author: WARNER, J.

text:
    Joseph J. ZINK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3948.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 5, 2007.
    Joseph J. Zink, Cross City, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the order denying appellant’s motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, appellant claimed that his 1990 written habitual offender sentence to concurrent forty-year terms in prison for kidnapping and robbery did not comport with the trial court’s oral pronouncement. The trial court found that appellant was a habitual offender but in pronouncing the concurrent forty-year sentences, the court did not expressly state that the sentences were habitual offender sentences. The written sentence order included that designation. However, the only way that the forty-year sentences could have been legally imposed would have been if they were habitual offender sentences.

We have addressed a case involving similar facts in Scanes v. State, 876 So.2d 1238 (Fla. 4th DCA 2004), rev. denied, 892 So.2d 1014 (Fla.2004), also an appeal of an order denying rule 3.800(a) relief. There, as in this case, the trial court made oral findings that the defendant qualified as a habitual offender and imposed enhanced sentences, but did not say the sentences were imposed “as” habitual felony offender sentences. The written sentences included that designation. We refused to conclude that relief was warranted:

Here, it is clear from the plea colloquy, the written habitual felony offender finding, and the written sentence, that the trial court intended to, and did, contemporaneously sentence Scanes as a habitual felony offender. “Magic words” are not necessary to establish what the sentencing court intended.

Id. at 1239-40 (footnote omitted).

We come to the same conclusion here. Under these circumstances the appellant did not even allege what would amount to a variance between the oral pronouncement and the written sentence.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    B.M., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3359.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Ronald B. Smith of the Law Office of Glenn J. Sneider, L.C., Okeechobee, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, and Don M. Rogers, Assistant Attorneys General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner B.M. seeks disqualification of the trial judge assigned to preside over his criminal case as a result of remarks the judge made in disagreement with a Teen Court verdict in a previous, unrelated criminal case. In the previous case, the trial judge told petitioner that she did not like his attitude, that he should get a haircut, and that he was lucky his case was being non-judicially processed because had he gone before the trial court instead of the Teen Court, he would have spent time in detention and would be supervised until he was nineteen. Petitioner also alleges the trial judge stated if he ever appeared before her court again, he would “be going away” and would be sent to detention. After being charged in a new criminal case and learning that the case was assigned to the same judge, petitioner filed a timely motion for disqualification. The trial judge denied the motion as legally insufficient. We disagree and grant the petition for prohibition.

“A judge’s remarks that he is not impressed with a lawyer’s, or his client’s behavior are not, without more, grounds for recusal.” Nassetta v. Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA 1990). See also Strasser v. Yalamanchi, 783 So.2d 1087, 1091-92 (Fla. 4th DCA 2001) (holding the trial judge’s comment that, if he were presiding over pre-trial, he would have assessed defendant “a significant six-figure fine” did not warrant reversal as the judge was expressing “understandable frustration and concern” at the “sudden and unexplained revelation” of a discovery violation); Oates v. State, 619 So.2d 23, 25 (Fla. 4th DCA 1993) (finding the trial judge’s comment that the defendant “was just being an obstinate jerk” was not a ground for recusal because the defendant’s behavior prompted the remark).

Here, petitioner’s allegation that the trial judge told him if he ever returned to the court with new criminal charges, he would be sent to detention was legally sufficient to support a motion for disqualification. Such a statement signals that the trial court has pre-judged petitioner’s case. See Williams v. Balch, 897 So.2d 498, 499 (Fla. 4th DCA 2005) (finding judge’s comments signaled “a predisposition against Williams’ position before considering her evidence” and, thus, disqualification was required); Wargo v. Wargo, 669 So.2d 1123 (Fla. 4th DCA 1996).

Accordingly, we grant the petition for writ of prohibition and quash the trial court’s order denying petitioner’s motion to disqualify. We remand for further proceedings consistent with this decision.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Michael Ira SMALL, Appellant/Cross-Appellee, v. Darlanne FLUEGEL-SMALL, Appellee/Cross-Appellant.
    No. 5D06-430.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Barry Rigby, Orlando, for Appellant/Cross-Appellee.
    John R. Hamilton of Foley & Lardner, LLP, Orlando, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Michael Small appeals from a non-final order temporarily granting sole parental responsibility of Small’s minor son, C.S., to Small’s ex-wife, and limiting Small’s visitation with C.S. on a temporary basis. Small argues that the order should be vacated because it was entered after the trial judge erroneously denied his motion to disqualify. Alternatively, Small argues that the court erred by modifying the parental responsibility and visitation provisions of the original final judgment because there was no substantial change in circumstances justifying the modification. We disagree, and affirm.

With respect to Small’s first issue, Small had already successfully moved to disqualify the first judge assigned to the case by alleging bias or prejudice. The denial of a motion to disqualify a successor judge is reviewed for abuse of discretion, see King v. State, 840 So.2d 1047, 1049 (Fla.2003), and should only be disturbed if “the record clearly refutes the successor judge’s decision to deny the motion.” Pinfield v. State, 710 So.2d 201, 202 (Fla. 5th DCA 1998). We see no basis in this record for finding an abuse of discretion in the denial of Small’s successive motion to disqualify, and affirm as to this issue without further discussion.

