author: CANADY, Judge.

text:
    Robert Patrick SHARKEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-967.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
   CANADY, Judge.

Robert Patrick Sharkey appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) or, in the alternative, pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Sharkey raised three claims for relief. The postconviction court concluded that Sharkey failed to raise any claims cognizable under rule 3.800(a) and also denied relief pursuant to rule 3.850. We affirm the postconviction court’s summary denial under rule 3.800(a). We affirm the post-conviction court’s summary denial pursuant to rule 3.850 as it relates to claims one and three because they are without merit, but we reverse as to claim two. Because Sharkey’s motion was properly sworn pursuant to Armey v. State, 880 So.2d 1269 (Fla. 2d DCA 2004), and claim two is not refuted by any portion of the record, we reverse the order denying the motion and remand to the postconviction court for further consideration of claim two pursuant to rule 3.850.

Affirmed in part, reversed in part.

CASANUEVA and WALLACE, JJ„ Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Miguel ORDUNO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-201.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
   SILBERMAN, Judge.

Miguel Orduno appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s dismissal because Orduno’s motion is facially insufficient.

Orduno filed a motion seeking relief from his 1989 plea and conviction for burglary of a dwelling. Orduno alleged that he had been misadvised as to the immigration consequences of his plea and that deportation proceedings had been initiated against him. He did not allege when he first learned of the threat of deportation, but he stated that he was raising his post-conviction issues within two years of learning of the “immigration consequences of his plea.”

In Peart v. State, 756 So.2d 42, 46 (Fla. 2000), the Florida Supreme Court held that a defendant shall have two years from “when the defendant has or should have knowledge of the threat of deportation” to file pleadings alleging a violation of Florida Rule of Criminal Procedure 3.172(c)(8). Because Orduno did not allege when he first gained knowledge of the threat of deportation based on his plea, his motion is facially insufficient. See Peart, 756 So.2d at 46. We therefore affirm the dismissal of Orduno’s motion without prejudice to his filing a facially sufficient rule 3.850 motion. See Alexis v. State, 845 So.2d 262 (Fla. 2d DCA 2003). Any such motion shall not be considered successive.

Affirmed.

CASANUEVA and WALLACE, JJ., Concur.


text:
    Jason D. KAFUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1425.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
   SILBERMAN, Judge.

Jason D. Kafus appeals the postconviction court’s summary denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his rule 3.850 motion, Kafus raised ten claims of ineffective assistance of counsel. The postconviction court ordered the State to respond to the motion. In its response, the State identified and addressed claims one and two and attached supporting documents from the record. However, the State did not address claims three through ten. The postconviction court then denied the motion for post-conviction relief, specifically referring to claims one and two and adopting the arguments contained in the State’s response.

We affirm the denial of claims one and two without further comment. However, because the postconviction court did not rule on claims three through ten, we reverse and remand for consideration of those claims. On remand, if the postcon-viction court summarily denies relief, it must set forth its reasoning and attach those portions of the record that conclusively refute the claims. See Wilford v. State, 832 So.2d 924, 926 (Fla. 2d DCA 2002).

Affirmed in part, reversed in part, and remanded.

CASANUEVA and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Robert GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-720.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The state properly concedes that, as a result of a scrivener’s error, the judgment and sentence in Case No. 91-7125 erroneously indicates that appellant was sentenced to prison on a violation of probation charge as to both Counts II and III, rather than solely as to Count III. However, appellant’s claim that he is entitled to additional jail credit for time served is without merit. Echols v. State, 660 So.2d 782 (Fla. 4th DCA 1995).

REVERSED and REMANDED for Correction of Scrivener’s error.

THOMPSON, MONACO and EVANDER, JJ., concur.


author: GRIFFIN, J.

text:
    Jessica B. POPLAWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1462.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.
    Jessica B. Poplawski, Ocala, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Petitioner.
   GRIFFIN, J.

Petitioner, Jessica B. Poplawski, seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141.

On June 16, 2005, petitioner pled guilty to two counts of manslaughter with a firearm. The same day, she was sentenced to fifteen years in the Department of Corrections, followed by ten years of supervised probation. On December 6, 2005, petitioner filed a pro se notice of appeal which was dismissed, sua sponte, for failure to provide a certified copy of an order of insolvency or failure to pay the filing fee.

On April 28, 2006, petitioner filed her petition for belated appeal, stating that when she initially filed a complete notice of appeal packet in December 2005, she included a motion to be declared insolvent, but she sent the original to this court with a copy to the lower court.

We deny petitioner’s petition for writ of habeas corpus both for the reasons given when the appeal was dismissed and because petitioner has not addressed the reason for the apparently untimely filing of the notice of appeal in this case. Petitioner was sentenced on June 16, 2005, but she did not file a notice of appeal until November 30, 2005.

PETITION DENIED.

LAWSON and EVANDER, JJ„ concur.


author: EVANDER, J.

text:
    Thomas Michael BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-514.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.
    Thomas Michael Barnett, East Palatka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

In light of the Department of Corrections’ apparent recent denial of appellant’s request for administrative relief, we vacate the trial court’s denial of appellant’s motion to enforce plea agreement and remand this cause for reconsideration by the trial court. The trial court may either resen-tence Barnett consistent with the intent of the plea agreement after considering the Department of Corrections forfeiture of gain time or allow him to withdraw his plea. The Department of Corrections’ forfeiture of gain time cannot be countermanded by the court, but neither can that forfeiture thwart a plea agreement. Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Edward BAYMON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3442.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Edward Baymon challenges the denial of his motion to suppress, which he preserved for appeal when pleading guilty to possession of cocaine and marijuana and to disorderly conduct. We reverse because the contraband was seized in a search incident to an unlawful arrest.

At the suppression hearing, Deanna Es-tep testified that Baymon was irate and loud with her, so she called the police. Deputy Bennett testified that he responded to a call about a neighborhood disturbance. When he arrived, Baymon walked toward him “aggressively with his hands in the air.” Baymon then put his hands in his pockets and continued approaching. The deputy threatened to use force if Bay-mon did not stop and show his hands. The deputy then told Baymon he was being detained, and Baymon agreed to sit in the back of the patrol car. After Deputy Bennett took a statement from Estep, he arrested Baymon for disorderly conduct. Searches incident to the arrest revealed two bags of drugs.

Baymon pleaded to the charges, specifically reserving his right to appeal the denial of his motion to suppress. The court and the State both agreed that the motion was dispositive, and the State does not argue otherwise on appeal.

An officer is authorized to make a warrantless arrest for a misdemeanor only when it is committed in the officer’s presence. § 901.15(1), Fla. Stat. (2004); Nickell v. State, 722 So.2d 924 (Fla. 2d DCA 1998). In this case, Deputy Bennett did not observe conduct constituting the crime of disorderly conduct. Although the deputy observed Baymon yelling and screaming, there was nothing to suggest that Baymon was inciting an immediate breach of the peace or was yelling the equivalent of “fire” in a crowded movie theatre. See State v. Saunders, 339 So.2d 641 (Fla.1976) (limiting disorderly conduct statute, when applied purely to speech, to fighting words and false words that create a clear and present danger to others); see also Miller v. State, 780 So.2d 197 (Fla. 2d DCA 2001); C.P. v. State, 644 So.2d 600 (Fla. 2d DCA 1994). Baymon’s arrest was unlawful. Therefore, the law mandated suppression of the evidence seized in any search performed incident to that arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Reversed.

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


author: FULMER, Chief Judge.

text:
    In re COMMITMENT OF William CAMPER. William Camper, Appellant, v. State of Florida, Appellee.
    No. 2D03-1053.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
    James Marion Moorman, Public Defender, and Debra K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

William Camper challenges his involuntary civil commitment as a sexually violent predator pursuant to the “Jimmy Ryce Act,” sections 394.910-.931, Florida Statutes (2002). He argues that, because he was mentally incompetent and could not participate in his defense, the trial court erred in going forward with the civil commitment proceedings. We reverse based on our opinion in Branch v. State, 890 So.2d 322 (Fla. 2d DCA 2004), which recognized a Ryce Act respondent’s procedural due process right to be competent in order to assist counsel in challenging facts offered by the State that have not been previously admitted or tested in a trial.

It is undisputed in this case that at the time of the commitment trial Camper was mentally incompetent under the standards governing competency in criminal cases. Camper was unable to appreciate the nature of the proceedings, to assist his counsel, or to manifest appropriate courtroom behavior. See Fla. R.Crim. P. 3.211.

