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-306.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Rehearing Denied Sept. 3, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm R.C.’s conviction and sentence for possession of a knife on school property. The sole issue on appeal is whether the trial court erred in denying a motion to suppress the knife found in a search of R.C. at the direction of a school official. R.C. entered a plea of no contest, reserving, with the court’s consent, the right to appeal the order on the motion to suppress.

R.C. and a classmate were called to the assistant principal’s office a few days after having a physical altercation in class. The assistant principal, Mr. Correa, testified that he noticed a bulge in the right pocket of R.C.’s pants. Correa described what he saw in R.C.’s pocket as a “hard surfaced” object, although he acknowledged he did not know what it was. The school security specialist, who had escorted R.C. to Cor-rea’s office, but did not testify, directed R.C. to take the object, a knife, out of his pocket after patting him down.

Correa stated that because the bulge appeared to have a hard surface, he was concerned for his own safety and that of the security specialist. He also explained that because R.C. had been involved in some type of altercation days before, he had “no idea of knowing what actions the student’s going to take.” At another point in his testimony, however, he indicated that he was not in “fear” of R.C.

The trial court denied R.C.’s motion to suppress the pocket knife, finding that Correa had reasonable suspicion to search R.C. because of the bulge in his pocket coupled with his knowledge of a prior incident involving R.C.’s harassment of another student.

Although the trial court concluded that Correa believed the bulge in R.C.’s pocket might have been a knife, Correa, the state’s only witness, acknowledged that he did not know it was a knife until it was taken out. Correa could not articulate a more specific reason for believing that R.C. was concealing a weapon such as furtive gestures or unusual nervousness. There was no evidence that the previous altercation involved a weapon. R.C., therefore, contends that the judge’s finding — that Correa suspected that the bulge was a knife — was not supported by the evidence.

The standard applied in reviewing a search by a school official on school property, is whether the official had “reasonable suspicion” that the student is carrying a weapon (or contraband), considering the totality of the circumstances. See J.A.R. v. State, 689 So.2d 1242, 1244 (Fla. 2d DCA 1997). While we recognize that the circumstances here are, at best, marginal, we conclude that the totality of the circumstances in this case is sufficient to support a finding of reasonable suspicion by the school official.

As there was no reversible error or abuse of discretion in denying the motion to suppress, the judgment and sentence are affirmed.

STEVENSON and MAY, JJ„ concur.


author: WARNER, J.

text:
    Leslie SULTAN, D.D.S., individually and Leslie Sultan, D.D.S., P.A., a Florida professional corporation, Petitioners, v. Michelle EARING-DOUD and Thomas Doud, her husband, Respondents.
    No. 4D02-4135.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      David R. Cassetty of Restani, McAllister & Cassetty, P.A., Coral Gables, for petitioners.
    Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for respondents.
   WARNER, J.

Petitioner, Dr. Sultan, a defendant in a dental malpractice case, seeks certiorari review of the trial court’s order denying his motion to strike plaintiffs expert witness and his motion to disqualify plaintiffs counsel. We conclude that the petitioner has failed to show irreparable harm not remediable on appeal as to the motion to strike. As to the disqualification of counsel, petitioner has not shown a departure from the essential requirements of law.

Respondenf/plaintiff, Michelle Earing-Doud, notified petitioner/defendant Dr. Sultan of her claim against him for dental malpractice. During the statutory presuit process required under section 766.203, Florida Statutes (2000), Dr. Sultan obtained an affidavit in December 2000 from Dr. Donlon, an oral surgeon, opining that Dr. Sultan had rendered appropriate treatment to respondent. Doud was not represented by current counsel until after the presuit process terminated.

Days prior to the trial in May 2002, Doud’s retained expert, Dr. Kurt Friedman, advised respondents that he could not be a witness for them. He discovered petitioner’s trial counsel had represented him on a malpractice claim, and his insurance company was the same as Dr. Sultan’s. Thus, he was concerned about the repercussions of giving an expert opinion that petitioner had been negligent.

Doud’s counsel conducted an extensive search for another expert, including contacting thirty-three potential experts as well as employing two expert witness search firms. Another law firm that also had a case against Dr. Sultan contacted Doud’s counsel in August 2002 and referred him to Dr. Donlon who agreed to review the available records. Following that review, he advised counsel that he would testify that Dr. Sultan was negligent in his treatment of Doud. At no time did Dr. Donlon advise Doud’s counsel of any prior involvement in the case, and the defense had never listed him as an expert witness for trial.

