author: ALTENBERND, Judge.

text:
    Sunil GHAY, Appellant, v. Poonam GHAY, Appellee.
    No. 2D06-2408.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.

      Nicholas P. Sardelis, Jr., of Sardelis and Bowles, L.L.P., Sarasota, for Appellant.
    Susan L. Chapman of Susan L. Chapman, P.A., Sarasota, for Appellee.
   ALTENBERND, Judge.

Sunil Ghay, the husband, appeals a temporary order entered in a dissolution of marriage proceeding that requires him to pay $10,000 per month in temporary alimony, $2,959 per month in temporary child support, and $15,000 in temporary attorneys’ fees. The order was entered based upon the report and recommendation of a general magistrate. We reject without further comment the husband’s contention that the trial court improperly considered the income from certain corporate entities in determining appropriate awards of temporary support. However, the calculations supporting each award in the court’s order are not consistent with the evidence presented. We therefore reverse the amounts of each award and remand for reconsideration.

The parties were married in 1987 and have three children, now 18, 15, and 9 years old. The wife, Poonam Ghay, filed the petition for dissolution of marriage in August 2005, asking to be designated the primary residential parent of the children and seeking child support, alimony, equitable distribution of marital assets, and a contribution to her attorneys’ fees. The husband filed a counterpetition agreeing that the wife should be the primary residential parent for the children and agreeing that there should be an equitable distribution of the marital assets. He also requested alimony and partition of two pieces of real property.

On December 2, 2005, the parties appeared before a general magistrate for a hearing on the wife’s request for temporary relief including child support, alimony, attorneys’ fees, and an injunction preventing the husband from disposing of marital assets. Our limited record does not contain the wife’s motion, the financial affidavits of the parties, or any supporting documentation evidencing their respective incomes.

The husband did not testify at the hearing. The wife presented various witnesses and her own testimony regarding the family’s finances. That evidence established that the parties have run a series of businesses since 1993. In the first business, the parties suffered a serious loss that resulted in credit problems. The second business, however — a gas station and food mart — was successful. It led to the parties acquiring other business interests. In 2002, on the advice of an accountant, the parties decided to incorporate their business ventures and name the husband’s father as the president and director of the new corporations, reportedly because the parties’ personal credit problems prevented them from qualifying to have a Lotto machine at the gas station and food mart. In the time immediately preceding the filing of the dissolution proceedings, the parties were involved in five subchapter S corporations — four “owned” by the husband’s father and one “owned” by the husband. The husband was listed as an employee of one of the father’s corporations and received a relatively modest reported income from that corporation, and the wife was listed as an employee of the husband’s corporation and received a modest reported income from that corporation.

The wife presented the testimony of an accountant who testified that in 2004 all of the income reported for the four corporations held by the husband’s father was attributed to the father on the father’s tax returns. Combined, the various corporations had gross receipts of millions of dollars in 2004. According to the accountant, the father received the income and proceeds or profits from the corporations “just for tax purpose[s], not from the monetary point of view.” According to the wife’s unrebutted testimony, the father was effectively a straw man, and the parties lived a rather lavish lifestyle based upon the income generated from these business ventures. They were building a $850,000 home when the petition for dissolution of marriage was filed, and the wife testified that she continued to need between $7000 and $8700 per month to meet the family’s expenses commensurate with the standard of living established during the marriage.

Two circumstances complicated this financial picture even further. First, according to testimony presented by the wife, the husband began to sell the parties’ various business interests in 2005. He apparently personally arranged the sales and participated in them, resulting in sale proceeds in excess of $2 million. It is unclear where this money is now. Second, the husband’s father died in July 2005. The record does not contain any explanation of how his death affected the legal ownership of the corporations or any proceeds from the sale of the businesses or any explanation of whether the husband received any of the father’s assets, including any interest in the corporations, as a result of the father’s death.

The general magistrate was given the unenviable task of trying to interpret the various figures provided through the testimony and the parties’ tax returns to fashion an appropriate award of temporary alimony, child support, and attorneys’ fees. The report and recommendation issued by the general magistrate found that the wife’s annual income was $40,000 and the Husband’s annual income was $450,966 “based upon the funds the Husband took from various accounts and certificates of deposit.” Based upon these figures, the general magistrate recommended, and the circuit court approved, an award to the wife of $10,000 per month alimony, $2,959 per month in child support, and the payment of $15,000 of the wife’s temporary attorneys’ fees.

Unfortunately, these figures are not supported by the evidence presented. Initially, we note that the language of the order suggests that the $450,966 figure is a lump sum the husband received from taking certain marital assets and converting them to his own use; it is not a calculation of income. We are unable to conclusively determine, however, whether the court intended a calculation of income or available assets, or upon what evidence this calculation was based. The $450,966 figure does not comport with the evidence regarding the funds the husband received from the sale of the various businesses or the testimony regarding his withdrawal of marital funds. There is also no indication that this figure relates to the historic income created by the parties’ various business ventures.

Perhaps even more important, the amount awarded does not comport with the evidence of the wife’s needs. The wife testified that she needed $7000 to $8700 per month to meet the family’s needs; she did not differentiate in her testimony between the children’s expenses and her own. The combined award here totals almost $13,000 per month and provides the wife a contribution toward her attorneys’ fees. At the same time, the order recognizes that she currently earns over $3000 per month in income.

Finally, the award of temporary attorneys’ fees is unaccompanied by any factual findings regarding reasonable hourly rates and the amount of fees that are expected to be reasonably incurred, and thus requires reversal. See Kasm v. Kasm, 933 So.2d 48 (Fla. 2d DCA 2006). As a result, we must reverse the amount of the individual support awards and remand for further consideration.

' We are not unsympathetic to the difficulties presented to the circuit court in dissolution cases when faced with self-employed spouses and the need to enter a temporary support order expeditiously while being provided with limited information. As Judge Stringer has previously noted, “A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often based upon an abbreviated hearing and limited evidence.” Dent v. Dent, 851 So.2d 819, 821 (Fla. 2d DCA 2003) (Stringer, J., concurring). Temporary support issues cannot always await full discovery or the preparation of an expert’s opinion.

In addition, temporary support orders are, obviously, temporary. They do not create vested rights, and they can be modified or vacated at any time by the circuit court while the litigation proceeds. See § 61.14(11), Fla. Stat. (2005). If further discovery reveals that a temporary support order is inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.

For these reasons, it is undoubtedly more difficult to establish an abuse of discretion or a harmful error of law in a temporary order. If the circuit court issues an order that comports with the evidence presented at the temporary hearing and provides a reasonable temporary resolution of the family’s needs in light of their apparent resources, we are unlikely to find any reversible error in the temporary award. Because the specific awards in this case cannot be understood in the context of the evidence presented, however, we must reverse.

Nevertheless, we are certain that the trial court can fashion an equitable temporary support order based on the type of evidence presented in this case. Although it appears the husband has attempted to divest himself of any income, numerous options remain open to the circuit court to determine an appropriate amount of support. Income may be imputed to the husband in accordance with section 61.30(2)(b), Florida Statutes (2006). See also Smith v. Smith, 737 So.2d 641, 643 (Fla. 1st DCA 1999) (recognizing that a persons capacity to earn is a matter to be considered in calculating an appropriate award of alimony). Indeed, the Florida Supreme Court and other district courts have suggested that a presumption arises from a spouses historical earnings that supports a finding the spouse can continue to earn the same amount, absent evidence to the contrary. See Garfield v. Garfield, 58 So.2d 166, 167 (Fla.1952); Seitz v. Seitz, 471 So.2d 612 (Fla. 3d DCA 1985) (citing Klein v. Klein, 122 So.2d 205 (Fla. 3d DCA 1960)). In light of the testimony that the husband has converted a large amount of marital assets to his personal use and the evidence that he has successfully invested in businesses with more limited funds and generated significant income and profits, an award based upon historic income may be appropriate. We also note that child support specifically can be awarded from nonrecurring income or assets when the recurring income is insufficient to meet the child’s needs. See § 61.30(13).

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.

      . The order also prohibited the husband from disposing of marital assets. The husband has not challenged this portion of the order, and it is therefore affirmed.

      . Obviously this testimony may have serious implications for the parties outside of this proceeding. As we have previously stated, "[I]t is not the job of the state court in a dissolution proceeding to fashion remedies to enforce federal tax laws when the parties submit joint federal tax returns containing misstatements. Even when the parties misrepresent their income, the court must still attempt to establish alimony based on need, ability to pay, and the relevant statutory factors.” Cf. Cunningham v. Cunningham, 918 So.2d 412, 414 (Fla. 2d DCA 2006).

      . The legislature added this provision to section 61.14 effective July 1, 2004, ch.2004-47, Laws of Fla., in direct response to cases such as this court’s opinion in Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999), which suggested that temporary support orders enjoyed some level of finality even before the entry of a final judgment. See Senate Staff Analysis & Economic Impact Statement, Senate Bill 1060, Regular Session (Fla. Mar. 16, 2004). The Fifth District has recently opined that this enactment has superseded Kraus and similar cases. See Murphy v. Murphy, 948 So.2d 864 (Fla. 5th DCA 2007).


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Herbert SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2474.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Peter Raben, Coconut Grove, for appellant.
    Bill McCollum, Attorney General, Orlando, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appel-lee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   LAGOA, J.

