author: BENTON, J.

text:
    NOVA SOUTHEASTERN UNIVERSITY, and the Servicing Agent, Gallagher Bassett Services, Inc., Appellants, v. Yvette MAJNERICH, Appellee.
    No. 1D06-0601.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Walter C. Wyatt, Esquire of Bradham, Benson, Lindley, Blevins, Bayliss, Wyatt &

      Ross, P.L.L.C., Fort Lauderdale, and William H. Rogner, Esquire of Hurley, Rog-ner, Miller, Cox, Waranch & Westeott, P.A., Winter Park, for Appellants.
    Ricardo Morales, Esquire, Hialeah, and Bill McCabe, Esquire, Longwood, for Ap-pellee.
   BENTON, J.

Nova Southeastern University (Nova) and its servicing agent, Gallagher Bassett Services, Inc. (Gallagher), appeal the compensation order awarding Yvette Majne-rich, the claimant below, permanent total disability benefits on account of the debilitating effects she suffered from exposure to mold during her employment with Nova. The parties stipulated to an “accident date” of April 29, 2002. We affirm the order as modified.

Nova and Gallagher argue and Ms. Majnerich concedes that the judge of compensation claims acted without authority in requiring them to “reimburse the [claimant’s private] health insurance carrier, Humana Healthcare Insurance, for” payments it made to her health care providers. See Greynolds Park Manor v. George, 417 So.2d 990, 991 (Fla. 1st DCA 1982) (“[I]t was not proper to direct the employer to pay directly persons or entities which had paid for the care but were not actually before the deputy.”); see also Orlando Reg’l Healthcare Sys. v. Hurst, 763 So.2d 1243, 1244 (Fla. 1st DCA 2000); Orkin Pest Control v. Dykes, 464 So.2d 1299, 1300 (Fla. 1st DCA 1985).

Accordingly, we modify the order on review to require payment to the claimant. See Greynolds Park, 417 So.2d at 992 (on pets, for reh’g & clarification) (“Our decision does not mean that employer/carrier is temporarily absolved from the duty to pay for the treatment and care which was provided to the claimant. It means that the treatment and care are to be paid for by employer/carrier and collateral disputes as to reimbursement of outside entities not before the deputy commissioner are to be settled among the parties involved.... [T]he claimant ... shall insure that those entities are properly reimbursed.”). See also Sarasota County Sch. Bd. v. Castagna, mi So.2d 635, 636 (Fla. 1st DCA 1991) (“Although the JCC is without jurisdiction to order the ESA to reimburse a third party insurer who is not before the JCC, the JCC should award to claimant all the medical benefits due ..., and she shall insure that those entities are properly reimbursed.”).

The judge also ordered Nova and Gallagher to “provide the Employee/Claimant with a prescription account and pay the outstanding bills of Workers’ Comp Rx for medications filled after the Notice of Denial dated December 20, 2004.” Because there is no statutory authority for “prescription accounts,” we construe this as requiring nothing more than that Nova and Gallagher pay for covered prescriptions as part of their duty to “furnish to the employee such medically necessary remedial treatment ... for such period as the nature of the injury or the process of recovery may require, including medicines[.]” § 440.13(2)(a), Fla. Stat. (2001). See also § 440.13(3)(j), Fla. Stat. (2001); Remington v. City of Ocala/United Self Insured, 940 So.2d 1207, 1211-12 (Fla. 1st DCA 2006). The judge of compensation claims can require compliance with the statute, but nothing more.

The order is affirmed, as modified.

POLSTON and HAWKES, JJ., Concur.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy HARDENBROOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0310.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On this direct appeal from resentencing, Timothy Hardenbrook contends that the trial court erred in denying his motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. He argues that he was not given enough credit for time he had spent in jail and, before he began the probationary portion of his probationary split sentence, in prison. We affirm.

On a plea of no contest to grand theft, he was sentenced in Bay County on April 7, 2000, to thirty months’ imprisonment, to be followed by two years’ probation. After he had served the prison term, he was released on probation, then arrested in Baker County on a new charge. While incarcerated in Baker County, on April 5, 2003, he was served with an arrest warrant issued on the basis of an affidavit alleging the offense in Baker County violated the conditions of his probation on the Bay County charge.

Convicted in Baker County, he served the sentence for that offense, which expired on November 15, 2005, before he was transported to Bay County. There probation was revoked and he was resentenced for grand theft. He claims that he is entitled to jail credit on the Bay County charge for the time that he was incarcerated in Baker County after he was served with the Bay County arrest warrant, a claim the trial judge rejected below.

Credit for the same jail time must be given on more than one sentence only when the sentences are concurrent. See Gethers v. State, 838 So.2d 504, 506 (Fla.2003) (“[W]hen, pursuant to section 921.161(1), a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.”) (quoting Daniels v. State, 491 So.2d 543, 545 (Fla.1986)); Daniels, 491 So.2d at 545 (“We distinguish this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant ‘is not entitled to have his. jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ ”) (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)); Dawson v. State, 816 So.2d 1123, 1123 (Fla. 1st DCA 2002) (“A defendant is deemed to be in custody on separate warrants from different counties, and therefore entitled to jail credit on both convictions unless the defendant receives consecutive sentences ....”) (emphasis supplied).

Mr. Hardenbrook concedes that his sentences are not concurrent but argues that they are not consecutive, either. He argues that there is a third category of sentences, into which his sentence’falls, a category he denominates “free-standing.” He argues that, because he completed the “free-standing” sentence imposed in Baker County before he was resentenced in Bay County, he is entitled to jail credit against both sentences for the time he spent in the Baker County jail. We reject the argument that the Bay County and Baker County sentences are not consecutive, and the notion that a sentence can be neither consecutive nor concurrent but “freestanding.” See § 921.16(1), Fla. Stat. (2005) (“Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.”). While it may not be immediately clear that a sentence is consecutive, see Barnishin v. State; 927 So.2d 68, 71 (Fla. 1st DCA 2006) (“Until-for the first time upon revocation of his probation — the trial court imposed consecutive sentences, the precise contours of the credit for the time he spent in jail between arrest and resentencing were not clear.”), there can be no doubt here.

The present case does not involve guidelines sentences imposed simultaneously on the basis of a single scoresheet. Cf. Cook v. State, 645 So.2d 436, 438 (Fla.1994) (“We ... conclude that Cook should have been credited with the four and a half years he served for the 1990 offenses when he was sentenced in 1991 for violating his probation on the 1989 offenses for a second time”); Ingram v. State, 818 So.2d 636, 636 (Fla. 1st DCA 2002) (“Pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), the appellant is entitled to prior prison credit for time served on the first offense when he violated probation for the second offense, since he was sentenced for both at the same time. See also Hodgdon v. State, 789 So.2d 958 (Fla.2001).”); Moiter v. State, 644 So.2d 154, 155 (Fla. 2d DCA 1994) (remanding, on the same grounds as Ingram, for “the trial court to correct the written sentences to reflect the credit for time served in prison and in jail”); Silvestrini v. State, 633 So.2d 1143, 1144-45 (Fla. 2d DCA 1994). Mr. Hardenbrook is not entitled to additional credit against the Bay County (grand theft) sentence for the time he was incarcerated on the Baker County offense, because these sentences were consecutive.

In addition, Mr. Hardenbrook argues here as below that the trial court neglected to give him credit for time he spent in prison for grand theft before he was released on probation. The trial court acknowledged this omission in the original resentencing and filed an amended judgment and sentence in which it required the Department of Corrections to give Mr. Hardenbrook credit for prior prison time. See § 921.0017, Fla. Stat. (2005) (providing that when probation is revoked, the sentencing court shall order credit for time served in state prison or county jail, upon recommitment to the Department of Corrections, and “shall direct the Department of Corrections to compute and apply credit” for prior prison credit). The second resentencing thus corrected the error, and mooted the claim of failure to give credit for time spent in prison before probation.

Once the sentencing judge has awarded a defendant prior prison credit, the Department of Corrections has primary responsibility for calculating the credit. See § 921.0017, Fla. Stat. (2005). See also Gerald, v. State, 879 So.2d 657, 657 (Fla. 3d DCA 2004) (“Under the applicable statute, the sentencing order should reflect that the defendant is being awarded prison credit, and the calculation of the time previously served in the Department of Corrections is left to the Department to compute.”). If the Department of Corrections fails to give the full credit ordered by the trial court, the prisoner must first seek relief from the Department. See Binkley v. State, 900 So.2d 650, 651 (Fla. 5th DCA 2005) (“The trial court may award [the defendant] prison credit by checking the box directing the DOC to calculate how much prison time is appropriate for [his] sentence.... [The defendant] can then administratively appeal the calculation if it is inaccurate.”); Canty v. State, 884 So.2d 123, 124 (Fla. 2d DCA 2004) (“If ... the trial court did in fact award [the defendant] credit for time previously served in prison, the trial court has completed its responsibility, and any challenge [the defendant] may have regarding the application of prison credit to his sentence should first be raised through the appropriate administrative remedies with the DOC.”).

Affirmed.

BROWNING, C.J., and LEWIS, J., concur.

      . In the amended judgment and sentence, the court checked a box next to the following: "It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing.”

