author: GRIFFIN, J.

text:
    Edgardo LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2483.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Edgardo Lopez, Bowling Green, pro se.

      Richard E. Doran, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Edgardo Lopez [“Lopez”], appeals the summary denial of his Rule 3.800(a) motion. He alleges that he was charged with carjacking with a firearm and robbery with a firearm, but the jury only found him guilty of carjacking and robbery and specifically found that he did not carry, display or use a firearm. He contends that he should not have been sentenced for committing the substantive offenses “with a firearm.” He also complains that twenty-five points were erroneously added for possession of a semi-automatic weapon.

The trial court denied Lopez’s motion without a hearing. The verdict reflects that the jury actually found Lopez guilty of carjacking with a firearm and robbery with a firearm, while also entering a special finding that he did not carry, display, use or possess a firearm. The court pointed out that the record indicates that a second, unknown suspect, participated in the offenses with Lopez and concluded the jury could have found that the unknown perpetrator used a gun, which was apparently a semi-automatic weapon. The trial court ruled that the special finding did not preclude sentencing as a principal for carjacking with a firearm and robbery with a firearm, but did preclude imposition of a minimum mandatory term pursuant to section 775.087(3), Florida Statutes, because that statute required Lopez to personally possess a firearm. The court also ruled that twenty-five points for possession of a semi-automatic weapon were properly scored.

We affirm Lopez’s convictions for carjacking with a firearm and robbery with a firearm, despite the special finding made by the jury. The State is correct that it is immaterial whether Lopez was expressly charged as a principal, so long as there was proof he was guilty of one of the acts denounced in the statute. See State v. Roby, 246 So.2d 566, 571 (Fla.1971). The law of principals allows Lopez to be convicted of the main offenses regardless of whether he personally possessed a firearm, even if he could not be given a minimum mandatory sentence.

The State concedes that it was unable to find any authority on the issue of whether personal possession of a firearm is required to assess twenty-five points under Florida Rule of Criminal Procedure 3.703(d)(19). The rule states that:

Possession of a firearm, semiautomatic firearm or machine gun during the commission or attempt to commit a crime will result in additional sentence points ... Twenty-five sentence points are assessed if the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(8) while having in his or her possession a semiautomatic firearm ...

Id. (Emphasis added). The State acknowledges that the rule appears to be offender specific because it refers to a weapon in “his or her possession.” In addition, the State agrees that normally no extra points would be assessed for possession of a firearm because carjacking and robbery are two of the enumerated felonies in section 775.087(3), to which a mandatory minimum sentence is applied. Application of both a minimum mandatory penalty and the assessment of extra points for use of the same firearm is not permitted. White v. State, 714 So.2d 440 (Fla.1998). This is why the rule precludes the assessment of points in those cases in which a minimum mandatory sentence has been imposed. See also § 921.0014(1)(a), Fla. Stat. (1997) (providing for assessment of extra points for use of a firearm if minimum mandatory not imposed due to use of firearm). Because no minimum mandatory sentence was imposed in this case, nor were Lopez’s crimes enhanced pursuant to section 775.087(1), the State argues the imposition of additional points for the firearm would not constitute a double enhancement or violate double jeopardy. Therefore, the State argues that the trial court’s order should be affirmed.

We conclude that the assessment of points for possession of a semi-automatic should not have been applied, as carjacking and robbery are enumerated offenses in section 775.087(3) and therefore are excluded from application of the points. In addition, by specifying the firearm must be “in his or her possession,” the rule requires personal possession, and the jury in this case expressly found that Lopez did not personally possess the firearm.

“One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter.” State v. Byars, 823 So.2d 740, 742 (Fla.2002), quoting Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). See also State v. Rife, 789 So.2d 288 (Fla.2001) (rule of lenity, which also applies to guidelines, requires that when language is susceptible to differing constructions, it shall be construed most favorably to the accused).

By subtracting the twenty-five points for possession of a semi-automatic weapon from Lopez’s score, his maximum sentence is reduced to 137.5 months. As Lopez was sentenced to 144 months, this error was not harmless. Accordingly, we vacate the sentence and remand for resen-tencing.

SENTENCE VACATED and . REMANDED.

PLEUS and ORFINGER, JJ„ concur.

      . Defendant's conviction and sentence of twelve years in prison, followed by ten years probation, concurrent on both counts, was affirmed without opinion in Lopez v. State, 743 So.2d 1102 (Fla. 5th DCA 1999).

      . It applies where, "during the commission of the offense, such person possessed a 'firearm' or ‘destructive device’ as those terms are defined in s. 790.001...." § 775.087(3), Fla. Stat. (1997).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KPMG LLP, Petitioner, v. STATE of Florida, DEPARTMENT OF INSURANCE, As Receiver for Sunstar Health Plan, Inc., a Florida Health Maintenance Organization, Respondent.
    No. 1D02-350.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2002.

      Edward A. Marod, of Edward A. Marod, P.A., West Palm Beach; and Elizabeth V. Tanis, Amelia T. Rudolph, and Laurance J. Warco, of Sutherland, Asbill & Brennan, LLP, Atlanta, Georgia, for Petitioner.
    John H. Genovese, Peter W. Bellas, and Brett M. Amron, Miami; and Julius F. Parker, Jr., State of Florida, Department of Insurance, Division of Rehabilitation and Liquidation, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, KPMG, filed a petition for writ of certiorari to review an order requiring production of certain documents for which it claimed either an attorney-client or trade secret privilege. We deny the petition without discussion as to the attorney-client claims. However, we grant the petition on the trade secret privilege claim because the lower court failed to make factual findings to support its conclusions that the Department had demonstrated a reasonable necessity for the production of seventy-one of the documents that the lower court found contained trade secrets. See Virginia Electronics and Lighting Corp. v. Koester, 714 So.2d 1164 (Fla. 1st DCA 1998).

As Koester, as well as the cases cited therein, makes clear, an appellate court must be able to conduct a meaningful review of the trial court’s reasons for granting or denying privilege objections. This does not require revealing the contents of the documents, but it does require particularized findings in support of the determination that the Department had demonstrated a reasonable necessity for production despite the existence of trade secrets. As in Koester, the discovery order in question here “was deficient because it failed to specify what trade secrets existed and to set forth findings of fact supporting a conclusion that disclosure of the trade secrets was reasonably necessary to resolve the issues in dispute.” Id. at 1165.

Accordingly, we grant the petition in part, quash the order in part, and remand for further proceedings consistent with this opinion.

MINER, BENTON and LEWIS, JJ., concur.


author: COBB, J.

text:
    CONTRACTORS UNLIMITED, INC., and Glennon Wade, Appellants, v. NORTRAX EQUIPMENT COMPANY SOUTHEAST, etc., Appellees.
    No. 5D02-959.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      Patrick C. Crowell of Patrick C. Cro-well, P.A., Orlando, for Appellants.
    Michael A. Linsky of Linsky & Reiber, Tampa, for Appellees.
   COBB, J.

The defendants, Contractors Unlimited, Inc. and Glennon Wade, appeal from an order denying their motion to set aside clerk defaults, an order denying their motion to dismiss for late service, motion to vacate default final judgment and motion for relief from judgment. The defendants assert numerous purported errors in seeking to set aside the defaults and default final judgment, including untimely and improper service of process, fraud and lack of adequate notice on the issue of damages. We find one meritorious point relating to the plaintiff Nortrax Equipment Company’s failure to attach an adequate copy of the instrument(s) being sued upon to its complaint as relates to the cause of action against the defendant Glennon Wade.

Nortrax sued the defendants by amended complaint. Count I was an action on open account against Contractors Unlimited, Inc. Count II was against Wade based on his alleged personal guaranty relating to unpaid invoices. Attached to the amended complaint is a substantially illegible application for credit in the name of Contractors Unlimited, Inc. and signed by Wade, as well as an account statement and an invoice billed to the corporate defendant. The statement is an itemized copy reflecting unpaid invoices and the account balance. The invoice references a recent transaction. These documents were sufficient to support the cause of action for open account. H & H Design Builders, Inc. v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. 5th DCA 1994).

Nortrax, however, failed to provide a legible attachment to its amended complaint of the written instrument upon which it was suing Wade. Florida law recognizes that a default should be set aside if the complaint upon which it is based fails to state a cause of action. Myers v. Myers, 652 So.2d 1214 (Fla. 5th DCA 1995). As Trawick explains, a default “does not admit facts not pleaded, not properly pleaded, or conclusions of law.” Henry P. Trawick, Florida Practice and Procedure, § 25-4, at 412 (2001 ed.). A party seeking affirmative relief may not be granted relief that is not supported by the pleadings. Id.

A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001). See Fla. R. Civ. P. 1.130(a) (all contracts or documents “upon which action may be brought ... shall be incorporated in or attached to the pleadings”). Accordingly, we affirm the default and final judgment entered pursuant thereto against Contractors Unlimited, Inc., but set aside the default and final judgment entered against Glennon Wade and remand to permit Nortrax to file a second amended complaint against Wade.

AFFIRMED in part; REVERSED in part and REMANDED.

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


text:
    Michael A. BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1038.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

This is a direct appeal of a judgment and sentence entered after defendant, Michael A. Bowen [“Bowen”], pled guilty to driving while license revoked as a habitual offender.

Bowen was charged by information with driving while license revoked as an habitual offender, pursuant to section 322.34(5), Florida Statutes (2001):

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

He pled guilty as charged with the understanding that the prosecutor would recommend sixteen months in the Department of Corrections. Bowen was sentenced on February 26, 2002 to sixteen months in the Department of Corrections.

On March 26, 2002, before the time for taking an appeal had expired, Bowen filed a pro se motion to correct an illegal sentence, arguing that he could not be considered a habitual traffic offender within the meaning of section 322.264, Florida Statutes, because he had only two qualifying traffic convictions within the preceding five years.

