author: FARMER, J.

text:
    James BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-853.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied June 28, 2006.

      David G. Vinikoor, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In this appeal from a conviction on three counts of sexual battery on a child, of indecent assault, and of inducing a sexual performance by a child, defendant raises a number of issues. We focus on his contention of error in the State’s amendment of the charging document at trial and his contentions of improprieties in the admission of testimony by the child and a former co-defendant. On the merits, we find no error in the amendment of the charging document. But we do find prejudicial error in the State’s failure to advise defendant timely that the child intended at trial to recant her pretrial deposition testimony as perjured, and also in the admission of testimony of a co-defendant without allowing the defense a reasonable opportunity to depose her. For these reasons we reverse for a new trial.

I. Trial Amendment of Charging Document

In the State’s initial four-count Information, the charges were all described as having occurred between January 1 and November 18, 1998. The State filed a nolle prosequi of that Information in April 1999. It then filed a new charging document, which it designated as a “Refile Information,” adding the sexual performance charge. The Refile Information covered the same time span as the original Information, namely from January 1 to November 18, 1998. Defendant pleaded not guilty and demanded a bill of particulars. In response the State specifically reduced the time span of the charges to the period from June 1 to October 6, 1998. The original time span was thus shrunk from ten and one-half months to slightly over four months.

Later, the State filed a third charging document, which it called an “Amended Information.” Although the Amended Information included the same counts as the Refile Information, it now formally alleged that the offenses occurred during the reduced period from June to October. This Amended Information newly added a co-defendant to the same charges. Shortly afterwards, the co-defendant entered into a plea agreement with the State which included a cooperation provision relating to the prosecution of defendant.

After the case had been pending for four years, defendant filed a demand for speedy trial in October 2002, and trial was set to begin December 9th. Immediately before jury selection began, the trial judge asked the State to specify which of the three charging documents would be tried. The prosecutor specified the Refile Information. Defense counsel objected, saying that the Refile Information had been rendered void by reason of the State’s subsequent Amended Information. The State insisted, however, that it would proceed on the Refile Information, arguing that the Amended Information significantly reduced the time span of the alleged offenses, as previously stated in its Bill of Particulars, and therefore made no substantive change to defendant’s detriment. Defendant renewed his objection. The State again made clear that the charging document under which it was proceeding at trial was the Refile Information. The trial judge agreed to allow the State to proceed on the Refile Information as modified by the Bill of Particulars.

Defendant argues that the State’s return to the Refile Information at the beginning of trial effected a substantive change in the charges on trial to his prejudice. Yet in trying the case under the Refile Information as modified by the Bill of Particulars, the State stayed within the reduced time period. None of the evidence at trial strayed from the narrower period of June 1st to October 6th. By returning to the Refile Information as the operative charging document, the State did not thereby attempt to convict defendant of acts committed during the original time span of ten and one-half months and which were outside the reduced time span. In short, the acts for which he was tried and convicted were limited to the shorter time span of the Bill of Particulars and the Amended Information. This claimed error thus amounts to little more than a procedural irregularity.

Defendant argues that he should be discharged because the Refile Information was null and void and bases this outcome on statements in State v. Anderson, 537 So.2d 1373 (Fla.1989). The specific statements on which he relies are:

“It is well settled that the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information. It is also clear ... that jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state.”

537 So.2d at 1374. Defendant contends that the Amended Information superseded the Refile Information. He argues that the State effectively renounced the Amended Information at trial and instead sought to try the case on a charging document, the Refile Information, that had been rendered null and void. By disclaiming the last filed charging document, he asserts, the State left itself without a valid charging document on which to try the case.

We think he has read too much into the above quotation from Anderson and fails to give proper effect to its result. The circumstances underlying Anderson have a strong similarity with this case. On the day before trial began in Anderson, the State filed an amended information charging defendant with first-degree burglary, instead of the second-degree burglary charged in the initial information. Nevertheless on the day of trial the prosecutor agreed with the defendant that trial would proceed on the original charge rather than the amended one. In securing the defendant’s consent to that change, the trial judge explained that:

“You have the right to require the State to refile the original charge and to proceed on that. In other words, to in effect nol-pros the amended charge and refile the original charge. You could raise that as a defense or attack it on appeal if you were to be convicted on the original charge, do you understand that?”

537 So.2d at 1374. With the defendant’s consent the trial proceeded on the original information. On appeal this court held that the filing of the amended information superseded the original charge, which then became null and void, as defendant argues in the present case. We also held that defendant’s consent was ineffective because the absence of any valid charging document stripped the trial court of jurisdiction to proceed.

In disagreeing with our analysis, the Anderson court explained:

“the district court apparently overlooked Lackos v. State, 339 So.2d 217 (Fla.1976), where we accepted jurisdiction ... because of conflict with [Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (1946), and Sipos v. State, 90 So.2d 113 (Fla.1956) ]. In [Lachos ] during trial and over the objection of the defendant, the state was permitted to substantively amend the information by correcting the name of the owner from which the property had been allegedly stolen. Revisiting Alvarez and Sipos, we concluded that Florida Rule of Criminal Procedure 3.140(o), first adopted in 1967 and not addressed by Alvarez and Sipos, governed the resolution of such amendments, and, further:
We are persuaded by the reasoning articulated by Judge Grimes, writing for the District Court in the instant case:
‘The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial. Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. Appellant received a fair trial.’
Lackos, 339 So.2d at 219. Accordingly, ‘to the extent that Alvarez and Sipos conflict with principles enunciated herein they are expressly overruled.’ Id.
Alvarez and Sipos represent a highly formalistic approach requiring that amendments to informations be resworn and refiled by the prosecutor even if the amendments do not violate due process (notice) or otherwise prejudice the defendant. By overruling Alvarez and Si- pos, Lachos signaled the adoption of a due process standard and the abandonment of the highly technical and formalistic requirement that every amendment be reswom and refiled. Lachos stands for the proposition that the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant. This proposition is even more relevant when, as here, the amendment occurs prior to trial. Respondent does not argue, and the district court did not find, that he suffered any prejudice from being tried as originally charged.” [e.s.]

Anderson, 537 So.2d at 1375. The court went on to state that “the original information was vitiated by the filing of an amended information.... ” 537 So.2d at 1375-76. The court plainly held that “[t]he fact that the amended information was subsequently orally amended did not have the effect of divesting the court of jurisdiction.” 537 So.2d at 1376.

Defendant’s argument in support of discharge is premised on the same “highly technical and formalistic requirement that every amendment be resworn and refiled.” 537 So.2d at 1375. The state’s action at the beginning of trial to return to the Refile Information was identical to the circumstances in Anderson, an oral amendment of the charging document to return to a previous charging document that had been vitiated by an amendment. If the state may substantively amend an information during trial with the court’s permission (per Anderson), then surely the state may make a purely procedural modification that does not change the charges on trial in any way. See also State v. Clements, 903 So.2d 919 (Fla.2005) (state needed trial court’s permission to amend information in middle of trial, which could not become effective without a determination that the amendment would not prejudice the defendant’s substantial rights). Here the trial judge expressly allowed the State to proceed on the earlier charging document. The trial court’s decision was based on the fact that allowing the change would not prejudice defendant in any conceivable way. What the state did was simply a technical alteration not affecting the charges or proof to be offered. We find no error in proceeding on the charge actually used at trial.

II. Recantation of Deposition Testimony of Child Witness

The child gave a pretrial deposition nearly a year before trial began. In it she testified to facts that even if believed by the jury would not have supported a conviction for capital sexual battery. Then at trial she testified to different facts that if believed would support a conviction for two counts of capital sexual battery. She explained her change by saying that she was little when she gave the deposition testimony, and that she was embarrassed because her mother was at the deposition.

The record supports defendant’s contention that the State learned of her planned change in testimony during the week before trial began. After jury selection during a hearing on pending pretrial motions, the State hinted at changed testimony of the child but failed to advise defense counsel of the change or its substance. The State clearly did not notify defendant that the child would effectually admit to perjury at the deposition. Defense counsel learned for the first time during cross-examination of the child at trial that she was now taking the position that her deposition testimony was knowingly false. Under these circumstances, defendant argues that it was an abuse of discretion not to grant a mistrial because of the State’s conduct.

These facts are uncommonly like the circumstances in a very recent decision of the supreme court involving this identical issue. In Scipio v. State, 928 So.2d 1138 (Fla. 2006), on the opening day of trial the defense attorney reconfirmed pretrial testimony with an investigator from the medical examiner’s office that he had seen a weapon underneath the body of the decedent, a fact that would have suggested reasonable doubts about defendant’s guilt. After their conversation, the prosecutor asked the same witness to go back to the prosecutor’s office and look at a photograph. They did so, and the witness thereupon advised the prosecutor that he would change his deposition testimony as a result. The prosecutor did not immediately notify defendant. The trial court denied a motion for mistrial, which the district court affirmed on harmless error grounds.