In Branch, which also involved a mentally incompetent respondent in a Ryce Act proceeding, a psychologist who testified for the State relied on uncharged sexual assaults documented in Department of Corrections records to conclude that Branch engaged in a pattern of deviant sexual activity and so had a mental abnormality sufficient to qualify him as a sexually violent predator. 890 So.2d at 324. In reversing for a new commitment trial, this court recognized that Branch had a procedural due process right to challenge factual assertions contained in the police reports and other documents that were pertinent to the expert’s formulation of his opinion where those factual assertions had neither been admitted through a plea nor tested at trial. Id. at 327. We concluded that in order to meaningfully exercise his due process right, Branch had to be competent so that he could assist counsel in challenging the alleged facts and testify on his own behalf:

Like defendants in postconviction proceedings, respondents in Ryce Act proceedings have no due process right to be competent when the State’s evidence supporting commitment is entirely of record. However, when the State relies on evidence of prior bad acts supported solely by unchallenged and untested factual allegations to establish any element of its case, the respondent has a due process right to be competent so that he or she may consult with counsel and testify on his or her own behalf.

Id. at 328.

The dispute between the parties on appeal in the present case centers on the nature of the evidence admitted against Camper at his trial. The State contends the evidence was of record, and unlike the evidence in Branch, it did not consist of untested factual allegations such that Camper’s input or ability to testify was required in order for his counsel to potentially challenge the allegations. We conclude that the evidence in this case fell into both categories. The State relied in part on convictions of record; however, a portion of the evidence presented and relied on by the experts was previously untested.

Three witnesses testified at trial for the State, Drs. Brown and Raymond, both psychologists, and Camper’s niece. Dr. Brown testified that Camper suffers from “schizoaffective, which is similar to schizophrenia.” She also diagnosed him with alcohol dependence and pedophilia at the time she did her initial evaluation, although she did not presently diagnose him with pedophilia because it seems that he suffers from pedophilia only when he is under the influence of alcohol.

Dr. Brown testified that she interviewed Camper in 2000, more than two years before the trial. In forming her opinion, she relied on the interview and information contained in the Department of Children and Families’ file, which had arrest records, violation of probation records, Department of Corrections records, and medical records. She also reviewed several recent depositions. Camper’s first sexual offense was for lewd and lascivious conduct against his nine-year-old niece in 1986. He entered a plea to this offense and was sentenced in 1989. The arrest report indicated that he had tried to kiss his niece and touched her crotch on the outside of her clothes. He was intoxicated at the time. The report indicated that there had been two occasions of inappropriate touching. However, according to the niece’s recent deposition, the abuse had been going on for a number of years, from when she was three or four until she was nine. Camper had admitted to Dr. Brown that he touched his niece, but he said the touching had been going on for a few months. According to the doctor, Camper did not consider the touching to be sexual abuse because his niece was still a virgin. Dr. Brown relied on the additional information provided in the niece’s deposition in forming her opinion.

Dr. Brown also considered records indicating that Camper violated his probation in 1989 because of inappropriate behavior with an adult female. However, although the violation records indicate that Camper admitted he violated his probation, they do not indicate whether the admission was based on the allegation regarding the inappropriate behavior, for which apparently there was no conviction, or an additional allegation of absconding. Camper was unable to assist his counsel in clarifying this issue during the Ryce Act trial or further developing the facts underlying the inappropriate behavior allegation. Upon revocation of his probation, Camper was sentenced to three years in prison. He was released in 1990.

. Dr. Brown next addressed a sex offense Camper committed with a thirteen-year-old boy in 1993. Camper was convicted of lewd and lascivious conduct for touching the boy and received a sentence of seven years in prison. Dr. Brown relied on facts in the police report of this offense in rendering her opinion, including the fact that Camper was intoxicated at the time of the offense. She testified that at the time of the police report, Camper did not accept responsibility for this act and that he denied committing the offense when she initially interviewed him. She noted that in his deposition, Camper admitted the offense. This deposition was taken one month prior to the Ryce Act trial. When asked what Camper said in his deposition that he did to the boy, Camper’s counsel objected based on Camper’s incompetence at the time of the deposition. The objection was overruled.

Camper was conditionally released from his seven-year sentence but violated the release terms by consuming alcohol and was sent back to prison to finish his sentence. Since then, he has not been released into the community. Dr. Brown stated that Camper’s inability to refrain from consuming alcohol was a significant fact in rendering her opinion as to whether Camper is likely to reoffend.

Dr. Brown testified that Camper’s mental disorder affects his emotional or volitional control to the point where he has serious difficulty controlling his behavior. This behavior predisposes him to commit acts of sexual violence, and he poses a menace to society if not committed for long-term care. Camper’s propensity to reoffend sexually is affected, in part, by his inability to refrain from alcohol use. He is likely to reoffend because of his schizoaf-fective disorder. He cannot be effectively treated for his alcohol abuse because of this disorder, and he does not have a strong supportive social environment in which to live if released. Dr. Brown noted that Camper does not sexually act out when he is properly medicated. His acting out sexually is attributable to his schi-zoaffective disorder and alcohol dependence.

On cross-examination, Dr. Brown testified that her current diagnosis was based on her 2000 interview of Camper and her review of current records. She acknowledged that, other than the depositions, she did not know who wrote the records she reviewed or where the information came from that was reflected in the records. Dr. Brown further testified that when she interviewed Camper in prison in October 2000, she did a typical mental status examination and found him to be competent. He was medicated at the time. However, it was her opinion that Camper was not competent at the time he gave his recent deposition. Dr. Brown stated that Camper’s performance in his deposition did not impact her diagnosis of his mental disorder or whether he is likely to reoffend. It did strengthen her opinion because it offered additional information that he is currently continuing to exhibit symptoms of active schizoaffective disorder.

Camper’s niece next testified that Camper first touched her in a sexually inappropriate manner when she was two or three. This continued through 1986 when she was nine. At that time, the police were contacted, and Camper was charged with a lewd and lascivious act. When asked to describe generally what he used to do to her, the niece testified that Camper would put his finger in her vagina, touch and kiss her breasts and vagina, and on one occasion he made her touch his penis. When the abuse occurred, Camper was drinking and was not taking his medication. When he was on his medication and not drinking he was a totally different person and did not touch her, but it seemed that he was drunk every day.

Dr. Raymond testified that Camper has several diagnoses, the major one being pedophilia with sexual attraction to both sexes. He also suffers from chronic undifferentiated schizophrenia and alcohol abuse, which was currently in remission due to confinement, and is possibly mildly mentally retarded. In forming his opinion, the doctor used Camper’s prison file, medical file, two psychiatric evaluations done as to his competency, Camper’s deposition, and doctors’ depositions concerning his competency.

In Camper’s criminal history, Dr. Raymond found three arrests for sexually related offenses to be significant. First, the 1986 conviction for lewd and lascivious conduct involving Camper’s niece indicated Camper met the criteria for pedophilia. It also indicated some sexual impulsivity. After hearing the niece testify in this trial, the doctor realized the sexual abuse was much more significant than the one behavior underlying the single conviction, and he stated that this testimony strengthened his opinion. The second arrest noted by Dr. Raymond occurred in 1989 when Camper was charged with burglary and battery on a woman. As a result, Camper’s probation was violated, and this showed his inability to control his sexual impulses according to Dr. Raymond. It appears that the information regarding this arrest is contained in the incomplete violation records, which reflected an allegation of inappropriate behavior with an adult female for which no conviction appears and for which there is no record that this allegation served as the basis for the revocation of Camper’s probation. The third arrest Dr. Raymond considered occurred when Camper was forty-nine. This arrest led to Camper’s plea of guilty to lewd and lascivious conduct on a thirteen-year-old boy. This was significant because of the age of the child, because Camper was delusional at the time, and because he was drinking during the sexual offense. The doctor noted that Camper’s alcohol abuse was related to all of the events. He also noted that in Camper’s deposition, he said that he has had hallucinations since he was eleven and that he has received disability for his schizophrenia since age twenty-two. He has a strong recurrent theme of sexuality through his hallucinations, which still continues.

In rendering his opinion that Camper is likely to reoffend, Dr. Raymond observed that Camper has not been able to complete probation or controlled release periods. He has not accepted responsibility for his sexually related behavior and he has not consented to treatment while at the civil commitment center. Other risk factors making him likely to reoffend are having a stranger victim, offending in a public place, having a wide range of victims (both children and adults, males and females), offending while on probation, seeing himself as having no problem, having a male victim, having an unrelated victim, having disciplinary reports while in prison, having a pattern of substance abuse, having offended against someone thirteen to fifteen years old, and failing to take his medications regularly.

