author: SHAHOOD, J.

text:
    CORAL CADILLAC, INC., a Florida corporation, Appellant, v. James R. STEPHENS, Appellee.
    No. 4D02-543.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, Donald C. Dowling of Spinner, Dittman, Federspiel & Dowling, LLP, Delray Beach, and Kenneth L. Bed-nar of Hinshaw & Culbertson, Fort Laud-erdale, for appellant.
    Kenneth L. Paretti of Adams & Quinton, P.A., Miami, for Amicus Curiae South Florida Auto Truck Dealers Association, Inc., a not for profit Florida corporation.
    Edna L. Caruso of Caruso & Burlington, P.A., West Palm Beach, and Samuel T. Hill of Hill & Lemongello, P.A., Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant, Coral Cadillac, Inc., appeals from a final judgment following a jury trial and from an order denying its motion for rehearing/new trial, motion for remittitur, and motion to limit judgment on punitive damages. We affirm as to all issues raised, except the statutory interest rate issue, which we reverse. In affirming the punitive damages award we write only to discuss whether the punitive damage award must be limited to three times the compensatory damage award.

Appellee purchased a 1996 Seville “demo” car, with low mileage, from Coral Cadillac’s showroom and was told that the car had been driven only by the sales manager. He was further told that the car had never been in an accident or repaired, and thus, the car was sold as “factory fresh.” Shortly, after purchasing the car, appellee became aware of various imperfections in the car which led to the conclusion that the car had in fact been in an accident and repaired. Despite repeated denials from Coral Cadillac, appel-lee was able to ascertain that the rear of the car had been in an accident and repaired. After noticing other problems with the car, and the ensuing litigation, appellee prevailed at trial in establishing that Coral Cadillac was guilty of fraudulent misrepresentation, and unconscionable, unfair or deceptive trade practices and was awarded $12,500 in compensatory damages. The jury also found that appellant was entitled to punitive damages in the amount of $133,050 against Coral Cadillac. A final judgment was entered in the amount of $145,550 and the trial court subsequently denied Coral Cadillac’s motion for rehearing/new trial, motion for remittitur and motion to limit judgment on punitive damages.

Coral Cadillac argues that the trial court erred in denying its motion to limit the punitive damage award to three times the compensatory damage award under section 768.73(l)(a), Florida Statutes (1995).

Section 768.73, Florida Statutes (1995), states in pertinent part:

(l)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involving willful, wanton, or gross misconduct, the judgment for the total amount of punitive damages awarded to a claimant may not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact, except as provided in paragraph (b).

(Emphasis added). An award exceeding this limitation is presumed to be excessive and the defendant is entitled to remittitur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact. § 768.73(l)(b), Fla. Stat. (1995).

Coral Cadillac argues that appel-lee’s fraud claim is subject to the statutory cap on punitive damages because it arose out of misconduct in a “commercial transaction.” Appellee, however, argues that the transaction was strictly a “consumer transaction,” thereby taking it out of the limitation on punitive damages. The trial court held that “because it is a consumer as opposed to a commercial transaction they’re entitled to the punitive damages.” We agree.

The issue central to this argument is whether section 768.73 applies to consumer transactions. Because judicial interpretation of Florida law is a purely legal question, it is subject tó de novo review. See Eng’g Contractors Ass’n of S. Fla., Inc. v. Broward County, 789 So.2d 445, 449-50 (Fla. 4th DCA 2001).

In reaching the conclusion that under the facts of this case the sale of the car for individual use arose in the context of a consumer, rather than commercial transaction, we note that there are no cases which expressly answer this question. Neither Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994), nor S & S Toyota, Inc. v. Kirby, 649 So.2d 916, 921 (Fla. 5th DCA 1995), relied upon by Coral Cadillac, directly answers this question.

In Alamo Rent-A-Car, an automobile lessee brought an action against Alamo for malicious prosecution based on the lessee’s arrest for failure to return a rental car. The jury awarded the lessee compensatory and punitive damages. Alamo argued that the punitive damages should be limited to no more than three times the amount of compensatory damages under section 768.73(1)(a). In interpreting this section, the court held that the willful and wanton misconduct at issue in that case occurred during the course of the commercial transaction between Alamo and the automobile lessee and was the direct result of that commercial transaction. See 632 So.2d at 1357. Thus, the court concluded that the statute applied to intentional torts arising out of a consumer’s lease of an automobile. See id. at 1357-58.

• In S & S Toyota, an automobile buyer brought an action against the seller for compensatory and punitive damages for a misrepresentation that an automobile was a “low mileage” vehicle. 649 So.2d at 921. Following a jury trial, the court entered judgment for the buyer on the fraud claim, but against the buyer on the federal odometer law claim, and granted a remittitur or new trial with respect to damages. The Fifth District upheld the punitive damage award, held that the buyer was entitled to treble damages under the federal odometer law, and that the trial court did not abuse its discretion in granting remittitur on the compensatory and punitive damage award. See id. The court, in dicta, merely stated that there was no abuse in discretion in remitting the punitive damage award to three times the amount of compensatory damages. See id.

Because section 768.73 fails to define either “commercial transaction” or “consumer transaction” and neither of the above cases addresses the issue of whether the sale of a car to an individual consumer constituted a commercial transaction under the statute, the terms “commercial transaction” and “consumer transaction” should be defined by their plain and ordinary meaning. See Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (when a term is undefined by statute, one of the most fundamental tenets of statutory construction requires that we give a statutory term its plain and ordinary meaning). We must conclude that had the legislature meant for “commercial transaction” under section 768.73 to include consumer transactions, it would have amended the statute to so provide. See St. John v. Coisman, 799 So.2d 1110, 1113 n. 3 & n. 5 (Fla. 5th DCA 2001) (under the doctrine of expressio unius est exclusio alterius, the expression of one thing is the exclusion of the other. That is, when a law expressly describes a sitúation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded). It is also a basic tenet of statutory construction that exceptions or provisos should be narrowly and strictly construed. See Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1100-01 (Fla.1990).

Black’s Law Dictionary defines a “consumer” as “[a] buyer (other than for purposes of resale) of any consumer product. ...” Black’s Law Dictionary 316 (6th ed.1990). A “consumer product” is “[a]ny tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes _” Id. at 316-17. In giving examples of what is considered a consumer transaction, Florida Jurisprudence states that an automobile sale at the wholesale level is not considered a consumer transaction. See 10A Fla. Jur.2d Consumer Borrower and Protections § 153. Logically, it would follow that the sale of an automobile at the retail level would be considered a consumer transaction. “Commercial” is defined as “[r]elates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce.” Black’s Law Dictionary 270 (6th ed.1990). To apply Coral Cadillac’s reasoning, any product bought by a consumer for personal use through commerce, would be considered a commercial transaction. Since most consumer products are distributed through commerce, no product would ever be considered a consumer transaction. In applying a plain meaning interpretation to the statute, it would appear that a transaction which occurs solely for personal use must be considered a consumer transaction, rather than a commercial transaction, and thus, section 768.73(1) should not apply. Thus, the trial court properly refused to limit the punitive damage award.

Lastly, Coral Cadillac correctly argues that the rate of interest on the judgment must be corrected to reflect the 2002 statutory rate of 9%. See Amerace Corp. v. Stallings, 823 So.2d 110, 114 (Fla.2002) (interest does not accrue until the date of the judgment, not the verdict); see also § 55.03, Fla. Stat. (2002). '

Because section 768.73 fails to address the issue as to whether the purchase and sale of an automobile for personal use is a consumer or commercial transaction thereby limiting a punitive damage award to three times the compensatory damage award, we certify the following question to the Florida Supreme Court to be one of great public importance:

IS THE PURCHASE AND SALE OF AN AUTOMOBILE AT THE RETAIL LEVEL FOR THE BUYER’S PERSONAL OR HOUSEHOLD USE A “COMMERCIAL TRANSACTION” AS DEFINED BY SECTION 768.73, FLORIDA STATUTES (1995), THEREBY LIMITING PUNITIVE DAMAGES NOT TO EXCEED THREE TIMES THE AMOUNT OF COMPENSATORY DAMAGES?

AFFIRMED IN PART; REVERSED IN PART AND REMANDED; QUESTION CERTIFIED.

STEVENSON, J., and GEIGER, DWIGHT L., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lonnie R. GUNDER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-172.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Lonnie R. Gunder, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee:
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Lonnie R. Gunder appeals from the lower court’s denial of relief pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.

The record shows that on September 23, 2003, Gunder pled to possession of cocaine and was sentenced to five years in state prison with credit for time served. ' The docket indicates that the court gave Gun-der a week’s furlough, providing that it would mitigate the sentence to 270 days with participation in the Treatment Alternatives to Street Crime [TASC] program upon Gunder’s surrender on September 30, 2003. Gunder failed to appear and was taken into custody a month later. Gunder filed a motion to reduce or modify the sentence, claiming that his failure to appear was not willful, and that his plea was actually to the 270 days and TASC. Gun-der is incorrect. The record shows that Gunder agreed to a plea of five years with credit for time served, which sentence could have been mitigated by his appearance at the end of the furlough he requested; his failure to appear was unexcused and not de minimis. We therefore affirm Gunder’s legal sentence imposed pursuant to his plea.

Affirmed.


text:
    Teodoro VALDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3145.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.