The supreme court held that the State had an obligation under the rule to disclose any material change in the investigator’s statement. See Fla. R.Crim. P. 3.220Q). The supreme court emphasized that the district courts have found discovery violations when “a witness’s subsequent statement to the State materially alters an existing written or recorded statement provided by the State to the defense.” 2006 WL 345025 at *4, 928 So.2d at 1143. The court noted that it had itself “consistently held that ‘Florida’s criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact-finding process.’ ” 2006 WL 345025 at *5, 928 So.2d at 1144 (quoting Kilpatrick v. State, 376 So.2d 386, 388 (Fla.1979)). Criminal discovery is designed, the court said, to prevent surprise by both sides in a criminal trial and to facilitate a “truthful fact-finding process.” 2006 WL 345025 at *5, 928 So.2d at 1144. The chief purpose of such discovery is to prevent “trial by ambush.” Id. This policy requires disclosure of a reversal of pri- or testimony in discovery. Id. The court quoted with obvious approval the observation of this very court that “ ‘[a] party can hardly prepare for [testimony] that it doesn’t know about, much less one that is a complete reversal of the opinion it has been provided.’ ” Id. (quoting Office Depot, Inc. v. Miller, 584 So.2d 587, 590 (Fla. 4th DCA 1991)). The supreme court made clear:

“Of course, the policy of avoiding trial by ambush or surprise has even greater application in the criminal context, where the stakes are much higher and the obligation of the State to see that justice is done is much greater than that of the private litigants in a civil dispute. Indeed, the United States Supreme Court long ago made clear:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore - is not that it shall win a case, but that justice shall be done-- He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). These words seem especially appropriate to the circumstances before us today.” [f.o.]

2006 WL 345025 at *6, 928 So.2d at 1145. Finally in its holding the court said:

“The State’s calculated failure to inform the defense of the important and dramatic change in testimony of its medical examiner’s investigator not only violated the prosecutor’s duty not to strike ‘foul’ blows, but undermined the very purpose of the discovery rules as set out by this Court ... since the State was fully aware that the defense intended to rely heavily on the testimony of the State’s investigator and would be completely surprised by the witness’s changed testimony at trial.”

Id.

We are unable to distinguish the State’s conduct in the present case from Scipio. Indeed, the State’s non-disclosure is even more calculated here because the record supports defendant’s contention that the State knew of the child’s recantation at least several days before trial began. For example during argument on defendant’s motion to exclude an ex parte statement of the victim given years before the deposition testimony, the State openly argued that differences between the statement and the deposition did not point against reliability of the statement because the child was “horrified” at the deposition by the attendance of her mother. The State very well knew from the many pretrial proceedings in this case that a principal contention of the defense at trial was that defendant could be found guilty at most of the lesser crimes of lewd and lascivious conduct because the deposition testimony of the child would not support a finding of guilt for capital sexual battery.

Given these circumstances, it is not possible for us to find the denial of a mistrial harmless error. The difference between the child testifying at trial as she did in her deposition and testifying to facts supporting capital sexual battery patently had an adverse effect on defendant. As defense counsel aptly argued to the trial judge:

“Essentially ... I picked a jury without knowing what the evidence is.... I picked a jury without knowing that the child had perjured herself in the one and only deposition that I took of her when she testified at deposition [some nine months earlier]. I picked a jury with little more knowledge than I would have if the defendant had been arrested yesterday.”

Applying the principles and analysis of Scipio, we conclude that the trial court abused its discretion in denying defendant’s motion for a mistrial based on the failure of the State to disclose this highly significant change in testimony.

III. Surprise Testimony of Previous Co-Defendant

We turn now to defendant’s issue of a discovery violation regarding the testimony of Tina Oakley, also charged in the Refile Information. She was the victim’s babysitter and an eyewitness to events on trial. In her plea agreement, she committed herself to testifying at trial. From the time she was charged, nearly four years before the trial was held, she had refused to submit to a deposition by defendant. Just a few days before trial began, she had been held in contempt for refusing to give a deposition and still refused to do so. When the jury was selected and at the time of opening statements, she was not a potential witness. Defense counsel accordingly told the jury in his opening statement that the only witness to the events would be the alleged victim.

The record is filled with defendant’s persistent but unavailing attempts to take her deposition. He had subpoenaed her on three different times for deposition. Her attorney insisted that further attempts to subpoena her be withheld until this court had ruled on her appeal. At one point nearly a year and a half before trial, her attorney asserted that even though she had entered a plea and given a statement to the State, she had not been given immunity, and that her statement was inaccurate. For that reason, she was now asserting her Fifth Amendment right to silence and would refuse to submit to a deposition. Thereafter, she repeatedly refused to do so.

Nevertheless, defendant continued his efforts to take her deposition right up to the day trial began. A few days before trial, the State advised defense counsel that she would now submit to the deposition. Defendant immediately made arrangements for the deposition, but once again she refused to testify. The State quickly moved for an order compelling her testimony. The trial judge ordered her to do so under pain of contempt, and still she refused to testify the following day, which was just four days before jury selection began. The trial judge warned her that her persistent refusal was a violation of her plea agreement and that a harsher sentence could be imposed on her for her refusal, that any sentence for contempt could significantly delay her release from prison. Still she refused. The judge found her in contempt and sentenced her to six months in jail, subject to purge for compliance. Still she refused. This was just two days before jury selection began. In opening statement, defense counsel told the jury they would not hear testimony about the events from anyone except the alleged victim.

In spite of everything that had happened, during the presentation of its casein-chief the State suddenly and unexpectedly called her to testify. Defendant promptly and vigorously objected, recalling all of this history. If the court would not entirely exclude her from testifying, counsel prayed that the court would at a minimum continue the trial for at least a week to allow him to take her deposition and prepare a new defense strategy. The trial judge’s response was to allow a deposition if defense counsel “could do so before 12:30.” It was then already 11:45.

As the foregoing account amply demonstrates, the Record does not support the court’s reasons for denying defendant’s mid-trial motion to exclude the testimony of Oakley. He did not have ample opportunity to take a pretrial discovery deposition of the witness. Every attempt was rebuffed by the witness, even after she had been held in contempt. The trial court’s order to take a discovery deposition during trial failed to address the effect of Oakley’s testimony after defense counsel had already told the jury in the opening statement that she would not testify.

Even if the court might properly have allowed the co-defendant to testify at trial, it was also manifest error to do so without allowing defense counsel a reasonable continuance of the trial. It is a false conflict to say that the alternative here was whether the truth would be kept from the jury without her testimony. As defense counsel pointed out when the issue arose, if this witness were now suddenly to testify he would need considerable time to prepare for a deposition of this witness. And he would need additional time to prepare a new strategy, for the dynamic of the trial was radically altered by her appearance and testimony. It is fundamental that defendants be allowed an adequate opportunity to investigate witnesses and prepare applicable defense strategies. Cook v. State, 595 So.2d 994, 996 (Fla. 3d DCA 1992). When the State is allowed to produce witnesses at trial who constitute a considerable surprise to defendant, the defense should be afforded a reasonable continuance to take discovery depositions of such witnesses. Smith v. State, 578 So.2d 366, 367 (Fla. 3d DCA 1991).

The State argues that any error in this regard is harmless. The harmless error standard used to assess the State’s discovery violation does not focus on whether the discovery violation would have made a difference in the verdict. Rather, the inquiry is whether there is a reasonable possibility that the discovery violation materially hindered defendant’s trial preparation or strategy and, only if the appellate court can determine beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation, can the error be deemed harmless. Scipio, 2006 WL 345025 at *8, 928 So.2d at 1147. In short, the test is not whether the verdict would have been different but whether defendant was prejudiced in trial preparation. Id. The details of defendant’s attempts to take her deposition before trial make clear the adverse effect that this surprise testimony had on pretrial preparations of the accused.

The importance and effect of her testimony cannot be minimized. Her testimony supported the child witness’s testimony and added significant aspects. It is impossible to find beyond a reasonable doubt that her testimony had no effect on the jury prejudicial to defendant. Goodwin v. State, 751 So.2d 537, 540 (Fla.1999) (harmless error analysis requires appellate courts to first consider nature of error and then any effect error had on triers of fact). We find no alternative to the conclusion that the trial judge abused his discretion in failing to grant defendant’s motion. He is entitled to a new trial.

Reversed.

GUNTHER and TAYLOR, JJ., concur.

      . He also argues that the court improperly admitted testimony and 20-year old photographs relating to conduct in Ohio; that the trial court abused its discretion in refusing to strike two jurors for cause; that the court should not have allowed a taped statement to be available to the jury during deliberations; and that there was error in the verdict form which led to an Apprendi violation. These issues are moot in light of our reversal.

      . The first Information did not include the charge of sexual performance.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jimmie Dwight GREEN, Petitioner, v. FLORIDA PAROLE COMMISSION and James R. McDonough, Secretary, Florida Department of Corrections, Respondents.
    No. 1D05-2707.
    District Court of Appeal of Florida, First District.
    May 25, 2006.
    Jimmie Dwight Green, pro se, Petitioner.

      Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee; Louis A. Vargas, General Counsel, and Connie Lynn Beach, Assistant General Counsel, Florida Department of Corrections; Kim Fluharty, General Counsel, and Bradley R. Bishchoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner filed a petition for writ of certiorari with this court alleging that the circuit court departed from the essential requirements of law when it denied his petition for writ of mandamus. The petition for writ of mandamus alleged, in part, that the Florida Parole Commission failed to consider petitioner’s entire official inmate file in making its decision to suspend petitioner’s presumptive parole release date. After the circuit court denied this petition, petitioner filed his petition for writ of certiorari with this court, arguing that the circuit court failed to review those portions of petitioner’s file that are relevant and material to the reasons cited in the Commission’s order and the issues presented in the petition for mandamus, pursuant to Williams v. Florida Parole Commission, 625 So.2d 926 (Fla. 1st DCA 1993).

Because we agree that the Commission failed to provide material portions of the complete official file to the circuit court that reviewed petitioner’s writ of mandamus, we grant the petition for writ of certiorari and quash the order below. Id. We remand for the Florida Parole Commission to supplement its response to the petition for writ of mandamus with all relevant and material documents in the Petitioner’s complete official file and for the circuit court to reconsider petitioner’s request for mandamus relief.

PETITION GRANTED; CAUSE REMANDED.

BENTON and POLSTON, JJ., concur; THOMAS, J., concurs in result only.


author: BENTON, J.

text:
    Elizabeth OLMO, Appellant, v. REHABCARE STARMED/SRS, Appellees.
    No. 1D05-4393.
    District Court of Appeal of Florida, First District.
    May 31, 2006.

      Donald J. Magee, Esquire of the Law Offices of Attridge, Cohen & Lucas, P.A., New Port Richey, for Appellant.
    A. Dawn Hayes, Esquire of A. Dawn Hayes & Associates, P.A., Tampa, for Ap-pellees.
   BENTON, J.

Elizabeth Olmo appeals the denial of her petition for permanent total workers’ compensation disability benefits. We agree with her contention that her claim for such benefits was not res judicata, reverse the order dismissing her claim on that basis, and remand for determination of the claim on the merits.

I.

The order under review addresses the interplay between two important principles. The first, designed to discourage “piecemeal litigation,” has been stated this way: “A workers’ compensation claimant is barred by the doctrine of res judicata from raising a claim that he was entitled to a benefit, where he could have but failed to litigate the issue of his right to that benefit in prior proceedings.” Scotty’s Hardware, Inc. v. Northcutt, 883 So.2d 859, 860-61 (Fla. 1st DCA 2004). The second, designed to avoid decisions about a. claimant’s “permanent” status before the picture is clear, was recently stated this way:

[W]e have consistently held that a claim for impairment or permanent disability benefits made before a claimant has reached MMI[] or received 98 weeks of temporary benefits is premature. See, e.g., G. Pierce Woods Mem’l Hosp. v. Lewis, 879 So.2d 643, 644 (Fla. 1st DCA 2004) (finding claim for PTD premature absent a showing of MMI or applicable “exception to the MMI requirement”); Metro. Title & Guar. Co. v. Muniz, 806 So.2d 637, 637 (Fla. 1st DCA 2002) (“Until an impairment rating is assigned, based on the claimant’s present or expected date of maximum medical improvement, he is not entitled to permanent disability benefits.”); Okeechobee Health Care v. Collins, 726 So.2d 775, 777 n. [4] (Fla. 1st DCA 1998) (“Until maximum medical improvement or until the expiration of all temporary benefits is imminent, assigning [an impairment] rating serves no purpose under the statute.”).

Cooper v. Buddy Freddy’s Rest., 889 So.2d 125, 126 (Fla. 1st DCA 2004). Here, Ms. Olmo sought authorization for back surgery by filing a petition after her entitlement to temporary disability benefits had expired. Because she did not simultaneously request and litigate entitlement to permanent total disability benefits, the judge of compensation claims later ruled she could not raise the claim separately. Explaining this ruling, the order under review states that “a claim for [permanent total disability benefits] might have been found to have been premature at the previous hearing; however, there was no impediment to bringing it then.”

II.

Ms. Olmo was at work for Rehabcare Starmed (Rehabcare) as a certified nurse’s assistant on May 29, 2001, when she injured her back while assisting a patient. As a consequence, Rehabcare and its insurance carrier, Specialty Risk Services, Inc. (SRS), began paying temporary disability benefits, after which they paid approximately six months of permanent impairment benefits. Rehabcare and SRS authorized care by several doctors, including Paul Zak, an orthopedic surgeon. In April of 2002, Dr. Zak recommended a lumbar discectomy and fusion at the L5-S1 level, but Rehabcare and SRS refused to authorize the surgery.

When Ms. Olmo filed a petition for benefits in February of 2004, requesting “temporary total or temporary partial disability (TTD/TPD) benefits from August 19, 2003, an [independent medical examination] and authorization of the surgery recommended by Dr. Zak,” Rehabcare and SRS responded that 104 weeks of temporary benefits had already been paid, that an independent medical examination was being scheduled, and that surgery would not be authorized because they attributed the need for surgery to the claimant’s preexisting condition, not to her industrial accident. By the time of the hearing on December 7, 2004, the only issue remaining to be tried was whether the back surgery Dr. Zak had recommended would be authorized. On December 14, 2004, the judge of compensation claims ruled against Rehabcare and SRS on this issue, requiring them to authorize the back surgery. Dr. Zak performed the surgery on June 13, 2005.

Meanwhile, on February 20, 2005, after her surgery had been authorized but before the surgery took place, Ms. Olmo filed another petition for benefits (the second petition), seeking permanent total disability benefits from June 1, 2003, and continuing. By this time, she was no longer eligible for any temporary indemnity benefits: She had been paid temporary total disability benefits from the date of her accident until 104 weeks expired on May 30, 2003; and permanent impairment benefits from June 1, 2003 until December 1, 2003.

When the second petition came on for hearing on August 5, 2005, the parties stipulated that Ms. Olmo had not by then reached maximum medical improvement; but that, when she did reach maximum medical improvement, she would have a permanent impairment. Rehabcare and SRS argued, however, that the claim for permanent total disability benefits was barred by the doctrine of res judicata because Ms. Olmo had not made the claim at or before the hearing to determine whether back surgery would be authorized. The judge of compensation claims eventually accepted this contention, rejecting Ms. Olmo’s counter argument that the claim was not ripe on December 7, 2004, when that hearing took place, because she did not then know if surgery would be authorized or, if so, whether it would leave her permanently totally disabled. But before ruling against her on the basis of res judicata, the judge of compensation claims afforded Ms. Olmo an opportunity to make an evidentiary showing of entitlement to permanent total disability benefits.

III.

Once a workers’ compensation claim has been litigated and decided, the determination stands, absent “a change in condition or ... a mistake in a determination of faet[.]” § 440.28, Fla. Stat. (2001). See Starkman v. Bechtel Power Corp., 588 So.2d 304, 305 (Fla. 1st DCA 1991) (refusing to consider whether a judge of compensation claims had applied an incorrect legal standard in originally deciding the case because “claimant had not undergone a substantial change of condition”). Even a claim the parties have never litigated and the judge of compensation claims has never considered can be foreclosed:

If a merits hearing occurs and mature claims are not litigated, the claims are considered waived, and later litigation is precluded by application of the doctrine of res judicata. E.g., Artigas v. Winn Dixie Stores, Inc., 622 So.2d 1346 (Fla. 1st DCA 1993); Department of Transportation v. Greene, 599 So.2d 1368 (Fla. 1st DCA 1992); Florida Power & Light Co. v. Haycraft, 421 So.2d 674 (Fla. 1st DCA 1982).

Boynton Landscape v. Dickinson, 752 So.2d 1236, 1237 (Fla. 1st DCA 2000). “The piecemeal litigation of claims after maturity is not permitted. Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982).” Fla. Power & Light Co. v. Haycraft, 421 So.2d 674, 675 (Fla. 1st DCA 1982). “Claims for compensation benefits should be determined at a hearing if they are mature and only the determination of immature claims should be postponed....” Id. Where a ripe claim is held in reserve instead of being pursued along with another claim litigated in the same case, the reserved claim cannot be litigated later separately.

IV.

On the other hand, a claim for permanent total disability benefits cannot succeed if the claim is not yet ripe for consideration. See Brantley v. Allen, 538 So.2d 1338, 1339 (Fla. 1st DCA 1989) (explaining “immature claims should be postponed until they are ripe for hearing”). Before January 1, 1994, no claim for permanent total disability benefits was ripe for adjudication until the claimant reached maximum medical improvement, “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 97 (Fla. 1st DCA 1998) (quotation omitted). See also § 440.15(2)-(3), Fla. Stat. (1993) (allowing temporary benefits for up to 260 weeks, and precluding permanent benefits before the date of maximum medical improvement).

Amendments to the Workers’ Compensation Act effective January 1, 1994, limit temporary benefits to 104 weeks, see Okeechobee Health Care v. Collins, 726 So.2d 775, 776-77 (Fla. 1st DCA 1998), but provide that a permanently injured claimant can begin receiving permanent impairment benefits upon the expiration of 104 weeks, even if maximum medical improvement has not been attained. See Ch. 93-115, § 20, at 120, 128, Laws of Fla. (amending § 440.15(2), (4), Fla. Stat. (1993)). Unless the date of maximum medical improvement has already been reached, the injured employee’s condition is to be evaluated six weeks before temporary benefits expire, so that an impairment rating can be assigned. See § 440.15(3)(a)(4.), Fla. Stat. (2001). “Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker’s permanent impairment shall be determined.” § 440.15(2)(a), Fla. Stat. (2001). The amended statute contemplates an award of permanent impairment benefits once temporary disability benefits cease, even if maximum medical improvement has not been attained by then, but the amendments do not specify when a claim for permanent total disability benefits ripens.

