author: ERVIN, J.

text:
    FLORIDA HOSPITAL DELAND and AHS Compnet, Appellants/Cross-Appellees, v. Debra Van WAGNER-VICK, Appellee/Cross-Appellant.
    No. 1D05-3596.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.

      Charles D. Hood, Jr. and Clay L. Meek of Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., Daytona Beach, for Appellants/Cross-Appellees.
    Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellee/Cross-Appellant.
   ERVIN, J.

Appellants, Florida Hospital Deland and AHS Compnet (employer/carrier or E/C), appeal from a final workers’ compensation order awarding appellee Debra Van Wagner-Vick (claimant) certain compensation benefits, and claimant cross-appeals the denial of particular benefits. We summarily affirm all issues raised by the E/C except that relating to Issue IX, the award of temporary partial disability (TPD) benefits from the date of the accident, July 3, 2003, through August 29, 2003, the date of claimant’s termination from employment, because, as she conceded, competent, substantial evidence does not support the finding that claimant established a loss in wage-earning capacity during such period. We reverse and remand as to all three issues raised in the cross-appeal.

In her cross-appeal, claimant first argues that the judge of compensation claims (JCC) erred in refusing to award claimant temporary total disability (TTD) benefits from the date her personal physician, Dr. Curt Rausch, placed her on no-work status, or August 17, 2004, and continuing, because the JCC misinterpreted the law in concluding that claimant was not entitled to TTD benefits. The record discloses that, on July 3, 2003, immediately after she had experienced pain in her lower back while rising from a chair in the course of her employment, claimant reported the injury to her employer, and the employer shortly thereafter considered, based on the description claimant provided of the injury, that the injury was caused by claimant’s idiopathic, personal condition, and it denied compensability of the claim. She thereafter sought the care of Dr. Rausch, and after consulting with him, she testified that she first then became aware that the job duties assigned to her that day, ie., the lifting of heavy x-ray jackets, were the cause of her back injury.

Following the final hearing, the JCC determined that the injury was compensa-ble. In this regard, the JCC relied on the testimony of claimant, her authorized physician, Dr. Rausch, and her independent medical examiner (IME), Dr. Charles Kollmer, an orthopedist. The JCC denied, however, the claim for TTD benefits, finding that claimant, during the period of time for which benefits were sought, retained a wage-earning capacity, and in so doing he emphasized the opinion of Dr. Kollmer, who had released claimant to return to work with restrictions on March 30, 2004, after her separation from employment. In reaching his decision, the JCC accepted the opinion of Dr. Kollmer over that of claimant’s authorized treating physician, Dr. Rausch, because the JCC did not consider Dr. Rausch had the expertise of either an orthopedic or a pain-management physician. Finally, the JCC concluded that “Dr. Rausch has not given clear or acceptable testimony with regard to the claimant’s alleged temporary total disability status.”

Although the rule is clearly established that the JCC may accept the opinion testimony of one physician over that of another, see Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003), the resolution of the issue of claimant’s entitlement to TTD benefits does not turn on the JCC’s prerogative as fact-finder to accept a particular expert’s testimony, while rejecting another’s, but rather on whether claimant should have reasonably relied on the instructions given her by her authorized treating physician. As this court observed in Garcia-Vina v. U.S. Holiday Health & Recreation, 634 So.2d 200, 201 (Fla. 1st DCA 1994):

This court has repeatedly held that even in the absence of medical evidence that a claimant was TTD or that claimant searched for but could not find work, TTD benefits should nevertheless be awarded where it is shown that claimant’s physicians never communicated to the claimant that he or she was released to return to work. Indeed, TTD benefits may be awarded despite the testimony of a claimant’s physician that claimant was able to perform work with certain restrictions, as occurred herein.

Similarly, this court held in Charles v. Suwannee Swifty, 622 So.2d 114, 115 (Fla. 1st DCA 1993), that, once claimant’s physicians failed to inform her of her release to return to work, claimant could not be denied TTD benefits, “even assuming retrospective testimony that claimant could have worked during this period.”

In the present case, Dr. Kollmer, who examined claimant on only one occasion, nearly five months before Dr. Rausch’s examination of August 17, 2004, was hardly in a position to assess claimant’s condition at that time. Based on the current information then given her, claimant could not reasonably be expected to ignore the directions of her treating physician to remain off work; therefore, the JCC erred in denying the claim for TTD benefits from August 17, 2004, and continuing.

Claimant also asserts that the JCC erred in denying the medical bills of Dr. Stephane Lavoie, an orthopedist, and Dr. Stephen Knight, an emergency-room physician. In refusing to authorize their care, the JCC noted that claimant had provided the two physicians an inaccurate history of the cause of her injury by relating its cause to her rising from her chair, which affected the reliability of the care provided by them. The JCC ruled their opinions were “not admissible as they fail to adequately address the issues of causal relationships and medical necessity.” In so concluding, the JCC apparently misinterpreted the meaning of the term “medically necessary,” as requiring, as a predicate for medical care to be deemed medically necessary, the attending physician must be aware of the cause of an employee’s injury. Nothing in the law of workers’ compensation, however, expressly so states or reasonably implies such a restrictive interpretation.

Section 440.13(2)(a), Florida Statutes (2003), provides, in part: “[T]he employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.... ” Additionally, the statute’s definition of the term centers on the provision of a medical service or supply, and says nothing about a treating physician’s actual knowledge of the cause of a patient’s injury. Section 440.13(1)(Z) provides, in pertinent part: “ ‘Medically necessary or ‘medical necessity’ means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters.” Indeed, this court’s case law mirrors the above statutory provisions by recognizing the appropriate test for the authorization of medical benefits “is whether the award would improve the condition caused by the accident or would aid in the recovery.” Brown v. Steego Auto Parts, 585 So.2d 401, 403 (Fla. 1st DCA 1991). See also Polk County Bd. of Comm’rs v. Vamado, 576 So.2d 833, 837 (Fla. 1st DCA 1991); Delong v. 3015 W. Corp., 558 So.2d 108 (Fla. 1st DCA 1990).

The record is clear that the services of both Dr. Lavoie and Dr. Knight complied with the above requirements. In regard to Dr. Lavoie’s care, Dr. Rausch, whom the JCC determined to be authorized, had referred claimant to the care of Dr. Lavoie, an orthopedist. An authorized physician’s referral of an employee to the treatment of another health-care provider constitutes sufficient authorization for the treatment of the referred provider if the referral was made in the treating physician’s own judgment, rather than at the claimant’s request. N.W. Orient Airlines v. Gonzalez, 500 So.2d 699 (Fla. 1st DCA 1987). The record further establishes that Dr. Rausch exercised his own independent judgment in referring the claimant to the care of Dr. Lavoie. Based on the history claimant related to him of back pain extending into the right buttock and the right leg, and his review of an MRI of claimant’s back, indicating the existence of disc disease, Dr. Rausch was concerned that claimant might in the future require an orthopedic surgical procedure, resulting in his referral of claimant to Dr. Lavoie.

As for the care of Dr. Knight, the record shows that because of intense pain in her back, the employer representative, Lori Adams, directed claimant to seek emergency care. Emergency care, under such circumstances, is ordinarily considered to be authorized. See Manz v. Manz, 518 So.2d 392 (Fla. 1st DCA 1987). Dr. Knight diagnosed claimant’s condition as back strain, recommended orthopedic follow-up, and prescribed Percocet for pain. Clearly, such services must be considered medically necessary, meaning that they were designed to aid in claimant’s recovery from the aggravating symptoms she was then suffering. Under the circumstances, we conclude the JCC erred as a matter of law in finding the care provided claimant by Drs. Lavoie and Knight was not medically necessary, and, consequently, in denying their medical bills for the services rendered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HAWKES and WEBSTER, JJ., concur.

      . Dr. Rausch was later found to be authorized.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Booker MAYFIELD, Petitioner, v. James R. McDONOUGH, Interim Secretary, Department of Corrections and the State of Florida, Respondents.
    No. 1D06-1451.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.
    Booker Mayfield, pro se, Petitioner.
    Charlie Crist, Attorney General, and Shelley L. Marks, Assistant Attorney General, Tallahassee; Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner Booker Mayfield brings this petition for writ of certiorari asking this court to quash two orders from the trial court, one denying petitioner’s request for writ of mandamus on the merits, and one authorizing the Department of Corrections to place a lien on petitioner’s inmate trust account for payment of court costs and filing fees. With respect to the court’s order denying the mandamus petition on the merits, we deny certiorari without further comment. For the reasons discussed below, we grant the petition for certiorari to the extent it relates to the order imposing the lien on petitioner’s inmate account.

On February 14, 2005, petitioner earned a disciplinary report for his refusal to provide a urine sample when requested by prison officials. At a disciplinary hearing, held March 1, 2005, the disciplinary team found petitioner guilty of the infraction. He was sentenced to 60 days disciplinary confinement and penalized 180 days earned gain time. Petitioner subsequently filed a series of administrative appeals to the Secretary of the Department of Corrections. The first of these appeals was denied on the merits because the Secretary determined that petitioner raised new allegations that were not first tried before the disciplinary team. The second appeal was returned with no action, as untimely made.

