author: LAWSON, J.

text:
    Kamil F. GOWNI, Appellant, v. Wasfi A. MAKAR, et al., Appellee.
    No. 5D05-1683.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.

      Janet M. Courtney, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellant.
    Mark R. Malek, Richard E. Torpy and Scott D. Widerman, of The Torpy Group, P.L., Melbourne, for Appellee.
   LAWSON, J.

Kamil F. Gowni, defendant below, timely appeals an amended order enforcing a settlement agreement between himself, co-defendant George Mansour, and Dr. Wash A. Makar, plaintiff below. Gowni also appeals an amended judgment awarding attorneys’ fees and costs to Makar. Gowni contends that the trial court erred in finding, as a matter of law, that liability under the parties’ settlement agreement is joint and several. We agree, and reverse.

Facts

On March 12, 2001, Makar filed a complaint against Gowni and Mansour as well as four corporations associated with them, alleging various causes of actions related to business dealings between the parties. Gowni and Mansour filed an answer containing affirmative defenses and counterclaims alleging causes of action against Makar. Several months later, on or about July 21, 2001, Makar, Gowni and Mansour agreed to voluntarily mediate their dispute and entered into a settlement agreement which was mediated by a Ramzi Boutros and witnessed by Father Isaiah Jacob and Dr. Hani Yousseff, all members of a church the parties attended together. The parties memorialized their agreement in a four-page compilation of documents that both parties agree should be construed together as their “settlement agreement.”

The first page is a hand-written document, apparently penned by Makar, which generally states that Gowni and Mansour “agree and accept” that they owe Makar $175,000, and states that the liability will be secured with two separate liens: one for $80,000 placed on property owned by Gowni and another for $80,000 placed on property owned by Mansour. The document states that Gowni and Mansour also agreed to pay the $15,000 cash balance immediately. This document is signed by all parties, and witnessed by Father Jacob and Dr. Yousseff.

The second page of the settlement agreement is another handwritten document, also prepared by Makar, and signed only by him. It states that the “entire amount of $175,000 ... will be paid” as follows: $15,000 “initial cash;” $80,000 “per Kamil Gowni;” and $80,000 “per George Mansour” with “mortgages against each one of them.”

Finally, the last two pages of the settlement agreement constitute individual promissory notes in which Gowni promises to pay Makar $80,000 (the first note, and page three of the agreement), and Mans-our agrees to pay Makar $80,000 (the second note, and page four of the agreement). As agreed by both parties at oral argument, these are clearly individual notes. Gowni did not sign as a co-maker or obli-gor on Mansour’s note. Mansour did not sign as a co-maker or obligor on Gowni’s note. Gowni’s note provided that he would pay off his $80,000 obligation, with interest at 9% per annum, by making monthly payments of $6,996.12. Mansour’s note contains an identical payment schedule. Both notes also provide for acceleration in the event of default, and contain a contractual attorneys’ fee provision.

Following the execution of these documents, Gowni and Mansour made the initial $15,000 cash payment (with each paying $7,500), and Gowni began making full and timely payments under his note. Mansour, however, never made any of the payments required by his individual note. When Gowni tendered his final payment, Makar refused to accept it, and refused to provide a document stating that Gowni had satisfied his obligation under his individual note, or a satisfaction of mortgage.

Subsequently, both parties filed motions asking the court to enforce the settlement agreement. Makar’s motion claims that the settlement agreement provided for joint and several liability, and sought an order requiring Gowni to continue making payments until the entire $175,000 obligation was satisfied in full. Gowni’s motion claims that he had satisfied all of his obligations under the agreement, and sought an order requiring Makar to accept his final payment and provide him with a satisfaction of mortgage. Gowni also filed sworn statements from the mediator and both of the independent witnesses to the settlement discussions. All stated under oath that the parties expressly agreed that Gowni and Mansour would each only be legally responsible for paying half of the overall debt, as evidenced by and expressed in the individual promissory notes.

According to the affidavit of the parties’ designated mediator, Mr. Boutros: “The parties also agreed that neither Gowni nor Mansour would be legally responsible for payment of more than each man’s pro-rata share of the debt and both Gowni and Mansour agreed to execute promissory notes and to deliver mortgages to secure each man’s respective share of the debt.” Father Jacob testified under oath that all parties agreed that Gowni and Mansour would each only be responsible for paying “50 percent of the [total $175,000] debt.” He also testified that it was clear to all that the agreement did not require Gowni to pay Mansour’s half of the debt if Mans-our did not pay. Finally, Dr. Yousseff swore under oath that: “It was abundantly clear at the mediation that after each man paid his pro rata share ($80,000.00) of the obligation that was owed to Makar, each man would be released from any and all future obligations to Makar. The parties never discussed the notion of holding each man jointly and severally liable for the other man’s obligations.” Plaintiff Makar also filed an affidavit. In it, however, he did not dispute the sworn statements of mediator Boutros, Father Jacob or Dr. Yousseff. Instead, Makar’s affidavit simply recited the unpaid balance from the overall debt.

Without expressing any basis for his ruling, the trial judge told Makar’s counsel: “I’m going to let you have the day, you prevail, prepare the order.” Subsequently, the trial court signed the order submitted by Makar’s counsel, which declared Gowni to be jointly and severally liable to Makar for the unpaid balance of Mansour’s note, plus interest, and ordered him to pay the sum of $105,799.23 within 15 days. The court then entered an amended order and “final judgment,” which applied a default rate of eighteen percent per annum. The default rate was presumably taken from Mansour’s individual note, since Gowni had not defaulted on his note. Applying the interest rate, the court increased Makar’s award to $140,903.77 (the $80,000 balance owed on Mansour’s note; the $3,042.68 “final payment” that Gowni tendered but Makar would not accept; and, $57,861.09 in prejudgment interest). By separate order, the trial court required Gowni to pay Ma-kar’s attorneys’ fees and costs of litigation, totaling $30,046.75. Therefore, after timely paying (or tendering) $91,453.42, his designated portion of the total $175,000 settlement, plus the agreed interest payments on his individual note, Gowni found himself faced with an order to pay Makar an additional amount totaling approximately $171,000. This appeal ensued.

Arguments Below

In the trial court, both parties argued that the settlement agreement was clear and unambiguous, and should be construed as a matter of law. However, each ascribed a different meaning to the documents. Makar asserted that the agreement unambiguously made Gowni and Mansour jointly and severally liable for the entire debt. Gowni argued that the agreement made him only liable for his half of the debt. As an alternative position, Gowni argued that if the court found any ambiguity, it should consider the proffered parol evidence, which also supported his interpretation.

Arguments on Appeal

On appeal, Gowni’s counsel took the very reasonable position that the trial court must have construed the contract as a matter of law, since the court could not have rejected, without an evidentiary hearing, the undisputed sworn statements of the mediator and both independent witnesses to the agreement, all of which supported his interpretation of the contract. Therefore, Gowni challenges the trial court’s interpretation of the agreement, and requests that we remand with directions requiring the trial court to consider his proffered parol evidence.

Makar continues to argue that the contract is unambiguous, and should be construed as a matter of law, without reference to parol evidence.

Standard of Review

The construction of a contract is a matter of law, renewable de novo. E.g., Whitley v. Royal Trails Property, 910 So.2d 381 (Fla. 5th DCA 2005).

Analysis

Reviewing this matter de novo, we see no basis for holding Gowni jointly liable with Mansour for the entire $175,000 obligation. Although the first portion of the parties’ agreement could be read as providing for joint liability, the meaning of a contract is not to be gathered from any one phrase or paragraph, but from a general view of the writing as a whole, with all of its parts being compared and construed, each with reference to the others. E.g., Lalow v. Codomo, 101 So.2d 390 (Fla. 1958); Specialized Machinery Transport, Inc. v. Westphal, 872 So.2d 424 (Fla. 5th DCA 2004). Taken as a whole, it is clear that the contract made Gowni individually liable only for his half of the overall debt. This seems clear when page one of the document (which discusses the overall debt, but also references individual $80,000 mortgages) is read with page two (stating that the liability would be paid “$80,000 per Kamil Gowni” and “$80,000 per George Mansour”). To the extent that there is any ambiguity when reading pages one and two together, it was resolved when Gowni and Mansour each signed individual promissory notes, for their half of the debt only, and made the notes part of the overall agreement. Where the contract, taken as a whole, is clear and unambiguous, there is no reason for further analysis. E.g., Cleveland Consolidated, Inc. v. Haren, 672 So.2d 592 (Fla. 1st DCA 1996).

Therefore, we reverse the trial court’s order granting Makar’s motion to enforce the settlement agreement, along with the order awarding attorneys’ fees and costs to Makar, and remand for further proceedings consistent with this opinion. In doing so, we note that this is not the relief requested by Gowni on appeal. However, our directions to the trial court are dictated by our analysis of the contract. Because we conclude that the contract, as a whole, is not ambiguous, it would be inappropriate to remand for an evidentiary hearing at which parol evidence is considered. Developers of Northlake, Inc. v. Northlake Equities, Inc., — So.2d —, 2005 WL 2138770 (Fla. 4th DCA Sep.7, 2005) (noting that parol or other extrinsic evidence should only be considered if the contract is ambiguous).