Bowen filed a notice of appeal before his motion could be ruled upon. He then filed an amended motion to correct an illegal sentence, stating that the motion was made pursuant to rule 3.800(b)(2) due to his pending appeal. The motion again argued that Bowen did not qualify as an habitual offender, since he had only two convictions within a five-year period. In addition, he contended that convictions obtained prior to October 1, 1997 could not be used as qualifying offenses under Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000).

First, we note that Bowen has not moved to withdraw his plea. Although couched as an illegal sentence, Bowen’s complaint is that his plea of guilty should be set aside because he did not qualify for the charge. This claim is not cognizable on direct appeal. Griffin v. State, 820 So.2d 906 (Fla.2002), Caples v. State, 790 So.2d 1143 (Fla. 5th DCA 2001).

Second, contrary to Bowen’s assumption, proof that he had accumulated three of the enumerated convictions within a five-year period preceding his conviction is not required to establish a violation of section 322.34(5), Florida Statutes (2000). See Arthur v. State, 818 So.2d 589, 590-91 (Fla. 5th DCA 2002).

Finally, Huss has no application to a prosecution - under section 322.34(5) for driving while one’s license is suspended as a habitual offender. See Simmons v. State, 824 So.2d 327 (Fla. 1st DCA 2002).

AFFIRMED.

HARRIS and SAWAYA, JJ., concur.


author: ORFINGER, J.

text:
    Kelvin CONEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3614.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Kelvin Coney, Bowling Green, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Kelvin Coney appeals the summary denial of his fourth motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Coney was convicted of armed robbery while wearing a mask, attempted armed robbery while wearing a mask, possession of a firearm by a convicted felon and other sundry offenses. He was sentenced to prison as a habitual violent felony offender. Coney claims that the trial judge failed to orally find him to be a habitual violent felony offender. Coney raised this issue in an earlier rule 3.800(a) proceeding, and it was found to be without merit because the record reflects the court made all necessary findings. The order denying the rule 3.800(a) motion was affirmed on appeal. See Coney v. State, 803 So.2d 742 (Fla. 5th DCA 2001). As such, raising the issue again is successive and constitutes an abuse of procedure.

Coney further alleges that his conviction for armed robbery while wearing a mask is a life felony, and, therefore, his habitual violent offender sentence for that offense is illegal. He bases that argument on the fact that in 1994, when he committed his offenses, habitual violent offender classification was not applicable to defendants who were to be sentenced for crimes punishable as life felonies. See § 775.084(4)(b)(l), Fla. Stat. (1993). Coney’s reliance on that statute is misplaced. At the time Coney committed his offenses, section 775.0845, Florida Statutes (1993), authorized enhanced penalties for offenders who were masked while committing an offense. The statute did not reclassify felonies based on the use of a mask. By contrast, the current version of section 775.0845 is a felony reclassification statute. See § 775.0845, Fla. Stat. (2002). Nevertheless, under either version of 775.0845, the highest felony subject to reclassification or enhanced penalties for the use of a mask is a second degree felony. Coney’s offense, a first degree felony punishable by life, does not implicate section 775.0845. Accordingly, Coney’s classification as a habitual violent felony offender was proper.

AFFIRMED.

THOMPSON, C.J. and HARRIS, J., concur.


author: COVINGTON, Judge.

text:
    Patrick Bouvier SCAIFE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4817.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    James Marion Moorman, Public Defender, and Eric J. Gottlieb, Special Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

On this direct appeal, Scaife challenges his judgments and sentences for attempted second-degree murder and battery. Scaife contends that his trial attorney was ineffective and that such ineffectiveness is apparent from the face of the record. We conclude that the viability of Scaife’s ineffective assistance claim is not apparent from the face of the record. We therefore affirm Scaife’s judgments and sentences without prejudice to his right to again raise the issue in a properly filed postcon-viction motion, if appropriate.

Affirmed.

BLUE, C.J., and DAVIS, J., concur.


author: BROWNING, J.

text:
    RIVENDELL OF FT. WALTON and Gallagher Bassett Services, Inc., Appellants, v. Susan PETWAY, Appellee.
    No. 1D01-4445.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Mary E. Cruiekshank and Jacquelyn Lewis Newman, of DuBois & Cruiekshank, P.A., Tallahassee, for Appellants.

      Barry Silber, Pensacola, for Appellee.
   BROWNING, J.

Employer/Carrier appeal a final order awarding permanent total disability (PTD) benefits to the appellee, Susan Petway (Claimant). They contend it was error to award PTD benefits where the uncontra-dicted medical evidence established that she had not yet reached maximum medical improvement (MMI) from a psychiatric standpoint and that she was likely to improve with psychiatric care and treatment. We affirm the provision of appropriate benefits for Claimant’s compensable low back injury and the finding of her entitlement to psychiatric treatment and care under Dr. Doheny’s direction. We reverse, as premature, the award of PTD benefits. Metropolitan Title & Guar. Co. v. Muniz, 806 So.2d 637 (Fla. 1st DCA 2002); Chan’s Surfside Saloon v. Provost, 764 So.2d 700 (Fla. 1st DCA 2000) (reversing award of PTD benefits absent competent substantial evidence that claimant had reached psychiatric MMI or would remain permanently and totally. impaired when she did reach MMI); City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998).

On October 22, 1995, Claimant worked as a recreational therapist at a residential in-patient psychiatric facility. On that date, she injured her right knee when she sustained a hard fall while playing basketball with adolescent patients. That injury was accepted as compensable. Employer/Carrier paid temporary total disability (TTD) benefits until October 22, 1997, and thereafter paid impairment benefits pursuant to section 440.15(3)(a), Florida Statutes (1995), based on orthopedic surgeon Dr. Macey’s 9% permanent partial impairment rating. TTD indemnity benefits were terminated upon the expiration of the 104-week time limit under section 440.15(2)(a), Florida Statutes (1995).

By January 1998, Claimant complained of low back problems, which she contended were related to her October 1995 industrial accident. Employer/Carrier initially provided treatment for the back condition but waited over a year to controvert the com-pensability of that condition, asserting it was not causally related to her compensa-ble industrial accident. When they elected to provide medical care for Claimant’s back complaints, Employer/Carrier did not file the required “pay and investigate” notice under section 440.20(4), Florida Statutes (1995).

In Summer 1998, Claimant hired an attorney to represent her in her claims against Employer/Carrier. At about the same time, Claimant developed symptoms of depression allegedly arising from the industrial accident; she sought a psychiatric evaluation, which Employer/Carrier initially resisted.

On November 12, 1998, Claimant filed a petition with the Division of Workers’ Compensation alleging injuries to her knee and back and seeking temporary indemnity benefits; PTD benefits from October 12, 1997, the alleged date of MMI; authorization of an alternate orthopedic surgeon to treat her knee; authorization of a neurosurgeon; authorization of a pain management specialist; and authorization of a psychiatrist to evaluate and, if necessary, treat her. The petition clearly indicated Claimant was seeking benefits based on both a right knee injury and a back injury. Her January 4, 1999, amended petition requested the same benefits. Employer/Carrier filed a February 11, 1999, notice of denial stating that independent medical examinations (IMEs) had been set with Drs. Doheny and Benson.

Dr. Benson, a board-certified psychiatrist, was deposed on December 1, 1999. Dr. Benson testified that he had performed an IME of Claimant on March 25, 1999, at Employer/Carrier’s request. The doctor’s impression was that Claimant had experienced a substantial deterioration in her mood and had a pattern of symptoms consistent with a diagnosis of major depression. He recommended treatment with anti-depressant medication and cognitive behavioral therapy, approximately 16-20 visits. Dr. Benson opined that Claimant was not at MMI from a psychiatric perspective. He testified that if the recommended treatment plan were implemented, Claimant likely would have a full, complete recovery from her psychiatric symptoms. He expected Claimant to be able to return to work once she began responding to psychiatric medication. Dr. Benson opined that Claimant’s back problem is the major contributing pain component of her developing depression.

Claimant’s counsel deposed Dr. Doheny, a board-certified psychiatrist, on December 9, 1999. The doctor testified he had interviewed Claimant and performed an IME on her on March 11, 1999. He opined that the industrial accident, and specifically the knee problem, was the major contributing cause of the diagnoses of a pain disorder and major depression. The doctor recommended that Claimant address her psychiatric problems with antidepressant and anti-anxiety medications, along with individual therapy. Dr. Doheny opined that Claimant would have been unable to work from the date of her accident until he evaluated her. The doctor testified that it would be difficult to address MMI until psychiatric intervention was attempted. However, he speculated that if no psychiatric treatment or care were ever provided to Claimant, she would have been at psychiatric MMI when he performed the IME. Although Dr. Doheny testified that Claimant’s psychiatric condition would meet the criteria for disability under section 12.04 of the “Listing of Impairments” under Social Security Disability Guidelines, he explained that he was basing this opinion primarily upon Claimant’s subjective complaints. The doctor acknowledged that with appropriate psychiatric treatment, some of Claimant’s depressive symptoms, difficulties, and symptoms, which are set forth in section 12.04(a) and (b) of the Guidelines, could be improved or eliminated.

Employer/Carrier authorized psychiatrist Dr. Iserman. Eventually, at the merits hearing, Claimant testified that she had dealt with Dr. Iserman previously in a professional capacity and had personal objections to his care and treatment. She contended that this uncomfortable situation was tantamount to a denial of her request for psychiatric treatment and care.

The judge of compensation claims (JCC) issued a May 5, 2000, order finding that Claimant’s back injury was unrelated to her industrial accident and not compensa-ble. The JCC granted Employer/Carrier’s motion for appointment of an expert medical advisor (EMA) under section 440.13(9), Florida Statutes (1995). The JCC found a conflict in the testimony of Drs. Doheny and Benson regarding Claimant’s level of disability, if any, and whether Claimant ultimately would have a permanent psychiatric impairment, which would render her eligible for PTD benefits. The JCC retained jurisdiction to determine later whether Claimant was entitled to psychiatric care or PTD benefits.

