author: TORPY, J.

text:
    Jesse L. BLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3143.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

ON MOTION FOR REHEARING

We grant rehearing to address one point, discussed in footnote 4, and supplant our prior opinion. In all other respects the Motion for Rehearing is denied.

In this capital sexual battery case, Appellant raises two issues: First, whether the child victim hearsay exception set forth in section 90.803(23), Florida Statutes (2003), applies if the child victim was age 11 or less at the time she gave a statement to police, but over age 11 at the time of the hearing on the motion to admit the statement. Second, whether Appellant’s constitutional right of confrontation was violated by the admission of the statement, even though Appellant’s counsel deposed the child after she gave the statement. We conclude that the statutory hearsay exception does apply, and Appellant’s right of confrontation was not infringed. Therefore, we affirm the lower court’s decision admitting the statement.

Appellant is the victim’s father, having adopted the victim when she was very-young. He was charged with numerous counts of Capital Sexual Battery and Promoting Sexual Performances by a Child. At the time of the offenses, the victim was 11 years old and Appellant was approximately 39. The primary evidence against him was a videotape recording, with an audio track of Appellant’s voice, and numerous photographs depicting the victim in various lewd poses, some of which also depicted Appellant engaged in acts of sexual battery with the victim. The videotape and photographs were found by police at Appellant’s house when they served a search warrant.

When the victim was still 11 years old, she made a statement to a police investigator, recorded on audiotape, wherein she stated that the photographs and video all depicted her, that Appellant was also depicted in several of them, and that it was Appellant’s voice on the audio portion of the video. By the time of the hearing on the State’s motion to introduce the statements pursuant to section 90.803(23), Florida Statutes, however, the victim was 13 years old. Finding that the victim, who suffers from post-traumatic stress disorder, was legally unavailable to testify due to her psychological condition, the trial court granted the State’s motion and received the statement as evidence at the subsequent non-jury trial. Appellant was convicted on several counts and sentenced to life imprisonment.

Regarding Appellant’s first issue on appeal, the relevant statute provides in pertinent part as follows:

Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing ... child abuse or neglect,[or] any act of sexual abuse against a child ... is admissible in evidence in any civil or criminal proceeding....

§ 90.803(23)(a), Fla. Stat. (2003).

Appellant contends that the statute only applies if the child victim is 11 years old or less at the time the statement is admitted into evidence. We disagree. We think the statute clearly and unambiguously pertains to statements made by a child victim who is 11 years old or less at the time the statement is made.

Appellant’s second point is controlled by the United States Supreme Court’s recent pronouncement in Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a case which was decided after the commencement of this appeal. Without objection from the State, we granted leave for Appellant to file a supplemental brief to raise this issue. In Crawford, the Supreme Court held that, pursuant to the Confrontation Clause of the United States Constitution, testimonial statements of witnesses absent from trial are inadmissible unless the witness is unavailable and the defendant has had a “prior opportunity” to “cross-examine” the witness. Id. at 1369. In explaining its holding, the Court explored the Confrontation Clause’s historical underpinning and concluded that its primary purpose was to preclude the use at trial of ex parte, testimonial statements, the truth of which had not been tested using the adversarial tool of cross-examination.

Although the Court declined to define “testimonial,” here, the State concedes that the statement was testimonial. Moreover, Appellant does not challenge the trial court’s finding that the victim was unavailable. Thus, the only issue for us to consider under Crawford is whether Appellant had a “prior opportunity to cross-examine” the victim. Id. at 1369.

At the outset we note that Appellant makes no argument that Crawford requires an opportunity for a traditional “cross-examination,” meaning one that is fairly contemporaneous with a “direct examination.” Indeed, Crawford makes clear that the “cross-examination” need not take place in the presence of the fact finder; thus, its proximity in time to the direct examination or statement date should have no bearing on how the fact finder assimilates the direct and cross once these statements are admitted in evidence. Moreover, as Crawford points out, the primary goal of the Confrontation Clause is to prevent the use of statements not previously tested through the adversarial process. Id. at 1363. This goal is ordinarily met when an accused is provided with notice of the charges, a copy of the witness’s statement, and a reasonable opportunity to test the veracity of the statement by deposition.

Here, Appellant acknowledges that he availed himself of this opportunity by taking the victim’s deposition, but he contends that the opportunity was not “meaningful” or “adequate” for several reasons. First, citing State v. Skolar, 692 So.2d 309 (Fla. 5th DCA 1997), Appellant argues that the deposition in this case could not be used as substantive evidence at trial because Appellant did not depose the victim under rule 3.190(j), Florida Rules of Criminal Procedure, which pertains to perpetuated testimony. We fail to see how this argument has merit. Appellant clearly had the “opportunity” to depose the victim under this rule but made no such attempt. Moreover, Appellant could have used the deposition to impeach the victim even if it could not be used as substantive evidence, but the record in this case reflects that Appellant never attempted to use the deposition for any purpose. See e.g. § 90.608, Fla. Stat. (2003).

Appellant’s second contention is that his counsel was not as zealous in conducting the discovery deposition as his cross-examination would have been at trial. In rejecting this argument, we emphasize that Crawford mandates only the “opportunity” for the examination. Whether and how that opportunity is used is within the control of the accused, and he should not be heard to complain about an opportunity squandered. We further note that the discovery deposition is not in the record here, and Appellant has not sought leave to supplement the record. It is impossible for us to determine, therefore, the extent to which Appellant was prejudiced by his counsel’s purported lack of vigor. However, given the strength of the graphic evidence, and the nature of the victim’s statement, which essentially, merely authenticated the video and photographs, it is very doubtful that a more vigorous interrogation would have accomplished anything favorable for Appellant.

Lastly, Appellant argues that Appellant’s right to confront the victim was violated because he might not have been personally present at the deposition. On this issue, however, Appellant acknowledges that the record is silent. Moreover, assuming he was not present, there is nothing in the record to suggest that he made any request to attend. Due to its speculative factual nature, therefore, we dismiss this hypothetical legal argument without further consideration.

As a final point of discussion, the State urges that, even if the victim’s statement should have been excluded in this case, any error in admitting the statement was harmless, citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We quite agree. The accusations contained in the victim’s statement were proven through other witnesses; thus, the out-of-court statement was merely cumulative. The victim’s mother’s in-court testimony was substantively synonymous to the statement of the victim. She independently authenticated the photos and video. She also established the respective ages of the victim and Appellant and placed a time frame on the events. A police officer provided circumstantial proof that the photos and video were taken at Appellant’s house in Seminole County. Beyond that, the proof was in the pictures and video, which vividly depicted the criminal acts in excruciating detail.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . We express some doubt that this issue was preserved for review based on our review of the record. Unlike Crawford, where a specific objection was made based on the Constitution's Confrontation Clause, here the trial judge was not asked to address this issue. The State does not argue waiver, however, so we will address the issue on its merits as if the proper objection had been made. In making this observation, we do not suggest that competent counsel should have made such an objection, which would have required counsel to predict that the Supreme Court would overturn its earlier decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

      . One can envision a situation when, due to an extraordinary lapse in time or other circumstances beyond the control of the accused, the opportunity for cross is negated. Because we are not faced with this circumstance today, we leave this issue for resolution on another day.