Petitioner filed a petition for writ of mandamus on July 14, 2005. On August 1, 2005, the Clerk of Courts filed a Certificate of Indigence and enrolled petitioner in a payment program, requiring him to make periodic payments from his inmate trust account toward the total amount of court costs and fees associated with his petition. Accompanying the Certificate, the trial court entered an order authorizing the Department of Corrections to place a lien on petitioner’s inmate trust account. Ultimately, on March 13, 2006, the trial court denied petitioner’s request for mandamus. Petitioner subsequently filed this petition for certiorari, asking the court to review both the order denying his mandamus petition, and the order imposing a lien on his inmate account.

With respect to the trial court’s order imposing a lien on petitioner’s inmate account, petitioner argues that a disciplinary matter which affects an inmate’s earned gain time, and thus the length of the inmate’s sentence, is a collateral criminal proceeding exempt from the Prisoner Indigency Statute. We agree. See Schmidt v. Crusoe, 878 So.2d 361, 366-367 (Fla.2003); see also Terry v. McDonough, 935 So.2d 81 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

Therefore, we grant the petition for cer-tiorari in part, deny in part, and quash the trial court’s order imposing a lien on petitioner’s inmate account. Accordingly, we also remand for entry of an order directing the reimbursement of any funds withdrawn from petitioner’s inmate account pursuant to the lien.

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


author: BARFIELD, J.

text:
    The SCHOOL BOARD OF MIAMI-DADE COUNTY, the School Board of Palm Beach County, the School Board of Broward County, the School Board of Volusia County, the School Board of Monroe County, Marilyn Spiegel, Taxpayer, and the Citizens’ Coalition for Public Schools, Appellants, v. James E. KING, Jr., in his official capacity as President of the Florida Senate, Johnnie B. Byrd, Jr., in his official capacity as Speaker of the Florida House of Representatives, Jim Horne in his official capacity as Commissioner of the Florida Department of Education, the Florida Department Of Education, the State Board of Education, the School Board of Brevard County, the School Board of Clay County, the School Board Of Duval County, the School Board of Hillsborough County, the School Board of Leon County, the School Board of Liberty County, the School Board of Polk County, and the School Board of Seminole County, Appellees.
    Nos. 1D05-4521, 1D05-4524, 1D05-4526.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.

      Rodolfo Sorondo, Jr., Lenore C. Smith, and Jack L. McLean, Jr., of Holland & Knight LLP, Miami, Counsel for the School Board of Palm Beach County and the School Board of Broward County; Theodore R. Doran, Michael Ciocchetti, Audrie M. Harris, and Aaron R. Wolfe of Doran, Wolfe, Rost, Ansay & Kundid, Day-tona Beach, Counsel for the School Board of Volusia County and the School Board of Monroe County; and Fred H. Flowers of Flowers & White, Tallahassee, Counsel for Marilyn Spiegel and the Citizens’ Coalition for Public Schools.
    William C. Gentry of the Law Office of W.C. Gentry, P.A., Jacksonville, Counsel for James E. King, Jr., as President of the Florida Senate; Chesterfield Smith, Jr., and Jason Vail of the Office of the Attorney General, Tallahassee, Counsel for the Department of Education and the State Board of Education; and Sylvia H. Wal-bolt, Daniel C. Brown, and Christine R. Davis of Carlton Fields, P.A., Tallahassee, Counsel for the Florida Senate and the Florida House of Representatives.
   BARFIELD, J.

The appellant school boards unsuccessfully challenged the 2004-2005 General Appropriations Act, chapter 2004-268, Laws of Florida. Because of a change in the method used to calculate the Florida Price Level Index (FPLI), appellants received a smaller increase in their K-12 public school funding than they would have received if the previous method of calculating the FPLI had been used.

The Florida Education Finance Program (FEFP) was created by the Florida Legislature in 1973 to provide a base level of educational resources for public school districts, primarily by redistributing funds from counties with a higher tax base per student to counties with a lower tax base per student. The FEFP funding formula starts with an estimate of the base “per-student” funding, then makes several adjustments, including one for special needs students and one for the cost of hiring both instructional and non-instructional school personnel. The District Cost Differential (DCD) used for the personnel cost adjustment is intended to account for the variation among the counties in the cost of wages and salaries for school personnel, which accounts for approximately 80% of the school district operating costs. The DCD calculation, which depends upon the FPLI, is set out in section 1011.62(2), Florida Statutes:

1011.62 Funds for operation of schools. — If the annual allocation from the Florida Education Finance Program to each district for operation of schools is not determined in the annual appropriations act, it shall be determined as follows:
(2) DETERMINATION OF DISTRICT COST DIFFERENTIALS.— The Commissioner of Education shall annually compute for each district the current year’s district cost differential. The district cost differential shall be calculated by adding each district’s price level index as published in the Florida Price Level Index for the most recent 3 years and dividing the resulting sum by 3. The result for each district shall be multiplied by 0.008 and to the resulting product shall be added 0.200; the sum thus obtained shall be the cost differential for that district for that year.

Before enactment of the above-quoted statute, the Florida Legislature had assigned the DCD multipliers to the counties in the general appropriations act for each year.

Since its creation in 1973, the FPLI has been a measurement of the retail cost of a specific “market basket” (including housing, transportation, health care, food, and other goods and services) in different places at a particular point in time, similar to the Consumer Price Index calculated by the U.S. Bureau of Labor Statistics. The “market basket” approach is an indirect measure of wage levels, and was initially used because there were no adequate databases from which to directly index Florida school district personnel wage levels. The authors of the original FPLI noted that it was experimental.

Since 1995, at the request of the Florida Legislature, the University of Florida Bureau of Economic and Business Research (Bureau) has annually reviewed the FPLI and made recommendations to improve it. Since 2000, the Bureau has been responsible for calculating the FPLI under the direction of the Department of Education (DOE) and the legislature. While the Bureau has made a series of methodological improvements to the FPLI (standardizing the items included in the market basket, selecting items so as to maximize the ability of the index to measure variation in prices, and changing the way the items are weighted), the FPLI has remained a measurement of the price of goods and services.

In specific appropriation 113 of the 2003-2004 General Appropriations Act, chapter 2003-397, Laws of Florida, the legislature directed DOE to commission a study by the Bureau to consider the accuracy and appropriateness of several aspects of the FEFP funding formula, in-eluding the “current price level index methodology and the development of alternative approaches including, but not limited to, a wage index.”

The Bureau’s study, based on research done principally by economists James F. Dewey and David Denslow, found that the FPLI “as it stands is a very good measure of variation in the costs of goods and services across counties” but that “the current version of the FPLI suffers a serious problem when used as the basis of a personnel cost adjustment — it ignores the role of amenities.” The study explained that amenities were important in determining the personnel cost adjustment because “if a location is more desirable as a place to live, ‘compensating differentials’ will develop in housing and labor markets,” i.e., housing prices will be driven up, “while in the labor market, people will be willing to work for less, since the desirability of the location itself provides compensation.”

The Bureau’s study stated that the “market basket” price index had been used for 30 years because of the impracticability during that period of constructing a wage index based on the wages paid by other employers to measure the effect of amenities on personnel costs, but that more recently, reliable data had been compiled “on wages for a wide variety of finely classified occupations for all 67 Florida counties” from which a wage-based index, which would directly measure and estimate the differences among the districts in the cost of hiring personnel, could be developed. It stated that the Bureau had developed from this data “an amenity-adjusted, statistically- and geographically-smoothed version of the FPLI, denoted FPLI_AS” and explained that “FPLI_AS exhibits far less spatial variation than does the current version of the FPLI, and its level of variation is less likely to trend up significantly over time.”

The Bureau’s 2003 FPLI report summarized the study and presented four alternative indices: the Pecuniary Consumption FPLI (FPLIJP), a market-basket index similar to that which had been used in the past, and three versions of the amenity-adjusted wage-based index developed by the Bureau. The “low centrality” wage-based index was based upon analysis of data regarding geographically decentralized occupations within the respective counties; the “high centrality” wage-based index was based upon analysis of data regarding geographically centralized occupations within the respective counties; and the “average centrality” wage-based index was based upon averaging the two wage indexes.

The Bureau’s report recommended using the statistically- and geographically-smoothed “low centrality wage-based index” (FPLL&S) as the basis for the DCD, which would mean that “the typical student would find [his/her] base funding changed by 2.75%, up or down” as compared to funding based on the traditional FPLIJP. It noted that the largest increases in funding using the FPLI_AS (up to 5.4%) would occur in Leon, Duval, Gadsden, and Nassau counties, while the largest decreases (up to 7.6%) would occur in Monroe, Miami-Dade, and Broward counties.

In March 2004, DOE published the 2003 FPLI report with the four alternative proposed indexes and the Bureau’s recommendations. Thereafter, committees from both houses of the legislature extensively-questioned the Bureau economists about their recommendations. The Conference Committee Report on HB 1835 which was adopted on April 30, 2004, by both houses of the legislature did not specify the method used to calculate the FPLI, but it included $22.6 million in “District Cost Differential (DCD) transition supplement” appropriations allocated among several school districts, including appellants.