Addressing this question in Oswald, we held that an injured employee could, under the amendments effective January 1, 1994, claim permanent total disability benefits even before reaching maximum medical improvement. 710 So.2d at 98. We “assume[d] for purposes of decision” that the claim Mr. Oswald asserted had become ripe and could be litigated after he had received temporary benefits for ninety-eight weeks, holding that he had the burden to “show not only total disability upon the cessation of temporary benefits but also that total disability will be ‘existing after the date of maximum medical improvement.’ ” Id. (quoting § 440.02(19), Fla. Stat. (Supp. 1994)). Where a claimant has not reached maximum medical improvement, however, and has no evidence that she will be totally disabled when she does reach maximum medical improvement, any claim for permanent total disability benefits is premature. See Rivendell of Ft. Walton v. Petway, 833 So.2d 292, 296 (Fla. 1st DCA 2002) (“[A]ny determination that Claimant is entitled to [permanent total disability] benefits now — before the effects of ... treatment and care are known — is premature.”).

V.

In the present case, the judge of compensation claims found that Ms. Olmo “might” have been able to claim permanent total disability benefits at or prior to the hearing on December 7, 2004, even though she did not, in fact, do so. No claim for permanent total disability benefits was actually litigated in December of 2004, and no reason was shown why Ms. Olmo was under any obligation to litigate a claim for permanent total disability benefits at that time. The parties stipulated that she had not yet reached maximum medical improvement in December of 2004 (or even by the time of the second hearing in August of 2005). The reason she sought the authorization for surgery at issue at the December 2004 hearing was to avoid or alleviate any permanent disability.

It was, therefore, error for the judge of compensation claims to bar the claim for permanent total disability benefits Ms. Olmo stated in her second petition. A claimant who has yet to attain maximum medical improvement is not required to file a claim for permanent total disability benefits before she is in a position to “show not only total disability upon the cessation of temporary benefits but also that total disability [would] be ‘existing after the date of maximum medical improvement.’ ” Oswald, 710 So.2d at 98. The claimant and her physicians are in the best position to know whether circumstances permit a prospective determination as to when she will be at maximum medical improvement and whether any then-existing impairment will be permanent and total.

In short, although she might have elected to do so — if she had been persuaded she could prove she was fated to be permanently totally disabled at maximum medical improvement — Ms. Olmo was not required to claim permanent tqtal disability benefits at or before the hearing held in December of 2004. The judge' of compensation claims erred in ruling that the claim for permanent total disability benefits later alleged in her second petition was res judicata. See Holder v. Keller Kitchen Cabinets, 610 So.2d 1264, 1267 (Fla.1992); Interim Pers. v. Hollis, 715 So.2d 355, 356 (Fla. 1st DCA 1998); Advanced Employment Concepts/ AIG Claim Servs., Inc. v. Resmondo, 718 So.2d 215, 215 (Fla. 1st DCA 1998). Her claim for permanent total disability benefits should be decided on the merits.

Reversed and remanded.

KAHN, C.J. and WOLF, J., concur.

      . MMI denotes maximum medical improvement. " 'Date of maximum medical improvement' means the daté after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” § 440.02(9), Fla. Stat. (2001).

      . Ultimately, the Oswald court found that the claimant failed to prove entitlement to permanent total disability benefits because he did not show that he would be totally disabled once he reached maximum medical improvement. 710 So.2d at 98.


text:
    James L. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3217.
    District Court of Appeal of Florida, First District.
    May 31, 2006.

      Bernard F. Daley, Jr. and Luke Newman of The Daley Law Office, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion the appellant raises five claims for post-conviction relief. Because two of the claims are facially sufficient and not conclusively refuted by record attachments, we reverse the trial court’s order denying these claims; the denial of the three remaining claims are affirmed without further comment.

The appellant alleges that his trial counsel was ineffective for misadvising him that a defense based on “reverse Williams rule” evidence would not be available to him. However, reverse Williams rule evidence would be admissible by a defendant where the “evidence tends in any way, even indirectly, to establish a reasonable doubt of the defendant’s guilt,” subject to the general principle of relevance applied to all other evidence. Rivera v. State, 561 So.2d 536, 539 (Fla.1990). Further, the appellant alleges that his trial counsel was ineffective for advising him that the state would be able to admit certain Williams rule evidence against him. The appellant alleges that the proposed evidence was a prior complaint against him of abuse which was investigated and resolved without any charges being filed. If, true, such evidence would not be admissible. See Audano v. State, 641 So.2d 1356, 1359 (Fla. 2d DCA 1994) (holding that it was error to admit evidence of a prior allegation of abuse where that allegation was investigated, it was previously concluded that the allegation was not credible, and no charges were filed). The appellant alleges that but for the alleged misadvice, he would not have entered into his plea agreement and would have elected to proceed to trial. While the trial court concluded that the appellant failed to meet his burden for alleging prejudice, in the case of an allegation of ineffective assistance of counsel arising in the context of a guilty plea, such an allegation is sufficient. Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002). Accordingly, the trial court’s summary denial of this claim was error.

The appellant’s fifth claim is a facially sufficient allegation that he is entitled to additional jail credit pursuant to Gethers v. State, 838 So.2d 504 (Fla.2003). Contrary to the trial court’s determination, jail credit claims are cognizable in motions filed pursuant to rule 3.850. See e.g. Mills v. State, 911 So.2d 850 (Fla. 1st DCA 2005). Therefore, because the trial court failed to attach record portions that refute the appellant’s facially sufficient claim for additional jail credit the denial of this claim was also error. Further, contrary to the state’s assertion, the record of the proceedings below do not evidence a clear and knowing waiver of entitlement to additional jail credit. Haines v. State, 851 So.2d 831, 832 (Fla. 1st DCA 2003); Reed v. State, 810 So.2d 1025, 1026-27 (Fla. 2d DCA 2002) (holding that the trial “court records must establish the defendant’s clear intent to waive a portion of his” accrued jail time in order to deny a facially sufficient motion for additional jail credit on the grounds of a waiver)

Accordingly, we reverse the trial court’s summary denial of the facially sufficient claims discussed herein and remand for either attachment of record portions refuting the appellant’s claims or an evidentiary hearing. See Fla. R.Crim. P. 3.850(d).

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, POLSTON, and HAWKES, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Abdul SHABAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5343.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    James C. Banks and Robert A. Morris of Banks & Morris, P.A., Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, Christine Ann Guard and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant directly challenges his sentence to three consecutive life terms arising out of his conviction on three counts of attempted first-degree murder. Appellant has not preserved this issue for direct appeal. “The failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [a defendant] from raising the error on direct appeal.” Brannon v. State, 850 So.2d 452, 456 (Fla.2003). Therefore, Appellant’s sentence is AFFIRMED.

BENTON, POLSTON and THOMAS, JJ., concur.


text:
    Nathan NDIFORAMANG, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Nacole S. ERVIN. Appellee.
    No. 1D06-1758.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Nathan Ndiforamang, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Fire & Cas. Ins. Co. v. Sealey, 810 So.2d 988 (Fla. 1st DCA 2002).

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellant, v. Michael Adam DUNN and Kathie Lynette Dunn, Individually and as co-personal representatives of the Estate of Michael Dylan Dunn, Deceased, Appellees.
    No. 1D06-1739.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee, for Appellant.
    Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville; and Alan E. McMichael of Stripling, McMichael & Stripling, P.A., Gainesville, for Appellees.
   PER CURIAM.

The petition for writ of certiorari is dismissed. See SSJ Mercy Health Sys., Inc. v. Posey, 756 So.2d 177, 179 (Fla. 4th DCA 2000). All pending motions are denied as moot.

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    D.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-771.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Nathan D. Clark, Miami; Victoria McFadyen, Key West, for appellant.
    Calianne P. Lantz, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

D.P. (“Mother”) appeals from an Order terminating her parental rights, arguing that the lower court abused its discretion in denying her request for an extension of the Case Plan. Although the child was in the system for approximately three years under a Case Plan originating from an incident involving the child’s father (“Father”), the evidence reflects that Mother was in substantial compliance with the Case Plan throughout. We reverse.

HISTORY OF CASE AND CASE PLAN(S)

The child was born on May 29, 2001, and came into the DCF system in July of 2001, following a domestic violence episode by Father against Mother. On November 29, 2001, DCF filed an initial Case Plan with the goal of maintaining and strengthening the family structure. As part of the initial Case Plan, both parents agreed not to have alcohol or illegal substances in the home, and Mother agreed that she would not be under the influence of alcohol or illegal substances while with her child, or allow any person to care for the child who is under the influence. Mother also agreed to submit to random drug and alcohol testing, cooperate with monthly home visits by the DCF counselor and guardian ad litem, and follow the recommendations of a domestic abuse outreach program assessment.

