author: BARFIELD, J.

text:
    SUPERIOR INSURANCE COMPANY, Appellant, v. Cheryl D. CORDLE, Appellee.
    No. 1D02-0797.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Anthony J. Russo and Kim E. Wells, of Butler Burnette Pappas LLP, Tampa, for Appellant.
    George T. Reeves, of Davis, Schnitker, Reeves & Browning, P.A., Madison; and T. Bradley McRae, of T. Bradley McRae, P.A., Lake City, for Appellee.
   BARFIELD, J.

Appellant challenges the amount of attorney fees awarded to its insured pursuant to section 627.428, Florida Statutes. Specifically, it argues that the trial court erred as a matter of law in applying a “contingent risk” multiplier to more than double the “lodestar” amount which had been calculated based upon a reasonable number of hours and a reasonable hourly fee. The parties agree that there is no dispute in this appeal regarding the factual findings of the trial court’s order, and that the court’s legal rulings are therefore reviewed de novo, citing Menendez v. The Palms West Condominium Ass’n, Inc., 736 So.2d 58 (Fla. 1st DCA 1999). We agree with appellant that use of a “contingent risk” multiplier was inappropriate in the circumstances.

The trial court found in its order that the attorney’s representation of the insured “was not contingent within the meaning of Rules of Professional Conduct 4-1.5” and that “the contractual arrangement” between the insured and her attorney, in which the attorney “would have technically been entitled to recover his fee up to $200.00 per hour from the client, win or lose,” but agreed to accept “a reasonable fee awarded by the Court” pursuant to section 627.428, “is not considered a contingent fee arrangement as contemplated by Rules Regulating The Florida Bar, Rule 4-1.5.” The trial court apparently based its decision to use the “contingent risk” multiplier on its finding that the fee in either case would be contingent on the attorney winning the case, because of the insured’s “indigent financial condition.” However, the likelihood that the client will not pay the agreed-upon hourly fee is not the criterium upon which “contingency” in this context is based.

Because we find that, based on the facts as found by the trial court, the fee agreement was not “contingent” within the meaning of Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), the order is REVERSED and the case is REMANDED to the trial court for entry of an attorney fee award that does not use a “contingent risk” multiplier.

WOLF and DAVIS, JJ., concur.


source: Caselaw Access Project

author: ALLEN, C.J. BENTON, J.,

license: Public Domain

text:
    Nadine G. MENDELSOHN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D02-377.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Rehearing Denied July 31, 2003.
    Nadine G. Mendelsohn, Pro Se.
    John D. Maher of Unemployment Appeals Commission, Tallahassee, for Appel-lee.
   ALLEN, C.J.

The appellant challenges an order by which the Unemployment Appeals Commission upheld an appeals referee’s dismissal of an administrative appeal after the appellant failed to appear at the scheduled hearing. The appellant sought Commission review of the referee’s decision, attempting to invoke such review with a request for a redetermination. The Commission concluded that the request was not timely filed and that the referee’s decision had thus become final, whereby the case was dismissed.

The record indicates that the appellant faxed a request for a redetermination to the local appeals office, but that the fax was sent and received more than twenty days after the referee’s dismissal order was mailed to the appellant. The request was thus an untimely filing under section 443.151(4)(b)3, Florida Statutes, and the Commission noted that the appeal was outside the statutory time limit. However, because the appellant asserted that she had sent an earlier fax, the Commission remanded the ease to the appeals referee for evidence as to this allegation.

At the hearing, the appellant testified that she had sent an earlier fax, but she acknowledged that her fax machine does not indicate whether a transmission is successfully delivered. She also indicated that she was having problems with her fax machine, and that it would sometimes shut off before a transmission was made. The appellant testified that she did not think that had happened with her earlier fax, and she submitted a copy of a phone bill showing a one minute call to a local number on that date. However, the appellant did not present any evidence to confirm that the transmission was actually completed or received.

In the order now being appealed, the Commission found that the appellant’s re-determination request was untimely. This finding was made after an evidentiary hearing according with the requirements of Ebersol v. Unemployment Appeals Commission, 845 So.2d 945, (Fla. 5th DCA 2003). Appellate review of this factual finding is governed by § 120.68(7)(b), Florida Statutes, which precludes an assessment as to the weight of the evidence and instead directs that factual determinations should be set aside when unsupported by competent substantial evidence. But there was such evidentiary support for the Commission’s determination here, given the appellant’s testimony regarding the problems with her fax machine and the absence of any evidence to show that a timely fax request was ever received for filing in the appeals office.

Because the appellant failed to establish a timely filing under section 443.151(4)(b)3, the case below was properly dismissed and the appealed order is therefore affirmed.

HAWKES, J., concurs; BENTON, J., Dissents with Opinion.

BENTON, J.,

dissenting.

The Unemployment Appeals Commission noticed a hearing for January 4, 2002, specifying that “timeliness of the appeal to the Unemployment Appeals Commission is the only issue to be discussed at this hearing.” The subject of the present appeal is the Commission’s subsequent order dismissing Ms. Mendelsohn’s administrative appeal to the Commission as untimely.

With respect to the timeliness of such administrative appeals, Florida Administrative Code Rule 60BB-5.005 provides:

(1) The appeal shall be filed within 20 calendar days of the date the determination or redetermination was mailed to the appellant’s last known address ....
(2) The appeal shall be filed by mailing the appeal document ...; by facsimile transmission of the appeal document to any location designated in subsections 60BB-5.004(1), (2), and (3), F.A.C.; or by hand delivery ....
(3) Appeals filed by mail shall be considered to have been filed when postmarked by the United States Postal Service. Appeals filed by hand delivery or facsimile shall be considered to have been filed when date stamped received at the authorized location.
(4) Upon receipt of an appeal delivered in person or by facsimile transmission, the Commission, Agency for Workforce Innovation, or Office of Appeals employee shall record the date of receipt on the appeal document.

The order which Ms. Mendelsohn sought to appeal administratively was mailed to her on October 16, 2001.

Monday, November 5, 2001, was the twentieth day after October 16, 2001, and therefore the deadline for filing the administrative appeal. Ms. Mendelsohn testified that she filed an appeal by facsimile transmission on November 2, 2001, three days before the deadline. See Perenzuela v. Fla. Unemployment Appeals Comm’n, 779 So.2d 670 (Fla. 3d DCA 2001); see generally Miller v. State, 838 So.2d 667 (Fla. 1st DCA 2003).

Referee: When did you send the letter of appeal to Fort Lauderdale?
Mendelsohn: I faxed it on November 2nd. ‘
Referee: How did you send it to them?
Mendelsohn: I faxed it, which is what I had always done before.

The referee tested this assertion by cross-examination along two lines, first inquiring of Ms. Mendelsohn why, if she had faxed appeal papers on November 2, 2001, she had sent a second fax on November 6, 2001:

Referee: Okay, but — and so what made you contact Fort Lauderdale on November 6th?
Mendelsohn: I faxed over the letter from my attorney along with another letter stating here’s additional documents. That’s number — number two.
Referee: Document number two that I mailed out to you?
Mendelsohn: Document number two, right and a request for redetermina,tion, appeal faxed to you November 2nd, I stated I would be sending supplemental documentation and that was the supplemental documentation.

In his second line of cross-examination, the referee questioned Ms. Mendelsohn as to whether the facsimile transmission that she thought she had accomplished on November 2, 2001, had actually taken place. She testified that it had, and that she would have been aware if it had not been transmitted:

Referee: Prior to November 2nd, you had problems—
Mendelsohn: Yeah, I’d been having problems with it for a while and it may have cut off or a call may have come in. We have what is it, ring master?
Referee: I don’t know.
Mendelsohn: Call — call waiting, caller id, and if I don’t code in a start 70 I think it is, then a call comes in and it shuts off the fax, and that might— might have happened.
Referee: That could have happened on the 2nd of November?
Mendelsohn: No, it didn’t happen on the 2nd. Because if it would have happened on the 2nd, I would have tried to refax it.

The referee’s cross-examination did not shake Ms. Mendelsohn’s testimony that she faxed a notice of appeal on November 2, 2001, that there had been no problem in effecting that particular transmission, and that if there had been she would have been aware of it. Nobody put on evidence to contradict her testimony on any point.

