text:
    Susan MILLER, Petitioner, v. JUPITER MEDICAL CENTER and Commercial Risk Management, Respondents.
    No. 1D06-0450.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Richard A. Kupfer of Richard A. Kup-fer, P.A., West Palm Beach, and Gilbert R. Panzer, Jr., Boynton Beach, for Petitioner.
    Danni Lynn Germano of Rigell, Ring & Ardman, P.A., North Fort Myers, and Jonathan D. Wald, Palm Beach Gardens, for Respondents.
   PER CURIAM.

Claimant, Susan Miller, petitions this court for writ of certiorari to review an order of the judge of compensation claims (JCC) compelling Miller to undergo an independent medical examination (IME). Miller claims the JCC departed from the essential requirements of law resulting in a miscarriage of justice by permitting the employer, Jupiter Medical Center, and carrier, Commercial Risk Management (E/ C), to select a physician who practices outside claimant’s county of residence, rather than the same IME physician selected by the E/C who performed the IME on Miller in February 2004. We deny the petition.

The physician was asked to conduct the IME for the purpose of determining whether (1) Miller had reached maximum medical improvement after undergoing three surgeries for neck and right-shoulder injuries suffered at work on March 29, 2001, and (2) her capacity for work. The physician diagnosed post fusion cervical spine syndrome; full-thickness right rota-tor cuff tear; and residual myelopathy and weakness, right upper extremity. He stated that two other treating physicians had already found claimant to be at maximum medical improvement, and he would defer to them as to the date and the permanent impairment rating. He concluded that Miller could work light-duty six and one-half hours per day.

In January 2005, one of Miller’s physicians recommended arthroscopic surgery to address right-shoulder problems. Believing that Miller had been involved in a new accident in 2004, following the 2004 IME, the E/C filed a motion to compel her to undergo a new IME to ascertain whether the shoulder condition could have been aggravated by a non-industrial cause. The E/C asked the JCC to permit an IME outside Palm Beach County, alleging that Miller coordinates the provision of continuing medical education classes and has close professional relationships with many physicians in that area. The JCC granted the motion.

The above facts support the JCC’s conclusion that the surgery issue was a new dispute entitling the E/C to an IME with the physician of its choice. See, e.g., Wal-Mart Stores, Inc. v. Liggon, 668 So.2d 259 (Fla. 1st DCA 1996) (observing that the E/C’s request for a second IME more than a year after the first IME was reasonable because of the lapse of time); Cortina v. Dep’t of HRS, 901 So.2d 273 (Fla. 1st DCA 2005) (observing that a dispute warranting an IME is clearly created when the employer disputes the claimant’s right to benefits); Kohout v. Benefit Adm’rs, 781 So.2d 1164, 1165 (Fla. 1st DCA 2001) (observing that a party is entitled to an IME “to resolve the threshold question of causation”). See also Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So.2d 227 (Fla. 1st DCA 1996) (observing that the E/C has the right to schedule an IME prior to the filing of a petition for benefits, because the only requirement for scheduling an IME is a dispute regarding overutilization, medical benefits, compensability, or disability).

Miller claims the E/C failed to prove need for an alternate IME examiner, required by section 440.13(5)(b), Florida Statutes (2001), viz., the examiner is not qualified to render an opinion about the condition, no longer practices in the relevant specialty, is unavailable, or the parties agree to an alternate examiner. On the contrary, this provision simply means that once a party has selected an IME physician to address a dispute under section 440.13(5)(a), the party is generally bound by that physician’s opinion as it applies to the particular dispute, even if it does not support the party’s position. The statute does not require a party to repeatedly use the same IME physician for every dispute that arises within the scope of the physician’s specialty during the course of a claimant’s injury and treatment. Because Miller made a new request for surgery following her 2004 IME and the E/C disputes whether the need for surgery was related to the industrial injury or a later, non-work-related cause, and there has been no IME addressing what the E/C asserts is a shoulder condition that is attributable to an event post-dating the IME, the E/C is entitled to select a new — not an alternate — IME physician.

In addition, there is no limitation in section 440.13(5) regarding the geographical location of an IME. This court has repeatedly stated that there is simply a “reasonableness” requirement in the IME provisions that is subject to a JCC’s exercise of discretion. See Farm Stores, Inc. v. Fletcher, 621 So.2d 706 (Fla. 1st DCA 1993).

The petition for writ of certiorari is DENIED.

KAHN, C.J:, ERVIN and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenn SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Capt. L.L. Hatcher, Sgt. Jeffrey Pippin, Co., Christopher M. Lister, Co., Jan D. Heffel, and Marcell Johnson, Appellees.
    No. 1D04-5179.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Glenn Smith, pro se, Appellant.
    Charlie Crist, Attorney General, and Pamela Lutton-Shields, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

REVERSED. The Department of Corrections concedes that the trial court erred in dismissing appellant’s complaint for failure to exhaust his administrative remedies. We, therefore, reverse the order of dismissal and remand for further proceedings.

ALLEN, WOLF, and WEBSTER, JJ., Concur.


text:
    Matthew James DAILY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5819.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Robin Miller of the Law Office of Robin Miller, P.A., Fort Walton Beach, for Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Matthew James Daily is hereby afforded a belated appeal from the order of the Circuit Court for Okaloosa County, which denied in part and granted in part postconviction relief after an evidentiary hearing in case numbers 01-1755 and 02-2033. Because Daily was resentenced, the appeal shall be treated as a plenary appeal from judgment and sentence. King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001).

The court notes that an untimely notice of appeal was filed for review of denial of postconviction relief and assigned this court’s case number 1D05-6187. We hereby discharge the outstanding show cause order regarding timeliness in that case, and it shall proceed as a direct criminal appeal in accordance with King.

PETITION GRANTED.

ERVIN, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Sydney Earl MIX and Frances T. Mix, Appellees.
    No. 1D06-0645.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Guy E. Burnette, Jr., Tallahassee and Elizabeth K. Russo of Russo Appellate Firm, Miami, for Appellant.
    Robert M. Loehr of Levin, Papantonio, Thomas, Mitchell, Echsner and Proctor, Pensacola, and William F. Merlin, Jr. of Merlin Law Group, Tampa, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of February 23, 2006, the Court has determined 'that the order on appeal is not an appealable partial final judgment. Specifically, any additional claim or claims based on “other coverages under the policy,” which remain pending in the lower tribunal at this time, and which arise out of the same contract for insurance and from the same incident causing loss are necessarily related to the claim applying the Valued Policy Law, Section 627.702, Florida Statutes, to the contract. See generally Mierzwa v. Florida Windstorm Underwriting Ass’n, 877 So.2d 774, 779 (Fla. 4th DCA 2004) (noting that the resolution of an Ordinance or Law Coverage claim under a windstorm insurance policy is related to the decision on the Valued Policy Law issue). Accordingly, the appeal is hereby DISMISSED for lack of jurisdiction.

ERVIN, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    Charles WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D05-3621.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Charles Williams, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Charles Williams timely seeks certiorari review of an order denying his petition for writ of mandamus. We conclude that the circuit court did not depart from the essential requirements of law when it denied relief concerning the Parole Commission’s decision to decline to authorize petitioner’s effective parole release date and to suspend his presumptive parole release date, and deny the petition insofar as it is directed to that issue.

In addition, Williams unsuccessfully claimed below that the Parole Commission had deviated from the requirements of its own rules when it elected to schedule his next extraordinary interview within five years, rather than within two years of the date of his effective parole release date interview. We treat respondent’s “motion for remand” as a concession that under the terms of rule 23-21.0155(3), Florida Administrative Code, Williams is entitled to relief as to this claim. See Rivera v. Moore, 825 So.2d 505 (Fla. 1st DCA 2002) (mandamus will lie to compel an administrative agency to follow its own rules). Accordingly, we grant the petition for writ of certiorari in part, quash the portion of the circuit court’s order denying relief as to this claim, and remand for further proceedings consistent herewith.

PETITION GRANTED IN PART AND REMANDED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    The FLORIDA INSURANCE COUNCIL, INC.; The American Insurance Association; Property and Casualty Insurers Association of America; and National Association of Mutual Insurance Companies, Petitioners, v. OFFICE OF INSURANCE REGULATION and The Financial Services Commission, Respondents.
    No. 1D06-35.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, Attorneys for Petitioners.
    S. Marc Herskovitz of the Office of Insurance Regulation, Tallahassee, Attorneys for Respondents.
   PER CURIAM.

Petitioner’s petition for review of non-final agency action is denied on the merits.

BARFIELD, BROWNING, and THOMAS, JJ., concur.


text:
    William H. ADAMS, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-805.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2006.
    William H. Adams, III, Mayo, pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Scott v. State, 909 So.2d 364 (Fla. 5th DCA 2005).

