author: WELLS, Judge. COPE, C.J.

text:
    Rodolfo CASAS, Appellant, v. SIEMENS ENERGY & AUTOMATION, INC., Appellee.
    No. 3D04-742.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied May 17, 2006.

      Donna B. Michelson; Philip D. Parrish, Miami, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer and Brigid F. Cech (Ft. Lauderdale), for appellee.
    Before COPE, C.J., and RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

Rodolfo Casas appeals from an adverse summary judgment in an action against his employer premised on the intentional tort exception to worker’s compensation immunity. Because Casas’ claim does not come within this exception, we affirm.

In April 2000, Rodolfo Casas began working for Siemens Energy and Automation, Inc. at its manufacturing facility located in Miami. Casas was hired as a machine set-up operator for the operation of a mechanical punch press machine designed for stamping metal lids. His duties as a set-up operator included both setting up the punch press for operation and actually operating it. In particular, Casas worked primarily with a press commonly referred to as machine 409.

Machine 409 was operated by using either a set of dual hand controls or a foot pedal. Should a metal lid become stuck in the machine, Casas was instructed to remove the obstruction with a long metal rod, or with a long screwdriver, which could be inserted into the machine through a hole in the machine’s point of operation Plexiglas barrier guard. Under no circumstances was he to place his hands or arms within the punch area of the machine unless the machine had been turned off.

On September 1, 2000, Casas’ arm was accidentally crushed when he stuck it, and the tool he was allegedly holding, into the machine in order to dislodge a stuck metal lid. At the time of the accident, the Plexiglas guards were not in place and the machine had not been shut off. The parties agree that the accident likely happened when Casas stepped on the machine’s foot pedal while his arm was inside the machine.

Casas received worker’s compensation for his injury. Thereafter, he filed a complaint against Siemens, alleging an intentional tort under the “substantial certainty of injury” exception to worker’s compensation immunity. On December 3, 2003, Siemens moved for summary judgment, arguing that this exception to worker’s compensation immunity did not apply. On March 5, 2004, the trial court entered summary judgment in favor of Siemens. This appeal ensued.

Florida’s worker’s compensation law, codified in chapter 440 of the Florida Statutes, provides a “no-fault system,” under which “the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits.” Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000). This statutory scheme provides immunity to covered employers from common-law negligence suits while providing employees with benefits on a no-fault basis. Id.

“Notwithstanding the general recognition of tort immunity for employers, the [Florida Supreme Court] has recognized an intentional tort exception to the worker’s compensation statutory scheme.” Id. Under the intentional tort exception, an employee must show that the employer “either ‘exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.’ ” Id. at 687 (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986)).

Whether conduct is substantially certain to cause injury or death is determined by applying an objective standard, that is, by determining whether a reasonable person would understand that the employer should have known that its conduct was substantially certain to result in injury or death to the employee. Id. at 688-89; Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 782-83 (Fla.2004). Under this standard, the employee must also demonstrate that the employer engaged in conduct more egregious than that needed to establish gross negligence. Turner, 754 So.2d at 687 n. 4.

As we noted in Bakerman, 891 So.2d at 557 (quoting Turner, 754 So.2d at 691), cases finding liability under the substantial certainty test, “contain ‘a common thread of evidence that the employer tried to cover up the danger [to its employees], affording the employees no means to make a reasonable decision as to their actions.’ ” In Turner, for example, the Florida Supreme Court reversed a summary judgment in an employer’s favor because the employer knew of the dangerous nature of the work being performed yet failed to disclose this danger to its employees who were unaware of the risk. Similarly, two cases identified by the Florida Supreme Court in Turner as having applied the substantial certainty test, Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), and Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990), also involved concealment of a risk known by the employer, but not by the employee. Connelly involved an employer which routinely overloaded and poorly maintained its aircraft and then withheld information regarding these defects and hazards from the employees flying the aircraft. Cunningham involved an employer which hid the toxic nature of the substances with which its employees worked by removing warning labels from toxic substance containers and by misrepresenting the toxic nature of these substances.

Likewise, in Sierra v. Associated Marine Inst., Inc., 850 So.2d 582 (Fla. 2d DCA 2003), the Second District found a substantial certainty of injury or death where an employer failed to disclose a danger known to it but not to the employee. In that case, a new counselor at a boot camp for juvenile offenders was assigned alone to oversee a group of youths working with machetes and pickaxes at a secluded, off-campus location. The counselor, who was killed when attacked by the youths he was overseeing, was not advised that they had been assessed as flight risks, or that one of the youths had recently made violent threats to the life of the other.

By contrast, in Tinoco v. Resol, Inc., 783 So.2d 309 (Fla. 3d DCA 2001), a case involving no cover up or deception, this court concluded that while the circumstances demonstrated negligence, and perhaps even gross negligence, the employer’s actions did not rise to the level of an intentional tort. In Tinoco, a pipe fitter’s foot was injured when an excavating machine being used to dig a pipe trench lurched forward crushing his foot. Although the excavating machine that caused the injury was new, it was defective and lurched forward two or three feet every time the operator sought to move it. The job foreman and the crew knew of the defect, but continued to operate the machine keeping everyone away from the front of the machine during operation. The machine had been operated twenty-six or twenty-seven times without incident before the pipe fitter stepped into the operator’s blind spot in front of the machine and was injured. Based on these facts, we affirmed summary judgment in the employer’s favor, concluding that the facts did not demonstrate either an intent to injure or conduct substantially certain to result in injury.

The Second District also refused to find a substantial certainty of injury or death in Fleetwood Homes of Fla., Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002), quashed on other grounds, 889 So.2d 812 (Fla.2004), another case in which the element of deceit was lacking. In that case, an employee was killed when a roll of metal fell from a forklift onto the employee’s head. The employee’s work station was adjacent to an aisle trafficked by forklifts carrying heavy metal loads. The lift operators had been instructed by the employer to continue moving down the aisle, even when other employees did not move out of the way after the operator honked his horn. As the forklift passed the employee’s work station, the metal rolls the lift was carrying struck a pipe and one roll fell off killing the employee. The Second District rejected the notion that engaging in known risks over a period of time establishes a “likelihood of injury to some employee sometime was substantially certain. If that were the case, then many injuries that occur while roofing or while performing any other moderately dangerous, repetitive job would be classified as the result of intentional torts.” Id. at 869.

More recently, the Fourth District in Allstates Fireproofing, Inc. v. Garcia, 876 So.2d 1222, 1226 (Fla. 4th DCA 2004), declined to find a substantial certainty of injury or death for similar reasons, where the employee was killed when a scaffold he was working under fell on him:

We find the facts at issue here are more analogous to Fleetwood, Pacheco [v. Fla. Power & Light Co., 784 So.2d 1159 (Fla. 3d DCA 2001) ], and Tinoco and less like Turner, Connelly, and Cunningham. That is to say, Allstates did not attempt to conceal, or fail to warn, the decedent of the danger involved with scaffolds. The material facts show that Allstates provided a safety manual and an abundance of safety training. Moreover, it should have been obvious to the decedent that there was a danger of the scaffold tipping over and landing on him, and that this danger was more likely if someone was atop the scaffold or if the scaffold’s path of movement was not clean and clear. As such, Allstates did not prevent the decedent from making an informed decision on whether or not to expose himself to the risk. Furthermore, as stated in Fleet-wood, Garcia cannot add together all of the small risks of injury created by All-states’ conduct “in order to reach a combined total where the likelihood of injury to some employee sometime was substantially certain.” 833 So.2d at 869. Consequently, the facts of this case do not rise to the level of an intentional tort to qualify as an exception under Turner, 754 So.2d at 686.

The element of cover up, deception or concealment of a known danger that is prevalent in the aforementioned cases is missing here. Rather, as in Bakerman and Allstates, the dangerous condition was open and obvious to Casas. And, as noted in Fleetwood, the injuries incurred while performing a moderately dangerous, repetitive job should not be classified as intentional torts.

Moreover, we disagree with appellant’s argument that reversal is mandated by the Florida Supreme Court’s statement in Turner, issued in 2000, that it was receding from its earlier decision in Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879 (Fla.1986), “to the extent [that Lawton ] could be read as rejecting the facts as stated therein as sufficient basis to support an allegation of substantial certainty of injury.” Turner, 754 So.2d at 691 n. 8 (emphasis added).

Lawton sought to recover on allegations that his employer had affirmatively removed the operation guards to its press despite the manufacturer’s repeated warnings, and had then failed to warn its press operators of the dangers of operating the press as altered. Unlike Lawton, however, there is no allegation here that Siemens both removed safety devices and then failed to warn or hid the risks inherent in such acts. Rather, Casas alleged that he had been inadequately trained; that the machine press with which he worked was inherently dangerous, often malfunctioned and was in need of safety upgrades; and that his employer had “actual knowledge that the press did not have any point of operation guards in place for its safe usage.” We find that these allegations are refuted by the record and/or are legally insufficient on the particular circumstances of this case.