On August 26, 2002, Doud disclosed Dr. Donlon as her expert witness. Dr. Sultan moved to strike Dr. Donlon, arguing that Donlon was Sultan’s retained expert who had previously opined that Sultan had not deviated from the standard of care. He also moved to disqualify Doud’s counsel because during the presuit phase, counsel and Dr. Donlon reviewed the medical records and discussed and formulated theories and defenses for the case. Therefore, by discussing the case with Dr. Donlon, Doud’s counsel obtained the defendant’s work product.

In an affidavit, Doud’s counsel noted his efforts to obtain an expert following Dr. Friedman’s departure. He further stated Dr. Donlon never advised him that he had been consulted in regard to the case. While Dr. Donlon’s affidavit appears in the presuit portion of the file, which Doud’s counsel received from Doud’s prior attorney, current counsel had no independent recollection of it. Finally, Dr. Donlon attested in an affidavit that he had no recollection of reviewing Doud’s file in 2000 and did not remember consulting with defense counsel. If he had opined in December 2000 that Sultan was not negligent, his opinion must have been rendered on incomplete records.

Doud presented the affidavits at a hearing and argued the Legislature itself recognized that an opinion in a presuit affidavit could change with further discovery. See Cohen v. Dauphinee, 739 So.2d 68, 72 (Fla.1999). After hearing argument, the court denied both motions.

We have said that, “there are two indispensable ingredients to common law certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable injury to the petitioner that cannot be corrected on final appeal (2) caused by a departure from the essential requirements of law.” Bared & Co. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996). While not making any express suggestion of irreparable harm, Dr. Sultan contends that he will be placed in a difficult position in cross-examining the witness at trial.

Without discussing the certiorari standard at trial, the fifth district in Edwards v. Humana of Florida, Inc., 569 So.2d 1315 (Fla. 5th DCA 1990), granted certio-rari review under similar circumstances. Edwards filed a medical negligence action against a hospital and physicians (respondents). She retained Dr. Kirsch, a neurosurgeon, to review her case and render an expert opinion. Dr. Kirsch later informed Edwards he could not give expert testimony on her behalf against the respondents. Almost three years later, counsel for one of the respondents contacted Dr. Kirsch as an expert witness, apparently without knowledge that Edwards had consulted with Dr. Kirsch. The doctor reviewed the medical records and depositions and indicated he would be able to testify on behalf of the respondent. See id. at 1316.

Edwards moved to strike Dr. Kirsch alleging that “permitting him to testify placed her at a material disadvantage, if not prejudice, in cross-examination of now potentially conflicting opinion testimony, including the potential of prejudice by innuendo of the unintentional disclosure of work product.” Id. Edwards relied on Florida Rule of Civil Procedure 1.280(b)(4)(B), to contend that a retained expert was still only subject to discovery by the opposing party under the “exceptional circumstances” requirement of the rule.

The Edwards court held that the clear intent of the rule was to afford protection from the discovery of a “consulting expert.” Id. Such protection, however, is not dissolved by the unintentional or unknowing retention of the other party’s previously hired expert. The court commented that while respondent was not at fault, the situation should not “inure to his benefit, absent the compelling circumstances articulated in Rule 1.280(b)(4)(B).” Id.

We disagree that this case is governed by Rule 1.280(b)(4)(B). First, the rule prevents discovery of facts or opinions held by a non-testifying expert retained by the opposing party. In this case, Doud’s prior counsel was aware of Dr. Donlon’s original opinion of no negligence. Moreover, Dr. Donlon’s new opinion that Dr. Sultan was negligent was not a change in opinion based upon additional discovery during his employment with Dr. Sultan’s attorney. Dr. Donlon’s services had terminated prior to Doud’s counsel contacting him. Secondly, counsel does not seek to prevent the discovery of Dr. Donlon’s opinion but rather his trial testimony on his newly held opinions. That is not covered by Rule 1.280(b)(4)(B), and a showing of irreparable harm in permitting the testimony has not been made at this juncture. Although Dr. Sultan cites difficulties in cross-examination that Donlon’s switching sides poses, without knowing what evidence is offered at trial and the trial court’s rulings, we cannot determine that this harm, if any, is irreparable.

Sultan’s argument also suggests that an expert’s opinion is protected by the work product privilege and that use of the expert by an opposing party constitutes a violation of an absolute privilege. We conclude that the petitioner has failed to establish he is entitled to the protection. At the very least, in order for the expert’s opinion to be protected, Dr. Sultan must show Dr. Donlon obtained, or was privy to, confidential communications when formulating his opinion. The record, however, does not suggest that Dr. Donlon received any confidential communications from the client, who is the one protected by the privilege. See § 90.502(2), Fla. Stat. (2002). While Sultan’s counsel states that he discussed strategies and theories with Dr. Donlon, Dr. Donlon does not recall any such discussions. There also is no suggestion that Dr. Donlon’s opinion was aided by any confidential communications received from petitioner’s counsel. Dr. Don-lon’s present opinion was based upon the information Doud supplied to him, and because he has no memory of his prior dealings on this case, it appears that any opinion given in court will not be tainted by confidential work product communications.