AFFIRMED.

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    M.L.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2955.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2006.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

AFFIRMED.

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


text:
    Ruth MILLS-WINT, Appellant, v. Canute WINT, Appellee.
    No. 5D05-1581.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2006.
    Scott E. Siverson,- Orlando, for Appellant.
    Tee Persad, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Griffith v. Griffith, 860 So.2d 1069 (Fla. 1st DCA 2003).

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


text:
    Christopher WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-842.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2006.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

GRIFFIN, PALMER and ORFINGER, JJ., concur.


author: ALTENBERND, Judge.

text:
    In the Interest of D.A.B., T.J.B., E.I.C., A.M.C., and R.S.C., Children. D.O.B., Father, Appellant, v. Department of Children and Family Services and G.J.G., Appellees.
    No. 2D05-3036.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.

      Jessica C. Tien of Tien Law Group, Tampa, for Appellant.
    No appearance for Appellees.
   ALTENBERND, Judge.

D.O.B. appeals an order arising out of a dependency proceeding that requires him to pay $350 per month in child support from his monthly social security disability insurance benefits of $768 per month. Because of numerous procedural deficiencies occurring in the entry of this order, we reverse.

D.O.B. is the father of two of the five children involved in this dependency proceeding. G.J.G. is the mother of all five children. In 2003, the Department of Children and Family Services commenced a dependency action against D.O.B. and G.J.G. regarding these children. When the action began, D.O.B. and G.J.G. were residing together with all five children. The Department did not remove the children from their care, but the children were adjudicated dependent and the Department provided D.O.B. and G.J.G. with a case plan.

In September 2004, D.O.B. and G.J.G. separated. At a status check in October 2004, the Department represented that the children were in the primary custody of G.J.G., that D.O.B. was visiting the children weekly, and that D.O.B. was voluntarily providing $350 per month to G.J.G. to cover one-half of the mortgage payments for the home in which G.J.G. and the children continued to reside.

In the beginning of 2005, the Department was poised to terminate all protective supervision for this family. In preparation for this, however, the Department learned that at the end of 2004 D.O.B. had stopped paying G.J.G. the $350 per month toward the mortgage and G.J.G. was facing possible foreclosure. The Department wanted to ensure this situation was resolved before protective services were terminated.

A status review was scheduled for April 19, 2005. On April 1, 2005, the Department filed a “Safe Children Coalition’s Status Review” which indicated that “the agency supports the closure of this case only with the condition that these matters of child support and housing be addressed, and resolved, with the father” and “the Coalition would request child support to be addressed.” However, no written motion for child support was filed, nor a notice of hearing indicating this issue would be addressed at the status conference.

At the status conference, the Department asked the trial court to order child support and to terminate protective services supervision. The Department did not present any proposed child support guidelines calculations. It presented no evidence of G.J.G.’s income. Instead, it simply asked the trial court to order D.O.B. to pay $350 per month to G.J.G. as child support, in accordance with the amount D.O.B. had voluntarily paid in the past.

D.O.B. presented evidence that he was disabled and unemployed. His only source of income was social security disability benefits totaling $768. These benefits came in three increments: $558 payable for his benefit and two checks of $105 each payable for the benefit of each child.

The trial court indicated that it was going to order D.O.B. to pay $350 per month as child support, retroactive to January 2005. As to future payments, the trial court required D.O.B. to arrange to have the children’s social security disability benefits paid directly to G.J.G. and then required D.O.B. to pay G.J.G. an additional $140 per month from his individual benefits. The retroactive award resulted in an arrearage of $1700. The trial court ordered D.O.B. to sell his 1978 pick-up truck, his only significant asset and his sole mode of transportation for visitation, to pay $500 toward the arrears within a month. Thereafter, D.O.B. was to pay $50 per month toward the arrearages until they were paid in full.

D.O.B. objected to the trial court’s ruling. He argued that child support had to be calculated in accordance with the guidelines in section 61.30, Florida Statutes (2004), and that the trial court’s ruling failed to consider numerous provisions of that statute. He further argued that the trial court should not have required monthly payments toward the retroactive arrearage in an amount greater than 10% of the monthly amount. The trial court overruled these objections, indicating the $350 monthly award was based upon a “stipulation.” It then entered a written order setting forth these provisions and a separate order terminating protective supervision for the family.

There was no stipulation regarding child support. There was no motion seeking such support and no accompanying financial affidavit of G.J.G. as required by section 61.30(14). D.O.B. received no notice of hearing regarding child support. Although section 61.30(l)(a) provides: “The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support,” the trial court made no attempt to calculate child support in accordance with the guidelines. See also Wallace v. Dep’t of Revenue, 774 So.2d 804 (Fla. 2d DCA 2000) (explaining proper calculation of child support under section 61.30 when social security disability benefits are paid to a parent and to their child on the disabled parent’s behalf). The trial court did not assess whether D.O.B.’s visitation with the children would merit a reduction in any guideline amount. See § 61.30(ll)(a)(10), (b). Further, it appears that the $350 per month the court awarded as child support represents a deviation of more than 5% over the amount a guideline calculation would require, thus necessitating a written order “explaining why ordering payment of such guideline amount would be unjust or inappropriate.” § 61.30(l)(a).

We also note that the trial court’s provisions regarding the payment of any retroactive arrearage do not appear to have taken into account D.OJB.’s ability to pay the monthly amount of child support and arrearage payments, nor the best interest of the children. Given that D.O.B. exercises regular visitation with the children, for which he needs to provide adequate transportation and a residence, the trial court’s order requiring the sale of D.O.B.’s truck and requiring him to pay a total of $400 per month based upon income of $768 may have a deleterious effect on the children as well as D.O.B.

We therefore reverse the order requiring D.O.B. to pay child support of $350 per month, establishing a child support arrearage, and requiring payment toward the arrearage. We note that the Department has decided not to participate in this appeal and no other party has appealed or raised any issue regarding the propriety of the order terminating supervision. As such, supervision has been terminated and the dependency court no longer has jurisdiction over this issue. Indeed, it is questionable whether the dependency court was authorized to adjudicate the issue of child support between these two parents. See § 39.521, Fla. Stat. (2004) (requiring disposition order to address child support “[i]f the child is in an out-of-home placement”). As such, G.J.G. will need to pursue child support in a separate proceeding. As this case illustrates, a dependency court is not necessarily equipped to address child support and other financial issues between parents, both initially and on a continuing basis as enforcement and modification issues arise.

Reversed.

STRINGER and VILLANTI, JJ., Concur.

      .The father of the three older children was also served with the dependency petition but was considered a non-offending parent. Thus, his involvement in the litigation was minimal.

      . The record suggests, but does not conclusively establish, that. D.O.B. and G.J.G. were married at the time the petition for dependency was filed.

      . It appears from our record that D.O.B.’s mother had previously owned this residence, subject to a mortgage. D.O.B.’s mother had quitclaimed the residence to D.O.B. and G.J.G. as either tenants in common or tenants by the entireties, with the understanding that D.O.B. and G.J.G. would pay off the mortgage to acquire an unencumbered fee simple interest in the property.

      . It is important to note that the trial court's decision to establish the amount of child support by reference to the mortgage obligation and not by calculating the amount in accordance with the child support guidelines could have resulted in an unintended effect on D.O.B.'s and G.J.G.’s respective property rights in the home. It appears the property is owned jointly by D.O.B. and G.J.G. As such, D.O.B. remains equally responsible for all payments necessary to maintain the ownership of this property until its sale, at which time he would receive his proportionate interest in the proceeds of the sale. See, e.g., Babb v. Babb, 771 So.2d 1215 (Fla. 5th DCA 2000). To the extent that D.O.B.’s payments to G.J.G. are classified as child support, and not as payments toward the mortgage, his interest in the proceeds from a later sale of the property may be diminished and G.J.G.'s increased. Id. Of course these property interests could not be addressed in the dependency action.


author: STRINGER, Judge.

text:
    Thomas C. BARATTA, Jr., Appellant, v. VALLEY OAK HOMEOWNERS’ ASSOCIATION AT THE VINEYARDS, INC., a Florida nonprofit corporation; R.F. Jack Cummings, Joseph A. Moreland, Robert G. Partridge, Tammy L. Langdon, and Douglas H. Wright, all individually and as Directors; and Newell Property Management Corporation, a Florida corporation, Appellees.
    No. 2D05-2318.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.