With respect to the second issue raised on appeal, the trial court temporarily changed the parental responsibility and visitation provisions after holding an evi-dentiary hearing and making findings of fact that are supported by the record. The court found that Small’s ex-wife, Ms. Fluegel-Small, sent C.S. to Reno, Nevada, to spend five weeks with his father over the summer. To facilitate C.S.’s ability to maintain contact with her while residing with his father, Fluegel-Small provided C.S. with a 'pre-paid cellular phone. She also sent C.S. with enough clothing and prescription medications for his five-week stay in Nevada.

Despite the court’s explicit order regarding open contact, Small took the prepaid phone away from C.S. when he arrived in Nevada, and, according to C.S., refused to allow him to call his mother. When the scheduled five-week stay was over, Small also refused to return C.S. to his mother. Instead, he filed for a domestic violence injunction against Fluegel-Small in Nevada. Small’s Nevada petition raised allegations of abuse by Fluegel-Small against C.S. that had been rejected by the court in Florida. Even after the Florida court ordered Small to return C.S., Small refused to do so.

Ultimately, however, the Nevada court also ordered Small to immediately return C.S. In accordance with the Nevada court’s order, Small delivered C.S. to Flue-gel-Small’s Nevada attorney, at a Nevada police station. Small left C.S. at the police station with “only the clothes on his back” and a “lunch pail filled with candy and junk food.”

According to experts (including the court’s own independently-appointed expert), the whole summer ordeal was traumatic for C.S. The court found other instances of flagrant violations, by Small, of the court’s directives; found that Small was solely responsible for the emotional trauma experienced by C.S.; and found that Small’s misconduct would likely continue, to the detriment of C.S., without the court’s immediate intervention.

Because these findings are supported by competent and substantial evidence, they cannot be disturbed on appeal. E.g., Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Contrary to Small’s argument, these facts demonstrate a substantial, material change in circumstances since entry of the original custody order, and that the child’s best interests justified the temporary change to sole parental responsibility and the temporary limitations on Small’s visitation rights. See, e.g., Morales v. Morales, 915 So.2d 247 (Fla. 5th DCA 2005) (holding movant seeking modification of child custody must show both that the circumstances have substantially and materially changed since the original custody determination and that the child’s best interests justify changing custody). Accordingly, we find no abuse of discretion in the trial court’s order. See Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005) (“On appellate review, an order changing custody has a presumption of correctness and will not be disturbed absent a showing of abuse of discretion.”).

AFFIRMED.

ORFINGER, LAWSON, and EVANDER, JJ., concur.

      . The trial court’s initial custody order expressly provided that: (1) "Each parent is affirmatively required to encourage a loving relationship with the other parent;” and (2) "The Court orders that there shall be free and open telephone contact by each parent with the children at reasonable times and places and that the telephone conversations between a parent and child should not be monitored or recorded by the other parent. In the event that either parent restricts or limits free and open telephone contact, the court will impose sanctions....”

      . Small also reported the alleged abuse to the Florida Department of Children and Families, which found no evidence to substantiate the allegations.


author: PALMER, J.

text:
    Thomas BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2708.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Thomas B. Brown, Orange Springs, pro se.
    No Appearance for Appellee.
   PALMER, J.

Thomas Brown (defendant) appeals the trial court’s order summarily denying his rule 3.850 motion for postconviction relief. Determining that ground five of the defendant’s motion states a prima facie case of ineffective assistance of counsel, we reverse and remand for a hearing on that ground.

The defendant pled guilty to one count of attempted sexual battery upon a child less than twelve years of age. He was sentenced to time-served, followed by ten years of sex offender probation. No direct appeal was taken.

The defendant was subsequently found guilty of violating his probation and his probation was revoked. He was then sentenced to a term of sixty-three months’ incarceration. The defendant appealed, and we affirmed. See Brown v. State, 911 So.2d 187 (Fla. 5th DCA 2005).

The defendant then filed the instant rule 3.850 motion asserting nine claims for postconviction relief. Of importance to this appeal is ground five of the defendant’s motion which alleged that defense counsel rendered ineffective assistance of counsel by misadvising the defendant concerning the conditions of his plea agreement.

Specifically, the motion explained that the defendant entered an Alford plea which permitted him to plead guilty while at the same time maintaining his innocence. In fact, the motion states that the defendant refused a plea offer which would have resulted in a sentence of only five years of probation because that plea would have required him to plead guilty. The motion further alleged that the defendant was advised by defense counsel that, by entering an Alford plea, he would be allowed to maintain his innocence. The motion also alleged that the plea was entered into because the defendant believed it was in his best interest to resolve the case and get on with his life and, more importantly, because it would permit him to maintain his innocence.

In setting forth a claim of ineffectiveness, the motion stated that the terms of the defendant’s probation included a condition requiring his active participation and successful completion of a sex offender treatment program. The motion alleged that it was only after entering into the plea agreement and being sentenced that the defendant was advised that, as a requirement for active participation and successful completion of the sex offender treatment program, he would have to admit his guilt to engaging in deviant sexual behavior. His refusal to admit such guilt led to his failure to successfully complete the program and his probation being violated. The defendant alleged in his motion that he would not have entered into the plea agreement if he had been correctly advised by defense counsel about this condition of probation.