      . In the amended judgment and sentence, the trial court awarded Mr. Hardenbrook credit for the time he spent in prison on the grand theft charge, to be calculated by the Department of Corrections.
      The State’s brief recites, however, that "it appears the trial court recognized that there was a calculation error but did not address the matter in its order denying Appellant's motion to correct sentencing error.” The State’s brief asserts further that it is impossible to discern from the record whether the Department of Corrections calculated the appropriate amount of prison credit, but also states: "Since the trial court did not apply the proper credit for prison time served, this case should be remanded with directions that the trial court calculate the appropriate credit for time served.”
      But, if the Department of Corrections has failed to calculate the appropriate credit, Mr. Hardenbrook must first raise the issue administratively, before pursuing judicial review, if necessary. See Bush v. State, 945 So.2d 1207, 1210 (Fla.2006) ("When challenging a sentence-reducing credit determination by the Department, such as a gain time or provisional release credit determination, once a prisoner has exhausted administrative remedies, he or she generally may seek relief in an original proceeding filed in circuit court as an extraordinary writ petition. In such a case, if the prisoner alleges entitlement to immediate release, a petition for writ of habeas corpus is the proper remedy; whereas if the prisoner does not allege entitlement to immediate release, a petition for writ of mandamus is the proper remedy.”) (footnotes omitted).


text:
    CITY OF JACKSONVILLE, Appellant, v. TWIN RESTAURANTS, INC., Appellee.
    No. 1D05-5770.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Richard A. Mullaney, General Counsel, Bruce Page, Assistant General Counsel, and Scott D. Makar, Chief, Appellate Division, Jacksonville, for Appellant.
    Paul M. Harden and D.R. Repass, Jacksonville, and Michael J. Korn of Korn <& Zehmer, P.A., Jacksonville, for Appellee.
   BENTON, J.

The City of Jacksonville appeals the final judgment entered in an eminent domain case insofar as it awarded Twin Restaurants, Inc. (Twin) $685,000 in “severance damages,” in addition to the $143,420 it awarded for the part (Parcels 106, 706, and 806) of Twin’s property that the City actually took. We reverse.

Owner of the southwest corner of Bland-ing Boulevard and Collins Road in Jacksonville, Twin does not challenge the trial court’s Order of Taking. Parcel 106, a strip adjacent to Collins Road, became the City’s property in fee simple. As to Parcel 806, the City took a permanent easement, and, as to Parcel 706, a temporary construction easement. We do not disturb the $143,420 award of compensation for the interests in Parcels 106, 706 and 806. But we reverse the final judgment insofar as it awards an additional $685,000 (plus interest) in severance damages on account of changes in traffic flow anticipated from construction of a new median in Collins Road on property the City already owns.

The City took a strip thirteen feet wide at its widest point for a new sidewalk, curb, gutter, and bicycle lane, and to install drainage pipes, all in connection with widening Collins Road from two lanes to four lanes, adding turn lanes and a median. This taking did not entail loss of a single space in the parking lot for the Burger King restaurant that stands on Twin’s property. Twin asserted, however, that building a new median in Collins Road would discourage westbound drivers who wanted to turn left in order to patronize the Burger King (or any other fast food franchisee Twin might lease to) and would interfere with or complicate the egress of customers leaving the Burger King parking lot who wanted to end up traveling west on Collins Road.

The City filed a motion in limine, seeking an order excluding as irrelevant testimony or other evidence about the effects of constructing a median on Collins Road. The motion relied on Division of Administration, State Department of Transportation v. Capital Plaza, Inc., 397 So.2d 682 (Fla.1981), in which our supreme court had held severance damages unavailable in an eminent domain proceeding, if based on reduced access attributable to median construction in an abutting roadway. Id. at 683. In Capital Plaza, the court said:

DOT constructed the median within its previously owned right of way. Construction of the median, not the taking, caused the alleged damage. Severance damages are not available for a change in traffic flow.
.... [T]o receive severance damages, any complained-of impairment must result directly from a taking.

Id. But the learned trial judge (Judge Mitchell’s predecessor on the case) denied the motion in limine, on the purported authority of Lee County, Florida v. Exchange National Bank of Tampa, 417 So.2d 268, 269-70 (Fla. 2d DCA 1982) (positing an exception allowing severance damages for effects emanating offsite “where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put” and “it is impossible to separate the damages caused by the small portion of the ... taken land from the damages caused by the [project] as a whole”).

Denial of the motion in limine was error. Under Capital Plaza, all evidence related to changes in traffic flow resulting from construction of the median should have been excluded. See 397 So.2d at 683 (“[L]andowners have no compensable interest in traffic flow....”). See also Dep’t of Transp. v. Fisher, 31 Fla. L. Weekly D1904, D1904, — So.2d—, —, 2006 WL 1933416 (Fla. 2d DCA July 14, 2006) (“Because a property owner has no right to a specific level of traffic flow, the question of whether access has been diminished or destroyed must focus on physical access to the property itself — not the amount of traffic that can or will pass by the property postconstruction.”) (citation omitted); Div. of Admin., State of Fla. Dep’t of Transp. v. Ness Trailer Park, Inc., 489 So.2d 1172, 1179 (Fla. 4th DCA 1986) (“There was no basis in law for letting the jury hear testimony respecting severance damages purportedly because of loss of access; nor was the basing of such damages on the overall impact of the comprehensive project permissible.”); Lee County, 417 So.2d at 271-72 (“While the value of its entire property may have been greatly reduced by virtue of the construction of the nearby [public improvement offsite], the appellee could make no claim for severance damages if the county had not chosen to condemn any of its property. Yet, the appellee will be in no different position as a result of the taking.... Hence, it was error for the court to permit the appellee’s appraisers to predicate their opinions upon consequential damages caused to the remainder by the proximity to the [public improvement offsite].”) (citation omitted); City of Orlando v. Cullom, 400 So.2d 513, 516 (Fla. 5th DCA 1981) (ruling that “the restriction of vehicular traffic past the point of appellees’ building” was not a taking).

The testimony of Ronald Moody, Twin’s appraiser, began by tracking the City’s appraisal as to the value of the interests taken in Parcels 106, 706, and 806. Mr. Moody testified he took the City’s total figure for the three parcels — $105,030—as a starting point, but added approximately $38,390 for “what will [have to] be done after everything is done as far as putting things back,” bringing his estimate for total compensation for the taking to $143,420. This is the figure the jury adopted as total compensation for the interests taken in Parcels 106, 706 and 806, and neither party has contested this amount.

Twin put on no evidence that the actual taking of its property, as opposed to effects it anticipated from median-induced changes in traffic flow, would cause any severance damages. See Capital Plaza, 397 So.2d at 683 (“When less than the entire property is taken, compensation for damage to the remainder can be awarded only if such damage is caused by the taking.”) (emphasis supplied).

Ronald Moody did testify that the highest and best use of Twin’s property in the “before” condition was as a fast food restaurant, and would become what he described as a “slow food” or “destination” restaurant, in the “after” condition, the latter being less profitable, negatively affecting the resale value of the property. But the entire reason for this putative change in property value was, Mr. Moody testified, that the property would be harder to get in and out of quickly for certain drivers — solely on account of the change in traffic flow resulting from construction of the new median.

Twin also presented conclusory testimony that access would be “substantially diminished,” but it did not dispute that all driveways would still be open after the City finished the improvements contemplated. The City’s appraiser, Mr. Veasey, testified that losing the “left-in/left-out access” from Collins Road would cause no permanent damage to the remainder and would not diminish its value. Twin’s case on “diminished access” boiled down to evidence that westbound traffic onto or out of the property would have to travel a more circuitous route.

As a matter of law, this is not “substantially diminished” access of the kind that would constitute a compensable taking. See Fisher, 31 Fla. L. Weekly at D1904, — So.2d at—(“[M]ere circuity of access is not compensable unless the remaining access to the property is ‘substantially diminished.’ ”). See, e.g., Rubano v. Dep’t of Transp., 656 So.2d 1264, 1269 n. 3 (Fla.1995) (“[R]oadway abandonment, construction or realignment which results in inconvenience or mere circuity of access to abutting landowners does not give rise to a compensable injury.”) (internal quotation marks and quoted source omitted); State, Dep’t of Transp. v. S.W. Anderson, Inc., 744 So.2d 1098, 1102 (Fla. 1st DCA 1999) (reversing award of compensation because, at most, “one must now travel a less convenient route from the newly constructed SR 79 to Anderson’s property”); State, Dep’t of Transp, v. Weggies Banana Boat, 576 So.2d 722, 724 (Fla. 2d DCA 1990) (“[A]ny decrease in visibility or increased circuity of access ... suffered as a result of the overall design of the project is not compen-sable”). Compare Palm Beach County v. Tessler, 538 So.2d 846, 850 (Fla.1989) (affirming award of severance damages because property owners’ primary point of access to the remainder was rendered completely useless by construction of a retaining wall between their road and what was left of their property, diminishing the value of the remainder).

When Twin’s experts were asked to estimate severance damages, if any, apart from the median’s effects, they stated that they could not separate the portion which related to the actual taking of Twin’s property from the portion related to a change in traffic flow because of the new median. In short, Twin took the position that severance damages could not be evaluated, apart from the purported effects of the new median in Collins Road.