The appellant, Herbert Smith (“Smith”), appeals an order finding him guilty of two counts of direct criminal contempt for his behavior at two non-jury hearings before the Honorable Scott J. Silverman, Circuit Court Judge of the Eleventh Judicial Circuit (the “Judge”). For the following reasons, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On June 2, 2004, Smith, a lawyer with the Public Defender’s Office, was present in the courtroom in his capacity as the supervisor for the four (4) public defenders assigned to the Judge’s courtroom. While Smith was present, the Judge ordered that the Public Defender’s Office appear as counsel for a defendant who had filed a motion for DNA testing. Smith informed the Judge that because of the defendant’s claim of ineffectiveness of counsel at trial, the Public Defender’s Office, which had previously represented the defendant, could not be appointed to represent the defendant. The following exchange took place:

THE JUDGE: He is happy with you. If you want to provide me with some caselaw; I don’t know that is a conflict.
MR. SMITH: Mr. Alvarez says that—
THE JUDGE: Stop, provide me some caselaw.
File a motion, you may want to check with the Florida Hot Line, to see if that is an actual conflict.
By looking at its face, he disagrees with you, he is not happy with everything that you have done.
If you think that is a conflict, provide me with some caselaw, and I’ll read it; in the meantime, you are still on the case. If you want, I’ll give you a date.
MR. SMITH: How about Friday?
THE JUDGE: Friday is fine.

At the June 4th hearing, Smith informed the Judge that the appointment of counsel was discretionary as the defendant did not request counsel in his motion. The following exchange occurred, much of which formed the basis of the later charges of direct criminal contempt against Smith:

THE JUDGE: Did I ask you to research my question to you? What case-law do you have for the court? You can answer my question.
MR. SMITH: I don’t have any caselaw, because I found out Mr. Alvarez never asked you for the appointment of counsel. If you look at the motion, he has never asked you for appointment of counsel; it is completely, discretionary, when the court appoints a lawyer. It is a setup, when you appoint a lawyer from the P.D.’s office, when he is claiming that our office is ineffective—
THE JUDGE: He never said you were ineffective.
Don’t argue with me, and don’t stump [sic] your foot, either. We went through this the other day; did we not?
MR. SMITH: The court has an interpretation of words that is different, than the common understanding of words.
THE JUDGE: My question is, didn’t we go through this the other day?
MR. SMITH: Your question, you have a different opinion with what he, Mr. Alvarez, wrote. You questioned him about the P.D., he said we were ineffective—
THE JUDGE: Did he write that in his motion?
Did he use the word ineffective?
MR. SMITH: We have gone over that, Judge.
THE JUDGE: You seem to want to go over that again.
MR. SMITH: No, I don’t want to go over that again, I am telling you, I don’t want to represent Mr. Alvarez, because we feel this is a setup.
THE JUDGE: A setup? How can you say it is a setup?
MR. SMITH: He claims we would be ineffective, if you appoint us. I don’t think that is fair to us.
THE JUDGE: If he does that, you can file something.
I asked you to file something today, I asked you to research it today, and you didn’t do that.
MR. SMITH: I did that.
THE JUDGE: And you didn’t find a Statute, at all?
MR. SMITH: The court is not listening to me.
THE JUDGE: You are not listening to me.
Did you find any Statute—
MR. SMITH: I did not.
THE COURT: —Don’t talk over me. Don’t turn your back on me, Mr. Smith, this is the last time I am going to tell you, don’t do it.

A final hearing was scheduled for June 8th during which Smith presented his arguments to the Judge. On July 20, 2004, the Judge discharged the Public Defender’s Office, finding that he first needed to make a determination as to the validity of the defendant’s motion before appointing counsel and admitting that he “was in error in that respect [and] the court [was] now correcting its own error.”

On September 30, 2004, the Judge issued an Order to Show Cause charging Smith with six counts of criminal contempt, all of which related to Smith’s behavior at the June 4th and June 8th hearings. Specifically, Count V alleged that at the June 4th hearing Smith “argued with the court, interrupted the court, stomped his foot, and turned his back on the court twice during his argument (once even after being warned by the court not to turn his back on the court).” Count VI alleged that at the June 4th hearing the “Court directed [Smith] to prepare a written Memorandum of Law” and that Smith “disobeyed and violated the Court’s direct order by not filing or presenting this court with a written Memorandum of Law” at the June 8th hearing.

At the subsequent trial, the trial court heard testimony from Smith, the Judge, and the Judge’s bailiff. The trial court found Smith guilty of Count V finding that Smith’s actions at the June 4th hearing of “interrupting the court, turning his back in the court and stomping his foot, crossed the line” and that Smith’s actions “were ... deliberately intended to disrupt the court proceedings and to embarrass the court.” The trial court also found Smith guilty of Count VI finding that “it could not be clearer ... that Judge Silverman, on June 4, 2004, ordered Herbert Smith to write a memorandum of law for the June 8, 2004, hearing” and that Smith “intentionally violated an unambiguous direct court order” when he failed to file a written memorandum on June 8, 2004. This appeal ensued.

II. STANDARD OF REVIEW

We review a finding of criminal contempt based upon an attorney’s misconduct under an abuse of discretion standard. Rudolph v. State, 832 So.2d 826 (Fla. 3d DCA 2002). While a judgment of contempt is entitled to a presumption of correctness, it must be supported by the record. Berman v. State, 751 So.2d 612 (Fla. 4th DCA 1999); Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977).

III. ANALYSIS

A trial court possesses the inherent authority to punish for criminal contempt, although this power “should be exercised cautiously and sparingly.” Carroll v. State, 327 So.2d 881, 882 (Fla. 3d DCA 1976). See also Fla. R.Crim. P. 3.830 (Direct Criminal Contempt); Fla. R.Crim. P. 3.840 (Indirect Criminal Contempt). The purpose of criminal contempt is “to punish assaults or aspersions upon the authority and dignity of a court or judge”, not to avenge personal affronts. Krueger, 351 So.2d at 49. A finding of direct criminal contempt may be based upon either a violation of an order of the court or an act which is facially contemptuous. Rudolph, 832 So.2d at 828. Contempt has been defined by the Florida Supreme Court as follows:

[A]ny act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity, is a contempt. The test is not the physical propinquity of the act to the court, but its tendency to directly affect the administration of justice.

Ex parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937) (citations omitted).

When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command. Barnes v. State, 588 So.2d 1076, 1077 (Fla. 4th DCA 1991); American Pioneer Cas. Ins. Co. v. Henrion, 523 So.2d 776 (Fla. 4th DCA 1988); Lawrence v. Lawrence, 384 So.2d 279 (Fla. 4th DCA 1980); Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975). Moreover, there must be evidence of the individual’s intent to disobey the court’s order, or “that he or she was guilty of such gross dereliction that the intent will be presumed.” Barnes, 588 So.2d at 1077. Finally, this intent must be proven beyond a reasonable doubt. Id.

Based upon the record before us, we find that Smith’s behavior, while discourteous at times, did not meet the standard necessary for a finding of direct criminal contempt. In the instant case, there exists no proof beyond a reasonable doubt that Smith intended to disobey any court order or that he was guilty of such gross dereliction that the intent can be presumed. First, the record reveals that once warned by the Judge not to stomp his foot, Smith did not do so again. Second, although Smith did turn his back on the Judge after the Judge told him not to do so for a second time, the record indicates that the Judge was speaking to Smith’s client, not Smith, when Smith turned his back. Additionally, once warned by the Judge to stop interrupting him, there is no indication in the record that Smith continued to speak over the Judge. Accordingly, a review of the record shows that Smith ceased all offending behavior once instructed to do so by the Judge. Based upon these facts, there is simply insufficient evidence to prove beyond a reasonable doubt that Smith intended to disrupt court proceedings or embarrass the court. Cf. Rudolph, 832 So.2d at 828 (contempt affirmed where attorney discussed, in front of jury, matter which had been prohibited by judge); In re Weinstein, 518 So.2d 1370 (Fla. 4th DCA 1988) (in civil jury trial, attorney’s failure to stand when making objections after being ordered to do so was a willful disobedience of a court order and an affront to the court’s authority).

Similarly, the finding of contempt based upon Smith’s failure to produce a written memorandum cannot be supported on this record. First, we find that the Judge’s statement is too vague to be characterized as a clear directive when he merely indicated “I’ll allow you to write a memorandum of law, that you claim that is an issue.” Second, and more significant, is the fact that at the June 8th hearing Smith presented a thorough and comprehensive analysis of the relevant statutes and case law; so extensive, in fact, that the Judge stated at the conclusion of the hearing that Smith “raised some good points.” Indeed, the Judge never asked for, or even addressed the issue of the written memorandum. Again, given the record before us, we find insufficient evidence that Smith intentionally disobeyed a direct order of the court, a necessary requirement for a finding of contempt.

Accordingly, we reverse the findings of criminal contempt as to Counts V and VI and remand with directions to vacate the judgment.

Reversed and remanded.

      . Because Smith was found not guilty of Counts I-IV, we only address Counts V and VI of the Order.

      . At the conclusion of the June 4th hearing, the following exchange took place:
      THE COURT: I'll allow you to write a Memorandum of Law, that you claim that is an issue. That is an order; am I clear? MR. SMITH: I have no doubt that I am clear on what you have said.