To prove a claim of ineffective assistance of counsel, a defendant must establish both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In a case involving a request to withdraw a plea based upon ineffective assistance of counsel, the prejudice prong is satisfied by proof “that there is a reasonable probability that, but for counsel’s errors [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Cordes v. State, 842 So.2d 874, 875 (Fla. 2d DCA 2003)(quoting Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

Failure to inform a defendant of a collateral consequence of a plea cannot render a plea involuntary. State v. Partlow, 840 So.2d 1040 (Fla.2003). Accordingly, the controlling issue in this case is whether the defendant’s complaint relates to a collateral consequence of his plea thereby warranting the trial court’s summary denial of same. We conclude that it does not.

A collateral consequence of a plea is a consequence that does not have a definite, immediate, and largely automatic effect on the range of the defendant’s punishment. State v. Partlow, 840 So.2d 1040 (Fla.2003). Although being subject to sexual offender registration and reporting requirements have been deemed by our courts to be collateral consequences of entering a plea, given the particular allegations of the defendant’s motion, the consequences here cannot be deemed to be collateral. If defense counsel did indeed inform the defendant that he could maintain his innocence while on probation, and if, in fact, the failure to admit his guilt during sex offender treatment counseling automatically resulted in the unsuccessful completion of such counseling and, thus, constituted a probation violation, such a consequence is a direct, and not collateral, consequence of the defendant’s plea. As such, it was error for the trial court to deny ground five of the defendant’s motion without conducting a hearing thereon.

AFFIRMED in part; REVERSED in part; REMANDED.

MONACO and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.850.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


text:
    David A. YOUNG, Appellant, v. DEPARTMENT OF EDUCATION, DIVISION OF VOCATIONAL REHABILITATION, Appellee.
    No. 1D06-0219.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.

      David A. Young, pro se, Appellant.
    Daniel Woodring, General Counsel, and Matthew J. Carson, Department of Education, Tallahassee, for Appellee.
   PER CURIAM.

David A. Young appeals a final order of the Department of Education (Department) adopting in full a recommended order ruling that Young was not eligible for certain services he requested from the Department’s Division of Vocational Rehabilitation. We affirm.

Young received assistance from the Division of Vocational Rehabilitation previously and, with that assistance, became a licensed massage therapist. Young sought additional assistance in establishing his massage business, but such additional services were refused by the Department on the ground that he was not eligible for the requested services. Young sought a hearing on the denial of these services.

The matter was referred to the Division of Administrative Hearings, and the administrative law judge received evidence and argument from Young as well as the Department regarding the prior provision of vocational rehabilitation services to Young and his eligibility for other services. The judge thereafter entered a recommended order making detailed findings of fact and determining that Young was not eligible for the services he was seeking. The Department adopted in full the findings of fact and conclusions of law made in the recommended order.

Our standard of review of the Department’s final order is governed by section 120.68, Florida Statutes (2005). A reviewing court may set aside agency action when it finds that the action is dependent on any finding of fact that is not supported by competent substantial evidence in the record, a material error in procedure, an erroneous interpretation of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2005); see Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002).

Young does not specifically identify an erroneous conclusion of law or a finding of fact which is not supported by the record. As suggested by the standard of review, it is the responsibility of the administrative law judge to evaluate and weigh the testimony and other evidence submitted at the hearing to resolve factual conflicts, and to arrive at findings of fact. It is not the role of the appellate court to reweigh the evidence anew. See Smith v. Sears, Roebuck & Co., 681 So.2d 871 (Fla. 1st DCA 1996). Our review of the record indicates that the findings of fact are supported by competent and substantial evidence. Further, we hold that the judge’s conclusions of law are not erroneous. Accordingly, the final order is AFFIRMED.

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Anthony HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4624.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.
    Anthony Holley, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of October 13, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on August 2, 2006, appealing the Order on the appellant’s postconviction motion, rendered on June 30, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). This appeal is hereby dismissed, but in light of appellant’s claims that he did not timely receive a copy of the order denying his motion, we do so without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

DISMISSED.

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


author: LAWSON, J.

text:
    Demetrius FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1556.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Demetrius D. Freeman, Lowell, pro se.
    No Appearance for Appellee.
   LAWSON, J.

Demetrius Freeman appeals the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial as to the majority of issues raised by Freeman’s motion, without further discussion. However, Freeman raised one colorable claim that requires an evidentiary hearing. As to this issue, we reverse.

Freeman was charged by information with one count of battery on a law enforcement officer and one count of resisting an officer with violence, based upon an altercation between Freeman and a correctional officer that occurred in the Sumter County jail. The altercation took place while the officer was attempting to escort Freeman from the jail’s infirmary back to his cell.

At trial, Freeman testified that he was acting in self-defense during the altercation. According to Freeman, he resisted only because the guard maliciously attempted to inflict pain upon him by putting pressure on a pre-existing shoulder injury that the guard had observed nurses treating at the infirmary. However, the two nurses denied treating Freeman for a shoulder injury. During trial, the jury asked the question: “Did medical records show shoulder was checked or medication given?”