On appeal, counsel for Camper notes that Camper had pleaded to two convictions of record for sexual offenses, one involving Camper’s niece and one involving a boy. Yet, in this Ryce Act proceeding, the experts relied on testimony given by Camper’s niece in a deposition and at trial indicating that the abuse against her took place over a number of years. This was untested evidence that extended beyond the facts of the 1986 conviction. Also, the boy victim’s deposition, upon which both doctors relied, was untested evidence of abuse that extended beyond the record facts of the conviction involving the boy. Counsel further argues that the deposition of Camper, taken at a time when he was not competent, was improperly relied on by the experts in forming their opinions. We agree. The evidence derived from the several depositions used in this case and the niece’s in-court testimony exceeded the scope of the record facts of the two convictions and placed before the jury facts that have never been admitted by plea or established by trial. The experts also relied on the 1989 allegation that Camper violated his probation by an arrest for engaging in inappropriate behavior with an adult female even though no conviction resulted from the arrest and the violation records do not identify whether this allegation was proven at the revocation proceeding.

We hold that the rationale of Branch applies to not only the untested hearsay evidence that was presented but also to the testimony at trial concerning untested factual allegations. Because there was a significant amount of untested evidence presented that was outside the scope of the record facts documented by his prior sex-related convictions, Camper had a procedural due process right to be competent in order to consult with counsel and testify on his own behalf. See Branch, 890 So.2d at 329. “Civil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions.” See State v. Goode, 830 So.2d 817, 825-26 (Fla.2002). The violation of Camper’s right to due process requires reversal. Accordingly, we reverse and remand for a new commitment trial once Camper is restored to competency or for a new commitment trial in which the State presents only that evidence which will not violate Camper’s right to due process should he not be restored to competency.

Reversed and remanded.

NORTHCUTT, J., and DEMERS, DAVID A., Associate Judge, Concur.

      . Although the rules of criminal procedure do not apply in Ryce Act proceedings, the experts who evaluated Camper’s competency used the criminal standards because Camper’s liberty interests were at stake and there are no articulated standards for assessing competency in civil proceedings.


author: ALTENBERND, Judge.

text:
    Samie Sims SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2058.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Samie Sims Smith appeals his judgment and sentence for aggravated battery. Because the jury instruction on self-defense constituted fundamental error under established case law, we reverse.

Mr. Smith was charged with aggravated battery for stabbing Germaine Ross. At trial, Mr. Smith’s sole defense was that he stabbed Mr. Ross in self-defense. It was undisputed that the incident between the two men began when Mr. Ross confronted Mr. Smith and accused him of slapping Mr. Ross’s mother. During the ensuing brawl, Mr. Ross punched Mr. Smith in the jaw with enough force that he broke some of Mr. Smith’s teeth. According to Mr. Ross, he did this because Mr. Smith grabbed him by the throat and would not let go. Soon after Mr. Ross punched Mr. Smith, Mr. Smith stabbed Mr. Ross. Mr. Ross claimed Mr. Smith stabbed him with a knife that Mr. Smith must have retrieved from his car when the two first exchanged words. Mr. Smith claimed that he had been working on his car with a screwdriver and that he used this screwdriver to stab Mr. Ross.

At the close of the evidence, the trial court instructed the jury, in pertinent part: “[T]he use of force likely to cause death or great bodily harm is not justifiable if you find Samie Sims Smith was attempting to commit, committing or escaping after the commission of aggravated battery.” It is well established that this standard instruction is not appropriate unless the defendant is charged with an independent forcible felony, in addition to the offense for which he claims self-defense. See Martinez v. State, 933 So.2d 1155, 1157-58, 2006 WL 1331498 (Fla. 3d DCA May 10, 2006) (rehearing pending) (citing cases from each district that hold the giving of this instruction is error). As explained in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), the instruction is “circular and confusing to the jury” because it improperly instructs the jury that the very act that the defendant seeks to justify as an act of self-defense prevents that same act from being an act of self-defense. Id. at 1266.

Mr. Smith’s counsel did not object to this instruction. This court has, however, consistently held that this instruction “essentially negates the defense and constitutes fundamental error when a defendant committed a single act and claimed self-defense.” Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004) (citing Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004)); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004). Until recently, every case addressing this issue had concluded the same. See Martinez, 933 So.2d at 1166 n. 2 (Green, J., dissenting).

In Martinez, however, a majority of a panel from the Third District concluded, based upon the facts of the case before them, that the giving of this instruction was not fundamental error. In reviewing the various cases on the subject, the majority concluded that “the appellate courts consistently have found fundamental error in those cases where the erroneous instruction negates the defendant’s sole defense.” Id. at 1166. Because the defendant in Martinez had presented numerous defenses in addition to self-defense and because the evidence presented regarding the various wounds inflicted on the victim was inconsistent with the defendant’s theory of self-defense, the majority concluded that no fundamental error occurred. Id. at 1167.

In this case, we do not need to decide whether we agree with all of the discussion presented in Martinez regarding fundamental error. Under this court’s prior precedent and the reasoning in Martinez, fundamental error occurred in this case. Self-defense was the only defense Smith asserted at trial. There was evidence to support that defense, and it was the sole focus of the closing arguments at trial. Based upon our precedent and the record in this case, we conclude that the giving of this jury instruction was fundamental error.

Reversed and remanded for a new trial.

SALCINES and LaROSE, JJ., concur.


text:
    Jack SOBOTA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1143.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.

      Roger D. Futerman and Sean B. Kelly of Roger D. Futerman & Associates, Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Chief Judge.

Jack Sobota appeals from his conviction for driving under the influence with serious bodily injury. Because the trial court erred in allowing the State to admit test results from a legal blood draw through a toxicologist who was not involved with the actual testing, we reverse and remand for a new trial.

At trial, the State called Robin Neuen-schwanger, a toxicologist at the Pinellas County Forensic Lab. Her position entailed analyzing autopsy specimens for the Medical Examiner’s Officer and testing blood samples for the DUI cases in Pinel-las and Pasco Counties. Neuenschwanger testified that she worked under Ron Bell, who had been the chief toxicologist and had retired “this past summer.”

Citing Crawford v. Washington, 541 U.S. 86, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and the Confrontation Clause, the defense objected to Neuenschwanger testifying to the results of blood testing performed by Mr. Bell and reported on both a “Toxicology Report” and a document entitled “Florida Department of Law Enforcement Alcohol Testing Program!,] Blood Alcohol Analyses Affidavit.” The defense asserted that the blood test results were testimonial because the blood draw was requested by law enforcement and the blood was analyzed for the purpose of obtaining trial evidence for the prosecution. Further, the defense asserted that Mr. Bell was available to testify and “the State continues to use him in other cases as a witness.”

The State took the position that the affidavit was admissible under an exception to the hearsay rule for public records and reports. The trial court ruled the testimony of Neuenschwanger did not violate the Confrontation Clause because the blood test results were nontestimonial and qualified as business records.

Our resolution of the issue presented in this appeal is governed by this court’s opinion in Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005), review granted, 924 So.2d 810 (Fla.2006). In Johnson, this court discussed Crawford and held that “an FDLE lab report prepared pursuant to police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record.” Id. at 7. This court further concluded that the State did not establish the unavailability of the witness who prepared the lab report. Id. at 8.

Applying Johnson’s holding to the present case, we conclude that the blood test results were testimonial hearsay. Because the State did not establish the unavailability of Mr. Bell, admission of the test results violated the Confrontation Clause. As we recognized in Johnson, our holding on this issue presents a question of great public importance. Therefore, we certify to the supreme court the following question, which is substantially similar to the question certified in Johnson:

DOES ADMISSION OF A TEST RESULT FROM A LEGAL BLOOD DRAW VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V. WASHINGTON, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), WHEN THE TOXICOLOGIST WHO PERFORMED THE BLOOD TEST DOES NOT TESTIFY?

Reversed and remanded for a new trial.

DAVIS, J., and FUENTE, WILLIAM, Associate Judge, Concur.

      . We reject without discussion the first issue raised concerning the failure of the State to prove a corpus delicti before admission of Sobota's statements.


text:
    STATE of Florida, Appellant, v. John Harrington HULL, Appellee.
    No. 2D05-3296.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard E. Macdonald, Assistant Attorney General, Tampa, for Appellant.
    Christina C. Mesa, Tampa, for Appellee.
   NORTHCUTT, Judge.

The State charged John Harrington Hull with aggravated battery. The circuit court ordered the prosecution dismissed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) based on Hull’s claim that he acted in self-defense. We reverse.

