author: GROSS, J.

text:
    Otis PUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3393.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Otis Pugh appeals his conviction for soliciting to deliver cocaine. An undercover police officer testified that Pugh asked for “a 20,” which the officer explained was “street terminology for $20 worth of crack cocaine.” The officer based his translation of the slang term on his “knowledge and experience of working in that area,” where crack cocaine is often purchased. On cross-examination, the defense tried to establish that the term “20” might have meant marijuana or “just about anything.” On redirect examination, the officer explained that in the “particular location” of the sting, crack cocaine was the drug of choice, so “20” referred to crack cocaine. The defense objected to the testimony on redirect examination.

We distinguish this case from Wheeler v. State, 690 So.2d 1369 (Fla. 4th DCA 1997). In that case, an officer testified concerning his prior experience with cocaine purchases in an area and the neighborhood’s reputation for the sale of crack cocaine. The purpose of the evidence was to imply “guilt through association,” to convince the jury “that because the area of [the] arrest was known for cocaine sales, defendant must have agreed to sell cocaine.” Id. at 1371. The essence of the holding in Wheeler was that the “probative value” of the “bad neighborhood” testimony was “substantially outweighed by the danger of unfair prejudice.” See § 90.403, Fla. Stat. (2006).

Here, the officer’s testimony had a probative value apart from its characterization of the neighborhood. The officer was explaining the basis of his opinion on the meaning of the term “20.” A slang phrase derives its meaning from those in the community who use the term; the speakers have tacitly agreed on a meaning. Based on his street experience, the undercover officer testified as an expert witness “regarding street language in the drug culture.” Slater v. State, 356 So.2d 69, 70 (Fla. 1st DCA 1978); see Daniels v. State, 381 So.2d 707, 710 (Fla. 1st DCA 1979) (quoting Slater); Howard v. State, 738 So.2d 372, 374 (Fla. 5th DCA 1999) (holding that detective qualified as expert in “street slang” based on her “heritage as an African American raised in the Orlando area for thirty years” and her experience “using the slang as an undercover police officer”).

In addition to the location where it is used, a slang word also draws meaning from context. A “twenty” means something different to a Wal-Mart cashier processing a sale than it does in an open air crack market. Here, the danger of unfair prejudice did not substantially outweigh the high probative value of the undercover officer’s testimony translating drug argot. See § 90.403, Fla. Stat. (2006).

On the seoresheet issue we find harmless error. The defendant scored out to nonstate prison sanctions under either seoresheet. Without focusing on the seoresheet, the trial court exercised its discretion and determined that a nonstate prison sanction was not appropriate, sentencing defendant to four years in prison. We reverse that portion of the sentence ordering a driver’s license revocation under section 322.055(1), Florida Statutes (2005). Solicitation to deliver cocaine is not one of the enumerated offenses contained in the statute. See Huesca v. State, 841 So.2d 585, 586 (Fla. 2d DCA 2003).

Affirmed in part, reversed in part to correct the sentencing documents.

WARNER and FARMER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AFFIRMATIVE INSURANCE COMPANY, Petitioner, v. Josianny Meza-GOMEZ, Respondent.
    No. 4D07-2946.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Thomas A. Paigo of Rubinton & Laufer, LLC, Davie, for petitioner.
    David B. Pakula, Pembroke Pines, and Adolfo A. Podrecca, Fort Lauderdale, for respondent.
   PER CURIAM.

This issue comes before the Court for second tier review on a petition for writ of certiorari. Petitioner, Affirmative Insurance, Co. seeks that this Court quash the circuit court order “Reaffirming Dismissal of Appeal and Granting Appellee/Plain-tiff/Josianny Meza-Gomez’s Motion to Deem All Papers After Order of Dismissal Dated May 21, 2007, a Nullity, to Deem this Appeal Dismissed, and for Additional Attorney’s Fees.”

Review of a circuit court’s decision when acting in its appellate capacity is narrowly limited to a determination of whether the circuit court afforded procedural due process and applied the correct law. Ivey v. Allstate Ins. Co., 774 So.2d 679, 681 (Fla.2000). The circuit court erred in granting the “Motion to Deem All Papers ...” on grounds that it did not have jurisdiction to reinstate the petitioner’s appeal. The court did have jurisdiction and accordingly the dismissal failed to provide procedural due process.

Therefore, certiorari is granted, the order dismissing the appeal in the circuit court is quashed, and the case remanded for further proceedings.

STONE, KLEIN and STEVENSON, JJ., concur.


author: STONE, J.

text:
    Steven BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4165.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Beasley appeals his convictions for six counts of child abuse. The primary issue is whether it was fundamental error to instruct the jury on a theory of child abuse that was not charged in the information. We affirm.

On the child abuse counts, the state charged that Beasley “did intentionally inflict physical or mental injury upon a child in violation of Florida Statute 827.03(l)(a).”

Regarding the child abuse allegations, “S” said that her father, Beasley, used a wooden paddle to spank her and her siblings. Beasley also hit them with a vacuum cleaner tube or a wooden rod. Beasley’s beatings caused bruising and bleeding. “S” said her father ■ would sometimes lose control and hit the children on their legs, back, chest, stomach, or head. He also hit “S” on the head with the handle of a knife, causing her to bleed, and on another occasion, held the wooden rod against her neck while she lay on the bed. Beasley also pulled “S” ⅛ hair on several occasions, one time yanking her from one room to another by the hair.

Another child, “K,” said Beasley would hit her and her siblings with the vacuum cleaner tube. At various times, she saw her father punch “S” in the chest, pull out a chunk of her hair, and put her in a headlock.

Beasley testified, denying all allegations of abuse.

The trial court instructed the jury on the child abuse counts as follows:

Before you can find the defendant guilty of child abuse the State must prove the following two elements beyond a reasonable doubt. One, that Steven Allen Beasley intentionally inflicted physical or mental injury upon [“S”], or committed an intentional act that could reasonably be expected to result in physical or mental injury to [“S”]. Two, that [“S”] was under the age of 18.... Physical injury means death, permanent or temporary disfigurement or impairment of any bodily part.

The trial court similarly instructed as to the counts relating to the other children.

Jury instructions are “subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred.” Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting State v. Delva, 575 So.2d 643, 644 (Fla.1991)). Beasley did not object to the disputed instruction.

There are three ways to commit child abuse:

(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement....

§ 827.03(1), Fla. Stat. The state charged the first type, but the trial court instructed the jury on both the first and second types.

As a rule, “where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information” and the jury returns a general verdict of guilty without specifying the basis for the conviction. Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005); see, e.g., Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004) (finding fundamental error where jury instructed on alternate theory not charged in the information); Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (same).

In Weaver v. State, 916 So.2d 895, 898 (Fla. 2d DCA 2005), the Second District reversed Weaver’s conviction for battery on a law enforcement officer because the trial court fundamentally erred in instructing the jury on an uncharged alternate theory of the offense. The Weaver court certified a question asking if jury instructions constitute fundamental error when no evidence was presented or argument made on the uncharged alternate theory of the offense. Id.

The supreme court quashed the Second District’s decision reversing Weaver’s conviction. See State v. Weaver, 957 So.2d 586 (Fla.2007). The supreme court also disapproved of Vega and the similar Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001), to the extent these cases were inconsistent with the holding of Weaver. Id. In Weaver, the jury was instructed, without objection, on both the “intentionally causing bodily harm” theory of battery and the “intentional touching or striking” theory of battery, though the information charged only the latter theory. Id. at 587. The supreme court held: “Because bodily harm was never at issue in Weaver’s case, and the State never argued or presented evidence of bodily harm, the trial court’s inclusion of the bodily harm element in the jury instructions did not rise to the level of fundamental error.” Id. at 589. The high court reasoned that where there was neither evidence of nor argument on the uncharged theory of the offense, it was not impossible to know whether the defendant was convicted of the charged theory of the offense or the uncharged theory. The court concluded, “in such cases, the jury’s verdict is based not on elements that were never at issue, but on the elements on which the State actually presented evidence, on which the State based its arguments, and which the defendant contested at trial.” Id. The supreme court left intact, however the rule enunciated in Vega that it is fundamental error to instruct the jury on an uncharged alternate theory of an offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory. See Sanders v. State, 959 So.2d 1232, 1234 (Fla. 2d DCA 2007).

Here, although the state did refer to both theories in its final argument, it did so only to the limited extent that counsel repeated the instruction as given by the court. The state prosecuted the case only on the theory of intentional infliction of physical and mental injury. And, the defense was that the events did not occur. Thus, there could have been no confusion on the jury’s determination of guilt on the alternative theory of child abuse. Because neither the state prosecuted on the alternative theory, nor did the evidence support an alternative theory, the instruction did not rise to the level of fundamental error. See Weaver. We, therefore, conclude that the inclusion of the “reasonably be expected to” language in the instructions did not instruct on a disputed issue in the case, and that counsel’s repetition of the instruction did not amount to such argument or presentation of evidence on that element as to constitute fundamental error. Rather, the evidence and the argument in this case were all directed at the intentional infliction of “physical or mental injury.”

To constitute fundamental error, a jury instruction omission or misstatement must concern a critical and disputed jury issue in the case. See Williams v. State, 400 So.2d 542, 544 (Fla. 3d DCA 1981). We consider Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997), instructive. There, Graves was charged with sexual battery by digital penetration. The instruction, however, included the alternative method of committing the offense by a “union.” The First District concluded that this erroneous addition to the instruction did not constitute fundamental error, noting:

Moreover, the record in this case makes clear that the assistant state attorney did not try this case on a union theory. Instead, the prosecutor focused only on the evidence of penetration, as to the count of the information alleging information.