Nothing in the order under review explains the referee’s fact finding. The order makes no reference to November 2, 2001, nor to any of the evidence adduced at the hearing. In broad boilerplate language, the order reads:

The appeals referee’s decision was mailed to the appellant’s last known address on October 16, 2001, and the appeal to the Unemployment Appeals Commission was filed on November 6, 2001.
The Florida Unemployment Compensation law provides that the referee’s decision shall be final unless, within 20 days from the date of mailing of notice thereof to the parties’ last known addresses, an appeal is initiated to the Unemployment Appeals Commission. An appeal to the Commission was not filed within 20 days.

No evidence whatsoever, much less substantial, competent evidence, supports the referee’s finding that an “appeal to the Commission was not filed within 20 days.” The order should be reversed and the case should be remanded to the Commission for a decision on the merits.

A telephone bill received as an exhibit at the hearing corroborates unrebutted testimony that the fax call went through on November 2, 2001. Even uncorroborated testimony that mail has been sent or that a facsimile transmission has been made raises a presumption of delivery.

See In re Hairopoulos, 118 F.3d 1240, 1244 (8th Cir.1997) (“A letter properly addressed and mailed is presumed to have been delivered to the addressee.”); Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 446 (9th Cir.1967) (“There is a presumption of receipt after proper dispatch of a telegram analogous to letters properly mailed.”). We see no principled reason why a jury would not be able to make the same inference regarding other forms of communication — such as facsimiles, electronic mail, and in-house computer message systems — provided they are accepted as generally reliable and that the particular message is properly dispatched. See, e.g., United States v. Galiczynski, 44 F.Supp.2d 707, 714 (E.D.Pa.) (“The rebuttable presumption of service by mailing, or in this case, by fax, can be established by pointing to circumstantial evidence, such as evidence of standard operating office procedures or business practices regularly used concerning the mailing or faxing of documents by a party.”), aff'd, 203 F.3d 818 (3d Cir.1999); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex.App.1999) (“Admission of evidence showing a telephonic document transfer to the recipient’s current telecopier number gives rise to a presumption that notice was duly received by the addressee.”); SSI Med. Servs., Inc. v. State, 146 N.J. 614, 685 A.2d 1, 5-6 & n. 1 (1996) (discussing nature of evidence required to raise presumption of mailing and receipt for electronic mail).

Kennell v. Gates, 215 F.3d 825, 829 (8th Cir.2000). This presumption went unre-butted here. Nobody testified that the Commission did not receive the fax Ms. Mendelsohn testified she sent on November 2, 2001 (or even that Commission staff failed to date stamp it on November 2, 2001). Ms. Mendelsohn was the only witness who testified at the hearing.

For the foregoing reasons, I respectfully dissent.


author: MONACO, J.

text:
    Gary M. KALEITA, Appellant, v. Tawny R. SNIDERMAN, f/k/a Tawny R. Kaleita, Appellee.
    No. 5D02-12.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Rehearing Denied Aug. 1, 2003.
    Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Richard L. Mámele of Hutchison, Má-mele & Coover, P.A., Sanford, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellee.
   MONACO, J.

Gary M. Kaleita (“Kaleita”) appeals several rulings of the trial court concerning the custody of the minor child of the parties, and the calculation of support for that child, arising out of the dissolution of marriage of Kaleita and his former wife, the appellee, Tawny R. Kaleita n/k/a Tawny R. Sniderman (“Sniderman”). Sniderman cross appeals, but by virtue of the disposition of this case, the issues she raises are moot.

The final judgment of dissolution of marriage was rendered, pursuant to a marital settlement agreement, on January 4, 1999. Within a month Kaleita began filing motions seeking to enforce his rights under the agreement. A few weeks later he filed additional motions seeking to modify the agreement. In March of 1999, the parties then entered into a joint stipulation resolving all disputes stemming from the marital settlement agreement. The trial court promptly confirmed the stipulation.

Apparently, even the second settlement of this dispute was not enough for the parties. They almost immediately began filing motions either seeking to enforce the final judgment of dissolution of marriage and the joint stipulation, or to set aside or vacate or modify provisions of the marital settlement agreement and stipulation, or to accomplish some other result. It would serve no useful purpose to detail the multitude of motions and flurry of petitions filed by the parties. Suffice it to say that all of this squabbling eventually resulted in a trial on all of the pending issues, and a well-crafted final order by the trial court, entitled Order Resolving Pending Motions (the “Order”).

Despite the numerous claims of error asserted by Kaleita, there is only one part of the Order that should be amended. Kaleita complains about the trial court’s requirement that he must “contemporaneously confer and consult” with Sniderman “before making any decisions” that affect the child of the parties. He argues that the court abused its discretion by not asserting the word “major” before “decisions.” He asserts further that he could be held in contempt for making such routine decisions as which toothpaste the child might use, or which library books she might check out. Given the history of bickering and sniping between these parties, the trial court may well have been hesitant to put any limitation on the quality of child-rearing decisions to be encompassed by the Order for fear of encouraging even more acrimony. We are confident, however, that the trial court intended to require consultation regarding only major decisions, and therefore modify paragraph 15(3) of the Order by requiring Kaleita to consult with Sniderman with respect to major decisions. Beyond this minor matter, we find no abuse of discretion and no other error contained in the record.

AFFIRMED as MODIFIED.

GRIFFIN, J. and NICHOLS, III, A. W., Associate Judge, concur.


author: PER CURIAM.

text:
    Michael F. CANNOVA, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 5D03-1024.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Rehearing Denied Aug. 1, 2003.
    Jay J. Bartlett, and Raandi L. Morales of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appellant.
    Pamela S. Leslie, General Counsel, Marianne A. Trussell, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to the appellee’s confession of error, the Order Denying Respondent’s Motion to Dismiss and Issuing an Order of Taking, as to Parcels # 122, 126 and 194 is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

SHARP, W., GRIFFIN, AND ORFINGER, JJ., concur.


author: ALLEN, C.J.

text:
    John NEDEAU and Michael Gomez, Appellant, v. Tom GALLAGHER, in his official capacity as Chief Financial Officer of the State of Florida, and the State of Florida, Appellees.
    No. 1D02-1807.
    District Court of Appeal of Florida, First District.
    June 30, 2003.
    Rehearing Denied July 31, 2003.
    Cynthia S. Tunnicliff, Marc W. Dunbar and Stephen Spector of Pennington, Moore, Wilkinson, Bell & Dunbar, P. A., Tallahassee, for Appellant.
    Edwin R. Hudson and Laura Beth Fara-gasso of Henry, Buchanan, Hudson, Súber & Carter, P. A., Tallahassee, for Appellees.
   ALLEN, C.J.

The appellants challenge a final summary judgment rejecting their claim for recovery of certain administrative fees assessed under a plan of deferred compensation. The appellants contested the statutory authority for such assessments, which were made under the state’s contracts with the investment providers for the plan. However, the appellants lack standing to pursue this claim without the investment providers, and we therefore affirm the summary judgment.

The appellants participated in the Government Employees’ Deferred Compensation Plan under section 112.215, Florida Statutes. This statute charges the state Treasurer with various duties including the establishment and approval of such plans for deferred compensation with investment vehicles and providers, etc. E.g. § 112.215(4)(a), Fla. Stat. In accordance with this procedure the state entered into contracts with the qualifying investment providers, and those providers then entered into separate contracts with the employees who chose their particular investment programs for deferred compensation.

The statute also empowers the Treasurer to segregate funds of deferred compensation, which are to be held and administered in accordance with the plan. § 112.215(4)(b) and (d), Fla. Stat. The statute further permits the Treasurer to delegate administrative responsibilities or contract with a private entity for such functions, with the provision of compensation for these services. § 112.215(4)(c), Fla. Stat. This was done, with several administrative functions being performed by a state Office of Deferred Compensation and recordkeeping services performed by a private entity. The state’s contracts with the investment providers recognized this arrangement, and the contracts specified the amounts of two monthly charges which the providers were obligated to pay for these services. Such amounts were then apparently encompassed within the greater administrative charges which the providers imposed on the participating employees, under the individual contracts between the providers and the employees. However, the enrollment forms clearly advised the employees of the administrative charges which the providers were imposing for participation in the selected investment programs.

After electing to voluntarily participate and enrolling in the individual programs through their chosen providers, the appellants later filed the action which led to the summary judgment now being appealed. The investment providers were not made parties, and the action was not brought on behalf of the providers. Instead, the action was brought against the Treasurer and the State of Florida with the appellants seeking to compel these parties to remit the disputed assessments directly to the appellants, rather than to the investment providers.

