author: ERVIN, J. PADOVANO, J.,

text:
    Dorothy F. ALLEN, Appellant, v. PROTEL, INC., and Travelers Insurance Company, Appellees.
    No. 1D02-1265.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.

      H. Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox and Brendan M. Lee of Macfarlane, Ferguson & McMullen, Tampa, for Appellant.
    Peter H. Dubbeld of Dubbeld & Kael-ber, P.A., St. Petersburg, for Appellees.
   ERVIN, J.

This is an appeal from a final workers’ compensation order in which Dorothy F. Allen, claimant, argues that the judge of compensation claims (JCC) erred in denying her claim for permanent total disability (PTD) benefits. We reverse and remand, because the findings recited in the order are so conflicting and inconsistent as to make meaningful review impossible.

After claimant suffered an industrial injury to her back on January 23, 1998, and received treatment therefor, she was diagnosed with depression, and she sought temporary total and/or temporary partial disability benefits, or, in the alternative, if she were determined to be at maximum medical improvement (MMI), PTD benefits. Her treating psychiatrist, Dr. Arturo Gonzalez, opined that claimant was at MMI as of August 1998, with a permanent impairment (PI) of 10 percent, and was totally disabled from her psychiatric condition alone.

Claimant later obtained an independent medical examination (IME) from Dr. Robert Martinez, a neurologist, who diagnosed her as suffering from chronic severe cervical, thoracic and lumbosacral strains, which he attributed to her work activities, and opined that she was at MMI with a 23-percent PI rating to the body as a whole and unable to return to any type of employment. His report contrasted sharply with that of Dr. James Patterson, a physiatrist, who diagnosed claimant with chronic neck pain syndrome which did not require surgery, and he assigned a 3-per-cent PI rating for her cervical condition and a 3-percent rating for soft-tissue injuries.

Thereafter, Protel, Inc., and Travelers Insurance Company, the employer and carrier (E/C), retained Dr. Arthur Forman to perform a psychiatric evaluation. He concluded that claimant was malingering and had no need for psychiatric care and was able to work. Upon receiving Dr. Forman’s report, claimant selected Dr. Thomas McClane to perform a psychiatric IME. He opined that she was suffering from severe major depression and pain disorder, that she was not yet at psychiatric MMI, and that she was unable to perform even sedentary work on a continuous and uninterrupted basis due to her chronic pain and depression.

Because the opinions of Drs. Forman and McClane conflicted, the JCC appointed Dr. Charles Dack as a psychiatric expert medical advisor (EMA). When Dr. Dack first evaluated claimant in December 1999, he concluded that she was malingering. He based his opinion primarily on what he determined was an inconsistency between her history and behavior during his evaluation, and what he observed on a surveillance video secured by the E/C in November 1998, in which she was seen doing numerous physical tasks with no apparent difficulty.

Claimant thereafter came under the care of Dr. David Cahill, a neurosurgeon, who, after diagnosing her with cervical spondy-losis with a two-level root and cord compression, performed a C5 corpectomy and a C4-6 anterior cervical fusion in March 2000. In September 2001, she returned to Dr. Martinez for an updated neurological IME, which verified the presence of swelling and muscle spasm in the cervical, thoracic and lumbar areas of the spine. Based upon his findings, he again concluded that she was totally disabled and required chronic-pain management and psychiatric treatment.

Claimant also sought updated evaluations from Drs. McClane and Dack. Upon conducting his examination in October 2001, Dr McClane placed claimant at psychiatric MMI with a 24-percent PI rating and advised that she was unable to engage in any type of continuous, uninterrupted work activity. Based upon information regarding claimant’s neck surgery that was unavailable to him at the time of his initial examination, Dr. Dack, in January 2002, concluded that his former opinion that claimant was malingering was incorrect, and he then diagnosed her with a mood disorder due to spinal disease with chronic, severe pain, as well as a major depressive episode. Dr. Dack determined that she had reached psychiatric MMI with a 20-percent psychiatric PI rating and opined that she was totally disabled from a psychiatric standpoint.

In his final order of compensation, the JCC decided that claimant had established compensable physical and psychiatric injuries as a result of her industrial accident. Finding that she had demonstrated a 10-percent psychiatric PI and a 9-percent physical PI, the JCC concluded claimant had sustained an overall PI rating of 19-percent to the body as a whole. Based on these ratings, the JCC determined that she was capable of substantial gainful employment and denied her request for PTD benefits. He did, however, award her temporary partial disability (TPD) benefits and ordered the E/C to pay impairment benefits to her upon the expiration of 104 weeks of TPD benefits. He further ordered the E/C to pay for past psychiatric care and treatment with Dr. Gonzalez and authorized Dr. Gonzalez to provide further care and treatment as necessary.

Although claimant recognizes that our review standard over the order appealed is that of competent, substantial evidence (CSE), she nonetheless argues that the JCC erred in denying her claim for PTD benefits, in that there is no clear and convincing evidence to overcome the opinion of the EMA physician that claimant was incapable of employment from a psychiatric standpoint. Claimant points out that the presumption of correctness accorded to an EMA’s opinion can only be overcome by clear and convincing evidence. See § 440.13(9)(c), Fla. Stat. (1997). As so phrased, claimant’s argument implies that our review standard is to decide whether the findings in the JCC’s order are supported by clear and convincing evidence. This court, however, has on numerous occasions explained that is not our task. For example, in McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998), we pointed out that the heightened standard of proof before a JCC does not change the standard of review in an appellate court. We continued with the following pertinent comments:

In civil cases involving the burden of clear and convincing evidence, an appellate court may not overturn a trial court’s finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing. Accordingly, the appellate court’s function is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard, but to determine whether the record contains competent substantial evidence to meet the clear and convincing evidence standard.

Id. at 353-54 (citations omitted).

On review of an order rejecting an EMA’s, opinion, this court, while reiterating the rule stated in McKesson Drug Co., pointed out that the application of the CSE standard still requires the reviewing court “to decide whether there was a reasonable basis for rejecting an expert medical advis- or’s opinion as clearly and convincingly disproven.” Walgreen Co. v. Carver, 770 So.2d 172, 175 (Fla. 1st DCA 2000). We observed, regarding the effect of such evidence:

An expert medical advisor’s opinion is presumed to be correct and may only be rejected on the basis of clear and convincing evidence. See § 440.13(9)(c), Fla. Stat. (1999). We have said that an expert medical advisor’s opinion has “nearly conclusive effect.” ... It creates a presumption that can be overcome only by “evidence ... of a quality and character so as to produce in the mind of the JCC a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established [and therefore the falsity or inaccuracy of the expert medical advisor’s opinion].”

Id. at 174 (citations omitted).

In our judgment, the order before us fails to satisfy the above test, thereby seriously compromising our ability to conduct meaningful review. In rejecting the amended psychiatric opinion of Dr. Dack, the EMA who had opined that claimant was totally disabled from a psychiatric standpoint, the JCC simply found the change in the EMA’s opinion of claimant’s condition from malingering to totally disabled was “inordinately extreme.” He explained that Dr. Dack revised his opinion once he had been apprised that claimant had undergone cervical surgery following his initial opinion of misrepresentation, in which he had concluded there was an inconsistency between the history claimant gave him during the evaluation and her activity in a surveillance film.

While rejecting Dr. Dack’s opinion of total disablement, the JCC also accepted Dr. Gonzalez’s 10-percent psychiatric PI rating. The order explains that Dr. Gonzalez, unlike Dr. Dack, had the “opportunity to evaluate the claimant over an extended period of time and is in a better position to determine her permanent impairment rating.” This particular portion of the order, however, makes no reference to the fact that Dr. Gonzalez had also opined claimant was totally disabled from her psychiatric condition alone, and the JCC never specifically rejected Dr. Gonzalez’s opinion in such regard.

It is important to note that the only conflicting medical evidence before the JCC opining that claimant retained a substantial earning capacity, and hence was not PTD, came from Drs. Patterson and Forman, which the JCC totally rejected, and his rejection was adequately displayed by his statement that neither of the two physicians had ever reevaluated the claimant following her cervical surgery. As a consequence of the preclusion of their opinions, no medical evidence remained before the JCC from which he could conclude that claimant was not PTD.

It appears from the order that the JCC rejected the claim based solely on his observations of claimant at the hearing and in the surveillance video taken more than 27 months before the hearing, which led him to conclude that claimant had exaggerated the extent of her reports of pain. Absent supporting medical evidence, however, a JCC lacks the prerogative to deny a claim for PTD benefits based only upon his or her observations of a claimant. See Frank’s Fine Meats v. Sherman, 443 So.2d 1055, 1056 (Fla. 1st DCA 1984): “Neither the claimant’s complaint of pain and his stated limitations, which were not supported by the medical evidence, nor the deputy’s observations, are competent sub-stantiai evidence to support a finding of PTD.” Accord Ronald Allen Trucking Co. v. Helton, 449 So.2d 874, 876 (Fla. 1st DCA 1984). See also Arand Constr. Co. v. Dyer, 592 So.2d 276, 281 (Fla. 1st DCA 1991) (reversing the JCC’s order awarding benefits based exclusively on lay testimony regarding a nonobservable back condition). Indeed, in accepting only 9 percent of Dr. Martinez’s 23-percent physical PI rating, the JCC relied only on his own observations of claimant, and not upon any other medical evidence before him. The rule is well-established that a finding of PI — like a finding of PTD — can be supported only by an opinion of a medical expert. See Atlas Van Lines v. Jackson, 642 So.2d 603 (Fla. 1st DCA 1994).