Specific appropriation 81 of the 2004-2005 General Appropriations Act, chapter 2004-268, Laws of Florida, provided that a “minimum guaranteed level of funding shall be calculated to provide each school district a 1.0 percent increase per unweighted full-time equivalent K-12 student over the amount per unweighted full-time equivalent K-12 student funded in the 2003-2004 FEFP” and that the DCD “for each district shall be calculated pursuant to the provisions of section 1011.62(2), Florida Statutes.” While the Act did not specify the method used to calculate the FPLI which is referenced in section 1011.62(2), it did include the above-noted “DCD transitional supplement allocations,” indicating that the Bureau’s FPLI recommendations had been accepted.

In June 2004, the School Board of Miami-Dade County brought an action for declaratory judgment, naming as the defendants DOE, the State Board of Education, and the Florida Legislature. Various parties were allowed to intervene in the suit as plaintiffs and as defendants, including school boards which were favorably and unfavorably affected by the change in the method of calculating the FPLI.

Count I of the complaint sought a declaration that neither DOE nor the legislature had the authority under section 1011.62(2) “to select and/or designate among the four price level indices assigned to Plaintiff in the Bureau’s publication of the 2003 FPLI” and that “without a single price level index for Plaintiff being published in the 2003 FPLI, the selection and/or use by the Department of any of the price level indices in the 2003 FPLI is invalid.”

Count II of the complaint sought a declaration that any attempt “to implement an amenities-based price level index to calculate the DCD funding,” or “to authorize the selection of a price level index from the four indices published on February 29, 2004,” or “to authorize or implement an amenities-based price level index to calculate the DCD” would be unconstitutional as a violation of Article III, section 12, of the Florida Constitution, which limits the scope of appropriations bills. The complaint asserted that the legislature “may not enact substantive law that would allow the Legislature or Defendants to choose from one of four published price level indi-ces in determining the 2004-2005 DCD.”

Count III of the complaint sought a declaration that “the calculation of the 2004-2005 DCD for Plaintiff using the low centrality amenities-based index” violates Article IX, section 1, of the Florida Constitution because it “results in the arbitrary, capricious, non-uniform and discriminatory distribution of education funds” and also because it “den[ies] thousands of public school students in the Plaintiff school district the uniform, safe and high quality education to which they are guaranteed.”

Count IV of the complaint sought an injunction preventing the defendants “from using any amenities-based index to calculate the 2004-2005 DCD.” The complaint asserted that the plaintiffs were likely to succeed on the merits of its claims, that they would be irreparably harmed by the loss of funds resulting from use of the amenities-based index, and that they did not have an adequate remedy at law because “there is no practical way to recover any funds improperly disbursed.” After an emergency hearing, the trial judge denied the request for temporary injunction, finding that the plaintiffs had not demonstrated irreparable harm.

The defendants’ motion to dismiss the complaint asserted that it had improperly sought to involve the courts in a “political question” and that it had improperly sought an advisory opinion. It asserted that the 2004-2005 General Appropriations Act’had not changed substantive law; that the Act had not violated Article III, section 12, of the state constitution; and that the Act had not violated Article IX, section 1, of the state constitution, which it asserted does not provide a private cause of action for its enforcement. It asserted that each of the counts of the complaint had failed to state a cause of action; that the plaintiffs had failed to join indispensable parties; and that the plaintiffs lacked standing.

The trial judge denied the motion to dismiss the complaint on the grounds of lack of standing and failure to join indispensable parties, and denied the motion to dismiss counts I and II for failure to state a cause of action, but granted the motion to dismiss count III, finding that “no private cause of action exists under Article IX, section 1 of the Florida Constitution for the enforcement of its provisions” and citing Simon v. Celebration Co., 883 So.2d 826 (Fla. 5th DCA 2004), as “controlling.” The judge denied the plaintiffs’ motions for rehearing, but granted a motion to amend count III to “allege an action for declaratory judgment as to whether the Florida Price Level Index used by Defendants for the District Cost Differential component of the 2004-2005 Florida Education Finance Program violates the uniformity requirement of Article IX, Section 1 of the Florida Constitution.” The subsequent motion to dismiss count III of the amended complaint asserted that it had failed to allege ultimate facts demonstrating a violation of the uniformity provision and that the plaintiffs were “simply attempting to state an ‘adequacy’ claim under Article IX, Section 1 and disguising it as a ‘uniformity’ claim.”

The defendants’ motion for summary judgment argued with respect to count II that Article III, section 12, of the Florida Constitution applies only to general appropriation acts and prohibits only the amendment of substantive law unrelated to appropriations by means of the appropriations act, citing Division of Administrative Hearings v. School Board of Collier County, 634 So.2d 1127 (Fla. 1st DCA 1994), and that the 2004-2005 General Appropriations Act did not amend section 1011.62(2). The plaintiffs’ response argued that summary judgment was improper “because genuine issues of fact exist regarding whether Defendants’ use of a new wage-based index to allocate education funds violates Article III, section 12 of the Florida Constitution because it reflects an attempt to use appropriations legislation to alter the DCD component of the FEFP formula specified by substantive law.”

In granting the motion for summary judgment with respect to count II, the trial judge ruled that there were no disputed issues of material fact, that count II presented “a pure, legal issue,” and that no evidence had been presented “to support the contention that Article III, Section 12 of the Florida Constitution has been implicated by the actions of the Florida Legislature in the promulgation and passage of the 2004 Appropriations Act.” He found that the formulation of the challenged methodology by the economists, the acceptance of it by the legislature, and the utilization of it by DOE for computational purposes “predated the construction of the 2004 Appropriations Bills and the passage of the Appropriations Act.”

After the plaintiffs had presented their evidence at trial, the trial judge granted the defendants’ motion for involuntary dismissal of the remaining counts of the complaint under Florida Rule of Civil Procedure 1.420(b). In the final judgment, the judge observed that counts I and III had “appeared to primarily present questions of law,” but that, “perceiving there- might be some mixed issues of law and fact, the Court afforded the parties extensive discovery and held a final evidentiary proceeding.”

The judge explained that the motion for involuntary dismissal was granted as to count I because the evidence presented by the plaintiffs, taken in the light most favorable to them, did not demonstrate a right to declaratory relief. He rejected the plaintiffs’ premise that section 1011.62(2) “established a specific methodology from which neither DOE [n]or the Legislature may vary,” and he also rejected the plaintiffs’ premise that FPLI can mean only a consumer price index or “market basket” index. He ruled that he could not find “that it was clearly erroneous for defendants to use a wage component or an amenities component in the calculation of the 2003 FPLI, nor did they act unlawfully or in contravention of the Florida Constitution in doing so.” He found that the choice of index “constitutes a’ matter of interpretation of a statute by those charged with its implementation and is entitled to great weight,” that the plaintiffs had “failed to show that any of the defendants acted unreasonably, much less unlawfully or in violation of their constitutional prerogatives, in using the 2003 FPLI_A, low centrality price level index,” and that it was not within the province of the court “to substitute its judgment for that of the legislative and executive branches of government.”

The judge explained that the motion for involuntary dismissal was granted as to count III because, viewing the evidence most favorably to the plaintiffs, it was “wholly insufficient to establish a uniformity claim under the Florida Constitution,” which he found requires a showing that the plaintiff school district “is being underfunded to the extent it cannot provide the necessary basic core education while other school districts are not similarly disadvantaged.” He noted the plaintiffs’ evidence “to the effect that the change in the FPLI resulted in less money to their school districts and that it could impact on their ability to hire teachers,” but he observed that the witnesses had acknowledged that every school district needs more money and has to make difficult decisions in prioritizing the use of funding. He found that the plaintiffs had “failed to offer any evidence to establish that any of the plaintiff school districts have been so severely disadvantaged by the funding formula at issue that basic education needs are not being funded.” He noted that he “would ordinarily expect that expert testimony would have to be relied upon to establish a uniformity claim in order to demonstrate the significant disparity between school districts sufficient to rise to the level of a constitutional violation,” but that Dr. Ash-enfelter, plaintiffs’ sole expert, “did not even address this issue.”

The plaintiffs/appellants have raised numerous issues, challenging these rulings and other procedural rulings. We affirm each of the challenged rulings without further comment, with the exception of the dismissal of count III of the original complaint, which we affirm, but which we find requires some further discussion.

