text:
    H & J PAVING OF FLORIDA, INC., et al., Appellants, v. NEXTEL, INC., et al., Appellees.
    No. 3D02-1178.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Rehearing and/or Clarification Denied July 18, 2003.

      Daniels, Kashtan, Downs, & Oramas, Coral Gables; Lucio, Bronstein, Garbett, Stiphany & Allen; and Jay M. Levy, Miami, for appellants.
    Amy D. Ronner and Alice G. Hector, Miami, for appellees.
    Before COPE, GODERICH and RAMIREZ, JJ.
   GODERICH, Judge.

The plaintiffs, H & J Paving of Florida, Inc. [H & J] and Asphalt Construction of Palm Beach, Inc. [Asphalt], appeal from an adverse final summary judgment entered in favor of the defendants, Nextel Communications, Inc. et al. [Nextel], and from an order striking Asphalt and H & J as class representatives. We affirm, in part, reverse, in part, and remand for further proceedings.

Asphalt and H & J filed a third amended class representation complaint [complaint] against Nextel alleging that H & J and Asphalt bought from Nextel either an analog radio communication system, an add-on radio, or service for analog radios. However, prior to making these purchases, Nextel did not inform them that it would be discontinuing analog service in the area in the immediate future, thereby rendering their equipment useless and obsolete. The plaintiffs also alleged that they were adequate class representatives. In Count I, H & J alleged a cause of action pursuant to the Florida Deceptive and Unfair Trade Practice Act, § 501.201, et seq., Fla. Stat. (1995) [FDUTPA], In Count II, Asphalt alleged a claim for breach of contract.

Based on H & J invoking its Fifth Amendment privilege against self-incrimination, the trial court struck H & J as class representative and dismissed its class claims with prejudice, but allowed H & J’s individual claims to proceed. Nextel then moved to strike H & J’s individual claims arguing that H & J did not sustain any injuries because H & J’s account with Nex-tel had been disconnected for nonpayment prior to the discontinuation of analog service and that H & J no longer needed the equipment because H & J went out of business. The trial court granted the motion.

Thereafter, H & J moved for reinstatement as class representative alleging that the criminal matter that required it to assert its Fifth Amendment privilege had been resolved, and therefore, it was able to give full discovery. The trial court denied the motion.

Nextel also renewed a prior motion for summary judgment as to Asphalt arguing that Asphalt had no contract with Nextel. Nextel also moved to strike Asphalt as class representative arguing that Asphalt lacked the requisite typicality and commonality because Nextel had unique defenses applicable only to Asphalt.

At the hearing, affidavits and depositions were introduced. Thereafter, the trial court granted the motion to strike Asphalt as class representative, but denied the motion for summary judgment. The parties filed motions for rehearing and/or reconsideration. Following a hearing, the trial court also granted final summary judgment against Asphalt. This appeal follows.

First, contrary to H & J and Asphalt’s assertion, we find that the trial court acted within its discretion by striking them as class representatives. See Fla. R. Civ. P. 1.220(a); Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir.1998)(holding that trial court may consider “honesty and trustworthiness of the named plaintiff’ to judge the adequacy of representation); Weinstein v. American Biomaterials Corp., 123 F.R.D. 442, 444 (S.D.N.Y.1988)(holding that “serious credibility problems” a factor in determining whether plaintiff can “fairly and adequately protect the interests of the class.”); Broin v. Philip Morris Cos., 641 So.2d 888, 889 (Fla. 3d DCA 1994)(holding that in class action, the claim or defense of the representative party must be typical of the claim or defense of each member of the class).

Next, H & J and Asphalt contend that the trial court erred by granting final summary judgment in favor of Nextel as to their individual claims. We agree.

The trial court, without addressing whether Nextel’s actions constituted a violation of FDUTPA or a breach of contract, granted final summary judgment in favor of Nextel based on its conclusion that H & J suffered no damages and that Asphalt did not have a contract with Nextel. Contrary to the trial court’s findings, these issues of fact were in dispute. Nextel presénted the affidavit of one of its Research Analysts indicating that service was disconnected due to nonpayment. However, H & J presented the affidavit of one of its secretaries indicating that she spoke to a Nextel representative who told her that H & J’s service would not be reinstated because 800 Megahertz analog service would no longer be provided by Nextel. As to Asphalt, the record indicates that Asphalt purchased the add-on radio from either Nextel or from American Mobile Services [AMS], a company which was acquired from Nextel prior to the purchase of the add-on radio, and that Asphalt would not have purchased the add-on radio had it known that Nextel would be terminating analog service. As such, the trial court erred by granting final summary judgment in favor of Nextel. Therefore, this matter is reversed and remanded for further proceedings.

Upon remand, the trial court, however, is to apply the correct measure of damages. In the instant action it is irrelevant that Nextel may have cancelled H & J’s service for’lack of payment or that H & J went out of business, because in a FDUTPA action,

the measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. A notable exception to the rule may exist when the product is rendered valueless as a result of the defect — then the purchase price is the appropriate measure of actual damages.

Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984)(quoting Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)) (citations omitted); see Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 453 (5th Cir.2001)(holding that the measure of damages in FDUPTA actions is “the value of the product as promised minus the value of the product- delivered.”); Urling v. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st DCA 1985). In the light most favorable to H & J and Asphalt, the record on appeal indicates that when the analog radio communication system and the add-on radio were delivered, H & J and Asphalt were told that these products would be functional for approximately eight years. Under such a scenario, the correct measure of damages, as to both H & J and Asphalt, would be the value of the products at the time of sale based upon a useful life of approximately eight years and the value of the product which would become obsolete within a few years.

Affirmed, in part, reversed, in part, and remanded with directions.

      . Even if H & J went out of business or its service was disconnected for nonpayment, H & J could have attempted to resell the analog radio communication system which it originally purchased for approximately $25,000.00.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Rangwal Eloy SPINDLER, Resco Miami and Massima American Corporation, Appellants, v. Maria Alyuska MAYOL, Appellee.
    Nos. 3D01-3026, 3D01-689.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.
    Rehearing Denied July 25, 2003.

      May L. Cain, Miami, for appellant.
    Weintraub, Weintraub, Seiden & Orshan and Robert D. Orshan, Miami; Allison Doliner Hoekman, Coral Gables, for appel-lee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   WELLS, Judge.

Rangwal Eloy Spindler appeals from a Final Judgment of Dissolution of Marriage claiming lack of personal jurisdiction. Resco Miami Corporation and Massima American Corporation, both found by the trial court to be owned by the husband, appeal from an order denying their 1.540 motion to vacate portions of the Final Judgment of Dissolution of Marriage on the grounds that they received no notice of the final hearing at which they were distributed. See Fla. R. Civ. P. 1.540. For the following reasons, we affirm in part and reverse in part.

Rangwal Eloy Spindler and Maria Al-yuska Mayol were married in 1993 in Havana Cuba. The couple’s only child, a son, was born in Miami-Dade County in 1995, and lived in Miami-Dade County with both parents until late September 1997 when the husband absconded with the child to Brazil.

In early October 1997, the wife filed for and was awarded an ex-parte temporary injunction for domestic violence which gave her exclusive use of the couple’s Miami-Dade residence and temporary custody of the minor child. The wife also filed a Petition for Dissolution of Marriage in which she sought return of the child, custody, child support, alimony, and distribution of the parties’ assets, including several businesses allegedly owned by the husband. The wife also sought partition of the parties’ assets and an order freezing the husband’s assets until they could be distributed by the court.

The wife simultaneously filed an Emergency Petition for Return of Child and an affidavit under the Uniform Child Custody Jurisdiction Act (UCCJA), stating that the husband had left the country with their son. A copy of the petition for dissolution and the emergency petition for return of the child were mailed to the husband’s apartment in Rio de Janeiro, Brazil.

A little over a week after these petitions were filed, the divorce court entered an ex-parte emergency order awarding temporary custody of the minor child to the wife and ordering the husband to return the child to Miami, Florida. The court also froze the husband’s assets including any interests in two corporations, Resco Miami Corporation and Massima American Corporation, which the court believed to be owned solely by him.

Resco and Massima immediately sought, and were granted, the right to intervene in the dissolution action. They also moved to dissolve the ex-parte order freezing their assets and to discharge the Notice of Lis Pendens recorded against Resco because, according to the corporations, they were owned solely by Roberto Edemer Spindler, the husband’s brother.

