text:
    Robert RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4610.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Alexander R. Brumfield, III of Alexander R. Brumfield, III, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

After receiving a fifteen year sentence based on a guilty plea, appellant moved to withdraw his plea and asserted that he did not understand the consequences of the plea and did not have adequate time to consult with his attorney. The trial court struck the motiqn because appellant was still represented by his trial counsel.

Appellant then filed a pro se motion to correct sentencing error, in which he asserted that his attorney was not competent; the attorney did not explain what appellant was signing; he was scared into signing by his attorney; his attorney told him he would get thirty years if he did not sign; and that he was sentenced outside the guidelines. He reiterated that he wanted to withdraw his plea. That motion was also stricken. Given the allegations, this was error. Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). Appellant then filed a motion to discharge his attorney, which the trial court granted.

We reverse for an evidentiary hearing, with conflict-free counsel to be appointed to represent appellant. The allegations as to appellant’s counsel’s misrepresentation and the voluntariness of the plea are not conclusively rebutted by the record. Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006). A request to withdraw within thirty days of sentencing is a critical stage of a criminal proceeding. Kelly v. State, 925 So.2d 383 (Fla. 4th DCA 2006).

Reversed.

STEVENSON, C.J., KLEIN and SHAHOOD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Trabon MARION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-648.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Trabón Marion, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, C.J, and GERSTEN and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Baker v. State, 878 So.2d 1236 (Fla.2004).


text:
    Larry D. MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 3D07-46.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing Denied May 18, 2007.
    Larry D. Mullins, in proper person. Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Mullins v. State, 31 Fla. L. Weekly D1933, — So.2d —, 2006 WL 1999473 (Fla. 3d DCA, July 19, 2006).


text:
    Calvin Carrice LUTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-68.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing Denied May 17, 2007.
    Calvin Carrice Luton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Austin v. State, 527 So.2d 867 (Fla. 1st DCA 1988).


author: BENTON, J.

text:
    Jennifer OGILVIE, Appellant, v. Dale Dean OGILVIE, Appellee.
    No. 1D06-2673.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Richard K. Powell, Esquire of Richard H. Powell & Associates, P.A., Fort Walton Beach, for Appellant.

      Ross A. Keene, Esquire of Beroset & Keene, Pensacola and Craig A. Vigodsky, Esquire of Meador & Vigodsky, P.A., Pensacola, for Appellee.
   BENTON, J.

Jennifer Ogilvie appeals a final judgment domesticating the parties’ New York divorce decree, which awarded sole custody of the children of the marriage to Ms. Ogilvie and “reasonable visitation as the parties agree” to their father, Dale Dean Ogilvie, because the trial judge went on to modify the domesticated decree by replacing its custody and visitation provisions with the Okaloosa County Shared Parenting Agreement. Domestication of the foreign decree is not in dispute. We reverse the order insofar as it modifies the original custody award, and remand for further proceedings.

The trial court had jurisdiction under the Uniform .Child Custody Jurisdiction and’ Enforcement Act (UCCJEA). Both parents and their children moved to Florida after the New York decree issued and continue to reside in Florida. See § 61.516, Fla. Stat. (2005) (providing that a Florida court has jurisdiction to “modify a child custody determination made by a court of another state” if factors that would have given a Florida court jurisdiction to make an initial determination (under section 61.514(l)(a) or (b)) are present, and the Florida court “determines that the child [and] the child’s parents ... do not presently reside in the other state”); § 61.514(l)(a), Fla. Stat. (2005) (conferring jurisdiction to enter an initial custody order where Florida “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement” and “a parent continues to live in this state”). See also Staats v. McKinnon, 924 So.2d 82, 84-85 (Fla. 1st DCA 2006) (noting that the UCCJEA grants jurisdiction to modify another state’s custody determination where the child and parents no longer reside in the state in which the custody determination was originally made, so long as there is no pending custody action in the state from which the child and parents moved). Our own jurisdiction is also clear. See Fla. R.App. P. 9.030(b)(1)(A) (2006); see also Morales v. Morales, 915 So.2d 247, 248 (Fla. 5th DCA 2005).

As in the case of a Florida decree awarding child custody, the threshold question when modification is- sought is whether there has been a substantial, material change in circumstances since entry of the decree. See Cooper v. Gress, 854 So.2d 262, 267 (Fla. 1st DCA 2003) (“The posture of a modification proceeding is entirely different from that of an initial custody determination, and the party 'seeking to modify custody has a much heavier burden to show a proper ground for the change.”), approved in Wade v. Hirsch man, 903 So.2d 928, 930-31 (Fla.2005). Because the New York divorce decree enjoys the same dignity as a Florida decree, modification requires a preliminary showing of equally material and substantial changed circumstances. Cf. Wade, 903 So.2d at 932 (“We conclude that unless otherwise provided in the final judgment, the two-part substantial change test used in Cooper applies to modification of all custody agreements.”).

“In seeking a modification of custody, the movant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.” Cooper, 854 So.2d at 265 (“[T]he substantial change must be one that was not reasonably contemplated at the time of the original judgment.”). There exists a “long-established requirement that the party seeking to modify custody satisfy the extraordinary burden set forth in the two-part test.[] To hold otherwise would render any ... final judgment inherently unstable.” Id. at 267. “Thus, the [first] pertinent question before the trial court in considering [a modification] petition [i]s whether any modification [i]s warranted.” Id. Only if this preliminary question is answered in the affirmative does it become relevant whether it would be “better” for the child for the parents or either of them to be recast in a role other than the one the original judgment assigned them. See id.

The trial court did not find and Mr. Ogilvie did not prove a substantial, material change in circumstances warranting modification of the New York decree in the present case. The former husband did not meet his burden to prove a substantial, material change in circumstances that would permit a change in custody. See, e.g., Wyckoff v. Wyckoff, 820 So.2d 350, 356 (Fla. 2d DCA 2002) (“The evidence presented to the trial court was insufficient to meet the extraordinary burden necessary to justify judicial intervention in the custody arrangement initially agreed upon by the parties.”).

The trial court did find that Mr. and Ms. Ogilvie were unable to communicate with one another, but “[t]he inability of parents to communicate does not amount to a substantial change of circumstances that would justify a custody modification.” McKinnon v. Staats, 899 So.2d 357, 360 (Fla. 1st DCA 2005). See also Cooper, 854 So.2d at 266 (“The parties’ failure to communicate with each other, without some other material, unanticipated change since the final judgment, is not a proper legal ground for modifying custody.”). “This Court has even held that when the custodial mother does not keep the father- apprised of a child’s activities, and the father has the ability to keep himself informed, such evidence only establishes a communication problem..... This communication problem does not constitute a change in circumstances for the purposes of a custody modification.” McKinnon, 899 So.2d at 360-61 (noting former husband had “not pursued other methods to remain informed,” such as making inquiries with the child’s teacher).

No evidence was submitted proving that “parental alienation” had occurred, nor did the trial court make any such finding. Cf id. at 361 (“The most significant finding by the lower court was the child has been ‘parentally alienated’ from the Father, Such a finding if based on competent, substantial evidence can justify a post-dissolution modification of custody.... [But t]he finding of parental alienation in this case was based upon communication difficulties between the parents.... This is not sufficient evidence that Appellee’s visitation rights have been denied. In fact, Appellee still visits with the child. Thus, there is no competent, substantial evidence showing that the child has been alienated from her father.”).

The evidence also. showed, of course, that parents and children had all .relocated since entry of the New York decree, but this alone was insufficient. See Sotomayor v. Sotomayor, 891 So.2d 559, 561 (Fla. 2d DCA 2004) (holding that “a custodial parent’s move to a foreign state, without more, is not a substantial change of circumstances that would support a modification of custody”). There is no dispute that both parties moved to Florida after the New York decree, but “courts have routinely held that relocation alone is not a substantial change in circumstances to support a modification of custody.” Shafer v. Shafer, 898 So.2d 1053, 1055-56 (Fla. 4th DCA 2005). See also Giangrande v. Henao, 898 So.2d 1104, 1106 (Fla. 2d DCA 2005) (reversing because former wife’s relocating to a foreign country with her new husband, without more, was insufficient to support a finding of substantial change in the parties’ • circumstances sufficient to support modification of a custody award).

Because Mr. Ogilvie failed to prove a change in circumstances sufficiently substantial and material to warrant modification of the New' York custody decree, no further inquiry into “the desirous effect of having Mr. Ogilvie involved in the minor children’s lives,” “the parenting skills Mr. Ogilvie possesses,” or whether the children were better off having both parents sharing in the major decision-making was justified. See Cooper, 854 So.2d at 266-68 (holding that where a party fails to prove the threshold ground that “an unanticipated substantial, material change in circumstances since the entry of the final judgment,” there is no basis “to justify any modification of custody,” whether or not there is evidence that one party would be “better” in some different role). Accord Sotomayor, 891 So.2d at 561 (“Absent proof of a substantial change of circumstances, we need not go any further.”).

The judgment is reversed insofar as it modifies the original award of sole custody of the parties’ children to their mother, and the case is remanded for further proceedings.

BARFIELD and POLSTON, JJ., concur.