The verdict form asked the jury to determine whether the City’s use of land taken from Twin constituted “an integral and inseparable part of a single use to which the land taken and other adjoining land is put,” and whether access to Twin’s property had been “substantially diminished” as a result of the new median, and, in either event, permitted an award of severance damages. The trial court instructed the jury on the “general rule” stated in Capital Plaza and, over the City’s objection, on the supposed Lee County exception. The City’s objection was well taken.

In answering the specific questions the interrogatory verdict put to it, the jury “ruled” that the City’s use of land taken from Twin did constitute “an integral and inseparable part of a single use to which the land taken and other adjoining land is put,” and that access to Twin’s property had been or would be “substantially diminished” by the median, which the jury treated as part of the widening project for which Twin’s property was taken. Proceeding from this predicate, the jury awarded Twin severance damages of $685,000.

The jury’s preliminary “rulings,” like the award itself, fly in the face of our supreme court’s decision in Capital Plaza. See 397 So.2d at 683 (“We hold that landowners have no compensable interest in traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from a taking.”). See also Dep’t of Transp. v. RFT P’ship, 906 So.2d 1161, 1168 (Fla. 2d DCA 2005) (reversing award of severance damages where “an isolated change [in grade] in an intersection on property that the DOT already owned” took place, because “the land taken ... does not fit within the [Lee County ] exception ... [and] any decrease in value to the property ... that might have resulted from a change in grade at the intersection is clearly caused by design issues independent of the small slice of property taken,” and concluding that “[u]nder the ruling in [Capital Plaza ], severance damages are not available for such a change”); Jacksonville Expressway Auth. v. Milford, 115 So.2d 778, 781-82 (Fla. 1st DCA 1959) (“The rule is well settled here that damages are not allowable to a property owner for a change in grade or other alteration in a street in which the public holds an existing easement for street purposes.... [W]e find no facts ... entitling the appellee-landowners to recover damages for the change in grade of the preexisting right of way [where condemnation of the subject property did not produce or combine to produce the results of which appellee complains]. The fact that incident to such a change in grade in the preexisting right of way there occurs a simultaneous or coincidental condemnation of property abutting the preexisting right of way does not vary the rule.”).

Twin took the at trial that the two parts of the project — the median construction and the widening which necessitated the taking of Twin’s property — were inseparable. Each witness Twin called concerning severance damages testified that construction of the median was an integral component of a single project and that severance damages could not be evaluated or calculated without taking construction of the median into account. (The City countered that the two portions of the project were distinct, and that construction of the median was not dependent on the acquisition of the thirteen-foot-wide strip of Twin’s property.)

Twin thus made a tactical decision to proceed under the theory of the Lee County exception in its effort to obtain substantial severance damages on account of effects on traffic flow anticipated from construction of the new median. Twin’s answer brief acknowledges that its only bases for seeking severance damages were “the Lee County exception” and “substantial diminution in access.” Both theories rest on the asserted effects of the new median. The record shows not only that Twin could not prove severance damages apart from the median, but that it declined every opportunity to do so. It is not at liberty to abandon this position on appeal and has not, indeed, sought to do so. In the circumstances, no remand is necessary.

The final judgment is reversed, insofar as it awards $685,000 in severance damages and interest thereon.

WEBSTER and VAN NORTWICK, JJ., concur.

      . At trial, John Veasey, the City's appraiser, valued the land taken from Parcel 106 at $77,680; the temporary construction easement in Parcel 706 at $26,250; and the permanent easement in Parcel 806 at $1,100.

      . Twin proved that taking the strip would require shortening the driveways onto Collins Road, decreasing by one or more the number of cars that could wait in line for the “drive-thru window.” Twin did not try to prove this would actually affect Burger King's sales.

      .The new median would require westbound travelers on Collins Road to make a left turn onto Blanding Boulevard southbound, then turn right immediately, or proceed about 900 feet along the new median and make a U-turn, to reach the Burger King. Travelers leaving westbound, unable to turn left onto Collins Road, could either turn right onto Collins Road and make a U-turn, or turn right onto Blanding Boulevard southbound, make a U-turn, then turn left onto Collins Road westbound at the intersection of Blanding Boulevard and Collins Road.

      . In effect, these instructions gave the jury legal questions to decide preliminary to and as a condition for fact finding. But see Palm Beach County v. Tessler, 538 So.2d 846, 850 (Fla.1989) ("[I]n an inverse condemnation proceeding ..., the trial judge makes both findings of fact and findings of law. As a fact finder, the judge resolves all conflicts in the evidence. Based upon the facts as so determined, the judge then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activity.”); Dep't of Transp. v. Fisher, 31 Fla. L. Weekly D1904, D1904,—So.2d—,—, 2006 WL 1933416 (Fla. 2d DCA July 14, 2006). See also § 73.071(3)(b), Fla. Stat. (2005) (“The jury shall determine solely the amount of compensation to be paid, which compensation shall include:.... Where less than the entire property is [taken], any damages to the remainder caused by the taking[.]”) (emphasis supplied).

      . The supreme court has made unmistakably clear that no such exception is available where, as here, severance damages are claimed on the basis of a traffic median constructed on property the City already owned. We need not, therefore, decide whether the Second District’s discussion in Lee County of an exception to the ban on severance damages for effects attributable to works on property not taken from the landowner (and its subsequent application of the Lee County exception in Taylor v. State, Department of Transportation, 701 So.2d 610, 611-12 (Fla. 2d DCA 1997)), should be adopted as the law of this district in some other circumstance.


author: ' PER CURIAM.

text:
    INTEGON CORPORATION, Integon National Insurance Company, Integon General Insurance Company, Integon Indemnity Corporation and Integon Preferred Insurance Company, Appellants, v. Dean A. GORDON, on behalf of himself and all others similarly situated, Appellee.
    No. 1D05-3187.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee; Marcy Levine Aldrich, Christopher S. Carver, Ryan Roman and Nancy A. Copperthwaite of Akerman Sen-terfitt, Miami, for Appellants.
    Thomas Porter Crapps of Crapps Law Firm, P.A., Tallahassee; Elizabeth J. Ca-braser, Morris A. Ratner and Jahan C. Sagafi of Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for Appellees.
   ' PER CURIAM.

Appellants seek review of an interlocutory order granting appellee’s motion for class certification. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const, (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.130(a)(3)(C)(vi) (providing for appeal to the district courts of appeal of non-final orders that “determine ... that a class should be certified”). Because the order fails to “separately state the findings of fact ... upon which the determination [wa]s based” as required by Florida Rule of Civil Procedure 1.220(d)(1), we reverse and remand with directions that the trial court comply with that provision. See, e.g., Seminole County v. Tivoli Orlando Assocs., Ltd., 920 So.2d 818, 824 (Fla. 5th DCA 2006); Ford Motor Co. v. Morris, 904 So.2d 612, 613 (Fla. 1st DCA 2005); City of Tampa v. McAfee, 896 So.2d 943, 946 (Fla. 2d DCA 2005). On remand, the trial court shall also rule on appellants’ contention that appellee lacks standing, and provide an explanation of the rationale on which its decision is based, to permit intelligent review of the determination.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    Jacob R. MYERS, Appellant, v. FLORIDA CIVIL COMMITMENT CENTER; Department of Corrections; Desoto County Sheriff's Office; Liberty Behavioral Health Corporation; and Department of Children and Families, Appellees.
    No. 1D05-5799.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Appellant Jacob R. Myers, pro se.
    Bill McCollum, Attorney General, and Reginald D. Dixon, Assistant Attorney General, Tallahassee, for Appellee Department of Corrections.
    John W. Jolly, Jr. and Barbara C. Fromm of Jolly & Peterson, P.A., Tallahassee, for Appellees Florida Civil Commitment Center and Liberty Behavioral Health Corporation.
    John J. Copelan, Jr., General Counsel, and John A. Raymaker, Assistant General Counsel, Tallahassee, for Appellee Department of Children and Families.
   PER CURIAM.

Jacob Myers challenges Florida Civil Commitment Center (“FCCC”) policy F-24 as a non-rule policy of the Department of Children and Families. The Administrative Law Judge (“ALJ”) granted respondents’ motion for summary final order before Myers’ time to respond to the motion had lapsed. See § 120.57(l)(b), Fla. Stat. (2005) (“All parties shall have an opportunity to respond, to present evidence, and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders.... ”). As a result of the premature dismissal, the ALJ failed to consider Myers’ argument that policy F-24 is a de facto agency rule that has not been adopted under the proper rulemaking procedures of section 120.54(l)(a). See § 120.56(4), Fla. Stat. (2005). Because Myers presented a prima facie challenge alleging policy F-24 to be a non-rule policy, pursuant to section 120.56(4), Florida Statutes, we reverse and remand for further proceedings on Myers’ petition. We do, however, affirm the ALJ’s dismissal of all respondents other than the Department of Children and Families. See Dep’t of Corrs. v. Adams, 458 So.2d 354, 356 (Fla. 1st DCA 1984) (explaining that individual facilities acting under agency guidance are not themselves “agencies” for purposes of the Administrative Procedure Act); see also § 394.930, Fla. Stat. (2005) (granting the Department of Children and Families sole authority to adopt rules to give effect to the provisions of the Jimmy Ryce Act).

AFFIRMED in part; REVERSED and REMANDED in part.

