author: SAWAYA, J. PALMER, C.J.,

text:
    Margaret M. QUARANTELLO, etc., Appellant, v. David T. LEROY, Terry Leroy, etc., et al., Appellees.
    No. 5D06-2340.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Rehearing Denied March 31, 2008.

      Brian T. Wilson, of Dellecker Wilson King McKenna & Ruffier, A Limited Liability Partnership, Orlando, and Stephan W. Carter, Maitland, for Appellant.
    Angela C. Flowers, of Kubicki. Draper, Ocala, for Appellees.
   SAWAYA, J.

We are called upon to interpret the meaning of section 316.613(3), Florida Statutes (1999), which states that “[t]he failure to 'provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence.” This particular provision is part of a broader statutory scheme intended to protect children five years of age or younger from injury in automobile accidents by requiring that they be secured in a proper child passenger restraint. § 316.613, Fla. Stat. (1999). The issue we must resolve, which appears to be a matter of first impression, is whether section 316.613(3) prohibits introduction of any evidence of failure to provide and use a proper child passenger restraint in a negligence action brought by an injured child against a caretaker who allegedly failed to secure the child in such a device prior to the automobile accident that caused the injuries. We conclude that it does not and reverse the summary judgment entered in favor of the caretaker.

Margaret Quarantello, as court-appointed guardian of Alexander Swope, brought a personal injury action against Terry Leroy, Alexander’s maternal grandmother, to recover damages for injuries the child sustained in a motor vehicle accident that occurred on November 15, 1999. At the time of the accident, Alexander was eleven months old, and he was under the care of Mrs. Leroy. Mrs. Leroy placed Alexander into a child booster seat in the backseat of her car in preparation for a drive. Mrs. Leroy and Alexander were both passengers in the vehicle, which was driven by Mrs. Leroy’s husband, David Leroy. When the Leroys’ vehicle collided with a vehicle driven by Frederick Lindsey, Alexander was thrown from the booster seat and sustained severe injuries, including quadriplegia.

Mrs. Quarantello filed an amended complaint alleging in Count IV that Mrs. Leroy was negligent because she breached a common law duty to use reasonable care in earing for the child — the complaint did not allege breach of a duty of care created by section 316.613, Florida Statutes (1999). In order to meet her burden of proof, Mrs. Quarantello intended to introduce evidence that Mrs. Leroy failed to use a proper child passenger restraint to ensure that Alexander was transported safely. Specifically, Mrs. Quarantello contended that the booster seat in which Alexander was placed was designed for older children and that the appropriate restraint device would have been an infant safety seat. This allegation is in direct reference to section 316.613(1), Florida Statutes (1999), which provides that “[f]or children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer’s integrated child seat.” She claimed Alexander’s mother had provided Mrs. Leroy with an appropriate infant seat and that Mrs. Leroy failed to use it.

Mrs. Leroy filed a motion for partial summary judgment, arguing that section 316.613(3), Florida Statutes, prohibits introduction of any evidence that she failed to provide or use an appropriate child passenger restraint. In essence, she contended that the statute provides her with immunity from any negligence suit where evidence of failure to provide or use an appropriate child passenger restraint is attempted to be introduced. She further argued that Mrs. Quarantello’s action was predicated solely on the admission of this prohibited evidence and that summary judgment should therefore be entered in her favor. The trial court agreed and entered the judgment we now review. Mrs. Quarantello appeals, contending that section 316.613(3), Florida Statutes, only bars evidence of comparative negligence and similar evidence of negligence that can be used to reduce an injured child’s recovery.

Because the issue we address presents a question of law, the standard for reviewing the trial court’s ruling on the motion for partial summary judgment is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071,1074 (Fla.2001) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.”); see also GTC, Inc. v. Edgar, 967 So.2d 781 (Fla.2007) (“Generally speaking, statutory interpretation is a question of law subject to de novo review.” (citing BellSouth Telecomm., Inc. v. Meeks, 868 So.2d 287, 289 (Fla.2003))).

The courts have compiled a cata-logue of rules of statutory construction to provide guidance when determining the meaning of a statute. Of these, we first apply the preeminent rule that legislative intent is the most important factor that informs our analysis. See Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla.2004) (“It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.”). Because legislative intent is determined primarily from the text of the statute, we begin our analysis of section 316.613(3), as we do in any case of statutory interpretation, with the “actual language” used by the Legislature. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007); Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). If it is clear and unambiguous, we proceed no further and apply the provisions as written. See Foley v. State, 50 So.2d 179, 184 (Fla.1951).

We do not believe that section 316.613(3) is an exemplar of good legislative draftsmanship. The statute is poorly worded and ambiguous — it is unclear from the text whether the statute prohibits admission of any and all evidence of failure to use a child passenger restraint or whether it simply prohibits evidence of comparative negligence and similar evidence of negligence that may be used to reduce an injured child’s recovery. The first phrase of section 316.613(3) states that “[t]he failure to provide and use a child passenger restraint shall not be considered comparative negligence,” and the very next phrase provides, “nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence.” The conclusion reached by the trial court and advanced by Mrs. Leroy as the correct interpretation literally begs the question: why would the Legislature bother to include the first phrase prohibiting evidence of comparative negligence if it intended to exclude all evidence in all negligence cases in the second phrase? If the trial court and Mrs. Leroy are correct, there would have been no need for the Legislature to have included the first phrase because there would be no cause of action in which a defendant could allege comparative negligence.

In arriving at its conclusion, the trial court apparently considered the first phrase meaningless or in isolation from the second. We are, however, loathe to render statutory language irrelevant in any context, and we discern no valid reason to do so here. Statutory interpretation is a “holistic endeavor,” United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), and when engaged in the task of discerning the meaning of a statute, we “ ‘will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute....’” Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974) (quoting Brown v. Duchesne, 60 U.S.(19 How.) 183, 194, 15 L.Ed. 595 (1856)). Adverting to our catalogue of rules of statutory construction,

[w]e are required to give effect to “every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.” American Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005) (quoting Hechtman v. Nations Title Ins., 840 So.2d 993, 996 (Fla.2003)). Moreover, “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” Id. (quoting State v. Goode, 830 So.2d 817, 824 (Fla.2002)). “[R]elated statutory provisions must be read together to achieve a consistent whole, and ... ‘[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Woodham v. Blue Cross & Blue Shield, Inc., 829 So.2d 891, 898 (Fla.2002) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)).

Heart of Adoptions, 963 So.2d at 198-99; see also Snively Groves v. Mayo, 135 Fla. 300, 184 So. 839, 841 (1938); Goode v. State, 50 Fla. 45, 39 So. 461, 463 (1905) (“It is the general rule, in construing statutes, ‘that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.’ ” (quoting 26 Amer. & Eng. Ency. Law 618 (2d ed.))).

Reading section 316.613(3) in its entirety, we conclude that the latter phrase, “evidence ... with regard to negligence,” gives effect and meaning to the former phrase, “comparative negligence.” Interpreting the statute in this manner indicates that the Legislature intended to prohibit evidence of comparative negligence and evidence of negligence that may be similarly used to reduce an injured child’s recovery. In Parker v. Montgomery, 529 So.2d 1145 (Fla. 1st DCA 1988), for example, a child was injured in an automobile accident and the defendant asserted comparative negligence as a defense based on the failure of the child’s parents to secure the child in an appropriate child passenger restraint in violation of section 316.613. When the trial court entered an order striking that defense, the defendants then filed amended pleadings asserting defenses based on failure to mitigate damages and avoidable consequences, claiming that the damages could have been mitigated or avoided if the parents had complied with section 316.613. Concluding that the defenses of avoidable consequences and mitigation of damages are prohibited under the statute, the court held:

Because, however, section 316.613(3) has explicitly precluded the admission of evidence relating to the failure of a child to be placed in a child restraint device for comparative negligence purposes, the concept of mitigation of damages, inseparable, under the circumstances at bar, from the doctrine of comparative negligence, is similarly statutorily inadmissible when such nonuse is attempted to be interjected as a defense.

Id. at 1149-50. We believe that the Legislature intended to prohibit defenses similar to those alleged in Parker when it included the second phrase of section 316.613(3).

This interpretation is consistent with the statutory canon of ejusdem generis, which means that “ ‘where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated[.]’ ” Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968) (quoting Children’s Bootery v. Sutker, 91 Fla. 60, 107 So. 345, 347 (1926)); see also State v. Hearns, 961 So.2d 211 (Fla.2007); Brown v. Saint City Church of God of the Apostolic Faith, Inc., 717 So.2d 557 (Fla. 3d DCA 1998). The Legislature first specifically prohibited evidence of “comparative negligence” and then in the same sentence prohibited “evidence ... with regard to negligence.” Application of ejusdem gen-eris informs us that the latter general prohibition refers to the former specific prohibition and, therefore, confirms our conclusion that the Legislature intended, through its enactment of section 316.613(3), to prohibit evidence of comparative negligence and evidence of negligence similarly used to reduce an injured child’s recovery.