      . The following exchange occurred at the June 4 hearing:
      THE COURT: Do you want a lawyer to be appointed?
      Don’t turn your back on me.
      Don't turn your back on me, this is the second time I have told you; don't do it.
      Do you want a lawyer to represent you?
      THE DEFENDANT: Yes.
      THE COURT: Do you want a Public Defender to represent you?
      THE DEFENDANT: I don’t mind, sir.
      THE COURT: Yes, or no?
      THE DEFENDANT: Yes.


author: RAMIREZ, J.

text:
    Arthur Earle TEELE, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1170.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      David M. Garvin, Miami, for appellant.
    Bill McCollum, Attorney General, and Heidi L. Bettendorf, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
   RAMIREZ, J.

Arthur Earle Teele, Jr., a former City of Miami Commissioner, appeals the trial court’s final order of conviction and sentence, as well as various orders entered by the trial court during Teele’s jury trial. We find that there was insufficient evidence to support the charge of corruption by threat against a public servant, and thus the trial court erred in denying Teele’s motion for judgment of acquittal with respect to this charge. We, therefore, reverse and remand with directions for the trial court to enter a judgment of acquittal on count 2.

I. FACTUAL BACKGROUND

In July of 2004, the Miami-Dade County Police Department assigned a surveillance team to conduct non-contact undercover surveillance of Teele to determine where Teele went each day. Teele was unaware that he was under any kind of surveillance. The surveillance assignment was named Task Five and consisted of six detectives on the team: Jorge Plasencia, Mark Bul-lard, Ben Guerrero, Lily Gonzalez, Steven White and Greg Benjamin.

Several days a week, the surveillance team would meet in the morning and wait for Teele to leave his apartment. The team members each drove unmarked civilian vehicles and wore civilian clothes. The surveillance usually continued until Teele returned home in the evening.

In August of 2004, on a day when the surveillance team was waiting to follow Teele, Detective Plasencia decided to follow Mrs. Teele by himself. Mrs. Teele was not under any investigation. Detective Plasencia did not obtain prior permission from anyone else at the police department to follow Mrs. Teele.

Mrs. Teele drove from her residence to her work at Miami International Airport and noticed a light colored SUV following her. The vehicle followed her into the airport parking lot. She became upset and did not leave her vehicle until other pedestrians walked by. When Mrs. Teele arrived home that evening she told her husband that she believed that she was being stalked. Teele told her to be careful.

On August 24, 2004, Teele and his wife left their apartment at Yenetia Plaza in separate vehicles at 8:13 a.m. They both headed for their apartment at 1000 North River Drive. They did not use the same route. That morning, the Task Five surveillance team members were set up outside the Venetia Plaza waiting to follow Teele.

Mrs. Teele and Teele arrived at 1000 North River Drive at approximately the same time. They each drove through the apartment gate. The Task Five surveillance team spread out and waited on the streets close by. When Mrs. Teele got inside her apartment, she told her husband that she thought she saw- a white or light colored SUV following her again. Teele told his wife that she was imagining things. -Mrs. Teele became upset and left the apartment.

Teele also left in his vehicle, a black Hyundai, but exited through the northeast gate and headed north toward Northwest 11th Street. Teele passed by Detective Plasencia on 10th Court. Detective Pla-sencia radioed other Task Five team members that Teele was leaving in his Hyundai and was headed to Northwest 11th Street. All of the detectives started moving toward Northwest 11th Street. Detective Bullard was driving a white SUV and pulled up directly behind Mrs. Teele.

Teele drove a few blocks when he decided to try and catch up to his wife and apologize to her because he realized that he had not handled his wife’s concerns properly. Teele saw the white SUV with dark window tints right behind his wife. The SUV stopped at the stop sign. Teele made a partial u-turn and stopped his vehicle in front of the SUV to block it from moving. Teele got out of the vehicle and asked the unidentified driver for his driver’s license and said that he was going to call the police. The unidentified man turned the wheels of the SUV sharply, stepped on the gas, hopped the curb, and sped away down the sidewalk on 11th Street at 8:32 a.m.

Teele got back into his car and caught up to the SUV which was traveling at approximately 35 mph eastbound on Northwest 11th Street and tried to pull the vehicle over. The SUV did not stop.

At 8:36 a.m., Teele called 9-1-1 and was placed on hold. The call was transferred by Miami-Dade County 9-1-1 to the City of Miami Police Department. At 8:41 a.m., the unidentified SUV pulled over onto the shoulder of the road on interstate 195. Teele pulled his vehicle at an angle in front of the SUV and stopped. Teele got out of his vehicle and left the driver’s side door opened. At that time, the City of Miami 9-1-1 operator came onto Teele’s cellular telephone, which was still in his car. The 9-1-1 operator recorded the entire conversation. The running time of the 9-1-1 tape is 8 minutes 9 seconds.

Teele started walking behind his vehicle to get to the driver’s side of the SUV. The driver was still sitting in the SUV. Detective Plasencia parked behind Teele’s vehicle. He blocked Teele when Teele got to the back of his Hyundai. Detective Guerrero then joined Teele and Detective Plasencia. Detective Benjamin walked to Detective Bullard’s SUV and escorted him out of the vehicle. At all times Detectives Benjamin and Plasencia were between Teele and Detective Bullard. Detective Benjamin and Detective Bullard walked away from the vehicles and sat on the guardrail a short distance away. Detective Gonzalez stood back initially as Teele spoke with Detective Plasencia and Detective Guerrero. Detective White stayed back and observed the situation but did not participate in any discussion.

The parties stipulated to the transcript of the City of Miami Police Department 9-1-1 tape, as well as the transcript of the August 24, 2004 Task Five Radio Tape. The transcript of the discussion that took place while the 9-1-1 operator was on the line is reflected in the Appendix attached to this opinion. Teele raises three issues on appeal. We only address Teele’s first assignment of error.

In essence, Teele alleges that no one ever told him there was a police investigation of him being conducted and that his numerous requests to see the unidentified man’s (Detective Bullard’s) badge were ignored. After the discussion and the incident ended, Teele drove away.

On September 15, 2004, the State filed a two-count information against Teele. Count one alleged that on August 24, 2004, Teele attempted to ram his vehicle into Detective Bullard’s vehicle, of which constituted an aggravated assault with a deadly weapon (an automobile) in violation of Florida Statutes sections 784.021(1)(A) and 775.087(1). Count 2 alleged that Teele corruptly threatened Detective Bullard and other police officers with the intent and purpose to improperly prevent the performance of their duty with regard to an official police investigation in violation of Florida Statutes section 838.021(3)(B). Specifically, count 2 stated:

... ARTHUR EARLE TEELE JR on or about AUGUST 24, 2004, in the County and State aforesaid, did unlawfully and feloniously threaten unlawful harm to a public servant, to wit: DETECTIVES of the MIAMI-DADE POLICE DEPARTMENT,' INCLUDING DETECTIVE MARK BULLARD, with the intent or purpose to influence the performance of any act or omission which said defendant believe to be, or the public servant represented as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty, to wit: CONDUCTING AN OFFICIAL POLICE INVESTIGATION, in violation of s. 838.021(3)(b) Florida Statutes,, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

The information filed by the State Attorney defined the public servant as police officer Bullard and other officers of-the Miami-Dade County police department. The public duty was defined as “conducting. an official police investigation.” Teele entered a plea of not guilty to both charges.

At 'Teele’s jury trial, after the State rested its case, Teele moved for judgment of acquittal on both counts. With regard to count 2, Teele argued that the State did not present any evidence sufficient to warrant a conviction under count 2. The trial court denied the motion.

After the defense presented its case, the jury found Teele not guilty on count 1 but guilty on count 2. Teele renewed his motion for judgment of acquittal on Count 2 and moved for new trial. The trial court denied both motions.

II. ANALYSIS

We agree with Teele that the State’s evidence was insufficient to support a conviction for corruption by threat against a public servant, under section 838.021(3)(b), Florida Statutes (2004). Under the facts of this case, the State presented no evidence that Teele intended to corruptly affect a certain ongoing police investigation.

In Johnston v. State, 863 So.2d 271, 283 (Fla.2003), the Florida Supreme Court recognized that in reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. Id,.; Terry v. State, 668 So.2d 954, 964 (Fla.1996). There is sufficient evidence to sustain a conviction only if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Banks v. State, 732 So.2d 1065 (Fla.1999); Beard v. State, 842 So.2d 174, 176 (Fla. 2d DCA 2003). Moreover, if the State’s evidence is wholly circumstantial, there must be sufficient evidence establishing each element of the offense, and the evidence must exclude the defendant’s reasonable hypothesis of innocence. Orme v. State, 617 So.2d 258, 262 (Fla.1996)(“A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”); Pollen v. State, 834 So.2d 380 (Fla. 3d DCA 2003).

The elements of the crime of corruption by threat against a public servant are set out in section 838.021, Florida Statutes (2004). That section provides, in pertinent part:

(1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his or her immediate family, or to any other person with whose welfare. the public servant is interested, with the intent or purpose:
(a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation-of a public duty, or in performance of a public duty.
(b) To cause or induce the public servant to use or exert, or procure the use or exertion of, any influence upon or with any other public servant regarding any act' or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
(3)(b) ... shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The State claimed that Teele made threats against the police officers, with the intent to influence an official police investigation. We have reviewed the record thoroughly and find that the evidence does not support this allegation.