The position which the appellants urged below and continue to argue on appeal is predicated on a contention that the appel-lees had no statutory authorization to require payment of the disputed administrative fees. In the summary judgment order the trial court rejected that contention, determining that the authority to impose such administrative assessments against the providers inheres in the statutory authority to contract for the provision of administrative services. Alternatively, the court also determined that the appellants waived their challenge and were estopped from asserting the claim, in that they voluntarily participated in the investment programs by executing enrollment forms which identified the fees being charged by the providers, and with the appellants accepting the benefits of such voluntary participation. Although the appellants challenge these determinations, resolution of this appeal does not necessitate review as to these rulings on the merits. Instead, the denial of the appellants’ claim is upheld because it is clear on the record that the appellants did not have standing to pursue this claim.

Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation. E.g. Peregood v. Cosmides, 663 So.2d 665 (Fla. 5th DCA 1995); Equity Resources, Inc. v. County of Leon, 648 So.2d 1112 (Fla. 1st DCA 1994). The interest cannot be conjectural or merely hypothetical. Peregood. Furthermore, the claim should be brought by, or on behalf of, the real party in interest. Kumar Corporation v. Nopal Lines Ltd., 462 So.2d 1178 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985). The appellants did not satisfy these requirements, as their challenge is addressed to the issue of statutory authorization for the contested fees assessed in the contracts between the state and the investment providers. Even if the appellants were able to prevail on this claim, it does not appear that this would invalidate the providers’ separate contracts with the appellees. A successful challenge to the contested amounts would therefore not necessarily benefit the appellees, who would presumably still be obligated for the administrative fees in their contracts with the providers. The claim which the appellants presented is thus not one in which they could be granted relief, and their interest is too conjectural upon which to predicate standing. As in Media Placement Incorporated v. Combined Broadcasting, Incorporated, 638 So.2d 105 (Fla. 3d DCA 1994), the appellants’ lack of standing was a fatal deficit and we therefore uphold the adverse summary judgment.

The appealed order is affirmed.

BENTON and HAWKES, JJ., CONCUR.

       The case was originally filed and the summary judgment entered as to the Treasurer and the State of Florida. The style of the case has been changed in this court to replace the “Treasurer” designation with “Chief Financial Officer” to comport with the change in Art. IV, § 4, Florida Constitution.


author: SCHWARTZ, Chief Judge.

text:
    Jeffrey Wade WALLACE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2630.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Rehearing Denied Aug. 1, 2003.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Frank J. Ingrassia (Fort Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   SCHWARTZ, Chief Judge.

After a jury, on overwhelming, essentially undisputed evidence, and over a rather specious defense of insanity, found Wallace guilty of one count of first degree murder and four counts of attempted first degree murder and his convictions and consecutive life sentences were affirmed in Wallace v. State, 766 So.2d 364 (Fla. 3d DCA 2000), review denied, 786 So.2d 581 (Fla.2001), the defendant filed the present 3.850 motion for post conviction relief. The trial court, in an extensive opinion, denied the motion and we affirm.

Although Walked asserted numerous grounds, mostly related to alleged ineffective assistance of trial counsel, only one set of contentions deserves analysis and discussion. It is the claim, raised for the first time in the post-conviction motion, that a statement of the trial court that Wallace and counsel could not confer during a lunch recess taken while he was on the witness stand amounted to a deprivation of his sixth amendment right to counsel which, even in the admitted absence of any cognizable prejudice, constituted an irremediable defect in the trial requiring a new one. Essentially because neither the record of the trial nor any other showing made by the defendant establishes or even intimates that either counsel or the defendant had any desire to consult during the critical time, so that his sixth amendment rights were not affected, much less diminished by the court’s observation, we disagree.

The defendant’s primary reliance is on the Supreme Court’s decision in Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), which indeed stated that a trial court’s unjustified interference with the right to confer with counsel during a constitutionally recognized period during trial constituted a so called “structural defect” which required reversal even though no prejudice, stemming either from the contents of the forbidden consultation or the ultimate outcome of the trial had resulted. We are inclined to believe, moreover, unlike Perry, in which a fifteen minute recess during the course of the defendant’s examination was held not to reach constitutional dimensions, that the lunch recess in this case did so qualify. See Bova v. State, 410 So.2d 1343 (Fla.1982); Amos v. State, 618 So.2d 157 (Fla.1993). Neither of these conclusions however even comes into play in this case in the absence of any demonstration that anything that the trial court did affected anything, including the exercise of sixth amendment rights, that Wallace or his counsel did or wanted to do.

This court expressed just this holding in Recinos v. State, 420 So.2d 95 (Fla. 3d DCA 1982)(rehearing en banc), which involved the same circumstances and contentions:

[i]n this case, the erroneous statement of the law was not shown to have eonstitut-ed or led even to the sine qua non of any kind of error, harmless or otherwise: the existence of an allegedly adverse “ruling.” This is because ... there is no indication that counsel or Recinos had any desire further to speak to the other which was precluded by the court’s announcement. Under these circumstances, the remark in question was no more than an academically incorrect observation about the law. We know of no instance in which a statement, however textually erroneous, which has no causative impact on what actually happened or did not happen below, can justify a reversal. We ... believe that, in this context, the answer to Bishop Berkeley’s conundrum about the tree and the forest is that the court’s incorrect comment meant nothing.

Recinos, 420 So.2d at 98. Accord Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983) ; Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981)(affirming Bailey v. Redman, 502 F.Supp. 313 (D.Del.1980)), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982) see also People v. Stewart, 161 Ill.App.3d 99, 103, 112 Ill.Dec. 655, 514 N.E.2d 51, 54 (1987)(“[T]here is no suggestion in the record that defendant desired, attempted, or was prevented from contacting counsel by the authorities at the jail. Under these circumstances, defendant’s sixth amendment claim must fail because there is no showing defendant was deprived of his right to the assistance of counsel.”), appeal denied, 118 Ill.2d 550, 117 Ill.Dec. 230, 520 N.E.2d 391 (1988); Annot., 95 A.L.R. Fed. 601, 619 (1989).

Although these cases predate Perry, it is clear that the application of the principle they enunciate is unaffected by that decision. It is vitally important first to observe that in the Perry case itself, in direct contrast to the cited eases and to this one, the issue was directly raised by defense counsel who unsuccessfully moved for a mistrial on the ground that the court’s instruction erroneously interfered with his client’s rights. See Perry, 488 U.S. at 274, 109 S.Ct. at 596. That Perry does not affect eases in which the issue was not presented is conclusively demonstrated by several post Perry cases which squarely so hold. Thus, in State v. Baldridge, 857 S.W.2d 243 (Mo.App. W.D.1993) the court said:

Defendant argues that she was denied her right to assistance of counsel when the trial court prohibited her consulting with her attorney during an overnight recess. After Defendant testified on direct examination, the following exchange transpired concerning ' Defendant’s cross-examination:
(Proceedings held at bench.)
THE COURT: What do you propose:
[prosecutor]: I think we have to finish in the morning because I am going to be awhile, and I think everybody is tired. I will take at least a half an hour.
THE COURT: If we took a break, we could go until later.
[prosecutor]: Judge, I am going to be a while. It is an awful important part of the case, and we have worked a long time today. I feel like we should wait and finish off first thing in the morning.
THE COURT: That means she can’t talk to you now.
[defense counsel]: That’s fine.
THE COURT: It will be just like I told Driskill. Is that what you want to do?
[prosecutor]: That’s fine.
THE COURT: Is that what you want to do?
[defense counsel]: Sure.
The trial judge then addressed Defendant, instructing her that she would not be able to talk to her attorney overnight, in response to which she stated, “Okay.”
Defendant argues that the trial court’s action in denying her contact with counsel for the sixteen hour overnight recess violated the principles set forth in the United States Supreme Court’s decision of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). The Court in Geders held that a trial court’s order directing a defendant not to consult with his or her attorney during a regular overnight recess deprived the Defendant of the constitutionally protected right to assistance of counsel in violation of the sixth amendment to the United States Constitution. Id. Defendant properly cites the holding contained in Geders, but that case is distinguishable from the instant case. In Geders, the Defendant’s counsel forcefully resisted the trial court’s action of prohibiting contact with his client, making several objections to the ruling. The trial court overruled the objections, disregarding counsel’s evident desire to consult with his client during the recess. Id. at 83 n. 1, 96 S.Ct. at 1333 n. 1. Thus, in Geders there was an indication that absent the court’s instruction, Defendant would have met with his counsel.
In the instant ease, counsel failed to make any objection to the denial of contact, and in fact he orally acceded to the trial court’s action. Defendant has failed to present any evidence which demonstrates that she would have met with counsel absent the ruling. Defendant correctly points out that she is not required to demonstrate prejudice to prevail on this point. See Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). However, she is required to demonstrate that she was deprived her right to consult with her attorney, which she has failed to do in this case. See Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982)(court found no deprivation of right to counsel where Defendant was barred from discussing ongoing testimony with anyone overnight because no objection was made and there was no showing that Defendant would have conferred with counsel but for the order).