Finally, we note that the JCC’s order failed to mention what significance, if any, should be given the admitted decision of the Social Security Administration finding that claimant was PTD. Although the receipt of such benefits is not by itself sufficient to qualify a claimant for PTD benefits under Florida’s Workers’ Compensation Law, it “may be relevant to a determination of entitlement to PTD benefits under the definition of catastrophic injury contained in section 440.02(34)(f), Florida Statutes.” Union Camp Corp. v. Hurst, 696 So.2d 873, 876 (Fla. 1st DCA 1997). On remand, the JCC’s order should address whether such evidence has any effect on claimant’s alleged entitlement to PTD benefits.

We note that there is evidence in the record from which the JCC could conclude that claimant is PTD from either her psychiatric or orthopedic conditions, or both in combination. See Daws Mfg. Co. v. Ostoyic, 756 So.2d 175, 176-77 (Fla. 1st DCA 2000). Because it is not our function to evaluate and weigh the evidence produced below, we REVERSE the order and REMAND the case for further consistent proceedings.

KAHN, J., CONCURS; PADOVANO, J., DISSENTS with opinion.

PADOVANO, J.,

dissenting.

I believe that the Judge of Compensations Claims had a reasonable basis for rejecting the expert medical advisor’s opinion and that the remaining evidence is sufficient to support the judge’s finding that the claimant is not totally and permanently disabled. For these reasons, I dissent.

The expert medical advisor initially said that the claimant was malingering but then changed his mind and rendered an opinion that she was totally disabled. As explained in the final order, the judge thought that it would'be imprudent to rely on a witness who had impeached himself with a complete reversal of his own opinion when there were other witnesses who were in a better position to observe the claimant and who had given consistent opinions about her condition. With due respect for my colleagues, I find nothing unreasonable or confusing about the judge’s analysis of the case. The majority opinion recognizes that it is not the function of an appellate court to “evaluate and weigh the evidence produced below,” yet it appears to me that this is exactly what the court has done.

I would affirm.

      . Dr. Dack gave his revised opinion more than three years after the talcing of the surveillance video, which had greatly influenced his original evaluation.


source: Caselaw Access Project

author: ERVIN, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Richard E. PHILLIPS, Appellee.
    No. 1D02-456.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellant.
    Martin S. Page, Lake City, for Appellee.
   ERVIN, J.

The state appeals from an order in which the trial court dismissed Count I of an amended information, finding that section 322.34(5), Florida Statutes (2001), the statute upon which Count I was based, was constitutionally deficient, because it did not charge a crime. We reverse with directions to reinstate Count I.

After appellee, Richard E. Phillips, had been designated a “habitual traffic offender” in 1998 under section 322.264, Florida Statutes (1997), his license was revoked under section 322.27(5), Florida Statutes (1997). When Phillips was involved in a traffic accident on September 7, 2001, the state charged him in Count I of the information with a violation of section 322.34(5), Florida Statutes (2001), which makes it a third-degree felony for a person to drive with a license “revoked pursuant to s. 322.264 (habitual offender).” Phillips moved to dismiss Count I.

Relying upon the statutory maxim that penal statutes must be strictly construed in favor of the accused, the court stated that section 322.34(5) was constitutionally deficient, because it referred to section 322.264 as authority for the revocation of Phillips’ license, whereas the latter statute only defined the criteria for finding a person to be a habitual traffic offender. The court acknowledged that section 322.27(5) authorizes the revocation of a driver’s license of a person who is designated a habitual offender under section 322.264, but reasoned that the reference to that statute in the information could not correct the facial deficiency of section 322.34(5). The court observed that section 322.34(5)’s constitutional infirmity could be cured by the legislature simply amending the language therein by substituting section 322.27(5) for section 322.264.

The court’s interpretation of the statute is one of law; therefore, our review standard is de novo. In our judgment, the statute fairly placed Phillips on notice of the offense for which he was accused. While we agree with the lower court that Phillips’ driver’s license was not revoked in accordance with the provisions of section 322.264, but rather those of section 322.27(5), which provides, as stated, for the revocation of a license of anyone defined as a habitual offender, we cannot agree that such reference renders section 322.34(5) constitutionally invalid.

The court arrived at its conclusion by construing the term “pursuant to” to mean only “in accordance with” the provisions of section 322.264. The statutory term, however, has various meanings. According to Bryan A. Garner, A Dictionary of Modem Legal Usage 721 (2d ed.1995), “pursuant to” is used to mean: “(1) in accordance with; (2) under; (3) as authorized by; or (4) in carrying out.” The author cautions: “Because the phrase means so many things, it is rarely — if ever — useful. Lawyers are nearly the only ones who use the phrase, and they often use it imprecisely.” An example furnished in Bryan A. Garner’s A Dictionary of Modem American Usage 544 (1998), includes the following example of one of its usages: “ ‘The virus-infected trees constitute “a public nuisance pursuant to [read as defined by] the Civil Code and Food and Agricultural Code,” Wallace wrote in his ruling.’ ” (Citation omitted.)

It has long been recognized that the rule that penal statutes must be strictly construed is subordinate to the rule that the intention of the legislature must be given effect. See, e.g., Deason v. Dep’t of Corrections, 705 So.2d 1374 (Fla.1998); State v. Ramsey, 475 So.2d 671 (Fla.1985); Lincoln v. Fla. Parole Comm’n, 643 So.2d 668 (Fla. 1st DCA 1994); St. Surin v. State, 745 So.2d 514 (Fla. 3d DCA 1999); George v. State, 203 So.2d 173 (Fla. 2d DCA 1967). That maxim is honored by construing the phrase, “pursuant to,” as meaning “as defined by,” thereby making it an offense for a person to drive when his or her license has been revoked because he or she is a habitual traffic offender under or as defined by section 322.264.

REVERSED and REMANDED with directions.

BARFIELD and ALLEN, JJ„ CONCUR.

      . This statute identifies a habitual traffic offender as one who has compiled a number of specified convictions within a five-year period.

      . Section 322.27(5) provides:
      The department shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation....

      .Section 322.34(5), provides:
      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.

      . Count I charged Phillips as follows:
      JERRY M. BLAIR, State Attorney of the Third Judicial Circuit of Florida, charges that RICHARD EUGENE PHILLIPS on or about the seventh day of SEPTEMBER, 2001, in COLUMBIA County, Florida, while his driver's license had been revoked pursuant to F.S. 322.27(5) (Habitual Offender), did drive a motor vehicle upon the highways of this state, contrary to Florida Statute 322.34(5).


author: PER CURIAM.

text:
    Christopher Lee COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1318.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

REVERSED and REMANDED for re-sentencing. See Lawson v. State, 845 So.2d 986 (Fla. 1st DCA 2003); Thomas v. State, 825 So.2d 1032, 1033 (Fla. 1st DCA 2002).

BOOTH, DAVIS and PADOVANO, JJ., concur.


author: BROWNING, J.

text:
    Jonathan RACE, Appellant, v. ORANGE COUNTY FIRE RESCUE and Crawford & Company, Appellees.
    No. 1D02-3622.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.

      Geoffrey Bichler, Winter Park and Bill McCabe, Longwood, for Appellant.
    Karen J. Cullen and Sarah P. Reiner of Broussard, Cullen, Pearson-Wise & Simms, Orlando, for Appellees.
   BROWNING, J.

Appellant challenges a final order denying attorney’s ' fees under section 440.34(3)(a), Florida Statutes.. We reverse.

Appellant was injured at work on February 8, 1999, filed a request for assistance on February 9, 1999, and, on March 23, 1999, filed a petition for benefits; both documents requested treatment with a cardiologist and a determination of Appellant’s average weekly wage and compensation rate (AWW/CR). Appellee, in response to the request for benefits, filed a pay and investigate letter pursuant to section 440.20(4), Florida Statutes. However, Appellee did not provide the medical benefits requested until 14 days after the filing of the petition for benefits, and Appellant did not actually see a cardiologist under Appellee’s managed care plan until May 19, 1999. At the time Appellant filed his petition for benefits he had not filed, and was not entitled to file, a claim for disability, permanent impairment, wage loss or death benefits arising out of the same accident. See § 440.34(3)(a), Fla. Stat. (2000). On these facts Appellee argues for affir-mance on the grounds that Appellant’s joining of the AWW/CR issue with a claim for medical benefits violated section 440.34(3), Florida Statutes. We disagree.

Section 440.34(3) provides in part that a successful claim for “medical benefits only” entitles a claimant to receive attorney’s fees and costs from the employer “if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.” § 440.34(3), Fla. Stat. (2000). A claimant may collect attorney’s fees under this provision if benefits are not furnished within a reasonable time after being specifically requested, the claim is for medical benefits only, and the claimant has not filed or is not entitled to file the listed indemnity claims. See Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699, 702 (Fla. 1st DCA 1999). These conditions precedent are met in the instant case.