During the course of the family’s presence in the DCF system, Mother substantially complied with all the DCF recommendations and requests as evidenced by the court Reviews and Guardian Ad Li-tem Reports. However, in September and October of 2003, Mother was involved in three separate alcohol-related incidents; at least one involved the presence of the child. As a result of these drinking episodes or incidents, the Child was removed from Mother and placed in DCF custody on September 21, 2003. On November 4, 2003, Mother was ordered to attend 90 NA/AA sessions, attend a substance abuse program and initiate a mental health assessment. At this point, Mother’s Case Plan remained the same.

The Case Plan was updated on February 3, 2004, with a primary goal toward reunification with the Mother. In this Case Plan, DCF recognized that Mother’s addictions and mental health needed to be defined, and it was necessary for her to participate in a treatment plan “to allow her to parent her child free of risk.” In this Case Plan, DCF set forth several tasks for Mother to complete, including: an outpatient treatment program; AA/NA meetings; remain sober; urinalysis two times per week; development of a written plan for relapse prevention; and a psychological evaluation. Mother substantially complied with this Case Plan.

In May 2004, Mother was involved in a domestic violence incident, involving the maternal grandmother. At this time, the Child was in DCF custody. Following the domestic violence incident, the Case Plan was amended, on June 24, 2004, with a goal to terminate parental rights under section 39.806(l)(e), of the Florida Statutes.

TESTIMONY AND EVIDENCE

At the termination hearing, DCF presented the testimony of the DCF investigators who worked the case at different points.

Helen Ochiltree, the DCF investigator who worked the case from April 2001 until March 2003, testified that Mother completed most of the services except a family treatment course, which Mother claimed she could not attend because of her work hours. Ms. Ochiltree recognized that Mother provided for child, and owns and maintains the house. She also testified that Mother’s urinalysis were always negative.

Rosemary Vukas, the DCF investigator who worked with the case from August 2003 until April 2004, testified that alcohol treatment was recommended following Mother’s arrest in October of 2003 for DUI, and Mother complied with the course.

Sandy Trosset, the DCF investigator who worked the case from April to July of 2004, testified that the goal for reunification and return remained on May 11, 2004, despite Mother’s DUI arrests; that a change in goal was recommended after the domestic violence incident involving the maternal grandmother because mother completed the substance abuse program in April and a month later, she relapsed. She recognized that the Child was in foster care at the time of the incident and that Mother was not offered any services following the domestic incident.

Mother presented evidence that she entered the AGAPE substance abuse residence center for domestic violence victims, on May 11, 2004. Liliana Marks, a therapy coordinator for AGAPE Family Ministries, testified that Mother attended domestic violence and parenting classes, completed the residential program, and was currently in the aftercare program.

Michelle Auguste, an AGAPE counselor, testified that Mother completed the coping skills, life management, domestic violence, parenting, addiction educational groups, life management, grief and loss programs, and relapse prevention sessions.

Suzanne Ferraro, the AGAPE case manager, testified that Mother was a walk in, who entered the program voluntarily.

Mother testified on her own behalf. She expressed remorse about the incident involving her Mother, and explained that the relapse occurred because the initial treatment did not address the core of the personal issues that cause the addiction. She testified that after entering AGAPE she has learned to understand and deal with life stressors and her life issues.

COURT’S FINDINGS/ORDER

The court found that it is in the best interest of the child that parental rights be terminated because of the parents’ inability to provide and care for the child. The court noted that domestic violence and substance abuse prevented the parents from providing a safe home for child; particularly, the court noted the domestic violence involving maternal grandmother. The court recognized Mother’s recent efforts but found them to be “too little too late” after noting that the family had been in the system for three years.

ANALYSIS

The standard of review on a termination of parental rights case is “highly deferential.” That is, “[a] finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.” N.L. v. Dept. of Children and Family Serv., 843 So.2d 996, 999 (Fla. 1st DCA 2003). Thus, this Court’s review is limited to the issues on appeal and the evidentiary support for, and correctness under the law of, the trial court’s order on the appellate issues. Id. at 999.

In the instant case, DCF sought termination of parental rights on the ground that Mother had a substance (alcohol) abuse problem; Mother failed to comply with the Case Plan in failing to report her alcohol-related arrests; and the fact that the Case Plan was in place for longer than the one year required under the statute. The trial court found that termination was proper because, among other things, Mother’s alcohol addiction affected her ability to care for the child, as evidenced by the domestic dispute involving the maternal grandmother. Although Mother indisputably had an alcohol abuse problem, the Record clearly reflects that the incident triggering termination in the instant case was the domestic incident involving the maternal grandmother.

To terminate parental rights on the ground of egregious conduct, “there must be a nexus between the conduct and the abuse, neglect, or specific harm to the child.” C.B. v. Dep’t of Children & Families, 874 So.2d 1246, 1254 (Fla. 4th DCA 2004); K.R. v. Dep’t of Children & Family Servs. (In re C.V.T., Jr.), 843 So.2d 366, 368 (Fla. 2d DCA 2003) (holding that the parent’s past drug use did not support a finding of egregious conduct “without connecting the drug use to any abuse, neglect, or specific harm to the child”).

In M.H. v. Dept. of Children and Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004), the First District noted that “a parent’s drug addiction, standing alone, is an insufficient ground upon which to terminate parental rights.” The Court in M.H. set forth the evidentiary requirements to justify termination of parental rights. First, the court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services. Second, DCF must establish that there is no reasonable basis to believe the parent will improve. Finally, DCF must establish that termination is the least restrictive means of protecting the child from serious harm. M.H., 866 So.2d at 222-23.

In the instant case, the only evidence of egregious conduct involving Mother occurred in September of 2003, when Mother was found intoxicated on the side of the road with the child in the car. At this juncture, DCF continued to maintain a goal toward reunification. In fact, following the September 2003 incidents, DCF updated Mother’s Case Plan, with a primary goal toward reunification. In this new Case Plan, DCF recognized that Mother’s addictions and mental health needed to be defined, and it was necessary for her to participate in a treatment plan “to allow her to parent her child free of risk.” Moreover, prior to, and following, these incidents, Mother had never engaged in any egregious conduct toward or involving the Child, and was in substantial compliance with the Case Plan. Following the alcohol-related incidents in September of 2003, additional services were recommended by DCF, which Mother substantially completed.

The goal toward termination in the instant case clearly emerged following the domestic incident involving Mother and the maternal grandmother. This incident did not involve the child; and, in fact, the child was not present. Moreover, it is undisputed that Mother voluntarily submitted to a residential substance abuse facility, which she was not previously offered, and at the time of trial had completed the program and was making progress in the aftercare program.

The court may have found that Mother’s actions were “too little, too late.” However, given the history of the case, and the circumstances under which the family came into the system, Mother was not given “three years of chances,” as DCF contends and the trial court found. In fact, Mother made great strides during the three years by leaving an abusive relationship, maintaining her job, completing all DCF tasks, and submitting to a residential treatment.

CONCLUSION

The Record does not support termination of Mother’s parental rights. Accordingly, the Order terminating Mother’s rights is reversed and the matter remanded to have the Case Plan extended and grant Mother an opportunity to regain reunification with the child.

      . DCF's Petition for Dependency alleged that the child "is presently under substantial risk or imminent threat of harm or abuse or neglect, within the meaning and intent of chapter 39, Florida Statutes, which is likely to cause the child's physical, mental or emotional health to be significantly impaired due to the [father’s domestic violence].''

      . At a February 19, 2002, review, the trial court found that Mother and Child had a strong bond and that Mother posed no risk to the child. The court found that the parents' domestic violence episodes always involved alcohol. As a result, Mother and Father were ordered to participate and comply with a substance abuse program and anger management course.
      An August 6, 2002, review reflects that Mother completed the substance abuse course on April 24, 2002, but not the anger management program. The Case Plan was again amended to require that Mother attend a six-week domestic violence program. Additionally, the court recognized that Mother's rigid work schedule is a factor in her inability to complete services.
      At a February 4, 2003, review, Mother was in partial compliance with the Case Plan. Mother had completed the anger management classes, was attending individual counseling, and tested negative for drugs. Mother also attended and completed the six-week domestic abuse program.
      At a May 8, 2003, review, Mother was in substantial compliance with the Case Plan.

      . The Guardian Ad Litem Reports also shed light into Mother's case history. The February 27, 2002, Report indicates that Mother was in substantial compliance with the Case Plan; that she was firmly commitment to sobriety; that she was reluctant to enter domestic violence program because her work schedule impeded attendance. Additionally, the Report indicates that child was thriving at home.
      The August 7, 2002, Report explains that the parents married, and that although Mother was in the beginning stage of⅛ compliance, domestic violence and alcohol remained an issue.
      The May 9, 2003, Report indicates that Mother was in compliance with the Case Plan; she completed domestic violence education and the parents were attending couple’s counseling. Additionally, the Report indicates that the child received positive attention from parents.
      By the November 11, 2003, Report, the child was out of the house. The Report explains that Mother was assessed for relapse prevention following a relapse after thirteen months of supervision. Mother completed an alcohol program assessment. The Report explains that child was unhappy when visits with Mother end, and she asked for her parents.
      The May 11, 2004, Report explains that the goal of the Case Plan changed from reunification to termination, and Mother’s unsupervised visitation was terminated. The Report indicates that the parents divorced, that Mother appeared to be in compliance, but then experienced episodes which demonstrate the power of her addiction. The Report indicates that none of the treatment or services worked because Mother’s drinking continues.
      The September 8, 2004, Report explains that the child's contact with Mother ceased on June 10, 2004, and that Mother entered AGAPE rehab services. The Report notes that Mother was given plenty of time to complete Casé Plan but failed to do so.