REVERSED and REMANDED.

THOMPSON and PALMER, JJ., concur.

      . The amended order also states that Gowni and Mansour “agreed that they were liable, jointly and severally” to Makar, and to pay the debt on the following terms: "1) by paying Plaintiff an initial payment of $15,000; and 2) by paying Plaintiff the remaining $160,000.00, in 12 monthly installments to Plaintiff in the sum of $13,992.24.” This is, of course, a gross mischaracterization of the agreement. The amended order also recites that the “undisputed testimony provided by Plaintiff was that Defendants, KAMIL F. GOWNI and GEORGE MANSOUR, owe Plaintiff the sum of $83,042.68....” Although Gowni did not dispute that this was the amount of the overall debt remaining, he certainly disputed that he owed the money.


source: Caselaw Access Project

author: PLEUS, C.J.

license: Public Domain

text:
    Alan C. HAIGH, Appellant, v. PLANNING BOARD OF The TOWN OF MEDFIELD, Appellee.
    No. 5D05-2809.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.

      Michael Massey, of Saju, Massey & Duffy, LLC, Ocala, for Appellant.
    Amanda R. Tise, Jacksonville, for Appel-lee.
   PLEUS, C.J.

Haigh appeals a “Final Judgment Establishing Foreign Final Judgment” in favor of the Planning Board of the Town of Medfield (“Planning Board”). Haigh argues that the lower court denied him due process by entering this final judgment without giving him an opportunity to be heard. He also argues that the statute of limitations bars this action upon foreign final judgment. We reverse and remand.

In 2004, the Planning Board filed a “Complaint for Damages” against Haigh in Marion County. The complaint alleged that the Planning Board had obtained a final judgment against Haigh in 1993 in Massachusetts. The Planning Board sought entry of a Florida final judgment. Haigh filed an answer and eight affirmative defenses, including the statute of limitations, lack of standing, partial payment and accord and satisfaction.

In 2005, the Planning Board filed a “Motion to Amend Complaint” with an attached “Affidavit of Foreign Judgment.” In its motion to amend, the Planning Board acknowledged that under the Florida Enforcement of Foreign Judgments Act (“FEFJA”), sections 55.501-509, Florida Statutes, it “should have filed this cause of action as an Affidavit for domestication of foreign judgment.” The motion also addressed Haigh’s statute of limitations defense, noting that the five year limitations period in section 95.11(2)(a), Florida Statutes, “applies only to independent actions on a judgment and not to the recording of a foreign judgment and proceedings to enforce that judgment under FEFJA,” citing Michael v. Valley Trucking Co., 832 So.2d 213, 216 (Fla. 4th DCA 2002).

Based on these allegations, the Planning Board requested leave to amend the complaint and to allow its attached affidavit of the foreign judgment to be deemed filed. The lower court granted the Planning Board’s motion to amend, deeming the affidavit filed and ordering Haigh to respond within 30 days. In response, Haigh filed another answer and alleged the same eight affirmative defenses.

The clerk of court sent Haigh a “Notice of Recording Foreign Judgment,” presumably pursuant to section 55.505(2), Florida Statutes (2005). Haigh then filed a motion for summary judgment, which alleged that the action was barred by the five year statute of limitations in section 95.11(2)(a), Florida Statutes. The Planning Board filed a response to the motion for summary judgment alleging that the five year statute of limitations only applied to an independent action on a foreign judgment, not to “the recording of a foreign judgment and proceedings to enforce that judgment” under Chapter 55.

The Planning Board also filed a “Motion for Order Establishing Foreign Final Judgment and Entry of Florida Judgment.” The motion alleged that the Planning Board was “entitled to a Final Judgment of Florida Court establishing and recognizing the Foreign Final Judgment.”

Without holding a hearing on the Planning Board’s motion or Haigh’s motion for summary judgment, the lower court entered a “Final Judgment Establishing Foreign Judgment.” This final judgment stated the Massachusetts judgment was “hereby recognized by the State of Florida and established as a Judgment in the State of Florida.” It directed the clerk of court to issue a writ of execution.

On appeal, Haigh argues that the trial court, in entering final judgment without an evidentiary hearing or trial, violated his due process rights. He relies primarily on Walters v. Aquatic Sensors Corp., 633 So.2d 475 (Fla. 1st DCA 1994). In that case, the clerk of court notified the judgment debtor that the judgment creditor had recorded a foreign judgment. The debtor timely filed a complaint to stay enforcement of the judgment and notice of lis pendens. The debtor’s complaint alleged partial satisfaction as a basis for staying enforcement. Shortly thereafter, the trial court summarily denied the complaint and granted the creditor’s petition to enforce judgment and issue of a writ of execution.

The appellate court reversed, finding that the entry of the enforcement order without a hearing denied the debtor due process of law. The Walters court noted that the FEFJA allows a judgment debtor to raise “any ground upon which enforcement of a judgment ... would be stayed,” the consideration of which would normally require a hearing. Id. at 476.

The Planning Board argues that Walters is distinguishable because the debtors in that case followed the statutory procedure of filing a complaint to stay enforcement, but in this case, Haigh failed to follow the statutory procedure by filing an action. Instead, the Planning Board points to Cut ler v. Harrison, 792 So.2d 574 (Fla. 3d DCA 2001) for support. In that case, the judgment creditor filed suit seeking to domesticate a foreign judgment. The judgment debtor opposed relief on procedural and substantive grounds, but the court ordered that the judgment be domesticated. The debtor did not appeal that order. Two years later, the debtor filed an action for declaratory relief, raising the same grounds raised in the prior litigation. The trial court dismissed the debtor’s action on the ground of res judicata. The Cutler court affirmed, finding that although the original suit was not necessary, it had proceeded forward and was not appealed. Thus, res judicata barred a second suit on the same issues. In the instant case, however, Haigh has appealed his unsuccessful effort to challenge the final order domesticating the foreign judgment. As there has only been one suit regarding enforcement, res judicata does not bar his objections. Thus, Cutler is inapposite.

The FEFJA does not require a suit to be filed by the judgment creditor. On the contrary, the judgment creditor must simply record the foreign judgment in the clerk’s office, at which point the clerk sends notice of the recording to the judgment debtor. §§ 55.503(1), .505(2), Fla. Stat. (2005). Then, the judgment debtor may file suit contesting enforcement. § 55.509(1), Fla. Stat. (2005).

Although Haigh did not follow the statutory procedure in the instant case, the Planning Board should not be heard to complain. It invited Haigh’s error by not following the correct procedure in the first place. First, the Planning Board filed a common law action upon a foreign judgment outside the applicable statute of limitations. When it recognized its error, it should have dismissed its lawsuit and proceeded under the FEFJA. Instead, it moved to amend its complaint. The lower court granted the Planning Board’s motion and ordered Haigh to respond. Haigh understandably responded by filing another answer and affirmative defenses.

While Haigh’s filing of an answer and affirmative defenses was not the same as filing an action contesting domestication pursuant to the FEFJA, its intent was the same. It placed the Planning Board and the lower court on notice that Haigh intended to challenge enforcement of the foreign judgment.

The Planning Board then reverted to its original, incorrect position by filing a motion alleging that it was “entitled to a Final Judgment of Florida Court establishing and recognizing the Foreign Final Judgment.” The trial court erred by entering a final judgment without addressing the defenses raised by Haigh. Thus, Haigh was denied a fair opportunity to be heard on these defenses, similar to the debtor in Walters.

Haigh also argues that the Planning Board’s suit was an action on a foreign judgment and therefore was barred by the five year statute of limitations in section 95.11(2)(a), Florida Statutes (2005). The Planning Board argues that section 95.11(2)(a) does not apply because its action was only a proceeding to enforce its judgment under the FEFJA.

Actions on foreign judgments are subject to the five year statute of limitation in section 95.11(2)(a). Caiazza v. Tuff Realty Corp., 805 So.2d 29, 31 (Fla. 5th DCA 2001). However, simply recording a foreign judgment or proceeding to enforce a foreign judgment under the FEFJA is not subject to section 95.11(2)(a). Michael v. Valley Trucking Co., 832 So.2d 213, 216 (Fla. 4th DCA 2002).

Therefore, the determinative issue is whether the Planning Board’s suit was a common law action on a foreign judgment or simply a proceeding to record and enforce a foreign judgment under the FEF-JA. In Michael, the Fourth District Court of Appeal drew a distinction between an “action upon a judgment” on one hand and registration of or proceedings to enforce a judgment on the other hand. It noted that while both of these types of proceedings relate to enforcement, they have different consequences.

Specifically, registration of and proceedings to enforce a foreign judgment are derivative of the original judgment and are therefore subject to the limitations period in the jurisdiction where the judgment was originally rendered. They are not subject to the five year limitations period in section 95.11(2)(a). At the same time, recording or enforcing a foreign judgment pursuant to the FEFJA cannot extend the original limitations period from the foreign jurisdiction.