      . While the predecessor to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the Uniform Child Custody Jurisdiction Act (UCCJA), see Ch. 2002-65, § 5, at 852, 858, Laws of Fla. (creating the UCCJEA to replace the UCCJA effective October 1, •2002), required that "[petitions to modify a decree ... be addressed to the court which rendered the original decree even if a second state has become the 'home state’ of a child,” Staats v. McKinnon, 924 So.2d 82, 85 (Fla. 1st DCA 2006) (quoting Lamon v. Rewis, 592 So.2d 1223, 1225 (Fla. 1st DCA 1992), the UCCJEA, codified at section-61.516, Florida Statutes (2005), provides that a Florida court has jurisdiction to modify a foreign custody judgment where "[a] court of this state or a court of the other state determines that the child [and], the child’s parents ... do not presently reside in the other state.” § 61.516(2), Fla. Stat. (2005)) (emphasis supplied). See also Morales v. Salazar, 833 So.2d 226, 228 n. 3 (Fla. 5th DCA 2002) (noting change in modification jurisdiction standard upon adoption of section 61.516, effective October 1, 2002).

      . Once the burden of showing a substantial, material change has been met, the second part of the modification test involves the same broad "best interest” inquiry as an initial custody determination. See Wade v. Hirschman, 903 So.2d 928, 933-34 (Fla.2005) (noting the stabilizing effect of requiring proof of a substantial, material change in circumstances as a prerequisite to considering "best interests” and possible modification). On this point, the Wade court said: "The arguments favoring a finding of detriment [as a precondition for modification] fail to recognize adequately the purpose of the 'best interest of the child’ prong [as opposed to] the substantial change [of circumstances] test, which when properly applied ensures the stability of custody-related awards because of the res judicata effect of the original decree.” Id. at 934.
      Without reference to section 61.13(2)(b)(2.), Florida Statutes, the Florida Supreme Court concluded in the Wade case that
      [requiring proof of detriment to the child in order to [justify modification] misstates the burden that is necessary to overcome the res judicata effect of the previous decree and conflicts with the best interest standard because it restricts the trial court's ability to act in the best interest of the child in custody modification proceedings.

        Id. at 933 n. 11. Our supreme court thus implicitly disapproved (in part) cases, including Sheridan v. Sheridan, 899 So.2d 469, 470 (Fla. 2d DCA 2005); McKinnon v. Staats, 899 So.2d 357, 359 (Fla. 1st DCA 2005); Sotomayor v. Sotomayor, 891 So.2d 559, 561 (Fla. 2d DCA 2004); Johnson v. Adair, 884 So.2d 1169, 1172-73 (Fla. 2d DCA 2004); Agranoff v. Agranoff, 882 So.2d 1085, 1086 (Fla. 2d DCA 2004); Ward v. Ward, 874 So.2d 634, 638 (Fla. 3d DCA 2004); Burger v. Burger, 862 So.2d 828, 831-32 (Fla. 2d DCA 2003); Perdices v. Perdices, 800 So.2d 289, 290 (Fla. 3d DCA 2001); Muniz v. Muniz, 789 So.2d 370, 371-72 (Fla. 3d DCA 2001); Goodmon v. Goodmon, 779 So.2d 490, 491 (Fla. 2d DCA 2000); Young v. Young, 732 So.2d 1133, 1134 (Fla. 1st DCA 1999); Metcalfe v. Metcalfe, 655 So.2d 1251, 1253 (Fla. 3d DCA 1995); Kelly v. Kelly, 642 So.2d 800, 802 (Fla. 2d DCA 1994), to the extent they imported into the best interest prong a "detriment” or "adverse impact” component. Wade, 903 So.2d at 933-34. But see Grimaldi v. Grimaldi, 721 So.2d 820, 821-22 (Fla. 4th DCA 1998) (reversing trial court’s modification of custody from shared parental responsibility to sole parental responsibility where the evidence did not show that shared parental responsibility was detrimental to the child, quoting section 61.13(2)(b)(2.), Florida Statutes, which provides that "[t]he court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.”); Hunter v. Hunter, 540 So.2d 235, 237 (Fla. 3d DCA 1989) (same).

      . There is also some question as to whether the trial court actually considered the required “best interest” factors, pursuant to section 61.13, Florida Statutes (2005), to determine that modification of the New York decree was in the best interest of the children. See § 61.13(3), Fla. Stat. (2005) (providing that, "[f]or purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including” such considerations as “[t]he love, affection, and other emotional ties existing between the parents and the child,” "[t]he capacity and disposition of the parents to provide the child with food, clothing, medical care ..., and other material needs,” "[t]he length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity,” "[t]he permanence [of the] proposed custodial home,” "[t]he moral fitness of the parents,” “[t]he home, school, and community record of the child,” and the "ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other party”). See also Wyckoff v. Wyckoff, 820 So.2d 350, 352 (Fla. 2d DCA 2002) (reversing and remanding, stating "it appears the trial court applied a 'best interests' standard to evaluate whether there should be a change in the custody of these children, as opposed to the 'extraordinary burden’ test,” which requires that the moving party first establish that circumstances have substantially changed).


text:
    Ronnie Cleveland JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3813.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Nancy A. Daniels, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this case filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no preserved reversible error apparent from the face of the record. However, we note that the trial court orally pronounced that the sentence imposed in this case was to run concurrently to any other sentence he was then serving, but the concurrent area was not checked off on the written judgment and sentence. Although the written sentence contains a scrivener’s error, this Court cannot direct the trial court to correct the error because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). See Proctor v. State, 901 So.2d 994, 995 (Fla. 1st DCA 2005) (“[Tjhis court would not be able to address the [scrivener’s] errors because, absent the trial court’s ruling on a rule 3.800(b)(2) motion, these errors were not preserved.”); Aument v. State, 868 So.2d 682 (Fla. 5th DCA 2004).

Accordingly, we affirm the appellant’s judgment and sentence without prejudice to appellant’s filing a timely motion for postconviction relief to correct the sentencing discrepancy.

AFFIRMED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., Concur.


text:
    Lynn E. YOUNG, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5106.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Lynn E. Young, pro se, Appellant.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lynn E. Young appeals an order of the circuit court dismissing his petition for writ of mandamus as moot. We summarily affirm the circuit court’s final order. See Fla. R.App. P. 9.315(a). However, as appellee correctly concedes, the circuit court did err when it determined appellant to be indigent but imposed a lien on his inmate trust account to recoup filing fees and costs. Young’s claim in the circuit court constituted a collateral criminal proceeding, and thus was not subject to the lien provisions of section 57.085. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, we vacate the order imposing a hen on appellant’s inmate trust account, and direct the circuit court on remand to ensure that any funds collected pursuant to the improper lien order are reimbursed to appellant.

KAHN, DAVIS, and HAWKES, JJ., concur.


author: EVANDER, J.

text:
    RAMESE’S, INC., d/b/a Cleo’s, et al., Appellants, v. METROPOLITAN BUREAU OF INVESTIGATION, Appellee.
    No. 5D06-1795.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.

      Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellant.
    Lawson Lamar, State Attorney, Ninth Judicial Circuit, Willie May and Darlene Simmons, Assistant State Attorneys, Orlando, for Appellee.
   EVANDER, J.

On May 27, 2005, Ramese’s, Inc., d/b/a Cleo’s, represented by Steven G. Mason, P.A. (collectively Appellants) submitted a public records request to the Metropolitan Bureau of Investigation (MBI). Scott Campbell, a lieutenant in the Orange County Sheriffs Office, responded to Appellants’ request. Campbell produced some of the requested documents, redacted others, and declined to produce others. Campbell contended the non-produced items were exempt from a public records request. Appellants objected to the redac-tions and the non-production of certain documents.

Appellants subsequently filed a lawsuit against MBI seeking to obtain the requested documents which had not been produced (or had been redacted). The State Attorney for the Ninth Judicial Circuit of Florida filed a motion and amended motion to quash service of process and dismiss the complaint, alleging MBI was not a suable entity. A copy of the Metropolitan Bureau of Investigation Mutual Cooperation Agreement (“Agreement”) was attached to the amended motion. A hearing was ultimately held on the amended motion. The trial court found MBI was not a suable entity and dismissed Appellants’ action with prejudice. We affirm.

MBI is a cooperative, multi-agency law enforcement task force in Central Florida, originally consisting of seven member agencies under the Agreement. The Agreement provides that MBI’s purpose is “to be a coordinated multi-agency law enforcement unit directed at vice, narcotics, organized crime, racketeering, and other criminal enterprises in the Ninth Judicial Circuit, including Orange County and Osceola County, Florida, to allow for specialization and an ongoing and coordinated approach, as well as common utilization of training and support functions and the pooling of investigative and administrative resources.”

This court has previously held that a multi-agency law enforcement task force is only subject to suit if the parties that created the task force intended to create a separate legal entity. Pondella Hall for Hire, Inc. v. Croft, 844 So.2d 696 (Fla. 5th DCA 2003).

Here, the Agreement does not contain any indication that the member agencies intended to create a separate legal entity capable of being sued in its own name. Under the Agreement, each member agency is represented on MBI’s governing board. Each member agency assigns law enforcement and administrative personnel to MBI at a staffing level determined by that member agency’s representative on the governing board. The respective member agencies “retain full responsibility for the compensation, retirement, insurance, liability and discipline of their own personnel assigned to the MBI.”

MBI is funded by contributions of equipment and staffing from the individual budgets of the member agencies and does not have a centralized budget. The member agencies provide in-kind contributions of items such as office space, utilities, gasoline, telephone costs, etc., in such proportion as determined by the governing board. Member agencies may also elect to contribute cash for recurring operational expenses.