One night in July 2003, Brad Bess was intoxicated and tried to gain entry to an apartment under the mistaken belief that he lived there. Hull opened the door and stepped out. He blocked the doorway and argued with Bess, who would not leave. Hull pushed Bess away, and Bess stumbled backward several feet. The two men then struggled, and the altercation took them out to the parking lot of the apartment complex. Hull hit Bess once and, when he did not fall, hit him twice more until he fell to the ground, bleeding and subdued. Hull then dragged Bess out of the parking lot. The police arrived to find Bess lying in front of Hull’s apartment. He had suffered significant injuries, including a fractured orbit and a laceration on his forehead. An upstairs neighbor reported hearing a loud knocking and an escalating argument in which someone who sounded drunk was refusing to leave.

Hull filed a motion to dismiss under rule 3.190(c)(4) alleging the foregoing but claiming that he acted in self-defense. The State filed a traverse and an amended traverse, disputing the validity of the self-defense claim.

“A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other’s imminent use of unlawful force.” § 776.012, Fla. Stat. (2003). Although Hull argues that the facts are undisputed, the legal components of his self-defense claim present questions for the jury. See Lusk v. State, 531 So.2d 1377, 1381 (Fla. 2d DCA 1988) (“The questions of ‘reasonable belief and the ‘amount of force necessary’ were factual determinations to be made by the jury after a proper instruction.”); see also State v. Green, 400 So.2d 1322, 1323 (Fla. 5th DCA 1981) (“If, based on the undisputed facts, a jury question exists, a(c)(4) motion to dismiss should not be granted.”).

Therefore, the circuit court erred by granting the motion to dismiss. See State v. Wall, 445 So.2d 646 (Fla. 2d DCA 1984) (reversing dismissal when State disputed defendant’s claim that he did not act unlawfully); State v. Feagle, 600 So.2d 1236 (Fla. 1st DCA 1992) (reversing dismissal when State disputed existence of ultimate fact); State v. Williams, 400 So.2d 1326, 1328 (Fla. 4th DCA 1981) (reversing dismissal where State disputed whether defendant’s actions were necessary to prevent death or great bodily injury, which “constitute[d] the heart of [defendant’s] justification for self-defense”).

Reversed and remanded for further proceedings.

SALCINES and LaROSE, JJ., Concur.


text:
    ENVIROCYCLE SOLUTIONS, INC., and Daniel J. Longworth, Appellants, v. CARPET INN OF SARASOTA, INC. a/k/a Carpet Inn, Appellee.
    No. 2D05-5618.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.

      Steven C. Henry, Corrales, NM, for Appellants.
    W. Andrew Clayton, Jr., of Johnson, Browning & Clayton, Sarasota, and Susan J. Silverman, Sarasota, counsel for Appel-lee.
   FULMER, Chief Judge.

Carpet Inn sued Envirocycle Solutions and Daniel J. Longworth under chapter 517, Florida Statutes (1999 and 2000), the Florida Securities and Investor Protection Act. Carpet Inn prevailed on summary judgment. We reverse only the award of attorney’s fees to Carpet Inn because the trial court failed to conduct an evidentiary hearing. In all other respects, we affirm.

Envirocycle does not contest Carpet Inn’s entitlement to “reasonable” attorney’s fees under section 517.211(6). However, when Carpet Inn’s counsel filed his affidavit regarding the fees requested, En-virocycle filed detailed objections to certain entries in the affidavit for a variety of reasons challenging the sufficiency of the information provided and the reasonableness of the amount of fees requested. In its written objections, Envirocycle requested that the court either conduct an evidentiary hearing or give Envirocycle an opportunity to depose Carpet Inn’s counsel concerning the details of the services rendered. The trial court did neither. Instead, the trial court entered a final judgment that included an award of all attorney’s fees requested by Carpet Inn but made no findings as to hourly rate or number of hours reasonably expended. The trial court also failed to make any findings addressing the objections raised. Therefore, we are unable to determine if the trial court considered the objections raised by Envirocycle or, if considered, on what basis the trial court determined that the objections were without merit. We therefore remand for the trial court to conduct an evidentiary hearing on attorney’s fees. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

Affirmed in part, reversed in part, and remanded. '

DAVIS and CANADY, JJ„ Concur.


text:
    Job LANGLOIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1135.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
   PER CURIAM.

Job Langlois appeals' the denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Langlois’s challenge to his March 4, 2003, judgment and sentence was untimely filed, the motion should have been dismissed rather than denied on the merits. Therefore, we reverse and remand to the postconviction court with directions to dismiss the motion as untimely. See Fla. R.Crim. P. 3.850(b); Lyell v. State, 872 So.2d 447 (Fla. 2d DCA 2004).

Reversed and remanded with directions.

NORTHCUTT, SILBERMAN, and CANADY, JJ., Concur.


author: WALLACE, Judge.

text:
    Jon Paul BURNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1657.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
   WALLACE, Judge.

Jon Paul Burnett challenges the post-conviction court’s order that denied his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The postconviction court initially determined that the six claims of ineffective assistance of counsel alleged in Burnett’s motion were facially sufficient and ordered the State to respond. The State filed a seventeen-page response that is replete with references to the record. However, the State’s response contains no record attachments to support its detailed rebuttal of Burnett’s claims. In its final order denying Burnett’s motion, the postconviction court merely adopted and incorporated by reference the State’s response and failed to append any record attachments to its order. Thus the order does not support the summary denial of Burnett’s motion. See Loomis v. State, 691 So.2d 34, 35 (Fla. 2d DCA 1997); Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995).

Accordingly, we reverse the postconviction court’s order and remand for reconsideration of Burnett’s motion. If the postconviction court again denies Burnett’s motion, it must either attach to its order those portions of the record that conclusively refute his claims, or as to any claim or claims that are not conclusively refuted by the record, conduct an evidentiary hearing.

Reversed and remanded.

SALCINES and SILBERMAN, JJ., Concur.


author: SALCINES, Judge.

text:
    Lawrence MONTAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-971.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
   SALCINES, Judge.

Lawrence Montague appeals the post-conviction court’s denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Montague claims he is entitled to additional jail credit in Hillsborough County case number 89-02618 for the time he spent in Hernando County jail from November 29, 1994, to January 5, 1995, and for the time he spent in Hillsborough County jail from January 6, 1995, to February 20, 1995.

Because Montague failed to provide any record evidence that either a warrant or a detainer was lodged against him from Hillsborough County while he was in jail in Hernando County, we affirm the postcon-viction court’s decision as to this claim, without prejudice to Montague’s right to refile his motion showing entitlement to additional jail time credit pursuant to Gethers v. State, 838 So.2d 504 (Fla.2003). See Smith v. State, 884 So.2d 316 (Fla. 2d DCA 2004).

However, the postconviction court failed to address, and the attachments to the postconviction court’s order do not conclusively refute, Montague’s claim that he did not receive credit for the time he spent in Hillsborough County jail from January 6, 1995, to February 20, 1995. Accordingly, we reverse and remand for the postcon-viction court to reconsider Montague’s claim. On remand, if the postconviction court summarily denies the claim, it must set forth its reasoning and attach portions of the record that conclusively refute Montague’s allegation. See Carroll v. State, 914 So.2d 1014 (Fla. 2d DCA 2005); O’Neill v. State, 861 So.2d 1234 (Fla. 2d DCA 2003).

Affirmed in part; reversed in part and remanded.

DAVIS and WALLACE, JJ„ Concur.


author: CASE, JAMES R., Associate Judge.

text:
    Dwayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1022.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   CASE, JAMES R., Associate Judge.

Dwayne Williams appeals his conviction by a jury and sentences for trafficking in cocaine, possession of cannabis, and DUI. He was sentenced to five years’ prison for the cocaine conviction and to time served for the other two offenses. We affirm the convictions and sentences for cocaine trafficking and cannabis possession without further comment but reverse the misdemeanor DUI conviction.

Williams’ conviction for DUI resulted from the introduction into evidence of a breath test affidavit by a person other than the person who actually administered the test and prepared the affidavit. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court overruled the reliability test previously established in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for determining the admissibility of testimonial hearsay. In Crawford, the Supreme Court conditioned the admissibility of testimonial hearsay on the unavailability of the declarant and the defendant’s prior opportunity to cross-examine. Crawford, 541 U.S. at 68,124 S.Ct. 1354. Relying on Crawford, this court held in Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005), review granted, 924 So.2d 810 (Fla.2006), that an FDLE lab report prepared pursuant to police investigation and offered to establish an element of a crime was testimonial hearsay and inadmissible in the absence of establishing the Crawford conditions. We rejected the State’s argument that the report should be admitted under the business record exception to the hearsay rule and certified the question to the Florida Supreme Court, Johnson, 929 So.2d at 8-9; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA), review granted, 928 So.2d 336 (Fla.2006) (holding en banc that the portions of the breath test affidavit pertaining to the technician’s procedures and observations constitute testimonial evidence, and were inadmissible under Crawford).