ALLEN, KAHN, and DAVIS, JJ., concur.


author: HAWKES, J. BENTON, J., WEBSTER, J.,

text:
    CITY OF PORT ORANGE and PGCS, Appellants, v. Gary SEDACCA, Appellee.
    No. 1D05-1799.
    District Court of Appeal of Florida, First District.
    April 10, 2007.

      George A. Helm, III, Lake Mary, for Appellants.
    Richard A. Sicking, Coral Gables, for Appellee.
   EN BANC

HAWKES, J.

This workers’ compensation appeal has been decided en banc, pursuant to the court’s own motion. In this case, we are asked to determine whether the Judge of Compensation Claims erred by determining Claimant firefighter’s permanent impairment for hypertension, standing alone, constitutes a “disability” under the Workers’ Compensation Act.

The answer to this question hinges on the definition of the term “disablement” as used in the occupational disease provisions of the Workers’ Compensation Act. Our case law has consistently defined disablement as actual wage-loss. Since Claimant’s hypertension has not resulted in wage-loss, he has not suffered disablement, thus, his hypertension is not covered under the Workers’ Compensation Act. Accordingly, we reverse.

Facts

The relevant facts are undisputed. The parties stipulated that Claimant, a firefighter working for the employer, passed a pre-employment physical examination without evidence of heart disease, hypertension, or tuberculosis. Claimant was diagnosed with hypertension as of June 12, 2003, and reached maximum medical improvement (MMI) on April 2, 2004. As a result of the hypertension, Claimant suffered a permanent physical impairment of between one and ten percent of the body as a whole. The parties agreed that, if the claim were determined to be compensable, benefits would be handled administratively. The only issue to be resolved was whether Claimant’s permanent impairment for hypertension, standing alone, constituted a “disability,” so as to qualify for coverage under the Workers’ Compensation Act as an occupational disease pursuant to section 440.151, Florida Statutes.

Coverage Under the Workers’ Compensation Act

The Workers’ Compensation Act, Chapter 440, Florida Statutes, provides coverage only “if the employee suffers an accidental injury.” § 440.09(1), Fla. Stat. (2002). This coverage prerequisite is commonly referred to as an “injury by accident.” Without an injury by accident, the Act provides no coverage and is inapplicable. An exception to the actual “injury by accident” requirement allows an employee’s disease or medical condition to be “treated as the happening of an injury by accident” if he is able to establish he has an occupational disease. It is under the occupational disease provisions of section 440.151,Florida Statutes, that Claimant seeks coverage.

For a disease or medical condition to be eligible for coverage as an occupational disease, claimants have the burden of establishing each of the statutory requirements. Here, Claimant’s ability to satisfy the “four prong test” that comprises part of the statutory requirements is not at issue, because the parties stipulated to the applicability of the presumption under section 112.18(1), Florida Statutes. However, Claimant must still satisfy the other statutory requirements. In reviewing section 440.151,and the applicable case law interpreting the statute, three points emerge as significant.

One, we do not look beyond section 440.151 to define its relevant terms. See Watkins Eng’rs & Constructors v. Wise, 698 So.2d 294 (Fla. 1st DCA 1997) (holding occupational disease provision language of section 440.151, is “plain,” and “so long as an occupational disease fits within the criteria enumerated therein, such disease constitutes a compensable injury”) (emphasis added). A claimant either meets the requirements for coverage under section 440.151,or he does not. This court has previously refused to incorporate other subsections of the Act to add to or supplement the clearly delineated requirements set forth in section 440.151. See id. at 295.

Two, not every disease or adverse medical condition where employment is a contributing cause, or even the major contributing cause, qualifies as an occupational disease. See Broward Indus. Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981) (reversing JCC’s finding that bronchial asthma and vasculitis were occupational diseases). Even where a condition of employment causes a permanent disease, failure to meet the statutory requirements of section 440.151 means the claimant would not be entitled to compensation or benefits under the Act. See id. at 1119,1121.

Three, since disablement or death is required by the statute, neither compensation nor benefits are available until the employee suffers disablement or death. See Fla. Power Corp. v. Brown, 863 So.2d 364, 365 (Fla. 1st DCA 2003) (noting that, even though employee was diagnosed with asbestosis, a permanent disease caused by his employment, since he had not suffered “disablement,” his disease was not an occupational disease under the Act).

At issue here is whether Claimant’s hypertension resulted in “disablement or death ... from an occupational disease as hereinafter defined.” § 440.151, Fla. Stat. Since section 440.151 defines disablement, this statutory language means hypertension (or any other disease or medical condition where employment is the major contributing cause) will not qualify as an occupational disease unless Claimant meets the statute’s definition of disablement.

The Meaning of Disablement

The dissent acknowledges disablement must be established before Claimant can be covered by the Act. However, the dissent fails to use the statutory definition of “disablement” provided in section 440.151. Instead, it resorts to doubtful legislative history, fails to recognize binding precedent, and gives other precedent illogical interpretations. It concludes from this circuitous route that “disability” may be presumed and the term’s meaning has been “conflated” with the term “impairment.” The plain language of the statute and the case law interpreting it stand in opposition to these conclusions.

Under workers’ compensation law, the statute in effect on the date of an employee’s accident determines the employee’s substantive rights. In an occupational disease case, the employee’s last injurious exposure giving rise to eligibility for coverage is the date of accident, and consequently, defines the compensation and benefits available. Here, the record shows Claimant’s last injurious exposure was on June 12, 2003. At that time, the statute defined disablement as “the event of an employee’s becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease; and ‘disability’ means the state of being so incapacitated.” § 440.151(3), Fla. Stat. (2002).

The key phrase of the statutory definition: “actually incapacitated from performing his or her work,” can logically only support a wage-loss requirement for disability. The word “actually” is self-explanatory and does not mean “presumed.” “Incapacitated” is defined as “to deprive of capacity or natural power.” See Merriam-Webster’s Collegiate Dictionary 628 (11th ed.2003). The question then becomes “deprived of the capacity or natural power to do what”? The statute provides the answer. A claimant must be deprived of the capacity or natural power to “perform[ ] ... his work in the last occupation in which injuriously exposed to the hazards of such disease.” § 440.151(3), Fla. Stat. Thus, the statute requires a claimant actually be incapable of performing his work. Until “actually incapacitated,” at least partially, no coverage for a disease or medical condition is available under the Act, because a claimant’s disease or medical condition has not resulted in disablement as the statute defines that term. See City of Mary Esther v. McArtor, 902 So.2d 942, 944 (Fla. 1st DCA 2005) (“Determining whether a person is disabled for purposes of workers’ compensation turns on the person’s capacity to earn income ... ”).

The Dissent’s Time Periods

In setting forth its argument, the dissent identifies three time-periods. These time-periods play a crucial role in the dissent’s definition of “disablement.” They are as follows: any permutation of the workers’ compensation statutes prior to 1979, permutations of the statutes between 1979 and 1993, and various permutations of the statutes after the 1993 amendments. In the dissent’s view, the 1993 amendments had “the effect of returning Florida’s Workers’ Compensation Law to its pre-1979 position.” See Dissent at p. 737. Although there are many significant differences in workers’ compensation law, with various amendments to the Act occurring at least nine times from the 1979 amendments through the 1993 amendments, there is no difference in the occupational disease provision language of section 440.151, nor is there any difference in our case law defining what disablement means in that section.

During each of these time-periods, section 440.151(1) provided coverage for an occupational disease only when it resulted in disablement or death, and section 440.151(3) defined “disablement” as actual incapacity to perform “work in the last occupation in which injuriously exposed.” Case law has consistently interpreted this language as defining disablement or disability to require incapacity causing actual wage-loss.

Case Law, The Time-Periods, and “Disability”

The first time-period the dissent identifies as critical, is prior to 1979. The dissent maintains the definition of “disablement” from any permutation of the statute prior to 1979 is also the current definition of “disablement.” Significantly, the case law from this period defines “disablement” as the incapacity to work resulting in actual wage-loss. For example, in 1961, the Florida Supreme Court defined disability in this manner in Conner v. Riner Plastering Co., 131 So.2d 465 (Fla.1961). The Conner claimant developed contact dermatitis, which became permanent in 1955. Although having a permanent disease, suffering medical problems, experiencing discomfort, and relying on various home remedies and weekends for time to recuperate to enable his return to work the next week, the claimant was able to continue to work without any lost time from the time the disease was found to be permanent in 1955, until 1959.

The Florida Supreme Court found that, although the claimant suffered from a disease that was permanent in nature and occupational in causation, he did not become disabled and eligible for compensation until January of 1959. The 1959 date marked the date of his disability because that was when his doctors advised him he could no longer perform plastering work. It was not until he lost his ability to perform plastering work that he became “actually incapacitated,” experienced actual wage-loss, and, as a result, became disabled or suffered “disablement.”

The Florida Supreme Court reversed the deputy’s award of compensation, ruling the deputy erred by basing entitlement to compensation on the date the disease became permanent. The Court held “the controlling factor should be the time the disability became permanent. After all, it is the disability not the disease itself which determines whether the claim is compensable.” Id. at 467. (Emphasis in original). The error the deputy made in Conner is the same error the dissent makes here, confusing the date of diagnosis or contraction of a disease with the date the disease progresses to the point a claimant’s ability to work is adversely affected, i.e., he suffers disability. Realistically, it is possible that a permanent disease may never result in disability.