These provisions reflect that the member agencies did not intend MBI to be a separate legal entity. Each member agency retained control and responsibility over its own personnel. Furthermore, MBI does not have a centralized budget, but is instead funded by contributions of equipment and staffing from the individual budgets of the member agencies. The trial court properly concluded that MBI was not. a legal entity capable of being sued. Id., at 697; see also Brown v. Fifth Judicial Dist. Drug Task Force, 255 F.3d 475 (8th Cir.2001); Hervey v. Estes, 65 F.3d 784 (9th Cir.1995).

Appellants contend that an affirmance of the trial court’s decision would unfairly require them to bring an action against all the agency members. We disagree. The Agreement implicitly recognizes the right of each member agency to have access to all documents in the possession of MBI. Because the Agreement fails to designate a particular member agency to be responsible for responding to public records requests, it would appear. Appellants could bring its adtipn against any of the member agencies.

AFFIRMED.

TORPY and LAWSON, JJ., concur.

      . The Agreement was dated February 8, 1996. This type of mutual aid agreement is specifically authorized by the Legislature. § 23.1225(l)(a), Fla. Stat.

      . The member agencies, as set forth in the Mutual Cooperation Agreement, are the State Attorney for the Ninth Judicial Circuit, the Sheriff of Orange County, the Sheriff of Osceola County, the Orlando Police Department, the Winter Park Police Department, the Apop-ka Police Department, and the Ocoee Police Department.

      . The agency members would be ascertained by a review of the Mutual Aid Agreement. Section 23.1225(4) requires that a copy of a mutual aid agreement must be filed with the Department of Law Enforcement.

      . During oral argument, counsel for the State Attorney’s Office acknowledged that an action to obtain MBI’s public records could be brought against either the State Attorney’s Office or the Orange County Sheriff (Lt. Campbell’s employer). Section 23.1225(l)(a) . requires a mutual aid agreement to designate the agency or entity that shall bear liability arising from acts undertaken under the agreement.


author: VILLANTI, Judge.

text:
    Sandra JIMENEZ, Petitioner, v. Eloise RATINE a/k/a Rateni d/b/a Cleaning By El, also d/b/a Cleaning By El, Etc., Respondent.
    No. 2D06-2915.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      Perry Tanksley, Sarasota, and Susan J. Silverman, Sarasota, for Petitioner.
    Joseph F. Summonte, Jr., of Judd, Ul-rich, Scarlett & Dean, P.A., Sarasota, for Respondent.
   VILLANTI, Judge.

Sandra Jimenez appeals the circuit court’s order denying her amended petition for writ of prohibition. In the amended petition for writ of prohibition, she sought to disqualify a county court judge who was presiding in her small claims case for unpaid wages. The circuit court denied Jimenez’s amended petition as legally insufficient, relying exclusively on the ground that the amended motion to disqualify had not been “sworn” by the party as required by Florida Rule of Judicial Administration 2.160(c)(3). We conclude that the circuit court erred in so ruling.

To “swear” means to declare on oath that the facts alleged are true. State v. Upton, 392 So.2d 1013, 1016 (Fla. 5th DCA 1981). The amended motion to disqualify clearly contains a written declaration pursuant to section 92.525, Florida Statutes (2006), in which Jimenez states: “Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.” Section 92.525 provides an appropriate method to verify a document, i.e., to sign the document stating under oath that the facts or matters stated in the document are true. See § 92.525(3)(c). This method expressly applies to documents that must be verified pursuant to a rule of court such as rule 2.160(c)(3). Even forms approved by the supreme court that must be sworn rely on this statute. See Fla. R.Crim, P. 3.987. Accordingly, the circuit court erred in denying the amended petition on this ground.

However, while we ordinarily might remand for the lower court to consider the merits of a motion once we have determined that its form is sufficient, here, in the interest of judicial economy, we remand for the issuance of a writ of prohibition because we conclude that Jimenez’s amended motion is also substantively sufficient on its face. In evaluating motions to disqualify, sufficiency of the substance is essentially an extension of sufficiency of the form. This legal sufficiency is a pure question of law. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990). Further, if the form of the motion is sufficient — i.e., the motion is procedurally sufficient — it does not matter whether the substance of the allegations are true. Madura v. Turosienski, 901 So.2d 396, 398 (Fla. 2d DCA 2005) (noting that, in evaluating a motion to disqualify, the court must accept the facts alleged as true). Indeed, under Florida Rule of Judicial Administration 2.330(f), a judge is required to immediately grant a disqualification if the motion is legally sufficient. The motion must be granted provided only that the facts alleged “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” MacKenzie, 565 So.2d at 1335 (quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983)). Moreover, the court must review the motion from the litigant’s perspective questioning the “judge’s impartiality rather than [from] the judge’s [perspective] of his ability to act fairly and impartially.” Id. at 1334 (quoting Livingston, 441 So.2d at 1086).

The substance of Jimenez’s allegations concerned commentary by the trial judge exhibiting hostility toward Jimenez’s counsel to such a degree that prejudice toward Jimenez is inferred. See Gates v. State, 784 So.2d 1235, 1237 (Fla. 2d DCA 2001) (“A trial court’s prejudice against an attorney may be grounds for disqualification when such prejudice is of such a degree that it adversely [a]ffects the litigant.” (quoting Franco v. State, 777 So.2d 1138, 1140 (Fla. 4th DCA 2001))). For example, Jimenez alleged: (1) the judge stated that Jimenez’s counsel was indifferent to, or ignorant of, his professional obligations; (2) the judge indicated that she had to routinely remind Jimenez’s counsel of his good faith obligations; (3) the judge stated that she felt it necessary to issue written orders in open court with witnesses present due to her feelings about Jimenez’s counsel; and (4) the judge found Jimenez’s counsel’s statements regarding his understanding of Spanish to be “incredulous.” There is nothing in the record indicating that Jimenez’s counsel engaged in any behavior designed to provoke the judge, nor that the amended motion to disqualify was motivated by adverse rulings. Even so, the trial judge’s comments went beyond expressions of mere frustration, admonishment, or annoyance with counsel’s mannerisms, tactics, or abilities. See, e.g., Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 783 So.2d 1087, 1092 (Fla. 4th DCA 2001) (finding that although judge’s comments expressed understandable frustration, they did not reach the level required for recusal). Rather, the judge’s remarks rose to the level of castigating counsel’s personal integrity and honesty. Although this might be a closer case on the merits if we were not confronted with all of these allegations, here, the cumulative effect of the allegations mandates recusal.

Having carefully reviewed the motion in light of the above-quoted standards, we conclude that the circuit court would be required, as a matter of law, to grant this petition for writ of prohibition because the county court was likewise required to grant the motion to disqualify. The alleged facts, even if incorrect from the perspective of the trial judge, would place a reasonably prudent litigant in fear of not receiving a fair and impartial trial. Thus no useful purpose would be served in remanding this matter back to the circuit court to decide the merits of Jimenez’s amended motion because the result must be recusal.

Accordingly, the circuit court’s order denying Jimenez’s amended petition is reversed, and we remand with instructions to grant the amended petition and issue a writ of prohibition.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.

      . We review this case as a final appeal in light of the holding in Housing Authority of Tampa v. Burton, 873 So.2d 356 (Fla. 2d DCA 2004), that orders denying such writs of prohibition in circuit court are reviewed in this court by direct appeal. See also Guzzetta v. Hamrick, 656 So.2d 1327 (Fla. 5th DCA), review denied, 663 So.2d 630 (Fla.1995); 2 Philip J. Padova-no, Florida Appellate Practice § 21.4 n. 16 (2d ed.2007). We recognize that the Third District has conflicted with Burton and reviews such orders by certiorari. See Rivera v. State, 939 So.2d 116 (Fla. 3d DCA 2006). The Third District has concluded that the supreme court impliedly overruled earlier district court cases allowing for these direct appeals when it decided Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). There is considerable logic to the approach taken by the Third District, although we are uncertain that the supreme court intended to overrule these cases. In this particular case, the error is such a clear error of law that we would reach the same conclusion even if we reviewed the case by certiorari. Further, despite any confusion regarding the appropriate standard of review, the parties, to their credit, have adequately addressed the relevant issues.

      . Florida Rule of Judicial Administration 2.330 was renumbered from rule 2.160, effective September 21, 2006.

      . We note that Jimenez also alleged that the judge ordered her to bear the cost of an interpreter when she was eventually deposed by opposing counsel because Jimenez did not speak English. This ruling, although somewhat inconsequential, was nevertheless an adverse ruling made during the same time frame as the other alleged statements. However, the record comments by the trial judge are unrefuted, and therefore, this minimal ruling cannot be viewed as a pretext for the amended motion to disqualify. We also note that the subsequent dismissal of Jimenez’s case as a sanction and the subsequent award of attorney’s fees against Jimenez were not existing adverse rulings at the time she filed her amended motion to disqualify.