Following a hearing at which counsel for the corporations appeared, and at which documents were introduced to demonstrate that the husband was the owner of these corporations, the trial court concluded that the husband, and not his brother, was the “principal” of these entities. The corporations’ motion to dissolve the injunction freezing their assets and to discharge the Lis Pendens was denied. The court ordered the wife to post a $50,000 injunction bond and ordered the corporations to appoint new registered agents since the husband, who had left the country, was listed as the agent for both. The corporations’ appeal from this order was dismissed. See Massima America Corp. v. Mayol, 711 So.2d 552 (Fla. 3d DCA 1998).

Because the wife had no funds with which to post a bond, the temporary injunction freezing the corporations’ assets was dissolved. However, the Lis Pendens remained pending.

After several years of attempting to serve the husband in Brazil, the wife finally secured a default against him in February 2000. The husband thereafter filed a “limited appearance” to quash service of process and to dismiss the default claiming, in pertinent part, that the wife had chosen to serve him under the Hague Convention via the Inter-American Convention on Letters Rogatory and Additional Protocol but had failed to file a “Form C” certifying service as mandated by the Protocol. The husband subsequently filed an expanded motion contesting service, accompanied by an affidavit in which he stated that he had “not been formally served with any kind of ‘service of process’ origi-nat[ing] anywhere in the United States.” The trial court struck the affidavit and, relying primarily on documents written in Portugese, denied the motion to quash and to dismiss the default.

Following a hearing, from which counsel for the husband intentionally absented himself, a final judgment dissolving the marriage was entered. That judgment, in pertinent part, ordered shared parental responsibility with the wife as the primary residential custodian, return of the child to this country, child support, and payment of the child’s medical expenses. It also distributed the parties’ assets, including the stock in Resco which the court found to be a marital asset, and authorized the wife to sell real property belonging to Resco and to record a Lis Pendens against that property. The judgment also awarded an automobile to the wife and ordered the husband to pay her attorneys’ fees and costs.

Resco and Massima thereafter moved for relief from this final judgment claiming that they had no notice of the final hearing which resulted in a judgment that affected their interests. The motion was denied, and they, as well as the husband, appealed.

We agree with the husband that the record fails to substantiate that process was served in compliance with either Florida law or the provisions of the Hague Convention. While the wife maintained that she had secured the necessary documents from Brazil to establish that she had effectuated service in compliance with the provisions of the Hague Convention, the documents filed below were either not in English or so poorly translated as to make it impossible to substantiate this claim. There was, therefore, nothing in the court file to refute the husband’s affidavit to the effect that he did not get proper notice.

That failure does not, however, preclude our affirmance of several portions of the final judgment. First, we affirm that part of the judgment dissolving the marriage. Where a court has personal jurisdiction over one spouse it may dissolve the marital relationship without addressing the property rights and obligations of the parties, provided that the requirements for subject matter jurisdiction are met. See §§ 61.021, 61.052, Fla. Stat. (2002); Davis v. Dieujuste, 496 So.2d 806, 808 (Fla.1986)(observing that under the “divisible divorce” concept, a dissolution proceeding has two separable aspects, that which relates to the marital res and that which relates to the property rights and obligations of the parties); Orbe v. Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995) (confirming that a Florida court may dissolve a marriage when it has personal jurisdiction over only one spouse and where the six month residency requirement is met); see also § 61.061, Fla. Stat. (2002)(confirming that a dissolution proceeding may be initiated against a person residing outside the state).

Second, we affirm the custody determination. Here, the husband conceded that the trial court had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) to decide the child custody issue, and he did not dispute the court’s personal jurisdiction for purposes of the UCCJA. Florida courts have jurisdiction and are competent to decide custody matters where Florida is the home state of the child at the time of the commencement of the proceeding or where Florida has been the child’s home state within six months before commencement of the proceeding. See § 61.514, Fla. Stat. (2002); Feriole v. Feriole, 468 So.2d 1090, 1091 (Fla. 4th DCA 1985). Likewise the Hague Convention specifically protects custody determinations in the international context. As stated in Quinn v. Settel, 682 So.2d 617, 619 (Fla. 3d DCA 1996), citing Journe v. Joume, 911 F.Supp. 43, 46 (D.Puerto Rico 1995): “The purpose of the Convention is ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedure to ensure their prompt return to the State of their habitual residence.’” This affirmance does not, however, extend to the support determinations. See § 61.503(3), Fla. Stat. (2002); Overcash v. Overcash, 466 So.2d 1261 (Fla. 2d DCA 1985).

In sum, the final judgment of dissolution of the marriage is affirmed, as is the custody determination. The balance of the final judgment under review is reversed with the Lis Pendens earlier authorized below to remain in effect pending final disposition. The corporations’ appeal from the order denying 1.540 relief is rendered moot by this opinion.

      . Effective October 1, 2002, the UCCJA was amended as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered sections 61.501-542, Florida Statutes (2002). Because the former wife's petition was filed prior to October 1, 2002, the UCCJA, rather than the UCCJEA, applies. See § 61.542, Fla. Stat. (2002); Miles v. Hyman, 836 So.2d 1097, 1098-99 n. 3 (Fla. 5th DCA 2003).

      . Resolution of the main appeal makes unnecessary consideration of the corporations’ appeal since a new trial, for which the corporations should be noticed, will be necessary on all property and support issues upon proof of service.


author: PER CURIAM.

text:
    Thomas PANNIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1931.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied Aug. 6, 2003.
    Thomas Pannier, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks review of an order summarily denying his motion to correct illegal sentence. In his notice of appeal, he also seeks review of the trial court’s unwritten order denying his ore tenus motion to withdraw plea. We affirm the order summarily denying Appellant’s motion to correct illegal sentence and dismiss the appeal to the extent that Appellant also seeks our review of the trial court’s unwritten order denying his ore tenus motion. We lack jurisdiction to hear an appeal of an unwritten or unsigned order. See State v. Siegel, 662 So.2d 1013 (Fla. 5th DCA 1995)(observing that court lacks jurisdiction to hear an appeal of an unwritten or unsigned order); State v. Smith, 557 So.2d 904 (Fla. 1st DCA 1990)(holding that District Court of Appeal lacked jurisdiction to review oral orders of trial court where such orders had not been reduced to writing); and Fla.R.App.P. 9.020(h)

SHAHOOD, GROSS and MAY, JJ„ concur.


text:
    James H. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1931.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied Aug. 8, 2003.
    James H. Phillips, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order summarily denying appellant’s motion seeking additional jail time credit pursuant to section 921.161(1), Florida Statutes, for the sixteen months he served in prison on count I prior to being placed on probation in count II. Without determining whether appellant is entitled to credit for the time served in prison on count I against his new prison sentence for violation of probation in count II, as would seem likely pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), this affirmance is without prejudice to appellant’s filing another motion asking the trial court to correct his sentence by directing the Florida Department of Corrections to compute and apply credit for time served on count I, see § 921.0017, Fla. Stat. (1999), or, if the trial court’s sentencing order already so directed, then pursuing any administrative remedies against the department, see Smith v. State, 785 So.2d 1237 (Fla. 4th DCA 2001).

STONE, KLEIN and STEVENSON, JJ., concur.


text:
    Michael Patrick NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0752.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Rehearing Denied July 24, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275, 2003 WL 1877193 (Fla. 1st DCA Apr.16, 2003); State v. Franklin, 836 So.2d 1112, 1114 (Fla. 3d DCA 2003).

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


author: FARMER, J.

text:
    Kenneth P. SUTHERLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2134.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Rehearing Denied Aug. 8, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The primary issue raised in this case of familial sexual battery on a child under 12 has to do with the admission of “similar acts” evidence. The victim of the abuse, who was an adult by the time charges were brought, was allowed to testify to having sexual relations with defendant, the victim’s former step-father, for many years after she had long passed the age of 12 and most after she reached her majority. Additionally the court admitted 28 photographs and one videotape of sexual acts between defendant and the victim, all of which (except one) occurred after she became an adult and thus were not crimes. The court also admitted evidence of later sexual relations between the adult victim and defendant in the presence of her friends. As well, the court admitted the testimony of an adult girl friend of the victim to the effect that defendant had bragged that he taught the victim every thing she knows about sex. Defendant argues that all of this similar acts evidence became the central feature of the trial and effectually supplanted the charge on trial, namely sexual battery on a child under 12 by a perpetrator over 18. He thus contends the evidence was inadmissible and that he is entitled to a new trial. We agree and reverse.