In contrast, the effect of an “action upon a judgment” is to extend the statute of limitations on the prior judgment. Thus, once a creditor holding a foreign judgment successfully obtains a new Florida judgment, the creditor obtains a new 20 year limitations period under section 95.11(1) to enforce that judgment. The original limitations period in the foreign jurisdiction no longer applies. The only limitation is that the action upon the foreign judgment must be brought in Florida within five years of the date the foreign judgment was rendered.

In the instant case, the Planning Board filed an action upon a foreign judgment. Haigh filed an answer and affirmative defenses, including the five year limitation period in section 95.11(2)(a).

Then, the Planning Board filed a motion to amend, alleging that it “should have filed this cause of action as an Affidavit for domestication of foreign judgment” under the FEFJA. Instead of dismissing the complaint and allowing the Planning Board to continue under the FEFJA, however, the lower court granted “leave to amend the complaint” and ordered Haigh to respond.

The FEFJA contemplates an action by the debtor after receiving notice that the foreign judgment has been recorded. Haigh did not file a separate action. Instead, he simply filed another answer and affirmative defenses, presumably in response to the court’s order.

The Planning Board’s “Motion for Order Establishing Foreign Final Judgment and Entry of Florida Judgment” alleged that the Planning Board was “entitled to a Final Judgment of Florida Court.” In effect, the Planning Board was attempting to reassert its original common law action upon a foreign judgment outside the five year limitations period.

It is not clear from the order being appealed whether the order is a Florida final judgment or a final order enforcing a foreign final judgment. In either ease, the court erred. If it is a Florida final judgment, the court erred because the action was barred by the five year limitations period in section 95.11(2)(a). If it was simply an order enforcing the foreign final judgment, the court erred in entering it without giving Haigh an opportunity to be heard.

Based on the errors discussed above, we vacate the final judgment and remand with directions to dismiss the Planning Board’s suit based on the statute of limitations. Then, if the Planning Board wishes, it may proceed to record and enforce its judgment pursuant to the procedures set forth in the FEFJA.

GRIFFIN and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    Mitchell BARROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4477.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Michael R. Ufferman, of Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Mitchell Barrow appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in which he claimed the right to a new trial based upon his assertion that had certain newly discovered evidence been introduced at his first trial, the result of- the proceeding would have been different. Specifically, Barrow argues that an affidavit recently obtained from his co-defendant constitutes newly discovered evidence and establishes that, at all times relevant to the offenses for which he was convicted, Barrow was acting under extreme duress directly caused by the affiant’s threats of great bodily harm and death. Pursuant to the applicable standard of review, this court is required to reverse a summary denial of relief and remand for an eviden-tiary hearing or other appropriate relief “unless the record shows conclusively that the appellant is entitled to no relief....” Fla. R.App. P. 9.141(b)(2)(D). Because the record fails to conclusively show Barrow is not entitled to the claimed relief, an evi-dentiary hearing is warranted in this case. Accordingly, we reverse and remand for further proceedings consistent herewith.

Barrow’s trial defense was duress, but he could not benefit at that time from the affidavit statements made by his co-defendant, Danny Brandon, because, as Brandon admits, Brandon had “never given any statements to police or anyone except the jury whom I lied to and blamed it all on Mitch, Timothy, and Robert. I said they kidnapped me and forced me to drive them to Florida.” Barrow could not have discovered the affidavit statement earlier because, it appears, he was unable to compel such a statement or testimony from Brandon due to Brandon’s constitutional Fifth Amendment right against self-incrimination. Furthermore, Barrow asserted that he was unable to obtain this information at the time of his trial because Brandon’s direct appeal of his judgment and life sentence was still pending at the time of Barrow’s trial. This allegation and the attachments to Barrow’s amended motion for rehearing demonstrating that Brandon maintained his story for some period of time after his judgment and sentence became final, suggest that Barrow was unable to discover the information in Brandon’s affidavit at a time earlier than it was actually discovered. These facts, if true, would support the conclusion that Barrow has met his burden of demonstrating that the affidavit constitutes newly discovered evidence that could not have been discovered through due diligence. See Johnson v. State, 904 So.2d 400, 404 (Fla.2005) (reiterating that “[i]n order to obtain relief on a claim of newly discovered evidence, a claimant must show, first, that the newly discovered evidence was unknown to the defendant or defendant’s counsel at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a character that it would probably produce an acquittal on retrial.”) (citations omitted). An evi-dentiary hearing is thus needed to resolve the credibility of the allegations. See Brantley v. State, 912 So.2d 842 (Fla. 3d DCA 2005) (reversing summary denial of newly discovered evidence claim that was based on co-defendant’s affidavit absolving defendant of wrongdoing because appellate record did not conclusively refute appellant’s claim).

The record also fails to conclusively show that the second prong of Johnson, i.e., “that the evidence is of such a character that it would probably produce an acquittal on retrial,” was not met. Johnson, 904 So.2d at 404. “[Ojrdinarily an eviden-tiary hearing is required for the trial court to properly determine ... whether the newly discovered evidence is of ‘such nature that it would probably produce an acquittal on retrial.’ In making this determination, ‘the judge will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial,’ so that the appellate court can ‘fully evaluate the quality of the evidence which demonstrably meets the definition of newly discovered evidence.’ ” McLin v. State, 827 So.2d 948, 956 (Fla.2002) (quoting Jones v. State, 591 So.2d 911, 915, 916 (Fla.1991)) (emphasis added). Here, without an evidentiary hearing, the second prong of Johnson goes woefully unaddressed.

In concluding that an evidentiary hearing is warranted, we have not overlooked our holding in MacFarland v. State, 929 So.2d 549 (Fla. 5th DCA 2006). In Mac-Farland, the defendant alleged that newly discovered evidence would exonerate him and attached the affidavit of John Wright, who claimed that he, not MacFarland, had committed the offenses. After an eviden-tiary hearing, the trial court found that the claim was untimely and denied MacFar-land’s motion. This court affirmed, writing:

In the instant case, the lower court correctly determined that MacFarland’s claim was untimely. The evidence he relied upon was not new at all. Both MacFarland and Wright testified that they knew at the time the crimes were committed that Wright committed the crimes. The problem for MacFarland was that he could not compel Wright to incriminate himself. However, the lower court noted that the statute of limitations on those crimes barred the State from prosecuting Wright after four years from the date of the crimes. § 775.15(2)(a), Fla. Stat. (1991). As the crimes were committed in July 1991, the statute expired in July 1995. MacFar-land could have obtained Wright’s testimony within two years of July 1995 through the use of due diligence because he had regular contact with Wright’s mother. However, MacFarland failed to present evidence of diligent efforts to obtain Wright’s testimony during that time. Instead, Wright contacted Mac-Farland in 2002 or 2003 and offered his affidavit.
MacFarland argues that he could not compel Wright to incriminate himself until Wright decided to voluntarily come forward. We reject this argument because the right against self incrimination only applies when the witness’s answers might incriminate him in future criminal proceedings. St. George v. State, 564 So.2d 152, 154 (Fla. 5th DCA 1990). Thus, Wright could not assert his privilege against self-incrimination after the statute of limitations ran in July 1995. See Markey v. Jae Sam Lee, 224 So.2d 789 (Fla. 2d DCA 1969).

Id. at 551.

The decision in MacFarland was resolved against the defendant in large part because of evidence received at the eviden-tiary hearing on the defendant’s rule 3.850 motion that demonstrated that the defendant maintained regular contact with Wright’s mother and, therefore, could have discovered the evidence at an earlier point in time. Id. In contrast, based on the record before this court, there is no conclusive evidence to support a contention that Barrow could have discovered the newly discovered evidence prior to the date that Brandon wrote a letter to Barrow’s mother acknowledging that he had previously lied regarding Brandon’s involvement as the ringleader of the criminal offenses.

The trial court’s summary denial of Barrow’s newly discovered evidence claim must be reversed because the record fails to conclusively refute Barrow’s facially sufficient motion for relief. At the ensuing evidentiary hearing, it will be Barrow’s burden to show why the affidavit information could not have been uncovered earlier, through the exercise of due diligence. Cammarano v. State, 602 S.2d 1369, 1371 (Fla. 5th DCA 1992). Further, the trial court must resolve whether the affidavit is of such a character that it would probably produce an acquittal on retrial.

REVERSED and REMANDED for further proceedings consistent herewith.

SAWAYA, PALMER and MONACO, JJ., concur.

      . On July 23, 1998, Barrow was sentenced to life imprisonment following his convictions, after jury trial, for attempted first-degree murder with a firearm, attempted carjacking while armed, two counts of carjacking while armed, felony causing bodily injury, aggravated assault, and burglary of a structure while, armed. His direct appeal was per curiam affirmed by this court. Barrow v. State, 736 So.2d 1203 (Fla. 5th DCA 1999). Barrow filed the instant rule 3.850 motion on June 29, 2005, which is well over two years after his judgment and sentence became final on direct appeal. However, because the claim asserted by Barrow is based on newly discovered evidence, it is not procedurally barred. See Fla. R.Crim. P. 3.850(b)(1) (recognizing an exception to the two-year time bar imposed on rule 3.850 claims when the claim asserted is based on facts that were unknown to the movant and could not have been discovered through the exercise of due diligence).