      Teodoro Valdez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

We reverse and remand for an eviden-tiary hearing. See Stevenson v. State, 688 So.2d 962(Fla. 5th DCA 1997).


author: FLETCHER, Judge.

text:
    Jerry Lacel MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2487.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Cain & Snihur and May L. Cain, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   FLETCHER, Judge.

Jerry Lacel Miller appeals from the denial of his petition for relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, and reverse in part and remand for an evidentiary hearing.

Miller’s motion for post-conviction relief contained allegations that his attorney failed to interview or depose the state’s primary witness , failed to inspect certain photographic and taped discovery made available to defense by the state, and was not familiar with the record so as to be able to advise the defendant regarding the plea offer or meaningfully discuss defense strategies and the posture of the case, even after commencement of trial. Miller’s allegations sufficiently described specific conduct on part of trial counsel which, if it indeed occurred, would constitute substantial and serious deficiencies measurably below that of competent counsel. As the record does not conclusively refute Miller’s claims he is entitled to an eviden-tiary hearing thereon.

Regarding the specific claims of failing to depose witnesses, review discovery, and follow up on certain motions to suppress, we reverse the trial court’s order of denial and remand to the trial court to conduct an evidentiary hearing. We affirm the trial court’s denial of relief on the remaining claims.

Affirmed in part; reversed and remanded in part.

      . These were found to be ''trial tactics.” At oral argument the state was unable to suggest how deliberate ignorance of coming testimony could be beneficial to a defendant. At trial, at least, ignorance is not bliss.

      . Appellant’s Grounds I and VIII, as set forth in his Brief to this court.

      . Appellant’s Grounds II through VII.


author: BAILEY, JENNIFER D., Associate Judge.

text:
    Jeffrey ROSS, Appellant, v. Hayley Lisa BOTHA, Appellee.
    No. 4D02-500.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.

      Doreen Inkeles of Doreen Inkeles, P.A., Coral Springs, for appellant.
    John L. Avery, Jr. of Law Offices of John L. Avery, Jr., Jupiter, for appellee.
   ON MOTION FOR REHEARING

BAILEY, JENNIFER D., Associate Judge.

We withdraw our previously issued opinion and substitute the following in its place.

This appeal arises from a post-dissolution order regarding child support and visitation issues between. Hayley Botha (“mother”) and Jeffrey Ross (“father”). During the parties’ nine year marriage, they had one daughter. When they were divorced in Illinois in 1999, they entered into a marital settlement agreement. The agreement provided, inter alia, that the mother have sole custody of the child and the father have liberal specified visitation, pay $125 per week in child support, and secure $100,000 in life insurance. The agreement also contained a fee-shifting “prevailing party” provision.

After both parties relocated to Florida, the mother filed a petition to domesticate the Illinois judgment and to enforce $17,000 in child support arrearages, medical expense contributions, and to force the father to provide medical and life insurance. The father counter-petitioned for a reduction in his child support obligation. An agreed judgment was rendered in this phase of the case, awarding the mother $16,899 in back child support payable at $25 per week, reducing the father’s current support obligation to $75 per week, and requiring him to obtain life and medical insurance. Both parties also were, by agreement, to encourage the child to attend therapy with a mutually-selected therapist and to refrain from alienating the child from the other parent.

Within a few months, the father filed a pro se motion for contempt alleging that the mother had denied visitation, unilaterally selected a therapist without giving the father any opportunity to participate, and engaged in alienating and denigrating conduct in front of the child. The mother counter-petitioned for modification, alleging threats from the father to take the child, that the father emotionally abused the child by calling her names and screaming obscenities, and that he failed to pay child support or obtain life insurance. She requested that the court hold the father in contempt, imprison him, suspend or limit visitation, and require supervision of any visitation.

All matters were set before the circuit judge. The mother was represented by an attorney and the father appeared pro se. There is no record of the hearing. The father subsequently retained counsel who attempted to create a stipulated record pursuant to the appellate rules, but was unable to do so. See Fla. R.App. P. 9.200(a)(2) and (b)(4). It appears the court did not announce its rulings in the presence of the parties at the hearing. Rather, at the conclusion of the hearing, the court simply asked the mother’s attorney to prepare an order without specifying its contents. The attorney simultaneously mailed his proposed order to the court and the father, and the court signed it the same day the husband received it, adopting the order verbatim as its own. It is from this order the father appeals.

The order contains several errors that, as a matter of law, require reversal, even without a transcript. See Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997); Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999). The father challenges the court’s contempt and attorney’s fees holdings, the child support issues, and the manner in which the order was generated.

On the contempt issue, the order held the father in contempt for failing to pay child support and set the amount of arrears as $818.09. The father was ordered to pay this amount within ten days or face incarceration. The order’s failure to satisfy the basic requirements for a finding of contempt is clear. A child support contempt order must find: 1) a prior valid order of support; 2) a failure to pay all or part of the ordered support; 3) the parent’s present ability to pay the support; and 4) the parent’s willful refusal to comply with the prior court order. See Fla. Fam. L.R.P. 12.615(d)(1); see also Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985). Further, “[t]he order shall contain a recital of the facts on which these findings are based.” Fla. Fam. L.R.P. 12.615(d)(1).

Neither the legal findings nor the facts are reflected in the order under consideration. Additionally, the trial court erred in mandating the father’s automatic incarceration upon his failure to pay the arrears. Where jail is determined as the sanction for civil contempt, before the con-temnor can be incarcerated the trial court must afford the contemnor an opportunity to establish the inability to pay. If the trial court orders the contemnor’s incarceration, a separate affirmative finding that the parent has the present ability to pay the purge is required, and the court must recite the facts in support of that finding. See Fla. Fam. L.R.P. 12.615(e); see also Bowen, 471 So.2d at 1279-80; Hipschman v. Cochran, 683 So.2d 209, 212 (Fla. 4th DCA 1996) (en banc).

As to the father’s requirement to maintain $100,000 of life insurance, the record does not reflect, and the court made no findings, that such insurance was available at a reasonable cost to the father or that he had the resources to pay for such insurance. See Guerin v. DiRoma, 819 So.2d 968, 969 (Fla. 4th DCA 2002). Likewise,, the order granting attorney’s fees is defective as it failed to specify the fees related to the contempt action, which fees are subject to. the prevailing party provision in the marital settlement agreement, and what fees are related to the modification of custody and visitation which are not covered by the agreement. See Mott v. Mott, 800 So.2d 331, 333 (Fla. 2d DCA 2001); Tucker v. Greenberg, 674 So.2d 807, 809-10 (Fla. 5th DCA 1996). The order also failed to determine the parties’ respective financial resources to support an attorney’s fees award. See § 61.16, Fla. Stat. (2001). These omissions on both the contempt and attorney’s fees rulings require reversal.

As to the issues relating to the father’s visitation and contact with the child, the order includes findings that the father demonstrated a pattern of abusive behavior towards the child, that he failed to cooperate with the child’s therapist, and that he directs deep hostility toward the wife. Thus, the order suspended the husband’s visitation until such time as he could demonstrate to the court that it is in the child’s best interests to resume visitation, for a period of “one year from the date of the order” and that “after that time, the Court, upon proper motion, shall conduct a hearing.”

In entering this order the court erred. First, this order modified the existing judgment. A modification order requires findings 1) that a material change in circumstances has arisen since the entry of the prior visitation order, and 2) that the welfare of the child will be promoted by the modification. See Haas v. Haas, 686 So.2d 799, 800 (Fla. 4th DCA 1997). No such findings are made in this order. Secondly, the order sets conflicting time frames for reconsideration of the father’s visitation, requiring an arbitrary one year waiting period and/or such time as the father can demonstrate to the court that it is in the child’s best interests to resume this visitation. May the father move for visitation within a year by virtue of the alternative provision?. Is this a temporary order or a final order which would require the father to meet the modification standard to see his child again? Finally, and most importantly, the order fails to set forth any specific requirements or standards for the father to- meet in order to see his child again. See Hunter, v. Hunter, 540 So.2d 235, 238. (Fla. 3d DCA 1989). Does the court envision therapy for the father, anger management, or a foreseeable reduction in conflict between the parents? The order is completely silent as to what steps the court expects the father to take, how therapy will be accessed in light of the father’s unemployment and the limited finances of the parties, and what proof of parental rehabilitation the court is seeking from the father. The lack of any specific .guidelines also prevents any successor judge from monitoring the father’s progress. The lack of a clear mandate to the father is especially troubling since the trial court did not announce any such ruling from the bench. For these reasons we reverse the. court’s order suspending the father’s visitation.

The father also appeals those portions of the order that rely upon the testimony of the child’s therapist. Here, the alleged error relates to the evidence, which error we cannot review without a transcript. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). As the order is being reversed, we decline to address this issue.

The final issue before us is the manner in which the order was generated. The trial judge did not announce any findings or rulings at the conclusion of the hearing. The order under review was prepared solely by the mother’s attorney and forwarded to the judge at the same time it was sent to the father. Upon receiving the order the judge signed it without providing the father an opportunity to object or comment on it. While appellate courts throughout the state have acknowledged the burden on our family courts and the necessity of directing parties to submit proposed orders, the procedure followed in this case as well as the numerous errors in the order require reversal of the order as they are per se reversible. See Perlow v. Berg-Perlow, 816 So.2d 210, 217 (Fla. 4th DCA 2002). A court should never direct only one side to prepare an order without assuring that the opposing party has had the opportunity to comment or object to its contents, or prepare its own submission. It is also difficult to believe, on such fact-intensive issues as presented here, that an attorney can be so omniscient as to the court’s findings that they could be entirely correct without a single edit where the court made no rulings in open court. See Corp. Mgmt. Advisors, Inc. v. Boghos, 756 So.2d 246, 248 (Fla. 5th DCA 2000) (admonishing trial judges for adopting proposed orders drafted by litigants, verbatim, without making in-court findings).