      . See Gates, 784 So.2d at 1237 (holding that the trial judge should have granted a motion to disqualify where the judge threatened to humiliate defense counsel in front of the jury); Campbell Soup Co. v. Roberts, 676 So.2d 435, 436 (Fla. 2d DCA 1995) (noting that an allegation that a party had a "well-grounded fear that it would not receive a fair and impartial trial” was reasonable where the party alleged that the trial judge viewed trial counsel as an innocent victim and did not like the way counsel had been treated by his client); Franco, 777 So.2d at 1140 (holding that the trial judge should have granted a motion to disqualify where the judge exhibited animosity and disrespect for defense counsel and berated him in front of the jury); Lamendola v. Grossman, 439 So.2d 960, 961 (Fla. 3d DCA 1983) (holding that the trial judge should have granted a motion to disqualify where the judge told counsel she would deal with him later for going over her head, made derogatory extrajudicial comments about counsel, and displayed antagonism towards counsel); Hayslip v. Douglas, 400 So.2d 553, 557 (Fla. 4th DCA 1981) (holding that a client would be fearful of not receiving a fair trial where the judge had antipathy towards his counsel and expressed the opinion that his counsel should not handle the case).


text:
    Timothy COOPER, Petitioner, v. STATE of Florida/or John Rutherford, Sheriff of Duval County, Florida, Respondents.
    No. 1D07-1632.
    District Court of Appeal of Florida, First District.
    April 20, 2007.
    Timothy Cooper, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Marvin C. CASWELL, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1199.
    District Court of Appeal of Florida, First District.
    April 20, 2007.
    Marvin C. Caswell, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Jennifer KENNEDY, by next friend Deborah KENNEDY, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION AREA: 23 PINELLAS, Appellee.
    No. 1D06-1843.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Martha Frances Barrera, Advocacy Center for Persons with Disabilities, Tallahassee, for Appellant.
    Garnett Chisenhall, Chief Appellate Counsel, and Tracy Lee Cooper, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, a Medicaid recipient, appeals the hearing officer’s final order affirming the Agency for Health Care Administration’s (AHCA) action approving 960 of the requested 1,380 hours of private-duty nursing care and denying 420 requested hours. Because we find that the order under review is based on a fact not supported by competent, substantial evidence, we must reverse.

A hearing officer’s order is reviewed under the competent, substantial evidence standard and may only be set aside when it is based on a fact not supported by competent, substantial evidence. § 120.68(10), Fla. Stat. (2005). This court cannot substitute its judgment for the hearing officer’s judgment as to the weight afforded to disputed facts. Id.

The hearing officer found that KePro’s notes, which state that Appellant’s home healthcare provider applied for prior authorization of a registered nurse to care for Appellant 24 hours per day, minus seven hours on the weekend, support the denial of 420 private-duty nursing hours. KePro’s notes state that Appellant’s parents provide seven hours of care on the weekends; therefore, KePro determined they can provide seven hours of care each weekday.

Appellant’s mother testified that she cares for Appellant for seven hours throughout the week, including four hours on Saturday evening and for “an hour or so in the morning” one to two days per week.

The hearing officer found that Appellant’s parents provide seven hours of care on weekends, consisting of four hours on Saturday evening and “one to two hours each weekend morning.” However, nothing in the record supports the hearing officer’s finding that Appellant’s parents care for her “one to two hours each weekend morning.” Further, it is unclear how the seven hours of care which Appellant’s parents provide throughout the week supports the hearing officer’s determination that they can provide seven hours of care each day, thus, 420 hours of nursing care are not medically necessary. See C.F. v. Dep’t of Children & Families, 934 So.2d 1, 6 (Fla. 3d DCA 2005) (stating that when a case involves a reduction in Medicaid services, the Department bears the burden of proof showing that the services are not warranted).

We find that the hearing officer’s order is based on a fact not supported by competent, substantial evidence, and that AHCA has not met its burden of proof to show that 420 hours of private-duty nursing care are not medically necessary. We therefore reverse and remand the final order denying 420 hours of private-duty nursing care. On remand, the hearing officer shall properly apply the burden of proof, requiring AHCA to demonstrate that the requested hours of private-duty nursing care for the period of December 25, 2005 through February 22, 2006 are not medically necessary by a preponderance of the evidence.

We affirm Appellant’s other issue raised on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED with directions consistent with this opinion.

KAHN, POLSTON and THOMAS, JJ., concur.

      . Keystone Peer Review Organization (KePro) is the organization that is contractually obligated to provide prior authorization of private-duty nursing care for Medicaid recipients in Florida.


text:
    Kevin D. D’HAITI, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-4992.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Kevin D. D’Haiti, pro se, Appellant.
    Bill McCollum, Attorney General, Kathleen Von Hoene, General Counsel, and Daniel R. Burke, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Kevin D. D’Haiti seeks review of the circuit court’s order dismissing his petition for a writ of mandamus on the basis that Mr. D’Haiti failed to prepay a portion of the circuit court’s filing fee as previously ordered in the circuit court’s “Clerk’s Certificate of Indigence.” That order determined Mr. D’Haiti to be indigent but able to prepay $11.00 of the $280.00 total filing fee imposed, and required that the Florida Department of Corrections place a lien on his inmate account for the remainder.

As the Department concedes, the action filed in the circuit court was a collateral criminal action as defined in Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003). Accordingly, we reverse the order dismissing Mr. D’Haiti’s mandamus petition; vacate the indigency order insofar as it requires partial prepayment and placement of a lien on his inmate trust account for the remainder, see Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005); remand for further proceedings on his mandamus petition; and direct that the circuit court enter an order on remand requiring reimbursement to Mr. D’Haiti of those funds withdrawn from his account pursuant to the lien. See, e.g., Marquez v. McDonough, 945 So.2d 652, 653 (Fla. 1st DCA 2007).

Reversed and remanded.

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


text:
    Timothy D. BIVENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2954.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Timothy D. Bivens, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about January 26, 2006, in Leon County Circuit Court case number 2005-CF-4176, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent petitioner on appeal.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Gregory R. LANE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4232.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Gregory R. Lane, pro se, Petitioner.
    Bill McCollum, Attorney General, and Monica Ryan, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Gregory Lane seeks certiorari review of an order denying his petition for writ of mandamus, in which he challenged the forfeiture of gain-time after revocation of conditional release. We find no merit to Lane’s claim that the circuit court departed from the essential requirements of law when it denied mandamus relief, and therefore deny the portion of his petition for writ of certiorari directed to that issue. However, because Lane’s claim constituted a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, we agree with petitioner that the trial court improperly imposed a lien on his inmate trust account to recoup court costs and fees. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

We therefore grant the petition for writ of certiorari to the extent it challenges the order imposing a lien, and quash the order denying petitioner’s motion to remove the lien. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

DENIED in part, GRANTED in part, and REMANDED.

BARFIELD, WOLF, and VAN NORTWICK, JJ., concur.


text:
    Vincent LEFTWICH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4300.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Vincent Leftwich, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he challenges his convictions for burglary of a dwelling and dealing in stolen property. We affirm the denial of all but one of the appellant’s claims. Because the appellant’s first claim is facially sufficient, we reverse as to that claim.

In his first ground for relief, the appellant alleges ineffective assistance of counsel for failure to call a potential witness. In order to state a facially sufficient claim on this ground, the movant must allege the identity of the potential witness, the substance of the witness’s testimony, an explanation of how the omission of the testimony prejudiced the outcome of the case, and a representation that the witness was available for trial. McCray v. State, 933 So.2d 1226, 1227 (Fla. 1st DCA 2006); see Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004). The appellant’s motion complies with these requirements. The appellant states the name of the witness and his potential testimony, which allegedly would have been that the witness was the actual perpetrator. The appellant also contends that the witness was in the appellant’s company at the time of the alleged offense. The appellant explains that the witness may have been able to cast doubt on the appellant’s guilt and that the witness’s testimony would have weighed on the question of whether the state’s eyewitnesses were reliable. In addition, the appellant alleges that he advised counsel to call the witness and that the witness was present and an anticipated witness at trial. The appellant has stated a facially sufficient claim for relief.

Accordingly, we reverse the summary denial of this claim and remand for either an evidentiary hearing or the attachment of portions of the record that conclusively refute this claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: BROWNING, C.J.

text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. Charles Dexter CARLISLE and State of Florida, Respondents.
    No. 1D06-4332.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Julie Waldman, Gainesville, for Petitioner.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Respondents.
   BROWNING, C.J.

The Agency for Persons with Disabilities (APD) petitions this court for a writ of certiorari, challenging the trial court’s order that it provide emergency funding for Respondent. APD argues the order departed from the essential requirements of law by ordering it to spend its funding inconsistently with legislative direction. Because the trial court departed from the essential requirements of law by usurping APD’s jurisdiction to direct funding in this instance, we grant the petition and quash the trial court’s order.

Respondent was found incompetent to proceed, as defined in section 916.106(1) or (12), Florida Statutes, due to retardation or autism, and was referred to, and accepted by, APD for treatment and training. The trial court also found Respondent to be dangerous and homeless, and ordered APD to provide emergency funding for services for Respondent for 30 days, including placement in a group home.

While there is no controlling case law, the majority of analogous case law suggests that the trial court has no jurisdiction to direct funding for specific services for Respondent, and we adopt that reasoning as applicable here. See, e.g., Dep’t of Health & Rehabilitative Servs. v. Nourse, 437 So.2d 221 (Fla. 4th DCA 1983) (holding trial court did not have jurisdiction to direct a specific placement and treatment of a person committed to the Department); Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401 (Fla. 4th DCA 1999) (holding trial court has no general jurisdiction to monitor and evaluate Department’s functioning); Dep’t of Children & Families v. Harter, 861 So.2d 1274 (Fla. 5th DCA 2003) (holding a court may not dictate a particular facility or treatment of an offender committed under Chapter 916, Florida Statutes); Dep’t of Children & Families v. C.B., 884 So.2d 1035 (Fla. 4th DCA 2004) (granting a petition challenging trial court’s order to Department to provide continued treatment, medication, an evaluation, and adequate security to a juvenile who was being detained).

Accordingly, the order requiring APD to provide emergency funding for services for Respondent is quashed.

PETITION GRANTED and ORDER QUASHED.

BENTON and LEWIS, JJ., concur.


text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. David Kelly REYNOLDS and State of Florida, Respondents.
    No. 1D06-4333.
    District Court of Appeal of Florida, First District.
    April 23, 2007.