First, as to the allegation that he had not been adequately trained, the record clearly shows that Casas, like the other punch press operators, had received one-on-one, on the job training with an experienced press operator for three months before he was allowed to operate machine 409 by himself. The record also demonstrates that Casas then operated the punch press for an additional four months without incident. Shortly before his injury, Casas was disciplined for leaving a tool inside the machine, to which he admitted being careless. At that time, Casas was offered additional training by his supervisor, but he refused, assuring his supervisors that he was “well-trained” to operate the press.

Second, there is no disputing Casas’ allegation that machine 409, a 150-ton punch press, was inherently dangerous or that it, like any other machine, malfunctioned from time to time and was in need of safety upgrades. Nevertheless, the record shows that this machine had been in operation since 1966, during which time various punch press operators had operated the machine for sixteen hours a day (two eight-hour shifts), without incident or injury, for at least ten years before Casas was injured. In fact, the record confirms that no one had sustained a serious crushing injury in any of the twenty or so other presses operated at this plant for at least twenty years before Casas was injured.

Moreover, each and every witness to testify, including Casas, confirmed that it was a strict rule that employees were never to put their hands or body parts into the presses while they were turned on. Hence, notwithstanding Casas’ testimony that his supervisor told him that it was unnecessary to turn the power off when removing a stuck metal lid from within machine 409 with the aid of a long tool, there was no evidence that Siemens did anything to hide the dangers associated with this action or to prevent Casas from making an informed decision on whether or not to expose himself to the risk, as did the employer in Lawton.

Third, the record completely contradicts Casas’ allegation that his employer had “actual knowledge that the press did not have any point of operation guards in place for its safe usage.” Indeed, the uncontra-dicted evidence was that machine 409 was equipped with two one-half inch thick Plexiglas guards at its front and left sides and metal guards on the machine’s right side where the metal feeder was located. There were no guards on the backside of the press, which could be accessed only by crawling under it. These guards, again the uncontradicted evidence shows, are point of operation guards, which comply with Occupational Safety and Health Administration (OSHA) requirements, and had been in place on this machine for over ten years. See 29 CFR § 1910.217(c)(2)(f)(iii)(approving for use as point of operation guards a “fixed barrier guard”). Other than for the purpose of changing the die, at which time the press was supposed to be completely turned off, operators were not permitted to operate this press without the Plexiglas guards in place. Significantly, both a supervisor at the plant where Casas worked and the employee who worked next to Casas (and who operated this press for ten years before he trained Casas to run it) testified that they had never seen machine 409 operate without the plastic guards in place, and, if the supervisor had seen it operating without the guards in place, he would have shut it off. Yet, for reasons unknown to the employer, the Plexiglas guards were not in place when Casas was injured.

Casas also fails to point to any evidence to support his claim that Siemens “knew that Machine 409 did not have point-of-operation guarding, which exposed its employees to serious injury.” The testimony of John Samilian, a plant manager hired by Siemens to up-grade its safety equipment, does not support this assertion as Casas suggests. Samilian, who as Casas concedes, had “no familiarity with OSHA requirements for machine guarding,” testified only generally that Siemens’ presses did not have OSHA conforming guards. He did not testify that machine 409 had no OSHA compliant guards. And Siemens’ interrogatory admission that “[tjhere were no point of operation guards on the subject power press at the time of the accident,” proves only that no guards were in place at the moment of Casas’ injury, not that no guards existed at all. Not even Casas’ expert, who reviewed all of the discovery taken in this case, opined that machine 409 had no OSHA compliant point of operation guards.

The uncontradicted evidence was that machine 409 had OSHA compliant point of operation guards which were supposed to be, but were not, on the machine at the moment Casas was injured. While Casas may or may not have known of Siemens’ plans to up-grade the point of operation guards on its machines from Plexiglas barriers to light barriers with automatic shut offs, Siemens neither concealed the dangers involved with working on this openly dangerous machine, nor somehow prevented Casas from making an informed decision on whether or not to expose himself to the risk of operating this machine without its existing OHSA compliant point of operation guards.

Nothing in Casas’ deposition contradicts this conclusion as the dissent suggests. Casas’ characterization of his on-the-job training, during which he states he operated the machine by himself “[pjractically since the first day,” and as “short” rather than “extensive” as Siemens claimed, does not support the dissent’s suggestion that he had not been instructed in the dangers of operating this machine. No matter how it is characterized, the training, which was not described by Casas but by the experienced supervisor who conducted it, consisted of the following:

Q. What was the first thing that you did with Mr. Casas?
A. First I started training him for the setup showing him all of the safety equipment and how to operate the machine.
Q. Why did you show him that first?
A. To train him first I had to show him the safety of the machine and show him how to use it.
Q. In other words, were you the operator that was, in addition to showing Ca-sas what to do, the person that was operating the press?
A. I was operating that machine....
Q. And did he stand with you and watch you do the job?
A. Yes.
Q. For how many hours or how many days did he do that?
A. I don’t remember the exact time but the training lasted like three months.
Q. And how long did you work with him on a daily basis training him?
A. About three months.
Q. How far into the training was it before Casas started to serve as the machine operator by himself?
A. I don’t know exactly but like one month, one month and a half.
Q. Before when I asked you about when Mr. Casas started operating the machine I thought you said a month and a half.
A. Yes.
Q. Did he start actually doing operations on the machine earlier than that?
A. We would do it together.
Q. By “together” you mean you would stand with him?
A.' Yes. Teaching him.
Q. By the end of a month and a half was he working on the machine by himself?
A. No.
Q. And when did you consider Mr. Ca-sas done with his training?
A. I believe like three to four months that we saw good progress in him.

The implication left by the dissent that this months’ long, hands-on, on-the-job training is somehow inadequate, is wholly unsupported by the record. There is no testimony whatsoever that any other training method was recommended, necessary or appropriate or that written materials were essential or necessary in learning how to operate this machine. There also is no evidence that any special education, knowledge, training or skill is necessary to operate this machine. In fact, the record shows that operation of this machine was extraordinarily simple: metal was fed into the machine at one end, and the top part of the machine, the ramp, came down with great force onto the bottom of the ramp onto which a die was affixed, stamping out a metal part which was then ejected from the machine. Whether characterized as extensive or short, there is no evidence that the three months of hands-on, on-the-job training that he received was in any manner inadequate to instruct Casas “about the various dangers involved in operating the press,” the standard that the dissent claims must be met. See Turner, 754 So.2d at 691 n. 8.

The dissent also mischaracterizes Casas’ testimony when it concludes that Casas “had been told it was unnecessary to turn the power off before reaching into the machine to clear a jam,” and that “he had been taught that it was safe to clear a jam by extending one’s hand into the working area of the machine without turning off the power.” (Emphasis added). Casas confirmed only that he had been told it was unnecessary to de-power the machine to clear a jam by inserting a long metal rod or screwdriver into the machine. This is not only correct but consistent with all other testimony that machine 409 was equipped with Plexiglas barriers which have small holes in them through which a five foot long metal rod or screwdriver— but not one’s hands — may be inserted to clear a jam. When using this method, it is not necessary to de-power the machine. Thus, Casas was correct when he testified in his deposition, as quoted by the dissent, that it was not necessary to turn the machines off to clear a jam and that “a supervisor would say that it was not necessary to turn off the machine.”

That does not mean that the machine did not have to be de-powered when the barriers were removed to either clear a jam or to change the die. Casas knew this and did not testify otherwise:

Q. When the machine would get stuck at times because there would be a piece of material in there, who would fix that?
A. When the piece would get stuck, we have a rod and we take the piece out with the rod and when you can’t with the rod, you use a screwdriver to give it more pressure to take the part out.
Q. Were you taught the proper and safe way of taking a part out of the machine when it got stuck?
A. Guillermo [Marin (the supervisor who trained Casas) ] would tell me how to do it and I would do it in several occasions. Initially, he would do it and then after that, it was my turn to do it.
Q. So you were taught the safe and proper way to do it?
A. Yes. Well, how to do it, yes.
Q. Describe to me the safe and proper procedure to remove a stuck part of a piece that gets stuck in the machine, walk me through what you would do to fix that situation?
A. Take the rod and find a way of removing it so that it can be thrown out, that’s all, that’s what I was taught.
Q. Would you shut the machine down first?
A. That, I was not taught because it was a matter of something that was simple to take it out.
Q. Don’t you think it would be good, common sense to turn that switch off and turn the machine off if something got stuck in the machine and you have to fix it?
A. Yes.
Q. Did you ever do that?
A. No, because a supervisor would say that it was not necessary to turn off the machine.
Q. Were you taught that if something got stuck in the machine and you had to take it out, that you should always use a rod or a screwdriver and never put your hands into it?
A. Yes.
Q. Why would you use a rod or a screwdriver and not your hands?
A. To be able to take the part out because there’s no way of taking out the part with your hand.
Q. It could also be dangerous to put your hand in that situation, correct?
A. Exactly.
Q. That’s common sense?
A. Yes.