Id. at 149.

Here, as the state did not put on pertinent evidence or argument directed at the alternative theory, the inclusion of the alternative language, even combined with the state’s repetition in the instruction, did not rise to the level of fundamental error.

Beasley also contends that the trial court erred at the sentencing by closing the courtroom to all but family during testimony by the minor victims. Beasley, however, made no objection to the courtroom being cleared of spectators, and, thus, it appears this issue is not preserved. See Alvarez v. State, 827 So.2d 269, 276 (Fla. 4th DCA 2002) (holding that the failure to object to the closure of a trial constitutes a waiver of the right to a public trial); see also Jones v. State, 883 So.2d 369 (Fla. 3d DCA 2004); Evans v. State, 808 So.2d 92 (Fla.2001) (no fundamental error in closing argument during voir dire; issue not preserved in absence of objection).

We have considered, and reject, Beasley’s contention that he preserved the issue by filing a rule 3.800(b)(2) motion to correct sentencing error. In support of his position, he cites Jackson v. State, 952 So.2d 613 (Fla. 2d DCA 2007), rev. granted, 959 So.2d 716 (Fla.2007), in which the victim testified at sentencing when defense counsel was not present. The Second District held this was a denial of counsel and error, but that Jackson’s counsel did not raise this issue in a rule 3.800(b)(2) motion. Beasley argues that he, like Jackson, has raised a claim of “constitutional error”— his constitutional right to a public sentencing hearing — but that, unlike Jackson, he properly raised the issue in a rule 3.800(b)(2) motion.

We agree, however, with the reasoning in the concurring opinion in Jackson, by Judge Stringer, who disagreed with the majority’s assertion that this type of error could have been preserved by means of a rule 3.800(b)(2) motion. The concurring opinion first notes that:

The court commentary to the rule defines “sentencing errors” for purposes of the rule as including “harmful errors in orders entered as a result of the sentencing process” and “errors within the sentence itself’.... In discussing the use of rule 3.800(b)(2), the supreme court identified various “sentencing errors” that should be preserved by a motion pursuant to rule 3.800(b)(2), including sentences exceeding the statutory maximum, habitualization in violation of the statutory requirements, score-sheet errors affecting the length of sentence, erroneous imposition of minimum mandatory sentences, deviation between the written and oral judgments and sentences, improper departure sentences, and improper imposition of costs. Maddox v. State, 760 So.2d 89, 101-10 (Fla.2000).
While I do not suggest that the list of sentencing errors identified in Maddox is, or was intended to be, an exhaustive list of every conceivable “sentencing error,” each of the types of errors identified in Maddox meets the definition of a “sentencing error” provided in the court commentary to rule 3.800(b)(2) and discussed in its opinion adopting the rule.
See Amendments [to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.1k0, and 9.600], 761 So.2d [1015] 1019 [ (Fla.1999) ]. Thus, under my reading of the court commentary to rule 3.800(b)(2) and Maddox, I believe that a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself-not any error that might conceivably occur during a sentencing hearing.
I do not believe that by adopting rule 3.800(b)(2) the supreme court intended to give a criminal defendant the right to stand mute in the face of obvious procedural irregularities at a sentencing hearing secure in the knowledge that if he or she is dissatisfied with the resulting sentence, he or she could resurrect objections to those procedural deficiencies in a subsequent 3.800(b)(2) motion.

952 So.2d at 615-16 (emphasis added).

Similarly, here, we conclude that the exclusion of spectators during testimony by minors at sentencing, without objection, did not constitute a “sentencing error” that is preserved by the filing of a motion under rule 3.800(b)(2).

Therefore, the judgment and sentence are affirmed.

STEVENSON and MAY, JJ., concur.

      . There are convictions on three other counts, involving sexual abuse, unrelated to the issue on appeal.


author: STRINGER, Judge.

text:
    Lucille T. CAMPBELL, Appellant, v. Darlene L. GRIFFITH, as Representative of the Estate of Stoner A. Griffith, Appellee.
    No. 2D07-2493.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Steven George Lavely of Lavely, Whyte & Fischer, P.A., Bradenton, for Appellant.
    Daniel P. Mitchell of Barr, Murman & Tonelli, P.A., Tampa, for Appellee.
   STRINGER, Judge.

Lucille T. Campbell appeals from the final judgment entered on the jury’s verdict in this personal injury action. We agree with Campbell that the jury’s verdict on all issues other than future lost earning ability was against the manifest weight of the evidence; therefore, we reverse and remand for a new trial on the issue of damages other than future lost earning ability. This holding renders Campbell’s other two issues moot.

On February 15, 2004, Campbell was driving in Bradenton when she was hit broadside on the passenger side of her vehicle by a vehicle driven by the defendant’s decedent. Campbell immediately suffered pain in her left elbow. She was not treated at the scene, but she went to the emergency room later that day, where various diagnostic tests were performed. Ultimately, Campbell was given pain medication and a sling. She wore the sling for approximately two weeks before her elbow pain resolved.

Within several weeks of the accident, Campbell noticed that her left arm occasionally felt tingly, numb, and cold. These feelings were intermittent, and Campbell did not initially seek treatment for this problem or attribute it to the accident. However, on October 2, 2004, Campbell was rushed to the emergency room when her left arm became cold and hard. She was found to have a blood clot blocking the flow of blood to her left arm. After several diagnostic procedures, doctors determined that the clot was the result of an aneurysm in Campbell’s subclavian artery near her left shoulder. Campbell underwent a surgical procedure to place a stent in the subclavian artery as a result. In August 2005, the stent failed, and Campbell required a second surgical procedure because of the aneurysm. Both Campbell’s treating doctor and the defense’s medical expert testified that Campbell would likely need future surgery on the subclavian artery as a result of the aneurysm.

At trial, both Campbell’s treating doctor and the defense’s medical expert, who had performed a compulsory medical examination on Campbell, testified that while sub-clavian aneurysms can result from various medical conditions, Campbell suffered from none of those conditions. Because of this, both doctors testified that Campbell’s aneurysm was caused by the auto accident within a reasonable degree of medical probability. Both doctors also testified that the delay of seven months between the accident and the onset of severe symptoms was not unusual with a vascular injury of this nature. Both doctors further testified that the injury was permanent. Griffith did not significantly impeach the testimony of either of these medical witnesses, nor did Griffith present any contradictory medical evidence.

At the time of the accident and through the time of trial, Campbell was employed by WalMart. Campbell testified that while she had lost time from work due to the treatment for her aneurysm, she had used her sick time and thus had no claim for past lost wages. However, Campbell testified that after the accident, she was no longer able to work as a stocker and she had been moved to a different position with a concomitant reduction in pay. Because of this, Campbell sought damages for lost future earning ability. However, at trial, Campbell admitted that she had continued to work as a stocker from the time of the accident in February 2004 until November 2005, when she had suffered a stroke. Only after the stroke was her employment changed and her pay reduced.

After the close of the evidence, the trial court granted Campbell’s motion for directed verdict on the issue of permanence. However, the trial court denied Campbell’s motion on the issue of causation. Despite this ruling, however, the trial court instructed the jury as follows:

The parties have agreed and the Court now instructs you as a matter of law that at the time of the February 15, 2004, accident, Stoner A. Griffith was negligent and that such negligence was a legal cause of injury sustained by Plaintiff Lucille T. Campbell.
The issue for your determination on the claim of Lucille T. Campbell is what damages were suffered by Lucille T. Campbell as a result of the February 15th, 2004 accident.

Moreover, the verdict form did not ask the jurors to determine whether Griffith’s negligence had caused Campbell’s injuries. Instead, the verdict form simply asked the jurors to determine “the amount of any damages sustained by Plaintiff, LUCILLE T. CAMPBELL” for past medical expenses, the present value of any damages sustained for future medical expenses, the present value of any damages for future lost earning ability, and the amount of damages sustained for pain and suffering.

During closing arguments, defense counsel argued that the jury was free to accept or reject any expert testimony, and he argued that the jury could find that the delayed onset of the severe symptoms of the aneurysm meant that it was not caused by the accident. While not specifically argued, defense counsel did not dispute that, at a minimum, Campbell suffered an injury to her elbow in the accident and that she endured pain and inconvenience for approximately two weeks as a result of that injury. Campbell argued that all of her medical treatment, including that for her stroke, resulted from the auto accident.

After deliberations, the jury awarded Campbell approximately half of her past medical bills. It awarded nothing for future medical expenses, future lost earning ability, past pain and suffering, or future pain and suffering. Campbell subsequently moved for a new trial on various grounds, including that the verdict was legally inadequate and that it was against the manifest weight of the evidence. The trial court denied this motion and later entered a judgment on the jury’s verdict. In this appeal, Campbell contends that the trial court abused its discretion when it denied her motion for new trial. We agree in part.

The standard of review of the trial court’s denial of a motion for new trial was recently discussed in detail by the Fourth District.