      Julie Waldman, Gainesville, for Petitioner.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Respondents.
   BROWNING, C.J.

The Agency for Persons with Disabilities (APD) petitions this court for a writ of certiorari, challenging the trial court’s order that it provide emergency funding for Respondent. APD argues the order departed from the essential requirements of law by ordering it to spend its funding inconsistently with legislative direction. Because the trial court departed from the essential requirements of law by usurping APD’s jurisdiction to direct funding in this instance, we grant the petition and quash the trial court’s order.

Respondent was found competent to proceed, as defined in section 916.106(1) or (12), Florida Statutes. However, Respondent was found to be dangerous and homeless and was referred to, and accepted by, APD for treatment and training. Thereafter, the trial court ordered APD to provide emergency funding for services for Respondent for 30 days, including placement in a group home.

While there is no controlling case law, the majority of analogous case law suggests that the trial court has no jurisdiction to direct funding for specific services for Respondent, and we adopt that reasoning as applicable here. See, e.g., Dep’t of Health & Rehabilitative Servs. v. Nourse, 437 So.2d 221 (Fla. 4th DCA 1983) (holding trial court did not have jurisdiction to direct a specific placement and treatment of a person committed to the Department); Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401 (Fla. 4th DCA 1999) (holding trial court has no general jurisdiction to monitor and evaluate Department’s functioning); Dep’t of Children & Families v. Harter, 861 So.2d 1274 (Fla. 5th DCA 2003) (holding a court may not dictate a particular facility or treatment of an offender committed under Chapter 916, Florida Statutes); Dep’t of Children & Families v. C.B., 884 So.2d 1035 (Fla. 4th DCA 2004) (granting a petition challenging trial court’s order to Department to provide continued treatment, medication, an evaluation, and adequate security to a juvenile who was being detained).

Accordingly, the order requiring APD to provide emergency funding for services for Respondent is quashed.

PETITION GRANTED and ORDER QUASHED.

BENTON and LEWIS, JJ., concur.


text:
    Eddie LOCKWOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6572.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Eddie Lockwood, pro se, Petitioner.

      Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying the defendant’s construed motion for rehearing rendered April 5, 2006, in Duval County Circuit Court case number 16-2001-CF-5904-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


author: SUAREZ, J.

text:
    Tavares Darrell DANIELS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-368.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The defendant appeals his conviction of second-degree murder and life sentence. We affirm.

The defendant contends he should receive a new trial because evidence that a witness was threatened before trial was improperly admitted, and because witnesses revealed that the defendant had already been convicted of the charged offenses in a previous trial. He argues that these errors cumulatively deprived him of a fair trial. The State asserts that no error occurred.

The defendant was tried in 2001 for first-degree murder, attempted robbery, and unlawful possession of a firearm while engaged in a criminal offense. He was convicted and sentenced to life imprisonment. This Court reversed and remanded for a new trial. The defendant was retried in the instant case in 2004.

The defendant admits he shot the victim, Donnell Holmes, but claims the shooting was accidental. The victim and Gad Baker drove to an apartment complex for Baker to discuss business with a woman. The victim was wearing gold jewelry. The victim asked the defendant, who was standing outside the complex, where they could find the woman who Baker was meeting. The defendant directed the victim to a second-floor apartment. While Baker and the woman conversed, Baker heard scuffling noises outside and noticed the victim was no longer standing nearby. He saw the victim, the defendant and co-defendant Anthony' Montgomery fighting in the apartment’s courtyard. The victim was beating up Montgomery. Montgomery tossed a gun to the defendant which he picked up and fired at the victim while scuffling with him. The victim fell and the defendant ran away. The victim died of a single gunshot wound to the heart. The jewelry was still on the victim’s body after the shooting.

Police located the defendant several months after the shooting in South Carolina. The defendant told police that Montgomery decided to steal the victim’s jewelry and followed him into the complex. The defendant saw the victim and- Montgomery fighting, and the victim was winning. As the defendant approached, Montgomery threw a gun to him and asked whether the defendant “want[ed] some of this too.” The victim pushed the defendant and the defendant decided to shoot him. The victim fell and the defendant ran away. He threw the gun in a nearby field. The defendant changed his hairstyle and took a bus to South Carolina a few days later. Lamesha Parker, an eyewitness to the shooting, testified at trial that Montgomery tossed the gun to the defendant. The gun hit the ground. The defendant picked the gun up and shot the victim.

Lamesha Parker testified over defense objection that, she received several threats about testifying. At trial she testified that, at another court proceeding, the defendant looked at her and made a slashing motion across his throat. Without stating that the other court proceeding was the first trial on these charges, she noted that the jury must have seen the gesture also. She testified that on another occasion, a boy named David came to her house and told her that the Defendant .said for her not to go to court. Finally, prior to the retrial, she received a letter from her brother, Donnell Parker, telling her to tell the truth and not to lie about the defendant’s case. The letter also contained handwriting she did not recognize. Donnell identified this writing as defendant’s. He explained the defendant had not threatened her and he wrote to his sister on his own accord “cause I see [the defendant] with a life sentence.” The defense moved for a mistrial, arguing that Lamesha and Donnell both referred to the defendant’s previous conviction and life sentence for the charged offenses. The trial court instructed the jury to disregard Donnell’s reference to a life sentence and denied the defendant’s motion for mistrial.

The jury found the defendant guilty of the lesser offense of second-degree murder and was unable to reach a verdict on the robbery charge. The trial court imposed a life sentence. The defendant seeks a new trial.

Defendant first contends he is entitled to a new trial because the trial court erred in allowing Lamesha Parker’s testimony as to the threat relayed by David, a third party. Evidence of threats of a witness is admissible under two circumstances. First, it is admissible where the defendant personally made the threat, as evidence of the defendant’s guilt. Second, it is admissible where the threat is made by a third party but the defendant is not implicated, if the witness’s credibility is in question. Lopez v. State, 716 So.2d 301, 307 (Fla. 3d DCA 1998). The trial court did not err in allowing Lamesha Parker’s testimony that the defendant personally threatened her at a previous court proceeding by looking at her and making a slashing motion across his throat. The trial court should not have allowed Parker’s testimony of the threat relayed by David as there was no evidence linking the defendant to that threat and Parker’s credibility had not been called into question. However, we find the trial court’s error in admitting that testimony to be harmless beyond a reasonable doubt in light of the extensive evidence against the defendant at trial and the admissible evidence of the direct threat made by the defendant.

The trial court did not err by denying the defendant’s motion for mistrial after witnesses referred to other court proceedings. Contrary to the defendant’s assertion, no witness explicitly revealed or implied to the jury that the defendant had been previously tried, convicted, and sentenced on these charges in a previous trial. See Cook v. State, 632 So.2d 86, 87 (Fla. 3d DCA 1994) (generalized reference to an earlier trial not grounds for a new trial where it is not stated or fairly suggested that the trial resulted in a conviction). Two witnesses referred to other court proceedings and mentioned that the defendant was facing a life sentence. These remarks were spontaneous and did not suggest that he had been convicted.

Affirmed.


author: STEVENSON, C.J.

text:
    Deirdre WILLIAMS-RAYMOND, Appellant, v. Keith Edwin JONES, Appellee.
    No. 4D06-1067.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Adelmis Bohigas Naderpour of Adelmis Bohigas Naderpour, P.A., Miami, for appellant.
    Karen E. Black-Barron, Fort Lauder-dale, (withdrawn as counsel after filing brief), and Keith Edwin Jones, Covington, Georgia, pro se.
   STEVENSON, C.J.

Deirdre Williams-Raymond appeals an order dismissing, with prejudice, the paternity action she filed against Keith Edwin Jones. We affirm.

According to the complaint, on July 5, 2000, Williams-Raymond, unmarried at the time, gave birth to Christopher Raymond, Jr. Christopher Raymond, Sr., believed the child to be his, signed the birth certificate, and subsequently married Williams-Raymond. Raymond, Sr., has fulfilled the role of father to Raymond, Jr., since the child’s birth. On September 14, 2005, Williams-Raymond filed the paternity complaint in the instant case, alleging that, in October 1999, she and Jones had a sexual relationship at which time Raymond, Jr., was conceived. Williams-Raymond sought to have Jones declared to be the child’s father, to recover some of the expenses associated with her pregnancy, and to have Jones pay child support. The complaint also named Raymond, Sr., as a defendant. In his answer, Raymond, Sr., admitted he signed the birth certificate believing the child to be his, subsequently married the mother, and has acted as father since the child’s birth, but maintained that DNA testing has confirmed that Jones is the biological father and Jones should be required to contribute to the support of Raymond, Jr. Because the complaint’s allegations demonstrated that Raymond, Jr.’s paternity had already been established, we affirm the dismissal of the complaint.

Because Williams-Raymond’s complaint alleges that, at the time the child was born, she was not married, chapter 742, Florida Statutes, governs her paternity claim. See § 742.10(1), Fla. Stat. (2005) (“This chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.”). Section 742.011 provides that “[a]ny woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.” Thus, a paternity action can be stated under chapter 742 only when paternity “has not been established by law or otherwise.”