The State conceded during its closing argument that if the jury believed Freeman’s claim of self-defense, they should find him not guilty. Additionally, following Freeman’s conviction, his attorneys filed a motion for new trial alleging that they had been ineffective for neglecting to secure available medical records that would have proven Freeman’s claim that he had been treated for a shoulder injury on the day in question, in support of Freeman’s theory of self-defense. Although counsels’ “admission” of deficient performance is certainly not controlling, we agree that if these documents were readily available and did, in fact, conclusively refute the testimony of the State’s two key witnesses on an issue critical to Freeman’s theory of defense, Freeman’s attorneys should have secured them for trial. It also seems obvious from the jury’s written question that if the medical records had supported Freeman’s claim, the jury may have been inclined to believe him. Therefore, we find that Freeman was entitled to an evidentiary hearing as to this claim.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . The jury returned a guilty verdict on the charge of resisting an officer with violence, but only returned a verdict of guilty as to the lesser-included offense of battery with respect to the first charge. Freeman was sentenced to the maximum penalty on the felony charge, five years in state prison. One of Freeman’s claims below related to his trial attorneys’ failure to request that the jury be instructed regarding any lesser-included offenses as to the charge of resisting with violence. However, this claim was properly denied. Sanders v. State, 31 Fla. L.Weekly S643, - So.2d -, 2006 WL 2883103 (Fla. Oct. 12, 2006) (holding that because "the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ... a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied”).


text:
    C.C., JR., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-679.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was found guilty of the charge of lewd and lascivious molestation, and sentenced to a term of probation. The only question raised by this appeal is the sufficiency of the evidence to convict him. Although the young victim could not remember what the perpetrator’s face looked like at the time of trial, her out-of-court identification was sufficient to support the trial court’s finding of guilt. See State v. Freber, 366 So.2d 426 (Fla.1978). With respect to all other issues, we have considered the briefs and reviewed the trial transcript. “[T]he determination of whether appellant’s ‘act was in fact lewd and lascivious’ is a question of fact and is based upon the circumstances of each individual case.” W.R.H. v. State, 763 So.2d 1111, 1112 (Fla. 4th DCA 1999) (citing Chesebrough v. State, 255 So.2d 675, 679 (Fla.1971)). Although appellant offered several witnesses whose testimony, if believed, would have exonerated him, the trier of fact chose to believe the victim. The victim’s testimony was sufficient to sustain the finding of guilt, and we cannot substitute our judgment for the fact-finder’s on issues of witness credibility. See Windom v. State, 886 So.2d 915, 927 (Fla.2004) (“This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court’s findings are supported by competent, substantial evidence.”).

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: PLEUS, C.J.

text:
    George ANTOURY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2880.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

George Antoury appeals his convictions for attempted sexual battery and battery. He raises several issues. First, he argues that the trial court erred by excluding evidence regarding the victim’s sexual history and mental illness. Second, he claims the trial court erred by restricting his attorney’s cross-examination of the investigating officer regarding his interview with Antoury. Third, he argues that the trial court erred by rebuking his attorney in front of the jury.

Regarding Antoury’s first argument, we hold that the trial court did not abuse its discretion in excluding evidence of the victim’s history of sexual abuse and mental illness as Antoury failed to demonstrate the relevance of that evidence. However, we agree with Antoury’s second argument that the trial court erred by depriving him of a full and fair cross-examination of the investigating officer. As this error was not harmless, we must reverse and remand for a new trial. Consequently, we need not address Antoury’s third issue.

Antoury was charged with sexual battery, false imprisonment and attempted sexual battery arising from a 2001 incident in which he offered a ride to a woman at a bus stop and allegedly sexually battered her against her will. As Antoury freely admitted having sexual contact with the victim, the main issue at trial was whether she consented.

At trial, the victim testified that she was waiting for the bus when she accepted a ride from Antoury. He turned down a side street and stopped at the end of it. He touched her breast and then tried to force her head down on to his exposed penis. She asked him to stop, tried to pull away and tried to open the car door. An-toury then climbed on top of her, pulled her pants down and rubbed his penis against her vaginal area. At that point, a car drove down the street. Antoury jumped off the victim and she managed to get out of the car and run away. The victim testified she never consented to these actions. On cross-examination, the victim admitted that she gave a false name to the police. She also admitted that she had been in counseling since she was a child.

Orlando Police Detective Jeffrey Lamey testified that after speaking to the victim, he spoke to Antoury. Antoury agreed to come to the police station and speak further. Instead of introducing the videotape or transcript of Antoury’s interview with Lamey, the prosecutor boiled down An-toury’s hour-long interview to less than two pages of carefully scripted questions, eliciting yes or no answers from Detective Lamey:

Q. When he was speaking with you, did he admit picking up [the victim]?
A. Yes, Ma’am, he did.
Q. Did he admit to pulling over to a side street off of Colonial?
A. Yes, Ma’am.
Q. Did he — did he admit that he touched her breasts in some context?
A. Yes, Ma’am, he did.
Q. Did he admit that he climbed over to the passenger compartment of the car?
A. Yes, Ma’am.
Q. Did he tell you that he, for lack of a better term, ground up against her, meaning his body pressed up against her body?
A. Yes, Ma’am, he did.
Q. Did he initially deny ejaculating?
A. Yes, Ma’am, he did. Initially, he denied it; and then, through the course of the conversation, the interview, he admitted that he did.
Q. Did he seem concerned about the prospect of being arrested—
A. Yes.
Q. —for a crime?
A. Yes, he did.
Q. Did he ask you many times what crime it was, or was he going to be arrested, or what crime was she accusing him of?
A. Yes, he did.
Q. Did he have some explanation for the activity between the two of them, the touching of the breasts and things like that?
A. He told me everything was consensual.