The motion to dismiss count III of the original complaint argued, inter alia, that the legislature had established the statutory guidelines and had delegated the allocation of educational funds to DOE, a procedure which is “not only constitutional, but essential to carrying out the functions of government and accommodating changes in circumstances and, in this instance, the ability to collect and better assess data.” It asserted that Article IX, section 1, requires the state “to make provision for a statewide system and to regularly reassess the statewide system to assure a uniform and fair allocation of dollars to support a quality system of schools in all districts” (emphasis in the original). It argued that section 1011.62(2) contemplates that the DCD “will be annually recalculated,” that “no fixed methodology is established or required,” and that the fact that the FPLI “is constantly reevaluated and updated to accomplish the purpose of the [DCD] is consistent with Constitutional requirements — not the other way around as Miami-Dade argues in its quest for some vested right to an outdated, inadequate methodology that would work to its advantage.” It asserted that the plaintiffs “seek to have the Court exercise legislative and quasi-legislative power and resolve a political question.” It argued that count III of the original complaint was legally insufficient to show any violation of the state’s duty under Article IX, section 1, asserting that the clause “requires only a uniform and adequate system; it does not govern the underlying decision-making process, and does not provide a constitutional bulwark concerning ‘discrimination’ separate from the uniformity required of the system.” It pointed out that there was no allegation that the defendants “applied the complained-of price level index and the resultant DCD disuniformly [sic] among the school districts” and argued that the complaint “does not state a justiciable claim of an unsafe or non-high quality ‘system’ under Article IX, Section 1, merely by alleging that one method of determining the DCD gives Dade County fewer state-generated dollars than another method of determining the DCD.” Finally, it asserted that “there is no clear definition, statutory or otherwise, regarding the meaning of ‘adequate provision for the education’ or ‘a uniform system of free public education’ as it relates to Article IX, Section 1,” and that the clause “cannot be considered self-executing because the language does not address the potentially numerous issues that may arise under this provision,” noting that in Simon v. Celebration Co., the 5th DCA “recently held that no private cause of action exists under Article IX, Section 1 of the Florida Constitution.”

In the order granting the motion to dismiss count III, the trial judge ruled that Simon, “holding that no private cause of action exists under Article IX, section 1 of the Florida Constitution for the enforcement of its provisions, controls the claim asserted in Count III of the Complaint and binds this Court.” We find that Simon does not hold that no private cause of action exists under Article IX, section 1, of the Florida Constitution for the enforcement of its provisions, but that count III of the original complaint was nevertheless properly dismissed because it did not state a cause of action under applicable law. To clarify this holding, we must review the most recent applicable law.

In Brown v. Firestone, 382 So.2d 654 (Fla.1980), the supreme court outlined and compared the general scope of authority conferred upon each branch of government in the field of general appropriation law, and acknowledged that any citizen/taxpayer may bring a declaratory action to challenge the constitutionality of provisions in a general appropriations act. After analyzing each of the challenged sections of the general appropriations act at issue, the court admonished that “it would be a serious mistake to interpret our acceptance of jurisdiction in this cause as a general willingness to thrust the Court into the political arena and referee on a biennial basis the assertions of power of the executive and legislative branches in relation to the appropriations act.” Id. at 671.

In Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla.1996), various school, boards and others filed a declaratory action against state officials, asserting that the state had failed to allocate adequate resources for a uniform system of free public schools as required by Article IX, section 1. After analyzing the meaning of the term ‘adequacy’ by reviewing the historical evolution of Article IX, section 1, in light of the separation of powers doctrine, the supreme court affirmed the trial court’s dismissal of the suit, finding that the plaintiffs had made “a blanket assertion” that the entire system was constitutionally inadequate, but that they had “failed to demonstrate in their allegations, or in their arguments on appeal, an appropriate standard for ‘adequacy’ that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature, both generally (in determining appropriations) and specifically (in providing by law for an adequate and uniform system of education)” (emphasis in the original). Id. at 408. In a concurring opinion, Justice Overton asserted that the intent of Article IX, section 1, “is to require the establishment of an educational system that fulfills the basic educational needs of the citizens of this state to provide for a literate, knowledgeable population.” Id. at 409. He observed that “[wjhile ‘adequate’ may be difficult to quantify, certainly a minimum threshold exists below which the funding provided by the legislature would be considered ‘inadequate’ ” and he acknowledged that “a proper showing of inadequacy has not been made in this case.” Id.

Prior to 1998, when it was amended to its current version, at least in part in response to Coalition, Article IX, section 1, of the Florida Constitution provided:

System of public education.—
Adequate provision shall be made by law for a uniform system of free public schools and for the establishment, maintenance and operation of institutions of higher learning and other public education programs that the needs of the people may require.

As amended, Article IX, section 1(a), provides:

Public education.—
(a) The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.

In Bush v. Holmes, 919 So.2d 392 (Fla.2006), the supreme court affirmed a ruling that the statute establishing the school voucher program was unconstitutional, finding that the statute violated the requirement of Article IX, section 1, that education be provided through “a uniform system of free public schools.” The court noted that as a general rule, “courts may not reweigh the competing policy concerns underlying a legislative enactment,” but that “the usual deference given to the Legislature’s resolution of public policy issues is at all times circumscribed by the Constitution.” Id. at 398. It found that through the challenged statute, “the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.” Id. The court noted Justice Overton’s concurring opinion in Coalition, as well as the 1998 amendment to Article IX, section 1, and the commentary indicating that the amendment was intended in part to define “adequate provision” by requiring the public school system to be “efficient, safe, secure, and high quality.” It held that Article IX, section 1, “mandates that the state’s obligation is to provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives.” Id. at 408. It found that the school voucher program “does not supplement the public education system,” but instead “diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children.” Id. It found that the challenged statute “by its very nature undermines the system of ‘high quality’ free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.” Id.

We read Brown, Coalition, and Holmes as delineating that any citizen/taxpayer may bring a declaratory action to challenge the constitutionality of provisions in a general appropriations act, including a claim that the state has failed to make adequate provision for a uniform system of free public schools as required by Article IX, section 1, and that the standard for determining whether the legislature has made adequate provision for public schools is whether the resources allocated by the legislature are sufficient to provide “a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education,” as required by the Florida Constitution. The trial judge properly dismissed count III of the original complaint because the allegations did not state such a cause of action, but rather merely challenged the method of distribution of state education funds. We wish to clarify, however, that the judge’s reliance on Simon v. Celebration Co. was misplaced.

In Simon, parents sought declaratory relief and damages in tort, alleging that they had relocated to the Town of Celebration based upon misrepresentations regarding its public school. The trial court dismissed count II, which alleged that the local school board had failed to provide their children with a high quality free public education, ruling that no private cause of action exists for the enforcement of Article IX, section 1, against individual school boards. The DCA affirmed that ruling, citing the test for determining whether a constitutional provision is self-executing, and therefore creates a private cause of action for its enforcement, as “whether or not the provision lays down a sufficient rule by which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.” 883 So.2d at 831. We consider the holding in this case to be that no private cause of action exists for the enforcement of Article IX, section 1, against individual school boards because the clause, in the words of the district court, “specifically states that the provision of an adequate education must be made by the Legislature since the provision states that ‘adequate provision shall be made by law.’ ” Id. We consider the district court’s observation that “there is no benchmark for determining what ‘adequate provision for education’ is meant to entail, nor is the term ‘high quality education’ defined in the provision,” to be dicta which has been brought into question by the supreme court’s observations in Bush v. Holmes.

The trial judge’s rulings in this case are AFFIRMED.

BROWNING, C.J. and VAN NORTWICK, J., concur.

      . In an affidavit in support of the defendants' motion for summary judgment, Dr. Dewey explained that while the FPLI was originally developed for use in computing the DCD, it "has come to be a useful source of data for wider audiences,” and that although the low-centrality FPLI_AS "is the more representative index for measuring variation across school districts in the average cost to hire equally qualified teaching personnel,” the other three FPLI iterations in the 2003 FPLI report "have appropriate uses in other contexts and are of general interest to other groups, and were therefore included.”

      . The 2005-2006 General Appropriations Act, chapter 2005-70, Laws of Florida, provided $22.7 million in "DCD transition supplement” appropriations to school districts, including appellants. The 2006-2007 General Appropriations Act, chapter 06-25, Laws of Florida, provided $22.7 million in "DCD transition supplement” appropriations to school districts, including appellants.

      . Article III, section 12, provides:
      Appropriations bills. — Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

      . Article IX, section 1(a), provides:
      Public education.—
      (a) The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.


text:
    Michael WILLIAMS, Appellant, v. Kenneth DUESING and Allied Crane Service, Appellees.
    No. 2D06-169.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2006.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Joseph R. North of The North Law Firm, P.A., Fort Myers, for Appellant.
    Maria Kayanan of Kubicki Draper, P.A., Miami, for Appellees.
   PER CURIAM.

This is an appeal from a summary judgment in favor of the defendants. Appel-lees have conceded that the trial court erred in its application of section 440.10, Florida Statutes, to the instant case because the substantive amendments to the workers’ compensation statutes had not yet taken effect at the time of the incident which gave rise to the trial court proceedings and the statutes could not be applied retroactively. Accordingly, we reverse the summary judgment in favor of the defendants and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT, SALCINES, and WALLACE, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jeffrey W. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1655.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2006.
   NORTHCUTT, Judge.

Jeffrey W. Simpson appeals the denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Simpson was sentenced to eleven years in prison on a violation of probation in March 2005, stemming from convictions for crimes that occurred in 1993. In his rule 3.850 motion, Simpson claimed that his counsel in the probation revocation proceeding was ineffective for failing to review and seek correction of errors on his sentencing scoresheet. The postconviction court denied Simpson’s motion, finding the record revealed that the trial court would have imposed the eleven-year sentence even if the scoresheet had been corrected. See State v. Anderson, 905 So.2d 111 (Fla.2005).