The 9-1-1 tape transcript clearly shows that Téele repeatedly asked' to see Detective Bullard’s badge, indicating that he was not certain that Detective Bullard was a police officer. The tape reflects that no one ever said at any time that Detective Bullard already had shown Teele his badge and no one asked Detective Bullard to show Teele his identification and provide his name to resolve Teele’s concerns.

Detective Guerrero also ignored Teele’s requests to see Detective Bullard’s badge. Instead, Detective Guerrero showed Teele his badge and told Teele “... you have a conflict here with this gentleman ... and we’re working ... and that this can be straightened out in a situation in a manner later, on....” None of the officers at the scene were in uniform or drove marked police cars. All .of the detectives were in normal street clothes and drove rental vehicles with no official markings.

At that point, because Teele simply did not know who,the person was in the SUV that had been following his wife, he stated: “Let .... let me tell you something ... I ... Iam armed ... the next time anybody follows my wife ... they better be prepared to start shooting.” Detective Guerrero then said: “Listen to me, don’t make threats like that ...” Teele then responded by clarifying his statement that he was not threatening the officers: “I’m hot making a threat ... I’m simply saying, the next time this officer or whomever follow's my wife ... and he doesn’t show me his badge ... I don’t know if he’s a cop or not.”

Detective Guerrero responded but, again, was not clear about who Detective Bullard was. “I’m asking you ... look ... I wouldn’t be here ... unless ... he ... you know ... unless he worked with us, OK? ...” Teele then reiterates that he is not trying to stop any legitimate police work that may relate to him and states: “Do what you want to with me ...” Finally, Detective Guerrero states for the first time that Detective Bullard is a police officer conducting an investigation: “All you know is that there’s a police officer here conducting an investigation ... that’s all you need to know, sir ...” The statement made, by Teele that he was armed was further clarified and retracted when Detective Gonzalez told Teele: “If there’s a weapon in the car you better not get in that car.” Teele testified that he told Detective Gonzalez: “Lady there’s no weapon.” Later, Detective Gonzalez again states: “I’m asking you, do you have - a weapon in the car?” Teele replied: “If you want to conduct a search officer, you can.”

The 9-1-1 tape indicates that no one ever told Teele that his wife was being followed. Detective Plasencia actually denied this. No one ever told Teele that his wife might be followed in the future as part of their investigation. The detectives testified that Mrs. Teele was not under their surveillance. During closing arguments, the State conceded that the police were not surveilling or investigating Mrs. Teele. Teele testified at trial that he was only worried about his wife’s safety and was not trying to stop the detectives from doing their jobs. In sum, there simply are no facts that support the allegation that Teele was unlawfully threatening Detective Bullard with the intent to unlawfully affect his ongoing official police investigation of Teele.

The facts of this case are similar to the facts in Bragg v. State, 475 So.2d 1255 (Fla. 5th DCA 1985). In Bragg, a sheriffs deputy arrived at Bragg’s neighbor’s house after Bragg was observed screaming and firing a gun in the air. The deputy asked to speak to Bragg, but Bragg refused. The deputy went to speak to Bragg’s wife to determine if she was in danger. After the deputy came onto Bragg’s property, Bragg told him to go away or he would kill him. The jury convicted Bragg.

The Fifth District Court of Appeal reversed Bragg’s conviction under section 838.021, Florida Statutes (2004), because the elements of the crime required proof that the threat of harm was used to influence the person threatened to do, or not do, some official act. Id. at 1257. The Fifth District found that there was no evidence that Bragg’s threats were made to corruptly influence the deputy. The court noted that the deputy went on Bragg’s property without a warrant and with no announced lawful purpose. Id. The court stated that it was mindful of the potentially dangerous, even lethal, situation which existed but held that it was not unlawful for Bragg to demand that the deputies depart. Id.

Here, Teele did not make a threat to influence any detective to do, or not to do, some official act. Teele saw someone following his wife, knew that she was worried about being followed in the past, and did not know that the person following his wife was a detective. He did not know that there was a surveillance team and he did not know that there was an official investigation of him being conducted. Teele had just as much right to protect the safety of his wife as Mr. Bragg had to ask uninvited persons to leave his property. Teele had a legal right to protect his family, as well as constitutional rights of free speech, assembly and protest. Teele’s acts were protected by the United States Constitution as well as the Constitution of the State of Florida.

Furthermore, Teele had a lawful right to follow the person who he saw following his wife, and to call 9-1-1 and the police. When Detective Bullard first pulled his vehicle over on to the shoulder of interstate 195 and stopped, Teele did not know that Detective Bullard was a police officer. Any alleged threat that the State may claim to have occurred at that time would clearly not constitute a violation of section 838.021.

It is evident from the record that Teele never saw Detective Bullard’s badge and was never provided his name. Teele asked to see the identification repeatedly, a completely lawful request given that Teele saw Detective Bullard in street clothes and an unmarked car, following his wife.

At the time of this discussion the officers had no warrant, had not announced a lawful purpose for following Mrs. Teele but instead denied that they had followed her or that they intended to arrest Teele. On several occasions, the detectives testified that Mrs. Teele was not the target of any investigation.

There is no evidence to support the State’s contention that Teele intended his alleged threat to corruptly affect any aspect of the official police investigation of Teele. The only statements that Teele made or was alleged to have made related to the issue of someone following his wife. However, the testimony of the police officers confirmed that Teele was told that no one was following his wife. The 9-1-1 tape recording proves that Teele was told from the beginning: “He wasn’t following your wife Mr. Teele.”

III. CONCLUSION

In sum, the State failed to establish here that Teele was aware of an ongoing police investigation. Thus, Teele’s conduct was legally insufficient to support a conviction for corruption by threat against a public servant, under section 838.021(3)(b), Florida Statutes (2004). Accordingly, we reverse this conviction and its sentence. We therefore remand the case to the trial court with instructions that the trial court enter a judgment of acquittal on that count.

Reversed and remanded.

APPENDIX

The City of Miami Police Department 9-1-1 tape reflects the following conversation:

TEELE: That’s bullshit ... no sir ... I’m not listening to shit ... I have a right to see his badge

PLASENCIA: I’m telling you ...

TEELE: I have ...

PLASENCIA: ... to calm down

TEELE: I’m not calming down until I see his goddamn badge

(unintelligible)

TEELE: I have a right to see a badge

PLASENCIA: Can I speak to you for a second?

TEELE: No sir, I have a right ...

PLASENCIA: I am telling you ...

9-1-1 DISPATCHER: Hello ... hello ... Miami Police

PLASENCIA: (unintelligible) ... that he works for me ... OK?

TEELE: I don’t care who he works for ... I have a right to see his badge. He’s following my wife and I want ...

PLASENCIA: He wasn’t following your wife ... Mr. Teele ...

9-1-1 DISPATCHER: Hello ... someone want to tell the police what’s going on? Is someone there want to tell me what’s going on?

TEELE: I have a right to see this man’s badge. You’re not going to make the rules up as you go along. You are not going to make the rules up as you go

GUERRERO: Sir, sir ... you’re a Commissioner ... you’re risking ... (unintelligible)

TEELE: I have a problem with you following my wife

GUERRERO: (unintelligible) ... keep in mind that your ... (unintelligible)

TEELE: But ... uh ... uh ... uh ... I still have a thing ... (unintelligible) ... about my rights as a citizen

GUERRERO: I understand that too ... I understand that ... OK ... listen to me ... you’re gonna risk ... you’re gonna risk ... an embarrassing situation for yourself ... OK

9-1-1 DISPATCHER: Hello ... hello TEELE: ... I have a right to ...

GUERRERO: I’m go-... I’m going to try to ... I understand that, Mr. Teele ...

TEELE: ... to see your badge ...

9-1-1 DISPATCHER: Hello ... hello

GUERRERO: Here it is, here it is ... listen to me

9-1-1 DISPATCHER: ... this is the Miami Police

TEELE: ... this is wrong ... this is absolutely wrong

TEELE: ... you’re ... you’re not making the rules up as you go

(unintelligible)

TEELE: ... an officer ...

GUERRERO: Calm down don’t get

9-1-1 DISPATCHER: Hello ... can’t hear you ... are they still out on the scene

GUERRERO: Don’t get yourself involved in a situation that you’re gonna regret later on

9-1-1 DISPATCHER: Hello ... this is the police

TEELE: For asking a police officer for his badge?

GUERRERO: I’m giving you my badge

9-1-1 DISPATCHER: This is the police

TEELE: That’s the police officer ... that

9-1-1 DISPATCHER: I’m on the line

GUERRERO: Listen to me ... don’t you understand ... at this point ... that you’re ... you ... you have ... you have ... a conflict here with this gentleman ... and we’re working ... and that this can be straightened out in a situation in a manner later on ... that may be beneficial to everybody and not just a problem here that you may cause for yourself ... please try to keep that in mind, OK?

TEELE: Officer, all I’m asking ...

GUERRERO: You’re angry ... you’re angry ... and we’re asking you to please

TEELE: Let ... let me tell you something ... I ... I am armed ... the next time any body follows my wife ... they better be prepared to start shooting ...

GUERRERO: Mr. Teele ... Mr. Teele

TEELE: Do what you want to with me

GUERRERO: Mr. Teele, Mr. Teele ...

TEELE: I’m just telling you ...