      . In addition to the above statement, the affi-ant further claimed that he had coerced Barrow into committing the offenses by threatening him with death while pointing a firearm at Barrow.

      . Because of the evidence adduced at the evidentiary hearing, this court was able to conclusively determine that MacFarland had "regular contact with [the affiant's] mother” and therefore could have discovered the information at issue al a much earlier point in time. MacFarland, 929 So.2d at 551.


text:
    Richard Alfred TASKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2057.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Richard A. Tasker, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Richard Alfred Tasker appeals from the summary denial of his motion for postcon-vietion DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The trial court denied Tasker’s motion as untimely, and therefore did not address the merits of the motion. We find that Tasker’s motion was timely filed, reverse the order of summary denial, and remand with instructions that the trial court consider the merits of Tasker’s motion.

The version of rule 3.853 under which Tasker filed his motion required, in relevant part, that a defendant’s motion for postconviction DNA testing be filed “within 4 years following the date the conviction was affirmed on direct appeal ... or by October 1, 2005, whichever occurs later.” Tasker’s 1987 convictions for burglary of a dwelling, sexual battery, and attempted robbery were affirmed by this court on November 3, 1987. See Tasker v. State, 515 So.2d 756 (Fla. 5th DCA 1987) (table). Under the “mailbox rule,” his postconviction motion for DNA testing was filed on September 27, 2005. In denying Tasker’s motion, the trial court appears to have focused only on the 4-year deadline, overlooking the last clause of subsection (d)(1)(A), which allowed Tasker until October 1, 2005 to file his motion. However, the confusion could have just as easily (and, quite understandably) been caused by misapplication of the mailbox rule, or by the many amendments to the deadline set forth in rule 3.8S3.

In any event, because Tasker’s motion was timely filed, and appears to be legally sufficient, we reverse the trial court’s order and remand with directions that the trial court consider Tasker’s motion on the merits.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.

      . See Haag v. State, 591 So.2d 614 (Fla.1992).

      . The original deadline was October 1, 2003. The deadline was then extended, in turn, to October 1, 2005; July 1, 2006; and, October 1, 2006. Under the most recent version of rule 3.853, the deadline for filing postconviction DNA motions has been removed altogether. See In re Amendments to Florida Rule of Criminal Procedure 3.853(d), 938 So.2d 977 (Fla.2006).


author: PALMER, J.

text:
    Tamiko KIRT, Appellant, v. Theodore SHARPER, Appellee.
    No. 5D05-4376.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Shannon L. Akins of the Law Offices of Shannon L. Akins, P.A., Orlando, for Appellant.

      No Appearance for Appellee.
   PALMER, J.

Tamiko Kirt (mother) appeals the trial court’s post-dissolution change of custody order making permanent a previously entered temporary change of custody order. Concluding that the trial court erred by not conducting an evidentiary hearing before entering a permanent change of custody order, we reverse.

In December 2000, the parties’ marriage was dissolved, with the mother being awarded primary physical custody of the parties’ minor child by agreement of the parties. On February 16, 2004, a case management hearing/status conference was held. During the hearing, the trial court heard testimony and then entered an order temporarily transferring custody of the minor child from the mother to appel-lee, Theodore Sharper (father) based on the finding that there had been a substantial change of circumstances.

The father subsequently filed a motion “to make permanent” the trial court’s temporary change of custody order. On November 2, 2005, a successor judge conducted a hearing on the father’s motion. No testimony was taken during the hearing. The father advised the successor judge that the mother had not filed an appeal from the February 2004 order, and he requested that the court enter an order permanently placing custody of the child with him. The mother responded by arguing that the issue of custody was still pending since the earlier order was only temporary. At the conclusion of the hearing, the successor judge entered an order granting the father’s motion, ruling that it was in the best interest of the minor child for the father to be the child’s primary residential parent. This appeal timely followed.

We conclude that it was improper for the successor judge to rely upon testimony presented to the original trial judge at the temporary hearing in order to support his decision to order a permanent change in custody. Support for this conclusion can be found in Florida ease law.

For example, in Umscheid v. Umscheid, 724 So.2d 1267 (Fla. 5th DCA 1999), this court quashed an order vacating a judgment for lack of personal jurisdiction because the judge who signed the order had not heard testimony in support of the motion. A previous judge had heard the evidence, considered the motion, and wrote a letter saying how he would rule when a proposed order was submitted to him. Even so, we held that it was improper for the successor judge to enter an order consistent with the letter since he had not heard the evidence.

In E.J. v. Department of Children and Families, 795 So.2d 1131 (Fla. 5th DCA 2001), this court held that, while a successor judge may complete acts left uncompleted by a predecessor judge, he or she may not weigh and compare testimony heard before the predecessor judge. Similarly, in Fry v. Fry, 887 So.2d 438 (Fla. 2d DCA 2004), the court reversed the entry of a judgment by a successor judge who was not at the evidentiary hearing. See also Bradford v. Foundation & Marine Const. Co., 182 So.2d 447 (Fla. 2d DCA 1966)(adopting a rule that a successor judge cannot render a judgment without conducting a trial de novo, unless by stipulation of the parties).

In closing we note that, even if no change of judge had occurred in this case, it would have been improper for the successor judge to convert a temporary custody order to a permanent custody order without giving the parties an opportunity to present evidence. A temporary custody order is not binding upon the court in ruling on a motion for a permanent custody change.

Accordingly, we reverse the trial court’s change of custody order, and remand this matter to the trial court for a final eviden-tiary hearing on the father’s request for a permanent change of custody.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.

      . No transcript or statement of the proceedings regarding that hearing is contained in the instant record, and no appeal was taken from that order.


text:
    Jerry L. GUINADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2190.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.
    Jerry L. Guinade, Chipley, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jerry L. Guinade appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Guinade alleges that he is entitled to postconviction relief. Specifically, he contends that the trial court violated Florida Rule of Criminal Procedure 3.720 by not asking him if there was any legal cause why he should not be sentenced following his conviction, and by not giving him an opportunity to present evidence and argument before pronouncing sentence. We affirm. Rule 3.850 does not authorize relief based on grounds that could have been or should have been raised at trial, and, if properly preserved, on direct appeal of the judgment and sentence. This claim could or should have been raised on direct appeal, and, therefore, is not cognizable in a rule 3.850 motion.

AFFIRMED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    WESTWOOD ONE, INC., A Delaware Corporation, Appellant, v. FLIGHT EXPRESS, INC., A Florida Corporation, Appellee.
    No. 5D06-67.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 2006.

      Cynthia L. May and Richard C. McCrea, Jr. of Zinober & McCrea, P.A., Tampa, for Appellant.
    Marcia K. Lippincott of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   PALMER, J.

Westwood One appeals the non-final order entered by the trial court granting Flight Express’ motions for default and to strike Westwood One’s motion to compel arbitration. Concluding that the trial court’s order is a non-final, non-appealable order, we dismiss this appeal for lack of jurisdiction.

Flight Express filed a complaint against Westwood One alleging failure to pay an open account for aircraft and pilot services. After Westwood One failed to file any responsive pleading, the trial court entered a default judgment against West-wood One. Westwood One filed a motion to set aside the default. The trial court granted the motion and ordered Westwood One to serve a response within 20 days.

Westwood One responded to the trial court’s order by filing a motion to compel arbitration and to abate the action pending arbitration. Flight Express thereafter filed a second motion for default, alleging that Westwood One had failed to comply with the trial court’s order directing it to file a responsive pleading.

The trial court conducted a hearing on the default motion. During the hearing, the court granted Flight Express’s oral motion to strike Westwood One’s motion to compel arbitration on the ground that it was not a proper responsive pleading. Thereafter, the court granted the pending motion for default. Westwood One filed a notice of appeal from this order.

Appellate jurisdiction to review an appeal from a non-final order is limited to the types of rulings set forth in rule 9.130 of the Florida Rules of Appellate Procedure. In Cotton States Mutual Insurance v. D’Alto, 879 So.2d 67 (Fla. 1st DCA 2004), the court explained:

This rule is designed to reduce the number of appealable pretrial orders and to discourage piecemeal review. Given this objective, the courts have narrowly construed the scope of the rule so that it applies only to the orders it identifies as appealable orders.

Id. at 69 (citations omitted). We lack jurisdiction to review the trial court’s order which grants Flight Express’ motion for default because the order does not fall within the parameters of the above quoted rule.

Westwood One maintains that this court possesses jurisdiction to review the portion of the trial court’s non-final order which granted Flight Express’ motion to strike its motion to compel arbitration because that ruling determines that West-wood One was not entitled to proceed to arbitration. More specifically, Westwood One maintains that the combined effect of the trial court’s ruling which struck its motion to compel and the trial court’s order which granted Flight Express’ motion for default effectively defeated the benefit provided by the arbitration process, effectively operating as a denial of arbitration. We disagree.