While the postconviction court is correct that the “would-have-been-imposed” test is applicable to this case, see Wilson v. State, 913 So.2d 1277 (Fla. 2d DCA 2005), the record attached to the order does not support the postconviction court’s conclusion. Moreover, if Simpson’s “corrected” score-sheet calculations are accurate, his eleven-year sentence constitutes a departure without written reasons. See Fla. R.Crim. P. 3.701(d)(ll). Therefore, we reverse and remand for the trial court to either attach portions of the record that conclusively refute Simpson’s claim or hold an eviden-tiary hearing on the issue. See Spears v. State, 912 So.2d 694 (Fla. 2d DCA 2005).

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.


text:
    James EUBANKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3405.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    James Eubanks, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order denying the appellant’s rule 3.800(a) motion to correct illegal sentence is reversed, and the case is remanded to the lower court for attachment of records that conclusively refute the allegations in the motion. See Fenelon v. State, 932 So.2d 431 (Fla. 4th DCA 2006) (reversing because the “trial court failed to attach record evidence to refute the facially sufficient claim”) (citing Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996)).

GUNTHER, POLEN and SHAHOOD, JJ., concur.


author: FARMER, J.

text:
    Joseph STANFORD, Appellant, v. Miriam STANFORD, Appellee.
    No. 4D06-96.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Richard G. Bartmon of the Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
    Jan Peter Weiss, Lake Worth, for appel-lee.
   FARMER, J.

In a pretrial order allowing husband’s lawyer to withdraw, the court gave husband 60 days to obtain new counsel. Exactly 28 days after that order, and within the 60-day period allowed for the appearance of new counsel, the trial judge inexplicably proceeded to try the case in the absence of the husband or his counsel, entering a final judgment of dissolution of marriage — essentially by default. We reverse the trial judge’s denial of the husband’s later motion to vacate the final judgment.

We deem it a denial of due process to grant a litigant a specific period of time to obtain new counsel and then proceed to try the case before the afforded time has lapsed. So fundamental is the right of a litigant to rely on orders of the court, the refusal to vacate the judgment is a manifest abuse of discretion.

Reversed for new trial.

STONE and POLEN, JJ., concur.


text:
    Richard ROESER, Appellant, v. Nilda ROESER, Appellee.
    No. 4D05-4824.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Meah Rothman Tell of Meah Rothman Tell, P.A., Coral Springs, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the final order in all respects except that we remand for modification to reflect the oral pronouncement of the court that the $25,000 awarded Appellant be spent for the child’s welfare in addition to education, an apparent scrivenor’s error.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Clarence Anthony HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4513.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Berry v. State, 792 So.2d 611, 612 (Fla. 4th DCA 2001).

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Warren SMOKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4497.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Warren Smokes, appeals his conviction for driving with a revoked driver’s license as a habitual traffic offender in violation of section 322.34(5), Florida Statutes. The only issues he raises on appeal are claims of ineffective assistance of counsel with respect to the admission of his complete driving record and in failing to object to certain statements by the prosecutor. With rare exceptions, such as in the case of conflict of interest which appears on the face of the record, ineffective assistance of trial counsel claims may not be raised on direct appeal. See Gore v. State, 784 So.2d 418, 438 (Fla.2001). This is not one of those exceptions. We affirm, without prejudice to Smokes’ right to seek postconviction relief.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    John PETTI and Liz C.Z. Petti, Appellants, v. 2500 DEVELOPERS, INC., Appellee.
    No. 4D05-4079.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Michael S. Metta and Garry W. O’Donnell of Adorno & Yoss, LLP, Boca Raton, for appellants.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We have extensively examined the record and transcript in this case. We hold there is competent substantial evidence to affirm the Final Judgment for Plaintiff After Non-Jury Trial entered by the trial court.

Affirmed.

STONE, SHAHOOD and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Terry GLISPY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction for driving a motor vehicle with a revoked license, claiming that the prosecutor made two prejudicial comments in closing argument. First, the prosecutor told the jury that the state’s sole witness, a state trooper, was being truthful and reliable. The comment was in response to the defense’s attack on the trooper’s credibility, and the prosecutor’s comment did not place the prestige of the government behind the trooper or comment on matters outside the record. See Hutchinson v. State, 882 So.2d 943, 953 (Fla.2004). Therefore, we find no error. As to the second comment, which the defense states was a comment implicating the right to remain silent, we do not view it in the same light. The prosecutor started to say, “And there’s no evidence before you to contradict ” before being cut off by a defense objection. Immediately prior to this, the prosecutor was again talking about the trooper’s actions and credibility. We find it questionable that this was a comment on silence, but even if it was, we conclude that it was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

STEVENSON, C.J., and TAYLOR, J., concur.


text:
    Calvin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2392.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the final judgment adjudicating the appellant, Calvin Brown, a sexually violent predator and committing him to the custody of the Department of Children and Families pursuant to chapter 394, part V, Florida Statutes. Brown claims that his motion for directed verdict should have been granted because the state failed to offer evidence that he had ever been convicted of a “sexually violent offense,” an element of proof under the statute. However, Brown failed to renew his motion at the close of all of the evidence, a requirement to preserve the issue on appeal.

In a civil commitment proceeding filed under the Jimmy Ryce Act, the Florida Rules of Civil Procedure generally apply. See § 394.9155(1), Fla. Stat. (2005) (“The Florida Rules of Civil Procedure apply unless otherwise specified in this part.”). Florida Rule of Civil Procedure 1.480 outlines the procedures governing a motion for directed verdict. Rule 1.480(b) provides, in pertinent part:

When a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict.

(Emphasis added).

Because the rule treats the denial of a motion for directed verdict at the close of the evidence as a reservation of ruling, in order to preserve the point for appellate review it is necessary to make an appropriate post-trial motion. See Indus. Affiliates, Ltd. v. Testa, 770 So.2d 202, 204 (Fla. 3d DCA 2000); see also Williams v. Sch. Bd. of Palm Beach County, 770 So.2d 706, 707 (Fla. 4th DCA 2000) (holding that the trial court erred in granting the School Board’s post-trial motion for directed verdict because “[although the School Board timely moved for a directed verdict during trial, it did not serve its motion for directed verdict until the eleventh day after the verdict”).

In this case, Brown moved for a directed verdict at the close of the state’s case-in-chief, but Brown did not renew the motion for directed verdict at the close of all the evidence. Further, Brown did not make any post-trial motion for judgment in accordance with the motion for directed verdict. Accordingly, this issue has not been preserved for appellate review.

Even if the issue had been preserved, Brown joined in a pre-trial stipulation as to his prior convictions and their validity. Despite some equivocal language from the prosecutor during a motion in limine hearing, it is apparent that the state accepted Brown’s stipulation in which he admitted his prior convictions. Moreover, during opening statements, both the state and the defense mentioned to the jury that Brown had been convicted of offenses that qualify as sexually violent offenses under the Jimmy Ryce Act. Thus, it is clear that during trial the state relied upon the pretrial stipulation. In United States v. Harrison, 204 F.3d 236, 243 (D.C.Cir.2000), the court held that a defendant’s stipulation waives his or her right to contest the government’s failure to introduce any evidence on those stipulations, including a failure to read those stipulations to the jury. See also United States v. Hardin, 139 F.3d 813, 816 (11th Cir.1998); United States v. Branch, 46 F.3d 440, 442 (5th Cir.1995). The Harrison court explained: “The stipulations were filed with the district court, the jury was made aware of them, and the jury found all of the elements to exist.” 204 F.3d at 243. Similarly, at bar, the pre-trial stipulation was filed with the trial court, the jury was made aware of Brown’s convictions, and the jury found Brown to be a sexually violent predator within the purview of the Jimmy Ryce Act.

Affirmed.

STEVENSON, C.J., and TAYLOR, J., concur.


author: MAY, J.

text:
    Sylvia PARTRIDGE, Appellant, v. Margaret PARTRIDGE, Appellee.
    No. 4D05-3524.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Wayne R. McDonough of Wayne R. Mc-Donough, P.A., Vero Beach, for appellant.
    William F. Gállese, Stuart, for appellee.
   MAY, J.

A widow appeals an order directing her to vacate the home owned by the husband, in compliance with the final judgment of dissolution between her deceased husband and his former wife. She argues the family court lacked personal jurisdiction over her. We agree and reverse.

Benjamin and Margaret Partridge were divorced. The final judgment of dissolution provided Margaret, the former wife, with an equitable lien on the marital home and a life estate if Benjamin died before paying the lump sum alimony. Alternatively, the judgment provided the former wife with the ability to sell the home to satisfy any outstanding balance of lump sum alimony.

The former husband continued to reside in the home and married Sylvia. The home was subsequently damaged by one or more hurricanes, rendering it uninhabitable. Insurance coverage paid for Benjamin and Sylvia to live elsewhere until repairs were completed, which had not occurred at the time of the trial court proceedings. Some insurance monies were used to cover repairs.