In this case, we decline the State’s invitation to recede from our decision in Johnson, and reverse Williams’ DUI conviction. Since the issue is substantially similar to that certified in Johnson, we certify the following question to the supreme court as an issue of great public importance:

DOES ADMISSION OF A BREATH TEST AFFIDAVIT VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V. WASHINGTON, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), WHEN THE TECHNICIAN WHO PERFORMED BREATH TEST DOES NOT TESTIFY?

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

SALCINES and LaROSE, JJ., Concur.


text:
    Todd C. HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1797.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
   PER CURIAM.

Affirmed. See Milks v. State, 894 So.2d 924 (Fla.2005), cert. denied, - U.S. -, 126 S.Ct. 368, 163 L.Ed.2d 86 (2005); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004), review denied, 914 So.2d 952 (Fla. 2005); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001); Butler v. State, 923 So.2d 566 (Fla. 4th DCA 2006); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001).

Contrary to the holding of this court in Burrows, the First District in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), on collateral review applied the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), retroactively to a sentence that became final before the issuance of the Blakely opinion.

As this court did in Barron v. State, 931 So.2d 929 (Fla. 2d DCA 2006), we certify direct conflict with Isaac.

Affirmed; conflict certified.

ALTENBERND, CASANUEVA, and STRINGER, JJ., Concur.


text:
    Charles KIMBALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-758.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

Charles Kimball appeals his convictions for aggravated battery and leaving the scene of a crash with injury and also challenges certain costs imposed by the trial court. Although we agree with Kim-ball that the prosecutor made an improper remark during the closing argument, we conclude that the error was not so prejudicial as to require a mistrial and, therefore, affirm the convictions without further discussion. On the cost issues, we affirm the $2 assessment for the Criminal Justice Education Fund but reverse for the trial court to strike the $20 assessment for the Crime Stoppers Trust Fund.

In two motions filed pursuant to Florida Rule of Criminal Procedure 3.800(b), Kim-ball challenged the $2 assessment for the Criminal Justice Education Fund, authorized by section 938.15, Florida Statutes (2004), and the $20 assessment for the Crime Stoppers Trust Fund, authorized by section 938.06.

Regarding the $2 assessment, Kimball asserts that the statute authorizes this assessment only for violations of county or municipal ordinances. Kimball’s position is supported by a Florida Attorney General’s Opinion, 2002-10, 2002 WL 120819 (2002), which concludes that a county or municipality is authorized to assess the $2 only for violations of its own ordinances. Thus, a county or municipality has no authority to assess the cost for the violation of a state statute that occurs within its jurisdiction.

We disagree with the conclusion reached by the Attorney General’s Opinion. A plain reading of section 938.15 grants a county or municipality the authority to assess the $2 for state statute violations that occur within its jurisdiction. Section 938.15 provides that “[i]n addition to the costs provided for in s. 938.01, municipalities and counties may assess an additional $2 for expenditures for criminal justice education ... for their respective officers.” (Emphasis added.) The “costs provided for” in section 938.01 are assessed against “every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance.” § 938.01(1). We construe the use of the word “additional” in section 938.15 to mean that where a municipality or county has chosen to make the $2 assessment, it shall be an additional cost in every case where the costs provided for by 938.01 have been authorized, which includes violations of state statutes.

The declared purpose of authorizing the additional $2 cost is to provide training for local law enforcement. As a practical matter, if the $2 assessment were limited to convictions for violations of municipal or county ordinances, it is doubtful that the assessment would produce enough revenue to fund “criminal justice education degree programs and training courses.” § 938.15. Accordingly, we reject Kimball’s challenge to the $2 assessment.

The trial court erred, however, in denying Kimball’s challenge to the $20 assessment for the Crime Stoppers Trust Fund. Section 938.06(1) authorizes this assessment as “an additional surcharge” to “any fine prescribed by law.” Where, as here, no fíne was imposed, no surcharge could be applied. Lang v. State, 856 So.2d 1105 (Fla. 1st DCA 2003). The trial court must strike this cost.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and STRINGER, JJ., Concur.

      . In its brief, the State recites that a fine was imposed. The record belies this assertion.


text:
    STATE of Florida, Petitioner, v. Jason PINAULT, Respondent.
    No. 4D06-995.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest and Barbara Wolfe, Assistant Public Defenders, West Palm Beach, for respondent.
   PER CURIAM.

The State of Florida seeks certiorari review of a nonfinal order in a pending criminal prosecution denying admission of child hearsay evidence at the trial of defendant Jason Pinault. We grant the petition.

Pinault is charged with one count of sexual battery on a person less than twelve years of age, by a person eighteen years of age or older. The state has filed notice of its intent to offer child hearsay evidence pursuant to section 90.803(23), Florida Statutes. Defendant moved in limine to exclude the videotaped testimony of the child as hearsay, citing Contreras v. State, 910 So.2d 901 (Fla. 4th DCA 2005), rev. granted, State v. Contreras, 924 So.2d 810 (Fla.2006).

At the hearing, the state indicated that the child victim would be called to testify at trial. The trial court found indicia of trustworthiness and that the child was age eleven at the time of the statement, and initially it ruled that, if the child were to testify, the statement would be admissible pursuant to section 90.803(23). However, the trial court thereafter issued an order denying admissibility of the statement, purporting to follow this court’s decision in Contreras explaining that admitting the statement would violate the Confrontation Clause.

In Contreras, this court reversed a conviction based on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement was testimonial and (2) the de-clarant was not available and the accused lacked a prior opportunity for cross-examination. This court concluded that the admission of evidence similar to the videotaped statement at issue here violated the Confrontation Clause of the Sixth Amendment. In that case, the child victim did not testify at the trial, the trial court having found her unavailable based on the opinion of an expert who concluded she would suffer severe emotional and psychological harm if she testified in person.

We quash the trial court’s order because Contreras does not apply to a situation in which the declarant testifies at trial, giving the defendant an opportunity to confront and cross-examine the declarant about the hearsay statement. See Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (“[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.”) (emphasis added); State v. Miller, 918 So.2d 350 (Fla. 1st DCA 2005) (reversing order granting new trial on theory that defendant’s confrontation rights were violated by introduction of witness’s prior statement, though he testified at trial but, because of an injury, he could not remember the basis for his prior statement; witness’s presence at trial gave defendant an opportunity to question him, which was all that the Confrontation Clause guarantees, and witness’s faulty memory did not cause a violation of that clause); Somervell v. State, 883 So.2d 836 (Fla. 5th DCA 2004) (affirming conviction, despite admission of the child victim’s videotaped statement given in response to police questioning, because the victim was available to testify, did testify, and the defendant had a full opportunity to confront and cross-examine him).

In his response, Pinault also contends that the victim’s hearsay statement must be excluded because the victim has since recanted, and the state may not call her to testify solely in order to impeach her testimony with a prior inconsistent statement, citing Bowles v. State, 742 So.2d 821 (Fla. 4th DCA 1999). However, that was not the basis for the trial court’s exclusion of the statement. Certainly, if it appears at trial that the hearsay statement will be the primary purpose for the state’s calling the victim to testify, or that a prior inconsistent statement is sought to be used substantively when it is the only evidence against Pinault, the issue may be raised and ruled on at that time. Nevertheless, at this juncture, the trial court’s ruling that the hearsay statement is inadmissible based on the Confrontation Clause represents a departure from the essential requirements of law.

We therefore grant the petition and quash the order on review.

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Edna LAVERDE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-773.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.

      Howard Finkelstein, Public Defender, and H. Dohn Williams, Jr., Assistant Public Defender, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Defendant seeks a writ of prohibition to prevent her prosecution for making a false statement in obtaining a false driver’s license and for possession of an illegal driver’s license. She argues that the statute of limitations has run and that the trial court should have granted her motion to dismiss. Prohibition is a proper remedy for a defendant challenging a prosecution barred by a statute of limitations period. Lett v. State, 837 So.2d 614 (Fla. 4th DCA 2003). The limitation period on these third degree felonies is three years after the offense is committed, section 775.15(2)(b), Florida Statutes (2001), and the information which commenced prosecution was filed beyond the limitation period. Where fraud is a material element of an offense, however, the prosecution may be commenced within one year after discovery of the offense by an aggrieved party. § 775.15(12)(a), Fla. Stat.

In this case, in which fraud is a material element, the state alleged in the information that the prosecutor discovered the fraud about nine months before the three year limitation period had run.

Defendant argued in the trial court that if the state discovers the fraud before the period of limitations has run, the fraud extension is not applicable, and accordingly in this case, because the crime was discovered nine months before the three year period had run, the prosecution is barred.