This practice is particularly troublesome where the issues and high conflict nature of this case are unfortunately typical of post-judgment family litigation. Frequently, there is no court reporter or record. Receipt of a proposed order from any party without it being first provided to, and reviewed, by the opposing party is problematic and may, depending on the circumstances, amount to an ex-parte communication with the court. When opposing party is pro se, the problems escalate, creating the perception that the lawyer is deciding the case instead of the judge.

The demands of a crowded family docket force judges to rely on lawyers and parties to submit orders for their review. See Flint v. Fortson, 744 So.2d 1217, 1219 (Fla. 4th DCA 1999). Unfortunately, proposed orders prepared by one side are frequently one-sided as to findings and rulings. As pro se litigants are bound by the rules of procedure just like any lawyer, they also possess the same right to submit proposed orders, review orders submitted to the court by opposing counsel, and comment on same, within a reasonable time frame. Several factors to consider when reviewing “adopted” orders, include:

1) Is the signed order consistent with or divergent from the verbal rulings of the court?
2) How much time has passed since the hearing, and does the judge remember the case?
3) Are there irregularities or conflicts in the terms of the order?
4) Did the judge participate in the trial?
5) Did the judge edit or alter the proposed judgment to conform it to his or her conclusions about the case, or did he or she sign it verbatim?

See Damiani v. Damiani, 835 So.2d 1168, 1170 (Fla. 4th DCA 2002) (citing Flint, 744 So.2d at 1220).

These issues are particularly apparent/evident in this case as there is no record, and the trial court did not render any verbal rulings to be subsequently memorialized in a written order. Therefore, we are unable to render meaningful review as to the order’s inconsistency with the court’s verbal rulings or the judge’s participation. The court ended the hearing with no findings and no rulings, and then adopted an irregular, defective, one-sided submission verbatim, without comment from the opposing side. An order must reflect independent decision-making by the judge. See Perlow, 816 So.2d at 217; Flint, 744 So.2d at 1220. Because this order does not meet that standard, we reverse. Given the reality of current caseloads, it is unrealistic to advocate that judges should always author their own orders. However, particularly in cases involving pro se litigants such as this, the opportunity for both sides to have input as to the content of the order as well as careful scrutiny that the proposed order includes the necessary findings and language and reflects the independent conclusions of the court, are essential to perceptions of fairness and fundamental justice.

As to the issue of appellate attorney’s fees, the mother’s motion is denied. We grant the father’s motion, and remand the matter for the trial court to determine the amount of fees based upon the mother’s ability to pay and the father’s need. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997); Damiani, 885 So.2d at 1171.

Reversed and remanded.

KLEIN and STEVENSON, JJ., concur.


author: SHEPHERD, J.

text:
    M.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-335.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Albert W. Guffanti, for appellant.
    Hillary S. Kambour, Program Attorney; Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   SHEPHERD, J.

M.M. appeals the termination of her parental rights as to her three children, M.O., M.O. and E.O. We find that there was substantial competent evidence to support the decision of the trial court and therefore affirm.

The Department of Children and Families (DCF) took M.O., M.O. and E.O. into custody on December 18, 1997, upon allegations that M.M. had a substance abuse problem and had abandoned them. The mother was offered a pre-adjudicatory case plan and the children were reunited with their mother on July 2,1999. However, the appellant did not care for her children and they were back in the custody of DCF within a month. Appellant asked that the children remain in foster care until she completed a substance abuse program, included as a part of the plan.

By June 2000, M.M. apparently was not proceeding satisfactorily, prompting the filing of a formal petition to terminate M.M.’s parental rights. A few months later M.M. was offered a last chance reunification plan and the petition was abated. Perhaps recognizing the seriousness of the situation, M.M. began to make progress. By February 2001, she had completed all conditions of the plan except obtaining appropriate housing and employment. For well over a year after that, the trial court and DCF continuously worked with M.M. to give her the opportunity to meet these conditions. At one point, when M.M. obtained housing at Camillus House, the trial court even gave M.M. custody of her daughter. However, shortly thereafter M.M. left this placement, only to abandon the child at the home of M.M.’s mother, who asked DCF to return the child to foster care. DCF reinstated the petition.

At a hearing on the petition in August 2002, M.M. was given a final ninety-day period — an “absolute last chance” with “no excuses” — to find gainful and stable employment and housing. M.M. was then living at her mother’s house, a placement that DCF previously had found to be unacceptable for the children. M.M. claimed to be working at a job that paid her “under the table.”

In November 2002, the case was heard again. The nature of M.M.’s employment had not changed. With respect to housing, M.M. claimed that she had managed to locate temporary, month-to-month housing four days before the hearing. Counsel for M.M. argued that she had successfully completed the plan and was entitled to be reunited with her children. The trial court disagreed, essentially concluding that these efforts were too little, too late. The court was bolstered in its decision by the testimony of the family’s therapists who opined that after five years, M.M.’s three children desperately needed stability and that reuniting them with them mother under these circumstances would be detrimental to the children’s manifest best interests. The guardian ad litem agreed.

As grounds for termination, § 39.806(l)(e), Fla. Stat. (2002), states in relevant part, “failure of the parents to substantially comply [with the case plan] for a period of 12 months after an adjudication of the child as a dependent ... constitutes evidence of continuing abuse, neglect, or abandonment....” In F.A.F. v. Department of Children and Family Services, 804 So.2d 616 (Fla. 3d DCA 2002), we held that a judgment will be affirmed where substantial, competent evidence supports an order terminating parental rights.

The record here shows that M.M. has authored her own undoing. When given two opportunities to reunite with her children, she botched both events, causing the children to suffer episodic abandonment. M.M. has had chance after chance to reunite with her children in a timely and responsible way. Yet, her repeated failure to complete the underlying objectives of the case plan has left her children, M.O., M.O., and E.O., to languish in the system for five years under DCF and court supervision. We are left with one impression— M.M. is not genuinely interested in having a future with her children. See In the Interest of L.R.R., 455 So.2d 598 (Fla. 5th DCA 1984) (parent’s inability to provide a proper and fit home coupled with abandonment or lack of a genuine interest in her children for almost a two-year period warranted termination of parental rights). There is ample record evidence to support the decision of the trial court in this case that M.M.’s parental rights are deserving of termination.

Affirmed.

      . In this case, the issue really is not the failure to have adequate employment or housing, for neither are legally required, per se, to be an adequate parent. In the Interest of I.R.C., 480 So.2d 198 (Fla. 5th DCA 1985). The Depression Era alone proves that families can successfully weather the storms of unemployment and poverty. Rather, the issue in this case is whether M.M.’s lackadaisical approach to completing her case reunification plan evidences an unwillingness on her part to organize her life in such a fashion as to care for her children.


text:
    Carlos CORDERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1576.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEYIN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. Phoenix v. State, 455 So.2d 1024 (Fla.1984).


text:
    Anita NAJIY, et al., Appellants, v. CITY OF MIAMI, Appellee.
    No. 3D03-2196.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Donna M. Ballman (Fort Lauderdale), for appellants.
    Alejandro Vilarello, City Attorney, and Mimi V. Turin, Assistant City Attorney, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

We affirm the trial court’s order of dismissal. See Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927); Faino v. Great West Life Assur. Co., 622 So.2d 632 (Fla. 3d DCA 1993). The dismissal is without prejudice and is contingent on the Federal Court accepting jurisdiction over the matter. If the Federal Court finds that it does not have jurisdiction over this matter, the parties are free to refile this lawsuit in state court. Affirmed as modified.


text:
    Patrick CHAMBERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2203.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Lawrence v. State, 846 So.2d 440 (Fla.2003).


text:
    Leonard WAGNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2626.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Leonard Wagner, in proper person.
    Charles J. Crist, Jr., Attorney General and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GERSTEN, JJ.
   PER CURIAM.

The trial court dismissed the appellant’s 3.850 motion on the grounds of untimeliness and successiveness. Because, as the state correctly acknowledges, both conclusions were incorrect, the order under review is reversed for consideration of the motion on its merits.


text:
    Lee GRIFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3394.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.

      Lee Griffin, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Lee Griffin appeals from the trial court’s denial of relief pursuant to Florida Rule of Criminal Procedure 3.800. We affirm. The claims raised were either without legal basis (grounds one and three) or should have been raised on direct appeal (ground two). See Harvey v. Dugger; 656 So.2d 1253 (Fla.1995)(holding that “issues that could have been, but were not, raised on direct appeal are not cognizable through collateral attack”); see also State v Franklin, 836 So.2d 1112 (Fla. 3d DCA), rev. granted, 854 So.2d 659 (Fla.2003)(holding that chapter 99-188 does not violate the single subject rule).