(Emphasis added).

With all due respect to the dissent, Ca-sas does not once state or suggest that he was taught that it was safe to clear a jam with one’s hand without de-powering the machine. There is, therefore, no evidence that the “supervisor who instructed” him “misled him about the risk.” The Turner “test” simply was not met.

Under the circumstances, we agree with the trial court that the evidence was legally insufficient to support liability under the intentional tort exception. Accordingly, we affirm.

RAMIREZ, J., concurs.

COPE, C.J.

(dissenting).

Respectfully, I believe the majority opinion reads the record in favor of the wrong party. We should reverse the judgment on authority of Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879 (Fla.1986), as modified by Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000).

As stated in the majority opinion, plaintiff-appellant Rodolfo Casas'was a machine set-up operator for the operation of a mechanical punch press machine which stamped metal lids. His duties included setting up the machine for operation and actually operating it.

The plaintiff had been instructed that if a metal lid became stuck in the machine, the plaintiff should remove it with a long metal rod or with a long screwdriver. While attempting to clear a stuck metal lid, the machine cycled and crushed the plaintiffs arm.

The plaintiff sued defendant-appellee Siemens Energy & Automation, Inc., the owner of the manufacturing plant. The plaintiff invoked the intentional tort exception to workers’ compensation immunity. Under that exception, “in order to prove an intentional tort, the employer must be shown to have either ‘exhibitefd] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.’ ” Turner, 754 So.2d at 687 (citation omitted).

In my view, reversal is required on account of the Lawton case, which is similar to the present case. The facts of Lawton were:

Alpine Engineered' Products purchased a punch press from Federal Press Company in 1972. In 1981 Carl Lawton, a punch press operator employed by Alpine, caught his hand in the press when a co-worker accidentally put the press into operation as Lawton attempted to adjust the machine. The press crushed Lawton’s hand and caused the loss of all the fingers on that hand. Following the accident, Lawton applied for and received workers’ compensation benefits from Alpine’s insurance carrier and filed suit against Federal Press Company. During the course of discovery, Lawton learned that between February 1972 and August 1980 Alpine had received numerous written communications from Federal Press informing Alpine that, for safety reasons, point of operation guards should be provided on the press and that operators should be instructed about the various dangers involved in operating the press.

498 So.2d at 880 (emphasis added). The Florida Supreme Court has stated that the foregoing facts were sufficient to support an allegation of substantial certainty of injury. Turner, 754 So.2d at 691 n. 8.

In the present case, the defendant’s plant manager, John Samilian, testified that the plaintiff was given extensive training on how to operate the press at issue here, Machine 409. Deposition of John Samilian (“Samilian Deposition”), Oct. 15, 2002, at 122. Machine 409 had a Plexiglas guard which was designed to prevent an operator from placing his hand in the working area of the machine. According to the manager, the plaintiff was instructed to clear a jam by using a metal rod which could be inserted in a small opening in the Plexiglas guard. If that was not successful in clearing the jam, then the operator was to turn off the electrical power and insert a metal dowel which would prevent the press from descending. When that had been done it was permissible for the operator to bypass the Plexiglas guard and clear the jam by hand. The defense claims, and the majority opinion accepts, the proposition that the plaintiff “received one-on-one, on the job training with an experienced press operator before he was allowed to operate machine 409 by himself.” Majority opinion at 11.

We are, however, obligated to read the record in the light most favorable to the plaintiff as the nonmoving party. See St. Joe Corp. v. McIver, 875 So.2d 375, 377 (Fla.2004). The plaintiff in this case denied that he had received extensive training on this machine prior to beginning to operate it. Deposition of Rodolfo Casas (“Plaintiffs Deposition”), Dec. 12, 2002, at 20-23. He stated that he had short intervals of training by a coworker. Id. He began operating the machine by himself “[pjractically since the first day.” Id. at 23. He was given no written materials, id., and simply received on-the-job training. While the plant manager testified about the company’s training procedures, the plant manager acknowledged that training was handled by the supervisors and group leaders and was not handled by the manager personally. Samilian Deposition at 127.

On the day of the accident, the Plexiglas guard was not on the machine. Under the defendant’s procedures, a set-up operator like the plaintiff was allowed to remove the Plexiglas guard. The defendant maintains that the plaintiff removed the Plexiglas guard himself, while the plaintiff apparently denies this. See R. 977. It is, however, immaterial who removed the Plexiglas guard.

The plaintiff testified that he had been told it was unnecessary to turn the power off before reaching into the machine to clear a jam. The plaintiff testified in part:

Q. Well, is there a way to completely shut the machine down either by turning off the electricity or turning off an on or off switch or unplugging it?
A. Yes, there is a switch that you would turn everything off completely.
Q. Where is that switch located?
A. At one side of the machine.
Q. Don’t you think it would be good, common sense to turn that switch off and turn the machine off if something got stuck in the machines and you have to fix it?
A. Yes.
Q. Did you ever do that?
A. No, because a supervisor would say that it was not necessary to turn off the machine.

Plaintiffs deposition at 38-39 (emphasis added).

Again:
Q. But you certainly knew from common sense before this accident that you should never put your hands in the zone of danger under the ramp?
A. Supposedly, if I am not touching the controls, the machine has no reason to go down or up.

Id. at 55. The plaintiffs understanding was: “Well, supposedly if one is not using the controls, the machine remains off.” Id. at 37.

In the Lawton case, the press did not have point of operation guards and the operators had not been instructed on the various dangers involved in operating the press. 498 So.2d at 880. The situation is similar here. Machine 409 had a Plexiglas guard, but it had been removed. The real problem here is that by the plaintiffs account, the supervisor had told him that it was permissible to leave the electrical power on while clearing a jam. The plaintiff had the impression that it would be impossible for the machine to cycle so long as he stayed away from the controls.

At the time of the accident the plaintiff was operating the machine using the foot controls rather than the hand controls. The plaintiff denied that he stepped on the foot controls and testified that the machine inexplicably cycled when he dislodged a stuck metal part by reaching into the machine using a foot-long screwdriver. The machine descended and caught his hand in the press. The plaintiff testified that there had been electrical problems with the machine and believed that was the cause of the accident. The defendant tested the machine after the accident and reported that the machine controls were operating normally.

At the summary judgment hearing plaintiffs counsel acknowledged that it appeared the plaintiff had become distracted while attempting to clear the jam and inadvertently stepped on the foot pedal. Because of the concession at the summary judgment hearing below, I accept the proposition that the plaintiff inadvertently stepped on the foot pedal.

The point of requiring safety devices and proper training is to prevent inadvertent injury while operating dangerous equipment. It is obvious that the press involved in this case presents the opportunity for serious injury, whether through distraction, fatigue, or operator error. Safety devices are required precisely because human beings are fallible. As the defendant’s corporate director of safety testified in deposition, with these machines there are no second chances. Deposition of Walter Hazelwood, Feb. 19, 2003, at 110.

The defendant may have had an excellent training program 5n paper, but the plaintiffs testimony — which we must accept as true for present purposes — was that the reality fell far short of what was described in the defendant’s depositions. The plaintiffs testimony was that he had been taught that it was safe to clear a jam by extending one’s hand into the working area of the machine without turning off the power. The supervisor who instructed the plaintiff had misled him about the risk. That testimony would, if believed by the jury, satisfy the substantial certainty test. See Turner v. PCR, Inc., 754 So.2d at 691 n. 8; Lawton v. Alpine Engineered Products, Inc., 498 So.2d at 880.

The majority opinion relies on Bombay Company, Inc. v. Bakerman, 891 So.2d 555 (Fla. 3d DCA 2004), review granted, 903 So.2d 189 (Fla.2005), but that opinion is not applicable here. In Bombay the piece of equipment at issue was a conventional wooden ladder, and this court concluded that the risk of injury from using the ladder was obvious. 891 So.2d at 557. In the present case, as in Lawton, the hazard was much greater and, by the plaintiffs account, he was misled regarding the risk.

Reversal is in order.

      . In 2003, the Legislature codified this court-created intentional tort exception to the worker's compensation law, but in. doing so, adopted a stricter "virtual-certainty standard” thereby modifying the standard announced in Turner. See Travelers, 889 So.2d at 784, n.'5 (isiting ch.2003r412, § 14, at 3890-91, Laws of Fla.). Under this provision, which became effective October 1, 2003, an injured employee can satisfy the intentional tort exception and thereby avoid the exclusive remedy provisions of the worker’s compensation law, "by proving by clear and convincing evidence that his employer 'deliberately intended to injure him’ or that his employer engaged in conduct that the employer knew, based on prior similar incidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.” Id. (quoting § 440.1 l(l)(b)(2), Fla. Stat. (2003)).