A board-certified psychiatrist, Dr. Szmurlo, was appointed EMA regarding Claimant’s psychiatric condition. He evaluated Claimant three times between July 24 and September 8, 2000, and issued an evaluation report. He diagnosed Claimant as suffering from major depression and pain disorder; he opined that she would benefit from psychotherapy and treatment with medications. The EMA opined that the major contributing cause of the development of major depression and pain disorder was the knee condition arising from the industrial accident. He opined further that Claimant’s psychiatric condition met or equaled the section 12.04 criteria listing impairments under the Guidelines. He opined that absent the provision of psychiatric care, Claimant would be at MMI, would have a permanent partial impairment rating, and would be totally precluded from future work. He testified that from a medical/psychiatric standpoint, Claimant was not at MMI. The EMA felt it would be premature to assign any impairment rating for her psychiatric condition. In that regard, he expected Claimant’s condition to improve with proper treatment. Although Dr. Szmurio believed that Claimant was unable to work when he saw her, he opined that Claimant’s work restrictions might be lessened once psychiatric treatment was initiated. He opined it would be difficult for him to determine whether Claimant would still meet the section 12.04 disability guidelines if treatment were provided and her condition improved, as he expected it would.

In the October 11, 2001, order, the JCC found that Claimant has reached statutory MMI, that her psychiatric injury is permanent, and that she is entitled to PTD benefits. Her condition was found to satisfy the section 12.04 impairment listings. Claimant was awarded attorney’s fees under section 440.34(c), Florida Statutes (1995). Claimant moved for rehearing or clarification regarding the compensability of her back condition. Her amended motion alleged the JCC had failed to make a dispositive ruling on the issue of authorized psychiatric care and treatment at Employer/Carrier’s expense.

In the October 30, 2001, order on rehearing, the JCC found that Employer/Carrier’s denial of.the compensability of Claimant’s low back injury and condition was untimely, so that Employer/Carrier are estopped from denying the compensa-bility thereof. § 440.20(4), Fla. Stat. (1995). The JCC noted that the referral for a psychiatric EMA arose from the discrepancy between the medical opinions of Claimant’s and Employer/Carrier’s respective psychiatric IMEs. The JCC accepted EMA Dr. Szmurlo’s opinions to support the finding that Claimant’s psychiatric condition is compensable. Employer/Carrier were ordered to provide authorized psychiatric care and treatment at Dr. Doheny’s direction, as the nature of Claimant’s condition and the process of her recovery require. The estoppel of Employer/Carrier from denying the compensability of the low back condition was found to have mooted the issue of major contributing cause concerning the psychiatric condition.

On appeal, Employer/Carrier argue, first, that the JCC reversibly erred in awarding PTD benefits where the uncon-tradicted medical evidence established that Claimant had not reached MMI from a psychiatric standpoint and was likely to improve with psychiatric treatment. Second, Employer/Carrier contend the JCC erred by waiting 19 months after Claimant’s live testimony to enter the final order. The issue of the staleness of the order was not raised below and, thus, was not preserved for appellate review. In any event, our reversal based on the first issue moots the second issue.

Claimant asserts that Employer/Carrier failed to provide requested psychiatric care and treatment. In their timely notice of denial, Employer/Carrier stated they had set IMEs with Drs. Doheny and Benson. Although it is unclear from the record on appeal exactly when Dr. Iserman was authorized to provide psychiatric care and treatment related to Claimant’s knee injury, counsel for Employer/Carrier stated at the December 14, 1999, hearing that Dr. Iserman had never been de-authorized. Claimant testified that she had known Dr. Iserman professionally during her employment as a recreational therapist and that she had personal objections to his treating her. Claimant has not cited anything in the record indicating that she had previously communicated to Employer/Carrier her disenchantment with Dr. Iserman and had requested a different psychiatrist. Thus, the record supports Employer/Carrier’s contentions that they authorized and provided psychiatric treatment and care, of which Claimant failed to avail herself, and that the uncontradicted medical evidence indicates Claimant’s psychiatric condition likely would improve in response to treatment and care. Likewise, competent substantial evidence in the record supports the JCC’s ruling that Claimant is entitled to psychiatric care and treatment under Dr. Doheny’s direction.

The issue on appeal is entitlement to PTD benefits. Despite certain amendments to Chapter 440, Florida Statutes, see chapter 93-415, at 62, Laws of Florida, effective in 1994, the general rule is still that a determination of MMI must precede an award of PTD benefits. City of Pensacola Firefighters, 710 So.2d at 95, 96-97. The amendments created a narrow exception to this rule where, six weeks before the termination of temporary benefits has expired under the 104-week rule, a qualified professional is able to determine that the claimant will be permanently impaired once MMI is attained' and, if so, to assign a prospective impairment rating. Id. at 97-98. In Emanuel v. David Piercy Plumbing, 765 So.2d 761 (Fla. 1st DCA 2000), this court stated that a claimant can be considered at “statutory” MMI and, thus, entitled to permanent benefits for continuing disability “once a. claimant’s medical condition has improved as much as is reasonably expected under available and recommended remedial treatments.” Id. at 762. This represents another means of establishing MMI, aside from the more obvious one where a qualified professional opines that a claimant has reached “medical” MMI. Because Claimant has not yet submitted to the available, remedial authorized psychiatric treatment and care, a finding of entitlement to PTD is premature.

Given the unrefuted medical evidence indicating a reasonable likelihood of psychiatric improvement if Claimant receives psychiatric treatment and care, and the record evidence showing that Employer/Carrier authorized and provided a psychiatrist, we conclude that Claimant has failed to meet her burden, as established in Oswald and Emanuel, to show that she has reached psychiatric MMI. That is, any determination that Claimant is entitled to PTD benefits now — before the effects of psychiatric treatment and care are known—is premature. Chan’s Surfside Saloon v. Provost, 764 So.2d at 700. Under the instant facts, a determination on the MMI question must precede a determination of entitlement to psychiatric PTD benefits. Metropolitan Title & Guar. Co. v. Muniz, 806 So.2d at 637; Daws Mfg. Co., Inc. v. Ostoyic, 756 So.2d 175, 176 (Fla. 1st DCA 2000).

Accordingly, we AFFIRM the provision of benefits for Claimant’s compensable low back injury; and the authorization of psychiatric treatment and care under Dr. Do-heny’s supervision, as the nature of that condition and the process of recovery require; and we REVERSE the premature award of PTD benefits.

LEWIS and POLSTON, JJ., concur.


text:
    Roberta G. PAYNE, Petitioner, v. Belk LINDSEY and Risk Enterprise Management, Respondents.
    No. 1D02-4575.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    John Hugh Shannon, Lakeland, for petitioner.
    Tiffany Stanton Trussell of Ross, Vec-chio & Trussell, Lakeland, for respondents.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995); Esman v. Board of Regents, 425 So.2d 156 (Fla. 1st DCA 1983).

ALLEN, C.J., BOOTH and BARFIELD, JJ., concur.


text:
    MARTIN MEMORIAL HEALTH SYSTEMS, and Commercial Risk Management, Appellants, v. Christine DEYO, Appellee.
    No. 1D02-2878.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Lisa Lazan and K. Scott Jones of Lazan & Spagnola-Hills, Yero Beach, for appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee.
   PER CURIAM.

DISMISSED. See Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

ERVIN, KAHN and BROWNING, JJ., concur.


text:
    Elizabeth WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2079.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals her conviction on the basis that the trial court should not have denied her motion to dismiss. The appellant claims that the trial court lacked jurisdiction to convict her where the state failed to serve her with any process within the statute of limitations period, and did not show any due diligence in attempting to locate her for such service. We agree.

Once the jurisdiction of the trial court was challenged by the appellant raising a statute of limitations issue, the state had the burden of establishing that the offense was not barred by the statute of limitations. See Fleming v. State, 524 So.2d 1146, 1146-47 (Fla. 1st DCA 1988); Sutton v. State, 784 So.2d 1239, 1241 (Fla. 2d DCA 2001); Wright v. State, 600 So.2d 1248, 1249-1250 (Fla. 5th DCA 1992). To do this, the state .had to present evidence that it made a diligent search to locate and serve the appellant within the statute of limitations period. See § 775.15(5), Fla. Stat. (1995); Fleming, 524 So.2d at 1147; Coleman v. State, 655 So.2d 1239, 1239 (Fla. 1st DCA 1995); Norris v. State, 784 So.2d 1188, 1189 (Fla. 2d DCA 2001); Neal v. State, 697 So.2d 903, 905 (Fla. 2d DCA 1997); Bonel v. State, 651 So.2d 774, 776 (Fla. 3d DCA 1995). The record does not reflect that the state presented any evidence that it attempted to locate the appellant and serve her with process within the statute of limitations period. In the absence of such evidence, the state did not satisfy its burden of establishing that the appellant’s offense was not barred by the statute of limitations. See Fleming, 524 So.2d at 1146-47; Sutton, 784 So.2d at 1241; Wright, 600 So.2d at 1249-1250.

REVERSED and REMANDED.

BARFIELD, MINER and POLSTON, JJ., concur.


text:
    Mary LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2110.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Robert I. Barrar, Esquire of the Law Offices of Ellis Rubin and Robert I. Bar-rar, Miami, for Appellant.
    Richard E. Doran, Attorney General, and Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   On Motion for Rehearing, Reconsideration And/Or Clarification

PER CURIAM.

We grant the motion for rehearing and clarification, withdraw our previously issued opinion, and substitute the following in its place.

Appellant was convicted of three counts of extortion, one count of threat against a public servant in violation of section 838.021, Florida Statutes (1997), and one count of aggravated stalking. On appeal she raises numerous issues, three of which we find to be meritorious. After hearing oral argument and carefully considering the transcript of appellant’s trial, we reverse appellant’s convictions and sentences for the extortion offenses charged in counts I and IV of the information filed against her, and for the violation of section 838.021, Florida Statutes (1997), charged in count II of that information. With regard to those counts we conclude that there was insufficient evidence adduced to support the convictions. We affirm appellant’s convictions on counts III and V.