The appropriate standard of review applied to a trial court’s denial of a motion for a new trial is whether the trial court abused its discretion. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). Brown articulates the test for determining whether the trial judge committed an abuse of discretion and provides that:

[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Id. at 497-98. Furthermore, in Dewitt v. Maruhachi Ceramics of America, Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000), the Fifth District explained that:

The question for an appellate court is not whether or not the verdict was contrary to the manifest weight of the evidence presented below. Indeed that is the question addressed to the trial court on motion for a new trial. Rather, the appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial. In order for [the appellate court] to reach that conclusion, the evidence must be clear and obvious, and not conflicting ...
(citations and footnote omitted). See also K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998) (recognizing that where there is conflicting evidence, the weight to be given that evidence is within the province of the jury).
Despite this deferential standard, “an appellate court should reverse a jury verdict when there is no rational basis in the evidence to support the verdict of the jury.” Sifford v. Trans Air, Inc., 492 So.2d 407, 408 (Fla. 4th DCA 1986). “[W]here the testimony on pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected.” Merrill Stevens Dry Dock Co. v. G & J Invs. Corp., Inc., 506 So.2d 30, 32 (Fla. 3d DCA 1987).

Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 117-18 (Fla. 4th DCA 2007).

Here, we agree with the trial court that there was a rational basis for the jury to award Campbell nothing on her claim for future lost earning ability. Campbell’s undisputed testimony was that after the accident she continued to work as a Stock-er until after her stroke in November 2005. Because the jury could have found, based on the evidence presented, that Campbell’s “demotion” was due to limitations imposed by the stroke rather than by the aneurysm and could have found that the stroke was not related to the aneurysm, the trial court did not abuse its discretion in denying Campbell’s motion for new trial on this element of damages.

As to the other elements of damages, however, we can discern no rational basis that would support the jury’s verdict based on the evidence presented. Griffith did not dispute that Campbell’s elbow injury was related to the accident, did not dispute that the treatment for this injury was reasonable and necessary, and did not dispute that Campbell suffered pain and inconvenience due to the elbow injury. Based on this evidence alone, the jury’s zero verdict for past pain and suffering is inadequate as a matter of law. Ellender v. Bricker, 967 So.2d 1088 (Fla. 2d DCA 2007) (holding that when “the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law”) (quoting Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708, 710 (Fla. 3d DCA 1999)); cf. Allstate Indem. Co. v. Clark, 736 So.2d 1, 2 (Fla. 2d DCA 1998) (holding that a verdict that fails to award noneconomic damages, despite awarding economic damages for injuries arising out of the accident, is “neither inconsistent nor inadequate unless the evidence of intangible damages is entirely uncontroverted” (emphasis added)).

Moreover, in light of the evidence presented at trial, the jury’s verdict on past and future medical expenses and past and future noneconomic damages is against the manifest weight of the evidence. We recognize that, as Griffith argued at trial, a jury is free to accept or reject an expert’s testimony or to give it such weight as it deserves considering the witness’s qualifications, the stated basis for the witness’s opinion, and all of the evidence in the case. Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla.1993); Shaw v. Puleo, 159 So.2d 641, 643-44 (Fla.1964); State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061, 1062 (Fla. 4th DCA 1995). However, when medical evidence on permanence or causation is undisputed, unim-peached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. See, e.g., Holmes v. State Farm Mut. Auto. Ins. Co., 624 So.2d 824, 825 (Fla. 2d DCA 1993); Jarrell v. Churm, 611 So.2d 69, 70 (Fla. 4th DCA 1992).

Here, both Campbell’s treating doctor and the defense medical expert testified that her subclavian aneurysm was a permanent injury caused by the auto accident and that there was no other medical explanation for its etiology. In light of this undisputed and unimpeached evidence, the jury’s verdict awarding no future medical expenses and no past or future noneco-nomic damages was against the manifest weight of the evidence. Accordingly, the trial court abused its discretion by not granting a new trial on these elements of damages.

Based on the evidence presented at trial, we affirm the judgment in favor of Griffith on the issue of Campbell’s future lost earning ability claim. However, we reverse and remand for a new trial on the issues of past and future medical expenses and past and future noneconomic damages.

Affirmed in part; reversed in part; and remanded for further proceedings.

ALTENBERND and WHATLEY, JJ., Concur.

      . While neither doctor specifically referred to this as a "seatbelt injury,” Campbell's treating doctor, Dr. Pizzo, noted that the subclavian artery lies under the collarbone at the point where a driver’s seatbelt would cross the left shoulder. He also testified that a subclavian aneurysm could result from the sudden deceleration caused by hitting a seatbelt in a collision.


author: SALCINES, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Jeffrey DeGROOT, Respondent.
    No. 2D07-162.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    Judson Chapman, General Counsel, and Jason Helfant, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Miami, for Petitioner.
    Bruce H. Denson of Bruce H. Denson, P.A., St. Petersburg, for Respondent.
   SALCINES, Judge.

The Department of Highway Safety and Motor Vehicles (DHSMV) seeks second-tier certiorari review of the circuit court order which granted a petition for writ of certiorari. The circuit court acting in its appellate capacity overturned the suspension of Jeffrey DeGroot’s driver’s license privileges following an arrest for driving under the influence of alcohol. We conclude that the circuit court committed a legal error which violated a clearly established principle of law resulting in a miscarriage of justice when it held the evidence was insufficient to support the suspension of DeGroot’s license.

On August 20, 2006, DeGroot was arrested for DUI. He cooperated and submitted to a breath test on an Intoxilyzer 8000. Based on the results of that test, DeGroot’s driving privilege was suspended. See § 322.2615(l)(a), Fla. Stat. (2006). At an administrative formal review, the hearing officer was only presented with a Breath Test Result Affidavit to support the determination that DeGroot’s breath-alcohol level was 0.08 or higher. A Final Order of Suspension was issued by DHSMV based upon the evidence before it. This order was the subject of De-Groot’s petition for writ of certiorari to the circuit court.

A three-judge circuit court panel considered the petition for writ of certiorari. The circuit court was convinced by De-Groot’s argument that the suspension should be overturned because pursuant to State, Department of Highway Safety and Motor Vehicles v. Garcia, 935 So.2d 542, 545 (Fla. 3d DCA 2006), in order to comply with Florida Administrative Code Rule 15A-6.013(2) (2005), and to uphold the suspension of driving privileges of an individual who has submitted to a breath test, the record must include both a Breath Test Result Affidavit and “the actual result documenting the driver’s blood alcohol level, which in this case is the intoxilyzer print card.” Id. at 545-46.

This court considered the eviden-tiary requirements of rule 15A-6.013(2) in Department of Highway Safety & Motor Vehicles v. Snelson, 817 So.2d 1045 (Fla. 2d DCA 2002), and State, Department of Highway Safety & Motor Vehicles v. Anthol, 742 So.2d 813 (Fla. 2d DCA 1999). Those cases involved similar facts in that the petitions for writ of certiorari presented to the circuit courts were granted based on the conclusion that the evidence submitted was insufficient to support the driver’s license suspension because items listed in rule 15A-6.013(2)(a-k) as reports to be included in the record had not been properly presented to the administrative hearing officer. In those cases this court granted the second-tier petitions for writ of certiorari and overturned the circuit court orders. We held that the circuit courts had relied upon the language of rule 15A-6.013(2) and had ignored the patently permissive language of section 322.2615(2). This statute sets forth the evidentiary items which must be forwarded to the DHSMV by the law enforcement officer who has suspended the driver’s license of an individual based upon a blood-alcohol or breath-alcohol level of 0.08 or higher or based upon a refusal to submit to a breath, blood, or urine test. The statutory requirement for submission of evidence to DHSMV relating to the test is that the law enforcement officer shall submit “the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit.” § 322.2615(2). The statute does not specifically require that the intoxilyzer card with the printed results be submitted in order to establish the results of a breath-alcohol test. We conclude the circuit court erred when it concluded that the suspension of DeGroot’s driver’s license was not supported by competent, substantial evidence due to the failure to include the intoxilyzer print card in the record before the hearing officer.

In a second-tier certiorari proceeding, the scope of this court’s review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003). In the present case there is no question that due process was afforded. Therefore, this court only need determine if there has been a legal error which violated a clearly established principle of law resulting in a miscarriage of justice. Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002). We conclude that such a legal error has occurred based on this court’s opinions in Snelson and An-thol. Accordingly, we grant the petition for writ of certiorari, issue the writ, and quash the circuit court’s order.

Petition granted.

FULMER, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . The 2005 and 2006 version of the rule state: (2) The hearing officer shall consider any report or photocopies of such report submitted by a law enforcement officer, correctional officer or law enforcement or correctional agency relating to the arrest of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. Such reports, which shall be in the record for consideration by the hearing officer, include:
      (a) The uniform traffic citation or notice of suspension issued to the driver;
      (b) An affidavit stating the officer's grounds for belief that the person arrested was in violation of s. 316.193;
      (c) An affidavit of any breath, urine or blood test refusal, submitted by a law enforcement officer;
      (d) The results of any breath or blood test documenting the driver’s alcohol level.
      (e) The officer's alcohol influence report or a description of the field sobriety test;
      (f) Any video or audio tape of the driver incidental to the arrest, including any field sobriety test performed or attempted to be performed by the driver;
      (g) Notice of Commercial Driver’s License/Privilege Disqualification, HSMV Form 72005;
      (h) Certification of Blood Withdrawal, FDLE/ICP Form 11;
      (i) Breath Test Result Affidavit, FDLE/ICP Form 14;
      (j) Blood Test Result Affidavit, FDLE/ICP Form 15; or
      (k) Agency Inspection Checklist, FDLE/ICP Form 24.
      (Emphasis added). We note that rule 15A-6.013(2) was amended effective March 9, 2007, to eliminate the enumerated list of documents that is the source of dispute in the present case. 2007 FL Reg. Text 67611. All references to the rule in this opinion relate to rule 15A-6.013 in effect from 1997 prior to the 2007 amendment.


author: ALTENBERND, Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Maida Solano VOIGT, Appellee.
    No. 2D06-4650.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Steven M. Brady of Swartz Campbell LLC, Orlando, for Appellant.
    Jeffrey M. Byrd of Jeffrey M. Byrd, P.A., Orlando, for Appellees.
   ALTENBERND, Judge.