The fact that limitation periods are construed liberally in favor of defendants, State v. King, 275 So.2d 274 (Fla. 3d DCA 1973), is of no assistance to the defendant in this case, because the statute is clear:

If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for: (a) Any-offense a material element of which, is either fraud or breach of fiduciary obligation, within one year after discovery of the offense by an aggrieved party.

§ 775.15(3), Fla. Stat. (2001). Accordingly, the state was not required to commence prosecution within three years of the offense being committed. The petition for writ of prohibition is denied on the merits.

POLEN and MAY, JJ., concur.


text:
    Matthew L. HIRSCHHORN and Deborah L. Hirschhorn, Appellants, v. AVONDALE FUNDING.COM, Clerk of the Court of the 17th Judicial Circuit, and New South Federal Savings Bank, Appellees.
    No. 4D05-4028.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Charles M. Eiss of Law Firm of Glantz & Glantz, P.A., Plantation, for appellants.

      Larry M. Segall of Gibbons, Cohn, Neu-man, Bello, Segall & Allen, P.A., Tampa, for appellees.
   On Motion fob Rehearing

PER CURIAM.

We grant rehearing, withdraw our previously issued opinion and substitute the following in its place.

Affirmed. The appellants make a post-judgment challenge based on the judge’s recusal upon the appellants’ request after the final judgment was entered. At most, the previously entered judgment was merely voidable and not void. Schlesinger v. Chemical Bank, 707 So.2d 868 (Fla. 4th DCA 1998); Murphy v. State, 627 So.2d 51 (Fla. 3d DCA 1993); Barber v. MacKenzie, 562 So.2d 755 (Fla. 3d DCA 1990). Appellants had to move for reconsideration of the already entered final judgment, which they did not. See Murphy. A subsequent challenge based upon the voidness of the judgment is of no avail.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    James PENDELTON, Shawn Whyte, and Giovanni Oquendo, Petitioners, v. STATE of Florida, Respondent.
    Nos. 4D06-997 to 4D06-999.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Michael A. Gottlieb, Ft. Lauderdale, for petitioners.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Petitioners, who are all represented by the same counsel, Michael Gottlieb, seek a writ of prohibition to disqualify the trial judge. We have previously granted petitions to disqualify the same judge, because of her acrimonious relationship -with Gott-lieb when she was an assistant state-wide prosecutor. Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005), and Suppa v. State, 913 So.2d 1203 (Fla. 4th DCA 2005).

We deny the petitions in Pendelton and Whyte because they were untimely. Florida Rule of Judicial Administration 2.160(e) requires that a motion to disqualify a trial judge be filed no later than ten days after discovery of the facts constituting grounds for the motion. Where, as in this case, the reason for disqualification is because of the prior relationship of the lawyer to the judge which has resulted in previous disqualification, we conclude that the motion to disqualify must be filed within ten days of the lawyer being retained in a case which has already been assigned that particular judge. If we were to hold, as the petitioner suggests, that the ten days should run from the time the client has knowledge of the relationship of the lawyer to the judge, it would allow the lawyer to control when the case would be reassigned to a different judge. That could result in forum shopping. We deny these petitions because they were not timely from when Gottlieb was retained.

We deny the petition in Oquendo, who had more than one case pending, because in one of the cases the motion to disqualify was untimely. In the other, Gottlieb was substituted for prior counsel after pleas of guilty. Palmer v. State, 775 So.2d 404 (Fla. 4th DCA 2000) (a party may not bring a lawyer into a case which has already been assigned to a judge, and then obtain disqualification on the ground that the judge has a known prior bias against the lawyer).

Petitions denied.

SHAHOOD and GROSS, JJ., concur.


author: TAYLOR, J.

text:
    Adrian RUBIO, Appellant, v. James CUBA and J.G. O’Neill, Inc., a Florida corporation d/b/a Delray Acura, Appellees.
    No. 4D05-3603.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Steven H. Meyer of Steven H. Meyer, P.A., Boca Raton, for appellant.
    Jonathan A. Berkowitz of Vernis <& Bowling of Palm Beach, P.A., North Palm Beach, for appellees.
   TAYLOR, J.

Adrian Rubio appeals the trial court’s dismissal of his personal injury action for failure to prosecute. We agree with appellant that his filing of a notice of deposition, even though the deposition was subsequently cancelled, was sufficient record activity to preclude dismissal of the action under the bright-line test announced by the Florida Supreme Court in Wilson v. Salamon, 923 So.2d 363 (Fla.2005).

Reversed and Remanded.

KLEIN and SHAHOOD, JJ„ concur.


text:
    Wilhelm GRAFALS, Culpepper Plumbing, Inc., d/b/a Culpepper Septic Tank, Inc., and ABCO of the Palm Beaches, Inc., Appellants, v. Felix MARTINEZ-RODRIGUEZ, Juanita Benitez, as Parent and Natural Guardian of Felix Rodriguez-Benitez, Jr. a/k/a Felix Rodriguez, Angelica Benitez-Rodriguez, Leticia Rodriguez-Benitez a/k/a Leticia Rodriguez and Christina Benitez-Rodriguez, minors, Appellees.
    No. 4D05-2630.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Caryn L. Bellus of Kubicki Draper, Miami, for appellants.
    Daniel R. Gerleman, Fort Myers, for appellees.
   PER CURIAM.

Affirmed; see Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999).

FARMER, SHAHOOD, JJ., and LEWIS, TERRY P., Associate Judge, concur.


text:
    Mark K. KOENIG, Esq., Appellant, v. Charles S. THEOFILOS, M.D., P.A., Appellee.
    No. 4D05-1588.
    District' Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.

      Mark K. Koenig of the Law Office of Mark Koenig, West Palm Beach, pro se.
    Scott B. Newman and Jason D. Lazarus of Holland & Knight LLP, West Palm Beach, for appellee.
   KLEIN, J.

Appellant Koenig, a lawyer, represented a client in a personal injury case, and signed a letter agreeing to pay the medical bills rendered by Dr. Theofilos out of the proceeds of any recovery. When Koenig obtained a recovery for the client, he took his fees and paid the balance to the client without paying Dr. Theofilos. Koenig argues that the trial court should not have granted Dr. Theofilos’s motion for summary judgment in this suit against Koenig because Dr. Theofilos ultimately was unable to connect the client’s brain injury which he diagnosed to the accident.

The letter of protection signed by the client and Koenig provides in part:

I hereby authorize and direct my attorney to pay directly to Charles S. Theofi-los, MD, PA, all sums due and owing for all services rendered by Charles S. Theofilos, MD, PA, or any balance thereof, including but not limited to the medical services rendered, reports made or duplicated, depositions given, or time spent as an expert witness in this case.

Koenig’s argument that payment of the medical bills was contingent on connecting the client’s brain injury to the accident is contrary to the clear terms of the letter. The other arguments he raises are also without merit. We accordingly affirm.

SHAHOOD and' TAYLOR, JJ., concur.


text:
    John HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3547.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Williams v. State, 879 So.2d 49 (Fla. 1st DCA 2004).

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


author: STEVENSON, C.J.

text:
    Mitchell WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3302.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Mitchell Watkins was tried by jury and convicted of multiple counts of drug trafficking, possession of drugs and drug paraphernalia, possession of a firearm while committing a felony, and driving with a suspended license. In this appeal, Watkins contends that two erroneous evi-dentiary rulings and improper comments by the prosecutor during closing arguments compel reversal of his convictions and a new trial. Among the evidentiary rulings complained of was the trial court’s refusal to allow Watkins to testify that his two, prior felony convictions were the product of guilty pleas. The State has conceded that, based on the decisions in Lawhorne v. State, 500 So.2d 519 (Fla. 1986), Ziermann v. State, 696 So.2d 491 (Fla. 4th DCA 1997), and Bowles v. State, 849 So.2d 465 (Fla. 4th DCA 2003), the testimony should have been allowed. The State nonetheless invites us to affirm, arguing the trial court’s refusal to allow the testimony was harmless. We cannot agree.

A road patrol officer with the Broward County Sheriffs Office initiated a traffic stop of Watkins’ car on Alligator Alley and found drugs in an eyeglass container and in two bags in the trunk. Watkins was not, however, alone in the car. He had a female passenger. The eyeglass case was identified as belonging to the passenger and a search of her person revealed a small quantity of marijuana. Watkins claimed that the bags in which the drugs were found belonged to the passenger. While it is true that the State presented evidence that Watkins had confessed to police that the drugs in question were his and that a prescription bottle with Watkins’ name on it was found in one of the bags in the trunk, the confession was not taped, Watkins denied he confessed to police, and Watkins testified his prescriptions were not in the bags in the trunk, but in a Wal-Mart bag. Thus, in the end, this case boiled down to a credibility contest, making the instant case indistinguishable from Bowles, wherein this court held that the trial court’s refusal to permit the defendant to testify that his prior cases had been resolved by guilty pleas could not be said to be harmless “as Bowles’ credibility was plainly at issue.” 849 So.2d at 466. We therefore reverse Watkins’ convictions and remand for a new trial.