      . Crawford does not expressly address the issue of whether the opportunity for cross must be "meaningful,” although common sense suggests that this notion is implicit in Crawford. Indeed, what constitutes a "meaningful” opportunity for cross might be the subject of much debate in the years to come. We emphasize, however, that our opinion today is limited to the facts of this case.

      .In his Motion for Rehearing, Appellant takes issue with this proposition. Citing, Pearce v. State, 2004 WL 1469337, 880 So.2d 561 (Fla. July 1, 2004), Appellant contends that impeachment of the victim's statement by inconsistent statement is not possible because the necessary predicate of affording the witness an opportunity to review and explain the statement cannot be established. See § 90.614 Fla. Stat. (2003). Appellant's argument overlooks, however, section 90.806, Florida Statutes, which excepts the need for this predicate when a hearsay statement is attacked by an inconsistent statement of the hearsay declarant. Pearce does not address a situation wherein this exception is applicable.


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    Ricky SLATER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2369.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Ricky Slater appeals the denial of his motion for post-conviction relief. He argues on appeal that the trial judge should have set aside his pleas of no contest because the sentencing court and his attorney failed to advise him that as a result of his plea, his parental rights would be terminated. We affirm.

Slater was charged by indictment with first-degree murder and aggravated child abuse. The victims were his twin sons. Slater entered pleas of no contest to aggravated manslaughter of a child and aggravated child abuse in exchange for sentences of 15 years in the Department of Corrections and 15 years of probation, to be served consecutively. After he entered his plea, Slater appeared in court in connection with a petition to terminate his parental rights to the surviving son. After consulting with his attorney, Slater signed an agreement terminating his parental rights to the surviving son. The dependency court accepted the agreement, and the court terminated Slater’s parental rights. He argues on appeal that had he known his parental rights were going to be terminated, he would not have entered the no contest pleas. Further, he argues that the trial court should have advised him of the potential for termination of his parental rights because it was a direct rather than a collateral consequence of his plea.

A trial judge’s obligation to ensure that the defendant understands the direct consequences of his plea has been consistently interpreted to encompass only those consequences of the sentence that the trial court can impose. Major v. State, 814 So.2d 424, 426 (Fla.2002) (quoting State v. Ginebra, 511 So.2d 960, 961 (Fla. inform a defendant of the collateral consequences of a guilty plea. Id. (quoting Ginebra, 511 So.2d at 960-961). “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 429 (quoting Daniels v. State, 716 So.2d 827, 828 (Fla. 4th DCA 1998)).

This issue has arisen in a variety of contexts. For example, it has been held that the sexual offender registration requirement is a collateral consequence of a plea to a sexual offense because the registration requirement has absolutely no effect on the range of the defendant’s punishment for the crime. State v. Partlow, 840 So.2d 1040 (Fla.2003). Being required to report to the Florida Department of Law Enforcement as a felon is a collateral consequence. Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002). That a conviction may be used to enhance a sentence for subsequently committed crimes is a collateral consequence. Major, 814 So.2d 424. The possibility of civil commitment under the Jimmy Ryee Act is a collateral consequence because a civil commitment is not automatic upon a conviction. Watrous v. State, 793 So.2d 6 (Fla. 2d DCA 2001). On the other hand, an automatic minimum mandatory sentence is a direct consequence. State v. Coban, 520 So.2d 40 (Fla. 1988).

Based on the above case law, we conclude that termination of parental rights is a collateral consequence of pleas of no contest to aggravated manslaughter of a child and aggravated child abuse. Termination of parental rights is not a direct or immediate consequence of such pleas and is not a punishment. It is not automatic, but instead entails the discretion of the Department of Children and Families. Further, termination of parental rights has no bearing on the range of punishment a sentencing court may impose. We add that in this case, it was Slater himself who, after conferring with counsel, entered a written agreement to surrender his parental rights.

AFFIRMED.

PETERSON and MONACO, JJ., concur.

      . There is conflict over whether driver's license revocation is collateral or direct. Compare State v. Bolware, 28 Fla. L. Weekly D2493, 2003 WL 22460271, - So.2d - (Fla. 1st DCA 2003) (driver's license revocation is not a direct consequence because it is not a ''punishment'') (with Daniels, 716 So.2d 827 (driver's license revocation is a direct consequence because, mandated by statute, it is a direct, immediate, and automatic penalty upon conviction)).


author: PALMER, J.

text:
    Sami M. OSTA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2342.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      David R. Damore of Damore and Raw-lins, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Sami M. Osta appeals the trial court’s order adjudicating him guilty of violating his probation, revoking his probation, and sentencing him accordingly. Concluding that the State proved by a preponderance of the evidence that Osta willfully violated substantial conditions of his probation, we affirm.

In 1997, Osta entered a plea of nolo contendere to the crimes of failing to remit state taxes and grand theft in the third degree. He was sentenced to a term of five years of probation with his adjudication of guilt withheld. Additionally, he was ordered to pay restitution in the amount of $62,529.96 to Florida’s Department of Revenue.

In 2000, Osta was charged with violating his probation by failing to pay restitution, in that he was delinquent on his payment plan in the amount of $24,000.00, and had an outstanding balance in excess of $58,000.00. The narrative of the violation alleged that Osta had made sporadic payments towards his court ordered restitution in amounts ranging from $25.00 to $400.00, with two periods of time where he made no payments for two months in a row.

At the violation of probation hearing held in June 2003, Osta’s probation officer testified as to the outstanding restitution balance, to the fact that Osta claimed to have been self-employed at a restaurant for most of his probation period, and that during his probationary period Osta had been issued several permits by the trial court allowing him to travel out of state for business purposes. In addition, the probation officer testified that Osta had signed an offender financial agreement in 2001 agreeing to pay $1,482.90 per month, but that Osta had never made any payments in that amount. He further stated that Osta never made a payment towards restitution in an amount greater than $500.00, and that Osta had never informed him that he was registered with the State as a president, director, or registered agent of sixteen corporations.

Osta was then called to testify. With regards to the sixteen corporations, Osta stated that no business activity was taking place in several of the corporations, and that a few of the businesses had been dissolved. He stated that one of the corporations owned a small lot in Daytona but that all of the corporations were “shell corporations,” and he never conducted business in them. Osta testified that at the time he was placed on probation he and his brother owned two restaurants. Finally, Osta admitted that he had not made a payment on his restitution since May of 2002, claiming he did not believe that he owed the State the money since he was allowed to make meager payments or even skip payments for nearly three years before the affidavit of violation was filed.

In closing argument, the State maintained that it had met its burden of proving that Osta had violated the terms of his probation. The State contended that Osta was a wheeler-dealer who put together shell corporations to hide his ability to pay, and that Osta’s own testimony revealed his failure to make payments was not the result of his inability to pay, but rather his belief that he did not owe the State any money. The State further argued that if Osta could afford to travel out of state, he could afford to pay his restitution. Osta responded by arguing that the State failed to prove that he had the assets to pay the restitution amount. Upon review the trial court adjudicated Osta guilty of violating his probation, finding by a preponderance of the evidence that he did violate probation in that he could have paid much more towards his restitution than he did, and that the violation was willful and substantial. The trial court terminated Osta’s probation, adjudicated him guilty for failing to remit sales tax and grand theft, and sentenced him to three days time served on each count. Additionally, the trial court entered a money judgment for the outstanding restitution balance. This appeal timely followed.