The above dates demonstrate that the provision of benefits was unreasonably delayed in such a way as to defeat the self-executing nature of the workers’ compensation scheme by necessitating the filing of a petition for benefits. See id. at 700.

Appellant’s claim was for medical benefits only, despite his request for a determination of AWW/CR. This Court has previously explained that “the employer/carrier is responsible for attorneys fees when there is no matter in controversy when the claim is filed other than medical benefits.” Gunn’s Quality Glass & Mirrors, Inc. v. Strode, 425 So.2d 73, 76 (Fla. 1st DCA 1982). Appellant’s request for a determination of AWW/CR did not place a “matter in controversy” because such a determination did not affect his eligibility for indemnity benefits.

Appellant did not request indemnity benefits and, at the time of his filings, he was not entitled to indemnity benefits. His request for a determination of AWW/CR did not create such an entitlement. At best, the request was extraneous. We see no reason why Appellant’s request for a determination of AWW/CR should preclude him from receiving statutorily authorized attorney’s fees for his successful claim, which resulted only in the receipt of the medical benefit of treatment with a cardiologist.

Policy supports this result. This Court has recognized that one purpose of section 440.34(3)(a) is to provide a source for attorney’s fees in situations where a claimant does not receive a fund from which he or she could pay attorney’s fees, such as a successful claim for medical benefits. See Westinghouse Electric v. Widlan, 623 So.2d 511, 514 (Fla. 1st DCA 1993); State of Florida/Sunland Ctr. v. Campbell, 451 So.2d 939, 940 (Fla. 1st DCA 1984); Strode, 425 So.2d at 76 n. 4. This describes Appellant’s situation precisely; Appellant received all that he requested yet did not receive a fund from which he could pay attorney’s fees.

For the above reasons, we REVERSE the JCC’s Final Order on Attorney’s Fees and REMAND for reconsideration.

BENTON and PADOVANO, JJ., CONCUR.

      . In response to pertinent questioning, neither counsel at oral argument gave a reason for Appellant’s inclusion of a request for a determination of AWW/CR, or explained how such a determination could benefit Appellant or prejudice Appellee.


text:
    HOLIDAY FURNITURE FACTORY OUTLET CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    Nos. 1D02-2215, 1D02-3461.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.

      Steven E. Sellers of Sellers Law Firm, P.L., Tallahassee, for Appellant.
    Obed Dorceus and Lori D. Stith, Assistant General Counsels of the Department of Corrections, Tallahassee, for Appellee.
   ERVIN, J.

Appellant, Holiday Furniture Factory Outlet Corporation, appeals an order dismissing its amended complaint alleging breach of contract against appellee, Department of Corrections (DOC), with prejudice, on the ground that the statute of limitations had expired and Holiday Furniture will be unable to further amend its complaint to state a cause of action that is not time-barred. We reverse and remand for reinstatement of Holiday Furniture’s amended complaint, because the statute of limitations does not bar its claim for unpaid rent that accrued during the five years before it filed its complaint on December 28, 2001.

Holiday Furniture leased property to DOC for a five-year term between February 1, 1995, and January 31, 2000, conditioned upon Holiday Furniture’s agreement to complete certain renovations. DOC terminated the agreement before moving in, and contends that Holiday Furniture did not complete the necessary renovations. Holiday Furniture brought the instant suit on December 28, 2001. The trial court dismissed, holding that Holiday Furniture had alleged that it had either completed renovations, or was prevented from performing, by March 1, 1995; accordingly, it was required to bring its action for breach of contract by February 29, 2000, based upon the five-year limitations period for actions alleging breach of contract under section 95.11(2)(b), Florida Statutes (1995). We disagree.

A cause of action on a contract accrues and the limitations period commences at the time of the breach. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla.1996). Lease agreements require installment payments, and each failure to pay an installment constitutes an individual breach. Courts in numerous Florida cases have reiterated the general rule that when there has been a breach, abandonment, or renunciation of a lease before the expiration of the term, the lessor has three options. The lessor may (1) treat the lease as terminated and retake possession for the lessor’s purposes; (2) hold possession for the lessee’s account, in which case the lessee is responsible for any difference between the rent obligation and amounts the lessor recovers by relet-ting the premises; or (3) stand by and do nothing and sue the lessee as each installment of rent matures, or sue for all the rents due when the lease expires. See, e.g., Wagner v. Rice, 97 So.2d 267 (Fla.1957); Stenor, Inc. v. Lester, 58 So.2d 673 (Fla.1951); Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); 4-Way, Inc. v. Bryan, 581 So.2d 208 (Fla. 1st DCA 1991); Diehl v. Gibbs, 173 So.2d 719 (Fla. 1st DCA 1965); Ft. Lauderdale Joint Venture Ltd. P’ship v. Sander, 613 So.2d 133 (Fla. 4th DCA 1993); Blount v. Dino’s Fontana Di Trevi, Inc., 583 So.2d 380 (Fla. 3d DCA 1991); Gould v. Vitiello, 526 So.2d 1018 (Fla. 2d DCA 1988); Linens of Paris, Inc. v. Cymet, 510 So.2d 1021 (Fla. 3d DCA 1987); Wolf v. Buchman, 425 So.2d 182 (Fla. 3d DCA 1983); Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So.2d 344 (Fla. 2d DCA 1970). Holiday Furniture chose to exercise the third option.

Although none of the cases cited above involved a tenant who had never taken possession of the property, or a landlord who did nothing and sued for the full amount at the end of the lease period, we see no need to limit the general rule to lessees who have been in possession for some period. Accordingly, Holiday Furniture was entitled to sue DOC for all of the unpaid installments, and the statute of limitations bars recovery only of those installments due over five years before Holiday Furniture filed suit on December 28, 2001. See Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931 (Fla. 5th DCA 1980) (reversing an order denying recovery against the makers of an installment promissory note on the ground that the suit was barred by the five-year statute of limitations, holding that the installments due over five years before the suit was filed were barred, whereas the installments due afterward were not). We express no opinion on the merits of Holiday Furniture’s suit.

REVERSED and REMANDED for further consistent proceedings.

BARFIELD and ALLEN, JJ., CONCUR.

      . We note that a landlord who chooses the third option is required to mitigate damages by reletting the premises to other tenants. See Hudson Pest Control, Inc. v. Westford Asset Mgmt., 622 So.2d 546 (Fla. 5th DCA 1993).

      . Based upon our holding, we also reverse the trial court’s award of attorney’s fees to DOC in Holiday Furniture Factory Outlet Corp. v. Department of Corrections, No. 1D02-3461, which we consolidate with the instant case for the purpose of issuing this opinion.


text:
    Julius A. GATHERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1106.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges sentences which were imposed for two counts of resisting arrest with violence. These are third degree felonies, for which a five year maximum term of imprisonment is allowed. § 848.01; § 775.082(3)(d), Fla. Stat. The concurrent fifteen year terms of imprisonment imposed for these offenses are illegal sentences, exceeding the maximum allowed by law. The appellant’s sentences are therefore vacated, and the case is remanded for resentencing.

ERVIN, BARFIELD and ALLEN, JJ., concur.


text:
    Mary B. BARRS, as Personal Representative of the Estate of Harvey Leroy Bell, deceased, Petitioner, v. Faye TOWNSEND, Respondent.
    No. 1D03-2814.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    S. Austin Peele of Darby, Peele, Bow-doin & Payne, Lake City, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Mary Barrs seeks review of the circuit court’s opinion reversing a decision of the county court. Barrs’s remedy is certiora-ri, rather than appeal, and therefore, we convert the appeal to a certiorari proceeding. See Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995). However, because this court’s jurisdiction was not timely invoked, this proceeding is hereby dismissed. See Miller v. State, 781 So.2d 1146 (Fla. 1st DCA 2001)(rejecting petitioner’s argument that the time for invoking the court’s jurisdiction is measured from issuance of the circuit court’s mandate); Jones v. Cannon, 750 So.2d 108 (Fla. 1st DCA 1999).

ERVIN, BARFIELD and DAVIS, JJ., concur.


author: WOLF, C.J.

text:
    DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY PRACTICE, Appellant, v. Raymond H. CRALLE, Appellee.
    No. 1D02-2807.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.
    Pamela H. Page, Assistant General Counsel, Department of Health, Tallahassee, for appellant.
    Richard H. Willits, Lake Worth, for ap-pellee.
   WOLF, C.J.

Appellant challenges a final order of the Department of Administrative Hearings granting appellee’s motion for attorney’s fees and costs. We determine that the Administrative Law Judge (“ALJ”) improperly granted fees pursuant to section 57.111, Florida Statutes, and reverse.

The appellee, Raymond H. Cralle, was a licensed physical therapist in the State of Florida when a complaint was filed against him by H.M., a woman who had worked for Cralle as a physical therapist technician. The complainant stated that she was required to write Mr. Cralle’s SOAP notes in violation of statutes and rules regarding delegation of duties to unlicensed personnel. Based upon the complaint, the Department initiated an investigation.