Nationwide Mutual Fire Insurance Company appeals a final judgment in the amount of $440,915.49 entered in favor of its insured, Maida Solano Voigt, awarding underinsured motorist benefits on a policy of automobile insurance with uninsured and underinsured motorist limits of only $50,000. This court held in Dixie Insurance Co. v. Lewis, 484 So.2d 89 (Fla. 2d DCA 1986), based on established case law from other districts, that a judgment entered against an insurance carrier for benefits provided by its policy must be limited to the policy limits. Despite this longstanding, well-established law, Ms. Voigt’s counsel convinced the trial court to enter a judgment for the entire amount of the jury’s verdict without any allegation in the pleadings, much less a factual determination, that Nationwide had committed bad faith. We reverse the judgment and remand for entry of a judgment in accordance with the policy limits.

This case arises from an automobile accident on June 2, 2004, in Polk County, Florida. Ms. Voigt sustained injuries when her car was hit by a car driven by Audrey Rigney. It appears undisputed that Ms. Rigney was at fault for the accident. Ms. Rigney had a policy of automobile liability insurance with limits of $25,000. Ms. Voigt claimed that her injuries exceeded this amount and made an underinsured motorist claim against her own insurance company, Nationwide.

Ms. Voigt sued both Ms. Rigney and Nationwide. Ms. Voigt alleged that the claim invoked Nationwide’s underinsured motorist coverage and attached a copy of the declarations page of the insurance policy showing coverage in the amount of $50,000. Nationwide answered the complaint admitting the coverage but disputing the claim and specifically the amount of damages sustained by Ms. Voigt. Prior to trial, Ms. Voigt settled with Ms. Rigney. The trial then proceeded with Nationwide as the sole defendant.

At the conclusion of the trial, the jury returned a verdict in favor of Ms. Voigt for $465,650.29. On the following day, Ms. Voigt’s counsel served a motion for entry of final judgment “in accordance with the verdict” that did not seek a judgment based on the policy limits alleged in the complaint, but rather sought a judgment in the full amount of the jury’s verdict, offset by the amount of the settlement with Ms. Rigney. Thereafter, Ms. Voigt’s counsel served an amended motion for entry of final judgment, which again asked for a judgment based on the verdict. The letter submitting this motion made no reference to the policy limits of the underinsured motorist coverage or the established law on this subject, but it attached a copy of the declarations page from the relevant insurance policy establishing that the available coverage was only $50,000. Shortly thereafter, in conjunction with its timely motion for new trial, Nationwide filed a motion to limit the judgment to the limits of its coverage. On September 15, 2006, without a hearing, the trial court denied Nationwide’s motion for new trial and motion to limit the judgment to the policy limits. The court entered the judgment requested by Ms. Voigt’s counsel.

On appeal, Nationwide argues that it was entitled to a new trial because the trial court refused to strike two jurors for cause. We reject this argument without further discussion. On the other hand, Nationwide argues that the judgment against it must be restricted to the limits of its coverage. Its argument is squarely supported by this court’s holding in Dixie Insurance, 484 So.2d 89.

In Dixie Insurance, this court held that the trial court erred in denying a motion to modify the final judgment to limit the liability of the insurance company to the amount of its policy limits. 484 So.2d at 89. This court expressly relied upon established case law from the Third and Fourth Districts, including Allstate Insurance Co. v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978), abrogated on other grounds recognized by Ridley v. Safety Kleen Corp., 693 So.2d 934, 938 n. 5 (Fla.1996); Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974); and Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974). Al though Dixie Insurance and the cases cited therein each involved a third-party claim for coverage and not a first-party claim for uninsured or underinsured motorist coverage, the same principles clearly apply to an insured’s claim against its insurer for uninsured or underinsured motorist benefits, at least in the absence of a judicial finding of bad faith. See State Farm Mut. Auto. Ins. Co. v. St. Godard, 936 So.2d 5 (Fla. 4th DCA 2006); Gov’t Employees Ins. Co. v. Robinson, 581 So.2d 230 (Fla. 3d DCA 1991); see also State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069 (Fla. 4th DCA 2001) (holding trial court was required to grant relief from default judgment on the basis of mistake because judgment was entered in excess of uninsured motorist policy limits established in the record). Collectively, these cases hold that when no dispute exists as to the policy limits or available coverage and such limits are made known to all parties during pretrial discovery, the trial court should, upon proper verification, grant an insurer’s motion to limit the judgment to the policy limits. Dixie Insurance, 484 So.2d at 89; Horkheimer, 814 So.2d at 1071; Shilling, 374 So.2d at 614; Quinn, 358 So.2d at 1381; Soler, 297 So.2d at 601; Stella, 281 So.2d at 585-86. We are unaware of any case in Florida that has ever held to the contrary. Indeed, Ms. Voigt has cited no case from any jurisdiction so holding.

Ms. Voigt argues that Nationwide waived or did not preserve this issue because it first sought to limit the judgment in its posttrial motion. She suggests that Nationwide had some duty to preserve this issue by defense or special pleading at an earlier stage in the proceedings. There are two problems with this argument. First, as well established as the law is regarding the trial court’s duty to limit the judgment to the extent of the undisputed policy limits, it is equally well established that equitable principles such as estoppel may not generally be used affirmatively against an insurer to create or extend coverage otherwise lacking in the policy. See St. Godard, 936 So.2d at 9 (citing Doe v. Allstate Ins. Co., 653 So.2d 371, 374 (Fla.1995); AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989); Crown Life Ins. Co. v. McBride, 517 So.2d 660, 661 (Fla.1987); Six L’s Packing Co. v. Fla. Farm Bureau Mut. Ins. Co., 268 So.2d 560, 563 (Fla. 4th DCA 1972), adopted, 276 So.2d 37 (Fla.1973)). Second, no waiver or estoppel is established by this record. Ms. Voigt expressly alleged a claim on a policy with limits of $50,000. Nationwide admitted these allegations. There was no issue or dispute between the parties about the amount of coverage until Ms. Voigt submitted her proposed judgment to the trial court for an amount in excess of the limits shown in her own pleadings.

We emphasize that Ms. Voigt did not allege a claim against Nationwide for bad faith in this proceeding. See generally § 624.155(1)(b), Fla. Stat. (2006); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995); Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263 (Fla. 5th DCA 1987). It may be that Ms. Voigt will eventually file and prevail on such a claim, but this lawsuit has been exclusively a claim for benefits under the policy, not for a violation of the duties owed by virtue of that policy.

Thus, we reverse this judgment and remand for entry of the maximum judgment that can be entered under the terms and conditions of the insurance policy and without prejudice to a subsequent lawsuit by Ms. Voigt alleging bad faith against Nationwide.

We note that this tactic on Ms. Voigt’s part may prove costly. From the record it appears that Nationwide posted a bond in the amount of $520,280.27 to stay enforcement of the judgment pending review on appeal. Taxable costs for this appeal, which will be assessable against Ms. Voigt, may include at least the premium for that portion of the bond on the judgment in excess of the coverage. See Fla. R.App. P. 9.400(a)(3).

Likewise, Nationwide asks this court to impose attorneys’ fees against Ms. Voigt and her counsel pursuant to section 57.105, Florida Statutes (2006). Nationwide served this motion on Ms. Voigt’s counsel and provided the twenty-one-day notice required by section 57.105(4). Ms. Voigt’s counsel took no action and continued to defend the erroneous judgment. We conclude that Ms. Voigt’s counsel knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to the trial court, and his defense of the amount of the final judgment in this appeal was without merit. We grant Nationwide’s motion for appellate attorneys’ fees pursuant to section 57.105 and remand for the trial court to determine the reasonable fees incurred by Nationwide in prosecuting this appeal as to that claim only.

Given that Ms. Voigt has not prevailed in this appeal and that the judgment must now be reduced, we deny Ms. Voigt’s motion for appellate attorneys’ fees pursuant to section 768.79, Florida Statutes (2005).

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.

      . These documents indicate that they were served on August 24, 2006, but they were not filed until September 15, 2006. The timing of these documents is not critical to our analysis. Ms. Voigt’s counsel was attempting to obtain entry of a judgment quickly in order to commence postjudgment interest under the holding in Amerace Corp. v. Stallings, 823 So.2d 110 (Fla.2002). This opinion does not criticize counsel’s effort to obtain post-judgment interest for his client, only his effort to obtain a judgment that was approximately $390,000 in excess of what the law clearly allowed.

      . We are aware that the trial court has entered a judgment for attorneys' fees in favor of Ms. Voigt because the jury’s verdict and the judgment entered thereon exceeded her offer of judgment to Nationwide of $50,000 by more than 125%. See § 768.79, Fla. Stat. (2005). The judgment awarding fees, which exceeds $90,000, is pending on appeal in this court as case number 2D07-3924. The reversal of the underlying judgment in this appeal and the remand with instructions to limit the judgment will obviously affect the merits of that appeal. The parties are encouraged to resolve the related appeal between themselves, if possible, based upon the result now reached in this appeal.