GUERRERO: Listen to me, don’t make threats like that ...

TEELE: I’m not making a threat ... I’m simply saying, the next time this officer or whomever follows my wife ... and he doesn’t show me his badge ... I don’t know if he’s a cop or not ...

GUERRERO: Mr. Teele ...

GUERRERO: Mr. Teele ... look ... I have a badge ... hanging from my neck

TEELE: But ... but he doesn’t ...

GUERRERO: I’m asking you ... look ... I wouldn’t be here ... unless ... he ... you know ... unless he worked with us, OK? I’m asking you ... you’re angry right now ...

TEELE: I’m ... I’m ...

GUERRERO: Please ...

TEELE: Do what you want to with me

GUERRERO: I don’t want to do that to you ...

GUERRERO: Remember ... (unintelligible) ... anybody any harm, OK ... I’m trying to give you that. Please keep that in mind, OK? Please ... you’re a public servant ... you don’t want us to ...

TEELE: ... you think it doesn’t give me the right ...

GUERRERO: We’re not going ...

TEELE: I don’t lose my rights ...

GUERRERO: Sir ...

GUERRERO: We’re not asking you to lose your rights ...

TEELE: Yes, you are ...

GUERRERO: We’re not taking your right away from you, sir ...

TEELE: Yes you are ...

GUERRERO: We aren’t

TEELE: I have a right to ask the officer for his i.d.

GUERRERO: All you know is that there’s a police officer here conducting an investigation ... that’s all you need to know, sir ... and we’re giving you that ... we’re giving you that courtesy ...

TEELE: ... that ... that ...

GUERRERO: We’re giving you that courtesy

9-1-1 DISPATCHER: Hello ... this is the Miami police again ... is anybody there?

SOUND OF CAR DOOR

SOUND OF CAR DOOR CHIMES

GONZALEZ: If there’s a weapon in the car you better not get in that car

TEELE: Lady there’s no ... (unintelligible)

(unintelligible)

TEELE: Now tell her don’t start threatening me

GUERRERO: We’re not going to threaten anybody

GONZALEZ: Nobody’s threatening you

GONZALEZ: I’m asking you if you have a weapon ... in the car ... you said you were armed ...

TEELE: Are you stopping me?

GONZALEZ: Yes I am ... and I’m asking you ... if you have a weapon ...

TEELE: Lady, don’t you raise your voice at me ...

GONZALEZ: Don’t you raise your voice at me ...

TEELE: Don’t point your finger at me

GONZALEZ: Don’t do it either ...

TEELE: I didn’t point my finger at ...

GONZALEZ: I’m asking you, do you have a weapon in the car?

SOUND OF CAR DOOR

TEELE: If you want to conduct a search, officer, you can ...

GONZALEZ: I’m not conducting a search ... I’m asking you if you have a weapon in the car ...

TEELE: Officer, if you ...

TEELE: Officer ...

GONZALEZ: You got out of the car ... and you said ... that you would start shooting

TEELE: Officer ...

GONZALEZ: Did you not say that Mr. Teele?

TEELE: I did not say ...

GONZALEZ: Did you not throw your car at the officer?

TEELE: I did not throw my ... GUERRERO: Mr. Teele ...

GONZALEZ: Yes ... you were throwing your vehicle in front of the officer ... were you not doing that?

GONZALEZ: Were you not doing that? GUERRERO: Mr. Teele ...

GONZALEZ: Because everybody in this squad saw that ...

TEELE: Officer, what’s your name?

GONZALEZ: You tried to ram into the vehicle ...

TEELE: What’s your name, officer? GUERRERO: Sir ...

TEELE: What?

GUERRERO: Sir ...

GONZALEZ: Were you not ramming your ... (unintelligible)

TEELE: Officer, what is your name?

GONZALEZ: Do you have a weapon in the car?

TEELE: ... officer ...

GONZALEZ: Do you have a weapon in the car?

GONZALEZ: I’m asking you, do you have a weapon with you?

TEELE: I’m asking you for your name

GONZALEZ: For officer safety, I’m asking you ...

TEELE: what’s your name?

GONZALEZ: I’m asking you if you have a weapon in your vehicle ...

TEELE: ... officer ...

GUERRERO: Mr. Teele ...

GONZALEZ: I’m asking you ...

TEELE: How many people am I gonna have to talk to at once?

GUERRERO: Please ... step out of the car, for me, will you please ... please ... for me

SOUND OF CAR DOOR CHIMES ENDS (unintelligible)

GUERRERO: ... let me write all this stuff down ... come over here Mr. Teele

TEELE: ... I mean, the woman starts

GUERRERO: Sir ... sir ...

TEELE: You know ... she’s got an attitude ...

GUERRERO: OK

TEELE: She’s got to prove she’s one of the men by start ... I mean ... I didn’t say one word to her ... I didn’t know she was here ... she comes over and points her finger at me and starts yelling to me

GUERRERO: Hey ...

PLASENCIA: That’s bullshit

TEELE: That’s no way to run an operation ... I mean, you know ... she can be Secret Service or DEA, it doesn’t matter to me ... you don’t just walk in and start pointing your fingers ...

GUERRERO: Sir ... sir ... sir ... sir

(unintelligible)

TEELE: How did I know that was an officer?

GONZALEZ: You should know better than that

TEELE: How do I know ...

GONZALEZ: It doesn’t matter who it was ... you don’t do that

TEELE: You don’t tell me what to do.

(unintelligible)

TEELE: What’s that officer’s name? I’m gonna call my lawyer ... who’s in charge?

PLASENCIA: I’m gonna give you my card ... OK ... my card ... you can call me ... (unintelligible)

(unintelligible)

SOUND OF MUSICAL RING TONE ON CELLPHONE

TEELE: I’ll have a lawyer to ... to call you ... this is bullshit ... I’m filing ... I’m filing an IA against him

PLASENCIA: OK ...

PLASENCIA: OK ... (unintelligible)

TEELE: ... I just want to know who to file the IA with ...

PLASENCIA: OK ...

PLASENCIA: Just give me a call ... or have your lawyer give me a call, and I’ll give you all the information, OK?

TEELE: Certainly.

(unintelligible)

PLASENCIA: Hello?

SOUND OF NEXTEL CHIRP

GONZALEZ: (unintelligible)

TEELE: Let’s back up. I said-I said-the next time a person follows my wife I will park and I will come out shooting ...

PLASENCIA: I can assure you ...

TEELE: I didn’t say I had a weapon in the car. Prove it ... (unintelligible) ... and normally when you approach a proper person (unintelligible) you’re the first person to ramble with me ... I’m filing an IA against her and the black gentleman who followed my wife.

(unintelligible)

PLASENCIA: Yeah.

PLASENCIA: (unintelligible ... still talking on phone)

9-1-1 DISPATCHER: I’m gonna have to discontinue this call ... because I’m not getting through ... are you there? Mobile caller, are you there? Hello? (unintelligible) ... hello?

SOUND OF DISCONNECT TONE

      . Thereafter, Teele was removed as a City of Miami Commissioner. We have denied the State’s renewed motion to dismiss this appeal because Teele is now deceased, as his conviction prevents his wife from making a valid claim for death benefits under his City of Miami pension plan.

      . The tape transcript reflects: “Lady there’s no (inaudible).”


author: HAZOURI, J.

text:
    William Lowell BROWN, Jr., Appellant, v. Donna CANNADY-BROWN, Appellee.
    No. 4D06-113.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Genie Holcombe Rothman of Genie H. Rothman, P.A., Delray Beach, for appellant.
    No brief filed for appellee.
   HAZOURI, J.

William Lowell Brown, Jr. (former husband) appeals from an amended judgment of dissolution of his marriage to Donna Cannady-Brown (former wife). The former husband argues that the trial court erred in finding him voluntarily unemployed and imputing income to him. We reverse.

Section 61.30(2)(b), Florida Statutes (2005), mandates:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.

The standard of review governing a trial court’s imputation of income is whether the determination is supported by competent, substantial evidence. See Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005).

Although the trial court is free to determine the credibility of witnesses, restraints on imputation exist in the form of a required two-step analysis. First, the trial court must conclude that .the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” See Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005) (quoting Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991)). In any event, the trial court may only impute a level of income supported by the evidence of employment- potential and probable earnings based on history, qualifications, and prevailing wages. See id.

Schram, 932 So.2d at 249-50.

Voluntary Termination of Employment

The first part of the analysis explained in Schram for imputing income on the basis of voluntary unemployment requires the trial court to conclude that the termination of income was voluntary. The trial court in the instant case determined that the former husband voluntarily terminated his employment, noting:

He testified that he was terminated from his employment with Jet Blue Airways approximately two weeks prior to [the] trial date due to testing positive for a controlled substance. He further testified that he was aware that continued employment was contingent upon satisfactory drug testing and he voluntarily violated that requirement.

Our review of the record reveals competent, substantial evidence sufficient to support this conclusion.

Subsequent Unemployment

The second part of the analysis for imputation of income requires the trial court to “determine whether any subsequent [unemployment or] underemployment ‘resulted from the spouse’s pursuit of his' own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’” Schram, 932 So.2d at 249-50 (citations omitted). As to the former husband’s efforts to find new employment, the trial court concluded: “Additionally, he testified that he had not sought substitute employment and he failed to present evidence to demonstrate that he could not obtain other employment at similar earnings as he has historically done. He failed to present evidence to demonstrate any good faith efforts to seek substitute employment.” The court then imputed income to him in the amount of his net monthly income at Jet Blue of $6,673.85 per month.