Pursuant to Florida law, “[i]f the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock_” § 742.091, Fla. Stat. (2005). In I.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998), the Second District held application of this statute was one of the ways in which paternity was “otherwise” established so as to bar a paternity action. I.A. gave birth to K.H. and, then, two months later, married N.H. N.H. executed the documents necessary to have his name appear on the birth certificate and undertook the role of father. Some three years later, H.H. filed a paternity suit, alleging he was KH.’s father. I.A. sought to dismiss the complaint, arguing that N.H. (her husband) was presumed to be K.H.’s legal father and asserting the same argument in her answer as an affirmative defense. The parties stipulated to a DNA test. The test reflected that H.H. was the child’s biological father. And, ultimately, the trial court entered a final judgment of paternity in favor of H.H. The Second District reversed the judgment of paternity, concluding that H.H. had been granted relief pursuant to a cause of action that did not exist as a paternity action can be brought only when paternity “has not been established by law or otherwise” and, as a consequence of section 742.091, the child’s paternity had been “otherwise” established. Id. at 164.

Williams-Raymond’s complaint alleges that Raymond, Sr., believed the child to be his and signed the birth certificate, that Raymond, Sr., subsequently married the child’s mother, and that he has participated in parenting and played the role of “father” to the child since the child’s birth. These alleged facts, which we are required to accept as true for the instant purposes, demonstrate that the child’s paternity has been “otherwise” established and, thus, that no paternity action lies. We have considered and reject the additional claims raised by Williams-Raymond and, thus, affirm the order of dismissal.

Affirmed.

KLEIN and SHAHOOD, JJ., concur.

      . Effective in June 2006, the legislature created Florida Statutes section 742.18, which permits a "male” to file a petition in circuit court to "disestablish paternity or terminate a child support obligation” when that male is not the child's biological father and certain other conditions exist. There is no indication in this record that Raymond, Sr., has filed such an action.


text:
    Brayan RIVERA, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Carolina RIVERA, Appellee.
    No. 3D06-2146.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Brayan Rivera, in proper person.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Department of Revenue’s, on behalf of Carolina Rivera, proper confession of error, we vacate the Final Administrative Support Order and remand to the lower tribunal for a new hearing before the Division of Administrative Hearings.

Final order vacated and case remanded with instructions.


author: HAWKES, J.

text:
    WINN-DIXIE STORES, INC., Appellant, v. David A. REDDICK & James A. Stokes, Appellees.
    No. 1D04-4340.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Rehearing Denied April 26, 2007.

      Edward H. Trent and Richard N. Mar-gulies of Akerman Senterfitt, Jacksonville, Eric J. Holshouser, Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, for Appellant.
    T.A. “Tad” Delegal, III, and Shawntoyia Grier, Delegal Law Offices, P.A., Jacksonville, Kendra D. Presswood, Presswood Law Firm, P.A., Holmes Beach, for Appel-lees.
   OPINION ON MOTION FOR REHEARING, CERTIFICATION, AND REHEARING EN BANC

HAWKES, J.

We deny appellee’s motion for rehearing, certification, and rehearing en banc. However, this Court, sua sponte, withdraws its previous opinion, and substitutes this opinion in its place. See City of Cooper City/Florida Mun. Ins. Trust/Florida League of Cities v. Farthing, 905 So.2d 925, 926 (Fla. 1st DCA 2005) (withdrawing an opinion and reconsidering its merits upon this Court’s own motion).

Appellant appeals the trial court’s order awarding appellees attorney’s fees and costs associated with their lower court action for employment discrimination, which was filed pursuant to the Florida Civil Rights Act of 1992 (FCRA), as amended. See §§ 760.01-760.11, Fla. Stat. On appeal, appellant presents three arguments for reversal. First, appellant argues that the trial court erred by awarding a contingency fee multiplier, because such an award is not permitted under the FCRA. Second, appellant argues that the trial court erred by taxing costs beyond those provided for in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Third, appellant argues that the trial court erred in calculating a “reasonable attorney’s fee” in this case. In response, appellees have filed a cross-appeal challenging the trial court’s denial of their request for attorney’s fees for time spent litigating their entitlement to attorney’s fees under the FCRA.

We find no merit in appellant’s third point on appeal, except to the extent expressed in our discussion of the costs issue. Therefore, we affirm as to appellant’s challenge to the trial court’s calculation of a reasonable attorney’s fee without comment. However, because we find merit in appellant’s first and second arguments on appeal and appellees’ only point on cross-appeal, we reverse and remand for further proceedings.

Facts

In the underlying discrimination suit, appellees alleged that they were demoted and later terminated as a result of age discrimination. Alternatively, appellees alleged that they were fired in retaliation for reporting an incident of sexual harassment and/or for questioning whether their demotions were related to age discrimination. Following a two week jury trial, appellees were successful on some of their claims and were awarded a total of $700,000 in economic damages and $100,000 in punitive damages.

Upon completion of the trial, appellees moved for attorney’s fees, costs, and the award of a contingency fee multiplier. Ap-pellees requested $229,856.12 in attorney’s fees and $65,305.24 in costs. This costs figure included requests for items such as postage, travel fees, office expenses, computerized research, photocopies, expert fees, and mock trials. An evidentiary hearing was held to determine the appropriate amount of attorney’s fees and costs to be awarded.

Three Jacksonville attorneys testified during the evidentiary hearing. These attorneys were all accepted by the trial court as experts. In sum, the testimony of these three attorneys established that whether this case is reviewed as a category one or category two case, as those categories have been established pursuant to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 833 (Fla.1990), a contingency fee multiplier was appropriate.

After considering all the evidence, the trial court granted appellees attorney’s fees of $191,513.79 as well as a multiplier of 2.0. In reaching the $191,513.79 figure, the trial court reduced the requested fee award ($229,856.12) by $10,983.22, because the requested fee included fees connected to time spent litigating appellees’ entitlement to fees. The trial court also reduced the calculated lodestar ($218,872.90) by 12.5 percent to account for time spent litigating unsuccessful claims. However, due to the award of a multiplier, the attorney’s fees actually awarded were $383,027.58. Regarding the costs issue, the trial court found that not all of the costs requested by appellees were permitted under the Statewide Uniform Guidelines For Taxation of Costs in Civil Actions. Accordingly, the trial court reduced the $65,305.24, requested in costs, by 12.5 percent and awarded $57,142.09 in costs.

The Florida Civil Rights Act Does Not Permit the Award of Contingency Fee Multipliers

The key challenge presented by the E/C relates to whether the FCRA permits the award of a multiplier. A review of the pertinent law leads us to conclude that contingency fee multipliers are not permitted under the FCRA. As this issue deals with the construction of section 760.11(5), Florida Statutes, it is reviewed by this Court de novo. See Agency for Health Care Admin. v. HHCI Ltd. P’ship, 865 So.2d 593, 595 (Fla. 1st DCA 2004) (holding that the application of undisputed facts to a statute allowing for the award of attorney’s fees is reviewed de novo).

Section 760.11(5), Florida Statutes, specifically states that “[i]n any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs.” This subsection is the statutory authority, relied upon by the trial court, for awarding appellees attorney’s fees in this ease. However, in the sentence immediately following the statutory grant of authority to award attorney’s fees, the statute states, “[i]t is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.” § 760.11(5), Fla. Stat. (1992). This statutory statement of legislative intent clearly and unambiguously requires that Florida courts conform their rulings respecting the award of attorney’s fees, under this section, to federal case law interpretations of Title VII attorney’s fees actions.

The amendment adding this statement of legislative intent was signed into law on June 17, 1992. See Ch. 92-282, Laws of Fla. Seven days after this language was added to the FCRA, the United States Supreme Court decided Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), which effectively held that fee multipliers could not be awarded in cases involving federal fee shifting statutes. Subsequent to the Dague decision, the Eleventh Circuit held that under no circumstances were contingency fee multipliers permissible under Title VII. McKenzie v. Cooper, Levins, & Pastko, Inc., 990 F.2d 1183, 1186 (11th Cir.1993).

Prior to Dague, it was unsettled whether contingency fee multipliers could be awarded in connection with federal fee shifting statutes. During this pre-Dague period, the Eleventh Circuit had ruled that an enhancement over and above the “lodestar” may be awarded in Title VII actions to compensate attorneys for the risk of accepting a case on a contingency basis and to attract competent counsel. See Richardson v. Alabama State Bd. of Ed., 935 F.2d 1240, 1248 (11th Cir.1991). However, in King v. Palmer, 950 F.2d 771, 784 (D.C.Cir.1991), the D.C. Circuit, en banc, specifically held that “that contingency enhancements will not be available in this Circuit.” While it is clear that federal circuits generally accepted the applicability of contingency fee multipliers in Title VII actions at the time the FCRA was amended, not every circuit had accepted contingency fee multipliers as appropriate.

On appeal, appellees, unconvincingly, argue that federal decisional law post-dating the legislature’s amendment of the FCRA is not binding authority when interpreting the FCRA. There are two reasons why appellees’ argument on this point must fail. First, the plain language of the statute unambiguously calls for Florida courts to interpret the attorney’s fees provision of this statute in conformity with federal case law under Title VII. See Atlantis at Perdido Ass’n, Inc. v. Warner, 932 So.2d 1206, 1212-13 (Fla. 1st DCA 2006) (“[T]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”) (internal citations and quotations omitted). Second, even if the language of the statute is found to be ambiguous as to whether it was intended only to incorporate case law pre-dating the amendment, the legislative intent language of the amendment would be rendered meaningless by the interpretation, appellees forward. Koile v. State, 934 So.2d 1226, 1233 (Fla.2006) (noting that “courts should avoid readings that would render part of a statute meaningless”). .