Affirmed.


text:
    Douglas L. ADAMS, Petitioner, v. John H. RUTHERFORD, Sheriff, Duval County, Florida, Respondent.
    No. 1D04-0036.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Douglas L. Adams, petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

ERVIN, DAVIS.and BROWNING, JJ., concur.


author: PER CURIAM. ERVIN, J.,

text:
    TRANSMED, INC., Appellant, v. Glenn BOTTS, Appellee.
    No. 1D03-1463.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    James N. Charles, Esquire, Celebration, for Appellant.
    Jon E. Benezette, Esquire, Daytona Beach, for Appellee.
   PER CURIAM.

The Order Determining Compensability of Claim and Awarding Medical and Disability Benefits by the Judge of Compensation Claims is affirmed, except for the award of temporary partial disability benefits for the period of June 16, 2001 through July 5, 2001.

AFFIRMED in part; REVERSED in part and REMANDED.

BARFIELD and POLSTON, JJ., concur; ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I would affirm the order of the judge of compensation claims (JCC) in its entirety. It is unclear on what basis the majority has reversed the award of temporary partial disability (TPD) benefits for nearly three weeks following claimant’s termination from employment. If the majority considers that reversal is required because claimant’s termination occurred as a result of a reason unconnected with his work-related injury, the rule is firmly established that such fact alone does not disen-title an employee from disability benefits. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 683-84 (Fla. 1st DCA 1997) (en banc). It must also be decided whether claimant satisfied his burden of establishing a causal connection between the injury and loss of earning capacity after termination. See Jefferson v. Wayne Dalton Corp., 793 So.2d 1081, 1084 (Fla. 1st DCA 2001). In my judgment, claimant has made such showing.

The record discloses that claimant, Glenn Botts, was involved in a work-related traffic accident on March 12, 2001, and suffered injuries to his neck, left wrist, left elbow and scapula. These injuries, according to the treating physician, Dr. John A. Ortolani, a board-certified neurologist, resulted in a left-side herniated disc, bilateral carpal tunnels and a cervical radiculopa-thy of C6-7. Dr. Ortolani opined that claimant could continue working for the employer only in a light-duty capacity, and he specifically restricted him from heavy lifting, from the date of March 19, 2001, claimant’s first office visit, until the date of maximum medical improvement, July 5, 2001. The physician’s testimony provided the foundation for the JCC’s award of TPD benefits during such time span. Dr. Ortolani further opined that claimant had a ten-percent impairment rating, which the JCC also accepted in awarding claimant impairment benefits. Finally, based on the physician’s opinion that the injuries to claimant’s hands might require surgery in the future, the JCC authorized an evaluation to be conducted with a hand surgeon.

In addition to the medical evidence, claimant testified that following the accident the employer reduced his work schedule from 60 hours per week to 36 hours. And, although he found full-time employment after he had been terminated on June 15, 2001, he continued to experience neck and upper-left-extremity pain. I believe it reasonably clear from my review of the record that claimant established the requisite nexus between his compensable injury and the wage loss claimed. Indeed, the majority’s opinion acknowledges the sufficiency of such proof as to the TPD benefits requested before claimant’s separation from employment.

If the majority considers that claimant failed to establish his burden of showing entitlement to wage loss thereafter because of his acquisition of post-termination employment, I would answer that the burden of presenting such evidence was not on claimant, but on the employer. This court has recognized that a claimant may satisfy his or her initial burden of establishing a causal nexus between the industrial injury and the economic loss by, among other things, finding and obtaining a full-time job. Waterman v. Interstate Truckers, Inc., 545 So.2d 408, 409 (Fla. 1st DCA 1989). Once the initial burden of demonstrating entitlement to benefits resulting from a change in employment status due to a compensable injury is met, the burden shifts to the employer/earrier (E/C) to produce evidence showing that claimant’s post-termination wage-earning capacity was unaffected by the work-related accident.

This court first described the burden-production procedure in an opinion over 20 years ago:

[T]he burden of proof provision[] is to require the employee to go forward with evidence showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie, an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities. Once this evidence has been presented by the employee, the burden of proving that the employee has refused work or voluntarily limited his or her income is on the employer.

Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982) (on reh’g en banc).

The E/C has failed to present any evidence showing what claimant’s post-termination wages were with other employers. Despite claimant’s evidence clearly establishing a disabling, work-related injury, the E/C maintains that claimant’s evidence did not establish a causal connection between his injury and the resulting loss of wage-earning capacity for any of the time which benefits were ordered. The majority, however, has concluded that claimant complied with his obligation in regard to the award of TPD benefits for the period of time preceding his termination from employment; yet, it reverses the award for the time thereafter without requiring the E/C to present any evidence that the employee either refused work commensurate with his ability to work, or voluntarily limited his income by accepting work at a rate of compensation less than that which he was capable of earning. In fact, the E/C has offered no evidence at all revealing what wages claimant received during the time the majority has determined to reverse the award.

Because claimant met his initial burden of showing that his change in employment status was brought about by the industrial accident, the burden of producing evidence to the contrary was thereafter placed on the E/C. In that the E/C offered no such evidence, the order, in my judgment, should be affirmed in all aspects.

      . The employer/carrier does not challenge this finding on appeal.

      . This authorization also has not been contested.

      . Former section 440.15(3)(b)(2), Florida Statutes (1979). Although this provision has since been deleted, the burden-of-production requirement remains. See Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003); Vencor Hospital v. Ahles, 727 So.2d 968 (Fla. 1st DCA 1998).


author: WOLF, C.J.

text:
    Willie Lee STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0815.
    District Court of Appeal of Florida, First District.
    March 4, 2004.

      Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

We find that the State failed to prove appellant’s violations of community control were willful. We, therefore, reverse the order of violation. See Copeland v. State, 864 So.2d 1197 (Fla. 1st DCA 2004).

PADOVANO and POLSTON, JJ., concur.


text:
    R.C., Father of M.W., a Minor, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-1437.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Stanley H. Griffis, III, of Hulslander & Griffis, P.A., Gainesville, for Appellant.
    Lucy Goddard-Teel, Gainesville, for Ap-pellee Department of Children and Families.
    Nancy A. Wilkov, Guardian Ad Litem Program, Gainesville, for Appellee Guardian Ad Litem.
   PER CURIAM.

The order of involuntary termination of parental rights is AFFIRMED in all aspects, except that portion finding clear and convincing evidence of egregious conduct, pursuant to section 39.806(l)(f), Florida Statutes, which is stricken, in that such conduct was not alleged in the petition for termination.

AFFIRMED, as modified.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Reginald COBB, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3263.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Nancy A. Daniels, Public Defender; Janice G. Scott, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Wingate v. State, 729 So.2d 492 (Fla. 1st DCA 1999).

KAHN, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    Stewart GUTKIN, Appellant, v. LAKELAND AUTOMALL and Claims Center, Appellees.
    No. 1D03-0239.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Thomas Clifford of Pawlowski, Clifford & Brewer, P.A., Tampa, and Bill McCabe of Shepherd, McCabe & Cooley, Long-wood, for Appellant.
    Curt L. Harbsmeier, Thomas J. DeBari, and Jennifer S. Haley of Harbsmeier, De-zayas, Appel & Harden, LLP, Lakeland, for Appellees.
   PER CURIAM.

This is an appeal from a final workers’ compensation order denying compensability of a claim tried under a repetitive trauma theory. The judge of compensation claims (JCC) found the claimant’s non-work related injuries were the major contributing cause of the claimant’s back condition and his need for medical care and treatment. A workers’ compensation order deciding compensability of a claim is reviewed under a competent substantial evidence (CSE) standard. See Neavins v. City of St. Petersburg, 823 So.2d 288 (Fla. 1st DCA 2002).

We conclude the record contains CSE to support the JCC’s determination that claimant did not sustain a work-related accident. Therefore, we affirm the JCC’s order denying compensability of claimant’s low back condition.

AFFIRMED.

BARFIELD and POLSTON, JJ., concur; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

I respectfully dissent, because it is impossible for me to determine from the judge’s order, finding that claimant did not suffer a compensable injury, whether he considered work reports, which may have corroborated both the testimony of the attending physician and claimant that claimant’s preexisting back condition was aggravated by the employment. Moreover, the JCC’s acceptance of the testimony of the employer’s witnesses may have resulted in an erroneous conclusion that the claimant was provided assistance in performing heavy lifting while he was on light-duty status. For these reasons, I would reverse the order of denial and remand the case to the JCC for additional findings.

Claimant Stewart Gutkin, an automobile mechanic, experienced back pain while lifting a fence at his home, several days before his reported industrial accident of October 13, 2000. He was treated at a local medical center for a muscle pull in his back. He returned to work for the employer on October 9, 2000, with a note directing him to perform light-duty work. Claimant testified that he informed his service supervisor that because of his back condition, he was unable to take out and put in automobile transmissions, weighing 100-150 pounds. Notwithstanding his requests for work within his restrictions, he stated he was told to carry out such responsibilities.

The record reveals work orders were given claimant for the dates of October 9-12, 2000, with a notation specifically made on the last order that he had worked on a transmission for 5.9 hours. On October 12, claimant returned to the medical center, complaining of additional pain, and tests were performed on his back. Thereafter, he resumed employment, again with instructions to work only light duty, while, as he testified, continually afflicted with pain. On October 81, 2000, claimant consulted a neurosurgeon, Dr. Thomas Freeman, reporting symptoms of groin pain, back pain, and partial loss of feeling in his legs. Claimant’s history included his report of injury at home, followed by immediate pain in the low back area. Claimant said he continued to work, performing light work when permitted, but his condition worsened to such an extent that he went home early every day. An MRI of claimant’s lumbar spine showed a bulging disk at L3^1 Dr. Freeman opined claimant had a herniated disk with symptoms of lumbar stenosis and a conus syndrome. Claimant’s, condition .progressed to the point of impotence, incontinence, and loss of feeling in his legs. He underwent surgery in January 2001, which corrected his incontinence, but he continued to experience back pain and leg weakness. Since the surgery, claimant has been seen by a psychiatrist and pain management physicians.