Osta challenges his judgments and sentences claiming that the trial court abused its discretion in finding him guilty of violating his probation because the State failed to present any evidence demonstrating that he had the ability to pay more money towards his restitution than that which he had paid. The State responds that the trial court properly found that Osta had violated his probation by willfully failing to pay his restitution and that Osta failed to carry his burden to establish, by clear and convincing evidence, that he had an inability to pay more restitution. In reply, Osta contends that the State wrongly asserts that he bore the burden of proving his “inability to pay” by clear and convincing evidence, claiming that the law places the burden of proof on the State to bring forth evidence of a probationer’s ability to pay in order to demonstrate willfulness. We agree that the burden of proof is on the State, but conclude that the State met that burden and, therefore, affirm.

Section 948.06(5) of the Florida Statutes provides as follows:

948.06. Violation of probation or community control; revocation; modification; continuance; failure to pay restitution or cost of supervision
* * *
(5) In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. If the probationer or offender cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the state’s interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision.

§ 948.06(5), Fla. Stat. (2002).

Although a plain reading of the statute appears to place the burden of proving ability to pay restitution on the probationer, our courts have held that in order to revoke probation for failure to pay restitution the burden is on the State to prove the “willfulness” of the violation, and in order to prove “willfulness” the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so. See Stephens v. State, 630 So.2d 1090 (Fla.1994)(holding that before person on probation can be imprisoned for failing to make restitution, there must be determination that that person has, or has had, the ability to pay but has willfully refused to do so); Hartzog v. State, 816 So.2d 774 (Fla. 2d DCA 2002)(holding that the State must bring forth evidence of a probationer’s ability to pay restitution to demonstrate the willfulness of the probationer’s failure to pay, which is a necessary element to prove a violation of the condition requiring payment of restitution).The evidence upon which to predicate a revocation of probation must be sufficient to satisfy the conscience of the court that a condition of probation has been violated. King v. State, 817 So.2d 935 (Fla. 5th DCA 2002).

In order to meet its burden of proving that Osta had the ability but willfully refused to pay his restitution, the State presented records of Osta’s extensive travel history while on probation. The requests for travel permits stated that Osta would be accompanied by his girlfriend on nearly all of these trips. Several trips required airfare for two and overnight stays in hotels. The State also presented evidence that Osta was involved in sixteen different corporations acting as either president, registered agent, or director of each. Some money was required to register these corporations with the State of Florida or to renew the registrations. That money could have been used to pay restitution. Since the evidence of record supports a determination that Osta could have used some of the money spent traveling and keeping up his shell corporations to pay restitution, we affirm the trial court’s ruling.

AFFIRMED.

SAWAYA, C.J., and PLEUS, J., concur.


text:
    Luis GARCIA & Enid Perez, Appellant, v. TARMAC AMERICAN INC., etc, Appellee.
    No. 5D03-734.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      Carlos Payas of Payas, Payas & Payas, P.A., Orlando and Carlos R. Diez-Arg-uelles of Attorneys Trial Group, Orlando, for Appellant.
    Rhea P. Grossman of Carman, Beau-champ & Sang, P.A., Boca Raton, for Ap-pellee.
   THOMPSON, J.

Luis Garcia and his wife, Enid Perez (collectively, “Garcia”), appeal a final summary judgment entered in favor of Tarmac American, Inc., d/b/a Silversand Transportation (“Tarmac”). We affirm.

Garcia filed a complaint against Tarmac American, Inc., d/b/a Silversand Transportation, alleging that he sustained injuries on Tarmac’s premises when he tripped over a cement strip that was not painted yellow. At the time of the incident, Garcia was employed as an independent contractor by Aggregates Division, a division of Tarmac and Silversand. After discovery, Tarmac filed a motion for summary judgment alleging that Garcia had executed a release/discharge and surrender of all claims. Attached to the motion for summary judgment was the release, signed by Garcia, which provided that in consideration for payment, Garcia agreed to:

release, discharge and surrender any and all claims whether or not asserted, against the Employer, Aggregate Div. Owner!Operator, or any of its officers, agents, servants, employees, directors, successors, assigns and any other person or entity connected to the Employer or Carrier of any nature whatsoever, without any limitation thereof, including any and all past, present, or future ADA, Title I, and Title VII claims or lawsuits....

(emphasis supplied).

Tarmac argued that summary judgment was warranted because Garcia relinquished his right to sue for his injuries. In a memorandum opposing the motion for summary judgment, Garcia argued that the release was not dispositive because: 1) the release did not name Tarmac America, Inc. or Silversand Corporation and; 2) the scope of the release was ambiguous. Garcia argued that Tarmac and Silversand were not named in the release because he had intended to pursue third-party claims against Tarmac and Silversand for his personal injuries. After a hearing in which sworn affidavits were submitted to show the intent of the parties during the execution of the release, the trial court entered summary judgment in favor of Tarmac.

On appeal, Garcia argues that the trial court inappropriately resolved disputed facts, weighed evidence, and made credibility determinations. We find V & M Erectors, Inc. v. Middlesex Corporation, 867 So.2d 1252 (Fla. 4th DCA 2004), to be instructive and applicable to the instant case:

The standard of review applicable to the question of whether a contract is ambiguous is de novo. Because contract construction is a question of law, the appellate court need not defer to the trial court. In revieioing the trial court’s construction, the appellate court is “guided first by the language of the contract itself and where the contract is clear and unambiguous there is no reason to go further. ” In such a situation, the intent of the parties must be determined from only the four comers of the document, and not parol evidence.

Id. (emphasis supplied) (citations omitted).

In the instant case, Garcia agreed to “release, discharge and surrender any and all claims whether or not asserted, against the Employer, Aggregate Div. Owner/Operator, or any of its officers, agents, servants, employees, directors, successors, assigns and any other person or entity connected to the Employer or Carrier of any nature whatsoever, without any limitation thereof .... (emphasis added)” This language evinces a clear intent to release all entities connected with Aggregate Division, including Tarmac and Sil-versand. Because the release is clear and unambiguous, the intent of the parties was to be considered from the four corners of the document and not through parol evidence.

The summary judgment in favor of Tarmac is AFFIRMED.

PALMER and MONACO, JJ., concur.


author: GRIFFIN, J.

text:
    Thomas SAVAGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3205.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Thomas Savage [“Savage”] appeals his conviction for vehicular manslaughter. He contends that the trial court erred in denying his motion for judgment of acquittal and in failing to grant a continuance of the trial. We find no error and affirm.

On April 18, 1999, at approximately 2:30 a.m., Savage was driving his vehicle westbound on 1-4 near Deltona, Florida. Savage, who was traveling approximately seventy-five miles per hour, turned the wheel sharply in an attempt to avoid colliding with the vehicle in front of him. He ran off the interstate and into the median, where his vehicle struck a signpost on the passenger side and flipped several times. Savage’s girlfriend, Heather Marie Kem-me, was sitting in the passenger seat and was killed almost instantly. Savage’s license had been suspended at the time of incident. Blood was drawn from Savage at the scene, and toxicology tests revealed that Savage had a high level of prescription valium in his bloodstream. Additional testing revealed that Savage also had MDMA, or ecstacy, in his system. Based on the traffic investigation and the toxicology results, he was ultimately charged by information with vehicular manslaughter and DUI manslaughter on March 29, 2001.