      . Mother was found intoxicated on the side of the road with the child in the vehicle.

      . Section 39.806(l)(e) provides:
      (e) A petition for termination of parental rights may also be filed when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child ..., constitutes evidence of continuing abuse, neglect, or abandonment....
      § 39.806(l)(e), Fla. Stat. (2005).


author: ROTHENBERG, Judge.

text:
    Nickulis GILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2340.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Bennett H. Brummer, Public Defender, and Dorothy F. Easley, Special Assistant Public 'Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

The defendant, Nickulis Gillis (“Gillis”), who was convicted of second degree murder with a firearm and armed robbery, appeals his convictions, alleging that he is entitled to a new trial based upon the trial court’s denial of his motions to suppress evidence and the trial court’s denial of his request to admit certain evidence. As we find no error regarding the complained-of rulings, we affirm.

THE IDENTIFICATIONS

We begin by addressing the defendant’s motion to suppress the identification testimony. A brief summary of the evidence is as follows. On July 25, 2002, at approximately 9:00 a.m., Daniel Martin was shot and killed at a gas station, where he stopped to obtain gas for his moped. Ashley Yuinigo, a sixteen-year-old passenger on Daniel’s moped, witnessed the shooting. She identified the defendant as the shooter, and testified that, when she saw the defendant at the station, she instantly recognized him. She explained that she had seen the defendant between seven and ten times during the two-month period preceding the shooting, in an area of Opa Locka commonly known as “the triangle,” and that, on each occasion, she was able to observe him for ten to fifteen minutes. Ms. Yuinigo also testified that the defendant approached Daniel, pulled out a gun, and demanded Daniel’s property. The next thing she heard was a shot, and then she saw Daniel fall to the pavement. When the detective showed her a picture of the defendant, she immediately identified him as the shooter and had no doubt regarding her identification.

Herman Thomas, who was cleaning inside the station prior to the shooting, testified that he initially saw the defendant outside. He explained that he knew the defendant because he saw him regularly (approximately once a week for the past year) at the station. When Mr. Thomas went outside and began cleaning the grounds surrounding the gas station, he heard loud voices. He recognized the defendant’s voice as the voice demanding the victim’s property, and then he heard a “bang.” Mr. Thomas immediately ran in the direction of the “bang,” and found Daniel on the ground, where he had fallen after being shot. He identified the shooter as “Nickulis Gillis,” and when shown his photograph by the police, he positively identified the defendant as the shooter.

The defendant claims that the trial court erred in denying his motions to suppress the identification evidence because the use of a single photograph, which was clearly identifiable as a “mug shot,” was impermissibly suggestive. While we agree, as did the trial court, that the procedure employed was unnecessarily suggestive, we conclude that, because there is no substantial likelihood of irreparable misidentification, the trial court did not err in denying the motion to suppress the identifications. See Fitzpatrick v. State, 900 So.2d 495, 517-18 (Fla.2005)(reaffirming the two-prong test for suppression of an out-of-court identification which requires a determination of “ ‘(1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all of the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.’ ”)(quoting Rimmer v. State, 825 So.2d 304, 316 (Fla.2002)). Pursuant to Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the following factors should be considered: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.

The trial court properly considered the factors articulated in Neil v. Biggers, and concluded that there was not a substantial likelihood that Ashley Yuinigo’s identification of the defendant was incorrect since (1) she had seen the defendant so many times in that general area prior to the shooting, (2) she was familiar with him, (3) she observed him in broad daylight under circumstances where her degree of attention was high, and (4) she was certain of her identification. Likewise, the trial court concluded that Henry Thomas’ identification of the defendant was even stronger and more reliable, as he had seen the defendant at least once a week for a year and had seen him several times during the day prior to the shooting. Mr. Thomas had also demonstrated that his attention was focused, as he was able to describe the clothing and shoes the defendant was wearing.

A trial court’s rulings on a motion to suppress are clothed with a presumption of correctness, Fitzpatrick, 900 So.2d at 513, and its findings of fact are not subject to reversal if supported by competent, substantial evidence, Williams v. State, 769 So.2d 404, 405 (Fla. 2d DCA 2000). In the instant case, as the trial court’s findings are supported by competent, substantial evidence, and the familiarity of the witnesses with the defendant constitutes an independent basis for identification, uninfluenced by an otherwise suggestive procedure, we affirm. See Fitzpatrick v. State, 900 So.2d 495 (Fla.2005)(finding that, while the use of a single photograph for identification was unduly suggestive, the witness had ample opportunity to closely observe the defendant, which served as an independent basis for identification, uninfluenced by the suggestive procedure); Rimmer v. State, 825 So.2d 304 (Fla.2002)(finding that the witness had an independent basis for identification based upon her ability to see and to accurately describe the defendant for approximately twenty minutes); Washington v. State, 653 So.2d 362 (Fla.1994)(finding that, while the use of a single photograph to obtain an identification was unduly suggestive, the witness’ familiarity with the defendant provided an independent basis for the identification, uninfluenced by the suggestive procedure).

THE DEFENDANT’S STATEMENT

The defendant asserts that the trial court erred in denying his motion to suppress his statement, based upon two claimed infirmities to the Miranda form used to advise him of his rights. The Miami-Dade Police Department used the following Miranda form to advise the defendant of his rights prior to obtaining the statement which was introduced at trial:

(a) You have the right to remain silent and you do not have to talk to me if you do not wish to do so. You do not have to answer any of my questions. Do you understand that right?
(b) Should you talk to me, anything which you might say may be introduced into evidence in court against you. Do you understand?
(c) If you want a lawyer to be present during questioning, at this time or anytime hereafter, you are entitled to have a lawyer present. Do you understand that right?
(d) If you cannot afford to pay for a lawyer, one will be provided for you at no cost if you want one. Do you understand that right? Knowing these rights are you willing to answer my questions without having a lawyer present?

The defendant claims that the form used was defective as it did not advise the defendant that he had the right to consult with an attorney prior to questioning, or that he had the right to terminate the interview at any time. Regarding the first claimed deficiency, the defendant recognizes that the issue has previously been raised and decided contrary to his position. See Chavez v. State, 832 So.2d 730, 750 (Fla.2002); Johnson v. State, 750 So.2d 22, 25 (Fla.1999)(expressly rejecting as error the failure of Metro-Dade Police Department warning form to inform an accused of the right to counsel prior to questioning)(citing Cooper, v. State, 638 So.2d 200, 201 (Fla. 3d DCA 1994)). Thus, we conclude that the form used by the Miami-Dade Police Department, which advises the accused that he/she has the right to an attorney during questioning and any time thereafter, and, which tracks the language of Miranda, is sufficient.

The defendant also claims that, because he was not advised that he could terminate the questioning at any time, his statement should be suppressed. In support of this position, the defendant relies on Ripley v. State, 898 So.2d 1078, 1079 (Fla. 4th DCA 2005); West v. State, 876 So.2d 614 (Fla. 4th DCA 2004), review denied, 892 So.2d 1014 (Fla.2005); Franklin v. State, 876 So.2d 607 (Fla. 4th DCA 2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 890, 160 L.Ed.2d 825 (2005); and Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), review denied, 892 So.2d 1014 (Fla.2005). We note that in Ripley and West, the Fourth District concluded that the Miranda form used by the Broward Sheriffs Office was defective for failing to inform a suspect that he could stop questioning at any time, but that the Fourth District did not specifically address this issue in Franklin and Roberts. We, however, take a very different view than does the Fourth District, and we conclude that, because the Miranda form used informs the accused that he/she does not have to answer any questions posed by the officer, implicit in this warning is the fact that the accused may invoke his right to remain silent at any time during the interrogation or to terminate further questioning during the interrogation. Thus, we reject the defendant’s argument to the contrary, and conclude that the Miranda form used properly advised the defendant of his rights, and that when he gave his statement to law enforcement, he did so after a clear understanding and waiver of his Fifth Amendment rights.

ADMISSION OF THE DEFENDANTS SHOES OVER HIS OBJECTION

The defendant claims that the trial court erred in denying his motion to suppress evidence regarding a pair of red hightop sneakers seized from his jail cell, which was identified by Mr. Thomas as the sneakers worn by the robber who murdered Daniel Martin. Mr. Thomas described the clothing of the gunman and specifically described the shoes the gunman was wearing as red hightop sneakers. Based upon this description, the State attempted to ascertain whether the defendant, who had been arrested and was being detained in the Miami-Dade County Jail, was in possession of the shoes described by the witness. A property room supervisor confirmed that the defendant had not received any footwear from any source after he was booked into the jail, and thereafter, a correctional officer checked the defendant’s cell and observed a red pair of sneakers sitting under the defendant’s bunk. Based upon this information, the State obtained a search warrant, seized the sneakers, and introduced them at trial after they were positively identified by Mr. Thomas.