Because we are remanding for a new trial, we note that we do not believe there is merit in Watkins’ additional claim that the trial court abused its discretion in allowing a detective to testify regarding drug dealers’ addition of colors or symbols to the baggies in which they distribute their product. Watkins was charged with possession of drug paraphernalia and the State was thus required to prove that the baggies found in Watkins’ car qualified as “drug paraphernalia.” See § 893.145(9), (10), Fla. Stat. (defining “drug paraphema-lia” to include “[c]apsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances” and “[containers and other objects used, intended for use, or designed for use in storing, concealing, or transporting controlled substances”). Watkins argues the detective’s testimony was inadmissible as a consequence of the authority holding that evidence regarding how criminals generally act is not admissible as substantive evidence of a particular defendant’s guilt. See, e.g., Dean v. State, 690 So.2d 720 (Fla. 4th DCA 1997). Here, though, the transcript suggests that some of the baggies found in Watkins’ car had color, i.e., a prescription pill bottle was found in “a little green plastic bag.” Thus, the detective’s testimony was specifically tied to the evidence in this case.

Reversed and Remanded.

SHAHOOD and MAY, JJ., concur.

      . Watkins' third point on appeal, challenging comments made by the prosecutor during closing arguments, is moot as a consequence of our reversal on the evidentiary ruling.


author: RAMIREZ, J.

text:
    C.F., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D04-1147.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2005.
    Rehearing and Rehearing En Banc Denied Aug. 10, 2006.
    Lizel Gonzalez; and Miriam Harmmatz; and Anne Swerlick, for appellant.

      Charles J. Christ, Jr., Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

C.F. appeals the final agency decision of the Department of Children and Families’ Office of Appeal Hearings, affirming the decision of the Department of Children and Families to reduce Medicaid-funded personal care assistance for C.F. from six to four hours per day and finding that the request exceeded medical necessity or that there was no determination that the services were medically necessary. We reverse and remand, finding that the hearing officer applied overly restrictive definitions of “medical necessity” and “personal care assistance” and the Department failed to meet its burden of proof for reducing C.F.’s personal care assistance services from six to four hours per day.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the Department’s decision, C.F. was a nine-year-old boy with severe disabilities, including mental retardation, hyaline membrane disease (a form of brain damage), bronchopulmonary dys-plasia, gastroesophageal reflux, retinopa-thy, asthma, glaucoma in the left eye, and attention deficit hyperactivity disorder. C.F. lives with his mother and sister, both of whom the Social Security Administration found to be disabled.

C.F. receives Medicaid coverage for the following therapies: language, speech, physical, occupational, and psychological. Medicaid also covers his tutoring. He is treated by a pulmonologist, infectious disease specialist, gastrointestinal specialist, nephrologists, two neurologists, and an op-thalmologist. C.F.’s pediatrician coordinates his care.

As a Medicaid recipient under twenty-one years of age, C.F. is eligible for Early and Periodic Screening, Diagnosis and Treatment Services (“EPSDT”), a comprehensive benefit for all Medicaid-eligible children which includes necessary health care treatment and other treatments to correct physical and mental conditions whether or not such services are covered under the state Medicaid plan for adults. C.F. has also been enrolled in the Medicaid-funded Home and Community Based Developmental Services waiver program since November 1, 1999. He receives personal care assistance (“PCA”) services, six hours per day, seven days per week, as part of his waiver services.

C.F. cannot bathe, brush his teeth or feed himself without assistance. His personal care assistant helps him with these functions. During the day, C.F. can use the bathroom unattended. During the night, he wears a diaper. His personal care assistant changes his diapers. C.F.’s personal care assistant also picks him up at school with his mother and then drives him to multiple weekly therapies, including physical and occupational therapy and psychiatrist and tutoring sessions, because his mother’s sleep apnea prevents her from driving. The personal care assistant participates in the therapies as they require the participation of an adult caretaker, which C.F.’s mother is unable to do because of her disabilities, including sleep apnea and depression. C.F. is then driven back home. C.F.’s long-time treating physician provided the Department with medical evidence that all of the services C.F. receives, which include the six hours per day of personal care assistance, are medically necessary.

To reduce the Developmental Services waiver costs, the Department contracted with Maximus, Inc., a private, for-profit entity that evaluates services for eligible recipients, to review the waiver files to determine whether certain prescribed services, including the PCA services, met the state’s definitions of those services and “medical necessity,” according to the Florida Administrative Code and the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, July 2002. See Fla. Admin. Code R. 59G-1.010(166) and Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, July 2002, incorporated by reference in Fla. Admin. Code R. 59G-8.200(12). C.F.’s file was selected for review, and the Department proposed reducing his PCA services from six to four hours per day. Although according to his treating physician, C.F.’s condition had not improved and his needs had not diminished, Maximus concluded that C.F.’s assistance needs could be adequately completed in four hours per day. This amount was approved as medically necessary. The Maximus reviewer applied the Department’s definition of “medical necessity” and “PCA services” in making her determination, which contradicted the opinion of C.F.’s treating physician.

Accordingly, on June 24, 2003, the Department reduced the amount of personal care assistance as a Development Disabilities Medicaid Waiver service for C.F. from six hours per day to four hours per day. C.F. appealed the decision to the Department’s Office of Appeal Hearings.

In March 2004, an administrative hearing was held. The Department employee responsible for the waiver testified that personal care assistance can be provided through Medicaid. The Maximus consultant reviewer, Dr. Emma Guillarte, who has a doctorate in special education, also testified telephonically at the hearing. She stated that she reviewed C.F.’s file to document the medical necessity for the service. She used the Developmental Services Waiver Services Medicaid Coverage and Limitations Handbook, which defined personal care assistance. Dr. Guillarte stated that the Handbook defined personal care assistance “as a service that assists a beneficiary with eating, meal preparation, bathing, dressing, personal hygiene and activities of daily living.” The service also included activities such as assistance with meals, preparation, bed making, vacuuming, when these activities are essential to the health and welfare of the beneficiary and when no on else was available to perform them. Dr. Guillarte further quoted the Handbook stating, “[p]ersonal care assistance in the family home should be provided only to assist the parent or primary caregiver of children in meeting the personal care needs of the child.” She found that personal care assistance was being used to transport C.F. to his different services or therapies, which was not allowed by the developmental disabilities Medicaid waiver. Furthermore, there were several hours where the personal assistant was being used for laundry, cleaning, helping him to get ready, supervising him at church, which were not personal care activities. Thus, she recommended that his hours be reduced from six to four.

Dr. Guillarte testified that she is not a licensed health care provider. She never examined C.F. She never spoke to C.F.’s mother or any of C.F.’s doctors, nor did she make any request for information regarding C.F. or his mother’s medical condition. She made her recommendation to reduce C.F.’s PCA hours solely upon a “desk review” of C.F.’s DS waiver support plan and cost plan.

Adela Fiallo, C.F.’s mother, testified that the transportation was necessary to get C.F. to his therapy appointments and that no other transportation services were available or offered. She explained that a personal care assistant was necessary when C.F. was attending a therapy session because C.F. needed assistance with his personal care needs during the time he is going to and from the therapies and during the therapies themselves. The centers where C.F. receives treatment do not allow patients who are minors to be dropped off; a guardian must be present at all times. Mrs. Fiallo testified that while she occasionally is able to go to a therapy session, she stated that without a personal care attendant, C.F. could not participate in his therapies. C.F.’s mother also testified about her own medical conditions, including morbid exogenous obesity and obstructive sleep apnea with very pronounced daytime somnolence that prevents her from driving. Dr. Guillarte admitted that she did not take the mother’s medical conditions into consideration when she decided whether the mother could transport C.F.

The Department argued that other types of transportation were available to C.F. However, C.F.’s mother testified that these options were not feasible for C.F. For example, C.F. cannot use school transportation because the school will only transport him to and from school, not to the therapies. Also, C.F. must leave school before the end of the school day to attend his therapies. The school transportation does not allow for transportation before the end of the school day. In addition, the Department employee who testified at the hearing admitted on cross-examination that none of the transportation options suggested by the Department provide for assistance with activities of daily living or assistance with personal care and would not allow for a guardian to remain during the therapies. Another option suggested by the Department, Special Transportation Services, had the same limitations in terms of providing coverage for an adult to remain with C.F. during the therapies and costs $5.00 per person per round-trip.