When defense counsel attempted to cross-examine Detective Lamey by quoting from the transcript of Antoury’s taped interview, the trial court, sua sponte, intervened and informed defense counsel that he could not use the transcript to cross-examine Detective Lamey unless it was admitted into evidence. Then, the court informed defense counsel that he could only use the transcript to refresh the witness’s recollection. Defense counsel continued attempting to elicit Antoury’s statement to police through Detective Lamey. Each time, the trial court sustained the State’s objection.

In short, the trial court repeatedly limited defense counsel’s ability to use the transcript to cross-examine Detective Lamey after the State had opened the door. An-toury argues persuasively that the State’s carefully scripted version of his interview was incomplete and misleading without giving the jury the context of the entire interview.

Generally, a defendant’s out-of-court, self-serving, exculpatory statements are inadmissible hearsay. Lott v. State, 695 So.2d 1239 (Fla.1997). However, when the State “opens the door” by eliciting testimony about part of the defendant’s conversation with police, the defendant is entitled to cross-examine the witness about other relevant statements made during the conversation. Somerville v. State, 584 So.2d 200 (Fla. 1st DCA 1991); Guerrero v. State, 532 So.2d 75 (Fla. 3d DCA 1988). The reason for this rule is to ensure that the jury understands the entire context of the statements elicited by the State, Som-erville, 584 So.2d at 201, and is not misled by exclusion of relevant sections of the conversation, Guerrero, 532 So.2d at 77.

The State fails to address the merits of this argument. Instead, it attacks the admissibility of the evidence in three ways. First, the State argues that its hearsay objections to questions seeking to elicit statements made by the victim were properly sustained because any testimony concerning what Antoury told Detective Lamey that the victim told him would have been double hearsay. Second, the State argues that the defense counsel improperly attempted to refresh Detective Lamey’s recollection by quoting from the transcript. Third, the State argues that admission of the transcript would have violated the best evidence rule because the videotape of the interview was the best evidence. All of these admissibility arguments, though accurate, miss the point that when the State opens the door, the defense can introduce otherwise inadmissible evidence to prevent the jury from being misled.

The State also argues that the error was harmless. The harmless error test places the burden on the State to prove beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129, 1134 (Fla.1986). The key issue in this case was whether the sexual contact between An-toury and the victim was consensual. Because of the lack of physical evidence or eyewitness testimony, this issue hinged on the credibility of Antoury and the victim. Each testified but the jury’s verdict was mixed, clearing Antoury of false imprisonment and sexual battery, but finding him guilty of attempted sexual battery and battery. Under these circumstances, we cannot say beyond a reasonable doubt that the trial court’s error in depriving Antoury of a full and fair cross-examination, leaving the jury with an incomplete and carefully State-crafted version of Antoury’s interview with police, did not contribute to the verdict.

Accordingly, we reverse Antoury’s convictions and remand for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

SAWAYA and MONACO, JJ., concur.


text:
    Eduardo S. MENDEZ, M.D., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 1D05-5926.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.

      Katherine E. Giddings, William M. Fur-low and Todd D. Engelhardt of Akerman Senterfitt, Tallahassee, for Appellant.
    Dana Baird, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Eduardo Mendez, M.D., appeals a final order of the Board of Medicine (Board) approving the Administrative Law Judge’s (ALJ) recommended order. We affirm the Board’s order but write to address one issue raised on appeal, whether the disciplinary penalty imposed by the Board was statutorily authorized.

Appellant pled guilty to conspiring to pay for Medicare patient referrals, in violation of Title 18, United States Code section 371 (2000). Based on Appellant’s conviction, the ALJ found that Appellant violated section 458.331(l)(c), Florida Statutes (2002), which provides that “[bjeing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine” constitutes grounds for disciplinary action by the Board. The ALJ recommended that the Board suspend Appellant’s license to practice medicine for nine months and impose a $5,000 fine. The ALJ further recommended that Appellant be placed on probation for two years following his suspension, “subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate.”

At the final hearing the Board adopted the ALJ’s factual findings, conclusions of law, and recommended penalty. The Board explained that the terms of Appellant’s probation include practicing only under the direct supervision of a fully licensed physician and a prohibition against dispensing controlled substances during the probationary period.

The Board’s imposition of a penalty is reviewed under an abuse of discretion standard. See Dep’t of Highway Safety & Motor Vehicles v. Silva, 627 So.2d 612 (Fla. 1st DCA 1993); Grimberg v. Dep’t of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989) (“The appellate function, on review of penalties imposed by an administrative agency, is to determine whether there are valid reasons in the record in support of the agency’s order.”).