      . We note that section 57.105 states that these fees must be paid in equal amounts by Ms. Voigt and her attorney and does not permit this court to impose a higher portion of the fees upon the attorney, even if it is obvious that the circumstances justifying the imposition of fees are matters exclusively attributable to the attorney. See Morton v. Heathcock, 913 So.2d 662, 669 (Fla. 3d DCA 2005). On rehearing, to his credit, Ms. Voigt’s attorney asked that all fees imposed as a sanction be imposed only against him. Nationwide did not object to this proposal. We are not convinced that we have the authority to order a sanction in contravention of the statute, but we see no reason why the parties cannot stipulate to that result on remand. We also emphasize that the sanction involves fees only for the issue on which Nationwide prevailed in this appeal. Given that the issue involved a well-established rule of law, the time required to handle that portion of this appeal was undoubtedly quite modest.


text:
    Mary Kate CAMPAGNA, f/k/a Mary Kate Cope, Appellant, v. Douglas Arthur COPE, Appellee.
    No. 2D06-3527.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Herbert Elliott, Tarpon Springs, for Appellant.
    No appearance for Appellee.
   ALTENBERND, Judge.

Mary Kate Campagna appeals a final judgment of dissolution from her husband, Douglas Arthur Cope. Following a default by the Husband, the trial court denied the Wife’s undisputed claim for retroactive child support and unpaid children’s medical expenses because the youngest child had become a legal adult shortly before the filing of the petition. The Wife filed a motion for rehearing, attempting to explain her legal right to this support. We conclude that the trial court abused its discretion in denying rehearing. Although the Wife waited until her youngest child was a legal adult to file for dissolution, she is entitled to seek retroactive child support for her youngest child for that portion of the twenty-four months preceding the filing of her petition when the child was a minor and the parties were separated.

The Husband and Wife married in 1979. They have two children — one born in 1985 and the other born in 1987. Although the parties separated in the late 1990s, the Wife filed her petition for dissolution of marriage on December 12, 2005, after both children had become legal adults. The younger child reached majority one month before filing; the older child turned eighteen in 2003, more than two years before the filing of the petition.

The Wife filed her petition pro se, using the standard Family Law Form 12.901(b)(1), entitled “Petition for Dissolution of Marriage With Dependent or Minor Children).” The Wife did not seek alimony and claimed that there were no marital assets or liabilities to divide. Under item number 4 entitled “Dependent or Minor Child(ren),” she accurately marked “N/A” because there were no minor children. In the sections of the form regarding child custody and child support, however, she referred to an attached “Exhibit A.” She specifically marked in section IV(l)(a) of the form that she was seeking child support retroactive to the date of separation, January 1,1998.

In the attached Exhibit A, the Wife explained she was requesting retroactive child support and reimbursement for health care expenses. The couple’s income was modest, and thus the estimated child support for the two years prior to filing the petition totaled approximately $7027, in light of a $2200 credit for support that the Wife admitted the Husband had paid voluntarily. She also requested reimbursement for $6668 she paid in health insurance premiums for the family, with no delineation between the amount paid for the Husband and the amount paid for the children, and for the Husband to be required to pay for one-half of the children’s health insurance premiums until they turned twenty-one years old. Finally, she wanted the Husband to pay an outstanding medical bill of $550 for expenses incurred when the older child was hospitalized in 2004 at what appears to be the age of nineteen. In total, the Wife sought $14,265.

The Husband did not answer the petition or otherwise appear in the trial court. Accordingly, a clerk’s default was entered against him.

The trial court held a final hearing in April 2006. Though the hearing was not transcribed, it appears the Husband was provided notice and did not attend. The court filed the Wife’s exhibit, which detailed the amounts discussed above that she sought in the dissolution. According to the motion for rehearing, when the court asked whether a child support worksheet had been filed, the Wife offered to continue the hearing to obtain any additional documentation the court needed in support of the retroactive support.

On April 18, 2006, the trial court entered a final judgment dissolving the marriage, but denying the Wife’s request for child support and unpaid medical expenses because the petition listed no minor children, a completed Uniform Child-Custody Jurisdiction and Enforcement Act affidavit (UCCJEA) had not been filed, and there was no testimony provided concerning the names and dates of birth of the adult children.

The Wife retained counsel and moved for rehearing or new trial, arguing that retroactive support was appropriate and explaining that she had accurately filled in the standard form petition for dissolution, had provided information about the adult children, and did not realize that more evidence would be required when the case was in default status. With the motion for rehearing, she provided a UCCJEA affidavit for each child, using Florida Family Law Rule of Procedure form 12.902(d). She simply left blank the sentence: “The number of minor child(ren) subject to this proceeding is_” Thereafter, she provided the names, dates of birth, and addresses for her two adult children.

The trial court held a hearing on the motion for rehearing and new trial, which was transcribed. At that hearing, the trial court focused primarily on whether the Wife had any right to receive retroactive child support when she had waited until the youngest child was an adult to file the dissolution proceeding. The trial judge opined that the court could not award child support if the petition was filed after the child had attained majority at the age of eighteen. The Wife disagreed, arguing that child support could be awarded for up to twenty-four months prior to the filing of the petition for dissolution pursuant to section 61.30(17), Florida Statutes (2005), because the parties were separated. The only legal authority discussed was Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA 1987), which the trial judge had located independently and believed was a case “right on point” requiring a denial of retroactive child support under these facts. As discussed later in this opinion, that case is not controlling.

When the trial court issued a written order denying rehearing, it expressly declined to decide whether the Wife had a right to retroactive child support. Instead, the trial court denied rehearing because the final judgment was based on the insufficiency of the evidence and the contradictory pleadings. The Wife appeals this ruling.

I. A PARENT MAINTAINS STANDING TO SEEK RETROACTIVE CHILD SUPPORT AFTER THE CHILD BECOMES A LEGAL ADULT

Because the Wife sought to proceed pro se, her request for monetary relief was perhaps not artfully drawn. As stated above, the Wife sought reimbursement for several expenses, including retroactive child support and medical expenses. To determine whether the Wife was entitled to reimbursement, the trial court was required to sort out these claims in light of the relief available under chapter 61.

Generally speaking, a dissolution of marriage action under chapter 61 permits claims of equitable distribution of assets and debts, alimony, child custody and visitation, child support, and attorneys’ fees. Indeed, the form petition used by the Wife set forth these very categories, with the exception of attorneys’ fees. Here, the Wife did not request alimony; there were no custody issues because the children were adults; and there were no attorneys’ fees issues because the Wife initially proceeded pro se. The Wife’s requests for financial relief must therefore be cast as either requests for equitable distribution or child support. Further, child support is only available to the Wife if she can seek retroactive support pursuant to section 61.30(17) because the children are adults.

The Wife claimed retroactive child support pursuant to section 61.30(17). That statute provides:

(17) In an initial determination of child support, whether in a paternity-action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:
(a) The court shall apply the guidelines in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the ob-ligor to so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.
(b) All actual payments made by the noncustodial parent to the custodial parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
(c) The court should consider an installment payment plan for the payment of retroactive child support.

This provision was added to section 61.30 in 1997 by chapter 97-170, section 11, Laws of Florida, in large part to eliminate the conflict and uncertainty that existed in the case law. See John W. Reis, Retroactive Child Support Awards: Reimbursement Versus Needs and Ability, 67 Fla. B.J. 71 (July 1993) (discussing pre-1993 conflict and uncertainty in the case law awarding retroactive child support).

At the hearing on the motion for rehearing, the trial court opined that a parent could not seek child support for a child, including retroactive child support, once a child turned eighteen and was no longer a minor. Such a ruling would have prohibited any claim by the Wife for monthly child support or assistance with the health insurance premiums for the children. In support of this proposition, the trial court cited Bridges, 506 So.2d 1047; yet Bridges is not authoritative on this issue because it was decided prior to the enactment of section 61.30(17) and merely notes that the issue of child support was “moot” because the child, although a minor when the action commenced, had become an adult before the entry of the final judgment. Id. at 1048. The case contains no discussion of retroactive child support and is not dis-positive of the issues in this case.

The proposition that there is no right to retroactive support once a child becomes an adult stems from a line of cases decided prior to the application of section 61.30(17) that held a parent lost standing to seek child support once a child turned eighteen. See, e.g., Lawrence v. Hershey, 890 So.2d 350, 351 (Fla. 4th DCA 2004) (citing Cronebaugh v. Van Dyke, 415 So.2d 738, 741 (Fla. 5th DCA 1982)). These cases reasoned that the right to support was one belonging to the child but generally pursued by the parent because the child was acting under the disability of nonage. Cronebaugh, 415 So.2d at 740-41. Once that disability was removed, the cases reasoned, the parent lost standing to seek support on the child’s behalf. Id. Moreover, if there was no order requiring support entered before the child turned eighteen, the now-adult child could not seek to establish support retroactively. Bardol v. Martin, 763 So.2d 1119, 1120 (Fla. 4th DCA 1999).