The Department also disagreed with Dr. Romero-Bolumen, C.F.’s pediatrician, who prescribed six hours per day of PCA services. Maximus had never requested information from any of C.F.’s treatment sources, thus Dr. Guillarte was unaware that C.F.’s doctor determined that six hours per day of PCA services was medically necessary.

The hearing officer subsequently denied C.F.’s appeal and affirmed the Department’s decision to reduce the amount of personal care assistance hours available to C.F. The hearing officer determined that C.F.’s six hours per day of personal care assistance exceeded medical necessity or there was no determination that the service was medically necessary. In the Final Order, the hearing officer stated that C.F.’s treating physician did not carry more weight because “though the petitioner’s physician showed extensive medical knowledge of the petitioner’s medical conditions and knowledge of PCA services in general, he did not indicate an awareness of the Department’s Medicaid Waiver Program limitations, etc [sic], related to PCA’s services.” The definition of personal care assistance given in the Final Order is, “[plersonal care assistance in the family home should be provided only to assist the parent or primary caregiver of children in meeting personal care needs of the child.” The hearing officer continued:

As shown in the Findings of Fact, the petitioner’s treating physician indicated that PCA services are necessary for the petitioner to be utilized for supervision, transportation and for service coverage out of the family home, all of which do not comply with the definition noted in the above referenced Department Development Services Waiver Services Medicaid Coverage and Limitations Handbook. Thus, the hearing officer finds the treating physician’s medical necessity definition does not conform or meet the Department’s definition as per the above cited authorities for the PCA services.

LEGAL ANALYSIS

First, we review this case de novo because an agency’s final order based on a conclusion of law is subject to de no review. See Steward v. Dep’t of Children & Families, 865 So.2d 528, 530 (Fla. 1st DCA 2003). In addition, this Court may set aside an agency action when it finds that the agency has erroneously interpreted a provision of law. See Metropolitan Dade Cty. v. Dep’t of Envtl. Prot., 714 So.2d 512, 515 (Fla. 3d DCA 1998). See also § 120.68(7)(d), Fla. Stat. (2003).

The hearing officer erred when he applied definitions of medical necessity and personal care assistance that are overly restrictive and violate federal Medicaid law. Florida Administrative Code R. 59G-1.010(166) defines “medically necessary” or “medical necessity,” in pertinent part, as the following:

(166) “Medically necessary” or “medical necessity” means that the medical or allied care, goods, or services furnished or ordered must:
(a) Meet the following conditions:
1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and
5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.

See Fla. Admin. Code. R. 59G-1.010(166)(2003). The language used in the Final Order shows that the hearing officer improperly applied a more restrictive definition of “medical necessity” than that outlined by federal Medicaid law. The Department used the same definition of medical necessity that it uses for both adults and children and failed to incorporate the EPSDT requirements.

States are required to cover EPSDT services for all Medicaid-eligible minors under age twenty-one (21). See § 42. U.S.C. § 1396(a)(43). The treatment portion of EPSDT must include any “... necessary health care, diagnostic services, treatment and other measures described in section 1905(a) to correct or ameliorate ... the physical and mental illnesses and conditions, whether or not such services are covered for adults in the state’s Medicaid program.” See 42, U.S.C. § 1396d(r)(5). Covered services include case management, transportation, home health, personal care services and “any medical or remedial services (provided in a facility, a home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under state law, for the maximum reduction of physical or mental disability ...” See 42 U.S.C. § 1396d(a)(13). The state definition of medical necessity is a narrower view that does not encompass the assistance a caretaker would need in taking care of a disabled child. The federal definition, on the other hand, encompasses a more expansive view, allowing for services that sustain or support, as opposed to actually treating the disability.

In addition, we find that the hearing officer also applied an improperly narrow definition of personal care assistance. In the Final Order, the Hearing officer stated that PCA services cannot be “utilized for supervision, transportation and for service coverage out of the family home, ...” He based this conclusion on an excerpt from the Department’s PCA rule describing the allowable scope of personal care assistance services provided in the family home.

The hearing officer’s interpretation directly conflicts with federal Medicaid law authorizing PCA services when prescribed by a physician in accordance with a treatment plan, provided by a qualified individual other than a family member and “furnished in a home or other location.” See 42 U.S.C. § 1396d(a)(24). Because C.F. is a minor entitled to EPSDT benefits, his need for PCA services must be evaluated under the more expansive federal definition. Accordingly, the hearing officer erred in applying definitions of “medical necessity” and “personal care assistance” that were too restrictive and violated federal Medicaid law.

The hearing officer also erred in failing to give proper weight to C.F.’s treating physician’s opinion and in concluding that the Department met its medical evidentia-ry burden to justify reducing C.F.’s services. There was insufficient competent evidence to support the hearing officer’s decision. In his final order, the hearing officer failed to give the pediatrician’s opinion proper weight because the pediatrician’s recommendations did not comply with PCA definitions in the Handbook and because the pediatrician’s medical necessity definition did not conform to the Department’s definition.

Furthermore, because this case involves a reduction of Medicaid services, the Department has the burden of proof. See Fla. Admin.Code R. 65-2.060; Balino v. Dep’t of Health & Rehab. Serv., 348 So.2d 349, 351-52 (Fla. 1st DCA 1977). Here, there was no competent substantial evidence to support the hearing officer’s determination that the Department met its burden of proof to show that C.F.’s PCA hours were no longer medically necessary. See 120.68(7)(b), Fla. Stat. (2003); De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). At the hearing, the Department did not present testimony or written evidence from a physician which justified reducing C.F.’s PCA hours from six to four hours. The Department presented the testimony of Dr. Guillarte; however, she is not a health care professional, has never met C.F. or his family, and has never spoken to any of C.F.’s providers. Her recommendation to reduce C.F.’s PCA hours was also based on the state’s more restrictive definition of medical necessity and PCA services.

C.F.’s life-long pediatrician, Dr. Romero-Bolumen, testified regarding C.F.’s medical need for the same level of PCA services he had been receiving. He testified that “the number of personal care attendant hours C.F. receives is specific and consistent with symptoms of his illnesses under treatment and not in excess of his needs .... the personal care attendant hours are reflective of the level of service that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available.” C.F.’s treating physician prescribed six hours of PCA care that, based on her medical opinion, was medically necessary. The hearing officer rejected this opinion based on the erroneous legal standard for medical necessity and personal care assistance.

A state agency must give considerable and substantial weight to the opinions of treating physicians. See Snyder v. Florida Dept. of Children and Families, 705 So.2d 1067, 1068-69 (Fla. 1st DCA 1998). In addition, the failure to credit the opinion of the treating physician must be accompanied by a showing of good cause. Id. at 1069. Here, the Hearing Officer’s reason for rejecting the pediatrician’s opinion does not meet the burden of “good cause.” The opinion of C.F.’s treating physician should have been given greater weight than the opinion of the Maximus reviewer, who had never met C.F. or consulted with C.F.’s treating physician. Thus, there is no competent substantial evidence in the record to justify reducing C.F.’s PCA hours.

CONCLUSION

We conclude that the Department incorrectly used more restrictive definitions of “medical necessity” and “personal care assistance” than federal law requires. The hearing officer also failed to give the proper weight to the opinion and recommendation of C.F.’s treating physician.

We reverse the decision of the hearing officer upon which this appeal is based. The Department is ordered to (1) provide C.F. with six hours per day of personal care assistance services from the Home and Community Based Services waiver program, as prescribed by C.F.’s treating physician who determined that this level of care was medically necessary; (2) guarantee that C.F. will be enrolled and receive services from the Consumer Direct Care Plus Program; and (8) coordinate C.F.’s transportation to and from his various therapies at no cost to him.

Reversed and remanded.

      . C.F. is currently eleven years old.

      . DCF’s PCA rule does, in fact, authorize PCA services outside the family home if the beneficiary is engaged in a community activity. See Handbook at 2-50. Furthermore, DCF's rule recognizes that personal care providers may transport beneficiaries by including specific requirements relating to driver's licenses, car registration and insurance. See Handbook at 2-51. It states: "If the [personal care assistance] provider plans to transport beneficiaries in their private vehicle, at the time of enrollment, the provider must be able to show proof of valid: 1) driver’s license; 2) car registration; and 3) insurance. Subsequent to enrollment, the provider is responsible for keeping this documentation up to date and is responsible for notifying the District Office of all traffic violations, with the exception of parking tickets, immediately.” Thus, the PCA rule does anticipate a personal care assistant providing transportation.