We agree with the Oregon Supreme Court’s holding in State v. Riddle, 330 Or. 471, 8 P.3d 980, 988 (2000), that the work product doctrine does not create an absolute privilege under similar circumstances. There, the defendant had employed a non-testifying accident reconstruction expert to offer his opinion as to the cause of an accident in a criminal case. At some later date, the state employed the same reconstruction expert and was allowed to introduce his testimony at trial, over the defendant’s objection, that his attorney had discussed potential theories of the crash with the expert. Because the expert had formulated the opinion about which he testified without relying on any privileged communication, the supreme court affirmed the trial court’s ruling. See id. at 990. In doing so, it rejected the contention that the defendant was entitled to an absolute privilege which would prevent the expert from testifying. See id. While the defendant suggested that where there was evidence that the expert might have been exposed to confidential communications or attorney work product, compelling the trial court to exclude the testimony, the court disagreed. It stated:

Whether an expert’s testimony will refer to, disclose, or be affected by confidential communications or work product or, instead, can be segregated from both is a question of fact, albeit a sometimes subtle and delicate one.
[ T]he lawyer/expert relationship does not automatically disqualify an expert who was retained by one party from testifying for some other party. That expert is disqualified from testifying, however, if his or her opinion discloses, either directly or indirectly, or is based on, any confidential communication between the lawyer, the client, and/or the expert. If an expert’s opinion is so bound up with any such communication that the expert cannot, in the view of the trial court, segregate his or her opinion from some part of the confidential communication, then the expert should not be permitted to testify.

Id. at 989-90.

As the Riddle court explained, the trial court not only has discretion to determine these issues and fashion appropriate remedies, it also has the ability to examine the expert in camera if necessary to determine whether the expert has in any way relied on confidential or work product information in formulating the opinions to which the expert expects to testify.

On this record, because an absolute privilege does not exist to prevent Doud from using Sultan’s previously retained non-testifying expert under the circumstances of this case, we conclude no irreparable harm has occurred. Therefore, the petition for certiorari is dismissed insofar as it seeks to vacate the order denying the motion to strike Dr. Donlon as a witness.

Petitioner has also sought to disqualify respondent’s counsel for his contact with the non-testifying expert. Disqualification of counsel is an extraordinary remedy ordered sparingly. See Schultz v. Schultz, 788 So.2d 329, 330 (Fla. 4th DCA 2001). The issue presented here is whether the attorney has acquired confidential information. We analogize those cases involving the hiring of a non-lawyer employee of one party’s firm by the law firm representing the other party. In both circumstances, the issue is whether the firm sought to be disqualified obtained any confidential information as a result. See, e.g., Koulisis v. Rivers, 730 So.2d 289, 291 (Fla. 4th DCA 1999). In Koulisis, we noted that the moving party must first establish a prima facie case that confidential information has actually been disclosed to the hiring firm. Id. at 292. The burden then shifts to the firm whose disqualification is sought to demonstrate that it should not be disqualified. See id.; see also First Miami Sec., Inc. v. Sylvia, 780 So.2d 250, 255 (Fla. 3d DCA 2001) (adopting the burden shifting test in Koulisis and noting actual knowledge of confidential information is required to obtain disqualification).

Assuming without deciding the affidavit of Dr. Sultan’s counsel constituted prima facie proof that confidential information may have been disclosed regarding the defense’s theories for the case, we conclude that Dr. Donlon’s affidavit demonstrated he did not receive any confidential information that would give Doud an unfair informational advantage. Dr. Don-Ion did not recall giving an earlier opinion on the case, and his bill does not reflect any conversations with Dr. Sultan’s counsel. The bill only reflects telephone calls totaling twenty minutes with Dr. Sultan’s counsel’s medical analyst. Based upon the affidavits presented at the hearing, the trial court was within its discretion to deny the motion to disqualify counsel.

Petition dismissed in part; denied in part.

TAYLOR and HAZOURI, JJ., concur.

      . Dr. Sultan did not request an evidentiary hearing.


author: GROSS, J.

text:
    A.A., The Father, and R.J., The Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D02-4484, 4D02-4583.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Rehearing Denied Sept. 3, 2003.

      Frank A. Kreidler, Lake Worth, for appellant A.A., The Father.
    Michelle Migdal of Migdal & Migdal, P.A., Boynton Beach, for appellant R.J., The Mother.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   GROSS, J.