During his deposition, Dr. Freeman was shown medical records of claimant’s prior back condition, which predated by nearly a year claimant’s reported work-related injury. When asked whether these records indicated that claimant had an ongoing, preexisting degenerative lower back condition or herniation as of the date of the industrial accident, Dr. Freeman responded that the earlier visits appeared to be muscular in nature, and while there may have been some evidence of a prior disk problem, the condition seemed to him only very minor, and that the prior back symptoms, which occurred in 1999, had resolved by October 2000. Dr. Freeman opined that the major contributing cause of claimant’s disability and need for treatment was the aggravation of claimant’s prior lumbar condition. He based his opinion in large measure on both claimant’s history and three work notes, which indicated to him that claimant had returned to work in a heavy-duty capacity. Claimant’s supervisors denied that claimant had been assigned such work, and testified that an hourly technician was available to assist claimant, if needed.

The JCC found that claimant provided a confusing chronology of events relating to his alleged industrial accident, the actual date of the alleged injury, and the alleged disability. He concluded that the non-work-related injuries, which occurred prior to the asserted date of the employment injury, constituted the major contributing cause of claimant’s back condition and his need for medical care and treatment. The JCC rejected Dr. Freeman’s opinion regarding causation, stating that it was based on claimant’s unsubstantiated testimony that he had performed unassisted lifting activities upon his return to work. The JCC accepted instead the testimony of claimant’s supervisors, Randy White and Ron Scott, that claimant was assigned one or more assistants to perform collateral lifting. Accordingly, the claim was denied in its entirety.

It should be noted that Dr. Freeman’s testimony was the only medical opinion presented to the JCC on the issue of causation. It is well settled that a JCC may not reject unrefuted medical testimony without providing a sufficient reason. See Jefferson v. Wayne Dalton Corp/Hartford, 793 So.2d 1081, 1084 (Fla. 1st DCA 2001); Turner v. G. Pierce Wood Mem. Hosp., 600 So.2d 1153, 1157 (Fla. 1st DCA 1992). Accord Ackley v. Gen. Parcel Serv., 646 So.2d 242, 246 (Fla. 1st DCA 1994) (“Where causation is established by unre-futed medical testimony, the JCC may not reject the testimony unless a sufficient reason is provided for doing so.”). Moreover, medical evidence is essential to establish causation of a non-observable injury, such as that at bar. See Closet Maid v. Sykes, 763 So.2d 377, 383 (Fla. 1st DCA 2000) (en banc).

While the JCC gave as the reason for his rejection of Dr. Freeman’s opinion “claimant’s unsubstantiated testimony” that claimant was required to perform unassisted heavy lifting on his return to work, relying instead on the representations made by claimant’s supervisors, the reasons given, in my judgment, are insufficient. First, no explanation was offered at all of the effect of the work reports, which Dr. Freeman had in part relied on, revealing that claimant had worked on automobile transmissions during the critical times at issue. Second, the JCC’s reliance on the supervisors’ testimony that claimant was assigned assistants to perform lifting activities did not refute claimant’s testimony that, although such assignment had been made, the designated helper had been called away to work in another part of the shop, leaving claimant alone to remove and install the heavy transmissions, despite the light-duty notes. Indeed, both of the supervisors were unaware whether claimant had, in fact, received the assigned assistant, because they did not personally observe, nor were they otherwise made aware, that such assistance had been provided.

In my judgment, the JCC’s order fails to meet the test required by this court as a precondition to his rejection of an unrefut-ed medical opinion. As this court observed in Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071, 1082 (Fla. 1st DCA 2003): “[T]he JCC who is thorough enough to note reasons for acceptance of certain medical testimony will make clear that he or she has not simply ignored contrary opinions. An order thus drafted should be well-provisioned for appellate review.” Although, as stated, only one medical opinion was before the JCC below, the instructions of Chavarria appear altogether relevant to the case before us as to our review of an order in which it is unclear whether the JCC overlooked critical evidence in the record that may support a contrary conclusion.

I would therefore reverse the JCC’s order of denial and remand this case to the JCC with directions that he revise his findings for the purpose of aiding this court in achieving an informed review over the order entered.


author: MONACO, J. GRIFFIN, J.,

text:
    Javier TORRES, Jr., Appellant, v. ARNCO CONSTRUCTION, INC., Appellee.
    No. 5D03-1561.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Kevin Knight of deBeaubien, Knight, Simmons, Mantzaris & Neal LLP, Orlando, for Appellant.
    Philip K. Calandrino of Philip K. Calan-drino, P.A., Orlando, for Appellee.
   MONACO, J.

The sole issue on this appeal is whether the appellant, Javier Torres, Jr., was properly served with process by substitute service pursuant to section 48.031, Florida Statutes (2002). Specifically, Mr. Torres asserts that he was not served at his “usual place of abode,” as is required by the statute, and that his motion for relief from default judgment should have been granted. We agree.

The appellee, Arnco Construction, Inc. (“Arnco”), filed suit against Mr. Torres and his mother, Gregoria Torres, based on an agreement for the construction of a home that was executed by the parties in Florida. Arnco pled causes of action for breach of contract, unjust enrichment, and quantum meruit. Gregoria Torres filed an answer and counter-claim against Arnco, but Arnco apparently had a difficult time serving Mr. Torres.

An affidavit of a New York process server hired by Arnco related that he attempted to serve Mr. Torres on a number of occasions at his cooperative apartment in New York beginning on July 20, 2002, and ending on August 30, 2002. Although all attempts at service were unsuccessful, the New York process server indicated in his affidavit that he “verified” with a neighbor that Mr. Torres lived at the New York address, but that he was often out of town, and was expected to return in two weeks. When he attempted service on August 20th and August 30th, the process server said by affidavit that he thought someone was home, but would not answer the door.

While Arnco was attempting service in New York, it decided to serve Mr. Torres’ mother, Gregoria, with substitute service on her son. The affidavit from the Florida process server indicates that process for Mr. Torres was “served on mother Grego-ria Torres at residence” on August 15, 2002. The affidavit also indicates that he was told by Ms. Torres that “he (presumably Mr. Torres) would be home soon.” Arnco made several more attempts to serve Mr. Torres in New York even after this purported substitute service.

Several months later Arnco filed a motion for default against Mr. Torres and the clerk of the circuit court entered a default. Arnco then moved for and received a default judgment against Mr. Torres for more than $59,000. A short time later, Mr. Torres, who learned of the default judgment from his mother’s attorney, filed a motion to set aside the judgment based on lack of service of process, and sought, as well, to file an answer and counterclaim.. Attached to the motion was an affidavit of Mr. Torres stating that he had been a resident of New York for 57 years, and that for twelve years his residence and usual place of abode was at the address in New York where Arnco attempted to serve him. He indicated that he never received process in this case and that no one was authorized as his agent to accept service for him. Finally, he said that he had no residence or usual place of abode in Florida. The trial court denied the motion to set aside the default judgment after a hearing at which only the affidavits and other documents in the file, and arguments of counsel were considered. This appeal followed.

The purpose of service of process is to advise the defendant that an action has been commenced and to warn the defendant that he or she must appear in a timely manner to state such defenses as are available. See Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952 (Fla.2001); Abbate v. Provident Nat’l Bank, 631 So.2d 312 (Fla. 5th DCA 1994). Jurisdiction is perfected by the proper service of process. Indeed, “a judgment entered without due service of process is void.” Falkner v. Amerifirst Fed. Savs. & Loan Ass'n 489 So.2d 758, 759 (Fla. 3d DCA 1986). Chapter 48, Florida Statutes, governs the methods that may be used to serve process. The statutes regulating service of process are to be strictly construed to assure that a defendant is notified of the proceedings. See Abbate; see also Carter v. Lil’ Joe Records, Inc., 829 So.2d 953 (Fla. 4th DCA 2002). Indeed, because statutes authorizing substituted service are exceptions to the general rule requiring a defendant to be served personally, due process requires strict compliance with their statutory requirements. See Monaco v. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002); Mercy Lu Enters., Inc. v. Liberty Mut. Ins. Co., 681 So.2d 758 (Fla. 4th DCA 1996).

The statute governing the present case is section 48.031(l)(a), Florida Statutes (2002), reads in pertinent part:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint ... or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

In essence, then, the issue before us involves simply whether the trial court had sufficient competent evidence to enable it to conclude that substituted service was made on Mr. Torres at his usual place of abode.

In State ex. rel. Merritt v. Heffeman, 142 Fla. 496, 195 So. 145, 147 (1940), the Florida Supreme Court defined the term “usual place of abode” as the place where the defendant “is actually living at the time of service.” The word “abode” means “one’s fixed place of residence for the time being when service is made.” Id. If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service. Id. The Florida Supreme Court noted later in Shurman v. Atlantic Mortgage & Investment Corp., 795 So.2d 952, 954 (Fla.2001), that courts have frequently invalidated substituted service of process in cases where the defendant was not actually living at the place where service was made, even though process might have been delivered to a relative. See, e.g., Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So.2d 131 (Fla. 3d DCA 1994); Stern v. Gad, 505 So.2d 531 (Fla. 3d DCA 1987).