Florida’s law on the admission of similar acts evidence in familial sexual battery cases was explained in Saffor v. State, 660 So.2d 668 (Fla.1995). There the court noted that it had previously relaxed the requirements for the use of similar acts evidence in familial sexual battery cases to corroborate the victim’s testimony. See Heuring v. State, 513 So.2d 122 (Fla.1987). But the Saffor court made clear that the familial context alone does not authorize the admission of all other sex crimes in such prosecutions. It is still necessary to make an additional showing of sufficient similarity in order for such evidence to be admitted. 660 So.2d at 672. As the court explained in Feller v. State, 637 So.2d 911, 915 (Fla.1994), “the charged and collateral offenses must ‘share some unique characteristic or combination of characteristics which sets them apart from other offenses.’ ”

In addition to a showing of sufficient similarity, there is a general limitation on all similar acts evidence that it not be used in such a way that it becomes the central feature of the trial. Ashley v. State, 265 So.2d 685 (Fla.1972) (“We are equally committed to the proposition that the state in introducing testimony concerning similar acts committed by a defendant may not make such crimes a feature of the trial instead of an incident, so that the effect is to devolve from development of facts pertinent to the main issue of guilt or innocence into an attack on the character of the defendant.”); see also Williams v. State, 117 So.2d 473, 475 (Fla.1960) (in introducing testimony concerning similar acts committed by a defendant, state may not make earlier or later offenses feature of trial instead of an incident). As the Williams court explained, the danger in making similar acts the feature of a trial is that the proceeding is transformed “from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject.” 117 So.2d at 476.

As a theoretical matter, we understand the state’s logic as to the relevancy of the fact of sexual abuse by the step-father of this same child after she passed the age of 12. The logic is that it corroborates the victim’s testimony that it all began when she was younger than 12 and then proceeded from touching and fondling into full sexual intercourse with a child still under 12. The child’s testimony that the man committed such acts on her when she was an 11 year-old child would tend to appear less likely to have been fabricated by the introduction of evidence that he was doing the same acts to the same child shortly after she became older than 12 years of age. See Smith v. State, 588 So.2d 66, 67 (Fla. 1st DCA 1989) (“Evidence that deals only with similar sex acts against the victim in the case being tried is far less subject to objection than evidence of similar acts against other victims.”).

The problem here is not so much the logical concept the state had in mind but the nature and extent of this particular similar acts evidence. Most of the similar acts depicted after the victim passed the age of 12 were not sufficiently similar to the testimony of the victim as to what happened while she was under 12. Having sex on camera when she was 18 with a consenting partner of the same age — while other persons were present — is not at all similar to the private touching and fondling described while she was 7, 8 and 9. It is not even similar to simple sexual intercourse with no one else present and no camera recording the event as described by the victim when she was that young.

Additionally, the presentation of the similar acts evidence in this case consumed more trial time and space than the evidence of the actual crime charged. We recognize that the credibility of the victim was an issue here because of the absence of any physical evidence of sexual battery while she was still under the age of 12 or any then contemporaneous statements by her tending to show that it was occurring. But conceding relevancy does not explain why the state’s case for sexual battery on a child under 12 should be made up primarily of evidence of sexual relations when she was in her late teenage years and as an adult. The state has done nothing to dispel the dominancy of the similar acts over the crime charged. We thus have no alternative to reversing for a new trial.

STONE and WARNER, JJ., concur.

      . See § 90.404(2)(a), Fla. Stat. (2003) ("Similar fact evidence of similar acts, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”).

        . See Richard J. Sanders, "A Dangerous Bend in an Ancient Road": The Use of Similar Fact Evidence for Corroboration, 74 Fla. B. J. 40, 46 (Feb.2000) ("[T]he similar fact evidence is admissible ‘because it is unlikely that the victim ... could have fabricated a version of events which shares unique characteristics with the collateral crime.’ Like the identity-through-modus-operandi theory, this theory bypasses the propensity inference by directly comparing the acts themselves. This theory is a version what is called 'the doctrine of chances.’ " [c.o.]).

      . Kimbrell v. State, 764 So.2d 893 (Fla. 4th DCA 2000), is not to the contrary. The true holding of that case is that the similar acts there were admissible to show "opportunity, preparation and plan.” We did not purport to hold that, contrary to Hearing, other similar acts evidence categorically may not be used simply to corroborate the testimony of a child victim of familial sexual battery.


author: KLEIN, J.

text:
    GEIGO PROPERTIES, L.L.P., a Florida limited liability partnership, Appellant, v. R.J. GATORS REAL ESTATE GROUP, INC., a Florida corporation, R.J. Gators, Inc., R.J. Gators of Port St. Lucie, Inc., and Reginald L. Timoteo, Appellees.
    No. 4D02-2441.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Rehearing Denied Aug. 6, 2003.

      Leif J. Grazi of Grazi & Gianino, Stuart, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellant.
    Donald S. Fradley of the Fradley Law Firm, P.A., Jupiter, for appellees.
   KLEIN, J.

The trial court found that the use of a shell corporation to lease a space for a restaurant was not enough, in and of itself, to constitute the type of improper conduct which would warrant piercing the corporate veil after the corporation abandoned the premises and a judgment against it was uncollectible. We affirm.

Reginald Timoteo owns a number of restaurants, through corporations, known as R.J. Gators. The corporation which was allegedly used improperly in this case, R.J. Gators Real Estate Group, Inc. (R.J.), was incorporated in 1995 in order to purchase a piece of real estate. After that purchase fell through the corporation remained inactive until 1999, when it entered into a lease with appellant Geigo.

R.J. had no assets and no bank account. Timoteo, who was president of R.J., made the initial payment due under the lease with funds obtained elsewhere. R.J. never moved in, made no further payments, and abandoned the lease, resulting in a judgment for $37,500 being entered against it. Having been unable to collect on the judgment, Geigo sought to pierce the corporate veil so that it could collect from a different corporation or Timoteo individually.

For purposes of trial the parties stipulated that the architect who started work concerning the leased premises was paid, but by a different corporation, that R.J. did not have stationery or a bank account, and that the 1998 and 1999 tax returns of R.J. showed no income. It was also agreed that the corporate minutes were last prepared in 1995.

The trial court found, based on testimony, that Timoteo had made a business decision to open the new restaurant at a different location than the leased premises, that R.J. was not organized or used to evade creditors, and concluded that there was no improper conduct which would warrant piercing the corporate veil.

Geigo relies on USP Real Estate Investment Trust v. Discount Auto Parts, Inc., 570 So.2d 386 (Fla. 1st DCA 1990). We find that case distinguishable in that, although the shell corporation signed the lease as lessee, the corporation of substance, Discount Auto Parts, actually operated the business. This was a violation of the lease which required that the lessee actually occupy the premises and operate the business. In addition, the president of Discount, who was also president of the shell corporation, admitted that the purpose of making the shell corporation the lessee was to insulate Discount, which was in fact operating the business, from liability to the landlord if Discount decided to close the store. There was no such evidence in this case.

Ocala Breeders’ Sales Co. v. Hialeah, Inc., 735 So.2d 542 (Fla. 3d DCA 1999), cited by Geigo, is also distinguishable, since the corporation of substance operated the business and received all of the income, leaving the shell corporation with no assets to pay the judgment rendered against it when it breached the lease.

We therefore conclude that the trial court did not err when it found that the mere use of a shell corporation to enter into the lease, and the subsequent breach of the lease by failing to pay rent, did not constitute the type of improper conduct necessary to pierce the corporate veil. Affirmed.

GROSS and TAYLOR, JJ., concur.


author: FARMER, J. STONE, J.,

text:
    J.W., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-472.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Rehearing Denied Aug. 8, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant, a juvenile, forcibly entered a home with a pocket knife in his hand. He did not threaten the resident with it or wave it at her. Actually, as soon as he saw her, he turned and immediately ran outside and away from the scene.