Before the enactment of section 61.30(17), paternity and dissolution actions generally treated retroactive support differently. A parent seeking child support through a petition for dissolution of marriage was entitled to seek retroactive support back to the date the parent filed the petition for dissolution of marriage. See Bardol, 763 So.2d at 1120; see also Warren v. Warren, 306 So.2d 197, 197 (Fla. 1st DCA 1974) (stating no statutory or case authority in Florida for ordering retroactive support prior to the filing of any pleading seeking such support). Under those circumstances, a parent who filed a petition after a child reached majority lost the ability to seek child support because there were no minor children at the time the petition was filed, thus there was no claim for a retroactive award, and the parent had no standing to seek current or future support. In contrast, in a paternity suit retroactive awards could be made to the date of childbirth. See Bardol, 763 So.2d at 1120. Although we are aware of no controlling case law, under the standing theory discussed above and the language of the paternity statute, the only person with standing to establish paternity once the child turned eighteen would presumably be the adult child. See § 742.011, Fla. Stat. (2005). Thus, prior to 1997, there was effectively no legal authority permitting a retroactive award of child support once the child turned eighteen.

We have found no case squarely addressing whether the statutory right to request retroactive child support changed the prior case law holding a parent had no standing to seek support when a petition is filed after a child has reached majority. We conclude that in light of section 61.30(17), if a child has turned eighteen but a parent resided with and supported the child before the child turned eighteen, the parent maintains his or her standing to recover the other parent’s share of any support for the twenty-four months prior to the date of filing the petition pursuant to the child support guidelines. The statute itself does not contain any language suggesting that it intends to limit retroactive child support to claims made by a parent while the relevant child is still a minor. We are inclined to believe that a plain reading of the statute discloses no limitation based on the age of the child at the filing of the petition. If any interpretation is required, section 61.001 explains the purposes of the chapter and states:

(1) This chapter shall be liberally construed and applied.
(2) Its purposes are:
(a) To preserve the integrity of marriage and to safeguard meaningful family relationships;
(b) To promote the amicable settlement of disputes that arise between parties to a marriage; and
(c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.

§ 61.001. All of these purposes would seem to be promoted by allowing claims similar to the one presented by the Wife at least during the retroactive period provided for by section 61.30(17).

Even in the current era of no-fault divorce, there is a significant segment of our population that looks upon dissolution as a last resort. There are many couples who stay together “for the children” long after the bonds of affection have broken. There are couples who conclude that it is in the best interests of their children to remain married, even if the couple must live separately. When couples separate, it is not uncommon for the custodial parent to receive child support from the noncustodial parent in an amount that is less than the amount required to achieve the policies established by the legislature in section 61.30. We are hard-pressed to think of any reason that section 61.30(17) should be interpreted to bar a spouse from receiving child support if he or she files a day after the youngest child’s eighteenth birthday as compared to a day before. Accordingly, we hold that section 61.30(17) permits á claim for retroactive child support even if the petitioning spouse waits until the child is a legal adult to obtain this payment.

This section may also work in conjunction with section 743.07(2), Florida Statutes (2005), to effectively further extend a parent’s standing to seek retroactive support. Under section 743.07(2), a court may order support for a child who is over eighteen, dependent in fact, and is still attending high school and performing in good faith with a reasonable expectation of graduation before the age of nineteen. Thus, the parent can file a petition seeking child support up and until high school graduation for the appropriate eighteen-year-old child, and may seek retroactive support of twenty-four months prior to the filing of the petition.

II. A PARENT MAY ONLY RECEIVE SUPPORT FOR THE PORTION OF THE STATUTORY TWENTY-FOUR MONTHS PRECEDING THE FILING WHEN THE RELEVANT CHILD WAS STILL A MINOR.

Prior to the 1998 amendment to section 61.30(17), a parent could be required to pay retroactive support for an extended period in a paternity action. See McMillian v. Dep’t of Revenue ex rel. Searles, 746 So.2d 1234, 1236 (Fla. 1st DCA 1999) (discussing public policy reasons for enforcing child support to the “moment of the child’s birth”). Such a remedy could create inequities when a parent had no records of voluntary contributions or evidence of other factors that might have reduced the obligation and was faced with a rule allowing claims for support without “presentation of evidence of exact amounts paid.” See Fowhand v. Piper, 611 So.2d 1308, 1312 (Fla. 1st DCA 1992). The amendment to section 61.30(17) essentially balanced the interests of the parties by establishing a statutory remedy of retroactive child support but placing a two-year maximum period for recovery. Thus, the statute provides that the award of retroactive child support is “not to exceed a period of 24 months preceding the filing of the petition,” and the trial court has discretion when making this award.

Child support is normally payable on a monthly basis. We conclude that a spouse seeking child support in a dissolution action that is filed after a child reaches the age of majority is generally entitled to support only for those months within the preceding twenty-four months when the child was a minor or qualified for support under section 743.07(2).

In this case, the petition for dissolution was filed one month after the youngest child was no longer a minor and more than two years after the older child reached majority. As to the older child, the Wife cannot seek any retroactive child support because the child was over the age of nineteen during the twenty-four months preceding the petition, meaning the requirements of section 743.07(2) also would not apply. To the extent the trial court concluded the Wife could not seek retroactive support for the younger child, however, the trial court erred. It is unclear from this record whether the younger child meets the requirements of section 743.07(2) such that the Wife may have had some entitlement to ongoing child support at the date of filing. Even if the child was not in high school and expecting to graduate before age nineteen at the time the petition was filed, in light of section 61.30(17), the Wife may seek a maximum of twenty-three months of support for this child, which is the portion of the twenty-four months prior to the date of filing that the child was a minor. Specifically, the retroactive child support should be calculated from December 12, 2003, up through the child’s eighteenth birthday on November 11, 2005. If the child remained dependent upon the Wife and in high school, performing in good faith with a reasonable expectation of graduation before the age of nineteen, the Wife may seek the full twenty-four months of retroactive support. Because the Husband defaulted and the record is quite limited, there is nothing in this record that would currently suggest any basis to exercise reasoned discretion to limit this award except for the voluntary payments that the Wife has conceded.

We note that the Wife specifically asked for reimbursement of the health insurance premiums she paid for both children for the prior twenty-four months. She also asked for continued payment of the children’s health insurance premiums until they were twenty-one. There is no question that the Wife cannot seek payment of the children’s health insurance beyond the age of eighteen, with the possible exception of the short period provided for in section 743.07(2). Rather, the Husband’s obligation to assist in providing health insurance to the child is tied to his obligation to support the child and must coincide with the period of time in which that obligation exists.

Additionally, the Wife’s entitlement to any contribution for the payment of past health insurance premiums arises through the calculation of the retroactive child support under the child support guidelines. Under section 61.30(3)(e), the Wife may deduct from her gross income the cost of her personal health insurance, excluding the cost for the minor child, before calculating the child support obligation. Notably, the Wife cannot deduct the cost she voluntarily pays for her other adult child because he is not a minor. The parties’ net incomes are thereafter combined to determine the minimum child support need under the chart provided in section 61.30(6). Thereafter, the cost of the health insurance premium for the child can be added to the minimum child support need amount and the parties’ percentage share of the total amount determined. See § 61.30(8), (9). Of course the court would then generally require the Wife to maintain that insurance for the benefit of the child through the child’s minority.

III. THE WIFE PRESENTED SUFFICIENT EVIDENCE TO SUPPORT HER CLAIM

Given that the Wife had pleaded an appropriate basis for retroactive child support in her petition, we must address the trial court’s alternative holding that the Wife failed to present appropriate evidence at the final hearing to support her claim. The Wife’s motion for rehearing asserted that the Wife had presented sufficient evidence to support the claim, that further documentation was not necessary but that she had offered to continue the hearing to provide further documentation if the court requested it, and that she had established a legal basis for retroactive support. At the hearing on this motion, the court simply indicated that it had concluded the Wife had no claim for retroactive support, whether there was evidence to support it or not. It was only upon entry of the order on the motion for rehearing that the court indicated it was denying rehearing based on a lack of evidence.

The Wife clearly stated a claim for retroactive child support for her younger child. If there was specific information necessary to determine the appropriate amount of support that was not available at the final hearing, the court should have provided the Wife with the opportunity to continue the hearing to obtain and present that evidence. It should not have summarily denied the claim for child support without first providing that opportunity.

IV. THE REMAINING CLAIMS

In addition to child support and the child’s health insurance premiums, the Wife asked for two other things: an order that the Husband pay an outstanding medical bill of $550 for the oldest child after he reached the age of majority and an order that the Husband reimburse the Wife for payments she made to maintain health insurance for him.

This record does not reveal whether the outstanding medical bill can be properly classified as a marital liability. Section 61.075(5) defines marital liabilities as all “liabilities incurred during the marriage, individually by either spouse or jointly by them.” If the debt is marital, the Wife may seek distribution of that debt pursuant to section 61.075(1). See also Mahoney v. Gay, 516 So.2d 86, 87 (Fla. 3d DCA 1987) (holding “the trial court abused its discretion in failing to indemnify the wife for reasonable medical expenses incurred during the marriage”).

The Wife’s payment of the Husband’s medical insurance premiums is more problematic. During the marriage, each party generally owes the other party a duty of support. See Killian v. Lawson, 387 So.2d 960 (Fla.1980) (discussing common law duty to support spouse). While the parties were married, these monthly payments were marital expenses. See Beers v. Pub. Health Trust, 468 So.2d 995, 1001 (Fla. 3d DCA 1985) (“Florida law renders a spouse financially responsible for the other spouse’s necessary bills.”). Thus, there is no statutory authority for reevaluating payments made during the marriage by one party for the benefit of the other party, at least until a petition for dissolution of marriage is filed. As a result, the Wife may not be able to recover the payments she made for the Husband’s health insurance premiums.