        Because the incident in this case occurred in 2000, the 2003 amendment, with its stricter standard, does not apply. See The Bombay Co., Inc. v. Bakerman, 891 So.2d 555, 556 n. 1 (Fla. 3d DCA 2004) (confirming that the 2003 amendment to section 440.1 l(l)(b)(2) does not apply to events which precede that amendment), review granted, 903 So.2d 189 (Fla.2005).

      . Finding no concealment and that the dangerous condition was evident to the employee, we concluded in Bakerman that the evidence was legally insufficient to support liability under the intentional tort exception to worker's compensation immunity. Bakennan involved an employee injured in a fall from a ladder used for retrieving merchandise from a storeroom. “The ladder was in bad condition and swayed from side to side when someone climbed it. To reach merchandise on the upper shelves, it was necessary to stand on the top step of the ladder.” Bakerman, 891 So.2d at 556. Both the employee and the store manager had complained to the area supervisor that the ladder was too short and dangerous. Despite these complaints, the supervisor refused to replace the ladder.
      The jury found that the employer had engaged in conduct substantially certain to result in injury or death. The trial court refused to set the verdict aside. We reversed and remanded for entry of summary judgment in the employer’s favor. Id. at 55-57.

      . In Turner, one employee had been killed and one injured in a chemical plant explosion. The complaint alleged that the employer "failed to protect its employees from a known danger of explosion and instead ... engaged in conscious and intentional conduct which was substantially certain to result in injury or death”; “designed an extremely dangerous system ... which it knew exceeded its capacity”; and, “despite such knowledge, the defendant intentionally concealed from its employees these dangers.” Turner, 754 So.2d at 689-90, n. 7. It also alleged that the employer "did not make safety equipment available, provided inadequate safety equipment to its employees, failed to instruct its employees on appropriate and proper safety procedures, and intentionally subjected the plaintiff to a known dangerous condition which was substantially certain to result in injury or death.” Id. Additionally, the affidavits filed in opposition to the employer's motion for summary judgment attested to “ 'at least three' other uncontrolled explosions ... in just under two years,” thereby supporting the allegations regarding the employer's knowledge that its conduct was substantially certain to result in injury or death. Id. at 690.

      . The record shows that whenever one of these presses malfunctioned, the operator was to immediately shut it off and report it to maintenance. The press then remained tagged and unpowered until fixed by the maintenance personnel at the plant.

      . The only evidence of any other press injury comes from a worker's compensation report which states that, in October 1999, an employee’s finger was lacerated by a brake press and that the employee received “first aid” at a local hospital. The report also states that the employee lost no time from work, confirming that the injury was minor.

        . Although "set-up” operators, such as Casas, were permitted to reach into the press to change dies, they were taught to do so only after power to the presses had been turned off.

      . The uncontradicted testimony was:
      Q. At the time you saw this press, did it have any interlock guards on it or did it have any light curtains, anything of that nature?
      A. I don't remember anything but the barrier guards.
      Q. And this was these three [Plexiglas] barrier guards?
      A. Yes, ma'am.

      Q. What are the methods of point of operation guarding that are permitted by OSHA on power presses?
      A. Barrier guards; light curtains, gates, mechanical pullbacks, or a combination of distance of the controls from the point of operation.

      Q. Okay. I am looking under C, Subsection 2 where I believe it references the point of operation guards as OSHA describes them. Would those be a die enclosed guard, a fixed barrier guard or an interlocked press barrier guard?
      A. Could be all of the above.

      A. Light curtain is just another way of preventing entry into that area. Could be a barrier guard. Could be a gate. A light curtain is a lot more flexible as far as the operator is concerned and easier to perform their operations.

      Q. Now, when we were talking about the light curtain before, and I forgot the exact terminology you used, but you indicated depending on the function of the machine or the practical aspects of the use of the machine, you would choose to either put a light curtain or a barrier guard. Is that right?
      A. Right.
      Q. Now, am I correct then that ideally at that time this type of press being used for this type of a function was supposed to have a light curtain as its safety device?

      A. No. Barrier guards are fine on that.
      (Emphasis added).
      When Siemens purchased this plant in 1998, all of the presses had some type of point of origin guards. However, Siemens decided to voluntarily upgrade existing safety equipment to obtain a "star award” from OSHA. To achieve this end, the plant where Casas worked was surveyed and two individuals, one of whom was a mechanical engineer, were hired to accomplish an upgrade. In late 1999, bids were solicited and, by June of 2000, quotations from three vendors (as required by Siemens' procedures) had been obtained. As required by Siemens' procedures, the Miami plant then submitted a formal request to the Atlanta office for funds to pay for these safety-related upgrades. Although the request was ultimately approved and the upgrades made to all of the presses, machine 409 had not been upgraded at the time of Casas' injury.

      . While the record confirms that the front Plexiglas guard was not affixed to the press at the time of Casas’ injury, there is no evidence as to who removed the guard or when it was removed.

      . The evidence was that following Casas' injury, the guards were found on the ground at the base of the machine.

      . The record in this case, unlike that in EAC USA, Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001), does not show that the employer in-slructed its employees to engage in known dangerous practices.

      . This question was not covered in the Plaintiff’s Deposition. At the summary judgment hearing, the plaintiff's counsel stated that the plaintiff denied removing the guard. R. 977.

      . Respectfully, the major flaw in the majority opinion is highlighted on page seventeen where the majority says, “No matter how it is characterized, the training, which was not described by Casas but by the experienced supervisor who conducted it, consisted of the following [quoting supervisor's deposition].” The problem is that the supervisor's description of the training he says he conducted is squarely contradicted by the plaintiff's deposition stating the training he received. The majority opinion accepts the supervisor’s testimony as being true. But under summary judgment standards, we must accept the plaintiff's testimony as being true. "Upon review of the entry of a summary judgment, an appellate court must review the record and any supporting affidavits in the light most favorable to the non-moving party.” Turner v. PCR, Inc., 754 So.2d at 684 (Fla.2000) (citation omitted). This means that the factual conflicts must be resolved in favor of the plaintiff as the non-moving party, and all reasonable factual inferences, must be viewed in the light most favorable to the plaintiff. See Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003); Holt v. Talcott, 191 So.2d 40, 43 (Fla.1966). That being so, we must accept as true the plaintiff’s testimony that he was set to work on this machine with relatively little training and with what turned out to be a tragically inadequate understanding of how the machine works.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERIQUEST MORTGAGE COMPANY, Appellant, v. Wilford Casey FREDERICK, Appellee.
    No. 3D05-1540.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied April 27, 2006.
    Broad and Cassel and Steven Ellison and Talina Bidwell (West Palm Beach), for appellant.
    Kara D. Phinney, Miami, for appellee.
    Before LEVY, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Wicker v. Bd. of Pub. Instruction, 106 So.2d 550 (Fla.1958); Demorizi v. Demorizi, 851 So.2d 243 (Fla. 3d DCA 2003). See also Fernandez v. Suburban Coastal Corp., 489 So.2d 70 (Fla. 4th DCA 1986) (equity will prevent wrong result where foreclosure sale price grossly inadequate and results from mistake, accident, surprise, fraud, misconduct or irregularity).


author: ROTHENBERG, Judge.

text:
    F.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-851.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied May 19, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

F.D., a juvenile, was charged with possession of a weapon on school property. In this appeal, he claims there was insufficient evidence, as a matter of law, to support the trial court’s finding adjudicating him delinquent. We affirm.

F.D. did not dispute and, in fact, admitted at the adjudicatory hearing, that he had a knife in his possession on school grounds. He testified at the hearing that, as he was walking through the parking lot of the school with his friend, Jose, Jose found a knife and picked it up. Based upon prior difficulties with Jose and his concern that Jose might use the knife to stab someone, F.D. testified that he took the knife from Jose intending to turn it in at the main office of the school. Because he was late getting to school that day, he needed to obtain a pass before going to the main office. As he was standing in line in the cafeteria to obtain a pass, the assistant principal approached him, at which point the knife fell out of his pocket. The State’s evidence included the introduction of the knife in question and the testimony of the assistant principal. The assistant principal stated that based upon a tip, he asked F.D. to step outside the cafeteria with him, and as they were exiting the cafeteria, F.D. pulled his hands out of his pockets causing the knife to fall to the ground.

F.D. argues that where the only proof of guilt is circumstantial, an adjudication of delinquency cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. He thus claims that because his explanation was unrefuted, exculpatory, and not unreasonable, the trial court erred by not concluding that the evidence was insufficient as a matter of law. While we agree with the legal theory upon which F.D. relies, we conclude his reliance upon it is misplaced.