Inside, the victim had heard him “jiggling and turning the doorknob.” When he entered she saw the knife in his hand and said she was scared:

“[a] lot of crazy thoughts went through my mind. What he had the ability to do.... He had the ability to come in the door and no telling what else he could have did. I mean I didn’t have anything to protect myself or nothing.”

The question is whether this testimony is enough to refuse to reduce a charge of first degree armed burglary (with a dangerous weapon) to simple burglary of a dwelling.

Under nearly identical facts in Arroyo v. State, 564 So.2d 1153, 1154 (Fla. 4th DCA 1990), we recognized that a pocket knife could conceivably constitute a dangerous weapon if actually used “in a manner likely to produce death or great bodily injury.” Nevertheless, we held that under the circumstances it did not qualify as a dangerous weapon for purposes of that case.

That decision was released more than a decade ago. Since then the Legislature has not made any attempt to amend the statute to treat all burglars wielding pocket knives as qualifying for first degree burglary, even if they do so non-threateningly. Accordingly, it was error to convict defendant under the first degree burglary statute and to refuse to reduce the conviction to simple burglary of a dwelling.

REVERSED.

WARNER, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I agree with the majority that we are bound by Arroyo to reverse. I would, however, urge the legislature to review the statutory definitions of weapon, dangerous weapon, and deadly weapon, particularly as applied to the objects used in the course of committing a serious crime. It is hard to explain why, as presently interpreted, we leave it to a jury to determine whether the defendant will be subject to an enhanced sentence when an unloaded BB gun is carried in the course of the crime, as in Dale v. State, 703 So.2d 1045 (Fla.1997), but prevent the jury’s involvement when an open pocket knife is used. Patently, the threat of extensive harm to a victim is more real in the case of the knife.

      . § 810.02(l)(a), Fla. Stat. (2001).


author: SAWAYA, J.

text:
    Ruben GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1638.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Rehearing Denied July 23, 2003.

      James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Ruben Gonzalez appeals his conviction and sentences for lewd act on a child, using a child in a sexual perfor-manee, and unlawful possession of materials depicting sexual performance by a child. After the jury rendered its verdict finding Gonzalez guilty of all three counts, the trial court orally sentenced him as follows: Count I — 141 months in prison, Count II — ten years on sex offender probation to run consecutive to the prison sentence in Count I, and Count III — five years on sex offender probation to run concurrently with the probation in Count II. However, contrary to the oral sentence imposed, the final written order imposed consecutive sentences for Counts II and III.

Gonzalez subsequently filed a motion to correct the sentence, asserting that: 1) the maximum possible prison sentence in Count I should have been 112.875 months, and 2) the written probation order reflected “consecutive” probation terms instead of the “concurrent” terms announced in open court. The trial court granted the motion as to both issues. An amended sentencing order reflects the correction as to the prison term, but does not change the “consecutive” probation terms to “concurrent.”

Gonzalez contends, and the State concedes, that the oral pronouncement of sentence controls. Ashley v. State, 28 Fla. L. Weekly S18, S20, — So.2d -, -, 2003 WL 60564 (Fla. Jan. 9, 2003) (recognizing and affirming the “longstanding principle of law — that a court’s oral pronouncement of sentence controls over the written document.”); Shipman v. State, 842 So.2d 1021 (Fla. 5th DCA 2003); see also Taylor v. State, 840 So.2d 371 (Fla. 1st DCA 2003) (remanding to the trial court to enter a probation revocation order consistent with that orally pronounced in court); Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003) (remanding for entry of a proper revocation order when “the written order of revocation of probation [was] not consistent with the trial court’s oral pronouncement.”).

While we affirm Gonzalez’ convictions, we remand for correction of the sentence to reflect the concurrent instruction pronounced in open court.

AFFIRMED and REMANDED to correct the written order of sentence.

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

      . §§ 800.04, 827.071(2), 827.071(5), Fla. Stat. (1997). We note that Gonzalez originally entered a plea of nolo contendere to two of the three charges, reserving his right to appeal the denial of a previously filed motion to suppress his confession. The other count was nolle prossed. On appeal, this court affirmed the conviction, holding that the record did not show that the confession was dispositive. See Gonzalez v. State, 739 So.2d 1260 (Fla. 5th DCA 1999), review denied, 753 So.2d 564 (Fla.2000). Gonzalez subsequently filed a motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of counsel. The trial court granted this motion and the case proceeded to trial on all three original charges. Gonzalez now appeals his convictions and the sentences imposed after the jury returned its verdict finding him guilty on each charge. We conclude that the issues Gonzalez raises relating to his conviction of these charges are without merit and, accordingly, we affirm his convictions.


text:
    Willie BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2742.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Rehearing and Certification Denied July 23, 2003.
    Bennett H. Brummer, Public Defender and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Diaz v. State, 600 So.2d 529 (Fla. 3d DCA 1992), review denied, 613 So.2d 3 (Fla.1992); Limor v. Conli, 424 So.2d 31 (Fla. 3d DCA 1982); 3 Fla.Jur.2d Appellate Review § 300, at 296 (1997)(“An appellant cannot urge review of an error that operates in the appellant’s favor.”).


author: WARNER, J.

text:
    F.L., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-4396.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2003.
    Rehearing Denied Aug. 7, 2003.

      Felicia Shaman of Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

A mother, F.L., appeals the trial court’s order terminating her parental rights to her seventh child. The trial court terminated her rights under sections 39.806(l)(c) and (i), Florida Statutes (2001). We hold that the Department of Children and Families (“DCF”) failed to prove grounds for termination as authorized under section 39.806(l)(c). We further hold that section 39.806(l)(i), allowing for termination solely upon a showing that a parent’s right to a prior child was terminated involuntarily, unconstitutionally shifts the burden to the parent to prove reunification would not be harmful to the child. We therefore reverse.

F.L. grew up in an abusive home, with a mother in prison and a father who abused substances and was physically abusive to F.L. By the time F.L. was in her late teens, she had three children and was in an abusive relationship with C.N., Sr.

In October 1997, DCF filed a petition for dependency as to F.L.’s first three children, C.H., T.S. and C.N. DCF alleged that she was observed intoxicated in the presence of the minor children and had medically neglected T.S. and C.N. F.L. consented to the petition and entered into a case plan for reunification. The plan consisted of assessments, participation in a parenting course, successful completion of a substance abuse course, completion of a domestic violence program, and maintaining stable housing and income for six months.

While this dependency action was pending, in early 1998, F.L. prematurely gave birth to Y.L. DCF immediately took custody of this child and filed a petition for dependency based upon medical neglect, due to the child’s low birth weight, and the allegations made in the prior petition for dependency of F.L.’s other children. The court declared Y.L. dependent and provided a case plan for reunification similar to F.L.’s prior plan.

A fifth child, F.N., was born at the end of 1998, and DCF also took custody of this child. In the petition for dependency, DCF alleged F.L. had a history of child abuse and neglect and “has been uncooperative with any service which were [sic] offered.” A petition for termination of rights also was pending as to the other children based upon medical neglect. F.N. was adjudicated dependent and provided a case plan for reunification again consistent with the prior plans.

Subsequent to F.N.’s adjudication of dependency, F.L. executed a voluntary surrender and consent for adoption as to the first four children in December 1999. F.L. had never complied with any of the case plans for reunification with these four children. In April 2000, DCF moved to terminate F.L.’s parental rights as to F.N. based upon the prior allegations of medical neglect as well as F.L.’s failure to obtain Medicaid for F.N. after her birth, the presence of domestic violence between F.L. and C.N, Sr., and the failure to substantially comply with her case plan.

F.L. had her sixth child, Cl.N. in March 2000. DCF took this child into custody on grounds that the mother medically neglected the child by refusing medical services, as well as the allegations regarding the five prior children. After mediation, F.L. agreed to voluntarily surrender her rights to F.N., while DCF agreed to offer her a case plan for C1.N. In December 2000, F.L.’s rights to C1.N. were terminated based upon the court’s determination under section 39.806(l)(c) that F.L. consistently failed to substantially comply with her case plans and her continued involvement in the parent-child relationship would threaten the child’s welfare.

Finally, C.N., Jr., the child at issue in this case, was born in January 2002. At the time, the father, C.N., Sr., was incarcerated on drug charges. Unlike the prior cases, F.L. accepted and received home health services after C.N., Jr.’s birth. A counselor visited F.L.’s home several times and observed that F.L. was providing C.N., Jr. with appropriate care, including seeking proper medical care, and that F.L. and the child had emotionally bonded. The counselor saw no danger to C.N., Jr.