The plain language of the legislative intent phrase does not, by its own terms, limit its application to “federal case law” decided prior to the enactment of the amendment. Neither does its language suggest any preferred result with respect to the appropriateness of contingency fee multipliers. Clearly, the legislature was aware .that federal case law interpreting Title VII attorney’s fees actions would be decided after the statute was amended. Had the legislature wished to limit the application of this, language to case law pre-dating the amendment, it could have easily said so. Accordingly, the most logical reading of the statute mandates that the attorney’s fees provision of the statute be interpreted in conformity with federal case law irrespective of whether the case law “pre” or “post” dates this amendment.

Assuming, arguendo, that there is some ambiguity as to whether the statutory amendment was intended to tether the state statute to federal case law postdating the enactment of the amendment, this Court must determine what purpose the amendment was intended to serve. As noted above, this Court should avoid construing a statute in a manner that renders a portion of the language meaningless.. To address this question, we turn to two longstanding canons of statutory interpretation. The first of these “recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in federal courts to the extent the- construction is harmonious with the spirit of the Florida legislation.” O’Loughlin v. Pinchback, 579 So.2d 788, 791 (Fla. 1st DCA 1991); Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556 (1929); Massie v. Univ. of Fla., 570 So.2d 963 (Fla. 1st DCA 1990). The second mandates that courts presume the legislature was aware of the effect that the first canon had on the interpretation of the FCRA, which was modeled after Title VII. See Seagrave v. State, 802 So.2d 281, 290 (Fla.2001) (“Florida’s well-settled rule of statutory construction [is] that the legislature is presumed to know the existing law when a statute is enacted, including ‘judicial decisions on the subject concerning which it subsequently enacts a statute.’ ”); see also Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) (quoting Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806, 809 (Fla.1964) for the same).

Our inquiry into what purpose the legis-' lative intent language of section 790.11(5), Florida Statutes, was intended to serve, must be guided by both of these statutory canons. We must assume the legislature was fully aware that Florida courts would construe all segments of the FCRA in a manner consistent with federal constructions of Title VII, with or without language to that effect. Therefore, the logical purpose for including this language was to ensure that courts would not deviate from federal case law constructions by declaring that the federal construction is not harmonious with the spirit of the Florida legislation. By stating, “[i]t is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action,” § 760.11(5), Fla. Stat. (1992) (emphasis added), the legislature has placed Florida courts on notice that federal court constructions of Title VII are, by definition, “harmonious with the spirit of the Florida legislation.”

In support of their position, appellees have cited to a number of state decisions holding that federal cases decided after the adoption of a state statute, modeled on a federal statute, are persuasive authority, at best, and in some situations may not be considered, at all, when interpreting such a state statute. See State v. Szarkowitz, 157 Wis.2d 740, 460 N.W.2d 819 (Wis.App.1990); Ind. Dep’t of State Revenue v. Estate of Wallace, 408 N.E.2d 150 (Ind. 1st DCA 1980) (stating “only cases decided prior to the adoption may be considered for [interpretation of the state law]”); State v. Wells, 276 N.W.2d 679 (N.D.1979) (holding a federal court’s interpretation of a federal statute will only be persuasive and not controlling in evaluating a state statute enacted prior to the federal court’s opinion); Kahn v. Kahn, 68 Cal.App.3d 372, 137 Cal.Rptr. 332 (Cal. 1st DCA 1977) (same); Estate of Walton v. State Dep’t of Revenue, 579 So.2d 643 (Ala.Ct.App.1991) (where a state statute is modeled after a federal statute, subsequent amendment of the federal statute does not amend a similar state statute without action by the state legislature), .

These cases present factual circumstances and legal considerations which are not sufficiently analogous to the instant case to provide this Court with much guid-anee. The first important distinction between the instant case and the cases relied upon by appellees relates to the existence of intervening Congressional action. In the instant case, the language of the federal statute controlling attorney’s fees in Title VII actions was the same both when the FCRA was amended and when the Supreme Court issued its decision in Da-gue. As previously noted, the applicability of multipliers to Title VII actions remained in doubt until after Dague was issued. However, this does not mean that Dague resulted in a change in the substantive law. Rather, Dague merely operated to clarify an ambiguous area of the law by announcing the ever existing, but as yet undiscovered, meaning of the statutory language at issue. Accordingly, the legislature did not delegate its power to either Congress or the federal court system by requiring state courts to interpret this, language in conformity with federal case law. Dague did nothing more than resolved an ongoing dispute as to what the existing federal statutory language always had meant; therefore, Dague’s ruling embodies exactly what the legislature had always intended the FCRA attorney’s fee provision to mean.

The second noteworthy distinction, between this case and those cases cited by appellees, is that none of the cases cited by appellees involved a state statute that designated federal case law as the polestar upon which state courts must rely in construing the state statute. For obvious reasons, the absence of such language in the statutes involved in these cited cases causes these eases to be of little help in resolving the instant matter. Based upon all the reasons stated above, the FCRA does not allow for the award of a contingency fee multiplier. Accordingly, the order of the trial court is reversed to the extent that it awards such a multiplier.

The Costs Award

The trial court has also erred with respect to its award of costs below. An appellate court reviews whether a trial court’s award of costs is excessive for an abuse of discretion, Thomas v. Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998); however, whether a cost requested may be awarded, at all, is a question of law to be reviewed de novo.

The FCRA does not in any way adopt, incorporate, or require the application of federal law to a determination of what costs may be awarded. Therefore, the award of costs is governed by Florida law on the subject. Under Florida law, taxable costs are governed by section 57.041, Florida Statutes, and the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. See In re: Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, 7 Fla. L. Weekly S517 (Fla.1981). A trial court is permitted to deviate from these guidelines “depending on the facts of the case as justice may require.” State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998).

In the instant case, the trial court did not itemize which costs it chose to allow or disallow. Rather,' it summarily reduced the costs requested by 12.5 percent. The trial court’s failure to indicate which costs it was awarding is its first error on this point. As justification for this blanket reduction of costs, the trial court cites to Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which stands for the proposition that, for purposes of the federal civil rights attorney’s fee statute, the partial or limited nature of the success obtained by counsel should be considered in determining a reasonable attorney’s fee, and that a reasonable attorney’s fee may be determined by simply reducing the hours requested by some percentage. Hensley reviewed an action brought pursuant to federal law and includes no discussion of costs; therefore, the trial court’s reliance upon Hensley for its imposition of a blanket reduction of costs was inappropriate.

On remand, the trial court must review the costs requested by appellees to determine which ones are appropriately awarded under Florida law and which ones are not. Otherwise, this Court cannot conduct an intelligent review of the awarded costs to determine whether the award of such costs is permitted, as a matter of law. See e.g., Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So.2d 513, 517-18 (Fla. 3d DCA 2006).

The trial court’s second error on this point arises from its apparent misconception concerning federal Title VII law relating to attorney’s fees. In reducing the amount of costs requested by appellees, the trial court appears to have looked exclusively to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. As Florida law precludes the award of some of these requested ■ costs, such reliance was clearly appropriate for purposes of deciding the state law costs issue before the trial court. However, the trial court failed to consider whether these requested costs could be included as part of a reasonable attorney’s fee award, pursuant to Title VII.

Federal case law has stated that “an award of attorney’s fees in a civil rights case should include reasonable out of pocket expenditures of the attorney beyond normal overhead. These nonstatutory costs [which are] subsumed within the reasonable attorney’s fee could include compensation for postage, long distance calls, photocopying, travel, paralegals, expert witnesses, and computerized legal research.” Cappeletti Bros., Inc., v. Broward County, 754 F.Supp. 197, 198 (S.D.Fla.1991) (internal citations omitted); see also Allen v. Freeman, 122 F.R.D. 589, 591 (S.D.Fla.1988). Accordingly, it is possible that some of the costs disallowed by the trial court could be awarded to appel-lees as part of a reasonable attorney’s fee award. This would be the case if they are the types of costs which federal law allows to be subsumed within a reasonable attorney’s fee under Title VII. On remand, the trial court should review the requested costs and determine two things: 1) whether the requested costs may be awarded under Florida law, and 2) whether federal case law, interpreting Title VU’s attorney’s fee statute, allows the requested costs to be included as part of a reasonable attorney’s fee. If the requested costs may be awarded under Florida law, then they should be awarded as costs. If, however, the requested costs may be awarded as part of a reasonable attorney’s .fee pursuant to Title VII, then they should be awarded as part of the attorney’s fee award in this case. If the requested costs fail to fall within either of these categories, then the requests should not be awarded.

Time Spent Litigating Entitlement to Fees

On cross-appeal, appellees argue that the trial court erred to the extent that it reduced them attorney’s fee award to account for time spent litigating appellees’ entitlement to attorney’s fees. In response, appellant concedes that if an award of attorney’s fees under the FCRA is governed by federal law, then appellees are entitled to fees for time spent litigating their entitlement to such fees. We find that appellees’ argument on this point has merit and reverse the trial court’s order on this point.

Whether attorney’s fees may be awarded, pursuant to section 760.11(5), Florida Statutes, for time spent litigating appellees’ entitlement to attorney’s fees is a question of law to be reviewed de novo. See Waste Magmt., Inc. v. Mora, 940 So.2d 1105, 1107-08 (Fla.2006) (holding matters of statutory construction are reviewed de novo); see also Agency for Health Care Admin. v. HHCI Ltd. Partnership, 865 So.2d 598, 595 (Fla. 1st DCA 2004) (holding that the application of undisputed facts to a statute allowing for the award of attorney’s fees is reviewed de novo).