V. REHEARING WAS APPROPRIATE UNDER THESE CIRCUMSTANCES

The appellate standard of review concerning orders denying rehearing is not well developed within Florida law, but the decision would seem to involve an issue for which the trial court often has discretion. See Trammell v. Ward, 667 So.2d 223, 226 (Fla. 1st DCA 1995) (concluding the trial court abused its discretion in failing to grant rehearing); Monarch Cruise Line, Inc. v. Leisure Time Tours, Inc., 456 So.2d 1278, 1280 (Fla. 3d DCA 1984) (classifying trial court’s ruling on motion for rehearing as a “discretionary act of the trial judge” not to be disturbed without “a clear showing that the trial court abused its discretion”).

In this case, an issue that is a matter of first impression in Florida was presented in a petition filed on fill-in-the-blank pleading forms, and those forms provided an ambiguous method to allege the claim. Using this form, the Wife attempted to properly present her claim for child support. The claim for retroactive child support was not opposed by the Husband, who chose to take no action in the case. This issue of whether a parent can seek retroactive child support once a child is an adult was first raised by the trial court and was not a matter that the Wife pro se had any reason to anticipate would be a disputed issue when she prepared for the final hearing. Although we do not know what occurred at the final hearing, the motion for rehearing, filed by the Wife’s newly retained attorney, and the accompanying documents clearly show that her attorney can properly allege this claim even if it might require the filing and service of an amended petition. Any failure to present specific evidence at the final hearing should have resulted in a brief continuance to permit the Wife to gather the appropriate evidence rather than a denial of the claim. Under all these circumstances, we conclude that the trial court abused its discretion in not providing the Wife an opportunity to plead and present this claim.

On remand, the Wife should be permitted to submit evidence establishing the appropriate child support calculation, and the award of child support should be made retroactive to December 12, 2003, continuing until the child’s eighteenth birthday, unless it should be extended to the child’s graduation from high school pursuant to section 743.07(2).

Reversed and remanded.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Citing Waite v. Kennedy, 724 So.2d 572 (Fla. 3d DCA 1998); Gherardi v. Gherardi, 712 So.2d 1236 (Fla. 4th DCA 1998); Anderson v. Anderson, 609 So.2d 87 (Fla. 1st DCA 1992).

      . Citing Mason v. Reiter, 564 So.2d 142 (Fla. 3d DCA 1990); Watkins v. Jackson, 487 So.2d 99 (Fla. 4th DCA 1986); Coleman v. Mackey, 424 So.2d 170 (Fla. 3d DCA 1983); McQueen v. Stratton, 389 So.2d 1190 (Fla. 2d DCA 1980).

      . The Fourth District has interpreted the language of the subsection to indicate "an all encompassing public welfare intent that children be supported.” Bellville v. Bellville, 763 So.2d 1076, 1078 (Fla. 4th DCA 1999).


text:
    Terry Lynn ROUTON, as the Personal Representative of the Estate of Jay Kip Routon, Appellant, v. PBS & J CONSTRUCTION SERVICES, INC.; Hubbard Construction Co.; and J.W. Conner & Sons, Inc., Appellees.
    No. 2D05-4249.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    Richard C. Alvarez and Anthony Garcia of Alvarez Garcia, Tampa, for Appellant.
    Michael G. Tanner and Dominic C. Mac-Kenzie of Holland & Knight LLP, Jacksonville, for Appellee PBS <& J Construction.
    No appearance for Appellees Hubbard Construction Co. and J.W. Conner & Sons, Inc.
   SALCINES, Judge.

Terry Lynn Routon, as personal representative of the Estate of Jay Kip Routon, appeals the trial court order which entered a final summary judgment in favor of PBS & J Construction Services, Inc. The trial court concluded that PBS & J Construction was an agent of the Florida Department of Transportation and was entitled to sovereign immunity pursuant to section 768.28, Florida Statutes (2001, 2003). After a thorough review of the entire record before us in this tragic case, we are compelled to agree with the circuit court that there is no material issue of fact that PBS & J was an agent of the Department, and there is no evidence of intentional misconduct or gross negligence. Accordingly, we affirm the trial court’s final judgment.

Affirmed.

KELLY and WALLACE, JJ., Concur.


text:
    FLORIDA DEPARTMENT OF VETERAN’S AFFAIRS d/b/a Baldomero Lopez Memorial Veterans Nursing Home, Appellant, v. Harold CLEARY, Appellee.
    No. 2D06-4069.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    David R. Herman, General Counsel, Florida Department of Veterans Affairs d/b/a Baldomero Lopez Memorial Veterans Nursing Home, Tallahassee, for Appellant.
    No appearance for Appellee.
    Karen L. Goldsmith of Goldsmith, Grout & Lewis, P.A., Winter Park, for Amicus Curiae Florida Health Care Association.
   GALLEN, THOMAS M., Associate Senior Judge.

The Florida Department of Veteran’s Affairs (“the Department”) appeals the final order of a hearing officer which held that the discharge of Harold Cleary from the Baldomero Lopez Memorial Veteran’s Nursing Home was unlawful because it occurred without giving a thirty-day notice. Cleary did not file a brief in this appeal. The Florida Health Care Association filed an Amicus brief in support of the Department. We reverse.

The management of the nursing home concluded that it was necessary to discharge Cleary because of his continuing pattern of inappropriate sexual conduct toward other residents and the staff.

The staff apprised Cleary’s family of the circumstances on May 1, 2006, and discussed moving Mr. Cleary to another facility which would be better staffed and equipped to deal with his “uncontrollable” sexual problems. The family opposed such a move.

Finally on May 24, 2006, the nursing home management and professional staff all agreed that Cleary’s conduct was endangering the safety and health of the other residents and they decided to discharge him and transfer him to another facility. The family complained to the Department of Children and Families (“DCF”) and obtained a hearing on August 25, 2006, before a DCF hearing officer. The hearing officer’s final order indicates there was no dispute regarding Cleary’s behavior or that it presented a safety issue to the other residents. The family’s sole contention was that Cleary could not be discharged without a thirty-day notice unless the condition presented an emergency.

The hearing officer concluded that the circumstances were governed by Title 42 of the Code of Federal Regulations (“C.F.R.”), which defined an “emergency” as “unanticipated resident behavior that places the resident or others at serious threat of violence or injury,” (42 C.F.R. § 488.352) and concluded that Cleary’s behavior was not “unanticipated.” She ordered Cleary to be readmitted. The final order states:

As both parties stipulated to the incidents of the petitioner’s inappropriate sexual behavior and neither party disputed that the ... inappropriate behavior presents a safety issue to other residents in the facility, the discharge would have been appropriate had the facility given appropriate notice. This Final Order does not preclude the facility from issuing a thirty day notice once the petitioner has been readmitted to the facility should they choose to do so.

Initially we observe that the hearing officer cited an inapposite section of the 42 C.F.R. Section 483.352 pertains to the use of “restraint” as an “emergency safety intervention” deemed necessary due to “unanticipated resident behavior.” Section 483.12 governs “admission, transfer and discharge rights.” Subsection 12(a)(2)(iii) and (iv) provide authority to “transfer or discharge” a resident when safety or health of “individuals in the facility” would be endangered. Subsection 12(a)(5)(ii)(A) and (B) provide that in such circumstances, notice may be made “as soon as practicable before transfer or discharge.” There is clearly no requirement under circumstances such as those in this case that the inappropriate conduct be “unanticipated” before a discharge can be effected without a thirty-day notice.

The hearing officer’s order requiring that Cleary be readmitted so he can be discharged again after receiving a thirty-day notice is reversed because it was based on the wrong regulatory requirement.

Reversed.

NORTHCUTT, C.J., and SALCINES, J., Concur.

      . Similar language is found in section 400.0255(7)(b), Florida Statutes (2005).


text:
    Michael A. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5474.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Michael A. Phillips appeals the revocation of his probation. We affirm the revocation of probation but reverse the order revoking probation and remand for the trial court to enter an amended order.

On November 18, 2004, Phillips entered a no contest plea to the charges of possession of cocaine and possession of marijuana. The trial court imposed a two-year suspended sentence and placed Phillips on probation for two years. Subsequently, the trial court converted Phillips’ probation to administrative probation.

Thereafter, the probation officer received information that Phillips had been using drugs. Based on this information, the probation officer directed Phillips to report to the probation office where a urine sample was taken. On June 6, 2005, Phillips tested positive for the use of cocaine and marijuana. Phillips argues that the revocation of probation based on the results of the urinalysis was improper because the State failed to prove the existence of a valid condition of probation requiring him to submit to urinalysis testing.

Administrative probation transfers the probationer to a nonreporting status. See 948.001(1), Fla. Stat. (2004); State v. Giorgetti, 868 So.2d 512, 513-14 (Fla.2004). However, while on administrative probation, the probationer remains on a form of probation, and the standard conditions of probation set forth in section 948.03(1) are still applicable. Phillips had constructive notice of these conditions. See Maddox v. State, 760 So.2d 89, 105 (Fla.2000). The standard conditions listed in section 948.03(1) include:

(k)(l) Submit to random testing as directed by the correctional probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances.
(m) Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician. The probationer or community controllee shall not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

Under section 948.03(l)(k)(l), Phillips was required to submit to random drug tests. Phillips violated section 948.03(l)(m) when he tested positive for marijuana and cocaine use. We affirm the revocation of probation because the trial court did not abuse its discretion when it revoked Phillips’ probation based on this violation.