When DCF learned of C.N., Jr.’s birth, representatives sought to locate F.L., and enlisted the services of Broward County Sheriffs Office Child Care Investigation unit (“BSO”). An investigator located F.L. and C.N., Jr. and observed nothing to cause concern regarding F.L.’s care. F.L. was receiving services, and the investigator saw no reason to remove the child from her care until she learned of the involuntary termination of F.L.’s rights as to C1.N. BSO office policy dictated that a child be removed where the parent has had a prior involuntary termination. Yet, the initial shelter petition was denied by the court, and C.N., Jr. was returned to F.L.

BSO then sent an investigator to visit F.L. and set up referrals for “in-home” services. He found F.L. cooperative, and the child appeared to be fine. Because F.L. said she was moving, he did not set up any services. However, he believed F.L. should keep the child, as she appeared to be loving and caring.

Although DCF originally filed a petition for dependency, within a short period, and without offering a case plan, the agency filed a petition for termination of parental rights in June 2002. It alleged, pursuant to section 39.806(l)(c), that F.L. failed to comply with prior case plans leading to the termination of her rights to the other children. As a second ground for termination, DCF alleged that F.L.’s rights to Cl.N. were involuntarily terminated and constituted a ground for termination under section 39.806(l)(i). In the meantime, the court removed C.N., Jr. from F.L.’s custody but allowed her to have supervised visitation with the child.

At the final hearing in October 2002, DCF relied primarily on a service counsel- or, who had recently taken over F.L.’s files, to demonstrate the grounds for termination. Based upon those files, she testified that F.L. did not comply with any of her previous plans, outlining all of the tasks that F.L. failed to complete. However, the counselor admitted that DCF relied solely on F.L.’s history and not on any new allegations of neglect relating to C.N., Jr. In fact, she conceded that F.L. had made several efforts to improve herself and her ability to parent C.N., Jr., which she had not done with the other children. Nevertheless, she considered that F.L.’s efforts were insufficient and that her circumstances had not dramatically changed to ensure the safety of C.N., Jr., particularly because F.L. was still involved with C.N., Sr., and domestic violence was still a threat.

The counselor’s opinion was consistent with the guardian ad litem who had been the guardian for several of F.L.’s other children. During direct examination she opined that F.L. could not provide a safe, nurturing environment for C.N., Jr. based upon her prior failure to parent her other children. However, on cross-examination, she admitted that she had seen changes in F.L. with C.N., Jr. and that F.L. and the child had bonded. During her visits the guardian found F.L.’s house clean and C.N., Jr., healthy. In fact, she had first recommended that DCF offer F.L. a case plan for reunification. She only changed her mind after meeting with the program’s attorney, reviewing the file, and recognizing F.L. had made similar promises to change with respect to C1.N. but had failed to follow through.

The BSO investigators, the initial DCF counselor assigned to F.L., and F.L.’s aunt all testified that F.L. and the child had bonded, that the home was clean, and that F.L.’s care of C.N., Jr. was appropriate. The counselor assisted in the visitation sessions between F.L. and C.N., Jr. and observed appropriate behavior and responses. The mother seemed genuinely concerned for her baby. On occasion, F.L. brought food and clothing for C.N., Jr. to assist his foster parents.

There were some concerns, such as the baby’s sleeping quarters and the inability of the counselor to finish a home study because F.L.’s sister, with whom she resided, did not provide a social security number. However, when DCF decided to petition for termination of parental rights, none of these concerns were pursued, nor were other referrals for services provided.

While DCF did not offer a case plan for reunification, F.L. pursued courses on her own. With a counselor from Keeping Families Together, F.L. worked on parenting skills. The counselor administered a parenting inventory and scored F.L. within normal limits in all categories except “power and independence” where her score was low. In all, the counselor had twenty sessions with the mother focusing on parenting skills, as well as independence issues. At trial, DCF representatives did not consider this sufficient because F.L.’s prior case plans required her to complete a thirty-six week parenting course.

In addition, F.L.’s attorney referred her to a substance abuse evaluation. Based upon F.L.’s self-reporting of her history, the therapist concluded that F.L. was not chemically dependent and did not recommend any further drug or alcohol treatment. After this initial evaluation, the therapist received additional information relating to F.L.’s history with DCF, her other children, and their fathers’ drug and alcohol abuse, which was inconsistent with some of F.L.’s self-reported history. Nevertheless, the therapist did not alter her recommendation but rather indicated that she would need to make another assessment with the “new” information available.

F.L.’s previous plans also required her to obtain domestic violence counseling, which she did not get in the past. After the termination was filed in this case, she began attending counseling sessions for domestic violence. Because DCF was seeking termination, it did not make additional referrals; thus, F.L. arranged to attend the sessions herself. While she attended only three of six scheduled, the counselor found her to be proactive and eager to be a good mother.

On her own, F.L. also attended and completed a program designed to eliminate the need for supervised visitation. While in the program F.L. did not miss, and was not late for, any scheduled supervised visits -with C.N., Jr. Upon completion of the program, she missed two scheduled visits the month preceding the hearing. However, the program coordinator testified that F.L. demonstrated she knew how to care for, and handle, the infant. Thus, the coordinator recommended that F.L. have unsupervised visitation.

Although the evidence showed many efforts of F.L. to establish her parenting abilities, there were also failings. She did not submit to a hair follicle drug test as agreed and was not completely forthcoming with the substance abuse therapist. In the month before the termination hearing, she missed several appointments for counseling and visitation. Also, about a month before the hearing, police were dispatched to her apartment and found C.N., Sr., recently discharged from prison, and F.L. arguing. The responding officer testified that he did not observe an incident of physical abuse but merely an argument and that F.L. lied about her name and stated to him that C.N., Sr. lived there. While F.L. admitted lying about her name, she denied telling the officer that C.N., Sr. lived at her apartment. The court found the officer credible. DCF presented no evidence that there were any incidents of domestic abuse in the presence of any of the children.

In her testimony, F.L. explained her prior failure to complete case plans was due to a lack of support, depression, and belief that she could not complete the tasks. With the support she has received, her attitude has changed and she indicated she wanted to be a good mother to C.N., Jr. At the time of the hearing, she had lived on her own for four months and had a part-time job, and she expressed a willingness to participate in any services in order to maintain this environment and be reunified with her child.

The trial court concluded that DCF had proved its case for termination in accordance with both sections 39.806(l)(c) and (i). It noted that F.L.’s rights were terminated to her six other children due to her failure to comply with court-ordered case plan tasks. It found,

While the mother professed the desire to be a parent, her actions indicated otherwise. The mother made a minimal effort prior to the hearing to avoid the termination of her parental rights, but even then she missed appointments, stopped going to sessions, failed to reschedule and follow through.
The mother failed to come forward with evidence that the circumstances or pattern of conduct that led to the involuntary termination of her parental rights to the other child cannot serve as a predictor of her conduct with this child. A.B. v. Department of Children and Families, 816 So.2d 684 (Fla. 5th DCA 2002). The mother’s actions and inactions demonstrated a continued unwillingness and inability on her part to parent her child.

The court found that it was in the best interests to terminate F.L.’s rights in that: (1) there was no substitute arrangement with a known relative; (2) “[t]he mother [and father, whose rights were also terminated] do not have the capacity to care for the child to the extent that the child’s safety, well-being, physical, mental and emotional health could not be endangered upon the child’s return home;” (3) the mother and father do not have the ability and disposition to provide the child with food, clothing, medical care or other remedial care; (4) the child’s mental and physical needs are currently being met by the custodians; (5) although some harm may occur as a result of termination, there would be greater harm if the parents’ rights were not terminated; and (6) the child is adoptable. The court therefore terminated F.L.’s rights, prompting this appeal.

It is well settled that a parent has a fundamental liberty interest in the care, custody and management of his/her child. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). In order to terminate a parent’s rights to a child, DCF must present clear and convincing evidence that a ground for termination under section 39.806(1) exists and that reunification poses a significant risk of harm to the child. See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995). In Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991), the court held that under appropriate circumstances the “termination of a parent’s rights in one child under circumstances involving abuse or neglect may serve as grounds for permanently severing the parent’s rights in a different child.” (Footnote omitted). In an important caveat, the court said:

We note that because parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm. This means that HRS ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.