The defendant argues that the search of his cell by a correctional officer upon the request by the State, prior to obtaining a warrant, violated his right to privacy and his Fourth Amendment right against a warrantless search absent exigent circumstances. We disagree. A public jail cell does not share the same privacy as an individual’s home, car, office, or motel room. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); State v. Smith, 641 So.2d 849 (Fla.1994). This is especially true regarding an arres-tee’s clothing and the personal effects found on his/her person at the time of his/her arrest. United States v. Chadwick, 433 U.S. 1, 14 n. 10, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Edwards, 415 U.S. 800, 806, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974)(“When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered.”); United States v. Caruso, 358 F.2d 184 (2nd Cir.)(holding that, once the accused is lawfully arrested and in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may be lawfully searched and seized without a warrant, even when a substantial period of time has elapsed between the arrest and processing and the seizure of the property, regardless of whether the property is found in. the arres-tee’s cell or held under the arrestee’s name in the property room), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); State v. Mejia, 579 So.2d 766, 767 (Fla. 3d DCA 1991)(“Once the defendant is in custody, the items that were on his person at the time of his arrest may lawfully be searched and seized without a warrant....”).

Affirmed.

      . The shoes Mr. Thomas described the defendant as wearing when the defendant shot Daniel, were subsequently seized pursuant to the execution of a search warrant in the jail cell where the defendant was being held pretrial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Robert CHANCY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-932.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Robert Chancy, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY and WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Benitez v. State, 667 So.2d 476 (Fla. 3d DCA 1996).


author: SHEPHERD, J.

text:
    M. Juliette ALDANA-CHILES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMM’N, et al., Appellee.
    No. 3D05-1441.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    M. Juliette Aldana-Chiles, in proper person.
    Louis A. Gutierrez, Tallahassee, for ap-pellee, Commission.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   SHEPHERD, J.

Juliette Aldana-Chiles (Chiles) appeals the Unemployment Appeals Commission’s (UAC) May 19, 2005 order, finding she is disqualified from receipt of benefits. We reverse.

For sixteen years from 1989 through October 29, 2004, Chiles worked for Behavioral Science Research Corporation (BSRC), a small market research firm located in Miami-Dade County. During these years, her status, responsibilities, and hours varied widely depending on her personal needs and the needs and economic ability of her employer to retain and pay her. By the time she left, BSRC had grown and stabilized considerably from the time Chiles came aboard in 1989 due in no small part to their mutual efforts.

The record reflects Chiles began as an hourly employee of BSRC, working on an as-needed basis and being paid for the hours she worked. In 1995, she was brought on as a full-time employee. In February 1996, she was promoted to Director of Field Services, and in September 1996, she acquiesced to the addition of the duties of office manager to her responsibilities. By 1998, working these dual positions became too much for her, and she negotiated with her employer and supervisor, Robert Ladner, to scale back her responsibilities. In March 2001, Chiles requested and was granted medical leave, again because of stress-related problems. This was preceded by an agreed plan whereby she worked part time to see if such an arrangement would be mutually beneficial. In October, 2001, Chiles ended her medical leave and returned to work full time.

At the end of August 2003, Chiles again requested to work part time, this time because of lack of work and, as had happened in the past, the inability of Ladner to timely pay her. In September, Chiles took a three-week vacation with Ladner’s consent. Upon Chiles’ return, business looked up, and Ladner suggested Chiles return to full-time employment. Chiles complied.

In August 2004, the BSRC office manager, who also was Chiles’ friend, passed away. Chiles again added the office manager’s responsibilities to her own, and not unexpectedly, soon had difficulty performing both jobs simultaneously. For these reasons, and also because the office manager died suddenly and at a very young age, Chiles again approached Ladner and expressed a desire to scale back much as she had done in the past. A few months later, in October 2004, Chiles took a scheduled vacation. Before leaving, she reiterated to Ladner that upon her return, it was her desire to remain a full-time employee until the end of 2004 and then work part time beginning in January 2005.

While Chiles was on vacation, a full-time office manager was hired. Chiles was content with being relieved of office management duties, and Chiles even told the new office manager she would assist her in the transition upon Chiles’ return. However, upon her return to work on October 29, 2004, Ladner handed Chiles a letter, stating he formally accepted Chiles’ “resignation,” and she should clear out her desk and leave that day. In the letter, Ladner agreed to pay Chiles until December 31, 2004, which was the date he contended was Chiles’ earlier-stated resignation date.

On January 2, 2005, Chiles filed for unemployment benefits because of her October 29, 2004 discharge. On January 19, 2005, a claims examiner issued a determination, stating Chiles quit without good cause, and Chiles therefore was denied unemployment benefits. Chiles appealed. After an evidentiary hearing at which both Chiles and Ladner, among others testified, the unemployment compensation appeals referee issued an order reversing the claims examiner’s determination, holding that Chiles was discharged for reasons other than misconduct connected with work and therefore eligible for benefits. See § 443.101, Fla. Stat. (2005). In due course, the UAC reversed the referee’s decision, and Chiles now seeks redress here.

Section 120.57(1)(Z), Florida Statutes (2004) states, in pertinent part:

When rejecting or modifying [a] conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.... The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence....

“It is clear from [section 120.57(1)(£) ] that [a] hearing officer’s findings of fact may not be overturned by the Board unless the findings are not supported by competent, substantial evidence.” Alles v. Department of Prof'l Reg. Const. Indus. Licensing Bd., 423 So.2d 624, 626 (Fla. 5th DCA 1982); see also Kan v. P.G. Cook Assocs., 566 So.2d 932, 933 (Fla. 3d DCA 1990)(“The decision of an appeals referee must be affirmed if it is supported by competent substantial evidence.”).

Here, the UAC did not satisfy the particularity requirement of section 120.579(1)(£ I- Moreover, the record is replete with testimony from which the unemployment compensation appeals referee could readily conclude, especially in light of the history of their sixteen year professional relationship, that Chiles did not resign her position at BSRC, but rather simply expressed her desire to change from full-time employment to part-time employment with BSRC. For example, when asked if she told Ladner she wanted to quit to spend time with her family, Chiles responded:

No, I told him that I do not want to continue working on a full-time basis in the same capacity. That I would stay until the end of the project, till the end of the year. That I wanted to actually work something in a part-time basis, but that I did not want to continue ... in the position in the way we were going at the time.

Similarly, Chiles testified, “I just basically let [Ladner] know that I do not want to continue in the same fashion, that I will be willing to work in a part-time basis.”

Additionally, Chiles testified she told Ladner she would stay at BSRC on a full-time basis until the end of 2004. “And then I’ll continue on the project on a part-time basis until I finished.” [sic] Again, Chiles told the referee, “I would work on a part-time basis starting [ ] in the new year, you know, project by project basis.” When Ladner cross-examined Chiles as to whether she was going to leave the company, Chiles answered, “I never, ever indicated that I would not continue to work.” (emphasis added).

While in its May 19, 2005 order, the UAC acknowledged its review “is limited to those matters that were presented to the referee and are contained in the official record,” and reiterated the referee’s findings, it countermanded these fully supported findings of the hearing referee. Contrary to the supported findings of the referee, the UAC made its own findings, stating Chiles “announced in August 2004 that she would be resigning at the end of the year to devote more time to her family.... ” (Emphasis added). The UAC, after its own review of the record, found that “[Chiles] further advised she would be available after her resignation to work part[]time as a consultant.” (Emphasis added). The UAC concluded, “The fact that the claimant had expressed a desire to work part[]time for the employer after resignation of the full-time job is immaterial.” (Emphasis added). Notably, the referee’s decision nowhere mentions the word “resignation.” Rather, the referee found, “the claimant did not quit [sic] she was requesting to work on a part[-]time basis as of January 2005.” Importantly, too, the referee acknowledged Chiles’ testimony to be more credible than Ladner’s and, therefore, “material conflicts in evidence are resolved in favor of the claimant.” See Miller v. Florida Unemploy. Appeals Comm’n, 768 So.2d 1218 (Fla. 4th DCA 2000)(stating that referee is responsible for weighing and resolving conflicting evidence and judging credibility of witnesses).

Although Chiles’ expressed concern both in her brief and during oral argument that she was not a skilled rhetorician, her testimony together with the other evidence adduced at the evidentiary hearing before the referee in this case was more than sufficient to meet the competent substantial evidence standard required to support the referee’s finding that Chiles simply “wanted to return to part[-]time work” but was not resigning. Accordingly, we reverse the order of the UAC and remand this case for the reinstatement of the decision of the referee.

Reversed and remanded with directions.

      . In this regard, the order of the UAC states only that "Upon review of the record and the arguments on appeal, the Commission concludes that the referee's decision is not supported by the record and is therefore, reversed.” We find this conclusory statement insufficient.