The former husband argues that there is no factual basis in the record to support the trial court’s imputation of this amount of income to him. We agree. The former husband relies on Andrews v. Andrews, 867 So.2d 476 (Fla. 5th DCA 2004). In Andrews, the former wife was terminated from her employment for failure to keep up with technological advances. She had not obtained other employment by the time of trial. The trial court imputed $50,000 earned income to the former wife. Id. at 477. The Fifth District determined that the record in the case was sufficient for the court to have imputed income to the former wife in some amount, concluding further that:

However, where, as here, the court imputes income in an amount which is not apparent from the record, the court must specifically indicate the amount and source. In determining the amount of income to impute, the court must consider the spouse’s recent work history, his or her occupational qualifications, and the prevailing earnings in the community for that class of available jobs.

Id. at 478 (citations omitted). The appellate court went on to state that the former husband “failed to establish by testimony or evidence a range of salaries being paid for current and available employment opportunities in the Jacksonville area for which [the former wife] was qualified.” Id. The court also noted that the spouse claiming that the other spouse is voluntarily unemployed or underemployed bears the burden of proof. Id. at n. 2 (citing Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001)). Finally, in- reversing the amount of income imputed to the former wife and remanding to the trial court for further proceedings to establish a level of imputed income supported by competent, substantial evidence, the court found:

[T]here must be substantial competent evidence in the record to support the level of income imputed to a spouse. See Gerthe v. Gerthe, 857 So.2d 306, 307 (Fla. 2d DCA 2003); LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2d DCA 2003). In this case, the only evidence regarding [the former wife’s] income was her prior salary of $75,466 earned in 2000, and a past earnings history record averaging $50,000 per year, before 1996 when the parties resided in Alabama.
[The former wife’s] prior income, although relevant, is insufficient to support the amount currently imputed to her. As we said in Woodard v. Woodard, 634 So.2d 782 (Fla. 5th DCA 1994),
Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today.
Woodard, at 782-783.
[The former wife’s] more recent job and income at BellSouth are no longer available to her. [Her former supervisor’s] deposition reveals that [the former wife] is incapable of selling the complex services of that position. Further, even if she could be rehired by BellSouth, her base salary range would only be $30,000, not $44,100.

Andrews, 867 So.2d at 479.

The instant case is analogous to Andrews. Here, the former husband’s unre-futed testimony was that he was unemployable as a commercial airline pilot, had lost his license, and had no other training and background. He testified at trial that the failed drug test ended his career, and there was nothing he could do to get his license back. Also, the trial court failed to make the requisite findings concerning his occupational qualifications and the prevailing earnings in the community for that class of available jobs, and the record does not reveal competent, substantial evidence supporting the trial court’s decision to do so. See Andrews, 867 So.2d at 478; Burkley v. Burkley, 911 So.2d 262, 268-69 (Fla. 5th DCA 2005) (citing Freilich v. Freilich, 897 So.2d 537, 543 (Fla. 5th DCA 2005)) (advising “[i]f the trial court does not make the required findings, the record must- reveal competent, substantial evidence supporting the trial court’s decision”).

Moreover, as the former husband correctly argues, the trial court improperly placed the burden on him to establish that he was not voluntarily unemployed in stating “[h]e failed to present evidence to demonstrate that he could not obtain other employment at similar earnings as he has historically done” and “[h]e failed to present evidence of any good faith efforts to seek substitute employment.” See Andrews, 867 So.2d at 478 n. 2 (citation omitted); see also Owen v. Owen, 867 So.2d 1222, 1223 (Fla. 5th DCA 2004) (agreeing that “it was error to impute income to [former wife] in an amount which exceeded the $33,000 she previously earned in the job market since the former husband failed to present evidence as to the availability in the community of jobs for the former wife and the salary which she .could earn at those jobs”).

Finally, the trial court failed to find, and the record does not support, that the former husband was deliberately refusing to work at a higher capacity to avoid his support obligations. See Stebbins v. Stebbins, 754 So.2d 903, 907 (Fla. 1st DCA 2000) (quoting Hogle v. Hogle, 535 So.2d 704, 705 (Fla. 5th DCA 1988)) (recognizing that “[i]n order to impute income, the trial judge must find that the parent owing a duty of support has the actual ability to earn more than he or she is currently earning, and that he or she is deliberately refusing to work at that higher capacity to avoid support obligations”). The former husband had been unemployed for only two weeks prior to the final hearing. His uncontradicted testimony was that up until that point, he had spent ten months before his permanent termination working with Jet Blue to try and reinstate his flight status. Further, he testified that he had spent some time looking for jobs since his termination, but was still in a state of shock, and planned on immediately seeking employment.

Although there was competent, substantial evidence to support the trial court’s determination that the former husband was voluntarily terminated from his employment, there was no evidence supporting the trial court’s conclusion that he was subsequently willfully unemployed or that he failed to use his best efforts in seeking new employment. Thus, we reverse and remand for further proceedings and instruct the trial court to revisit not only the former husband’s child support obligations, but also his obligations with respect to alimony and attorney’s fees.

Reversed and Remanded with Directions.

GUNTHER and POLEN, JJ., concur.


author: CORTINAS, Judge.

text:
    Armida MEDANIC, individually, Appellant, v. CITICORP INVESTMENT SERVICES, a foreign corporation, and Luis Prieto, in his individual capacity, Appellees.
    No. 3D06-2970.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      William Richey; Ferrell Law and Carlos A. Nunez-Vivas, Miami and Lilly Ponce, for appellant.
    Bressler, Amery & Ross and Alex J. Sabo and Seth V. Alhadeff, Miramar, for appellees.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   CORTINAS, Judge.

The plaintiff, Armida Medanic (“Medanic”), appeals from the portion of a non-final order granting Citicorp Investment Services, Inc. (“CIS”) and Luis Prieto’s (“Prieto”) motion to stay Medanic’s action pending arbitration. We affirm.

In August 2000, Medanic opened an account with CIS. She signed a Brokerage Agreement (the “Agreement”) that required arbitration of “all controversies which may arise concerning any order or transaction, or the construction, performance, or breach of this Agreement.”

Subsequently, Medanic consulted with Prieto, a Vice-President and Financial Executive at CIS, regarding a suitable investment for the funds in her account. Me-danic alleges that she told Prieto she wanted to invest in a product that would provide safety of capital. Medanic contends that she relied on Prieto’s advice and decided to invest in a SunLife fixed annuity that guaranteed the return of capital and earned interest over a seven-year period. Instead, Prieto allegedly purchased a SunLife variable annuity that allocated her money to variable funds with risk to original capital. Additionally, Me-danic alleges that when she asked Prieto about the losses reflected in her account statements, Prieto concealed material facts and made misrepresentations concerning the investments.

Thereafter, the value of the SunLife variable annuity consistently decreased and Medanic filed a complaint against CIS and Prieto (collectively “defendants”), alleging a breach of fiduciary duty, violations of Florida’s Blue Sky law, and constructive fraud. In response to the complaint, the defendants moved to stay this action pending arbitration. The trial court found that Medanic’s purchase of the SunLife annuity from Prieto was an “order or transaction” within the meaning of the foregoing arbitration provision. Therefore, the trial court granted the defendants’ motion to stay pending arbitration of Medanic’s claims.

We review the trial court’s construction of an arbitration provision de novo. Turner Const. Co. v. Advanced Roofing, Inc., 904 So.2d 466, 468 (Fla. Sd DCA 2005) (citation omitted). In ruling on a motion to compel arbitration, Florida courts should resolve all doubts in favor of arbitration rather than against it. Prudential Secs., Inc. v. Katz, 807 So.2d 173, 174 (Fla. 3d DCA 2002) (citing Ronbeck Const. Co. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992)).

Nevertheless, arbitration is favored only as to those disputes which the parties actually agreed to arbitrate. Citigroup, Inc. v. Amodio, 894 So.2d 296, 298 (Fla. 4th DCA 2005) (citing Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ, 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)), rev. denied, 911 So.2d 792 (Fla.2005). Under Florida law, the “intent of the parties” determines whether an arbitration provision mandates arbitration of a particular dispute. Id. at 298 (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). A court must “discern the intent of the parties from the language used in their agreement.” Id. at 298-99 (citing Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957)). “‘The [unambiguous] terms of the contract ... are conclusive ... the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used.’ ” Id. at 299 (alteration in original) (quoting Lyng v. Bugbee Distrib. Co., 133 Fla. 419, 182 So. 801, 802 (1938)).