      Thomas CJBaratta, Jr., pro se.
    Alfred F. Gal, Jr., of Samouce, Murrell & Gal, P.A., for Appellee Valley Oak Homeowners’ Association at the Vineyards, Inc.
    No appearance for Appellees R.F. Jack Cummings, Joseph A. Moreland, Robert G. Partridge, Tammy L. Langdon, Douglas H. Wright, and Newell Property Management Corporation.
   STRINGER, Judge.

Thomas Baratta appeals from an amended final judgment awarding attorney’s fees and costs against him and in favor of Valley Oak Homeowner’s Association after Baratta’s case against Valley Oak was dismissed for failure to prosecute. This court had previously reversed a judgment for attorney’s fees in favor of Valley Oak and remanded for the trial court to make the findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), to support the award. See Baratta v. Valley Oak Homeowners’ Ass’n, 891 So.2d 1063 (Fla. 2d DCA 2004). Because the trial court again failed to make the required findings, we again reverse and remand for further proceedings.

This case arises out of a dispute between Baratta and Valley Oak concerning the type and color of signposts and mailboxes in the community. Baratta successfully obtained a temporary injunction to prevent Valley Oak from assessing homeowners for the new signposts and mailboxes; however, he did not take any further steps to obtain the permanent injunction that he had initially sought. At some point while the temporary injunction was in place, Valley Oak apparently took some action that violated the temporary injunction, and Ba-ratta sent correspondence to Valley Oak’s counsel on this issue. However, when no record activity had occurred for more than one year after the temporary injunction was obtained, Valley Oak sought and obtained a dismissal of the action for failure to prosecute.

Valley Oak then sought an award of attorney’s fees and costs, contending that it was the prevailing party in the action and that it was therefore entitled to an award of its attorney’s fees and costs under certain provisions of the governing association documents. At the hearing on Valley Oak’s motion, Baratta argued that Valley Oak should not be considered the prevailing party for purposes of attorney’s fees because he had successfully obtained a temporary injunction against Valley Oak. Baratta, 891 So.2d at 1065 n. 2. In the alternative, Baratta argued that neither party should be considered a prevailing party because they had “fought to a draw.” Id. at 1065 n. 3. Despite these arguments, the trial court found that Valley Oak was the prevailing party entitled to attorney’s fees. The trial court then heard evidence on the issue of the amount of attorney’s fees and costs to be awarded. After considering the evidence presented, the trial court awarded Valley Oak all of the attorney’s fees and costs it sought and entered a written final judgment. However, this final judgment contained no findings of any kind as to the reasonable hourly rate or the reasonable number of hours expended by Valley Oak’s attorneys.

Baratta appealed this final judgment, contending that Valley Oak should not be considered the prevailing party and that the portion of the final judgment awarding attorney’s fees did not comply with Rowe. Because this court’s record did not include a transcript of the hearing on the motion for attorney’s fees, this court was unable to determine whether the attorney’s fee award was supported by competent, substantial evidence. Baratta, 891 So.2d at 1065 n. 4. Rather, this court held only that the judgment was fundamentally erroneous on its face because it failed to include the findings required by Rowe. Id. at 1065. Accordingly, while this court affirmed the finding that Valley Oak was the prevailing party, we reversed and remanded for the trial court to enter an amended judgment that complied with the requirements of Rowe. Id. at 1066.

On remand, Valley Oak argued that the trial court did not need to have a new evidentiary hearing on the issue of attorney’s fees and that it could simply enter an amended judgment incorporating the findings it allegedly made on the record at the earlier hearing. Valley Oak proffered a proposed amended judgment for attorney’s fees and costs that contained findings as to the reasonable hourly rate for and the reasonable number of hours expended by its' attorneys, and Valley Oak suggested that the trial court could also attach the portions of the transcript’ from the prior evidentiary hearing that reflected its complete findings. Baratta objected to the proposed amended judgment, noting that it did not comply with this court’s mandate because it still did not contain all of the findings required by Rowe. Baratta also pointed out that the trial court should consider that Valley Oak lost at the temporary injunction hearing when considering whether its request for fees was reasonable. After considering these arguments and reviewing the proposed amended judgment offered by Valley Oak, the'trial court stated, “Baratta is correct that this order still doesn’t comply with what I think the second district is looking for or any appellate court, and that is some findings of fact.” Nevertheless, the trial court signed the proposed amended judgment as presented and attached certain portions of the transcript of the prior evidentiary hearing. Baratta now seeks review of this amended judgment for attorney’s fees and costs.

In Rowe, the supreme court adopted the federal lodestar .approach for determining a reasonable attorney’s fee under a prevailing party attorney’s fee statute or contractual provision. Rowe, 472 So.2d at 1146; Freedom Sav. & Loan Ass’n v. Biltmore Constr. Co., 510 So.2d 1141, 1142 (Fla. 2d DCA 1987) (holding that Rowe applied to both statutory and contractual prevailing party fee awards). In doing so, the court recognized that while the amount of a reasonable fee had to be determined based on the facts of each case, certain factors had to be considered in every case in order to make that determination. Rowe, 472 So.2d at 1150. Thus, the Rowe court required the trial court to consider the following factors in every case:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Id. After considering these factors, the trial court must make specific findings concerning the reasonable hourly rate, the number of hours reasonably expended, and the appropriateness of any reduction or enhancement factors. Id. at 1151; see also Abdalla v. Southwind, Inc., 561 So.2d 468, 468 (Fla. 2d DCA 1990); Biltmore Constr. Co., 510 So.2d at 1142. The failure to make these required findings constitutes reversible error. Bayer v. Global Renaissance Arts, Inc., 898 So.2d 995, 996 (Fla. 2d DCA 2005); Abdalla, 561 So.2d at 468.

In this case, the amended final judgment for attorney’s fees does contain findings concerning the number of hours reasonably expended and the reasonable hourly rate. However, it contains no findings whatsoever concerning the appropriateness of any reduction or enhancement factors despite Baratta’s argument that the court should consider that Valley Oak had lost at the temporary injunction hearing, and so the fees should be reduced. Therefore, the amended final judgment still fails to comply with the requirements of Rowe.

Moreover, contrary to Valley Oak’s assertions in both the trial court and on appeal, the transcript of the prior eviden-tiary hearing does not contain sufficient evidence to support the trial court’s award of attorney’s fees. A review of that transcript show’s that there was no evidence of any type presented to allow the trial court to consider at least three of the Rowe factors: the likelihood of this case precluding other representation by the attorneys, the nature and length of the relationship between Valley Oak and the attorneys, and the experience and reputation of the attorneys. Because no evidence was even presented concerning these factors, it would have been impossible for the trial court to have considered them in reaching its determination of a reasonable fee, despite being required to do so by Rowe. Therefore, we cannot say that the trial court’s findings on the reasonableness of the hours expended and the reasonableness of the hourly rate are supported by competent, substantial evidence. Accordingly, we must reverse the amended final judgment for attorney’s fees and costs and remand for further proceedings.

While we are reversing solely because the amended final judgment does not comply with Rowe, our review of the time records presented by Valley Oak’s counsel raises some concerns that we briefly address for guidance to the court on remand.

In deciding upon amounts to be awarded as attorney’s fees, a trial court must consider not only the reasonableness of the fees charged but the appropriateness of the number of hours counsel engaged in performing his services as well. The court should review the nature of the services rendered and the necessity for their performance, along with the reasonableness of the charges.

Mercy Hosp., Inc. v. Johnson, 431 So.2d 687, 688 (Fla. 3d DCA 1983). In determining the number of hours that have been “reasonably expended,” the court must consider the time that would ordinarily have been spent by lawyers in the community to resolve this particular type of dispute, which is not necessarily the number of hours actually expended by counsel in the case at issue. In re Estate of Platt, 586 So.2d 328, 333 (Fla.1991); see also Centex-Rooney Constr. Co. v. Martin County, 725 So.2d 1255, 1258 (Fla. 4th DCA 1999). Thus, as a general rule, dupli-cative time charged by multiple attorneys working on the case is usually not compen-sable. N. Dade Church of God, Inc. v. JM Statewide, Inc., 851 So.2d 194, 196 (Fla. 3d DCA 2003). In addition, work that is necessitated by the client’s own behavior should more properly be paid by the client than by the opposing party. See Guthrie v. Guthrie, 357 So.2d 247, 248 (Fla. 4th DCA 1978). Finally, attorney’s fees should not usually be awarded for claims on which the moving party was unsuccessful. See Bd. of Regents v. Winters, 918 So.2d 313 (Fla. 2d DCA 2005); N. Dade Church of God, 851 So.2d at 196.

We recognize that our holding will require the trial court to conduct a new evidentiary hearing on the issue of attorney’s fees and costs to address the Rowe factors not previously addressed. Once this new hearing is complete, the trial court must set forth specific written findings regarding the number of hours “reasonably expended,” the “reasonable” hourly rate, and the reasons for any adjustment or lack thereof to the lodestar amount, all as required by Rowe.