The case was set for trial to begin on May 22, 2002, with jury selection to take place two days earlier. Less than ten days before trial, Savage sought to replace his public defender with new private counsel, Ali Kirk. Mr. Kirk presented a written motion for continuance at a May 14 hearing on Savage’s motion to substitute counsel. The written motion asserted that Mr. Kirk would need additional time to prepare to provide an adequate defense to Mr. Savage. The prosecutor opposed any delay because of the age of the case and because the trial court had granted what it said would be its last continuance in early April 2002. He noted that his position had been communicated to Mr. Kirk in a May 3 conversation. He reported that the victim’s mother and two prosecution witnesses who lived out-of-town had already arranged their schedules to be present at the upcoming trial. These witnesses included a toxicologist from Gainesville and an eyewitness from Louisiana who had to get his employer’s approval to attend the trial. The motion for continuance was denied.

In order to reverse this conviction based on the refusal to continue the trial, we must find an abuse of discretion. In making a decision on a continuance motion made by newly substituted counsel, the court must examine the circumstances of the particular case and weigh several factors. We see no abuse of discretion in the trial court’s decision.

Nor was it error to deny Savage’s motion for a judgment of acquittal on the charge of vehicular homicide. The evidence adduced from eyewitnesses produced at trial showed that ten to fifteen minutes prior to the accident Savage was having difficulty controlling his vehicle. He ran off the road on three occasions, as if he had fallen asleep. Although he was able to drive without incident for ten to fifteen minutes, he failed to see a vehicle in front of him or properly gauge its speed when he drove up behind it at a rate of speed which was ten miles per hour higher than the speed limit. To avoid a collision, Savage was obliged to take a sharp evasive maneuver, running off of the road.

Toxicology testing done by the State showed that Savage had both ecstacy and valium in his blood two hours after the accident. One expert testified that the amount of ecstacy found in Savage’s system was a relatively high value typical of a recreational use of the drug. The State’s experts also testified that ecstacy impairs cognition and thinking and can cause deficits in attention. It can also produce visual disturbances, such as trailers and a halo effect, as well as hallucinations. One effect of the drug is increased energy; another is dilated pupils. There was also evidence that mixing other drugs with ec-staey (such as valium) can produce unpredictable results. While the level of the drug found in the blood alone cannot indicate impairment, the State’s experts indicated that impairment can be inferred from the driving pattern exhibited by Savage prior to the crash and his inability to stop when he drove up too quickly behind another vehicle. Savage’s impairment would also explain some of his behavior following the incident.

AFFIRMED.

PETERSON and PALMER, JJ., concur.


author: HAWKES, J. DAVIS, J.,

text:
    AMBECA, INC. d/b/a Long Insurance Agency, Appellant, v. MARINA COVE VILLAGE TOWN-HOME ASSOCIATION, INC., Appellee.
    No. 1D03-3077.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.

      Patrick J. Farrell, Jr. and William D. Horgan; Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellant.
    Gary Lee Printy, Tallahassee, for Appel-lee.
   HAWKES, J.

Appellant, Ambeca, Inc., prevailed in the action below after making a timely offer of judgment. As the prevailing party, Appellant moved to tax fees and costs pursuant to the offer of judgment statute, section 768.79 Florida Statutes, (2002) and Rule 1.442, Fla. R. Civ. P. The trial court denied Appellant’s motion, concluding the offer of judgment required a release for issues not raised within the scope of the pleadings. We review a trial court’s ruling on a motion to tax attorney’s fees and costs pursuant to the offer of judgment statute de novo. See Connell v. Floyd, 866 So.2d 90 (Fla. 1st DCA 2004). We reverse.

The trial court is correct that an offer of judgment conditioned on a plaintiff relinquishing its right to sue for causes of action that may accrue in the future based on unrelated facts and events that have not yet occurred, would not give rise to an entitlement to fees and costs, even if the offeree prevailed. See Zalis v. M.E.J. Rich Corp., 797 So.2d 1289, 1290 (Fla 4th DCA 2001). However, a release that contains broad, expansive language, is not, per se, invalid. See generally Bd. of Trustees of Fla. Atl. University v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003). In Bow man■, an offer of judgment was conditioned on a general release which settled the claims “which said first party ever had, now has, or which any personal representative, successor, heir or assign of said First Party, hereafter can, shall or may have, against said Second Party, for, upon or by reason of any matter, cause or thing whatsoever, known and unknown, foreseen and unforeseen, from the beginning of the world to the day of these presents, ...” and contained additional language to settle “any and all claims which were raised in this action by any party against any other party.” See id. at 508-509. The Bowman court concluded the language, although expansive, is typical of other general releases and is clear and unambiguous. See id. at 509.

In the case at bar, the contested language provided:

If accepted, this proposal for settlement shall settle all claims asserted in this cause against [Appellant], as well as any other claims which [Marina Cove] might otherwise have or assert against [Appellant], including punitive damages. The amount specified in this proposal for settlement includes all costs, interest, or other expenses and attorney’s fees accrued to date. (Emphasis added).

It is the highlighted language that appears to have caused the trial court the most concern. However, this language is distinguishable from that used in Zalis, in that Zalis expressly provided any claim arising in the future would be extinguished, whereas this language does not expressly extinguish potential future claims. Instead, the language in this release is in the present-tense. As such, the release only applies to claims asserted in the instant proceeding, and those Marina Cove “might otherwise have” or currently possess, and, although inartfully worded, claims which would be barred by res judi-cata (i.e., those that could have been brought in the instant litigation under the existing facts). That the release specifically lists punitive damages in the “any other claims” language further indicates it does not attempt to reach future unrelated causes of action. A claim for punitive damages may only be brought in an existing case after an evidentiary hearing and leave of court, based on the facts of the pending litigation. The parties may frequently decide to settle a case before the court has ruled on a motion to plead punitive damages. Strategic considerations are made by both parties, but any release executed as a consequence of a settlement would certainly include the potential un-pled claim for punitive damages. Here, although the language may require releases for claims not raised or set forth in the pleadings, it does so only to the extent those claims would arise from the facts giving rise to the underlying litigation.

Because the release language does not contain an invalid obligation to relinquish rights on future causes of action based on facts that have not occurred, it was a valid offer of judgment pursuant to section 768.79, Florida Statutes. The trial court erred by denying Appellant’s motion for attorney’s fees and costs.

REVERSED.

VAN NORTWICK, J., concurs; DAVIS, J., dissents with opinion.

DAVIS, J.,

dissenting.

I respectfully dissent. The trial court denied the appellant’s motion to tax attorneys’ fees and costs on the basis that “the language included in the proposal required actions or releases on behalf of the appel-lee over and above the issues raised by the pleadings in this case.” I believe that the trial court is correct that the language employed in the offer of judgment in the present case is too ambiguous to conclude that future claims based on unrelated facts are definitely excluded. Accordingly, I would affirm.


author: BROWNING, J.

text:
    Saundra L. BLODGETT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-3678.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Pro se, for Appellant.
    John D. Maher, Tallahassee, for Appellee.
   BROWNING, J.

Saundra L. Blodgett (Appellant) appeals an order of the Unemployment Appeals Commission (UAC) denying her unemployment benefits. Appellant argues that UAC’s order should be reversed because she did not commit misconduct as defined by section 443.036(29), Florida Statutes (2002). We agree and reverse.