Our standard of review of an order ruling on a motion to vacate a default judgment is whether there has been a gross abuse of discretion by the trial court. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962). We make a number of observations in this regard. First, there was no live testimony considered by the trial court in denying the motion to set aside final judgment. Rather, the court relied only on documents and arguments of counsel in concluding that it had personal jurisdiction. As a result, this is not a case where the trial court evaluated the demeanor and credibility of live witnesses. Second, we note that the party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See M.J.W. v. Dept. of Children & Families, 825 So.2d 1038 (Fla. 1st DCA 2002); Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002). We conclude that the record does not reflect competent evidence that Arnco met this burden.

The affidavit of Mr. Torres specifically denies that his place of abode is in Florida, and specifically avers that his place of abode is in New York where Arnco, which was apparently aware of this, tried unsuccessfully to serve him. Moreover, the affidavit of the New York process server tends to support the position of Mr. Torres that his place of abode is in New York. In particular, the process server confirmed with neighbors that, indeed, Mr. Torres lived there. Finally, the primary item that might support the trial court’s order — the Florida process server’s notation that Mr. Torres’ mother said that Mr. Torres would be home soon — is ambiguous, at best. As Arnco did not meet its burden of proving that it served Mr. Torres in his place of abode, we conclude that it was error not to grant the motion of Mr. Torres for relief from judgment. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

SAWAYA, C.J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent. The trial court had two key items of information to consider. One was the affidavit of Mr. Torres in which he states in conclusory fashion that: “[I] do not have a residence or a place of abode in the State of Florida.” Given the verb tense, this would mean that on the date of execution of the affidavit, February 20, 2003, he did not have a place of abode in Florida. This tells us nothing about what his circumstances were in August 2002 when service was made. The affidavit of attempted service in New York recites conversations with neighbors who related that Torres “lived [at the New York address] but was rarely home,” and that on July 27th a neighbor said that he was “possibly visiting in Florida and would be back in approximately two weeks.” If Mr. Torres were visiting his family for such lengths of time in Florida, that Florida address was his “usual abode” when he was served in Florida. See State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145 (1940). It would also be consistent with the affidavit of the Florida process server who said that Torres’ mother remarked that Torres “would be home soon, and she would see to it that he received the papers.” In any event, the burden was on Torres to prove that the place of substitute service was not his usual place of abode and his affidavit is inadequate for that purpose.

      . In Emmer v. Brucato, 813 So.2d 264 (Fla. 5th DCA 2002), we questioned the difference between “abuse of discretion” and "gross abuse of discretion.”


author: PETERSON, J.

text:
    CORA HEALTH SERVICES, INC., Petitioner, v. John H. STEINBRONN, et al., Respondent.
    No. 5D03-3031.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Kenneth L. Baker and Sean M. McDon-ough of Bussey, White, McDonough and Freeman, P.A., Orlando, for Petitioner.
    Steven R. Maher and William M. Artigli-ere of Maher Guiley and Maher, P.A., Winter Park, for Respondent.
   PETERSON, J.

CORA Health Services, Inc., (“CORA”), petitions for a writ of certiorari to review the trial court’s order denying CORA’s motion for summary judgment in which it alleged that John H. Steinbronn, (“Stein-bronn”), failed to timely comply with the pre-suit notice required of a medical malpractice claimant pursuant to section 766.106(2), Florida Statutes (2000).

Steinbronn was a resident in a nursing home operated by Daytona Healthcare Investors, LLC (“Daytona”), when CORA’s employee allegedly dislocated Steinbronn’s hip while treating him at the nursing home. Surgery was required to correct the injury.

The chronology of Steinbronn’s claim follows:

December 26, 2000 — Steinbronn’s hip is dislocated.
May 20, 2002 — Steinbronn serves a notice of intent to initiate litigation against Daytona only.
October 17, 2002. — A complaint is served against both Daytona and CORA in the circuit court.
November 22, 2002 — CORA moves to dismiss the complaint for failure to serve a pre-suit notice upon it pursuant to section 766.106(2), Florida Statutes.
January 2, 2003 — Steinbronn serves a notice of intent to initiate litigation against CORA.
April 8, 2003 — CORA’s motion to dismiss is granted without prejudice to file an amended complaint.
April 17, 2003 — Steinbronn files an amended complaint against CORA alleging pre-suit compliance.
June 4, 2003 — Steinbronn files a second amended complaint alleging CORA was served with a pre-suit notice on January 2, 2003 and CORA received it on January 6, 2003.
August 12, 2003 — The trial court denies CORA’s motion for summary judgment.

The instant petition for certiorari followed.

Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002), provides guidance for the calculation of time periods to determine whether Steinbronn served his notice of intent to initiate litigation for medical malpractice within the two-year time limit prescribed by section 95.11, Florida Statutes. In Burbank, this court approved the extension of the two-year statute of limitations for three ninety-day periods: once when Burbank, the malpractice claimant, petitioned the circuit court for an extension pursuant to section 766.104(2), Florida Statutes (2000); again when a notice of intent was served upon Dr. Kero; and finally when a notice was served on Dr. Sztulman. It was during the first two extensions that it was discovered that Dr. Sztulman was involved in Burbank’s medical treatments. Burbank then served notice on Dr. Sztulman within the second extended period and suit against Dr. Sztul-man was considered timely.

Two extended ninety-day periods were activated by first the notice to Daytona and then the notice to CORA within the first extended period. Notice to Daytona extended the two-year period prescribed by section 95.11, Florida Statutes, as to CORA because the statute of limitations is tolled as to all potential defendants when a notice of intent to initiate litigation is served upon any prospective defendant. See § 766.106(4), Fla. Stat. (2000); Hankey v. Yarian, 755 So.2d 93 (Fla.2000). More specifically, if the statute of limitations began to run on December 26, 2000, the date of the injury, then the claim would have been barred had it been filed after December 27, 2002, in the absence of any extension or tolling. But the time was tolled for ninety days when Steinbronn served the notice of intent to initiate litigation against Daytona. Assuming receipt of the notice of intent on the day of service, May 20, 2002, the statute of limitations would not expire until March 27, 2003. However, that expiration date was also extended or tolled by the notice of intent served upon, and we assume received by, CORA on January 2, 2003. Using the calculation formula of Burbank, the new calculated expiration date would be ninety days from March 27, 2003, or June 25, 2003. All of Steinbronn’s pleadings were filed within those times so that the action was not time barred. In other words, suit against CORA was timely.

Although Steinbronn filed suit against CORA within the extended limitations period, CORA argues that the original notice of intent served upon Daytona failed to toll the limitations period because it was a nullity. CORA contends that the notice was a nullity because Daytona was a nursing home and no claim was made against it for medical malpractice.

The pre-suit notice to Daytona expressed the intent to file suit pursuant to section 400.023, Florida Statutes, for “deprivations and/or infringements of ... nursing home resident’s rights.... ” The pre-suit notice to Daytona also expressed the intent to file suit for medical negligence pursuant to chapter 766, but added the comment that it was Steinbronn’s contention that-conduct of a nursing home licensee is not subject to chapter 766, the conduct did not constitute medical negligence as defined in chapter 766, and the nursing home was not a health provider. Finally, the notice advised that it was being sent in contemplation of the possibility that an appellate court decision may eventually conclude that Steinbronn’s claims constitute medical malpractice.'

Steinbronn’s conservative approach to the notice was justified. In Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla.2002), the Florida Supreme Court noted the difficult task the judiciary had experienced in determining whether the pre-suit requirements of chapter 766 are invoked for the vicarious liability of nursing homes for the actions of its employees. The decision affirmed the Second District Court of Appeal’s finding that chapter 400 actions against nursing homes for violations of a patient’s statutory rights as a resident were not precluded for failure to comply with the pre-suit requirements of section 766.106, Florida Statutes, when no claim was made for professional malpractice under the common law. See Integrated Health Care Services v. Lang-Redway, 783 So.2d 1108 (Fla. 2d DCA 2001).

CORA argues that Lang-Redway should be interpreted for the proposition that a pre-suit notice citing chapter 766 served upon a nursing home for negligence is a nullity. We decline to adopt such a broad interpretation of the Lang-Redway decision. There is nothing in that opinion which would indicate that a claimant who serves a notice upon a nursing home would be deprived of a medical malpractice claim where the notice is specifically filed pursuant to chapter 766. Additionally, Steinbronn’s second amended complaint contains a count against Dayto-na for negligence separate and apart from negligence under chapter 766. Furthermore, the courts have emphasized that “when possible the pre-suit notice and screening statute should be construed in a manner that favors access to the courts.” Patry v. Capps, 633 So.2d 9, 13 (Fla.1994);

see also Weinstock v. Groth, 629 So.2d 835 (Fla.1993).

Accordingly, CORA’s petition is denied.

SAWAYA, C.J., and THOMPSON, J., concur.


author: SHARP, W., J.

text:
    Robert WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-145.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Robert Wood, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Wood appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he seeks to challenge as invalid the reasons given by the trial court for his “departure sentence” of 50 years. After his conviction for second degree murder in 1991, he was sentenced to an upwards departure sentence of 50 years. We affirm, because the motion is untimely and because it is successive and an abuse of process.