Looking to the manner in which similar statutes in other states have been interpreted, as is permissible for us to do, the only state statute that we have found containing language identical to that contained in section 316.613(3), Florida Statutes, is Louisiana Revised Statutes section 32:295(F), which provides: “In no event shall failure to wear a child passenger safety seat system be considered as comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with- regard to negligence, nor shall such failure be considered a moving violation.” La.Rev.Stat. § 32:295(F) (2007). In Salaiman v. Louisiana Casino Cruises, 835 So.2d 823 (La.Ct.App.2002), the court addressed whether this provision provided tort immunity in a suit based on the failure to properly secure a child in a vehicle. The court concluded:

[Paragraph F of La. R.S. 32:295 does not contain an express grant of statutory immunity shielding a defendant from damages caused by his failure to secure a child in a safety restraint device. Further, because the purpose of the law is to protect children, we are bound to read paragraph F in a way that will best accomplish that purpose. Therefore, we hold that paragraph F contains two evi-dentiary restrictions barring a defendant from introducing evidence that the child-victim was not in a child restraint device during a ■ vehicular accident through the fault of the child or another as a means to reduce the child’s recovery. However, it does not immunize a defendant from liability arising from the defendant’s failure to properly secure a child in a vehicle.

Id. at 826.

We agree with the reasoning in Salaiman. In light of that reasoning, the interpretation of section 316.613(3) advanced by Mrs. Leroy would result in an anomaly in Florida law because injured children between the ages of six and eighteen would. be allowed to recover in a negligence action against a caretaker based on evidence that the child was not properly restrained by a seat belt under section 316.614, Florida Statutes, see Cybroski v. Wright, 927 So.2d 1089 (Fla. 4th DCA 2006), but injured children five years of age or younger would not be allowed to recover based on the prohibition of similar evidence under section 316.613(3). Both sections 316.613 and 316.614 were enacted in large part to protect children from injuries in automobile accidents, yet, according to the argument advanced by Mrs. Leroy, the age of the child would determine the right to recover. The illogic that flows from this interpretation of section 316.613(3) is readily apparent and we reject it. We must abide by the rule of statutory construction that requires us to interpret a statute to avoid absurd or unreasonable results. City of Boca Raton v. Gidman, 440 So.2d 1277, 1281 (Fla.1983) (“No literal interpretation should be given that leads to an unreasonable or ridiculous conclusion or to a purpose not designated by the lawmakers.”); Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256, 263 (Fla.1970) (“It is fundamental that a statute should be given a reasonable interpretation. No literal interpretation should be given which leads to an unreasonable or ridiculous conclusion.”); State v. Sullivan, 95 Fla. 191, 116 So. 255, 261 (1928) (“[N]o literal interpretation should be given that lends to an unreasonable or ridiculous conclusion or a purpose not designed by the lawmakers.”); Childers v. Cape Canaveral Hosp., Inc., 898 So.2d 973, 975 (Fla. 5th DCA 2005) (“A literal interpretation of the statutory language used is not required when to do so would lead to an unreasonable conclusion, defeat legislative intent or result in a manifest incongruity.”).

As to Mrs. Leroy’s contention that section 316.613(3) is, in essence, a grant of immunity, we disagree. If the Legislature intends to grant immunity from civil suit, it certainly knows how to explicitly do so. See, e.g., § 335.141(2)(a), Fla. Stat. (2007) (utilizing the language, “not liable for any action or omission”); § 768.075(1), Fla. Stat. (2007) (employing the phrase, “shall not be held liable for any civil damages”); § 768.12, Fla. Stat. (2007) (using the terminology, “shall have no cause of action”); § 768.125, Fla. Stat. (2007) (using the phrase, “shall not thereby become liable for injury or damage”); § 768.13, Fla. Stat. (2007) (employing the language, “shall not be held liable for any civil damages”). We do not discern a grant of immunity within the provisions of section 316.613(3).

We conclude that section 316.613(3) does not prevent introduction of evidence that Mrs. Leroy, the child’s caretaker at the time of the accident, may have failed to use an appropriate child passenger restraint provided by the child’s mother. We believe that the jury should be able to consider this evidence along with any other evidence presented by the plaintiff, Mrs. Quarantello, and give it whatever weight the jury deems appropriate. Hence, the jury, presented with all of the evidence, will have a better opportunity to find the truth regarding the cause of Alexander’s injuries and make an informed decision whether he is due recompense from Mrs. Leroy.

REVERSED and REMANDED.

GRIFFIN, J., concurs.

PALMER, C.J., dissents with opinion.

PALMER, C.J.,

dissenting.

I respectfully dissent.

In my opinion, the language set forth in section 316.613(3), Florida Statutes (1999), is clear and unambiguous and, therefore, it is unnecessary for this court to undertake a “holistic endeavor” or to employ rules of statutory interpretation as a means to apply the statute to the facts presented in this case. The statute provides that evidence as to the failure to provide or use a child passenger restraint is inadmissible “in the trial of any civil action with regard to negligence.” The case before us is clearly a civil action with regard to negligence and, accordingly, the trial court properly concluded that such evidence was inadmissible. See State v. Hobbs, 974 So.2d 1119 (Fla. 5th DCA 2008)(noting that the appellate court’s first consideration is to give effect to the intent of the legislature as evidenced by the plain meaning of the text).

In reversing the trial court, the majority addresses the statute’s overall intent, which it finds to be the protection of children from injury in automobile accidents by requiring that they be secured in a proper child passenger restraint. However, the majority does not address the legislative intent of the specific provision at issue in this case, which precludes a person’s failure to use a child passenger restraint from being considered comparative negligence. This provision does not promote the stated statutory intent, since caretakers yvould have more incentive to use a child passenger restraint if the failure to do so could be considered comparative negligence. Accordingly, the statutory intent of this specific provision must be something else.

Additionally, the majority’s concern with the anomaly between the statutory treatment of younger children and older children is not eliminated by its interpretation of the statute, since the failure of a child to use a seat belt is still admissible as comparative negligence, whereas no such evidence is admissible with regard-to a younger child in a child passenger restraint.

I would affirm.

      . The trial court granted summary judgment as to Counts IV and V. Count V alleges that under section 827.03(3),, Florida Statutes, which defines criminal child neglect, Mrs. Leroy had a duty not to neglect Alexander and she breached that duty by failing to use a proper child passenger restraint to ensure the child’s safety. The trial court struck that count because it alleged ordinary negligence rather than criminal neglect. Mrs. Quaran-tello does not challenge the correctness of that ruling and we, therefore, do not address it.'

      . The doctrine of ejusdem generis is “ 'actually an application of the broader maxim 'noscitur a sociis’ which means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the specific words.' " Thomas v. City of Crescent City, 503 So.2d 1299, 1300 n. 2 (Fla. 5th DCA 1987) (quoting Transcon Trailers, Inc. v. Northland Ins. Co., 436 So.2d 380, 381 (Fla. 5th DCA 1983)); see also Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381, 385 (Fla.1958).

      . The intent could be to avoid litigation among family members, since the most likely defendant in a suit based on the failure to put a child in a child passenger restraint would be a member of the child's family. If indeed that is the intent of the legislation,' allowing the instant lawsuit to proceed against the grandmother of the injured party would be in direct conflict with that intent. I do not purport to conclude that such is the intent of this specific statute, but only to point out one logical 'possible intent, thereby emphasizing the danger of "interpreting” an unambiguous statute.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    Jennie Ruth Barrett McMILLAN, Appellant/Cross-Appellee, v. Donald W. McMILLAN, II, Appellee/Cross-Appellant.
    No. 5D06-1614.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Rehearing Denied March 25, 2008.

      Leonard R. Ross and Gerard V. Muriello of Ross & Burden, P.A., Daytona Beach, for Appellant/Cross-Appellee.
    Michael K. Poe of Michael K. Poe, P.A., Melbourne, for Appellee/Cross-Appellant.
   LAWSON, J.

The former wife, Jennie Ruth Barrett McMillan, appeals the final judgment of dissolution of marriage terminating her marriage to Donald W. McMillan, the former husband. She argues that the trial judge erred in several respects when distributing marital assets; erred by failing to award her a sufficient amount of permanent alimony; and erred by denying her request for attorneys’ fees. On cross-appeal, the former husband also alleges errors with respect to the distribution of marital assets. We agree that there were two errors with respect to equitable distribution, and one error in the calculation of alimony, which will also require the trial court to reconsider the attorneys’ fee issue. We only find it necessary to address those issues for which reversal is warranted. Therefore, we reverse in part, and affirm as to all other issues without further comment. We also remand for further proceedings consistent with this opinion.

Equitable Distribution

First, both parties agree that the trial court erred by failing to equitably distribute $141,446 in capital loss carry-forwards listed in the former wife’s financial affidavit. On remand, the loss carry-forwards should be distributed evenly.

Second, we agree with the former husband that the trial court erred in valuing the Wachovia account based on its March 1, 2003 value ($72,197.78), rather than its March 31 value ($54,885.78). The two values are side-by-side (in small print) on the Wachovia account statement, and the confusion is understandable. Additionally, the husband is correct that the court did not take into account that he paid two expenses from this account, post-filing: $3,250 for mediation and $19,857 for income taxes. These were joint expenses, and should have been considered in calculating the assets available for distribution.