On September 5, 2002, Appellant went on leave from her employment under the Federal Medical Leave Act (FMLA) due to complications with her pregnancy. Because she was not expected to give birth until December 27, 2002, Appellant planned to take three months of personal leave after her FMLA leave expired on November 28, 2002. Appellant was instructed to submit a written request for each 30-day period of personal leave. Personal leave was to be granted 30 days at a time. Appellant received leave forms from her employer on December 20, 2002. Appellant’s employer advised her that her leave would expire on December 28, 2002, and that failure to return the leave forms may jeopardize her job.

Appellant gave the leave forms to her doctor to fill out on December 23, 2002, when she had an appointment. Although the paperwork was completed on January 3, 2003, Appellant was unable to pick up and mail the forms to her employer until January 14, 2003, because she was not medically released to drive until that date. Appellant was discharged on January 14, 2003, for failure to request personal leave. At the hearing conducted on whether Appellant was entitled to unemployment benefits, the hearing officer determined that, because Appellant’s actions constituted misconduct, she was not entitled to benefits. The UAC affirmed this determination.

Section 443.036(29), Florida Statutes (2002), defines misconduct as

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

An employee’s actions sufficient to justify discharge from employment do not necessarily constitute misconduct sufficient to bar recovery of unemployment benefits. McCarty v. Florida Unemployment Appeals Comm’n, 878 So.2d 432, 2004 WL 1531741 (Fla. 1st DCA July 9, 2004). As applied to attendance, this level of misconduct is presumed when an employer shows proof of “excessive unauthorized absenteeism”; the burden then shifts to the employee to refute this presumption. Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000). A court must consider an employee’s entire course of conduct surrounding the absences; proof of one act is insufficient to demonstrate excessive unauthorized absenteeism. Id. Courts must construe the statute liberally in favor of the employee. Id. at 655.

Under a liberal construction of section 443.036, Appellant did not commit misconduct. Although Appellant did have excessive unauthorized absences, Appellant successfully rebutted the presumption that the absences constituted misconduct as defined by statute. Appellant’s attempts to comply with the requirements of her employer demonstrate that her conduct did not rise to the level of willful or deliberate disregard of her employer’s interests. Cf. C.F. Indus. Inc. v. Long, 364 So.2d 864, 865 (Fla. 2d DCA 1978) (no recovery of unemployment benefits where employee had a record of “twenty-two separate instances of excessive tardiness, excessive absenteeism, violation of safety rules, failure to report an accident involving injury, and unsatisfactory performance”). Unlike other decisions upholding the denial of unemployment compensation because of absenteeism, Appellant was not being dishonest, was not malingering, and was unable to work for health reasons. See Mason, 758 So.2d at 652 (misconduct found where employee was late or absent more times in four-month period than would be allowed in a year, and continued to be late after suspension); Renaud v. Precision Response Corp., 773 So.2d 1226 (Fla. 3d DCA 2000) (misconduct found where employee took afternoon off as sick leave rather than vacation time because she did not want to use vacation time, and was late); Clay County Sheriff’s Office v. Loos, 570 So.2d 394 (Fla. 1st DCA 1990) (misconduct where employee was absent once to attend radar class, notwithstanding employer’s denial of request to take class, and where there was no evidence that employee believed he had permission). Appellant’s repeated absences for health reasons may be grounds for discharge but do not constitute misconduct sufficient to preclude receipt of unemployment benefits. See Franklin v. Unemployment Appeals Comm’n, 841 So.2d 682 (Fla. 2d DCA 2003); Hoyos v. Wal-Mart Assoc. Inc., 844 So.2d 779 (Fla. 3d DCA 2003). Moreover, Appellee was aware that Appellant was medically unable to work, and Appellee was not prejudiced by Appellant’s expected absence. Appellee was merely inconvenienced by Appellant’s late-filed paperwork reflecting her medical condition, which was well-known to Appellee. This does not constitute misconduct.

REVERSED and REMANDED, with instructions to enter an award of unemployment benefits to Appellant.

BENTON and POLSTON, JJ., concur.


author: WOLF, C.J.

text:
    Waty RYLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4976.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Appellant, Waty Ryland, appeals from the denial of his rule 3.850 motion for post-conviction relief which asserted nine grounds. The trial court summarily denied the motion, holding that all claims were either procedurally barred or conclusively refuted by the record. We affirm as to all but one of the grounds raised.

Appellant’s seventh ground alleged that his trial counsel failed to file a notice of expiration of speedy trial time and that his trial occurred well after the 175-day period prescribed by Florida Rule of Criminal Procedure 3.191. He also alleged that his co-defendants were arrested and charged after his speedy trial period began and that his trial counsel inexplicably failed to demand a speedy trial. He alleged that he was prejudiced by his counsel’s inaction because it (1) precluded his discharge; (2) allowed the state to broker a deal with a co-defendant, which resulted in detrimental testimony against him; and (3) allowed him to be tried with co-defendants who also provided prejudicial testimony. Nothing in the record attached by the trial court “conclusively shows either that the delay was attributable to any action on the part of appellant or that appellant was otherwise not entitled to discharge under Rule 3.191.” Burke v. State, 855 So.2d 207, 208 (Fla. 1st DCA 2003). Because appellant specifically alleged a deficient performance of his counsel and that there was a reasonable probability of a different outcome in the absence of the deficient performance, appellant has stated a facially valid claim of ineffective assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

As to all grounds raised except the seventh, the trial court’s order is affirmed. As to this ground, the order is reversed and remanded with directions either to attach portions of the record conclusively refuting appellant’s entitlement to relief or to hold an evidentiary hearing.

. AFFIRMED IN PART; REVERSED IN PART; and REMANDED with directions.

KAHN and LEWIS, JJ„ concur.


author: PER CURIAM.

text:
    Paul LYDOLPH, III, Appellant, v. R. Guy DAVIDSON, III, Karen Davidson, Louis S. Opielinski, Alice R. Opielinski f/k/a Alice R. Little, Michele W. Steiner, Charles Deming Fish, Martha Rhys Fish, and Choctawhatchee Electric Cooperative, Inc., a Florida Corporation, Appellees.
    No. 1D04-2083.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.

      Appellant, pro se.
    Dana C. Matthews, Destín; H. Bart Fleet, Shalimar; Scott Campbell, Santa Rosa Beach; Shannon Porath, Santa Rosa Beach; and E. Allan Ramey, Defuniak Springs, for Appellees.
   PER CURIAM.

Having considered appellant’s “Objection to Motion to Dismiss,” filed on June 28, 2004, which we treat as a response to our order to show cause, issued on May 26, 2004, this appeal is hereby dismissed as premature. See Dep’t of Children & Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999). Additionally, the nonfinal order determining entitlement to attorneys’ fees is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(I). Fisher v. Int'l Longshoremen’s Ass’n, 827 So.2d 1096 (Fla. 1st DCA 2002).

Appellees’ motion to dismiss, filed on May 25, 2004, is denied as moot. Appel-lees’ motion for attorneys’ fees, filed on May 25, 2004, is also denied. Cf. Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649 (Fla. 1st DCA 2004).