      . Even Ladner stated, "I do not characterize what I did as a termination, as much as I simply said, you're leaving at the end of the year, you told me you're going at the end of the year to have a family and so, I'm paying you through the end of the year.”


text:
    M.N., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1950.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Sanford Rockowitz, for appellant.
    Jeffrey Bassett, Panama City, and Cal-ianne Lantz; Mercedes Scopetta and Hillary S. Kambour, for appellee.
    Before LEVY, GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla.1991).


text:
    Robert McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3374.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied June 28, 2006.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert McCoy appeals an order adjudicating him guilty of indirect criminal contempt after he utilized inmate mail to send the trial judge an order containing an alleged “forgery” of her signature. We reverse the conviction because there was no competent and substantial evidence that McCoy filled out the proposed order, provided to him by officials at the jail, with the intent to deceive the trial judge, or anyone else, into believing the order had been executed by the trial judge. See Martin v. State, 728 So.2d 775, 776 (Fla. 4th DCA 1999) (“To overcome a defendant’s motion for judgment of acquittal in a ease based entirely on circumstantial evidence, the state has the burden of presenting evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”). Put another way, there was simply no evidence that McCoy’s actions were “‘calculated to embarrass, hinder or obstruct the court in the administration of justice’ ” or “ ‘calculated to lessen [the court’s] authority or its dignity.’ ” Murrell v. State, 595 So.2d 1049, 1050 (Fla. 4th DCA 1992) (defining criminal contempt) (quoting Ex Parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937)).

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.


author: WELLS, Judge.

text:
    FLORIDA EDUCATION ASSOCIATION, Petitioner, v. Henry T. WOJCICKI and Leslie Holland, Respondents.
    No. 3D05-2939.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Meyer and Brooks and Jennifer S. Blohm, Tallahassee, for petitioner.
    Stewart Lee Karlin, Ft. Lauderdale, for respondent.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   WELLS, Judge.

The Florida Education Association (FEA), a statewide teachers’ union, seeks to prohibit the circuit court from proceeding to entertain the instant legal malpractice action. We agree that the circuit court lacks subject matter jurisdiction and grant the petition. See Dep’t of Health and Rehab. Servs. ex rel. Peterson v. Ward, 600 So.2d 500, 500 (Fla. 4th DCA 1992) (granting prohibition to preclude a trial court from acting in excess of subject matter jurisdiction).

This petition stems from a legal malpractice action against an attorney and the union that retained the attorney to represent Henry T. Wojcicki, a union member, in an administrative proceeding relating to Wojcicki’s dismissal from employment by the Miami Dade County School Board. According to Wojcicki, he lost an appeal to this court from an administrative order recommending his termination because the attorney retained by the FEA to represent him in the administrative proceedings failed to file exceptions. See Wojcicki v. Sch. Bd. of Miami-Dade County, 841 So.2d 656 (Fla. 3d DCA 2003) (citing Kantor v. Sch. Bd. of Monroe County, 648 So.2d 1266, 1267 (Fla. 3d DCA 1995), which observed that a terminated school employee could not argue on appeal matters which were not properly excepted to or challenged before school board). Both the attorney and the FEA sought dismissal of Wojcicki’s complaint.

The attorney successfully argued the general rule that union agents may not be held individually hable when they act on behalf of a union in a collective bargaining activity and was dismissed from the case. See Stafford v. Meek, 762 So.2d 925, 926 (Fla. 3d DCA 2000) (holding that “a union attorney representing a member in a collective bargaining activity enjoys immunity from a legal malpractice action filed by an individual grievant”). However, the circuit court rejected the FEA’s argument that what is involved in this case is a breach of the duty of fair representation, arguably covered by the Public Employees Relations Act and thus within the exclusive jurisdiction of the Public Employees Relations Commission (PERC). Because we agree with the FEA’s position, we grant the petition.

Part II of Chapter 447 of the Florida Statutes provides an exclusive method for resolving labor disputes between ■ public employers and public employees. See Maxwell v. Sch. Bd. of Broward County, 330 So.2d 177, 179 (Fla. 4th DCA 1976). Under this part, jurisdiction over labor activities is preempted in favor of PERC if the activities involved are arguably covered by Part II of Chapter 447. Id. As Browning v. Brody, 796 So.2d 1191, 1192-93 (Fla. 5th DCA 2001), observes:

Labor union activities involving public employees are comprehensively regulated by Chapter 447, Part II of the Florida Statutes; commonly known as the Public Employees Relations Act (the Act). Under the Act, the Legislature created PERC, and empowered that administrative agency “to settle disputes regarding alleged unfair labor practices.” § 447.503, Fla. Stat. (1999). The activities prohibited as being “unfair labor practices” are defined in section 447.501 of the Florida Statutes (1999), with subsection (1) applying to employer activities and subsection (2) applying to union activities. Case law interpreting the jurisdictional scope of the Act has broadly included, as falling within PERC’s exclusive jurisdiction, those activities which “arguably” constitute unfair labor practices as defined by section 447.501 “or the type of labor matter or dispute within the contemplation of Part II, Chapter 447.” Maxwell v. School Bd. of Broward County, 330 So.2d 177, 180 (Fla. 4th DCA 1976); accord Local Union No. 2135, Int’l Ass’n of Firefighters v. City of Ocala, 371 So.2d 583, 585 (Fla. 1st DCA 1979).

Wojeieki’s claim against the FEA stemming from the alleged negligence of the attorney it hired to represent him in administrative termination proceedings is a claim that the union breached its duty to fairly represent him in a collective bargaining activity. See DeGrio v. American Fed’n of Gov’t Employees, 484 So.2d 1, 2 (Fla.1986) (“The ‘duty of fair representation’ is a distinctive labor law term, arising from [a] union’s responsibility to represent exclusively its individual members under a labor agreement”); Stafford, 762 So.2d at 926 (confirming that a UTD attorney hired to represent a teacher in an administrative dismissal proceeding was providing services as part of that union’s duty of fair representation in a collective bargaining activity).

This is an unfair labor practice “arguably” embraced by section 447.501(2) of the Florida Statutes falling within PERC’s exclusive jurisdiction. See Browning, 796 So.2d at 1193 (footnote omitted) (concluding that union’s failure to file grievances on behalf of a school teacher, to assist in seeking redress on her behalf against a school board, and to cooperate with her private attorney is a breach of the duty of fair representation and an unfair labor practice, and holding that such actions “constitute labor activities ‘arguably’ embraced within the provisions of section 447.501(2)” thereby pre-empting jurisdiction in PERC).

Accordingly, we grant the petition for writ of prohibition and quash the order denying the motion to dismiss, but withhold issuance of our writ confident in our knowledge that the trial court will follow the mandate of this court.

      . Wojcicki is a member of the United Teachers of Dade (UTD), a local FEA affiliate.

      . Section 447.501(2), provides, in relevant part:
      (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of tiny rights guaranteed them under this part or interfering with, restraining, or coercing managerial employees by reason of their performance of job duties or other activities undertaken in the interests of the public employer.


text:
    HOME LOAN CORPORATION d/b/a Expanded Mortgage Credit, Appellant, v. Sylvia AZA, Appellee.
    No. 3D05-2138.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Kahn & Chenkin, Hollywood, and Howard N. Kahn, for appellant.
    Law Offices of Richard B. Marx & Associates, and Richard B. Marx, Miami, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   PER CURIAM.

Home Loan Corporation d/b/a Expanded Mortgage Credit appeals an order dismissing with prejudice its third amended complaint against Sylvia Aza. We reverse and remand for further proceedings.

The question presented is whether a corporate officer who has committed fraud or negligent misrepresentation while performing her duties within the course and scope of her employment as president of the corporation can be held personally liable. We conclude that, based upon the allegations in the third amended complaint, defendant-appellee Aza may be held individually liable for her own tortious acts committed in the scope of her employment by the corporation.

Home Loan, a residential mortgage lender, filed suit against several defendants involved in a residential loan transaction. At issue here are the counts of fraud and negligent misrepresentation (counts three and four) against Sylvia Aza, individually, for allegedly committing tor-tious acts while performing her duties as President of Genesis Title Services Corp. The third amended complaint alleges that Aza prepared, signed, and certified the HUD-1 settlement statement, which contained the knowingly false statements and material misrepresentations that the borrower paid a $500 deposit, and $4,066 cash to close. Home Loan alleges that the borrower never actually paid either amount.

The trial court dismissed the claims against Aza with prejudice. This was apparently done on the theory that since Aza signed the relevant documents in her capacity as corporate president, she could not be held personally liable. Home Loan has appealed.

The Fourth District has said:

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character; he is not liable for torts committed by or for the corporation unless he has participated in the wrong. Accordingly, directors not parties to a wrongful act on the part of other directors are not liable therefor. If, however, a director or officer commits or participates in the commission of a tort, whether or not it is also by or for the corporation, he is liable to third persons injured thereby, and it does not matter what liability attaches to the corporation for the tort. A contrary rule would enable a director or officer of a corporation to perpetrate flagrant injuries and escape liability behind the shield of his representative character, even though the corporation might be insolvent or irresponsible.”

Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981) (emphasis added; citation omitted). See also White-Wilson Medical Center v. Dayta Consultants, Inc., 486 So.2d 659 (Fla. 1st DCA 1986).

The allegations in the third amended complaint sufficiently allege Aza’s personal involvement and participation in the tor-tious acts which resulted in Home Loan’s injuries.

. Accordingly, we reverse the judgment of dismissal and remand for further proceedings.