Section 456.072(2), Florida Statutes (2002), lists penalties which the Board may impose when a person is found guilty of violating chapter 458, ranging from permanent revocation of a license to issuance of a letter of concern. The penalties include “Placement of the licensee on probation for a period of time and subject to such conditions as the board ... may specify. Those conditions may include, but are not limited to ... work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.” § 456.072(2)(f), Fla. Stat. (2002). When the Board imposes a penalty within the permissible statutory range, an appellate court has no authority to review the penalty. See Fla. Real Estate Comm’n v. Webb, 367 So.2d 201, 202 (Fla.1978); see also Aldrete v. Dep’t of Health Bd. of Med., 879 So.2d 1244, 1246-47 (Fla. 1st DCA 2004) (recognizing that imposition of a penalty is a complex task that rests within the sound discretion of the Board).

The terms of probation imposed here, including direct supervision and revocation of Appellant’s dispensing privilege, were authorized by and within the range of permissible penalties under section 456.072(2)(f), Florida Statutes; therefore, the Board did not abuse its discretion in imposing these probationary terms. Whether this court agrees or disagrees with the terms imposed is not the test of their validity. See Weiss v. Dep’t of Business & Prof'l Regulation, 677 So.2d 98, 99 (Fla. 5th DCA 1996). This court cannot substitute its judgment for that of an administrative agency, charged with implementing and enforcing its own statute, when that agency has imposed a penalty within the permissible range of penalties. See id.; Grimberg, 542 So.2d at 457; Chiles v. Dep’t of State, Div. of Elections, 711 So.2d 151, 155 (Fla. 1st DCA 1998).

AFFIRMED.

KAHN, HAWKES and THOMAS, JJ., concur.


author: ERVIN, J.

text:
    Nicholas WILLIAMS, Appellant, v. BCI INDUSTRIES and Alternative Service Concepts, Appellees.
    No. 1D06-0469.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.

      Thomas A. Vaughn of Vaughn <& Maxwell, P.A., Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Todd J. Sanders, Orlando, and Wanda Reas of Znosko & Reas, P.A., Maitland, for Appellees.
   ERVIN, J.

Claimant, Nicholas Williams, appeals a final order of the judge of compensation claims (JCC) denying his requests for medical and temporary partial disability (TPD) benefits. Claimant argues the JCC erred by (1) denying his motion to continue the merits hearing for the purpose of allowing claimant to present evidence rebutting the testimony of Dr. Ronald Oppen-heim, who conducted on claimant a post-hearing independent medical examination (IME), and (2) ruling that claimant had voluntarily limited his income after being released to work with restrictions. We affirm issue one, but reverse issue two, and remand the case for further proceedings.

After the merits hearing was concluded, the JCC determined the medical evidence presented was insufficient to enable him to reach a decision whether Williams was suffering from a neurological condition, and, in order to resolve the question, he appointed a neurologist, Dr. Ronald Oppen-heim, to perform an IME, as authorized by section 440.29(1), Florida Statutes (2005), allowing JCCs to conduct investigations. Claimant later filed a motion seeking a continuance of the hearing for the JCC to consider the records and/or testimony of two orthopedic physicians pertaining to arthroscopic surgery claimant had undergone after the performance of the neurological IME, and the report of an expert medical advisor (EMA) appointed following the hearing to resolve the conflict between the parties’ orthopedic physicians. Because Dr. Oppenheim had deferred to claimant’s orthopedic physicians with regard to orthopedic matters, claimant contends the JCC erred by denying the motion.

Our standard of review of an order denying a motion to reopen the evidence for the purpose of receiving new evidence is that of abuse of discretion. See Gayton v. Mills Septic Tank, 695 So.2d 397 (Fla. 1st DCA 1997). Claimant fails to show the JCC abused his discretion by denying the motion. It is undisputed that a JCC may order an IME on his or her own motion. See, e.g., Scotty’s, Inc. v. Sarandrea, 645 So.2d 121 (Fla. 1st DCA 1994); Berry Corp. v. Smith, 576 So.2d 1366 (Fla. 1st DCA 1991); Sanlando Reprographics v. Vidimos, 545 So.2d 397 (Fla. 1st DCA 1989); Atlanta Nat’l Real Estate Trust v. Rain, 392 So.2d 1339 (Fla. 1st DCA 1980); Lu-Mar Enters., Inc. v. Mazur, 8 F.C.R. 248 (IRC Order 2-2456 Mar. 12, 1974).- None of these cases hold, however, that the JCC is then required to permit the parties to submit additional evidence to support or contradict the IME.

Although Williams cites several cases stating that a JCC who reopens a proceeding to allow additional evidence must allow rebuttal evidence, none of these cases involved a post-hearing JCC ordered IME. Instead, in each, one of the parties was allowed or directed to submit additional evidence. See, e.g., Exxon Co., U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978); Diamond R. Fertilizer v. Davis, 567 So.2d 451 (Fla. 1st DCA 1990); Tri-County Cmty. Council v. Gillis, 384 So.2d 48 (Fla. 1st DCA 1980). In contrast, an IME ordered by the JCC is party-neutral in that it is not submitted at the behest of either party-

Moreover, claimant sought to submit orthopedic evidence in rebuttal, whereas the JCC had already considered such evidence and determined the orthopedic issue at the previous hearing. The JCC appointed Dr. Oppenheim to assist him in deciding only whether claimant was afflicted with a neurological condition.