Alimony

The trial court’s finding that the former wife will need approximately $4,800 per month to maintain her lifestyle is supported by competent, substantial evidence. There is no issue with respect to the former husband’s ability to pay alimony. The trial court further determined that the wife’s income tax liability would be $885 per month, but it does not appear that the court considered this tax liability when setting the alimony amount. It is well settled that “[consideration of the consequences of income tax law on the distribution of marital assets and alimony is required and failure to do so is ordinarily reversible error.” Miller v. Miller, 625 So.2d 1320, 1321 (Fla. 5th DCA 1993) (citations omitted). Therefore, we find that the trial court erred by not considering the former wife’s income tax liability when setting the alimony amount.

Former Wife’s Attorneys’ Fees

Section 61.16, Florida Statutes, grants the trial court broad discretion to award attorney’s fees “after considering the financial resources of both parties.” In doing so, the court may consider the earning ability of both spouses, the amount of marital assets and liabilities distributed to each spouse, and the liquidity of the assets distributed. Doyle v. Doyle, 789 So.2d 499, 502-03 (Fla. 5th DCA 2001). In arguing that the trial court abused its discretion by failing to order the husband to pay part or all of her attorneys’ fees, the former wife focuses primarily on the large disparity of income between the parties. Indeed, the husband nets more than five times as much as the wife, monthly. See Hutto v. Hutto, 842 So.2d 994 (Fla. 2d DCA 2003) (“Where there is a substantial disparity between the parties’ income, it may be an abuse of discretion to grant [only] a partial attorneys’ fee award.”) (quoting Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999)). The husband, however, correctly notes that unlike the parties in Hutto, the former wife received a substantial amount of cash as part of the equitable distribution, and virtually all of the liquid assets. By contrast, the former husband’s distribution consisted primarily of real property. Additionally, it appears that the former husband voluntarily gave the former wife additional money to pay a portion of her attorneys’ fees while the dissolution case was pending. In light of these facts, the former husband argues that the former wife’s equitable distribution is sufficient to allow her to pay her attorneys any additional sums owed without compromising her lifestyle. We agree.

However, the former husband also argues that no adjustment should be made in alimony because the wife can invest these same liquid assets to create an additional stream of income to cover her anticipated monthly income tax liability. Obviously, the same cash asset cannot be used to pay attorneys’ fees and also invested to secure an additional income stream. Therefore, if the trial court determines that it is not necessary to adjust alimony, in light of the former wife’s additional cash available for investment, the court would then need to revisit the issue of attorneys’ fees. For this reason, our remand also includes-directions that the trial court reconsider the issue of attorney’s fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MONACO, J., and THOMPSON, E., Senior Judge, concur.


author: PER CURIAM.

text:
    ORIX FINANCIAL SERVICES, INC., f/k/a Orix Credit Alliance, Inc., Appellant, v. Donald D. MacLEOD and Kim MacLeod, his wife, Any Unknown Tenants at the property located at 198 Avenue, Old Town, Florida, parcel identification number 12-09-13-000-4013-0100, Appellees.
    No. 1D07-1770.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Rehearing Denied April 1, 2008.
    James E. Foster and Virginia B. Townes of Akerman Senterfitt, Orlando, and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, for Appellant.
    Robert N. Clarke, Jr., and Martin B. Sipple of Ausley & McMullen, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Orix Financial Services, Inc., recorded a judgment lien on certain real property in Dixie County, since acquired by appellees Donald and Kim MacLeod. When appellant sought to foreclose its judgment lien, the trial court entered final summary judgment in favor of appellees. We must reverse.

In Anderson v. North Florida Production Credit Ass’n, 642 So.2d 88 (Fla. 1st DCA 1994), this court resolved the situation presented by a creditor’s proper re-cordation of a lien followed by improper or erroneous indexing by the clerk of the circuit court. The trial court here erred by failing to follow Anderson.

We adhere to the reasoning of the Anderson court. In Anderson, this court viewed the dictates of section 695.11, Florida Statutes, as unambiguous. See also Fed. Land Bank of Columbia v. Dekle, 108 Fla. 555, 148 So. 756 (1933). The statute provides that official recordation occurs at such time as the office of the clerk of the circuit court affixes to an instrument the official register numbers required by law “and at such time shall be notice to all persons.” § 695.11, Fla. Stat. (1995). As in First American Title Insurance Co. of St. Lucie County, Inc. v. Dixon, 603 So.2d 562 (Fla. 4th DCA 1992), appellees’ remedy, if any, will lie against the title insurer or abstractor or against the clerk of the circuit court itself, which can make no claim of sovereign immunity.

REVERSED and REMANDED for entry of judgment in favor of appellant.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: POLEN, J.

text:
    Elano BAPTISTE, Appellant, v. Robert FERMENICH and Marigaye Fermenich, Appellees.
    No. 4D06-409.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied April 16, 2008.

      Richard M. Gomez of Law Offices of Roland Gomez, Miami, for appellant.
    Andrew Jay Weinstein and Danielle A. Leo of Weinstein & Associates, P.A., Coral Springs, for appellees.
   POLEN, J.

Appellant Elano Baptiste appeals the trial court’s final order regarding entitlement to attorney’s fees and costs in favor of Appellees, Robert and Marigaye Ferme-nich. The Fermenichs sued Baptiste following an automobile accident in which Baptiste’s car struck Robert’s car, resulting in injuries to Robert. Following a trial, the trial court entered a directed verdict finding Baptiste was liable for the accident. Following jury deliberations, the jury awarded Mr. Fermenich $9,792.56 in damages and awarded Mrs. Fermenich $200.00 in nominal damages. Prior to trial, the Fermenichs filed a request for admissions, including liability, causation and damages, which Baptiste denied. Both parties also made proposals for settlement, neither of which were accepted. Following the jury award, both parties filed motions for attorney’s fees. The trial court awarded the Fermenichs attorney fees and costs based on Baptiste’s proposal for settlement and Baptiste’s denial of the Fermenichs’ requested admissions.

Baptiste argues the trial court erred in awarding attorney’s fees and costs on both grounds. Specifically regarding the proposal for settlement, Baptiste argues the trial court erred in awarding the Ferme-nichs’ attorney’s fees based on his proposal for settlement rather than theirs. While affirming the trial court’s award of attorney’s fees pursuant to Baptiste’s denial of requested admissions, we find merit in Baptiste’s argument regarding the trial court’s award of attorney’s fees and costs pursuant to the proposed settlement agreement. We reverse the attorney’s fees and costs awarded the Fermenichs’ pursuant to the settlement agreement.

This case is complicated by the fact that a successor judge was interpreting the order of the prior judge without the benefit of a transcript of the hearing leading to the order. After the Fermenichs’ filed a motion for attorney’s fees, a hearing was held to determine whether they or Baptiste were entitled to attorney’s fees. Following the hearing, of which there is no transcript, the first judge on the case, Judge Moriarty, entered an order which stated:

[Fermenich] is entitled to fees incurred from the time that [Baptiste] denied the request for admissions through the time of the proposal of settlement. If the proposal of settlement, including those fees and costs incurred until that point equal or exceed 75% of the proposal for settlement, [Fermenich] shall be entitled to fees and’ costs for proving the issues through trial. If the above fees, costs and net judgment do not exceed 75% of the proposal, [Baptiste] shall be entitled to fees and costs from the proposal through trial.

Following entry of this order, the parties realized they reached differing interpretations as to its meaning. Judge Moriarty had since retired and the case was inherited by a second judge, Judge Ilona M. Holmes. Judge Holmes entered an order regarding the entitlement to attorney’s fees, stating:

According to Judge Moriarty, [Ferme-nich] is entitled to fees from May 3, 2002 through June 28, 2002, for wrongful denial [of request for admissions]. If the net judgment, $6,691.08 is equal to or exceeds 75% of the proposal for settlement, then [Fermenich] is entitled to fees and costs through trial. Seventy-five percent of the net judgment is $5,018.31. The net judgment exceeds the proposal for settlement, thus [Fermenich] is entitled to attorneys fees through the trial of this matter.

The proposal for settlement detailed in the order referred to Baptiste’s proposal for settlement to the Fermenichs’, as opposed to the Fermenichs’ proposal to Baptiste. Judge Holmes determined the final judgment, plus the Fermenichs’ attorney’s fees and taxable costs incurred equaled $10,440.08, thereby exceeding 75% of Baptiste’s settlement proposal. However, Judge Holmes never issued a written order detailing the oral ruling.

The Fermenichs submitted a proposed order to Judge Holmes for entry and Baptiste objected to the contents of the order. Judge Holmes issued the order detailing the oral rulings made at the earlier hearing. Judge Holmes found the Fermenichs were entitled to attorney’s fees and costs from the time Baptiste denied liability until Baptiste’s proposal for settlement was served on the Fermenichs. Adding this recovery to the judgment the Fermenichs received at trial, Judge Holmes found that total exceeded 75% of Baptiste’s settlement offer, and as a result, found the Fermenichs were entitled to attorney’s costs and fees through trial.

Following entry of this order, Baptiste filed a notice of appeal in this court. Baptiste then requested that this court relinquish jurisdiction to allow the amount of attorney’s fees through trial to be decided below so the award would be finalized and appealable. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994). A hearing on the matter was held before a third judge, Judge Luzzo. After hearing testimony, Judge Luzzo entered an order finding the Fermenichs were owed $11,500 in attorney’s fees.