If the only proof of guilt is circumstantial evidence, a finding of guilt or an adjudication of delinquency cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187 (Fla.1989); L.S. v. State, 591 So.2d 1105 (Fla. 4th DCA 1992); L.R. v. State, 559 So.2d 389 (Fla. 3d DCA 1990). The State’s case, however, was not based solely on circumstantial evidence. In this case, the State presented direct evidence and physical evidence. The State introduced the knife, and the assistant principal testified that, as F.D. was exiting the school cafeteria, he observed the knife fall when F.D. removed his hands from his pockets. As F.D. was charged with possession of a weapon on school property, the assistant principal’s eyewitness testimony and the introduction of the physical evidence constitutes direct evidence of guilt. When direct evidence of guilt is introduced, the State is not required to rebut a reasonable hypothesis of innocence. Fitzpatrick v. State, 900 So.2d 495, 496 (Fla.2005). We, therefore, review the trial court’s finding, adjudicating F.D. delinquent, de novo. Fitzpatrick, 900 So.2d at 507; I.M. v. State, 917 So.2d 927 (Fla. 1st DCA 2005)(“We review de novo the trial court’s ruling on a motion for judgment of acquittal. The same standard of review applies in the context of juvenile adjudicatory proceedings, although the motion is properly designated a motion for judgment of dismissal.”) (citations omitted).

F.D. argues that the explanation given for his temporary possession of the weapon on school property was not unreasonable and was unrefuted, thereby rendering the State’s case insufficient as a matter of law. In support of this proposition, F.D. relies on R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984), E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989), R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981), and H.M. v. State, 802 So.2d 1185 (Fla. 3d DCA 2002). We conclude, however, that F.D.’s reliance on these cases is misplaced.

H.M. was a circumstantial evidence case. We have already noted that this case is not. We, therefore, find that H.M. is inapplicable to our analysis in the instant case.

F.D. was charged with possession of a weapon on school property, pursuant to section 790.115, Florida Statutes (2005), which is a general intent crime. This statute makes it unlawful to willfully and knowingly possess a weapon on school property, unless authorized in support of a school-sanctioned activity. Thus, the State was required to prove the following essential elements beyond a reasonable doubt: that F.D. (1) knowingly and willfully possessed a weapon; (2) on school property; and (3) without authorization to do so.

In contrast, R.M., E.L.S., and R.A.L. were all theft cases charged under section 812.014, Florida Statutes, which is a specific intent crime, requiring that the State prove beyond a reasonable doubt that the defendant (1) knowingly and unlawfully obtained, used, endeavored to obtain, or endeavored to use the property of the victim; and (2) with the intent to either temporarily or permanently deprive the victim of his/her right to the property or any benefit from it, or to appropriate the property to his own use or to the use of any person not entitled to it. Thus, the State was required to prove beyond a reasonable doubt, in these three cases, not only that the defendant(s) knowingly obtained or endeavored to obtain the property of another, but also that the conduct was done with the intent to deprive the owner of its use or with the intent to appropriate it to the defendant’s or someone else’s use.

In R.M., E.L.S., and R.A.L., each presented unrefuted, not unreasonable explanations regarding the possession of the property in question which specifically called into question an essential element of the crime charged: that the accused knew that the property was stolen (that he unlawfully possessed the property with the intent ...). In contrast, since F.D.’s explanation did not cast doubt as to an essential element of the crime charged, it did not affect the State’s burden of proving each element beyond a reasonable doubt.

Additionally, while F.D. offered an explanation for his possession of the knife on school property, (a completed crime), the trial court was not required to find that his explanation was either reasonable or credible. F.D. claimed that he did not immediately take the knife to the principal or hand it over to anyone with authority because he was late to school and went to the cafeteria to pick up a pass before doing so. When F.D. moved for judgment of dismissal, the state argued that F.D. could have gone directly to the office under the circumstances if in fact he truly intended to hand it over to the school authorities. See Coleman v. State, 466 So.2d 395 (Fla. 2d DCA 1985)(holding that if the explanation given is only arguably reasonable, or if there is any evidence which places it in doubt, the motion for judgment of acquittal should not be granted).

As there was substantial, competent evidence to prove the elements of the crime beyond a reasonable doubt, we sustain the trial court’s finding adjudicating F.D. delinquent. Fitzpatrick, 900 So.2d at 507.

Affirmed.


author: SHEPHERD, J.

text:
    The STATE of Florida, Appellant, v. Maritza FERNANDEZ, et al., Appellees.
    Nos. 3D04-3063, 3D04-3062, 3D04-3061.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied May 19, 2006.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellant.
    Kenneth P. Speiller, for appellees.
    Before LEVY, SHEPHERD, and ROTHENBERG, JJ.
   SHEPHERD, J.

The State appeals a trial court decision to award downward departure sentences to three defendants, Maritza Fernandez, Maria DelGuidice, and Justo J. Echavarria. We affirm.

In September 2002, the State charged defendants by indictment with 189 counts of racketeering, intellectual property offenses, forgery, bribery, and unlawful compensation in violation of sections 895.03(3), 831.01, 838.015(1), and 838.016(1) of the Florida Statutes. According to the indictment, defendants misused their positions as State of Florida Driver License Examiners to forge and sell fraudulent driver licenses. The lowest permissible guidelines sentence for these defendants ranged from 5.7 to 6.9 years.

On November 18, 2004, the trial court held a plea hearing. At the commencement of the hearing, the State announced that it had withdrawn all prior plea offers in the case. The offers withdrawn were for 180 days in jail plus five years of probation per defendant. Each defendant then offered in open court to plead guilty to the charges in exchange for adjudication withholds and five years’ probation. The following discussion ensued:

[Court]: [Biased on the stipulation of the parties and my review of the court file I find that there’s a factual basis for each plea of guilty. That each defendant is alert, intelligent, and understands the nature and consequences of his or her plea.
[A]nd before I impose the sentence that is being offered here, I was told earlier that there was a main culprit, a Mr. Nunez, is that correct, [Prosecutor]? [Prosecutor]: That’s right, Judge. The main, the A defendant shall we say, and who was charged with more incidents and who was a coordinating individual with regard to the activity that was going on inside the driver’s license office ... was offered ... and [ ] accepted one year of State prison followed by two years of community control followed by three years of probation.

The court then accepted the pleas as offered by each defendant, over the State’s objection, stating:

[B]ecause the State offered below guideline pleas the Court is at liberty to accept plea offers below the guidelines. That’s the only reason why I am accepting this plea under the guidelines, legal reasons. Other reasons ... are that I understand that these people do not have a prior record. These were not violent offenses committed. Ml these people have family obligations and ... I just feel that in this case where the State contemplated or made offers below the guidelines and the discrepancy is only six months in jail, there are many first offenders that don’t do six months in jail.

The State contends that the trial court’s decision to impose a downward departure sentence is unlawful because the departure is not supported by substantial competent evidence and because it was not reduced to writing. See Banks v. State, 732 So.2d 1065, 1067 (Fla.1999) (“[Wjhether there is a valid legal ground and adequate factual support” to uphold a decision on whether or not a court “can depart” ... is a mixed question of law and fact and will be sustained on review ... if competent substantial evidence supports its ruling.). See Franquiz v. State, 682 So.2d 536, 538 (Fla. 1996) (“a trial court must determine and state in writing ... whether valid reasons exist for a downward departure from a guideline sentence for a revocation”).

The trial court articulated six reasons for accepting the defendants’ pleas in this case: (1) no prior records; (2) defendants each had family obligations; (3) the offenses committed were not violent; (4) other first time offenders do not receive prison time; (5) the State previously had made below guidelines offers to these defendants; and (6) the main or “A” co-defendant, Jose Nunez, had received a downward departure sentence. . Defendants argue that the last of these reasons is a legally sufficient reason to support a decision to consider a downward departure sentence. We agree. See Sanders v. State, 510 So.2d 296, 298 (Fla.1987) (approving the consideration of a eo-defen-dant’s below guidelines sentence where co-defendant “was at least, if not more, culpable than defendant”); Marchetta v. State, 766 So.2d 1126 (Fla. 2d DCA 2000) (reversing guidelines sentence where trial court suffered from misimpression that it could not consider lower sentence of more culpable defendant).

If a legal reason is received by a court, we are compelled by section 921.002(3) of the Criminal Punishment Code in effect at the time of the crime, § 921.002(3), Fla. Stat. (2002), to affirm the court’s decision to depart even though all but one of the proffered reasons are not valid grounds to authorize a trial court to award a downward departure. Section 921.002(3) states:

A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026. The level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence. When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation. Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.

§ 921.002(3), Fla. Stat. (emphasis added). See Day v. State, 746 So.2d 1219, 1220 (Fla. 1st DCA 1999) (“[wjhen multiple reasons exist to support a departure from a guidelines sentence” has been interpreted to reflect “the legislative intent that departure sentences may be reversed only upon a showing that each reason given for a departure sentence is invalid”).