The Florida Supreme Court reached the same result in Dayron Corp. v. Morehead, 509 So.2d 930 (Fla.1987). Morehead was decided during the second time-period the dissent identifies as being critical to its analysis. The Morehead claimant became sensitive to an oil-based coolant used in metal cutting. Due to his sensitivity, he was unable to perform his job. The Court concluded that, since he was unable to perform his job, he suffered a disability. There are two points of interest in More-head.

First, the Florida Supreme Court quoted the AMA Guides’ caution against confusing the terms “disability” and “impairment.” Id. at 931. Here, the dissent again commits the very error the Florida Supreme Court and the AMA Guides caution against by confusing these two terms. Specifically, impairment is a medical assessment, without regard to the wage-loss that may result in disability. See id. at 932. Disability is a legal issue, which considers a claimant’s ability to work, and requires economic loss. See id. at 931-932.

The second point of interest is the More-head Court’s citation to Conner as precedent for its holding that disability requires actual wage-loss. The Court’s citation confirms that since the statutory language had not changed, the meaning of disablement had not changed. The Morehead Court’s holding is contrary to the dissent’s premise that there is a difference in the definition of “disablement” in any permutation of the statutes prior to the 1979 amendments, and the various permutations of the statutes in the 1979-1993 time-period.

There are other cases in this 1979-1993 time-period that hold a disease or medical condition does not qualify as an occupational disease unless the claimant can show disablement, i.e., being “actually incapacitated,” resulting in actual wage-loss. All of these cases recognize disability is different from impairment. See OBS Co., Inc. v. Freeney, 475 So.2d 947 (Fla. 1st DCA 1985) (holding claimant disabled even without permanent impairment rating because of inability to work in his occupation. Thus, he suffered “incapacity because of the injury to earn in the same or any other employment the wages which [he] was receiving at the time of the injury.”); Sledge v. City of Ft Lauderdale, 497 So.2d 1231 (Fla. 1st DCA 1986) (finding no disability where claimant, a firefighter, was able to continue working even though he had permanent heart disease and a 1% permanent impairment rating; since there was no disability, there was no occupational disease; noting distinction between injury by accident and occupational disease is important, because in occupational disease cases, the date of disability coincides with the loss of earnings). No loss of earnings means no disability. No disability means no occupational disease.

In the third time-period utilized by the dissent, after the 1993 amendments, the case law continues to define disablement or disability as used in section 440.151 as requiring actual wage-loss. See City of Mary Esther, 902 So.2d at 944 (noting disablement for purposes of workers’ compensation turns on claimant’s ability to earn income). Case law in this time-period continued to recognize a difference between the disease (an impairment) and a disability. In occupational disease cases, it is the disability, not the disease, which determines compensability of a claim. See Hoppe v. City of Lakeland, 691 So.2d 585 (Fla. 1st DCA 1997). The employee must become “actually incapacitated, partially or totally, because of the occupational disease.” Id. at 586.

Another case from that time-period, which recognizes the definition of disability requires actual wage-loss is Michels v. Orange County Fire/Rescue, 819 So.2d 158 (Fla. 1st DCA 2002). The Michels claimant suffered from Hepatitis C caused by his employment. The disease was diagnosed in March of 1992. Obviously, Hepatitis C is permanent. Between the 1992 diagnosis and 1996, the Michels claimant underwent interferon therapy. When diagnosed with the disease, he was earning $35,000.00 per year. However, after treatments, he returned to work full-time, performing full duties and, as the case points out, even assumed additional responsibilities, received a promotion and worked a second job.

On September 18, 1998, the Michels claimant became incapable of performing his work. At that time, he was earning $69,000 per year. The JCC held the 1992 date the disease was diagnosed was the date of the accident. This court reversed, holding it is “well-settled in occupational disease cases that the date of accident is the date of disability, and disability is defined as the date claimant became incapable of performing work in the last occupation in which he was exposed to the hazards of the disease.” Id. at 160. (Emphasis added). The Michels court concluded “September 18, 1998, is the date claimant’s condition deteriorated to the point he was permanently precluded from working because of his disease. Thus, [claimant’s] disablement and date of accident for this claim is September 18, 1998.” Id. (Emphasis ’ added). Clearly, this court found the disablement necessary to establish an occupational disease was an incapacity to work, which results in actual wage-loss.

To obtain coverage under the Act, a claimant proceeding under the occupational disease provisions must establish “disablement.” Disablement as used in section 440.151 has consistently, through each of the dissent’s time-periods, been defined in only one way. To establish disablement, the claimant must suffer actual wage-loss because of an incapacity to perform his work as a consequence of his disease or medical condition.

Manatee Memorial Hospital and Robinson

The dissent cites Manatee Mem’l Hosp. v. Special Disability Trust Fund, 774 So.2d 876 (Fla. 1st DCA 2000), and Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959) as precedent supporting its reasoning. The dissent is mistaken. Nothing in either of these cases supports the dissent’s reasoning.

Manatee does not hold that an “impairment” is synonymous with a “disability,” or that the terms have been “conflated.” The case actually stands for the proposition that the concept of impairment is different from the concept of disability. The language from the case makes this clear, “[impairment income is payable irrespective of disability.” Id. at 878. (Emphasis added). If the case stood for the proposition for which it is offered by the dissent, the language would read “impairment is disability.”

The entire premise of Manatee is that “permanent impairment” and “disability” are different, and, by holding the claimant did not have to establish disability to receive permanent impairment benefits, this court recognized that difference.

The dissent’s premise is that, since permanent impairment benefits under section 440.15(8) do not require a claimant to establish disability, then disability may be presumed under section 440.151 any time a claimant has a permanent impairment. In other words, the dissent reasons, Claimant can use the benefit provisions of section 440.15(3), to satisfy the coverage requirements of section 440.151. The dissent’s reasoning is analytically flawed.

The flaw is illustrated by examining the Manatee claimant’s status. Specifically, the Manatee claimant was not seeking coverage, he was seeking benefits. The Manatee “claimant was injured on July 8, 1995.” Id. at 877. Thus, he suffered an injury by accident under section 440.09, and his medical condition was covered under the Act. Because the Manatee claimant’s medical condition was covered under the Act, one of the benefits to which he was entitled was permanent impairment benefits. The Manatee claimant did not use his impairment to gain coverage, as the dissent attempts to do for Claimant here.

The dissent also attempts to buttress its argument with Robinson, maintaining Robinson creates a conclusive presumption that any impairment automatically results in some degree of disability, i.e., a loss of earning capacity. Besides the fact that the case never uses the word “impairment,” there are two additional problems with the dissent’s reliance on Robinson.

First, the issue in Robinson was “the exact degree of [claimant’s] disability under F.S. § 440.15(3)(s), F.S.A.” Robinson, 116 So.2d at 242. The Court was not determining if the Robinson claimant had a disability. Instead, the Court was determining the extent of the disability. Like Manatee, the Robinson claimant suffered an injury by accident “when a piece of machinery struck his left leg breaking two bones near the ankle joint.” Id. at 241. Consequently, the Robinson claimant’s medical condition was covered under the Act. Once covered, the only question becomes the type of benefits and the amount of compensation to which the claimant is entitled.

The Florida Supreme Court explained the presumption is intended to avoid the unfairness of appraising the impact of a permanent injury on earning capacity by looking at some relatively short period preceding the hearing for a claimant already covered under the Act. See id. at 243. The Court’s explanation demonstrates the presumption that a scheduled injury automatically results in wage-loss is not intended to address whether a claimant’s medical condition is covered by the Act.

The proper inquiry in every case involves two steps. First, a determination must be made as to whether a claimant’s medical condition is covered under the Act. The medical conditions in Manatee and Robinson were determined to be covered by the Act. Second, if covered, a determination must be made as to what benefits are due. If the first step results in a determination that a medical condition is not covered under the Act, the second step becomes moot, because no benefits are due. It is logically incoherent to argue that, since there could be benefits, there must be coverage.

Second, evidence of the flaw in the dissent’s reliance on Robinson can be found from the lack of any reference to Robinson in any of the occupational disease cases over the last 47 years. For example, Conner, the contact dermatitis case in the first time-period, Michels, the Hepatitis C case in the second time-period, and City of Mary Esther, the heart disease case in the third time-period, all fail to cite Robinson. Even though each of these cases found a disease permanent in nature and occupational in causation, none of these eases held Robinson created a presumption of wage-loss and, therefore, disability. Each of these cases hinged on the claimant’s actual incapacity to work, not whether he had a disease or impairment. Essentially, the Robinson presumption that a scheduled injury results in wage-loss goes to the valuation of a claimant’s benefits, but in no way addresses a claimant’s initial entitlement to coverage under the Act.

Conclusion

Here, Claimant’s hypertension has not caused him to miss any work, thus he cannot demonstrate an incapacity resulting in actual wage-loss. Without incapacity resulting in actual wage-loss, Claimant cannot show disablement. Without disablement, Claimant’s hypertension does not meet the statutory definition of an occupational disease. Without an occupational disease, Claimant’s hypertension cannot “be treated as the happening of an injury by accident.” Without an injury by accident, a necessary prerequisite to the applicability of Chapter 440, Claimant’s hypertension is not covered under the Act. Without coverage under the Act, Claimant is not eligible for benefits under section 440.15(3). The JCC’s final order is REVERSED.

ALLEN, KAHN, DAVIS, PADOVANO, LEWIS, POLSTON, THOMAS, and ROBERTS, JJ., concur.