Baldridge, 857 S.W.2d at 252; accord Commonwealth v. Glashauser, 8 Pa. D. & C. 4th 325, 336-337 (Pa.Com.Pl.1990)(“Es-sentially [Commonwealth v.] Scoleri [432 Pa. 571, 248 A.2d 295 (1968)] and Redman support the view that there can be no violation of the right to counsel where the record fails to demonstrate an actual deprivation .... Defense counsel takes the position that prejudice is to be assumed solely from the fact that the instruction was given. It is obvious that such an absolute position is not in keeping with current legal thought as set forth in Perry and Bailey. ... Where a trial court instructs a defendant not to discuss his testimony with anyone during an overnight recess, and such instruction is not objected to, nor is there any indication that counsel wanted to speak to the defendant, there can be no impermissible infringement on the right to counsel.”); see also Haney v. State, 603 So.2d 368, 378 (Ala.Crim.App.1991)(no sixth amendment deprivation occurred when counsel was incarcerated for contempt during overnight break in defendant’s testimony, “No objections were made to the proceedings and at no time, after the trial resumed, did either defense counsel or appellant suggest to the trial court that they had wished to confer during the overnight recess or make it known that counsel was prevented because of incarceration from performing any defense function. This issue is raised for the first time on appeal.... In order for appellant to prevail on this issue, she must demonstrate that the action of the trial court deprived her of a constitutional right which she sought to exercise. See Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). However, there is no evidence that she made any attempt to confer with incarcerated counsel or had any desire to do so. There is also no evidence that the incarceration of counsel interfered, in any manner, with the conduct of the defense or prevented counsel from performing any act in reference to the defense that he desired to perform.”), aff d sub. nom. Ex parte Haney, 603 So.2d 412 (Ala.1992). We adopt the succinct concluding expression of the Alabama court that because there is “no evidence that appellant was deprived of a right that [he] sought to exercise,” 603 So.2d at 378, the appellant’s contention must be rejected.

Affirmed.

      . The transcript of the trial reveals the following:
      THE COURT: Okay. We are going to take a lunch break at this time, ladies and gentlemen. I’ll give you an hour and 15 minutes and ask you to please be back in the jury room at 1:10. Remember our cautionary instruction. Be back in the jury room at 1:10 and we'll take up the cross examination of the witness at that time so you are excused.
      (Jury exits the courtroom).
      The jury is outside the courtroom having been excused for lunch. We are going to take a recess until 1:10 and Mr. Wallace, I remind you again that you're still in the process of testifying, therefore, you are not to discuss with anyone including counsel anything that you have testified to or anything pertaining to your case. You understand that?
      THE WITNESS: Yes sir.
      THE COURT: All right. Then we will break for lunch until 1:10
      THE COURT: We are still on the defendant, Jeffrey Wallace and we are on cross examination.
      THE COURT: Please be seated everyone. Parties are present. Ready to bring in the jury?
      [defense counsel] MS. DOCHERTY: Yes, Judge.
      THE COURT: State.
      [prosecutor] MR. MADRUGA: Yes, your Honor.
      THE COURT: Okay, then please bring in the jury.
      COURT DEPUTY: Jury is present, your Honor.
      THE COURT: Thank you. Please be seated ladies and gentlemen.
      At this particular time we are going to allow the state the opportunity to cross examine the witness.
      [prosecutor] MR. MADRUGA: Thank you, your Honor.

      . Such as an overnight recess. See Geders v. United State, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

      . We think the district court properly concluded that any restriction upon a defendant’s access to his counsel during a recess, whether the recess be extended or brief, is constitutionally impermissible; and, further, that a petitioner such as Stubbs is not required to demonstrate prejudice. However, there is another factor to be considered in determining whether or not such a petitioner is entitled to habeas corpus relief, and that is whether the action of the trial judge did, in fact, deprive him of his right to counsel. In other words, we think it was incumbent upon the petitioner to show that he desired to consult with his attorney, and would have consulted with him but for the restriction placed upon him by the trial judge.
      In Geders the record disclosed that counsel for the defendant had vigorously objected to the action of the court denying him access to his client during the recess. Here, on the other hand, there was no objection by either counsel or the petitioner to the trial court's admonition nor does the record disclose that either the attorney or the petitioner at any time requested permission for a consultation.
      We agree with the Third Circuit that in order to obtain relief a petitioner must show a "deprivation” of his Sixth Amendment rights by demonstrating that he wanted to meet with his attorney but was prevented from doing so by the instruction of the trial judge. Since, in this case, Stubbs has not demonstrated such a "deprivation”, it was error to grant him relief. Accordingly, the order of the district court granting habeas corpus relief is reversed.

      . ( [W]hile it) is one thing to say that a defendant who has been deprived of the guiding hand of counsel need not demonstrate the prejudicial effect of that deprivation; it is quite another to say that he need not show that the challenged order deprived him of counsel he would otherwise have received.
      Quoting Bailey, 502 F.Supp. at 316.

      . Myles v. State, 602 So.2d 1278 (Fla.1992), quashing Myles v. State, 582 So.2d 71 (Fla. 3d DCA 1991), upon which Wallace heavily relies, is not contrary to this holding. This is so because the trial judge’s ruling in that case directly and, as the Supreme Court held, improperly interfered with the contact between the defendant and his attorney during the examination of a vital witness against him. Both this court and the Supreme Court therefore considered the correctness of the ruling on its merits and only the Supreme Court dissent even considered the issue which we find decisive here.


text:
    Frederick McCRAY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D03-824, 3D02-3433.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Bennett H. Brummer, Public Defender and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Jason Helfant, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

We find no error in the determination that the defendant violated the terms of his community control order and therefore affirm the resulting convictions. As to the sentence, the record shows that the trial judge rejected recommendations from the prosecution and community control officer for more lenient treatment and instead imposed a sentence of three years in state prison under the Y.O.A. because he said, he had warned McCray about the severe consequences of his violating his community control when it was imposed, and felt obliged to “keep [his] word.” The transcript of the earlier proceeding reveals, however, that no such warning was given. In these circumstances, in which it appears that the sentence actually imposed resulted from a misapprehension of fact, we deem it appropriate to vacate the sentence and remand for resentencing in the light of this conclusion and other pertinent circumstances. See Scott v. State, 484 So.2d 100 (Fla. 1st DCA 1986); cf. Royster v. State, 691 So.2d 1196 (Fla. 4th DCA 1997); Smith v. State, 664 So.2d 72 (Fla. 3d DCA 1995); Vezina v. State, 644 So.2d 602 (Fla. 1st DCA 1994).

Affirmed in part, vacated in part and remanded.


text:
    Travis Anton SNOW, Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 3D03-1032.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Rehearing Denied Aug. 1, 2003.
    Paul Morris, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General and Michael Neimand and Melissa Vaughan Rubin, Assistant Attorneys General, for respondent.
    Before SCHWARTZ, C.J., and GODERICH, J„ and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

This application for writ of habeas corpus on the ground of ineffective assistance of appellate counsel in Snow v. State, 800 So.2d 807 (Fla. 3d DCA 2001), review denied, 819 So.2d 139 (Fla.2002), is based on counsel’s failure to raise a claim of vindictiveness in sentencing under the rule of Wilson v. State, 845 So.2d 142 (Fla.2003). We deny the application.

The defendant was charged with first degree murder and attempted first degree murder, and convicted of second degree murder. The vindictiveness claim arises because he was sentenced to thirty years in prison, in excess of a seventeen year sentence offered by the state before the trial in return for a guilty plea to what would have then been a reduced charge of second degree. We reject this claim because the record shows that the action of the trial judge with respect to the plea, the only pertinent issue in resolving a Wilson contention, did not exceed the conduct sanctioned by law. In this respect, the record shows that prior to trial, the following occurred:

THE COURT: Mr. Snow as you heard, the State offered second degree murder and seventeen years. You have discussed this with your lawyer. I am not trying to sell anything. I am just trying to get it on the record.
You discussed this with your lawyer and you understand if you are convicted [of first degree murder], you get life without parole.
Do you understand that?
DEFENDANT: Yes.
THE COURT: Have you any questions about this?
DEFENDANT: Not at this moment, sir.