We affirm the order terminating parental rights as to four children entered after a four-day trial. We write to address two issues.

Both parents contend that the trial court erroneously refused to order the release of the names and addresses of the two younger children’s foster parents. The father’s pretrial motion contended that because witnesses at trial would likely testify that the children were in good homes with good foster parents, “the only way the father can refute this testimony is to investigate the foster parents, their home and their neighborhood. Witnesses may be available in their neighborhood to contradict the ‘good foster home’ testimony and/or an inquiry of local law enforcement records may reveal derogatory information and/or potential child abuse.... Regardless of whether or not the foster parents are called as witnesses, they have personal knowledge of the children, their medical situation and their best interests.”

At trial, Barbara Barr, the guardian ad litem (“GAL”) since November 2001, testified. She stated that she visited three of the children on a regular basis. She felt that the mother had not complied with her case plan, as she did “not have a permanent place to. live and she [was] not working.” Although the mother was taking parenting classes, she had “not demonstrated her ability to apply them.” As an example of her lack of parenting skills, the GAL pointed to the mother’s failure to obtain any prenatal care for her most recent child, D.A.

When she met the mother for the first time in November 2001, the GAL told the mother that she needed to visit P.A., her third eldest child for whom she had supervised visitation. The mother did not visit P.A. for three or four months. The GAL noted that P.A. was on medication for asthma three times a day, and that D.A. “[was] a very sick little boy,” and needed care twenty-four hours a day, because he frequently stopped breathing and had a very weak immune system.

The GAL felt all four children would be at risk if returned to the parents. She did not believe that the parents had the ability to take care of any of their children:

[D.A.’s] out of the question and I’m not so sure of [P.A.] that it would work out for [him] either. I think the older children would be well benefítted to go to their grandmother. I know she wants to adopt them, but if she can’t adopt them, they could be placed as long term relative placement with her. And I think [D.A.] and [P.A.] should stay with the families that they know as their family, their parents.

The GAL stated that when she spoke to the mother at a recent judicial review hearing about employment, the mother remarked that the amount of child support being garnished from her wages was so high that it was not worth it for her to work.

On cross-examination, after the GAL noted that the foster parents taking care of P.A. wanted to adopt him, the father’s counsel asked for the names of these people. The Department of Children and Families objected and the trial court deferred ruling. After a recess, the father’s counsel renewed his previously filed written motion to compel the Department to disclose the names and addresses of the foster parents, and to declare section 409.175(16), Florida Statutes (2002) unconstitutional. Counsel argued that because of GAL’s testimony that the foster parents for P.A. and D.A. were doing a good job taking care of the children, and desired to adopt the children, the parents had the right to interview them, talk to their neighbors, check law enforcement records, and investigate whether in fact they were good people. •

The Department noted that under section 39.810, Florida Statutes (2002), when considering the manifest best interests of the children, the trial court was not permitted to make a comparison between the attributes of the parents and those of any people providing a present or potential placement for the children. The Department also argued that public policy concerns should prohibit the disclosure of this information because the parents could then locate these foster parents and harass them. The Department contended that revealing such information would discourage people from becoming foster parents.

The trial court ruled that the Department did not have to reveal the names or addresses of any foster parents. We agree with the trial court.

A petition for termination of parental rights (TPR) must contain facts supporting the allegation that at least one of the grounds listed in section 39.806, Florida Statutes (2002) has been met and that “the manifest best interests of the child, in accordance with s. 39.810, would be served by the granting of the petition.” § 39.802(4)(a) & (c), Fla. Stat. (2002). Section 39.810 provides that in a hearing on a TPR petition, “the court shall consider the manifest best interests of the child”; the statute further states that “[t]his consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child.”

The focus in a termination case is on the deficiencies of a parent that may justify the termination of parental rights. If a ground for termination of parental rights exists under section 39.806, the quoted language from section 39.810 indicates that an evaluation of a foster parent’s qualities is not material to the termination decision. The trial court properly ruled that the spotlight of a termination case must be kept on the parents, without being sidetracked onto the foster parents. A termination of parental rights case is not a dissolution case where a court bases its decision for a child’s primary residence on statutory factors that require a comparison between the parents. See § 61.13(3), Fla. Stat. (2002).

The legislature’s intent to shield foster parents from a termination case is further demonstrated by section 409.175(16). That section excludes the following information from public records disclosure:

the home, business, work, childcare, or school addresses, telephone numbers, social security numbers, birth dates, and photographs of persons who are licensed under this section to be family foster parents and of their spouses, their minor children, and other adult household members; identifying information about such persons in neighbor references; the floor plan of the foster home; and any identifying information about such persons contained in similar sensitive, personal information that is provided to the department by such persons.