Id. Justice Barkett, in her concurring opinion noted “[t]ermination of parental rights should be the remedy of last resort, employed only when other reasonable alternatives have been exhausted.” Id. at 572.

Where DCF is petitioning to terminate parental rights on the basis of abuse or neglect of another child, we have emphasized that the state must show that “the behavior of the parent was beyond the parent’s control, likely to continue, and place the child at risk.” A.C. v. Dep’t of Children & Families, 798 So.2d 32, 35 (Fla. 4th DCA 2001) (quoting Gaines v. Dep’t of Children & Families, 711 So.2d 190, 193 (Fla. 5th DCA 1998)). In Gaines, the court gave examples of such behavior as pedophilia, drug addiction, or mental illness. See 711 So.2d at 193. These types of behavior are the type that could constitute harm to the child and may not be amenable to treatment.

In this case, DCF sought and obtained termination of F.L.’s rights under sections 39.806(l)(c) and (i). We conclude that it failed to prove the requirements to terminate under section 39.806(l)(c) and that section 39.806(l)(i) is facially unconstitutional.

Section 39.806(l)(e) provides for termination,

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

“To terminate parental rights under this section, the trial court must find that the child’s life, safety, well-being, or physical, mental, or emotional health would be threatened by continued interaction with the parent regardless of any services provided to the parent.” In re J.D.C., 819 So.2d 264, 266-67 (Fla. 2d DCA 2002) (citing R.W.W. v. Dep’t of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001)).

In R.W.W., the trial court terminated a mother’s rights when, at the child’s birth, the mother and child tested positive for cocaine. See 788 So.2d at 1023. Within a week after the child’s birth, the mother was arrested for possession of cocaine. DCF petitioned for termination of parental rights, refusing to offer a ease plan for reunification. Although the mother stated at the hearing that she was seeking drug treatment so that she could raise her child, the trial court doubted her sincerity and found that the child would be in danger. See id. The second district concluded the evidence was insufficient to terminate the mother’s parental rights under section 39.806(l)(c) where DCF failed to establish the mother’s continual involvement with the child threatened her life, safety, or health regardless of the provision of services to the mother. See id. at 1024. The court explained that to terminate pursuant to that section “the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.” Id. at 1023. The second district cited the mother’s willingness to arrange for drug treatment upon her release from jail as well as the use of other jail services to assist in securing employment and housing as evidence that the mother was amenable to treatment and that DCF had failed to demonstrate services were futile. See id. at 1024.

In L.B. v. Department of Children & Families, 835 So.2d 1189, 1193 (Fla. 1st DCA 2002), the mother suffered from depression and anger management issues. She had an explosive relationship with her children’s father, leading to domestic violence against him. After her children were declared dependent, she was given a .case plan with specific tasks. She was compliant with some tasks and attended counseling sessions. However, while working on some of her tasks, she assaulted the father with her car. See id. at 1191. Based upon her failure to comply with all of the case plan as well as her continuing problems with anger management, the trial court terminated her parental rights, citing section 39.806(l)(c). See id. at 1193. The first district reversed, concluding that even though the experts testified the mother could be a danger, she presented evidence that she was consistently taking her medication and working successfully on various tasks. See id. at 1194. As to the possibility of prospective abuse on the child, the court also distinguished the mother’s case from cases in which the parents are so afflicted they could never be cured of the affliction that constituted the danger to the child, such as pedophilia. See id. at 1195 (relying upon Palmer v. Dep’t of Health & Rehab. Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989)). In order to terminate under section 39.806(l)(c), DCF must prove that there is no reasonable basis for improvement in the parent and that the continued involvement of the parent would be harmful to the child. Because the testimony showed that the mother was making some improvement and completing some tasks, DCF failed to prove that the provision of services would be futile. See L.B., 835 So.2d at 1195.

This case is similar to the foregoing cases. While in this case F.L. had not abided by any of her previous case plans, DCF failed to prove that regardless of the provision of services, F.L.’s continued involvement as a parent to C.N., Jr. would threaten his well-being. The original allegations against F.L. consisted of her being intoxicated around her children sometime in 1997 and medical neglect of a congenital condition. F.L. was also accused of medical neglect of Y.L., F.N., and Cl.N. As to C.N., Jr., not only was there no allegation of medical neglect, but the undisputed evidence showed that F.L. had provided all appropriate medical care to C.N., Jr. Before DCF became involved, F.L. had taken the baby to the pediatrician, made sure he was properly immunized, and even noticed diaper rash on him when he was not in her custody. She also had adequate food, formula, and clothing for the baby. These were actions that F.L. never took with her other children. Therefore, DCF did not prove that C.N., Jr., would be medically neglected irrespective of the provision of services. As to the intoxication, there was no evidence presented that the mother abused illegal substances or alcohol. The only evidence DCF presented was the single incident where she was intoxicated around her other children. This was insufficient to show that her continuing involvement with C.N., Jr., would create harm to him. While she failed to attend programs on substance abuse required under the prior case plans, after an evaluation by a substance abuse therapist, the therapist concluded that she was not an abuser and that treatment was unnecessary. Although DCF suggested the therapist did not have all the correct information, there was still no evidence that F.L. abused substances or that she would be harmful to her child as a result. At the very least, no evidence supported the finding she would be a continued danger to her child irrespective of the provision of services.

Despite DCF’s refusal to offer her a case plan, the mother actively sought services to improve herself, something she had never done with the prior children. She attended several programs, and her counselors and therapists all believed that she was making a sincere and able effort to learn to parent correctly. Although the trial court considered this “too little too late,” in the past she had never even started any programs or services. This time she did them on her own without assistance from DCF. Because there was evidence that F.L. had in fact improved her parenting skills with the provision of services, DCF failed to prove by clear and convincing evidence that any efforts would be futile to terminate F.L.’s rights pursuant to section 39.806(l)(c).

The court also found that DCF proved the termination of F.L.’s rights under section 39.806(l)(i), which section allows for termination when the parent’s rights to another child have been involuntarily terminated. Because her rights to C1.N. were involuntarily terminated, the court shifted the burden to the mother to show her conduct that caused the termination of her parental rights as to C1.N. would not serve as a predictor of her conduct with C.N., Jr. Finding that she had not satisfied that burden, the court terminated her rights. F.L. contends that the statute is facially unconstitutional in that it shifts DCF’s responsibility to prove the elements necessary to terminate a parent’s fundamental right to parent to the parent. We agree.

As the Padgett court stated in a case involving termination of parental rights based upon the termination of the parent’s rights as to other children, “[t]o protect the right of the parent and child, we conclude that before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” 577 So.2d at 571 (emphasis added) (footnote omitted). Thus, DCF carries the burden not only to establish a ground for termination but the continuing substantial risk of harm to the current child.

In A.B. v. Department of Children & Families, 816 So.2d 684, 685 (Fla. 5th DCA 2002), where a mother challenged the constitutionality of the statute, the Department argued that section 39.806(l)(i) was simply a codification of the holding of Pad-gett. In upholding the statute, the fifth district attempted to reconcile the statute with Padgett by stating:

[A] parent whose rights have been involuntarily terminated as to one child may avoid termination as to another child if he or she comes forward with evidence that the circumstances or pattern of conduct that led to termination of parental rights to the other child cannot serve as a predictor of his or her conduct with the child at issue. In light of the supreme court’s opinion in Padgett in this context, the statute is constitutional.

Id. at 686. We think that by shifting the burden to the mother to show that her past conduct does not serve as a predictor of current conduct, the court has relieved the state of its burden of demonstrating that reunification with the current child poses a substantial risk of harm. All the state has to do, according to A.B., is to show the mother’s past conduct. It then becomes the duty of the mother to show that her past conduct does not predict that the current child is at substantial risk. This is contrary to Padgett’s express holding. See 577 So.2d at 571.