It seems clear that the judge’s statements, which, without endorsement, simply stated the terms of the prosecutions’s plea offer, and the maximum sentencing consequence of a conviction of the crime with which he was then charged, were entirely permissible. As the Fifth District said in Martin v. State, 816 So.2d 187, 189-191 (Fla. 5th DCA 2002)(footnotes omitted), cause dismissed, 823 So.2d 124 (Fla.2002), 835 So.2d 267 (2002):

As in all such cases, what the record reveals about what the trial judge said or did is critical. In this case, immediately prior to trial, the state offered Martin a sentence of 17 years, if he would testify against his co-defendant, James. The trial judge previously had said he would not become involved in the plea negotiations in any way. He also refused to indicate his “feelings” as to what he thought would be an appropriate sentence for Martin. Defense counsel stated she felt Martin would be convicted and that he would be facing a true life sentence.
The judge then engaged in the following colloquy:
THE COURT: The state has offered seventeen years. If you want to accept the seventeen years that’s fine. If you don’t want to accept the seventeen years, that’s fine. I need to know you understand, on the downside as I’ll say it, if you’re acquitted, you walk out and I hope you never show back up here again and you go on with your life, enjoy. If you’re convicted, as your attorney has told you, you face a true life sentence. This is a first degree felony. How old are you?
MR. MARTIN: Twenty-three.
THE COURT: Twenty-three years old. You’re a young man. If you’re acquitted, have a wonderful life, it goes on. If you’re convicted, [the prosecutor] has already indicated he’ll be seeking a life sentence. Is that correct?
[PROSECUTOR]: Yes.
THE COURT: Seeking life sentence. Life in the state of Florida means the rest of your life for all practical purposes, will be spent in the prison system. I want to make sure you understand that.
MR. MARTIN: Yes.
THE COURT: All bets are off at that stage. In our society you’re placed in prison. I’m not saying this to scare you or to force you into anything. I’m making sure you consider it.
MR. MARTIN: Yes.
THE COURT: It’s your life. You know it better than anybody as far as the decision you have to make. I want to make sure you understand right now the offer is seventeen years.
MR. MARTIN: Yes.
THE COURT: If you want to accept that, you have every right to accept it or reject. If you reject, if you go to trial, you win, you walk out, of here a free man. You still have two other charges, aggravated fleeing and eluding and felony driving while license revoked. Those are second and third degree felonies, some what minor compared to the life felony. As I tell people, if you’re acquitted, God bless you, go out of here. If you’re convicted, you may face a true life sentence. Do you understand that?
MR. MARTIN: Yes.
THE COURT: Take a second. Talk with your attorneys one last time.
[DEFENSE COUNSEL]: He indicates he wants to go to trial.
THE COURT: You want to go to trial. You’re rejecting the plea offer by the State?
MR. MARTIN: Rejecting the plea offer.
* * *
[I]n this case, the trial judge removed himself from the plea bargain process. He neither urged Martin to accept nor reject the plea bargain. He gave no indication what his sentence would be and expressly declined to do so. He did make sure that Martin understood the terms of the plea bargain, and he explained the maximum punishment for the crime-life-was what the state was seeking. And, he made sure Martin made the decision after consultation with his attorneys.
In so doing, we think the trial judge carried out his judicial responsibilities as well as he could. He crossed the minefield without error. To hold that the presumption of vindictiveness arose based on this record would place trial judges in an impossible quandary. The plea bargain offered by the state would become the presumptive sentence, above which the trial judge could not go without carrying the burden of showing lack of vindictiveness. It would limit the trial judge’s discretion in sentencing to a degree not required by Warner.

In effect, Martin validates Judge Soron-do’s observation in Prado v. State, 816 So.2d 1155, 1157 (Fla. Bd DCA 2002)(Sorondo, J., concurring):

I do not believe that Warner forbids a judge from becoming involved in a discussion wherein the accused is asked whether he is aware of the state’s pending plea offer and his or her maximum exposure if convicted at trial. Indeed, I understand why trial judges go out of their way to determine whether criminal defendants have been advised of any and all plea offers prior to trial. A recurring post-conviction claim is that trial counsel was ineffective in that he or she failed to communicate a plea offer made by the state or failed to advise the defendant of his full exposure if convicted at trial. In order to address this potential problem, many trial judges have adopted the practice of asking the attorneys immediately before trial, in the defendant’s presence, whether a plea offer has been extended and whether the same has been communicated to the defendant. In fact, the trial judge in the present case did just that. Immediately after calling the case and allowing counsel for the state and defense to identify themselves, the court asked defense counsel if a plea offer had been made. Defense counsel advised the court of the state’s offer and correctly identified his client’s maximum exposure if convicted. The judge then asked defendant: “You still don’t want the four years?” The defendant responded: “No, no.” This discussion, consuming no more than two pages of the transcript, accomplished the goal of establishing a record that the defendant was fully apprised of the plea offer, and the full breadth of his exposure if convicted. In my judgment, Warner does not forbid a brief inquiry on this subject.

Prado, 816 So.2d at 1158 n. 2. Accord Bell v. State, 847 So.2d 558 (Fla. 3d DCA 2003); Richardson v. State, 809 So.2d 69 (Fla. 2d DCA 2002); Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003). Compare Wilson, 845 So.2d at 158; Nairn v. State, 837 So.2d 519 (Fla. 3d DCA 2003). Cf. also Smith v. State, 842 So.2d 1047 (Fla. 3d DCA 2003)(plea offer made by trial court itself). Because therefore, the claim of vindictive sentencing has no merit, appellate counsel could not have been ineffective by failing to raise it.,

Habeas Corpus denied.

      . The court went on to say:
      In Richardson v. State, 809 So.2d 69 (Fla. 2d DCA 2002), our sister court ruled in a similar case where the trial court was not involved in plea negotiations and the defendant rejected the plea offer, that no presumption of vindictiveness arose when the defendant received a longer sentence than was offered by the plea bargain. The record revealed no affirmative reason for the longer sentence, but it was within the guidelines.
      We agree with the Richardson court, which said:
      While there are cases recognizing the vindictiveness challenges when the judge has been involved in the plea negotiations, this critical fact is not present in the record of this case. In the absence of judicial involvement in the plea negotiations, the burden was on [the defendant/appellant] to prove actual vindictiveness on the part of the sentencing judge, a burden he has not met.
      809 So.2d at 70.
      Since the trial judge in this case, as in Richardson, was not involved in the plea negotiations nor did he in any way coerce or threaten Martin if he elected to go to trial, no burden to disprove vindictiveness arose. Rather, Martin failed to meet his burden of showing the trial judge acted with actual vindictiveness in imposing the sentence.

      . It may be suggested that in a case such as this one, a disparity between the plea offer and the actual sentence, since it may not be "presumed” to be the result of vindictiveness, should instead be "presumed” to be attributable to the constitutionally permissible principle that a sentencing court is not bound by and the defendant is not entitled to the terms of a rejected prosecution plea offer. See Frazier v. State, 467 So.2d 447 (Fla. 3d DCA 1985), pet. for review dismissed, 475 So.2d 694 (Fla.1985).

      . While we have no doubt of the correctness of our conclusion that the trial judge’s participation in this case was acceptable, we cannot but express our reservations about the desirability even of that limited role. In this connection, we point out that one of the rationales for permitting a colloquy such as this one, to place on the record, see Prado, 816 So.2d at 1158 n. 2 (Sorondo, J., concurring), the terms of the proposed, but rejected, plea offer and the maximum permissible sentence upon conviction may (and should) be accomplished in several alternative ways. For example, the judge may simply ask counsel in the presence of the defendant (and on the record) about the status of the negotiations. Indeed, defense counsel "for his own protection” often does so even without prompting by the trial court. Since the trial judge’s participation is therefore not necessary, it is almost impossible to avoid the thought that where she does participate, it does nothing but imply the trial court’s approval of the plea offer and her desire that it be accepted. Thus, any action by the trial court in the face of a prosecution plea offer, which, as the court should know, has been rejected, is fraught with danger. This is to suggest that the danger may be completely obviated by the court's not being involved at all.
      Moreover, touching an aspect of the subject which has not yet been explored but is certainly on the legal horizon, non-participation would avoid the possibility of a defendant's later contention that an accepted plea offer was involuntary as a result of judicial coercion.


text:
    Alfredo NARBONA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Garrison Protective Services of Florida, Inc., Appellee.
    No. 3D03-332.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Rehearing and Clarification Denied July 30, 2003.
    Alfredo Narbona, for appellant.
    John D. Maher (Tallahassee), for appel-lee.
    Before GREEN, SHEVIN and WELLS, JJ.
   PER CURIAM.