On appeal, Medanic relies on Amodio, wherein the Fourth District considered an identical arbitration provision and held that the plaintiffs fraud, misrepresentation, and violation of Florida Blue Sky law claims did not fall within the scope of the parties’ arbitration agreement. Id. at 300. In Amodio, the plaintiff filed a complaint against this same defendant, CIS, as well as Citigroup and Salomon Smith Barney, after the investor lost all of the value of his WorldCom stock in his account. Id. at 298. The plaintiff had acquired the stock during his employment with WorldCom and placed them in an account at Citicorp. Id. at 297. He signed an account agreement with Citicorp that contained the same arbitration provision at issue in this case. Id. Subsequently, the plaintiff, fearing that his entire holdings were in WorldCom stock alone, sought advice from a Citigroup representative. Id. at 298. The representative referred the plaintiff to an analyst at Salomon Smith Barney, a subsidiary of Citigroup, who recommended that the plaintiff hold on to the WorldCom shares because they were projected to increase in value. Id. The plaintiff did not buy or sell any of his WorldCom stock through his Citicorp account and he did not give Citicorp any discretion to manage his account. Id. at 297-98. Some time later, the WorldCom stock decreased and the plaintiff lost all the value in his account. Id. at 298. The plaintiff filed a complaint against Citicorp, Citigroup, and the successor to Salomon Smith Barney (collectively “defendants”). Based on the foregoing arbitration provision, the defendants all moved to compel arbitration of the plaintiffs claims. Id.

The Amodio court held that the plaintiffs claims were not subject to arbitration because the claims arose directly from the analyst’s advice on whether to sell his WorldCom stock shares and not from “an order or transaction” within the meaning of the arbitration provision. Id.; see also Beazer Homes Corp. v. Bailey, 940 So.2d 453, 459 (Fla. 5th DCA 2006) (interpreting Amodio). Pursuant to Seifert, the Amo-dio court first looked to the plain language of the arbitration provision. Amodio, 894 So.2d at 299. The court read the words in the agreement narrowly, and determined that the parties expressed a clear intent to arbitrate only those disputes involving an “order or transaction” or alternatively, “which arise from their agreement in some direct way.” Id. Because the dispute in Amodio did not arise from an “order or transaction” or “performance of the investment agreement,” the court could not, based on the plain language of the arbitration provision, compel arbitration of the plaintiffs claims. See id.

Unlike Amodio, the dispute in this case arose from an “order or transaction” under the plain language of the arbitration provision. By its plain language, the arbitration provision at issue applies to “all controversies which may arise concerning [1] any order or transaction, or [2] the construction, performance, or breach of th[e] Agreement.” It is undisputed that Me-danic deposited funds into an account at CIS and, thereafter, purchased a SunLife annuity with those funds. It is also undisputed that Medanic is challenging the suitability of this particular transaction. While in Amodio the plaintiffs claim arose directly from the analysts’ advice, here, Medanic’s claims arose directly from the purchase of an investment product. As such, we hold that the arbitration provision applies to Medanic’s claims.

Accordingly, we affirm the trial court’s order granting CIS’s request to stay this action pending arbitration.

Affirmed.

      . Although only Citicorp was a signatory to the agreement, the other two defendants claimed the agreement benefited them as well. The court noted that the theories of benefit were not relevant to the disposition of the case because the appeal was decided on other grounds. Amodio, 894 So.2d at 298 n. 1.

      . After concluding that the claims did not arise from an “order or transaction,” the Am-odio court was compelled to address whether the claims arose from the "performance of the investment agreement” pursuant to the principles set forth in Seifert. Because we find that Medanic's claims arise from an "order or transaction,” we need not determine whether the claims arise from "performance of the investment agreement.”


author: PER CURIAM.

text:
    Curtis Brian WELCH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1385.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Tillman v. State, 819 So.2d 913, 914 (Fla. 3d DCA 2002) (scoring of victim injury is within the sound discretion of the trial court).


text:
    JOSE M. FRANCISCO, P.A., Appellant, v. Jorge L. ESPINOSA, Appellee.
    No. 06-1284.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Jose M. Francisco, Miami, for appellant.
    Kelley, Kronenberg, Gilmartin, Fichtel & Wander, P.A. and Susana C. Núñez, for appellee.
    Before COPE, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Jose M. Francisco, P.A. (“the P.A.”) was retained by Jorge L. Espinosa on September 15, 2004, to represent Espinosa in a worker’s compensation case. Nine months later Espinosa discharged the P.A. as his counsel and retained ' successor counsel. The P.A. filed a charging and retaining lien in the worker’s compensation action. Four months later successor counsel settled the worker’s compensation case. As part of the settlement, the insurance carrier agreed to indemnify Espinosa regarding the P.A.’s claim for attorney’s fees.

The P.A. filed a complaint against Espi-nosa in the circuit court for breach of contract seeking payment of its attorney’s fee. The P.A. withdrew its charging and retaining lien in the worker’s compensation action. Espinosa, represented by counsel for the worker’s compensation carrier, filed a motion to dismiss arguing lack of subject matter jurisdiction. Espinosa contended that the judge of compensation claims has exclusive jurisdiction to award attorney’s fees.

The P.A.’s complaint was dismissed without prejudice and it filed an amended complaint alleging unjust enrichment and quantum meruit. Espinosa filed a motion to dismiss on the same basis and the amended complaint was dismissed with prejudice. This timely appeal follows.

We agree that the judge of compensation claims has exclusive jurisdiction to determine the fees to which the P.A. is entitled in this situation. See §§ 440.20(11)(c), 440.105(3)(c), Fla. Stat. (2006); Transp. Cas. Ins. Co. v. Feldman, 927 So.2d 947, 948 (Fla. 3d DCA 2006); McFadden v. Hardrives Const., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991).

Affirmed.


author: POLEN, J.

text:
    INTERNATIONAL CHRISTIAN FELLOWSHIP, INC., Appellant, v. VINH ON PROPERTY, INC. and Andrew Ponnock, Appellees.
    No. 4D06-1754.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Rehearing Denied May 24, 2007.

      Marc Anthony Douthit of Douthit, Murray & Pierre, P.A., Miami, for appellant.
    Adam S. Chotiner of Shapiro, Blasi, Wasserman & Gora, P.A., Boca Raton, for appellee Vinh on Property, Inc.
    Ira Marcus and Sloan A. Carr of Ira Marcus, P.A., Fort Lauderdale, for appel-lee Andrew Ponnock.
   POLEN, J.

Appellant, International Christian Fellowship, Inc. (“International”), appeals the trial court’s grant of final summary judgment to Appellee, Vinh On Property, Inc. (“Vinh”), and the trial court’s final judgment in favor of Appellee, Andrew Pon-nock, on his counterclaim against International. International leased property from Vinh, and its lease contained a right of first refusal. Ponnock made an offer to buy the property and International attempted to exercise its right of first refusal, but made an offer with differing terms. Vinh filed a declaratory judgment action to have the court determine which contract was valid. The trial court determined International had not properly exercised its right of first refusal and found the Pon-nock contract to be the valid contract. We find International’s arguments unpersuasive and affirm the trial court’s grant of summary judgment.

“The standard of review for an order granting summary judgment is de novo.” 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd., 876 So.2d 1220, 1221 (Fla. 4th DCA 2004). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). .“In reviewing a summary judgment, this court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.’ ” 5th Ave., 876 So.2d at 1221 (quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001)).

In this case, the trial court determined there was no material issue of fact, as the documents clearly revealed that International failed to match the terms of the Ponnock contract, thereby improperly exercising its right of first refusal. “A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer.” Power v. Power, 864 So.2d 528, 524 (Fla. 5th DCA 2004). “A right of first refusal exercise need only be identical to the offer terms which are essential.” Schwey v. Vara, 674 So.2d 935, 936 (Fla. 4th DCA 1996)(citing Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla. 3d DCA 1970)).

We find the trial court did not err in making this determination. The contract delivered by International did not match numerous terms found in the Ponnock contract, including details such as the closing date, financing and Vinh’s duty to repair the property. Moreover, while Vinh inadvertently sent a copy of the contract to International which only had its agent’s initials on it, it was Vinh’s position that it had a fully-executed, fully-initialed contract with Ponnock. Vinh’s willingness to accept Ponnock’s offer is the point at which International’s right of first refusal is activated. See Power, 864 So.2d at 524. The evidence supported this assertion, and International did not introduce evidence to the contrary. Therefore, all the evidence at the hearing supported Vinh’s and Pon-nock’s position and showed there was no material issue of fact precluding a grant of summary judgment.

We affirm.

GUNTHER and HAZOURI, JJ., concur.


author: COPE, C.J.

text:
    Victor X. RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-482.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and SUAREZ JJ.
   COPE, C.J.

Victor Rivera appeals an order denying his petition for writ of habeas corpus. Defendant-appellant Rivera maintains that he is entitled to additional credit for time previously served, and that upon application of such credit, he is entitled.to immediate release from custody. We affirm the denial of relief.

The defendant pled no contest to charges of attempted second degree murder and aggravated battery. He was sentenced to two years of community control, followed by four years of probation, with the special condition that he complete the Dade County Boot Camp Program.

The defendant was taken into custody on charges that he had violated his probation. The defendant entered into a negotiated plea whereby he admitted the violation and received a downward departure sentence. The trial court approved the negotiated plea and imposed a three year prison sentence, with the special condition that the defendant complete the Modality Program, a prison substance abuse treatment program. The court stated that the defendant would receive credit for time served from the date he was taken into custody on the probation violation, November 21, 2005. The interval between November 21, 2005 and the December 27, 2005 sentencing date was thirty-seven days and the defendant was given thirty-seven days of credit for time served.

For reasons not directly relevant here, before the defendant accepted the plea there was a discussion of the amount of time he would likely be in custody if he accepted the State’s plea offer. To make a long story short, the court’s estimate was that, he would be in custody approximately two and one half years on a three year sentence. The colloquy stated that the time requirement for the Modality Program alone was a- minimum • of eighteen months. After that discussion the defendant decided to accept the State’s plea offer. The trial court accepted the plea and imposed sentence accordingly.