The claimant also contends there was no competent, substantial evidence supporting the JCC’s conclusion that claimant was not entitled to TPD benefits between August 1, 2003, and October 9, 2003 (the termination of the statutory 104-week period), on the ground that he had voluntarily limited his income. In so deciding, the judge otherwise found that claimant’s treating physician, Dr. Jungreis, had released claimant to work on August 1, 2003, with restrictions, and claimant, during the applicable span in time, limited his job search to only one contact. Nothing in the record supports the finding that Dr. Jungreis then instructed claimant to return to work.

The notes and reports of Dr. Alexander Jungreis, a neurologist who provided claimant care from November 27, 2002, until July 7, 2004, repeatedly state that claimant was totally disabled from working. At his deposition of October 29, 2004, when counsel for the E/C inquired about restrictions Dr. Jungreis had imposed on claimant’s activity “prior to August of 2003,” Dr. Jungreis replied he did not believe he would have returned claimant to work at such time, and that, to his knowledge, claimant had not returned to work since his September 29, 2001, injury. Claimant testified that he was not aware that Dr. Jungreis had ever released him to return to work. “This court has held consistently that evidence the claimant is able to return to work is not sufficient to deny temporary total disability benefits in the absence of evidence the claimant was informed or should have known that he or she was released to work.” Amburgey v. Palm Beach County Sch. Bd., 712 So.2d 426, 427 (Fla. 1st DCA 1998). Accord Fla. Hasp. Deland v. Wagner-Vick, 940 So.2d 588 (Fla. 1st DCA 2006); Seminole County Sch. Bd. v. Tweedie, 922 So.2d 1011 (Fla. 1st DCA 2006); Holiday Foliage v. Anderson, 642 So.2d 94, 98 (Fla. 1st DCA 1994).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

ALLEN and WOLF, JJ., concur.

      . In making an investigation or inquiry or conducting a hearing, the judge of compensation claims shall not be bound by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct such hearing, in such manner as to best ascertain the rights of the parties.

      . The JCC informed claimant that he could ñle a motion for modification based on the EMA's post-hearing report, if warranted.


author: HAWKES, J.

text:
    DIRECT GENERAL INSURANCE COMPANY, Appellant, v. Aurea VREEMAN, Julio Monsanto, Elizabeth Leandry, Armando Leandry, Enterprise Leasing Company, Larry Rene Schneider, Appellees.
    No. 1D05-5625.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.

      Anthony J. Russo, Esq., R. Steven Rawls, Esq., and Ryan K. Hilton, Esq., Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellant.
    Dennis R. Schutt, Esq., and Brian A. Mills, Esq., Schutt, Schmidt, Burnett, and Noey, Jacksonville, for Appellees.
   HAWKES, J.

Appellant, Direct General Insurance Company, appeals the trial court’s order granting summary judgment in favor of Enterprise Leasing Company. The trial court held that, pursuant to section 627.7263, Florida Statutes, Appellant had the primary responsibility to provide personal injury protection (PIP) insurance coverage to Elizabeth and Armando Lean-dry for injuries received while driving a rental car owned by Enterprise, and that, since Enterprise had paid $20,000 in satisfaction of Appellant’s PIP obligation, Appellant was required to reimburse Enterprise.

On appeal, Appellant argues the trial court erred by finding the policy issued by Appellant extended PIP coverage to the Leandrys. Specifically, Appellant argues its policy definitions defeat Enterprise’s effort to shift their statutory obligation to provide PIP coverage on the rental car onto Appellant. We agree. Accordingly, we reverse and remand with directions to enter judgment in favor of Appellant.

I. FACTS

Appellant issued an insurance policy to Aurea Vreeman, providing coverage for a 1996 Saturn SL2. The policy included PIP coverage. Vreeman later executed an Endorsement Request, which added coverage for an additional car, and her friend, Julio Monsanto, and her daughter, Christine, as “additional drivers” of the vehicles covered by the policy. Appellant issued an Amended Policy Declarations page identifying Vreeman as a “named insured,” and Christine Vreeman and Monsanto as “principal drivers.” Monsanto was neither married to, nor otherwise related to Vree-man.

After Monsanto was identified as an “additional driver” on the Declarations Page, he rented a car from Enterprise, and listed Elizabeth Leandry as an additional driver under the rental agreement. The Leandrys are not related to anyone identified in the insurance policy Appellant issued to Vree-man. Monsanto listed Appellant’s policy number under that portion of the rental car agreement providing the “valid and collectible liability insurance and personal injury protection insurance of any authorized rental or leasing driver is primary....” Ms. Leandry then drove the rental car with her husband Armando Leandry as a passenger and, while driving, turned in front of another car, causing an automobile accident. Both of the Lean-drys sustained injuries as a result of the accident. Enterprise paid approximately $20,000 to or on behalf of the Leandrys, for damages stemming from the accident.

Appellant filed a declaratory judgment action seeking a determination as to whether Enterprise’s or Appellant’s PIP coverage was primary. Ultimately, the trial court held the PIP statute and the rental car agreement language shifted the primary PIP obligation to Appellant. The trial court erred.