BENTON, J., concurs in the judgment with written opinion.

WEBSTER, J., dissents with written opinion in which BROWNING, C.J., BAR-FIELD, WOLF, and VAN NORTWICK, JJ., concur.

BENTON, J.,

concurring in the judgment.

I write to suggest that the legal question the present case poses, ably explicated by majority and dissenting opinions alike, may have limited practical significance. The present case arises because a statutory presumption combined with a routine physical examination to produce a “permanent impairment” in an employee who had not experienced symptoms.

When employees have been symptomatic and ill enough with occupational diseases to have to miss work, they have thereby suffered “disablement,” defined by statute as “an employee’s becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work ...,” § 440.151(3), Fla. Stat. (2002); or, since October 1, 2003, a “disability,” statutorily defined as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2003); see also § 440.151(l)(a), Fla. Stat. (2003) (requiring that “the disablement or death of an employee resulting from an occupational disease ... be treated as the happening of an injury by accident”).

WEBSTER, J.,

dissenting.

The majority concludes that a permanent impairment for hypertension does not constitute a “disability” for purposes of section 112.18(1), Florida Statutes (2002), unless there is evidence of actual wage loss. In doing so, it relies on section 440.151, Florida Statutes (2002), which provides that “the disablement ... from an occupational disease ... shall be treated as the happening of an injury by accident” and that “ ‘disablement’ means the event of an employee’s becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease-” § 440.151(l)(a) & (3), Fla. Stat. (2002). According to the majority, this “can logically only support a wage-loss requirement for disability.” Maj. Op. at 730-31. Regardless of whether all of this is true, it is irrelevant for purposes of this case.

A fundamental flaw in the majority’s analysis is its assumption that the 2002 version of section 440.151 applies. This court has said that the date of accident in occupational disease cases is determined by the date of disability. Michels v. Orange County Fire/Rescue, 819 So.2d 158, 160 (Fla. 1st DCA 2002). In this case, the date of disability was April 2, 2004, when claimant reached maximum medical improvement with a permanent physical impairment. Accordingly, this case is governed by the 2003 version of section 440.151 (effective October 1, 2003), which does not contain the definition of “disablement” relied upon by the majority but, rather, merely refers to section 440.02(13) which provides that “ ‘[disability’ means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” As I shall explain, pursuant to the “permanent impairment benefits” provisions of section 440.15(3), Florida Statutes (2003), a conclusive presumption arose that claimant was disabled to some degree by his permanent impairment.

Section 440.15, Florida Statutes (2003), is entitled “Compensation for disability” and provides for four types of compensation: (1) permanent total disability benefits; (2) temporary total disability benefits; (3) permanent impairment benefits; and (4) temporary partial disability benefits. Although the statute does not explicitly provide for “permanent partial disability” benefits per se, those who suffer permanent impairments but are not totally disabled are entitled to permanent impairment benefits calculated according to a schedule under section 440.15(3). While observing that a claimant is not required to prove actual disability to receive permanent impairment benefits, see Manatee Mem’l Hosp. v. Special Disability Trust Fund, 774 So.2d 876, 878 (Fla. 1st DCA 2000), we have said that such benefits are still intended to compensate for disability because Florida adheres to the theory that an injured worker should be compensated for loss of earnings rather than the injury itself. Brannon v. Tampa Tribune, 711 So.2d 97 (Fla. 1st DCA 1998). In short, in creating “permanent impairment benefits,” the legislature has conflated the concepts of “permanent impairment” and “disability.” In other words, some degree of disability — i.e., loss of earning capacity — is conclusively presumed by the fact the claimant suffers from a permanent impairment.

This conclusion is supported by an examination of the history of section 440.15(3). Prior to 1979, section 440.15(3) provided for “permanent partial disability” benefits which were payable without proof of actual wage loss if the claimant suffered a scheduled injury. In addressing the theory behind “permanent partial disability” benefits for scheduled injuries, our supreme court explained:

There is some intimation that the petitioner considers that because the injury was a scheduled one, the legislature did not historically have in mind the economic factors involved when a permanent partial disability was to arise under this section. Nothing could be less accurate. The underlying principle of compensation law — all compensation law- — is that benefits relate to loss of earning capacity and not to physical injury as such. In scheduled benefits the basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, based on observed probabilities in many similar cases, instead of a specifically proved one, based on the individual’s actual wage-loss experience.

Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240, 243 (Fla.1959) (footnote omitted).

In 1979, our legislature amended the Workers’ Compensation Law by re-establishing the centrality of the wage-loss principle. See 4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 80.06[1] (2005). Specifically, section 440.15(3) was rewritten to replace “permanent partial disability” benefits with “permanent impairment and wage-loss benefits.” Ch. 79-40, § 10, at 230, Laws of Fla. Permanent impairment benefits did not require a showing of actual loss of earning capacity but were awarded only in cases of “permanent impairment due to amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits.” Id. In all other cases of permanent impairment, the claimant had to seek “wage-loss benefits,” which were “based on actual wage loss.” Id. Thus, except in very limited circumstances, a permanent impairment was not sufficient to entitle an injured worker to benefits unless there was evidence of an actual loss of earning capacity.

However, beginning in 1993, the legislature enacted amendments that had the effect of returning Florida’s Workers’ Compensation Law to its pre-1979 position. See 4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 80.06[2] (2005). Effective January 1, 1994, the legislature amended section 440.15(3) by expanding “permanent impairment benefits” to become the primary benefit, payable “at the rate of 3 weeks for each percentage point of impairment.” Ch. 93-415, §§ 20, 112, at 121-22, 215, Laws of Fla. At the same time, the legislature reduced “wage-loss benefits” to a supplemental benefit payable at the end of the impairment period to those with impairment ratings of 20 percent or more who earned less than 80 percent of their average weekly wage as a direct result of the impairment. Ch. 93-415, § 20, at 122, Laws of Fla. Effective October 1, 2003, the legislature eliminated supplemental wage-loss benefits altogether, leaving only permanent impairment benefits, payable according to a modified schedule. Ch.2003-412, §§ 18, 50, at 3920-24, 3969, Laws of Fla. One can only conclude that, by eliminating wage-loss benefits in favor of permanent impairment benefits, the legislature has returned to the pre-1979 theory announced by our supreme court that some degree of disability — i.e., loss of earning capacity — is conclusively presumed where compensation is based on a statutory schedule. See Brannon v. Tampa Tribune, 711 So.2d 97, 100 (Fla. 1st DCA 1998) (holding that the legislature is presumed to know how the judiciary has construed a law when enacting a new version of that law and to have adopted prior judicial constructions unless a contrary intent is expressed in the new version).

It is the presumption of disability created by a section 440.15(3) permanent impairment that satisfies the “disablement” requirement of the occupational disease provisions of section 440.151(l)(a), Florida Statutes (2003), and the “disability” requirement of the compensability presumption of section 112.18(1), Florida Statutes (2003). The majority’s conclusion that a permanent impairment is not a disability for purposes of either section 440.151(l)(a) or section 112.18(1) without a showing of an actual loss of earning capacity makes sense only under the old wage-loss system which no longer exists. See Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986). Assuming that the claimant had established an actual loss of earning capacity, there would be no way to compensate him for that loss because wage-loss benefits have been eliminated. The only compensation available to those with permanent impairments who are not totally disabled are permanent impairment benefits, which do not require a showing of an actual loss of earning capacity. However, if one follows the majority’s reasoning to its only logical conclusion, the claimant in this case must prove a loss of earning capacity to receive permanent impairment benefits. This is simply not required by section 440.15(3).

In concluding that a permanent impairment for hypertension does constitute a “disability” for purposes of section 112.18(1), I have relied on the doctrine of in pari materia which “requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla.2005). The majority’s analysis does not comport with this important principle of statutory construction because it does not give effect to the permanent impairment provisions of section 440.15(3). Accordingly, I dissent.

      . Lake v. Irwin Yacht & Marine Corp,, 398 So.2d 902 (Fla. 1st DCA 1981). The four prong test has been legislatively expanded for any date of accident after October 1, 2003.

      .There is no legislative history supporting the conclusions reached by the dissent. However, since section 440.151 is clear and unambiguous, we cannot look beyond its plain language or resort to rules of statutory construction to ascertain intent. Our court, en banc in a workers’ compensation case, acknowledged this rule, holding this "maxim applies even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act ...” Vegas v. Globe Sec. & CIGNA, 627 So.2d 76, 84 (Fla. 1st DCA 1993) (citations and internal quotations omitted). In Vegas, this court was convinced the Legislature wished to alter the computation of the average weekly wage, but failed in their attempt. Courts’ failure to apply statutes as written constitutes an abrogation of legislative power. Koile v. State, 934 So.2d 1226 (Fla.2006).

      . The JCC found the date of accident is the date Claimant reached maximum medical improvement (MMI). There is absolutely no legal support for a finding that the date of MMI is synonymous with the date of accident or, in the occupational disease context, the date of disability.

      . Effective October 1, 2003, the Legislature amended the statute to define "disablement” to mean "disability” as set forth in section 440.02(13). See § 440.151(3), Fla. Stat. (2003). The definition in section 440.02(13), expressly requires wage loss for disability.