Reversed in part, affirmed in part, and remanded for further proceedings.

MINER, BENTON and LEWIS, JJ., CONCUR.

      . Livingston v. State, 27 Fla. L. Weekly D2360 (Fla. 1st DCA Nov. 1, 2002).


text:
    STATE of Florida, FLORIDA COMMISSION ON ETHICS, Petitioner, v. Stephen MacNAMARA, Respondent.
    No. 1D01-2627.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Daniel H. Thompson of Berger Singer-man, Tallahassee; Craig C. Willis, Special Advocate for the Florida Commission on Ethics, Tallahassee; Attorneys for Petitioner.
    Kenneth G. Oertel and M. Christopher Bryant of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee; and Mark Herron, Tallahassee, Attorneys for Respondent.
   PER CURIAM.

Petitioner, the State of Florida, Commission on Ethics, has petitioned this court for review of non-final orders of an administrative law judge denying discovery pursuant to Florida Rule of Appellate Procedure 9.100 and Florida Statutes section 120.68(1). The administrative law judge ruled that the attorney-client privilege prevented discovery of the documents as well as invoices for services rendered to the client, documents describing the nature of those services, and interrogatory and deposition testimony concerning those services.

Respondent states he has obtained permission from his client to produce the information requested, conditioned on the redaction of the amount that Respondent was paid and the amount of his retainer. Given Respondent’s willingness to produce these documents subject to these conditions, we remand to the administrative law judge to order production of the discovery sought by Petitioner, with the amount of fees paid and the retainer amount redacted. The amount of fees may be relevant to the potential penalty phase of this proceeding pursuant to section 112.317, Florida Statutes. Accordingly, we remand without prejudice for Petitioner to seek the amount of the retainer and fees charged to this private client during any relevant time periods, should Respondent be found in violation of section 112.311, et seq., Florida Statutes (the Code of Ethics for Public Officers and Employees).

Petition granted, and the administrative law judge’s orders granting Respondent’s motion for protection, and order denying Petitioner’s motion to compel, are quashed.

BOOTH, MINER and KAHN, JJ„ concur.

      . Generally certiorari review is not granted for orders denying discovery. See Adventure Marine and Outdoor, Inc. v. Brennan, 807 So.2d 780 (Fla. 1st DCA 2002). However, the parties have briefed the issue, and due to the highly unusual concession made by Respondent, we are not prohibited from deciding this issue.


text:
    CAFE EROTICA/WE DARE TO BARE/ADULT TOYS/GREAT FOOD/EXIT 94, INC., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D02-1267.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Gary S. Edinger, Esquire, Gainesville, for Appellant.
    Pamela S. Leslie, General Counsel; Richard A. Weis, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellee.
   PER CURIAM.

Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., challenges the Department of Transportation’s Final Order which concluded that, in accord with § 479.16(1), Florida Statutes, appellant’s billboard sign was not an on-premises sign and was therefore subject to permitting requirements pursuant to Chapter 479, Florida Statutes. We affirm the Department’s rulings on this issue without further discussion.

Appellant also argues that sections 479.07 and 479.08, Florida Statutes (2001), as well as Florida Administrative Code Rules 14-10.004 and 14-10.006, impose a facially unconstitutional prior restraint on speech in violation of the First Amendment of the United States Constitution. This court has twice decided this issue in favor of the Department. See Cafe Erotica/We Dare to Bare/Adult Toys, Exit 94, Inc. v. Florida Department of Transportation, 830 So.2d 888 (Fla. 1st DCA, 2002); Cafe Erotica/We Dare to Bare/Adult Toys, Exit 94, Inc. v. Florida Department of Transportation, 830 So.2d 181 (Fla. 1st DCA, 2002).

AFFIRMED.

BARFIELD, MINER and POLSTON, JJ., concur.


text:
    Danny BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-716.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On June 20, 1979, a circuit court judge signed a warrant ordering Appellant’s arrest for a probation violation. However, that warrant was not received by the sheriffs department and executed until April 12, 2000. Nevertheless, on January 19, 2001, the trial court revoked Appellant’s probation and sentenced him to five years in prison. Because the arrest warrant was delivered to the sheriffs department years after Appellant’s five-year probationary sentence had expired, we hold that the trial court did not have jurisdiction to revoke Appellant’s probation. As explained in State v. Boyd, 717 So.2d 524, 526 (Fla.1998), “a trial court lacks jurisdiction to revoke probation after the probationary period for a violation that occurs during the probationary period unless the revocation process is set in motion during the probationary period.” In order to be set in motion, the arrest warrant must be delivered to the executive officer. Id. Accordingly, we REVERSE and REMAND with directions that the order revoking Appellant’s probation and the judgment and sentence entered subsequent thereto be vacated; that the affidavit alleging a violation of Appellant’s probation be dismissed; and that Appellant be discharged.

REVERSED and REMANDED.

BOOTH, MINER and KAHN, JJ„ concur.


text:
    Walter ARMISTEAD, Jolene Armistead, Sea Place, Inc., a Florida corporation, and Island Palms, Inc., a Florida corporation, Petitioners, v. Gene D. BROWN, G. Brown & Company, a Florida corporation, and Marilyn B. Brown, as Trustee of the Brown Family Trust, Respondents.
    No. 1D02-4122.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Charles J. Schreiber, Jr., of Bateman, Harden, Tallahassee, for petitioners.
    Gene D. Brown of the Law Offices of Gene D. Brown, Tallahassee, respondent; Charles D. McClure, Tallahassee, for respondents Marilyn B. Brown and G. Brown & Company.
   PER CURIAM.

DENIED. Young v. Georgia-Pacific Corp., 825 So.2d 1044 (Fla. 1st DCA 2002).

ALLEN, C.J., BOOTH and BARFIELD, JJ., concur.


author: VAN NORTWICK, J.

text:
    Jose CUPON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D01-3146.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.

      See also, 797 So.2d 1.
    Jose Cupón, pro se.
    Robert A. Butterworth, Attorney General and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   VAN NORTWICK, J.

By a petition for writ of habeas corpus, Jose Cupón seeks reversal of a conviction for escape on the ground that appellate counsel who represented him in the direct appeal of his convictions and sentence was ineffective. For the reasons that follow, we grant habeas relief.

While being detained by the federal Immigration and Naturalization Service (INS) in the Bay County jail, which at that time was being operated by a private corporation, Cupón, Gilberto Villegas-Alen, and others escaped. Following his recapture, Cupón was convicted of grand theft and escape, and this court affirmed, without written opinion, those convictions and the concomitant sentence. Cupon v. State, 751 So.2d 572 (Fla. 1st DCA 2000)(Cupon I). Upon review of the grand theft and escape convictions and sentence of Cupon’s co-defendant, Villegas-Alen, this court overturned the escape conviction on the ground that, because Villegas-Alen was a detainee with the Immigration and Naturalization Service, he was not a “prisoner” subject to conviction for escape under the provisions of section 944.40, Florida Statutes (1997), Florida’s escape statute. Villegas-Alen v. State, 797 So.2d 1 (Fla. 1st DCA 2001).

Given the reversal of his co-defendant’s escape conviction and the resulting remand for re-sentencing on the remaining offense, Cupón filed a motion for post-conviction relief under rule 3.850 Florida Rules of Criminal Procedure, arguing that trial counsel was ineffective for failing to raise the objections which preserved the points on which Villegas-Alen’s escape conviction was reversed on appeal. The trial court denied post-conviction relief finding that trial counsel, in fact, did preserve the issue for appellate review. On review, we affirmed. Cupon v. State, 783 So.2d 1240 (Fla. 1st DCA 2001))(Cupon II).

Thereafter, Cupón petitioned for a writ of habeas corpus seeking relief on the authority of Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999), in which the Fourth District held that, in the case of conflicting decisions from an appellate court involving co-defendants, a habeas petition is the proper remedy by which to seek a reconciliation of those conflicting decisions. We denied habeas relief to Cu-pón, however, finding that in his direct appeal Cupon’s appellate counsel did not argue that, since Cupón was an INS detainee and not a “prisoner,” he was not subject to a conviction for escape under section 944.40, but instead “argued that the escape conviction should be reversed because the Bay County Jail annex, where Cupon and Villegas-Alen were being held, was operated by a private corporation under contract with the county.” Cupon v. State, Dep’t of Corrections, 789 So.2d 1121, 1122 (Fla. 1st DCA 2001)(Cupon III). Thus, we held that the results in the cases of Cupón and Villegas-Alen were not in conflict, because the legal issues presented by each were not identical. Id.

Cupón has again petitioned for a writ of habeas corpus claiming ineffective assistance of appellate counsel for failure to raise the issue, preserved below, that an INS detainee is not a “prisoner” under section 944.40 and, thus, a detainee cannot be convicted of escape. A claim of ineffective assistance of appellate counsel is cognizable in a petition for a writ of habeas corpus. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). The standard applicable to a claim of ineffective assistance of appellate counsel raised in a habe-as petition mirrors the Strickland v. Washington standard for trial counsel ineffectiveness. See Jones v. Moore, 794 So.2d 579, 583 (Fla.2001); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir.1992) (applying Strickland test to challenge of counsel’s effectiveness on appeal), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995). As a result, to establish a claim of ineffective assistance of appellate counsel, petitioner must show (i) specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance, and (ii) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. See State v. Riechmann, 777 So.2d 342, 364 (Fla.2000).