This court affirmed Wood’s conviction and sentence in Wood v. State, 635 So.2d 32 (Fla. 5th DCA 1994). He then filed numerous collateral motions to attack his conviction and sentence. This court affirmed the trial court’s denials of Wood’s three motions filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and dismissed as untimely the appeal of another. Wood then filed a motion pursuant to Rule 3.850, which was construed as a Rule 3.800(a) motion and denied. We again affirmed. See Wood v. State, 816 So.2d 647 (Fla. 5th DCA), cert. denied, 537 U.S. 928, 123 S.Ct. 326, 154 L.Ed.2d 222 (2002).

In this current motion, Wood claims the departure reasons given for his sentence were invalid and that the trial court’s prior determination of this issue in an earlier 3.800(a) motion was erroneous, not on the merits, and thus this motion is not successive. Wood misapprehends what is meant by successive and on the merits.

In this case, the circuit court found, first, that Wood’s motion is proeedurally barred as untimely, since it was filed more than 9 years after his conviction was affirmed on appeal, and there are no allegations that any exception to the time limit in the rule is applicable. That ruling is correct and on the merits.

Second, the trial court ruled this motion is successive. Again the trial court is correct, because after researching its records, the court found that Wood had previously raised the same claims in his fourth rule 3.800(a) motion. In the prior proceeding, the motion was denied by the circuit court and the denial was affirmed by this court in Wood v. State, 761 So.2d 1129 (Fla. 5th DCA 2000). The trial court attached a copy of the prior motion and the court’s prior order, which ruled that the validity of the departure reasons given for a departure sentence cannot be raised in a rule 3.800(a) motion, citing Pula v. State, 652 So.2d 981 (Fla. 5th DCA 1995). The court, in that case, also ruled that the sentence imposed did not exceed the statutory maximum.

In Pula, this court explained that the validity vel non of departure reasons given for departure sentences, which do not exceed the statutory maximum, cannot be raised in a motion filed pursuant to rule 3.800(a) or rule 3.850, but must be raised on direct appeal. Failing that, the issue possibly could have been addressed in a timely habeas corpus petition arguing ineffective assistance of appellate counsel. However, that remedy would now be untimely for Wood.

It is clear that the rulings in the prior collateral attack raising the same issues presented here became the law of the case and cannot be re-litigated in a subsequent post-conviction motion. See Ellis v. State, 853 So.2d 484 (Fla. 5th DCA 2003). The rulings are both on the merits and binding.

This case is an example of why the courts must prohibit repetitive meritless pro se motions and appeals. The waste of judicial time and effort is enormous. Not only does the circuit court have to review the court’s records to determine whether an issue has been previously raised and then write an opinion and attach the record, this court must also review the order, motion, records of this court and the attached records, and in many cases, including this one, a meritless brief. Accordingly, we order Wood to show cause within 30 days from the date of this opinion why he should not be precluded from filing any further pro se pleadings raising these issues in this criminal case. See State v. Spencer, 751 So.2d 47 (Fla.1999). See, e.g., Steele v. State, 859 So.2d 524 (Fla. 5th DCA 2003); Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003).

AFFIRMED. SHOW CAUSE ISSUED.

GRIFFIN and THOMPSON, JJ„ concur.

      . See Wood v. State, 761 So.2d 1129 (Fla. 5th DCA 2000); Wood v. State, 650 So.2d 1007 (Fla. 5th DCA 1995); Wood v. State, 641 So.2d 511 (Fla. 5th DCA 1994).

      . Florida Rule of Appellate Procedure 3.850(b).

      . See Florida Rule of Appellate Procedure 9.141(c)(4)(B).


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. C.R.C., a Child, Respondent.
    No. 5D03-2333.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Ralph J. McMurphy, Wildwood, for Petitioner.
    No appearance for Respondent.
   PETERSON, J.

Petitioner, the Department of Children and Families, (“DCF”), petitions for a writ of certiorari to vacate an order adjudicating the respondent, C.R.C., a minor, incompetent to proceed after being charged with shooting a BB gun at a passing railroad train. The trial court committed C.R.C. to DCF for placement in a community treatment program. The order specified that based on the written reports of two doctors, C.R.C. does not meet the criteria for competency due to mental illness.

We agree with DCF that the court departed from the essential requirements of the law in ordering C.R.C.’s placement with DCF because the record does not support a finding of mental illness or mental retardation as required by section 985.223(2), Florida Statutes (2002).

The order under review is a form order with the names of the two examiners listed. The trial court noted the following in its findings of fact: “1. Defendant does not meet the criteria for competency. 2. Defendant does not meet criteria for involuntary commitment.”

Section 985.223(2) provides:

A child who is mentally ill or retarded, who is adjudicated incompetent to proceed, and who has committed a delinquent act or violation of law, either of which would be a felony if committed by an adult, must be committed to the Department of Children and Family Services for treatment or training. A child who has been adjudicated incompetent to proceed because of age or immaturity, or for any reason other than for mental illness or retardation, must not be committed to the department or to the Department of Children and Families for restoration of competency treatment or training. (Emphasis added).

In the instant case, the trial court received two reports from the examining psychologists indicating that the child was not competent to proceed to trial based only on the child’s age and understanding; neither examiner based the finding of incompetency on mental illness or retardation. However, the form order indicates the child was found to be incompetent due to mental illness and was committed to DCF for restoration of competency. The findings are not supported by the written reports of the examiners and the order departs from the essential requirements of the law by ordering commitment pursuant to section 985.223 without competent substantial evidence to support the finding of mental illness or retardation.

We grant the petition, issue the writ, quash the commitment order, and remand for further proceedings.

PETITION GRANTED; WRIT ISSUED; ORDER QUASHED; and REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.

      . The respondent did not file a response to this petition although we granted its motion to extend the time for a response.

      . If at any time during delinquency proceedings the trial court has reason to believe that a child is incompetent, an evaluation of the child's mental condition shall be ordered. § 985.223(1), Fla. Stat. (2002). All determinations of competency shall be made at a hearing based upon the evaluation of not less than two and not more than three examiners. § 985.223(l)(b), Fla. Stat. (2002). All court orders determining incompetency must include specific written findings by the court as to the nature of the incompetency and whether the child requires secure or nonsecure treatment. § 985.223(l)(c), Fla. Stat. (2002).


author: SILBERMAN, Judge.

text:
    STATE of Florida, Appellant, v. Antonia WHITE, Appellee.
    No. 2D03-775.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.
    Charles. J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Judge.

The State appeals an order suppressing evidence in this prosecution for making a false report of child abuse. We affirm.

On March 13, 2002, the State filed an information against appellee Antonia White and alleged that on September 21, 2001, White “knowingly, willfully, and maliciously” made a false report of child abuse in violation of section 39.205(6), Florida Statutes (2001). White filed a motion to suppress, alleging that the Department of Children and Family Services (the Department) and a detective with the St. Petersburg Police Department acted illegally and violated section 39.202(4) by making an audiotape of her child abuse hotline call available to the subjects of the abuse report, a father and daughter. White asserted that the tape was played for the father and daughter in order that they might identify the voice on the tape.

Following a hearing, the trial court entered an order suppressing the audiotape of the hotline call, any transcript of the call, the voice identification of White as the caller, and statements that White made to the police after she was questioned as a result of the identification made by the father and daughter. The State appeals this suppression order.

On September 21, 2001, White made an anonymous call to the Department’s central abuse hotline and was assured that the call was confidential and that her name would not be disclosed to the alleged perpetrator of the abuse, the father. David Motta, a child protective investigation supervisor with the Pinellas County Sheriffs Office, testified at the suppression hearing that the Department investigated and determined that the report was unfounded. The father then contacted Motta to find out who made the report, and Mot-ta told the father that he could not disclose that information.

Motta testified at the suppression hearing that the law prohibited him from disclosing identifying information to an alleged perpetrator. He also testified that he did not feel that the call warranted referral to law enforcement as a false report because it was a first report and there had not been a pattern of reports that would indicate harassment. He explained ■that many times reports are determined to be unfounded but that does not'mean that someone is harassing the alleged perpetrator.

After Motta refused to provide the father with information regarding the identity of the caller, the father went to the St. Petersburg Police Department. At the father’s urging to prosecute a complaint of making a false report of child abuse, Detective George Lofton obtained an audiotape of the hotline call from the Department. Detective Lofton played the tape for the father and daughter so that they might identify the voice. After hearing the tape, they identified White as the caller. The police confronted White with this identification, and she admitted that she made the call and made additional statements .to the police. White was then charged.

We agree with the trial'court’s conclusion that law enforcement was prohibited from publishing a copy of the anonymous central abuse hotline call to the 'father and daughter for the purpose of identifying the caller. Section 39.202(1) provides that all calls to the hotline are confidential. Section 39.202(4) provides for limited release of the name of the person reporting the abuse. The name may be released without the written consent of the person reporting the abuse to Department employees responsible for child protective services, the central abuse hotline, law enforcement, the child protection team (defined in chapter 39), or the appropriate state attorney, but the statute does not allow disclosure to the alleged. perpetrator. § 39.202(4). A person who knowingly and willfully discloses confidential information from the abuse hotline to an unauthorized person is guilty of a second-degree misdemeanor. §§ 39.202(7), 39.205(3).