Rule 9.130 states that appellate review is proper to review non-final orders that determine the entitlement of a party to arbitration. See Fla. R.App. P. 9.130(a)(3)(C)(iv). However, the trial court’s order which struck Westwood One’s motion to compel arbitration was manifestly not a ruling determining that Westwood One was not entitled to proceed to arbitration. Rather, the trial court entered the order striking Westwood One’s motion to compel arbitration for its failure to comply with the terms of an earlier court order. No showing has been made that the trial court ever considered the substantive issue of whether Westwood One was entitled to proceed to arbitration under the terms of the parties’ purported contract agreement.

Alternatively, Westwood One argues that certiorari review of the trial court’s order is appropriate in this case. We again disagree. Westwood One has not demonstrated that it has suffered an irreparable harm that cannot be remedied on direct appeal from the trial court’s entry of a final default judgment. Once the trial court enters a final default judgment, Westwood One will be entitled to file a direct appeal therefrom and, by prosecuting said appeal, will be able to challenge the trial court’s ruling granting Flight Express’ motion to strike as well as the trial court’s ruling granting Flight Express’ motion for default. As such, the grant of certiorari review would be inappropriate. See Boby Express Co. v. Guerin, 930 So.2d 842 (Fla. 3d DCA2006).

DISMISSED.

THOMPSON and TORPY, JJ., concur.

      . At the same time the order granting Flight Express' motion for default does not qualify for review as a final, appealable order since it is simply an order granting a motion, not an order entering a final default judgment. See Miller v. Samuel E. Mason, Co., 917 So.2d 310 (Fla. 1st DCA 2005)(explaining that an order granting a motion to set aside a clerk's default is not a final order or judgment).


author: VILLANTI, Judge.

text:
    Daniel Patrick WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5989.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2006.

      Roger D. Futerman and Sean B. Kelley of Roger D. Futerman & Associates, Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colón, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Daniel Patrick Welch appeals the trial court’s judgments and sentences to concurrent terms of forty-two months in prison for trafficking in Oxycodone and conspiracy to traffic in Oxycodone. He raises four issues on appeal. We affirm on three of these issues without comment. We also affirm as harmless error the remaining issue — that the State was erroneously allowed to bolster the testimony of the confidential informant, the State’s primary witness.

Law enforcement officers developed the case against Welch by the use of a confidential informant whom they first encountered when she was arrested for three counts of grand theft from her employer. During her direct testimony, the confidential informant described her arrest and admission to the theft charges. The State then asked the confidential informant, “And at that time, had you ever been charged with a felony before?” Welch’s counsel objected and moved for a mistrial on the basis that the question was improper bolstering.

“Generally, a party may not introduce evidence of the good character of a witness to bolster or support the credibility of that witness.” 1 Charles W. Ehrhardt, Florida Evidence § 611.2 at 620 (2006 ed.) “However, once the credibility of a witness has been attacked, it may be possible to support or rehabilitate the witness.” Id. Bolstering a witness is different from anticipatory rehabilitation of a witness. “A witness may testify on direct examination about ... prior convictions when the testimony is elicited in an attempt to ‘soften the blow’ or reduce the harmful consequences of such evidence.” § 608.2 at 539. Indeed, “the rule against bolstering the credibility of a witness before it has been attacked ... forbids counsel from using this technique [anticipatory rehabilitation].” § 608.2 at 539-40. In other words, anticipatory rehabilitation does not generally require an attack on the witness, but there must be the foundation for its use as a preemptive tactic. Otherwise, the tactic is improper bolstering.

Interestingly, it is the answer to the State’s question that classifies the question as either bolstering or anticipatory rehabilitation. In the present case, the answer given was “No. I’d never been arrested before.” Thus, the issue here involves the bolstering of the witness’s character and not anticipatory rehabilitation.

Section 90.404(l)(c), Florida Statutes (2004), provides that:

(1) CHARACTER EVIDENCE GENERALLY. — Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:
(c) Character of witness. — Evidence of the character of a witness, as provided in ss. 90.608-90.610.

Section 90.608 deals with “[w]ho may impeach” a witness and section 90.609 defines the “[c]haracter of witness as impeachment.” The section relevant to this opinion is 90.610, “[c]onviction of certain crimes as impeachment.” Significantly, the statute does not include the lack of a criminal conviction, or as applicable here, the lack of a prior felony charge.

The State argues that we should allow this bolstering of State witnesses, although such testimony has repeatedly been found inadmissible for criminal defendants and victims. For example, testimony that a defendant has not been convicted of a crime is not admissible during the direct examination of the accused. See, e.g., Lawton v. State, 588 So.2d 1369, 1369 (Fla. 3d DCA 1989) (noting that evidence that a defendant had no prior criminal record is “patently inadmissible in Florida”); Wrobel v. State, 410 So.2d 950, 951 (Fla. 5th DCA 1982) (noting that “the good character of an accused may not be proved by testimony that he has never been previously charged with or convicted of a criminal offense”). Similarly, cases have held that there is no authority for the bolstering of victim witnesses. See Landry v. State, 620 So.2d 1099, 1101 (Fla. 4th DCA 1993) (finding it improper for the State to ask an officer about his lack of disciplinary reports); Jacob v. State, 546 So.2d 113, 115 (Fla. 3d DCA 1989) (finding that evidence that no complaints involving violence toward inmates had ever been filed against an officer was inadmissible in direct examination of officer). Thus, we hold that the law does not support an exception as argued by the State.

Accordingly, it was error for the trial court to allow the State to question the confidential informant on direct examination about her lack of felony charges. Nevertheless, we conclude that it was harmless error. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“[T]here is no reasonable possibility that the error contributed to the conviction.”). Therefore, we affirm.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.

      . We point out that counsel may not ask a witness about prior convictions "unless he or she has knowledge that the witness has in fact been convicted of the crime or crimes.” Brown v. State, 787 So.2d 136, 139 (Fla. 4th DCA 2001).

      . “It is clear that nothing under section 90.405 nor in the case law of Florida authorizes the defense to introduce evidence of the absence of prior criminal convictions as a substitute for reputation testimony....” Wrobel v. State, 410 So.2d 950, 951 (Fla. 5th DCA 1982).


author: CASANUEVA, Judge.

text:
    Gregory A. CUTTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-192.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2006.

      Laura Griffin, Ponte Vedra, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

We affirm Gregory A. Cutts’ challenges to his sentences for two sexual battery convictions, which he contends were imposed in contravention of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Mr. Cutts was convicted and originally sentenced in March 2000. His convictions and sentences were final on March 23, 2001, when this court issued its mandate from his direct appeal. As the result of collateral postconviction proceedings, however, Mr. Cutts was resentenced in 2005. He now appeals from those sentences on the ground that they violate Blakely’s proscription against enhancement of a guidelines sentence under a scheme — such as Florida’s 1994 sentencing guidelines — with a maximum sentence exposure absent a departure from the guidelines. In such a case, according to the Blakely decision, enhancement is improper based upon facts found by a judge rather than a jury. See Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005) (involving a case pending on direct review when Blakely was decided).

Mr. Cutts’ challenge will be successful only if Blakely is retroactively applied to the sentences that arose from his 2001 convictions, and he cites the First District’s decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), in support of his contention. As Mr. Cutts acknowledges, however, this court has held that Blakely is not to be retroactively applied on collateral review to convictions that became final before Blakely was decided. Hughes v. State, 933 So.2d 1285 (Fla. 2d DCA 2006); Burrows v. State, 890 So.2d 286, 287 (Fla. 2d DCA 2004), review denied, 914 So.2d 952 (Fla.2005). In so holding, we have aligned ourselves with the Third, Fourth, and Fifth District Courts of Appeal. See Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006); Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005), review granted, 925 So.2d 1030 (Fla.2006). We also agree with Judge Kahn’s observation in his dissent in Isaac that the Florida Supreme Court’s “focus on finality of the conviction is very important.” 911 So.2d at 816 (Kahn, J., dissenting) (citing Hughes v. State, 901 So.2d 837 (Fla.2005)).

Accordingly, we affirm the sentences imposed in 2005 for Mr. Cutts’ convictions that became final in 2001. As in Barron v. State, 931 So.2d 929 (Fla. 2d DCA 2006), we certify direct conflict with the First District’s decision in Isaac, 911 So.2d at 813.

STRINGER and LaROSE, JJ., Concur.


author: WOLF, J.

text:
    Charles Lamar SWITZER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4349.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Martin J. McClain of McClain & McDer-mott, Wilton Manors, and Barry W. Bero-set of Beroset & Keene, Pensacola, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

The appellant, following a jury trial, was convicted of conspiracy to traffic in cocaine (count I) and two counts of possession of cocaine (counts II and III). On appeal, the appellant challenges his conviction for conspiracy to traffic in cocaine. Specifically, the appellant asserts the State failed to present sufficient evidence demonstrating his intent to purchase 28 grams or more of cocaine over the course of several years. In response, the State asserts that aggregating the appellant’s cocaine buys over the course of several years supports the conspiracy to traffic charge.

While we agree that cocaine buys may be aggregated where the defendant specifically intended to purchase a total of more than 28 grams of cocaine at different times, we disagree that sufficient evidence was presented at trial to establish the appellant formed such an intent. All evidence presented below supported a finding that the appellant was merely a user of cocaine who engaged in multiple buys over the course of several years. This is insufficient to support a conspiracy to traffic charge.