A trial court’s interpretation of a statute is reviewed de novo. See Clines v. State, 912 So.2d 550 (Fla.2005). The offer of judgment statute states, in relevant part:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

§ 768.79, Fla. Stat.

In this case, both parties made offers of judgment and each denied the other party’s offer. “Generally, section 768.79 creates a right to reasonable costs and attorney fees when two prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment; and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer.” MGR Equip. Corp., Inc. v. Wilson Ice Enter., Inc., 731 So.2d 1262, 1263 (Fla.1999). The trial court’s order awarded the Fermenichs’ attorney’s fees as their recovery equaled more than 75% of Baptiste’s offer of judgment.

We find the trial court erred in awarding attorney’s fees to the Fermenichs based on Baptiste’s offer of judgment. The rule is that a party who files an offer of judgment can recover attorney’s fees if the offer of judgment is rejected and the party who rejected the offer receives less than 75% of the offer of judgment. There is no basis for the party who rejected the offer to recover attorney’s fees if the party who rejected the offer recovers at least 75% of the rejected offer of judgment. In this case, the trial court misinterpreted the offer of judgment statute and erred in awarding the Fermenichs’ attorney’s fees from the time of the rejection of Baptiste’s proposal for settlement through trial.

We reverse the trial court’s award of attorney’s fees on this basis and remand to the trial court for a recalculation of attorney’s fees due the Fermenichs from, the time Baptiste denied the request for admissions through the time of proposal for settlement.

STONE and MAY, JJ., concur.

      . The Fermenichs’ offer is not at issue in this case.


author: VILLANTI, Judge.

text:
    Dwayne JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2620.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2008.
    Rehearing Denied April 2, 2008.

      Robyn M. Blake of Robyn M. Blake, P.A., Miami, for Appellant.
   VILLANTI, Judge.

Dwayne L. Johnson appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of Johnson’s first claim without comment. We reverse the denial of claim two and remand with instructions.

Johnson was convicted by a jury of one count of escape and one count of battery on a law enforcement officer (BOLEO). The State served a notice of its intent to seek to have Johnson sentenced as a violent career criminal (VCC) pursuant to section 775.084(l)(d), Florida Statutes (2000). After a hearing, the trial court found that Johnson qualified as a VCC. Johnson’s BOLEO conviction was a third-degree felony. See § 784.07(2)(b), Fla. Stat. (2000). Thus, the trial court sentenced Johnson on his BOLEO conviction to fifteen years in prison with a ten-year minimum mandatory pursuant to section 775.084(4)(d)(3).

In claim two of his motion, Johnson alleged that his BOLEO conviction is not subject to VCC sentencing because BO-LEO is not a “forcible felony.” See § 775.084(l)(d)(l)(a), Fla. Stat. (2000) (providing that a “forcible felony” is a qualifying offense); § 776.08, Fla. Stat. (2000) (defining “forcible felony”). Johnson is correct. The Florida Supreme Court has held that BOLEO is not a “forcible felony” for purposes of VCC sentencing because “ ‘the use or threat of physical force or violence against any individual’ is not a necessary element of the crime.” State v. Hearns, 961 So.2d 211, 216 (Fla.2007) (quoting Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). Johnson’s VCC sentence on his escape conviction is unaffected by Hearns. See § 775.084(l)(d)(f) (listing escape as a qualifying felony for VCC sentencing).

Accordingly, we reverse the postconviction court’s denial of Johnson’s rule 3.800(a) motion, and we direct the trial court to vacate the VCC sentence on his BOLEO conviction and resentence Johnson to any sentence that the trial court could have legally imposed for this conviction at the original sentencing hearing. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for resentencing.

WHATLEY and LaROSE, JJ„ Concur.


author: DAMOORGIAN, J.

text:
    Florence M. SLUSSER, by and through Brian SLUSSER, Plenary Guardian, Appellant, v. LIFE CARE CENTERS OF AMERICA, INC. a/k/a Life Care Centers of America, Inc. of Tennessee, Forrest L. Preston, John L. Morris, Eleanor Heaton and Alison Graziani (as to Life Care Center of Port St. Lucie), Appellees.
    No. 4D07-2906.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied April 16, 2008.

      Isaac R. Ruiz-Carus, Bennie Lazzara, Jr., and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, and Susan B. Morrison of the Law Office of Susan B. Morrison, P.A., Tampa, for appellant.
    Kirsten K. Ullman of Ullman, Bursa, Hoffman & Ragano, LLC, Tampa, for ap-pellees.
   DAMOORGIAN, J.

Florence Slusser appeals an order compelling arbitration in a negligence action brought against Life Care Centers of America (“Life Care”), a nursing home. We affirm and hold that an agreement that provides for arbitration of claims brought under the Nursing Home Residents Act, chapter 400.023, et seq., Florida Statutes (2005), is not unconscionable simply because it waives access to the courts to resolve claims arising under the Act. See Richmond Healthcare, Inc. v. Digati, 878 So.2d 388, 390 (Fla. 4th DCA 2004).

By way of background, Slusser checked herself into a nursing home owned by Life Care. During the admission process, Slus-ser executed an agreement to arbitrate all disputes and claims between the parties. While at the nursing home, Slusser was injured and sued Life Care in the circuit court for negligence. Life Care timely moved the trial court for an order compelling arbitration under the terms of the arbitration agreement. The trial court granted Life Care’s motion. This appeal follows.

In Digati, we held that a court does not have the power to decline to enforce an arbitration agreement simply because it waives access to the courts to resolve claims arising under Act. Digati, 878 So.2d at 390. Notwithstanding our holding in Digati Appellant argues that, because the Act was passed as a valid exercise of the legislature’s police power, access to the courts cannot be waived. Appellant cites as authority only the concurring opinion in Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 301 (Fla. 4th DCA 2005) (en banc) (Farmer, J., concurring). We do not agree with that argument.

Had the legislature intended to stop parties from arbitrating their claims under the Act, it would have created an express prohibition. It did not do so. We therefore conclude that a voluntary waiver of access to the courts to resolve claims arising under the Nursing Home Residents Act is valid. Digati, 878 So.2d at 390.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    Robert Malcom DAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4132.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    Rehearing Denied April 2, 2008.
    Robert Augustus Harper, III, and Robert Augustus Harper, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Robert M. Day [“Day”], formerly the Property Appraiser of Osceola County, appeals his convictions of two felony counts of grand theft and multiple misdemeanor counts of using the services of a state employee in the furtherance of his candidacy, in violation of section 106.15(3); Florida Statutes (2000). We find no merit to any of the issues raised on appeal, except one. We agree that the statute of limitations contained in Chapter 106, Florida Statutes, bars prosecution of the misdemeanor offenses.

On August 14, 2006, Day was charged by amended information with multiple offenses and was tried by jury. Counts I and II alleged the use of county employees to move personal furnishings from one residence to another and to repair damage to Day’s residence after Hurricane Charley. Counts III-IX alleged that Day used the services of county employees in furtherance of his candidacy in the general election held in 2000. Counts X-XIII charged the same offenses for the general election held in 2004. Counts XIV and XV charged petty thefts for the use of a county employee for other private and personal work. A judgment of acquittal was granted as to Count VII only. The jury returned a verdict of not guilty to counts XIV and XV and guilty to the remaining counts.

Section 106.15(5) makes the use of the services of a state employee in furtherance of one’s candidacy for public office a first-degree misdemeanor and specifies it is punishable “as provided in Section 775.082 or 775.088.” These sections define the penalty: a maximum of one-year imprisonment and a fine of no more than $1,000. There is no reference in section 106.15 to section 775.15.

Day argued below and again asserts on appeal that the statute of limitations in section 106.28, Florida Statutes (2002), which he contends governs the charges in counts III-VI and VIII-XIII, has expired. Section 106.28, Florida Statutes, provides:

Actions for violation of this chapter must be commenced before 2 years have elapsed from the date of the violation.

The State responds that section 106.28 does not apply to this criminal prosecution; rather, section 775.15, Florida Statutes (2004), which contains the general criminal statutes of limitation, governs and, under its provisions, particularly subsection 3(b), the prosecution of all charges in this case was timely. The State suggests that section 106.28 applies to civil claims only and that interpreting the statutes as such, would enable the lower court to “reconcile” both “conflicting” statutory provisions.

Section 775.15(2)(c), Florida Statutes, provides that the limitation for prosecution of first-degree misdemeanors is two years after commission. However, Section 775.15(3)(b), Florida Statutes (2004) contains several exceptions and tolling provisions. Sub-section 3(b) is one of these:

(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:
(b) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.

Thus, the question presented is whether the time limitation in section 106.28 or in section 775.15 applies to a charge of violation of section 106.15.

The State’s position is that because there is a statute of limitations applicable generally to first degree misdemeanors in section 775.15, we must apply the limitation contained in section 106.28 only to civil proceedings in order to “harmonize” conflicting statutes. The correct principle of law to apply, however, is that: “[generally speaking, a special statute of limitations which addresses itself to specific matters will take precedence over a general statute.” Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980). Since Chapter 106 addresses the specific matter of misconduct by a candidate during an election, it seems logical that the statute of limitations set forth under the same chapter should also apply. Section 775.15 is a default statute that applies where no specific statute of limitations has been made applicable to a criminal offense or in situations where the Legislature has expressly called for its use.