II. THE LANGUAGE OF THE PIP POLICY

The PIP portion of the insurance policy issued by Appellant to Vreeman states Appellant “will pay, in accordance with the Florida Motor Vehicle No Fault Law,” for specified damages “caused by accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by ... you or a relative while occupying a motor vehicle ... or ... any other person while occupying the insured motor vehicle ...(Emphasis added).

The PIP portion of Appellant’s insurance policy provided the following definitions: “You” is defined as “the Policyholder named on the Declarations Page and spouse, if living in the same household.” “Insured motor vehicle” is defined as “a motor vehicle of which you are the owner and with respect to which security is required to be maintained under the Florida Motor Vehicle No Fault Law, and for which a premium is charged.” “Named insured” is defined as “the person or persons named on the Declarations Page of the policy and, if an individual, shall include the spouse if a resident of the same household.”

Appellant must provide PIP coverage to the Leandrys only if they come within the terms of the policy. The policy obligates Appellant to provide PIP coverage in either of two situations.

In the first situation, PIP coverage is provided to the “named insured” or a relative of a “named insured” when these individuals are occupying any motor vehicle. The Leandrys are not named insureds nor relatives of a named insured on the policy Appellant issued to Vreeman. Since the Leandrys are not named insureds, they are not entitled to coverage merely because they suffered damages while “occupying a motor vehicle.” Consequently, Appellant incurs no obligation to provide PIP benefits to the Leandry’s under the first provision.

In the second situation, the policy provides PIP coverage to any person who occupies “the insured motor vehicle.” Under the policy, only a vehicle owned by “you,” meaning Vreeman, for which a premium was collected, could qualify as an “insured motor vehicle.” Since Enterprise owned the vehicle the Leandrys were driving, and the rental car was not listed on the policy Appellant issued to Vreeman, the rental car could not qualify as an “insured motor vehicle” as that term is defined by Appellant’s policy. Thus, Appellant incurs no obligation to provide PIP coverage to the Leandrys under the second provision.

III. THE RENTAL CAR AGREEMENT

Enterprise seeks to avoid the policy language by relying on the coverage shifting language of the rental ear agreement. The language of the agreement meets the requirements of section 627V263, Florida Statutes. This language makes any “valid and collectible liability insurance or personal injury protection insurance of any authorized rental or leasing driver” primary. Id. Ms. Leandry is the authorized driver of Enterprise’s car and she and her husband are the ones seeking benefits from Appellant’s policy. Appellant’s policy never extended “valid and collectible” PIP coverage to the Leandrys. The coverage shifting language of the rental car agreement cannot serve to create coverage where none otherwise exists. See Progressive Express Ins. Co. v. Devitis, 924 So.2d 878, 879-880 (Fla. 4th DCA 2006); see also Allstate Ins. Co. v. Morgan, 870 So.2d 2 (Fla. 2d DCA 2003) (finding Morgan not entitled to PIP benefits because she was not in an “insured motor vehicle” as defined in the policy’s PIP definitions).

Even if the rental car agreement language purported to create coverage where none otherwise existed, an agreement between Enterprise and Monsanto is incapable of altering Appellant’s contractual obligations. See Am. Auto. Ins. Co. v. Pajor, 316 So.2d 612 (Fla. 4th DCA 1975) (holding stranger to an insurance contract could not unilaterally alter contract’s terms by issuing a replacement policy).

IV. CONCLUSION

Under the facts of this case, Appellant is not required to provide the Leandrys with PIP coverage pursuant to the Florida Motor Vehicle No Fault Law or by the terms of the policy it issued to Vreeman. The rental car agreement cannot create coverage merely by naming Appellant’s policy as primary on the rental car, regardless of the identity or number of additional drivers Enterprise may wish to authorize to drive their vehicles.

The trial court erred as a matter of law in construing the insurance contract language and the Florida Motor Vehicle No Fault Law to require Appellant to provide the Leandrys with PIP coverage. REVERSED and REMANDED with directions.

ALLEN, and BENTON, JJ., concur.


text:
    Vanita FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3647.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.
    Vanita Frazier, pro se, Petitioner.
    Charlie Crist, Attorney General; Felicia A. Wilcox and Betty Cheramie, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s order directing the State Attorney to file a response, we find that the granting of mandamus relief to compel a ruling on petitioner’s pending motion for postcon-viction relief is not warranted. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). Therefore, we deny the petition for writ of mandamus but we strongly encourage the circuit court to promptly rule on petitioner’s motion for postconviction relief. See Wiley v. State, 919 So.2d 618 (Fla. 1st DCA 2006).

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    Christopher KERR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1621.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.
    Christopher Kerr, pro se, Petitioner.

      Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the October 19, 2005, order denying motion for postconviction relief issued in Okaloosa County Circuit Court case number 96-CF-1755. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

' ERVIN, KAHN, and VAN NORTWICK, JJ., concur.


text:
    Julio GUILLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4975.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Julio Guillen, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P, 9.141(c)(4)(B).

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Edward L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5609.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Edward L. Brown, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

ERVIN, ALLEN, and WOLF, JJ., concur.