Cupón has demonstrated a specific error: appellate counsel’s failure to raise the issue on which Villegas-Alen’s escape conviction was reversed. We have already determined that this issue was preserved at trial, Cupon II, 783 So.2d at 1240, and that the issue was not raised by appellate counsel, Cupon III, 789 So.2d at 1122. Appellate counsel’s failure to raise an issue on appeal may constitute ineffective assistance. See Williams v. Singletary, 765 So.2d 107 (Fla. 2d DCA 2000); Guerra-Villafane v. Singletary, 729 So.2d 972 (Fla. 3d DCA 1999). In the case on review, we conclude that appellate counsel’s failure to raise a preserved and meritorious issue caused the representation to fall outside the range of professionally accepted performance. Compare Lowman v. Moore, 744 So.2d 1210 (Fla. 2d DCA 1999)(holding failure to raise on direct appeal the issue that an essential element of the offense was not proved constituted ineffective assistance of appellate counsel).

Cupón has also sufficiently demonstrated prejudice as a result of the deficient appellate representation because he has shown that “there is a reasonable possibility that, but for counsel’s professional error, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052. Had the issue raised in Villegas-Alen been raised in the instant case in a similar fashion, we would have ruled in the same manner we ruled in Villegas-Alen, Cupon’s sentences would have been reversed, and the cause remanded for re-sentencing. Compare Barnes v. State, 779 So.2d 366, 367 (Fla. 2d DCA 2000)(“Had appellate counsel raised the issue, this court would have remanded for resentencing in accordance with the valid laws in effect....”). Thus, the fairness and correctness of Cu-pon’s prior direct appeal has been undermined.

Accordingly, we grant the petition, vacate his conviction for escape, and remand to the circuit court for resentencing of the remaining offense of grand theft.

WOLF, J., CONCURS and MINER, J., DISSENTS.

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


text:
    Gary William HALL, Appellant, v. Brenda J. HALL, Appellee.
    No. 1D01-3781.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Brian K. Washington of Atwater & Washington, P.A., Orange Park and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    Glenn K. Allen and Jennifer A. Bowens of Glenn K. Allen, P.A., Jacksonville, for Appellee.
   PER CURIAM.

This is an appeal from an order enforcing a final judgment in a dissolution of marriage case. We conclude that the order is correct in all respects but one. The trial court abused its discretion by ordering the former husband to reimburse the former wife for taxes deducted from her share of the benefit restoration plan. Accordingly, we reverse on this point.

In the final dissolution of marriage, the former wife was awarded one-half of the proceeds from the former husband’s benefit restoration plan. Before disbursing the plan’s proceeds to the former husband, his employer deducted twenty-eight percent of the proceeds for tax purposes. The former husband then deducted another three percent for his tax bracket. After accounting for the taxes, the former husband disbursed one-half of the plan’s proceeds to the former wife.

In the enforcement order, the trial court found that the former husband should not have deducted taxes from the former wife’s portion of the plan’s proceeds. Thus, the court ordered the former husband to reimburse the wife for the taxes paid on her half of the proceeds. The effect of the order was to require the former husband to bear the entire tax liability on the plan. Requiring the former husband to incur such a liability was an abuse of discretion. See, e.g., Schwartz v. Schwartz, 750 So.2d 679 (Fla. 4th DCA 1999) (holding that the husband should not become responsible for the entire tax burden on settlement payments).

For these reasons, we reverse the trial court’s tax reimbursement award, but affirm the trial order in all other respects.

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


text:
    Maurice PERDUE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3515.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2002.
    Maurice Perdue, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Floyd v. State, 808 So.2d 175 (Fla.2002).

THOMPSON, C.J., COBB, and PALMER, JJ., concur.


author: GODERICH, Judge.

text:
    Joel W. ROBBINS, as Property Appraiser of Miami-Dade County, Florida, and Department of Revenue, State of Florida, Appellants, v. RACETRACK TRAINING CENTER, INC., Appellee.
    No. 3D02-1596.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2003.

      Robert A. Ginsburg, County Attorney, and Melinda S. Thornton, Assistant County Attorney, for Appellant Miami-Dade County.
    Robert A. Butterworth, Attorney General, and Mark T. Aliff, Assistant Attorney General, for Appellant Department of Revenue, State of Florida.
    Greenberg Traurig, Alan T. Dimond and Benjamin L. Reiss, Miami, for Appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   GODERICH, Judge.

Joel W. Robbins, as Property Appraiser of Miami-Dade County, Florida [Property Appraiser], and the Department of Revenue, State of Florida [Department of Revenue], appeal from an adverse final summary judgment. We affirm.

On January 1, 1998, Racetrack Training Center, Inc. [Racetrack] was the legal titleholder of record of 13.65 fenced acres [the Property] in Miami-Dade County. For the tax year 1998, Racetrack applied to the Property Appraiser for agricultural classification of the Property on the basis that it was used exclusively for the business of training and housing thoroughbred racing horses. The Property Appraiser denied the application for agricultural classification finding that the Property was not used for “bona fide agricultural purposes.” The Property Appraiser placed a preliminary assessment upon the Property at the non-classified value of $615,708.00.

Racetrack filed a petition with the Miami-Dade County Value Adjustment Board contesting the Property Appraiser’s denial of the agricultural classification. A Special Master heard the petition and recommended granting the agricultural classification. The Value Adjustment Board adopted the Special Master’s recommendation and granted the agricultural classification. Consequently, the assessed value of the Property was reduced from a non-classified value of $615,708.00 to a classified value of $364,741.00.

The Property Appraiser then filed suit against Racetrack and the Department of Revenue seeking reinstatement of the non-classified assessment. The parties submitted an amended stipulated statement of facts and filed cross-motions for summary judgment. The facts are summarized below.

In 1984, Racetrack purchased the Property for approximately $753,000.00. Since 1985, the Property was used exclusively as a for-profit business to board and train thoroughbred racing horses. In furtherance of its business, Racetrack made improvements to the Property. By January 1, 1998, Racetrack had constructed a practice racetrack and an equine swimming pool. These improvements were used exclusively by the horses housed and/or trained on the Property and horses housed next door at Calder Race Course.

In operating its training center, Racetrack employed two regular full-time employees, as well as seven to nine independent contractors. On a daily basis, these employees groomed and cleaned the horses, bandaged and applied various medications to their legs, fed them two to three times a day, and exercised them on the practice track and in the equine swimming pool.

In addition, these employees cared for the land by mowing, harrowing, reforesting, trimming, and grading. Racetrack utilized approximately fifty-five employee hours a week to care for the land and the training facility. Racetrack also stored wood shavings on the Property that were used for bedding the horses.

In addition to operating the training center, Racetrack also rented stall space to others who housed their thoroughbred racing horses on the Property. Other trainers had employees that worked on the Property and took care of those horses.

Racetrack also bought, developed, trained, housed, and then resold thoroughbred racing horses. As of January 1,1998, five such horses were housed and trained on the Property. In 1998, Racetrack’s federal income tax return showed a gross income of $639,166.00, $122,737.00 of which was attributable to the sale of horses.

As of January 1, 1998, there were approximately fifty to sixty thoroughbred racing horses living on the Property. Some were being housed and trained by Racetrack, while others were living in stall space rented from Racetrack. In June 1998, there were 108 thoroughbred racing horses living on the Property.

. The Property also housed goats and, on average, fifteen to twenty ponies, to help keep the highly emotional racing horses relaxed, calm, trainable, and capable of engaging in a horse race. At other times, including in 1998, Racetrack also boarded chickens, rabbits, and ducks.

Racetrack did not use the Property for breeding horses, nor did it offer breeding services thereon. Racetrack was not licensed or certified as a horse seller, dealer, or breeder.

On February 28, 2002, the trial court conducted a hearing on the cross-motions for summary judgment. On May 21, 2002, the trial court entered an order granting Racetrack’s motion for summary judgment, denying the Property Appraiser’s motion, and finding that the Racetrack’s use of the Property was a bona fide agricultural purpose entitled to agricultural classification. The Property Appraiser and Department of Revenue appeal from the entry of final summary judgment.

The Property Appraiser and the Department of Revenue contend that the trial court erred, as a matter of law, by granting summary judgment in favor of Racetrack and classifying the Property as agricultural. They argue that the primary use of the property, horse boarding and training, was not a bona fide agricultural purpose. We disagree.

Section 193.461, Florida Statutes (1997), provides, in pertinent part:

Agricultural lands; classification and assessment/—
(3)(b) [OJnly lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. “Bona fide agricultural purposes” means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
1. The length of time the land has been so utilized;
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agricultural use;
5. WTiether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
7. Such other factors as may from time to time become applicable.
(5) For the purpose of this section, “agricultural purposes” includes, but is not limited to, horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; bee; pisciculture, when the land is used principally for the production of tropical fish; aquaculture; sod farming; and all forms of farm products and farm production.

(emphasis added).

In examining the meaning of section 193.416(3)(b), the Fourth District has stated:

The term ‘primarily’ simply signifies that the agricultural use must be the most significant activity on the land where the land supports diverse activities. The terms ‘bona fide’ as used in the statute impose the requirement that the agricultural use be real, actual, of a genuine nature — as opposed to a sham or deception.

Aitken v. Markham, 595 So.2d 159, 161 (Fla. 4th DCA 1992)(quoting Gianolio v. Markham, 564 So.2d 1131, 1133 (Fla. 4th DCA), review denied, 569 So.2d 1279 (Fla.1990) (citations omitted)).

In the instant case, there are no allegations that Racetrack’s use of the Property for boarding and training thoroughbred racing horses was not the primary use or that such use was a sham. Rather, the Property Appraiser and the Department of Revenue contest the agricultural classification on the basis that section 193.416(5) defines “agricultural purposes” to include “livestock ... and all forms of farm products and farm production.” They argue that the latter phrase operates to limit the term “agricultural purposes” to situations where the property owner is raising or producing livestock. In support thereof, the Property Appraiser and Department of Revenue rely on Aitken where agricultural classification was granted to a property owner who bred and raised Dutch Warm-blood jumping horses.