We conclude the trial court was legally authorized to consider awarding these defendants’ downward departure sentences. Whether the trial court should have done so is “a judgment call within the sound discretion of the trial court.” Banks, 732 So.2d at 1068. Whatever our personal views might be, we are unable to conclude the trial court abused its discretion under the facts and circumstances of this case. Sanders, 510 So.2d at 298 (“each [downward departure] must be decided entirely on its own facts and circumstances”). Finally, the fact the trial court failed to file written reasons in support thereof is not fatal. See Pease v. State, 712 So.2d 374, 376 (Fla.1997) (failure to file written reasons for downward departure was not fatal where valid reasons were pronounced orally at sentencing).

Affirmed.

      . This court affirmed this sentence, holding that the prosecution acquiesced in the sentence at the plea hearing. See State v. Nunez, 855 So.2d 698 (Fla. 3d DCA 2003).

      . Although cited as additional reasons for departing from the guidelines, the trial court correctly recognized that the other five reasons given for the departure sentence were legally insufficient. See Sanders, 510 So.2d at 297 (lack of prior convictions cannot be basis for downward departure); State v. Bray, 738 So.2d 962 (Fla. 2nd DCA 1999) (neither the fact that the crimes committed were nonviolent nor that the defendant needed to support a family member were valid reasons to support downward departure); State v. Parisi, 660 So.2d 372 (Fla. 4th DCA 1995) (trial court may not base downward departure on State’s revoked offer); State v. Cande, 473 So.2d 1362 (Fla. 3d DCA 1985) (non-violent nature of crime not sufficient because already contemplated by the guidelines). See also § 921.0026(2)(a)-(Z), Fla. Stat. (2002) (enumerating mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified).

      . The emphasized language was added to the sentencing guidelines applicable in this state, in substantially the same form as it appears today, in 1987. See Ch. 87-110, § 2, Laws of Fla. (effective July 1, 1987). Prior thereto, our supreme court held that for us to affirm a trial court’s decision awarding a downward departure where the court relied upon both valid and invalid reasons, we had to "conclude beyond a reasonable doubt that the [trial] judge would have imposed the same sentence without consideration of [the invalid factors].” Sanders, 510 So.2d at 298 citing Albritton v. State, 476 So.2d 158, 160 (Fla.1985). Because, unlike Sanders and Albrit-ton, the crimes in this case occurred after the effective date of the 1987 amendment, we are required to follow this more current legislative directive. See § 921.002, Fla. Stat. (“The Criminal Punishment Code shall apply to all felony offenses ... committed on or after October 1, 1998.”). See also Rock v. State, 800 So.2d 298 (Fla. 3d DCA 2001) (statutes in effect at time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed). But see Marchetta, 766 So.2d at 1126 (suggesting that reasonable doubt test survives).


author: SEMENTO, L. J., Associate Judge.

text:
    Douglas M. GUETZLOE, et al., Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 5D05-4.
    District Court of Appeal of Florida, Fifth District.
    March 10, 2006.
    Rehearing Denied May 2, 2006.

      Frederic B. O’Neal, Windermere, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Lynn C. Hearn, Deputy Solicitor General, Tallahassee, for Appellee.
   SEMENTO, L. J., Associate Judge.

Douglas M. Guetzloe, (“Guetzloe”) and Guetzloe Communications Group, Inc., (“GCG”), appeal a final order of the Florida Elections Commission, (“Commission”). The Commission found that Guetzloe and GCG violated Florida’s campaign finance laws by failing to include disclaimers in, and report expenditures for, certain independent political advertisements.

In 2003, Guetzloe and GCG paid for political advertisements directed against Darlene Yordan, (“Yordan”), a candidate for city commissioner in Daytona Beach. Each of the advertisements contained the words, “Paid political advertisement,” and one contained the words, “Pd. Pol. Adv. Paid for personally by Doug Guetzloe, Chairman of Ax the Tax. Ax the Tax is an issues-only political committee and does not make political endorsement.” Guet-zloe also bought air time for two radio advertisements which urged people to vote against Yordan. Both advertisements provided that they were paid for by “Doug Guetzloe, Chairman of Ax the Tax,” and one stated that Guetzloe had approved the advertisement. Guetzloe failed .to provide a written statement informing the radio stations that the advertisements had not been approved by any candidate. He also mailed a flyer that supported a number of candidates for public office, including the City Commission, which contained the words “Paid political advertisement, paid for by Doug Guetzloe, independent of any candidate or campaign.”

Guetzloe did not file an expenditure report with the Daytona Beach City Clerk, but did file a memorandum with the Clerk that listed expenditures of $4,476.80 for radio advertisements, printing, postage and telephone calls. However, the actual expenditures totaled $9,790.84. Yordan filed multiple complaints claiming that Guetzloe and GCG violated numerous campaign finance laws.

Following an investigation, the Commission found probable cause to conclude that Guetzloe and GCG violated section 106.071(1), Florida Statutes (2003) by failing to include disclaimer/disclosure language in the advertisements. Guetzloe requested a formal hearing, but the Commission denied the request after finding that he had failed to identify the facts in dispute. Instead, the Commission set an informal hearing and subsequently entered a final order finding that Guetzloe and GCG violated:

(1) Section 106.071(1) by failing to include the proper disclaimer on political advertisements paid for by independent expenditures;
(2) Section 106.071(1) by failing to timely file periodic reports of independent expenditures of $100 or more, on three separate occasions;
(3) Section 106.143(4)(b) by making independent expenditures for political advertisements submitted to radio stations for distribution and by failing to provide the station with a written statement that no candidate approved of the advertisements; and
(4) Section 106.19(l)(c) by writing a memorandum to the clerk reporting expenditures totaling $4,476.80 and by failing to file any report of the actual expenditures of $9,790.84.

The Commission determined that Guet-zloe’s actions were willful, and imposed $12,000 in fines.

On appeal, Guetzloe asserts that the Commission erred in finding him guilty of violating provisions of section 106.071(1) that require advertisements to display the name and address of the person who paid for the advertisements, because those provisions were stricken as unconstitutional by the Florida Supreme Court in Doe v. Mortham, 708 So.2d 929 (Fla.1998). Section 106.071(1) (2003) provided:

Each person who makes an independent expenditure with respect to any candidate or issue, which expenditure, in the aggregate, is in the amount of $100 or more, shall file periodic reports of such expenditures in the same manner, at the same time, and with the same officer as a political committee supporting or opposing such candidate or issue. The report shall contain the full name and address of each person to whom and for whom each expenditure has been made; the amount, date and purpose of each such expenditure; and the name and address of, and office sought by, each candidate on whose behalf such was made. Any political advertisement paid for by an independent expenditure shall prominently state “Paid political advertisement paid for by [name of person or committee paying for advertisement] independently of any [candidate or committee],” and shall contain the name and address of the person paying for the political advertisement.

In Doe, the Court declared that every disclosure requirement in section 106.071(1), save for the words “Paid political advertisement,” violated the First Amendment. 708 So.2d at 935. The Court eliminated the requirement that advertisements contain the name and address of the person sponsoring them and the requirement that each advertisement indicate that it is done independently of any candidate or committee. The Court stated:

To comport with the First Amendment, the last sentence in section 106.071(1) must be truncated to read: “Any political advertisement paid for by an independent expenditure shall prominently state ‘Paid political advertisement.’ ”

Id. at n. 17.

The Commission argues that Doe is inapplicable in this case, and attempts to distinguish the facts here from those in McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). In that case, Mrs. McIntyre stood outside a public meeting at a middle school with her son handing out leaflets— which she had composed on her home computer — opposing a school tax levy. The leaflets did not contain her name as required by the Ohio statute. She was convicted and fined. The Supreme Court struck the entire statute as unconstitutional, holding that “independent communications by an individual” embody the essence of the First Amendment. Id. at 335, 115 S.Ct. 1511. Here, Guetzloe used the name of a registered political committee, Ax the Tax, and nearly $10,000 from his political consulting firm, to conduct a direct mail campaign and radio advertisements calling for the defeat of a specific candidate. The Commission argues that Guetzloe’s speech is. not the type addressed in Doe or McIntyre, and that even if those cases do apply to Guetzloe, they could not apply to GCG since it is not an individual. We disagree.

Nothing in Doe suggests that the court intended to strike the identification requirement in section 106.071(1) only as it applied to individuals using modest resources. Such an interpretation would raise significant questions as to whom the truncated part of the statute applies, and we decline to apply Doe in such a fashion. Clearly, the court struck the offending language to preserve the constitutionality of the statute, intending that it apply equally to all individuals without regard to economic or other classifications. Further, section 106.071(1) applies to any “person,” which is specifically defined to include a corporation. Thus, Doe and McIntyre apply to GCG. The Commission erred in finding that Guetzloe and GCG violated the provisions of section 106.071(1).

Next, Guetzloe argues that because the disclosure . requirements in section 106.143(4)(b) are similar to those found in section 106.071(1), they are also barred by Doe. We disagree. Doe did not address section 106.143(4)(b), and this court cannot find any legal basis to extend Doe to bar the candidate approval disclaimers required therein. The Commission correctly found that Guetzloe and GCG violated the statute by failing to identify the person or organization sponsoring the advertisements.