There is at least one example that illustrates the point. Prior to 1986, section 517.302, Florida Statutes, provided that: “Whoever violates any of the provisions of this chapter is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The statute of limitations for prosecution of offenses committed under this chapter shall be 5 years.” See § 517.302, Fla. Stat. (1985). Against the argument by the defendants charged with chapter 517 criminal offenses that the two year general statute of limitations applied, Florida courts held that the specific statute applied, even though it was longer. Car-caise. See also State v. Butts, 388 So.2d 317 (Fla. 4th DCA 1980). Several years later, the Legislature substantially rewrote this section and in the process eliminated the specific statute of limitations. Instead, they replaced the former provision with a new subsection (4) which specified that: “Criminal prosecution for offenses under this chapter is subject to the time limitations of s. 775.15.” § 517.302(4), Fla. Stat. (1997).

This example tells us a couple of things. First, the Legislature does, in certain circumstances, provide for special statutes of limitation for specified criminal offenses and those govern over the general time limits. Second, the Legislature knows how to direct the application of section 775.15 in a comprehensive legislative enactment that contains specially created criminal offenses. This was not done in chapter 106.

Although we do not credit the State’s “harmony” argument, we have considered carefully the State’s proposition that section 106.28 is supposed to apply only to civil proceedings arising under chapter 106. We have done so because of the language the Legislature chose to use in section 106.28: “Actions for violation of this chapter must be commenced before 2 years have elapsed from the date of the violation.” The Legislature’s use of the word “actions” rather than “prosecutions” and absence of the word “criminal” makes the State’s argument viable. Does “actions” include or exclude a criminal prosecution? To answer this question, we have examined the whole of chapter 106. We have found two instances in chapter 106 where the Legislature refers to a criminal prosecution as an “action.” The first appears in section 106.25(6), where there is a reference to “criminal or civil actions.” The second appears in section 106.27, where, in reference to “criminal proceedings,” the Legislature calls this “any such action.” There is, therefore, no basis to conclude that section 106.28 only applies to civil violations created in chapter 106. We conclude, therefore, that both criminal and civil actions for violations of provisions of chapter 106, including section 106.15, are governed by a two-year statute of limitations, commencing on the date of the violation.

Because the two-year statute of limitations in section 106.28 applies and the record fails to show that any of the misdemeanor offenses brought under chapter 106 were committed within the statutory time period, they must be dismissed and the defendant resentenced accordingly.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      . In addition to the conclusion we have explained above, we are also dubious that the extension contained in section 775.15(3)(b) would apply to a chapter 106 prosecution. The extension applies to “any offense based upon misconduct in office." The misdemean- or counts were based on Day’s conduct as a candidate. Indeed, the information did not even allege that he was a public officer, only a candidate. The fact that he may have been in public office at the time is immaterial to a chapter 106.15 prosecution.


text:
    Andrew MANOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2560.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON REMAND

PER CURIAM.

In Manos v. State, 895 So.2d 524 (Fla. 5th DCA 2005), we cited as authority Franklin v. State, 877 So.2d 19 (Fla. 4th DCA 2004), and affirmed appellant’s conviction. At that time, the Florida Supreme Court was reviewing Franklin, and, pending its disposition, stayed proceedings in this case. The court has now remanded the matter for our reconsideration upon application of State v. Franklin, 955 So.2d 564 (Fla.2007).

Accordingly, after our review of Franklin, 955 So.2d 564, we AFFIRM Manos’ conviction and sentence for manslaughter with a weapon.

ORFINGER, TORPY and COHEN, JJ., concur.


author: THOMAS, J.

text:
    Gloria HAMPTON, Appellant, v. FANTASTIC SAM’S and United Self Insured Services, Appellees.
    No. 1D06-6234.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Rehearing Denied April 1, 2008.

      Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellant.
    Bettina N. Carrier of Ross Vecchio, P.A., Lakeland, for Appellees.
   THOMAS, J.

Claimant appeals the JCC’s order denying payment for previously received psychiatric care and denying further psychiatric treatment. Because we determine that the JCC erred by overruling his previous order when denying payment of Claimant’s previously received psychiatric treatment, we reverse in part and remand. We affirm the JCC’s denial of payment of other previously received psychiatric care and authorization of further treatment, as no authority exists in chapter 440, Florida Statutes, for a physician to transfer a claimant’s care to another physician upon the original physician’s retirement.

Facts and Procedural History

Claimant was employed as a hairstylist from 1989 until 2002. She suffered two work-related accidents in 2001 and 2002, which Employer/Carrier (E/C) accepted as compensable. After attempting numerous therapies as well as a reduced work schedule, she could not alleviate the pain in her arms; therefore, Employer could no longer employ her, and Claimant became increasingly depressed because she could no longer work as a hairstylist. Claimant’s attorney corresponded with E/C on February 5, 2003, requesting psychiatric care, but E/C did not authorize treatment. Id. In April 2003, Claimant began treating with Dr. Arturo Gonzalez, who subsequently diagnosed her with depression.

Claimant sent Dr. Gonzalez’s bill to E/C on April 14, 2003, along with another treatment request; both were denied. E/C later requested an independent medical examination, where Claimant was diagnosed with depression attributable to her workplace injuries and it was found that Dr. Gonzalez’s treatment was reasonable and necessary. In September 2003, E/C authorized psychiatric care and provided Claimant with the names of three psychiatrists. Claimant instead elected to continue treating with Dr. Gonzalez and, following his retirement, with Dr. Gonzalez’ partner and nurse, Dr. Charles Walker and Nurse Susan Hansted.

After a merits hearing held in 2003, the Judge of Compensation Claims (JCC) issued a final order granting Claimant indemnity benefits. In his 2004 order, the JCC admitted Dr. Gonzalez’s testimony over E/C’s objection, finding that Dr. Gonzalez became an authorized provider by operation of law pursuant to section 440.13(2), Florida Statutes (2001), as Claimant had requested psychiatric care on January 31, 2003, but E/C had refused “for some time” to provide such treatment. The JCC found Dr. Gonzalez’s treatment to be reasonable and necessary as a result of Claimant’s workplace injuries, and he accepted Dr. Gonzalez’s testimony as that of an authorized treating physician “for all purposes.” The JCC recognized that Claimant had not filed a petition for psychiatric treatment at the time of the 2003 merits hearing because her claim for psychiatric treatment was still within the managed care grievance process.

In 2004 and 2005, Claimant filed several petitions for benefits seeking payment of her medical bills and authorization for future psychiatric care. E/C denied the petitions for benefits because Drs. Gonzalez and Walker and Nurse Hansted were not authorized treating providers, Claimant had not exhausted the managed care grievance procedure, and it had timely authorized three alternative psychiatrists within the managed care network.

A merits hearing was held in 2006 on Claimant’s medical benefits claim. The JCC denied payment of Dr. Gonzalez’s bills and any further treatment, finding that Claimant had waived the issue of whether she was entitled to psychiatric care by not raising it in a petition seeking such care before the 2003 merits hearing. The JCC concluded that his 2004 order was res judicata on the issue of Claimant’s entitlement to psychiatric care and payment- of her medical bills. The JCC acknowledged that in his 2004 order he accepted Dr. Gonzalez’s testimony as that of an authorized provider, but not as an authorized psychiatric care provider. The JCC further found that he had not ruled on Claimant’s entitlement to psychiatric care in 2004 because her claim was still within the managed care grievance process.

The JCC also denied Claimant’s request for payment of Dr. Walker’s and Nurse Hansted’s bills and her request for authorization of future treatment with them, reasoning that even if he had authorized treatment with Dr. Gonzalez, then Dr. Gonzalez’s retirement would have terminated the authorization. The JCC concluded that Dr. Gonzalez did not have the authority under chapter 440, Florida Statutes, to transfer his patients to Dr. Walker. The JCC further found that E/C had timely offered psychiatric care and treatment in August 2003. The JCC also denied Claimant’s request for attorneys’ fees, finding that Claimant was not a prevailing party.

Legal Analysis

Claimant first argues that the JCC erred by denying payment of Dr. Gonzalez’s bills and, second, that the JCC erred by denying payment of Dr. Walker’s and Nurse Hansted’s bills as well as authorization of future treatment with them. Applying the competent, substantial evidence standard of review to the JCC’s factual findings, and the de novo standard of review to the JCC’s legal conclusions, we reverse the first issue raised on appeal and affirm the second issue. See Mylock v. Champion Int'l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).

Although he did not specifically rule on Claimant’s entitlement to psychiatric care in 2004, the JCC accepted Dr. Gonzalez’s testimony as that of an authorized treating provider “for all purposes” by operation of law under section 440.13(2)(c), Florida Statutes (2001). In his 2006 order, the JCC found that E/C timely authorized three alternative psychiatrists and denied payment of Dr. Gonzalez’s bills, thus overruling his 2004 finding that E/C did not timely offer psychiatric care to Claimant. This was error. See Escobar v. Economy Awning Co., 559 So.2d 367 (Fla. 1st DCA 1990) (holding that the JCC could not overrule his explicit finding'that the claimant’s injury was compensable in a later order). Accordingly, we reverse the portion of the JCC’s order denying payment of Dr. Gonzalez’s bills.