In 2006, the defendant filed a petition for writ of habeas corpus, requesting immediate release from custody. He argued that he was entitled to credit for all time previously served in this case. He maintains that this amounts to an additional 732 days credit for time served. This includes the time he served in custody after he was arrested on his original charges, as well, as the time served in Boot Camp. If 732 days had been applied to the three-year downward departure sentence, the defendant would have been released after eleven months.

The trial court denied the petition for writ of habeas corpus and the defendant appealed. This court reversed the denial order and remanded for a prompt hearing, with the assistance of counsel, to determine whether the defendant was entitled to immediate release. Rivera v. State, 949 So.2d 324 (Fla. 3d DCA 2007).

The trial court commendably conducted two hearings and issued a detailed order within seven days following this court’s opinion. The trial court again denied relief, and the defendant has appealed.

We affirm the trial court’s order on authority of Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004). The defendant’s claim for additional credit for time served is inconsistent with the terms of the plea agreement which were stated on the record.

The crimes involved in this case consisted of one first degree felony and two second degree felonies, with legal maximum terms of thirty years and fifteen years, respectively. Under the scoresheet, the defendant’s minimum guideline sentence would be 8.5 years, and the three-year negotiated sentence was a downward departure.

During the plea colloquy, the court clearly explained that the Modality Program would take eighteen months, and that the defendant’s likely time served on the three year term would be two and one half years. With that understanding, the defendant accepted the State’s plea.

The defendant’s claim for an additional 732 days of credit for time served would mean that the defendant’s incarceration would be limited to eleven months — which is totally inconsistent with the time frames to which the defendant previously agreed. An eleven-month term of incarceration would be less than the eighteen months required for the Modality Program — which was the purpose of the downward departure — rand is less than the two and a half year estimated incarceration to which the defendant agreed.

We conclude that the present case is similar to Fulcher v. State, 875 So.2d at 648-50 (majority and concurring opinions). We affirm on authority of that case. As in the Fulcher majority opinion, to grant the requested additional credit here would reach an absurd result by undoing the amounts of time the defendant specifically agreed to serve. See id. at 648. Although the word “waiver” was not used, the terms of the plea agreement necessarily exclude the award of additional credit for time served.

As in the concurring Fulcher opinion, the plea agreement in this case was evidently entered into on a mutual mistake of fact regarding the amount of time the defendant had previously served. “Whether viewed as involving a mutual mistake of material fact, or an involuntary plea, the remedy is not to grant the defendant immediate release. The defendant may stand by the plea bargain as is, or may withdraw his plea and proceed to a hearing on the original revocation of probation charges.” Id. at 650 (footnote omitted).

Affirmed.

      . It turns out that a trial court can only recommend that a defendant be placed, in the Department of Corrections’ Modality Program. The Department itself makes the final decision. Despite the trial court’s recommendation, the defendant was not admitted into the program. The defendant has retained the benefit of the downward departure sentence even though he was not admitted into the program. ' ''

      . The trial court also ruled that a waiver was shown within the meaning of Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005). The defendant replies that there is a .conflict within this district on the waiver issue. Compare id. with Sommers v. State, 829 So.2d 379, 380 n. 1 (Fla. 3d DCA 2002) and Fulcher, 875 So.2d at 649 (Cope & Wells, JJ, specially concurring) (referring to affirmative waiver). Since the Fulcher decision is depositive and is applicable in the absence of a waiver, see 875 So.2d at 648, 649, we need not now address the claim of decisional conflict.


text:
    STATE of Florida, Appellant, v. Ricky Louis FIELDS, Appellee.
    No. 3D06-559.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Bill McCollum, Attorney General and Maria T. Armas, Assistant Attorney General, for appellant.
    Barakat, Prempeh & Jacobs, P.L., and Brian Barakat, Miami, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   COPE, C.J.

The State seeks certiorari review of an order disqualifying the entire State Attorney’s Office for the Eleventh Judicial Circuit from prosecuting Ricky Louis Fields after a mistrial. The order also limits the State’s evidence at the new trial. We grant certiorari and quash the trial court’s order.

Defendant-respondent Fields was charged with several counts of drug possession and drug trafficking violations involving drugs found at his home as a result of a search warrant. The defendant’s wife, Mrs. Fields, was also arrested. However, she entered into a plea agreement with the State in exchange for her truthful testimony against the defendant. During the trial, Mr. Martinez, the assistant state attorney prosecuting the case, advised the court that, based upon a conversation he had had with Mrs. Fields outside the court room, he believed she was going to commit perjury if called as a witness. Mr. Martinez proffered that Mrs. Fields was going to give testimony contrary to that of her plea agreement based on her claim that she was high on heroin at the time of the plea.

After a mistrial was declared based upon other grounds, the defendant sought to disqualify the entire Miami-Dade County State Attorney’s Office. The defendant argued that if Mrs. Fields were to be called as a witness in the new trial and her testimony were consistent with her prior statements given with the plea agreement, he should be able to call Mr. Martinez as an impeachment witness to testify about his conversations with Mrs. Fields. In opposing the defendant’s motion to disqualify, the State argued that the defendant could use the prior trial transcript to impeach Mrs. Fields or he could call Mrs. Fields’ attorney who was also privy to her inconsistent statements and could serve as an impeachment witness. The trial court agreed with the defendant and found that Mr. Martinez could be an impeachment witness for the defendant and, because his testimony would be adversarial to his whole office, disqualified the entire Miami-Dade County State Attorney’s office.

We conclude that the trial court erred in disqualifying the individual prosecutor and the entire state attorney’s office. Disqualification of a state attorney is proper only when specific prejudice [is] demonstrated. State v. Christopher, 623 So.2d 1228, 1229 (Fla. 3d DCA 1993). The defendant relies on United States v. Johnston, 690 F.2d 638, 644-45 (7th Cir.1982), and argues that Mr. Martinez is a material witness for the defense and, as such, disqualification is required to maintain the appearance of justice. However, “[a]ctual prejudice is something more than the mere appearance of impropriety.” Meggs v. McClure, 538 So.2d 518, 519 (Fla. 1st DCA 1989).

In State v. Clausell, 474 So.2d 1189, 1191 (Fla.1985), the court held that “there is no inherent right to disqualification when a member of the state attorney’s office is called as a witness in a case prosecuted by a state attorney in the same office.” In Clausell, the defendant was being prosecuted for perjury after giving false statements to an assistant state attorney and then retracting the statements during a conversation with another assistant state attorney. The entire state attorney’s office was disqualified after the State announced its intention to call the two assistant state attorneys as witnesses. Id. at 1190. The Florida Supreme Court rejected the argument that the jury would find the prosecutor more credible than other witnesses because of his prominence as an assistant state attorney. In addressing this argument, the court stated:

We reject the contention that allowing an assistant state attorney to testify in a case prosecuted by a member of the same office gives undue weight and credibility to the testimony of the assistant state attorney. In our opinion, any enhancement of the state attorney’s credibility results from his position as a prosecutor and the jury’s view of that credibility would not be changed if the case were prosecuted by a state attorney from another circuit. We realize that if actual prejudice can be shown, a motion for disqualification should be granted.

Id. at 1191. As in Clausell, the defendant here could not point to any actual prejudice which would result from the state attorney’s office participation in the prosecution. The trial court did not make any finding of prejudice and, therefore, it was a departure from the essential requirements of law to disqualify Assistant State Attorney Martinez as well as the entire Miami-Dade County State Attorney’s Office.

The trial court also ordered that “no additional evidence will be presented against Mr. Fields other than the original four items on the lab report provided in this case. There will be no additional [testing] of the evidence by the State of any kind. Mr. Fields will stand in the same position he was in so as not to allow the State to profit from the mistrial.”

The trial court in this case found that the defense motion for mistrial was well taken, but the prosecutor had not acted with specific intent to provoke a mistrial. Since there was no intention to cause a mistrial, we are hard pressed to see a sound reason for barring any further scientific testing of the evidence prior to the retrial. See State v. Gonzalez, 695 So.2d 1290, 1292 (Fla. 4th DCA 1997). We quash that part of the order which prohibits further testing, provided that this can be accomplished without causing any delay in the new trial.

The State also challenges the “no additional evidence” language quoted above. The State contends that this language would prohibit the crime lab expert, Mr. Snips, from giving any testimony other than the exact testimony he gave on the witness stand at the first trial. The State wishes to have Mr. Snips explain to the jury how and why he selects specific quantities of drugs for testing.

By way of background, the defendant was charged with possession of narcotics. The crime lab tested a sufficient quantity of the cocaine to demonstrate that the quantity seized by the police exceeded the trafficking minimum. Once that threshold was reached, the crime lab did not perform testing on some of the other suspected cocaine which had been seized. The State desires that Mr. Snips so testify. It is not at all clear to us that the trial court intended to limit Mr. Snips so narrowly, but in any event we have quashed that part of the order and Mr. Snips may testify to any relevant matter.

We grant the writ of certiorari, quash the order under review, and remand for further proceedings consistent herewith.

       After the mistrial the State filed an amended information adding four new counts. The trial court dismissed the four new counts. The State does not challenge that part of the trial court's ruling.