BOOTH, WEBSTER and DAVIS, JJ., concur.


author: PER CURIAM. WOLF, C.J.,

text:
    Michael HUFFMAN, Appellant, v. Mary CARR, Appellee.
    No. 1D03-1919.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    J. Michael Blackstone of J. Michael Blackstone, P.A., Crystal River, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Michael Huffman appeals a final judgment of paternity contending that he did not receive proper notice of the trial. He attended a pretrial conference in which he admitted that he was the father of the child. The notice of the pretrial conference informs the parties that the court will treat the pretrial as a final hearing if the parties are in complete agreement regarding the disposition of the case. Mr. Huffman argues on appeal that his agreement pertained only to the issue of paternity and that the trial judge therefore erred in resolving child residency, support, and all other issues at the pretrial conference.

The right to proper notice of a trial can be waived by a failure to object in the trial court. We must affirm the final judgment in this case, because we have not been supplied with a transcript of the pretrial conference. In the absence of a record, we have no way of knowing whether Mr. Huffman objected to the lack of proper notice on any issue he did not intend to concede.

PADOVANO and POLSTON, JJ., concur. WOLF, C.J., dissents with opinion.

WOLF, C.J.,

Dissenting with opinion.

On the record before us, we should remand to the trial court to reconsider appellant’s request for rehearing. I believe the trial court should be required to address appellant’s claim of improper notice.

It is undisputed that the notice of the pre-trial hearing for November 5, 2002, stated that a final hearing would only occur if there was “a complete settlement of all the issues.” Appellant asserts that the only issue which was resolved prior to the hearing was paternity. The final order entered after the hearing addresses custody and support, but it gives no indication that these issues were resolved prior to the hearing.

Appellant filed a motion for rehearing which asserted the following:

5. After the Pre-Trial Conference the court entered a Final Judgment of Paternity on November 7, 2002.
6. At no time was the respondent aware that the hearing noticed as a PreTrial Conference had changed into a Final Hearing.
7. The respondent believes that he had legitimate defenses to the claims of the petitioner which he was unable to present because of the unexpected change in the nature of the scheduled Pre-Trial Conference.
8. The respondent was unable to procure counsel for a trial on the issues raised in the petition because the PreTrial Conference unexpectedly took on the character of a Final Hearing on the merits of the case.
9. The surprise change in the Pre-Trial Conference prevented the respondent from being prepared to explain his financial situation so that the court could properly calculate child support.

Appellee’s response to appellant’s motion for rehearing simply asserted that the original notice was sufficient to apprise appellant that a final hearing might take place. That assertion is clearly refuted by the record. It was never asserted that appellant waived notice, nor does the order denying rehearing indicate that appellant waived proper notice.

The majority affirms because of the lack of a transcript of the pre-trial hearing and the possibility of waiver. If appellant was challenging a substantive factual determination made at the hearing, I would be in total agreement with the majority’s position. The record before us, however, raises sufficient issues concerning procedural fairness to require further proceedings in this case.

      . This pro se appellant may have not been aware of the necessity of having a court reporter present for a hearing he did not believe would address substantive matters concerning the remaining disputed issues.

      . Appellant was afforded an opportunity to amend the record pursuant to Rule 9.200(f)(2), but failed to do so. I applaud the majority for making this effort, but I am still concerned that this record sufficiently raises due process considerations, requiring the trial court to address the issue of improper notice.


text:
    Wanda and Eric TEAT, Appellants, v. CITY OF APALACHICOLA, Appellee.
    No. 1D03-3260.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Randall E. Denker, Esq. of Denker Law Office, Bradfordville, for Appellants.

      Susan K. Spurgeon, Esq. and John C. Pelham, Esq. of Pennington, Moore, Wilkinson, Bell and Dunbar, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellants, Wanda and Eric Teat, seek review of the trial court’s Order on Petition for Attorney’s Fees, raising six issues on appeal. In their first issue, appellants contend that the trial court reversibly erred in failing to specify the number of hours and the hourly rate it used in calculating their attorneys’ fee award. Although there is competent, substantial evidence in the record to support the award of attorneys’ fees, it is well established that a trial court is required to set forth specific findings regarding the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as mandated by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). See, e.g., T.G.G. v. P.M.L., 661 So.2d 351, 351 (Fla. 1st DCA 1995) (reversing the judgment of attorney’s fees and costs because the trial court failed to make a specific finding, “which is mandatory,” regarding the number of hours the appel-lee’s counsel reasonably expended in the case and holding that a case must be reversed for further proceedings if a court fails to set forth the specific findings required by Rowe “[e]ven when there is competent, substantial evidence in the record to support a court’s award of attorney’s fees”); Jones v. Assocs. Fin. Inc., 565 So.2d 394, 394 (Fla. 1st DCA 1990) (holding that the supreme court’s opinion in Rowe requires the trial court to make specific findings of fact as to the reasonable number of hours expended, the normal hourly rate, and the appropriateness of increasing or decreasing the lodestar and that the failure to make the requisite findings constitutes reversible error); Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990) (reversing the trial court’s attorney’s fee award notwithstanding the fact that there appeared to be competent, substantial evidence to support the award because the presence of such evidence does not obviate the need for the specific findings); Manuel v. Manuel, 498 So.2d 1369, 1370 (Fla. 1st DCA 1986) (reversing the trial court’s order awarding attorney’s fees for failure to set forth the specific findings mandated by Rowe notwithstanding the fact that the record appeared to contain sufficient evidence to support the trial court’s award). Because the trial court failed to set forth the required findings in its order, we reverse the court’s order with respect to the amount of fees awarded and remand for the purpose of making the necessary findings. We otherwise affirm.

AFFIRMED in part; REVERSED in part and REMANDED.

KAHN and LEWIS, JJ., CONCUR; WOLF, C.J., SPECIALLY CONCURS WITH WRITTEN OPINION.

WOLF, C.J.,

specially concurring with

opinion.

In T.G.G. v. P.M.L., 661 So.2d 351 (Fla. 1st DCA 1995), we held that reversal of an order awarding attorney’s fees is required when the court fails to make specific findings regarding the hours reasonably expended “[ejven when there is competent substantial evidence in the record to support a court’s award of attorney’s fees.” Id. at 351. This holding, however, should not be read to preclude the application of section 59.041, Florida Statutes, and the harmless error analysis under the appropriate circumstances. See Civile v. Civile; 600 So.2d 51 (Fla. 3d DCA 1992); Reis v. Reis, 739 So.2d 704 (Fla. 3d DCA 1999). In Powerhouse, Inc. v. Walton, 557 So.2d 186 (Fla. 1st DCA 1990), we recognized that appellate courts are mandated to perform a harmless error analysis by section 59.041, Florida Statutes, and reversal should only occur if there is a reasonable probability the result would have been different if the error had not occurred. Id. at 187. Pursuant to this rule we have applied the harmless error analysis to cases where a trial court failed to make required factual findings. See, e.g., Vaughn v. Vaughn, 714 So.2d 632 (Fla. 1st DCA 1998). Thus, if the record both contains substantial competent evidence to support the trial court’s determination regarding attorney’s fees and demonstrates no reasonable probability that the failure to make factual findings effected the result, affirmance would be required. See Walton, 557 So.2d at 186; Parker v. Hoppock, 695 So.2d 424 (Fla. 4th DCA 1997).