Sound public policy supports both section 409.175(16) and the trial court’s decision not to require disclosure of the identity of the foster parents to a parent in a termination case. If potential foster parents were aware that their personal information was to be released to parents facing termination of their parental rights, many would be discouraged from taking on this vital public service. If a party to a termination proceeding could investigate, intimidate, and harass the caretakers for the children, foster parents would be chilled from undertaking this service to the detriment of children caught within the process. The parents’ interests here were protected through their ability to cross-examine all of the witnesses who testified as to the relationship between the children and the foster parents.

On the second point, both parents contend that the children had no standing through their attorney ad litem to join in the Department’s TPR petition or to participate in the TPR trial. We hold that the trial court did not err in allowing the children’s attorney to join in and participate in the case at trial.

The parents point to Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993), to support their argument. However, this case supports the trial court’s ruling. In Kingsley, an eleven-year-old boy filed a petition for TPR on his own behalf, and the trial court ultimately terminated his mother’s parental rights. Id. at 782-83. The fifth district held that in fact the child did not have the legal capacity to file the TPR petition on his own behalf. Id. at 783. However, as also noted by the court, nothing prevented an attorney acting on behalf of the child from initiating a TPR petition. Id. at 784. This holding is consistent with section 39.802(1), which states that “[a]ll proceedings seeking an adjudication to terminate parental rights pursuant to this chapter must be initiated by the filing of an original petition by the department, the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.” See § 39.802(1) (emphasis added).

As interpreted by Kingsley, the phrase “any other person who has knowledge” means “someone who is in a peculiar position so that such knowledge can be reasonably inferred; for example, the judge familiar with the file, the guardian or attorney for the children, neighbors or friends of the parties who, because of their proximity, would be expected to have such knowledge.” 623 So.2d at 784 (emphasis added); see also Lupinek v. Firth, 619 So.2d 379 (Fla. 5th DCA 1993) (holding that guardian ad litem legally allowed to file TPR on child’s behalf). If an attorney ad litem may initiate a TPR case by filing a petition, the attorney may participate at a TPR trial where the petition is filed by the Department.

AFFIRMED.

FARMER, C.J., and POLEN, J., concur.

      . D.A. was born prematurely as the result of an intrauterine viral infection known as "CMV.” Dr. Teresa Watts, a pediatric pulmo-nologist who treated D.A. since January 25, 2002, testified that the child had to take monthly shots for a respiratory virus, which typically is seen in premature babies. Because of CMV, D.A. has growth retardation, hypotonia [muscle weakness], trouble breathing which requires an apnea monitor, and a small head due to his brain not growing properly. In addition, D.A. had nutritional difficulties and trouble swallowing.
      Dr. Watts explained that CMV is generally diagnosed prenatally through a blood test. This would result in the pregnancy being characterized as high-risk and the mother would be referred to a perinatologist, an obstetrician who specializes in high-risk pregnancies. Had this test been done, Dr. Watts said that the mother would have received medicine to help mature the baby's lungs. After an amniocentesis had been performed, the baby may have been delivered early to remove it from infection when born. The baby may have also received an anti-viral agent immediately to help slow the progression of the complications.
      Because of his medical problems, D.A. has to be fed a special formula, in a specific position because he feeds so slowly and can only take three or four ounces at a time. D.A. also has to be held for thirty minutes for each feeding, and then thirty minutes after each feeding, every three to four hours, or about six times a day. Unless the parents received the appropriate parenting tools to help D.A. develop his motor skills, he is going to become progressively more mentally retarded. Dr. Watts noted that "a lot of [these problems] could have been prevented. The degree at which he’s at right now could have been prevented. It's a tragedy.”

      . The legislature recently amended this statute, to also protect this information from public disclosure for foster parent applicants. Chapter 2003-83, section 3, Laws of Florida states in pertinent part:
      The Legislature further finds that it is a public necessity to provide foster parent applicants with the same public records exemption afforded licensed foster parents under s. 409.175(16), Florida Statutes, in order to encourage persons to apply to become licensed foster parents. The public availability of such information regarding foster parent applicants could have a negative, chilling effect on the recruitment of such persons. Accordingly, the public records exemption for such applicant information ... is a public necessity for the effective and efficient operation of the foster care program.

      . The Kingsley court held that the error in allowing the minor child to file a petition on his behalf was rendered harmless, as the foster father, the Department, the guardian ad litem, and the foster mother all appropriately filed TPR petitions as well. See 623 So.2d at 785.