We find that the JCC correctly determined that Dr. Gonzalez did not have the authority under chapter 440 to transfer Claimant’s care to Dr. Walker and Nurse Hansted. Workers’ compensation is entirely a creature of statute. See Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 60 (Fla. 4th DCA 2004); see also Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999) (“A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.”). Nothing in chapter 440 gives an authorized treating physician the authority to transfer care to another physician upon his retirement, and generally a claimant may not select a physician of his or her choice without the e/c’s prior authorization. See Marcy v. Charlotte County Sheriff's Office, 599 So.2d 1319, 1321 (Fla. 1st DCA 1992). Accordingly, we affirm that portion of the JCC’s order denying payment of Dr. Walker’s and Nurse Hansted’s bills and denying further treatment with them.

Because Claimant has prevailed in part on her claim, we reverse that portion of the JCC’s order denying attorneys’ fees and remand with instructions to determine the extent of the award.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

POLSTON and HAWKES, JJ., concur.


text:
    William FLORES, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and Russell Hosford, Warden of Wakulla Correctional Institution, Respondents.
    No. 1D08-0453.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Rehearing Denied April 1, 2008.
    William Flores, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Anthony McNISH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0461.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Rehearing Denied April 1, 2008.
    Anthony McNish, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: SHAHOOD, C.J.

text:
    Ernest Lee PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4404.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Loren D. Rhoton and Ryan J. Sydejko of Loren Rhoton, P.A., Tampa, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Ernest Lee Parker (“appellant”) appeals his twenty-eight year sentence for attempted second degree murder with a firearm. The sentence was imposed upon re-sentencing following appellant’s successful appeal of the trial court’s order summarily denying his motion under rule 3.850, Florida Rules of Criminal Procedure. Appellant argues that the sentence he received on resentencing, which replaced a twenty-five year sentence subject to a twenty-five year mandatory minimum, violated the holding of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Appellant was found guilty by a jury of multiple offenses including attempted second degree murder with a firearm. On this count, the trial court sentenced him to twenty-five years in prison with a twenty-five year mandatory minimum for the use of a firearm, pursuant to section 775.087, Florida Statutes (1999). Additionally, the prison sentence was to be followed by fifteen years probation. Appellant later received the same sentence after this court remanded for resentencing following the State’s appeal of the sentence imposed for appellant’s other convictions. State v. Parker, 812 So.2d 495 (Fla. 4th DCA 2002).

Appellant filed a motion to vacate, set aside, or correct sentence pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant argued, inter alia, that the twenty-five year mandatory minimum sentence on the attempted murder with a firearm count was illegal because there was no finding by the jury that appellant discharged a firearm. Appellant appealed the trial court’s summary denial of the rule 3.850 motion to this court. We held that a clear jury finding that a firearm was discharged was required before the court could enhance a sentence on that basis. Parker v. State, 921 So.2d 812, 813 (Fla. 4th DCA 2006). We reversed the summary denial of the motion and remanded for attachment of record portions refuting appellant’s claim or, alternatively, for re-sentencing on the attempted second degree murder with a firearm count. Id.

On remand, the trial court stated its intention to give appellant the equivalent of his previous twenty-five year mandatory minimum sentence. The trial court resen-tenced appellant to twenty-eight years, reasoning that a twenty-five year prison sentence with the twenty-five year mandatory minimum equated to a twenty-eight year prison sentence with no mandatory minimum where the prisoner was eligible for gain time reductions.

Appellant argues that the imposition of the three-year increase in his sentence upon resentencing amounts to a vindictive sentence in violation of Pearce. This is a question of law subject to de novo review by this court. See Trotter v. State, 825 So.2d 362, 365 (Fla.2002).

In Pearce, the Supreme Court held that “[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U.S. at 725, 89 S.Ct. 2072. The Court concluded that in order to ensure vindictiveness would not play a role, a trial court imposing a more severe sentence at resentenc-ing was required to make the reasons for the more severe sentence affirmatively appear in the record. Id. at 726, 89 S.Ct. 2072. “Pearce and its progeny established ‘a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.’ ” Wemett v. State, 567 So.2d 882, 884 (Fla.1990)(quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). The holding of Pearce has since been applied to situations such as the present case where an appellant has successfully challenged only the sentence and not the conviction. See Wemett, 567 So.2d at 884; Richardson v. State, 821 So.2d 428, 430 (Fla. 5th DCA 2002).

In Thomas v. State, 638 So.2d 169, 170 (Fla. 1st DCA 1994), Thomas was originally sentenced to forty years as a habitual violent felony offender subject to a fifteen-year mandatory minimum. He later successfully challenged his sentence as illegal. Thomas, 638 So.2d at 170. Following a hearing, the court resentenced him to fifty years in prison with no mandatory minimum in an attempt to impose a sentence equivalent to the original once gain time and other reductions were taken into account. Id. at 170-71. Thomas appealed his new sentence, arguing that it represented an impermissible penalty under Pearce for challenging his original sentence. Id. at 170. The First District affirmed, reasoning that no presumption of vindictiveness arose because Thomas had failed to demonstrate that the new sentence was actually more severe than the original sentence. Id. at 172.

In Richardson, Richardson received concurrent sentences of twenty-two and twenty-seven years. 821 So.2d at 430. Richardson then filed a motion to correct sentence pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure. Id. He argued the sentences exceeded the maximum allowed by the guidelines. Id. The court granted Richardson’s motion, but then sentenced him to two consecutive fifteen-year sentences without explanation. Id. at 431.

On appeal, Richardson claimed that his sentence was vindictive because it increased the aggregate sentence from twenty-seven to thirty years without an explanation. Id. The appellate court agreed, finding the vindictiveness presumption of Pearce applicable and noting that the last two sentencing hearings had been conducted by the same judge with the same information. Id. The court stated that “there was no independent legal basis or identifiable conduct on Richardson’s part, other than the filing of a legally meritorious 3.800 motion, which occurred after the imposition of the twenty-seven year sentence to justify the harsher sentence.” Id.

In this case, the same trial judge that previously sentenced appellant increased the length of the sentence by three years, with no independent legal basis or identifiable conduct by appellant as a basis for the increase. We hold that the trial court erred in resentencing appellant, despite its attempt to achieve a sentence equivalent to appellant’s previous sentence by taking possible gain time reductions into consideration. We stress that our holding is not that there was actual vindictiveness on the part of the trial judge, but rather that the presumption of vindictiveness was not overcome. See Wemett, 567 So.2d at 886.

We accordingly reverse and remand for resentencing with directions that appellant be sentenced to a period of not more than twenty-five years, reduced by any applicable credits. We also certify conflict with Thomas to the extent of any inconsistency.

Reversed and Remanded.

FARMER and TAYLOR, JJ., concur.


author: PLEUS, J.

text:
    Steven K. OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2005.
    District Court of Appeal of Florida, Fifth District.
    Feb. 29, 2008.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

Oliver appeals his convictions on six counts of sexual battery on a child by a person in familial or custodial authority and one count of lewd and lascivious molestation of a child. We affirm but write to address four of Oliver’s arguments on appeal.

Motion for Judgment of Acquittal

Oliver argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present evidence that these crimes were committed while Oliver was in a position of familial or custodial authority. We disagree.

The de novo standard applies to reviewing the denial of a motion for judgment of acquittal. Harris v. State, 954 So.2d 1260, 1261 (Fla. 5th DCA 2007). The terms “familial or custodial authority” are not defined in Chapter 794, but they are defined in the case law. Familial authority and custodial authority are not the same. Crocker v. State, 752 So.2d 615 (Fla. 2d DCA 1999). In Pozek v. State, 803 So.2d 768, 769-70 (Fla. 5th DCA 2001), we adopted the following definitions:

In State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994), the supreme court defined the concept of “familial relationship” in the context of the sexual battery of children. Although the court in that case addressed the concept for the sole purpose of determining whether similar fact evidence was admissible to corroborate the testimony of a minor victim of sexual battery, the definition is nonetheless helpful in deciding whether sufficient evidence of familial or custodial authority has been presented to uphold a conviction under section 794.011(8)(b). In Rawls, the court concluded that the determination of a “familial relationship” must be done on a case-by-case basis. Id. at 1353. The court explained:
Consanguinity and affinity are strong indicia of a familial relationship but are not necessary. Also, the defendant and victim need not reside in the same home. The relationship must be one in which there is a recognizable bond of trust with the defendant, similar to the bond that develops between a child and her grandfather, uncle, or guardian. Where an individual legitimately exercises parental-type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the admissibility of collateral crimes evidence....

In the instant case, there was sufficient evidence to deny the motion for judgment of acquittal on this element. Oliver was charged with committing various sex acts upon twin teenage girls, D.P.E. and D.J.E. Their mother, Gail Ramsey, testified that she met Oliver when he was her sons’ soccer coach. Ramsey became friends with Oliver’s wife and the Ramseys started “hanging out” at the Olivers’ house on weekends. Their families became very close. The twins often went over to the Oliver house to babysit on weekends. The twins also went on vacation with Oliver. Mrs. Ramsey trusted Oliver as a father figure with her daughters because he showed them the affection a father would show a child. Oliver was also D.P.E.’s soccer coach.