Prior to bringing the matter before the Board of Physical Therapy’s probable cause panel, the Department sent the result of its investigation to an expert for review. The expert’s opinion concluded that based upon the information provided by the complainant, Cralle had violated section 486.125(l)(e), Florida Statutes, and rule 64B17-6.007(6), Florida Administrative Code, by delegating to the complainant the responsibility for writing SOAP notes which requires the special knowledge and skill of a physical therapist or physical therapist assistant. The expert rejected Cralle’s explanation that he allowed H.M. to prepare SOAP notes as part of her educational training, stating that there was no contract between the clinic and the school and a student working as a technician would be considered unlicensed personnel. Cralle did not dispute the substance of the allegations made by H.M. prior to the probable cause determination.

The full investigative report and the expert’s report were sent to the probable cause panel for consideration along with the material submitted by Cralle which included excerpts of textbooks used in classes taken by H.M. to demonstrate that H.M. had been taught how to write SOAP notes during the course of her education. A probable cause panel meeting was held on April 24, 2001, at which Cralle’s case was discussed. The probable cause panel voted in favor of filing an administrative complaint against Cralle.

Cralle was charged by the Department with violating section 486.125(1), Florida Statutes, and specified provisions of the Florida Administrative Code for delegating the responsibility of writing SOAP notes to a physical therapist technician, for delegating activities that require the special knowledge and judgment of the physical therapist, for delegating portions of the skilled physical therapy functions to lesser trained health personnel, for delegating either evaluation or reevaluation of patients, and for allowing unlicensed personnel to document progress notes other than tasks and activities of a patient.

Following an administrative hearing, the ALJ recommended that the Department enter a final order dismissing all charges against Cralle. The ALJ found that the complainant’s testimony was not credible; she described the complainant as hostile, prosecutorial, and unstable. The ALJ also rejected the complainant’s version of what took place because she found that the explanation given by Cralle at the hearing made more sense to her, that explanation being that Cralle merely dictated notes for the technician to record as opposed to allowing her to write SOAP notes on her own. On February 8, 2002, the Department filed a final order of dismissal in that case, adopting the ALJ’s recommended findings and conclusions.

Cralle filed a motion for attorney’s fees and costs under section 57.111, Florida Statutes, the Florida Equal Access to Justice Act. The Department responded to the motion for fees and costs by arguing that the underlying action was substantially justified based on the information that was presented to the probable cause panel; thus, Cralle was not entitled to fees under section 57.111. The ALJ who ruled on the fees motion was the same ALJ who presided over the administrative hearing and recommended dismissing the action against Cralle. The ALJ granted Cralle’s motion, stating that at the time of the probable cause hearing “it was known or at least knowable that [H.M.] fit the profile of a “stereotypical ‘disgruntled former employee.’ ” The ALJ also noted that at the probable cause stage of the proceedings, the Department’s expert recommended that at least some of the witnesses who could have been expected to corroborate H.M.’s testimony be interviewed. The ALJ stated, “With this red flag flying, and Cralle’s attorney protesting that [H.M.’s] story should be corroborated in some fashion before the litigation was set in motion, the Department elected to proceed on a needlessly thin investigation.”

Section 57.111, Florida Statutes, provides for awards of attorney’s fees and costs in judicial as well as administrative proceedings and is designed to reimburse small businesses defending against or seeking review of “unreasonable governmental action.” Section 57.111(4)(a) provides for fees and costs to be awarded unless the agency action was “substantially justified”:

Unless otherwise provided by law, an award of attorney’s fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

(Emphasis added.) Under section 57.111(3)(e), “[a] proceeding is “substantially justified” if it had a reasonable basis in law and fact at the time it was initiated by a state agency.”

In resolving whether there was substantial justification or a reasonable basis in law and fact for filing an administrative complaint, “one need only examine the information before the probable cause panel at the time it found probable cause and directed the filing of an administrative complaint.” Fish v. Department of Health, Bd. of Dentistry, 825 So.2d 421, 423 (Fla 4th DCA 2002); see also Agency for Health Care Admin. v. Gonzalez, 657 So.2d 56 (Fla. 1st DCA 1995); Gentele v. Department of Prof'l Regulation, Bd. of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987); Kibler v. Department of Prof'l Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982). Contrary to relevant law, the analysis of the ALJ in the order on fees being appealed was influenced by consideration of evidence which was presented at the hearing rather than being focused solely on whether the decision of the probable cause panel had a reasonable basis in law and fact.

In reaching its decision in this ease, the probable cause panel considered the Department’s investigative report, the complaint of H.M., the report of the Department’s expert, and Cralle’s response to the allegations made by the complainant. The ALJ’s determination that H.M. was not a credible witness at the hearing does not provide a legitimate basis for concluding that the probable cause panel’s action was not substantially justified; the probable cause panel members relied upon H.M.’s written complaint. The panel had no reason to believe that the complainant would appear “hostile, argumentative, and prosecutorial” at the hearing or that she was a “stereotypical disgruntled former employee.”

As a basis for the ALJ’s conclusion that the department’s action was not substantially justified, the ALJ stated that “at least a half-dozen witnesses could have been expected to corroborate [H.M.’s] testimony,” noting that the Department’s expert recommended that corroborating witnesses be interviewed. However, the expert’s report states unequivocally that “[t]he information submitted seems sufficient to believe that F.S. 486.126(l)(e) and Rule 64B17-6.007(6) were violated.”

While it may have been more prudent to interview witnesses, at the time of the probable cause panel meeting, the panel had no reason to doubt H.M.’s credibility, especially because Cralle did not deny the facts contained in the complaint against him, but rather defended his actions by claiming that H.M. was a student and could take SOAP notes as part of her educational training. It was not until the hearing that Cralle asserted a very different defense — that he merely dictated his notes for H.M. to transcribe. That defense was never presented to the panel.

The entire focus of the panel’s deliberation was on Cralle’s defense that H.M. was a student and on whether the delegation of SOAP notes was beyond the scope of H.M.’s training and ability as a student. The Department’s expert stated in her report that as a student the complainant would not be allowed to write SOAP notes as that is beyond the scope of a technician’s duties; furthermore, the expert stated, “When a student is working as a technician, they fall under the definition of unlicensed personnel as they do not hold a current license as a [physical therapist] .... It makes no difference that [H.M.] had courses on SOAP notes.” In reading the transcript of the probable cause panel meeting, it becomes apparent that the ultimate determination of probable cause in favor of filing an administrative complaint against Cralle was based on the fact that the complainant was a student performing unauthorized duties at the direction of Cralle — a fact which was undisputed at the time of the probable cause determination. Subsequent discoveries do not vitiate the reasonableness of the actions of the board at the time they made their probable cause determinations. See Agency for Health Care Admin. v. Gonzalez, 657 So.2d at 56.

The award of attorney’s fees is reversed.

LEWIS and POLSTON, JJ„ concur.

      . SOAP is an acronym for Subjective-Objective-Assessment-Plan.

      . Dr. Cralle had not offered this explanation prior to the determination of probable cause.


text:
    Martin PEREZ-RAMIREZ, Appellant, v. DEXTER DEVELOPMENT d/b/a Bailen Isles & Associated Industries, Appellees.
    No. 1D02-2099.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2003.

      David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    Mary Ann Stiles, Rayford H. Taylor, and Timothy L. Newhall of Stiles, Taylor & Grace, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Martin Perez-Ramirez, appeals a final order of the Judge of Compensation Claims (JCC) denying com-pensability of his back condition. The JCC found that the claim was barred due to appellant’s failure to report the injury within the thirty-day reporting period mandated by section 440.185(1), Florida Statutes (2000); excluded appellant’s independent medical examining physician’s testimony because the physician charged and collected in excess of the maximum allowable fee for an independent medical examination, for which exclusion the JCC relied on City of Riviera Beach v. Napier, 791 So.2d 1160 (Fla. 1st DCA 2001); and, found that the evidence failed to prove that the work performed within the course and scope of employment was the major contributing cause of appellant’s back injury. We disagree with all of these reasons for denial, and reverse and remand for further proceedings consistent with this opinion.

As a matter of law under the specific facts of this case, appellant timely notified his employer of his back injury. See Alfonso v. Mac Dinton’s Restaurant, 515 So.2d 248, 246 (Fla. 1st DCA 1987). Moreover, because appellees, Dexter Development and Associated Industries, paid without objection appellant’s independent medical examining physician’s fee, which the parties agreed was in excess of the maximum allowable fee under rules adopted by the Division of Workers’ Compensation, they waived their objection to that physician’s testimony. Finally, as we have reversed the exclusion of appellant’s independent medical examining physician’s testimony, in which the physician opines that appellant’s industrial accident is the major contributing cause of appellant’s back pain and need for treatment, the JCC’s finding that appellant faded to prove that the work performed within the course and scope of employment was the major contributing cause of his back injury should be reconsidered in light of this additional evidence.

Reversed and remanded.

KAHN, WEBSTER and DAVIS, JJ., Concur.


author: FULMER, Judge.

text:
    William M. BECK, Jr., Appellant/Cross-Appellee, v. Sydney BECK, Appellee/Cross-Appellant.
    No. 2D01-3517.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.

      Wesley Pardue of Knox & Givens, P.A., Tampa, for Appellant/Cross-Appellee.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee/Cross-Appel-lant.
   FULMER, Judge.