As there is substantial, competent evidence to support the finding that the appellant voluntarily left his employment without good cause attributable to his employer when he remained away from work longer than his scheduled leave without informing his employer of his status, we affirm the order disqualifying him from receiving unemployment benefits. See e.g., Garcia v. AT & T Communications, Inc., 575 So.2d 730, 731 (Fla. 3d DCA 1991) (affirming the finding that appellant was not entitled to unemployment benefits where she requested a six-month leave of absence and was informed that reemployment would be dependent on position availability; employee voluntarily left employment and did not have a position upon her return) (quoting Slusher v. State Dep’t of Commerce, 354 So.2d 450, 451 (Fla. 1st DCA 1978) (“Although the claimant’s reason for leaving may be considered a good personal reason, it cannot be considered attributable to the employer.”)). See also Kacsir v. State Unemployment Appeals Comm’n, 456 So.2d 528 (Fla. 3d DCA 1984) (reviewing court may not overturn hearing officer’s findings of fact which are supported by competent, substantial record evidence).


author: KLEIN, J.

text:
    Takila PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3141.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Aug. 22, 2003.
    John G. George of John G. George, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

This case arises out of the death of a fourteen-month-old child who had been left in the care of appellant for several days. We affirm appellant’s conviction of manslaughter, concluding that the trial court did not err in allowing the state to strike jurors based on the explanation that the state wanted jurors who were more educated.

Appellant argues that the state, when asked for a race-neutral reason as to why it was striking certain jurors, improperly used lack of education as a justification. He contends that lack of education beyond high school could be used as a pretense to strike members of minorities. In St. Louis v. State, 584 So.2d 180, 182 (Fla. 4th DCA 1991) we reversed where the state had struck a juror and given the explanation that it wanted a more educated juror, but had not inquired about the juror’s education, explaining:

[Tjhere is nothing in the facts of this case which would indicate that a particular level of education was essential to determine the issues presented. This was an armed robbery/murder with no complicated fact pattern to unravel. Thus, a review of the record indicates to us that the reason advanced by the prosecutor was a mere pretext.

Unlike the situation in St. Louis, the state in this case asked the relevant juror questions about her education, and also asked almost all other prospective jurors about their education. The state’s reason was that this case involved complex medical and DNA evidence regarding the cause of death, which was the key issue. Although the DNA evidence turned out not to be as complex as it would be in the typical case, because it was primarily to the effect that testing for DNA had been unsuccessful, the medical testimony as to the cause and time of death could be characterized as reasonably complex.

Although we agree with appellant’s argument that education should not be used as a pretext for striking minority jurors, our review of the record in this case leads us to conclude that the trial court’s acceptance of the explanation as being genuine is not clearly erroneous.

We have considered the other issues raised by appellant and find them to be without merit. Affirmed.

FARMER, C.J. and SHAHOOD, J., concur.


text:
    James SPRATLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4964.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    James C. Spratling, pro se.
    Charlie Crist, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

James Spratling is appealing the circuit court’s denial of his petition for writ of habeas corpus. We affirm as the appellant presents no basis on appeal to overturn the circuit court’s decision, and the trial court’s basis for denying the petition is supported by Florida law. The appellant’s claims in his habeas petition are claims cognizable under rule 3.850, Florida Rules of Criminal Procedure. It is well settled that a petition for habeas corpus may not be used to collaterally challenge a criminal judgment or sentence and that rule 3.850 has superceded habeas corpus as the means of collateral attack of a judgment and sentence in Florida. See, e.g., Fla. R.Crim. Pro. 3.850(h); White v. Dugger, 511 So.2d 554 (Fla.1987); Robbins v. State, 564 So.2d 256 (Fla. 1st DCA 1990). The circuit court correctly noted that even if treated as a rule 3.850 motion, appellant’s claims would have been procedurally barred as untimely. Affirm.

WOLF, C.J., ERVIN and BENTON, JJ., concur.


text:
    Otis Franklin WILLIAMS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D02-1586.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    Otis F. Williams, pro se.
    Charlie Crist, Attorney General; Philip A. Fowler, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant challenges an order dismissing his petition for writ of mandamus which among other things sought review of a disciplinary action resulting in loss of gain time. The circuit court dismissed appellant’s action for failure to comply with section 58.085(2), Florida Statutes, the Prisoner Indigency Statute, regarding waiver of prepayment of court costs and fees for indigent prisoners. After the trial court issued its order, the supreme court in Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d —, 2003 WL 1987971 (Fla. May 1, 2003), motion for reh’g filed, No. SC00-2512 (Fla. May 21, 2003), held that a prisoner who challenges loss of gain time as a result of a disciplinary action (a collateral criminal proceeding) is exempt from the requirements of the Prisoner In-digency Statute and is instead subject to the requirements of section 57.081(a), Florida Statutes (2001).

We, therefore, reverse and remand for the trial court to conduct further proceedings consistent with the dictates of Schmidt.

WOLF, C.J., ERVIN and BENTON, JJ., concur.


text:
    Michael A. FALANA, Appellant, v. James CROSBY, Secretary, Department of Corrections, Appellee.
    No. 1D03-1581.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    Appellant, pro se.
    Louis A. Vargas, Department of Corrections, Tallahassee, and Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s June 10, 2003 order, and finding that the notice of appeal was not timely filed, the appeal is hereby dismissed as untimely.

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    Roger Dale BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5011.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    Roger Dale Brooks, pro se, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001).

WOLF, C.J., ERVIN and BENTON, JJ., concur.


text:
    Afghari U. BOLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2252.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.
    Afghari U. Boler, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bartley v. State, 817 So.2d 1065 (Fla. 5th DCA 2002).

THOMPSON, ORFINGER and MONACO, JJ., concur.


text:
    Tony Lee NIX, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2152.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.
    Tony Lee Nix, Sneads, pro se.

      No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002).

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


text:
    C.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-529.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    David HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3170.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    David C. Harden, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Melanie J. WHEELER, etc., Appellant, v. Micheal KURTZ, Appellee.
    No. 5D02-3013.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.

      Roland A. Sutcliffe, Jr., and Katherine E. McKinley of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellant.
    Henry W. Jewett, II, and Christopher J. Konicek of Rissman, Weisberg, Barrett, Hurt, Donahue & McClain, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Acree v. Hartford South Inc., 724 So.2d 183 (Fla. 5th DCA 1999).

GRIFFIN, THOMPSON, JJ., and BARLOW, Associate Judge, concur.


text:
    Christopher HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3373.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Christopher Hall, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Demetrius WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2084.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Demetrius Wallace, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 958.14, Fla. Stat. (1995); Young v. State, 697 So.2d 75 (Fla.1997); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996).

STEVENSON, TAYLOR and HAZOURI, JJ., concur.


text:
    M.H., Appellant, v. STATE of FLORIDA, Appellee.
    No. 4D02-3462.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2003.
    Rehearing Denied Aug. 22, 2003.
    Carey Haughwout, Public Defender, and Gregory Morse, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant argues that the trial court erred in denying his motion to suppress statements he made to a school official in the presence of a law enforcement officer employed as a school resource officer. We affirm.

The charges involved an altercation with another student at a middle school. Appellant, who was in the seventh grade, was taken by the resource officer to the office of a school official who questioned appellant in the presence of the resource officer. All questioning was done by the school official except that the resource officer asked one question at the end.

The trial court suppressed the answer appellant gave to the one question asked by the resource officer because appellant had not been given warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant argues that all of his statements should be suppressed, not simply the one elicited by the resource officer. We disagree. The mere presence of a law enforcement officer, when a student is being questioned by a school official, does not amount to a custodial interrogation requiring Miranda warnings. In Interest of J.C., 591 So.2d 315 (Fla. 4th DCA 1992). The trial court was accordingly correct in suppressing only appellant’s statements made in response to the question asked by the police officer.

We have considered the other issues raised by appellant and find them to be without merit.

GUNTHER and TAYLOR, JJ„ concur.


text:
    Derrick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1630.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Derrick Johnson, pro se.
    Charlie Crist, Attorney General and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Hollingsworth v. Brown, 788 So.2d 1078 (Fla. 1st DCA 2001).