In the instant case there is competent substantial evidence to support a number of the reasons stated by the judge for awarding a fee that was lower than requested, including that “[t]here was excessive hours spent on this matter by attorneys representing both sides in this controversy because of the uncooperative attitude.” It is unclear, however, whether the trial judge made an arbitrary reduction based solely on his exasperation with the attorneys rather than a reasoned determination concerning the reasonable hours expended on the ease. I am, therefore, constrained to concur in the reversal of the order awarding fees.


text:
    Robert Henry GRIFFIN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4629.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Robert Henry Griffin, Jr., pro se, petitioner.
    Charlie Crist, Attorney General, and Trisha Meggs Pate and Linda Horton Dodson, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to rule on petitioner’s pending motion for post conviction relief. We withhold issuance of the writ, being confident' that the trial court will rule forthwith on the pending motion and will take such further action as is required in a timely manner.

BENTON, BROWNING and POLSTON, JJ., concur.


author: VAN NORTWICK, J.

text:
    Lewis PURIFOY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3896.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Nancy A. Daniels, Public Defender and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Lewis Purifoy appeals his convictions for battery on a law enforcement officer and resisting arrest with violence, contending the trial court erred in refusing to allow the surrebuttal testimony of his wife which would have contradicted the testimony of the state’s rebuttal witness, Sergeant Jones. We reverse and remand for a new trial.

Surrebuttal testimony is admissible in Florida to refute new testimony which is brought out by the state’s rebuttal witness. Reaves v. State, 531 So.2d 401 (Fla. 5th DCA 1988); compare Rose v. Madden & McClure Grove Service, 629 So.2d 234, 236 (Fla. 1st DCA 1993)(“If new points are brought out during plaintiffs rebuttal, the defendant may meet them by evidence in rejoinder, otherwise known as surrebuttal.”). The record reflects that the trial court erroneously viewed appellant’s request to present a surrebuttal witness as an impermissible attempt to reopen his case. Accordingly, although recognizing the trial court’s discretion in matters such as this, Frazier v. State, 761 So.2d 337, 340 (Fla. 4th DCA 1999), we are compelled to reverse because the trial court erred as a matter of law when it treated appellant’s request for surrebuttal testimony as a request to reopen his case. Reaves v. State, 531 So.2d at 402. Further, while improper restriction of surre-buttal testimony is subject to a harmless error analysis, Hovik v. State, 737 So.2d 1207, 1208 (Fla. 5th DCA 1999), here the error was not harmless. This was a highly contested case with contradictory testimony. Sergeant Jones’ testimony concerning appellant’s admission, which Mrs. Purifoy would have refuted in her surrebuttal testimony, may well have swayed the jury to return the verdict against appellant. Reaves, 531 So.2d at 403.

REVERSED.

WEBSTER and POLSTON, JJ., CONCUR.


author: PLEUS, J.

text:
    Garland HOGAN, Appellant, v. Donald GARCEAU and Charlotte E. Garceau, Appellees.
    No. 5D04-436.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    Garland Hogan, Coleman, pro se.
    Kimberly A. Schulte, Leesburg, for Ap-pellees.
   PLEUS, J.

This is an appeal of a final judgment of default. We conclude that the lower court erred in entering a final judgment of default against Hogan because the complaint failed to make any allegations against him, much less allege a cause of action. Accordingly, we vacate the final judgment of default and remand for further proceedings.

Hogan was served with a copy of the complaint on October 1, 2003. The caption of the complaint listed nine defendants, including Hogan. Hogan’s name is never again mentioned in the complaint. He is not mentioned in the introductory paragraph, general allegations or any of the five counts. Hogan admits that he was validly served and that he failed to file an answer within the required time limit.

The appellees filed a request to enter a default and the clerk of court entered a default on October 29, 2003. They then filed a motion for final default judgment against Hogan in the amount of $111,422.50 plus attorney’s fees and costs. On December 3, Hogan filed his opposition to the motion for default judgment and motion to dismiss the complaint. Both of these pleadings were grounded on the fact that the appellees failed to make any allegations in the complaint against Hogan.

The lower court entered a final default judgment against Hogan on December 29, 2003. In the default judgment, the court indicated that it had conducted a hearing on the motion for default judgment on December 16, and was aware of Hogan’s motions to dismiss and opposition to the motion for default judgment. Nevertheless, the court entered judgment against Hogan in the amount of $111,422.50.

Hogan correctly argues that the lower court erred in entering a final default judgment against him where the complaint failed to allege any allegations against him, much less allege a cause of action. In Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989), the court held that the failure to state a cause of action is a fatal pleading deficiency not curable by a default judgment. See also Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374 (Fla. 4th DCA 1987) (holding that party obtaining a default judgment is only entitled to the relief prayed for in complaint). Both of these cases contain quotes from Trawick’s Florida Practice and Procedure § 25-4, which states:

A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings but forced inferences will not. The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on the limitations.

(Footnotes omitted).

The appellees argue only that the lower court properly entered the default judgment because Hogan failed to file an answer within 20 days and failed to file a motion to set aside the default, citing Colby Materials, Inc. v. Caldwell Constr., Inc., 868 So.2d 584 (Fla. 5th DCA 2004). In Colby, this Court held that the burden is on the appellant to show that the trial court erred in granting a default judgment. This Court found that Colby failed to meet that burden because it failed to file any affidavits or a transcript of the hearing on the motion for default. While Colby is certainly a correct statement of the law, it does not supersede the requirement that a default judgment must be based on well pleaded facts establishing liability against a defendant in default. Therefore, the default judgment was entered in error.

FINAL JUDGMENT VACATED; REMANDED.

THOMPSON and MONACO, JJ., concur.


text:
    Suzanne DEERE, Appellant, v. SARASOTA COUNTY SCHOOL BOARD and Integrated Administrators, Inc., Appellees.
    No. 1D03-2714.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Keith A. Mann, Sarasota, for Appellant.
    Ben Cristal, of Sponsler, Bennett, Jacobs & Cristal, P.A., Tampa, for Appellees.
   BROWNING, J.

We reverse the order denying workers’ compensation benefits on the ground that the statute of limitations had run because the JCC did not consider Appellant’s es-toppel argument.

Appellant was at work as a pre-kinder-garten aide on October 27, 1999, when she tripped over toys and hurt her lower back. She made a timely application for workers’ compensation and was authorized for treatment with at least three doctors. The three found her to have reached maximum medical improvement by April 26, 2000. On June 1, 2000, Appellant was involved in a car accident. In January 2001, she visited one of her previously authorized doctors to find out whether her compensable injury had been aggravated by the car accident; the doctor refused to examine her because she had been in a subsequent intervening accident. Thereafter, Appellant allegedly called senior claims adjuster Marjorie Lane and spoke to Lane or her nurse; when Appellant asked what to do next, she was told “there is nothing we can do now.”

On October 4, 2002, Appellant filed a petition for workers’ compensation benefits; the employer/earrier (E/C) put forth a statute of limitations defense in denying authorization. On November 8, 2002, Appellant filed a second petition for benefits; the record does not contain a response to this second petition. After a hearing, the JCC denied benefits on the ground that Appellant’s petitions were barred by the expiration of the time set forth in the statute of limitations. Appellant is entitled to reversal and remand because the JCC failed to address her argument that the E/C was estopped from denying benefits on that basis because of its advice to her that “there is nothing we can do now.”