      . It is difficult to ascertain from the dissent whether the 1993 amendments returned Florida to the pre-1979 theory, or if this was accomplished by the 2003 amendments. The dissent seems to credit both. The 2003 amendments do not apply here since they were not effective until October 1, 2003, and, if Claimant’s hypertension has resulted in disability, his date of accident would be June 13, 2003, not the later date of MMI.


text:
    Rene James BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4878.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Rene James Bryant, pro se, Petitioner.
    Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Rene James Bryant is hereby afforded a belated appeal from the order of the circuit court denying postconviction relief in Clay County case number 78-200-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J, KAHN, and LEWIS, JJ., concur.


text:
    James J. PRICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5554.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    James J. Price, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and James J. Price is hereby afforded a belated appeal from the order denying postconviction relief in Escambia County Circuit Court case numbers 2002-CF-005931-A, 2003-CR-000236, 2003-CR-000237, and 2003-CR-000289-K. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., KAHN, and LEWIS, JJ., concur.


author: POLEN, J.

text:
    Louis G. NAVELLIER and Wendy M. Navellier, Petitioners, v. TOWN OF MANALAPAN, Respondent.
    No. 4D07-264.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Jose M. Ferrer of Baker & McKenzie LLP, Miami, for petitioners.
    Trela J. White and R. Max Lohman of Corbett & White, P.A., Lantana, for respondent.
   POLEN, J.

The above-styled petition for writ of cer-tiorari is hereby dismissed as untimely. See Fla. RApp. P. 9.100(c)(1); Capone v. Fla. Bd. of Regents, 774 So.2d 825, 826 (Fla. 4th DCA 2000).

Petitioners argue we should deem their petition timely filed (the last day for filing was Friday, January 19, 2007, and it was not filed until Monday, January 22) because they were delayed in being able to timely file, inter alia, by the closing of the courts for the Christmas and New Year’s holidays. The English dramatist John Webster noted that “Christmas Comes but Once a Year.” Since long before the founding of this country (not to mention the Florida Rules of Appellate Procedure), however, we have all known it comes every year. We cannot, and should not, extend the jurisdictional time periods for filing this petition based on such an argument. The remainder of petitioners’ arguments is equally unpersuasive.

FARMER and HAZOURI, JJ., concur.

      . 1602. Collaboration with Thomas Dekker.


text:
    Pernell ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-826.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Pernell Anderson, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We dismiss the appeal from the denial on the merits of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) as a non-appealable order. See Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005); Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997).

We encourage the trial court to remove the routine language in its order stating that the defendant has the right to appeal this denial of a rule 3.800(c) motion. This language is incorrect. There is no right to appeal a denial of a rule 3.800(c) motion. See Howard.

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


author: WARNER, J.

text:
    Tony Lee VISGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-424.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Rehearing Denied May 8, 2007.
    Tony Lee Visger, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In denying appellant’s motion for postconviction relief, the trial court found, inter alia, that his counsel was not ineffective for advising appellant not to testify, as the revelation of his prior convictions would outweigh the necessity for his testimony. Because appellant’s testimony was the only evidence supporting his defense to the burglary that he was invited into the home, counsel’s admitted theory of defense, we conclude that counsel’s advice was deficient under the particular facts of this case. We therefore reverse.

According to the state’s witnesses, Matthew Farmer was on the porch at the residence of his girlfriend, Michelle Engle-hartt, and her roommate, Jackie Heyer. The women were sleeping in the house, as was a friend, John Goodwin. Matthew had his girlfriend’s gun because of trouble earlier in the day when an ex-boyfriend attacked Jackie and threatened Michelle. Around 3:30 a.m., appellant, whom Matthew did not know, appeared asking for the ex-boyfriend and for some cocaine. When appellant saw Matthew had a gun, he tried to take it away by fighting with Matthew. Without appellant noticing, Matthew was able to unload the gun as appellant was choking him. Appellant then obtained control over the gun.

Appellant dragged Matthew inside the house and pistol-whipped Michelle and John, who were dozing on the couch, to wake them and ask them for cocaine. Michelle asked for her gun back, and appellant gave it to her. Matthew, who was sitting between Michelle and John, gave Michelle the bullet or clip he had removed from the gun, telling her he thought she would need it. Matthew and John then wrestled with appellant, trying to get him out of the house, but they were small and he was much larger. While appellant had both men in a headlock, Michelle threatened to shoot him if he did not leave. He lunged toward her and she shot him in the chest, seriously wounding him.

Michelle then ran to a local store to call the police, explaining that there was an intruder in her house whom she shot with her own gun. This call was not made until around 4:40 a.m. Michelle testified that she did not give appellant permission to enter her house. When police officers arrived at the scene, they found marijuana in the house.

Matthew also confirmed he never gave appellant permission to enter the house, or to hit him. After the shooting, Matthew climbed up on the roof, where he passed out. He said the police found him there around 8:30 or 9:00 in the morning. He understood Michelle and Jackie ran to a phone to call the police. Neither Jackie nor John testified at trial.

Appellant was appointed counsel and upon his first meeting, he explained his version of events to counsel. Appellant was walking home and saw a man — Matthew — shooting a gun and asked if he was trying to shoot him. They laughed and talked for a while, and then appellant asked Matthew if he knew where to get cocaine. Matthew said Michelle might know and invited him into the house. Matthew talked to Michelle about getting appellant some cocaine, and Matthew reloaded the gun. While they were talking, Matthew asked appellant his name. Appellant replied, “Tony Lee” — giving his first and middle names. Michelle’s ex-boyfriend was named David Lee, and Matthew thought appellant was one of David Lee’s cronies. According to appellant, Matthew — not Michelle — immediately shot him, point blank. That was all appellant remembered until being transported to the hospital. Appellant did not know David Lee at the time of the shooting but later met him while in jail and learned of his connection. At the evidentiary hearing on postconviction relief, counsel confirmed that appellant told him all of this, except for Matthew shooting him instead of Michelle. Nevertheless, counsel admitted knowing that, according to appellant, he was invited into the house, and counsel also remembered appellant telling him about David Lee.

At trial, counsel put on no witnesses to support any defense. Instead he extensively cross-examined the state witnesses regarding conflicts in their testimony and prior inconsistent statements. He also attacked the state’s investigation of the case. In the end, appellant was convicted of burglary with a battery and simple battery.

In his motion for postconviction relief, appellant claimed counsel misadvised him that his testimony was not needed, and that if he did testify, the jury would learn of his prior conviction for aggravated battery. On the contrary, his testimony was needed because there was no way to put his version of events before the jury without it, particularly his invitation into the house, which would negate the burglary charge.

At the evidentiary hearing on the motion, counsel admitted that the theory of defense was that appellant was invited to enter Michelle’s home, in accordance with appellant’s version of the incident. He was under the impression at the hearing that neither Matthew nor Michelle testified at trial as to whether appellant was invited in, even though the trial transcript shows that each specifically stated appellant had no permission to enter the house. It was counsel’s belief that he could put the defense theory of consensual entry before the jury during closing argument, without any evidence to support it other than his argument that the state witnesses’ testimony was inconsistent and not credible. He also testified that he thought that the danger of placing appellant’s prior convictions before the jury far outweighed any necessity of the testimony to the defense. However, counsel did not know how many prior convictions appellant had. Counsel denied advising appellant that the jury would learn the nature of his prior convictions if he testified.

In its order denying the postconviction relief motion, among its factual findings the court noted that “[Counsel] testified that he advised Defendant not to testify because the jury may have found out about his prior convictions, which far outweighed the necessity of Defendant testifying.” The court found that trial counsel’s performance was not deficient in that his strategic decisions were reasonable, considering the totality of the circumstances. Moreover, the court found that even if counsel’s performance was deficient, appellant had not shown a reasonable probability that the outcome of the proceedings would be different. This appeal follows.

Most recently, our supreme court summarized the elements required to prove a claim of ineffective assistance of counsel in Morris v. State, 931 So.2d 821 (Fla.2006):

In order to establish a claim of ineffective assistance of counsel, a defendant must meet two requirements:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the first prong under Strickland, the defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. To establish the second prong under Strickland, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. When reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance claim, this Court gives deference to the trial court’s factual findings to the extent they are supported by competent, substantial evidence, but reviews de novo the trial court’s determinations of deficiency and prejudice, which are mixed questions of fact and law. See Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005).

Id. at 828.

It has been thoroughly established that “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted). “A reasonable, strategic decision is based on informed judgment.” Henry v. State, 862 So.2d 679, 685 (Fla. 2003) (citation omitted).

In this case, counsel testified that he and appellant agreed that their theory of defense to the burglary charge was that appellant was invited into the residence. At trial, counsel apparently thought that he could rely solely on the inconsistencies in the state’s witnesses’ stories to somehow support this defense theory. However, both Matthew and Michelle testified that appellant was not invited inside the dwelling. Therefore, when counsel told appellant that his testimony was not needed to support the defense, the advice was deficient. Without appellant’s testimony, there was no evidence or inferences from the admitted evidence to support the theory of invitation.

Furthermore, it is apparent from counsel’s testimony that he was most interested in not losing the “sandwich” in closing argument. Yet he would not have lost this advantage if appellant was his sole witness.

Although counsel also testified that he did not want appellant to testify for fear of the jury learning that appellant had prior convictions, the jury had already learned that Matthew Farmer was a convicted felon and there were drugs around the house, thus reducing any effect of appellant’s convictions on his credibility, as compared to that of the state’s witnesses.