The former husband neither paid the lump sum alimony nor fulfilled his obligation for periodic alimony. The former wife therefore sought to foreclose the equitable lien on the home in a separate proceeding. The circuit court ordered the foreclosure; the former husband appealed. While the appeal was pending, the former husband died.

The former wife immediately filed a Motion to Obtain Possession Of The Former Marital Residence And Other Relief in the dissolution proceeding. She requested immediate possession of the residence, an accounting of the personal property in the residence, and any insurance proceeds the widow had received for repairs. The former wife served the motion and notice of hearing on the widow by mail.

The widow appeared specially and moved to dismiss for lack of personal jurisdiction. She claimed she was not a party to the dissolution proceedings and had not been properly served with an ejectment action. She further claimed no legal obligation to comply with the former wife’s request for an accounting or preservation of the former husband’s personal property.

A magistrate recommended denial of the widow’s motion to dismiss and enforcement of the former wife’s life estate in the former marital home. The trial court adopted the recommended order.

The widow continues to argue on appeal that the trial court lacked personal jurisdiction over her. Without either statutory or case authority, the former wife suggests that the widow stands in the shoes of the former husband. We agree with the widow.

In personam, jurisdiction is a pure question of law, allowing this court to review the order on the widow’s motion to dismiss de novo. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

In this case, the former wife sought not only possession of the home, but an accounting and protection of the former husband’s personal property and insurance proceeds. Yet, there was no effort to make the widow a party to the dissolution proceedings. While it would appear that the more appropriate vehicle for obtaining the relief sought by the former wife would have been a separate action for ejectment, replevin, and an accounting, in any event, the widow was entitled to due process; i.e., proper service of process and the opportunity to be heard. Pacific Mills v. Hillman Garment, Inc., 87 So.2d 599, 602 (Fla.1956) (absent a waiver, “[o]ur traditional ideals of fair play and substantial justice demand that when a person is sued, he should have notice of the suit and an opportunity to defend”). The former wife failed to obtain personal jurisdiction over the widow by simply mailing a motion and notice of hearing. Due process requires more. Id.

Because the trial court lacked personal jurisdiction over the widow, we reverse.

Reversed.

POLEN and KLEIN, JJ., concur.

      . This court subsequently affirmed. Partridge v. Partridge, 790 So.2d 1280 (Fla. 4th DCA 2001).

      . Generally speaking, the elements to be proven in an action for ejectment are "that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages." Black's Law Dictionary 556 (8th ed.2004).

      . §§ 78.01, .03, .055, Fla. Stat. (2005).


text:
    Alexander Roman LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3735.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2006.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Alexander Lopez was charged with five crimes after he stole an automobile and fled from the police. The State offered him a plea agreement that called for eighteen months’ imprisonment. Lopez rejected that offer and instead entered an open plea to the court. The circuit court sentenced him to fifteen years’ imprisonment for his second-degree felony charge, aggravated fleeing and eluding; concurrent five-year prison terms for his two third-degree felony charges, auto theft and leaving the scene of an accident with injuries; and time served for the remaining two charges. Subsequently, the court denied Lopez’s motion to withdraw the plea filed pursuant to Florida Rule of Criminal Procedure 3.170(1). In this appeal, Lopez challenges the denial of that motion. We reverse and remand for further proceedings.

Lopez’s attorney initially filed a rule 3.170(1) motion claiming that Lopez did not realize he could be sentenced to fifteen years’ imprisonment for his crimes. The motion also stated that “[tjhere are other issues pertinent to the withdrawal of the plea that the Defendant will bring out at the time of the hearing.” The next day, Lopez filed a pro se rule 3.170(1) motion alleging that his counsel had advised him that if he pleaded open to the court rather than accepting the State’s plea offer, he would be sent to a drug treatment program instead of being sentenced to imprisonment. He claimed conflict with counsel and asserted that he received ineffective assistance. The court did not address Lopez’s pro se argument at the hearing but denied relief based on the issue raised in counsel’s motion.

The State argues that the court correctly ignored the grounds raised in Lopez’s pro se motion because, under the general rule in this district, a pro se rule 3.170(1) motion filed by a represented defendant will be treated as a nullity unless the defendant unequivocally asks to discharge his counsel. Mourra v. State, 884 So.2d 316 (Fla. 2d DCA), review denied, 891 So.2d 552 (Fla.2004). The Mourra decision was grounded on the fact that a defendant is not entitled to hybrid representation, i.e., representation by both his counsel and himself. Mourra, 884 So.2d at 320-21 (citing Logan v. State, 846 So.2d 472, 474 (Fla.2003)). But the court was also concerned that a defendant’s ill-advised pro se rule 3.170(1) motion might prejudice his case, or have an unintended preclusive effect. Id. at 320, 321 n. 5.

In this case, the general rule announced in Mourra would not require that Lopez’s pro se motion be treated as a nullity. Lopez was represented by an attorney, who filed the first rule 3.170(1) motion, which specifically stated that Lopez would raise additional issues at the hearing. We view Lopez’s subsequent pro se filing not as an attempt to represent himself, but rather as an addendum to counsel’s motion raising additional issues, as counsel’s motion itself contemplated.

Counsel represented Lopez at the rule 3.170(1) hearing. But at that hearing, neither counsel nor the court questioned Lopez about the issues raised in his pro se motion. That motion specifically asserted a conflict with counsel, based on counsel’s alleged misadvice and ineffective assistance, and it alleged facts that could support Lopez’s contention. As we noted in Mourra, “the issues raised in a rule 3.170(1) motion may generate a conflict between the original trial lawyer and his or her client. Under those circumstances, the court may be required to appoint substitute counsel for the purpose of resolving the motion.” 884 So.2d at 319 n. 3. Because of the clear conflict raised in this case, the court should have appointed conflict-free counsel to represent Lopez. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (noting that a rule 3.170(1) motion is a critical stage proceeding); Miller v. State, 838 So.2d 1213 (Fla. 2d DCA 2003) (holding that a defendant is entitled to conflict-free counsel to assist him in a 3.170(1) proceeding).

Accordingly, we reverse the denial of Lopez’s rule 3.170(1) motion and remand for further proceedings. We direct the circuit court to appoint conflict-free counsel to assist Lopez in those proceedings.

Reversed and remanded.

SALCINES and SILBERMAN, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Hannya SILVERMAN, Appellant, v. Jeff SILVERMAN, Appellee.
    No. 2D06-408.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2006.
    William J. Thompson and Eduardo J. Mejias of Thompson Law Firm, P.A., Bonita Springs, for Appellant.

      Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellee.
   SILBERMAN, Judge.

Hannya Silverman (the Former Wife) appeals a final judgment of dissolution of marriage and challenges portions of the equitable distribution award, the child support award, and the denial of her request to require Jeff Silverman (the Former Husband) to pay her attorney’s fees. Because of errors in the equitable distribution award, we reverse the financial aspects of the final judgment and remand for reconsideration by the trial court. Apart from the financial provisions of the final judgment that are addressed in this opinion, the final judgment is affirmed.

The parties married on September 21, 1991, and have two minor daughters, Rebecca, born August 19, 1992, and Gabriela, born October 16, 1993. The Former Wife filed a petition for dissolution of marriage on February 28, 2005, the Former Husband filed a counterpetition, and the trial court conducted the final hearing in November 2005. The Former Wife has not provided a transcript of the final hearing for this court’s review, and she acknowledges that no transcript is available.

The final judgment, rendered on January 3, 2006, designates the Former Wife as the primary residential parent and grants liberal visitation to the Former Husband. The judgment notes that one daughter, Rebecca, has “serious physical and mental disabilities.” The judgment indicates that while the Former Wife has the ability to be employed, because of the daughter’s disabilities the Former Wife’s employment opportunities may be somewhat restricted. The trial court found the Former Husband to have a net income of $43,000 per year and imputed $10,000 per year in net income to the Former Wife. The court ordered the Former Husband to pay guideline child support of $1135 per month and awarded to the Former Wife $665 per month in permanent alimony.

The final judgment purports to equitably distribute the parties’ assets and liabilities. The Former Wife contends that the trial court erred in failing to value the family business, Naples Envelope & Printing Company, and points out that section 61.075(3)(b), Florida Statutes (2004), requires the trial court to make specific written findings as to the “[ijdentification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset[.]” We note that the trial court did not value any marital assets in the final judgment. In addition, section 61.075(3)(a) requires the trial court to identify the “nonmarital assets and ownership interests[.]” Although a transcript of the proceedings is not available, “the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment.” Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998); see also Sugrim v. Sugrim, 649 So.2d 936, 937 (Fla. 5th DCA 1995) (stating that without a transcript or statement of the evidence, an issue concerning evidentiary sufficiency is not reviewable but that “[a]n error which appears on the face of the final judgment” is subject to review).