In this appeal from the final judgment of dissolution of marriage, Wilham M. Beck, Jr., (“the Husband”) challenges the award of permanent alimony, the equitable distribution scheme, and the award of attorney’s fees and costs. In the cross-appeal, Sydney Beck (“the Wife”) challenges the award of child support and alimony, the sufficiency of the life insurance ordered to secure the support awards, and the award of attorney’s fees and costs. We find no merit in the issues raised by the Husband. However, on the cross-appeal, we reverse and remand for the trial court to recalculate the amount of alimony and child support and to reconsider the amount of the attorney’s fees and costs. In all other respects, we affirm.

The parties were married on October 25, 1986, and have one child, born in 1989. They separated on or before May 1, 1999. In the Amended Final Judgment, the trial court found that the Wife works as a secretary earning $13,433 annually with a net monthly income of $830. The Husband works as a salesman and earns $83,272 annually with a net monthly income of $5,018. The Husband inherited trust assets from his parents that were valued at almost one million dollars at the time of the final hearing. The trial court awarded the trust assets to the Husband as his nonmarital property. The Wife was awarded $1,500 per month in permanent alimony and $809 per month in child support. The Husband was directed to maintain a $50,000 life insurance policy as security for both his child support and alimony payments.

The Husband received a total distribution, marital and nonmarital, of $1,060,156. The bulk of his assets ($947,852) were income-producing liquid investments. The Wife received a total distribution of $156,423, including approximately $52,000 in liquid assets, consisting primarily of the cash value of the Husband’s life insurance policy ($46,215).

The Wife argues that the trial court erred in omitting the Husband’s trust income from its determination of the Husband’s total income for the purpose of calculating the alimony and child support awards. We agree. In determining the amount of alimony, section 61.08(2)(d), Florida Statutes (2000), requires the trial court to consider the financial resources of each party including the nonmarital assets distributed. And section 61.08(2)(g) requires that “[a]ll sources of income available to either party” must be considered. Section 61.046(7) defines income as “any form of payment to an individual, regardless of source, including, but not limited to ... trusts.” Although the trial court recited that “HUSBAND has significant Non-Marital Assets from which he may contribute to WIFE’S support,” it does not appear that the trial court included any trust income in assigning the amount of $5,018 as the Husband’s net monthly income. The Husband’s trust income must be considered in the computation of alimony. See O’Connor v. O’Connor, 782 So.2d 502 (Fla. 2d DCA 2001).

Likewise, the trust income must be included in the determination of gross income for the purpose of computing child support. Section 61.30(2)(a)(12) provides that gross income shall include income from “royalties, trusts, or estates.” See Oxley v. Oxley, 695 So.2d 364, 367 (Fla. 4th DCA 1997). The fact that the Husband elected to defer receipt of the trust income during the pendency of the proceedings does not shield the income from consideration. See O’Connor, 782 So.2d at 504; Oxley, 695 So.2d at 367. Therefore, we reverse the alimony and child support awards and remand with directions to redetermine both after including the Husband’s actual or imputed trust income.

Another deficiency in the alimony award is that the trial court did not make a finding as to the Wife’s actual need. Before setting alimony, a trial court must first make determinations of actual need and ability to pay. O’Connor, 782 So.2d at 503-04. With respect to ability to pay, the trial court found that the Husband’s net monthly income is $5,018. The trial court also found that the Husband “has significant Non-Marital Assets from which he may contribute to WIFE’S support.” However, as we have just discussed, it does not appear that the trial court assigned a value to the Husband’s trust income. With respect to the Wife’s need, the trial court found that the Wife’s net monthly income without alimony is $830 per month and also recited as a finding the single conclusion that “the combined monthly expenses for WIFE and Child as reflected on WIFE’S financial affidavit are inflated.” The trial court failed to identify the expenses that it determined were inflated and did not explain the amount of reduction that was apparently made in the recalculation of the Wife’s asserted need. The trial court’s failure to make a finding as to the Wife’s actual need requires reversal for reconsideration of the alimony award.

We also reverse the award of attorney’s fees and costs. The trial court found the Wife was entitled to all of her reasonable fees and costs from the Husband. However, the trial court determined that the Wife’s legal and expert witness fees were unreasonable:

The Court finds that the attorney’s fees charged by both counsel and by the WIFE’S expert!,] SUE MELENDI, were unreasonable and unconscionable as they have amounted to over 70% (seventy percent) of the marital estate divided herein. This case was over-litigated and the Court finds that Ms. Melendi’s attendance during trial was unnecessary, moreover, Ms. Melendi’s expertise was not necessary to prepare multiple, simple financial affidavits. The Court cannot allow the entire marital estate to be subject to a charging lien herein for the unconscionable over-litigation of this case. Consequently, a total reasonable attorney’s fee for the WIFE herein is $30,000.00 and $10,000.00 for expert witness fees.... Husband shall further pay all court reporter fees incurred by WIFE in this action.

The Wife argues that the trial court erred by reducing her attorney’s fees by more than 50% and by reducing her CPA fees by 80% which left the Wife with approximately $77,000 in litigation debt under her contractual obligations. The Husband did not challenge the hourly rate charged by the Wife’s counsel or her CPA. Nor did he dispute that the hours billed represent work performed. He simply contends that the trial court’s award was too high because the Wife was responsible for over litigating the case. It is the Wife’s contention that the Husband’s litigation conduct drove up her fees and costs. In fact, in her brief the Wife presents a lengthy review of actions and inactions by the Husband that would support her contentions. We recognize that we have a one-sided view because the Husband filed no answer brief in response to the Wife’s cross-appeal. The fact that we can review the record and determine whether the Wife’s claims are supported does not assist us in our resolution of this issue because it is not our function to review the record and make factual determinations that have never been addressed by the trial court.

From our reading of the trial court’s finding that is quoted above, we conclude that the trial court was of the view that both the Husband’s and the Wife’s counsel engaged in over litigation. We do not question the trial court’s authority to determine that the fees requested by a party are not reasonable. Nor do we question the trial court’s authority to deny or reduce the award of otherwise reasonable fees in those situations in which a party’s conduct may warrant sanctions. However, in making an attorney’s fee award in a dissolution proceeding, the trial court must determine the proper amount of fees by considering the hourly rate, the number of hours reasonably expended in the case, and setting forth specific findings as to these factors as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). After determining a reasonable fee, the primary factor to be considered is the financial resources of the parties. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997). However, other circumstances may also be considered such as the history of the litigation and whether the conduct of one party made additional work necessary. Id. at 700.

In this case, the trial court made no finding that the Wife’s litigation conduct was the cause of the increased fees. Instead, the trial court expressed dismay at the total amount of fees incurred by both parties in relation to the size of the marital estate and, without making any factual findings, made a substantially reduced fee award. The trial court erred by failing to set forth the specific findings required by Rowe and Rosen. See Shields v. Shields, 502 So.2d 1349 (Fla. 2d DCA 1987) (reversing fee award where trial court failed to make required Rowe findings). On remand, the trial court must redetermine the amount of the Wife’s fees and set forth the findings required by Rowe and Rosen.

The Wife’s final argument is that the trial court abused its discretion in limiting the Wife’s recovery for costs to her court reporter fees. The Wife notes the Husband made no objection to the additional litigation costs that the trial court failed to award. The final judgment is silent as to the costs not awarded. On remand, the trial court must either award the reasonable costs that are properly established or set forth findings supporting their denial.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CASANUEVA and CANADY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Lynda Diane PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3824.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Lynda Perry appeals a $3000 restitution award following her conviction for grand theft. We reverse and remand for the trial court to enter an award reflecting a total restitution amount of $2751.60.

Perry was, convicted of grand theft for seeking to deprive San Antonio Citizens Federal Credit Union of its property by depositing a fraudulent check for $3000 and then, before the fraudulent check was dishonored, withdrawing $2751.60 more than she had in her account. The credit union paid a $100 deductible to its insurance company, and the insurance company paid the remaining $2651.60 for the loss. The trial court originally ordered Perry to pay $3000 in restitution. Perry filed a motion to correct sentencing error, and in an amended restitution order, the trial court again awarded restitution of $3000 but clarified that Perry was to pay $2751.60 to the insurance company and $248.40 to the credit union.

Section 775.089(l)(a)(l), Florida Statutes (2001), provides that the court shall order restitution to the victim for “[djamage or loss caused directly or indirectly by the defendant’s offense.” In Bowman v. State, 698 So.2d 615, 616 (Fla. 2d DCA 1997), this court stated, “A defendant may not be ordered to pay restitution in excess of the damages caused by his criminal conduct.” It is the State’s burden to demonstrate, by a preponderance of the evidence, the amount of loss that the victim sustained as a result of the defendant’s offense. § 775.089(7); Schuette v. State, 822 So.2d 1275, 1278-79 (Fla.2002).

Here, the testimony-at trial supported a maximum loss of $2751.60 as a result of Perry’s offense, with $100 sustained by the credit union and $2651.60 sustained by the credit union’s insurance company. The State argues that the trial court may have awarded $3000 to cover the credit union’s expenses in having its employees testify. At trial, however, there was no testimony regarding such expenses.

It appears from the trial transcript that the trial court awarded $3000 because that was the amount of the fraudulent check that Perry had deposited. After hearing Perry’s motion to correct sentencing error, the court entered an amended order which only clarified how the $3000 was to be divided between the credit union and the insurance company. It is clear from the trial testimony, however, that Perry withdrew $2751.60 more than she had in her account.