Reversed and remanded for further proceedings.

SALCINES and LaROSE, JJ., Concur.


author: SALCINES, Judge.

text:
    R.J.K., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4216.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.

      James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

R.J.K. appeals a disposition order adjudicating him delinquent based on a finding that he committed burglary of a dwelling and grand theft. Because the evidence was insufficient to prove that R.J.K. committed either offense, we reverse the disposition order.

The State filed a petition for delinquency alleging that R.J.K. committed second-degree felony burglary of a dwelling and third-degree felony grand theft. The matter proceeded to an adjudicatory héaring at which only one witness testified — the victim of the burglary and theft.

The victim, Marlon Hodge, is R.J.K.’s uncle. He testified that he was at his home during the morning of March 5, 2004, when “some gujrs” he did not know knocked on the door and asked for someone named “Kiki.” Mr. Hodge-told them that no one by that name lived there. Afterward, Mr. Hodge watched as “this gentleman” got in a green and black Jeep Cherokee.

Mr. Hodge then left his home for forty-five minutes to have lunch. When he returned, his front door was knocked in and the lock was removed. He walked into his bedroom and noticed that things were in disarray. He then walked to a second bedroom, where he kept money hidden under a pile of clothes, and discovered that his money was gone. He testified that he had $8000 in cash and $700 in change. He also testified that the burglar took a PlayStation 2, several games, and a hat. He testified that he had paid $150 for the PlayStation 2 a year earlier, and it was in good condition. Mr. Hodge did not see the burglar or burglars who entered his home.

Mr. Hodge testified that he reported the burglary and the “police” responded. However, no law enforcement officer testified at the adjudicatory hearing, and no evidence was introduced concerning the content of the incident report or the details of any investigation conducted by law enforcement. '

Mr. Hodge testified that he was suspicious ofihis nephew, R.J.K., so he located R.J.K. later that evening and confronted him. At that time, R.J.K. was sitting on a porch with a girl. Mr. Hodge “snatched him up,” put him in his car, and took him to another location- — R.J.K.’s aunt’s house. Mr. Hodge testified that he was upset during this confrontation and asked R.J.K., “how could he come to my house with these guys and break in.” In response, R.J.K. said that he told “these guys,” “oh, I’m going to go to my uncle’s house and get some money that he keeps in a jar.”

Mr. Hodge testified that R.J.K. then telephoned someone named “Bird.” According to Mr. Hodge, R.J.K. instructed Bird to “bring my uncle his money.” Rather than waiting, Mr. Hodge told R.J.K. to take him directly to Bird, and R.J.K. proceeded to do so.

When they arrived at their destination, R.J.K. got out of Mr. Hodge’s car and walked ' to a vehicle parked nearby — an Altima. R.J.K. jumped in the Altima, in which there were other boys, and the vehicle drove away. Mr. Hodge was unable to catch up to the Altima, but the Altima “double-backed” on him and went to R.J.K’s aunt’s house. Mr. Hodge also went to R.J.K.’s aunt’s house. When Mr. Hodge arrived, R.J.K’s aunt handed him $500.

Mr. Hodge testified that he did not give R.J.K. permission to enter his home at any time or to take any of his property or money. However, no testimony was elicited from Mr. Hodge to establish whether R.J.K. had ever entered Mr. Hodge’s home.

No other witnesses testified, and no physical evidence was introduced. Defense counsel moved for a judgment of dismissal in regard to both counts at the end of the State’s case and renewed the motion at the close of all the evidence. The defense argued with specificity a number of grounds in support of the motion explaining how the State had failed to sufficiently establish each element of each offense. The State responded that R.J.K. admitted that he “went” to Mr. Hodge’s home to get some money. R.J.K.’s motion was denied.

The purpose of a motion for judgment of dismissal in a juvenile case is to test the legal sufficiency of the evidence presented by the state. A.P.R. v. State, 894 So.2d 282 (Fla. 5th DCA 2005). In considering such a motion, all reasonable inferences that may be drawn from the evidence must be viewed in a light most favorable to the state; when viewed in that light, if a rational trier of fact could find that the elements of the offense have been proven beyond a reasonable doubt, the evidence is sufficient to sustain the conviction and the motion should be denied. Id. at 285. The denial of a motion for judgment of dismissal is reviewed by this court de novo. Id. (citing Pagan v. State, 830 So.2d 792 (Fla.2002)).

Application of the foregoing standard leads us to the conclusion that the trial court erred in denying the motion for judgment of dismissal.

A conviction for the crime of burglary of a dwelling requires proof of: (1) knowing entry into a dwelling, (2) knowledge that such entry is without permission, and (3) criminal intent to commit an offense within the dwelling. See § 810.02(1)(b), Fla. Stat. (2003); D.R. v. State, 734 So.2d 455 (Fla. 1st DCA 1999). Additionally, ownership of the building or structure is a material element of the crime of burglary. D.S.S. v. State, 850 So.2d 459 (Fla.2003). However, the sufficiency of the State’s proof regarding Mr. Hodge’s superior possessory right to the burglarized dwelling was uncontested.

The evidence failed to establish a knowing entry by R.J.K. into Mr. Hodge’s dwelling. Indeed, as the defense argued when moving for dismissal, no testimony was offered or physical evidence introduced to demonstrate that R.J.K. had entered Mr. Hodge’s home during the brief period of time in which the burglary and theft occurred. The only individuals Mr. Hodge saw in the proximity of his home close to the time of the burglary were people he did not know.

Contrary to the State’s characterization of the testimony at the hearing and on appeal, Mr. Hodge’s recitation of R.J.K’s statement to him — “I’m going to go to my uncle’s house and get some money that he keeps in a jar” — was not an admission, by R.J.K., that he actually went to his uncle’s home. With regard to R.J.K’s phone call to Bird, while it might have tended to demonstrate that R.J.K. had knowledge about who burglarized the home and stole the money, it was similarly insufficient to establish that R.J.K. was the person who burglarized Mr. Hodge’s home. The essential elements of the crime were not proven beyond a reasonable doubt, and the charge against R.J.K. for burglary of a dwelling should have been dismissed.

Likewise, the evidence failed to establish that R.J.K. knowingly obtained, used, or endeavored to obtain Mr. Hodge’s property with the intent to either temporarily or permanently deprive Mr. Hodge of its use as alleged in the petition. See § 812.014(1), (2)(c)(l), Fla. Stat. (2003). The foregoing allegations, as well as the value of the stolen property, see D.H. v. State, 864 So.2d 588 (Fla. 2d DCA 2004), had to be established in order to demonstrate that R.J.K. committed third-degree felony grand theft of property. There was no evidence that R.J.K. was in possession of any of his uncle’s money or property or that he had endeavored to obtain that property. The essential elements of the crime were not proven beyond a reasonable doubt, and the charge against R.J.K. for grand theft should have been dismissed.

Finally, on appeal the State argues that this case should be affirmed because R.J.K’s guilt as a principal was established. This argument also fails. In order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime. L.J.S. v. State, 909 So.2d 951 (Fla. 2d DCA 2005). The evidence shows only that R.J.K. might have known or discovered who committed the burglary and tried to get his uncle’s money back. Indeed, R.J.K. might have learned of the crime after it had ' occurred. R.J.K.’s statement to other individuals that he was going to go to his “uncle’s house and get some money that he keeps in a jar,” could have tipped off potential burglars that money was kept in Mr. Hodge’s home. However, that statement was insufficient to prove that R.J.K. had the conscious intent required to be found guilty as a principal to either offense. Accordingly, we reverse this one witness case with directions to vacate the adjudication and to discharge R.J.K. from the probation imposed in regard to these offenses.

Reversed and remanded with directions.

KELLY and LaROSE, JJ., Concur.


author: STEVENSON, C.J.

text:
    Billy Joe McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3373.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Appellant Billy Joe McCoy appeals his conviction and sentence for resisting arrest without violence and criminal mischief. We reverse and remand for a new trial due to the prosecutor’s improper remarks during closing argument and the trial judge’s failure to instruct the jury on the defense of necessity.

The State’s key witness, Deputy Paul Hutchinson, testified to the following. He was dispatched to appellant’s residence in response to a 911 call. When he arrived at the scene, appellant walked out, pushed him in the chest, and informed him that he was not needed there. Disregarding orders to get on the ground, appellant attempted to leave the scene. The incident escalated into a physical struggle, during which appellant and his relatives were pepper sprayed. Appellant was placed in an air-conditioned squad car, the rear window of which appellant subsequently broke.