Finally, Guetzloe argues that the Commission’s finding that he willfully violated the statutes is not supported by the evidence, and asserts that the commission erred in denying his petition for an evidentiary hearing on that issue. Willfulness is a question of fact, not law. See, e.g., Roche Sur. & Cas. Co. Inc., v. Dept. of Financial Serv. Off. of Ins. Reg., 895 So.2d 1189 (Fla. 2d DCA 2005). Here, the determination of willfulness was also based in part on a legal issue; the effect of Doe on the applicable statutes. Where there are questions of law and fact, an evidentiary hearing is required. E.g., Spuza v. Dep’t of Health, 838 So.2d 676, 678 (Fla. 2d DCA 2003). The Commission’s failure to allow Guetzloe and GCG an evidentiary hearing on the issue of willfulness constitutes reversible error.

The final order , of the Commission is reversed as to the violation of section 106.071(1), affirmed as to the violation of section 106.14S(4)(b), and reversed and remanded for a formal hearing on the issue of willfulness.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

PLEUS, C.J., and HARRIS, Senior Judge, concur.

      . Guetzloe is chairman and treasurer of “Ax the Tax,” a political committee, and president of Guetzloe Communications Group, Inc., a political consulting firm.

      . See Fla. R. Admin. Proc. 28-106.201.

      . The Commission noted that Guetzloe still owed money to the State for an unpaid fine that resulted from a prior violation of section 106.19(l)(c).

      . Section 106.011(8),- which contains definitions for terms used in chapter 106, defines “person” broadly to include "an individual or a corporation....”


text:
    STATE of Florida, Appellant, v. INTERNATIONAL UNION OF POLICE ASSOCIATIONS, Appellee.
    No. 1D05-2353.
    District Court of Appeal of Florida, First District.
    March 14, 2006.
    Rehearing Denied May 9, 2006.
    Michael Mattimore and Avery McKnight of Allen, Norton & Blue, P.A., Tallahassee, for Appellant.
    Richard Siwica of Egan, Lev & Siwica, P.A., Orlando, for Appellee.
   PER CURIAM.

The state seeks review of a final order confirming an arbitrator’s decision, over the state’s objections, in a labor dispute. The state raises three issues, only one of which we find necessary to address. Because we conclude that the proper forum for resolution of the dispute was the Public Employees Relations Commission (PERC) rather than an arbitrator, we reverse and remand with directions that the trial court set aside its final order confirming the arbitrator’s decision and enter an amended final order granting the state’s application to vacate that decision.

The collective bargaining agreement between the parties provides for resolution by arbitration of “grievances.” The term “grievance” is defined in that agreement as “a dispute involving the interpretation or application of the specific provisions of th[e] agreement.” From the outset, the state has argued, we believe correctly, that the dispute does not involve the interpretation or application of any specific provision of the collective bargaining agreement. We agree with the state that, if anything, the dispute involves whether a unilateral change in a term or condition of employment has occurred. As such, the dispute falls within the exclusive jurisdiction of PERC pursuant to the provisions of chapter 447, Florida Statutes. See Commc’ns Workers of Am. v. Indian River County Sch. Bd., 888 So.2d 96, 101 (Fla. 4th DCA 2004) (holding that, because the union’s complaint was arguably covered by chapter 447, absent deferral by PERC, it was subject to PERC’s exclusive jurisdiction). While PERC may have the power to defer to arbitration, only it may make that determination. Id. See also City of Miami v. Fraternal Order of Police, Miami Lodge 20, 511 So.2d 549 (Fla.1987). A party may not bypass PERC’s jurisdiction and proceed directly to arbitration. Commc’ns Workers of Am., 888 So.2d at 101. Because this is precisely what appellee did here, we are constrained to reverse and remand with directions that the trial court set aside its final order confirming the arbitrator’s decision and enter an amended final order granting the state’s application to vacate that decision. Our resolution of this issue renders it unnecessary for us to address the state’s remaining two issues relating to alleged improprieties on the part of the arbitrator.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER and BENTON, JJ., concur.


text:
    TRANSPORTATION CASUALTY INSURANCE COMPANY, Appellant, v. Mark J. FELDMAN and Paul Buechele, Appellees.
    No. 3D04-2914.
    District Court of Appeal of Florida, Third District.
    March 15, 2006.
    Rehearing Denied May 18, 2006.

      Wiederhold & Moses, and Robert D. Moses, West Palm Beach; Pallo Marks & Hernandez, and Bram Gechtman; Marjorie Gadarian Graham, Palm Beach Gardens, for appellant,
    Richard Burke, and Mark J. Feldman, Miami, for appellees.
    Before GERSTEN, GREEN and SUAREZ, JJ.
   PER CURIAM.

Appellant, Transportation Casualty Insurance Company (“Transportation”), appeals a final judgment awarding Mark Feldman (“Feldman”), $56,800.00 in attorney’s fees and costs pursuant to section 627.428, Florida Statutes (1991). We reverse.

Section 627.428, Florida Statutes (1991), authorizes an award of attorney’s fees for insureds who successfully sue their insurers. See § 627.428, Fla. Stat. (1991). Section 627.428, however, does not authorize attorney’s fees in worker’s compensation cases because worker’s compensation cases are governed by section 440.34, Florida Statutes (1991). See Aetna Ins. Co. v. Houck, 411 So.2d 936, 938 (Fla. 1st DCA 1982); see also § 430.34, Fla. Stat. (1991).

Under section 440.34, Florida Statutes (1991), compensation claims judges, not circuit court judges, are authorized to award attorney’s fees in worker’s compensation cases. See § 440.34, Fla. Stat. (1991). However, when section 440.34(1) is read in connection with section 440.24(1), it allows circuit court judges to award attorney’s fees in proceedings such as a rule nisi action to enforce payments of compensation. See McCormick v. Messink, 208 So.2d 113 (Fla. 2d DCA 1968).

Here, the trial court awarded Feld-man $4,200.00 in attorney’s fees incurred in the rule nisi proceeding. At oral argument, Transportation conceded that Feld-man is entitled to $4,200.00 in attorney’s fees. Therefore, we find that the trial court’s award of $4,200.00 for attorney’s fees incurred in the rule nisi proceeding is proper. However, we find that the trial court judge did not have statutory authority to award any other attorney’s fees in this case.

Our reversal of the final judgment on attorney’s fees and costs, however, does not preclude Feldman from pursuing a claim for tortious interference with a business relationship in the circuit court. Accordingly, we reverse the trial court’s order, awarding Feldman attorney’s fees and costs for $56,800.00, except the $4,200.00 that Transportation conceded.

Reversed.


text:
    Johnson MOODY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1250.
    District Court of Appeal of Florida, Third District.
    March 15, 2006.
    Rehearing and Rehearing En Banc Denied May 19, 2006.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Legere v. State, 862 So.2d 824 (Fla. 5th DCA 2003); Casey v. State, 788 So.2d 1121 (Fla. 2d DCA 2001); Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000).


author: STONE, J.

text:
    Lawrence FREEDMAN, Appellant, v. FRASER ENGINEERING & TESTING, INC., a Florida corporation; Alexander H. Fraser,; Anthony Macaluso; John Doe No. 1; John Doe No. 2; John Doe No. 3, jointly and severally; and charging lien claimant/Norman Malinski and The Law Offices of Norman Malinski, P.A., Appellees.
    No. 4D04-4254.
    District Court of Appeal of Florida, Fourth District.
    March 15, 2006.
    Rehearing Denied May 24, 2006.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Rudolph & Leacock LLP, West Palm Beach, for appellant.
    Bruce M. Levine of Bruce M. Levine, P.A., Boca Raton, for Appellees-Norman Malinski and The Law Offices of Norman Malinski, P.A.
   STONE, J.

Freedman appeals a final judgment in favor of his attorney, Malinski, foreclosing an attorney’s charging lien and an order denying enforcement of an alleged settlement. We affirm on the merits, but reverse, in part, and remand with instructions to the trial court to make necessary corrections to the final judgment.

Freedman sued Fraser, an engineering firm, for malpractice. Malinski appeared about ten months into litigation. A retainer agreement set forth the attorney’s fee, consisting of two components — an “initialization” fee and a one-third contingent fee. The agreement called for a credit back against the $10,000 initialization fee if the attorney’s fees exceeded a cap of $35,000.00.

Freedman and Fraser settled their dispute for $100,000.00 after the first day of trial. The settlement was structured, providing for periodic payments. By the terms of the retainer agreement, Malinski was entitled to $33,333.33. With the $10,000.00 he had already received, his total fee would have been $43,333.33, well over the $35,000.00 cap, thus rendering Freedman eligible for a chargeback of $8,333.33. This left Freedman with a balance due to Malinski of $25,000.00. It is undisputed that this is the total sum owed.