KAHN, VAN NORTWICK and BROWNING, JJ„ concur.


author: PLEUS, J.

text:
    NORTHPORT HEALTH SERVICES, etc., Appellant, v. ESTATE OF Vervil M. RAIDOJA, etc., Appellee.
    No. 5D03-898.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    Dale R. Sisco of Dale R. Sisco, P.A., Tampa, for Appellant.
    William R. Daniel of Morgan, Colling & Gilbert, P.A., Tampa, for Appellee.
   PLEUS, J.

In this nursing home abuse case, we affirm an order denying the nursing home’s motion to abate and to compel arbitration. After the decedent’s estate filed suit against the nursing home and its parent company, the nursing home filed a motion to abate and to compel arbitration pursuant to an arbitration provision in an admission agreement between the nursing home and the decedent.

The order on appeal states:

Although public policy favors the enforcement of arbitration agreements, this one is fatally flawed. Another paragraph of the same Admission Agreement states that the laws of the state of Alabama shall control interpretation, construction, and enforcement of the contract, and that venue shall be proper exclusively in Tuscaloosa County, Alabama. If an arbitration clause, such as this one, calls for arbitration that is to take place in a foreign jurisdiction, Florida courts cannot, over objection, compel arbitration. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982), see also Damora v. Stresscon Intl., Inc., 324 So.2d 80 (Fla.1976).

The admission agreement states that “Tuscaloosa County, Alabama shall be the sole and exclusive venue for any litigation, special proceeding, or any other proceeding between the parties that may arise out of, in connection with, or by reason of this Agreement.” We agree with the circuit court that the arbitration provision is not enforceable because the agreement requires arbitration to occur in another state. Damora; Post Tensioned Engineering.

Because of our affirmance on this issue, we need not address the additional issues raised by the parties.

AFFIRMED.

SHARP, W., and PETERSON, JJ„ concur.


author: GREEN, J.

text:
    Hector Jose BARAHONA, Appellant, v. KLOSTER CRUISE LTD. d/b/a Norwegian Cruise Line, Appellee.
    No. 3D01-3560.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.

      J.H. Zidell, for appellant.
    Mase & Gassenheimer, P.A., and Daniel S.Farkas, and Rachel S. Cohen, for appel-lee.
    Before SCHWARTZ, C.J. and GREEN and WELLS, JJ.
   GREEN, J.

Hector Jose Barahona, a former seaman, appeals a final summary judgment in favor of Kloster Cruise LTD d/b/a Norwegian Cruise Lines (“Norwegian”) in this Jones Act case for failure to treat and failure to provide maintenance and cure. We reverse the final summary judgment on the issue of failure to treat but affirm it on the issue of failure to provide maintenance and cure.

Barahona began working for Norwegian aboard the M/S Seaward in 1991 as a cleaner and assistant linen keeper. In 1995, Barahona sought the attention of the ship’s physician for a rash he developed on his arms and head. The physician diagnosed his condition as psoriasis.

Initially, the ship’s physician prescribed oral steroids and ointment for Barahona’s condition. When Barahona’s symptoms failed to improve, the physician referred Barahona to a specialist in Barbados who also prescribed ointment. After the ship returned to Miami, Barahona received further treatment for the psoriasis. Norwegian paid for the cost of his treatment, food, and lodging during this time. When he returned to work, Norwegian provided Barahona with ointment and permitted him to sunbathe each day, as sunbathing was recommended for his condition. Bara-hona left the M/S Seaward in July of 1995 because he had obtained resident alien status and wanted to spend more time with his family in Miami.

Barahona did not seek additional treatment for his psoriasis until 1998, when he contacted an attorney, who referred him to two physicians, each of whom prescribed ointments and recommended sunbathing. Barahona subsequently filed a six-count complaint against Norwegian under the Jones Act. Barahona claimed that Norwegian’s negligence caused his psoriasis, that its failure to provide adequate medical care exacerbated the condition, and that as a result, he suffered numerous and extensive damages.

Norwegian filed a motion for summary judgment on all counts of Barahona’s complaint. At the hearing on the same, Bara-hona agreed to drop all counts against Norwegian except for his failure to treat and failure to provide maintenance and cure claims. In support of its motion on the remaining claims, Norwegian filed the deposition of Dr. Stephen Presser, Baraho-na’s own expert dermatologist. Dr. Presser testified, among other things, that treating psoriasis with oral steroids, as the ship’s physician had done for Barahona, is improper because it is possible that the condition can later reoccur once the medication is stopped. Dr. Presser stated, however, that he could not say, within a reasonable degree of medical certainty, whether the use of oral steroids in treating Barahona had, in fact, exacerbated his condition. Norwegian argued that Dr. Presser’s testimony, based only on medical possibility, was inadequate to overcome its motion for summary judgement. The trial court granted summary judgment for Norwegian on both counts, finding that there was no evidence of negligence by Norwegian’s shipboard or shoreside physicians that resulted in injury to Barahona, and that Barahona had reached maximum medical improvement for his condition.

On this appeal, Barahona first argues that the trial court incorrectly granted summary judgement for Norwegian on the issue of failure to treat. Barahona claims that Dr. Presser’s deposition testimony that the shipboard physician’s treatment of Barahona’s psoriasis with oral steroids possibly exacerbated his condition, created an issue of fact for a jury.

Norwegian responds that since Dr. Presser’s testimony was based only on medical possibility, not probability, it failed to establish proximate causation for this medical negligence claim. Norwegian argues that a Jones Act plaintiff must present evidence that there is more than a mere possibility that a causal relationship exists between the defendant’s wrongdoing and the injury. We disagree.

The United States Supreme Court addressed this issue in the Jones Act case of Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959). In Sentilles, the plaintiff claimed that an accident aboard the defendant’s vessel activated or aggravated a previously latent tubercular condition. One specialist opined that acute dissemination of the tuberculosis might be a consequence of the accident. Id. at 109, 80 S.Ct. 173. Another treating specialist opined that the trauma and plaintiffs preexisting diabetes was the most likely cause of the aggravation of the tuberculosis, although he could not state which of the two was more likely responsible in this instance. Id. Still another medical expert, who had not personally examined the plaintiff, opined that the accident probably aggravated his condition, though he could not state definitively. Id.

The jury returned its verdict in favor of the plaintiff. The Fifth Circuit Court of Appeal reversed the final judgment based upon the defendant’s claim that the medical evidence on the causation issue was insufficient where it was based upon mere possibility. The Supreme Court granted certiorari and disagreed, concluding that the jury was entitled to consider all of the medical testimony adduced at trial no matter how it was worded:

The jury’s power to draw the inference that the aggravation of [the plaintiffs condition] ... was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony into consideration.

Id. at 109-10, 80 S.Ct. 173 (footnotes and citations omitted); see also Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir.1968); Jason Bruce v. Global Marine Drilling Co., 2001 WL 1175115 (E.D.La.2001); Cintorino v. Ocean Ships, Inc., 2000 WL 33179300 (D.Haw.2000).

In the instant case, we conclude that Dr. Presser’s testimony sufficiently created a jury question on the issue of causation to withstand Norwegian’s motion for summary judgment. Dr. Presser’s testimony goes directly to the issue of whether or not Norwegian is liable for its shipboard and/or shoreside physicians’ alleged failure to properly treat Barahona’s psoriasis. It is of no moment in this case that Dr. Presser cannot conclusively state or state within a reasonable degree of medical probability that the administration of the oral steroids exacerbated Barahona’s condition. That issue is for the jury’s determination. We therefore reverse the trial court’s order granting summary judgment for Norwegian on the issue of failure to treat, and remand for further proceedings.

We next address the final summary judgment as it relates to the issue of Norwegian’s failure to provide maintenance and cure. An action for maintenance and cure under the Jones Act is a maritime remedy “designed to provide a seaman with food and lodging when he becomes sick or injured in the ship’s service; and it extends during the period when he is incapacitated to do a seaman’s work.... ” Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); see also Potashnick-Badgett Dredging Inc. v. Whitfield, 269 So.2d 36, 40 n. 2 (Fla. 4th DCA 1972). A ship owner’s duty to pay maintenance and cure terminates as soon as the seaman reaches the point of maximum cure, or maximum medical improvement. See Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975); Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

Barahona suffers from guttate and plaque psoriasis, two variations of the condition. Both Barahona’s own expert dermatologist, Dr. Presser, and his treating physician, Dr. Feinstein, testified in their depositions that both guttate and plaque psoriasis were chronic conditions for which Barahona would have to undergo treatment for the rest of his life. Under the Jones Act, the definition of “maximum medical improvement” has not required shipowners to provide injured seamen maintenance and cure for a set, specific amount of time. Instead, modern courts have required that maintenance and cure continue “until such time as the incapacity is declared to be permanent,” Vella, 421 U.S. at 5, 95 S.Ct. 1381, or where it appears that “future treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition,” Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979).