Racetrack vehemently opposes this position and properly argues that statutes must be given their plain meaning. The statute in question merely states that “ ‘agricultural purposes’ ... includes ... livestock.... ” We find that the phrase, “all forms of farm products and farm production,” is not meant to be a limiting phrase but rather a catch-all. Further, when the legislature wanted to limit a category, it did so as is exemplified by its limitation on pisciculture to situations “when the land is used principally for the production of tropical fish.” § 193.461(5), Fla. Stat. (1997). Therefore, we must look at the plain meaning of the term “livestock.” Although not specifically defined in section 193.461 or related sections, the term “livestock” has been defined consistently throughout the Florida Statutes to include “horses.” See § 212.02(29), Fla. Stat. (1998 Supp.); § 585.01(13), Fla. Stat. (1997); § 588.13(1), Fla. Stat. (1997); § 828.23, Fla. Stat. (1997); Aitken, 595 So.2d at 161 (finding that “livestock” as defined in the Florida Administrative Code includes horses).

For these reasons, we conclude that the record supports the trial court’s conclusion that for the calendar year 1998, Racetrack’s primary use of the Property was for the bona fide agricultural purpose of boarding and training thoroughbred racing horses.

Accordingly, we affirm the entry of final summary judgment.


author: RAMIREZ, J.

text:
    Armando VEGA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D02-932.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2003.
    Keith M. Stern, for appellant.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and COPE, and RAMIREZ, JJ.
   RAMIREZ, J.

Armando Vega appeals the conclusion of the Unemployment Appeals Commission that he was ineligible for unemployment benefits because he was discharged for misconduct connected with his work. We reverse because the behavior which led to Vega’s discharge did not amount to misconduct under section 443.036(29), Florida Statutes (2001)-

The appeals referee’s findings of fact are undisputed. Parallel Trading, Inc. hired Vega to serve as its warehouse manager. His work schedule was Monday through Friday from 9:00 á.m. to 5:00 p.m. On most occasions, Vega would arrive to work by 7:00 a.m. He would occasionally work on Saturday and Sunday. Vega was aware that he needed to call and notify his employer prior to his scheduled start time if he was unable to report to work.

On Tuesday, June 12, 2001, at 7:00 a.m., Vega’s car broke down as he was going to work. He did not call or report to work that day because he was trying to get a mechanic to look at his car and see what was wrong with it. He did not notify his employer that he would be absent until 11:00 a.m. the next morning. He explained that the transmission had gone out on his car. Vega told the owner that he would call when his car was fixed. The owner said “o.k.” Vega called his employer again at 11:00 a.m. on Friday, June 15, 2001, to advise that his car had now been repaired and he could report for work on Monday, June 18th. The owner told Vega that “although he was a good worker he needed someone who was going to be there and [Vega] needed to straighten out his personal life.”

We disagree with the referee’s conclusion that these facts constitute misconduct under the statute. In Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000), the court stated that:

In defining misconduct, courts are required to liberally construe the statute in favor of the employee. Additionally, awards determinations must be made against the backdrop that the remedial aspect of the unemployment compensation statutory scheme requires a liberal construction in favor of awarding benefits.

(citations omitted). Section 443.036(29) defines “misconduct” to include:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

Appellee relies on Barragan v. Williams Island, 568 So.2d 106 (Fla. 3d DCA 1990) to argue that Vega’s acts constituted misconduct. Barragan called on the day he was to report for work and spoke with a coworker. He was told that his supervisor was busy. He requested the coworker to inform the supervisor that he was going to be absent due to illness. Barragan did not call the next day when he was absent again and was discharged. We affirmed the denial of benefits because “[t]he employer presented competent substantial evidence that a work rule was in force which required an employee to call in to report an absence. The employee, although he had been warned of this rule, disregarded it.” Id. at 107.

There was no evidence presented that Vega’s employer had a call-in work rule. The referee merely found that Vega was aware he needed to call in if he was unable to report to work, but there was nothing so formal as a work rule, nor any evidence that he had been previously warned. On the contrary, , during the Wednesday phone call, his employer acquiesced to Vega’s plan to report to work once his car had been repaired.

We are thus left with Vega’s single transgression of failing to call on Tuesday when his car initially broke down. This did not amount to misconduct under the statute and case law. At best, it was an isolated act of misjudgment on his part. See Bates v. Unemployment Appeals Comm’n, 655 So.2d 1242, 1243 (Fla. 2d DCA 1995) (reversing the denial of benefits based on the failure on the part of the employee to use good judgment).

We therefore reverse the decision of the Commission.


author: FULMER, Judge.

text:
    Charles CAIRL, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-3511.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Richard Doran, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

EN BANC

Charles Cairl appeals the sentences he received for his convictions for handling* and fondling a child under the age of sixteen and committing a lewd and lascivious act in the presence of a child under the age of sixteen. The trial court originally sentenced Cairl, after jury trial, under the 1995 guidelines. In response to a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Cairl was resen-tenced under the 1994 guidelines as required by Heggs v. State, 759 So.2d 620 (Fla.2000). However, the trial court denied Cairl’s claim that he should be sentenced under the most lenient guidelines in effect during the time frame alleged in the information and, instead, applied the guidelines in effect on the end date alleged in the information. We conclude that the trial court erred and, therefore, reverse and remand for resentencing.

Cairl was charged with two single offenses alleged to have occurred on or between January 1, 1991, and February 4, 1997. Cairl argues that because these dates straddle three different sentencing guideline time frames and because neither the evidence nor the verdict pinpointed the date of the offenses, he is entitled to be sentenced under the most lenient of the three, which was the version in effect between January 1, 1991, and April 7, 1992. We agree.

In its order addressing Cairl’s motion, the trial court made a finding that, based on the evidence presented at trial, the time frame within which the offenses were alleged to have been committed could be narrowed to between September 11, 1992, and February 4, 1997. The trial court then relied on our opinion in Hankin v. State, 682 So.2d 602 (Fla. 2d DCA 1996), to conclude that prior to October 1,1995, case law established that in cases where continuing dates of enterprise exist, the end date is used to determine which guidelines apply. In Hankin, this court stated that prior to 1995, “[t]he existing law was Puffinberger v. State, 581 So.2d 897 (Fla.1991), where the supreme court held that the law in effect at the end of the criminal enterprise applied.” 682 So.2d at 603. Given this language in Hankin, we understand the trial court’s ruling that Cairl should be sentenced under the 1994 guidelines based on the end date of February 4, 1997. However, we now conclude that Hankin applies an overly expansive reading of Puf-finberger.

In Pujfinberger, the defendant’s offense was committed during a time frame that spanned the date of a change in the law adding permitted ranges to the guidelines. The supreme court, in remanding for re-sentencing on an unrelated issue, addressed the defendant’s contention that use of the permitted range in resentencing would violate the prohibition against ex post facto laws. The court stated that because the defendant was convicted of an offense which continued after the effective date of the permitted guideline ranges, use of this range does not violate the ex post facto law prohibition. Thus, contrary to what we stated in Hankin, Puffinberger does not mandate the use of the guidelines in effect at the end of a time frame such as that alleged in Cairl’s information.

We digress at this point to discuss section 921.001(4)(b)(3), Florida Statutes (1995), which provides that felonies with continuing dates of enterprise are to be sentenced under the guidelines in effect on the beginning date of the criminal activity. In Hankin, this court acknowledged the enactment of section 921.001(4)(b)(3) and stated that this provision did not apply to Hankin because it took effect in 1995, after Hankin completed his offenses in 1994. Thus, by implication we concluded that but for the effective date this provision would apply in Hankin’s case. We now conclude that section 921.001(4)(b)(3) should be applied only in cases where the charged felony is a true continuing offense and should not be applied in cases such as Cairl’s where the information charges an offense that occurred at some unidentified point in time during a specified time frame. See Young v. Moore, 820 So.2d 901 (Fla.2002).

Cairl’s argument in this appeal is based on the rule of lenity, which was not discussed in Hankin. Cairl cites a number of cases in support of the proposition that when sentencing laws change during a period in which a defendant is alleged to have committed an offense, the defendant should be sentenced under the more lenient version of the guidelines. See Schloesser v. State, 697 So.2d 942 (Fla. 2d DCA 1997); Duer v. Moore, 765 So.2d 743 (Fla. 1st DCA 2000); Maitre v. State, 770 So.2d 309 (Fla. 4th DCA 2000); Gilbert v. State, 680 So.2d 1132 (Fla. 3d DCA 1996). Each of these cases cites State v. Griffith, 675 So.2d 911 (Fla.1996), as authority for applying the rule of lenity.

In Griffith, the defendant was charged with committing offenses that spanned the period of time when the defendant was between fifteen and seventeen years of age. The supreme court approved a Fourth District decision that applied the rule of lenity to arrive at the assumption that the defendant was under sixteen when he committed all the offenses. 675 So.2d at 912. Griffith supports the view that Cairl is entitled to the benefit of the doubt and should be sentenced under the most lenient version of the guidelines in effect during the time frame alleged in the information. Further, we agree with Cairl’s contention that without a jury finding as to the offense dates, Cairl is entitled to be resentenced to the most lenient version of the guidelines in effect during the time frame alleged in the information as opposed to the time frame that the trial court determined should apply. See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (“Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury’s function to be the finder of fact with regard to matters concerning the criminal episode.”).

Accordingly, we recede from Hankin to the extent that it conflicts with our holding herein.

Reversed and remanded for resentenc-ing.

BLUE, C.J., and PARKER, ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, COVINGTON, KELLY, and CANADY, JJ., Concur.