Section 39.205(6) provides that “[a] person who knowingly and willfully makes a false report of child abuse” is guilty of a third-degree felony. Section 39.01(27) defines “false report” as “a report of abuse, neglect, or abandonment of a child to the central abuse hotline which report is maliciously made” for specified purposes such as harassment or acquiring custody of a child. Significantly, the statute places the burden on the Department to determine if a false report has been made. See § 39.205(4), (5). If the Department determines that a report is false, then it shall refer the report to law enforcement. § 39.205(5).

The State contends that individuals who make false reports should not receive the benefit of confidentiality. However, when Detective Lofton published the information, there had been no determination that a false report had been made. Additionally, section 39.206(9) provides as follows:

A person who is determined to have filed a false report of abuse, abandonment, or neglect is not entitled to confidentiality. Subsequent to the conclusion of all administrative or other judicial proceedings concerning the filing of a false report, the name of the false reporter and the nature of the false report shall be made public, pursuant to s. 119.01(1). Such information shall be admissible in any civil or criminal proceeding.

Thus, when it has been determined that a person made a false report, that person is no longer entitled to confidentiality.

Detective Lofton’s playing of the audiotape for the father and daughter violated section 39.202. Although Detective Lofton did not disclose the “name” of the caller, we agree with the trial court’s analysis that disclosure of the audiotape with the identifying characteristics of the caller’s voice was tantamount to disclosing the caller’s name. In fact, the specific reason that Detective Lofton gave for playing the tape for the father and daughter was to determine the identity, or name, of the caller.

A paramount concern of chapter 39 is the health and safety of children and the corresponding protection of children from abuse, abandonment, and neglect. See § 39.001(l)(b)(l), (3)(a). To disclose the identity of an anonymous child abuse reporter to the alleged perpetrator, before the report is determined to be false, would undermine the purpose of chapter 39 to encourage the reporting of child abuse and would likely result in a chilling effect on such reporting. However, once the Department determines that a person has made a false child abuse report, then the person loses the confidentiality protections of chapter 39.

Pursuant to the statutory framework, White’s confidential call was improperly disclosed to the father and daughter. Accordingly, we affirm the trial court’s order suppressing the evidence. Affirmed.

ALTENBERND, C.J., and WALLACE, J., Concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Jill Maxine HUMPHREYS, Appellee.
    No. 2D03-2377.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellant.
    .Christopher J. Dale, Tampa, for Appel-lee.
   VILLANTI, Judge.

The State appeals the trial' court’s order denying the State’s motion to continue an evidentiary hearing and the resulting order granting Jill Maxine Humphreys’ motion to suppress. Because the trial court abused its discretion in denying the continuance, we reverse.

Humphreys was charged with possession of methamphetamine and possession of marijuana after the police stopped the car’ in which she was a passenger and searched her purse and “fanny pack.” Humphreys moved to suppress the evidence, arguing that the police’ lacked either consent or probable cause to search her. A hearing on the motion was set for April 14, 2003, but because the assistant state attorney assigned to the case was in a murder trial, the hearing was continued by agreement until April 28, 2003.

As soon as the State received notice of the new hearing date, it issued subpoenas for the arresting officers. For reasons not clear from the record, the subpoenas never were served. When the State realized what had happened — apparently the day of the evidentiary hearing — it tried to secure the officers’ presence by paging the officers and calling the district office. Nevertheless, the officers failed to appear. Humphreys does not argue that the State’s lack of diligence was responsible for the officers’ failure to be served or to answer the calls and pages; in fact, the trial court specifically noted that the State was not at .fault.

The State moved to continue the hearing, explaining what had happened. Counsel for Humphreys objected to the continuance because he had driven from Tampa to Dade City for the hearing; he noted, however, that had the State called him in advance, he might have been willing to reschedule, but because it had not, he objected to any continuance. He provided no other argument' in opposition to the State’s motion to continue. The trial court refused to continue -the hearing. Therefore, the hearing proceeded without the testimony of the arresting officers. The trial court heard only from Humphreys and the driver of the vehicle, who had been arrested for possession of marijuana based on the same vehicle stop. Both Hum-phreys and the driver testified that the police did not have consent to search the vehicle. The State argues that if the trial court had granted the continuance, the officers’ testimony would have established that the officers had both consent and probable cause to search the vehicle and Humphreys’ purse and fanny pack. As such, the trial court’s refusal to continue the hearing was tantamount to a dismissal of the charges.

We review under the abuse of discretion standard the trial court’s refusal to continue the evidentiary hearing. See State v. Reed, 421 So.2d 754 (Fla. 4th DCA 1982). A party seeking a continuance due to witness unavailability must establish four factors: “(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.” Geralds v. State, 674 So.2d 96, 99 (Fla.1996). Moreover, when denying a continuance due to witness unavailability amounts to a dismissal of the charges, such denial has been held an abuse of discretion when there was no showing of prejudice to the defendant. Cf. State v. Lundy, 531 So.2d 1020 (Fla. 2d DCA 1988) (reversing the trial court’s dismissal of a case after it had denied the State’s motion for a continuance because there was no prejudice shown to the defendant).

In this case, the State met the four factors necessary to receive a continuance. First, as the trial court acknowledged, the State exercised due diligence to secure the officers’ presence at the hearing. Although the State had issued subpoenas, paged the officers, and contacted the district office, by happenstance the officers were not served and thus did not show up. Second, as the arresting officers were still employed by Pasco County Sheriffs Office, they would have been available and willing to testify in a way likely favorable to the State; thus, the second and third factors are met. Finally, the State was prejudiced because without the officers, the State was unable to adduce any testimony in favor of the admission of the evidence, and the resulting suppression of the evidence was tantamount to a dismissal of the charges against Humphreys.

In a similar case, the Fourth District reversed after the trial court refused to continue a hearing on a motion to suppress a confession, which resulted in the trial court granting the motion to suppress. Reed, 421 So.2d at 755. The Fourth District noted,

A motion for the suppression of a confession, however, is an extremely important matter having severe repercussions to the losing party, whether the state or the accused. For that reason it is imperative that both sides be given fair opportunity to be heard. Only where prejudice will result to the accused should simple neglect or attorney error be sanctioned with the extreme remedy of granting a motion to suppress a confession.

Id. Significantly, the only prejudice to Humphreys that would have resulted from the continuance actually would have been to her attorney, whose protest was that he had driven from Tampa for the hearing. Juxtaposed with the legitimate issues of fairness and justice, this showing of prejudice seems trivial, especially given the fact that the attorney intimated he may have agreed to a continuance with prior notice. It does not appear that the trial court took into consideration the four factors set forth in Geralds, 674 So.2d at 99, before deciding that a continuance was unwarranted. Moreover, there is no indication in the record that Humphreys would have been prejudiced had the continuance been granted. Therefore, it was an abuse of discretion to deny the continuance, and we reverse and remand for further proceedings.

Reversed and remanded.

STRINGER and KELLY, JJ., concur.


author: BROWNING, J.

text:
    Willie LIAS, Appellant, v. ANDERSON & SHAH ROOFING, INC. and Bridgefield Employers Insurance Co., Appellees.
    No. 1D03-0615.
    District Court of Appeal of Florida, First District.
    March 5, 2004.
    Richard W. Driscoll of Richard W. Dris-coll, P.A., Tampa and Brendan M. Lee and Susan W- Fox of MacFarlane, Ferguson & McMullen, Tampa, for Appellant.
    Raymond O. Burger and Larry Cangro of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellees.
   BROWNING, J.

Appellant fell from a ladder while working on a roof and was hospitalized. A test on a urine sample taken at the hospital revealed the presence of a metabolite of cocaine in Appellant’s body, but Employer/Carrier “was unable to ascertain whether claimant’s drug test was administered by a facility utilizing procedure which complies with the statute and administrative rules.” Lias v. Anderson & Shah Roofing, Inc., 831 So.2d 1236, 1236 (Fla. 1st DCA 2002). Notwithstanding this failure of proof, workers’ compensation benefits were denied because the JCC applied the presumption available under section 440.09(7), Florida Statutes, that the injury was primarily caused by the use of a metabolite of cocaine. On appeal, this Court reversed because the application of the presumption was unsupported by the JCC’s findings or the record, and “remand[ed] for the JCC to apply the correct burden of proof to determine compensability....” Id. After a hearing on the effect of this Court’s order, the JCC again denied the claim on the basis that Appellant had failed to show that the injury occurred in the course and scope of his employment. We reverse.

This Court’s instructions to the JCC limited the remand’s scope to considering the Employer/Carrier’s burden of proof to demonstrate that Appellant’s use of a metabolite of cocaine caused the injury. This express restriction limited the JCC’s discretion to reconsider other aspects of the case. See Turner v. Rinker Materials, 622 So.2d 80, 83 (Fla. 1st DCA 1993). Therefore, on remand the JCC was confined to determining if Appellant’s injury was occasioned primarily by the influence of a metabolite of cocaine, and the JCC was not at liberty to determine that Appellant’s accident did not occur within the course and scope of his employment.

Because the JCC deviated from this court’s mandate in Lias, the final order is reversed and the case remanded. On remand, the JCC, without the taking of further testimony, shall determine whether the work-related injury was occasioned primarily by the influence of drugs pursuant to § 440.09(3), solely, and, if not, the JCC shall enter an order determining com-pensability and award medical bills, if any, that are compensable.

REVERSED AND REMANDED.

ERVIN and DAVIS, JJ., concur.