We deem counsel’s advice to appellant regarding his decision to testify as deficient. Counsel failed to appreciate the fact that there was no evidence to support the defense theory that appellant was invited in when he advised appellant not to testify. Strategic decisions must be informed decisions, where the alternatives have been considered and rejected. Oc-chicone. Where those decisions are uninformed, counsel’s judgment may be deficient. That is the case here.

At the evidentiary hearing on the postconvietion relief motion, counsel also testified that he thought that part of appellant’s version of events was “preposterous.” He found it unbelievable that Matthew and Michelle thought appellant might be related to Michelle’s former boyfriend. Nevertheless, he admitted that he did not investigate this, even when appellant told him that he had met the former boyfriend in jail. Again, without investigating the defense, counsel cannot make an informed strategic decision. Occhicone.

As a part of the trial strategy, counsel also intended to attack the inconsistencies in the testimony of the witnesses and the lack of substantial investigation by the police. However, this strategy was not inconsistent with having appellant testify.

Furthermore, we find it unreasonable and deficient performance to believe that counsel could argue to the jury a theory that appellant was invited in -without any evidence whatsoever to support it and all the evidence clearly contrary to that theory. Such an argument amounts to sheer speculation. Closing argument is supposed to present the lawyer’s view of the evidence and all reasonable inferences which may be drawn from it. Unfortunately, the evidence in this case did not present any inference at all that appellant was invited into the premises. And when he mentioned his theory in rebuttal, it seemed pulled from thin air.

The question remains whether, but for the deficient performance by counsel, there is a reasonable probability that the results of the proceeding would be different. Strickland teaches us that:

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

466 U.S. at 695,104 S.Ct. 2052. The Court thus expressly rejected a “more likely than not” standard for evaluating whether counsel’s deficient performance altered the outcome of the case. Instead, as noted by the Fourth Circuit:

With respect to the prejudice requirement, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The level of certainty is something less than a preponderance; it need not be proved that counsel’s performance more likely than not affected the outcome. Instead, the petitioner need only demonstrate “a probability sufficient to undermine confidence in the outcome.”

Young v. Catoe, 205 F.3d 750, 759 (4th Cir.2000) (citations omitted).

Given the highly unusual circumstances involved in this case and the obvious inconsistencies with respect to the evidence actually presented, we think that appellant has demonstrated a reasonable probability sufficient to undermine confidence in the outcome. Both Matthew’s and Michelle’s testimony were filled with inconsistencies from their prior statements, including inconsistencies as to whether appellant actually hit Michelle at all. It also strains credulity to think that appellant would give back a gun he believed to be loaded to the people with whom he was just fighting, which is what Matthew and Michelle both testified to. Further, the fact that appellant arrived at the house at around 3:30, yet the 911 call to the police after the shooting came at 4:42, over an hour later, suggests that more occurred at the house than the events described by Matthew. A longer period of time would be consistent with appellant’s account that Matthew invited him into the house for the purpose of obtaining drugs, and Matthew’s testimony is somewhat consistent with this, as Matthew testified that appellant kept asking for drugs. Finally, Matthew’s escape to the roof of the house after the shooting may appear more consistent with having been involved in an attack on the appellant rather than the other way around. All of this raises at least a reasonable probability that counsel’s deficient performance affected the outcome of the proceeding.

Based upon- our review of the trial testimony together with the testimony at the evidentiary hearing, and considering our de novo standard of review of the prejudice prong, we conclude that both prongs of the Strickland test have been met. We therefore reverse and remand for a new trial.

SHAHOOD and TAYLOR, JJ„ concur.


text:
    Anthony DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2575.
    District Court of Appeal of Florida, First District.
    April 12, 2007.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Khianthalat v. State, 935 So.2d 583 (Fla. 2d DCA 2006), review granted, 32 Fla. L. Weekly i, 948 So.2d 759 (Fla.2007).

BROWNING, C.J., BENTON and LEWIS, JJ., concur.


author: VILLANTI, Judge.

text:
    Bradford McKUNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4963.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
   VILLANTI, Judge.

Bradford McKune appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the post-conviction court’s denial of claim 2 without comment. We reverse the denial of claims 1(a) and 1(b) and remand for further proceedings.

McKune pleaded no contest to two first-degree felony counts of sexual activity with a minor, one first-degree misdemeanor count of domestic violence battery, and one first-degree misdemeanor count of possession of marijuana. The trial court sentenced McKune to eighteen years in prison followed by five years of sex offender probation on each of the sexual activity counts and to time served on the remaining counts.

In claim 1(a), McKune alleged that he would not have pleaded no contest and would have insisted on going to trial but for counsel’s threats to withdraw unless McKune pleaded guilty or no contest. The postconviction court primarily based its denial on the transcript of a change of plea hearing, where McKune gave “yes” and “no” answers during his plea colloquy. However, this court has repeatedly held that these types of answers are not sufficient on their own to conclusively refute claims of ineffective assistance of counsel. See Jones v. State, 846 So.2d 1224, 1226-27 (Fla. 2d DCA 2003); Smith v. State, 826 So.2d 322, 323 (Fla. 2d DCA 2002); Rivera v. State, 746 So.2d 542, 542 (Fla. 2d DCA 1999). The postconviction court also made passing reference to McKune’s prior record based upon an internet printout which it concluded also supported summary denial because this demonstrated McKune “was not wholly unfamiliar with the legal system.” However, a prior conviction or sentence of record alone cannot conclusively establish McKune understood or received an adequate plea colloquy in those cases, nor does it ipso facto conclusively establish the validity of the current plea as apparently opined by the postconviction court. Moreover, this type of information should be used for impeachment purposes at an evidentiary hearing.

In claim 1(b), McKune claimed that he would not have pleaded no contest but for counsel’s misadvice that he would face a potential “life sentence” if the case went to trial. Although McKune was not charged with a life felony and the maximum sentence for his first-degree felony was thirty years, the postconviction court based its summary denial on the cumulative prospect that McKune “was facing a possibility of a total of 62 years imprisonment if convicted at trial.... At defendant’s age [34 years], ... [this is] the equivalent of a life sentence.” While this may be a practical assessment of the potential effect of a maximum penalty if imposed, the postcon-viction court’s subjective interpretation of McKune’s reference to “life sentence” discounts any reference McKune may have meant that, here, “life” was not a legal sentencing option. Regardless, the post-conviction court cannot objectively make this assessment without attaching record documents, such as the written plea agreement which might demonstrate that McKune was in fact accurately informed of his potential sentence, or without holding an evidentiary hearing if no such record exists. Thus, the limited record before this court is insufficient to conclusively refute this claim.

Accordingly, we reverse and remand for reconsideration of claims 1(a) and 1(b). On remand, the postconviction court shall either attach those portions of the record that conclusively refute McKune’s claims or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and DAVIS, JJ., Concur.


text:
    JAS PROPERTY MANAGEMENT GROUP, LLC, and Richard L. Singletary, Appellants, v. M & H PROFIT, INC., Appellee.
    No. 1D07-0295.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Bill R. Hutto of Hutto & Bodiford, Panama City, for Appellants.
    Joseph A. Morris of Morris, Cary, Andrews, Talmadge, Jones & Driggers, LLC, Dothan, Alabama, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s motion to relinquish jurisdiction and concession in the answer brief, the order compelling the parties to participate in arbitration is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    Charles Litton MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6054.
    District Court of Appeal of Florida, First District.
    ' April 16, 2007.
    Charles Litton Morris, pro se, Petitioner.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the May 15, 2006, judgment and sentence in Escambia County Circuit Court case numbers 05-4390-CFA and 05-4848-CFA. 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). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

KAHN, POLSTON, and THOMAS, JJ„ concur.


text:
    Anthony Dewayne BETTIES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5933.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Patrece C. Cashwell of Law Office of Patrece C. Cashwell, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the May 8, 2006, judgment and sentence in Escambia County Circuit Court case number 05-4458-CFA. 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). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

KAHN, POLSTON, and THOMAS, JJ., Concur.


text:
    Curtis BERRING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6126.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Curtis Berring, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the July 7, 2006, judgment and sentence in Alachua County Circuit Court case number 01-2006-CF-0373-A. 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). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    Michael ELFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5151.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Michael Elford, pro se, Appellant.
    Bill McCollum, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s concession of error and motion to remand are found to be well-taken. The circuit court’s final order is hereby reversed and the cause remanded to the lower tribunal to consider the reply filed by appellant before issuing a ruling on the merits of the petition filed below. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996).

REVERSED and REMANDED.

KAHN, POLSTON, and THOMAS, JJ., Concur.


text:
    M.G., Mother of D.G. and M.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-2524.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2007.
    Carole Suzanne Bess, Cocoa, for Appellant.
    Charles D. Peters, Orlando, for Appellee Department of Children and Families.
    Mercedes E. Scopetta, Orlando, for Ap-pellee Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED. See S.S. v. Dep't of Children and Family Serv., 891 So.2d 1068 (Fla. 2d DCA 2004).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    Matthew FELIX, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-399.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2007.
    Matthew Felix, Miami, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Summers v. State, 747 So.2d 987 (Fla. 5th DCA 1999).

PLEUS, C.J., THOMPSON and MONACO, JJ., concur.