D.P.E. testified that she met Oliver in 2003, when she was in sixth grade. Their families became close. She and her sister frequently stayed overnight at Oliver’s house. In the beginning, she regarded Oliver as “[ajlmost like a father figure” because he was always there, playing with them. D.P.E. trusted and confided in Oliver. In addition, Oliver was D.P.E.’s soccer coach in 2004 and 2005. D.P.E. testified that three incidents occurred between her and Oliver. All of them occurred at his house. One occurred in the living room, one somewhere inside his house, and one in the swimming pool.

D.J.E. testified that she met Oliver when her brothers started playing soccer. He was “like a father figure.” D.J.E. stayed overnight at Oliver’s house babysitting on a regular basis. She trusted him. She told him her father had died and he shared with her that his father had died when he was around her age. That connection made her feel close to him. D.J.E. testified to four incidents all occurring at Oliver’s house. Three occurred while she was alone with Oliver in his bedroom. D.J.E. specified that on the first occasion, Oliver locked the bedroom door. The other incident occurred while she and Oliver were alone in his swimming pool.

This evidence was sufficient for the jury to conclude that Oliver was in a position of familial or custodial authority. The girls looked up to Oliver as a father figure. They trusted and confided in him. Their own father was deceased and they were not close to their step-father. Thus, there was a recognizable bond of trust between Oliver and the girls similar to that of father and child.

In addition, the twins’ mother trusted Oliver enough to let them stay overnight at his home and go on vacation with him. Oliver was one of the girls’ soccer coaches. All of the incidents occurred at Oliver’s home at times when Oliver was alone with the girls or others were asleep. Thus, Oliver was in a position of custodial authority over the girls because they frequently stayed overnight with him and were alone with him at his house when the incidents occurred.

Admission of Expert Testimony

The State called Dr. Thomas Dikel, who was accepted, without objection, as an expert in child sexual abuse, child psychology and neuropsychology. He testified that although there was “no single post sexual abuse syndrome” and “no way to look at a child and say this child’s been sexually abused,” there were some typical behaviors. These included (1) the victim’s desire to act “hyper-normal” after being sexually abused; (2) denying sexual abuse at first; (3) delaying disclosure; (4) disclosing the facts in piecemeal fashion; and (5) the victim’s attempts to control their emotions.

Oliver argues that the trial court erred in admitting Dr. Dikel’s testimony, over objection, because it was improper profile evidence. He cites to Hadden v. State, 690 So.2d 573 (Fla.1997), which .held that expert testimony regarding the child sexual abuse accommodation syndrome was not admissible because it had not been proven to be generally accepted in the scientific community, as required under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

However, Hadden noted that the Frye standard “is not applicable to an expert’s pure opinion testimony which- is based solely upon the expert’s training and experience.” Id. at 579-80. In this case, Dr. Dikel carefully couched his testimony solely in relation to his professional experience. Thus, it was pure opinion testimony not subject to Frye.

We also disagree with Oliver’s contention that Dr. Dikel’s testimony constituted improper vouching for the credibility of the victims. It is well-established that an expert may not directly testify as to the truthfulness of the victim in a child sexual abuse case. Tingle v. State, 536 So.2d 202, 205 (Fla.1988). However, Dr. Dikel did not directly testify about the victims in this case. Instead, he offered observations from his experience regarding behaviors of child sex abuse victims. These were admissible to “properly aid a jury in assessing the veracity of a victim of child sexual abuse.” Id. They were also admissible'to rebut defense attacks on the victims’ credibility. See Russ v. State, 934 So.2d 527, 530-31 (Fla. 3d DCA 2006).

Admission of Oliver’s Prior Sexual Statements in the Presence of Children

Before trial, the State filed a motion in limine to admit Oliver’s prior statements regarding sexual activity. In one instance, Oliver allegedly told one of the girls on the soccer team he coached, “If your dad would get off or quit riding your momma, then maybe he’d be here on time.” The girl’s father later complained and Oliver was reprimanded by the soccer league. In another instance, Oliver told one of the victims that when he had sex with his girlfriend, her head would hit the headboard when she [had an orgasm] and that when he or his girlfriend Tina would [have an orgasm], they would knock the picture frame off the wall. The trial court ruled these statements were “highly inflammatory,” irrelevant, and therefore inadmissible.

At trial, Oliver testified on direct exam that he had coached in youth sports since he was eighteen years old, from Maryland to Florida. He was also asked about an incident of “sexual joking” that took place in front of children, in which Mrs. Ramsey put Oliver’s young child on her lap and prompted her to say something. Oliver explained, “It was referring to my ex-wife at the time, Shannon, as being Mommy’s a Ho, Daddy’s a Ho, Daddy’s a Jackass, inappropriate language for any of the children.”

Based on these two statements, the prosecutor argued, at a bench conference just before Oliver’s cross-examination, that Oliver had “opened the door” to questioning about statements the court had previously ruled inadmissible because Oliver had tried to portray himself as a model soccer coach and not approving of sexual talk in front of children. Defense counsel conceded that the prosecutor could ask if Oliver had been reprimanded. The court ruled that Oliver had made coaching a credibility issue. As to the extent of further questioning, the following exchange occurred:

[PROSECUTOR]: Judge, I can ask him if he made that statement. To ask him if he’s ever been reprimanded means nothing.
THE COURT: You can ask him. It depends on how.
[PROSECUTOR]: Were you ever asked to apologize to one of the parents?
THE COURT: If he says no, then that takes you to the next level.

On cross-examination, the following exchange occurred:

Q. Were you reprimanded by the administration of directors of the Lady Lake Soccer League for making an inappropriate sexual comment to [M.D.] on the field one day?
A. I was reprimanded for something.
Q. Do you know what that was for, sir?
A. Yes. You can be reprimanded for anything in the
soccer league. Any allegations that might come up, anything that arises.
Q. Let me refresh your recollection. [M.D.] was waiting for her mother one day from the soccer field. She’s a little girl. And you told her if your dad would get off or quit riding your mama, then maybe he’d be here on time. You told that to that child, correct?
A. I don’t recollect that. No, sir.
Q. Now, did there come a time as well sometime in 2005, late 2005, that you had a conversation with [D.J.E.] and I believe her brother, [M.E.], where you were talking about having sex with your girlfriend, Tina Turner, and making her come when her head would hit the headboard and bang the picture frame? Do you recall that?
A. That conversation never took place.
Q. Okay. And in that conversation, you indicated that when she would come and you would come, you would knock the picture frame off the wall. Do you remember saying that in front of [D.J.E. and M.E.]?
A. No. That conversation never took place.
Q. Okay. Would you consider that inappropriate language for children?
A. Yes. I would.

In its rebuttal case, the State called Oliver’s assistant soccer coach, Jim Gart-land, who overheard Oliver tell one of his girl soccer players to “tell your mama to get off your papa and come down here and pick you up.” The girl’s father complained to the president of the soccer league, who confronted Oliver. At first, Oliver denied making the statement, but ultimately apologized to the father. The State also recalled one of the victims, who testified that Oliver told her, in the presence of other children, that “when he was banging [his girlfriend], the picture on the wall would fall off. And also, when he made her come, she would hit the door.”

The abuse of discretion standard applies to review of trial court decisions to admit evidence. Lowry v. State, 963 So.2d 321, 325 (Fla. 5th DCA 2007). Oliver argues that the prosecutor violated a pretrial order in limine by questioning him and other witnesses about two sexually related comments he allegedly made.

However, we agree with the State that Oliver “opened the door” by portraying himself on direct examination as someone who had been a model soccer coach and someone who disapproved of talking about sex in front of children. Once the door was opened, and the trial court had revisited its prior ruling, Oliver failed to object to the prosecutor’s subsequent questioning. Even if Oliver had objected, we believe the prosecutor’s questions were proper. When Oliver was asked about being reprimanded for making sexually inappropriate comments, he attempted to mislead the jury by responding that he was reprimanded “for something.” Consequently, the State was entitled to follow up on this question to negate any false impression created by Oliver. See, e.g., Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992).

Prosecutor’s Improper Attack on Oliver’s Fiancé

Oliver’s fiancé, Sharon Dlugoborski, testified for the defense. During cross-examination, Dlugoborski acknowledged that at one point after Oliver went to jail, she moved in with a woman named Bebe Fox. At that point, the prosecutor asked Dlugo-borski, “And you moved in with Bebe Fox because you slept in the same bed with her?” The trial court sustained Oliver’s objection to the question.

Later, during Oliver’s cross-examination, the prosecutor asked Oliver about his telephone conversations with Dlugoborski from jail:

Q. Did there come a time when you discussed with Sharon her bisexuality and sleeping in the same bed with Bebe Fox?
A. No. I did not discuss her—

At that point, defense counsel objected and asked that the question be stricken. At a bench conference, defense counsel requested a mistrial based upon the prosecutor’s question regarding the sexual orientation of the witness. The court denied the motion, stating:

As to the issue of the motion concerning the bisexuality of any witnesses, it has been stopped at this point. And I believe by sustaining that objection, stopping and advising the State not to go any further with that, your client has not been unfairly prejudiced.