Appellant provided a contradictory version of events, stating that as he was returning to his house to get his keys, Hutchinson ordered him to “get down.” He put his hands in the air and told the officer “ain’t nothing going on here.” Hutchinson then pepper sprayed him twice in the face and placed him in a squad car with the air-conditioning off and the windows rolled up. According to appellant, due to his compromised immune system and resulting shortness of breath, he believed he was suffocating and, after his requests for air were ignored, he kicked out the window so he could breathe. Appellant denied hitting Hutchinson.

During closing argument, the prosecutor made the following remarks: “Deputy Hutchinson testified he was pushed by the Defendant, obviously he would know about that. The other deputies, all of them said, T didn’t see it happen, I arrived after-wards.’ ” The prosecutor then commented, “[d]id the witness have some interest in how the case should be decided? I would submit to you that Deputy Paul Hutchinson’s interest in this case is not great enough to make him lie, he’s an officer.” Defense counsel objected, arguing “this is bolstering the credibility of the witness.” The objection was overruled and the prosecutor proceeded, stating

he has an interest in the case being that he made the arrest, I’m sure Deputy Hutchinson like any other officer has an interest in every case he makes, they were involved, however, that interest is not great enough to lie, to get up here, take an oath and then perjure himself.

Defense counsel again objected and moved for a mistrial. The objection was noted and the motion for mistrial denied.

This court has previously condemned prosecutorial comments of this nature. See Cisneros v. State, 678 So.2d 888, 889 (Fla. 4th DCA 1996) (impermissible for prosecutor to argue: “To win a case he jeopardizes his career, to win a case he’s going to put someone in jail? ... He’s not the type of man to come in and violate that sacred oath.”) (emphasis omitted); Davis v. State, 663 So.2d 1379, 1380 (Fla. 4th DCA 1995) (impermissible for prosecutor to ask: “What does Officer Hadden and Officer Kahir have to gain by putting their careers in jeopardy, taking the stand and perjuring themselves?”) (emphasis omitted); Clark v. State, 632 So.2d 88, 91 (Fla. 4th DCA 1994) (error for prosecutor to state: “[W]ould they [the police] actually put their credibility with this Court, put their jobs on the line by coming in here and risking getting caught by not telling the truth ... ?”), overruled on other grounds by T.B. v. State, 669 So.2d 1085 (Fla. 4th DCA 1996).

The State concedes the prosecutor’s remarks were improper, but argues a new trial is unwarranted in light of Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998). We find Lewis distinguishable. There, the Third District held comments similar to those made here harmless in light of overwhelming evidence of defendant’s guilt, i.e., the' victim of an armed carjacking found the defendant’s wallet under the car seat and identified the defendant as the person who committed the crime from photographs found in the wallet. Here, the testimonies of the State’s witnesses conflicted with those for the defense. As a result, the State’s case hinged on the credibility of the officers and, as highlighted by the prosecutor, the testimony of Deputy Hutchinson. This court cannot find beyond a reasonable doubt that the prosecutor’s comments did not contribute to the guilty verdict. See Landry v. State, 620 So.2d 1099, 1101 (Fla. 4th DCA 1993) (concluding that prosecutor’s references to officers’ “unblemished records” could not be considered harmless “[bjecause this case came down to a swearing match between the officers and appellant’s witness”).

We also write to address the trial court’s denial of appellant’s request for an instruction on the defense of necessity. Appellant claimed he broke the squad car’s window because his health condition causes him shortness of breath and being locked in the squad car with no air caused him to believe he was suffocating. The trial judge refused to give the requested instruction, but stated appellant could argue he broke the window out of necessity. A “[defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions.” Hooper v. State, 476 So.2d 1253, 1256 (Fla.1985). The elements of the necessity defense are

“(1) that the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others, (2) that the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct, (3) that there existed no other adequate means to avoid the threatened harm except the criminal conduct, (4) that the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) that the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.”

W.E.P., Jr. v. State, 790 So.2d 1166, 1172 n. 4 (Fla. 4th DCA 2001) (quoting Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998)). Appellant’s trial testimony, if believed, could establish these elements. Based on the record presented, the trial court erred by not giving the requested necessity instruction.

Accordingly, we reverse appellant’s conviction and sentence and remand for a new trial.

GUNTHER and FARMER, JJ., concur.


text:
    Mitzi Ann GIMENEZ, Appellant, v. Alexander NAPOLES, Maria Napoles, Barry A. Imber, Al-Flex Exterminators, Inc., and Structural Tenting Corporation, Appellees.
    No. 3D05-1009.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Brenner & Dienstag, Neil C. Cox, and Mark A. Dienstag, Miami, for appellant.

      Wicker, Smith, O’Hara, McCoy, Graham & Ford, and Shelley H. Leinicke, Fort Lauderdale, for appellees.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Mitzi Ann Giménez (“Gimenez”), appeals the trial court’s order, granting summary judgment in favor of Alexander Ñapóles, Maria Ñapóles, Barry A. Imber, Al-Flex Exterminators, Inc., and Structural Tenting Corporation (collectively “defendants”), in an action for fraudulent misrepresentation, negligent misrepresentation, constructive fraud, civil theft, and civil conspiracy. We reverse.

Summary judgment is proper when there are no genuine issues of material fact, and the moving party 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). However, summary judgment is infrequently proper in fraud cases because the issue usually turns on the axis of circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge. See Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 991 (Fla. 4th DCA 2003).

Here, we find that there are several genuine issues of material fact surrounding the alleged fraud, which merit a jury determination. Thus, the trial judge clearly should have not granted summary judgment. Accordingly, we reverse and remand for a trial on all issues.

Reversed and remanded.


author: ROTHENBERG, Judge.

text:
    William R. DORN a/k/a Bill Dorn, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-636.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    William R. Dorn a/k/a Bill Dorn, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, William R. Dorn a/k/a Bill Dorn, appeals the summary denial of his motion filed under Florida Rule of Criminal Procedure 3.800(a), in which he sought an additional 104 days of credit for jail time served. Because the record before us fails to conclusively demonstrate that the defendant is not entitled to any relief, we reverse the denial of his motion. See Fla. R.Crim. P. 3.850(d); Fla. R.Crim. P. 9.141(b)(2)(D)(“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”); see also Gurrola v. State, 925 So.2d 430 (Fla. 3d DCA 2006); Barfield v. State, 900 So.2d 723 (Fla. 3d DCA 2005). On remand, the trial court should either attach those portions of the record that conclusively refute the defendant’s claim or award him the appropriate credit for time served.

Reversed and remanded.


author: SUAREZ, J.

text:
    Armando JIMENEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-160.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before LEVY and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Armando Jimenez appeals his convictions and life sentences for armed burglary with assault, armed robbery with a firearm and two counts of attempted first-degree murder. We affirm the convictions and sentences.

The two victims, Blanca D’Armidore and Martin Ricon, testified at trial that, on the morning of the incident, D’Armidore awoke at 6:00 a.m. to feed her dogs. Ri-con, with whom she shared a house, got up to watch television. Ricon testified that Jimenez, whom both victims had met about a month prior, appeared in the house with a gun in hand, yelled at Ricon to throw himself on the floor and demanded money. Ricon lay on the ground and Jimenez shot him in the head. D’Armidore then entered the room and saw Ricon on the floor bleeding and saw Jimenez in the room. Jimenez then instructed her to throw herself on the ground. He shot her in the face and stabbed her with a knife. Both victims survived and identified Jimenez to the police and at trial. The defendant lived in the vicinity of the victims’ home, and neither he nor his son could verify his whereabouts during the hours that the incident occurred. The defendant denied the incident. The jury found Jimenez guilty on all counts and he was sentenced to natural life.

Jimenez’s first point on appeal is that the trial court committed reversible error by soliciting the jurors to ask questions of the witnesses and defendant after each testified. Jimenez does not find fault with the fact that the jurors were allowed to ask questions, but with the fact that the trial court enlisted questions from the jurors after each witness. This court has previously held that the procedure used by this judge for jurors to ask questions, including the judge asking the jurors after each witness if the jurors have any questions, is not an abuse of discretion. See Trellez v. State, 909 So.2d 463 (Fla. 3d DCA 2005); McGlocklin v. State, 907 So.2d 1288 (Fla. 3d DCA 2005). The Florida Supreme Court has declined to revisit this issue on appeal. See Watson v. State, 651 So.2d 1159 (Fla.1994). Once again, we hold that the trial court’s procedure is not an abuse of discretion. Additionally, we find that the five questions asked by jurors of Jimenez, and the answers given, were not prejudicial to the outcome of the trial and, therefore, the procedure was harmless. See Tanner v. State, 724 So.2d 156 (Fla. 1st DCA 1998)(finding any error in inviting jury questioning harmless where questions were not prejudicial to the outcome of the trial).