The final judgment does not explicitly state whether the business is a marital or nonmarital asset but describes it as “the Husband’s business” and states that the Former Wife “has a special equity consisting of a one-half (1/2) interest in the Husband’s business known as Naples Envelope & Printing Company.” The judgment goes on to award to the Former Wife the right to exclusive use and possession of the parties’ marital residence “until such time as the children are emancipated or reside outside of the house. In any event, the right of exclusive possession shall terminate twelve (12) years from the date of this Final Judgment.” The judgment then provides as follows:

6. At such time as the Wife’s exclusive possession of the marital residence terminates, the parties shall determine the value of the marital residence and the value of Naples Envelope & Printing Company. The Wife shall be given a credit toward the value of the marital residence against the Husband’s interest equal to her one-half (1/2) equity value in the business. Either party may then buy out the other party. Alternatively, the marital residence shall be sold in a customary reasonable manner in which residences are sold in Collier County, Florida, at that time. Upon closing the proceeds shall be distributed in accordance with the equities as set forth herein.

Thus, the trial court ordered the parties to value the two most significant assets on a date up to twelve years after the date of the final judgment of dissolution. We recognize that the trial court has discretion in determining a valuation date, but here that discretion has been abused.

The trial court’s failure to value either of these assets as required by section 61.075(3)(b), and its deferring the valuation for up to twelve years, results in an uncertain equitable distribution and one that would be impacted by postdissolution events such as the appreciation or depreciation in the value of the business. For example, the Former Husband could run the business into the ground, leaving the Former Wife with a one-half interest in nothing twelve years from now. Or, through the Former Husband’s efforts, the value of the business may be significantly greater in twelve years, allowing the Former Wife to reap an unanticipated and significant benefit. The latter circumstance would improperly allow the Former Wife to share in benefits realized by the Former Husband postdissolution. See Howerton v. Howerton, 491 So.2d 614, 615 (Fla. 5th DCA 1986) (recognizing that the wife was not entitled to one-half of pension benefits to be paid when the husband retired at some time in the future because if the benefits increased, “the wife would be sharing in benefits acquired after the dissolution of the marriage”). Further, section 61.075(5)(a) defines marital assets to include those assets acquired “during the marriage, individually by either spouse or jointly by them[.]” In our view, any post-dissolution loss or gain in the value of the Former Husband’s business realized over a number of years is not a marital asset.

The Former Husband argues that our record does not show that any evidence was presented regarding the value of the marital home or the business. However, a loan closing statement on a refinancing of the marital home in 2005 reflects a $350,000 market value for the marital residence. The record also contains bank statements and profit and loss statements from the business. In addition, the Former Husband’s pre-trial statement refers to documents prepared by a business expert and lists a CPA as a witness. Thus, although we do not know what testimony the parties presented, it appears that the trial court had some evidence before it as to the value of the home and the value of the business.

Therefore, we reverse the equitable distribution and remand for the trial court to comply with section 61.075(3) by: identifying nonmarital assets and ownership interests; identifying the marital assets and liabilities; providing an individual valuation for the significant marital assets; and designating which spouse is entitled to each asset and responsible for each liability. See Harreld v. Harreld, 682 So.2d 635, 637 (Fla. 2d DCA 1996) (remanding for the trial court to “make specific findings about the identity and value of all the significant marital assets and liabilities”). Furthermore, if the trial court makes an unequal distribution, it must make specific findings addressing the factors in section 61.075(l)(a)-(j) to support its decision. Id. In addition, we caution the trial court that although the valuation date is in the trial court’s discretion, see § 61.075(6), the valuation date should be on or before the date that the trial court enters an amended final judgment on remand.

The Former Wife also argues that the trial court erred in failing to grant her any credit upon sale of the marital home for the mortgage payments that the final judgment requires her to pay. Neither the parties nor the trial court’s judgment references section 61.077, which provides as follows:

A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale.

The statute then lists the factors the trial court should consider in determining the issue. Id.; see also Holitzner v. Holitzner, 920 So.2d 827, 828 (Fla. 4th DCA 2006) (remanding for the trial court to address, in accordance with section 61.077, the issue of whether the wife was entitled to credits or setoffs upon sale of the marital home). Therefore, on remand the trial court shall specifically address credits and setoffs on the sale of the marital residence in accordance with section 61.077.

With respect to child support, the Former Wife contends that the trial court erred in not adjusting upward from the child support guidelines because their daughter, Rebecca, is a severely handicapped child. The trial court found that the Former Husband had a net yearly income of $43,000 and imputed a net yearly income of $10,000 to the Former Wife. The Former Wife does not challenge the imputation of income. The trial court ordered the Former Husband to pay a guideline amount of $1135 per month as child support. Although section 61.30(ll)(a)(6) allows a trial court, in its discretion, to increase the guideline amount based on a child’s special needs, there must be evidence to support the increased award. See Cifrian v. Cifrian, 715 So.2d 1068, 1071 (Fla. 4th DCA 1998) (reversing child support award and noting that there was “ample evidence showing that the parties have incurred additional expenses in the past in meeting the needs of their handicapped daughter”).

Because we have no transcript, we do not know what, if any, evidence the Former Wife presented at the final hearing regarding Rebecca’s special needs or potentially justifying an upward adjustment of child support. Further, the Former Wife’s petition for dissolution requests child support in accordance with the guidelines and does not specifically seek an increased amount of child support. Her pretrial statement states that “[h]er current needs for alimony and child support are $4,000 per month.” The statement also notes that Rebecca “is mentally disabled and requires special attention”; however, the statement also reflects that she is covered by Medicaid.

The final judgment does not contain a visitation schedule, but it states that the Former Husband “shall have liberal visitation to continue at a minimum of the current visitation schedule of the parties.” The judgment also notes “the Husband’s expressed willingness and intention to assist with the children to allow the Wife reasonable employment.” Thus, it appears that the children are in the Former Husband’s care for a significant portion of time.

Because our record does not contain a transcript of the final hearing, we cannot say that the trial court abused its discretion in ordering the Former Husband to pay the guideline amount of child support. However, because we are remanding for reconsideration of the equitable distribution, the trial court may reconsider the child support and alimony awards after it equitably distributes the parties’ assets and liabilities.

Finally, the Former Wife contends that the trial court erred in not ordering the Former Husband to pay all of her attorney’s fees. Based on our remand of the equitable distribution, we direct the trial court to reconsider on remand the Former Wife’s request for fees and costs after it reconsiders the equitable distribution award and the parties’ financial resources. See § 61.16(1).

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and NORTHCUTT, JJ„ Concur.

      . Section 61.077, Florida Statutes, was enacted in 1997. See Ch. 97-249, at 4507-08, Laws, of Fla. All the cases that the parties cite on this issue were decided before section 61.077 was enacted.


text:
    Bernadette DENNARD, Appellant, v. STATE Of Florida, Appellee.
    No. 2D04-4538.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2006.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In case no. 01-7143, Bernadette Den-nard was sentenced to eighteen months on count I, and count II was nolle prossed. Subsequent to her completion of the eighteen-month sentence, for reasons not necessary to recount here, she was sentenced to time served on count I. Because Den-nard had completed her sentence, any further sentencing was a nullity. Accordingly, we vacate the sentence of time served on count I.

Sentence vacated.

WHATLEY, DAVIS, and VILLANTI, JJ., concur.


text:
    In re Darren M. BENDER.
    No. 2006-OB-1796.
    Supreme Court of Louisiana.
    Oct. 9, 2006.
   ORDER

Upon review of the Motion to Withdraw Objection filed by the Committee on Bar Admissions, and considering the record of this matter,

IT IS ORDERED that the court’s order of July 19, 2006 be and hereby is recalled and set aside, and petitioner, Darren M. Bender, shall be immediately eligible for admission to the practice of law in Louisiana.

/s/ Pascal F. Calogero, Jr.

Justice, Supreme Court of Louisiana


text:
    In re Kaye E. CALDWELL.
    No. 2000-B-1262.
    Supreme Court of Louisiana.
    Oct. 16, 2006.
   ORDER

Considering the Motion to Dismiss filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the motion be and hereby is granted, and this matter is dismissed as moot.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    Charles ALBERT and Denise Albert v. FARM BUREAU INSURANCE COMPANY, et al.
    No. 2005-C-2496.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      Preis, Kraft & Roy, Larry L. Roy, Edwin G. Preis, Jr., Dawn L. Morris; Nicholas Gachassin, Jr., Lafayette, for Applicant.
    Oliver, Way & Jones, Kenny L. Oliver, David 0. Way, Lafayette; Rabalais-Williams, George E. Williams, Jr., Lafayette; Hulse & Waneck, Randall L. Klein-man, New Orleans, Kevin P. Tauzin, Jonathan L. Woods, Lafayette, for Respondent.
   PER CURIAM.

| We granted this application to consider whether the court of appeal erred in awarding medical expenses in favor of plaintiffs and against the Sheriff of Lafayette Parish without providing a corresponding credit to the sheriff for medical expenses previously paid to plaintiffs. For the reasons that follow, we conclude the sheriff is entitled to a credit and therefore amend the judgment of the court of appeal.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Charles Albert, a deputy with the Lafayette Parish Sheriffs Department attended a defensive tactic training course. Carl Broussard, another deputy with the Sheriff s Department, also attended the training course. Approximately fifteen minutes before the course was scheduled to begin, Deputy Albert and Deputy Broussard attempted to practice an action known as the “common peroneal maneuver.” Deputy Albert alleged he sustained injury to his knee as a result.

| .¿Thereafter, plaintiffs, Deputy Albert and his wife, filed the instant suit against Deputy Broussard, in his individual capacity, and Farm Bureau Insurance Company, Deputy Broussard’s homeowner’s insurer.