Thus, we reverse the amended restitution order and remand for the trial court to enter a restitution order awarding $2651.60 to the insurance company and $100 to the credit union.

Reversed and remanded.

WHATLEY and STRINGER, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Curtis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1790.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
   CASANUEVA, Judge.

Curtis Thomas challenges the order of the trial court summarily denying his facially sufficient motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand with special instructions to the trial court.

On October 26, 1998, Thomas pleaded guilty to one count of aggravated assault and one count of kidnaping with the intent to harm or terrorize. He was sentenced to 150 months in prison to be served concurrently with sixty months in prison on a charge of failure to appear. Thomas did not appeal his judgments or sentences.

On December 9, 1999, Thomas timely filed this pro se motion for postconviction relief in the trial court. He raised four grounds of ineffective assistance of trial counsel. In an order dated July 20, 2000, the trial court denied ground four of the motion and ordered the State to respond to grounds one, two, and three. If the State in fact complied with the trial court’s order, its response is not part of the limited record before us now.

A hearing was held on January 18, 2002, for which it appears that Thomas retained new counsel. Counsel informed the court that he had “investigated Mr. Thomas’s allegations, and [he] explained to him [he had] to disclose to the Court ... that they are not well-founded, and they will not support relief under 3.850.” The trial judge then orally denied Thomas’s motion and directed the State to prepare an order denying relief of Thomas’s motion for post-conviction relief. The one-page transcript of that hearing was attached to the order denying relief.

It appears that that order was never entered or that Thomas never received notice of it. On January 30, 2003, Thomas filed a petition for writ of mandamus in this court. As a result of that filing, on March 19, 2003, the trial court denied his postconviction motion, nunc pro tune January 18, 2002. The trial court relied on the statements of Thomas’s counsel at the January 18, 2002, hearing, as well as “the court files and the record.” The limited record before us contains only the transcript of the hearing and Thomas’s judgment and sentencing documents.

The record before this court does not support the summary denial of Thomas’s claims. Further, the representations of counsel to the court, at best, reflect only counsel’s legal opinion of his- client’s claims. The record nowhere reflects that Thomas authorized his counsel to stipulate to a denial of his motion. In the absence of such a stipulation, the court must make its determination based upon the record before it. Because the record does not refute Thomas’s claims, we reverse.

Since an extraordinary amount of time has passed since Thomas originally filed his motion in the trial court, we reverse the order of the trial court and remand the cause with instructions that an evidentiary hearing be held on counts one, two, and three within ninety days of the date of this mandate. We direct that counsel be appointed to represent Thomas.

Reversed and remanded with instructions.

WHATLEY and CANADY, JJ., Concur.


author: POLEN, J.

text:
    Sheron JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1275.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   ON APPELLEE’S MOTION FOR REHEARING, REHEARING EN BANC, OR CERTIFIED QUESTION

POLEN, J.

We withdraw our previously issued slip opinion (June 11, 2003), correct two scrivener’s errors in that opinion, certify conflict, but otherwise deny rehearing, rehearing en banc, or certified question. We substitute the following opinion:

Sheron Jackson pled no contest to eight counts in connection with criminal acts committed on July 18 and 25 of 1999: grand theft of a firearm (I); grand theft of a motor vehicle (II); armed burglary of a conveyance (III); attempted first-degree murder (IV); attempted first-degree murder (V); robbery with a deadly weapon, firearm (VI); attempted felony murder (VII); and attempted felony murder (VIII). This appeal solely concerns Jackson’s challenge to the sentence received on Count VI, robbery with a deadly weapon, firearm. While this appeal was pending, Jackson filed a Motion to Correct Sentencing Error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which was denied. We agree with Jackson that reversal is mandated on his sentence for Count VI due to defects in the information.

In pertinent part, Count VI of the information alleged:

[ On] July 25, 1999 Sharon [sic] Jackson did take certain property, to-wit: keys, from the person or custody of [victims], with the intent to permanently or temporarily deprive the said person or owner of the property, and in the course of the taking there was the use of force, violence, assault, or putting in fear, and in the course of committing the robbery carried a firearm, in violation of Florida Statutes 812.13(1) and 812.13(2)(a).

Trial commenced on February 19, 2001. Jackson was represented by an Assistant Public Defender. On the second day of trial, after a number of State witnesses had testified, Jackson stated he wanted to end the proceedings by withdrawing his previously entered not guilty plea and entering a plea of no contest to all of the charges. The following colloquy then ensued:

Court: Sir, are you also entering a plea of no contest to Count Six as charged in the information, robbery with a deadly weapon being a firearm?
Jackson: Yes, ma’am.
Court: Do you understand, please, that is a life felony, the statutory maximum sentence that could be imposed is life?
Jackson, Yes, I understand.
Court: And the min max in that regard, please?
Prosecutor: Judge that would be the 25 to life.
Court: is — the minimum mandatory is—
Prosecutor: It’s — it’s written in the statute as 25 years to life,—
Court: Okay.
Prosecutor: — so, that it’s at the Court’s discretion.
Court: The minimum sentence that could be imposed, sir, would be 25 years with the Department of Corrections, do you understand that?
Jackson: Yes.

Defense counsel admitted there was a sufficient factual basis as contained in affidavit and the evidence at trial to support a plea of no contest to the charges, and the plea was accepted by the court. The court noted it had not anticipated the entry of a plea that day, and stated it would give the parties three weeks until sentencing in order to research the applicable minimum mandatory sentences.

The parties reconvened for sentencing on March 21, 2001. The prosecutor stated the State would not be seeking minimum mandatory sentences on any of the counts except Count VI, since none of the other counts referenced the possession or usage of a firearm as grounds for enhancement. The following colloquy regarding Count VI then ensued:

Court: ... With regard — you’re agreeing to Count VI and the min. mand. is that your — it's your position the min. mand. on that as well?
Prosecutor: Twenty five to life, Your Honor.
Court: Now on that, during the colloquy the Court specifically asked if he was entering a plea of — to that count and possessing a firearm?
Prosecutor: Yes, ma’am. And — and discuss the minimum mandatories with him as well.
Court: Good. Okay. And would you concur with that?
Defense: Yes, Your Honor.

The court then gave Jackson an oath and asked him the following:

Court: Mr. Jackson, when I took your plea on February 20th, you had pled as charged in the information, correct, sir?
Jackson: Yes, ma'am.
Court: And you and I discussed your plea to Count VI, which was charged as robbery with a deadly weapon being a firearm. I’m confirming with you, sir, that you wished to enter a plea of no contest to that charge, robbery with a deadly weapon being a firearm?
Jackson: Yes, ma’am.
Court: I’m going to have [Prosecutor] insert that in the plea petition, have you initial that please. I think that will just be cleaner in the future. I know that was a plea taken, but I noticed in the written plea petition it wasn’t certain

The written plea petition was subsequently amended to provide Jackson had pled no contest “As charged. Robbery with deadly weapon, firearm, min. mand. 25 — Life.” Jackson was sentenced to Life on Count VI with a minimum mandatory sentence of 25 years. Jackson’s Motion to Correct Sentencing Error pending appeal was denied and this matter is now before this court.

Jackson contends the crime to which he pled no contest was improperly reclassified under section 775.087(2)(a)3, Florida Statutes, even though all of the essential elements enunciated in that statute had not been pled in the information. We agree.

Section 775.087(2)(a), Florida Statutes, the “10-20-Life” statute, provides for the enhancement of a crime where a firearm is possessed or used during the commission of certain enumerated crimes. In order to reclassify a crime under 10-20-Life, the grounds for enhancement must be charged in the information. See Gibbs v. State, 623 So.2d 551, 554-55 (Fla. 4th DCA 1993). Here, Jackson was sentenced pursuant to section 775.087(2)(a)3, Florida Statutes (1999), which provides:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraph(a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as define in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon the person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

(Emphasis supplied.) Although Jackson was charged with, and pled to, robbery, an enumerated offense, he was not charged with “discharging” a firearm during the commission of said felony, or of inflicting death or great bodily harm as the result of such. Rather, the information merely charged that Jackson had “carried” a firearm. Although an allegation of “carrying” a firearm can sustain a sentence under section 775.087(2)(a)l, it cannot sustain a sentence under section 775.087(2)(a)3. Since Jackson was not charged with “discharging” a firearm or causing great bodily harm or death as the result of such, his sentence under section 775.087(2)(a)3 cannot stand. See Gibbs, 623 So.2d at 554-55; see also Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000)(due process is violated where one is convicted of a crime where the indictment or information wholly omits to allege one or more of the essential elements of the crime).