Jimenez’s second point on appeal is that the trial court erred in giving Florida Standard Criminal Jury Instruction 2.04(e). Jimenez claims he was prejudiced by this instruction as it instructed the jury to weigh with great care his testimony at trial. Jimenez failed to object to the giving of the instruction at trial. Jury instructions are subject to the contemporaneous objection rule and, if not objected to timely, can only be raised on appeal if fundamental error occurred. See Archer v. State, 673 So.2d 17, 20 (Fla.1996). Fundamental error is “error [which reaches] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)(quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)). Jimenez’s appeal on this issue is barred, as it was not properly preserved for review and the alleged error is not fundamental. On the merits, the instruction was not harmful to the defendant or his defense. The instruction refers to out-of-court statements made by the defendant to another witness. It does not refer to in-court statements of witnesses or to the in-court statement of Jimenez. The error, if any, in giving this instruction was harmless. Given the evidence at trial, any error in giving this instruction did not reach down into the validity of the trial to the extent that the guilty verdicts could not have been obtained without this alleged error. We also reject Jimenez’s argument first brought in this direct appeal that his counsel was ineffective in not objecting to the giving of this instruction. The jury was not instructed to disregard or consider cautiously the defendant’s trial testimony, but to consider his trial testimony in the same regard as the other witnesses. The facts giving rise to this claim of error in the jury instruction are not apparent on the face of the record. Therefore, the argument of ineffective assistance of counsel cannot be brought on direct appeal. Mizell v. State, 716 So.2d 829, 830 (Fla. 3d DCA 1998)(ineffectiveness claims may not be brought on direct appeal when the facts giving rise to the claim are not apparent on the record).

For the above reasons, we affirm the convictions and sentence.

      . Jimenez did not object to the procedure for juror questioning at trial and did not object to the questions asked by the jurors at trial.

      . Florida Standard Criminal Juiy Instruction 2.04(e) provides:
      A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made. Therefore, you must determine from the evidence that the defendant's alleged statement was knowingly, voluntarily, and freely made.
      In making this determination, you should consider the total circumstances, including but not limited to:
      1. Whether, when the defendant made the statement, he had been threatened in order to get him to make it, and
      2. Whether anyone had promised him anything in order to get him to make it. If you conclude the defendant’s out-of-court statement was not freely and voluntarily made, you should disregard it.
      Fla. Std. Jury Instr. (Crim.) 2.04(e).

      . The jury was also instructed that "[t]he defendant in this case has become a witness. You should apply the same rules to consideration of his testimony that you apply to the testimony of other witnesses.”


author: BENTON, J.

text:
    K.R.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5509.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Nancy A. Daniels, Public Defender; 'P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

K.R.T. appeals the disposition order committing him to a high-risk residential program. The Department of Juvenile Justice (DJJ) had recommended committing him to a moderate-risk residential program. Because the trial court failed to explain “why the new restrictiveness level is indicated,” N.B. v. State, 911 So.2d 833, 836 (Fla. 1st DCA 2005), we reverse and remand for further proceedings.

Here, as in A.C.N. v. State, 727 So.2d 368, 371 (Fla. 1st DCA 1999), “the protection of society and punishment of the child are appropriate considerations.” Also as in A.C.N., however, “[t]he restrictiveness level recommended by the Department [already] requires the placement of appellant in a residential program,” and “the trial court did not explain why a more secure residential placement was required.” Id. While the trial court offered reasons for why it came to a different conclusion than DJJ did in the present case, the trial court failed to explain why a moderate-risk residential commitment would not adequately address appellant’s needs and the public interest, or why a high-risk residential commitment would be preferable. See N.B., 911 So.2d at 836; S.S.M. v. State, 814 So.2d 1234, 1235 (Fla. 5th DCA 2002) (vacating where “[t]he reasons given for imposing a level 8 program here were that the minor appeared to be out of control and disrespectful to her mother,” but “[t]he court made no reference to the level 8 restrictiveness level or how such a level served the needs of S.S.M.”).

The evidence could not, moreover, support a finding that moderate-risk residential placement would not suffice to control and rehabilitate appellant. See J.A.R. v. State, 923 So.2d 604 (Fla. 2d DCA 2006) (reversing where no evidence was presented that the low-risk residential placement recommended by DJJ could not provide programs recommended for J.A.R., and where “the statutory definitions of the restrictiveness levels themselves do not demonstrate that J.A.R.’s needs would be better served by the programs available in a moderate-risk placement”). Compare A.J. v. State, 826 So.2d 528, 529-31 (Fla. 5th DCA 2002) (approving court’s placement in high-risk, instead of moderate-risk, residential facility where juvenile had ten pri- or offenses and previously had been committed to a moderate-risk facility and had gone on to commit other offenses after being released from the program).

K.R.T. had not previously been committed to a residential facility, and there was no evidence that he presents a flight risk. See K.M. v. State, 891 So.2d 619, 620-21 (Fla. 3d DCA 2005) (“[T]he trial court’s reasons for departure are not supported by a preponderance of the evidence. None of K.M.’s prior arrests resulted in the imposition of sanctions more severe than probation.... [S]he was not placed in a moderate-risk placement prior to the institution of the current proceedings and, therefore, never ran away from such placement. Thus, there is no evidence that a moderate-risk placement would be insufficient to keep K.M. under control.”); A.W. v. State, 862 So.2d 858, 860 (Fla. 4th DCA 2003) (“[T]he record does not contain competent and substantial evidence that A.W. is a danger to the public and needs to be in a facility that is ‘hardware-secure with perimeter fencing and locking doors’ with ‘24-hour awake supervision.’ ”). Compare K.S. v. State, 835 So.2d 350, 352 (Fla. 4th DCA 2003) (upholding court’s commitment to high-risk facility where evidence showed juvenile was a flight risk and her conduct exposed her to danger, and court found that high-risk facility was necessary to “ ‘secure’ the juvenile for her own protection as well as that of the public”); C. T. v. State, 819 So.2d 869, 871-72 (Fla. 4th DCA 2002) (approving placement of juvenile in high-risk, instead of recommended moderate-risk, facility where the child had violent tendencies and was a flight risk); A.J. v. State, 826 So.2d at 529-31 (approving court’s placement in high-risk, instead of moderate-risk, facility where juvenile had ten prior offenses, many of which were violent).

The disposition is reversed, and the case is remanded.

POLSTON and THOMAS, JJ., concur.


author: WEBSTER, J.

text:
    Bruce MASTAY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-4531.
    District Court of Appeal of Florida, First District.
    May 11, 2006.

      Petitioner pro se.
    Philip A. Fowler, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   WEBSTER, J.

In his petition seeking a writ of certiora-ri, petitioner asserts that the trial court departed from the essential requirements of the law when it denied his petition for a writ of mandamus challenging the Department of Correction’s determination that he was not entitled to earn incentive gain-time while serving a mandatory-minimum term for trafficking in cocaine pursuant to section 893.135, Florida Statutes (2000). We agree and, accordingly, grant the petition, quash the trial court’s order and remand for further proceedings.

After pleading guilty to trafficking in cocaine, petitioner was sentenced to 60 months in prison with a three-year mandatory minimum pursuant to section 893.135. While petitioner was serving his three-year mandatory minimum, the Department did not award incentive gain-time because of its interpretation of section 893.135(3), which provides that “[a] person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.” After exhausting his administrative remedies, petitioner sought a writ of mandamus in the trial court, claiming that he was eligible to earn incentive gain-time while serving his mandatory-minimum term because the Department had based its denial on the erroneous conclusion that incentive gain-time was a “form of discretionary early release.” The trial court agreed with the Department’s interpretation of section 893.135(3), and denied the petition.

Although the legislature has not explicitly defined the term “discretionary early release,” a review of the legislative history of section 893.135(3) and the language of other mandatory-minimum statutes supports petitioner’s contention that incentive gain-time is not a form of “discretionary early release.” In 1999, the legislature amended section 893.135(3) to provide that persons are not eligible for “discretionary early release” during the service of a mandatory-minimum term except in very limited circumstances. Ch. 99-188, § 9, at 1061-62, Laws of Fla. Petitioner correctly notes that the proposed amendment to section 893.135(3) at one point provided:

A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of gain time under s. 944.275 or any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.