      . The three relevant sentencing guideline times frames are: (1) January 1, 1991, to April 7, 1992, during which Karchesky v. State, 591 So.2d 930 (Fla.1992), controlled the issue of victim injury points; (2) April 8, 1992, to December 31, 1993, during which Karchesky was abrogated by statute (see § 921.001, Fla. Stat. (Supp.1992); Fulkroad v. State, 640 So.2d 1160 (Fla. 2d DCA 1994)); and (3) January 1, 1994, to February 4, 1997, during which the 1994 guidelines apply (see Mays v. State, 717 So.2d 515 (Fla.1998); Trapp v. State, 760 So.2d 924 (Fla.2000)).

      . Although we stated that the statute took effect in 1995, this provision was originally enacted as part of chapter 95-184, Laws of Florida, the chapter law at issue in Heggs v. State, 759 So.2d 620 (Fla.2000), and did not . take effect until May 24, 1997.

      . We do not recede from our holding in Hankin v. State, 682 So.2d 602 (Fla. 2d DCA 1996), wherein this court addressed a challenge to an upward departure sentence on the ground that the aggravating circumstances allowed in section 921.0016(3)(n), Florida Statutes (1993), is unconstitutionally vague. We held that "the statute is not constitutionally infirm." 682 So.2d at 604.


author: WHATLEY, Judge.

text:
    William Hartwell COOKE, Appellant, v. CUSTOM CRETE OF SOUTHWEST FLORIDA, INC., Appellee.
    No. 2D02-1393.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    Daniel M. Grissom of Stabinski & Funt, P.A., Miami, for Appellant.
    Richard D. Sparkman of Sparkman and Quinn, P.A., Naples, for Appellee.
   WHATLEY, Judge.

William Hartwell Cooke appeals the final judgment awarding Custom Crete of Southwest Florida, Inc. attorney’s fees and costs pursuant to section 57.105(1), Florida Statutes (1999). We reverse.

In September 1997, Cooke was injured when he fell on exposed iron reinforcement bars while working at a construction site. He engaged counsel to represent him, and the attorney consulted with the general contractor for the job to determine who was responsible for the exposed reinforcement bars. The general contractor provided counsel with the names of four subcontractors whom he thought were at fault. He could not be more specific because he was no longer in business and had destroyed his records. Counsel filed a negligence action against all four subcontractors in October 1999, but that action was dismissed without prejudice following counsel’s withdrawal due to a conflict. Prior to the dismissal, Custom Crete contacted Cooke’s counsel and informed him that it could not have been responsible for Cooke’s injuries because it performed no work at the job site until three months after Cooke was injured.

Cooke hired new counsel who filed another action for negligence against all four subcontractors on May 18, 2001. Custom Crete also informed this attorney that it could not have been at fault, and it provided an invoice as proof. Cooke’s counsel informed Custom Crete that because the statute of limitations was running, he would need some form of sworn testimony before he could drop Custom Crete as a party. Custom Crete filed an answer and a counterclaim alleging that it was not on the job at the time of Cooke’s injuries and seeking attorney’s fees pursuant to section 57.105. Custom Crete also filed answers to interrogatories. On August 16, 2001, Cooke took the deposition of a representative of Custom Crete, and on August 27, 2001, Cooke voluntarily dismissed Custom Crete and another subcontractor.

Custom Crete subsequently filed a motion for attorney’s fees and costs pursuant to section 57.105. At the hearing on the motion, the trial court found that although Cooke’s counsel “acted reasonably” in filing suit and protecting against malpractice, Custom Crete should not have to incur any costs when it was not even on the job site until after Cooke was injured. The court entered final judgment awarding Custom Crete the amount of attorney’s fees and costs it sought and awarding its expert witness his fee. The judgment contains no findings concerning the basis for the award of fees or concerning the number of hours expended and the hourly rate used to calculate the amount of fees.

Section 57.105(1) provides for the award of attorney’s fees in any action:

[I]n which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands County Bd. of County Comm’rs, 817 So.2d 922 (Fla. 2d DCA 2002).

The trial court in the present case did not find that'Cooke or his attorney knew or should have known that Cooke’s claim was not supported by material facts. To the contrary, the court found that Cooke’s counsel acted reasonably in filing suit. In addition, Custom Crete’s expert witness testified that it would be a bad idea for a plaintiffs counsel to dismiss a party when the statute of limitations was close to running and he had no definitive evidence whether that party was involved. That witness also testified that during his examination of the record, he saw no affidavits by Custom Crete or its attorney supporting Custom Crete’s position. The transcript of the hearing contains no indication that Custom Crete introduced the invoice it had sent Cooke, nor is that invoice in the record.

Thus, not only do the trial court’s own findings reveal the error in the court’s award of fees to Custom Crete, the record reveals a lack of substantial, competent evidence to support that award.

Accordingly, we reverse the final judgment.

COVINGTON and KELLY, JJ., Concur.

      . Although not determinative of this appeal, we note that the trial court also erred in failing to set forth in the final judgment findings regarding the number of hours and the hourly rate used to calculate the fee amount. Mason v. Highlands County Bd. of County Comm’rs, 817 So.2d 922, 924 n. 1 (Fla. 2d DCA 2002).


text:
    Walter W. CORSE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4906.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Walter Corse appeals from the. trial court’s order modifying the conditions of his community control. We affirm the finding of a willful violation but reverse the modification order.

After hearing testimony regarding a violation of community control, the trial court found Corse to be in violation but did not revoke his community control. Instead, the trial court imposed 364 days of county jail as an additional condition of community control and specifically ordered that there be no credit for time served. We agree with Corse that this modification was illegal because the trial court was required to grant credit for all time served since Corse’s original arrest for the instant offenses. See Hyatt v. State, 605 So.2d 957, 958 (Fla. 2d DCA 1992). We reject the contention that Corse validly waived his right to credit for time served.

Reversed and remanded for Corse’s jail term to be properly credited.

SILBERMAN and COVINGTON, JJ., Concur.


text:
    Shannon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-2989.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm Shannon Williams’ convictions and sentences without prejudice to his right to seek appropriate postconviction relief.

WHATLEY, COVINGTON, and KELLY, JJ„ Concur.


author: DAVIS, Judge.

text:
    Bonnie MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3617.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Bonnie Miller challenges the circuit court’s final judgment of restitution requiring her to pay Shirley Dobruck $10,000 for a stolen coin collection. We reverse.

Hearsay may not be the basis for ordering restitution. Green v. State, 652 So.2d 958 (Fla. 2d DCA 1995). Here, the only witness for the State was the victim’s son, Robert Burger, who testified that his mother had eight to ten one-gallon bags of coins that she kept in a lock box in her home. The collection had never been appraised or insured, and Burger never counted or inventoried the collection. Although he knew what denominations of coins made up the collection, he was unaware of the amounts of each particular coin and whether the bags contained similar amounts.

Burger testified that a pawnbroker had paid his mother $1000 for a small box containing approximately one-fifth of the contents of one of the gallon bags. However, the pawnbroker did not testify regarding that valuation, and the State failed to establish how Burger came to know of the pawnbroker’s valuation.

Accordingly, Burger’s testimony did not establish by a preponderance of the evidence the amount of the victim’s loss. See Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997). At most, it was speculative opinion testimony based on hearsay information that he received either directly from the pawnbroker or through his mother.

It also was error for the trial court to conduct the restitution hearing in Miller’s absence without a showing that her absence was voluntary. “A defendant has a right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence.” Papageorge v. State, 710 So.2d 53, 54 (Fla. 4th DCA 1998). Sentencing is such a stage of a trial. Id. at 55. Although a defendant can waive the right to be present at sentencing, the waiver must be made knowingly, intelligently, and voluntarily. A waiver can include voluntarily absenting oneself without leave of court. Id.

Here, Millers counsel represented that Miller was bedridden and awaiting surgery at an area hospital, and the State presented nothing to contradict this assertion. Thus, the record does not demonstrate that Miller voluntarily absented herself from the restitution hearing nor that she knowingly and intelligently waived her presence.

Reversed and remanded for a new restitution hearing.

BLUE, C.J., and KELLY, J., Concur.


author: PER CURIAM. SHAHOOD, J.,

text:
    BAL BAY REALTY, LTD., Appellant, v. PEPSOMERS CORPORATION, a New York Corporation, Sheldon Good & Company, JBE Associates, a Florida General Partnership, and John Brunetti, Appellees.
    No. 4D01-2781.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Joseph P. Kloek, Jr., Ron A. Adams, and Robert C.L. Vaughan of Steel Hector & Davis, LLP, Miami, for appellant.
    David D. Welch of Welch, Finkel & Schuyler, Pompano Beach, for appellee JBE Associates.
   ON MOTIONS FOR REHEARING, REHEARING EN BANC & CERTIFICATION

PER CURIAM.

We deny appellee’s motions for rehearing, rehearing en banc and certification. In so doing, we withdraw the opinion filed on September 25, 2002, and substitute the following in its place.

This is an appeal from an order granting attorney’s fees and costs. Because the motion was not filed in a reasonable time after the entry of the final judgment, we reverse.

On January 24, 1996, JBE Associates (JBE) and appellant Bal Bay entered into a written purchase and sale contract in which Bal Bay agreed to buy the hidden Harbor Apartments from JBE for $16,800,000. The contract followed a real estate auction held by auctioneer company, Sheldon Good & Company, whereby Sheldon declared that Bal Bay had submitted the winning bid. However, Pepsomers Corporation believed that it had made the winning bid and was legally entitled to purchase the property from JBE for $16,750,000.

Consequently, on February 5, 1996, Pep-somers filed an action against Sheldon, JBE and Bal Bay challenging the contract. Pepsomers also filed a lis pendens against the property. Following the filing of the complaint, JBE filed an answer and counterclaim as well as a cross-claim against Bal Bay, alleging that the contract had been terminated by Bal Bay’s refusal to close. Thereafter, Bal Bay filed a cross-claim against JBE, alleging that JBE breached the contract. On May 26, 1998, the trial court entered final summary judgment for JBE on its cross-claim for declaratory relief and ordered that the contract be terminated. The trial court also filed a final summary judgment in favor of JBE on Bal Bay’s cross-claim on December 15, 1998.