Subsequently, Sheriff Michael Neus-trom, in his capacity as Administrator of the Lafayette Parish Sheriffs Department self-insurance program, filed a petition of intervention. The petition alleged that at all times pertinent, Deputy Albert was employed by the Lafayette Parish Sheriffs Office and was entitled to payment of medical expenses and lost wages under the Sheriffs Department self-insured benefits program. Citing La. R.S. 3S:1448(F), the petition alleged “intervenor is subrogated to all of the rights of plaintiff to recover damages from various defendants to the extent of payments made by intervenor under La. R.S. 33:1448....”

Thereafter, plaintiffs filed a First Supplemental and Amending Petition, naming Sheriff Neustrom in his individual and official capacities. Plaintiffs alleged Sheriff Neustrom was vicariously liable for Deputy Albert’s injuries because Deputy Brous-sard was in the course and scope of his employment at the time of the incident.

Prior to trial, the parties entered into a stipulation regarding the intervention. That stipulation provides, in pertinent part, as follows:

13The Lafayette Parish Sheriffs Department has paid the total sum of $48,763.32 for medical expenses of Charles Albert, for personal injuries and other losses sustained in an action which occurred on or about June 19, 2001[em-phasis in original].

The matter proceeded to a bench trial. At the conclusion of trial, the trial court rendered judgment in favor of Sheriff Neustrom, finding that he was not vicariously liable for Deputy Broussard’s actions. The court reasoned that Deputy Broussard was not within the course and scope of his employment at the time of the accident.

Plaintiffs appealed. The court of appeal reversed the judgment of the trial court, finding that Sheriff Neustrom was vicariously liable for Deputy Broussard’s actions. Having found liability, the court of appeal proceeded to award damages in favor of plaintiffs and against Sheriff Neustrom, including past medical expenses in the amount of $48,763.32.

Sheriff Neustrom filed an application for writs in this court. He raised four assignments of error, including assignment of error number four, which stated “[t]he Third Circuit erred in failing to grant the Sheriff a credit for the amount of medical bills and expenses it paid on behalf of plaintiff.” We granted certiorari and spe-cifieally directed the parties to provide additional briefing on assignment of error number four. Albert v. Farm Bureau Ins. Co., 05-2496 (La.4/24/06), 926 So.2d 528.

DISCUSSION

At the outset, we note that in granting this application, it was not our intent to address the court of appeal’s holding that the sheriff was vicariously liable for Deputy Broussard’s actions. It suffices to say that we find no error in the court of appeal’s ^determination of the vicarious liability issue. See LeBrane v. Lewis, 292 So.2d 216 (La.1974). Likewise, our review of the quantum of the damages awarded by the court of appeal does not reveal these awards are unreasonable.

We now turn to the issue which prompted our grant of certiorari, namely, whether Sheriff Neustrom is entitled to a credit for medical expenses previously paid to Deputy Albert. In resolving this issue, we begin from the well-settled premise that Louisiana law does not allow for double recovery of the same element of damages. In Gagnard v. Baldridge, 612 So.2d 732, 736 (La.1993), we stated:

A wrongdoer should not be required to pay twice for the same elements of damages. Double recovery would be in the nature of exemplary or punitive damages which are not allowable under Louisiana law unless expressly provided for by statute. International Harvester Credit v. Seale, 518 So.2d 1039 (La.1988).

Although plaintiffs do not dispute the prohibition against double recovery, they contend there is no double recovery under the facts of this case. They point out the judgment of the court of appeal casts Sheriff Neustrom for past medical expenses in his official capacity as Sheriff of Lafayette Parish. By contrast, plaintiffs maintain the intervention established that Sheriff Neustrom previously paid medical expenses in his capacity as Administrator of the Sheriffs Department’s self-insurance program. Because Sheriff Neustrom has two distinct capacities in this litigation, plaintiffs argue there is no double recovery.

We see no merit to plaintiffs’ argument. Assuming (without necessarily deciding) that Sheriff Neustrom appears in two capacities, such a distinction is |fiirrelevant for purposes of the prohibition against double recovery. In Gagnard, supra, we held that the defendant which appeared in two separate capacities (employer and tortfeasor) was entitled to a credit for disability benefits and medical expenses paid to the plaintiff under the worker’s compensation act against the amount of wages and medical expenses awarded to the plaintiff in tort.

Likewise, Robinson v. North American Salt Co., 02-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98, 109, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139, the court held that a statutory employer which was cast for damages in tort was entitled a credit for workers’ compensation benefits paid by the plaintiffs direct employer. The court stated:

Although NAS [the statutory employer] is not the one who actually paid the workers’ compensation benefits to the employee in this case, that does not change the fact that Mr. Robinson cannot be compensated twice for the same element of damages. Accordingly, we must amend the judgment to reflect a reduction for the medical expenses and indemnity benefits which Mr. Robinson was already paid.

Relying on these authorities, we find it is of no moment that Sheriff Neustrom may have paid medical benefits under a different capacity than the capacity in which he was cast in judgment. The fact remains that plaintiffs have been compensated for | fihis medical expenses and cannot be compensated twice for the same element of damages.

In summary, we conclude that the court of appeal erred in casting Sheriff Neus-trom for past medical expenses in the amount of $48,763.32 without granting him a corresponding credit for these amounts. Accordingly, we will amend the judgment of the court of appeal to grant Sheriff Neustrom a credit for past medial expenses in the amount of $48,763.32.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to provide that defendant, Sheriff Michael W. Neustrom, is entitled to a credit for past medical expenses in the amount of $48,763.32. In all other respects the judgment of the court of appeal is affirmed. All costs in this court are assessed against plaintiffs, Charles Albert and Denise Albert.

      . The common peroneal defensive tactic allows a deputy to subdue a subject by pressing his knee into the upper thigh of the subject.

      . Deputy Broussard was later discharged in bankruptcy and his insurer was dismissed by motion for summary judgment.

      . La. R.S. 33:1448(F) provides:
      F. Sheriffs, their insurers, and any self-insurance plan authorized pursuant to this Section, shall be subrogated to all rights and actions which any deputy or his dependents have or may have for all sums which such sheriffs, insurers, or self-insurance plans have paid or may pay as salary or compensation; as health, medical, surgical, hospital, dental, accident, or death benefits; and if such interest is asserted by suit or intervention for a reasonable attorney’s fee therefor.

      . At the time of this incident, Sheriff Neus-trom did not elect to provide workers’ compensation for his deputies. Accordingly, the provisions of La. R.S. 23:1032 regarding exclusiveness of remedies and employer's immunity from tort liability did not apply in the instant case. See La. R.S. 23:1034(B) & (C).

      . The court of appeal also awarded $8,908.89 in past lost wages, $150,000.00 in past and future pain, suffering, mental anguish, disability, and loss of enjoyment of life, and $25,000.00 to Mrs. Albert for loss of consortium.

      . In support of this contention, plaintiffs rely on the fact that Sheriff Neustrom in his official capacity was represented by different counsel from Sheriff Neustrom in his capacity as Administrator. However, we do not believe this fact necessarily proves Sheriff Neus-trom is acting in two distinct capacities. At the time the initial intervention was filed, the only defendants in the litigation were Deputy Broussard and his homeowner's insurer. Because there was a possibility these defendants could have argued Deputy Broussard was in the course and scope of his employment with the Lafayette Parish Sheriff’s Office, Sheriff Neustrom contends he retained separate counsel to file the intervention to avoid the possibility of a future conflict. Seen in this light, we cannot say Sheriff Neustrom’s use of separate counsel necessarily indicates the medical expenses were paid by a entity separate and distinct from the sheriff.

      . We also note that La. R.S. 33:1448(F) provides for a statutory right of subrogation for benefits paid under the sheriff’s self-insurance program. Accordingly, even accepting Sheriff Neustrom in his official capacity is a separate entity from Sheriff Neustrom in his capacity as administrator of the self-insurance program, any past medical expenses paid by Sheriff Neustrom in his official capacity pursuant to the tort judgment would not be paid to plaintiff but rather would be paid to plaintiffs’ subrogee^ — i.e., the Sheriff in his capacity as administrator of the self-insurance program. As Sheriff Neustrom’s attorney aptly pointed out, the sheriff would essentially take the money from one pocket and put it in another, thereby extinguishing any obligation on the part of the sheriff by confusion. See La. Civ.Code art.1903 (“[w]hen the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion”).

      . As shown by the stipulation of the parties, it is undisputed that Sheriff Neustrom paid the total sum of $48,763.32 for Deputy Albert’s medical expenses. Accordingly, he is entitled to a credit for this amount.