Fla. S. Jour. 1284, 1419-20 (Reg. Sess. 1999) (emphasis added). However, the language “any form of gain time under s. 944.275 or” was removed from the amendment in the House of Representatives before its adoption during the 1999 regular legislative session. Fla. H.R. Jour. 1911— 12, 2199 (Reg. Sess. 1999); Fla. S. Jour. 1865 (Reg. Sess. 1999). One of the sponsors of this change, Representative Beryl D. Roberts, remarked that the purpose of deleting the gain-time ineligibility language was to reduce the amount of the sentence to be served from 100 percent to 85 percent. Fla. H.R., tape recording of proceedings (Apr. 30, 1999) (available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.) (remarks of Rep. Beryl D. Roberts). This appears to be a reference to the statutory provision that allows a prisoner to earn incentive gain-time as long as it does not result in the prisoner’s release prior to serving a minimum of 85 percent of the sentence imposed. § 944.275(4)(b)3, Fla. Stat. (2000). Accordingly, the removal of the gain-time ineligibility language appears to have been the result of an intentional decision by the legislature to allow prisoners to earn incentive gain-time during the service of a mandatory-minimum term. Cf. Don King Prods., Inc. v. Chavez, 717 So.2d 1094, 1095 (Fla. 4th DCA 1998) (noting that “courts may properly take notice of changes made to a bill during the process of enactment” when construing the statute ultimately enacted).

This conclusion is further supported by an examination of other mandatory-minimum statutes. There are several mandatory-minimum statutes which provide that a person sentenced to a mandatory-minimum term “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under 947.149, prior to serving the mandatory minimum sentence.” § 316.1935(6), Fla. Stat. (2004-2005); § 775.087(2) & (3), Fla. Stat. (1996-2005); § 784.07(3)(b), Fla. Stat. (1996-2005); § 794.0115(7), Fla. Stat. (2003-2005). In addition, “violent career criminals” are “eligible for gain-time granted by the Department of Corrections as provided in s. 944.275(4)(b)” but are “not eligible for any form of discretionary early release, other than pardon or executive clemency, or conditional medical release granted pursuant to s. 947.149.” § 775.084(4)(k), Fla. Stat. (1999-2005). Clearly, these provisions treat statutory gain-time and “discretionary early release” as distinct concepts. Thus, when the legislature intends to prohibit individuals from being eligible for gain-time during the service of a mandatory-minimum term of imprisonment, it uses explicit language to that effect. By not including such language in section 893.135(3), the legislature has demonstrated its intent to permit the award of incentive gain-time during the service of a mandatory-minimum sentence. See State v. McKenzie, 574 So.2d 1176, 1179 (Fla. 5th DCA 1991) (Sharp, J., dissenting) (noting that, “[w]hen the legislature prohibits gain time in some mandatory minimum statutes and not in others[,] it indicates a legislative intent to permit gain time in those cases where it is not prohibited”). See also James v. Dep’t of Corr., 424 So.2d 826, 827 (Fla. 1st DCA 1982) (noting that, “where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned”).

Finally, if there is any ambiguity in the language of section 893.135(3), we must construe it in favor of the accused. See § 775.021(1), Fla. Stat. ,(2000). While the award of incentive gain-time is discretionary, it will not necessarily result in a prisoner’s early release prior to the service of a mandatory-minimum term of imprisonment. This is especially true when the prisoner has been sentenced to a term longer than the mandatory-minimum term or when the prisoner’s incentive gain-time is forfeited in subsequent disciplinary proceedings. Because incentive gain-time is not properly considered a form of “discretionary early release” under section 893.135(3), we conclude that the trial court departed from the essential requirements of the law when it concluded that petitioner was not eligible for incentive gain-time during the service of his mandatory-minimum term for drug trafficking. Accordingly, we grant the petition, quash the trial court’s order and remand for further proceedings consistent with this opinion.

PETITION GRANTED.

WOLF and BROWNING, JJ., concur.


text:
    Pascual VILLAZANO, Appellant, v. HORACE BELL HONEY CO. and Ameritrust, Appellee.
    No. 1D05-2311.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Mark L. Zientz and Andrea Cox, of the Law Offices of Mark L. Zientz, P.A., Miami, for appellant.
    Janelle G. Koren and Ben H. Cristal, of Sponsler, Bennett, Jacobs & Cristal, P.A., Tampa, for appellee.
   PER CURIAM.

The appellant, Pascual Villazano, seeks review of an order of the Judge of Compensation Claims (JCC) dismissing his verified petition for attorney fees. We reverse and remand for further proceedings.

Appellant filed several petitions for benefits. The parties eventually resolved all of the claims. The parties then advised the JCC’s office that there was no need for a final hearing, but reserved on the issue of attorney fee entitlement. The JCC served Notices of Administrative Closure of Case, which indicated the case would be administratively closed unless a verified petition for attorney fees was filed within 45 days. The notices also advised that all pending petitions for benefits would be subject to dismissal without a hearing unless a party filed an objection.

On October 29, 2004, the JCC entered an order closing the file. In the order, the JCC noted that all of the issues between the parties, other than attorney fee entitlement, had been resolved. Accordingly, the JCC dismissed all of the petitions for benefits pending prior to February 3, 2004. The order also provided:

The Court reserves jurisdiction for attorney’s fees and costs for a period of thirty(30) days. If a verified petition for attorney fees and costs is not filed in this office within thirty (30) days from the date of this order ALL attorney’s fees and costs on these closed/resolved petitions will be dismissed and forever barred by operation of this order.

Appellant filed his verified petition for attorney fees on March 2, 2005. The employer/carrier filed a motion to dismiss the verified petition with prejudice. The employer/carrier alleged the petition had to be dismissed because it was not timely filed within the dictates of the October 29, 2004, order. After a hearing was held on the motion to dismiss, the JCC granted the employer/carrier’s motion and dismissed the petition with prejudice. The JCC reasoned that because the October 29, 2004, order was not appealed within 30 days, he was without jurisdiction to modify the earlier order.

The portion of the October 29, 2004, order relating to attorney’s fees was not final. City of Hollywood v. Lombardi, 738 So.2d 491 (Fla. 1st DCA 1999), approved in part, quashed in part, 770 So.2d 1196 (Fla.2000); Southeast Recycling v. Cottongim, 728 So.2d 342 (Fla. 1st DCA 1999).

Appellant correctly asserts that the JCC did not have authority, pursuant to either statute or rule, to set a time limitation for filing the verified petition for fees. Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999) (“A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.”); McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA), review denied 583 So.2d 1035 (Fla.1991) (“Unlike a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440.”) The employer/carrier’s argument that the JCC had authority to set such a time limitation pursuant to section 440.33(1), Florida Statutes, is not persuasive. We do not address the employer/carrier’s assertion that the JCC had authority to dismiss the petition as a sanction pursuant to section 440.33(2), Florida Statutes, because the JCC did not dismiss the petition on this basis.

We reverse the order on appeal and remand for further proceedings.

BARFIELD, BROWNING, and THOMAS, JJ., concur.


author: DAVIS, Judge.

text:
    Karl FAERBER, as Personal Representative of the Estate of Nelson A. Faerber, Jr., and Kenneth Goodman, as Trustee of the Nelson A. Faerber, Jr., Trust Agreement dated February 20, 2003, Appellants, v. D.G., Appellee.
    No. 2D05-2514.
    District Court of Appeal of Florida, Second District.
    May 17, 2006.
    Theodore W. Zelman of Zelman & Han-lon, P.A., Naples, for Appellant Karl Faer-ber.
    Robert W. Goldman and John Scuderi of Goldman Felcoski & Stone, P.A., Naples, for Appellant Kenneth Goodman.
    Jeffrey M. Herman and Stuart S. Mer-melstein of Herman & Mermelstein, P.A., Miami; and Susan W. Fox of Fox & Lo-quasto, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Karl Faerber, as Personal Representative of the Estate of Nelson A. Faerber, Jr., and Kenneth Goodman, as Trustee of the Nelson A. Faerber, Jr., Trust Agreement dated February 20, 2003 (“Appellants”), challenge the trial court’s order granting D.G.’s petition for extension of time to file a claim against the Estate of Nelson A. Faerber, Jr. (“the Estate”). We reverse.

On April 29, 2004, the State charged Nelson Faerber (“the Decedent”) with five counts of sexual activity with a child. D.G. was the victim in that case. On July 13, 2004, the Decedent took his own life. It was alleged that prior to his death, he informed his children in writing that he expected civil cases to arise from the facts alleged in the criminal case. The Personal Representative published a notice to creditors on August 25, 2004, informing potential creditors that the deadline to file a claim against the Estate was November 25, 2004. On February 28, 2005, D.G. petitioned for allowance to file a late claim against the Estate, alleging that he had insufficient notice of the claims period.