Appellant’s petition was untimely under ' section 440.19, Florida Statutes (2002), because her claim was made more than two years after her injury and more than one year after her last receipt of benefits. However, section 440.19(4) provides that an E/C may be estopped from raising a statute of limitations defense. Because the E/C complied with the notice requirements of sections 440.185 and 440.055, Florida Statutes, Appellant can demonstrate estoppel only by proof that is clear and convincing. See § 440.19(4); Crutcher v. Sch. Bd. of Broward County, 834 So.2d 228 (Fla. 1st DCA 2002). To demonstrate estoppel, Appellant must show that (1) the E/C misrepresented a material fact; (2) Appellant relied on the misrepresentation; and (3) Appellant changed her position to her detriment because of the misrepresentation. See Regency Elec. Co. v. Honrath, 673 So.2d 897 (Fla. 1st DCA 1996). Appellant’s allegations of estoppel are facially sufficient and should have been considered by the JCC.

Where an E/C misleads a claimant about his or her rights or availability of workers’ compensation, even unintentionally, resulting in the claimant’s failure to file a timely claim, the E/C will be estopped from denying benefits. Raymond v. Rapid Express Parcel Delivery of Tampa, 548 So.2d 278 (Fla. 1st DCA 1989). Because the JCC failed to consider whether Appellant demonstrated estoppel, we REVERSE the denial of the petition for benefits and REMAND for the JCC to make such a determination.

BENTON and POLSTON, JJ. concur.


author: BENTON, J.

text:
    Michael MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3880.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.

      Robert Augustus Harper, Esquire and Michael Robert Ufferman, Esquire of the Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Michael Moore appeals the order designating him a sexual predator in accordance with the Florida Sexual Predators Act, section 775.21, Florida Statutes (2003). He contends that the Act is unconstitutional in several ways, and argues that the trial court lost jurisdiction to enter the order once sixty days had elapsed after sentencing. We uphold the order.

We find no violation of state or federal procedural due process, on the authority of Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003), review pending, No. SC03-2219 (Fla. Dec.18, 2003). Contra Espindo-la v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), review pending, No. SC03-2103 (Fla. Nov. 10, 2003). Likewise on the authority of Therrien, we reject appellant’s contention that the Act violates the separation of powers clause in article II, section 3, of the Florida Constitution. See Therrien, 859 So.2d at 586-87.

Mr. Moore also argues that the Act runs afoul of a right to privacy which he contends is part of his state and federal rights to substantive due process, as well as explicitly guaranteed under article I, section 23, of the Florida Constitution. The Act requires dissemination of certain information about sexual predators, to be sure. See § 775.21(7)(a), Fla. Stat. (2003) (“Information provided to members of the community and the public regarding a sexual predator must include: 1. The name of the sexual predator; 2. A description of the sexual predator, including a photograph; 3. The sexual predator’s current address, including the name of the county or municipality if known; 4. The circumstances of the sexual predator’s offense or offenses; and 5. Whether the victim of the sexual predator’s offense or offenses was, at the time of the offense, a minor or an adult.”). But this information is public, not private. See Johnson v. State, 795 So.2d 82, 87-88 (Fla. 5th DCA 2000) (“[T]he information collected and disseminated as a result of sexual offender status [the sexual offender’s name, physical description, residential address, date and place of each conviction, and a brief description of the crime or crimes committed, see § 943.0435(2)(b), Fla. Stat. (2003)] is public information to which the public is entitled to access.”). Even if a sexual predator’s address can be viewed as nonpublic information, its dissemination under the Act does not violate the sexual predator’s constitutional right to privacy. See Reyes v. State, 854 So.2d 816, 818 (Fla. 4th DCA 2003) (“[T]he stated and patent public purpose of the Act is a sufficiently compelling state interest justifying such an intrusion on privacy.”).

As his last constitutional point, Mr. Moore contends that the Act violates state and federal equal protection requirements because it does not apply to offenders whose offenses took place before October 1, 1993. But “it is not a requirement of equal protection that every statutory classification be all-inclusive.” Westerheide v. State, 831 So.2d 93, 112 (Fla.2002). We are “ ‘not ... concerned with whether the particular legislation in question is the most prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended.... If there is a legitimate state interest which the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld.’ ” State v. Walker, 444 So.2d 1137, 1138-39 (Fla. 2d DCA 1984) (quoting Patch Enters., Inc. v. McCall, 447 F.Supp. 1075, 1081 (M.D.Fla.1978)). The Act does not violate equal protection requirements and the decision in State v. Erickson, 852 So.2d 289, 290 n. 1 (Fla. 5th DCA 2003), does not hold otherwise.

Finally, Mr. Moore argues that Florida Rule of Criminal Procedure 3.800(c) divested the trial court of jurisdiction to enter the order designating him a sexual predator. See Fla. R.Crim. P. 3.800(c) (“A court may reduce or modify ... a legal sentence imposed by it within 60 days after the imposition.... ”). Whether or not Rule 3.800(a) or (b) is available in other circumstances to remedy an erroneous designation, compare Nicholson v. State, 846 So.2d 1217, 1218-19 (Fla. 5th DCA 2003), with Coblentz v. State, 775 So.2d 359, 360 (Fla. 2d DCA 2000), Rule 3.800(c) plainly has to do with the reduction and modification of sentences, and does not govern a post-sentence designation under the Act. See Fletcher v. State, 699 So.2d 346, 346-47 (Fla. 5th DCA 1997) (holding designation of sexual predators more than 60 days after imposition of sentences was not an impermissible modification of their sentences in violation of Rule 3.800); see also State v. Galloway, 721 So.2d 1197, 1198 (Fla. 1st DCA 1998) (“[A] trial court [has] the power to impose sexual predator status post-sentencing under [the Act].”); Walker v. State, 718 So.2d 217, 218 (Fla. 4th DCA 1998) (upholding trial court’s grant of State’s motion to declare Walker a sexual predator several months after Walker’s sentencing on ground that sexual predator designation is not a sentence but simply recognition of a status).

Affirmed.

BROWNING and POLSTON, JJ., CONCUR.


text:
    Ozell McNABB, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0595.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order revoking appellant’s probation and sentencing him to a term of imprisonment. He argues the trial court committed reversible error by assuming the role of prosecutor in conducting an examination of appellant’s probation officer during the violation of probation (VOP) proceeding relating to the explanations given by the officer to appellant pertaining to his duty to report to the probation office following appellant’s release from custody. The examination was made for the purpose, in the court’s words, of laying a “proper predicate” for the admission of the officer’s instruction sheet, which had been signed by appellant.

While we agree with appellant that the lower court’s conduct in such regard appears to cross the line between neutral arbiter and prosecutor, compare Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002), nevertheless, we conclude the error was harmless. During direct examination of the probation officer, the assistant state attorney elicited testimony concerning the officer’s contact with, and instructions to, appellant concerning appellant’s responsibility to report to the probation office immediately upon his release from the county jail. Thereafter, on cross-examination, defense counsel made inquiries concerning the document, which the state subsequently sought to have admitted on re-direct. When defense counsel objected to its introduction, the trial court sua sponte laid a predicate for the document’s admission, then returned the examination to the prosecutor.

Because the probation officer’s testimony established, independently from the questioning of the court, that appellant’s failure to report to the probation office was knowing and willful, the revocation of appellant’s probation and sentence is

AFFIRMED.

ERVIN, ALLEN and HAWKES, JJ., CONCUR.


text:
    James Richard MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3255.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2004..
    James Richard Mitchell, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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