In addition, upon review of the record, we note that the appellant’s convictions on counts II and III for simple possession were imposed with adjudication withheld; however, the appellant was sentenced to concurrent prison sentences on all three counts. A trial court may not withhold adjudication if a defendant is given a prison sentence. McClellan v. State, 819 So.2d 946 (Fla. 2d DCA 2002); State v. Oates, 610 So.2d 522, 523 (Fla. 2d DCA 1992); State v. Green, 581 So.2d 1008, 1009 (Fla. 4th DCA 1991); State v. Scarantino, 543 So.2d 399 (Fla. 4th DCA 1989); Fla. R.Crim. P. 3.670.

On remand, we direct the trial court to reverse the appellant’s conviction on count I and enter a conviction for the lesser included offense of conspiracy to sell, manufacture, or deliver cocaine. As to counts II and III, we further reverse the appellant’s sentences and direct the trial court to resentence the appellant on all counts.

REVERSED.

PADOVANO and THOMAS, JJ, concur.


text:
    SKILL JEWELRY INCORPORATED, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-5485.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.

      Daniel G. Gass of Daniel G. Gass, P.A., Sunrise, for Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order of the Florida Unemployment Appeals Commission which reversed the appeals referee’s decision that the claimant was not entitled to unemployment benefits because he voluntarily left his employment without good cause attributable to the employer. The Commission reversed on the ground that the referee had relied solely upon hearsay, which was insufficient to rebut the claimant’s testimony. Although hearsay is admissible for the purpose of explaining or supplementing other evidence, a denial of benefits cannot be based exclusively on hearsay evidence. Tassone v. Fla. Unemployment Appeals Comm’n, 662 So.2d 1003, 1004-05 (Fla. 1st DCA 1995). We conclude that other non-hearsay evidence was presented at the hearing which supported the referee’s findings that the claimant’s testimony lacked credibility and that the claimant voluntarily left his employment to accept other work. The Commission must accept the findings of the appeals referee if they are supported by competent substantial evidence. Walz v. Reggie’s Seafood & BBQ House, Inc., 718 So.2d 861, 862 (Fla. 1st DCA 1998). Because the referee’s decision was supported by competent substantial evidence, we reverse the Commission’s order and remand with directions that the Commission reinstate the referee’s decision. See Syncrolift Rolls Royce v. Fla. Unemployment Appeals Comm’n, 869 So.2d 639, 640 (Fla. 1st DCA 2004); Tassone, 662 So.2d at 1005.

REVERSED and REMANDED with directions.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Rodney E. LOVETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2512.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.

      Rodney E. Lovett, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By timely petition, Rodney E. Lovett seeks a belated appeal of a September 27, 2005, order dismissing his motion to correct illegal sentence in Escambia County Circuit Court case number 99-4462. Upon consideration of the institutional mail logs reflecting that petitioner received no legal mail in the 80 days following rendition of this order, the petition seeking belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Ricky E. SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2516.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Ricky E. Simmons, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By timely petition, Ricky E. Simmons seeks a belated appeal of an October 15, 2004, order denying his motion for post-conviction relief in Bay County Circuit Court case number 99-1800. He alleges in his sworn petition that in spite of his filing of numerous notices of inquiry concerning the status of his motion, he did not receive a copy of the order of denial until February 2006.

In response to an order to show cause, the state contends that a belated appeal should not be granted because the trial court’s order reflects that a copy thereof was furnished to petitioner at his institutional mailing address. We conclude, however, that this circumstance is not sufficient to overcome petitioner’s sworn allegation that he did not timely receive a copy of the order, nor is it a sufficient basis to create a disputed issue of fact, such that an evidentiary hearing would be required. See Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). Accordingly, the petition seeking a belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Sheron COHEN, Appellant, v. HARTLEY BROTHERS CONSTRUCTION, INC., Watson Realty Corp., Universal Engineering Sciences, Inc., Foundation Services of Central Florida, Inc., Beltz Realty and Investments, Inc., James Marchant, Ruth Marchant, and Dennis Chesky d/b/a A Personal Home Inspection, Appellees.
    No. 1D06-0894.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Mark J. Fraser, Gainesville, for Appellant.
    Frank A. Miller of Caglianone, Miller & Anthony, P.A., Brooksville, for Appellee Foundation Services of Central Florida, Inc., for Appellees.
   PER CURIAM.

Sheron Cohen appeals from a final order of summary judgment in which the lower court concluded that appellee, Foundation Services of Central Florida, Inc., established that it was not liable for violating the Florida Building Code. We affirm.

Cohen purchased a home on September 18, 2001. In her action against appellees, she alleged that when the home was being built in 1997, the prior owners and the contractor hired Foundation Services to install cast-auger pilings below the footings in an attempt to address adverse soil conditions, but that they failed to obtain the necessary permits. She alleged in Counts I and II a statutory cause of action and negligence per se for violation of section 553.84, Florida Statutes, which provides:

Statutory civil action. — Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.

In an earlier proceeding in this case, the lower court entered final summary judgment for the contractor, Hartley Brothers Construction, Inc., based on an affidavit by its Secretary/Treasurer, Phillip W. Hart-ley, stating that “[ijnstallation of the piles was performed as a part of the regular construction process, and no added or additional permitting was required.” Hart-ley attached two documents issued by the Alachua County Office of Codes Enforcement: (1) a Permit Inspection Card, listing numerous inspections the Office had performed on the house, including the final inspection and approval on November 24, 1997, and (2) a Final Certificate of Occupancy, which confirmed that the house “was in compliance with the various ordinances of the City regulating building construction or use.” Cohen appealed and this court affirmed in Cohen v. Hartley Brothers Construction, Inc., 937 So.2d 124 (Fla. 1st DCA 2006).

In the present case, Foundation Services filed its own motion for summary judgment, relying upon the Hartley affidavit and its attachments. In opposition to the motion, Cohen submitted an affidavit from an expert in construction-defect cases, Clinton J. Ford, which recited that he is a licensed Florida general contractor, and that he had reviewed the construction of the house and the Alachua County building codes. He averred that Foundation Services had failed to obtain permitting for and inspection of the 32 stabilization pilings, as required by the building code. The lower court granted the motion and entered final judgment for Foundation Services.

Our standard of review is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Under section 553.84, Foundation Services was required to establish three facts in order to show it was not liable for violating a building-construction standard or code: (1) the necessary building permits had been obtained, and the Alachua County agency with the authority to enforce the Florida Building Code had approved the plans; (2) the construction project had passed all required inspections under the code; and (3) no personal injury or damage existed to property other than the building at issue. The Alachua County Permit Inspection Card and the Certificate of Occupancy established the existence of facts (1) and (2), and fact (3) was undisputed.

In offering his opinion that Foundation Services had violated the code, Ford failed to refer to any actual facts that would refute or undermine the Alachua County documents. He did not identify a single provision of the code that Foundation Services had violated, nor did he identify which permits Foundation Services failed to obtain. See, e.g. Spradley v. Stick, 622 So.2d 610 (Fla. 1st DCA 1993).

Because Foundation Services established the three facts necessary to defeat Counts I and II, the burden then shifted to Cohen to show she retained a cause of action by providing evidence that despite the county agency’s approval of the house, Foundation Services nevertheless “knew or should have known that the violation[s] existed.” She did not, however, provide any evidence on this point, and instead refers only to allegations in her unsworn complaint that Foundation Services failed to obtain the necessary permits. Were we even to read an assertion of Foundation Services’ knowledge from such allegations, Cohen did not support the allegations with evidence, and as a result failed to show the existence of any genuine issue of material fact. See, e.g., A & G Aircraft Serv., Inc. v. Johnson, 192 So.2d 74, 75 (Fla. 4th DCA 1966) (“The unsworn allegations of the amended complaint constituted legal conclusions and were not evidence of any fact.”).

AFFIRMED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.

      . The parties do not specify a year for this statute, but it is clear they both relied on section 553.84, as amended in 2000, which took effect on March 1, 2002. See Ch.2001-372, § 3, at 2-3, Laws of Fla. The parties have not raised the propriety of retroactive application of the amendment; thus we need not reach such question.


text:
    Cynthia TICE, Appellant, v. ALBERTSON’S and Specialty Risk Services, Appellees.
    No. 1D05-4012.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Paul M. Anderson, and Karla G. Hart of Anderson & Associates, P.A., Tallahassee, for Appellant.
    Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the claimant seeks review of that portion of the final order denying her request for medical treatment. Specifically, she contends that the judge of compensation claims committed reversible error in failing to find, based on the opinion of the expert medical advisor, that she suffered a compensable aggravation of her preexisting carpal tunnel syndrome which was the major contributing cause of her need for treatment. We reverse and remand for further proceedings.

The judge of compensation claims appointed an expert medical advisor who opined that the claimant’s use of a meat slicer while working in the employer’s deli aggravated her preexisting, asymptomatic carpal tunnel syndrome, causing it to become symptomatic. Although there was a dispute as to the amount of time that the claimant used the meat slicer during each shift, the expert medical advisor testified that it was the activity itself, rather than the degree of repetitiveness, that caused the aggravation.