Bal Bay appealed both summary judgment orders. This court affirmed the summary judgment on JBE’s cross-claim and dismissed the appeal of the summary judgment on Bal Bay’s cross-claim. Consequently, as the prevailing party in the appellate court, JBE filed a motion for appellate attorney’s fees against Bal Bay. On April 7, 1999, this court granted the motion and ordered the trial court to conduct a hearing to determine the reasonable attorney’s fees for JBE. Bal Bay filed a Motion for Rehearing or Clarification, which was denied, and a mandate was issued by this court on June 4,1999.

It was not until February 15, 2000, that JBE filed its motion for attorney’s fees and costs, which reflected its time litigating the cross-claim. The motion was subsequently amended on September 11, 2000. An evidentiary hearing was held on the motion on May 24, 2001, at which Bal Bay mainly argued that JBE had filed its motion too late. The trial court granted JBE’s motion for both the trial and appellate proceedings on June 15, 2001. The trial court stated:

JBE is entitled to an award of its reasonable attorney’s fees against Bal Bay. First, there was no prejudice nor surprise to Bal Bay that JBE’s attorney’s fees were being sought. Second, there was a reasonable basis and explanation for the time delay in the filing of JBE’s motion for attorney’s fees. USF & G v. Martin [County ], 669 So.2d 1065 (Fla. 4th DCA 1996).

The trial court awarded $30,330 for trial fees, $20,500 for appellate fees, and fees in the amount of $10,143.50 for time expended litigating the issue of entitlement to an award of attorney’s fees. In addition, the trial court ordered prejudgment interest in the amount of $4,465.07 and $5,616 per diem interest. This appeal followed.

Initially, appellant argues that JBE’s motion for attorney’s fees was untimely. The trial court entered summary judgments as to the cross-claims between JBE and Bal Bay on May 29, 1998, and December 14, 1998. Both orders were appealed; the summary judgment on JBE’s claim was affirmed and the appeal of the summary judgment on Bal Bay’s cross-claim was dismissed. On April 7, 1999, this court granted JBE’s motion for attorney’s fees as the prevailing party on appeal and ordered the trial court to conduct a hearing to determine reasonable appellate fees. Mandate was issued by this court on June 4, 1999. JBE did not file its motion for attorney’s fees and costs until February 15, 2000. Appellant acknowledges that JBE pled entitlement to fees below, but focuses its argument on JBE’s alleged failure to file its motion for attorney’s fees within a reasonable time after the entry of final judgment.

“Proof of attorney’s fees may be presented after final judgment, upon motion within a reasonable time.” Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991). The trial court based its decision that the motion was timely on United States Fidelity & Guaranty [USF & G ] v. Martin County, 669 So.2d 1065, 1066 (Fla. 4th DCA 1996), where this court held that a motion for attorney’s fees filed eight days after the appellate decision on the case was timely. In USF & G, this court concluded that it is not unreasonable to delay the filing of a motion for attorney’s fees until after the appeal is heard on the case. See id. at 1068. Nevertheless, the time that elapsed after the “final” decision in USF & G and the time elapsed here is substantially different. In USF & G, only eight days had passed between the appellate court’s decision and the filing of the motion for attorney’s fees, whereas here, it was eight months.

Neither party has presented this court with any authority directly on point indicating whether an eight-month delay between the rendering of an appellate decision and the filing of a motion for attorney’s fees can be considered reasonably timely. In McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So.2d 1012 (Fla. 4th DCA 1994), it was unclear whether the successful party, the respondent, ever moved for attorney’s fees in the county court at any time. The respondent filed several motions for attorney’s fees, pursuant to section 57.105(2), in the circuit court after an appeal had been filed by petitioner. This court, in dicta, opined that “a trial court generally should not grant a post-judgment motion for attorney’s fees filed almost three months after the judgment on the merits because of ‘unreasonable tardiness.’ ” Id. at 1013.

National Environmental Products, Ltd., Inc. v. Falls, 678 So.2d 869 (Fla. 4th DCA 1996), is perhaps the closest case. There, this court held that a motion filed nineteen months after entry of a judgment and six months after issuance of the appellate court’s mandate in the appeal of that judgment, “far exceed[ed] a reasonable time” and was “presumptively” and “clearly” unreasonable. Id. at 871-72. In Falls, the motion for attorney’s fees was based on the alleged absence of a justiciable issue of law or fact pursuant to section 57.105. The court noted that the delayed, six months post-mandate filing constituted unfair surprise and that it would be incumbent upon the movant to demonstrate “special or extenuating” circumstances. Falls, 678 So.2d at 871. No special or extenuating circumstances were proffered for the delay. See id.

Falls is distinguishable from the instant case in a number of respects. First, the motion for attorney’s fees in Falls was based on section 57.105, and the issue of fees was raised for the first time in the post-judgment motion, filed six months after the mandate. The court in Falls noted:

[WJhere litigation has long since been concluded and where the prevailing party has not raised the issue of section 57.105 attorney’s fees, the losing party should be able to safely assume that such fees are not being sought.... Where, as here, there is an unreasonable delay, it can no longer be said that all parties continue to be on perpetual notice that attorney’s fees may be awarded; thus, there is most definitely the possibility for unfair surprise ....

678 So.2d at 871-72. In the instant case, JBE had raised the issue of prevailing party attorney’s fees throughout the lower court. Second, the instant case differs from Falls in that, here, the movant has offered an explanation for the delay which the trial court has determined to be “reasonable” under the circumstances of this case.

Despite the distinctions between Falls and the instant case, we find Falls persuasive. We conclude that, under the facts and circumstances of this case, JBE’s motion for attorney’s fees was not filed in a reasonable time after entry of the final judgment and should have been denied. Here, the motions for attorney’s fees were filed 14 and 21 months respectively after entry of the final judgment. We recognize that based on the holding in USF & G, the time spent waiting on the appeal to be finalized must also be factored into the consideration as to whether the delay between the entry of final judgment and- the filing of a motion for attorney’s fees is reasonable. Nonetheless, JBE did not file its motion for attorney’s fees until eight months after the mandate was issued. Even though the case was on-going as to JBE and other parties, it was final as to JBE and Bal Bay.

In Falls, the court suggested that “special or extenuating” circumstances could be considered in determining whether a motion for attorney’s fees filed post-judgment was timely filed. 678 So.2d at 871. Here, the only special or extenuating circumstance presented to the trial court by JBE’s counsel was the fact that the case was complicated and it took extra time to separate the fees attributable to the cross-claims from those of the main action. Yet, JBE’s counsel stated that he spent only between 15 to 20 hours over the eight-month period reviewing records in an effort to determine the proper amount of time to allocate to the cross-claim. While some minimal delay in filing the attorney’s fees motions under the circumstances in this case may have been necessary, the trial court abused its discretion in finding that an eight-month delay was reasonable.

Most appellate courts considering a trial court’s determination as to the timeliness of a post-judgment motion for attorney’s fees have apparently reviewed the order for legal error, rather than an abuse of discretion. See Falls; USF & G; McAskill; Swortz v. S. Rainbow Corp., 603 So.2d 107 (Fla. 3d DCA 1992); see also Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998). Notwithstanding, whether reviewed de novo or for an abuse of discretion, the order on JBE’s motion for attorney’s fees should have been denied as untimely. Accordingly, the order on appeal granting JBE’s motion for attorney’s fees is REVERSED.

STEVENSON and MAY, JJ„ concur.

SHAHOOD, J., dissents with opinion.

SHAHOOD, J.,

dissenting.

I respectfully dissent. I would affirm the trial court’s award of attorney’s fees and costs. Even though the litigation was final as to Bal Bay and JBE on their cross-claims, it was still pending as to JBE and other parties. Because this was a highly complex and lengthy case, I agree with the trial court’s conclusion that, “there was a reasonable basis and explanation for the time delay in the filing of JBE’s motion for attorney’s fees.”

      . We write on rehearing only to clarify that this court has not announced any bright-line time requirement as to when a post-judgment motion for attorney's fees should be considered untimely. In this, we agree with Shipley v. Belleair Group, Inc., 759 So.2d 28, 30 (Fla. 2d DCA 2000), that a determination of whether a post-judgment motion for attorney's fees has been made in a reasonable time must be made based upon "all the facts and circumstances of a particular case.”

      . In the instant case, the trial court did not reserve jurisdiction in the final order to award attorney's fees. Nevertheless, the absence of such a reservation does not necessarily deprive the trial court of jurisdiction to entertain a post-judgment motion for attorney's fees, provided that the motion is filed within a reasonable time after entry of final judgment. See Folta v. Bolton, 493 So.2d 440, 443 (Fla.1986).

      . This court noted in USF & G that:
      If it were not dicta, the statement may have conflicted with Folta v. Bolton, 493 So.2d 440, 443-44 (Fla.1986), in which the court cited with approval the Supreme Court's determination in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), that a post-judgment motion for attorney's fees must be made within a reasonable time and that a motion filed four and one-half months after entry of final judgment was filed within a reasonable time.
      669 So.2d at 1066 n. 1.

      . We note that the time for filing a motion for attorney's fees would now be governed by Florida Rule of Civil Procedure 1.525, which provides that "[a]ny party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment.” Rule 1.525 only became effective, however, on January 1, 2001. See In re Amendments to Fla. Rules of Civil Procedure, 773 So.2d 1098, 1099 (Fla.2000); see also Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452 (Fla. 1st DCA 2002).


text:
    Sunday GUIDRY, et al. v. The GATES CORPORATION et al.
    No. 2002-CC-3055.
    Supreme Court of Louisiana.
    Dec. 13, 2002.
   In re Gates Corporation, The et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. G, No. 98-71852; to the Court of Appeal, Third Circuit, No. CW 02-01358.

Denied.

TRAYLOR, J., recused.

VICTORY, J., would grant the stay and the writ.