In C.W. v. Department of Children & Families, 814 So.2d 488 (Fla. 1st DCA 2002), the mother’s rights to her youngest child were terminated based upon the severe abuse by the mother’s boyfriend to her other children and the mother’s failure to protect her child. One child was burned and sustained severe injuries to his internal organs. The mother was charged with child neglect. Six months later, when the mother gave birth to another child, DCF removed the child from her custody and sought to terminate the mother’s rights based upon the termination of her rights to the other children. See id. at 493-94 (Ervin, J., dissenting). Even though the guardian and a Child Protection Team psychologist recommended against termination, the trial court granted termination solely upon the evidence of the conduct with the prior children, finding that the mother had failed to prevent egregious conduct which had threatened the very life of her other children. See id. at 492. The first district affirmed the termination.

Judge Ervin wrote a thoughtful dissent, noting that the DCF failed to present any evidence “reasonably showing that the mother’s prior conduct with her former children placed the fifth child at risk.” Id. at 495. He noted that the court had ignored all of the evidence of the mother’s current conduct with the child and the mother’s changed attitude. DCF offered no evidence that the mother’s present condition or actions placed the child at risk with the mother but instead relied entirely on the mother’s prior conduct with her other children. See id. He wondered:

[W]hether the Department’s position would be the same if five years had elapsed from the date of the mother’s earlier egregious conduct and K.L.B., Jr.’s birth, yet the interpretation the court below and the Department placed on the statute appears not to make the passage of time a significant factor in deciding whether termination is appropriate. In my judgment, if the pertinent provisions of section 39.806 are permitted to survive constitutional muster, they must be given a far more restrictive construction than the majority places on them in the present case.

Id. After reviewing Padgett and other pertinent authority, he concluded:

If section 39.806 can be interpreted as permitting “the heavy hand of government paternalism,” Padgett, 577 So.2d at 570, to be stretched out at any time to remove a child from its parent’s custody, based solely on the parent’s past conduct, "without any regard for present circumstances, such a construction, in my judgment would violate the fundamental liberty interest of the natural parent in the care, custody, and management of his or her child. The interpretation the Department advanced ignores empirical evidence, as presented in this case, that human beings have the ability to change, and that even parents deemed unfit because of their past actions to raise certain of their children deserve a second chance at raising others.

Id. at 496. We agree with the sentiments of Judge Ervin and conclude, contrary to A.B., that the statute is facially unconstitutional where it permits termination of parental rights solely upon the involuntary termination of rights to another child. To pass constitutional muster Padgett requires the state to prove that reunification with the current child would pose substantial risk to the child. See 577 So.2d at 571. The statute, as construed by A.B., reheves the state of this burden and shifts to the parent the burden of showing that current conditions are unlike those of the past and that reunification will not pose a substantial risk of harm to the child. Because the trial court relied on A.B. and shifted the burden to the mother, its decision did not satisfy the constitutional requirements of Padgett.

DCF has not proved reunification will pose a substantial risk to C.N., Jr. or that the provision of services to F.L. would be futile in permitting reunification. For the foregoing reasons, we reverse the final judgment terminating parental rights and remand for further proceedings. We certify conflict with A.B. as we have held section 39.806(l)(i) is facially unconstitutional, thus, inviting supreme court review. The power and authority of DCF to seek termination of parental rights is a significant and continuing problem in this state. DCF should neither be too slow to protect our precious children, nor too quick to terminate a parent’s fundamental right to raise his or her child. The proper construction of its duties and responsibilities under these statutes is a matter of vital importance to the families of this state.

POLEN and GROSS, JJ., concur.

      . There were not thirty-six weeks from the time the termination petition was filed until the final hearing.


text:
    Joseph BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4243.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Joseph Bradley, Chattahoochee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice for Bradley to file a legally sufficient motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800 raising any issue concerning jail credit, see Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998)(adopting strict pleading requirement imposed by Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998);) and, to file any appropriate extraordinary relief, if necessary, upon the Department of Corrections determination under sections 944.28(c) and 944.279, Florida Statutes.

GUNTHER, WARNER and SHAHOOD, JJ., concur.


text:
    Bruce G. CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1774.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), is addressed to the discretion of the trial court. Therefore, this Court has no jurisdiction to review the correctness of the trial court’s disposition of the motion. Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990). This dismissal is without prejudice to any right the appellant might have to seek a belated appeal of his motion to withdraw his plea pursuant to Florida Rule of Appellate Procedure 9.141(c).

DISMISSED.

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    James YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3432.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Nancy Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 10, 2003, the Court has determined that the notice of appeal in lower court case number 99-10226 was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal of case number 99-10226 is hereby dismissed.

DISMISSED.

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    Shaddrick WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-51.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Ricky ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1295.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Ricky Anderson, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This case is before the court on remand from the Supreme Court of Florida, which vacated this court’s opinion and remanded for reconsideration in light of Terry v. State, 808 So.2d 1249 (Fla.2002). State v. Anderson, 819 So.2d 139 (Fla.2002)(table). Applying Terry, we affirm the trial court’s order summarily denying appellant’s rule 3.800(a) motion to correct illegal sentence.

STONE, STEVENSON and TAYLOR, JJ., concur.


author: SHAHOOD, J.

text:
    STATE of Florida, Appellant, v. Melissa MEISTER, Appellee.
    No. 4D02-3528.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant, State of Florida, appeals from an order of the County Court granting appellee’s motion to dismiss on the grounds that section 322.34(2), Florida Statutes (2001), is unconstitutionally vague as applied to appellee. We reverse and remand with directions to the trial court to reinstate the charges against appellee.

Appellee, Melissa Meister, whose driver’s license had previously been suspended, was charged by information with driving while license suspended. Appellee moved to dismiss the Information against her on the grounds that section 322.03(1), Florida Statutes (2001), is unconstitutional on its face, and as applied to her, and that it is overbroad and vague. Meister alleged that she was arrested while riding a moped and charged with driving with a suspended license. She argued that section 322.03(1) does not provide a clear meaning of the conduct which is prohibited by statute, thereby rendering it unconstitutionally vague. At the hearing on the motion to dismiss, appellee argued that a motor vehicle, which is defined in section 816.008(21), Florida Statutes, specifically excludes bicycles and mopeds from the definition. Thus, it would be reasonable to assume that a moped is not a motor vehicle. In addition to arguing that other statutes do not consider a moped a motor vehicle, appellee argued that section 322.34(2), concerning licenses to drive a motor vehicle, was unconstitutional as applied. The court held that not only was the definition in section 322.03 at issue but whether 322.34(2) was unconstitutional as applied was also at issue. After hearing argument, the court granted appellee’s motion to dismiss declaring section 322.34(2) unconstitutionally vague as applied to the facts of this case.

Section 322.34(2), Florida Statutes (2001), states as follows:

Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(emphasis added).

Section 322.03(1), Florida Statutes (2001), provides:

Driver must be licensed; penalties
(1) Except as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under the provisions of this chapter.

(emphasis added).

Section 322.01(26), Florida Statutes (2001), defines “motor vehicle” as follows:

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles as defined in s. 316.003.

In Soto v. State, 711 So.2d 1275 (Fla. 4th DCA 1998), the defendant, whose driver’s license had previously been suspended, was cited for driving a moped with a suspended license. He moved to dismiss on the ground that a moped is not a motor vehicle which requires a license under chapter 322, the licensing statutes. The trial court denied the motion.

In affirming, this court rejected defendant’s argument that in other chapters motor vehicles are defined to exclude mopeds. After citing various other definitions, defendant argued that the different definitions created an ambiguity which, under the principle of lenity, should be interpreted favorably to the accused. See id. at 1276. This court explained:

The problem with appellant’s argument is that he cannot point to any ambiguity in chapter 322, which is the only chapter which explains who is required to have a driver’s license. The fact that there are different definitions in other chapters does not make the definition of motor vehicle in chapter 322 unclear. There is no reason why the Legislature cannot define motor vehicles one way for licensing requirements, and another way for infractions or financial responsibility.
The legislature’s intent to require moped drivers to be licensed is confirmed by section 322.16(2)(c) and (f), which contains specific provisions providing for the operation or rental of motorcycles and mopeds by those with restricted licenses.

Id. This court then held that because a moped is a “self-propelled vehicle” and is not excluded from the definition of a motor vehicle in section 322.01(26), that driving a moped requires a license. See id. at 1277; see also Wood v. State, 717 So.2d 617 (Fla. 1st DCA 1998)(a moped is a “motor vehicle” which requires a driver’s license for operation under section 322.34); Jones v. State, 721 So.2d 320 (Fla. 2d DCA 1998)(a valid driver’s license is required for the operation of a moped under section 322.34(2)).