In denying the request for medical treatment, the judge of compensation claims concluded that the claimant failed to establish a claim for repeated trauma under Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). We have explained that, under Festa:

To establish a claim for repeated trauma, the claimant must show 1) prolonged exposure to a condition or activity, 2) the cumulative effect of which is injury or aggravation of a pre-existing condition, and 3) that claimant thereby has been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must demonstrate a series of occurrences, the cumulative effect of which is injury. Festa, 382 So.2d at 124.

Alvarez v. City of Tampa, 647 So.2d 301, 303 (Fla. 1st DCA 1994). We conclude that the judge of compensation claims misapplied the Festa test and that the claimant established a claim for repeated trauma under a proper application of that test. See Moore v. Pasco County Bd. of Comm’rs, 854 So.2d 256, 257 (Fla. 1st DCA 2003); J & J Enters. v. Oweis, 733 So.2d 1149, 1150 (Fla. 1st DCA 1999); Fla. Power Corp. v. Stenholm, 577 So.2d 977, 981-82 (Fla. 1st DCA 1991); Sewell v. J.C. Penney, 569 So.2d 1335, 1336 (Fla. 1st DCA 1990); Winn-Dixie Stores v. Morgan, 533 So.2d 783, 784 (Fla. 1st DCA 1988).

Once the claimant established a claim for repeated trauma under Festa, she then had to prove that the resulting aggravation of her preexisting carpal tunnel syndrome was the major contributing cause of her need for treatment under section 440.09(l)(b), Florida Statutes (2002). See City of Cooper City/Fla. Mun. Ins. Trust/Fla. League of Cities v. Farthing, 905 So.2d 925, 928 (Fla. 1st DCA 2005); J & J Enters., 733 So.2d at 1150; Mellon Sec. & Sound v. Custer, 687 So.2d 1372, 1373 (Fla. 1st DCA 1997). Although the expert medical advisor testified that the claimant’s work activities were the major contributing cause of the aggravation of her preexisting carpal tunnel syndrome, she did not specifically address whether the aggravation was the major contributing cause of the claimant’s need for treatment. Nor did she address whether the claimant needed the specific treatment requested by the claimant. Accordingly, we reverse and remand for further proceedings on the issue of whether the aggravation of the claimant’s preexisting carpal tunnel syndrome was the major contributing cause of her need for treatment, in particular the treatment requested by the claimant. See Prewitt v. Principal Health Care, 752 So.2d 96 (Fla. 1st DCA 2000).

REVERSED and REMANDED with directions.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Joni MACRI, Nicodemo (Nic) Macri, and the Estate of Jena Macri, deceased, Appellants, v. CLEMENTS AND ASHMORE, P.A. d/b/a North Florida Women’s Care, David O’Bryan, M.D., Rachel Depart, CNM, Appellees.
    No. 1D06-3318.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Donald M. Hinkle of Hinkle & Foran, Tallahassee, for Appellants.
    Rogelio J. Fontela of Dennis Bowman Jackson Martin & Fontela, Tallahassee, for Appellees Clements and Ashmore, P.A. d/b/a North Florida Women’s Care and David O’Bryan, M.D.
    Douglas P. Jones and Harold R. Mar-denborough, Jr., of Carr Allison Firm, Tallahassee, for Appellee Rachel Depart, CNM.
    Wilbur E. Brewton of Roetzel & An-dress, L.P.A., Tallahassee, for Florida Birth-Related Neurological Injury Compensation Association.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s orders of July 12, 2006, and August 2, 2006, the Court has determined that this appeal was prematurely filed. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, WEBSTER, and VAN NORTWICK, JJ., concur.


text:
    William ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3704.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    James C. Banks, Law Office of Banks & Morris, P.A., Tallahassee; William Allen, pro se, for Petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of probation rendered on March 2, 2006, in Leon County Circuit Court case number 2004-CF-711-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    Ricky E. MORRIS, Appellant, v. Tonda S. SWANSON, Appellee.
    No. 1D05-6158.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.

      Thomas E. Wheeler, Jr. of Stephen T. Holman, P.A., Pensacola, for Appellant.
    Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Citing section 61.30(17), Florida Statutes, Ricky E. Morris contends that he is responsible for child support — not, as the trial court ruled, from October 17, 1988, the date of his daughter’s birth, forward— but only for the period since May 26,1997, two years to the day before the child’s mother, Tonda S. Swanson, filed her initial petition for child support. We reject this contention and affirm the order under review, which awards child support that has accrued since the date of the child’s birth.

Mr. Morris asks us to hold, in effect, that the 1998 amendment to section 61.30(17) extinguished all but two years of the nearly ten-year obligation for child support he had failed to discharge at the time the amendment took effect. But extinguishing or truncating the father’s obligation would likewise extinguish or truncate the child’s substantive rights. See McMillian v. State, Dep’t of Rev., 746 So.2d 1234, 1236 (Fla. 1st DCA 1999) (“[Cjhild support is a right which belongs to the child.”). Under our precedent, it is clear that enacting, then amending, section 61.30(17), Florida Statutes, did not diminish any right to past child support that was already in existence:

Although laches sometimes barred such claims, depending upon the underlying circumstances, public policy precluded a parent from avoiding his or her obligation of support for a minor child. See [Fowhand v. Piper, 611 So.2d 1308, 1312 (Fla. 1st DCA 1992) ]. This is because child support is a right which belongs to the child. See Imami v. Imami, 584 So.2d 596 (Fla. 1st DCA 1991). Support is a dual obligation owed by both biological parents to their child from the moment of the child’s birth. See Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979). See also State, Department of Revenue ex rel. Carbonara [Carbonaro] v. Carbonaro, 712 So.2d 1225 (Fla. 2d DCA 1998) (“A child support order ... is never retroactive in the sense that it imposes a duty to pay for a period prior to a time when the legal and moral obligation existed.”).
“The general rule [of statutory construction] is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.” See Life Care Centers v. Sawgrass Care Center, 683 So.2d 609, 613 (Fla. 1st DCA 1996), quoting State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). “Statutes that relate only to procedure or remedy generally apply to all pending cases,” but a substantive law that interferes with vested rights will not be applied retrospectively. See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 477 (Fla.1995). Substantive statutes either create or impose a new obligation or duty, or impair or destroy existing rights. See Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). Consequently, an act designed to serve a remedial purpose will not be applied retroactively, when it is clear that doing so “would attach new legal consequences to events completed before its enactment.” See Arrow Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla.1994). See also Hassen v. State Farm Mutual Automobile Insurance Co., 674 So.2d 106, 108 (Fla. 1996)(court will not divine intent that new law be applied to disturb existing duties when there is no express indication that such is legislature’s intent). Accord Heberle v. P.R.O. Liquidating Company, 186 So.2d 280, 282 (Fla. 1st DCA 1966).

Id., at 1236-37. Accord Horn v. Fla. Dep’t of Rev., 752 So.2d 687, 688 (Fla. 3d DCA 2000) (“Under common law, a child was entitled to support retroactive to the date of birth.... Hence, by adopting subsection 17, the legislature withdrew or curtailed this right.... Such a statute should not be retroactively applied”). Contra Gore v. Peck, 800 So.2d 273, 274-75 (Fla. 2d DCA 2001) (enforcing two-year limitation without analysis, but stating: “This court, and others, have adhered to the often-stated principle that ... the mere passage of time ... [does not] excuse[ ] a parent from child support obligations.”).

“Prior to [enactment of section 61.30(17) ], child support could be made retroactive to the date of the child’s birth, without regard to the intervening years between the date of the child’s birth and [any prior] determination that such support was due.” McMillian, 746 So.2d at 1236-37 (“Because the amendment to section 61.30(17) limits a child’s right to past parental support, the amendment is primarily substantive in nature and thus may not receive [or should not be construed to have] retroactive application.”). Section 61.30(17), Florida Statutes, now provides:

In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition....

§ 61.30(17), Fla. Stat. (2005). As originally adopted, this provision read: “[T]he court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child[.]” Ch. 97-170, § 11, at 3222, Laws of Fla. See Horn, 752 So.2d at 688 (“The original enactment of subsection 17 significantly curtailed existing common law rights.... Subsection 17 permits the trial court to award child support retroactive to ‘the date when the parents did not reside together.’ § 61.30(17), Fla. Stat. (1997). This may or may not be the child’s date of birth.”) (citations omitted).

The Legislature later added the language on which appellant relies, providing, effective July 1, 1998, that any award of past child support could not “exceed a period of 24 months preceding the filing of the petition.” Ch. 98-397, § 11, at 3030, Laws of Fla. Our decision in McMillian expressly addressed this 24-month limitation, the same limitation at issue in the present case. 746 So.2d at 1236-37.

We decline Mr. Morris’s invitation to turn our backs on the holding in McMil-lian. The decision in McMillian was but a specific application of the general rule that “an amendment to a statute of limitations cannot [and should certainly not ordinarily be construed to] extinguish an existing claim, [although such an amendment] can, consistent with due process, shorten the limitation period applicable to the prior claim if the intent to make the amendment retroactive is clearly expressed, and if a reasonable time is allowed within which to seek enforcement [of the existing claim, before it is cut off.]” Polk County BOCC v. Special Disability Trust Fund, 791 So.2d 581, 583 (Fla. 1st DCA 2001).