Still, the State contends Jackson has waived any challenge to the sentence by way of his no contest plea. We disagree. The fact that Jackson and his counsel were under the mistaken belief that he was pleading to a charge that carried a 25 year mandatory minimum sentence does not transform the illegality of that sentence, where a crime with only a 10 year mandatory minimum sentence [775.087(2)(a)l.] had been pled in the information, and pled out to by Jackson. See Leavitt v. State, 810 So.2d 1032 (Fla. 1st DCA 2002) (reversing 20 year sentence on defendant’s negotiated plea to a 2nd degree felony since the statutory maximum for a 2nd degree felony was 15 years; a defendant cannot agree to an illegal sentence); Vickers v. State, 630 So.2d 1229 (Fla. 2d DCA 1994). Moreover, the fact that the evidence presented before Jackson ended the proceedings by changing his plea established that he had in fact discharged a firearm resulting in great bodily harm during the commission of the robbery, does not transform the illegality of his sentence. He was only charged with “carrying” a firearm, not “discharging” a firearm resulting in great bodily harm, and accordingly he can be convicted only of such. See McEachern v. State, 388 So.2d 244, 246-48 (Fla. 5th DCA 1980) (vacating conviction for grand larceny by sheriff by way of his “official position” where the indictment failed to allege the essential elements of the offense; even though the evidence established he was guilty of said offense, the court reversed his conviction, stating, “[s]ince he was not so charged, we can only assume that the State did not intend to charge him with the higher degree of the crime, although we fail to understand why it was done.”). Jackson had no obligation to point out the defect in the information. Rather the State could have moved to amend the information to add the missing essential elements, a motion to which Jackson could have objected. See generally Toussaint v. State, 755 So.2d 170, 171-72 (Fla. 4th DCA 2000). Yet, at no time did the State move to amend the information to add the missing essential elements of “discharging” a firearm resulting in great bodily harm or death.

Jackson was charged only with, and pled no contest to, robbery while “carrying” a firearm, grounds for sentencing pursuant to section 775.087(2)(a)l. As such, we reverse Jackson’s conviction under section 775.087(2)(a)3 on Count VI, and remand with instructions for the trial court to re-sentence him on that count pursuant to section 775.087(2)(a)l. To the extent our decision is in conflict with Brlecic v. State, 456 So.2d 503 (Fla. 2d DCA 1984), we certify conflict.

REVERSED and REMANDED.

GUNTHER and TAYLOR, JJ., concur.


author: COVINGTON, Judge.

text:
    Roy J. MARSH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1589.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
   COVINGTON, Judge.

Roy J. Marsh challenges the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.

In 1987, a jury found Marsh guilty of sexual battery, engaging a child in sexual activity, and incest. In his motion, Marsh sought DNA testing of all the physical evidence that was gathered during the investigation of this case. The trial court concluded that the motion was facially sufficient and ordered the State to respond to Marsh’s motion pursuant to Florida Rule of Criminal Procedure 3.853(c)(2). The State responded by pointing out that, according to the investigating law enforcement agency, it did not have custody of any evidence in the case. The State further claimed that it “has ascertained that no physical evidence suitable for DNA testing was submitted at trial.” As proof of this, the State attached the individual evidence listing for these cases. Based on this response, the trial court denied Marsh’s motion without an evidentiary hearing finding that no physical evidence containing DNA existed.

Where a defendant claims that DNA evidence exists, but the State denies the claim, a factual dispute results and an evidentiary hearing is required. Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003). Because in this case the State’s response created a factual dispute, the trial court should have conducted a hearing. Accordingly, we reverse and remand for the trial court to conduct a hearing on Marsh’s motion.

Reversed and remanded.

WHATLEY and CANADY, JJ., Concur.


author: WELLS, Judge.

text:
    IMPACT COMPUTERS AND ELECTRONICS, INC., a Florida corporation, Appellant, v. BANK OF AMERICA, N.A., and Westgate Fabrics, Inc., a Texas corporation, Appellees.
    No. 3D02-3371.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2003.
    Schwartz Zweben & Associates and Gene R. Zweben and William R. Hoffman, for appellant.

      Liebler, Gonzalez & Portuondo and J. Randolph Liebler, for appellee, Bank of America.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   WELLS, Judge.

Impact Computers and Electronics Inc. appeals from a final summary judgment in favor of Bank of America N.A., claiming that judgment was entered on a count (Count IV) not addressed in the bank’s motion for summary judgment. Impact also claims that summary judgment was entered in favor of a co-defendant, West-gate Fabrics, Inc., on two counts which also were not the subject of the summary judgment motion. We affirm the judgment relating to the bank because the summary judgment motion raised and argued the merits of all counts against it. We also affirm because the summary judgment order does not adjudicate any of the counts against Westgate which remain pending.

This appeal arises from a commercial transaction in which Impact sold approximately $63,000 in computers to an individual in Africa, who, according to Impact, told Impact that he was associated with Westgate, which is located in Texas, and that he was going to pay for the computers that he was ordering with a check from “his” Westgate office. When Impact received Westgate’s check, it deposited the check in its Bank of America account and then held the computers until advised by the bank that the check had cleared and allegedly that nothing could affect the funds. Days later, the computers were shipped to Africa.

The bank then learned that the check had been altered both as to amount and identity of the payee. The bank notified Impact of the altered check and debited Impact’s account for the amount of the check as prescribed by Chapter 674 of the Florida Statutes. Since there were insufficient funds in Impact’s account to cover the full amount of the Westgate check (which had been credited to Impact’s account and drawn against), Impact was notified that it was indebted to the bank for approximately $22,000.

Impact subsequently brought suit ultimately asserting four distinct claims against the bank: Count I for alleged violation of section 674.2141 for improperly debiting Impact’s account after settlement of Westgate’s check became final; Count II for alleged breach of the bank’s “banking services” contract with Impact; Count III for alleged violation of section 674.207 for untimely notification of an altered item; and Count IV for estoppel.

In Count IV of the complaint, Impact, alleging detrimental reliance on the bank’s representations that the funds were secure in Impact’s account, sought to avoid the statutory warranties that it made when it deposited Westgate’s check into its account. Those warranties include representations that Impact was entitled to enforce the check, that the signatures on the check were authentic, and that the check had not been altered:

38. Due to [Impact’s] reliance on [the bank’s] assurances, [Impact] suffered damages in the amount of $63,229.11, plus cost, interest and attorney’s fees.
39. [The bank] is now estopped from asserting any defenses to [Impact’s] claim.

Following discovery, the bank moved for summary final judgment. The motion identifies all four causes of action (including estoppel) alleged against it in the complaint. A common sense reading of this motion demonstrates that the bank was arguing against the validity of all of these causes of action. Although the heading to the legal argument portion of the motion specifically mentions only Counts I, II, and III of the complaint, the body of the motion addresses Impact’s attempt to avoid its warranty obligation via tort claims, an argument wholly inapplicable either to the statutory claims raised in Counts I and III or to the breach of contract claim alleged in Count II. The body of the motion also argues that common law principles of law and equity, which by definition include estoppel, apply to the Uniform Commercial Code unless displaced by the code, and that the code provisions that make Impact a warrantor of the deposited Westgate check displace common law, making estoppel unavailable to Impact:

The Plaintiff seeks to avoid its statutory warranty by utilizing conflicting tort theories. The Uniform Commercial Code preempts conflicting common law. “Unless displaced by the particular provisions of this code the principles of law and equity ... shall supplement its provisions.” § 671.103, Fla. Sta. (1983). The supreme court has observed, “[although general principles of law and equity are applicable to supplement the provisions of the code, they will not prevail when in conflict with code provisions.” Weiner v. American Petrofina Mktg., Inc., 482 So.2d 1362, 1364 (Fla.1986). For instance, in Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So.2d 967, [sic] (Fla. 3d DCA 1998), the third district held that section 670.207, Florida Statutes (1995), preempts a common law negligence claim relating to a wire transfer of funds between banks. While the wording of section 670.207 can be said to “displace” the common law action, and the official commentary supports such a view, that section does not unequivocally state that it changes the common law. See also [sic] Burtman, [sic] v. Technical Chemicals and Products, Inc., 724 So.2d 672 (Fla. 4th DCA 1999).
The Plaintiff is attempting to stand its warranty on its head. The express provisions of the UCC place the burden of altered instruments on the party which first negotiates it.

The motion concludes by stating that “[t]he complaint,” not just some parts of it, “should be dismissed.” (Emphasis added).

In light of the arguments made and the relief requested, Impact’s position in this appeal that judgment on Count IV for estoppel was improper because this “issue” was “not mentioned in the motion for summary judgment,” is incorrect. While perhaps not a model of clarity, the substance of the motion was a request to have the court enter summary judgment in the bank’s favor on Impact’s complaint in its entirety-including Impact’s estoppel claim.

Although summary judgment should not be entered on a count not addressed in a motion for summary judgment, the law is clear‘that “the true nature of a motion must be determined by its content and not by the label the moving party has used to describe it.” Fire & Cas. Ins. Co. of Connecticut v. Sealey, 810 So.2d 988, 992 (Fla. 1st DCA 2002); Indus. Affiliates, Ltd. v. Testa, 770 So.2d 202, 204 n. 1 (Fla. 3d DCA 2000)(stating that “if the motion is mislabeled, the court will look to the substance of the motion, not the label”); Estate of Willis v. Gaffney, 677 So.2d 949, 951 (Fla. 2d DCA 1996) (holding that a court should look to the substance of a motion, not its title); Jones v. Denmark, 259 So.2d 198, 200 n. 1 (Fla. 3d DCA 1972) (noting that “the character of a motion will depend upon its grounds or contents, and not on its title”). Accordingly, we affirm the summary judgment on all counts as to Bank of America. We also affirm because the summary judgment order does not adjudicate any of the counts against West-gate which remain pending.

Affirmed.