Oliver argues that the trial court erred in denying his motion for mistrial after the prosecutor improperly attempted to impugn the credibility of a key defense witness by accusing her of being a lesbian. A trial court’s ruling on a motion for mistrial is reviewed for abuse of discretion. Lowry, 963 So.2d at 327. A motion for mistral should only be granted if the error is so prejudicial that it vitiates the entire trial. Id.

Here the prosecutor’s attempt to cast Dlugoborski as a lesbian was clearly improper. It was both irrelevant and unfairly prejudicial. However, we believe the trial judge was in the best position to judge the detrimental impact of this attack. We cannot say, based on the record before us, that the trial court abused its discretion in concluding that this error was not so prejudicial as to vitiate the entire trial.

Accordingly, we affirm Oliver’s convictions.

AFFIRMED.

GRIFFIN and COHEN, JJ., concur.


text:
    Jamil WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4326.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2008.
    Rehearing Denied March 27, 2008.
    Robert A. Rush, Gainesville, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order denying a rule 3.850 motion in which he argues that his trial counsel was ineffective because he failed to properly raise and preserve below an argument that resulted in relief for a co-defendant. We reverse.

The appellant and co-defendant, Morris Terry, were charged with several offenses related to trafficking in and selling or delivering cocaine, and were tried together. During the trial Terry’s counsel made a motion for judgment of acquittal, arguing that the state had failed to prove the weight of the cocaine and thus Terry could not be convicted of the trafficking charge. The appellant’s counsel did not make a similar motion. Approximately 32 days after the conviction, Terry’s counsel filed a renewed motion for judgment of acquittal which included the weight-of-the-cocaine argument. The appellant’s counsel joined in the renewed motion. The trial court held a hearing on the motion and the record appears to indicate that the court either denied the motion on the merits or denied the motion because it was untimely filed. Although the statement of judicial acts to be reviewed cited the claim that the state failed to prove the weight of the cocaine, appellate counsel did not argue this point in the direct appeal. This Court per curiam affirmed the judgment and sentence in White v. State, 888 So.2d 629 (Fla. 1st DCA 2004). Thereafter, in Terry v. State, 892 So.2d 1132 (Fla. 1st DCA 2004), this Court reversed Terry’s conviction for trafficking in cocaine because we concluded that the state had failed to prove the weight of the cocaine. We ordered that Terry’s conviction be reduced to possession of cocaine.

The appellant then filed a petition for habeas corpus, which we treated as a petition for ineffective assistance of appellate counsel, arguing that appellate counsel was ineffective for failing to argue the weight-of-the-cocaine claim in the direct appeal. The state responded to this Court’s show cause order by arguing that trial counsel was ineffective for failing to properly raise and preserve the argument below, and thus appellate counsel could not be ineffective. We denied the petition in White v. State, 911 So.2d 845 (Fla. 1st DCA 2005).

The appellant then filed the instant rule 3.850 motion asserting that his trial counsel was ineffective for failing to properly preserve the weight-of-the-cocaine argument. In response to the trial court’s order requesting that the state respond to the motion, the state argued that trial counsel did properly raise and preserve the claim, and thus, if anyone were ineffective, it was appellate counsel because she failed to argue the point in the direct appeal. The trial court accepted the state’s argument and denied the motion after finding that trial counsel raised and preserved the claim.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance a defendant must allege the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, and that the defendant’s case was prejudiced by these acts or omissions such that the outcome of the case would have been different. See id. at 690, 692, 104 S.Ct. 2052. To present a facially sufficient postconviction claim that counsel was ineffective for failing to raise and preserve a sufficiency of the evidence claim for appeal via a timely and contemporaneous motion for judgment of acquittal, “a movant should state sufficient facts to show that ‘[he] may very well have prevailed on a more artfully presented motion for acquittal based upon the evidence he alleges was presented against him at trial.’ ” Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003) (quoting Boykin v. State, 725 So.2d 1203 (Fla. 2d DCA 1999)). In this case, it is clear that a proper motion preserving the issue for appeal would have resulted in relief, given that the co-defendant prevailed on appeal. See Terry, 892 So.2d at 1133. On this issue, counsel did not make a timely motion for judgment of acquittal. Yet, as explained by this Court in Pinkerton v. Edwards, 425 So.2d 147, 149 (Fla. 1st DCA 1983), “[t]he entry of a motion for judgment of acquittal in accordance with Florida Rule of Criminal Procedure 3.380 is a common trial tactic which serves to test the legal sufficiency of the State’s ease as to each element of the charged offense and to preserve the issue for appeal.”

We, therefore, reverse the trial court’s summary denial and remand for further proceedings on the appellant’s claim consistent with this opinion.

REVERSED AND REMANDED.

ALLEN, WOLF, and POLSTON, JJ., concur.


author: KELLY, Judge.

text:
    Christopher BELLAMY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-594.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.
    Rehearing Denied April 2, 2008.
    Robert E. Heyman of Zimmet, Unice, Salzman & Heyman, P.A., Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Christopher Bellamy appeals from his judgment and sentences for second-degree murder with a weapon for the death of David Anderson, attempted second-degree murder with a weapon for the stabbing of David Decker, and aggravated battery with a deadly weapon for the injury to David DeMedici. We find merit in his argument that the trial court erred in failing to grant his motion for judgment of acquittal as to the second-degree murder and attempted second-degree murder charges, and therefore we reverse.

Second-degree murder is “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2004).

- “An act is one ‘imminently dangerous to another and evincing a depraved mind’ if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.” Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996) (quoting Fla. Std. Jury Inst. (Crim.) 66). Bellamy moved for a judgment of acquittal arguing that the State had not proved that he acted out of ill will, hatred, spite, or evil intent. We agree.

The charges against Bellamy arose from what witnesses described as a “chaotic brawl,” “melee” or “affray” that occurred at the New World Brewery in Tampa. Bellamy was at the New World Brewery to hear his cousin’s band, Nuclear Beer. Witnesses described Nuclear Beer as a punk rock band that played its music at “ear splitting volume.” At some point during the show, the band invited bar patrons to sing “cover songs” along with them using an extra microphone connected to the bands sound system. Those patrons included David Decker and Joseph Paez.

Decker, who was intoxicated, joined others in singing along with the band; however, he kept stepping on a cable running from the microphone to the sound board. At the request of the sound engineer, Bellamy approached Decker to ask him to move away from the microphone. It was too loud to talk so Bellamy tried to usher Decker away from the microphone by placing his hand on Decker’s elbow. Decker turned away and ignored him. However, Decker’s friend, Paez, took umbrage at this and approached Bellamy to find out what he was doing. Bellamy tried to explain; however, Paez was not receptive. Bellamy and Paez began to fight. At some point, Decker, whose attention had returned to the band, reeled around and joined Paez in the fight with Bellamy. Decker testified that he placed Bellamy in a “bear hug,” pushed him into the wall, felt a pain in his arm and when he looked down, he saw a knife being pulled out of his side.

The State’s other witnesses testified generally to having seen Bellamy engaged in an “affray” with a crowd of people who were either trying to break-up the fight between Paez and Bellamy or who were joining in the fight. The crowd backed Bellamy up against a brick wall. Witnesses indicated that at some point the crowd fell and pushed Bellamy to the ground. Some witnesses saw Bellamy with a knife before he fell; others did not. There is some indication that the crowd “surged” and fell when alerted to the presence of a knife. Bellamy testified that after he was pushed down, someone stepped or kneeled on his neck and that he was not able to breathe. He claimed that it was at this point that he took a knife from his rear pocket and used it to get people off him. Eventually, someone in the crowd disarmed Bellamy. Paez testified that David Anderson was pulled from the pile of people on top of Bellamy after Bellamy was disarmed. No witness saw Bellamy stab Anderson or even saw Anderson in the area where the fight took place, except for Paez, who saw Anderson at the bottom of the pile of people on top of Bellamy.

Bellamy did not know Decker or Anderson. Bellamy initially approached Decker at the request of the sound engineer, not because he had any problem with Decker. Nothing the State’s witnesses described when testifying about this brief interaction demonstrated any enmity between Bellamy and Decker. Decker was stabbed only after he joined Paez in the fight with Bellamy. All we know about Anderson is that he was stabbed at some point during the ensuing affray. By the accounts of all witnesses, it was a chaotic environment and the entire affray lasted only one or two minutes. We conclude that while the State’s evidence may have proved an “impulsive overreaction to an attack or injury,” it was insufficient to prove ill will, hatred, spite, or evil intent. See Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); see also Williams v. State, 674 So.2d 177 (Fla. 2d DCA 1996); McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993). Accordingly, we reverse Bellamy’s convictions for second-degree murder and attempted second-degree murder and remand with directions to enter a judgment of conviction for manslaughter with a weapon and attempted manslaughter with a weapon and to resentence Bellamy accordingly. See Rayl v. State, 765 So.2d 917 (Fla. 2d DCA 2000). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for resentencing.

SALCINES and LaROSE, JJ., Concur.