It is immaterial that Ms. Swanson’s petition was filed some months after the amendment took effect, while the petition seeking child support in McMillian was already pending by the time the amendment took effect. See 746 So.2d at 1236. We do not find obiter dicta suggesting the contrary persuasive. See Houston v. Maglio, 845 So.2d 971, 972 n. 2 (Fla. 4th DCA 2003); Dep’t of Rev. v. Lovins, 798 So.2d 891, 892 (Fla. 4th DCA 2001); Johns v. Richards, 717 So.2d 1103, 1103-04 (Fla. 4th DCA 1998).

The child’s substantive right to her father’s support antedated the filing of the mother’s petition for support. Id. at 1236-37 (citing State, Dep’t of Rev. v. Carbonaro, 712 So.2d 1225, 1227 (Fla. 2d DCA 1998) (“A child support order ... is never retroactive in the sense that it imposes a duty to pay for a period prior to a time when the legal and moral obligation existed.”)). Accord Girten v. Andreu, 698 So.2d 886, 888 (Fla. 3d DCA 1997).

The child’s needs, the father’s obligation and the mother’s claim (on behalf of the child) arose when the child was born, and continued seriatim thereafter, giving rise to rights that were in existence by the time section 61.30(17) was enacted, and remained intact when it was amended. See McMillian, 746 So.2d at 1236 (“Support is a dual obligation owed by both biological parents to their child from the moment of the child’s birth.”).

This is not to say that the statutory amendments cannot operate prospectively to limit recovery for child support as to obligations accruing after July 1, 1997 (to support for the period beginning on the date when the parents did not reside together), or after July 1, 1998 (to support for the period beginning two years before a petition seeking an initial determination of support is filed, even if the parents ceased residing together at an earlier date). Under McMillian, however, “[b]e-cause the amendment to section 61.30(17) limits a child’s right to past parental support, the amendment ... may not receive retroactive application,” although laches (which were neither pleaded below nor argued on appeal here) may, as we noted in McMillian, sometimes bar “such claims, depending upon the underlying circumstances.” 746 So.2d at 1236-37.

Affirmed.

KAHN and LEWIS, JJ., concur.


author: HAWKES, J.

text:
    STATE of Florida, Appellant, v. Marion BURROWS, Appellee.
    No. 1D05-5857.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.

      Charlie J. Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellee.
   HAWKES, J.

The jury convicted the defendant of possession of cocaine. After the jury returned its verdict, the trial judge granted a defense motion for a judgment of acquittal. On appeal, the State of Florida argues the trial court erred in granting the motion. We agree.

Facts

An officer, patrolling á high drug area in an unmarked police vehicle, observed the defendant and another man near the road. The two men were standing face-to-face, behind a waist-high bush at the end of a “cut through” trail next to a vacant lot. When he spotted the unmarked police vehicle, the defendant looked surprised and made a downward throwing motion with his hand. The officer then stopped his vehicle, approached the men, and asked them what they were doing. The defendant responded by stating “he was urinating or fixing to.”

When the officer saw the defendant make the throwing motion, he did not see anything actually leave the defendant’s hand because his view was partially obscured by a bush. The officer did, however, find crack cocaine on the ground where both men had been standing only moments earlier. One piece of the crack cocaine was lying loose on top of the ground, and another piece was wrapped in a tinfoil package. Even though the crack cocaine was found late in the day and at the end of a trail people used to get through the woods, the cocaine did not appear dirty nor did it appear to have been stepped on. As a result of seeing the defendant’s hand motion, observing the defendant’s surprised look, hearing the defendant’s unlikely explanation of what he was doing, and finding the clean-looking crack cocaine where the defendant had just been standing, the officer seized the evidence and arrested the defendant for possession of a controlled substance. FDLE testing confirmed crack cocaine.

Procedural History

The State charged the defendant with unlawfully and knowingly being in actual or constructive possession of a controlled substance (crack cocaine). The case proceeded to trial. At the end of the State’s case in chief, the defense moved for judgment of acquittal on the ground that the State failed to present a prima facie case for possession of cocaine. The trial court took the motion under advisement, and allowed the case to go to the jury. The jury found the defendant guilty. After the verdict, the trial court revisited the motion for judgment of acquittal, and concluded the State’s evidence was insufficient to show the defendant was in constructive possession of the crack cocaine. Based on this conclusion, the trial court granted the motion for judgment of acquittal and ordered the defendant released from custody. .

Standard of Review

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury’s verdict. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In criminal cases, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of the district court, and a heightened standard of proof required in a trial court does not change the standard of review here. See McKesson Drug Co. v. Williams, 706 So.2d 352, 353-4 (Fla. 1st DCA 1998). It is well settled that, when reviewing a judgment of acquittal, the appellate court must apply the competent, substantial evidence standard and “consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [Sjtate.” Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted); see also, Darling v. State, 808 So.2d 145, 156 (Fla.2002). “If the State has presented competent evidence to establish every element of the crime, then a judgment of acquittal is improper.” State v. Williams, 742 So.2d 509, 510 (Fla. 1st DCA 1999).

Circumstantial Evidence Cases

When reviewing a judgment of acquittal in a wholly circumstantial evidence case, the appellate court must determine whether the State presented competent evidence from which the jury could exclude every reasonable hypothesis except guilt. See Darling v. State, 808 So.2d 145, 156 (Fla.2002); State v. Law, 559 So.2d 187, 188-89 (Fla.1989). “The State is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Darling, 808 So.2d at 156 (quotation marks omitted). “After the judge determines, as a matter of law, whether such evidence exists, the question of whether the evidence is inconsistent with any other reasonable inference is a question of fact for the jury.” Gordon v. State, 704 So.2d 107, 112-13 (Fla.1997) (quotation marks omitted). “Once that threshold burden is met [by the State], it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Darling, 808 So.2d at 156 (citation omitted). We cannot reverse the jury’s verdict if there is competent, substantial evidence to support the verdict. See Thorp v. State, 777 So.2d 385, 389 (Fla.2000) (citations omitted). When the State presents both direct and circumstantial evidence, the special standard of review applicable to circumstantial evidence cases does not apply. See Pagan, 830 So.2d at 803. Here, the State presented both direct and circumstantial evidence. Consequently, when reviewing the evidence in a light most favorable to the State, we must only determine whether the State presented competent, substantial evidence to establish every element of the crime. See Jones, 790 So.2d at 1197; Williams, 742 So.2d at 510.

Burden to Prove Constructive Possession

The defendant’s motion for judgment of acquittal alleged the State failed to present a prima facie case for possession of crack cocaine. To establish possession of cocaine, the State must present competent, substantial evidence supporting each of the three elements of possession: (1) The defendant possessed a controlled substance; (2) The controlled substance was cocaine; and (3) The defendant had knowledge of the presence of the cocaine and was aware of its illicit nature. See Fla. Std. Jury Instr. (Crim.) 25.7. The first element of the crime of possession can be established by showing the defendant’s possession was either actual or constructive. To establish constructive possession the State must show: (1) The defendant had dominion and control over the contraband; (2) The defendant had knowledge that the contraband was within his presence; and (3) The defendant was aware of the illicit nature of the contraband. See Williams, 742 So.2d at 512; Bradshaw v. State, 509 So.2d 1306, 1308-09 (Fla. 1st DCA 1987). Dominion and control may be established by showing the contraband was located in a place where the defendant had relinquished control by concealing it or in a place where the defendant had thrown it.

Here, the State presented evidence that the defendant looked surprised when he spotted a law enforcement officer, he made a throwing motion with his arm as the officer watched, he offered the officer a doubtful explanation of his activities when the officer inquired what was going on, and the crack cocaine was found on top of the ground in the immediate area where the defendant had been standing. From this evidence, the jury certainly could conclude the defendant was able to exercise dominion and control over the cocaine found on the ground where he was standing, which would establish the first element of constructive possession. Both the second element, the defendant had knowledge of the presence of the cocaine, and third element, the defendant was aware of its illicit nature, could be established by the jury’s acceptance of the surprised look, throwing motion, and unlikely explanation as to the defendant’s activities.

Given the evidence presented, and after viewing all reasonable inferences from that evidence in a light most favorable to the State, the State presented competent, substantial evidence sufficient to support the jury’s factual finding that the defendant was guilty of possession of crack cocaine. We would be required to reach this conclusion even if this were wholly a circumstantial evidence case because we find the State presented competent evidence from which the jury could exclude the defendant’s reasonable hypothesis of innocence. Accordingly, we reverse the order granting judgment of acquittal and remand with directions to reinstate the jury’s verdict.

REVERSED and REMANDED with directions.

ALLEN, J., concurs; BENTON, J., dissents.

      . Testimony by the FDLE analyst provided direct evidence concerning the illicit nature of the substance, identifying it as cocaine. The State was not solely relying upon circumstantial evidence because establishing the substance was cocaine was the second element of the crime charged.