Pursuant to section 733.2121, Florida Statutes (2004), a personal representative must publish notice to creditors of the time to file a claim on an estate in a newspaper in the county where the estate is administered, once a week for two consecutive weeks. However, subsection (3)(a) of the statute provides, in part, as follows:

The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliqui-dated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required.

Here, D.G. claimed below, and the trial court agreed, that because he was the victim in a criminal sexual abuse case against the Decedent and the Decedent had informed his family to expect D.G. to file a civil action based on those criminal charges, D.G. was a reasonably ascertainable creditor and should have received actual notice from the Personal Representative. As such, the trial court granted D.G.’s petition pursuant to section 733.702(3), specifically finding that because the Decedent knew D.G.’s identity, the Personal Representative could have ascertained D.G.’s identity and should have provided D.G. with actual notice of the claims period.

This was error, however, because, as the trial court acknowledged in its order, neither party presented any evidence below. Although, at the hearing, counsel for D.G. made certain representations as to how the Decedent and his family knew D.G. and how the Decedent’s family was aware of D.G.’s involvement in the criminal case against the Decedent, counsel for Appellants objected, noting that such representations did not amount to factual evidence. We agree. See Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000) (stating that facts in dispute must be. proven absent stipulation and that representations of counsel are insufficient). Because there was no other evidence presented at the hearing, we can only conclude that the trial court erroneously based its ultimate conclusion that D.G. was a reasonably ascertainable creditor on the assertions, of D.G.’s counsel. This was an abuse of discretion. See Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2d DCA 2004) (“Reaching the legal conclusion that [a]ppellees had shown due diligence when there was no evidence presented upon which to make such a finding is clearly an abuse of discretion.”). Accordingly, we reverse the trial court’s order granting D.G.’s petition for extension of time to file a claim -against the Estate.

In so doing, we note that D.G.’s attorney did attempt to proffer evidence that would have established that the Personal Representative had actual knowledge of D.G.’s identity and that the Estate represented that it had facts that would refute D.G.’s proffered evidence. However, because the trial court immediately proceeded to determine that D.G.’s identity was reasonably ascertainable by the Personal Representative without the benefit of any such evidence, we remand for the trial court to conduct an evidentiary hearing to determine whether D.G.’s identity was known to or reasonably ascertainable by the Personal Representative of the Estate.

Reversed and remanded.

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

      . Section 733.702(3), Florida Statutes (2004), states in part, "An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period.”


author: FLETCHER, Judge.

text:
    Francisco ARROLIGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-420.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and-Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   FLETCHER, Judge.

Francisco ■ Arroliga was charged with one count of lewd and lascivious assault on J.C., a child under the age of sixteen. Prior to trial, the state filed a motion over defense objection to admit evidence of similar collateral crimes, and the trial judge allowed it. At trial, the victim testified that Arroliga fondled her when she was about six years old. Three witnesses followed with testimony of Arroliga’s similar offenses against them when they were children. Arroliga was convicted as charged and on corrected sentence received three and one half years in prison to be followed by five years of probation. Arroliga has appealed the trial court’s ruling on the collateral crimes evidence as well as the assessment of victim injury points for sexual contact.

The trial court did not err by allowing the collateral crimes evidence. Florida law provides that when a defendant is charged with a crime involving child molestation, evidence of other child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. § 90.404(2)(b)l., Fla. Stat. (2005). The evidence of the defendant’s molestation of the other children was probative because it corroborated the victim’s testimony, and did not distract the jury from the central issue of whether the defendant did indeed molest J.C.

The trial court’s assessment of victim injury points was correct. The sentencing guidelines effective October 1, 1983, for Category 2 sexual offenses as contained in chapter 800 provides that 20 victim injury points be assessed for “contact but no penetration.” See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 852 (Fla.1983). This was the rule from 1983 up until the decision in Karchesky v. State, 591 So.2d 930 (Fla.1992). The Florida Supreme Court in Karchesky held that sexual penetration which does not cause ascertainable physical injury cannot be assessed victim injury points for purposes of calculating the guidelines scoresheet. However, Karchesky was limited by its facts to those cases of sexual battery in which penetration occurred, and the holding did nothing to alter the assessment of victim injury points as it applied to crimes involving lewd and lascivious conduct, i.e., crimes involving sexual “contact but no penetration,” en compassed by chapter 800. See Seagrave v. State, 802 So.2d 281 (Fla.2001)(discussing Karchesky, found that “the issue of whether sexual contact point could be assessed for crimes other than sexual battery was not addressed”). To be sure, the dissent in Karchesky points out the illogic of proscribing assessment of victim injury points in a crime involving penetration but without ascertainable physical injury and assessing points for crimes involving contact but no penetration. Karchesky, 591 So.2d at 933. Not until Seagrave did the court resolve this problem by holding that victim injury points for “sexual contact” are not limited to criminal acts that constitute sexual battery.

Even without applying the holding in Seagrave, the trial court would have been correct to assess victim injury points in sentencing Arroliga. Florida courts have long held that a defendant must be sentenced under the guidelines in effect at the time of the crime. See State v. Miller, 512 So.2d 198 (Fla.1987). The sentencing guidelines at the time Arroliga committed his lewd and lascivious acts upon the victim, at some unspecified time in 1991 or 1992, provided for the assessment of 20 points for “contact but no penetration.” See § 921.001(4)(b)l, Fla. Stat. (2005)(“The guidelines enacted effective October 1, 1983, apply to all felonies, except capital felonies, committed on or after October 1, 1983, and before January 1, 199U. ... ”)[e.s.], as reflected in applicable pre-Karchesky cases in Florida. Thus, the trial court correctly assessed victim injury points in preparation of Arroliga’s score-sheet.

Affirmed.


text:
    Lucille AUSTIN, Appellant, v. LIQUID DISTRIBUTORS, INC., and Frank Cedeno, Appellees.
    No. 3D05-2106.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Stephens, Lynn, Klein and Marlene S. Reiss, Miami, for appellant.
    Buckner, Shifrin, Rice & Etter and Charles W. Rice, Miami, for appellees.
    Before SHEPHERD and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from the dismissal of a personal injury case for fraud on the court. We affirm on the basis of the trial judge’s order which correctly concludes as follows:

It is well-settled law that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding is not permitted to continue to employ the very institution she has subverted to achieve her ends. Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998). Where a plaintiff makes misrepresentations and omissions about her accident and medical history in interrogatories and in deposition, those misrepresentations and omissions go to the heart of her claim and subvert the integrity of her action. When the extensive nature of the plaintiffs past medical history belies her claim that she had forgotten or was confused, she thereby forfeits her right to proceed with her personal injury action. Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999).

Since the record evidence in the case at hand clearly and convincingly demonstrates that Lucille Austin deliberately attempted to mislead and deceive the defendants about matters which strike at the very heart of her claim, i.e., her injuries stemming from the automobile accident of June 28, 2001, this court simply cannot condone Lucille Austin’s lack of candor. “A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.” Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998).

Affirmed.


author: NORTHCUTT, Judge.

text:
    Joseph L. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-160.
    District Court of Appeal of Florida, Second District.
    May 19, 2006.
   NORTHCUTT, Judge.

Joseph Lamar Wilson challenges the order of the postconviction court denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Wilson raised several grounds for relief in his motion. In affirming the order on appeal, we discuss only one of Wilson’s claims.

Wilson was convicted of first-degree murder and attempted armed robbery with a firearm. In ground three of the motion, Wilson alleged, inter aha, that the trial court illegally imposed the three-year mandatory minimum sentence for the use of a firearm during the attempted armed robbery consecutively to the twenty-five year mandatory minimum sentence on the first-degree murder conviction where both offenses were committed in a single criminal episode. Wilson is correct that such a sentencing scheme is illegal. See Andujar v. State, 808 So.2d 271, 271 (Fla. 2d DCA 2002). This claim may be raised in a rule 3.800(a) motion. Id. at 271-72.

The postconviction court, in denying the motion, overlooked this claim. However, to establish a facially sufficient rule 3.800(a) claim that the trial court illegally imposed consecutive sentences where the offenses were committed in a single criminal episode, not only must a movant allege that the claim is determinable from the face of the record, he must identify with particularity the nonhearsay record documents upon which he relies. See Speas v. State, 887 So.2d 416, 417-18 (Fla. 2d DCA 2004). In the present case, Wilson failed to identify such nonhearsay portions of the record, and his claim is facially insufficient. See id. at 418. We affirm the order of the postconviction court without prejudice to any right Wilson might have to file a facially sufficient rule 3.800(a) claim that the trial court illegally imposed consecutive minimum mandatory sentences where the offenses were committed in a single criminal episode.

Affirmed.

CANADY and VILLANTI, JJ„ Concur.