      . Impact's appeal is purely procedural and raises no issue as to the propriety of a judgment on the merits.


author: TAYLOR, J.

text:
    The TOWN OF SEWALL’S POINT, a Florida municipal corporation, Joan Barrow and Donald Winer, Appellants, v. Blaine RHODES and Sally Rhodes, husband and wife, and Jann Levin, Appellees.
    No. 4D02-2184.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.

      Michael R. Piper and Christine M. Duig-nan of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for appellant.
    Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellees.
   TAYLOR, J.

Blaine and Sally Rhodes obtained a jury verdict of fifty thousand dollars ($50,000) against the Town of Sewall’s Point (“Town”) and the Town’s clerk and mayor on their claims of defamation and invasion of privacy. Their suit arose from publication of a photograph of the Rhodes’s property, which was taken by a neighbor and delivered to the town officials. We reverse the final judgment and remand for entry of judgment in favor of the Town and town officials.

Jann Levin, a resident of the Town, lived across the canal from the appellees. On or about December 13, 1998, Levin took a photograph of appellees’ backyard. She placed the photograph in a frame decorated in a holiday motif and bearing the caption “Our View of the Hillbilly Hellhole — Merry Christmas — Happy Hanna-kah — Happy New Year — Welcome 1999.” Levin took the photograph to Town Hall and handed it to Joan Barrow, the town’s clerk. Barrow, in turn, showed it to Donald Winer, the town’s mayor. Levin requested that the photograph be displayed on the front counter, along with other holiday greetings, for the Christmas/Holiday open house.

Barrow placed the photograph on the counter, where it remained from December 17 until December 18,1998. When the town’s mayor found out that appellees were upset about the photograph, he had it removed.

Appellees sued the Town and town officials for defamation, invasion of privacy, civil conspiracy, governmental intrusion, and a civil rights violation. Ultimately, the case proceeded to trial against the Town for defamation and against the clerk and mayor for invasion of privacy. At trial, appellees admitted that the photograph was an accurate depiction of their backyard as it existed at the time it was taken. Levin testified that the caption honestly expressed her opinion of appellees’ property.

At the close of all the evidence, the Town and town officials moved for directed verdict. The court denied their motion. The jury returned a verdict in favor of appellees and the court entered judgment on the $50,000 jury award.

Appellants raise several issues on appeal. However, we need only address their contention that the trial court erred in failing to enter a directed verdict in their favor because the photograph and caption constitute non-actionable pure opinion.

We agree with appellants that the photograph and caption constitute statements of pure opinion, which are protected by the First Amendment and, thus, not actionable as defamation. See Morse v. Ripken, 707 So.2d 921 (Fla. 4th DCA 1998)(holding that a statement by a baseball player’s wife in a magazine that the plaintiffs failure to vacate her leased home indicated her intent to spend the night with her husband was pure opinion and not actionable under the First Amendment). Whether a statement is one of fact or opinion is a question of law, subject to de novo review. Id. at 922 (citing Zambrano v. Devanesan, 484 So.2d 603, 606 (Fla. 4th DCA 1986)).

In Morse, we discussed the distinction between pure expressions of opinion, which are constitutionally protected, and mixed expressions of opinion, which are not:

Pure opinion is based upon facts that the communicator sets forth in a publication, or that are otherwise known or available to the reader or the listener as a member of the public. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. Rather the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion.

Id. (quoting Hay v. Indep. Newspapers, Inc., 450 So.2d 293, 295 (Fla. 2d DCA 1984)).

We further explained that in determining whether a statement is actionable, the court must examine the statement in the context in which it was published and consider all of the circumstances surrounding the statement. Id.

An important factor in the process of analyzing a comment is determining whether the speaker accurately presented the underlying facts of the situation before making the allegedly defamatory remarks ... [WJhere the speaker or writer neglects to provide the audience with an adequate factual foundation pri- or to engaging in the offending discourse, liability may arise.

Zambrano, 484 So.2d at 606-07.

The framed photograph bearing the words “Our View of the Hillbilly Hellhole” amounts to a statement of pure opinion. Here, all of the facts upon which Levin based her opinion are contained in the photograph. The caption is nothing more than her commentary on the facts presented in the photograph. There is no implication that Levin’s opinion is based on a concealed or undisclosed set of defamatory facts. Rather, anyone viewing the photograph can confirm the condition of appel-lees’ property and draw his or her own conclusion concerning the “Hillbilly Hellhole” description. For these reasons, the defamation claim fails as a matter of law. Appellees’ invasion of privacy claim is similarly barred. See Callaway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204 (Fla. 4th DCA 2002)(citing Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 609 (Fla. 4th DCA 1975)).

Accordingly, we reverse the final judgment and remand for the court to enter judgment in favor of the appellants.

REVERSED and REMANDED.

KLEIN and GROSS, JJ„ concur.


text:
    Catherine W. REAL, Petitioner, v. Pamela B. FITZGERALD and Scott Fitzgerald, Respondents.
    No. 2D03-1741.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.

      Barry A. Cohen and Kevin J. Darken of Cohen, Jayson & Foster, P.A., Tampa, for petitioner.
    No response required for respondents.
   PER CURIAM.

We deny the petition for writ of prohibition as being moot, in that the order to show cause has been withdrawn.

GUNTHER, BOBBY W., STONE, BARRY J., and POLEN, MARK E., Associate Judges, concur.


text:
    Jonathan GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1782.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Jonathan Griffin, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jonathan Griffin (Appellant) appeals from an order summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Appellant entered a negotiated plea to charges of first degree murder, robbery with a deadly weapon, burglary of an occupied conveyance, and grand theft auto. He raised three related, legally sufficient, claims of ineffective assistance of counsel: (1) failure to inform him of a temporary insanity defense where counsel was aware of Appellant’s prior mental problems and drug abuse; (2) failure to investigate the temporary insanity defense; and (3) mis-advice as to the availability of the voluntary intoxication defense. In the order on appeal, the trial court considered and adopted the State’s response with attachments, which indicated the need for an evidentiary hearing. However, the trial court summarily denied the motion without either an evidentiary hearing or an explanation why such a hearing was unnecessary.

In response to this court’s order to show cause, the State once again indicates that either an evidentiary hearing is necessary or the trial court must attach portions of the record conclusively refuting Appellant’s claims. The State acknowledges that the court’s order must be reversed.

We accordingly reverse and remand.

SHAHOOD, GROSS and MAY, JJ„ concur.


author:
TAYLOR, J.
      MAY, J.

text:
    Anne Marie FRANCOIS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Retirement Care Services, Inc., Appellees.
    No. 4D02-3208.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Anne Marie Francois, Lauderdale Lakes, Pro Se.
    John D. Maher, Tallahassee, for Appel-lee-Unemployment Appeals Commission.
   TAYLOR, J.

The Unemployment Appeals Commission reversed the appeals referee’s decision that the claimant’s appeal was timely filed and quashed the referee’s ruling that the claimant was not disqualified from receiving unemployment benefits. We reverse the Commission’s order.

The appeals referee found that the claimant complied with the agency representative’s instructions to fax her appeal letter to the Orlando call center office for forwarding to the appeals office well before the twenty-day period for filing her appeal expired. Based on this finding, which is supported by competent, substantial evidence in the record, the referee concluded that the claimant filed a timely appeal. We agree. See Frederick v. Fla. Unemployment Appeals, 834 So.2d 957 (Fla. 3d DCA 2003)(reversing dismissal of appeal to Unemployment Appeals Commission as untimely and holding that appeal would be reinstated if, on remand, it is determined that the claimant was given an incorrect fax number or misled into faxing her notice of appeal to the incorrect fax number and that she actually attempted to fax her notice of appeal to the Commission within the twenty-day time period); see also Cornello v. Unemployment Appeals Comm’n, 624 So.2d 382 (Fla. 4th DCA 1993)(reversing UAC’s order that affirmed appeals referee’s decision that it lacked jurisdiction because claimant had been misinformed and misled).

Because appellant’s timely filed notice sufficed to vest jurisdiction in the appeals referee, we reverse the Commission’s order and remand for reinstatement of the referee’s decision on the merits that appellant is not disqualified from receiving unemployment benefits.

HAZOURI, J., concurs.

MAY, J., dissents with opinion.

MAY, J.

dissenting.

I respectfully dissent. Had the appellant raised the issue of the Commission’s finding on the timeliness of her appeal, I would agree with the majority. However, the appellant only argued the merits of her claim for unemployment compensation. I am unwilling to find that the issue of timeliness was properly raised when it does not appear in the appellant’s brief.


text:
    Wanas WALLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2259.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Wanas Walls, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Wanas Walls appeals an order rendered by the circuit court, which summarily denied his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the trial court ruled on this motion, Walls had a final appeal pending in this court. The circuit court therefore lacked jurisdiction to enter the order. Its order is properly deemed a nullity. See Leonard v. State, 835 So.2d 1210 (Fla. 4th DCA), review denied, 845 So.2d 891 (Fla.2003).

Accordingly, we vacate the circuit court’s order of April 15, 2003. On remand, we direct the circuit court to either dismiss the motion with leave to refile or stay proceedings on the motion pending resolution of appellant’s direct appeal and, thereafter, enter a new ruling on the motion. See Leonard; Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002)(en banc).

STEVENSON, GROSS and MAY, JJ., concur.