In this case, many of the arguments raised by appellee were rejected by the court in Soto. Although the constitutionality of section 322.34 was not raised in Soto, this court, in affirming Soto’s conviction, held that driving a moped requires a license because a moped is not excluded from the definition of a motor vehicle in section 322.01(26). Soto, 711 So.2d at 1276-77. By so concluding, this court impliedly held that there is no vagueness or ambiguity in section 322.34 with respect to mopeds which would render the statute unconstitutionally vague. Based on Soto, we reverse and remand with directions to reinstate the charges against appellee.

REVERSED AND REMANDED.

FARMER, C.J., and KLEIN, J., concur.


author: VAN NORTWICK, J.

text:
    Michael THOMPSON, Appellant, v. AWNCLEAN USA, INC. and Hartford Insurance Group, Appellee.
    No. 1D02-2012.
    District Court of Appeal of Florida, First District.
    July 17, 2003.

      William H. McKnight, Tampa, for Appellant.
    Thomas W. Sculco and Melanie Freeman Chase of Pine & Bergier, Maitland, for Appellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Michael Thompson, the claimant below, appeals a final order of the Judge of Compensation Claims (JCC) dismissing his petition for benefits with prejudice. The order was entered after the claimant declined to pay an additional sum requested by the physician chosen by the employer/carrier, Awnclean USA, Inc. and Hartford Insurance Group, appellees, to perform an independent medical examination (IME). The sum represented an additional fee the physician required before he would perform the IME in the presence of a court reporter accompanying the claimant. We reverse.

Claimant timely filed petitions for benefits. The employer/carrier contested com-pensability and scheduled an IME with a physician of their choice at a fee of $400. Claimant appeared for that appointment with a court reporter. The doctor refused to conduct the IME unless he was paid $1,000. Claimant alleged that he could not afford to pay and would not agree to pay the increased IME fee, and the IME was not conducted.

Thereafter, the employer/carrier filed a motion to compel attendance at the IME and for sanctions. At the hearing on this motion, the employer/carrier agreed that they would pay the increased charge requested by the IME physician, if the claimant would waive any objection he might have to the admissibility of the doctor’s report or testimony. The claimant refused the proposal, contending that such an agreement would be a violation of law. Claimant argued that the employer/carrier should find another IME physician who would perform the IME for the allowed fee of $400 with a court reporter present and that charging 250% of the maximum fee for the IME to have a court reporter present was unreasonable.

It is clear from the record that the JCC was concerned that claimant’s insistence upon a court reporter at the IME could result in “gamesmanship.” The JCC, however, did not find that the claimant sought to have a court reporter present for an improper purpose. The JCC entered a written order which provided, in pertinent part, as follows:

8. The difficulty that parties in this local area are experiencing in locating qualified medical professionals to conduct IMEs for $400.00 is a matter of common knowledge of which this court takes notice. It is found that once an IME has been contracted for that is within the fee allowed ($400 for an IME) additional costs engendered by requests such have been demanded by the claimant herein are costs of litigation and should be borne by the requesting party and should not be considered a part of the underlying evaluation as they represent costs relative to time, space, and accommodation rather tha[n] the actual medical evaluation.

The employer/carrier rescheduled the IME. Claimant advised that he intended to have a court reporter present and that the claimant was unable to pay the IME physician the additional amount requested. Thereafter, the employer/carrier filed a motion seeking to dismiss the petition as a sanction. The trial court granted the motion with prejudice. This appeal ensued.

As a general rule, a workers’ compensation claimant has the right to have a court reporter present at his IME examination. See U.S. Security Insurance Company v. Cimino, 754 So.2d 697 (Fla.2000); McClennan v. American Building Maintenance, 648 So.2d 1214 (Fla. 1st DCA 1995); Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); and Collins v. Skinner, 576 So.2d 1377 (Fla. 2d DCA 1991). In the event a party opposes the attendance of a court reporter, the party opposing attendance has the burden of proof to show why the examinee should not be entitled to the presence of a court reporter. Broyles, 695 So.2d at 833. As the Broyles court explained, the doctor must first provide a case specific justification in an affidavit to support a claim that the presence of the court reporter at the examination will be disruptive. Once that burden has-been met, the objecting party must establish in -an evidentiary hearing that no other qualified physician can be located in the area who would be willing to perform the examination with a court reporter present. Id. at 834. Below, the employer/carrier did not submit proof that the court reporter’s presence at the examination would be disruptive and should not be allowed. See Wilkins v. Palumbo, 617 So.2d 850, 853 (Fla. 2d DCA 1993).

Further, an IME physician who charges a fee in excess of the maximum allowable fee under rules adopted by the Division of Workers’ Compensation pursuant to legislative .directive is prohibited from testifying in a workers’ compensation hearing. See City of Riviera Beach v. Napier, 791 So.2d 1160, 1161 (Fla. 1st DCA 2001). In affirming the JCC’s order ruling inadmissible the opinion testimony of an IME physician who had charged a fee that exceeded the allowable amount, the Napier panel explained:

The Division of Workers’ Compensation has adopted, in Rule 38F-7.020, Florida Administrative Code, the limits set forth in the 1997 edition of the Florida Workers’ Compensation Health Care Provider Fee for Service Reimbursement Manual (Manual). The Manual states that the maximum fee to be paid for an IME is $200 per hour for a maximum of two hours, for a total maximum payment of $400_In this case, [the IME physician] charged, and the E/C paid, $700 for the IME....
Section 440.13(5)(e) limits the medical testimony that is admissible before the JCC to the opinions of expert medical advisors, independent medical examiners, and authorized treating providers.... [The IME physician’s] action in charging in excess of the allowable amount, and the E/C’s action in acquiescing to and paying that charge, took [the IME physician] out of the statutory category of independent medical examiner. Under the limiting provisions of section 440.13(5)(e), the JCC properly excluded [the IME physician’s] testimony as an inadmissible medical opinion, (citations omitted).

Below, the employer/carrier produced no evidence that they could not obtain a doctor to perform an IME within the $400 limit established by the legislature. Thus, they do not have a claim that enforcing the legislative directive would deprive them of their constitutional right to a presentation of their case. See Alpizar v. Star Styled Dancing Co., 808 So.2d 286 (Fla. 1st DCA 2002).

Finally, this record contains no support for the $1,000 charge proposed by the doctor to accommodate the presence of a court reporter at the examination. No evidence demonstrates that the additional charge requested by the doctor was reasonable and necessary. Without the benefit of this evidence, the JCC presented the claimant with a Hobson’s choice of either giving up his right to a court reporter, or agreeing that the employer/carrier could pay the doctor a fee in violation of the law, or paying the additional fee himself as a cost of litigation. Declining to countenance a violation of law, claimant was forced into the untenable position of being required to pay a sum which he represented he could not pay.

The JCC’s order that this cost must be borne by the claimant has no support in the law. As counsel for the claimant argued, there is no statutory support for the JCC to award costs against the claimant, except those costs incurred if the claimant fails to appear for the IME without good cause and fails to advise the physician at least 24 hours before the examination that he cannot appear. See § 440.13(5)(d), Fla. Stat.; compare § 440.34(3), Fla. Stat. (permitting the JCC to tax the reasonable cost of a workers’ compensation proceeding against the employer, except for attorney fees, if the claimant prevails). Further, while the JCC possesses the authority to impose a sanction in appropriate circumstances, see section 440.33, Florida Statutes (1995), Hanna v. Industrial Labor Service, Inc., 636 So.2d 773, 776 (Fla. 1st DCA 1994), the record before us does not contain any competent substantial evidence to support a sanction, especially a sanction as severe as dismissal. See Martinez v. Collier County Public Schools, 804 So.2d 559, 560 (Fla. 1st DCA 2002).

Because the JCC abused his discretion in entering the discovery order which culminated in the dismissal of this proceeding, we reverse and remand for further proceedings consistent with this opinion.

KAHN AND BROWNING, JJ., CONCUR.

      . It is not clear from the record whether the doctor sought $1,000 in addition to the agreed upon fee of $400 or whether the doctor sought a total fee of $1,000. Whether the additional amount requested was $600 or $1,000 is immaterial to the legal analysis employed here.