Malinski wrote Freedman the day after settlement, articulating these details and proposing a modification of their agreement. He asked that Freedman pay him 25% from the first $20,000.00 received, but offered to defer further payment for the following eighteen months, resuming payment when the third tier of the payment schedule commenced. This arrangement would leave an unpaid balance due to Ma-linski at the end of term, which he stated he would accept from Freedman in one final payment.

Communication between the attorney and the client fell apart at this point. Freedman claimed that Malinski had orally agreed during settlement negotiations to defer any payment out of the first $20,000.00; Malinski claimed that he had said no such thing. Malinski filed a notice of charging lien.

Fraser’s attorney, then holding the first $20,000.00 payment in escrow, interplead-ed the funds into the court’s registry. After quite a bit of spiteful litigation, the trial court ordered the parties to mediation.

The mediation resulted in a “proposed” settlement agreement, with the mediator’s handwritten entries entered on a pre-printed form. The proposed agreement contained language relating to each party’s responsibility to prepare settlement documents to conclude settlement, including mutual general releases, and voluntary dismissal of all claims with prejudice. Apparently, Malinski signed, but then decided against forwarding an executed agreement to Freedman. A flurry of correspondence between counsel for both parties ensued.

Malinski’s attorney prepared a packet of documents to effect settlement. Despite much discussion, Freedman’s counsel did not provide the required paperwork. After re-faxing a twenty-two page package to Freedman’s attorney, still with no paperwork in return, Malinski became suspi-eious and “saw no reason to play with Mr. Freedman.” Malinski’s attorney sent a letter to Freedman’s attorney, claiming Freedman’s conduct was an unequivocal repudiation and declaring Freedman to be in material breach.

Freedman then filed two motions: one to enforce the settlement agreement, and one to remove the case from the trial docket. The trial court denied the motion to remove and agreed to hear the motion to enforce the settlement prior to trial on the charging lien. The trial court entered its order denying Freedman’s motion to enforce settlement agreement, concluding that the proposed agreement was not enforceable, as it left open essential terms.

The final hearing took place four months later; the issue remained to determine “whether there was a modification or whether the fee agreement had to be enforced in accordance with its original terms.” Through the entirety of these vexatious proceedings, Fraser had been making settlement payments to its attorney in escrow. Malinski sought collection of the monies owed to him, as calculated by the court, against this fund.

Malinski took the stand and explained the structure of his fee arrangement, testifying that he was presently entitled to the full $25,000.00 plus costs. He continued by explaining that after settling with Fraser, Freedman asked him for some flexibility in fee payment from the original retainer agreement. Malinski’s testimony was that his letter the following day memorialized the modification as he understood it, that Freedman responded with a series of nasty letters, and that the upshot was that the parties did not agree to the modification. Malinski expressed his belief that he was due his fee once his client, Freedman, entered into the settlement with Fraser, as opposed to when the payments were made.

Freedman testified and suggested that Malinski receive 25% of each and every payment. Although the parties agreed on the amount owed to Malinski, there remained a dispute concerning which percentage to apply in getting to that number — the 33 1/3% in the agreement, or the 25% net due from the settlement. Malin-ski’s attorney asked for the entire $25,000.00 in one present lump sum payment or, in the alternative, a third of the monies held by Fraser’s attorney and a third as the payments continued. Freedman’s attorney suggested the fee be paid as 25% of escrowed funds and 25% of the income stream. Finally, Freedman complained that he had never received a proper bill.

The trial judge entered an extensive final judgment enforcing and foreclosing the charging lien, ordering Freedman to pay Malinski a third of the monies held in escrow, and a third of the payments as they continued.

Enforcement of the settlement agreement

There was substantial, competent evidence to support the trial court’s conclusion that no enforceable settlement agreement between the parties was in force. The record supports the trial court’s finding that the proposed agreement relied upon the drafting, mutual approval, and future execution of material documents. “Settlement agreements are not considered final when the record establishes the parties’ intent to take further action prior to the completion of a binding agreement.... Where essential terms of an agreement remain open, and subject to further negotiation, there can be no enforceable contract.” Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003); see also Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001).

We note, also, that Florida Rule of Civil Procedure 1.730(b) requires an agreement reached as a result of mediation to be reduced to writing and signed by the parties and their counsel. The proposed mediated agreement was not signed and executed by both parties and counsel. Although not raised below, this, in itself, defeats Freeman’s argument. Scott v. Tischler, 882 So.2d 461, 462 (Fla. 4th DCA 2004); City of Delray Beach v. Reiser, 699 So.2d 855, 856 (Fla. 4th DCA 1997); Gordon v. Royal Caribbean Cruises, Ltd., 641 So.2d 515, 517 (Fla. 3d DCA 1994).

Foreclosure of the charging lien

The trial judge correctly ruled that the attempts to modify the initial agreement were ineffective. Further, the record supports the trial court’s finding that Freedman materially breached the contingency fee agreement by refusing to pay Malinski. It contains a letter from Fraser’s attorney, Hurd, who held the remitted settlement funds in escrow while waiting for Freedman’s instructions to pay a portion to Malinski. Freedman argues that he did not “actually recover” the monies, but this argument is unpersuasive. Fraser remitted the monies to his attorney, Hurd, on Freedman’s behalf. Malin-ski procured a positive settlement for Freedman, and $41,000.00 of the $100,000.00 was, thus far, placed in escrow. Freedman was not blocked from his settlement money — he just chose not to acknowledge the funds, and not to authorize disbursement. The fact that Freedman chose not to collect does not reheve him of his obligation to pay his attorney. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 91 (Fla. 3d DCA 1987).

The trial court properly recognized that Malinski’s right to fees accrued when the contingency occurred and is figured as a percentage of the amount recovered. Arabia v. Siedlecki, 789 So.2d 380, 382-83 (Fla. 4th DCA 2001). It erred, however, in calculating what percentage of each payment belonged to Malinski. Paying Malin-ski one-third of funds in escrow, followed by a third of the income stream paid to Freedman, will result in Malinski’s full payment prior to Freedman’s complete recovery. If Fraser ceased payments to Freedman subsequent to Malinski’s full payout, this would lead to an inequitable and unanticipated result, with Malinski receiving a greater percentage of recovery than agreed to in the contract.

The record reflects how the error was made. The original contingency percentage set forth in the agreement was for 33 1/3%. However, because of the credit of the initial fee already received by Malinski, the percentage now due to the attorney became 25%. As Malinski is only eligible for one fourth of the settlement payments as Freedman receives them, this portion of the final judgment should be reversed for re-calculation of the percentage due to Ma-linski, both from monies in escrow and payments in future.

Further, although not argued in the trial court, we note that rule 4 — 1.5(f)(6), Rules Regulating the Florida Bar, specifies the following limitations when a settlement is paid out over time:

In cases in which the client is to receive a recovery that will be paid to the client on a future structured or periodic basis, the contingent fee percentage shall be calculated only on the cost of the structured verdict or settlement or, if the cost is unknown, on the present money value of the structured verdict or settlement, whichever is less. If the damages and the fee are to be paid out over the long term future schedule, this limitation does not apply. No attorney may negotiate separately with the defendant for that attorney’s fee in a structured verdict or settlement when separate negotiations would place the attorney in a position of conflict.

Here, consistent with that rule, Malinski will receive a percentage of each payment equivalent to his earned percentage on the entire recovery.

Freedman further claims that the attorney should not be paid because he did not send the client a proper closing statement. However, even flawed contingency fee agreements can be enforceable. State Contracting & Eng’g. Corp. v. Condotte Am., Inc., 368 F.Supp.2d 1296, 1305 (S.D.Fla.2005) (citing The Florida Bar re: Amendments to The Rules Regulating the Florida Bar, 519 So.2d 971, 975 (Fla.1987)). Malinski sent Freedman a letter including the calculation of his fee and submitted documentation to support claimed costs. The trial court did not err in enforcing and foreclosing Malinski’s charging lien despite the lack of more detailed paperwork.

Accordingly, we affirm the trial court’s order denying enforcement of settlement agreement. We affirm the trial court’s final judgment enforcing and foreclosing the charging lien, but remand with instructions to re-calculate the amount due to Malinski out of monies collected and monies due in the future as described in this opinion. Post-judgment interest should be calculated from the date that Fraser actually tendered payment on Freedman’s behalf. We affirm the final.judgment as to all other points.

KLEIN, J. and REYES, ISRAEL, Associate Judge, concur.

      . All parties recognize certain inaccuracies contained in one section of the agreement.


text:
    Kelvin REED, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1741.
    District Court of Appeal of Florida, Fifth District.
    March 17, 2006.
    Rehearing Denied May 9, 2006.
    James S. Purdy, Public Defender, and Tomislav D. Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Chandler v. State, 702 So.2d 186, 197-198 (Fla.1997) (recognizing prior consistent statements are considered non-hearsay if the following conditions are met: the person who made the prior consistent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication, citing Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992)).

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