As stated above, section 760.11(5), Florida Statutes, the attorney’s fees provision, expressly states that it is to be construed in conformity with federal case law relating to Title VII. Federal decisional law clearly permits a party seeking entitlement to attorney’s fees to receive an award for time spent establishing their entitlement to that fee. See Johnson v. State of Mississippi, 606 F.2d 685, 638 (5th Cir.1979) (concluding “[a]ttorney’s fees may be awarded for time spent litigating the fee claim”); see also Fewquay v. Page, 907 F.2d 1046 (11th Cir.1990); Aubin v. Fudala, 821 F.2d 45 (1st Cir.1987); Cunningham v. County of Los Angeles, 879 F.2d 481, 490 (9th Cir.1988). Accordingly, as a matter of law, section 760.11(5), Florida Statutes, permits appellants to receive an award of attorney’s fees for time spent litigating their entitlement to such fees.

In this case, the trial court inappropriately relied upon state law, State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993) (stating that attorney’s fees may not be awarded for litigating entitlement to said fees), as justification for denying appellees’ entitlement to such fees. This reliance upon state law was error. Therefore, this case is remanded to the trial court to determine appellees’ entitlement to these attorney’s fees. The trial court should engage in this process with the understanding that federal case law permits an award of reasonable attorney’s fees for hours spent litigating entitlement to attorney’s fees.

Conclusion

The trial court erred in awarding a contingency fee multiplier, under the FCRA, where federal law specifically prohibits the award of such a multiplier in Title VII actions and the FCRA expressly states that its attorney’s fee provision is to be construed in conformity with federal Title VII case law. The trial court further erred in awarding costs based upon a pure percentage reduction of the costs requested. The trial court must identify which costs it has determined may be awarded under Florida law and evaluate the balance of the costs to determine whether they may be awarded as part of a reasonable attorney’s fee in federal Title VII actions. Finally, the trial court erred in relying upon state law in denying appellees request for attorney’s fees for hours spent litigating their entitlement to attorney’s fees. Such fees may be awarded in Title VII actions, and Title VII law controls the award of attorneys fees in FCRA cases. Accordingly, this ease is AFFIRMED in part, REVERSED in part and REMANDED with instructions, for further proceedings.

KAHN and THOMAS, JJ., concur.

      . Prior to Dague, many other circuits had also adopted tests for determining when an award of a contingency fee multiplier was appropriate. See Student Pub. Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1451-52 (3d Cir.1988) ("[C]ontingency multipliers should be granted only rarely.”); Craig v. Sec'y, Dep’t of Health & Human Servs., 864 F.2d 324, 327 (4th Cir.1989) (no contingency enhancement available "in the absence of exceptional circumstances”); Leroy v. City of Houston, 831 F.2d 576, 583 (5th Cir.1987) (contingency enhancements should be "reserved for ‘exceptional cases' " (citation omitted)); Skelton v. Gen. Motors Corp., 860 F.2d 250, 254 (7th Cir.1988) (contingency enhancements available only if plaintiffs meet “stringent requirements”); Hendrickson v. Branstad, 934 F.2d 158, 162 (8th Cir.1991) ("[Ejnhancement is reserved for ‘rare’ and ‘exceptional’ cases”); Smith v. Freeman, 921 F.2d 1120, 1123 (10th Cir.1990) (quoting plurality's view that "enhancement for the risk of nonpayment should be reserved for exceptional cases”); But cf. D’Emanuele v. Montgomery Ward & Co., 904 F.2d 1379, 1383 (9th Cir.1990) (implying that routine contingency enhancements might be justified).

      . If the United States Supreme Court were to later decide that it had erred in issuing Dague, and that contingency fee multipliers had always been permitted under Title VII, then the FCRA would be accordingly affected by such a ruling. However, a Congressional amendment to Title VII, which permitted the award of contingency fee multipliers, would have no effect on the FCRA without independent state legislative action. See Pinchback, 579 So.2d at 791. Similarly, a decision by the United States Supreme Court to alter its decision in Dague — not because it was wrongly decided, but — because it wished'to affect a more desirable public policy would not correspondingly change the FCRA.


author: THOMAS, J.

text:
    Jamal Che GLENN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0765.
    District Court of Appeal of Florida, First District.
    April 26, 2007.

      Jamal Che Glenn, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. In light of the 2006 change in Florida law, we reverse.

On October 2, 1998, Appellant pled guilty to first-degree murder and robbery. Appellant filed a rule 3.853 motion seeking DNA testing of evidence collected during the investigation of the crimes, including samples from the victim’s clothing and personal effects, fibers, nail scrapings, and “other minuscule debris,” as well as hair samples. Appellant’s motion is facially sufficient, alleging that he is innocent, that identity was a material issue at trial, that no DNA testing of the relevant evidence occurred, and that DNA testing will exonerate him. See 925.11(2), Fla. Stat. (2006).

The trial court denied Appellant’s motion, relying on language in section 925.11(l)(a), Florida Statutes (2005), which limits the right to file rule 3.853 motions to those who have been tried and found guilty of a felony, and effectively excludes those who entered a guilty or nolo contendere plea to such crimes. However, section 925.11(l)(a)2. was amended in 2006 to allow for postconviction DNA testing in cases where the defendant enters a plea of guilty or nolo contendere to a felony. See § 925.11(1), Fla. Stat. (2006); Lindsey v. State, 936 So.2d 1213 (Fla. 5th DCA 2006). Section 925.11(l)(a)2., Florida Statutes (2006), provides:

A person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that person.

Courts must first look to the plain language of a statute when construing its meaning. See Montgomery v. State, 897 So.2d 1282, 1285 (Fla.2005). When the language is clear and unambiguous, there is no room for statutory interpretation or judicial construction. Id.; State v. Jett, 626 So.2d 691, 692 (Fla.1993).

The language of section 925.11(l)(a)2. is clear and extends the right to file a motion for postconviction DNA testing not only to those who entered a guilty or nolo conten-dere plea after the change in the law, but also includes those who entered a plea to a felony before July 1, 2006. Because Appellant filed a facially sufficient motion for postconviction DNA testing, his motion cannot be denied solely on the basis of his 1998 plea.

In response to this court’s order to show cause why this case should not be remanded, the State argues that Appellant failed to meet his burden of justifying his delay in seeking DNA testing and failed to provide an explanation as to why the evidence at issue was not tested at the time his plea was entered. Specifically, the State argues that Appellant failed to explain the seven-year gap between his conviction and the filing of his rule 3.853 motion, and failed to offer facts that justified such a delay.

In support of its argument, the State cites Hitchcock v. State, 866 So.2d 23 (Fla.2004). The State, however, incorrectly interprets the language of the supreme court’s opinion. The State appears to argue that because the court in Hitchcock determined that the intent of rule 3.853 is to provide an opportunity for DNA testing of evidence not previously tested, or of evidence previously tested but with inconclusive results and subsequent developments in testing techniques would provide a definitive result, the defendant bears the burden of explaining and justifying why DNA testing of the evidence at issue was not sought before the postconviction stage of the proceedings. However, nothing in Hitchcock indicates that the court intended to place the burden on the defendant to make such explanations and justifications; rather, the court found that the allegations were inadequate on the merits. Further, nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant. Finally, in light of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred. As such, we find the State’s argument and reliance on Hitchcock unpersuasive.

In light of the plain language of section 925.11(l)(a)2., Florida Statutes (2006), this case must be remanded. Accordingly, we reverse the trial court’s summary denial of Appellant’s rule 3.853 motion and remand to the trial court to address the merits of Appellant’s petition pursuant to sections 925.11(2)(c)-(f), Florida Statutes (2006).

REVERSED and REMANDED.

KAHN and HAWKES, JJ., concur.


text:
    James CARTER, Appellant, v. LOWE’S HOME CENTERS, INC. and Lowe’s-Companies, Inc., Appellees.
    No. 1D06-3868.
    District Court of Appeal of Florida, First District.
    April 26, 2007.

      Douglass A. Kreis and Joshua A. Jones of Aylstock, Witkin, Kreis & Overholtz, PLC, Pensacola, for Appellant.
    Michelle L. Hendrix of Vernis & Bowling of Northwest FL, P.A., Pensacola, for Appellees.
   PER CURIAM.

James Carter appeals a final order dismissing his complaint with prejudice based upon the statute of limitations, section 95.11(3)(a), Florida Statutes (2002). Carter’s complaint alleged that, on February 23, 2002, he sustained injuries when he slipped and fell on wet plant material on the premises of a home improvement store owned and operated by Lowe’s Home Centers, Inc., and Lowe’s-Companies, Inc., ap-pellees. Carter’s complaint was filed on March 2, 2006, more than four years after the date of the alleged accident. Carter argues that, because he did not know the extent of his injuries until he sought medical assistance on March 1, 2002, the common law delayed discovery doctrine applies and, as a result, his cause of action did not accrue . until March 1, 2002. We agree with the trial court that the delayed discovery doctrine is not applicable here.

As the Florida Supreme Court explained in Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla.2000), “[t]he ‘delayed discovery’ doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.” (Citations omitted). In the vast majority of cases, the cause of action accrues when the event giving rise to the damage occurs. Id. at 1185, n. 3. The delayed discovery doctrine was reserved to those cases where the plaintiff cannot readily discover the injury done to him. Id. In this case, nothing prevented Carter from discovering that he slipped and fell and that he might have been injured as a result thereof. See also Cristiani v. City of Sarasota, 65 So.2d 878 (Fla.1953)(statute of limitations generally runs from the notice of the negligent act rather than notice of its consequences).

AFFIRMED.

BARFIELD, WOLF, and VAN NORTWICK, JJ., concur.