Given the testimony of both Dr. Presser and Dr. Feinstein that Barahona’s psoriasis condition was unable to be cured completely, and that when Barahona left his position with Norwegian, he controlled his psoriasis with ointment and was sunbathing as recommended by his physicians, there are no issues of material fact on the question of whether Barahona has reached “maximum medical improvement.” Furthermore, Norwegian fulfilled its duty to Barahona to provide and pay for his medical treatment while he was employed with the cruise line. Therefore, we find that the trial court was correct in granting summary judgment for Norwegian on the issue of maintenance and cure, and affirm.

Reversed and remanded in part, affirmed in part.

      . See 46 U.S.C.App. § 688.


author: WARNER, J.

text:
    Elwira TARNAWSKI, Appellant, v. Janusz TARNAWSKI, Appellee.
    No. 4D01-4728.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Rehearing Denied Aug. 21, 2003.

      Isabel Julia-Miles of Isabel Julia-Miles, P.A., Boca Raton, for appellant.
    Robert Garven, Coral Springs, for appel-lee.
   WARNER, J.

In the final judgment of dissolution of marriage, the trial court denied alimony in a long term marriage, ordered the marital home to be sold, imputed income to the wife, and denied attorney’s fees to the wife. Because the trial court imputed income to the wife at a level of income unsupported by the evidence and in excess of any amount the wife had earned in the past, we reverse. This error also requires the court on remand to review all other aspects of the final judgment.

The husband and wife were married in Poland in 1979 and have two children, one of whom is still a minor. The wife is forty-eight and has completed two and a half years of college in nursing in Poland. The husband is a field support engineer at Siemens, and his job requires him to travel frequently. At the time of the divorce, he earned $51,300 plus some bonuses.

The husband left Poland and moved to Florida in 1987. After two years, he sent for the wife and son, requiring the wife to give up her medical career to follow the husband. When she moved to Florida, the wife worked as a housekeeper but stopped soon after she had the couple’s second child. The parties moved frequently throughout the United States as the husband pursued various job opportunities. Although the wife wanted to study to become a nurse in the United States, she lacked the time given her family responsibilities and the frequent moving.

The family moved back to Florida in 1995 and bought a home in Boca Raton for $152,000. Throughout this time, the wife continued to be the primary caretaker for the children and the home, as the husband was frequently traveling. The parties offered conflicting evidence regarding the wife’s work history in Florida. The husband testified that the wife again worked as a full-time housekeeper for an invalid’s family in Fort Lauderdale for three years until the invalid died. She earned $600 per week plus additional monies serving at evening parties. After the invalid died, the wife worked again as a housekeeper. According to the wife, however, she only worked part-time for the invalid for about a year total. Most of that time she served as a nurse’s aid, tending to his medical condition, including his medications and diet. After he died, she performed the same tasks for another person, making $15 per hour and working two to three times a week.

She claimed that after her second job ended, she was unable to continue working because of her back problems which had begun in Poland where she had surgery. She testified that she is currently being seen by three doctors and needs more surgery. Again, the husband contested this evidence, stating that the doctors in Poland determined she had made a complete recovery from her back problems. He claimed that only after he filed for divorce did the wife start complaining that her back prevented her from working. The husband hired a private investigator to follow the wife and record her activities. During his surveillance, the investigator observed her entering two different apartment complexes where she remained in the apartments for approximately two to three hours. She visited the apartments on the same day and hour two weeks later. Based upon this evidence, the former husband suggested the former wife was still cleaning houses, but the wife indicated that she was visiting friends.

According to the wife, the husband left his employment with Siemens in April 1999 unbeknownst to her and moved to Germany with another woman, who also was with Siemens and had been relocated to Germany. To fund this trip, the husband withdrew approximately $78,800 from his 401k funds. He incurred a $10,500 tax liability as a result. The wife did not know of his whereabouts for six months until he finally sent her $500 for child support. While he was in Europe, the wife had to borrow money from friends and relatives. The husband claims that he gave the wife a power-of-attorney and told her to sell his things to help support the family. Eventually, he came home and asked the wife to help him obtain re-employment with Siemens, which she did.

At trial the wife requested permanent alimony, child support, exclusive use of the marital home until the child reached majority, half of the funds that were in husband’s 401k before he dissipated it, a portion of the husband’s pension, and attorney’s fees. In its final judgment, the trial court found the wife “healthy as a horse” and “perfectly capable of working.” It further found that the wife had worked full-time as a housekeeper during the marriage. Thus, based upon the hourly rate she received from her part-time job in 1998 of $15, the court imputed income to her at $20 per hour or $800 per week. Based upon this level of income, the court found that she would be able to sustain her standard of living without alimony. The court denied the wife exclusive possession of the marital home, finding that it was not financially feasible. To compensate the wife for her share of the husband’s 401k plan, the court ordered the marital home be sold and awarded the net proceeds entirely to the former wife. Alternatively, the court awarded the wife sole ownership of the home on the condition that she refinance the mortgage and remove the husband from any financial obligation, giving her sixty days in which to refinance. The court ordered child support of $800.00 per month based upon the husband’s income and imputed income to the wife of $2,771 per month. It vacated the income deduction order and required each party to pay its own attorney’s fees.

A linchpin of the court’s judgment relates to the imputing of income to the wife in the amount of $800 per week. Based upon that calculation, the court denied permanent alimony and reduced the amount of child support being paid by the husband. Section 61.30(2)(b), Florida Statutes (1999), requires the court to impute income for purposes of child support to a spouse who is voluntarily underemployed or unemployed “unless the lack of employment is the result of the spouse’s physical incapacity or other circumstances beyond the parent’s control.” Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999). In determining whether to award alimony, the court should consider, inter alia, the financial resources of the parties and all sources of income available to each party. See id.; also § 61.08(2)(d) & (g), Fla. Stat. (1999). If the marital relationship included each spouse working, then the court should impute income in accordance with the spouse’s ability and history. See Boynton v. Boynton, 636 So.2d 53, 56 (Fla. 2d DCA 1994).

In determining the amount of income to be imputed to a spouse, section 61.30(2)(b) sets forth several factors that a trial court shall consider:

In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community....

The trial court’s findings regarding imputation of income must be supported by substantial competent evidence. See Burkhardt v. Bass, 711 So.2d 158, 160 (Fla. 4th DCA 1998). However, it is error for the trial court to impute income to a spouse in an amount higher than the spouse has ever historically earned, absent special circumstances. See Stein v. Stein, 701 So.2d 381, 381 (Fla. 4th DCA 1997); accord Stodtko v. Stodtko, 636 So.2d 814, 815 (Fla. 3d DCA 1994). In Stodtko, the court held it was error to impute income at $10 per hour, where the most the husband had ever earned before he voluntarily left his employment was $7.61 per hour. 636 So.2d at 814-15.

In this case, the court found that the wife was capable of working and then imputed income to her at $20 per hour for a forty hour work week when the most she had ever made before was $15 per hour, and there was no evidence that work was available for forty hours per week. In the job paying $15 per hour, she worked only part-time. Even the investigator who followed the wife could account for only six hours in which she was at apartments where she might have been cleaning. Moreover, the court had no evidence of prevailing wages in the community for household work or availability of positions. The court’s imputing of income was based not on substantial competent evidence but on conjecture. We therefore reverse. Likewise, we also reverse the denial of permanent alimony and the award of child support for reconsideration upon a re-evaluation of the wife’s ability to contribute to her own support and that of the child.

The court’s denial of exclusive use and possession of the home also is tied to the parties’ respective financial positions. Although generally exclusive use of the marital home is awarded to the party having primary physical custody of a minor child, see Zeller v. Zeller, 396 So.2d 1177, 1179 (Fla. 4th DCA 1981), compelling financial reasons may necessitate the sale of the home. See Scott v. Scott, 408 So.2d 1089, 1090 (Fla. 3d DCA 1982). On remand, the court will have to reconsider this issue, as well as the equitable distribution, depending upon the court’s valuation of the marital assets. Based upon the reversal of the financial awards, we also reverse the denial of attorney’s fees, leaving that issue for redetermination upon remand.

Finally, the court erred in not ordering an income deduction order for the husband’s child support obligation. Such an order is statutorily required. See § 61.1301(l)(a), Fla. Stat. (1999).

Reversed and remanded for further proceedings in accordance with this opinion.

STEVENSON and HAZOURI, JJ., concur.