At the October 9, 2006, revocation of probation hearing the trial court orally stated that the revocation was based on the testimony of the probation officer concerning the positive results of the urinalysis and Phillips’ admission to the probation officer that he had used cocaine and marijuana. However, the order revoking Phillips’ probation does not identify the specific conditions which had been violated but merely states: “On 10-19-2006, THE COURT FOUND THE DEFENDANT IN VIOLATION OF PROBATION AS ALLEGED ON THE AFFIDAVIT AND WARRANT DATED 4-17-2006.”

The record before this court does not contain an affidavit of violation of probation or a warrant dated April 17, 2006. Phillips did not test positive for cocaine and marijuana use until June 6, 2006. Accordingly, we reverse the order of revocation of probation and remand for entry of an amended order which conforms to the trial court’s oral pronouncement and properly sets out the manner in which Phillips violated his probation.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SILBERMAN, JJ„ Concur.


author: NORTHCUTT, Chief Judge.

text:
    Patricia FIEDLER, Appellant, v. Mary Ellen JAMES, individually, and Anvil Acres Stables, a business entity not registered with the State of Florida, Appellees.
    No. 2D06-5697.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Wesley T. Straw of Justin C. Johnson & Associates, P.A., St. Petersburg, and Brandon S. Vesley of Keane, Reese, Yesley & Gerdes, P.A., St. Petersburg, for Appellant.
    Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Appellees.
   NORTHCUTT, Chief Judge.

Patricia Fiedler sued Mary Ellen James and her business, Anvil Acres Stables, for damages allegedly caused by the defendants’ negligence in connection with a fire at the stables. One of Fiedler’s horses was killed in the blaze and another was severely burned. After some discovery was completed the defendants moved for summary judgment, contending that they were entitled to judgment because Fiedler was not able to show any negligence on the part of James or Anvil. The court entered final summary judgment in favor of the defendants. We reverse.

We review a summary judgment de novo. Smith v. Frontier Commc’ns Int'l, Inc., 805 So.2d 975, 977 (Fla. 2d DCA 2001). We are compelled to repeat that a party moving for summary judgment must conclusively demonstrate that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Olson v. Johnson, 961 So.2d 356, 358 (Fla. 2d DCA 2007). We examine the evidence supporting the summary judgment in this case with that principle in mind.

Fiedler’s complaint asserted that James and Anvil owed a duty to refrain from creating dangerous conditions that could result in a fire at the stables and that they breached the duty either by storing wood chips improperly or by placing in the barn an electric fan that was unsafe for use there. The defendants’ motion for summary judgment contended that Fiedler was unable to show any negligence on their part because, at her deposition, she testified that she did not know the cause of the fire and had no information about what the defendants did or failed to do that caused or contributed to the fire. The motion further noted that James testified at her deposition that she did not know what caused the fire or what she could have done wrong that might have led to the fire. The defendants filed both depositions in support of their summary judgment motion.

On a negligence defendant’s motion for summary judgment, the court’s function is solely “to determine whether the record conclusively shows that the claim cannot be proved as a matter of law.” Jennaro v. Bonita-Fort Myers Corp., 752 So.2d 82, 83 (Fla. 2d DCA 2000). The question is not whether the plaintiff has evidence to prove her case at a given point in the litigation or has personal knowledge of facts establishing the defendant’s negligence. Rather, as we explained in Jennaro, the defendant must “establish unequivocally that it was not negligent or that the plaintiffs negligence was the sole proximate cause of the [damage].” Id. This burden is not met merely by showing that the plaintiff is not sure what caused her damages. Id. In this case James and Anvil, as the moving parties, simply failed to meet their burden, and thus they did not establish that they were entitled to summary judgment as a matter of law.

Reversed and remanded.

SALCINES and LaROSE, JJ., Concur.

      . James and Anvil also asserted that the boarding contract Fiedler signed prevented her from recovering damages for mere negligence. The circuit court made no ruling on the contract defense, and therefore it does not play a part in our analysis of this case.


author: SILBERMAN, Judge.

text:
    Rodann WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1039.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Rodann Williams appeals from a judgment and sentence for driving while license revoked as a habitual offender pursuant to his guilty plea. His sole argument on appeal is that the trial court erred in entering an order denying his pro se motion to withdraw plea on the merits when it should have entered an order striking the motion as unauthorized pursuant to Sharp v. State, 884 So.2d 510 (Fla. 2d DCA 2004), and Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004). He asks that we direct the trial court to withdraw the order denying his motion to withdraw plea and to enter an order striking the motion as unauthorized. The State agrees that the order denying the motion to withdraw plea should be stricken.

Because Williams had counsel of record at the time that he filed his pro se motion to withdraw plea and did not seek to discharge his counsel, the trial court should have stricken the motion as an unauthorized pro se pleading and treated it as a nullity. Sharp, 884 So.2d at 512; Mourra, 884 So.2d at 321; see also Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005) (remanding for trial court to withdraw order denying pro se motion to withdraw plea and to enter order striking the motion as unauthorized pursuant to Sharp and Mourra). Accordingly, we affirm Williams’s conviction and sentence but remand for the trial court to withdraw the order denying his pro se motion to withdraw plea and to enter an order striking the motion as unauthorized. Our ruling is without prejudice to any right that Williams may have to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed and remanded with directions.

SALCINES and VILLANTI, JJ., Concur.


text:
    Dominic CULPEPPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4230.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Bryan Stevenson, Equal Justice Initiative of Alabama, Montgomery, Alabama; and Lynn Overmann, Miami, for Appellant.
   ALTENBERND, Judge.

Dominic Culpepper appeals the circuit court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims that his sentence of life without possibility of parole for the offense of first-degree murder is cruel and unusual punishment because he committed the offense when he was fourteen years old. We conclude that his motion was untimely. Even if the motion were timely, case law does not currently support his legal theory.

In June 2001, Mr. Culpepper believed that another teenage boy had stolen a pound of marijuana from him. With the help of some friends, Mr. Culpepper devised several plots to revenge this theft. Ultimately, he tricked the victim into returning to Mr. Culpepper’s house to steal more marijuana. When the victim came to the house, Mr. Culpepper hit him fifty times with a baseball bat and dumped his body in the woods. For this, he was charged as an adult and convicted of first-degree murder. The trial court had no option except to sentence Mr. Culpepper to life in prison without possibility of parole.

He appealed his judgment and sentence to this court. On direct appeal, he argued that his life sentence was cruel and unusual punishment. We affirmed his judgment and sentence without a written opinion. Culpepper v. State, 846 So.2d 515 (Fla. 2d DCA 2003). Our mandate issued in that direct appeal in April 2003. It is noteworthy that this court had issued a written opinion declaring a similar sentence for a fourteen-year-old defendant to be constitutional a few months earlier. See Phillips v. State, 807 So.2d 713 (Fla. 2d DCA 2002); see also Tate v. State, 864 So.2d 44 (Fla. 4th DCA 2003) (upholding life sentence for twelve-year-old).

Mr. Culpepper filed a prior postconviction motion pursuant to rule 3.850 in 2005. That motion was denied, and this court affirmed the order denying that motion. Culpepper v. State, 928 So.2d 344 (Fla. 2d DCA 2006) (table decision).

He filed this motion for postconviction relief pursuant to rule 3.850 in the circuit court in April 2007. As he did on direct appeal, he argues that his sentence of life without possibility of parole is cruel and unusual punishment because of his age at the time of the offense. This motion is obviously successive and would be untimely unless Mr. Culpepper alleged one of the exceptions to the standard two-year limitation contained in rule 3.850(b). He argues that this issue can be raised by postconviction motion at this time because of the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

In Roper, the Court affirmed the Missouri Supreme Court’s decision in State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo.2003), which held that the death penalty was unconstitutional as applied to Simmons, who committed a first-degree murder when he was seventeen. It is noteworthy that the remedy provided to Simmons when Missouri held his death sentence to be unconstitutional was life without possibility of parole. 112 S.W.3d at 413.

This case, of course, does not involve the death penalty. Neither the United States Supreme Court nor the Supreme Court of Florida has held that a sentence of life without possibility of parole is unconstitutional when applied to a person under the age of eighteen. Without such a ruling, Mr. Culpepper does not have an issue raising a “fundamental constitutional right” that can be raised at this time. See Fla. R.Crim. P. 3.850(b)(2); Witt v. State, 387 So.2d 922, 930 (Fla.1980); Margarejo v. State, No. 2D07-700, — So.2d -, 2007 WL 4404602 (Fla. 2d DCA Dec. 19, 2007); see also Sims v. Commonwealth, 233 S.W.3d 731, 733 (Ky.App.2007) (holding that Roper did not support a similar postconviction claim and noting that Roper contained “obiter dictum to the effect that life imprisonment without the possibility of parole remains a permissible sentence for [such] offenders”).

We note that Mr. Culpepper’s motion for postconviction relief in the trial court discloses that he was filing a federal habe-as petition at the same time he filed for relief in state court. In a brief filed on September 18, 2007, in this appeal, his counsel did not disclose the extensive written decision of the United States District Court for the Middle District of Florida issued on July 13, 2007, denying the petition as untimely and without merit, even though the lawyers who are counsel of record for Mr. Culpepper in this case are also counsel of record in the federal proceeding. Culpepper v. McDonough, 2007 WL 2050970 (M.D.Fla. July 13, 2007). The issue these lawyers raise is worthy of public debate and they may feel strongly about it, but they must know that this postconviction claim is procedurally barred in state court at this time. They do not assist their client or their cause by filing a motion that has no legal merit or by failing to disclose the federal case law dealing directly with their client.

Affirmed.

FULMER and SALCINES, JJ., Concur.